THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. PEDRO DURANTE, DEFENDANT AND APPELLANT.

Pedro Durante, the defendant, was tried in the Court of First
Instance of Manila for the crime of murder by virtue of the following
information:

”That on or about January 15, 1929, the above-named
defendant, while serving two sentences for two frustrated murders at
Bilibid Prison in the City of Manila, Philippine Islands, with malice
aforethought and the deliberate intention to take the life of Mateo
Gutierrez, willfully, unlawfully, feloniously, suddenly, unexpectedly,
and treacherously attacked the latter with a knife, first wounding him
in the chest, and afterwards, when enfeebled and unable to defend
himself, again in the stomach, both wounds being necessarily mortal,
and being the direct and immediate cause of said Mateo Gutierrez’s
death a few moments later.

“Contrary to law.”

The defendant, assisted by his attorney, was arraigned upon the
information, and on being asked by the trial court whether he
understood the contents of the information, answered that he did, and
pleaded guilty. Notwithstanding this plea of guilty, the court, on
petition of the prosecuting fiscal, proceeded to hear the evidence for
the prosecution and for the defense, with the object of determining
what crime the acts imputed to the defendant constituted, and above all
to ascertain whether the qualifying and aggravating circumstances
alleged in the information were really present. (U. S. vs. Jamad, 37 Phil., 305.)

From the evidence it appears that on January 15, 1929, after 1
o’clock in the afternoon had struck, and while a brigade of prisoners
was leaving its dormitory in Bilibid Prison, Raymundo Zafra, foreman
of said brigade, saw some other prisoners going into it and saying that
someone had been stabbed. At that moment, Mateo Gutierrez entered the
said dormitory with his left hand over his chest, and told Raymundo
Zafra that someone had stabbed him. Zafra asked Gutierrez where he had
been stabbed, and at the same time tried to get a club from the head of
his bed, and on turning his face to where Gutierrez was, he saw the
defendant enter the room, and at once stab Gutierrez with the dagger in
the abdomen, or more properly speaking, according to the medical
certificate Exhibit B, on the right side a little above the waist,
while the former reclined upon a table; after which, the defendant ran
away, and a few moments later, said Gutierrez expired as a result of
his wounds.

Emiliano Ramos, chief foreman of Bilibid, testified that on hearing
the siren, which is the alarm signal, he went into the prison to find
out what had happened, and there met the defendant Pedro Durante, who
was running and brandishing the knife Exhibit A. As the defendant would
not give himself up when required to do so by Ramos, the latter had to
hit him with his truncheon on the neck and waist, whereat he fell to
the ground and let go of the knife. When the defendant had been
overpowered Ramos asked him what he had done, and the defendant
answered that he had attacked the deceased and that the knife he had
used had been kept by him after Christmas “for he was bent on killing
him,” because the latter had hit him with his fist.

Some time later the Director of Prisons, Ramon Victorio, repaired to
the scene of the crime, and in the office of the overseer found the
defendant Pedro Durante. He asked the latter why he had stabbed
Gutierrez and where he had obtained the knife Exhibit A. Defendant
answered: “Because I bore him ill will,” and adding, “that the knife
with which I wounded him was the one used when the arch was made before
Christmas Day (1928) and that I had kept it in a nanca tree in the
garden in Bilibid, for the purpose of killing Gutierrez.” The Director
testified that these statements were made by the defendant without any
violence being employed against him, and without any immunity being
promised him.

Finally, Dr. Pablo Anzures, who made the autopsy of Mateo
Gutierrez’s body, testified that he “found six wounds on the body,
caused by a sharp pointed instrument as a result of which said
Gutierrez died; that the wound on the chest was of necessity mortal
because it reached the lung, and was alone sufficient to cause his
death. The following wounds were discovered: One on the upper
right-hand side of the chest; another on the right side, a little above
the waist; the third in the middle of the right arm; the fourth on the
upper part of the right arm, near the shoulder; the fifth in the middle
of the right shoulder; and, the sixth on the upper left-hand side of
the back.

The defense presented as witness the defendant himself, who is 24
years of age, unmarried, a prisoner in Bilibid Prison, and he stated
that he had not studied in any school, nor does he know how to read in
any language or local dialect, and that he only knows how to write his
name.

According to Exhibit C, the defendant, at the time of committing the
crime was serving two sentences at Bilibid for the crime of double
frustrated murder, committed at San Pedro Makati, Rizal, on August 14,
1928.

