THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROGACIANO CUEVAS, DEFENDANT-APPELLANT.

This is an appeal, taken by Rogaciano Cuevas, a decision of the Court of
First Instance of Batangas, in Criminal Cases Nos. 28 and 29 of said court,
which, by agreement of the parties, were jointly triad. In case No. 28, the
court convicted Cuevas of the crime of murder, with which he is charged, and
sentenced him to an indeterminate penalty (?) of 17 years and 4 months of
reclusion temporal to reclusion perpetua, to indemnify the offended party in the
sum of P3,000, and to pay the costs. In case No. 29, in which Cuevas was charged
with frustrated murder, he was convicted of attempted murder and sentenced to an
Indeterminate penalty ranging from 4 years and 2 months of prision correccional
to 6 years, 1 month and 11 days of prision mayor, and to pay the costs.

The main facts are correctly set forth in the decision appealed from, from
which we quote;

“About 7:00 o’clock in the evening of March 17, 1950, Julian Masagpag,
Paulino Abarquez, Florencio Magpantay, Dominador Castillo, Jr., Teofilo Cusi and
Marcelino Abraham, arrived in a car at the store of Miss Holgado, situated in
barrio Aplaya, Bauan, Batangas. Into the said store, where they started to drink
beer and coke, later walked the herein accused Rogaciano Cuavas alias Rohing.
The latter engaged Dominador, Jr. in conversation which in the end degenerated
into a verbal altercations As Julian Masagpag tried to pacify them, the accused
punched Masagpag in the mouth and the two came to blows. Separated, the accused
left the store ahead of Masagpag and his companions. Half an hour thereafter,
the latter got into their car and drove towards home. At the wheel was Marcelino
Abraham, while seated beside him on the front seat were Paulino Abarquez and
Florencio Magpantay. Occupying the rear seat were Julian Masagpag, Dominador
Castillo, Jr. and Teofilo Cusi. in the order named. As they were cruising along
a road called ‘Daang Dagat’, they were met by a hail of shots from a distance of
about five armlengths on the right side of the road. The photographs Exhibits B
and 0 of the car show that it received at least seven bullet holes on its front
and right side. As a result of the shooting, Julian Masagpag received the
following wounds from which he died:

(1) Wound, gunshot, with point of entrance at first lumbar one inch lateral
to spinal column and bullet lodged at the interspace mid-clavicular, left.

(2) Fracture, complete, 8th rib at mid-clavicular line.

Paulino Abarquez, in turn received the following wounds:

(1) Wound, gunshot, thru and thru, foot, right, with point of entrance at the
planter aspect, one inch from lateral border and exit at 1/2 inch, dorsum of
lateral border of foot, right.”

(Appellant’s brief, pp.44-45.)

The appeal hinges on the sufficiency, of the evidence to the effect that the
lethal shots were fired by herein appellant. In convicting him, His Honor, the
trial Judge, relied upon the following (1) Exhibit D, which purports to be the
dying declaration of Julian Masagpag, naming appellant Rogaciano Cuavaa as his
assailant; (2) the testimony of Pulino Abarquez to the same effect; (3) on
cross-examination by the defense, Abarquez testified that, immediately after the
shooting, his co-passenger, Florencio Magpantay stated that appellant herein was
the one who fired at them; (4) Josefa Castillo, the widow of Masagpag declared
that, when she saw her husband, in the hospital, in the evening of the
occurrence, at about midnight, he said that he had been “held up by Rohing,”
refering to appellant Rogaciano Cuevas, “with a gun;” (5) about thirty (30)
minutes prior to the occurrence, appellant had a fist fight with Julian
Masagpag; (6) two attempts were made, on behalf of appellant herein, to settle
the case with Mrs. Masagpag, one by appellant’s mother, and another by his uncle
and aunt, the spouses Dominador Cuevas and Josefa Bejasa; and (7) the alleged
flight of defendant-appellant.

As regards Exhibit D, appellant says that it is neither signed nor
thumbmarked by Masagpag; that it does not appear to have been read by, or to,
him; and that these omissions have not been satisfactorily explained by the
prosecution. It appears that Exhibit D was written, with a colored pencil, by
Sgt. Felix Sistona of the municipal police force of Bauan, Batangas, and that
the questions appearing therein were propounded by Cesar Arad, Chief of Police
of said municipality. Both testified that said oue stions were propounded to
Julian Masagpag in the Batangas Provincial Hospital, in thd evening of March 17,
1950, and that the answers contained therein were those given by him on that
occasion, in reply to said questions. Inasmuch as, owing to his serious
condition, Masagpag could not sign Exhibit D, Sgt. Sistona went around the
hospital to look for a stamp pad, but found out that there was none. When he
returned to the room of Masagpag, to make him thumbmark Exhibit D with ink,
Masagpag had already been brought to the operating room, where he was not
allowed to enter. Sistona tried to see Masagpag twice the next day, but the
doctor said that he could not do so, because of the precarious condition of
Masagpag. Upon inquiry by telephone made by Sistona on March 19 and 20, 1950, he
was given the same advice. Masagpag died on March 21, 1950, at about 3:00 a.m.
We agree with the lower court that the foregoing facts, which were established
by the testimony of Sgt. Sistona. corroborated, as regards the taking of the
statement Exhibit D, by that of Chief of Police Cesar Arada, satisfactorily
explain the omissions stressed by the defense. Moreover, it has been proven by
said testimony that Masagpag made the declarations contained in Exhibit D
knowing that he was in imminent danger of death, not only because of the nature
of his injury, but, also, because he told his wife that he was going to die in
consequence thereof. Hence, Exhibit D partakes of the nature of an ante-mortem
statement and was properly regarded as such.

