This case was prosecuted for the crime of murder.  Upon the evidence adduced  therein the Court of  First Instance found the two defendants guilty and sentenced them to the penalty of fourteen years eight months and  one  day  of reclusion temporal, to an indemnity of P1,000 to the heirs of the deceased,  and to payment of the  costs'of the trial; from which  judgment  they appealed to this court.   While the appeal was pending the defendant Tomas  Cueva  died and the  case is  therefore dismissed with respect to him, wherefore this decision deals only with other defendant, Platon Cueva.

And his guilt  is certainly proven in the case.  The evidence amply demonstrates that  said Platon cooperated  in the execution of the deed trial by holding the victim by the right arm  while his brother and codefendant inflicted the  wounds  that produced  death.  The responsibility he has incurred by  virtue of such  cooperation, without which the deed could not have been committed in the way it was, is beyond  doubt that of principal, as  was rightly  held  in the judgment appealed from.

The Attorney-General maintains in his brief that the crime should be classified as murder and not homicide, from the concurrence in its commission of the qualifying circumstance of treachery  (alevosia), for,  he mainta Platon held the victim by the right arm, he prevented the latter from defending himself, and what is still worse kept him from fleeing from the danger that threatened his life.

In support of his contention  the Attorney-General  cites the case of U. vs. Feria et al. (2 Phil. Rep., 54), wherein this court laid down th principle: 

"Where the  deceased was  suddenly seized and held by one  defendant while  the remaining  defendant  inflicted mortal wounds  upon him,  the necessary element of treachery  (alevosia)  is present, even  tho deceased was armed with a pistol at the time  of the killing."

The deceased's widow, the only eyewitness, relates what she saw, with reference to the. way or manner  in which the assault was committed in t case, as  follows: 

"The death," says the witness, "occurred in that Platon Cueva held his hand and Tomas caused it; that is, it was he who struck the blow in the side. 

"Q. How and in what way? - A. That morning, while I was suckling my infant, my husband went toward the beach, and thereupon  I heard the voice of my husband saying to them:  'Why are you going to kill me?' and then I  saw that my husband was covered with blood and Tomas Cueva was withdrawing a  sharp piece of bamboo."

She added immediately that he was withdrawing it from the left side of t deceased and  that Platon Cueva was holding him by the right arm.

*           *           *           *           *           * 

"Q. Who first reached the place to which you refer, your husband or Tomas? - A. I don't know who arrived  first; I only looked there after heard my husband's voice saying: 'So you're going to kill me?" 

"Q; It  is true,  is it, that you knew nothing more about the death of y husband than you heard from him? - A. Upon hearing  my husband's voice I  was at once seized with fear, f6r a day had not passed since the question before the teniente, and  in fact when I  looked out of window I saw Tomas pulling the piece of  bamboo out of  my  husband's body and  Platon  Cueva  just  letting go  of my husband's hand."

From the foregoing it clearly appears that the witness did not see the commencement of  the affair or the beginning of the assault that resulted the death of the victim, for when she looked out of the window of her house, alarmed by the words she had heard him utter, she saw him already covered with blood and at that instant one of the defendants was releasing his right arm and the other was withdrawing the weapon  with which he ha just wounded him in the left side.  The witness  did  not see the whole or the way in which  it developed, but only  one phase of it, or rather end or conclusion of it.  What  she saw and averred at the trial does no exclude the possibility that a quarrel or struggle between the deceased the defendants may have immediately preceded, or  at least some dispute that would have  put him on his guard as a timely precaution against the assault.   Not only does the  contrary not appear positively, but it wou seem to be inferred from the phrase: "So  you're going to, kill me?" heard by the deceased's wife,  that some words of defiance or  challenge passed between  him and the  defendants  before he was  assaulted. However that be,  the  fact  is  that  the manner, form and circumstance in Which the assault began do not appear to be  determined in the present case, and, this being so, ground is evidently lacking to establish with that the victim was  wounded by one of the defendants while the other was holding him by the right arm, that  it was not  a mere accident of the possible struggle among the participants, and it is therefore  impossible conclude legitimately, in view of this fact alone, accidental at times, completely destitute in the present case of circumstances and details that might determine its genuine juridical nature,  that the defendants acted treachery or with impunity and without risk to their persons arising fro defense the already  forewarned  deceased might have offered, as he must have done, to judge from his own words quoted above, against their assault, which essentially constitutes  and characterizes the circumstance aleviosa. It is not legally  proper to qualify an  act  as  treacherous the  details  that  constitute  it and the circumstances that preceded a concurred in its execution do not appear.

The principle laid down by this court  in the case of U, S. vs. which  is cited in the  Attorney-General's brief, is not applicable here facts in that case and in this are not identical.   Therein it was prove certain and positive manner,  and expressly so stated in the decision, t victim was caught and held by one of his assailants unexpectedly and suddenly, allowing him, therefore, neither time nor place to prepare defense, which does not happen in the case at  bar, wherein the solitary only appears to be proved that one  of the defendants was holding the victim by the right arm while he was wounded by the other, without any record, as stated above, either  of the circumstances that immediately preceded the exact  moment of the affray,  or of the  manner and conditions where under the affair developed and  took place, knowledge whereof would be absolutely necessary and indispensable in order to be a to determine with exactness whether  that act was  or was not  treacherous under the law.  The suddenness and unexpectedness of the  act of seizing and holding the  victim, thereby depriving him of any offensive or defensive action from the first instant, are what characterize the treachery in the case  against Feria, this being also what distinguishes that case  from the pr wherein it does  not appear to be definitely demonstrated that the victi was seized and held suddenly or unexpectedly.

The judgment appealed from is  affirmed,  with the costs of this instance against the appellant.

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

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DISSENTING

TORRES, J,,

In spite of the  respect to which the opinion of the majority is entitle wholly of the opinion that the case at bar should be classified as murder, from the concurrence of the specific circumstance of treachery (alevosia) which appears to have been proven at the trial by  the testimony of Marciana Mamaboy,  who upon  hearing from her house the cries of the victim arose and then saw Tomas  Cueva at that instant withdrawing from the left side of the victim's abdomen the weapon  with which  he had attacked him, while Platon Cueva was holding him by the right arm; and that when she went to her husband, who was stretched out on the  ground mortally wounded,  he told  her that Tomas Cueva had inflicted the wound he had with a sharp pointed piece of bamboo, while Platon  Cueva had held him by the right arm.

This statement the victim, Jose Tilapan, repeated under oath before the justice,  of the peace, Antonio Minosa, who conducted the preliminary investigation, further adding, as he had shortly before said  to his wife he  felt very badly from the severity of his wound and that he was sure would die from it.

This statement under oath made a few moments before death by a person mortally wounded, who did in fact die a little  later, before competent authority,  constitutes along with  the testimony of  the  eyewitness Mamaboy complete and  definite proof of how the crime was committed.

Since  two witnesses watched  the  commission  of the crime, one of them the victim himself,  whose testimony goes back to the beginning  of the assault and is not open to question  in  view of the  circumstances under which  it was  given; and such proof  of the treachery (alevosia) corroborated  by the bad feeling  that  existed between the assailants an the victim, by the  presence of Platon  in the commission of the assault by the  bond  of relationship that unites them, I therefore believe that surviving defendant should be found guilty of murder, although in its min degree, by the  application of article  11 of the Penal Code as last amen