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G.R. No. L-1120 December 8, 1902

DY CHUAN LENG, ET AL., petitioners,

vs.
BYRON S. AMBLER, judge of the Court of First Instance of Manila, respondent.

Joaquin Rodriguez Serra, for petitioner.
Byron S. Ambler, respondent.

WILLARD, J.:

An action was regularly brought in the Court of First Instance by Ang Ban ka against Dy Chuan Leng and Lee Gu.

The object of the action was to dissolve a partnership alleged by the plaintiff to exist between the plaintiff and defendants.

There was a prayer in the complaint for a preliminary injunction and the appointment of a receiver. A preliminary injunction was granted ex parte and a motion to dissolve it denied.

The defendants demurred to the complaint. This demurrer is still pending decision.

The court below has notified the defendants that he intends to appoint a receiver.

The said defendants have now filed in this court a complaint under article 516, Code of Civil Procedure, asking that the judge of Part 3, in which the said action is pending, be prohibited from continuing the preliminary injunction, and from appointing a receiver. The petitioners ask also for an injunction in accordance with article 518.

We can not grant an injunction under this section unless there is a compliance with articles 164 and 166.

It must appear from the complaint that the plaintiff is entitled to recover in the action. If the complaint states no cause of action no preliminary injunction can be issued. The complaint filed in this court is defective in this respect. It shows upon its face that the petitioners are not entitled to an order of prohibition against the court below. That court had jurisdiction of the action to dissolve the partnership. In that action it had the power to grant a preliminary injunction (article 164), and to appoint a receiver (article 174). Having those powers, if in the exercise of them any errors were committed, they could be corrected only on appeal from the final judgment. The facts as alleged, that the complaint was ambiguous; that the judge believed that the plaintiff below was a partner when the defendants denied it; that he fixed the bond at $1,000 instead of $30,000, as requested by the defendants; that no mention of the bond was made in the writ of injunction; that he refused to hear the defendants’ witnesses; that he refused to dissolve the injunction upon a bond which the defendants offered to give, all of these do not show that the court was acting outside of its jurisdiction. They simply show, if they are true, that the court has committed certain errors in exercising its jurisdiction, errors which must be corrected by appeal. (Re Prautch, February 14, 1902.)

In the case of Yangco vs. Rohde, October 13, 1902, we denied a writ of prohibition on the ground that in no case, where the fact of marriage was denied did the Court of First Instance have any jurisdiction to grant temporary alimony. That case differs radically from this one.

It is of course apparent that in passing upon this preliminary motion, we have virtually decided the case upon the present complaint. We see, however, no escape from that result.

The motion for a preliminary injunction is denied.

Arellano, C.J., Torres, Cooper, Smith, Mapa, and Ladd, JJ., concur.

The Lawphil Project – Arellano Law Foundation

G.R. No. L-1078 December 15, 1902

JOHN W. HOEY, petitioner,

vs.
R.S. BALDWIN, respondent.

Frederick Garfield Waite, for petitioner.
W.L. Goldsborough, for respondent.

WILLARD, J.:

The petition in this case alleges that the plaintiff is and has been since July 1, 1902, assistant chief of the Fire Department of Manila with a salary of $150 per month, United States currency; that the defendant during that time was and now is the disbursing officer of said city; that the Commission on July 14, 1902, appropriated a sufficient sum of money to pay the salary of the plaintiff during the year commencing with July 1, 1902; that such sum of money had been duly placed in the possession of the defendant as disbursing officer; that the plaintiff had duly performed his duties as such assistant chief during the months of July, August, and September, 1902, as appeared by certificates duly filed with the defendant; that he had tendered to the defendant proper receipts and that the defendant had refused to pay him any part of his salary for said three months.

The prayer of the petition was that a writ of mandamus issue to compel the defendant to pay this salary.

A summons was issued and served. The defendant appeared and demurred on the grounds that the court had no jurisdiction of the defendant, nor of the subject-matter of the action; that the petition did not state facts sufficient to constitute a cause of action, and that the plaintiff had another remedy, which was plain, speedy, and adequate.

The case was heard upon this demurrer.

1. It is suggested by the plaintiff that the demurrer is not proper in a proceeding of this character.

Original jurisdiction in mandamus proceedings is given to this court by article 515 of the Code of Civil Procedure. By that same article it is required to follow the procedure prescribed for Courts of First Instance in like cases. The only articles which declare what that procedure, prior to the judgment, shall be are articles 222, 229, and 230. Article 222 is as follows:

Mandate. — When the complaint in an action in a Court of First Instance alleges that any inferior tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes the plaintiff from the use and enjoyment of a right of office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person, and the court, on trial, finds the allegations of the complaint to be true, it may, if there is no other plain, speedy, and adequate remedy in the ordinary courts of law, render a judgment granting a peremptory order against the defendant, commanding him, immediately after the receipt of such order, or at some other specified time, to do that act required to be done to protect the rights of the plaintiff.

The part of the article which relates to the procedure may be reduced to this: “When the complaint in an action in a Court of First Instance alleges … and the court on trial finds the allegations of the complaint to be true, it may … render a judgment granting a peremptory order.”

From this language it must be inferred that proceedings in mandamus constitute a civil action in which there is a complaint.

In view of the fact that this is a civil action; that article 222 says nothing more about the procedure than that there is to be a trial and a judgment and thus fails to point out any different procedure, it necessarily follows that the procedure leading up to such trial and judgment must be the procedure marked out by the Code for ordinary civil actions. We have accordingly adopted the practice of requiring a summons to be issued upon the filing of the complaint, in accordance with article 390 and the case to be proceeded with in the ordinary way like any other civil action.

The fact that this practice is radically different from that known in the United States is of no importance. The statutes there speak of writs of mandamus, of alternative and peremptory writs, of petitions and affidavits, of orders to show cause. None of these words and phrases occur in our Code. The Commission had these statutes before them when the Code was written. If they had intended to adopt that practice it would have been very easy to have said so.

The objections that our construction of this remedial process deprives it of its summary character is without weight in view of article 230, which authorizes the court to expedite the proceedings. Article 299 also secures the right to a preliminary injunction upon the filing of the complaint.

The defendant had a right to demur.

2. In order to determine the sufficiency of the complaint it is necessary to examine the statutory provisions relating to the payment of Government employees.

The money to pay this particular salary for this particular period was appropriated by Act No. 430.

Articles 18 and 19 of Act 183, the Charter of the city of Manila, are as follows:

ART. 18. Insular Auditor to audit accounts of city. — The Auditor for the Philippine Archipelago shall receive and audit all accounts of the city of Manila, in accordance with the provisions of Act No. 90.

