SECOND DIVISION

[G.R. No. 11439. October 28, 1916.]

THE UNITED STATES, plaintiff-appellee, vs. EDUARDO

ELICANAL, defendant-appellant.

Francisco Villanueva, Sr., and Francisco Villanueva, Jr., for appellant.

Attorney-General Avanceña for appellee.

SYLLABUS

1. MURDER; DEFENSE OF ACTING UNDER UNCONTROLLABLE FEAR.

—Before the defense in a criminal action that the defendant in committing
the crime acted under the impulse of an uncontrollable fear produced by a
threat of an equal or grater injury to himself can be held to be sustained, it
must appear that the threat which caused the fear was of an evil greater
than, or at least equal to, that which he was required to commit, and that it
promised an evil of such gravity and imminence that it might be said that
the ordinary man would have succumbed to it.
2. ID.; QUALIFYING CIRCUMSTANCES; PROOF Of.— Qualifying
circumstances must be as clearly proved as the criminal act itself.
3. ID.; ID.; ID.—Evidence of prosecution offered to show existence of
the qualifying circumstance of premeditation examined and held not
sufficient.
4. ID.; ID.; TREACHERY AT MOMENT OF KILLING.—It is the doctrine
of this court that where the person killed was in a helpless and defenseless
condition at the time the fatal blow was given, the homicide was committed
with alevosia notwithstanding that in the attack, which was continuous, and
which finally resulted in the death there was no alevasia.
5. CRIMINAL LAW; REVERSAL; APPLICATION OF ARTICLE 11, PENAL
CODE.—This court hesitates to reverse the action of a trial court in applying
or refusing to apply article 11 of the Penal Code, as amended, on the ground
that the education, instruction, enlightment, mental and moral condition, and
general qualities and characteristics of the defendant are peculiarly within its
cognizance.

