Geluz vs. Court of Appeals, G.R. No. L-16439, July 20, 1961

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.

REYES, J.B.L., J.:

This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate dissenting opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the following article". In the present case, there is no dispute that the child was dead when separated from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary; and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.

People vs. Mision, G.R. No. L-63480, February 26, 1991

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-63480 February 26, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUIS MISION y SALIPOT, accused-appellant.

The Solicitor General for plaintiff-appellee.

Florante M. De Castro for accused-appellant.

FELICIANO, J.:p

The accused Luis Mision y Salipot is before us on appeal from the decision of the Court of First Instance, Branch I, Masbate, convicting him of the complex crime of murder with frustrated murder and sentencing him to reclusion perpetua.

Appellant was the accused in Criminal Case No. 2029 in an information which read as follows:

The undersigned Asst. Provincial Fiscal accuses Luis Mision y Salipot of the crime of Murder with Frustrated Murder, committed as follows:

That on or about October 24, 1978, in the evening thereof, at poblacion of the Municipality of Esperanza, Province of Masbate, Philippines, within the jurisdiction of this court, the said accused with intent to kill, evident premeditation and treachery did then and there willfuly, unlawfully and feloniously attack, assault and stab with a bladed instrument Mercy Dagohoy hitting the latter on the left shoulder and Luciana Dagohoy also hitting her on the chest, thereby inflicting [a] wound which caused the death of said Luciana Dagohoy several days thereafter; thus performing all the acts of execution which would have produced the crime of murder, as a consequence but nevertheless did not produce it by reason of causes independent of the will of the accused, that is by the timely and able medical attendance rendered to said Mercy Dagohoy which prevented her death.

Contrary to law. ¹

The accused entered a plea of not guilty with the assistance of counsel de oficio during arraignment on 2 April 1979. ²

After trial, the lower court rendered a decision dated 26 August 1981 finding the accused guilty of the crime charged. The dispositive portion of the decision states:

WHEREFORE, premises considered, the guilt of the accused Luis Mision, having been proved beyond reasonable doubt, of the crime of Murder with Frustrated Murder, he is hereby sentenced to suffer the penalty of reclusion perpetua, together with all the accessory penalties provided for by law, to indemnity the heirs of Luciana Dagohoy the amount of TWELVE THOUSAND (P12,000.00) PESOS, without subsidiary imprisonment in case of insolvency and to pay the costs of the suit.

xxx xxx xxx

SO ORDERED. ³

Appellant, in his Brief, makes the following assignment of errors:

1. The trial court erred in giving undue weight and credit to the highly improbable testimonies of the witnesses for the prosecution which are reeking with inherent self-inconsistencies on material points and which are inconsistent with human experience and against the natural course of things.

2. The trial court erred in giving every ounce of benefit to the prosecution and in not resolving even a gram of doubt in favor of the defense.

3. The trial court erred in finding the herein accused-appellant guilty of the offense charged in the information which he had never committed and in not acquitting him when his innocence had been established. ⁴

The facts as found by the lower court are as follows:

The prosecution through its evidence endeavored to show that at noontime on October 24, 1978, the accused sought to buy drinks on credit from Luciana Dagohoy at Esperanza, Masbate. Luciana Dagohoy had a small store adjacent to her house. She refused the accused.

At about 7:30 o'clock in the evening of said day, as Lelith (Mercy) Dagohoy, a niece of Luciana, was about to close the door of the store for the nights, the accused pushed it open. Once inside, he immediately stabbed Lelith on her left shoulder. The latter fell down. Thereafter, the accused approached Luciana, who was sitting some three (3) meters away, and likewise stabbed her, hitting her on the right breast. When Lelith saw her aunt being stabbed, she became unconscious. Meanwhile the accused fled. He used a knife eight (8) inches long.

When Lelith regained consciousness, she heard her aunt shouting for help. Some neighbors responded. Soon Policeman Becamon of the Esperanza Integrated National Police came. He brought the two wounded victims to the Cataingan Emergency Hospital at Cataingan, Masbate, arriving there at about 2:00 o'clock in the morning of October 25, 1978. That morning, Policeman Gavino Castro, Jr. of the Cataingan Integrated National Police interviewed the two wounded victims. He reduced this in writing, duly signed by the two victims. In both documents, the accused, Luis Mision, was identified as the assailant.

On October 26, 1978, Luciana Dagohoy died of septicemia or blood poisoning which set in twenty-four hours after the infliction of the injury, and hemorrhage due to the stab wounds.

