G.R. No. 1612. April 27, 1905

George Gray, the appellant in this case, was charged with the crime
of assassination, in that “on the night of the 15th of August, 1903, in
the town and Province of Cavite, the said George Gray, with a bar of
iron, and Michael Davitt, Harry Matterson, William Brunn, and James J.
Higgin, with sticks and pieces of wood, did willfully, maliciously, and
treacherously beat one Hermenegildo Eclar, inflicting upon him grave
wounds, as a consequence of which he died.”

The trial court found him guilty as charged in the complaint and sentenced him to seventeen years four months and one day of cadena temporal
(imprisonment) and to pay the costs of the proceedings and civil
damages to the heirs of the deceased in the sum of 1,000 pesos.

We are of opinion that the evidence adduced at the trial fully
established the unlawful killing of the said Hermenegildo Eclar by the
said George Gray, at the time and in the place and manner set out in
the information, except in so far as it is alleged that said killing
was done treacherously (alevosamente). The trial court was of
opinion that there was “treachery” in the commission of the offense,
because “the deceased was surrounded by various Americans and pursued
in his flight by the said Gray for the purpose of striking the fatal
blow.”

In view of all the facts in the case we do not think that this
circumstance should be taken into consideration as constituting
treachery so as to raise the offense committed from homicide to
assassination, as provided in article 403 of the Penal Code, and
therefore the sentence appealed from should be, and is hereby, reversed.

The crime of homicide, of which the appellant was proven guilty, is
a crime necessarily included in the charge upon which he was tried, and
we therefore find the accused guilty of homicide as denned in article
404 of the Penal Code, and, taking into consideration the mitigating
circumstance mentioned in article 9 of paragraph 7 of the Penal Code,
as found by the trial court, we sentence the said George Gray to the
penalty of twelve years and .one day of reclusion temporal,
with the accessory penalties prescribed in article 59 of said code, and
to the payment of 1,000 pesos civil damages to the heirs of the
deceased, and the costs of the proceedings in both instances. So
ordered.

Arellano, C. J., Torres and Mapa, JJ., concur.

---

DISSENTING

JOHNSON, J.:

I can not concur with the majority in this case. In my opinion the
proofs are not sufficient to demonstrate, beyond a reasonable doubt,
that the accused is guilty of the crime of which he is charged.