ART. 19. Insular Treasurer to receive and keep moneys of city. — The Treasurer of the Philippine Archipelago shall receive and safely keep all moneys arising from the revenues of the city of Manila, in accordance with the provisions of Act No. 90, and shall expend the same upon warrants drawn in accordance with the provisions of said act. Requisitions for such warrants, in favor of the disbursing officer of the Board, shall be made by the head of the department of the city government to which the business relates, subject to the approval of the Civil Governor.

Article 25 of said charter provides as follows:

Powers and duties of heads of departments. — Each head of department of the city government shall be in control of such department, under the direction and supervision of the Board, and shall possess such powers as may be prescribed herein or by ordinance. He shall make requisition in duplicate for all funds required for the use of his department during the ensuing month. All warrants drawn in accordance with such requisitions shall be in favor of the disbursing officer of the Board, and shall be disbursed pursuant to appropriations. The correctness of all pay rolls and vouchers covering the payment of money shall be certified to by each head of department before payment, except as herein otherwise expressly provided.

These provisions indicate that it was the duty of the Chief of the Department of Fires and Building Inspection to make requisition on the Treasurer of the Archipelago for the money appropriated to pay the salaries of his employees.

Act No. 90, rule 5, as amended, provides: “No warrants shall be drawn for the advance of moneys except upon requisition therefor made by the proper officer approved by the Civil Governor and allowed by the Auditor in conformity to appropriations made.”

Rules 25 and 26 of said Act 90 are as follows:

RULE 25. Requisitions for advances from funds in the hands of the Treasurer for paying necessary and proper expenses chargeable to the revenues of the Islands shall be made monthly by the respective officers or agents authorized to disburse the same, in such form as may be prescribed, pursuant to appropriations made, and shall be accompanied by itemized estimates of the amounts required for disbursement during the month, and no accountable warrant shall be drawn for an amount exceeding the requirements for one month.

RULE 26. Each requisition shall particularly state the items of appropriation under which the money is to be disbursed, and shall be forwarded to the Auditor, who shall cause to be indorsed thereon the balance due to or from the officer or agent making the requisition, as shown by the books of the Auditor’s office, and the amount of credits shown by any unsettled accounts of such officer or agent remaining in the Auditor’s office. Thereupon such requisition shall be transmitted to the Military Governor for his approval, and when his approval shall be indorsed thereon the requisition shall be returned to the Auditor for allowance, and when allowed by him and so indorsed upon the requisition, over his official signature, the proper warrant shall be issued for the amount allowed, to which the requisition shall be attached.

That the approval by the Governor and the allowance by the Auditor of a requisition are necessary before an accountable warrant can be paid is also stated in rules 55 and 68.

It is claimed by the defendant that this approval of the Auditor should have been alleged in the complaint. It is alleged that the money to pay this salary “was as provided by law placed under the control of said defendant as such disbursing officer.” It could not in conformity with the law have been placed under his control unless all the steps marked out by the statute had been taken, including the approval of the Auditor. We do not think that it was necessary to allege in the complaint all these proceedings. It was sufficient to state the ultimate fact, namely, that the money was in the hands of the defendant as provided by law. (States vs. Ames, 31 Minn., 440, 444.)

3. It is also claimed by the defendant that rule 72 of said Act No. 90 debars the plaintiff from this relief. That rule provides that “any person aggrieved by the action or decision of the Auditor in the settlement of his account or claim” may appeal. Under the statutory provisions before cited it is difficult to see how the plaintiff could have any account with the Auditor or how that official could settle it. Disbursing officers after paying employees must settle with the Auditor. If aggrieved by his decision they are the ones to appeal. But until the money is paid there is no account to settle. Our attention has not been called to any law which would allow this plaintiff to present his claim directly to the Auditor for his decision thereon. Moreover, the Auditor has not yet made any decision against the plaintiff. That official’s approval of the estimate was favorable to him.

4. It is further claimed by the defendant that the plaintiff is not entitled to relief because he can maintain an action against the city to recover his salary, or one upon the body of the defendant, and therefore has another plain, speedy, and adequate remedy.

Article 222 does not allow the court to grant a peremptory order if there is such a remedy. Its existence goes to the founder of the plaintiff’s right to the relief and we can not agree with the defendant’s claim that this objection can not be taken by the demurrer. We think that it falls under No. 5, article 91, of the Code of Civil Procedure.

Assuming that such an action could be maintained by the plaintiff we find no provision in the Charter of Manila relating to the payment of judgments which may be obtained against the city. The city has no control over its revenue. All of it, as fast as it is received, is paid to the Insular Treasurer. Before the city can use any of its money for the purpose of paying judgments against it or for any other purpose the Commission must pass a law specifically appropriating the money. After the money has been appropriated it can not be withdrawn without the consent of the Civil Governor and the Insular Auditor.

Should the plaintiff recover a judgment against the city he would have to procure the enactment by the Commission of a law appropriating money to pay it. He then would have to get the head of the Department of Fires and Building Inspection to make a requisition for this sum, the Civil Governor to approve it, the Insular Auditor to allow it, and the disbursing officer of the city to pay it. He might be met with a refusal at each of these steps, and after they had all been taken he might find himself where he is today by the refusal of the last-named officer to pay him the money. It is not necessary to consider authorities from the United States. It is enough to say that such a remedy is certainly not a speedy one and there is difficulty in calling it a plain one.

The fact that the defendant by article 1 of Act 145 is required to give a bond to the Insular Government for the faithful performance of his duties is not a bar to this action. (Fremont vs. Grippin, 10 Cal., 212.)

5. Article 6 of the Charter is as follows:

Duties of disbursing officer of Board. — The Board shall appoint a disbursing officer, who shall be charged with the duty of disbursing all moneys drawn from the Insular Treasury pursuant to appropriations made by the Commission. He shall discharge his duties in accordance with the provisions of Act No. 145, prescribing the duties of disbursing clerks, and shall render his accounts in such manner as the Auditor for the Philippine Archipelago may prescribe.

Article 1 of Act No. 145 provides as follows:

Each head of a civil department, bureau, or office is hereby authorized to appoint, in accordance with law, a disbursing clerk, whose duties shall be to disburse, in accordance with law, and upon approval of the head of the department, bureau, or office to which his duties relate, all moneys appropriated for said department, bureau, or office.

The complaint alleges that proper certificates showing that he was entitled to receive his salary had been filed with the defendant.

The only duty which the defendant had to perform in this case was to pay the money to the plaintiff. This was a duty purely ministerial, “which the law specially enjoins as a duty resulting from” his office.

The Minnesota and California statutes contain the same words as article 222, though they are differently arranged. The decisions in those States allow this remedy in cases like the present.

The petition states a cause of action.