Lelith was discharged from the hospital after five (5) days.

xxx xxx xxx

In the afternoon of October 25, 1978, Mision was summoned to the municipal building of Esperanza for investigation. During the investigation, the INP Command of Esperanza received a wire from Cataingan, Masbate, apparently in connection with the investigation of the two victims by a member of the Cataingan INP Command. Mision has been detained since then. ⁵

Appellant interposed the defense of alibi before the trial court. He testified he never went to the store of the victims either in the afternoon or evening of 24 October 1978. He admitted he had known the victims for more than three (3) years; he had regularly served as a porter of goods sold at the Dagohoys' store. ⁶

Dr. Alfonso Almanzor, the resident physician of Cataingan Emergency Hospital who treated the Dagohoys, testified that Luciana Dagohoy was "stretcher borne", "alive but stuporous" when admitted at about 2:55 a.m. on 25 October 1978. ⁷ He described her injury in the medico-legal certificate he prepared in the following terms:

Stab wound 1.3 inches along the sternal line over the level of the second right ICS penetrating the thoracic cavity. ⁸

The victim was in serious condition at the time and was placed in the intensive care ward of the hospital. She was revived and, her condition stabilized, she could communicate with other people. However, blood poisoning set in about twenty-four (24) hours after she had sustained her stab wound and Luciana Dagohoy died on 27 October 1978. ⁹

Dr. Almanzor testified further that Merceda Dagohoy was ambulatory when admitted with an injury described as follows:

Stab wound one (1) inch long muscular deep, over the (L) supraclavicular area. ¹⁰

Patrolman Gavino Castro, Jr. testified that in the morning of 25 October 1978, his office, the INP of Cataingan, Masbate, received a communication from the Station Commander of the police station at Esperanza requesting that his office obtain ante mortem statements from the victims of the stabbing incident. He proceeded to the hospital, arriving there at about 9:30 a.m. In the presence of one Restituto Lim, he took the statement of Luciana Dagohoy in the Visayan dialect which was known to her, translating his questions and her answers into English before writing them down in a document which came to be offered and admitted as Exhibit "E" for the prosecution.

It appears from Exhibit "E" that Luciana, in great pain, identified the accused as her assailant. Pat. Castro admitted in court that he could not remember if Luciana was conscious of her impending death at the time he took her statement. He likewise admitted that he was related by marriage to one of the victims, his wife being another niece of Luciana Dagohoy. ¹¹ The record does not indicate that Restituto Lim was presented in court to corroborate or complement Pat. Castro's testimony regarding the circumstances under which Luciana Dagohoy gave her dying declaration.

We agree with the trial court that Luciana's statement is entitled to credence and constitutes sufficient basis for concluding that she had positively identified her assailant. The statement bears all the earmarks of a dying declaration. ¹² Appellant implicitly recognized this fact when he failed to impugn its admissibility either before the trial court or in this appeal.

Pat. Castro took the statement of Merceda Dagohoy on the same occasion. In court, this victim, thirteen (13) years of age, affirmed the contents of her statement by positively identifying the accused as the person who stabbed her and her aunt:

Q All right. On Oct. 24, 1978 at about 7:30 o'clock in the evening, do you remember where you were?

A In my house.

Q You mean in the house of your aunt, Luciana Dagohoy?

A Yes, sir.

Q On that date and time, do you remember of any unusual incident that happened in that house?

A Yes, sir.

Q Please tell us what happened there?

A Luis Mision entered our house and then stabbed me and my aunt.

Q This Luis Mision you have just mentioned stated (sic) whether he is now in court?

A Yes, sir.

Q Will you point to a man who Identified himself as Luis Mision? (sic)

A Witness pointed to a man who Identified himself as Luis Mision.

Q Why do you know the accused Luis Mision?

A Because he is also from our place.

Q Now you said that this Luis Mision entered your house and stabbed you and your auntie, who first was stabbed, you or your auntie?

A I. ¹³

Appellant assails what he asserts to be improbable testimony of Merceda Dagohoy. He finds it strange that Merceda, in her narrative, would state that Luciana shouted for help after, rather than before or while being, stabbed. Furthermore, Merceda said she fainted after being stabbed; but later, realizing she could not have seen her aunt stabbed if this was so, corrected herself by saying she fainted after seeing her aunt stabbed. Merceda could not have clearly witnessed the attack, appellant argues, because she could not recall the names of the persons who answered her aunt's call for help nor informed these persons, or those in the hospital, that she had recognized the accused as the assailant. The contention of appellant is that Merceda, uncertain of the identity of the assailant, belatedly identified the accused only upon suggestion of Pat. Castro; that the latter had fixed his suspicions on the accused because blood stains had been found behind the Esperanza municipal building leading to the accused's house; and that Pat. Castro had informed Merceda to convince her that the accused was her probable assailant. ¹⁴

It is evident from the transcript that the inconsistencies in Merceda Dagohoy's testimony refer to minor details which strengthen rather than weaken her credibility as a witness for they indicate she was not coached. The transcript reveals a witness of tender age who was subjected to prolonged cross-examination and yet, instinctively, was able to give answers explaining the inconsistencies, omissions and supposed improbabilities of her testimony. We agree with the trial court that she was telling the truth.

