G.R. No. L-29800. August 31, 1971
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CARLOS PASTORES, EDMUND MAGAT, AND EUGENIO VILLAR, DEFENDANTS-APPELLANTS.
REYES, J.B.L., J.:
Appeal from the decision of the Court of First Instance of Nueva Vizcaya, finding the
accused in Criminal Case No. 1477 guilty of the crime of rape and sentencing
each of them to life imprisonment, to indemnify the offended party and to pay
the costs.
The records show that based on a complaint duly executed by Minda V. Reyes before the Municipal Judge of Bayombong, Nueva Vizcaya, the Provincial Fiscal filed an information in the
Court of First Instance of Nueva Vizcaya
accusing Carlos Pastores, Edmund Magat
and Eugenio Villar, alias
Boy, of the crime of rape, allegedly committed as follows:
“That on or about the 6th day of August 1966, in the
municipality of Bayombong, proÂvince of Nueva Vizcaya, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused Carlos
Pastores, Edmund Magat, and
Eugenio Villar, alias Boy,
conspiring, confederating and mutually helping one another thru force, threat
and intimidation, did then and there, wilfully,
unlawfully and feloniously and with deliberate intent and lewd designs, attack
and have carnal knowledge with one Minda Reyes,
against her will and without the consent of the latter.
“That in the commission of the crime the aggravating
circumstances of superior strength and in an uninhabited place and nighttime
are present.”
On arraignment, the three accused entered
pleas of not guilty.
To establish its case, the prosecution presented the following
witnesses:
DR. BENIGNO RIVERA, Jr., resident physician in the Bayombong Hospital,
who conducted the physical examinaÂtion on the person of the complainant a few
hours after the alleged rape was committed, affirmed on the witness stand the
findings contained in the medical certificate (Exh.
B). He declared that the contusions
found in the vulva and fresh laceration at the posterior fourchette
of the complainant’s genital organ could have been caused by some force
inflicted on the said parts of the body by a hard object.[1]
Complainant MINDA V. REYES testified that in the evening of
August 5, 1966, she attended the coronation ceremony held at the St. Mary’s
College in Bayombong, Nueva
Vizcaya where she was then a 4th year BSE
student. The affair ended at about 11:30 in the evening, and she left the school
with her boy friend, Augusto Brillantes,
at past 12 midnight. As there were no more jeepneys
that would take her to her hometown, Solano, she and Augusto
agreed to just stroll along the streets of Bayombong
in the moonlit night.
They walked from the school up to the capitol ground. There, they sat on one of the benches and
conversed for about 2 hours.[2]
Then, they decided to walk around, beÂcause they did not want people to see
them still together at that late hour.
They walked through the streets until they came to the Perez grandstand
in the Clisoc Field.[3]
They were seated in the grandstand and had been conversing for about 30 minutes
when the three accused appeared and approached them. Edmund Magat and
Boy Villar took her by the hands, while the third
one, Carlos Pastores, held Augusto
at bay with a bolo. Then, Magat and Villar started
embracing and kissing her, and touched her breast and priÂvate parts. She struggled and cried for help. Augusto tried to
come to her aid twice, and twice Pastores boxed him,
and Augusto was weakened. Then, accused Magat
dragged her up the grandstand, and forced her to lie down. But she struggled and was able to get
up. Magat
dragged her down from the grandstand.[4]
Carlos Pastores then held her by the hand and ordered
Magat and Villar and Augusto to follow them to the dike. They walked, Pastores
still holding her hand and threatening her with a knife, folÂlowed by Magat and Villar who had Augusto between them.
When they reached the dike, which was about 200 meters away from
the grandstand, Pastores ordered Magat
and Villar to take Augusto
away, which the two did.[5]
The witness and Pastores had walked a little farther
when the latter started kissing and embracing her. She resisted him, but Pastores
covered her mouth, and laid her on the ground; he slapped her face and boxed
her sternum. And when she kept on
shouting, Pastores strangled her; he reÂmoved her
blouse, forcibly took away her bra, her skirt and her panties. She was nervous and frightened, and Pastores was able to have sexual intercourse with her.[6]
She kept on struggling and moving and Pastores‘ organ
was removed. He tried to insert it
again, but desisted. Then, she felt a
sticky substance between her legs.
