G.R. No. 2322. November 10, 1905

On November 20,1903, the provincial fiscal charged the accused,
Basiliso Bastas and Dionisio de la Serna, in the Court of First
Instance in Cebu, with the crime of murder committed as follows: One
night in the month of June, 1903, in the barrio of Labangon, of the
municipality of Cebu, Island of Cebu, the accused, armed with bolos
willfully and treacherously inflicted certain wounds upon Venancio
Araneta, as a result of which the latter died, all contrary to law.

The case having been duly tried, judgment was rendered December 10,
1903, sentencing each of the accused to twenty years imprisonment (cadena temporal)
and one-half of the costs. From this judgment both defendants appealed
to this court. Basiliso Bastas died during the pendency of this appeal
(p. 47 of the record).

Our review of this case will be confined to the appeal of Dionisio
de la Serna. The witness Agustin Nacua testified under oath that at
about 9 o’clock one night in the month of June, 1903, while resting in
his house in the barrio of Labangon, in the municipality of Cebu, he
heard a voice say: “Occupants of the house; in the name of justice let
all the men come down;” that he thereupon went downstairs where he
found Bastas and Dionisio de la Serna, who ordered him to follow them;
that he refused to obey, but was compelled by threats of death to go
with them; that he then saw a man bound, who subsequently proved to be
Venancio Araneta,accompanied by a woman; that while on their way they
came to an estero, where Basiliso Bastas handed him a pinuti
and ordered him to stab Araneta with it; that he objected at first, but
having been threatened by the two defendants with death in case of
refusal, he was compelled to stab Araneta; that Bastas, in view of the
fact that Araneta did not fall down, notwithstanding the wound that
Nacua had inflicted upon him, took the pinuti away from him
and with the aid of Dionisio de la Serna, who was similarly armed,
killed Araneta; that,owing to the darkness of the night, he was unable
to see in what part of the body Araneta was stabbed, although he heard
some one say that the wound had been inflicted in the side, and while
Araneta was bound; that the killing occurred at a place called Banica
in the barrio referred to, there being present some twelve or more
persons unknown to the witness, who accompanied the accused; that some
of these unknown persons carried off to the mountains the woman who had
accompanied Araneta, by order of the accused, who had directed them to
kill her too; that she was, however, released the same night, and
warned, under penalty of death, to say nothing about the occurrence
which had taken place; that on the afternoon of the following day the
witness was informed that Venancio Araneta had not died on the night in
question, but that he had the following day returned to his house.

Basiliso Bastas testified that he was seized one night by various
individuals who afterwards captured Venancio Araneta; that the latter
was killed by Agustin Nacua; that the witness was subsequently informed
that Araneta had not died on the night in question, but on the day
following; that the witness himself was released on the third day after
his capture; and that it was rumored that Araneta had returned to his
house the day following the night of the assault. Maxima Baban, the
wife of Basiliso Bastas, testified that the latter was seized one night
by several men who released him three days later, and that it was
reported about town that Venancio Araneta had been killed on the night
referred to, as Romana Abastas also testified.

It therefore seems fully proven in this case that one night in the
month of June, 1903, Venancio Araneta was seized and subsequently
assaulted with a deadly weapon; that he did not return to his house
thereafter, nor was he afterwards seen in his town. It does not appear
whether he ever died as a result of the assault. Some of the witnesses
testified that he had died, but Nacua and Basiliso Bastas stated that
he did not die, but on the contrary, was able to return to his house on
the day following the assault.

The facts in this case show that the crime committed is that of
frustrated murder. There is no doubt that Venancio Araneta was
assaulted while bound, and in a defenseless condition, and that his
assailants employed means and forms which insured the commission of the
crime without any risk that might have arisen from an attempt at
defense on the part of the person assaulted; but considering that
although the defendants executed every act necessary to cause the death
of Araneta, it was not shown, however, at the trial that Araneta had
actually died, we are of opinion that the accused should be convicted
under article 403 in connection with paragraph 2 of article 3 of the
Penal Code.

The evidence shows that Basiliso Bastas and Dionisio de la Serna
were the parties responsible for the crime charged in the complaint,
their plea of not guilty and the evidence introduced in their behalf to
the contrary notwithstanding. Dionisio de la Serna himself testified
that Venancio Araneta was killed one night by Agustin Nacua, the latter
having stated to him that he had killed Araneta. It should be noticed
that Nacua testified in the presence of Bastas, now deceased, and
Dionisio de la Serna that he had been ordered by the accused to stab
Araneta, and that as Araneta did not fall on receiving the wound, they,
the accused, killed Araneta, outright; that the accused did not make
any attempt to contradict the statement of the witness, but, on the
contrary, listened to him with coolness and indifference. Serna,
however, stated that although he heard Nacua make the statement, he had
not understood what the witness said. All these circumstances tend to
show that Dionisio de la Serna is guilty of the crime of frustrated
murder, as charged in the complaint.

The accused Serna may be convicted upon the testimony of Agustin
Nacua alone, because the latter’s statements were corroborated by other
evidence in the case. The United States vs. Dacotan et al.^[1]
is followed to the extent that the testimony of one witness alone is
sufficient to convict, provided the court is convinced that the accused
is, beyond a reasonable doubt, guilty. In the case at bar the testimony
of Agustin Nacua, taken in connection with the other evidence in the
case, should be deemed sufficient proof of the guilt of de la Serna.

There should be taken into consideration the presence in the
commission of the crime of the aggravating circumstance of nocturnity
only, and not that of abuse of superiority, as found by the court
below. The abuse of superiority is necessarily merged in alevosia.
There being no extenuating circumstances to consider in favor of the
defendant, he should suffer the penalty next lower in degree to that
assigned for the crime in article 403 of the Penal Code in its maximum
degree, in accordance with article 65 of the code—that is to say, presidio mayor in its maximum degree to cadena temporal in its medium degree.

The judgment appealed from should be reversed and Dionisio de la Serna sentenced to fifteen years’ imprisonment (cadena temporal)
with the accessory penalties of article 56 of the Penal Code, and to
pay an indemnity to Venancio Araneta of 500 pesos, and costs.

Let the case be remanded to the court below with a certified copy of
this decision and of the judgment to be entered in accordance herewith.
So ordered.

Arellano, C.J., Mapa, Johnson, Carson, and Willard JJ., concur.

---

^[1] 1 Phil. Rep., 669.