People vs. Beltran, G.R. No. L-31860, November 29, 1974

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-31860 November 29, 1974

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMELITO BELTRAN, defendant-appellant.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor Dominador L. Quiroz and Solicitor Simfronio I. Ancheta for plaintiff-appellee.

Tranquilino O. Calo, Jr. for defendant-appellant.

ANTONIO, J.:p

Appeal from the judgment of the Court of First Instance of Agusan dated May 13, 1969, finding appellant Amelito Beltran guilty of murder in Criminal Case No. 2769 and sentencing him to suffer the penalty of reclusion perpetua, with all the accessory penalties provided by law, to indemnify the heirs of Clemente Pingol in the sum of P6,000.00, and to pay the costs.

There appears to be no dispute as to the basic fact that on the evening of September 21, 1963, Clement Pingol was fatally shot from behind with a shotgun while he was in the sala of the unfinished house of Crisanto Tubo at Barrio Tagpangahoy of the Town of Tubay, Province of Agusan. A report of the incident reached the Chief of Police of Tubay and on the following day, September 22, 1963, Chief of Police Zotico Cepeda, Pat. Juanito Antiporda, Municipal Judge Edgardo Batitang, and Dr. Jose Encarnado, of Tubay, proceeded to the scene of the crime. They saw the body of Clemente Pingol sprawled on the floor of the sala in the unfinished house of Crisanto Tubo. As shown by the sketch (Exhibit "A") prepared by Pat. Antiporda, the house is situated 19 meters from the seashore, and consisted of a small sala which was completely open because it had no walls, and the living quarters on the western portion thereof which was enclosed with walls. On the western wall were found two pellet holes (Exhibits "E-3" and "E-4"). Northeast of the sala about four and a half (4-½) meters away was a coconut tree (Exhibit "A-6"). An autopsy on the deceased was performed. According to the necropsy report, the victim sustained eight (8) punctured wounds which were caused by shotgun pellets, the right lung was totally mutilated and the third right rib fractured. Death was due to internal hemorrhage as a consequence of the injury to the right lung and to the brain.

It was only on September 30, 1963, however, when Ernesto Dua and Raymundo Dua implicated Amelito Beltran as the person who fatally shot the deceased. On the basis of the statements of the Dua brothers, Sgt. Francisco Umbao of the constabulary filed, on October 1, 1963, with the Justice of the Peace Court of Tubay, a complaint for murder against appellant Amelito Beltran. Solely on the basis of the identification made by the Dua brothers, the court a quo found appellant guilty beyond reasonable doubt of murder and rendered the judgment heretofore adverted to.

Since the conviction of appellant was based on the testimonies of Ernesto Dua and Raymundo Dua, there is, therefore, a need to scrutinize carefully their respective testimonies. Raymundo Dua, 25 years of age, farmer of Tubay, Agusan, testified that at about 8:00 o'clock on the evening of September 21, 1963, while he was at the porch of their house at Bo. Tagpangahoy, Town of Tubay, Agusan, conversing with his brothers, mother and father, he saw appellant helping one Felimon Sandigan haul a banca from the sea to the shore; that afterwards, appellant walked past their house carrying a shotgun on his shoulders and proceeded directly towards the house of Crisanto Tubo and upon reaching a coconut tree in front of the house, concealed himself behind said tree and fired with his shotgun at Clemente Pingol; that at the time of the shooting, Pingol was then sitting and facing Crisanto Tubo with whom he was conversing; that Tubo was with his wife and adopted child; that appellant was then about three (3) arms length from Pingol when he fired the shot; that he could recognize the face of Amelito Beltran because of the light coming from a torch locally known as "moron"; that after shooting the victim, appellant Beltran fled from the scene by taking the same route, passing near the porch of the house of the witness; and on the following morning, he went to the house of Crisanto Tubo where the police were already investigating the incident and saw the body of the deceased still sprawled on the floor. On cross-examination, he indicated that their house was about fifty to sixty meters distant from that of Crisanto Tubo, and between those two houses was the unoccupied house of Eulogio Tilleno; that in spite of that distance, he claimed that he could distinctly hear the ordinary conversation going on between Tubo and Pingol who were talking and joking with each other for quite some time in the presence of Anselma, Tubo's wife; that at the time they were conversing, they were facing each other with the back of Clemente Pingol towards the coconut tree; that when he saw somebody aim a shotgun at Pingol, he did not shout because he was afraid; that he did not inform the police immediately of what he saw.

His younger brother, Ernesto Dua, gave substantially identical testimony.

I

The important question to be determined is whether the appellant was the person who perpetrated the offense. Examining carefully the evidence of the prosecution about the identity of the assailant, We find that the prosecution's evidence leaves much to be desired. The identity of the offender, like the crime itself, must be proven beyond reasonable doubt. The question of the identification of an accused as the perpetrator of an offense might seem to be the simplest that could possibly come before a court. But the fact is precisely the reverse. The question of identification has proved itself over and over again, by far, instead the most perplexing. As one court has observed: "There are few more difficult subjects with which the administration of justice has to deal. The carelessness or superficiality of observers, the rarity of powers of graphic description, and the different force with which peculiarities of form or color or expression strike different persons, make recognition or identification one of the least reliable of facts testified to even by actual witness who have seen the parties in question. ..." ¹

In the case at bar, the identification of appellant bears heavily on the reasonableness or probability of the testimony of these witnesses. It has been observed that the most positive testimony of a witness may be contradicted by the fact that the testimony is contrary to common observation or experience, ² or the common principles by which the conduct of mankind is governed. ³ The courts are not required to believe that which they judicially know to be incredible. ⁴

II

According to appellant, the credibility of the testimonies of Raymundo and Ernesto Dua is impaired by their apparent improbability. We agree. We find it highly improbable that appellant would make his presence so conspicuous to these witnesses by passing near them with a shotgun on his shoulders immediately before and even after shooting the victim. According to the prosecution witnesses, a person can bring his banca ashore immediately behind the house of Crisanto Tubo, and, therefore, can go to the coconut tree in front of Tubo's house without passing by the house of the Duas. It is quite incredible, therefore, that appellant, instead of taking the shorter and more direct route, should have taken the longer and more circuitous route by landing behind the house of the Dua brothers, then walk past the porch of their house where the Dua brothers were conversing with the rest of their family and in plain view of these people, proceed to the place of the victim.