With the aforementioned evidence at hand, the trial court rendered
judgment finding the defendant guilty of the crime of murder committed
with treachery, and considering the presence of the aggravating
circumstance of evident premeditation, and in view, furthermore, of the
provision of article 129 of the Penal Code imposed upon the defendant
the penalty fixed by article 403 of said Code in its maximum degree,
that is, the death penalty, indemnity to the heirs of the deceased in
the amount of P500, and payment of the costs.

This judgment with the record of the case, was forwarded to this court on review.

The brief filed by counsel for the defendant assigns error to the
court below in finding the defendant Pedro Durante guilty of the crime
of murder instead of simply homicide, and in sentencing him to the
death penalty. And for the reasons therein stated, the attorney, Isabel
Artacho-Ocampo, who defended the accused in this instance prays that
the latter be only sentenced to reclusion temporal in its maximum degree.

On the other hand, the Attorney-General recommends that the judgment
of the trial court be affirmed, the same being in accordance with the
law and the evidence, with costs against the defendant Pedro Durante.

There is no question as to the facts. The court below held in its
judgment that prior to December 16, 1928, the defendant had had an
altercation with the deceased, Mateo Gutierrez, and since then had
borne him a grudge. It is to. this doubtless, that the defendant’s
answers to the chief foreman of Bilibid and the Director of Prisons
referred, on his being questioned by them as to what had happened on
that occasion. That the deceased, Mateo Gutierrez, died on the
afternoon of the crime as a result of the wounds inflicted upon him by
the defendant is, likewise, undisputed. What counsel does contend is
that the acts imputed to the defendant only constitute the crime of
homicide, for the reason that in the case at bar neither the qualifying
circumstance of treachery nor the aggravating circumstance of
premeditation has been present.

We agree with the defense that the qualifying circumstance of
treachery cannot be taken into consideration in the instant case. No
one has testified as to the manner in which the defendant inflicted the
first wound upon the deceased outside the dormitory. Therefore,
treachery cannot be deemed to have been present, because treachery must
be proved as the crime itself. (U. S. vs. Arciga, 2 Phil., 110; U. S. vs.
Asilo, 4 Phil., 175). And although it might be true that the
defendant’s attack within the dormitory was treacherous in character,
considering the defenseless state of the deceased, nevertheless, the
second attack being a continuation of the fight between the two,
according to the repeated ruling of this court, this second attack does
not make the act treacherous. In United States vs. Balagtas and Jaime (19 Phil., 164), this court held:

“In order that alevosia may be considered
as a qualifying circumstance to raise the classification of the crime,
or as an aggravating circumstance to augment the penalty, it must be
shown that the treacherous acts were present and preceded the
commencement of the attack which caused the injury complained of. After
the commencement of such an attack, and before its termination, an
accused person may have employed means or methods which were of a
treacherous character, and yet such means or methods would not
constitute the circumstance of alevosia. One continuous
attack cannot be broken up into two or more parts and made to
constitute separate, distinct, and independent attacks so that
treachery may be injected therein and considered as a qualifying or
aggravating circumstance.”

And in People vs. Cafiete (44 Phil., 478), it was held:

“When an altercation which ends in a homicide is begun without alevosia
on the part of the slayer, and the criminal design is prosecuted to its
consummation without any break in the continuity of the aggression and
without the intervention of any factor which materially changes the
conditions of the aggression, the offense constitutes homicide,
although the final fatal blow may be delivered under conditions
exhibiting some of the features of alevosia.”

In the instant case, the defendant attacked the deceased, wounding
him mortally in the chest. After this attack, the deceased fled and
sought refuge in the dormitory of Zafra’s brigade, and there he was
overtaken by the defendant, who dealt him another mortal wound on the
right side a little above the waist. The first attack cannot be deemed
treacherous for lack of evidence as to the manner and form in which the
crime was perpetrated. The second attack being a continuation of the
first, even if treacherous in character, cannot lead to the legal
conclusion that Gutierrez’s death was caused treacherously.

Let us now inquire whether the circumstance of evident premeditation
was present, i£ being one of the circumstances which qualify the crime
of murder according to article 403 of the Penal Code. According to the
jurisprudence construing the seventh aggravating circumstance
enumerated in article 10 of the Penal Code, the essence of this
circumstance consists in that the execution of the criminal act must be
preceded by cool thought and reflexion upon the resolution to carry out
the criminal intent, during the space of time sufficient to arrive at a
calm judgment. In United States vs. Abelinde (1 Phil., 568), it was held:

“Proof that the band which committed the murder was
formed some time before and that the members of the band had taken
measures tending to insure the success of their criminal enterprise is
sufficient to show such reflective, persistent deliberation on the
commission of the crime as to constitute the circumstance of evident
premeditation.”

