1. MURDER; "ALEVOSIA;" AGGRAVATING CIRCUMSTANCE. — Where the generic circumstance of alevosia (treachery) is taken into consideration, for the purpose of raising the crime from that of "homicide" to "murder," and part of the treacherous plan consisted of taking advantage of the darkness of the night to commit the crime, "nocturnity" should not again be taken into consideration as an aggravating circumstance in fixing the penalty to be imposed upon the convict.

2. ACCESSORIES. — An accused person can not be convicted as complice (accessory before the fact) unless it affirmatively appears that he cooperated in the commission of the offense by acts either prior to or simultaneous therewith.

3. CONSPIRACY; ADMISSIBILITY OF EVIDENCE; "RES GESTAE." — Where a conspiracy between two or more persons for the accomplishment of the same criminal design has been established, the declarations made by one of them during the pendency of the unlawful enterprise, and in furtherance of its objects, are receivable in evidence against one or all of them; but the confession of one conspirator, made after the conspiracy has come to an end, whether by success or failure, is not admissible in evidence any but himself.

The following amended information was filed in this case:jgc:chanrobles.com.ph

"The provincial fiscal of Cebu, amending the complaint filed on the 1st of May, 1905, Accused Ciriaco Empeinado, Pedro Panaligan, Onofre Leison, and Andres Natad of the crime of murder committed as follows:jgc:chanrobles.com.ph

"That on or about the 29th of April, 1905, within the municipality of Cebu, of this province and judicial district, the said Ciriaco Empeinado, Pedro Panaligan, Onofre Leison, and Andres Natad maliciously, criminally and with the persistently premediated purpose to kill Bernardina Pacris, an old woman of 60 years of age, and acting for reward, went at night to the latter’s house, situated in the above municipality and taking advantage of a moment in which the said Bernardina Pacris did not expect the aggression, they assaulted her with bolos with which they were provided, causing her death. All contrary to law."cralaw virtua1aw library

The court found that the crime of assassination [murder] charged therein had been committed, accompanied by the aggravating circumstances of nocturnity and the commission of the offense in consideration of a price or promise of reward, and also took into consideration the extenuating circumstance to race set out in article 11 of the Penal Code.

The accused Ciriaco Empeinado, Pedro Panaligan, and Andres Natad were found guilty as principals and Onofre Leison as accomplice. The three principals were sentence to life imprisonment, and Onofre Leison to twelve years and one day of reclusion temporal; all the convicts were sentenced jointly and severally to pay a civil indemnity to the heirs of the deceased Bernardina Pacris in the sum of P1,000, and to the payment of their respective shares of the costs of the trial.

The evidence of record discloses that about 6 o’clock on the evening of the 29th of April, 1905, Ciriaco Empeinado, Andres Natad, and Pedro Panaligan came together to the house of Bernardina Pacris and informed her that they wanted to buy some corn; that Bernardina Pacris followed by her daughter, Ramona Abad, and the three accused, went to a house near by wherein the corn was stored; and that, as they were entering the door of the storehouse, one of the accused stabbed Bernardina Pacris, who fell dead upon the ground.

Felicia Cabalona testified that on the day prior to the murder she was selling wood in Cebu, in the house of one Regino de Gracia, where she overheard the said Regino de Gracia say to Ciriaco Empeinado that it was better to kill her. ("mejor asesinarla").

Cleto Tabaral testified that after the death of Bernardina Pacris, Ciriaco Empeinado, Pedro Panaligan, and Onofre Leison came to his house, and sent him to notify Andres Natad that he should come up to the mountain because they were waiting; that he (the witness) went to Tuyac, where he met Andres, and that upon his return these accused asked him what had happened, and that he told them that Andres Natad would come shortly; that the said accused gave the witness a half peso for taking the message; and that on the day following they came to his house with Andres Natad, whom he saw give to them a number of bank bills; that thereafter these accused sent him to Regino de Gracia to inform him that they had not received all the money; that he, the witness, asked the accused for what reason they were to receive the money, and that they answered him that it was a payment made by the son-in-law of one Binang (the deceased) and that it was paid for killing her, but that the amount was short P10 for the share of Onofre Leison and Pedro Panaligan.

