THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. MACARIO SERA JOSEP, DEFENDANT AND APPELLANT.

“That on or about the 21st and 22nd days of November, 1927, in
the City of Manila, Philippine Islands, the said accused entered the store of
Reyes Brothers Optical Company, located at No. 524 Rizal Avenue of said city, an
inhabited place, by taking advantage of his friendship had with one Zacarias
Lapuz y Nerit who was then an employee and living as watchman in said store, and
by falsely pretending that he could not find a place where to lodge on the night
of November 21, 1927; that once inside the store, with intent of gain and by
means of violence used upon the person of said Zacarias Lapuz y Nerit, that is,
by striking him on the head with the handle of an iron grinder and stabbing him
with a knife or sharp pointed instrument in different vital parts of the body of
said Zacarias Lapuz y Nerit who was then sleeping at the time, wilfully,
unlawfully, and feloniously stole, seized, and carried away with him the
following personal properties belonging to the Reyes Brothers Optical Company,
to wit:

in the total sum of one thousand eight hundred twenty-eight
pesos (P1,828) to the damage and prejudice of the owners thereof in the said
sum, equivalent to and of the value of 9,140 pesetas, Philippine currency; that
as a consequence of the violence used by the said accused upon the said Zacarias
Lapuz y Nerit, the latter received three lacerated wounds; two at the scalp and
one at the region of the right ear; multiple stab wounds penetrating the face,
scalp, abdomen and scrotum; fractures of the skull and of the bone of the right
middle finger, causing concussion of the brain and profuse hemorrhages all of
which produced the instantaneous death of said Zacarias Lapuz y Nerit.

 “That in the commission of the above-described crime, the
following aggravating circumstances were present, to wit: treachery (alevosia),
as the victim was attacked while he was asleep, nighttime was specially sought
for by the said accused; abuse of confidence, as the accused took advantage of
the confidence reposed in him by the victim; and that the offender had been
previously convicted once for the crime of estafa.

“Contrary to law.” [Parenthesis ours (must be P100.00).]

The facts alleged in this information have been fully proven.
The defendant admits them by pleading guilty, substantially admitted them orally
to detective Eugenio Dizon, and again admitted them spontaneously and in detail
in the document Exhibit K, written and signed by himself on the afternoon of
November 23, 1927, and in the statement, Exhibit L, made and signed by him on
the night of the same date.

In addition to such confession and
admissions made by the accused, facts were proven at the trial which corroborate
his statements in every respect, leaving no room for doubt that he committed the
criminal act described in the information.

Considering the crime of robbery with homicide, penalized by
article 503, paragraph 1, of the Penal Code, was proven and finding the
defendant criminally liable therefor, and that the aggravating circumstances of
treachery, nocturnity and abuse of confidence were present, not mitigated by any
extenuating circumstance, the Court of First Instance of Manila that tried the
case, sentenced the accused to the death penalty, ordering, in view of the
penalty imposed, that the case be brought up to this court for review.

Counsel for the defense does not deny either the existence of
the crime or the guilt of the defendant, but raises several questions relative
to nocturnity as an aggravating circumstance, and to the lack of instruction and
education of the accused, his state of mind in committing the crime, and the
fact that at that time he was only 19 years 6 months of age, as extenuating
circumstances.

With respect to nocturnity, we accept as correct the
observations made by the Attorney-General in his brief. It matters not that in
the instant case treachery undoubtedly exists and was taken into consideration
as an aggravating circumstance. This does not prevent nocturnity also from being
taken into account so long as it clearly may be inferred from the proceedings
that the accused took advantage of the nighttime to commit the crime more
easily, and for the time, with greater impunity. Treachery is a circumstance
distinct from nocturnity. One may exist without the other.

It is true that, that when nocturnity, rather than being an
isolated circumstance, is, as stated in a decision on a writ of error of
December 29, 1884 “a particular manner or form of assuring its execution, in
this case constituting an incident absolutely inseparable from treachery,” it
should not be considered separate from the latter, as it was not done in the
case of United States vs. Salgado (11 Phil., 56); nevertheless, when, as in the
case at bar, it is not inherent or inseparable there can be no sufficient reason
for not considering, both circumstances, that is, treachery and nocturnity
present, separately and independently of each other.

Therefore, there were present in the commission of the crime in
question the aggravating circumstances of treachery, nocturnity, abuse of
confidence, as well as the recidivism alleged and proven. With respect to the
last named circumstance, the doctrine cited by the defense in the first
instance, taken from Viada (vol. 1, 4th edition, p. 311), is not applicable.
That doctrine refers to a murder and the former crime was one against property
and not directly against persons, while in the case now before us the crime is
robbery with homicide (against property and against persons) and the former
crime was estafa, also against property, both included in the same title of the
Code.

With respect to the lack of instruction and education, it
should not be forgotten, in the first place, that the lower court rather than
this one, is called upon in each case to determine whether or not such
circumstance may be consid. ered as modifying the defendant’s guilt, for the
reason that, as held in the case of United States vs. Estorico (35 Phil., 410),
“as a general rule, the trial court can determine the application of article 11
with better results than we can. He has before him the accused; he is able to
estimate his grade of intelligence, the instruction and opportunities he has
had; he observes his appearance and demeanor and judges his tendencies and
character.”

