People of the Phil. vs. Macalisang

Treachery is not established by the mere location of a bullet wound at the back or by the suddenness of an attack; where the victim's position was accidental and the assault was an impulse of the moment rather than a method deliberately chosen to eliminate risk to the assailant, the killing is homicide, not murder. Recidivism, when charged and proved, aggravates the homicide and, with no mitigating circumstance, warrants reclusion temporal in its maximum period.

Isaias Macalisang was the Chief of Police of Sinacaban, Misamis Occidental, and a supporter of incumbent Mayor Sofronio Avanceña. Francisco Dano was the chief adviser of Victoriano Simbajon, the defeated mayoral candidate, and had delivered speeches and written leaflets attacking Mayor Avanceña. The political antagonism between the Avanceña and Simbajon camps formed the backdrop of the two shootings that occurred on November 14, 1949. In separate cases jointly tried, Victoriano, Feliciano, Panfilo, and Bonifacio Simbajon were prosecuted for the murder of Mayor Avanceña and the frustrated murders of Macalisang and Patrolman Liborio Dominguez; they were convicted below, and the judgment as to those who appealed was affirmed by the Supreme Court on September 30, 1965 (G.R. No. L-18073-75), with a slight modification as to the penalty for the frustrated murders.

In the morning of November 14, 1949, two bloody incidents occurred in Sinacaban, Misamis Occidental. About 9:00 o'clock in the morning, Victoriano Simbajon, defeated candidate for Mayor, approached incumbent Mayor Sofronio Avanceña near the municipal building. Simbajon was accompanied by his son Panfilo and his son-in-law Arturo Yap. While still at a distance, Simbajon raised his hands apparently to signify that he accepted defeat and invited the Mayor to ride with him in his jeep in going to a wedding party to which both were invited. Mayor Avanceña politely declined. Simbajon and his party left, went down the slope leading to the national highway.

Sometime later, Avanceña, followed by the Chief of Police, herein appellant Isaias Macalisang, and Patrolman Liborio Dominguez, left on foot and followed the same route. As they approached the highway, Simbajon, then standing near the house of one Isabelo Plaza, again offered his jeep to Avanceña. The latter again declined, stating that he would take the jeep of the municipal health officer. Immediately thereafter, there was a burst of gunfire in rapid succession. Mayor Avanceña was mortally wounded; his two companions were critically wounded. Macalisang received gunshot wounds from the point of his penis hitting his gonads to his lap, his left leg was broken, and he fell into a canal.

Minutes after that incident, Fr. William Bourke, the town parish priest, who heard the shots, came upon the scene of the crime together with his houseboy, Benjamin Lopez, in the former's jeep. He administered the last sacraments. Macalisang was lifted by Benjamin Lopez and placed in the front seat of the jeep between him and Fr. Bourke, who was at the wheel. They proceeded to Ozamis City. While the jeep was negotiating a curve in Barrio Casoy of Sinacaban, Macalisang pointed his gun at Francisco Dano, who was at the curb of the road by the mountainside, and fired. Francisco Dano was hit. The bullet entered his back at the right of the mid-spinal line; it came out through the right chest. Dano shouted to his wife: "Help help, Day, I am hit by the gun. Help, I will die." His wife, Perfecta, rushed to his side and found that he was bleeding in front and in the back of his body. When she asked Dano who shot him, Dano replied: "Chief Isaias Macalisang." Brought to Ozamis City, Dano expired on the same day.

Macalisang pleaded that he was unconscious or under shock at the time the act was committed. He testified that after the earlier incident he lost consciousness until he was already treated at the Medina Hospital in Ozamis City. Dr. Rico Medina, his attending physician, testified that Macalisang was in a very serious condition when brought to the hospital because of the bullet wound at the tip of the penis that pierced the right lateral portion of the scrotum, the bullet wound on the lower right extremity, and loss of blood. According to the doctor, these injuries would cause momentary unconsciousness for a length of time depending upon the resistance of the patient; Macalisang was robust. The doctor opined that there was "very big probability" that Macalisang was unconscious during the time of the accident, but stressed that it was possible for him to recover consciousness after 10 minutes, to have recognized persons, and to have been in full control of the upper extremities, which were not affected at all by the wounds. Captain Benjamin Rafols interviewed Macalisang in the hospital, and Macalisang admitted, "I was the one who shot Mr. Dano"; the captain stated that Macalisang was confused as to the shooting incident that occurred earlier in the morning. The evidence showed that about 10 to 15 minutes transpired between the time Macalisang was hit by gunfire and the time the priest in his jeep came by.