The defense brands the testimony of Paulino Abarquez as doubtful and highly
improbable, as well as unworthy of credence. Besides, it tried to prove, through
the testimony of Teofilo Cusi, that Abarquez was drunk at the time of the
occurrence. But this was denied by Abarnuez, and the lower court believed him,
and, evidently, gave no credence to Cusi. The record before us does not warrant
interference with the appraisal thus made by His Honor, the trial Judge, who was
in a better position than we are to gauge the veracity of the opposing witnesses
indeed, Abarquez had no reason to implicate appellant herein, if he were not the
real culprit, for his (Abarquez’) true assailant would than be relieved from
responsibility. Again, being on the front seat of the car, which was running
slowly, Abarquez was favorably situated to recognize, by the beam of the
headlights, the appellant herein, whom he knew well and was standing on the
sidewalk, barely five fathoms ahead of said vehicle, when said witness saw him.
That this was the position of the culprit, in relation to the car, at the
beginning of the attack, is borne out by the fact that the front part of said
vehicle was hit by two bullets.

The testimony of Abarquez to the effect that, immediately after the shooting,
Florencio Magpantay said that their assailant was appellant herein, is now
contested.as hearsay evidence. It will be recalled, however, that Abarquez gave
said testimony on cross-examination by defense counsel, who did not object
thereto, and hence, must be deemed to have waived such right as he may have had
to comfront Magpantay and cross-examine him. Moreover, the aforementioned
statement of Magpantay was spontaneously made, without premediation, under the
influence of the startling event which he had witnessed, and referred to the
circumstances surrounding the same. It is, accordingly, a part of the res
gestae, one of the exceptions to the hearsay rule.

The defense maintains that “the court a quo committed an error in attributing
motive to the accused for the shooting of Julian Masagpag and Paulino Abarquez.”
This pretense is clearly devoid of merit, it being admitted that, about thirty
(30) minutes before the shooting, appellant had had a fist fight with Julian
Masagpag. Although the former had no motive to try to kill Abarquez, it is
apparent that the latter was wounded accidentally by a bullet aimed at
Masagpag.

Contrary to appellant’s pretense, the. statement of Masagpag to his” wife,
concerning the identity af the culprit, is an ante-mortem. declaration, entitled
to consideration and weight as such, it appearing that Masagpag made it with
knowledge of his impending death.

The defense would, also, have us believe that appellant had no knowledge of,
and had not authorized, the attempt of his uncle and aunt, Dominador Cuevas and
Josefa Bejasa. and than of his mother, to settle the case amicably. However, the
lower court found his biased testimony to this effect unworthy of credence and
we do not see why this finding should be disturbed, considering that ha did not
even data introduce the testimony of said spouses and his mother, to corroborate
him.

Appellant testified that he was playing mahjong, in a club near the seem of
the shooting, when the same took place; that he did not leave Bauan, Batangas,
until March 19th, whan he went to Manila for business purposes, not to escape
arrest or prosecution; and that, when he learned in Manila, about three (3)
weeks later, that he was being suspected as the culprit, he returned to Bauan
and contacted its Chief of Police. This defense cannot aven be considered as an
alibi, for appellant testified that he heard tha shooting while he was alleged
ly playing mahjong, so that it was not physically impossible for him to have
been at the scene of the crime, when it was committed. Furthermore, his
testimony to the effect that he did not leave Bauan until two (2) days after the
occurrence, is contradicted by the Chief of Police and Sgt. Sistona, for they
testified that both repaired to tha place of the shooting, immediately after the
occurrence; that, upon investigation conducted on the spot, they found out that
appellant was the culprit and this was confirmed by Masagpag’s. ante-mortem
declare tion, made, in the hospital, later that evening; that, thereupon, they
tried to apprehend appellant, but,he could not be found anywhere, either in
Bauan, Batangas, or in Manila, where the Chief of Police want twice, provided
with a search warrant; and that, about a month later, appellant showed up, ready
to post the corresponding bail bond. The lower court, did not err in holding
that appellant’s flight had been established and in considering this
circumstance as indicative of his guilt, which has been proven beyond reasonable
doubt.

The crime committed, in connection with Criminal Case No. 28 G. R. No.
L5844), is murder, qualified by treachery. Although the offense was perpetrated
at night time, this fact should not be considered to aggravate the offense, for
apart from being, under the circumstances surrounding the case, included in
treachery, it was not sought purposely, the aggression having been provoked
evidently by the fist-fight that had preceded the same. No modifying
circumstance having attended the commission of the offense, the penalty for
murder should be imposed in its medium period, namely, life imprisonment. Hence,
appellant should be sentenced to this penalty only. without the benefit of the
Indeterminate Sentence Law, which is not applicable to this case.

As regards Criminal Case No. 29 (G. R. No. L-5845), the lower court
considered the crime committed as attempted murder, merely because the injuries
sustained by Paulino Abarquez were not necessarily mortal. This fact, does not
suffice, however, to warrant tha conclusion drawn by the lower court. It having
been established that appellant had performed all the acts of execution
necessary to kill, and yet did not produce the desired result, the crime
committed is frustrated murder, not attempted murder. Hence, ha should be
sentenced in Case No, 29 to an indeterminate penalty ranging from four (4)
years, two (2) months and one (l) day of prision correccional to twelve (12)
years and one (1) day of reclusion temporal.

Thus modified as to the penalty in both cases, the decision appealed from is
hereby affirmsd. in all other respects, with costs against appellant Rogaciano
Cuevas.

IT IS SO ORDERED.

Pablo, Bengzon, Montemayor, Reyes, Bautista Angelo, Labrador, and
Reyes, J.B.L., concur.