THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PEDRO MIL, DEFENDANT-APPELLANT.

Mandatory review of the decision of the Court of First Instance
of Samar, finding the accused Pedro Mil, an enlisted
man of the Philippine Constabulary, of the crimes of murder in Criminal Cases
Nos. 7548 and 7551, sentencing him to death in each case and ordering him to
pay an in­demnity of P6,000.00 and moral damages in the sum of P15,000.00 to
each of the heirs of the deceased Augusto Arteche and Pedro Arteche.

It appears that on December
22, 1966, the deceased Augusto Arteche was boxed by the accused Pedro Mil at the Arco
Iris, a nightspot in Catbalogan, Samar, where the said Augusto
Arteche worked as a piano player, causing physical
injuries to Augusto Arteche.^[1]
As a result, Pedro Mil was charged with the crime of less serious physical
injuries before the Municipal Court of Catbalogan, Samar. 
As a PC enlisted man, Pedro Mil was stationed at Camp
Lukban in
said municipality.  He was therefore
placed under technical arrest under the custody of his commanding officer.^[2] Augusto Arteche, in turn, was
charged with Direct Assault upon an Agent of a Person in Authority.^[3]
Almost every night thereafter, Augusto Arteche and his family were harassed by Pedro Mil and his
companions.^[4] Augusto Arteche feared for his
life and sought security assistance from the President of the Philippines,^[5]
and the Municipal Mayor of Catbalogan, Samar,^[6]
and a policeman was detailed to guard their house.  But, the policeman stayed there for only
three nights.^[7]

However, efforts had also been made towards settling the cases
amicably and to this end, Atty. Filomeno Arteche, Jr., then Vice-Mayor of Catbalogan,
Samar, wrote his cousin, Augusto Arteche, to effect a
settlement of their cases as a personal favor to him.^[8]
This letter was entrusted to Sgt. Pedro Arteche for
delivery to Augusto Arteche.^[9]

At about 6:00 o’clock
in the evening of February 12, 1967,
while Augusto Arteche,
Salvador Alba, and some friends were drinking at the Amba’s
Refreshment Parlor, Pedro Mil, and Sgt. and Mrs. Anicio
Laparra entered the store and occupied a table near a
counter.  Upon seeing them, Augusto Arteche informed Pablo de
los Reyes and Fidel Tan of the presence of his
enemies, pointing to the table occupied by Pedro Mil and his companions.  Augusto Arteche was told to remain seated and was cautioned to be
very extra careful.  But, after a time,
Sgt. Laparra saw Augusto Arteche and invited him to their table.  Augusto Arteche acceded and was offered a bottle of beer, after
which they talked.^[10]
Salvador Alba tried to follow Augusto Arteche.  However,
Alba was already very drunk and he just sat beside a table nearby and slept,
with his head cradled in his arms. 
Suddenly, Pedro Mil shouted at Augusto Arteche: “Let’s have a fight;” “Kung ganoon kailangan kang mamatay,” immediately
drawing a .45 cal. pistol tucked under his belt.  Augusto Arteche stood up, pleading: “Huwag,
huwag“, at the same time raising his hands.  Nevertheless, Pedro Mil shot him, causing him
to fall face downwards.  The accused then
took a step towards the prostrate body of Augusto Arteche and fired two more shots at his back.  As he fired, he exclaimed: “This is the
killer of Leyte.” The
accused then kicked the fallen body of Augusto Arteche,^[11]
and turned on the sleeping Salvador Alba and shot him, saying: “Ikaw pa.”^[12]
Pedro Mil then left the store.  Outside,
he accosted a passerby and asked for the house of one Atty. Plaridel
Bohol, but the person did not know.  So, Pedro Mil went towards the Noble Drug
Store, where he hailed a motorized tricycle and left the place.^[13]

Augusto Arteche
was brought to the Samar
Provincial Hospital
at Catbalogan, but he expired a few minutes upon
arrival.^[14]
An autopsy was conducted on his body,^[15]
and the cause of his death was found to be as follows:^[16]

“WOUNDS, GUNSHOT, MULTIPLE; WRIST,
LEFT, THRU & THRU, WITH FRACTURE, RADIUS, LEFT; LOWER 3RD ARM, THRU &
THRU-ENTRANCE OUTER ASPECT RIGHT; HYPOCHONDRIUM & RIGHT, ILIAC AND RIGHT
LUMBAR, POSTERIOR WITH PERFORATIONS, MULTIPLE, SMALL AND LARGE INTESTINES &
MESENTERY AND PERFORATION-STOMACH, ABRASIONS, FORE-HEAD, LEFT ASPECT, &
INFRA- ORBITAL REGION, LEFT SLUG EXTRACTED FROM THE LATERAL REGION, LUMBAR
LEFT.”

