RODRIGO DACANAY, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DISSENTING OPINION

DE CASTRO, J.:

I regret to have to dissent.

The only issue which petitioner submits as a legal ques­tion for
which this petition was given due course (Rollo, p.
35), is whether under the facts as found by the Court of Appeals, he was
properly convicted, it being his contention that, in the light of applicable
jurisprudence, he has not had any previous agreement with one Victor Buduan, who actual­ly stabbed and killed the deceased who
admittedly died because of the fatal wound inflicted upon him by said Victor Buduan (still at large), nor joined the latter in his
criminal design, the act imputed to him being innocent or guiltless.  The facts as found by the Court of Appeals to
have been duly established by the evidence may thus be quoted from the latter’s
decision, upon which to base, primarily, the determination of the plausi­bility
of petitioner’s submission.  Thus:

” * * *.  There is no
dispute on the fact that at about 8:00 in the evening of June 3, 1967, in the
house of herein appel­lant Rodrigo Dacanay at barrio Caraniogan, San Miguel, Isabela,
a card game was being played by (1) Rodrigo (the appellant); (2) his cousin,
Victor Buduan; (3) Fermin
Esteban; (4) Esmeraldo Pagatpatan;
(5) Cresencio Doctor; and (6) the deceased Luis
Cortez, Jr. alias Abraham Cortez.  The
prosecution maintains that during the card game a quarrel ensued between Victor
Buduan, appellant’s cousin, on one hand, and Luis
Cortez, Jr., on the other, resulting into the stabbing of said Luis Cortez, Jr.
by Victor Buduan with a scythe, with the herein
appellant allegedly directly participating by holding the hands of the victim
when the latter (victim) was assaulted. 
The inform­ation alleges that appellant Rodrigo Dacanay,
together with Victor Buduan who is still at large,
conspired and confederated together and helped one another in the commission of
the act complained of.  On the witness
stand, appellant denied participation and alleged that it was Victor Buduan alone who stabbed Luis Cortez, Jr. causing the
latter’s death (tsn. 117).  (pp. 1-2, Decision)”

Citing various cases,^[1]
petitioner develops his theory that he never joined the principal accused,
Victor Buduan, in the latter’s intention to kill the
deceased, or any criminal design, and so, he is not liable either as a
co-principal, or even as mere accomplice, as the Solicitor General believes to
be his correct liability.  As a general
proposition, insofar as the community of criminal purpose is concerned, what is
necessary to be shown with respect thereto as regards an accomplice, is the
same as what would be required to convict one as principal;^[2]
although it has been held that, “an accomplice does not enter into a
conspiracy with the principal by direct participation.  He does not have previous agreement and
understanding with the principal to commit a crime.  But he participates to a certain point in the
common criminal design.”^[3]

I have adverted to the ruling which provides the test for the
determination of when an accused is guilty as a mere accom­plice and not as a
principal by direct participation, as appel­lant was found to be guilty of,
because of the Solicitor General’s submission that appellant’s liability is
that of a mere accomplice.  I agree with
the Solicitor General as con­vincingly demonstrated by him,
that appellant’s liability is not that of a principal by direct
participation because of the absence of proof of a previous agreement or
conspiracy between appellant and the knife-wielder (Appellee’s
Brief, pp. 5-7).  A careful analysis of
the evidence to determine whether appellant is liable as an accomplice as
contended by the Solicitor General, or is entitled to an acquittal, as is
sought by appel­lant is, therefore, in order.

Upon the doctrine aforecited (see
footnotes 2 and 3), an examination of the duly established facts will show
neither with facility nor clarity, that petitioner had to a “certain
point” participated in the common criminal design.  The Soli­citor General states in his brief
that “appellant did not release his hold on the hands of the victim even
as he saw that Victor Buduan was stabbing the
latter.  At that precise moment,
appellant became aware of the criminal intent of Victor Buduan
and concurred with it.”^[4]
On this premise, the Solicitor General believes appellant’s liability is that
of an accomplice.