There is nothing improbable about Luciana's belated call for help. The violence and suddenness of the attack must have shocked her into inaction during its commission. It is merely speculative for the defense to say that Merceda was instantaneously adjusting her testimony on the stand to make it appear she actually saw the accused stab her aunt. It is clear to us that she was merely restating with more precision what she had really seen in response to the specific questions of the defense counsel during cross-examination. Merceda's identification of the accused was not belated at all. She saw her aunt stabbed; she herself was stabbed. Bleeding, weakening and in pain from her own shoulder wound, she had to undergo a seven (7)-hour nighttime trip to Cataingan for treatment, probably apprehensive all the way that her injury might prove fatal. At the hospital, all attention was focused at stabilizing their condition. By mid-morning of the next day, 25 October 1978, however, Merceda was able to give a statement to Pat. Castro. Merceda's knowledge of the blood stains behind the Esperanza municipal building certainly came from the results of the police investigation. But she had shown in her testimony, corroborated by the accused's own testimony, that she had dealt with and had come to know the accused during the time he had worked as a porter for their store. Such acquaintance was quite sufficient to have enabled her to recognize easily the accused during the stabbing, rendering redundant any alleged police suggestion on the identity of the probable assailant.

Appellant also impugns the credibility of Dr. Almanzor and Pat. Castro on the ground that their testimony, in relation to each other and to Merceda's testimony, was vitiated by material inconsistencies. Again, it appears to us that these uncertainties refer to details which reinforce the reliability of these witnesses. The alleged uncertainties pointed out do not in any way weaken Merceda's crucial testimony positively identifying the accused as the assailant.

Appellant further sought to impugn the credibility of Pat. Castro as a witness because he was related to the victims by marriage. We believe that the testimony of a witness is not, for that reason alone, necessarily flawed or to be denied any weight. The trial court correctly subjected such testimony to the ordinary processes of evaluation and assigned to it the weight said court deemed proper. This Court has no basis for rejecting such evaluation and weighing. The trial court had observed the demeanor of these three (3) prosecution witnesses while under examination. Its finding on the credibility of these witnesses binds us, there being no circumstance evident in the record which would compel us to disregard the same. ¹⁵

We do not think that appellant's defense of alibi avails him anything. In the first place, appellant's alibi, a defense inherently weak and difficult, cannot stand up against the positive identification of appellant as the doer of the crimes made by Merceda Dagohoy and Luciana Dagohoy's dying declaration. ¹⁶ In the second place, appellant's house where he supposedly was at the time of the stabbing of Luciana and Merceda Dagohoy, was only about 300 meters away from the scene of the crime, ¹⁶A a distance that a mature man in reasonable health can traverse in minutes. There was, in other words, no impossibility of appellant's committing the crimes involved here and then repairing to his own house. Thus, the trial court correctly rejected the defense.

We agree with the trial court that Luciana Dagohoy's dying declaration, corroborated by Merceda Dagohoy's testimony, is sufficient to produce moral certainty of the guilt of the accused. ¹⁷ In fact, we believe appellant's conviction may be sustained even without Luciana Dagohoy's dying declaration. The testimony of Merceda Dagohoy would have been sufficient, "it having been declared by this Court that the testimony of a single witness, when credible, is sufficient to convict." ¹⁸

We turn to the proper characterization of the offense(s) for which the accused should be held liable. The trial court found that accused had committed the complex clime of murder with frustrated murder, saying:

The assault mounted by the accused was simultaneous. After stabbing Lelith, he stabbed Luciana. It is the opinion of the Court that the assault was executed under one single impulse, resulting in the wounding of the two victims, which clearly constitutes a complex crime. (People vs. Lawas, et al., 97 Phil. 975). Again, when for the attainment of a single purpose, which constitutes an offense, various acts are executed, such acts must be considered as only one offense, a complex one. Various acts committed under one criminal impulse may constitute one single complex offense. (People v. Pincalin, et al., G.R. No. L-38755, January 22, 1981, citing People v. Peñas, 66 Phil. 682 and People v. Abella, L-22205, August 31, 1979). Such being the case, the penalty applicable should be that of the more serious offense, in its maximum. ¹⁹