Meanwhile, at about 7:00 o’clock in the evening of that very same
day, while Sgt. Pedro Arteche and his wife were
seated by the window of their house at Barrio Maulong,
Catbalogan, Samar, about
half a kilometer from the PC Camp, the accused Pedro Mil arrived aboard a
motorized tricycle and asked Pedro Arteche about the
letter which Pedro Arteche was supposed to deliver to
Augusto Arteche,^[17]
saying: “Sergeant, you did not hand the letter to Augusto
because Augusto said that he did not receive it;”
to which Pedro Arteche replied: “Why, where is Augusto now?” Pedro Mil told him that Augusto Arteche was at Amba’s place and insisted: “But, you did not
give?” Pedro Arteche answered: “No, I did
not.” Thereupon, Pedro Mil shot Pedro Arteche.  When Trinidad Arteche
asked why Pedro Mil shot her husband, Pedro Mil pointed the gun at her and
squeezed the trigger.  But, the gun did
not fire.  Pedro Mil then ran to the
waiting tricycle and returned to the PC Camp where he surrendered to his
commanding officer, Capt. Villena.^[18]

Pedro Arteche was brought to the Samar Provincial
Hospital and was operated on for
the gunshot wound.  But, he died two days
later.^[19]
The cause of death was: “WOUND, GUNSHOT, LEFT HYPOCHONDRIAC REGION WITH
SLUG EXTRACTED ON RIGHT LUMBAR WALL POSTERIOR; ATELECTASIS, PULMONARY,
RIGHT.”^[20]

For the death of Augusto Arteche, Pedro Mil was charged with Murder, qualified by
evident premeditation and treachery, and attended by the aggravating
circumstances of (1) taking advantage of his public position; (2) use of a
motor vehicle; (3) that the wrong done was deliberately augmented by causing
other wrong not necessary for its commission; and (4) that means were employed
or circumstances brought about which add ignominy to the natural effects of the
act.  For killing Sgt. Pedro Arteche, Pedro Mil was also accused of Murder, qualified by
evident premeditation and treachery and attended by the aggravating
circumstances of (1) taking advantage of his public position; (2) use of a
motor vehicle; (3) that the crime was committed in the dwelling of the offended
party; and (4) that the act was committed with insult or in disregard of the
respect due the offended party on account of his rank.  Pedro Mil was further prosecuted for
Frustrated Murder, for the shooting of Salvador Alba, and for Illegal Possesion of Firearm, the firearm used in the shooting
being unlicensed.

After trial, the accused was found guilty of Frustrated Murder
and Illegal Possession of Firearm, as well as for two cases of Murder for the
killing of Augusto Arteche
and Pedro Arteche. 
The cases are now before the Court in view of the death sentence imposed
upon the accused in each of the murder cases.

In this appeal, eminent counsel de oficio
does not question the findings of the trial court that the accused is guilty of
the crimes for which he is charged. 
Counsel merely disputes the propriety of the imposition of the death
penalty in each of the murder cases.

1. Re:  Augusto Arteche:

In imposing the death sentence upon the accused for the killing
of Augusto Arteche, the
trial court found the accused guilty of the crime of Murder, qualified by
evident premeditation, and attended by the aggravating circumstances of (1)
treachery; (2) taking advantage of public position; and (3) scoffing or outraging
the person or corpse of the de­ceased; and the mitigating circumstance of
voluntary surrender.

While affirming that the crime committed is Murder, qualified by
evident premeditation, counsel de oficio
contends that there is no treachery since Augusto Arteche had been forewarned of the presence of the accused
in the refreshment parlor and he was given enough chances to prepare for his
defense or to avoid a confrontation with the accused, who had allegedly
harassed him and his family as a result of the filing of the criminal case for
physical injuries against the said accused, Pedro Mil.  Besides, the accused shouted: “Magaway kita” before
shooting the deceased.  Counsel further
contends that the aggravating circumstance of scoffing at the person or corpse
of the deceased has not been proven in view of the contradictory statements of
prosecution witnesses Pablo de los Reyes and Fidel
Tan as to the kicking of the body of the deceased by the accused after the
latter had shot the former.  But, counsel
acknowledges that the aggravating circumstance of taking advantage of public
position is present which circumstance is offset by the mitigating circumstance
of voluntary surrender.