In the second place, it is true that the data supplied by Dr.
Angeles on this point are of record. Among statements made by this physician in
his testimony during the trial of the case, we find the following, which, to our
mind, summarize the opinion which he formed of the defendant’s degree of
instruction and education:

“Q. But in the present case, doctor, you recognize that we are
dealing with an ignorant person?—A. In a relative sense, yes, sir. That is to
say, he can write, he understands English, and can engage in business.

“Q. But in the moral sense?—A. In the moral sense, and with
reference to such knowledge as I possess, it might be said that he lacks
morality.

“Q. You believe that this individual’s faculties to discern the
difference between right and wrong are well developed?—A. Yes, sir; within his
sphere of action and his sphere of knowledge as a normal person.

“Q. So, you do not find in him anything but ignorance?—A. Relative ignorance, but above all he lacks morality.”

These conclusions do not warrant the application of article 11
of the Penal Code as amended by Act No. 2142, in favor of the accused. The trial
court did not consider them in this sense, and we find no sufficient reason for
doing so.

With regard to the accused’s age at the time of committing the
crime, that is, 19 years and 6 months, it is true that according to the Civil
Code, he was not yet fully capacitated to exercise his civil rights, being still
a minor. But it should be remembered that the degree of discernment necessary to
render a person accountable for hrs criminal acts, is not the same as that
required for the full exercise of his civil rights. And within the sphere of
criminal law, there are degrees of culpability correlative to the individual’s
age. It is true that, just as it is obvious that the reason for such degrees of
guilt by age is based on the graduation of discernment, just so is it difficult
for the lawmaker to fix the limits of such degrees; however, it is not incumbent
upon us to decide these legislative questions. Our function is to apply the law,
the established law as it is, and the positive criminal law demands full
responsibility from such as the defendant, who has already completed his
eighteenth year. We have no power to take into account as an extenuating
circumstance the fact that the accused was 19 years and 6 months old when the
crime was committed. Neither can we consider it under the eighth circumstance of
article 9 of the Penal Code, as equal, or similar in nature to the preceding
ones of said article. Rather than equality or analogy in nature, there is
graduation, and graduation prescribed by the law. To consider the age of the
accused as an extenuating circumstance would be equivalent to amending the age
limit fixed in the second circumstance of article 9 of said Code.

Counsel for the defense also invoices the mental state of the accused on
the occasion in question as an extenuating circumstance. In need of money, he
appealed in vain to his relatives and friends, and believed himself abandoned,
which, to use the language of counsel, “so sunk him into despair that, stifling
the dictate of his conscience, it drove him to commit this most serious crime.”
Such despair, however, supposing it was present in the degree represented by the
defense, and which does not appear from the evidence, cannot be considered such
a powerful stimulus as to naturally produce passion and obfuscation. It appears
that from the afternoon in which he conceived the sinister idea of killing and
robbing, he had been cherishing it and concealing it from Zacarias Lapuz, his
victim, whom he accompanied to the Far Eastern College at about 6 o’clock that
afternoon. He waited for Lapuz until the latter left that college, accompanied
him to the building where the crime was perpetrated, and thence to a restaurant
where they ate, both returning later to the building where, when Lapuz had gone
to sleep, the defendant wrote on a typewriter, seated himself in a swivel-chair
and fell asleep until about midnight; when he awoke, he thought of what he
intended to do, and later carried it out. Such composure, revealing a certain
degree of calmness, is incompatible with that desperation that so powerfully
perturbs the mind as to produce passion and obfuscation. Nevertheless, Associate
Justices Malcolm and Villa-Real are of opinion that such mental state may be
considered in favor of the accused, together with his youth and lack of moral
sense, as favorable circumstances to the accused, and that, therefore, the death
penalty should not be imposed upon him.

For this reason, the unanimity required by law for the
imposition of the death penalty being lacking, the judgment appealed from must
be, as it is hereby, modified, and the accused is sentenced to life
imprisonment, with the corresponding accessories of law provided by article 54
of the Penal Code, it being understood that, under the provisions contained in
the last paragraph of said article, even if the accused be pardoned of the
principal penalty, he shall suffer perpetual absolute disqualification and
subject to the surveillance of the authorities during his lifetime, unless these
accessory penalties shall have been expressly remitted in the pardon of the
principal penalty.

The judgment of the trial court is affirmed in other respects
with the costs against the accused. So ordered.

Avanceña, C. J., Street, Malcolm, Villamor, and Villa-Real,
JJ., concur.

DISSENTING

JOHNSON, J.:

I agree with the statement made by Mr. Justice Ostrand in his
dissenting opinion, together with the further observation that the circumstance
of arrebato y obcecacion should not have been considered as an attenuating
circumstance in favor of the appellant. The facts of record, in my opinion, do
not justify a consideration of those conditions as an attenuating circumstance.

I fully agree with the recommendation of the Attorney-General.

DISSENTING

OSTRAND, J.:

I think the sentence of the trial court should have been
affirmed and, therefore, dissent. Judging from his acts in the commission of the
crime, the defendant has reached the extreme limit of depravity and richly
deserves the death penalty. I can see no valid reason for extending special
mercy to an incurable degenerate who during his lifetime will never cease to be
a menace to society.