The Solicitor General contends that the two (2) offenses imputed to the appellant cannot be treated as a single offense because the manner in which he committed them prevented them from constituting a complex crime under either of the two (2) ways by which multiple offenses may be "complexed" under Article 48 of the Revised Penal Code. ²⁰

We agree with the Solicitor General. The trial court characterized the acts of the appellant as a delito compuesto, the complex crime defined under the first clause of Article 48. In the present case, however, the evidence established that appellant inflicted a stab wound on each of the two (2) victims who were separated from each other by a distance of three (3) meters. There were, in other words, two (2) distinct acts, directed at two (2) different victims successively, separated from each other by a brief but discernible interval of time and space. A delito compuesto, in contrast, arises from a single physical act resulting in simultaneous (or almost simultaneous) injury to two (2) or more victims. The two (2) distinct offenses here having arisen from two (2) distinct physical acts, such offenses cannot be characterized as constituting a delito compuesto. ²¹

Reliance by the trial court on the single impulse principle enunciated in the cases cited by it is misplaced. In People v. Remollino, ²² we had occasion to characterize the Lawas ruling as predicated upon the peculiar circumstances of the case which gave rise to it. Therein the accused and other members of the Home Guard fired upon a large group of Maranaos at a signal from Lawas and continued firing until Lawas gave a ceasefire signal. About fifty (50) Maranaos were killed. However, there was no evidence at all showing the identity or number of persons killed by each accused. Instead of holding each accused responsible for a specific death or deaths or for fifty (50) deaths, the Court was "forced" to find all the accused guilty of only one offense of multiple homicide. In the case at bar, the evidence established that appellant, acting alone, stabbed two (2) victims, one after the other, by two (2) (or at least two) distinct knife thrusts.

The case of People v. Pincalin, ²³ also cited by the trial court, is so different in its facts that it is obviously inapplicable to the case at bar. We reserve to another occasion the discussion and possible re-examination of the apparent doctrine in that case.

The trial court found that the qualifying circumstance of treachery attended the attack upon the Dagohoys, holding that:

With respect to treachery, the same is said to exist when the aggressor adopted a mode of attack intended to facilitate the commission of the crime without risk to himself (Bernabe vs. Bolinas Jr., 18 SCRA 812).

In the case at bar, the assault was mounted by the accused against his victims in such a manner that caught them by surprise. It was so swift that they were unable to even defend themselves, armed as they were, or to flee from the culprit. The attack was clearly a treacherous one. This circumstance qualified the crime to Murder. ²⁴

It appears from the evidence that appellant timed his murderous visit to the store of the Dagohoys at closing time, that is, a time when it was likely there would be no other persons in the vicinity of the store who could have witnessed the assault or interfere with the same. In other words, the appellant consciously adopted a mode of attack designed to facilitate the killing without risk to himself. In addition, as pointed out by the trial court, the surprise attack upon the two (2) women was carried out so swiftly that they were unable to defend themselves or to flee from the attacker. We believe that alévosia was properly found in the instant case.

The evidence also established that appellant had inflicted the stab wound on the shoulder of Merceda Dagohoy. Initially, Dr. Almanzor estimated that Merceda would require medical treatment for a period from seven (7) to fourteen (14) days. The defense now attempts to suggest that the injury upon the person of Merceda was merely "superficial" and that it was improper for the trial court to convict appellant of the crime of frustrated murder. The difficulty with this contention is that the evidence showed that secondary infection had set in within twenty four (24) hours of the time Merceda and Luciana were stabbed and that the hospital to which they were taken was seven (7) hours away from the scene of the attack. Merceda was in fact discharged from the hospital after five (5) days confinement. Even so, we agree with the trial court that the assault upon Merceda constituted frustrated murder, her relatively quick recovery being the result of prompt medical attention which prevented the infection in the wound from reaching fatal proportions which would otherwise have ensued.

We turn to the penalties imposable on appellant for the separate offenses he committed. The penalty prescribed by law for the consummated offense of murder is reclusion temporal maximum to death. ²⁵ There being no modifying circumstances present in this case, the appropriate penalty imposable on appellant for the death of Luciana Dagohoy would be the medium period, i.e., reclusion perpetua. ²⁶

The penalty provided by law for the crime of frustrated murder is prision mayor maximum to reclusion temporal medium, the penalty next lower in degree to that prescribed by law for the consummated offense. There being no modifying circumstance present, the appropriate penalty imposable on appellant would be the medium period, i.e., reclusion temporal minimum. The proper penalty after giving effect to the Indeterminate Sentence Law may then be located within the range from prision correccional maximum to reclusion temporal minimum.