The demurrer is overruled. The defendant may answer within ten days after notice of this decision.

Arellano, C.J., Cooper, Smith, Mapa, and Ladd, JJ., concur.
Torres, J., did not sit in this case.

The Lawphil Project – Arellano Law Foundation

G.R. No. L-1035 December 4, 1902

MARIA DEL CARMEN VIUDA DE BUSTILLOS, plaintiff-appellee,

vs.
ROQUE GARBANZOS, defendant-appellant.

P.Q. Rothrock, for appellant.
Domingo Franco, for appellee.

WILLARD, J.:

This proceeding was commenced on February 12, 1900. It was carried on under the law then in force until June 15, 1900, on which date the defendant filed a formal objection to the complaint. After that date nothing was done until May 27, 1902, when the plaintiff filed a petition in which he alleged that the proceeding was being carried on under the Code of Civil Procedure, and in which he asked that a demand for payment be made upon the defendant and that if he did not pay in the act, his property be seized. The judge of the Special Court of Negros cited the parties to a trial and after receiving documentary and oral evidence, none of which appears in the record, he made a decision which recited the proceedings had in the case. States that the defendant has not proved the illegality of the claim of the plaintiff and orders judgment in favor of the latter. From this judgment said court allowed an appeal in both effects and directed the original records to be sent here.

If this case was tried before the special court in accordance with the old procedure the evidence should have been returned to this court. If tried according to the new procedure the decision should have conformed to article 133, and the judge should have required the settlement of a bill of exceptions and should not have sent the original record here. Viewed as a decision under the present Code it is entirely insufficient to support the judgment, and if the new Code is to be applied it should be reversed for that reason.

There are, however, more indications that the court was pursuing the old procedure than that he was pursuing the new.

In accordance with that procedure the evidence should have been preserved and returned to this court. It is impossible for us to pass upon the merits of the case without it.

The case of Gonzaga vs. Cañete, April 1, 1902, appealed from the same court, came in here in the same condition as this case. It was only by virtue of an agreement between the parties in that case that we passed upon certain questions of law presented by the record.

The judgment is reversed and the case remanded to the Court of First Instance for Occidental Negros for a new trial.

In view of the fact that the defendant removed the case here knowing as he must have known how incomplete the record was, and of the further fact that this defect was not suggested by him until the argument of the case, the costs of the appeal are charged against him.

Arellano, C.J., Torres, Cooper, Smith, Mapa, and Ladd, JJ., concur.

The Lawphil Project – Arellano Law Foundation

G.R. No. L-1026 December 15, 1902

THE UNITED STATES, complainant-appellee,

vs.
VICTORINO CORREA, ET AL., defendants-appellants.

Felix Ferrer, for appellants.
Office of the Solicitor-General Araneta, for appellee.

COOPER, J.:

This is an application for amnesty on behalf of Victorino Correa, Alejo Correa, Martin Langursay, Leandro Monte, and Romualdo Monte.

These men were tried before the Court of First Instance Ilocos Norte charged with the murder of Pablo Yungat. The first four were found guilty as principals, and were sentenced to life imprisonment, and Romualdo Monte was found guilty as an accomplice and sentenced to twelve years and one day. The accused appealed to the Supreme Court, and counsel for defense has presented a motion for the application to them of the amnesty proclamation of July 4 last.

The facts in the case as established by the evidence are as follows:

Victorino Correa, who seems to have been the leader of the gang, sent word to the deceased that they were going to barbecue a pig, and invited him to be present at this fiesta. The deceased, accompanied by the person who had given him the message, arrived at the house of Correa, and upon his arrival there he was seized by Leandro Monte and Martin Langursay, and at the same time was struck on the head by a stick wielded by Alejo Correa. Yungat was then tied up elbow to elbow and ankle to ankle. After he was tied he implored Alejo Correa to pardon him, whereupon the latter asked the deceased where he had put the ring which he had taken, to which the deceased replied that he knew nothing of it. Upon this Leandro Monte seized a piece of cane which he trust between the feet of Yungat, assisted by Martin Langursay, and then having fastened the body of Yungat to the same pole they carried him away and buried him.

It appears that the deceased, who was in a dying condition while he was being tied, expired as he was being carried away by the accused. His body was buried in the woods some distance from the scene of the murder.

The evidence for the prosecution rests upon the testimony of three witnesses, two of whom were present at the killing, and one of whom was an eyewitness to the burial. Their testimony is corroborated by that of the person who states that he conveyed the message from Victorino Correa to the deceased, but he did not personally see the killing, he having been hastened out of the way by one of the accused and kept out of sight until after the body of the deceased was disposed of. He testifies to having seen blood around the place, and also testifies to seeing the accused return from the woods alone.

The defense rested entirely on an alibi. The accused all swore that they knew nothing of the killing until some time after the date specified as the time of its commission, and most of them testified that they did not know and had never heard of the deceased. Several witnesses were called in support of the defense and gave the usual alibi testimony.

During the entire trial of the case nothing was brought out to indicate in the slightest degree any motive for this offense other than that indicated by the demand made upon the deceased for the return of the ring above referred to. The motion for amnesty made on behalf of the defense rests upon the theory that these accused were revolutionary soldiers, and that the deceased was killed by reason of political differences existing between him and his slayers. The only thing tending in any way to show that the accused were in the revolutionary army is an anonymous letter which was picked up by the widow of the deceased some time after his death, in which she was told that it was useless for her to continue to look for her husband as he had been killed by “Victoriano Correa, Alejo Correa, Martin Langursay, Tilo Correa, Anastasio Muños, Alejandro Monte, and Apolinario Castro, who are insurgents engaged in recruiting companies, and any person who refuses to follow them is killed; therefore, as soon as you receive this letter denounce the killing to the authorities, so that their intention to kill people may be frustrated; if they are tortured they will tell the truth; I do not sign my name because my life will be in peril.”

Upon the receipt of this information complaint was filed by the widow and the letter was not introduced, nor was any evidence whatsoever adduced tending to show that the killing was in any way connected with the revolution.

The application for amnesty must be overruled, which is accordingly done.

Arellano, C.J., Torres, Smith, Mapa, Willard, and Ladd, JJ., concur.

The Lawphil Project – Arellano Law Foundation

G.R. No. L-1005 December 3, 1902

JOSE V.L. GONZAGA, petitioner,

vs.
W.F. NORRIS, judge of the Court of First Instance of Negros, respondent.

R.N. Orozco, for petitioner.
P.Q. Rothrock, for respondent.

WILLARD, J.:

This case is before us on a return made by the judge below to a writ of mandamus issued under the provisions of article 499 of the Code of Civil Procedure, Gonzaga vs. Norris, August 26, 1902.