We find, however, that the crime is not attended by evident
premeditation.  Premeditation must be
clearly proven as the criminal act itself and if there is nothing in the case
that can serve as a ground to determine when the accused resolved to commit the
crime, nor, consequently, to determine if the said criminal resolution was
meditated on, reflected upon and persisted in, which constitutes premeditation,
this circumstance is not present.  The
evidence must show not only when the intent to commit the crime was engendered
in the mind of the accused, but the motive which gave rise to it, the means
which he selected beforehand to carry out his criminal intention, in short, all
those facts and antecedents which together show that the crime was knowingly
premeditated, as required by law, and that the accused acted not only with
preexisting design, which is a condition ordinarily found in all crimes, but
with a cold and deep meditation and tenacious persistence in the accomplishment
of his criminal purpose.^[21]

In the instant case, the evidence presented by the prosecution to
prove that the accused had deliberately planned to commit the crime and had
persistently and continuously followed his plan consists merely of the
testimony of Elena Arteche, the wife of Augusto Arteche, that the accused
had threatened her husband before the killing. 
But, the alleged threats against the deceased made prior to the
commission of the crime by the accused, are not sufficient in themselves to
constitute premeditation, the said threats not having been followed by
subsequent acts revealing, on the part of the accused, a firm and tenacious
persistence to carry out the said threats, and which purpose he had reflected
upon coldly and deeply.  The testimony of
Elena Arteche reads, in part, as follows:

“Q   Why
did Augusto Arteche write
the police department of Catbalogan, Samar?

“A    Because
informations were received regarding the intent to
kill of my husband.

**********                   **********                     **********

“Q   Did
you know who were the tormentors of your husband, those who were giving him
threats to his life after that mauling incident?

**********                   **********                     **********

“A    Pedro
Mil.

“COURT

“Q   How
did you know that?

“A    Because
my husband has indicated to me that that is the very Pedro Mil.

“FISCAL JUABAN

“Q   Since
those threats on the life of Augusto Arteche came to your knowledge, did you of your own
knowledge know of this fact?

“A    Yes,
sir, somebody told us, advising my late husband not to go out because should
Mil meet him, he would be killed.

**********                   **********                     **********

“Q   This
persistent threats on your husband days that you know of by reason of that
information given, was this during the pendency of
this case against Mil in the municipal court?

“A    Still
pending.

“Q   During
the pendency of this case, did you ever see Pedro Mil
and his companions?

“A    Yes,
sir.

**********                   **********                     **********

“Q   In
what particular place did you see them?

“A    We
have seen the accused and his companions in the following places:  By the Imay’s
Restaurant near our house, and by the Caltex Station
near our house, and near the moviehouse.

**********                   **********                     **********

“Q   How
far is this Caltex Station where you used to see Mil
and his companions?

“A    From
here to that Telecom (64 meters).

“Q   What
were these soldiers among whom was Pedro Mil and his companions doing at the Caltex that distance of your house?

“A    They
were watching us and they lighted us with the lights of the jeep, and then we
have to run.

“Q   How
often did they do this during the pendency of
Criminal Case No. 1360 now Exhibit ‘H’, before the Municipal Court?

“A    Almost
every night.

“Q   How
far is this Imay’s Restaurant from your house?

“A    About
the same distance to the house of Mr. Abesamis.

“Q   What
were the companions of Mil and Mil himself doing in that Carenderia
of Imay as you saw them?

“A    Standing,
but they were looking at us.”^[22]

Moreover, it does not appear in the record that the accused Pedro
Mil had purposely looked for his victim at the Amba’s
Refreshment parlor where he was killed. 
From the evidence, their meeting thereat was indeed casual.  It is therefore clear that when the accused
Pedro Mil went to the refreshment parlor it was not for the purpose of killing Augusto Arteche.  On the contrary, the accused was hopeful that
the case against him would be settled in view of the letter of Atty. Filomeno Arteche to Augusto Arteche asking the latter
to settle the case.  Pablito
de los Reyes and Fidel Tan, both testifying for the
prosecution, declared that Sgt. Laparra, upon seeing Augusto Arteche, invited the latter
to join them at their table and Pedro Mil even offered Augusto
Arteche a bottle of beer, which the latter accepted,
after which they conversed.^[23]
If there was premeditation to kill Augusto Arteche, Pedro Mil would have shot him the moment he saw
him.

However, there is treachery present in the commission of the
offense because the accused fired at the victim who, with hands upraised, was
pleading that his life be spared.^[24]
Treachery, therefore, qualifies the crime to murder.

