THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. VICENTE MATBAGON, DEFENDANT AND APPELLANT.

This is an appeal from a decision of the
Court of First Instance of Cebu, finding the defendant guilty of murder
and sentencing him to suffer reclusion perpetua, to indemnify the heirs of Marciano Retubado in the sum of P1,000, and to pay the costs.

Appellant’s attorney makes the following assignments of error:

“I, The lower court erred in giving credit to the perjured testimonies
of Emiliano Retubado and Rufino Surigao, son and brother-in-law
respectively of the deceased.

“II. The lower court erred in holding that it was the accused who waited at the colo tree to assault the deceased.

“III. The lower court erred in not acquitting the accused on the ground of complete legitimate self-defense.”

We find no merit in the errors assigned. It clearly appears from the
evidence that between eleven and twelve o’clock on the night of May 13,
1934, Marciano Retubado, the deceased, and Vicente Matbagon, the
defendant, had a fight at the cockpit in Ilihan, in the municipality of
Tabogon, Cebu Province. The fight resulted from a remark made by the
defendant respecting the tuba sold by the niece of Marciano Retubado.
Magno Surigao separated the defendant and the deceased, but they had
already bitten each other. Shortly afterwards Marciano Retubado called
his son and they started home. He carried a torch stuck in a bottle,
and was followed by his son, Emiliano Retubado, a schoolboy fifteen
years old. When they came opposite a colo tree, about fifty meters from
the cockpit, the defendant with a knife in his hand approached the
deceased and stabbed him in the breast. The deceased struck the
defendant on the head with the bottle that he was carrying. The bottle
was broken and the light went out. A struggle between the accused and
the deceased followed. The deceased received in all four wounds: one on
the chin, and another on the right side of the face; one, two inches
deep, on the left side of the chest, and another, one and one-half
inches deep, on the breast. The injured man died in a few minutes from
the wounds that he had received on the breast and on the left side of
the chest. The accused then ran away.

When the accused first stabbed the deceased, Emiliano Retubado
cried for help. Rufino Surigao was the first to arrive. The distance
between the place where the defendant was standing near the colo tree
and the place where he stabbed the deceased was about a braza.

The trial judge found the defendant guilty of murder because the
crime was committed with treachery; that the aggravating circumstance
of nocturnity was offset by the mitigating circumstance of passion and
obfuscation, since the defendant committed the crime because he had
been bitten a few minutes before by the deceased.

In our opinion the evidence does not justify the finding of the
trial judge as to the classification of the crime or the appreciation
of the modifying circumstances. In the first place there could not be,
under the circumstances of this case, both treachery and the
aggravating circumstance of nocturnity, because the nocturnity would be
included in the treachery as an inseparable incident, and should not be
considered separately (U. S. vs. Salgado, 11 Phil., 56,59).

With respect to the mitigating circumstance of passion and
obfuscation, we think it was improperly appreciated in this case. It
appears that at least half an hour intervened between the fight at the
cockpit and the stabbing of the deceased. The accused in waiting for
the deceased near the colo tree and in attacking him with a knife was
actuated by a desire for revenge because of the injury he had received
in the fight with the deceased. The attack was not the result of a
sudden impulse of natural and uncontrollable fury (People vs. Hernandez, 43 Phil., 104, 111).

We come now to the question of whether or not the crime was committed with alevosia
or treachery. As we have. already stated, when the deceased, carrying a
light, came opposite the colo tree where the defendant was waiting, the
defendant with a pocketknife in his hand approached the deceased, and
stabbed him. If the accused had been hiding behind the tree and had
stabbed the deceased without warning, the crime would undoubtedly have
been committed with treachery, but that is not what took place in this
case. The accused was waiting near the colo tree, and when a braza
away he was seen by the son of the deceased, and presumably by the
deceased. The accused with a knife in his hand walked up to the
deceased and Btabbed him in the breast. Under these circumstances we
think it is clear that there was no treachery or alevosia as
that term is used in the Revised Penal Code. “There is treachery when
the offender commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.” It is clear that
the accused did not commit the .crime in such a manner as to insure its
execution without risk to himself from the defense which the deceased
might have made.

The next question is whether or not nocturnity should be taken into account as an aggravating circumstance in this case.

No. 15 of article 10 of the Penal Code provided that it was an
aggravating circumstance that the crime be committed in the nighttime,
or in an uninhabited place, or by a band of more than three armed men (en cuadrilla); that this circumstance should be taken into consideration by the courts according to the nature and incidents of the crime.

No. 6 of article 14 of the Revised Penal Code provides that it is
an aggravating circumstance that the crime be committed in the
nighttime, or in an uninhabited place, or by a band, whenever such
circumstances may facilitate the commission of the offense; that
whenever more than three armed malefactors shall have acted together in
the commission of an offense it shall be deemed to have been committed
by a band.

There appears to be no material difference between the provision of
the Revised Penal Code and that of the Penal Code. In construing the
provision of the Penal Code relating to nocturnity, it was repeatedly
held by this court that nocturnity would be considered as an
aggravating circumstance only when it appeared that it was especially
sought by the offender or that he had taken advantage thereof in order
to facilitate the commission of the crime or for the purpose of
impunity.