No motion for a new trial having been made this court can not weigh the evidence nor retry the questions of fact. Consequently the testimony of the witnesses has no place in this bill of exceptions except so far as it is necessary to explain the exceptions that were taken and their relevancy. So far as we can ascertain, no exception was taken which requires for its elucidation any one of the fifteen documents presented by the plaintiff, except document fourteen. They were all received in evidence and there is not exception relating to any of them. The first bill of exceptions proposed by the appellant contains in detail the evidence of many witnesses who testified without objection of exception on the part of the plaintiff. This evidence was properly excluded form the bill of exceptions. The proposed bill contains also the plaintiff’s opening statement as to what the facts of the case were. This was properly excluded. Eight pages are also devoted to a legal argument against the judgment. This has no place in any bill of exceptions.

All of the exceptions contained in the plaintiff’s proposed bill are in the bill signed by the judge. It is of no consequence who prepared the bill. If it is a correct and full statement of the exceptions, the fact that it was prepared by the adverse party or by the court is not important. It appears, however, that the bill prepared by the plaintiff and the amendments prepared by the defendant were discussed and considered by the court and both counsel at a session held for the purpose of settling the bill.

There was no error committed by the judge as to the points mentioned. But in other respects the bill signed by him is incomplete. Article 143 requires the bill of exceptions to state enough of the evidence to show the relevancy of the exceptions and the bearing which the answer excepted to has on the case.

In most of the exceptions, from No. 3 to No. 18, inclusive, in the bill as allowed this is not done. The judge limited himself to stating the question and his reasons for overruling the objection. Supposing that those reasons were insufficient, there remains only the question with no answer and nothing to show the connection of the question with the other testimony in the case or the issues therein. Exception No. 14 is an example of how the exceptions are stated. It is as follows:

No. 14. The defendant on cross-examination asked a witness for the plaintiff the following question: “Do you know if your brother sowed sugar-cane in the Rosario estate the year nineteen hundred?” The plaintiff objected; the court overruled the objection on the ground that the question was pertinent; the plaintiff took exception.

The bill of exceptions signed by the judge should be amplified by adding to the several exceptions the evidence contained in the indicated pages of the first bill of exceptions presented by the plaintiff. If such evidence is not truly stated in said bill, the court will make the necessary corrections so as to make it conform to the truth.

The additions are as follows:

To exception No. 3, so much of the evidence of Feliciano Alintara as is contained on page 17 of the first bill of exceptions tendered by the plaintiff.

To exception No. 14, all of the testimony of Pedro Saison on page 33 of said bill.

To exception Nos. 15 and 18, all of the evidence of Inocente Indemne on pages 33 and 34 of said bill.

To exception No. 16, all of the evidence of Flaviano Alintara on pages 34, 35, and 36 of said bill.

To exception No. 17, all the testimony of Benedicto Tanigue on page 36 and on Page 37 of same bill to the answer to the question objected to.

To exceptions Nos. 8, 9, and 10, all the testimony of Aquilino Saosas on pages 38 and 39 of said bill.

To exceptions Nos. 12 and 13, document No. 14, and the testimony of Feliciano Alintara on pages 39, 40, and 41 of said bill.

To exception No. 7, the testimony of Inocente Idemne on page 11 of the so-called extract of the said bill.

The exceptions relating to the jurisdiction of the court and the challenge of the judge and those numbered 19, 20, and 21 are sufficiently stated. We do not find in the plaintiff’s bill exceptions Nos. 4, 5, 6, and 11.

The respondent in this proceeding is directed to correct the bill of exceptions as hereinbefore indicated and sign and certify the same.

Arellano, C.J., Torres, Cooper, Smith, Mapa, and Ladd, JJ., concur.

The Lawphil Project – Arellano Law Foundation

G.R. No. L-1003 December 23, 1902

PIO LABAYEN, plaintiff-appellant,

vs.
ROSENDO HERNAEZ, defendant-appellee.

Ledesma and Sumulong, for appellant.
Ramon Avanceña, for appellee.

ARELLANO, C.J.:

From the record of this case it appears (1) That the complaint was filed in accordance with the former law of Civil Procedure, and that by it a declarative action of greater import was brought, and that the answer setting up a counterclaim was also filed in accordance with the said law. (2) From this stage on the trial was conducted in accordance with the provisions of the new Code of Civil Procedure, and was set for hearing on the 16th of April, 1902. (3) On the same date, the parties having suggested the appointment of experts for the examination of the accounts, the judge made an order for their appointment. The parties, however, subsequently agreed to substitute one of the experts by another, who was accepted by the court by an order of the 7th of June following. (4) On the 14th of the same month the parties presented a petition in which they proposed another person in substitution of the expert last named, who had resigned, and in this petition they expressed the duties of these two persons in the following terms : “The said referees should report solely upon the facts appearing from the record, in accordance with the provisions of article 134 of the Code Civil Procedure, and the documents presented to the court.” The court immediately thereafter entered the following order: “Upon the filing of the preceding stipulation of the parties, and in accordance therewith, the court will issue a commission in favor of the gentlemen selected as referees in this case.” (5) The clerk entered the following note: “On this date, and in compliance with the preceding order, I have issued, under the seal of this court, the proper commission to the referees in favor of Messrs. William F. Nicholls and Felix Atienza, in accordance with the provisions of article 136 of the Code of Civil Procedure.” (6) On the same date, the 14th of June, the record shows that the papers were delivered to the referees appointed, and on the 30th of June the papers were returned by the latter, together with a document called an account-current, prepared by the referees, and based, according to their statements, solely upon the documents and accounts-current, appearing in the record. With this they presented their report. (7) The record discloses that the next step taken was to inform the judge of the filing of this statement and report, and that the judge took time to examine the account and report of the referees. Without further proceedings than those above related the court below ordered judgment against the plaintiff and in favor of the defendant in the sum of 13,498 pesos and 80 cents, concurring entirely in the report of the referees.

The termination of this trial has been in a high degree irregular. The judge had no authority, either by the consent of the parties or the provisions of the law, to enter judgment as he did. The will of the parties was that the experts called referees were to report solely upon the facts appearing from the record and papers presented to the judge, and in accordance with the provisions of article 134 of the Code of Civil Procedure. Nevertheless, in their report they passed upon three questions of law, upon which they expressed their opinion, the fact being that the parties, in accordance with the provisions of article 134 of the Code, sought nothing more than and agreement as to the facts, and if these referees understood that they were to act a such in accordance with the indication of the acting clerk in his note with respect to article 136 of the Code of Civil Procedure, in this case they should have complied with the provisions of the said article and those of the following articles, Nos. 138, 139, and 140. None of this, with the exception of the issuance of the commissions and the collections of fees, has been done. The result was a trial by referees, in violation of the provisions of law, this being a substantial defect which vitiates the judgment itself.