WHEREFORE, the Decision of the trial court dated 26 August 1981 is hereby MODIFIED by holding the accused Luis Mision guilty of two (2) separate crimes of murder and frustrated murder. There being neither a mitigating nor a generic aggravating circumstance alleged and proven, the accused shall suffer the penalty of reclusion perpetua for the death of Luciana Dagohoy. He shall likewise suffer imprisonment of six (6) years and one (1) day as minimum to fourteen (14) years and eight (8) months as maximum for the frustrated murder of Merceda Dagohoy. The penalties shall be served successively in accordance with the provisions of Article 70 of the Revised Penal Code. The indemnity for which the accused is liable for the death of Luciana Dagohoy is hereby increased to P50,000.00 in line with recent jurisprudence of this Court. ²⁷ As so modified, the decision of the trial court is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., Chairman, Gutierrez, Jr., Bidin and Davide Jr., JJ., concur.

Footnotes

1 Record, p. 22.

2 Id., p. 25.

3 Id., pp. 71-72.

4 Appellant's Brief, Rollo, p. 59.

5 Record, pp. 69-70; Rollo, pp. 7-8.

6 TSN, 9 August 1979, pp. 10-13.

7 TSN, 26 September 1979, p. 7.

8 Id., p. 4; Exhibit "B", Record, p. 9.

9 Id., pp. 7 & 10: Certificate of Death, Record. p. 8.

10 Exhibit "A". Record, p. 8.

11 Record p 6: TSN, 27 February 1980, pp. 13-14, 16-19.

12 People v. Reyes, 166 SCRA 483 (1988).

13 TSN, 9 August 1979, p. 2; Emphasis supplied.

14 Appellant's Brief, Rollo, pp. 60-64.

15 People v. Reyes, 166 SCRA 483 at 492 (1988).

16 People v. Tamayo, 183 SCRA 375 (1990); People v. Bustards, 182 SCRA 554 (1990); People v. Talla, 181 SCRA 133 (1990); People v. Mitra, 179 SCRA 612 (1989).

16A TSN, 2 March 1981, p. 11.

17 People v. Reyes, 166 SCRA 483 at 491 (1988).

18 People v. Traya, 147 SCRA 381 at 389 (1987).

19 Decision, pp. 2-3; Rollo, pp. 8-9.

20 Appellee's Brief, pp. 9-10; Rollo, p. 89.

21 See People v. Caldito, 182 SCRA 66 (1990).

22 l09 Phil. 607 (1960); reiterated in People v. Caldito, supra, at 79-80.

23 102 SCRA 136 (1981).

24 Decision, p. 3; Rollo, p. 72.

25 Article 248, Revised Penal Code.

26 People v. Muñoz, 170 SCRA 107 (1989).

27 People v. Saron, G.R. No. 89684, 18 September 1990, p. 18.

People vs. Melgar, G.R. No. 75268, January 29, 1988

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 75268 January 29, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ESTEBAN MELGAR Y CORNEL and GERARDO LANGUISAN, accused- appellants.

GUTIERREZ, JR., J.:

This is an appeal brought by the accused Gerardo Languisan who, together with Esteban Melgar y Cornel, was charged before the Court of First Instance (now Regional Trial Court) Rizal, Quezon City, Branch 31 with the crime of murder committed as follows:

That on or about the 20th day of October, 1976, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping one another, with intent to kill and by means of treachery, and with evident premeditation, did then and there, wilfully, unlawfully and feloniously stab with a bladed instrument one Jaime Duque y Palada, thereby inflicting upon him serious and mortal wound, which was the direct and immediate cause of his death, to the damage and prejudice of the heirs of the victim in such amount as may be awarded to them under the provision of the Civil Code. (Original Record, p. 1)

On December 20, 1976, Esteban Melgar was arraigned and pleaded not guilty. The other accused, Gerardo Languisan alias "Jerry" remained at large so that trial proceeded against Esteban Melgar only.

On July 9,1979, the trial court rendered a decision acquitting Esteban Melgar for failure on the part of the prosecution to prove his guilt beyond reasonable doubt.

On September 11, 1980, or four years after the incident, Gerardo Languisan was arrested. Upon arraignment on November 6, 1980, he pleaded not guilty.

The trial court, after evaluating the evidence presented, rendered its decision on December 9, 1981 finding accused Languisan guilty of murder. The dispositive portion of the decision reads:

ACCORDINGLY, judgment is hereby rendered convicting the accused GERARDO LANGUISAN alias "JERRY" beyond reasonable doubt of the crime of Murder charged in the information and as defined and penalized in Article 248 of the Revised Penal Code, and in accordance therewith, there being no mitigating or aggravating circumstances which attended the commission of the offense, the said accused is hereby sentenced to suffer the penalty of Reclusion Perpetua, with all the accessory penalties provided for by law; to indemnify the Heirs of Jaime Duque the amounts of P12,000.00, as compensatory damages P15,000.00, in moral damages; and P3,100-00 in medical and funeral expenses, and to pay the costs.

