G.R. No. L-13966. June 30, 1960
[WITH RESOLUTION OF SEPTEMBER 30, 1960]
LABRADOR, J.:
Hon. Jose R. Querubin, presiding, finding Alberto Dacudao,
defendant-appellant, guilty of the crime of murder and sentencing him
to reclusion perpetua, to pay the heirs of the deceased Angel Sobrepeña the sum of P6,000.00 and to pay the costs.
The record discloses the following facts: In the evening of December
2, 1957 Angel Sobrepeña attended the dance at a dance hall in Sta.
Barbara, Iloilo. The defendant-appellant was also present at the dance
hall. He carried with him to the dance hall a garand rifle, with which
he was provided as a soldier of the Constabulary. Sometime before nine
o’clock that evening Sobrepena was seen dancing. About that time
Dacudao had sat down on a desk near the orchestra (7-Up-Tombo), his
rifle in his hands. After Sobrepeña had finished dancing and while he
was in the hall, the gun that Dacudao was holding exploded or fired,
hitting Sobrepeña in the chest, as a result of which he fell down on
the floor of the hall dead.
The witnesses for the prosecution testified that Dacudao was seen
passing, not through the gate, but through an opening in the fence
surrounding the dance hall; that before ten in the evening, Sobrepeña
was seen dancing with a partner, while Dacudao was seated in a table
near the orchestra; that when the dance was over, Sobrepeña brought his
partner to a seat and thereafter proceeded to the gate of the dance
hall, holding and tapping his cigarette; that while in that position
Dacudao approached him from behind and then called Sobrepeña by his
name Procoy. Sobrepeña, thereupon, turned around smiling, but just as
he did so Dacudao fired his rifle at Sobrepeña, hitting him in the
chest; that one Constabulary soldier tried to wrest the gun from
Dacudao but the latter shoved him aside and went away.
The Municipal Health Officer of Sta. Barbara examined the cadaver
the following day and made the following post-mortem findings:
“* * * * * * * *
5. Evidence of bullet hole in the Camiseta, blood stained, tho no evidence of powder barns.
6.
Entrance gunshot wound, 8½ cm. away from the mid eternal line left
chest at the level of the 5th interspace, 2 cms. below and 2½ cms.
inside the nipple.7. There is presence of contusion colar at the lateral half of the margin or lips of the wound. Wound diameter 1 cm.
8.
Exit, gunshot wound 2½ cms. X 3 cms. right chest, level of the fifth
rib in the mid auxiliary line 13 cms. below the right axila. Distance
of wound from mid sternal line to exit of wound is 20 cms.9.
That and thru gunshot wound antero-proximal third right arm traversing
anterior to the right humerus with exit at the postero-lateral side 1
cm. below the level of wound of the opposite side. Wound measurement;
antero proximal third is 3 cms. x 2 cms. whereas postero lateral is 5
cms. X 2½ cms. Greater measurement follows axis of the body.10. Thoracic cavity filled with dark fluid blood, with coagulated blood about the size of 3 closed fists were extracted.
11. Pericardium was perforated at the base with grazing wound at the dependent portion of the right ventricle.
12. Diaphragm perforated.
13. Liver right lobe ruptured.”
A last witness for the prosecution is the Chief of Police of New
Lucene, Iloilo, who testified that on December 3, 1957, Dacudao
presented himself at his office at 9:30 a.m. and told him he was
surrendering in connection with the killing of Procoy in Sta. Barbara,
explaining that he did so because a few months before Procoy
(Sobrepeña) had mauled him at the same place in Sta. Barbara as a
result of which his arm was broken (at the same time showing his
fractured and broken hand). The Chief said that Dacudao had arrived at
his office earlier, and had put his rifle on a rack.
Defendant-appellant describes that the killing had happened thus:
“A—While I was sitting at the desk I held my rifle
pointing upwards, my right hand holding it at the balance and then my
left hand holding my rifle at the upper handguard. After the orchestra
has played a piece and the dancers were through dancing, I tried to
look around if I knew somebody inside the dance hall. Suddenly somebody
grabbed my rifle and I was caught by surprise. Because of the
suddenness of’ the grabbing of my rifle my left hand holding the upper
handguard slipped to the barrel and my right hand slipped also to the
small of stock of my rifle of the trigger. And because of the
suddenness of the grabbing of my rifle at the barrel, I unconsciously
squeezed the trigger. So that recovering my poise, I had to pull my
rifle back and at the same time I heard him say that ‘so you are still
alive’. At the same time when my rifle was grabbed, and I was taken
along with my rifle and because of the suddenness I automatically
released the safety lock of my rifle and as I pulled back my rifle that
was when I squeezed the trigger and he fell.”