Is the aggravating circumstance of cruelty present?  Wit­ness Pablo de los
Reyes testified, as follows:

“Q   After
Pedro Mil successfully shot Augusto Arteche, and after he shot Alba, what did Pedro Mil do, if
any, with the fallen body of Augusto Arte­che?

“A    He
kicked the fallen body to show if he was still alive, he kicked with his foot.

“Q   What
portion of the fallen body of Augusto Arteche did Pedro Mil kick?

“A    This
part of his body (witness touching the left lumbar portion)”.^[25]

Witness Fidel Tan, on the other hand,
stated as follows:

“Q   After
Mil went towards that direction you have made mention of where did he go?

“A    Mil
attempted to go out through the door.  He
just pulled the shutter and half-way opened and discontinued the attempt to go
out, then return to the fallen body of Augusto and
stepped his right foot on the fallen body of Augusto.

“Q   What
portion of the fallen body of Augusto Arteche did Mil step on?

“A    The
middle of the back.”^[26]

From their testimonies it appears that the reason why accused
kicked the deceased or placed his right foot on the body of the deceased was to
verify whether or not the latter was still alive, and not for the purpose of
deliberately and inhumanly increasing the victim’s sufferings.^[27]
The aggravating circumstance of cruelty cannot therefore be appreciated against
the accused.  For the same reason, aside
from the fact that it was not alleged in the information, We cannot consider as
present the qualifying circumstance of outraging or scoffing at the victim’s
person or corpse.

It results that the accused is guilty of the crime of murder,
qualified by treachery and attended by the sole aggravating circumstance of
taking advantage of his public position, offset by the mitigating circumstance
of voluntary surrender.  The correct penalty
therefore should be reclusion perpetua.

2. Re:  Pedro Arteche:

There is no dispute that the killing of Pedro Arteche
had been properly classified as murder, qualified by treachery, since the
attack upon him was sudden and un­expected and he was in a defenseless
position; and attended by the aggravating circumstances of (a) dwelling, since
the deceased was killed in his own house and he has not given provocation; and
(b) taking advantage of public position. 
The trial court further found that the offense was aggravated by (1)
insult or disregard of the respect due the offended party on account of his
rank being a sergeant while the accused was a corporal; and (2) committed with
the aid of a motor vehicle, as the accused took a motorized tricycle in going
to the house of Pedro Arteche.

We agree with counsel that the offense is not attended by the
aggravating circumstances of (1) with the aid of a motor vehicle; and (2) with
insult or disregard of the respect due the offended party on account of his
rank.

Under Article 14, paragraph 20 of the Revised Penal Code, motor
vehicle would be an aggravating circumstance if the crime were committed by
means thereof.^[28]
It will not be considered as an aggravating circumstance where there is no
showing that the motor vehicle was purposely used to facilitate the commission
of the crime or where it is not shown that without it the offense charged could
not have been committed.^[29]  In the case at bar, the primary purpose of
the appellant in riding on a motorized tricycle was to return to their camp
after shooting Augusto Arteche
and it was just incidental that on his way to the camp, he happened to see
Pedro Arteche sitting by the window of his house.

The aggravating circumstance that the offense was committed with
insult or disregard of the respect due the offended party on account of his
rank, may be appreciated only where there is a difference in the social
condition between the offender and the offended party because persons of
dignity, or those generally considered of high station in life deserve to be
respected.^[30]
Here, the accused and the deceased Pedro Arteche are
both non-commissioned officers in the Constabulary and while Pedro Arteche is a staff sergeant and Pedro Mil a corporal, there
is no evidence that the accused deliberately or particularly intended to insult
or disregard the respect due the offended party.

Counsel further maintains that the accused should be credited
with the mitigating circumstance of “passion and obfuscation” in the
shooting of Pedro Arteche in view of the findings of
the trial court that the accused now already “blinded with rage”
after shooting Augusto Arteche
and Sal­vador Alba decided to kill also Pedro Arteche
because of the failure of Pedro Arteche to deliver
the letter of Atty. Felimon Arteche,
Jr. to Augusto Arteche.

In order that courts may take into consideration the existence of
the mitigating circumstance of “passion and obfuscation” in the
commission of a felony, it is necessary to show the causes or special motives
which have produced in the mind of the offender those stimulants so powerful
that they naturally resulted in passion and obfuscation overcoming reason.  The guilty party must act under the impulse
of such special motives originating from lawful sentiments.  Here, the failure of Pedro Arteche to deliver the letter of Felimon
Arteche to Augusto Arteche is a prior, unjust and improper act sufficient to
produce great excitement and passion in the accused as to confuse his reason
and impel him to kill Pedro Arteche.  It was a legitimate and natural cause of
indignation and anger since the accused Pedro Mil had pinned his hopes of
settling the case against him amicably on that letter.  Accordingly, the accused should be accredited
with the mitigating circumstance of passion and obfuscation.

