THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. TRANQUILINO CABALLERO ET AL., DEFENDANTS AND APPELLANTS.

The appellants appeal from the sentence of seventeen years, four
months, and one day of recluswn temporal for the crime of homicide,
imposed upon them by the Court of First Instance of Cebu, with the
accessaries of law, and to indemnify the heirs of the deceased in the
amount of Pl,000 and costs, the aggravating circumstance of abuse of
superior strength having been considered, in view of the number of the
defendants.

It is contended that the trial court erred in believing Pedro
Purgatorio, Matilde Purgatorio, and Isidro Apostol, and in disbelieving
the witnesses for the defense, and in not finding that the deceased was
killed by his own father, Pedro Purgatorio, and hence, in not
acquitting the accused.

It is a proven and undisputed fact that Carlos Purgatorio died a violent death as a result of:

“A lacerated irregular wound in the suboccipital
region, penetrating the cranium, one inch in diameter and about half an
inch deep; when the examination was made there was a steady flow of
blood from this wound. Contusion on the right eye, another on the right
wrist, and a third on the left forearm. The chief cause of death was:
cerebral hemorrhage or concussion of the brain.” (Testimony of Antonio
J. Sol, Official Nurse, acting as chief of the Sanitary Division of the
town of Badian, who examined the body. Vide pages 28 and 29, t. s. n.)

It is also a fact proved without objection that on the day of the
crime there was a feast to celebrate the wedding of Eugenia Purgatorio
and Apolonio Antecristo. According to the prosecution, Carlos
Purgatorio was insistently invited by Tranquilino Caballero to said
feast at about three o’clock in the afternoon, but resenting the fact
that he had been made to wait for hours for the members of the
bridegroom’s family who had promised to take the bride’s family to the
feast, he flatly refused the invitation and accused the inviters to
their face of having broken their word, not only to call for them
early, but also to give his father on the eve of the feast a whole cavan
of rice, a pig worth five pesos, and some salt and condiments. Carlos
Purgatorio left the house and the defendants followed him. Tranquilino
Caballero then asked: “Carlos, don’t you want to go with your father?”
Carlos replied: “I don’t want to go with you because the time agreed
upon has already passed; you seem to have a knack for persuading my
father” Then began the assault described by Pedro Purgatorio as follows:

“* * * After Carlos spoke those words, Tranquilino,
who carried a cane under his arm, beat my son Carlos with it, hitting
him on the forehead above the right eye. Domingo Antepuesto, who also
carried a club or cane, also beat Carlos with his club.

“Q.

Where did it strike?

A.

On the right arm. After Domingo had hit him, Juan who was there, also struck Carlos with a piece of firewood, followed by Lope Jerello who also hit Carlos. * * * Miguel Antecristo did not carry a club or a cane, but he picked up a stone, and going behind Carlos, struck him with it in the occipital region. On receiving that blow with the stone, he fell on his face, unconscious, dead.” (Page 5, t. s. n.)

* * * * * * *

“Q.	With what did Lope Jerello strike your son?
A.	He used a coconut palm taken from my garden.
“Q.	And where did Lope Jerello hit your son?
A.	The first time he hit him on the right arm.
“Q.	How many times did the defendant Jerello strike your son?
A.	It was impossible to count the number of blows Lope Jerello dealt, because he and his codefendants beat the deceased without stopping and at the same time,
“Q.	And with what did Juan Antecristo strike your son?
A.	He also picked up a stick near the stairway of my house.
“Q.	How big was that stick?
A.	As big as the leg of the chair the Fiscal is sitting on. (A chair with legs about one and one-fourth inches in diameter.
“Q.	And how many times did the defendant Juan Antecristo strike your son?
A.	It was also impossible to count the blows Juan Antecristo dealt my son.
“Q.	With what did Domingo Antepuesto strike your son?
A.	With a cane he had brought from his house.” (Pages 13 and 14, t. s. n.)

