PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. RAUL BASBANIO, ET AL., DEFENDANTS AND APPELLANTS.

Raul Basbanio, Reynaldo Alimodian and Deroetrio Alimodian are
charged with the crime of murder with assault upon an agent of a person
in authority committed in the language of the information filed by the
Assistant Fiscal of Iloilo, as follows:

That on or about March 28, 1958, in the
municipality of Barotac Viejo, province of Iloilo, Philippines, and
within the jurisdiction of this Court, the said accused, conspiring and
working together, armed with a. butcher’s knife, with treachery and
evident premeditation and with a decided purpose to kill, did then and
there wilfully, unlawfully and feloniously, attack, assault and stab
several times one Policeman Gonzalo Avanceña of the Police Force of
Barotac Viejo, Iloilo, while the latter was in the performance of his
official duty, inflicting upon the said Gonzalo Avanceña wounds on the
different parts of his body which caused his death thereafter.

Contrary to law. (crim. case No. 6866)

After trial, the court found the three defendants guilty beyond
reasonable doubt as charged and sentenced each of them to suffer the
maximum penalty of death, the accessories of the law, to indemnify the
heirs of the deceased corporal Gonzalo Avanceña in the sum of six
thousand pesos, and to pay the costs.

From the verdict and. sentence, the three defendants have appealed.

On 28 March (Friday) 1958, a market day in the barrio of Calaigang,
Barotoc Viejo, Iloilo, at about 11:00 and before 12:00 o’clock noon, a
woman “tuba” vendor in the public market of the barrio approached
Dionisio Yap, market fee collector, to complain that a young man by the
name of Raul Basbanio had taken all the “tuba” she was selling to
another place without paying for it and asked him to intervene to help
her retrieve the beverage or be paid for it. As he was just a fee
collector in the market, he told the woman to call on a policeman.
Heeding the advice the woman proceeded to the police station and there
preferred her complaint. A few minutes later Dionisio Yap, who was at
the main gate of the market, saw corporal Gonzalo Avanceña in police
uniform and Raul Basbanio pass by the gate and heard the former say to
the latter: “Why are you doing that here? Are you not ashamed to the
people here in Calaigang”? They walked together towards the police
station but did not reach it, because upon reaching the chicken stall
(point in Exhibit C) Avanceña was suddenly surrounded by the three
defendants. Raul Basbanio facing Avanceña stabbed him, while Reynaldo
Alimodian and Demetrio Alimodian stabbed him at the back. While the
three assailants were wrestling with him for the possession of the
latter’s gun that was on his waist, Salustiano Bomaras, the barrio
lieutenant whose house was just in front of the market across the
provincial road, went down and tried to stop them by shouting: “Why are
you fighting the policeman, are you not ashamed, you fools, you boys,”
but the latter paid no attention to the former admonition (Exhibit 1).
While Dionisio Yap was standing near the place of the affray, he saw
the breast of Avanceña spurting blood, his revolver held and raised by
his right hand and three other hands holding and twisting his right
hand to wrest possession of the gun. Due to shock and profuse bleeding
caused by several deep stab wounds inflicted in different parts of his
body, Avanceña losened his grip of the revolver, Demetrio Alimodian
succeeded in snatching it from him and handed it to Basbanio. The three
assailants then left the market place and proceeded to barrio San
Rafael . Avanceña sagged by pressing his hands upon his breast and
stomach he succeeded in rising, walked about seven meters towards the
police outpost, staggered and fell to the ground, Salustiano Bomaras,
the lieutenant of the barrio, who came to the place asked Avanceña who
had stabbed him and the latter, fast sinking and unable to utter a
word, moved three fingers of his right hand pressed on his breast, in
the presence of Dionisio Yap, and then expired. Having learned from the
people of the stabbing in Calaigang public market, patrolman Donato
Aniversario left his beat in San Rafael to go to Calaigang and on his
way he met patrolman Pedro Alimodian, together with the two sons,
Reynaldo Alimodian and Demetrio Alimodian and Raul Basbanio, whose
clothes were spattered with fresh blood. Patrolman Alimodian
surrendered the three young men and handed to him Avanceña’s revolver
and Basbanio’s knife (Exhibit B) and its scabbard (Exhibit B-1).
Patrolman Aniversario instructed patrolman Alimodian to take the three
young men to the police station of San Rafael and hold them there, as
he (Aniversario) was to investigate the killing in barrio Calaigang. In
the public market of Calaigang near the police outpost, Aniversario
found the body of corporal Avanceña in police uniform stabbed dead.
Without moving the body of the slain officer, Aniversario took the key
from the pocket of the deceased’s khaki pants and returned to San
Rafael . Upon his arrival in barrio San Rafael , Aniversario opened the
door of the detention cell, removed the knives and firearms kept
therein and locked up the three accused. When the truck bound for the
town arrived Aniversario put on board the track Raul Basbanio and
Reynaldo Alimodian leaving behind Demetrio Alimodian in the custody of
his father, who requested that his son Demetrio be allowed to see his
wife and son before going to town. After entry of the report on the
police blotter (Exhibit E-1 in Exhibit 7) the two accused were detained
in the municipal jail of Barotac Viejo. Upon his return to Calaigang
that same afternoon Aniversario saw a PC lieutenant and some PC
soldiers and a municipal police sergeant already conducting a spot
investigation. A few minutes later police sergeant Villarosa ordered
him to return to barrio San Rafael . At about 5:05 o’clock in the
afternoon of that same day, Dr. Trinidad Lumampao, the municipal health
officer of Barotac Viejo, Iloilo , examined the cadaver of the deceased
and issued the following—