We therefore declare the judgment entered below to be null and void, without special condemnation as to costs. It is directed that the record be returned to the court below. So ordered.

Torres, Cooper, Smith, Willard, Ladd, and Mapa, JJ., concur.

The Lawphil Project – Arellano Law Foundation

G.R. No. L-991 December 19, 1902

THE UNITED STATES, complainant-appellee,

vs.
FRANCISCO NAVA, defendant-appellant.

Francisco Ortigas, for appellant.
Office of the Solicitor-General Araneta, for appellee.

COOPER, J.:

The defendant, Francisco Nava, is charged with causing the death of one Luciano de la Cruz through reckless negligence in the following manner:

On the 14th day of October, 1901, the defendant was the patron of and having full authority over a certain steam launch known as the Mariposa in the harbor of the city of Manila, and having such authority he took in tow a certain lorcha known as the Legaspi. That while the Mariposa was towing the Legaspi by means of a towline the defendant willfully cast loose the towline from the launch Mariposa so as to cause the Legaspi to go adrift, and the Legaspi being without motive power was unable to resist the action of the wind, current, and the sea in the said harbor. That by reason of so being cast adrift the Legaspi was thrown by the action of the wind and waves upon the breakwater, wrecked, and broken to pieces, and that one Luciano de la Cruz, who was then on board of the lorcha Legaspi, was drowned.

The defendant was found guilty under the provisions of article 568 of the Penal Code and sentenced to the penalty of presidio correccional for the period of one year and one day and to the payment of the costs of the proceedings, from which judgment he has appealed to this court.

“Criminal negligence” according to Viada, “consists in the failure to take such precautions or advance measures in the performance of an act as the most common prudence would suggest, whereby injury is caused to persons or to property.”

Does the evidence in the case show such inexcusable negligence and want of care as to amount to reckless negligence?

The evidence shows that about 10 o’clock in the morning of the 14th of October, 1901, the typhoon signal was raised at the Captain of the Port’s Office; that the launches set out to bring into the river the lorchas, cascoes, and other small craft which were used for loading and unloading the vessels in the bay.

That about 3:30 in the afternoon the steam launch Mariposa, of which the defendant was the patron, was solicited by the lorcha Legaspi, which was then lying alongside the steamer Perla, to be towed in the direction of the Pasig river; that the Mariposa took in tow the Legaspi and also three other lorchas; that while the Mariposa is a first-class launch it was unable on account of the weather growing worse to advance with the four lorchas, and she ordered the Legaspi to anchor and await her return.

At about 5:30 in the evidence after the fifth typhoon signal was hoisted at the Captain of the Port’s Office, the Mariposa returned to the Legaspi and took her in tow, and was going to take a tow of the lorchas and cascoes that were lying alongside of the ship Esmeralda which was near by, but making a bad mark of it she was delayed for nearly half an hour, when, if properly done, she would have picked them up in five to ten minutes.

The weather in the meanwhile continued to grow worse, the wind increasing in velocity and the waves running high. Under the circumstances the Mariposa desisted in her purpose of taking the other two lorchas and started out for the river with the Legaspi in tow.

It is claimed by the prosecution that it was within the power of the Mariposa to have steamed around the end of the breakwater into the inside of the harbor instead of going up the River Pasig, which was farther than the outer end of the breakwater.

The Esmeralda was at anchor about 50 yards from the breakwater. When about halfway between the Esmeralda and the breakwater the Mariposa with the Legaspi in tow found herself by the action of the wind and water sagging down towards the breakwater. All the steam was put on that the boilers were able to withstand without gaining any distance, and as stated by the defendant, a trepidation being felt as of touching upon rock, the defendant ordered the Legaspi to anchor, and he cast the towline from the Mariposa, sending the Legaspi adrift. The Legaspi, being without motive power, was left to the mercy of the wind and waves and was soon dashed upon the breakwater. All those on the Legaspi succeeded in saving themselves except Luciano de la Cruz. The Mariposa after casting off the Legaspi steamed safely into harbor without giving further attention to the Legaspi or making any effort whatever to save those who had been thus left to their fate.

It can not be said, we think, that the acts of the patron of the Mariposa were not strictly adjusted to the necessities of the case.

The weather was continually growing worse, and the Mariposa finding herself unable to make headway against the wind and waves, had the alternative of casting the Legaspi adrift or herself being wrecked on the breakwater. A witness testifies that it was impossible at the time the Mariposa cast the Legaspi adrift to have succeeded in going around the breakwater to the other side. The patron of the Mariposa, perhaps lacking in skill in attempting to reach the lorchas alongside the Esmeralda, lost valuable time, and failing to foresee on leaving the Esmeralda the difficulties which he would encounter in attempting to go up the river, found himself drifting upon the breakwater, and was in such close proximity to the breakwater that the Mariposa could neither go up the river nor turn and make her way around the breakwater and go in the inside, and under these circumstances sent the Legaspi adrift.

The wrecking of the Legaspi seems to have been inevitable before the time of the casting off of its towline.

It can not be said with certainty that the casting off of the towline placed the Legaspi in a worse position than she would have been had the Mariposa held her tow and continued her course toward the river. The circumstances were such that it was impossible to calculate the chances with any degree of certainty. A different course might have been followed, but it is not certain that any other would not have been equally disastrous to the Legaspi.

We not only fail to discover that the defendant was guilty of reckless negligence, but we are in doubt as to whether he could have pursued any other course under the circumstances.

The negligence charged against the defendant is in sending the Legaspi adrift. There is no evidence showing that by proper effort on the part of the defendant the life of de la Cruz could have been saved, and therefore the act of his steaming off in safety can not be considered as an act of negligence. Whether the defendant, to whom was committed the sacred charge of the lives of his fellow beings, acted through the noble impulse and with the courageous conduct which so often characterizes those engaged in his occupation is not a matter for us to determine.

For the reasons stated we must reverse the judgment of the lower court as being unsupported by the evidence and acquit the defendant of the charge, which is accordingly done, and the costs of proceedings are adjudged de oficio. So ordered.

Arellano, C.J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. L-970 December 1, 1902

THE UNITED STATES, complainant-appellee,

vs.
TEODORO REYES, defendant-appellant.

Joaquin Rodriguez Serra, for appellant.
Office of the Solicitor-General Araneta, for appellee.

LADD, J.:

It will not be necessary to decide whether in admitting the declaration of the deceased, made in the course of the preliminary investigation a few hours before his death, the court below erred, because we are of opinion that even if this evidence is to be considered as properly in the case, the defendant must be acquitted.