Matilde Purgatorio relates the incident as follows:

“* * * As Lieutenant Tranquilino had a cane under
his arm, and was shamed, he hit my brother with it near the right side
of the forehead. When my brother received the blow, he felt the pain
and had to put his hands up to his face; while my brother was in that
position with his hands over his face, the other defendants together
rained blows on my brother; all of them beat him; and the defendant
Miguel picked up a stone and with it struck my brother in the occipital
region; and upon receiving the blow, my brother immediately fell to the
ground on his face. Upon seeing this my father exclaimed: ‘Lieutenant
Quilino, why have you all maltreated my son, who did not want to go to
the feast?’ As the defendants did not mind my father, he went upstairs
looking for a bolo, to take revenge. When my father again left the
house, the defendants were no longer there; they had fled. As the
defendants ran, I also ran to a place about four brazas away.” (Page
33, t. s. n.)

Isidoro Apostol testifies that:

“Carlos Purgatorio died from the blows or beating
given him by the defendants. The defendant Tranquilino Caballero hit
the deceased on the forehead. When the deceased received that blow, he
was beaten by the defendant Domingo, and later the defendant Juan
Antecristo attacked him, after which the defendant Lope Jorello and
also the defendant Miguel Antecristo attacked the deceased. Miguel
Antecristo threw a stone at the deceased, and that was the time when
the latter fell to the ground. When the deceased Carlos Purgatorio fell
to the ground, his father went upstairs to get a weapon, and upon
seeing this, the defendants fled, and I, in turn, also fled to my
house. That is all I saw.” (Page 54, t. s. n.)

The veracity of these three witnesses for the prosecution is strenuously assailed by the defense.

Pedro Purgatorio is accused of not having told the truth before the
municipal president, and policeman Juan Sesaldo. Pedro Purgatorio
explained it saying that after the attack, while he was on his way to
the town to denounce the fact, he met defendants Lope Jorello and Juan
Antecristo who held him and searched him for a weapon; that the
defendant Tranquilino Caballero arrived then with some others; that
Tranquilino Caballero ordered them to take off Pedro Purgatorio’s hat,
to see whether he carried a penknife ; that as he protested that he
carried no weapon for he was going to the justice of the peace,
Tranquilino Caballero asked him why he was going to the justice of the
peace; that because Tranquilino asked him how he was going to relate
the incident to the justice of the peace, and Pedro Purgatorio answered
that he would tell the justice that the defendants had beaten the
deceased causing his death, whereupon Tranquilino Caballero became
angry and threatened to kill him if he said such a thing to the justice
of the peace; that Rafael Caldosa then spoke up suggesting that he tell
the justice of the peace that the deceased became intoxicated at the
feast, returned home and went back to the feast armed with a bolo, and
that he” chased the people, and that as he was drunk, he bumped against
the trunk of a coconut tree, and fell, striking against a beam of the
house, fracturing his skull, and falling to the ground, and everybody
fled; that the proposal met with the approval of Tranquilino Caballero,
and Pedro Purgatorio pretended to agree and offering to inform the
authorities of the incident as related by Rafael Caldosa, left them
immediately; that Tranquilino Caballero would not permit him to go
alone, and said all of them would accompany Pedro Purgatorio in order
to hear what he had to say to the justice of the peace; that
Tranquilino Caballero and his companions did as he had said, repeating
to Pedro Purgatorio the account suggested by Rafael Caldosa; that
before reaching the house of the justice of the peace, and while in
front of the municipal president’s house, they proposed that he go in
to see said president, which surprised Pedro Purgatorio, because it was
the justice of the peace he was going to inform regarding the incident;
that after they had awakened the municipal president, they went up to
see him, and Pedro Purgatorio also went with them; that it was
Tranquilino Caballero who explained the case to the president as
proposed by Rafael Caldosa, and the said president confined himself to
asking Purgatorio whether it was true, and he answered “yes”, as
instructed. (Pages 7 and 8, t. s. n.)