This evidence was substantiated in important details by admissions made by the accused Ciriaco Empeinado, Pedro Panaligan and Andres Natad. Urbano Pacris testified that the motive of the crime was the enmity which Regino de Gracia felt toward his mother-in-law, Bernardina Pacris, because she had been appointed administratrix of his wife, her daughter, and refused to permit him to intervene in the administration of the estate of his deceased wife.

It was further shown at the trial that the said Regino de Gracia had been tried in a separate action for his participation in the crime; that the complaint in that action charged him with having induced Ciriaco Empeinado and others to assassinate Bernardina Pacris in consideration of a promise of reward; and that the said Regino de Gracia confessed his guilt as charged, and was sentenced to life imprisonment. This evidence was wholly inadmissible; where a conspiracy between two or more persons for the accomplishment of the same criminal design has been established, the declarations made by one of them during the pendency of the unlawful enterprise, and in furtherance of its objects, are receivable in evidence against one or all of them; but the confession of one conspirator, made after the conspiracy has come to an end, whether by success or failure, is not admissible in evidence, against any but himself. (U. S. v. Hartwell, 3 Clif., [Circ. Rep.,] U. S., 221; Logan v. U. S., 263; Brown v. U. S., 150 U. S., 93; Sparf v. U. S., 156 U. S., 51.) The admission of this evidence, however, was not reversible error, because after excluding it from the record there remains sufficient evidence to establish the guilt of the accused beyond a reasonable doubt, and the substantial rights of the accused were not, therefore, prejudiced by its admission.

We think that there can be no doubt as to the guilt of the accused Ciriaco Empeinado, Pedro Panaligan, and Andres Natad as principals in the crime of assassination, Bernardina having been unlawfully stabbed to death by them con alevosia (with treachery), the act having been committed in such a way as to deprive the deceased of all opportunity for self-defense.

We do not think, however, that the aggravating circumstance of nocturnity should be taken into consideration in fixing penalty, because the fact that advantage was taken of the darkness of the night to commit the crime constituted a part of the treacherous plan adopted for the purpose of killing the deceased, and this "treachery" (alevosia) having been taken into consideration as a generic circumstance which raises the crime from that of homicide to that of assassination, nocturnity, which constituted one of the component parts of this treacherous conduct, should not again be taken into consideration as an aggravating circumstance.

There is no evidence of record which shows that the accused Onofre Leison was present at the place where the crime was committed, or took any direct part in the commission thereof; as above stated, however, it appears that on several occasions he went to the house of Cleto Tabaral with the other accused for the purpose of sending the said Cleto to recover the price of the commission of the crime; and that he received a share of the same, knowing that this money had been paid in consideration of the commission of the crime; these facts, we think, are sufficient to establish the guilt of the accused as encubridor (accessory after the fact), but not as complice (accessory before the fact), as found by the trial judge. A conviction as "accessory before the fact" can only be sustained when it appears that the accused cooperated in the execution of the offense by acts either prior to simultaneous therewith. (Art. 14, Penal Code.)

The punishment prescribed for the crime of assassination is that of cadena temporal in its maximum degree to death. Compensating the aggravating circumstance that the crime was committed "for price or reward" with the extenuating circumstance of "race" (art. 11, Penal Code), the accused Ciriaco Empeinado, Pedro Panaligan, and Andres Natad should be sentenced to life imprisonment, the medium degree of the penalty prescribed for assassination; and Onofre Leison should be sentenced to the penalty of seven years of presidio mayor, he being subject as encubridor (accessory after the fact) to a penalty two degrees lower than the penalty imposed upon the principal offenders. The accused should further be sentenced to the accessory penalties prescribed by law, the indemnification of the heirs of the deceased in the sum of P1,000, and to the payment of the costs. Thus modified the sentence of the lower court should be, and is hereby, affirmed with the costs of this instance against the appellants. So ordered.

Arellano, C.J., Torres, Mapa, Johnson, Willard, and Tracey, JJ., concur.