Considering that visibility was practically nil, as according to the prosecution evidence, the night was so dark that a person ten meters away could not be seen, much less recognized, it is highly improbable that the Dua brothers could have distinctly recognized appellant who was allegedly hiding behind a coconut tree about fifty to sixty meters away. It is true that they claim that they were able to recognize appellant by the light of a torch ("moron"), but the infirmity of this assertion lies in the fact that an assassin hiding behind a coconut tree would certainly not expose his face to the light to enable others to identify and recognize him. Apart from this, according to the sketch prepared by the police (Exhibit "A"), the kerosene lamp was placed inside the sleeping quarters of Crisanto Tubo which was partly enclosed with walls, and not in the sala of the house where Tubo, with his wife and adopted child, were conversing with the victim. Considering the location of the lamp, its limited luminosity and the pitch-black darkness of the night, it is highly implausible that even with the aid of such light, Raymundo and Ernesto Dua could have positively recognized the face of an assailant hiding behind a coconut tree about fifty or sixty meters away. Moreover, if it were true that Crisanto Tubo was talking with Pingol at the time when the latter was shot from behind, it is evident that Tubo was in the best position to see the assailant, but it appears that this person was neither investigated nor questioned by the police in connection with the incident. This indicates that the assailant was able to conceal his presence in such a manner that even Tubo was not able to see him. It should be noted also that the conduct of these witnesses immediately after witnessing a startling occurrence shows lack of spontaneity and sincerity. Thus, after seeing a neighbor killed in a shocking manner, in an apparent indication of lack of concern, they continued chatting until nine o'clock that night, then retired and slept soundly, and although they saw the police authorities inquiring from the people there as to how and by whom the victim was killed, when they went to see the cadaver of the victim in the house of Tubo the following morning, they never bothered to inform the police of what they knew.

Q. After that conversation that night, you slept?

A. Yes, sir.

Q. So with Raymundo Dua you were able to sleep?

A. Raymundo Dua did not go to bed yet.

Q. You mean to say you left Raymundo Dua when you went to sleep?

A. No, sir, we were still conversing.

Q. Up to what time were you conversing in the evening?

A. Up to nine o'clock in the evening.

Q. And after nine o'clock you and Raymundo Dua and your parents went to sleep?

A. Yes, sir.

Q. And you woke up the next morning already?

A. Yes, sir.

Q. And when you woke up you had your breakfast?

A. Yes, sir.

Q. You did not go to your farm that morning?

A. No, sir.

Q. And you said you went to the house of Tubo that morning, you went there because you saw some persons and policemen going to the house of Tubo that morning, is it not?

A. Yes, sir.

Q. And when you went there you did not talk with anybody?

A. Nobody.

Q. And nobody talked to you?

A. Nobody.

Q. You feel uneasy on the witness stand, are you sick?

A. I have just recovered from malaria.

Q. On that morning after the incident, you did not go to the municipal building of Tubay, Agusan, is it not?

A. No, sir.

Q. As a matter of fact, when the policemen brought the body of Pingol to the municipal building you did not go with them?

A. I did not go.

Q. How about your brother Raymundo Dua, did he go with them or not?

A. He did not go. (t.s.n., April 15, 1968, pp. 41-42).

The testimony of Raymundo on this point is the same (t.s.n., April 3, 1968, p. 20):

Q. You went to the house of Tubo because you noticed there were already policemen there?

A. Yes, sir. .

Q. If you did not see any policemen, you would not have gone to the house of Tubo?.

A. That is right. .

xxx xxx xxx

Q. You did not bother to talk or give them any information?

A. No sir, I did not.

It should be noted that the Dua brothers themselves were also arrested as suspects in the commission of the crime and it was only then that they executed their respective statement implicating the appellant. This circumstance renders their motive in so incriminating appellant highly suspicions:

Q. Agusan, is it not?

A. Yes, sir.

Q. As a matter of fact, when the policemen brought the body of Pingol to the municipal building you did not go with them?

A. I did not go.

Q. How about your brother Raymundo Dua, did he go with them or not?

A. He did not go.

Q. From that date you did not go anymore or report the matter to what you narrated to the authorities in the municipal building of Tubay, Agusan?

A. We were arrested by the police.

Q. You were arrested because you were suspected as having shot Clemente Pingol?

A. Yes, sir.

Q. As a matter of fact the PC soldier told you that if you will not testify against Amelito Beltran you will be the one in jail, is it not?

A. Yes, sir.

Q. And because you were afraid that you will be sent to jail, you agreed to testify against Amelito Beltran?

A. Yes, sir.

Q. And when you were brought to the municipal building of Tubay you were told by the PC Sgt. Umbao to sign a certain paper or affidavit, is it not?

A. Yes, sir, he made us sign.

Q. And this is the affidavit which we request to be marked as Exhibit 2, which is found on pages 3 and 4 of the record, which Sgt. Umbao told you to sign, is it not?

A. Yes, sir.

Q. And after you signed, PC soldier Umbao told you that he will bring you to the judge and to tell the judge that the contents of this affidavit are true and you will answer yes, is that correct?

A. Yes, sir.

Q. And in compliance with his order, when you were brought before the judge and when the judge asked you whether the contents of the affidavit were true, you answered "Yes", is it not?

A. We were made to swear before him.

Q. And after you have appeared before Judge Batitang you were released and you were told to go home, is it not?

A. Yes, sir. (t.s.n., supra, pp. 42-43, Sanchez).

Finally, there is nothing in the record any fact or circumstance from which We can deduce or infer the existence of any possible motive on the part of appellant to commit this heinous crime. It is true that motive is not essential for the conviction of an accused where there is no doubt as to his identity as the culprit, but where the identification proceeds from an unreliable source and the testimony is inconclusive and not free from doubt, then evidence of motive becomes necessary. ⁵ Here, the identification of the appellant as the assailant of the victim is not convincing. In view of the unreliability of the identification of appellant, the defense of alibi interposed by him, therefore, assumes importance. According to appellant, he was in Barrio Lucbon of the said municipality from the afternoon of September 21, 1963 to the early morning of September 22, 1963 attending to the making of coprax for Ofemio Novero. This testimony was corroborated by Realino Botoy, a farmer and resident of Tubay, and by Ofemio Novero, the person who employed appellant. These witnesses also affirm that on the evening of September 21, 1963, it was dangerous to travel by means of a baroto or small banca from Lucbon to Tagpangahoy, the situs of the incident, as the tide was not only high but the waves were very big. Appellant also explained that prior to this incident, Ernesto and Raymundo Dua were ejected from the land of his grandfather because they stole his coconuts, which act the Duas must have resented.