This account is untrue, according to the defense, and it was denied
on the witness stand by defendants Tranquilino Caballero and Domingo
Antepuesto, as well as by witness Rafael Caldosa for the defense.
Alejandro Agravante, the municipal president, then affirms that Pedro
Purgatorio went to his house alone on the night of the incident, and
informed him that as his son Carlos was drunk, he ran after him,
wounding himself in the head on account of having run up against a beam
of the house and the trunk of a coconut tree.

A similar thing happened to Matilde Purgatorio, the fact that she
made a false statement to the justice of the peace being brought up
against her. She explains the case saying that the defendant
Tranquilino Caballero instructed her to make that false statement under
threat of imprisonment.

But it is a fact deducible from the record, and expressly recognized
by the trial judge who saw and heard Pedro Purgatorio and Matilde
Purgatorio testify at the hearing, that these witnesses are ignorant
people, and this court is persuaded of the following considerations set
forth by the Attorney-General in his brief:

“It is true that when Pedro Purgatorio and Matilde
Purgatorio first attempted to file their complaint, they testified
before the president and the justice of the peace, respectively, that
Carlos died because, while intoxicated, he chased the people about, and
bumped his head against a beam and a coconut tree (pp. 64-65, 35-36, s.
n.) ; but this was due, they say, to the fact that Tranquilino
Caballero and his codefendants had threatened them with death. And
there is nothing strange about this considering Caballero’s official
position on the one hand, and the ignorance and lack of education of
Pedro and Matilde, on the other. To this must be added the fact that
when they made the said statements, the defendants were present and
watched them. (Pages 18-19, 36-37, s. n.)

“The fact that
these witnesses were really and truly under the influence of
Tranquilino Caballero, is confirmed, moreover, by their conduct during
the preliminary investigation of this case. For, when the complaint had
already been presented in this case, the said justice of the peace
Clavel conducted the preliminary investigation, and on that occasion
these witnesses, already free from duress, being then under the
protection of the Constabulary, witnessed the truth, relating what had
really occurred. Their testimony was recorded in Exhibits 1 and 4 of
the defense. It will be noted that these statements are substantially
the same as those they made at the trial.

“Taking into
account this influence of Tranquilino’s who by the way, was twice
elected municipal vice-president, it is not strange that the President,
Alejandro Agravante, should be partial to him, and should do what he
could to favor Tranquilino, his fellow partisan. Neither is it strange
that policeman Juan Sesaldo, assigned by the president to investigate
the case, should evince the same partiality. He could not have acted in
any other way, considering that he was a subordinate. The same may be
said of the chief of police Antonio Sandalo. As the trial court
observed, the partiality of the latter brought him to the extreme of
erasing the words ‘No entry’ in the police blotter, in order to
substitute notes evidently favorable to the defendants. (Pp. 98-99, s.
n.) This explains why the complaint in this case was signed by a
Constabulary sergeant.” (Pages 8 and 9, Attorney-General’s brief.)

The meager education of these witnesses for the prosecution, who
live in an out-of-the-way barrio, and the fear implanted in them by the
influence and social power of the defendants in general in that
municipality, explain the apparent incongruities in their repeated
declarations, noticeable in some points of minor importance, such as
whether Pedro Purgatorio, as he stated in the preliminary
investigation, personally repeated to president Agravante the account
suggested by Caldosa, or, as he stated at the trial, he only said that
Tranquilino’s account, who was the person who related it, was true.
Matilde Purgatorio’s statements in Exhibit 2, which are different from
what she had been instructed to say by the defendants, are of a similar
nature, as is also her testimony at the preliminary investigation,
which differs from her statements in Exhibit 2, and the portion
relating to the part taken by defendants Lope Jorello and Juan
Antecristo’whom she saw attacking her brother, according to her
testimony at the hearing, but whom, judging by some of her statements
at the preliminary investigation, she did not see attacking him. But it
must be noted that in her aforesaid testimony at the preliminary
investigation under direct examination she said that her brother, the
deceased, “was struck by him” (referring to Tranquilino Caballero)
“with his cane (olisi), and was immediately and simultaneously attacked
by the five of them” (alluding to the defendants), and under
cross-examination said in part: “The first blow was delivered by
Lieutenant Kilino, followed by Domingo Antepuesto, then Juan
Antecristo, then Lope Jorello, and lastly Miguel Antecristo. * * *
Lieutenant Kilino and Domingo Antepuesto each had a cane (olisi) ; Juan
carried a stick bigger than the big toe and one vara long; Lope Jorello
carried a coconut palm; Miguel picked up a big stone.”