I do not read the evidence in the same way as the Solicitor
General, nor, with all due respect, the majority of my brethren does.  The evidence
fails to show clearly as to engender no reasonable doubt on the matter, how
sudden was the stabbing–as suddenness was manifestly suggested by the
evidence–so as to be able to determine whether appellant had the time to
release his hold before the act of stabbing was done, as not to be held that he
cooperated with Buduan or joined him in his homicidal
intent.  Neither is the evidence clear as
to suggest that appellant held the victim as if to give Victor Buduan the chance to stab the victim, because appellant
knew beforehand that Buduan wanted to, as he did,
stab the victim, or actually saw Buduan stab the
victim, which knowing and seeing would mark the existence of an intent on the
part of petitioner to join or participate in the criminal design of Buduan.  Appellant’s
holding the hands of the victim could have been to take him away from the reach
of the knife-wielder.  The following
question asked by the Court after a demonstration of how appellant held the
hands of the victim is believed to be significant:

“Court:

“      Q:  But Victor Buduan
was able to reach when he stabbed the latter (Cortez)?

“      A:  Yes, sir.”

From the question of the Court, it would seem that what was shown
in the demonstration as observed by the trial court is that in holding the
victim’s hands, appellant pulled him away from Victor Buduan, rather than pushed him nearer to the former.  At least there is created here an ambiguity
as to this fact that should be resolved in favor of the appellant’s claim of
having tried to separate the protagonists.

In the cases where the accused was held guilty as co­-principal
or as a mere accomplice, the evidence offered suffi­cient basis for a finding
that said accused had a common design, or concurred therein, to harm the
victim.  Thus, in the case of U. S. vs.
Valdez, et al., 40 Phil. 876, the victim Allarde was
followed by Valdez when he left the house where there was a gathering, upon
being upbraided by Valdez for having been a wit­ness against the latter in a
land case brought by Valdez against the victim’s brother.  Gamit and others
joined Valdez in follow­ing the
victim.  Then Gamit
held Allarde fast from behind with­out saying a word,
and while in this position, Allarde was stabbed by Valdez.  The Solicitor General himself vividly demon­strated
the difference between the present case and the Valdez
case.  Thus –

“In that case, there was a standing grudge entertained by the
principal accused Paulino Valdez against the victim,
such that the former told the latter that “he was a fool because he
(victim) had been a witness for his brother, Evaristo
Allarde, when the latter had a suit against Paulino concerning a
piece of land” (p. 877, supra). 
Here, there was no such standing grudge between appellat
Dacanay and the knife wielder Victor Buduan, on the one hand, and the deceased Luis Cortez, on
the other hand.  In the Valdez
case, both accused followed the victim when he went down the house to return to
the town and on arriving at a certain place, the two accused assaulted the
latter; whereas in the present case, the fight that resulted in the fatal
stabbing developed suddenly.  It is
apparent that in the Valdez case, sometime elapsed from the time Valdez made
the allusion that the victim was a fool up to the time when the assault actually
took place, during which intervening period the concert of purpose and criminal
intention between the accused Valdez and Gamit could
have been forged–a fraternal conspiracy made evident when said two accused
followed the victim down the house and up to a certain place.  On the other hand, there was, in the present
case, no such antecedent, inci­dent and no intervening period during which a
conspiracy between appellant Dacanay and Buduan could have been spawned and nurtured.  We respectfully submit that in this present
case, we cannot in conscience support and sus­tain the existence of conspiracy,
much as we are by the nature of our office ordinarily bound to advocate the
affirmation of the judg­ment of the Court of Appeals.” (pp.
7-8, Respondent’s Brief; p. 85, Rollo).

The Solicitor General apparently failed to note the fact that Gamit held the victim fast from behind, not while the
latter and Valdez were in the stance of facing each other in a heated quarrel,
which was how Buduan and the victim in this case were
poised against each other, calling for someone to intervene to avert an
imminent attack coming from Buduan who was the armed
protagonist.  Who but the
petitioner-appellant, as the owner of the house, would take on the role of the
paci­fier, as indeed, there is not the slightest hint of any motive on his part
to join Buduan in the latter’s intent to kill the
victim.