The accused being detained and considering the practice in the Quezon City Jail for all detention prisoners to agree in writing that they be governed by the same rules concerning convicted prisoners, he is hereby credited with the full extent of the period under which he was under detention.

Let a copy of this decision be served to the Heirs of Jaime Duque.

SO ORDERED. (Original Records, p. 279).

The prosecution's evidence upon which the trial court based its finding of guilt beyond reasonable doubt is summaries as follows:

At about 7:00 P.M. of October 20,1976, Angelito Mata who have (sic) been driving a passenger jeepney with the route Farmers Market Libis and vice-versa, was then at the back of Farmers Market, Cubao, Quezon City, falling in line with other passenger jeepneys for his turn to get passengers for Libis, Murphy, Quezon City. With Angelito Mata at that time in his passenger jeepney were Lorenzo Ramos and the victim, Jaime Duque, who were seated at the front seat, with the victim between Angelito Mata and Lorenzo Ramos. Esteban Melgar and accused Gerardo Languisan were also at the place, serving as starters for the jeepney passengers, seeing to it that the passenger jeepneys fall in line and get their passengers only as their turn comes in the line-up, for which they get a fee of P0.25 per passenger jeepney they served. Since it was already dark, Angelito Mata decided to go home. For this purpose, he maneuvered his passenger jeepney out of the line. But he was blocked by another passenger jeepney. As a result, some passengers took the passenger jeepney of Angelito Mata which angered Esteban Melgar and which resulted into an argument with the victim, Jaime Duque, who was asked by Esteban Melgar why he inserted at (sic) the line-up his passenger jeepney to which the victim retorted that it was none of his business as they were already going home, leading Esteban Melgar to tell the victim: "Baka hindi mo ako kilala dito, kaya kita sabayan." Thereafter, Esteban Melgar approached accused Gerardo Languisan and talked with him. After their talk, accused Gerardo Languisan boarded the passenger jeepney of Angelito Mata and seated himself at the center of the right back seat behind the victim, Jaime Duque, who was seated between Angelito Mata and Lorenzo Ramos at the front seat. At this, the passenger jeepney of Angelito Mata proceeded to Libis, which was the end of its route. At Libis, when Mata's passenger jeepney stopped, accused Languisan was the last to alight. But before he did, Angelito Mata, thru his rear-view mirror saw him stabbed (sic) the victim with a double-bladed knife in his right hand at the back of the victim's neck, left side, and then when Angelito Mata turned his head to look, accused Gerardo Languisan alighted from the passenger jeepney and ran away towards a dark place. The victim attempted to pursue accused Gerardo Languisan by going across the back seat. But there the victim slumped at the right seat as he became weak. Then, the victim was brought to the Quirino Memorial Hospital at Quezon City where he died the next day, October 21,1976, of cardio-respiratory arrest due to shock and hemorrhage as a result of the stab wound to the nape (Exh. D-3), per his Certificate of Death issued by the Local Civil Registrar of Quezon City (Exh- D). The cadaver of the victim was autopsied by Capt. Desiderio A. Moraleda, Chief, Medico-Legal Branch, PC Crime Laboratory, Camp Crame, Quezon City, on October 21, 1976 at the PCCL Morgue, Camp Crame, Quezon City, and he found in his Medico-Legal Necropsy Report dated October 27, 1976, the following Postmortem findings:

Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity over the dependent portions of the body. Conjunctivae lips and nailbeds are pale. There is a tracheostomy opening at the anterior aspect of the neck, measuring 1.2 cm. long with 2 stitches applied and a surgical incision at the left hypochondriac region, measuring 3 by 1 cm., 12 cm. from the anterior midline.

NAPE:

Stab wound, nape, measuring 4 by 0.5 cm., 5 cm. left of the posterior midline, 7.5 cm. deep, directed anteriorwards, downwards and to the right, cutting the muscles and major blood vessels of the neck.

REMARKS:

Cause of the death is cardio-respiratory arrest due to the shock and hemorrhage as a result of a stab wound of the nape. (Exh. A)

Capt. Moraleda also caused the taking of the picture of the victim (Exh. B), showing the wound at the back of the nape, left side (Exh. B-1), as well as, a sketch of the human body (Exh. C), showing the said wound (Exh. C-1). For the death of his son, Juan Duque spent Pl,000.00 for medicine and P2,100.00 for funeral expenses.