Although feeling weak, she grabbed her clothes and put them on. Pastores threatened
to kill her if she would report to the authorities. He also threatened to call his two comÂpanions
and she pleaded him not to. As Pastores would not let her go home, she decided to go along
with him and pretended that she liked him.
Pastores brought her to the house of one Mrs. Bongcad to whom she was introduced as Pastores‘
sweetheart. She kept her peace because
she was afraid. Later, when she
reiterated to Pastores her desire to go home to
change her clothes, he consented.[7]
She took a tricycle and dropped first at the residence of Augusto
and informed his mother about the incident.
Then, she proceeded to the municipal building and reported what happened
to the police. Later in the day, she was
brought to the provincial hospital where she submitted to a phyÂsical examination. Complainant further declared that on account
of the incident, she had to drop her studies.
At the time of the hearing, she was no longer the girl friend of Augusto Brillantes.
AUGUSTO BRILLANTES took the witness stand and corÂroborated the
testimony of the complainant. He
declared that in the evening of August 5, 1966, he attended the festivities at
St. Mary’s College with his girl friend, Minda Reyes;
that the coronation ceremony ended at about 11:30 p.m.; that he and Minda left the school about an hour later; that as there
were no more jeepney that would take Minda home to Solano, they decided to take a walk. They walked to the capitol building ground
and sat on a bench for about one and a half hours; then, they strolled away and
went to the Perez grandstand at the Clisoc Field
beside the Nueva Vizcaya
high school.[8]
They were seated in the grandstand conversing for about an hour when they saw
three men approaching. He and Minda went down to avoid them, but the men overtook them,
and accused Magat and Villar
held Minda and took her away. He was left with accused Pastores
who pointed a bolo at his stomach. He
tried to help Minda who was crying for help, but Pastores hit him in the solar plexus. And when he ran up towards the grandstand to
where Minda was, he was met by Magat
and Villar who pointed a bolo at him and poked a gun
at his side. When he tried to free himÂself
from their hold, Villar boxed him, and he became
unconscious. When he regained
consciousness, Pastores ordered them to walk towards
the dike. Pastores
and Minda were ahead of them, the former holding a
knife against Minda’s side; he was made to walk
between Magat and Villar
who had their weapons pointed at his sides.[9]
On reaching the edge of the dike, Pastores
ordered Magat and Villar to
take him away, so the two forced him to go to the other side of the dike some
50 meters away.[10]
There, he was held at bay until it was about 5:30
or 6:00 in the morning. When he inquired from his two guards where Minda and Pastores could be, Villar left to look for them. Villar returned
informing them that the two could not be located. The witness then was taken by Magat and Villar to the junction
where he took a tricycle ride. He
returned, however, to the dike to look for Minda and
when he failed to find her, he thought of going to the municipal building to
report the incident to the police. On
the way to the town hall, he passed by their house and heard his mother in
hysterics. He learned that Minda had already passed that way and had informed his
mother that he was missing. He stayed by
his mother’s side until about 9 o’clock
when she finally calmed down.[11]
This witness admitted that when he was taken away by Magat and Villar, he was not able
to see Pastores and Minda
anymore;[12]
and during all the time that they were at the other side of the dike, these
accused never left his side. He also
declared that he severed his relationship with Minda
Reyes because of the incident.
The defense presented accused EDMUND MAGAT, who declared in court
that after attending the coronation ceremony at St. Mary’s College in the
evening of August 5, 1966,
he conducted his girl friend to her residence.