In the main points of how the attack began and continued, these
eye-witnesses for the prosecution, are in substantial agreement and
corroboration.

The defense questions the credibility of the witness for the
prosecution, Isidoro Apostol, because he is Pedro Purgatorio’s
brother-in-law; was angry with Tranquilino Caballero ; and on being
investigated by policeman Sesaldo said he did not know anything about
the incident; and because he went to the constabulary saying that he
had not told the truth to the local authorities.

Isidoro Apostol admits that he is Pedro Purgatorio’s brother-in-law,
but affirms that he is not angry with Tranquilino Caballero, and that
he has not been investigated by policeman Sesaldo.

The defense also attempted to prove that this prosecution of the
defendants was instigated by one Feliciano Saldua, who at the prayer
and request of Pedro Purgatorio and Melitona Peregrino, the deceased’s
widow, accompanied the latter to the Constabulary headquarters at
Dumamhug to report the homicide of the deceased. Being cited to
testify, Feliciano Saldua said that he had no quarrel with defendant
Tranquilino, to whom he is related; he also affirmed that he had no
interest in this case, and that, if he accompanied the father and the
daughter of the deceased in the City of Cebu, it was to guide them
around the city where they were strangers.

Defendant Tranquilino Caballero, testifying for the defense, states
that at about midday on the day of the crime, when Pedro Purgatorio was
preparing to go to the feast given at the house of his son’s
father-in-law, on the occasion of the wedding of the latter’s daughter,
he told his son Carlos, the deceased, to change his clothes, saying:
“Go! hurry up! you, if you are told to hurry up, you don’t do it;
you’re like a half-wit, a crank” (page 157, t. s. n.) ; that Carlos
Purgatorio felt ashamed in the presence of the others, and said so to
his father reproachfully; that he left the house, and returning,
attacked his father with a bolo which missed him, because the latter
jumped backward; that said father picked up a stone and threw it at his
son hitting him on the right arm, and continued stoning him, until,
Carlos made a half-turn in order to run away, when his father threw
another stone at his head, whereupon Carlos fell on his face, and the
defendants left the place.

Defendant Domingo Antepuesto testified substantially the same as
Tranquilino Caballero.

Rafael Caldosa, another witness for the defense
relates substantially the same facts stated by Tranquilino Caballero,
except that he does not merely say that when the deceased fell to the
ground, he and the defendants went away, but he assures the court that when he s’aw that Carlos Purgatorio no longer moved, he fled and the defendants also ran away, (Page 76, t. s. n.)

It is strange that although Tranquilino Caballero, at the time of
the incident, was the vice-president of the town (page 66, t. s. n.),
and had several companions, he did not exercise his authority, or
attempt to prevent the act, if it happened as he says it did, limiting
himself to saying to Carlos, on seeing him assault his father: “For
heaven’s sake, Carlos, stop that!” (Page 158, t. s. n.) Neither can it
be satisfactorily explained, if his testimony be true, how said
municipal vice-president, having witnessed Pedro Purgatorio killing his
own son, did not arrest him, or, at least, immediately inform the
authorities. It is true that he said he sent his son-in-law to inform
the barrio lieutenant of the incident (page 165, t. s. n.); but he
himself states that his son-in-law returned with the information that
the barrio lieutenant was in town. And the duties of the office of
vice-president were not so mew to him, that his inaction might be
attributed to lack of experience, since he had been holding that office
for over five years. (Page 66, t. s. n.) Neither did Rafael Caldosa
inform the authorities of the incident, even if he says he tried to do
so; and he discussed it with anyone who mentioned it (page 82, t. s.
n.) ; however, in spite of this intention, and although he saw a
constabularyman with Purgatorio on October 2, he said nothing about the
act to said agent of authority. (Page 87, t. s. n.)