In his defense, accused Gerardo Languisan asserts that he had nothing to do with the killing of the victim, Jaime Duque. For, according to him, at about 7:00 P.M. on October 20, 1976, he was at the Farmers Market, Cubao, Quezon City, at the passenger jeepney's starting point calling for passengers, as a starter of passenger jeepneys, for Libis at Murphy, Quezon City, at which place he had been since 5:00 P.M. until 9:00 P.M. when he left Farmers Market and went home to Libis. (Original Records, pp. 274- 275).

Accused-appellant Languisan now raises the following assignments of errors in this appeal:

I

THE LOWER COURT ERRED IN HOLDING APPELLANT LIABLE FOR THE DEATH OF JAIME DUQUE DESPITE THE ABSENCE OF EVIDENCE IdENTIFYING HIM AS THE ASSAILANT.

II

THE LOWER COURT ERRED IN POINTING TO THE APPELLANT AS THE ASSAILANT OF THE VICTIM DESPITE THE ABSENCE OF MOTIVE (AND WHICH THE PROSECUTION FAILED TO PROVE) ON THE PART OF THE APPELLANT TO KILL THE VICTIM BECAUSE:

A. THE APPELLANT AND THE VICTIM HAVE NEVER KNOWN NOR MET EACH OTHER;

B. THE APPELLANT AND THE VICTIM HAD NO CONFRONTATION, GRUDGE, OR ALTERCATION, EITHER IN THE PAST OR IMMEDIATELY BEFORE THE STABBING INCIDENT,

III

THE LOWER COURT ERRED IN RELYING ON THE SPECULATIVE AND DOUBTFUL EVIDENCE OF THE PROSECUTION IN CONVICTING THE APPELLANT

VI

EVEN ON THE GRATUITOUS ASSUMPTION THAT THE STABBING TOOK PLACE, THE LOWER COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY BECAUSE THE PROSECUTION FAILED TO PROVE THAT THE VICTIM WAS COMPLETELY UNAWARE WHEN ATTACKED (Brief for the Appellant, pp. 7-8, Rollo, p. 55)

The first assignment of error stresses the alleged absence of evidence positively Identifying Languisan as the assailant on the ground that the description by the prosecution witness, Angelito Mata, was erroneous. According to the defense, the person whom the witness Identified was another person, the name of the assailant having been given by the witness as "Willie" and not Gerry. The same was sufficiently explained by the prosecution — that Mata knew Gerry Languisan as Willie and the Willie as mentioned in his statement is the accused Languisan (TSN, pp. 5-6, August 31, 1981). There can be no question about the Identity of Languisan because Mata pointed to him in open court. He was not Identified because of his name but he was pointed to and singled out upon the instructions of the court to finger the accused-appellant if he was in the courtroom.

This Court, in a number of cases, held that minor inconsistencies do not destroy the credibility of the witness. An inconsistency may even prove that the witness is unrehearsed. (People v. Dava, 149 SCRA 582; People v. Bautista, 147 SCRA 500; People v. Ancheta, 148 SCRA 178; People v. De las Piñas 141 SCRA 379).

The Identity of the assailant is further established by the fact that Mata saw the appellant stab the victim (TSN, p. 4, June 4, 1977). There is nothing in the records that would show that Angelito Mata had any bias or prejudice against Languisan. The fact that there were no earlier differences between them was admitted by the accused himself (TSN, pp. 6 and 13, October 20, 1981). There being no evidence that the principal witness for the prosecution was actuated by improper motive, his testimony should be given full faith and credit. (People v. Alcantara, 126 SCRA 425, 436).

Furthermore, between the positive declaration of the prosecution witness and the negative statements of the accused, the former deserves more credence (ibid., People v. Paseo, Jr., 137 SCRA 137; People v. Borbano, 76 Phil. 702).

As to the second assignment of error regarding the absence of motive to kill, proof of motive is not essential in the face of the positive Identification by the witness (People v. Anquillano, 149 SCRA 442; People v. Ramilo, 147 SCRA 102; People v. Manalo, 135 SCRA 84). Such proof is necessary only when there are no eyewitnesses and where suspicion is likely to fall upon a number of persons.

Possible motive, however, is not wanting. Languisan was a barker or starter for jeepneys lining up for passengers behind the Farmers' Market. Starters take charge of seeing to it that jeepneys fag in line according to the arranged schedule. When Mata went ahead of the other drivers patiently waiting for their turn, it became a matter of honor for the appellant because his usefulness or his authority was challenged. There was a threat to harm or kill the victim as shown by the altercation between the co-accused Melgar and Duque. The threat was carried out when Melgar approached Languisan. After the two talked to each other, Languisan boarded the jeepney of Mata and stabbed the victim.