SUMMARY OF AUTOPSY FINDINGS

Injuries

1. Seven (7) deep stab penetrating wounds as shown and numbered in the fasehnile and described below:

(1) Angular type deep stab penetrating wound
located around one inch above the right nipple around one inch in
length and five inches in deep, reaching the middle lobe of the right
lung.

(2) Deep stab penetrating wound located over the right
lateral side between the 8th and 10th rib cutting the 9th rib. Around
one inch in length and 5 inches in deep. Penetrating’ the anterior lobe
of the liver.

(3) Deep penetrating stab wound located over
the back around 1/2 inch lateral of the vertebral border of the left
scapular bone one inch in length and 5 inches in deep cutting the 4th
rib. Penetrating the left lung.

(4) Deep penetrating stab
wound located below the right inferior angle of the right scapular bone
around one inch in length and 5 inches in deep penetrating the right
lung.

(5) Deep penetrating stab wound located at the back
around 4 inches below the inferior angle of the right scapular bone
around 3/4 inch in length and 5 inches in deep penetrating the right
lung.

(6) Deep penetrating stab wound located over the left
lateral side just below the last rib around 2 1/2 inches in length and
5 inches in deep penetrating the stomach.

(7) Deep
penetrating stab wound located around 2 inches below the 6th described
wound above. Around 1 1/2 inch in length and o inches in deep over the
left lateral side.

CAUSE OF DEATH

Shock and
severe hemorrhage due to deep penetrating stab wounds which injured the
liver, right lung, left lung and stomach as described from the above
findings. (Exhibit A)

He testified that he had examined the cadaver of the deceased
Gonzalo Avanceña and that the cause of death was shock and severe
hemorrhage due to seven deep and penetrating stab wounds that the same
wounds that caused the instantaneous death of Avanceña could have been
caused by three kinds of instruments including the knife (Exhibit B) as
shown by the size, nature and position of the different wounds
inflicted.

Raul Basbanio claims that he acted in self-defense when he killed
corporal Gonzalo Avanceña. He testifies that in the public market of
barrio Calaigang about noon after he had answered the policeman that be
did not know who had taken the “tuba” of the woman vendor he was
collared in front of Supersticioso store by Avanceña who assaulted him
with heavy fistic blows in such, a manner that caused him (Basbanio) to
urinate; that despite his entreaties not to be maltreated he was
dragged to the chicken stall where he was boxed, kicked and manhandled;
that when Avanceña shouted at him saying “I am going to kill you, you
son of a bitch” and at the same time drawing his revolver from his
waist, he held fast Avanceña’s right hand holding the gun until it
fired grazing his (Basbanio’s) temple; that sensing that the police
officer he previously had served as bodyguard would really kill him he
took his butcher’s knife, stabbed the officer in the breast and kept on
stabbing him when everything in his mind turned black; that he alone
killed the deceased officer, there being no other person who came near
except Reynaldo Alimodian who tried to stop him from stabbing the
officer saying “Raul what is the matter with you?”; and that believing
that Reynaldo Alimodian eame to help Avanceña, his father being a
policeman like his adversary, he thrust at Reynaldo Alimodian with his
(Basbanio’s) knife that missed the mark.