While it is true that an "alibi is the weakest defense that an accused can avail of, it acquires commensurate strength where, as in this case, no positive and proper identification has been made by the witnesses of the offender. The prosecution has the onus probandi in establishing the guilt of the accused and the weakness of the defense does not relieve it of this responsibility." ⁶

Considering the aforecited infirmities of the testimonies of the prosecution witnesses, We are not satisfied that the constitutional presumption of innocence accorded to appellant has been overcome. To overcome that presumption, the guilt of appellant must be shown beyond reasonable doubt. While this does not connote absolute certainty, it means that degree of proof which after an investigation of the whole record, produces moral certainty in an unprejudiced mind of appellant's culpability. It signifies such proof "that convinces and satisfies the reason and conscience of those who are to act upon it" that the defendant is guilty of the crime charged. ⁷

As Justice Fernando emphasized: "The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime." ⁸

Accordingly, the judgment a quo is reversed, and the appellant, Amelito Beltran, is hereby acquitted. Costs de oficio.

Fernando (Chairman), Barredo, Fernandez and Aquino, JJ., concur.

Footnotes

1 Estate of Bryant, 176 Pa. 309, 318, 35 Atl. 571, 577 cited in Wall, Eye-Witness Identification in Criminal Cases, 1965 ed.

2 People vs. Vergara, 82 Phil., 207 People v. Bentley, 191 NE. 230, 357 Ill. 82, 98 C.J.S. p. 340, note 45.

3 People v. Sagayno, Nos. L-15961-62, October 31, 1963; Tierney v. Hotz, 55 A. 2d 39, 141 N.J. Eq. 114, 98 C.J.S. p. 341, note 46.

4 People v. Zapata, No. L-11074, February 27, 1960; Larsen v. Bliss, 91 P. 2d 811, 43 N.M. 265, 98 C.J.S., p. 341, note 47.

5 Cf. U.S. v. McMann, 4 Phil., 561; People v. Tagasa, 68 Phil., 153; People v. Caggavan, 94 Phil., 118; U.S. v. Suspense, et al., 102 Phil., 209, 210; People v. Murray, 105 Phil., 591; People v. Cunanan, 19 SCRA 769, 781; and People v. Herila, 51 SCRA 31.

6 People v. Baquiran, 20 SCRA 451, 460-61; and People v. Cruz, 32 SCRA 181, 187.

7 People v. Lavarias, L-24239, June 29, 1968; and People v. Dramayo, L-21325, October 25, 1971.

8 People v. Reyes, L-36874-76, September 30, 1974.

People vs. Tabije, G.R. No. L-36099, March 29, 1982

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-36099 March 29, 1982

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENITO S. TABIJE alias "BENNY," defendant-appellant.

ERICTA, J.:

For the killing of Crispin Ching on November 19, 1971 at Paoay, Ilocos Norte, Benito S. Tabije Marcos M. Madis and Paulino P. Bagarino were accused of Murder, allegedly attended by the circumstances of treachery, premeditation and abuse of superior strength.

On motion of the fiscal, the court dismissed the information with respect to Paulino Bagarino ¹ and Marcos M. Madis. ² Only Benito Tabije was tried. From the decision convicting Benito S. Tabije of Murder and sentencing him, among others, to life imprisonment, he now appeals to this Court.

The dramatis personae involved in this tragic incident are the appellant Benito S. Tabije, the deceased Crispin Ching, and the sisters, Anita and Lydia, both surnamed Bugarin. The Bugarin sisters are the first cousins of the appellant.

The deceased and Anita used to be sweethearts. They had planned to get married and in fact had applied for a marriage license in Paoay, Ilocos Norte. But the deceased was dissuaded from proceeding with the marriage plan by his elder sister, Teresita Ching.

The deceased himself sowed the seeds of the tragedy when he also courted Lydia, sister of Anita. Both Anita and Lydia became the sweethearts of the deceased Crispin Ching.

In the evening of November 19, 1971, the deceased Crispin Ching who resided at Laoag City went to Paoay, Ilocos Norte which is the residence of his two sweethearts. He had an appointment with Lydia Bugarin, Anita's sister, to see a movie in Paoay, Ilocos Norte. ³ As Crispin was waiting for Lydia Bugarin near the moviehouse, he met the appellant Benito S. Tabije who was with Marcos Madis, Paulino Bagarino and Benjamin Lacambra. Sometime later, Eleodoro Oaman arrived at the moviehouse. Oaman had been ordered by the appellant to fetch a bolo for him (appellant). Upon the arrival of Oaman the appellant took the bolo from him. ⁴

When Lydia Bugarin did not show up for her appointment, the appellant suggested to his companions that they accompany Crispin Ching to the house of the Bugarins. They all agreed except Benjamin Lacambra who preferred to stay behind. ⁵

The appellant wanted to bring Crispin Ching to the parents of the Bugarin sisters so that Ching would talk with the parents of Lydia and Anita about his intentions with the Bugarin sisters. ⁶

When they reached the road leading to the house of the Bugarins, the appellant told Crispin Ching to go ahead. The latter refused, saying he was ashamed. ⁷

The refusal of the deceased to proceed to the house of the Bugarins led to the fatal stabbing. The testimonies of the prosecution and the defense conflict on how the stabbing happened.

The version of the prosecution is that when the appellant and the deceased were approaching the house of the Bugarins, the deceased hesitated and said, "No, I do not like to go, I am ashamed." ⁸ Without warning, the appellant boxed the abdomen of Crispin Ching. The latter asked, "Why do you do that brother-in-law?" Instead of replying, the appellant stabbed Crispin Ching in his abdomen. Crispin Ching placed both his hands over his wound. The appellant stabbed him for the second time. Crispin Ching pleaded, "Please, forgive me my brother-in-law." Then he slumped to the ground. The appellant then grabbed Ching and dumped him into a 2-meter deep canal. ⁹

On the other hand, the defendant testified that when Crispin Ching refused to proceed to the house of the Bugarins, the appellant asked Ching three times why he did not like to go. But the deceased refused to answer. So the appellant "asked him further whether he (the deceased) was only fooling around with my cousins, because he first courted the sister of Lydia and then he is again courting Lydia and I wanted to know if he was fooling around with Lydia." ¹⁰

The deceased allegedly answered, "You have no business in this matter because you never gave me money to spend for this purpose. " Thereupon, the deceased allegedly boxed the appellant at the left breast. The appellant retaliated by boxing the deceased twice and "since he (Ching) challenged me (appellant) and wanted to fight me so I stabbed him twice, sir." ¹¹

The only issue raised by the appellant in this appeal is whether the crime is murder or homicide to which the defendant offered to plead guilty at the commencement of the trial. But the offer to plead guilty to a lesser offense was rejected by the fiscal who insisted that the crime committed was murder. ¹²

More specifically, the task before Us is to determine whether or not treachery attended the commission of the offense. We agree with the trial judge that there was treachery.