The deceased was surprised by the defendant cutting bamboo on what the latter claimed was his land. An altercation ensued between them, and the deceased received a wound which caused his death. The only evidence as to what took place offered by the prosecution was the declaration referred to and some statements by the deceased to his brother. The declaration is in such vague and general terms as to detract greatly from its value as evidence. It is in substance that the defendant found the deceased cutting bamboo as stated; that he took him to task for it, using insulting language; that the deceased replied, and that the defendant thereupon attacked him and stabbed him in the stomach with a clasp penknife. The statements made by the deceased to his brother differ somewhat from the declaration. They are to the effect that the deceased when surprised by the defendant asked his pardon, and offered to pay for the bamboo if the defendant was not willing to give it to him, but that the defendant made no reply but at once attacked him.

The defendant, who testified in his own behalf, gave quite a full and circumstantial account of what occurred. He says, omitting unimportant details, that he found the deceased cutting bamboo on his land; that he asked him why he was cutting such young cane; that the deceased replied in effect that it was none of his business as the land was not his; that he then threatened to arrest the deceased (the defendant being teniente of the barrio), whereupon the deceased approached him and aimed a blow at him with his bolo, which he avoided by letting himself fall from his horse; that he retreated, the deceased pursuing and striking at him with the bolo; that at last he opened his knife and put himself in an attitude of defense; that the deceased not desisting he grappled with him and succeeded in wresting the bolo from him, and that in the course of the combat he thinks he must have wounded the deceased with the knife.

The defendant’s account of the occurrence is corroborated to a certain extent by the evidence of two persons who witnessed the encounter from a field some four hundred yards distant, and who say they saw a man fall from his horse and another man pursue him and finally grappled with him, although they were not near enough to be able to distinguish who the men were.

The defendant’s testimony appears to us in effect, and especially as thus corroborated, more worthy of credence than the declaration and statements made by the deceased. At all events, in such a conflict of evidence we should not be justified in rejecting it as untrue.

Accepting the defendant’s statement as true, it is clear that he was acting in the legitimate exercise of his right to defend himself by repelling the unprovoked and wrongful attack of the defendant, and is therefore relieved from responsibility under No. 4 of article 8 of the Penal Code.

The judgment of the court below is reversed, and the defendant is acquitted, with costs of both instances de oficio.

Arellano, C.J., Cooper, Smith, Willard, and Mapa, JJ., concur.

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G.R. No. L-960 December 19, 1902

THE UNITED STATES, complainant-appellee,

vs.
BIBIANO CAPISONDA, defendant-appellant.

Lucio Villareal, for appellant.
Office of the Solicitor-General Araneta, for appellee.

COOPER, J.:

The defendant, Bibiano Capisonda, is charged with the crime of homicide punishable under article 404 of the Penal Code, he having killed Lucila Marasigan, a girl 15 years of age, by a shot from a gun. He was adjudged guilty by the lower courts and condemned to the punishment of fourteen years eight months and one day of reclusion temporal with the corresponding accessories and the costs of suit, and in case of insolvency to subsidiary imprisonment, and the right to indemnification was reserved to the family of the deceased, from which judgment he has appealed to this court.

It appears from the evidence in the case that on the 12th day of February last, at 8 o’clock at night, the defendant, who was then sergeant of police of the town of Gumaga, was standing in front of the municipal presidencia, which was the police quarters, when the deceased, Lucila Marasigan, being directly across the street in front of the presidencia was fired at by the defendant and was struck in the left shoulder, the wound producing almost instant death. He attempts to justify the act under paragraph 11, article 8, which exempts from criminal liability an officer who acts in the fulfillment of his duty.

The defendant testified in the case, and stated that he fired the shot under the following circumstances:

That an order had been given by the lieutenant of police that after 8 o’clock at night no person should be permitted on the streets, and that nay person found after that hour should be given the order “halt” three times, and should such person refuse to obey the order he should be fired upon. He states that while standing with the sentinel at the place indicated he saw at a distance of about 30 varas a person advancing in his direction; that he gave the word “halt” three times to which the reply “insurrecto” was made, and that not being able to distinguish the person who gave the reply he discharged his gun at the deceased.

Francisco Villapando, Emeterio Capito, and Juan Barreto, policemen of the city, who were present or near by at the time, testified in the case. They were comrades of the defendant, and apparently are not unfriendly toward him. Francisco Villapando testified to the fact of the shooting of the deceased by the defendant; that the deceased was at a distance of about seven steps at the time; that the deceased was in front of the house of her sister at which place the deceased lived, and was about to enter the house when the shooting occurred; that the shooting occurred at 8 o’clock at night, just as the clock was striking that hour; that there was a lamp in the house of the deceased which gave light to the particular place where the deceased was standing; that the light was sufficient for a person to be recognized by; that witness was ignorant as to the motive of the defendant in shooting the deceased. This witness stated that the order from the lieutenant of police was, that all persons found on the streets at 8:30 p.m. should be halted. He corroborates the defendant in the statement that the defendant gave the word “halt” three times, and afterwards fired, but does not know to whom the word “halt” was given because he was within the presidencia; that upon hearing the shot he went out and saw the defendant, and also saw the deceased stretched upon the ground; that he heard the word “insurrecto,” but did not know who uttered this word. He testifies to having seen the deceased, Lucila, passing just before the shot was fired and recognized her clothed as a woman. He knows that the defendant was personally acquainted with the deceased; that deceased was well-known in the town.

The witness Emeterio Capito testifies that the deceased was coming from a neighboring house to the place where she lived, opposite to where the defendant was standing; that when the deceased was in front of the defendant, the defendant raised his gun and fired; that the deceased was about 6 varas distant from the defendant; that the shooting occurred at 8 o’clock; that there was a lamp whose light shone clearly in the streets at that time; that the deceased could have been recognized by the light; that he does not know the motive of the defendant for killing the deceased; that the defendant said nothing before the shooting, and that he heard the deceased say nothing; that when the shooting occurred the sentinel, whose name is Leon Hernandez, was standing guard with the defendant, and seized the defendant and carried him into the police quarters. He states that the defendant and the deceased were old acquaintances, but he does not know whether there was any enmity between them or not; that he did not hear the defendant give the word “halt.” This witness testifies that the defendant was accustomed to drinking vino, and thinks that he was drunk that night.

The witness Juan Barreto testifies that he knew the deceased for a number of years; that he was not present at the time of the shooting — he was just inside the police station in front of which the defendant was standing, and heard the shot; that Juan Robinson and Emilia Marasigan, sister of the deceased, hastened to the aid of the deceased; that the deceased was dead at the time he reached her; that the defendant knew the deceased, and that she was well-known in the town; that the deceased fell in front of her house; that there was a light in the house of the deceased, burning low; that he did not think it was sufficient to recognize a person by from the police station nor to distinguish a man from a woman; that a lamp was placed in the window of the store underneath the residence of the deceased to light the store; that the light shone both inside and outside. This witness testifies that the defendant gave the word “halt” three times; that on the night of question the insurrectos were not far from the town; that orders were given the police to halt all passers at 9 o’clock; he also testified that the defendant’s eyesight was bad.