DECISION

MORELAND, J : p

The appellant in this case is one of several persons arrested and

convicted of murder. He was sentenced to death and this case comes to this
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 court not only en consulta but by appeal also.
The accused was a member of the crew of the lorcha Cataluña cruising
in the waters of the Philippine Islands off Iloilo under the captaincy of Juan
Nomo. The first mate was Guillermo Guiloresa. The accused is about 22
years of age, without education or instruction and somewhat weak
physically. The lorcha left the mouth of the Iloilo river early in the morning of
the 11th of December, 1914.
She had scarcely cleared the river when Guillermo, the chief mate,
suddenly and without having mentioned the subject to the accused before,
said to him that the was going to kill the captain because he was very angry
with him, and asked him to assist him, the chief mate was a great joker; and
particularly as he was smiling at the time he made the statement; and
naturally paid no more attention to it. Neither he nor the other members of
the crew held any resentment against the captain and he had no idea at that
time that he would take part in any acts directed against him.
The following morning while the crew were engaged in their daily
occupation, Guillermo, finding the captain in his cabin, assaulted him,
attempting to seize and hold his hands and, at the same time, calling to the
crew to come forward and help him. The crew, drawn by the cries, hastened
to the spot where Guillermo was engaged in a hand to hand fight with the
captain At the request of Guillermo the crew, with the exception of the
accused, seized the captain and tied him with rope. After he had been
rendered helpless Guillermo struck him in the back of the neck with an iron
bar and then, delivering the weapon to the accused, ordered him to come
forward and assist in disposing of the captain. The accused thereupon seized
the bar and, while the captain was still struggling struck him a blow on the
head which caused his death.
The sole defense of the accused is that, in killing the captain, he was
acting under the impulse of an uncontrol label of fear of a great injury
induced by the threat of Guillermo, the chief mate, and that he was so
absolutely overwhelmed thereby that, in striking the blow which killed the
captain, he acted without volition of his own and was reduced to a mere
instrument in the hands of the chief mate.
The learned trial court refused to accept this defense holding that the
chief mate did not exercise such influence over the accused as amounted to
an uncontrollable fear or that deprived him of his violation. We are satisfied
from the evidence that the finding of the trial court was correct. It was held
by the supreme court of Spain in a decision of the 5th of November, 1880, "a
threat, in order to induce insuperable fear, must promise such grave results,
and such results must be so imminent, that the common run of men would
succumb. The crime threatened must be greater than, or at least equal to,
that which we are compelled to commit." In a decision of the same court of
April 14, 1871, it was said that "inducement must precede the act induced
and must be so influential in producing the criminal act that without it the
act would not have been performed." That is substantially the principle
which is at the bottom of subdivision 9 of article 8 of the Penal Code. That
article defines the different circumstances under which a person will be
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 exempt from criminal liability. Subdivision 9 thereof covers "any person who
acts under the compulsion of an irresistible force." The foundation of these
decision and the basis of the defense in this case is subdivision 10, which
exempts from liability "any person who acts under the impulse of an
uncontrollable fear of an equal or greater injury."
As we have already intimated, before a force can be considered to be
an irresistible one, it must produce such an effect upon then individual that,
in spite of all resistance, it reduces him to a mere instrument and, as such,
incapable of committing a crime. It must be such that, in spite of the
resistance of the person in whom it operates, it compels his members to act
and his mind to obey. He must act not only without will but against will. such
a force can never consist in anything which springs primarily from the man
himself; it must be a force which acts upon him from the outside and by
means of a third person. In order that one may take advantage of
subdivision 10 of article 8 and allege with success that he acted under the
impulse of an uncontrollable fear of an equal or greater injury, it must
appear that the threat which caused the uncontrollable fear related to a
crime of such gravity and so imminent that it might safely be said that the
ordinary run of men would have been governed by it. And them evil
threatened must be greater than, or at least equal to, that which he is
compelled to cause. The legislature by this enactment did not intend to say
th a t any fear would exempt one from performing his legal duty. It was
intended simply to exempt from criminal responsibility when the threat
promised an evil as grave, at the very least, as that which the one
threatened was asked to produced. Viada in his commentaries on this
subdivision of the article 8 of the Penal Code gives this illustration:
"Certain evil-minded persons seize me and threaten me with
death if I do not set fire to a neighbor's house; if I perform the act
under such threat, as grave as it is imminent, I would fall within the
exemption from criminal responsibility provided for in this number; but
if the same persons threaten to lay waste my forest if I do not kill my
father my act would not come within the exemption for the reason that
the evil with which I was threatened was much less than that of killing
my father."
The evidence fails to establish that the threat directed to the accused
by the chief mate, if any, was of such a character as to deprived him of all
violation and to make him a mere instrument without will of his own but one
moved exclusively by him who threatened. Nor does the threat appear to
have been such, or to have been made under such circumstances, that the
accused could reasonably have expected that he would suffer material injury
if he refused to comply. In other words, the fear was not insuperable. Indeed,
it is doubtful if any threat at all in the true sense was made; certainly none of
such serious nature as would justify an illegal act on the part of the accused.
This discussion dispose of the first error assigned by counsel for the
appellant. The second relates to the finding of the trial court that the crime
commited was murder instead of homicide; and counsel for appellant argue,
under this assignment, that the evidence does not sustain the finding of any
qualifying circumstances which would raise the crime from the grade of
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 homicide to that of murder. It is quite true, as counsel argue, that qualify in
circumstances must be as clearly proved and established as the crime itself;
and unless the evidence in this case shows beyond a reasonable doubt that
the crime was committed with one or more of the qualifying circumstances
required by the Penal Code to constitute murder, it must be denominated
homicide and not murder. (U. S. vs. Beecham, 15 Phil. Rep., 272; U. S. vs.
Gavarlan, 18 Phil. rep., 510; U. S. vs. Aslul, 21 Phil. Rep., 65; U. S. vs. Ibañez,
19 Phil. Rep., 463; U. S. vs. Macuti, 26 Phil. Rep., 170 U. S. vs. Amoroso, 5
Phil. Rep., 466; U. S. vs. Cagara, 5 Phil. Rep., 277.)
We agree with the counsel that the evidence does not establish the
existence of premeditation as a qualifying circumstance. In the case of
United States vs. Bañagale (24 Phil. Rep., 69), the court said with respect to
the facts which must be proved to establish premeditation:
"The record does not show whether Bañagale, upon extending
the invitation to Domingo Posada through Mariano Ilao, did so for the
purpose of killing the former, inasmuch as there is no proof that he had
resolved upon doing so, through deliberation, meditation, and
reflection, and performed acts revealing his criminal purpose, some
days or even hours prior to carrying out his criminal determination to
kill the unfortunate Posada. Article 10, circumstance 7, of the Penal
Code establishes the requisite that the criminal should have acted, in
the preparation of the crime, with deliberate premeditation or that he
should have prepared for its commission by outward acts such as
denoted on the agent a persistent criminal purpose and a meditated
resolution to consummate the deed." (U. S. vs. Nalua and Kadayuman,
23 Phil. Rep., 1; U. S. vs Alvarez, 3 Phil. rep., 24; U. S. vs. Lasada and
