THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. ELPIDIO BELCHEZ, DEFENDANT AND APPELLANT.

Charged with murder and tried
therefore upon a plea of not guilty in the Court of First Instance o
Catanduanes, Elpidio Belchez was found guilty as charged and correspondingly
sentenced to suffer the penalty of reclusion perpetua, to in­demnify the heirs
of Gregorio Subion in the sum of P6,000.00, Philippine currency, without
subsidiary imprisonment in case
of insolvency in view of the nature of the penalty, and to pay the costs.

The prosecution evidence
shows that at about 10:30 o’clock in the evening of April 10, 1960, while Raymundo Samodio, Gil Vargas, Norberta
Subion and Gregorio Subion were fishing along the seashore of Asgad, barrio
Codon, Municipality of Calolbon, Catanduanes, they were stoned.  They did not mind it at first, but when the
third stone hit Raymundo Samodio on the left shoulder, Gregorio Subion flashed his petromax lamp towards the
direction where the stones came from and saw appellant emerging from the clusters of rock near the
shore and approaching Gregorio Subion. As the latter stooped down to place his
lamp on the ground, appellant struck him on the face with a stone and, as the victim fell to the ground,
appellant rode on his back, and holding Subion’s left shoulder he continued
pounding upon his head and face with the stone in his hand.

Seeing her helpless brother, Norberta asked appellant why he was killing her brother, but
appellant paid no attention to her and continued hitting Gregorio until the
latter fell un­conscious.  Appellant then
left the place.  Thereafter, Nor­berta
shouted for help, but her companions ran away. 
She then walked along the shore holding the petromax lamp.  Upon reach­ing the road, she met Nazario
Belchez, appellant’s father, whom she informed that her brother Gregorio had
been killed by a person whom she knew. 
Thereafter, Nazario, his son Alejandro, Raymundo Samodio and Gil Vargas
carried Gregorio first, to the house of the latter and later
tried to take him to a hospital, but he died on the way.

An autopsy performed on
the body of the deceased on April 12, 1960 by Dr. Ramon J. Bañas, municipal health officer of Calolbon, showed that he suffered
the following injuries:

“1.  Wound, lacerated, about 2 inches long, 1 inch
deep, middle 3rd., superior 3rd., occi­pital region, head.

“2.  Wound, lacerated, about 2 1/2 inches long, 1 inch deep,
S-shape, latero-medial, su­perior 3rd., right side, occipital region, head.
Beneath the wound is the site of fracture skull.

“3.  Wound, lacerated, about 1 inch long, 1 inch
deep, lateral 3rd., superior 3rd., occipital region, right side, head.

“4.  Wound, lacerated, about 3/4 inch long, 1 inch
deep, latero-medial 3rd., superior 3rd., occipital region, left side, head.

“5.  Wound, lacerated, about 3/4 inch long, 1 inch
deep temporal region, middle 3rd., left side, head.

“6.  Wound, lacerated, right cheek, about 1 inch
long, 1 inch deep, with ecchemosis, up­per face.  Site of fracture
skull.

“7.  Wound, crushed, lower 3rd., mid-bridge, nose.

“8.
Wound, lacerated, about 3/4 inch long,
about 1/2 inch deep below the lower eyelid, medial portion, left, eye, face.

“9.  Wound, lacerated, about 3/4 inch deep, 1 inch
long, latero-medial 3rd., su­perior 4th., forehead, right side, head.

“10.  Wound, crushed, anterior 4th., temporal
region, left side, head.”  (Exh.
“L”)

In this appeal appellant contends that the trial court erred in
convicting him of murder; that even granting that the prosecution evidence has
established his guilt, the crime proven was only that of homicide; and finally,
that the trial court erred in admitting Exh. 
“1” (polo shirt) (p. 38; tsn Lisud) over the objection of his
counsel.

