G.R. No. 1615. January 16, 1905

We accept the statement made in the judgment of the court below as
to the guilt of the defendant in the killing of Vitaliano Ramos, which
gave rise to the complaint. The evidence fully justifies the said
statement, and it should, therefore, be affirmed.

The court below classified the facts in the case as constitutive of
the crime of murder, appreciating the presence of the circumstances of
treachery (alevosia), premeditation, and nocturnity,
considering the first as constitutive of the crime and the latter two
as aggravating of the penalty thereof. We agree with the legal
classification of the offense, but not with the whole appreciation of
the circumstances present in the commission of the same. Of course the
premeditation is to be appreciated; the acts executed by the defendant
to carry out his designs, telling the wife of the deceased of his
intention to kill her husband in order to possess her person, seeking
the person who was to carry out his designs, planning with said person
the pariculars for the commission of the crime, accompanying hini on
the very moment of its commission in order to witness the realization
of his criminal purpose, after having spent with him the hours
immediately preceding the same, as the evidence in the case discloses
in an indubitable manner, all of them prove clearly and evidently that
the resolution taken by the defendant to kill the deceased had been
considered, meditated, and persistent, and this is what constitutes
premeditation for the purposes of the Penal Code. This circumstance is
what classifies the crime as murder in the presentcase.

With regard to the circumstance of treachery (alevosia),
the case does not furnish sufficient particulars whereby its presence
in the commission of the crime may be appreciated. The only eyewitness
gives no details about the manner in which the aggression to the
deceased was made. The appreciation of the court below seems to be
based solely on the statement of the physician who examined the wounds
of the deceased, in so far as the latter’s opinion was that the said
deceased was wounded in the back. However, the diagnosis of
the wounds made by the same physician does not seem to authorize this
conclusion. According to said physician the deceased was stabbed only
once and received two wounds, one of ingress and the other of egress.
Upon describing these wounds he says that that of ingress is located
between the third and fourth front ribs on the middle part of
the right side of the body, and that of egress between the seventh and
eighth back ribs on the middle part of the same side of the body, the
weapon having almost pierced the whole lobule of the right lung from
top to bottom and from front to back. Besides this, upon
describing in the record the cut produced by the entrance of the weapon
into the deceased’s shirt, he pointed out as such a rent in the collar toward the breast.
In view of this, we can not conclude, at least in a clear and precise
manner, excluding all doubt, that the deceased was attacked from the
back, which is made constitutive of the circumstance of treachery (alevosia) in the judgment appealed from.

Nocturnity is not necessarily an aggravating circumstance, and the
same should be taken into consideration by the courts according to the
nature and circumstances of the crime. In the present case it is not
evident that the accused had purposely sought the night to perpetrate
.the crime. This circumstance could have very well been merely
accidental in the intention of the said defendant, as there is no proof
to the contrary, and for this reason it should not be taken into
consideration to the prejudice of the defendant.

There being no circumstance modifying the penalty to be appreciated,
the penalty to be imposed on the defendant should be that provided for
in article 403 of the Penal Code, in its medium degree, to wit, cadena perpetua.

Therefore we affirm the judgment of the court below, it being understood that the penalty imposed upon the defendant is that of cadena perpetua, with the costs of this instance to be charged against the defendant. So ordered.

Arellano, C. J., Torres, Johnson, and Carson, JJ., concur.