According to Eleodoro Oaman while they were on their way to the house of Anita Bugarin, Crispin Ching was walking with the appellant. There was no conversation between the two until they were near the house of the Bugarins when Crispin Ching said, "No, I do not like to go, I am ashamed. " ¹³ Without warning, the appellant boxed the abdomen of Crispin Ching. The latter asked, "Why do you do that brother-in-law." Instead of replying, the appellant stabbed him twice. Crispin Ching pleaded, "Please, forgive me, my brother-in-law. ¹⁴

Crispin Ching did not anticipate the attack. It was completely unexpected on his part. The appellant and his group deluded Crispin Ching into believing that they were his friends. The appellant called him "brother-in-law." They offered to escort him to the house of the Bugarins. ¹⁵ Because of these manifestations of friendship and concern, Crispin Ching was lulled into a false sense of security. Little did he know the fate that the appellant, his professed "brother-in-law," had prepared for him.

When an assault is made with a deadly weapon upon an unarmed and unsuspecting victim who has given no immediate provocation for the attack, and under conditions which make it impossible for him to evade the attack, flee, or make defense, the act is properly qualified as treacherous; and the homicide resulting therefrom is murder. (People vs. Fabian Ulita, et al, 108 Phil. 730)

The suddenness of the appellants' attack on their unprepared victim, who had met them with a friendly greeting just before being assaulted, leaves no doubt that the culprits took measures to forestall any danger to themselves, thereby making their crime murder qualified by alevosia. (People vs. Narciso de Gracia, et al, 18 SCRA 197, 207)

The appellant had a strong motive to kill the deceased. He felt that the deceased was just trifling with his two cousins.

Thus, when the deceased refused to proceed to the house of the Bugarins, the appellant demanded from the deceased "whether he was only fooling around with my cousins because he first courted the sister of Lydia (referring to Anita) and then he is again courting Lydia and I wanted to know if he was fooling around with Lydia." ¹⁶ Also, in his written affidavit dated November 24, 1971, ¹⁷ the appellant stated that on the night of November 19, 1971, he (appellant) met "one male person (Crispin Ching) whom they informed me to be the sweetheart of my cousins who are sisters." ¹⁸ The appellant invited the deceased Crispin Ching to the house of the Bugarins in order to know the intentions of the deceased with respect to the two sisters. But when the deceased refused to go to the house of the Bugarins, the refusal angered the appellant. This can be seen from Question and Answer No. 23 of Exhibit " M " which reads as follows:

Q — What happened next when Crispin Ching did not like to go to the house of Lydia because he is afraid of the father of Lydia Bugarin?

A — I talked to him and I told him (Crispin Ching) that I will be the one to talk to the father of Lydia but still he did not like again I talked to him and told him that he is making a fool out of them and that he did not utter a word so that I reiterated what I told him that he is making a fool out of them but he did not utter a word and I asked him for the third time if he is making a fool out of my cousins and he answered me that he is afraid of the father of Lydia and that I was not able to sense (sic) myself for I unsheathed my sharp-pointed bolo inside my pocket and I stabbed him twice.

While motive is not necessary for the conviction of a defendant who is positively Identified, nevertheless, it may be helpful in determining which of two conflicting theories is to be believed. In the instant case, the evidence for the prosecution tends to establish murder. On the other hand, the evidence for the defense tends to establish only homicide. The presence of a strong motive on the part of the appellant to kill the deceased makes the story of the prosecution that the crime was committed with treachery more credible.

On the other hand, the claim of the appellant that the deceased boxed him first lacks merit. In his statement found in Question and Answer No. 23 of Exhibit "M", the appellant stated, "I asked him (deceased) for the third time if he is making a fool out of my cousins and he answered me that he is afraid of the father of Lydia and that I was not able to sense (sic) myself for I unsheathed my sharp-pointed bolo inside my pocket and I stabbed him twice." In his affidavit (Exh. "M"), the appellant never mentioned the fact that the deceased boxed him first.

In another affidavit (Exh. "N") the appellant reiterated the aforequoted statement when he said, "And because I told him again, maybe you are fooling them and because he did not answer, I was not able to hold myself and I drew the knife from my pocket and thrust it twice at him." There is nothing also in Exh. "N" wherein the appellant stated that the deceased boxed him first.

The crime committed is murder with the qualifying circumstance of treachery, with neither aggravating or mitigating circumstances attending the commission of the offense.

WHEREFORE, the decision of the lower court being in accordance with the facts and the law of the case, We hereby affirm the same. With costs.

Barredo (Chairman), Aquino, Concepcion, Jr., De Castro and Escolin, JJ., concur.

Abad Santos, J., is on leave.

Footnotes

1 p. 22, Record.

2 p. 35, Record.

3 pp. 89-91, tsn, August 5, 1972.

4 pp. 23-26, tsn, March 23, 1972; pp. 89-90, 98, tsn, August 5, .1972.

5 pp. 26-27, tsn, March 23, 1972; pp. 91-94, tsn, August 5, 1972.

6 pp. 92-93, tsn, Id.

7 pp. 45-46, tsn, April 13, 1972.

8 pp. 45-46, tsn, Id.

9 pp. 29-31, 34-35, tsn, March 23, 1972.

10 p. 96, tsn, August 5, 1972.

11 pp. 95-97, tsn, August 5, 1972.

12 pp. 2-3, tsn, March 23, 1972.

13 pp. 45-46, tsn April 13, 1972.

14 pp. 29-31, March 23, 1972, tsn.

15 pp. 26-27, tsn, March 23, 1972.

16 p. 96, tsn, August 5, 1972.

17 Exh. "M", pp. 72-74, Record.

18 "Question and Answer No. 13, Exh. "M".

People vs. Mandapat, G.R. No. 76953, April 22, 1991

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 76953 April 22, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PONCIANO MANDAPAT, accused-appellant.

The Solicitor General for plaintiff-appellee.

Adolfo A. Angala for accused-appellant.

BIDIN, J.:p

This is an appeal from the decision * of the Regional Trial Court of Dagupan City, Branch 44, convicting accused/appellant of the crime of murder, the decretal portion of which reads:

WHEREFORE, the Court finds the accused Ponciano Mandapat guilty beyond reasonable doubt of the crime of murder under Article 248 of the Revised Penal Code and in view of the presence of the aggravate circumstances of taking advantage of superior strength and that the crime was committed in the dwelling of the victim which are not offset by any mitigating circumstance, hereby sentence(s) said accused Ponciano Mandapat to suffer the supreme penalty of Death and to indemnify the heirs of the deceased Crispula Nonan in the sum of P30,000 (sic) plus costs.