He was walking home with a friend and neighbor, Eugenio
Villar, when they were called by Carlos Pastores in front of the billiard hall, and they were
invited to watch the games. They joined Pastores and stayed in the billiard hall for about one or
two hours. Then, they decided to go
home. When they were almost at the
corner of the road leading to the house of Pastores,
the latter asked his two companions to acÂcompany him to the grandstand where
he intended to pass the night, reasoning that his father would get angry at his
late arrival. Magat
and Villar obliged and went with him. Near the grandstand, they heard a woman
crying. She turned out to be Minda Reyes who was then being embraced by Augusto Brillantes. Pastores approached
them, and he was met by Augusto who took him aside
about 9 meters away, and told him something.
When Pastores returned to his companions, he
told them they were going home. Minda thereupon ran after them, and wanted to go with them
because Augusto allegedly was drunk and was making a
fool of her. Minda
walked with Pastores ahead of the witness and Villar. At the
crossing near the Girl Scouts building, Pastores
turned to them and ordered him and Villar to go home,
which they did. In their house, it was
his father who opened the door for him.
And, as his father was scolding him for his late arrival, the witness
had to narrate what he and his companions saw at the grandstand. He had already gone to sleep when he was
awakened by their neighbor, Patrolman Bulaya, who was
called by his father, and he had to repeat to the policeman the incident that
they witnessed at the grandstand.
Magat denied that he was armed when he
and his comÂpanions went to the grandstand; that they had threatened Augusto with harm, and that he tried to abuse Minda.
In his testimony, accused EUGENIO VILLAR corroborated Magat’s declarations.
He, too, denied the charges that they were armed when they went to the
grand stand; that they tried to abuse Minda, and that
he boxed Augusto.
Patrolman FERNANDO BULAYA of the Bayombong
Police Force testified that between 2 and 3 o’clock in the morning of August 7,
1966, Juan Magat woke him up in his house and related
to him the information given by his (Magat’s) on
about the finding by the latter and his companions of a crying woman in the
grandstand. He then went to the Magat residence to get from Edmund the whole story, and the
latter repeated to him the information preÂviously given to the father, and
that Brillantes and Pastores
raped the woman. With Juan Magat, whom he requested to accompany him, we went to the
grandstand to verify Edmund’s story.
Finding no one in the place, they dropped at the house of Villar and they were told that Villar
was sleeping. They passed by the dyke
and still meeting no one, they dropped by the house of Pastores,
which they found to be silent. The
witness then went to the municipal building intending to make a report on the
matter, but he already found Minda Reyes giving her
statement to the officer on duty. He did
not make a report anymore.
JUAN MAGAT testified along the same line as the policeman’s. He declared having learned from his son about
their finding of a woman crying in the grandstand; that he went out and got
Patrolman Bulaya to interrogate Edmund, because he
was interested to find the involvement of his said son in the incident.
For his part, accused CARLOS PASTORES declared that at about midnight of August 5, 1966, he was at the Hawaiian Recreational Hall
when he chanced upon Edmund Magat and Eugenio Villar, passing by. He invited the two to watch the games and
they came in. Later, as Magat wanted to go home, they walked out of the hall
together. But he was afraid that his
father would get angry with him for coming in late, so he asked his companions
to accompany him to the grandstand where he intended to sleep. At a distance of about 30 meters from the
grandstand, they heard the voice of a crying woman. They found out she was Minda
Reyes, who was with Augusto Brillantes. When he went near the couple, Augusto got up, pulled him aside, and told him that he had
sexual intercourse with the girl who did not like it and he had to force
her. Augusto
then requested him to leave him and Minda alone. He returned to his companions and inÂformed
them they were leaving. But Minda ran after them, held on to his hand and expressed
desire to go with them because Augusto was drunk and
he might fool with her again.
They left the grandstand; Magat, Villar and Augusto walking behind
him and Minda.
As Magat was determined to go home, he allowed
Magat and Villar to
leave. Then, he and Minda
continued walking until they reached the dike.