To recapitulate, in Criminal Case No. 7548, the crime committed
is murder, qualified by treachery and attended by the sole aggravating
circumstance of taking advantage of his public position, offset by the
mitigating circumstance of voluntary surrender. 
Hence, the correct penalty should be reclusion perpetua.  In
Criminal Case No. 7551, the crime committed is likewise murder, qualified by
treachery and attended by the aggravating circumstances of (a) dwelling, and
(b) taking advantage of public position; and the mitigating circumstances of
(a) voluntary surrender, and (b) passion and obfuscation.  The correct penalty, therefore, is reclusion
perpetua.

WHEREFORE, the decision of the trial court is modified and
judgment is rendered as follows:

In Criminal Case No. 7548, the accused Pedro Mil is sentenced to
suffer the penalty of reclusion perpetua
and to indemnify the heirs of the deceased Augusto Arteche in the sum of P12,000.00; and in Criminal Case No.
7551, the accused Pedro Mil is likewise sentenced to suffer the penalty of reclusion
perpetua and to indemnify the heirs of the
deceased Pedro Arteche in the sum of P12,000.00.

The decision of the trial court in both cases is affirmed in all
other respects.

SO ORDERED.

Fernando, C.J., Makasiar, Fernandez,
Guerrero, Abad Santos, and
Melencio-Herrera, JJ.,
concur.

Teehankee, J., votes for affirmance of the
death penalty, files a separate opinion.

Barredo, J., concurs in the opinion of J. Aquino.

Aquino, J., concurs and dissents in part.

Antonio and de Castro,
JJ., took no part.

Santos, J., on leave.

---

^[1]
p. 120, t.s.n., May 9, 1967.

^[2]
Exhibit “H”.

^[3]
Exhibit 1-a.

^[4]
pp. 14-15, t.s.n., Session of May 5, 1967.

^[5]
Exhibits N, N-1, N-2.

^[6]
Exhibit N-3.

^[7]
p. 17, t.s.n., Session of May 5, 1967.

^[8]
Exhibits J, J-1, J-2.

^[9]
p. 91, t.s.n., Session of May 9, 1967.

^[10]
Part of the conversation, according to the accused was as follows:

“A I asked him if he received
a letter from his relative Atty. Filomeno Arteche, and he told me that I have not even received and
what is the contents; I told him the contents was to advise us to drop these
cases because they are only light cases. 
And then he told me that that is easy, you send a telegram to your
attorney and upon arrival here you just come to me and both of you, your attorney
and you will kneel before me.” (p. 90, t.s.n.,
Session of May 9, 1967)

^[11]
pp. 96-100, t.s.n., Session of May 3, 1967.

^[12]
pp. 100, 151, 163, t.s.n., Session of May 4, 1967.

^[13]
pp. 106, 142, 143, t.s.n., Session of May 4, 1967.

^[14]
p. 45, t.s.n., Session of May 3, 1967.

^[15]
pp. 12, 45, t.s.n., Session of May 3, 1967.

^[16]
Exhibit A.

^[17]
See footnotes 8 and 9.

^[18]
p. 189, t.s.n., Session of May 5, 1967.

^[19]
p. 47, t.s.n., Session of May 3, 1967.

^[20]
Exhibit B.

^[21]
Albert, The Revised Penal Code, pp. 121-124.

^[22]
pp. 14-16, t.s.n., Session of May 5, 1967.

^[23]
pp. 94, 95, t.s.n., Session of May 4, 1967.

^[24]
People vs. Ricohermoso, 56 SCRA 431 (1974);
People vs. Tan, 73 SCRA 288 (1976).

^[25]
pp. 110-111, t.s.n., Session of May 4, 1967.

^[26]
p. 164, t.s.n., Session of May 4, 1967.

^[27]
People vs. Aguinaldo, 55 Phil. 610; U.S. vs.
Vitug, 17 Phil. 1; U.S. vs. Cervo, 9 Phil. 158; U.S. vs. Ulat,
7 Phil. 559; People vs. Luna, 58 SCRA 198; People vs. Llamera, 51 SCRA 48; People vs. Manzano,
58 SCRA 250.

^[28]
People vs. Canial, 46 SCRA 634, 652.

^[29]
People vs. Tingson, 47 SCRA 243.

^[30]
Albert, The Revised Penal Code, p. 109.

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