Accused Ponciano Mandapat is also ordered to pay actual damages in the sum of P2,548.00 and moral damages of P10,000.00 for the heirs of the deceased Crispula Nonan. (Rollo, p. 41)

On March 9, 1982, an information was filed against accused/appellant charging the latter with the crime of murder allegedly committed as follows:

That on or about October 5, 1977, in Barangay Barang, municipality of Malasiqui, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Pat. Ponciano Mandapat armed with a firearm, with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and shot one Crispula Carino-Nonan, thereby inflicting upon said Crispula C. Nonan three (3) gunshot wounds which caused her immediate death. . . . (Original Record, p.1)

Upon arraignment, accused pleaded not guilty. Thereafter, trial on the merits followed.

The prosecution established its case, among others, through the testimonies of Maria Razo-Montemayor, an eyewitness; Dr. Tomas Refe, a medico-legal officer of the NBI; and Rogelio Munar, a ballistician of the NBI.

Montemayor testified that at about 10:00 a.m., she saw the accused holding the hair of the deceased Crispula Nonan, and with a gun on his hand, shot her on the head. She could not recall how many shots were fired but upon hearing the first shot, she hurriedly went home, terrified.

Dr. Refe, on the other hand, testified that he recovered two slugs from the exhumed body of the deceased which he submitted to the ballistics section of the NBI for examination. The service firearm of accused/appellant, Tell Revolver Caliber .22 with Serial No. 66330, was likewise submitted to the NBI office to determine whether the slugs (evidence bullets marked "CN") taken from the body of the deceased were fired from the same revolver.

In Ballistics Report No. B-184-1177, Munar, the NBI ballistics expert reported that the "comparative examinations made between evidence bullet, Caliber .22 marked "CN" and the test bullets fired from the submitted Tell Revolver, Caliber .22 with SN-66330, revealed that they possess similar class and individual characteristic markings; said evidence bullet was fired through the barrel of this particular firearm." (Original Record, p. 9).

Appellant's defense is alibi. In support thereof, he testified that his tour of duty was that of night poblacion patrol from 8:00 p.m., October 4, 1977, to 4:00 a.m. of the following morning, October 5, 1977. At the end of his duty, he slept at the police barracks located at the back of the Malasiqui Municipal Building together with his companion, Pat. Jaime Cerezo, and woke up at about 11:30 a.m. His testimony was corroborated by Pat. Cerezo.

After trial, the court rendered judgment finding accused/appellant appellant guilty of the crime charged.

Appellant assigns the following errors:

THAT THE COURT GRAVELY ERRED IN CONVICTING THE ACCUSED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT AS SHOWN BY THE FOLLOWING CIRCUMSTANCES:

1) THE ALLEGED EYEWITNESS TO THE INCIDENT NOT CREDIBLE

2) BALLISTIC EXAMINATION DOUBTFUL

3) ALIBI OF ACCUSED STRONG AND NO MOTIVE TO KILL

4) EQUIPOSE RULE IN FAVOR OF ACCUSED

5) PRESUMPTION OF INNOCENCE NOT REBUTTED (Appellant's Brief, p. 12; Rollo, p. 61).

The appeal is devoid of merit.

1. It has been repeatedly held by this Court that the appellate courts will not disturb the factual findings of the trial court especially as to credibility of witnesses because the trial court is in a better position to examine real evidence as well as to observe the demeanor of the witnesses while testifying in the case. The trial court's finding on the credibility of witness is accorded greatest respect (People v. Tangliben, 184 SCRA 220 [1990]; People v. Marcos, 185 SCRA 154 [1990]; People v. Nabor, 185 SCRA 615 [1990] and a long line of cases).

The main objection of the defense is that the lower court relied heavily on the testimony of Montemayor as eyewitness, when the latter is only a substitute, the real eyewitness being Virgilio Nonan, who was killed by an unknown assailant (Original Records, pp. 40, 41 and 93). Appellant further argues that Montemayor was not included in the original list of prosecution witnesses and she testified six (6) years, two (2) months and 28 days, after the incident.

The argument is untenable. It will be recalled that Montemayor testified at length why she did not report what she knew about the case to the Malasiqui Police. She stated that she was afraid of the accused who was a policeman stationed at Malasiqui, Pangasinan. She mentioned that there were some killing incidents attributed to the accused (TSN, January 3, 1984, pp. 10-11). At the hearing, she was able to testify because the accused was detained already at the Provincial Jail and she was under the protection of the court (TSN, January 3, 1984, pp. 17-18). Further, she did not report the killing to the barangay officials because the barangay captain, Dionisio Mandapat, is the father of the accused.

Thus, the fact that the witness was in a state of mortal fear for her life cannot be seriously doubted, more so if one considers that one of the eyewitnesses has already been silenced by an unknown assailant.

As a general rule, the failure of a witness to report at once to the police authorities the crime he had witnessed cannot be taken against him (People v. Demate, 113 SCRA 353 [1982]) for "it is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case. The natural reticence of most people to get involved in a criminal case is of judicial notice" (People v. Pacabes, 137 SCRA 158 [1985]; People v. Coronado, 145 SCRA 250 [1986]) and the fear of eyewitnesses when townmates are involved in the commission of the crime is understandable for they may provoke reprisals from the accused (People v. Rosario, 134 SCRA 496 [1985]). The delay, when adequately explained, does not impair the credibility of the witness, as in the case at bar (People v. Cabanit, 139 SCRA 94 [1985]; People v. Millora, 119 SCRA 417 [1984]); neither will it render his testimony biased (People v. Itura, 129 SCRA 127 [1984]); nor will it destroy its probative value (People v. Millora, supra). Under the circumstances, We find the failure of the herein eyewitness Maria Razo-Montemayor to immediately present herself to the authorities and to relate the commission of the crime justifiable and consistent with normal behavior considering that the accused is a policeman.

Furthermore, Montemayor testified that she offered to testify during the investigation of the case but according to her, Fiscal Fernandez who was investigating the case was of the view at the time that the testimony of Virgilio Nonan, as an eyewitness, was sufficient (TSN, January 3, 1984, pp. 9-10). This accounts for her not being originally included as one of the prosecution witnesses.