On the issue of treachery, the record showed that Macalisang knew Dano was the chief adviser of the defeated candidate for Mayor, Victoriano Simbajon. Dano delivered speeches against Mayor Sofronio Avanceña and wrote leaflets attacking him. Macalisang, in turn, was a supporter of the deceased Mayor Avanceña. After Macalisang was wounded, he did not go in search of Dano. It just so happened that on his way to Ozamis City, he saw Dano on the road. Macalisang was in a running jeep; the victim was standing at the side of the road. The attack was an impulse of the moment. The amended information charged that Macalisang was a recidivist, and he was really convicted of serious physical injuries and less serious physical injuries on September 4, 1941.

The trial court found that Macalisang fired the shot that killed Dano, rejected his claim of unconsciousness, and held that treachery qualified the crime as murder. It sentenced him to life imprisonment, to indemnify the heirs of the deceased in the sum of P6,000.00, and to pay the costs. On appeal, the Supreme Court reviewed these findings and the legal qualification of the killing.

• Unconsciousness/Shock: Appellant pleaded that he was unconscious or under shock at the time the act was committed; he claimed that after receiving gunshot wounds from the point of his penis to his lap, suffering a broken left leg, and falling into a canal, he lost consciousness until he was treated at the Medina Hospital in Ozamis City, and he presented Dr. Rico Medina to support the probability that he was unconscious.
• Absence of Treachery: Appellant asserted that treachery did not qualify the killing; he argued that the mere location of the bullet wound at the back, by itself, does not prove treachery, and neither does the suddenness of the attack, especially where the decision was sudden and the victim's position accidental.

• Voluntariness/Consciousness: Whether appellant acted voluntarily and consciously when he shot Francisco Dano, notwithstanding his claim of unconsciousness or shock.
• Treachery: Whether treachery qualified the killing of Francisco Dano as murder.
• Recidivism/Penalty: Whether recidivism attended the homicide and whether the penalty should be reclusion temporal in its maximum period.

• Voluntariness/Consciousness: Yes. The shooting was voluntary; the claim of unconsciousness was not convincing, and a criminal act is presumed voluntary. Positive testimony from Fr. Bourke, Benjamin Lopez, and Capt. Rafols, together with the doctor's concession that consciousness could have been regained after 10 minutes, overcame the defense.
• Treachery: No. Treachery was not established; the mere location of the bullet wound at the back and the suddenness of the attack do not prove treachery, and the method of assault was not deliberately chosen to accomplish the killing without risk to the assailant. The crime is homicide, not murder.
• Recidivism/Penalty: Yes. Recidivism attended the homicide; appellant had been convicted of serious physical injuries and less serious physical injuries on September 4, 1941, and with no mitigating circumstance, the penalty is reclusion temporal in its maximum period.

• Voluntariness/Consciousness: The Court found that Macalisang was conscious at the time he shot Dano. When placed on the jeep, he took the precaution of placing his service revolver on his lap. Lopez saw him take the gun and fire at Dano. Fr. Bourke, upon hearing the shot, saw Macalisang with the gun still pointed at the side of the road. Perfecta vda. de Dano testified that when she approached her husband, he told her that Chief Macalisang shot him; this was in the nature of a dying declaration, made when Dano felt he was at the point of death and in a very serious condition, and he died on the same day. Capt. Rafols interviewed Macalisang in the hospital, and Macalisang admitted, "I was the one who shot Mr. Dano." Although the captain stated that Macalisang was confused as to the earlier shooting, the admission was definite. The doctor affirmed that Macalisang could have regained consciousness after 10 minutes, and the evidence showed that about 10 to 15 minutes transpired between the gunfire and the priest's arrival. A criminal act is presumed voluntary, and speculation or guesswork cannot overturn that presumption. Between the self-serving version of appellant and the indecisive testimony of his doctor, on the one hand, and the positive assertions of Fr. Bourke, Lopez, and Capt. Rafols, on the other, fact prevailed over assumption. Absent an aboveboard explanation, the shooting was declared voluntary and punishable.
• Treachery: The Court held that treachery did not qualify the killing. Jurisprudence provides that the mere location of the bullet wound at the back, by itself, does not prove treachery; neither does suddenness of the attack alone. Even if the purpose was to kill, so long as the decision was sudden and the victim's position accidental, no treachery attaches. The Court examined the peculiar setting: Macalisang knew Dano was the chief adviser of the defeated mayoral candidate, Victoriano Simbajon; Dano had delivered speeches against Mayor Avanceña and written leaflets attacking him; Macalisang was a supporter of Avanceña. After Macalisang was wounded, he did not go in search of Dano. It just so happened that on his way to Ozamis City, he saw Dano on the road. Macalisang was in a running jeep; the victim was standing at the side of the road. The attack was an impulse of the moment. The method of assault adopted by the aggressor was not deliberately chosen with a special view to the accomplishment of the act without risk to the assailant from any defense the party assailed may make. With treachery eliminated, the crime committed was homicide.
• Recidivism/Penalty: The amended information charged that appellant was a recidivist. The Court found that he was really convicted of serious physical injuries and less serious physical injuries on September 4, 1941. Therefore, the homicide was attended by one aggravating circumstance, with none in mitigation. The penalty should be reclusion temporal in the maximum period. The Court accordingly modified the judgment and sentenced defendant for homicide to an indeterminate period ranging from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, to indemnify the heirs of Francisco Dano in the sum of P6,000.00, without subsidiary imprisonment in case of insolvency, but with the accessories of the law, and to pay the costs.