One of the witnesses for the defense, the one who was detailed to
guard at the dance hall testified for the prosecution. All that he
declared is that as he heard the shot he went to find where it came
from and found there at Sobrepeña sprawled. Another witness testified
that Sobrepena and Dacudao were struggling for the possession of the
rifle. The third testified that he saw Sobrepena approaching Dacudao,
trying to grab the gun from the latter, and that as the gun was pulled,
it fired and the person grabbing it fell and died.
The story given by the defendant-appellant is hard to believe,
especially that which explains how the safety locked happened to be
released and the trigger pulled and the gun fired. The deceased could
not have had the rash imprudence of approaching an armed man just to
grab the latter’s gun. That given by the witnesses for the prosecution
appears to be more in accord with the ordinary conduct of men. But the
post-mortem findings corroborate completely this theory, and
conclusively prove the falsity of the theory of the defense. In the
first place, the lack of powder traces on the undershirt around the
hole caused by the bullet prove that appellant and victim were not
close to each other when the shot was fired. In the second place, the
direction of the wound on the chest of the victim, that is from the
left to the right side, proves that appellant and victim could not have
been face to face, struggling for the possession of the rifle, as
claimed by appellant. Lastly, nothing was shown to prove that the
eye-witness who testified for the prosecution did not testify
truthfully either because they were partial to the deceased and were
enemies of the appellant. On the other hand, the witnesses for
appellant were fellow soldiers whose esprit de corps must
have induced them to protect their colleagues, the appellant, and save
him at any cost even to the extent of falsifying the truth.
The lower court found that the crime was committed with the
aggravating circumstances of evident premeditation and treachery,
offset by the mitigating circumstance of voluntary surrender. There is
no doubt in our mind that treachery attended the commission of the
offense because the appellant shot the deceased after calling the
latter by name and as the latter was turning towards the accused,
unprepared to defend himself against the sudden attack of the
appellant. This aggravating circumstance qualifies the crime. We do not
believe, however, as the trial court does, that evident premeditation
was present and attended the shooting. There is no evidence to show
that the appellant had known that his victim was going to the dance
hall in the evening in question; neither was there any other evidence
to prove this aggravating circumstance. The Solicitor General also
believed that the aggravating circumstance of evident premeditation is
not sufficiently proved. On the other hand, the mitigating circumstance
of voluntary surrender is admitted by both sides. Under the
circumstances, the crime is that of murder qualified by the aggravating
circumstance of treachery and the mitigating circumstance of voluntary
surrender. The penalty prescribed for the offense must therefore be
imposed in its medium degree, i.e., reclusion perpetua.
Wherefore, the judgment appealed from should be, as it hereby is, affirmed. With costs.
Bengzon, Montemayor, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.
Padilla, J., took no part.
R E S O L U T I O N
September 30, 1960
LABRADOR, J.:
On motion of defendant-appellant, which we find well- founded, the
dispositive part of the decision in this case is hereby modified to
read as follows:
“The lower court found that the crime was committed
with the aggravating circumstances of evident premeditation and
treachery, offset by the mitigating circumstances of voluntary
surrender. There is no doubt in our mind that treachery attended the
commission of the offense because the appellant shot the deceased after
calling the latter by name and as the latter was turning towards the
accused, unprepared to defend himself against the sudden attack of the
appellant. This aggravating circumstance qualifies the crime. We do not
believe, however, as the trial court does, that evident premeditation
was present and attended the shooting. There is no evidence to show
that appellant had known that his victim was going to the dance hall in
the evening in question; neither was there any other evidence to prove
this aggravating circumstance. The Solicitor General also believes that
the aggravating circumstance of evident premeditation is not
sufficiently proved. On the other hand, the mitigating circumstance of
voluntary surrender is admitted by both sides. Under the circumstances,
the crime is that of murder qualified by the aggravating circumstance
of treachery and the mitigating circumstance of voluntary surrender.
The penalty prescribed for the offense must therefore be imposed in its
minimum degree.
Wherefore, the judgment appealed from should be, as it hereby is,
modified, and the imprisonment reduced to an indeterminate sentence
which shall not be less than twelve years of prision mayor nor more than 17 years, 4 months and 1 day of reclusion temporal. With costs.
Paras, C. J., Bengzon, Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.