In his affidavit (Exhibit B), petitioner-appellant stated that
Victor Buduan boxed Luis Cortez, Jr., the victim,
because the latter was allegedly cheating in the card game.  If peti­tioner held the hands of Cortez, Jr.,
it could be to prevent him from retaliating and thus prevent a violent clash or
en­counter occurring in his own house. 
This is his claim, and the Solicitor General had nothing to offer to
show the improb­ability thereof.  The
Solicitor General said that “appellant Dacanay
was not entirely unaware of the criminal intent of Buduan
(the knife-wielder)–knowledge acquired at the precise time Buduan
was in the act of stabbing the deceased, which act appellant evidently saw as
he held the hands of the victim.” (p. 9, Respondent’s Brief) This, to me, is not supported by any hard evidence.

It is precisely in the lack of clear and positive evidence that
appellant saw Buduan in the act of stabbing the
victim and then appellant held the victim’s hand as an act indicative of his
joining Buduan’s criminal design, that I find no
reliable basis for the State’s submission that appellant is at least guilty as
an accomplice, much less as a principal. 
Appellant’s act of holding the victim’s hand could, with equal
credibility, have been motivated by a desire to prevent the victim from
returning the fist-blow he received from Buduan, but
not to prevent the victim from evading the stab, or parrying it with his hands
because it was appellant’s wish to have the thrust hit its mark with deadly
effect.  The evidence does not show
clearly that appellant knew of Buduan’s intent to use
his scythe to stab the victim, and knowing such intent, appellant joined the
same by holding the victim’s hand to make the assault fatally effective.  In the absence of such convincing proof, the
mind cannot set at ease on the certainty that appellant had any criminal design
in common with Buduan as to make him guilty at all,
as this fact has to be established beyond reasonable doubt to warrant
conviction.^[5]

The simultaneousness of the act of stabbing with that of holding
the hands of the victim by appellant does not of itself demonstrate concurrence
of wills or unity of purpose and action (U.S. vs. Magcomot,
13 Phil. 386, 389).  Verily, it could
demonstrate either the presence of a unity of purpose or concurrence of wills,
on the one hand, or a desire on the part of appellant to prevent a physical and
violent encounter, on the other, as is just natural of him as the owner of the
house to prevent any crime, specially one of violence, being committed in his
dwelling.  The rule is well-settled that
if the facts or circumstances, apparently inculpatory,
may equally be explained showing innocence, the evidence does not fulfill the
test of moral certainty to support conviction.^[6]
In my humble opinion, the inculpatory facts as proven
by the evidence are equally consistent with the innocence of the appellant,
particularly upon the lack of motive for him to have joined the homicidal
intent of the knife-wielder who has remained at large up to the present.

Appellant’s interposing subsequently the defense of alibi in open
court which is entirely unsustainable in the face of his own sworn statement
(Exhibit B) that he held the hands of the deceased, and the testimony of state
witnesses affirming this very act of appellant, admittedly weakened his defense
of having held the hands for no other purpose than to pacify the
protagonists.  The fact, however, remains
that appellant’s affidavit (Exhibit B) is his spontaneous statement given just
after the incident, and should be assessed for veracity and truth without
injecting the alibi he interposed much later, evidently after a misguided counselling.  The
Solicitor General must have, likewise, felt that appellant’s defense of alibi
was due to injudicious coaching possibly from appellant’s counsel, from which
appellant should not be made to suffer, that he (Solicitor General) made no
reference at all to said defense in the People’s Brief, entirely ignoring it,
in making his recommendation for a lesser liability in favor
of appellant.