At any rate, there is nothing that could prevent the prosecution from presenting witnesses in court not listed in the information, as it is well settled that the court has the undisputed right to call on a witness whose name does not appear in the list of the fiscal, unless the omission of said witness is intentional and tainted with bad faith (People v. Martinez, 127 SCRA 260 [1984]; People v. Valera, 15 SCRA 164 [1965]). The established rule is that the prosecution may call unlisted witnesses to testify (People v. Lacson, 1 SCRA 414 [1961]).

Moreover, the purpose of the listing of the names of the witnesses in the complaint or information is merely to avoid the presentation of surprise witness and to enable the defense to examine their record, morality and character, but once placed on the witness stand, it can no longer be disputed that the defense has already the opportunity to examine the character and credibility of the unlisted witness (People v. Morado, 4 SCRA 292 [1962]). Finally, it is beyond question, that it is the prosecution's privilege to present such number of witnesses it deems sufficient (People v. Quebral, 134 SCRA 425 [1985]).

2. Three (3) slugs were recovered from the body of the victim: one by Dr. Andaya, the Municipal Health Officer of Malasiqui, Pangasinan, and the other two (2) by Dr. Tomas Refe, Senior Medico-legal Officer of the NBI. All three (3) bullets, as evidence bullets, were sent first to the NBI and then to the PC-INP Crime Laboratory together with test bullets for ballistics examination to determine whether they were fired from Tell Revolver Caliber .22, with Serial No. 66330, which was the service gun of the accused at the time the crime as committed. As to the first bullet, marked "CN, the NBI concluded that said evidence bullet was fired through the barrel of the subject firearm (Ballistics Report No. B-184-1177, Original Records, p. 9) but the PC-INP Crime Laboratory, on the other hand, stated that no conclusion can be made whether or not the bullets in question marked "CN" and "CN-1" were fired from the same firearm.

Admittedly, there is a difference between the findings of the NBI and the PC-INP ballistics experts, but as correctly observed by the trial court, such fact does not militate against the case of the prosecution.

The accused was positively identified by the prosecution witnesses as the person who shot the deceased Crispula Nonan. The accused admitted that the Tell Revolver with Serial No. 66330 which was used in killing Nonan, was issued to him, and was taken from him only when he was being investigated by the PC in Bayambang (TSN, January 14, 1986, p. 34). Witness Rogelio Munar stated that the three (3) fired bullets are the same bullets that were fired from the same gun and which were also those taken by Dr. Tomas Refe from the three (3) gunshot wound of the victim during the exhumation (TSN, March 28, 1984, pp. 84-85).

Moreover, it will be noted that the second ballistic report of the PC-INP Crime Laboratory does not categorically deny that the evidence bullets extracted from the body of the deceased were fired from the .22 Caliber Tell Revolver, SN 66330. The two ballistic reports of the NBI which were concurred in by five (5) ballisticians who performed the required ballistics examinations individually and separately to serve as a check and to counter check their individual findings, are more accurate and credible than the individual and uncorroborated finding of Vicente R. de Vera, the ballistician of the PC-INP.

3. The accused interposed the defense of alibi. According to the accused, he was not at the scene of the crime when the same was committed because he was sleeping at the police headquarters at the back of the Municipal Hall from 5:00 a.m. to 10:30 a.m. with his companion Jaime Cerezo, after their tour of duty at 4:00 a.m.

Alibi as a defense is inherently weak. It can easily be contrived and may only be accepted with great caution and not with precipitate incredulity. In the case at bar, appellant's alibi, even if corroborated by Cerezo, does not inspire a scintilla of belief. Indeed, alibi may be fabricated even by those not related by blood (People v. Cabanit, supra, citing People v. Lumantas, 5 SCRA 157; People v. Pelagio, 20 SCRA 153; People v. Bulawin, 29 SCRA 710). In any event, it is axiomatic that the defense of alibi is unavailing where the accused is positively identified by one without motive to falsely charge the accused (People v. Marcos, supra; People v. Clores, 184 SCRA 638 [1990]; People v. Cabatlao, 108 SCRA 359 [1981]; People v. Demate, supra; People v. Plaza, 140 SCRA 277 [1985]; People v. Arbois, 138 SCRA 24 [1985]; People v. Casundo, 134 SCRA 197 [1985]).

To establish alibi, a defendant must not only show that he was present at some other place about the time of the commission of the alleged crime but that it was also physically impossible for him to have been at the place where the crime was committed either before, during or after the time he was at such other place (People v. Perante, Jr., 143 SCRA 56 [1986]; People v. Nabor, supra; People v. Munoz, 107 SCRA 313 [1981]; People v. Ganado, 116 SCRA 362 [1982]; People v. Gani, 139 SCRA 301 [1985]).

Appellant himself testified that the police barracks where he slept on October 5, 1977 was only three (3) kilometers away from the residence of the victim and that there was a road extending to about one (1) kilometer from the barracks which leads to the house of the deceased.

The defense has not shown that the distance of three (3) kilometers from the police barrack to the scene of the crime renders it impossible for the accused/appellant to be present there considering that there is a short cut to the place which is only one (1) kilometer and leads to the interior to reach the victim's house. A distance of one or two (2) kilometers from the scene of the crime does not exclude the possibility of the commission of the crime by the accused (People v. Araya, 105 SCRA 133 [1981]).

Undeniably, no motive for the killing of the victim has been shown by the prosecution, but motive is important only when the identity of the culprit is in doubt and not when he is positively identified by a credible witness (People v. Perante, Jr., supra). As the Court previously said, the absence of motive does not preclude the commission of the crime considering that nowadays, it is of judicial knowledge that others have been killed or assaulted for no reason at all (People v. Basadre, 128 SCRA 641 [1984]; citing People v. Reyno, 13 SCRA 647).

WHEREFORE, the decision under review is AFFIRMED with the modification that the penalty of death imposed by the trial court is reduced to life imprisonment (Sec. 19 [1], Art. III, Constitution) and the civil indemnity is increased from P30,000.00 to P 50,000.00. Costs against appellant.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Davide, Jr., JJ., concur.

People vs. Guillen, G.R. No. L-1477, January 18, 1950

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1477 January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULIO GUILLEN, defendant-appellant.

Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee.

PER CURIAM, J.:

This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of First Instance of Manila in case No. 2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable doubt of the crime of murder and multiple frustrated murder, as charged in the information, and is sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera (or Barrela) in the sum of P2,000 and to pay the costs.

Upon arraignment the accused entered a plea of not guilty to the charges contained in the information.

Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by the honorable Buenaventura Ocampo who, after the submission of the evidence of the prosecution and the defense, rendered judgment as above stated.