Ana Mermejo, a septuagenarian defense witness, corroborated the testimony of Raul Basbanio.

Reynaldo Alimodian and Demetrio Alimodian denied complicity in the
killing. Reynaldo Alimodian corroborated the testimony of Raul
Basbanio. Demetrio Alimodian corroborated his brother’s testimony.
Abelardo Batiller, the one running the gambling table in the market,
and Severino Patopatin, a farmer and merchant of said barrio,
corroborated the testimony of the Alimodian brothers. Telesforo
Barsanas, nephew of patrolman Alimodian’s wife, corroborated the
defense evidence that the deceased officer was not wearing a police
uniform and badge or insignia.

The appellants’ respective claims of self-defense and
non-participation in the killing of the deceased corporal Gonzalo
Avanceña of the municipal police cannot be given credence in the face
of the clear, direct and positive testimony of the witnesses for the
prosecution who were just a few meters away from the place where the
crime was committed, said witnesses not having any grudge or
ill-feeling towards the appellants.

The appellants’ contention that corporal Gonzalo Avanceña was
killed by Raul Basbanio alone in their attempt to save the other two
appellants, sons of patrolman Pedro Alimodian who was a fellow officer
of the deceased, cannot be sustained. Autopsy findings show that the
various deep stab wounds were caused by three different weapons and
that their size and position were not inflicted by only one person. The
physician who performed the autopsy of the cadaver testifies that the
stab wounds could have been caused by “at least three kinds of
instruments * * *” (p. 8, t.s.n.).

The fact that when patrolman Donato Aniversario met the appellants
he saw their shirts smeared with blood is a positive proof the
appellants had grappled and wrestled with the deceased when they tried
to wrest the gun from him.

Although the victim was armed with a gun which he could have used
to defend himself, yet there was treachery even if there had been none
at the inception, because the sudden assault by the appellants by
stabbing him in his front, side and back, holding his hands and
wresting his gun rendered him, defenseless. The fact that one of the
assailants held him in the front and the other two assaulted him at the
back was an aggression tending directly and specially to insure its
execution, without risk to the aggressors arising from any defense
which the assaulted person might make.^[1]

The offense committed is the complex crime of murder with assault
upon an agent of a person in authority (Articles 248 and 148 of the
Revised Penal Code).^[2] Pursuant to article 48 of the same code, the penalty for the most serious crime should be imposed, which is death.

The mitigating circumstance of voluntary surrender by the
appellants may be taken into account. The circumstance of superior
strength is absorbed by the qualifying circumstance of teachery.

The Solicitor General recommends that the penalty of death be meted
out to the appellants in view of the seriousness of the crime committed
and in order to deter people from trampling upon and disobeying
law-enforcing agents entrusted with the duty and authority to preserve
peace and order in the community.

The presence of a mitigating circumstance could not reduce the
penalty provided for by law for the complex crime committed by the
appellants, as prescribed in article 48 of the Revised Penal Code, But
for lack of sufficient number of votes as required by section 9 of
Republic Act No. 296, the Judiciary Act of 1948, the penalty to be
imposed, as it is hereby imposed, is redusion perpetua, the accessories
of the law; and the rest of the judgment or sentence appealed from is
affirmed, with costs against the appellants.

Bengzon, C. J. Bautista Angelo, Labrador , Concepcion , Reyes, J.B.L., Barrera, Parades, Dizon, Regala and Makalintal, JJ., concur.

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^[1] U.S. vs. Valdez , 40 Phil., 876.

^[2] People vs. goode, G. R. No. L-6358, 25 May 1955.