lasada, 21 Phil. Rep., 287; U. S. vs. Catigbac, 4 Phil. Rep., 259; U. S. vs.
Angeles, 6 Phil. Rep., 480; U. S. vs. Idica, 3 Phil. Rep., 313; U. S. vs.
Bunducad, 25 Phil. Rep., 530.)
In the case at bar it does not appear that there was ever any
consideration of the question of killing the captain of the launch by the
members of the crew, in which this accused took part. The matter, so far as
the evidence goes, was never mentioned except on the day before the crime
was committed and then in such a way as not to show any fixed purpose or
determination even on the part of the chief mate and much less on that of
the accused. The fact that he, with the rest of the crew, answered the call of
the chief mate while he was engaged in his endeavor to make way with the
captain is not sufficient by itself, or in connection with conversation of the
day before, to establish that sustained reflection and continued persistence
which are the special features of the qualifying circumstances of
premeditation. It does not appear that the accused had even thought of
taking any part in the death of the captain up to the very moment when the
iron bar with which he dealt the fatal blow was handed him by the chief
mate. Under such circumstances it is error to find the existence of
premeditation as a qualifying circumstances (U. S. vs. Beecham, 15 Phil.
Rep., 272.)
We cannot agree with the counsel for the appellant that the qualify in
circumstances of treachery, or alevosia, has not been proved. It appears
undisputes that, at the time the accused struck the deceased with the iron
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 bar and thereby caused his death, the latter was bound hand and foot and
was helpless and defenseless. While it is quite true that there was no
treachery at the beginning of the struggle terminating in the death of the
captain, that is, the initial attack was open and fair, the struggle being man
to man between the chief mate the captain, both unarmed, this does not
necessarily dispose of the question of treachery. The court has held
repeatedly that, even though the beginning of an attack resulting in the
death of the deceased is free from treachery of any sort, nevertheless it will
be found present if, at the time the fatal blow is struck, the deceased is
helpless and unable to defend himself. While the writer of this opinion holds
the view that, where there is not treachery in the attack which results in the
death of the deceased, there can be no treachery which will qualify the
crime as murder notwithstanding the fact that, at the time the fatal blow was
struck, the deceased was unarmed and defenseless, but, the court having
held so frequently the contrary, the writer accepts the doctrine so well
established. Counsel for the appellant, however, maintain that the doctrine
of the court in this regard was modified in the case of United States vs.
Balagtas and Jaime (19 Phil. Rep., 164). In that case the deceased was
walking with the two accused in single file in a narrow street, the deceased
being between the other two.
"When they were about ninety yards from any house and while in
an obscure place on the railroad track, at about eight o'clock at night,
the deceased was knocked down, and while down was struck two or
three blows in the face and rendered practically unconscious. While in
this unconscious condition, but still groaning, the two defendants, one
taking him by the head and the other by the feet, carried him across
the embankment, which was alongside the railroad track, and threw
him into a small pond of water face downward. The defendants then
returned to their house. The deceased remained in that position until
the following day when his body was found there by the policemen,
Hartpence and Solis, who conducted the body to the morgue where it
was later identified as that of Simeon Flores by Valentin Franco, a
friend and neighbor of the deceased."
The questioned arose in that case, under the facts just stated, whether
the act of throwing the deceased into the water while he was still alive but in
a perfectly helpless and defenseless condition constituted alevosia, and
made the crime murder instead of homicide. It will be noted the attack was
not treacherously made, that is begun with treachery. This the court held;
and, therefore, if that elements is to be found at all in the case it must be
found from the fact that the deceased was thrown into the water and
drowned while he was unconscious and in a helpless and defenseless
condition. Discussing that question the court said:
"But assuming that the deceased would have recovered from the
effects of the four wounds, if he had not been thrown into the water,
yet we still think that the proofs fail to show that there was present
treachery, as the knocking down of the deceased, striking him while on
the ground, and throwing him into the water were all done in so short a
time and one movement followed the other in such rapid succession,
constitute one and the same attack. In order that treachery may be
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 considered as a qualifying circumstance to raise the classification of
the crime, or as an aggravating circumstance to augment the penalty,
it must be shown that the treacherous acts were present at and
preceded the commencement of the attack which caused the injury
complained of. After the commencement of such an attack and before
its termination an accused person may have employed means or
method which were of a treacherous character, and yet such means or
method would not constitute the circumstances of alevosia. One
continuous attack, such as the one which resulted in the death of the
deceased Flores, cannot be broken up into two or more parts and made
to constitute separate, distinct, and independent attacks so that
treachery may be injected therein and considered as a qualifying or
aggravating circumstance."
While the writer of this opinion is inclined to agree with the contention
of counsel that the doctrine laid down in this case is quite different from, if
not directly opposed to, that already stated as, theretofore, the uniform
holding of this court, neverthless the majority of the court being of the
opinion that it was not the intention of the court in the case just cited to
reverse the previous decision of this court and to set down a new doctrine.
the writer accepts that view, particularly in the face of the almost unbroken
line of decisions on the subject now to be referred to. I the case of United
States vs. De Leon (1 Phil. Rep., 163), it appeared that the accused entered
the house of the deceased, drew their bolos and compelled him to follow
them. On arriving at a place called Bulutong the deceased was bound and in
that condition murdered. It was held that the fact that the accused was
bound at the time he was killed, although there was no treachery at the
beginning of the assault resulting in his death, the qualifying circumstance
was present. The court said:
"From the evidence there appears the qualifying circumstance of
treachery. To show this it is only necessary to mention the fact that the
deceased was bound."
The head note to that case says:
"The fact that the deceased was bound while killed constitutes
the qualificative circumstance of alevosia and raises the crime to the
degree of murder, . . ."
The same was held in the case of U. S. vs. Ricafor (1 Phil. Rep., 173); U.
S. vs. Santos (1 Phil. Rep., 222); U. S. vs. Hinto Santos (2 Phil. Rep., 453); U.
S. vs. Jamino (3 Phil. Rep., 102); U. S. vs Abaigar (2 Phil. Rep., 417); U. S. vs.
Gloria (3 Phil. Rep., 333); U. S. vs. Gabriel (4 Phil. Rep., 165); U. S. vs. Doon
(4 Phil. rep., 249); U. S. vs. Colombro (8 Phil. Reo., 391) ; U. S. vs. Tupas (9
Phil. Rep., 506); U. s. vs. Nalua and Kadayum (23 Phil. Rep., 1); U. S. vs.
Indanan (24 Phil. Rep., 203);U. S. vs. Reyes and De la Cruz (112 Phil. Rep.,
225).
For these reasons we are of the opinion that the crime was committed
with treachery and that it was properly denominated murder instead of
homicide.
The third error assigned charged that the court erred in refusing to
apply article 11 of the Penal Code in favor of the accused. We do not agree
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 with this contention. The personal qualities and characteristics of the
accused are matters particulaly cognizable by the trial court; and the
application of this section is peculiarly within the discretion of that court.
There being neither aggravating nor extenuating circumstances, the
judgment appealed from is reversed and the accused is hereby sentenced to
cadena perpetua. No costs in this instance. So ordered.
Toress, J., concurs with the exception of that part of the decision that
refers to the application of article 11 of the Penal Code.
Johnson, J., concurs in the result.

