GR 10370; (September, 1915)

EN BANC

G.R. No. 10370; September 17, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
NAZARIO PALERMO, ET AL., defendants-appellants.

Teodoro Gonzalez Leaño for appellants.
Attorney-General Avanceña for appellee.

CARSON, J.:

Nazario Palermo, Angelo Palermo, Florencio Palermo, Norberto Palermo, Delfin Palermo, and Basilio Palomaria were charged in a single information with the crime of asesinato (murder) alleged to have been committed as follows: “That on or about May 2 of the present year, 1914, within the jurisdiction of the municipality of Passi, Province of Iloilo, Philippine Islands, the said accused did, willfully, unlawfully, and criminally, and with treachery, known premeditation, and unnecessary cruelty, deliberately increasing the harm of the crime, in a deserted place, conspiring together in a band, kill Pascual Orozco with the arms with which they were then and there provided; acts committed in violation of law.”

Norberto Palermo having died before he was brought to trial in the court below, the case was dismissed as to him.

On motion of his counsel, Basilio Palomaria was tried separately, and thereafter his four co-accused were tried together. All five of the accused were convicted of the crime of asesinato (murder), and the trial court imposed upon Nazario Palermo the penalty of cadena perpetua, upon Florencio Palermo, Angelo Palermo, and Basilio Palomaria the penalty of seventeen years four months and one day of cadena temporal, and upon Delfin Palermo the penalty of ten years and one day of presidio mayor. All of the convicts appealed from the judgment and sentence of the lower court, but subsequently, on the 25th of November, 1914, the appeal of Nazario Palermo was dismissed on his motion, so that the present appeal relates only to Angelo Palermo, Florencio Palermo, Delfin Palermo, and Basilio Palomaria.

From the evidence of record it appears that prior to the morning of May 2, 1914, a dispute had arisen between Pascual Orozco, deceased, a Spaniard, and Nazario Palermo, over the boundary of a certain plot of ground; that on the morning of that day Orozco went to the land in question and put a man to work plowing the land and preparing it for cultivation; that soon thereafter Nazario Palermo and his brother Norberto came up to the place where Orozco, who was mounted on horseback and armed with a revolver, was supervising the work; that after some words between them Nazario and Norberto attacked Orozco with bolos in their hand; that in the course of the struggle the revolver was discharged two or three times and Norberto received a pistol wound from the effects of which he died several days later; that during the struggle Orozco either dismounted, or was pulled from his horse, and that the pistol was either struck from his hand or fell to the ground, whereupon it was seized by Nazario, and Orozco took flight pursued by the two brothers; that about this time the other four accused, apparently attracted by the pistol shots, came running up from a thicket along the bank of the river near by and intercepted Orozco’s flight; that Orozco was surrounded by all the accused, seized, thrown to the ground and killed; that the post-mortem examination showed that he had six bolo wounds on his body, at least two of these wounds being mortal; that the Constabulary and police officials, upon being notified of the affair, reached the field where the struggle took place about an hour later and there found Orozco dead and Norberto fatally wounded.

While the foregoing facts are conclusively established by the testimony of several eyewitnesses who were in the neighborhood, the evidence is highly unsatisfactory as to the details of the quarrel out of which the fight arose and as to the precise nature and character of the participation of the various person who took part in the struggle. The lower court was of the opinion that the evidence of record did not establish the presence of either premeditation or alevosia, but was of opinion that the condition in which the body was found established the qualifying circumstance of ensañamiento defined in subsection 5, article 403, Penal Code, because, in his opinion, the number and location of the wounds demonstrated an intent on the part of the defendants deliberately and inhumanly to increase the sufferings of their victim.

We agree with the trial judge that the evidence does not establish the existence of either premeditation or treachery. There is nothing in the record which would justify us in holding that the attack on the deceased had been planned prior to the moment when the quarrel arose in the neighborhood of the disputed boundary line. An attack upon a mounted man armed with a pistol by two men on foot armed with bolos does not in itself imply the elements which go to make up the aggravating circumstance of alevosia. It cannot be said that in making the attack the assailants adopted means or measures which would tend directly and especially to secure the successful outcome of the attack without risk to themselves arising from any defense which might be made by the party upon whom the attack was made.

We are of opinion, however, that the record does not conclusively sustain the finding of the trial court that the crime was committed “with cruelty, by deliberately and inhumanly increasing the sufferings of the offended party.” (Subsection 5, article 403.) The court below based its conclusions in this respect wholly upon the number and gravity of the wounds inflicted upon the person of the deceased. We have frequently held that the mere fact that a number of grave wounds are found upon the body of a murdered man can rarely be considered conclusive of the fact that they were inflicted with the deliberate and inhuman intention of unnecessarily increasing the sufferings of the offended party. It is, as a rule, the unnecessary mutilation of the body which constitutes the qualifying circumstance of “ensañamiento,” and the mere fact that wounds far in excess of what would have been necessary to cause death were inflicted upon the body of the deceased does not necessarily imply that such wounds were inflicted with the intention of deliberately and inhumanly increasing the sufferings of the offended party. The object sought to be attained in such cases may well have been merely to make assurance doubly sure, and to make the recovery of the victim of the attack absolutely impossible.

But while the evidence fails to disclose the precise details connected with the outbreak of the quarrel, it leaves no room for doubt that the attack was not made by the assailants in self-defense. There is not the slightest ground for believing that the two brothers who attacked the deceased while he was still on horseback did so in attempt to protect themselves from assault. The evidence clearly discloses that Orozco did not draw his revolver until after his assailants had advanced upon him with bolos in their hands, and it is very evident that the four defendants who intercepted the flight of Orozco were not acting in lawful defense either of themselves or of their relatives from whom Orozco was fleeing.

The trial court, who had full opportunity to observe the conduct and demeanor of these accused throughout the trial, gave them the benefit of the mitigating circumstance of lack of education and instruction as defined in article 11 of the Penal Code, as amended; holding, furthermore, that Delfin Palermo, who appears to have been under 18 years of age at the time of the commission of the crime, should be given the benefit of the provisions of subsection 2 of article 85 of the Penal Code. We see no reason for interfering with the action of the trial court in this regard, and we are off opinion that, without stopping to consider the various questions raised in this court and in the court below as to the existence of other aggravating and extenuating circumstances, the beneficent provisions of article 11, as amended, should be taken into consideration as to these accused so as to impose the penalty provided for the offense of which they were convicted in its minimum degree. Being of the opinion that the evidence fails to disclose the presence of any of the qualifying circumstances mentioned in article 403 of the Penal Code, we conclude that these appellants should have been convicted in the court below of the crime of homicidio (homicide) instead of asesinato (assassination), as found by the trial judge, and that the penalty prescribed should be imposed in its minimum degree; that which should be imposed upon Delfin Palermo being the penalty immediately inferior to that prescribed by law for the commission of the offense by offenders over 18 years of age.

The judgment of the court below convicting and sentencing the appellants should, therefore, be reversed and, for the reasons hereinbefore stated, judgment should be entered in this court convicting each and imposing the penalty of twelve years and one day of reclusion temporal upon Angelo Palermo, Florencio Palermo and Basilio Palomaria, and the penalty of six years and one day of prision mayor upon Delfin Palermo, all of these convicts to suffer the accessory penalties prescribed by law, and jointly and severally to pay the heirs of the deceased the sum of P1,000, and each of them to pay one-sixth of the costs of the proceedings in the court below and one-fifth of the costs of the proceedings in this court. So ordered.

Arellano, C.J., Johnson, Trent, and Araullo, JJ., concur.

Batas Pinas