It was said in the case of People vs. Trumata and Baligasa
(49 Phil., 192) /that nocturnity should not be estimated as an
aggravating circumstance, since the time for the commission of the
crime was not deliberately chosen by the accused; that if it appears
from the record that the accused took advantage of the darkness for the
more successful consummation of his plans, to prevent his being
recognized, and that the crime might be perpetrated unmolested, the
aggravating circumstance of nocturnity should be applied (U. S. vs. Billedo, 32 Phil., 574, 679).

In the present case none of the foregoing reasons exists for
appreciating nocturnity as an aggravating circumstance. The attack made
by the defendant upon the deceased was but a sequel to the fight at the
cockpit, which had taken place half an hour before. If the defendant
had killed the deceased in the fight at the cockpit, probably no one
would contend that nocturnity should be appreciated as an aggravating
circumstance in that case. It would be purely accidental, and so it was
in the present case.

The Supreme Court of Spain in its decision of May 23, 1885 held
that even in the case of robbery with homicide the fact that the crime
was committed at night is not to be appreciated as an aggravating
circumstance when it may be inferred that the darkness was not
intentionally sought or taken advantage of, but intervened casually:
“Considerando que tampoco es de estimar en perjuicio de los mencionados
reos Oliva y Ruiz Bringas la circunstancia de haberse ejecutado el
delito de noche, que es la 15 del citado artfculo 10, porque no surte
efecto alguno legal en sentido de agravar la pena imponible si los
culpables no la han elegido para realizar mejor sus malos propositos, o
como medio de conseguir la impunidad, lo cual no consta que hicieran
aquellos al matar y robar al Ldpez, toda vez que hallandose los tres
con frecuencia en una habitacion independiente de las demas que
ocupaban otros vecinos, no parece que les fuera necesaria una hora
precisa para su perpetracion, deduciendose sin gran esfuerzo que, si el
delito se cometid de noche, fue sin ser buscada exprofeso,
interviniendo esa circunstancia casualmente”.

In its decision of January 25, 1888, relating to a tumultuous
affray at night, the same court held that the fact that the offense was
committed at night should not be regarded as an aggravating
circumstance, because it was not chosen or sought for by the accused,
but was purely accidental.

On the other hand, in its decision^ of April 14, 1888, the Supreme
Court of Spain held that the aggravating circumstance of nocturnity
should be appreciated when the accused chose the nighttime or took
advantage of it to commit the crime more easily or to secure his
impunity.

Viada’s comment on this question is as follows: “En aquellos
delitos, cuya naturaleza no empece a la apreciacidn de la circunstancia
de la noche, habra que distinguir: cuando aparezca que el autor del
hecho busco la noche, o por lo menos se aprovecho de
ella para facilitar la ejecucidn del delito, o lograr, a ser posible,
su impunidad, debera apreciarse esta circunstancia de agravacion;
cuando aparezca Io contrario, esto es, que la noche no ha sido
aguardada ni aprovechada con intencion por el delincuente para ejecutar
en ella el delito, en este caso no debera tomarse en consideration la
circunstancia de nocturnidad, que f ue puramente accidental, para
agravar la responsabilidad del culpable.” (2 Viada, 262, 5th ed.)

In the case at bar the accused neither sought the nighttime nor
took advantage of it to commit the crime with greater facility or to
escape. If he had hidden behind the tree and attacked the deceased
without warning or availed himself of the darkness to prevent his being
recognized or to escape, then nocturnity would have been an aggravating
circumstance. If the accused in this case did not take advantage of the
nighttime to commit the crime or to escape, then the darkness did not
facilitate the commission of the offense. To take advantage of a fact
or circumstance in committing a crime clearly implies an intention to
do so, and one does not avail oneself of the darkness unless one
intended to do so.

For the foregoing reasons, the defendant is found guilty of the
crime of homicide, without the presence of any aggravating or
mitigating circumstance, and is condemned to suffer an indeterminate
sentence of not less than eight years of prision mayor and not more than fourteen years, eight months, and one day of reclusion temporal,
and to indemnify the heirs of the deceased, Marciano Retubado, in the
sum of P1,000, without subsidiary imprisonment in case of insolvency.

As thus modified, the decision appealed from is affirmed, with the costs against the appellant.

Avancena, C. J., Street, Abad Santos, Imperial, and Diaz, JJ., concur.

MALCOLM and GODDARD, JJ., dissenting:

We are of the opinion that the crime committed was murder qualified
as such because of the presence of treachery and that consequently the
judgment should be affirmed.

HULL, J., with whom concur VILLA-REAL, and BUTTE, JJ., dissenting:

The Revised Penal Code provides that nocturnity is an aggravating
circumstance when the circumstance “may facilitate the commission of
the offense.”

This language is clear and contemplates that each case will be
considered on its merits. There is no need of an elaborate argument to
expound the meaning of the section if the plain words therein used are
given their every-day current use.

The test fixed by the statute is an objective one. If I read the
majority opinion right, before nocturnity can be considered, it must
meet the objective test fixed by the statute and a subjective test
fixed by the majority opinion.

To hold that a sudden, murderous assault committed on a dark night
has no greater chance of success than if committed in broad day-light,
does violence to the experience of mankind.