In this connection it should be stated that, at the beginning of the trial and before arraignment, counsel de oficio for the accused moved that the mental condition of Guillen be examined. The court, notwithstanding that it had found out from the answers of the accused to questions propounded to him in order to test the soundness of his mind, that he was not suffering from any mental derangement, ordered that Julio Guillen be confined for Hospital, there to be examined by medical experts who should report their findings accordingly. This was done, and, according to the report of the board of medical experts, presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the heading "Formulation and Diagnosis," at pages 13 and 14, reads:

FORMULATION AND DIAGNOSIS

Julio C. Guillen was placed under constant observation since admission. There was not a single moment during his whole 24 hours daily, that he was not under observation.

The motive behind the commission of the crime is stated above. The veracity of this motivation was determined in the Narcosynthesis. That the narco-synthesis was successful was checked up the day after the test. The narco-synthesis proved not only reveal any conflict or complex that may explain a delusional or hallucinatory motive behind the act.

Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen. He was found to be intelligent, always able to differentiate right from wrong, fully aware of the nature of the crime he committed and is equally decided to suffer for it in any manner or form.

His version of the circumstances of the crime, his conduct and conversation relative thereto, the motives, temptations and provocations that preceded the act, were all those of an individual with a sound mind.

On the other hand he is an man of strong will and conviction and once arriving at a decision he executes, irrespective of consequences and as in this case, the commission of the act at Plaza Miranda.

What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This is seen not only in the present instance, but sometime when an employee in la Clementina Cigar Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to abuse the women cigar makers, and felt it his duty to defend them. One time he ran after a policeman with a knife in hand after being provoked to a fight several times. He even challenged Congressman Nueno to a fight sometime before when Mr. Nueno was running for a seat in the Municipal Board of the City of Manila, after hearing him deliver one of his apparently outspoken speeches.

All these mean a defect in his personality characterized by a weakness of censorship especially in relation to rationalization about the consequences of his acts.

In view of the above findings it is our considered opinion that Julio C. Guillen is not insane but is an individual with a personality defect which in Psychiatry is termed, Constitutional Psychopathic Inferiority.

Final Diagnosis

Not insane: Constitutional Psychopathic Inferiority, without psychosis.

In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one Dr. Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that Guillen, not being insane, could be tired, as he was tired, for the offenses he committed on the date in question.

THE FACTS

Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor General and their respective memoranda, we find that there is no disagreement between the prosecution and the defense, as to the essential facts which caused the filing of the present criminal case against this accused. Those facts may be stated as follows:

On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with any particular political group, has voted for the defeated candidate in the presidential elections held in 1946. Manuel A. Roxas, the successful candidate, assumed the office of President of the Commonwealth and subsequently President of the President of the Philippine Republic. According to Guillen, he became disappointed in President Roxas for his alleged failure to redeem the pledges and fulfill the promises made by him during the presidential election campaign; and his disappointment was aggravated when, according to him, President Roxas, instead of looking after the interest of his country, sponsored and campaigned for the approval of the so-called "parity" measure. Hence he determined to assassinate the President.

After he had pondered for some time over the ways and means of assassinating President Roxas, the opportunity presented itself on the night of March 10, 1947, when at a popular meeting held by the Liberal Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd, President Roxas, accompanied by his wife and daughter and surrounded by a number of ladies and gentlemen prominent in government and politics, stood on a platform erected for that purpose and delivered his speech expounding and trying to convince his thousand of listeners of the advantages to be gained by the Philippines, should the constitutional amendment granting American citizens the same rights granted to Filipino nationals be adopted.

Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said firearm, which was duly licensed, he thought of two hand grenades which were given him by an American soldier in the early days of the liberation of Manila in exchange for two bottles of whisky. He had likewise been weighing the chances of killing President Roxas, either by going to Malacañan, or following his intended victim in the latter's trips to provinces, for instance, to Tayabas (now Quezon) where the President was scheduled to speak, but having encountered many difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on the night of March 10, 1947.

On the morning of that he went to the house of Amando Hernandez whom he requested to prepare for him a document (Exhibit B), in accordance with their pervious understanding in the preceding afternoon, when they met at the premises of the Manila Jockey Club on the occasion of an "anti-parity" meeting held there. On account of its materially in this case, we deem it proper to quote hereunder the contents of said document. An English translation (Exhibit B-2) from its original Tagalog reads:

FOR THE SAKE OF A FREE PHILIPPINES

I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by myself alone. It took me many days and nights pondering over this act, talking to my own conscience, to my God, until I reached my conclusion. It was my duty.

I did not expected to live long; I only had on life to spare. And had I expected to lives to spare, I would not have hesitated either ton sacrifice it for the sake of a principle which was the welfare of the people.

Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and there are millions now suffering. Their deeds bore no fruits; their hopes were frustrated.

I was told by my conscience and by my God that there was a man to be blamed for all this: he had deceived the people, he had astounded them with no other purpose than to entice them; he even went to the extent of risking the heritage of our future generations. For these reasons he should not continue any longer. His life would mean nothing as compared with the welfare of eighteen million souls. And why should I not give up my life too if only the good of those eighteen million souls.

These are the reasons which impelled me to do what I did and I am willing to bear up the consequences of my act. I t matters not if others will curse me. Time and history will show, I am sure, that I have only displayed a high degree of patriotism in my performance of my said act.

Hurrah for a free Philippines.

Cheers for the happiness of every Filipino home.

May God pity on me.

Amen.

JULIO C. GUILLEN

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew, was handed to him only at about 6 o'clock in the afternoon of March 10, 1947, for which reason said Exhibit B-1 appears unsigned, because he was in a hurry for that meeting at Plaza de Miranda.

When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag which also contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot located close to the platform, and when he decided to carry out his evil purpose he stood on the chair on which he had been sitting and, from a distance of about seven meters, he hurled the grenade at the President when the latter had just closed his speech, was being congratulated by Ambassador Romulo and was about to leave the platform.

General Castañeda, who was on the platform, saw the smoking, hissing, grenade and without losing his presence of mind, kicked it away from the platform, along the stairway, and towards an open space where the general thought the grenade was likely to do the least harm; and, covering the President with his body, shouted to the crowd that everybody should lie down. The grenade fell to the ground and exploded in the middle of a group of persons who were standing close to the platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the fragments of the grenade had seriously injured Simeon Varela (or Barrela ) — who died on the following day as the result of mortal wounds caused by the fragments of the grenade (Exhibits F and F-1) — Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.