Separate Opinions
TRENT, J., with whom concurs CARSON, J., concurring:

I concur in the disposition of this case, but desire to observe that I find
nothing in the briefs of counsel to the effect that the doctrine laid down in
the case of the United States vs. Balagtas (19 Phil. Rep., 164) "is quite
different from, if not directly opposed to, that already stated as, theretofore,
the uniform holding of this court." In fact, counsel for the defendant cite
three cases of this court in support of the same proposition as that in
support of which United States vs. Balagtas was cited. The rule laid down in
this case is not in conflict with the other cases cited in the majority opinion. I
also desire to observe that if the court, in saying that "the personal qualities
and characteristics of the accused are matters particularly cognizable by the
trial court; and the application of this section is peculiarly within the
discretion of that court," intends to hold that this court has no power or
authority to apply article 11 of the Penal Code, as amended, as an
extenuating circumstances, if the trial court has declined to do so, or vice
versa, I cannot consent to such holding.

ARAULLO, J., concurring:

Although as a general rule, the trial judge has better opportunity than
this court to determine whether the provision of article 11 of the Penal Code,
as amended by Act No. 2142 of the Philippine Legislature, should be taken
into account for the purpose of increasing or diminishing the penalty that
should be imposed upon the defendant; yet, as one of the assignments of
error is based on the trial judge's failure to apply this article in one or the
other of the senses mentioned, it is my opinion that this court, after
reviewing all the evidence of record and taking into account the said legal
provisions, should decide whether the trial judge did or did not incur the
error attributed to him.

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