There, they met Mrs. Pacita Bicera, to whom he introduced Minda
as his sweetheart. They also met Mr. Bicera and Mrs. Bicera’s brother
who were both working as “bangkero”
(boatmen) in the river, and when they were teased about their forthcoming
marriage, Minda smiled and pinched him at his side.[13] Minda asked him for transportation money, and since he had
none, they proceeded to the house of Mrs. Bongcad. There, they took coffee; he was sleepy, so he
went inside the room and slept. Minda later came into the room, took off his shoes which
were muddy and washed them. Minda came in again to remind him of the money she was
asking for, so he asked Mrs. Bongcad to give Minda some. Mrs. Bongcad had only fifty centavos which she gave to Minda. Upon receipt
of the money, Minda went inside the room and bade him
goodbye with the promise to return at noon. She even kissed him and said, “goodbye,
dear”.[14]
He went back to sleep until about 11 o’clock,
and returned to their own house when he could no longer wait for Minda.
He denied that he threatened Minda or
boxed Augusto, and declared that he knew Minda, who was a classmate of his in one subject at the St.
Mary’s College, and Augusto, because they were from
the same barrio. This testimony of
accused Pastores was corroborated by Pacita Bicera, Inocencio Ascado, and Concepcion Bongcad who all
declared that Minda was, introduced to them by Pastores as his girl friend, to which introduction Minda merely smiled.
Considering the evidence thus presented, the court in its decision
of May 31, 1968 found the charges against the accused to have been duly proved,
and declared Carlos Pastores liable for the rape of Minda Reyes as principal by, direct participation, and
accused Edmund Magat and Eugenio
Villar as principals by indispensable cooperaÂtion,
for their role in separating Augusto Brillantes from the victim and standing guard over him,
which acts enabled accused Carlos Pastores to commit
the rape withÂout interference or intervention.
Consequently, the three accused were sentenced to life imprisonment, and
ordered to indemnify the victim, jointly and severally, in the amount of
P5,000.00 and to pay the costs. From
this decision, the accused interposed the present appeal.
In this instance, appellants raise the question of jurisdiction
of the trial court. It is pointed out
that whereas the sworn complaint signed by Minda V.
Reyes on August 15, 1966 charged the accused of having sexual knowÂledge of the
complainant by “taking advantage of the fact that said Minda
Reyes was then in a state of coma or unconciousness“,
the information filed by the Provincial Fiscal, which does not contain the
signature of the offenÂded party, alleged that the offense was committed
through force, threat and intimidation.
Appellants, therefore, contend that as the allegation of the information
charges a rape committed in a manner different from that charged in the
complaint signed by the offended party, then such complaint can not properly be
made the basis of the information as require by Section 4, Rule 110 of the
Revised Rules of Court.[15]
In other words, the issue being presented here is whether or not a complaint
signed by the offended party charging rape committed in a particular way can be
the basis of an information charging rape comÂmitted in another way, for
purposes of conferring jurisdiction on the court.
This issue is not really new; it has already been answered in the
affirmative. In the case of People
vs. Bangalao,[16]
involving exactly the same set of facts, this Court ruled that an information
charging rape committed on a minor and demented girl, based upon the complaint
signed by the girl’s mother alleging rape committed by means of force and
intimidation, lawfully confers jurisdiction on the court to try the case. The reason for the ruling was given, thus:
“x x x In
the case at bar, however, the complaint was for rape, and this gave the court
jurisdiction to try the case. The power
or jurisdiction of the court is not over the crime of rape when committed on a
minor and demented girl, but over rape, irrespective of the manner in which the
same may have been committed.