In United States vs. Larion (2 Phil., 476), it was held:

“The accused, upon entering the town in command of
the band of malefactors headed by him, searched out the family of the
complaining witness and killed the latter’s wife and children. This
conduct reveals reflection and preparation to a degree constituting the
aggravating circumstance of deliberate premeditation.”

In United States vs. Manalinde (14 Phil., 77), the court held among other things:

“As to the other circumstance it is also
unquestionable that the accused, upon accepting the order and
undertaking the journey in order to comply therewith, deliberately
considered and carefully and thoughtfully meditated over the nature and
the consequences of the acts which, under orders received from the said
datto he was about to carry out, and to that end provided himself with
a weapon, concealing it by wrapping it up, and started on a journey of
a day and a night for the sole purpose of taking the life of two
unfortunate persons whom he did not know, and with whom he had never
had any trouble; nor did there exist any reason which, to a certain
extent, might warrant his perverse deed. * * *”

And in United States vs. Liwakas (17 Phil., 234), the court said:

“In the matter of the perpetration of the crime it
is proper to consider the presence of the aggravating circumstances 7,
15, 20, and 21 of article 10 of the Penal Code, as it was shown that
Liwakas commenced to sharpen his bolo on the afternoon immediately
preceding the night of the crime, which indicated that, from that time,
he thought of and determined upon committing the said murders and did
with premeditation deliberately resolve to deprive the deceased Mamacao
and Santanan of their lives, thus preparing, by those overt acts, the
execution of the crime, * * *”

In accordance with the legal doctrines herein enunciated, we find
that the death of Mateo Gutierrez, was caused with evident
premeditation. Prior to December 16, 1928, the defendant had an
altercation with the deceased, who according: to the former, hit him
with his fist, and since then, the defendant bore him a grudge. He used
a knife in building a Christmas arch, and stored it away in a nanca
tree in the garden in Bilibid, for the purpose of killing Gutierrez.
The proceedings do not show when the defendant took the knife he had
hidden, but he doubtless took it from its hidingplace when he found an
opportunity to carry out his criminal designs; all of which shows that
the defendant had enough time to meditate and reflect on the act he was
about to perform, and on its consequences.

Without discussing the admissibility of the statements made by the
defendant to the chief foreman of Bilibid and to the Director of
Prisons, counsel insinuates that those statements should not be taken
into account against the defendant; In the first place, because the
defendant testified before the foreman after he had been beaten by said
foreman; and in the second place, because the statements he made before
the Director of Prisons are due to the great moral influence of said
Director over the prisoners. We find no merit in this contention. The
defendant was beaten by the foreman because he would not give up his
weapon on being required by said foreman to do so. After he
surrendered, the foreman did nothing to obtain from him the statement
that “he attacked the deceased and that the knife he used was one he
had hidden away after Christmas, because he was bent on killing him.”
As to the defendant’s having made similar statements to the Director of
Prisons, there is nothing in the proceedings to show that said Director
employed undue influence to obtain them. Such statements are admissions
of the accused, res gestæ, and admissible as evidence in the case.

By virtue of the foregoing, we are of opinion and so hold that the
crime committed by the defendant is murder, qualified by evident
premeditation, defined and penalized by article 403 of the Penal Code.
This article imposes upon any person guilty of murder a penalty ranging
from cadena temporal in its maximum degree to death. And it
appearing that at the time of the commission of the crime the defendant
was serving two sentences for frustrated murder in Bilibid, article 129
of the same Code is applicable, according to which, any person who
shall commit a felony or misdemeanor after having been convicted by a
final judgment, before beginning to serve such sentence, or while
serving same, shall be punished in accordance with the following rules:
” (1) The maximum degree of the penalty prescribed by the law for the
new felony or misdemeanor shall be imposed; (2). * * *.”

Wherefore, the judgment under review being in conformity with the
law, the same must be, as it is hereby, affirmed, with costs against
the defendant. The death penalty imposed upon the defendant shall be
executed in the manner prescribed by law on the date fixed by the judge
of the lower court. So ordered.

Avanceña, C. J., Johnson, Street, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur