G.R. No. 2456. December 28, 1905

The judgment appealed from holds the accused guilty of the murder of
Leoncia Bucalan, Canuto as principal and Elicerio as accomplice, and
sentenced the first to life imprisonment (cadena perpetua) and the second to ten years’ imprisonment (prision mayor.)
The judge held that premeditation was a qualifying circumstance of the
said crime, it having been inferred from the fact that the crime was
committed in a dark place where the defendants were in hiding with the
instruments necessary to execute the crime.

The fiscal in this instance, in conformity with the legal
qualification of the crime, makes the circumstance of the crime consist
in alevosia and not in premeditation, which, according to him, has not concurred in the commission of the act under prosecution.

We believe that neither circumstance should be taken into account,
and that the crime should therefore be qualified as simple homicide and
not murder. Premeditation should not be taken into account as there is
nothing in the cause that can serve as a ground to determine when the
accused conceived the determination to commit the crime, nor,
consequently to determine if the said criminal resolution was
meditated, reflected upon, and persisted in which is that which
constitutes the circumstance of known premeditation, as has been
repeatedly held in the decisions of this court. Neither the facts set
forth by the judge in the judgment appealed from as grounds for his
findings, nor the threats uttered prior to the crime by the defendants
against the deceased are sufficient in themselves to constitute that
circumstance, said threats not having been followed by subsequent acts
revealing on the part of the defendants, aside from the execution of
the crime, a firm and decided purpose to carry out the said threats and
that they coolly and with reflection had persisted in their purpose for
carrying out the same.

As regards alevosia the merits of the trial are also not
sufficient to estimate their concurrence in the commission of the act
under prosecution. With relation to this point the only eyewitness,
Gregorio Parino, said as follows:

“We came down together (the deceased and myself) by
the kitchen stairs of said house without knowing that the defendants
were under the house where my wife was assaulted by the defendant
Canuto, she being unable to say anything but ‘Jesus, Mary and Joseph
succor us.’”

As is seen, the witness simply says in general terms that his wife
was assaulted by one of the defendants without being able to say the
manner and form in which it was done, for which reason it is not
possible to establish with all certainty based on known facts, and not
on mere conjectures or deductions more or less founded, as would be
necessary to establish alevosia; that the defendants used
means and methods which tended directly or indirectly to make
impossible every defense on the part of the deceased and her companion
Gregorio Parino who was also assaulted on that occasion.

The evidence sufficiently shows the guilt of the defendants. Both
should be qualified as principals of the crime under prosecution, for
though Elicerio did not inflict any wound on the deceased, it is a
clear and evident deduction from the facts proved in the trial that he
accompanied his co-defendant to the place of the crime, armed with an
axe, by virtue of a prior agreement between the two tending to assure
their cooperation in the execution of the crime. His presence there
with the deadly arm which he carried contributed to increase the
offensive power of his said co-defendant, it being probable that without
it the latter would not have; decided to assault the deceased on seeing
her accompanied by Gregorio Parino. His cooperation was moreover real
and effective, he having assaulted the latter at the precise moment
that he came to the defense of the deceased, wounding him severely and
preventing him in this manner from making the said defense, which
resulted in the deceased being left at the complete mercy of her
assailant. Without his said cooperation the crime would perhaps not
have been consummated by reason of the timely intervention of Parino in
the quarrel. In view of all of the circumstances of the case we hold
that the defendant Elicerio cooperated in the execution of the act by
acts without which the latter would not have been effected and that he
is therefore co-author of the same in accordance with the Penal Code.

The aggravating circumstance of nocturnity should be taken into
account, and there being no extenuating circumstance, there should
therefore be imposed upon the defendants the penalty for the crime of
homicide in its maximum degree, though we believe that the discretional
power granted to the courts by rule 7 of article 81 of the Penal Code
could properly be exercised; that within the said degree Elicerio is
entitled to lesser penalty than his co-defendant Canuto.

With reversal of the judgment appealed from, we sentence Canuto Amoroso to twenty years’ imprisonment (reclusion temporal)
and Elicerio Amoroso to seventeen years four months and one day of the
same penalty, and both to pay to the heirs of the deceased an indemnity
of 500 pesos, Philippine currency, with the costs of this instance to
the said defendants. So ordered.

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