The question in the case is whether the defendant was acting in the bona fide discharge of his duty as sergeant of police at the time of the killing, or whether the killing of the deceased was wrongfully and intentionally done.

The defendant, having admitted the killing, has assumed the task of establishing his defense, not that the burden of proof shifted in the case, but it was necessary for him to establish his defense to the satisfaction of the court.

A very material point in which the testimony of the defendant is contradicted is as to the hour of the night at which all persons where prohibited from appearing upon the streets. The defendant testifies that his orders were to halt all persons found on the streets at 8 o’clock. In this he is contradicted by all the witnesses in the case. Francisco Villapando, who was teniente of the police guard, testifies that the order was to prohibit walking after 8:30 p.m.

Juan Barreto testifies that the hour fixed was 9 p.m.

Emeterio Capito fixes the hour also at 9 p.m.

The deceased met her death precisely at 8 o’clock. The time is definitely fixed by one of the witnesses, who states that the bell of the church clock was just finishing the 8 o’clock stroke.

That the defendant should have halted the deceased an hour half before the time fixed for the halting of persons is sufficient to raise a very serious doubt as to the good faith of the defendant in shooting the deceased.

That the deceased when halted should have uttered the word “insurrecto,” as the defendant testifies, is highly improbable. What motive could she have had in doing so? Besides, the defendant certainly ought to have been able to distinguish her is not borne out by the testimony.

The statement of the accused that the deceased was standing in the dark and that he was no able to distinguish her is not borne out by the testimony.

The witness Villapando testified that there was a lamp in the house of the deceased, which gave light to t he particular place where the deceased was standing, and that the light was sufficient to recognize a person by.

The witness Capito testified that the lamp shone clearly in the street, and that he defendant could have recognized the deceased by the light.

We think that the testimony in the case is entirely sufficient to disprove the defense.

What the motive for the crime was, so far as appears form the record, must be left in mystery. But it is sufficient that the accused killed the deceased, and not having established his defense he must suffer the consequences which the law imposes for the taking of human life.

We wish to call the attention of the trial judges and the prosecuting attorneys to the fact that evidence taken upon a preliminary examination has no place in the record; that such testimony except in the cases mentioned in the statute is inadmissible upon the trial and can not be considered by this court when placed in the record.

The defendant, Bibiano Capisonda, is adjudged guilty of the crime homicide ass defined in article 404, and we hereby fix his punishment at seventeen years of reclusion temporal, with the corresponding accessories and costs of suit, and further condemn him to the payment of 1,000 pesos indemnification to the heirs of the deceased.

Personal subsidiary liability on account of insolvency can not be imposed upon a person condemned to a penalty higher in the general scale that of presidio correccional, and the judgment of the lower court was, in this respect, erroneous.

The judgment of the Court of First Instance, with the modification herein made, is affirmed. So ordered.

Arellano, C.J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. L-945 December 19, 1902

THE UNITED STATES, complainant-appellee,

vs.
MELCHOR ABELINDE, ET AL., defendants-appellants.

Domingo Ordovesa, for appellants.
Office of the Solicitor-General Araneta, for appellee.

ARELLANO, C.J.:

The defendants were convicted at first instance and condemned to the penalty of death for the crime of the murder of Antonio, Juan Julian, Nicomedes, Lucio, Severo, and Isabel Echevarria, of Candida de los Reyes, of one Dionisio, and of Antonio Caldevilla. The case has been sent to this court in consultation of the judgment by which this penalty was imposed upon them.

In the night of the 14th or 15th (the exact date does not appear) of the month of August, 1900, the house occupied by the Echevarria family, situated in the hamlet of Naro, then corresponding to the town of Uson and now to the township of Palanas, Province of Masbate, was assaulted by a band composed of some forty men. The malefactors fired two or three shots upon arriving at the house, and then told the people who were living there to come down one at a time. They having done so, the assailants took from them their arms, consisting of guns and revolvers, and tied them elbow to elbow. In this condition the prisoners were killed by being shot or stabbed with bolos. The bodies were subsequently sewn in sacks and thrown in the sea. All the persons named in the complaint were killed in this manner. This facts are fully established by the testimony of the eye witnesses Patricia Arma and Diego Atigera. The latter was kidnapped by the malefactors the night before and taken as a prisoner at the place where the crime was comitted because, as the malefactors themselves told him, he was a relative of the Echevarrias.

Elvira Clemente, the wife of the deceased Juan Echevarria, corroborates the testimony of the witness about mentioned, except as to the manner and form in which the victims were killed. She was not present at this, because she did not leave the house, although she testifies that she knew of the death of the victims because she heard the malefactors themselves state that they had killed them, shortly after the occurrence, and because they were not seen again after that time. She further testified that the malefactors demanded the delivery of the arms which the Echevarrias had, promising not to do them any injury. The witness Patricia Arma apparently intent to convey the same idea by the statement made by her that the Echevarrias did not defend themselves, notwithstanding the facts that they were provided with guns and revolvers, because they did not know what was going to be done to them.

The shots fired by the malefactors were also heard by Tomas Atigera, Policarpia Arisola, and Victoria Garcia, who became so frightened upon hearing the shots that they ran away and hid in the woods. Victoria saw the bodies of all the deceased on the beach, and Policarpia saw the bodies of five of them on the day after the occurrence.

The same witnesses, Patricia Arma and Diego Atigera, testified to having seen Melchor Abelinde at the time the crime was commited, and that he was one of the men who formed part of the band which made the assault. Patricia Arma testified further that she saw him take direct part in the killing of the Echeverrias.

From an examination of the record the conclusion is reached that the malefactors remained at the hamlet of Naro during the night in question; that part of them went away in the morning of the day following, the others remaining there in the custody of the house while removing the money, rice, and other goods found therein. Melchor Abelinde must have been one of those who remained, and hence it was that he was seen on the morning in question by Tomas Atigera and Camilo Afable, and by Victoria Garcia on the afternoon of the same day, while standing guard at the door of the said house, armed with a saber and a gun. Policarpia Arisola also saw him the same day among the malefactors, although this witness could not testify precisely as to the place where she saw him.

