G.R. No. 1611. March 13, 1905

The judgment has been rendered against Modesto Cabaya Cruz and
Geronimo Pedro. Casiano Graciano, who was charged in the complaint, has
been eliminated from the case. The judgment has become final as regards
Geronimo Pedro on account of his not having appealed there- from, and
as regards Modesto Cabaya Cruz this case is brought here en consulta on account of the death penalty imposed upon him.

The complaint charged murder. According to it, the crime was
committed with treachery and known premeditation, accompanied by the
aggravating circumstances of uninhabited place, abuse of confidence,
and use of craftiness and fraud. The crime consists of the killing of
Frank Helm by Modesto Cabaya Cruz. The following conclusions of facts
which appear in the judgment conform to the proofs, except in one
detail:

(1) That the death of Frank Helm was caused by a gunshot which pierced his heart, the bullet coming out of the back.

(2)
That the two defendants and several more, among whom was Casiano
Graciano, went to the house of Frank Helm apparently looking for work,
and the latter gave them food and tools and sent them to work in his
mines on the day of the occurrence.

(3) That on that day
Modesto Cabaya Cruz remained in the house with Helm while his
companions went to work in the neighborhood of the mine.

(4)
That Modesto Cabaya Cruz had in his possession a gun, and remained
behind the house where the deceased lived; he was the one appointed to
hunt some wild pigs for the meal of the workingmen.

(5) That
the workmen had scarcely gone to work when a gunshot was heard in the
direction of the house and where Modesto Cabaya and the other were. For
this reason Casiano Graciano, who was one of the workmen, went to the
house .together with two other men to see what had happened, and
passing in front of it he saw the defendant Modesto Cabaya Cruz and his
companion, Geronimo Pedro, ransacking the house.

(6) That
Modesto Cabaya Cruz had gone to the mountains under the pretext of
looking for gutta-percha; and that he gave out the impression that his
motive in going to the mountains was to discharge a commission,
although it is true that he at first; did not say what the commission
was, but when he came back he said to one of the witnesses that the
commission was to kill the American miners. The following conclusions
are also in accordance with the law:

(1)
That although it has not been fully proven that the defendant Modesto
Cabaya Cruz was the one who had fired the shot by which Frank Helm was
killed, yet the circumstances very conclusively indicate that he, and
only he, is the sole author of the crime.

(2) That the
circumstance of premeditation was proven when he states that some days
previously he had gone to the mountains with the commission of killing
the Americans.

The second of these two conclusions of law is well formulated. The
criminal purpose which Cabaya had when he went to the mountains
constitutes known premeditation and in this case is a circumstance
qualifying the crime of murder. As to the first conclusion of law,
however, the consideration of the aggravating circumstance of treachery
(alevosia) is not well founded, because it has been affirmed
that it is not proven that Modesto Cabaya Cruz was the one who had
fired the shot. That is to say, there is no proof as to how the shot
which killed Helm was fired, and it is the long-established doctrine of
criminal law and jurisprudence that when there is no proof to justify
the manner in which the crime was committed it can not be insisted that
the circumstance of treachery was present.

The facts set out in the fourth conclusion of fact, to the effect
that Modesto Cabaya Cruz remained behind the house where the deceased
lived, is not correct. The fact of Cabaya having simulated friendship
and desire for work, together with the companions who went with him,
and the fact that he received food and work immediately upon being
accepted by the Americans to work in the mines, is not, as stated in
the judgment, a degree of treachery, according to law, sufficient to
constitute the aggravating circumstance of abuse of confidence. It may,
however, be argued as unworthy conduct and ingratitude, but not as
abuse of confidence. It is necessary first to show what has been the
confidence granted or given in order to determine whether there was or
was not an abuse of it, and in the present case there is nothing to
show what the confidence given or conceded to Cabaya was, that could
facilitate the commission of the crime.

As to the other aggravating circumstances considered in the
judgment, only the one of the crime having been executed in an
uninhabited place can be considered, for, although it was in the
miners’ house, there was a storehouse near it where Cabaya and his
companions slept the night previous. It, however, does not appear that
there were any more buildings or houses, and of course at the time of
the occurrence Cabaya’s companions were absent from the house, and he
was in or near the house with Frank Helm in reality making it an
uninhabited place. But against this aggravating circumstance must be
weighed that of article 11 of the Penal Code, which we can do no less
than take into consideration, the results of the investigation made by
the court as to the belief among those people that the general
mortality was not the result of the cholera, but of intentional
poisoning, which at first seemed to be the cause of the death of Frank
Helm, charged against Eduardo Alvarez and the municipal president,
Isidro Medel. These imputations are refuted by the judge in one of his
conclusions.

With these considerations, the penalty is imposed in the medium degree, and therefore we sentence Modesto Cabaya Cruz to cadena perpetua,
to indemnify the heirs of the deceased in the sum of P1,000, without
subsidiary imprisonment in case of insolvency, and with the costs in
both instances. So ordered.

Torres, Mapa, Johnson, and Carson, JJ., concur.