• Treachery (alevosia) requires a deliberately chosen method of assault — For treachery to qualify a killing as murder, the method of assault adopted by the aggressor must be deliberately chosen with a special view to the accomplishment of the act without risk to the assailant from any defense the party assailed may make. The mere location of a bullet wound at the back, by itself, does not prove treachery, and neither does the suddenness of the attack alone. Even if the purpose was to kill, no treachery attaches where the decision was sudden and the victim's position was accidental. In this case, Macalisang shot Dano from a running jeep while Dano stood at the roadside; the attack was an impulse of the moment, not a deliberately chosen method, so treachery was eliminated and the crime was homicide.
• Criminal act is presumed voluntary — A criminal act is presumed to be voluntary, and speculation or guesswork cannot overturn this presumption. The Court applied this rule against Macalisang's claim of unconsciousness or shock, finding that the positive testimony of Fr. Bourke, Benjamin Lopez, and Capt. Rafols, along with the doctor's concession that consciousness could have been regained after 10 minutes, established that he acted consciously and voluntarily.
• Dying declaration — A statement made by a victim under the consciousness of impending death, identifying the assailant, is admissible as a dying declaration. The Court treated Dano's statement to his wife that "Chief Isaias Macalisang" shot him as a dying declaration because Dano felt he was at the point of death, was in a very serious condition, and died on the same day.
• Recidivism as an aggravating circumstance — The amended information charged appellant as a recidivist, and the Court found that he had been convicted of serious physical injuries and less serious physical injuries on September 4, 1941. This aggravating circumstance attended the homicide, and with no mitigating circumstance, the penalty was reclusion temporal in its maximum period.

• "The resulting crime is not murder qualified by treachery. Because, it does not appear that "the method of assault adopted by the aggressor was deliberately chosen with a special view to the accomplishment of the act without risk to the assailant from any defense that the party assailed may make."" — This states the ratio decidendi for eliminating treachery and reducing the crime from murder to homicide.
• "A criminal act is presumed to be voluntary. We cannot seize upon speculation or guesswork to overturn this presumption." — This articulates the presumption of voluntariness that defeated appellant's claim of unconsciousness or shock.
• "Between the self-serving version of appellant and the indecisive testimony of his doctor, on the one hand, and the positive assertion of Fr. Bourke, witness Lopez and Capt. Rafols, on the other, the choice is clear. Fact prevails over assumption." — This explains the Court's evidentiary resolution in favor of the prosecution's witnesses.
• "With treachery eliminated, the crime thus committed is homicide." — This is the Court's direct conclusion on the legal qualification of the killing.

• U.S. vs. Perdon, 4 Phil. 143-144; U.S. vs. Pangilion, 34 Phil. 786, 792-793; U.S. vs. Atig, 36 Phil. 303, 312; People vs. Abril, 51 Phil. 670, 675; People vs. Embalido, 58 Phil. 152, 153 — Cited for the rule that the mere location of the bullet wound at the back, by itself, does not prove treachery.
• Ramos vs. People, 1967C Phil. 431, 436, citing Perez vs. Court of Appeals, L-13719, March 31, 1965 — Cited for the rule that suddenness of the attack alone does not prove treachery.
• People vs. Cadag, L-13830, May 31, 1961 — Cited for the rule that even if the purpose was to kill, no treachery attaches where the decision was sudden and the victim's position accidental.
• People vs. Cañete, 44 Phil. 478, 481, citing Viada, 2 Supp., 3d ed., p. 76 — Cited for the definition of treachery as requiring a method of assault deliberately chosen to accomplish the act without risk to the assailant from any defense the victim may make. The Court also cited U.S. vs. Devela, 3 Phil. 625, 628; U.S. vs. Namit, 38 Phil. 926, 929; People vs. Calinawan, 83 Phil. 647, 648; People vs. Tumaob, 83 Phil. 738, 742; People vs. Abalos, 84 Phil. 771, 773; and People vs. Cadag, supra.

• Section 31, Rule 130, Rules of Court — Cited in the endnotes as the basis for admitting Dano's statement to his wife as a dying declaration. The Court found that Dano made the statement when he felt he was at the point of death, was in a very serious condition, and died on the same day.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro, Angeles, and Fernando, JJ., concur.