THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. IGNACIO CALINAWAN, DEFENDANT AND APPELLANT.

This is an appeal from a judgment of the People’s Court finding
the defendant, Ignacio Calinawan, guilty of the complex crime of treason with
murder, and sentencing him to the death penalty, to pay a line of P20,000 and an
indemnity to the heirs of Romualdo Nacario in the sum of P2,000 plus the costs.

The information charges four counts. We are in full agreement
with the opinion of the Solicitor General that, under the evidence on record,
the lower court erred in convicting the appellant of treason. The only point
that consequently arises is whether, as contended by the Solicitor General, said
appellant may be convicted of murder. This view is predicated on the facts, duly
borne out by the evidence, that in the morning of September 26, 1944, the
appellant and an unknown companion, both armed with rifles, were riding on their
respective bicycles in barrio Pakigne, municipality of Minglanilla, Province of
Cebu. Upon seeing the appellant on said occasion, Romualdo Nacario started to
run, whereupon the appellant whistled at him. As Romualdo Nacario ignored the
call and continued to run, the appellant got off from his bicycle and, from a
distance of some fifty meters, fired a shot at Romualdo who was fatally hit.

In classifying the offense as murder, the Solicitor General
argues that the attack was sudden and unexpected, and made while the deceased,
Romualdo Nacario, was running away with his back towards the appellant, and that
Romualdo did not have any opportunity of defending himself or of avoiding the
attack, which was perpetrated without any risk to the appellant arising from any
defense which the deceased might have offered.

We believe that the appellant must be held liable for the
killing of Romualdo Nacario, but that the offense should be classified only as
homicide. There is absolutely no indication in the record that the appellant was
purposely in search for Romualdo, and the bare facts proven at the trial are not
inconsistent with the inference that the meeting was casual. Much less can the
proof warrant the theory that the appellant had a previous determination to kill
Romualdo, and the bare facts proven at the trial are likewise not inconsistent
with the conclusion that the appellant fired at his victim impulsively. And
considering in this connection, that the shot was fired at a distance of fifty
meters and while Romualdo was running, appellant’s situation may fairly come
under the doctrine mentioned in People vs. Canete, 44 Phil., 478, 481, that the
method of assault adopted by the aggressor was not “deliberately chosen with a
special view to the accomplishment of the act without risk to the assailant from
any defense that the party assailed may make,” said case making special
reference to an instance “where the slayer acted instantaneously upon the
advantage which resulted from the accidental fall of the person slain.”

From the scanty facts revealed in the record, we cannot suppose
that appellant knew beforehand that Romualdo was unarmed or that the latter
“would not stop, face and attack the appellant, so as to be able to hold that
the appellant perpetrated the fatal act without risk to himself, especially if
we bear in mind that Romualdo must have known that his attempt to flee would
naturally provoke the appellant. Upon the whole, we are not prepared to rule
that the qualifying circumstance of treachery was present.

There is another reason why we are averse to the theory that
treachery may be taken into account. It is note-worthy that count No. 2 of the
information alleges that the appellant “wilfully, unlawfully and treasonably
while on patrol with another undercover, against guerrillas, shot to death one Romualdo Nacario a guerrilla suspect.” A qualifying circumstance must be pleaded
(U. S. vs. Campo, 23 Phil., 368) ; and it is plain that there is nothing in the
allegations in count No. 2 suggestive of the presence of treachery. The word
“treasonably,” without more, may of course be loosely synonymous with
“treacherously.” The information, however, in its entirety charges the appellant
with treason, from which it becomes clear that “treasonably” was used to denote
the commission of an act in a manner penalized by article 114 of the “Revised
Penal Code, and not merely of an act penalized as murder, specially when
reference is made to count No. 1 in which the word “treasonably” was also used
in accusing the appellant of having joined and served the enemy as guide,
informer and spy and of having accompanied the enemy in his retreat upon the
invasion of the Americans. That such was the sense intended by the prosecutor is
further made manifest by the fact that he used the specific term ‘treachery,” as
a concurring circumstance, in the last paragraph of the information, thereby
indicating his desire to differentiate “treasonably” from “treacherously.” This
allegation of treachery, made under count No. 4, cannot refer to the distinct
count No. 2.

We are, therefore, of the opinion that the appellant can and
must be found guilty only of homicide without any attending circumstances, for
which he is hereby sentenced to an indeterminate penalty of from 8 years and 1
day prision mayor, to 14 years, 8 months and 1 day, reclusion temporal, and to
indemnify the heirs of Romualdo Nacario in the sum of P2,000, plus the costs. So
ordered.

Moran, C. J., Ozaeta, Feria, Pablo, Perfecto, Bengzon, Tuason,
Montemayor, and Reyes, JJ., concur.