We have carefully and repeatedly gone over the evidence taken in
this case, ascertaining from the record the real weight and legal merit
of the evidence adduced by both parties, and we confirm the findings of
fact made by the trial judge, who saw and heard the witnesses testify,
and therefore had sufficient opportunities to test the credibility of
the witnesses in this respect.

We find it proved beyond a reasonable doubt that the defendants
attacked Carlos Purgatorio on the occasion in question, and that the
latter died as a result of the lacerated wound in the suboccipital
region caused by a stone thrown at him by the defendant Miguel
Antecristo.

With regard to the defendants’ liability, we believe it to be
individual, that is, that each of them answers for the act or acts he
committed. We have arrived at this conclusion in view of the fact that
no previous conspiracy between them to take the life of the deceased
has been proved, nor a spontaneous agreement for such purpose at the
moment of the attack, nor of any intentional or material cooperation.
For one of these circumstances must be present and proven in order that
two or more assailants may be held as principals, or any or several of
them as accomplices, in the crime resulting from the attack. Because it
is not sufficient that the attack be joint and simultaneous; it is
necessary that the assailants be animated by one and the same purpose.
So holds the weight of authority. See decisions of the Supreme Court of
Spain of December 29, 1884; April 2, 1886; November 12, 1887; May 23,
1888; October 26, 1889; December 4, 1889; November 4, 1892; November
14, 1892; November 20, 1895; January 27,1896; April 26, 1904; and
January 11, 1905, aoid others, especially that of October 11, 1911,
dealing with a case similar to the one at bar, in so far as death was
caused by the last assailant, and it was not shown that the first
assailants harbored a homicidal intent or that they could foresee that
the last assailant would kill the deceased. This is the same doctrine
promulgated by this court in the case of People vs. Tamayo
(44 Phil., 38). It cannot be otherwise, since intention is an essential
element of voluntary felonies. In the case at bar, it may be said that
the attack was simultaneous, but there is neither evidence nor
indication of unity of purpose.

In determining the specific individual liability of each of these
defendants, it should be noted that the nature of the bruises on the
deceased’s right eye, right wrist, and left forearm, caused by Miguel
Antecristo’s” co-defendants, does not appear of record; but it
appearing that all of them attacked the deceased, said co-defendants of
Miguel Antecristo are liable to punishment, corresponding to
misdemeanor, as provided in article 589 of the Penal Code.

We declare Miguel Antecristo guilty as principal of the homicide
prosecuted herein, with the extenuating circumstance of not having
intended to cause so serious an evil. There was another extenuating
circumstance, namely, provocation on the part of the deceased, but it
is offset by the aggravating circumstance of abuse of superior strength.

Wherefore, the judgment appealed from is modified, and Miguel Antecristo is sentenced to twelve years and one day of reclusion temporal,
with the accessories of article 59 of the Penal Code, and to indemnify
the heirs of the deceased Carlos Purgatorio in the amount of one
thousand pesos; and defendants Tranquilino Caballero, Domingo
Antepuesto, Juan Antecristo, and Lope Jorello are sentenced to two days
of arresto menor, with the reduction of the preventive
imprisonment suffered by all or some of them. Each of the defendants
and appellants shall pay one-fifth of the costs of both instances. So
ordered.

Avanceña, C. J., Johnson, Street, and Villamor, JJ., concur.