With respect to the other defendant, Leon Arco, nobody saw him on the night in question at the place where the crime was committed. Nevertheless, circumstantial evidence points strongly against him. When part of the band which had committed the assault and killed the Echevarrias was leaving the hamlet of Naro, between 8 and 9 o’clock on the morning following, Arco was seen forming part of this band and armed with a bolo. So testified Martin Atin and Bernardo Legaspi, who were kidnapped by the band on the road on that occasion. This witness, while in the hands of the malefactors, heared them, say that they were coming from the hamlet of Naro, where they had killed the Echevarria family the night before. According to Martin Atin, it was Arco himself, assisted by another member of the gang, who captured him, telling that if he did not keep quiet they would kill him as they did the people of Naro. This witness also testified that he noted spots of blood on the sheath of the bolo carried by Arco. It also appears from the testimony of Mariano Santos that when this band was in his house, having come there for the purpose of getting rice, some days after the event in question, the defendant Arco was one of the gang; that the bolo he carried was stained with blood; that one of the party stated in a loud voice that they had killed the Echevarrias at the hamlet of Naro, and that Arco heard this statement and did not deny it.

These proofs in themselves are sufficiently conclusive to produce a full conviction of the guilt of the defendants, and they have still greater force in connection with their own testimony at the trial. They confessed that it was true that they were present at the hamlet of Naro, together with the slayers of the Echevarrias family on the occasion in question. The force of this confession is not overcome by the fact that they alleged that they had been kidnapped and taken there forcibly by the malefactors, and that the letter left them, the defendants, tied to some trees at some distance from the house of the Echevarrias while they committed the crime herein prosecuted, and only set them at liberty afterwards; because not only have they failed to prove in any degree the truth of this alleged kidnapping, but the merits of the case, which had been brieftly analyzed, prove precisely the contrary.

It is a matter of absolute indifference whether the accused did or did not kill the deceased by their own hands. Although they might not have done so — and there is proof to the contrary with respect to Melchor Abelinde — it is sufficient that they were present as a part of the band of murderers at the time and place of the occurrence, thus contributing by their presence to augment the power of the band and to aid in the successful realization of their purposes in order to become responsible by direct participation for the death of the victims, in accordance with article 13 of the Penal Code.

The fact that the deceased were killed while tied elbow to elbow, and therefore prevented from making any defense, constitutes the circumstance of alevosia, defined in paragraph 2 of article 10 of the Penal Code. Hence, the crime prosecuted in this case was properly classified in the court below in its judgment as that of murder, defined and punished by article 403 of the Penal Code.

There is absolutely nothing in the record to indicate that the defendants have done anything which might tend to add ignominy to the effects peculiar to the crime committed, or that they had any intention to affront the age and sex of any of the deceased. Consequently the court below erred in considering against the defendants aggravating circumstances Nos. 12 and 20 of article 10 of the Code. With respect to the circumstance of the commission of the crime in the nightime and in a gang, which the court below also considered as aggravating circumstances, these circumstances must be regarded as involved in the circumstances of alevosia, inasmuch as in the daytime, and if the malefactors had been less than four, the minimum number necessary, under article 505, to constitute a gang, it would not have been possible for them to have overcome so many victims, to the extent of allowing themselves to be tied without making the slightest resistance, having, as they did, guns and revolvers with which they might defend themselves, and not without certain advantages from a position of defense in the house. It is to be supposed that they would have done so had the gang which made the assault been less numerous, and had they been able to expect the assistance of their neighbors, which might naturally be more readily counted upon in the daytime than in the nighttime. Hence the circumstance of nocturnity and the circumstance of the commission of the crime by a gang were principal and doubtless necessary elements which made possible the existence of alevosia, which consisted in the killing of the deceased while tied elbow to elbow, as otherwise the result of the attack might perhaps have been different, in view of the peculiar circumstances surrounding the case.

What appears to be unquestionable is that the slayers of the Echevarrias acted upon premeditation. The agreement between them to form the numerous gang which perpetrated the crime prosecuted in an agreement which must necessarily have been preceded by a mutual and a reiterated communication of ideas, intentions, and plans relative to the commission of the said crime; the fact that Diego Atigera was kidnapped twenty-four hours before the occurrence, for the sole reason, as stated by the defendants themselves, that he was a relative of the Echevarrias, and that he was not restored to liberty until after the murder of the latter had been accomplished, and doubtless with the purpose — as there is no other which can be imagined — of preventing him from warning the Echevarrias of the danger which threatened them and of which Atigera must doubtless have had some information, all demonstrates that since the preceding day they had taken precautions tending to insure the success of their criminal enterprise, and constitute facts which give evidence of a reflexive and persistent deliberation upon the commission of the crime. This it is which constitutes known premeditation within the meaning of the Penal Code. This aggravating circumstance must therefore be considered against the defendants, by virtue of paragraph 7 of article 10 of the said Code.

Aggravating circumstance No. 8 of the same article must also be considered, because the malefactors made use of fraud in the commission of the crime, deceiving the deceased with the false promise that no harm would be done them if they would peaceably give up the guns and revolvers in their possession, and then killing them after so obtaining the weapons. There is good reason to believe that, as the victims were so numerous and were so well prepared for defense, they would not have surrendered at the first intimation without the slightest resistance had they not confided in good faith in the sincerity of that promise.

Counsel for the defense, during the pendency of the appeal, has moved the court to apply in favor of the defendants the amnesty of July 4 last, alleging that the deceased belonged to a Spanish family and were killed by reason of the political feuds and hatreds arising from the fact that the deceased had formerly been caciques of the town in which they lived.

The merits of the defense do not support this allegation. It does not appear, in any manner whatsoever, that the slayers of the Echevarrias had taken part in the insurrection against Spain or against the United States, or that they had committed the crime to advance the interests of the said insurrection, or that it was due to motives more or less connected therewith. The mere fact that the deceased were Spaniards is not sufficient to authorize the conclusion that their death was due to political hatred or dissensions, there being absolutely no evidence upon which to support such a supposition. There is no way in which the conclusion can be legally drawn from the record that the defendants committed the crime of which they are charged with any political purpose or motive. On the contrary, it appears perfectly clear and evident from the testimony of all the witnesses in the case that their principal object was that of robbery, and this purpose was effected, they having stolen everything there was in the house of the Echevarrias. No charge of robbery was, however, included in the information, and therefore can not be passed upon in our decision. These facts, however, invest the murder of the Echevarrias with all the characteristics of a common crime, and therefore not embraced by the amnesty proclamation invoked by the defense.

For the reasons above expressed we overrule the motion of the defendants for the application of the amnesty, and affirm the judgment below, with the modifications above indicated with respect to the aggravating circumstances which should be considered against the said defendants, with the costs of this instance against them. So ordered.

Torres, Cooper, Smith, Willard, and Ladd, JJ., concur.
Mapa, J., did not sit in this case.

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