Guillen was arrested by members of the Police Department about two hours after the occurrence. It appears that one Angel Garcia, who was one spectators at that meeting, saw how a person who was standing next to him hurled an object at the platform and, after the explosion, ran away towards a barber shop located near the platform at Plaza de Miranda. Suspecting that person was the thrower of the object that exploded, Garcia went after him and had almost succeeded in holding him, but Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia pursued him, but some detectives, mistaking the former for the real criminal and the author of the explosion, placed him under arrest. In the meantime, while the City Mayor and some agents of the Manila Police Department were investigating the affair, one Manuel Robles volunteered the information that the person with whom Angel Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen for the previous ten years and had seen each other in the plaza a few moments previous to the explosion.

The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the occurrence, found in his home at 1724 Juan Luna Street, Manila, brought to the police headquarters and identified by Angel Garcia, as the same person who hurled towards the platform the object which exploded and whom Garcia tried to hold when he was running away.

During the investigation conducted by the police he readily admitted his responsibility, although at the same time he tried to justify his action in throwing the bomb at President Roxas. He also indicated to his captors the place where he had hidden his so called last will quoted above and marked Exhibit B, which was then unsigned by him and subsequently signed at the police headquarters.

Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of witnesses he signed a statement which contained his answers to question propounded to him by Major A. Quintos of the Manila Police, who investigated him soon after his arrest (Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies exactly with the declarations and made by him on the witness stand during the trial of this case.

THE ISSUES

In the brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly committed by the trial court, namely: first, "in finding the appellant guilty of murder for the death of Simeon Varela"; second, "in declaring the appellant guilty of the complex crime of murder and multiple frustrated murder"; third, "in applying sub-section 1 of article 49 of the Revised Penal Code in determining the penalty to be imposed upon the accused"; and fourth, "in considering the concurrence of the aggravating circumstances of nocturnity and of contempt of public authorities in the commission of crime."

The evidence for the prosecution, supported by the brazen statements made by the accused, shows beyond any shadow of doubt that, when Guillen attended that meeting, carrying with him two hand grenades, to put into execution his preconceived plan to assassinate President Roxas, he knew fully well that, by throwing one of those two hand grenades in his possession at President Roxas, and causing it to explode, he could not prevent the persons who were around his main and intended victim from being killed or at least injured, due to the highly explosive nature of the bomb employed by him to carry out his evil purpose.

Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of transcript) supports our conclusion. He stated that he performed the act voluntarily; that his purpose was to kill the President, but that it did not make any difference to him if there were some people around the President when he hurled that bomb, because the killing of those who surrounded the President was tantamount to killing the President, in view of the fact that those persons, being loyal to the President being loyal to the President, were identified with the latter. In other word, although it was not his main intention to kill the persons surrounding the President, he felt no conjunction in killing them also in order to attain his main purpose of killing the President.

The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide through reckless imprudence in regard to the death of Simeon Varela and of less serious physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be sentenced to the corresponding penalties for the different felonies committed, the sum total of which shall not exceed three times the penalty to be imposed for the most serious crime in accordance with article 70 in relation to article 74 of the Revised Penal Code.

In throwing hand grenade at the President with the intention of killing him, the appellant acted with malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal liability is incurred by any person committing felony (delito) although the wrongful act done be different from that which he intended. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be qualified as imprudence it is necessary that either malice nor intention to cause injury should intervene; where such intention exists, the act should qualified by the felony it has produced even though it may not have been the intention of the actor to cause an evil of such gravity as that produced.' (Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence. (People vs. Gona, 54 Phil., 605)

Squarely on the point by counsel is the following decision of the Supreme Court of Spain:

Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose negado este a darselo al fiado, se retira a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un arma de fuego disparada por A desde la calle, quedando muertos en el acto C y el estanquero; supuesta la no intencion en A de matar a C y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de c de imprudencia temeraria? — La Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y condeno al procesado a catorse anos de reclusion por el homivcidio y a un año de prision correctional por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de assesinato y no de homicidio, por haberse ejecutado con aleviosa. es evidente que la muerte de C, suponiendo que no se propusiera ejecutaria el procesado, no pudo calificarse de imprudencia teme raria, sino que tambien debio declararsele responsable de la misma, a tenor de lo puesto en este apartado ultimo del articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues, claramente que en el antedicha sentencia, aparte de otros articulos del Codigo, se infringio por la Sala la disposicion de este apartado ultimo del articulo muy principalmente, y asi lo declaro el Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)

Article 48 of the Revised Penal Code provides as follows:

Art. 48. Penalty for Complex Crimes. — When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.

We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us is clearly governed by the first clause of article 48 because by a single act, that a throwing highly explosive hand grenade at President Roxas, the accused committed two grave felonies, namely: (1) murder, of which Simeon Varela was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the injured parties.

The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of People vs. Mabug-at, supra, this court held that the qualifying circumstance of treachery may be properly considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the two persons could in any manner put up defense against the attack, or become aware of it. In the same case it was held that the qualifying circumstance of premeditation may not be properly taken into the account when the person whom the defendant proposed to kill was different from the one who became his victim.

There can be no question that the accused attempted to kill President Roxas by throwing a hand grenade at him with the intention to kill him, thereby commencing the commission of a felony by over acts, but he did not succeed in assassinating him "by reason of some cause or accident other than his own spontaneous desistance." For the same reason we qualify the injuries caused on the four other persons already named as merely attempted and not frustrated murder.

In this connection, it should be stated that , although there is abundant proof that , in violation of the provisions of article 148 of the Revised Penal Code, the accused Guillen has committed among others the offense of assault upon a person in authority, for in fact his efforts were directed towards the execution of his main purpose of eliminating President Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his official capacity as the Chief Executive of the nation the hand grenade in question, yet, in view of the appropriate allegation charging Guillen with the commission of said offense, we shall refrain making a finding to that effect.

The complex crimes of murder and multiple attempted murder committed by the accused with the single act of throwing a hand grenade at the President, was attended by the various aggravating circumstances alleged in the information, without any mitigating circumstance. But we do not deem it necessary to consider said aggravating circumstances because in any event article 48 of the Revised Penal Code above-quoted requires that the penalty for the most serious of said crimes be applied in its maximum period. The penalty for murder is reclusion temporal in its maximum period to death. (Art. 248.)

It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it upon the facts and circumstances hereinabove narrated.

The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do so by a unanimous vote. The death sentence shall be executed in accordance with article 81 of the Revised Penal Code, under authority of the Director of Prisons, on such working day as the trial court may fix within 30 days from the date the record shall have been remanded. It is so ordered.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.