The defense of the appellant that he was not at the scene of the crime when the incident happened but was at the jeepney starting point is without merit. The defense of alibi to be given full credit must be clearly established and not leave room for doubt (People v. Petil, 149 SCRA 92; People v. Ramilo, 147 SCRA 102). Alibi is an inherently weak defense especially because of the proximity of the accused's alleged whereabouts at the time to the scene of the crime (People v. Anquillano, 149 SCRA 442; People v. Aboga, 147 SCRA 404). The appellant failed to establish that it was impossible for him to be at the scene of the crime inasmuch as the traveling time from said starting point to his residence at Libis, Murphy, Quezon City is only 5 kms. and is only 30 minutes ride (Original Records, pp. 275-276). It was, therefore, not impossible for the accused to be at the passenger jeepney of Mata and be back to Farmers Market immediately thereafter, riding in another jeepney, then staying there to resume his work of starting passenger jeepneys until 9:00 p.m. when he went home to Libis.

The contention of the defense that the accused did not flee from the scene of the crime is untenable. Prosecution witness Mata testified that after stabbing Duque, Languisan ran from the scene of the crime (TSN, p. 4, June 14, 1977).

The claim of the defense that the accused did not attempt to escape does not inspire belief. According to the defense, the accused neither changed his residence nor place of work. This is nothing but a mere pretense. It was precisely because of the difficulty of locating the accused that the court litigation proceeded only against Melgar. Languisan was at large at the time the information was filed against him because he could not be found at his last address. It was only after four (4) years that he was found and arrested. Flight of the accused is indicative of his guilt (People v. Astor, 149 SCRA 325; People v. Pimentel, 147 SCRA 25).

The third assignment of error claiming that the evidence of the prosecution was speculative and doubtful specifically because its witness, Angelito Mata, is wanting of credibility has been discussed earlier. It was established that Mata had no bias against Languisan. There is no doubt from the records that he was an actual eyewitness. There is no improper motive on Mata's part to implicate Languisan of the crime.

Lately, the defense holds that the lower court erred in appreciating the quailing circumstance of treachery because the prosecution was unable to prove that the victim was completely unaware when attacked and that there was no deliberate adoption of means to insure the killing. We agree with the Solicitor General that treachery was duly and sufficiently proven. The Revised Penal Code, specifically Art. 14, Sec 16, states that 'there is treachery when the offender commits any of the crimes against the person, employing means, methods, or terms in the execution, without risk to himself arising from the defense which the offended party might make"(People v. Rojas, 147 SCRA 169). In the case at bar, the victim was suddenly and without warning stabbed at the back of his nape by the appellant from behind with a double-bladed knife (TSN, pp. 6-7, May 14,1981, Medico-Legal Necropsy Report, Exh. A). The appellant, therefore, employed a means of attack without risk to himself which might have arisen from any defensive or retaliatory act on the part of the victim (People v. Casalme, 17 SCRA 717).

The unexpected stabbing in the back of the victim by the accused proves the existence of treachery (People v. Crisanto, 135 SCRA 413). In a number of cases, it has been held that there is treachery when the defenseless victim was shot from behind without risk to his assailants (People v. Asil, 141 SCRA 286) or when the victim, while driving his jeepney was strangled from behind (People v. Masilang, 142 SCRA 673).

Therefore, the crime committed is murder, qualified by treachery. No other modifying circumstance attended the commission of the offense.

The judgment of conviction imposed by the lower court is affirmed but the penalty will have to be modified. This is in view of the abolition of the death penalty in the 1987 Constitution, "unless, for compelling reasons involving heinous crimes the Congress hereafter provides for it." (Art. III, Sec. 19, [1]).

The penalty for Murder is now reclusion temporal in its maximum period to reclusion perpetua (People v. Masangkay, G.R. No. 73461, Jan. 25, 1988; People v. Lopez, G. R. Nos. 71875-76, Jan. 25, 1988; and People v. Gavarra, G.R. No. I,37673, Oct. 30, 1987). In the absence of any modifying circumstances, the imposable penalty is reclusion temporal in its medium period, or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. For purposes of applying the Indeterminate Sentence Law, the range of penalty is prision mayor, in its maximum period to reclusion temporal in its medium period, or, from ten (10) years and one (1) day to seventeen (17) years and four (4) months. (People v. Masangkay, supra).

WHEREFORE, the judgment appealed from is hereby AFFIRMED except for a MODIFICATION of the penalty. The accused-appellant Gerardo Languisan is sentenced to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN(18)YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal as maximum; to pay indemnity to the heirs of Jaime Duque in the amount of THIRTY THOUSAND PESOS (P30,000.00) and to pay the costs.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

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.