Appellant relies mainly upon an alibi, claiming that he spent the
whole day of April 10, 1960 with his brother and father in Balonganon and
Caramoran, returning to Asgad only at about 6:00 o’clock in the evening; that
from then up to late 10:00 o’clock he was at home slicing and salting the fish
they brought home for sale the
following day; that at about 10:00 o’clock he went to sleep in the room adjacent to the table where his father slept;
that he was charged for the death of Subion because a few months before the
killing, Samodio and Norberta Subion had a misunderstanding with him regarding
the death by poisoning of his chickens, geese, ducks and pigs upon entering the
ricefields of the Subions; that the Belchez family is the only clan not re­lated
to the other residents of barrio Asgad. 
His testimony in support of these contentions was corroborated by that
of his father, who asserted that he was sure his son, Elpidio, was asleep in
the room of the house when he, his other son and daughter and others went to
the seashore upon being informed of the incident by Norberta Subion.

The prosecution evidence, however, clearly identified appellant
as the one who killed Gregorio Subion. 
The latter’s Sister, Norberta, and Raymundo Samodio testified
categorically that it was appellant, their neighbor, whom they recognized by
the light of the moon and the petromax lamp that Gregorio had placed on the
ground, as the one who stoned them and ul­timately assaulted the deceased with
a stone. Moreover, the testimony of Apolonio Sumalde, to whom appellant had
confided his intention to kill “someone” and whom he had forced to
join him at the seashore, clears any possible doubt regarding the identity of
the person who assaulted and killed Gregorio Subion.  Sumalde – a young man of twenty at the time –
could not have possibly concocted the details of the incident freely related by
him to the authorities shortly after its occurrence in the presence of other people.  Besides he was a friend and neighbor of
appellant and there is absolute lack of evidence showing that; in giving
testimony against him as he did, he was moved by some improper motive.

Furthermore, the house of appellant where, according to him, he
was asleep at the time of the commission of the crime, was located at a short
distance from the place of the killing. 
Thus, it was not physically impossible for him to have returned home
immediately after committing the crime.

It is true that most of the prosecution witnesses were related to
the deceased, one way or the other, but this circum­stance alone is not
sufficient to destroy their credibility. 
The inconsistencies and contradictions in their testimony pointed out by
counsel for appellant – even if true – are not sufficient to detract from, much
less destroy, their credi­bility; to the contrary, they might be taken as
indicating lack of agreement or conspiracy among the witnesses to tes­tify in
the same manner (People vs. Pascual, G. R. No. L-4801, June 30, 1953).

In view of what has been stated
above, We find it unne­cessary to discuss the question of whether or not the
lower court erred in admitting the shirt Exhibit 1 as part of the prosecution
evidence.

The evidence of record,
however, does not prove beyond reasonable doubt neither premeditation or
alevosia.  What appellant had confided to
Apolonio Sumalde – about his in­tention to kill “a person” – did not
have any particular reference to the deceased Gregorio Subion.  As this is the main evidence that could be
relied upon to prove premedi­tation, We are forced to conclude that this particular cir­cumstance has not been
established beyond reasonable doubt.

As to treachery, We have
reached the same conclusion; the evidence of record is insufficient
to show that appellant assaulted the deceased under such circumstances as to be
sure to take the latter by surprise while avoiding danger for himself at the
same time.  As a matter of fact he first
threw stones at Gregorio and his companions – this obviously having served to
put them on guard; the weapon used was but a stone, and the attack upon
Gregorio was made in the immediate presence of the latter’s
companions.

WHEREFORE, We find appellant guilty only of homicide,
without any modifying circumstance attending the commission of the crime.  Therefore, the imposable penalty is reclusion
temporal in its medium period.  Applying
the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of
six (6) years and one (1) day of prision mayor, as a minimum, and fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal, plus the
accessories of the law, as maximum.

Thus modified, the judgment appealed from is affirmed in all
other respects.

Reyes, Acting C.J., Makalintal, Bengzon, Zaldivar, Sanchez,
Angeles, and Fernando, JJ., concur.

Castro, J., did not take part.