---

DISSENTING

VILLA-REAL, J., with whom concurs JOHNS, J.:

I regret to be compelled to dissent from the majority opinion in so
far as it relates to the criminal liability of defendants Tranquilino
Caballero, Domingo Antepuesto, Juan Antecristo and Lope lorello, whom I
consider to be criminally liable as accomplices, for the following
reasons:

According to the record, at about three o’clock in the afternoon of
September 30, 1928, defendants Tranquilino Caballero, Domingo
Antepuesto, Juan Antecristo, Lope Jorello, and Miguel Antecristo,
headed by the first, went to Pedro Purgatorio’s house. Tranquilino
Caballero said to Pedro: “We come on behalf of Matias Antecristo to
take you to the feast.” Pedro replied that he did not want to go
because those whom he had invited had already left. As Pedro persisted
in his refusal, notwithstanding Tranquilino’s repeated invitations, the
latter turned to Carlos, Pedro’s son, and invited him as they had his
father, but Carlos answered that he could not go, first, because those
whom they had invited had already left, and secondly, because they had
broken their word with respect to the gift they had promised to give
his parents, and he left the house, followed by the defendants.
Downstairs Tranquilino Caballero reiterated his invitation, and as
Carlos again refused it and made some sarcastic remarks, Tranquilino
laid hold of the cane he carried under his arm, and struck Carlos with
it on the forehead. Almost simultaneously, Domingo Antopuesto hit him
with a stick on the right arm, Juan Antecristo with a piece of
firewood, and Miguel Antecristo, picking up a stone, threw it at him,
hitting him in the occipital region, as a result of which the victim
fell to the ground unconscious, dying a few moments after. When the
defendants saw him fall, they fled.

We agree with the majority that there is no evidence of any previous
plot or conspiracy to take the life of Carlos Purgatorio, for if there
were, all of them would be guilty as principals of the crime of
homicide by direct participation.

All the defendants went to Pedro Purgatorio’s house together to
invite the latter and his son Carlos to the feast. Naturally, the
insistent refusal both of Pedro Purgatorio and of his son Carlos
displeased them, and such displeasure increased when Carlos, in order
to emphasize his refusal, made some sarcastic remarks. At this affront,
all of them attacked said Carlos practically at the same time,
Tranquilino Caballero, Domingo Antepuesto, Juan Antecristo, and Lope
Jorello with sticks each on a certain part of the body, and Miguel
Antecristo with a stone thrown at the head, which caused his death.
Inasmuch as the defendants went together to invite Pedro Purgatorio and
his son Carlos, were disappointed and sarcastically addressed together,
when they attacked Carlos almost simultaneously, it cannot be said that
each of them acted for himself and independently of the others; for,
united in the disappointment, united in the insult, and united in the
act to avenge said insult, they must of necessity have been also united
in the purpose to punish the one who had disappointed and insulted
them. At that psychological moment, then, there was the intention to
punish, and the material cooperation to carry it out.

In volume I, pages 303 and 304, of Hidalgo’s work on the Penal Code, the following cases are cited in support of our theory:

“Two individuals assaulted a third inflicting on him
two wounds, one mortal, and the other curable in twenty days. The
Supreme Court holds that the one who inflicted the second wound answers
as accomplice for the crime of hornicide, and not for that of physical
injuries, on the ground that while it was the wound inflicted by the
other defendant that caused the death of the deceased, there can be no
doubt that by the second wound, inflicted at the same time as the
other, the one who dealt it cooperated in that fatal result, and that,
he was in consequence, according to article 15 of the Code, an
accomplice in the crime of homicide, since, without taking part in its
execution in any of the three ways set forth in article 13, he
cooperated therein by a simultaneous act.” (Decision of December 1,
1873.)

“At the door of the inn, after some words between the
defendants and the deceased, the former punched him in the face, and
one of them, drawing a razor, mortally wounded him. The Supreme Court
holds that those who only hit the deceased are guilty as accomplices,
because their acts were simultaneous with the homicide, and contributed
to take from the strength and means of defense of the victim, making it
possible and even easy for the principal assailant to do what, perhaps,
he could not have done otherwise.” (Decision of May 24, 1879.)