What suggests itself for proper application in this case is the
principle that conviction must be based on the strength of the prosecution’s
evidence, not on the weakness of that of the defense.^[7]
Say that by the abandonment in open court, when appellant had already had the
benefit of counsel, of his original version as set forth in his affidavit (Exhibit B), the
evidence of the defense has been weakened, yet the prosecu­tion’s evidence, by
itself, is not strong enough to support, conviction.  As shown earlier, it also suffers from
weakness on vital points, such as (1) the absence of opportunity for appellant
to have nurtured the intent to join in the criminal design to kill on the part
of Buduan, the knife-wielder; and (2) lack of motive
on his part sufficient to induce him to join in the homicidal intent of the
actual killer, for his motive to pacify as he claimed in his affidavit (Exhibit
B), is made persuasive by his being the owner of the house where card games are
played, and is, therefore, desirous to preserve the peaceful atmosphere under
which to continue the playing of the game therein.  It is also significant that the actual killer
had gone into hiding, betraying his sense of being the one solely and
exclusively responsible for the killing, possibly fearing appellant’s rage for
taking a man’s life right in his house.

I am, therefore, constrained to disagree with the Solicitor
General as well as the majority, in refusing to accept appel­lant’s bid for
acquittal under the authority of People vs. Ibañez,
77 Phil. 664, where this Court held that Sixto Ibañez had no knowledge of the criminal design or intention
of his brother Irineo of stabbing the deceased Cosme Magalang, under the
following facts:

“Sixto’s act of holding Cosme’s neck from behind is no proof of intention to
kill.  At that time he did not yet know
what his brother’s intention was.  It is
not shown that Sixto knew that his brother was
armed.  Irineo
stabbed Cosme in such a sudden and unexpected manner
that one of the eye-witnesses, Antonio Calagdan, did
not even notice that Irineo’s blow carried a dagger
with it.  And Sixto
showed surprise when later he saw the blood­stained dagger of his brother Irineo, and asked him ‘what did you do?'”

In like manner, when appellant held the hands of the deceased,
there is no positive showing that the former knew of Buduan’s
intention to kill the latter, the stabbing being equally so
sudden and unexpected as in the case above cited.  The Solicitor General’s observation that
“appellant Dacanay was not entirely unaware of
the criminal intent of Buduan (the
knife-wielder)–knowledge acquired at the precise time Buduan
was in the act of stabbing the deceased which act appellant evidently saw as he
held the hands of the victim, has absolutely no support in the evidence.  It is hard to concede that “at the
precise time Buduan was in the act of stabbing the
deceased” which it takes only a split second to accomplish, appellant
could have joined in the homicidal design of Buduan.  Neither is there positive evidence that
appellant saw the very act of stabbing, the Solicitor General himself merely
saying that appellant evidently
saw the act, just because prosecution witnesses Cresencio
Doctor and Fermin Esteban testified that they saw the
act of stabbing, and on this mere assumption and conjecture, he concludes that
appellant cannot successfully pretend that he never knew, at any stage of the
assault, of the criminal design of Buduan, or that he
did not cooperate with moral or material aid in the consummation of the
crime.  In the first place, I cannot see
that the swift and fast act of
stabbing may be divisible into stages. 
Secondly, even assuming that if the act of appellant aided in the
consummation of the crime, the aid was not knowingly nor wilfully
given with criminal design or intent, as had already been demonstrated.

Accordingly, I vote to acquit the petitioner of the crime
charged, or at most, to join the Solicitor General in his recommendation that
petitioner be found guilty only as an accomplice, not
as a co-principal.

^[1]
People vs. Tamayo, 44 Phil.
38; People vs. Caballero, 53 Phil. 585; People vs. Cara, 48 Phil.
216; People vs. Martinez, 62 Phil. 85.

^[2]
People vs. Tamayo, 44 Phil.
38.

^[3]
People vs. Aplegido, et al.,
76 Phil. 571.

^[4]
Respondent’s Brief, p. 7.

^[5]
People vs. Cajandab, 52 SCRA
161; People vs. Custodio, 47 SCRA 289; People vs.
Tamayo, 44 Phil. 38; Cariño
vs. People, 7 SCRA 900.

^[6]
People vs. Pacana, 47 Phil.
48; People vs. Abana, 76 Phil. 405.

^[7]
People vs. Barrera, 82 Phil. 391; Alfredo Duran vs. The Hon. Court of Appeals and The People of the Philippines,
71 SCRA 68.