“It must be borne in mind that complaints are prepared in
municipalities, in most cases without the advice or help of competent
counsel. When the case reaches the court
of first insÂtance, the Fiscal usually conducts another inÂvestigation, and
thereafter files the inforÂmation which the results thereof justify. The right and power of the court to try the
accused for the crime of rape attaches upon the filing of the complaint, and a
change in the allegations thereof as (to) the manner of committing the crime
should not operate to divest the court of the jurisdiction it has already
acquired. The right or power to try the
case should be distinguished from the right of the accused to demand an
acquittal unless it is shown that he has committed the offense charged in the
information even if he be found guilty of another offense; in the latter case,
however, even if the court has no right to find the accused guilty because the
crime alÂleged is different from that proved, it cannot be stated that the
court has no jurisdiction over the case.”(on p. 336)
Appellant Pastores likewise questions
the decision finding him guilty of rape, making capital of the fact that the
physician who conducted the physical examination of the complainant after the
incident found her hymen to be intact, and that Minda’s
behavior when she was seen by witnesses Bicera, Bongcad, and Ascado did not
indicate that she had just been ravished.
The ruling of the court below as regard Pastores
must be affirmed. It must be remembered
that the fact that a woman’s hymen has no sign of laceration does not preclude
a finding of rape. For, the rupture of
the hymen or laÂceration of any part of the woman’s genitalia is not
indispensable to a conviction for rape;[17]
it is enough that there is proof of entrance of the male organ within the labia
of the pudendum.[18]
In the present case, in addition to the positive declaration of the complainant
about the consummation of rape on her person, we have the testimony of the
examining physician that when he examined complainÂant at about 11 o’clock in
the morning of August 6, 1966, he found contusions in the vulva, congested
condition and discoloration of hymen, and fresh laceration at the posÂterior fourchette — injuries which indicated that the object that
inflicted them had penetrated past the labia majora
of the pudendum. Furthermore, the
condition of complainant’s unruptured hymen was
explained by the same physician during the trial. He declared that there is a type of hymen,
the elastic kind, that returns back to its original virginal appearance even
after sexual intercourse, and complainant’s belongs to this type.[19]
It may be true that, as testified to by witnesses Bicera, Bongcad and Ascado, when complainant Minda
Reyes was introduced to them by accused Pastores as
his girl friend, she acknowledged the introduction with smiles. But that is understandable, considering that
according to complainant, she pretended that she liked the accused in the hope
that by so doing, he would allow her to go home. Indeed, it must really be this display of
docility that reassured Pastores that Minda was under his control, so that when she again asked
for permission to go home, he finally consented. Besides, if Minda
went voluntarily with appellant, as the defense would want the court to
believe, because she wanted to avoid the company of Augusto,
then why would she continue walking with appellant and accomÂpany him in paying
visits to his friends even after Augusto had dropped
out of sight? Certainly, it is rather
strange that a girl who, a few hours before, did not even want to be seen
conversing with her boy friend in a public place such as the capitol grounds
for fear of what people would say, would willingly go with a man whom she
hardly knew[20]
and walk with him in a more or less isolated place at early morning hours, and
allow herself to be introduced to his acquaintances as his girl friend. It also runs counter to the normal course of
human behavior that a girl who likes a boy would kiss and bid him goodbye (as
defense witnesses testified Minda did), and the
moment she was out of his sight, would proceed directly to the municipal
building to file a complaint for rape against him. Complainant’s behavior after the assault
actually supports her assertion that she was threatened by Pastores
that he would allow his two companions to do to her what he (Pastores) had already done, thus making her decide to go
along with the latter’s idea in order that she may have the chance to get away
from him. Truly, a young woman and a
college student at that, like this complainant, would not have charged a man of
having raped her and come out and give all the sordid details of her debasement
in open court, if she were not really subjected to such outrageous act. We sustain, therefore, the trial court’s
ruling giving more credence to the testimony of the complainant. In fact, it may be said that her not offering
resistance to appellant’s imposiÂtion, that she should go with him after her
violation, was a ruse resorted to in order to escape from further harm and
enabled her later to go directly to the police authorities to report and charge
the proper author of the criminal act.
Complainant’s conduct indicates an adÂmirable presence of mind that
bespeaks well of her character and intelligence.
With regard to the accused appellants Edmund Magat
and Eugenio Villar, their
attacks on the credibility of the offended party and other witnesses of the
prosecution are not substantially different from those of appellant Pastores, which were properly disregarded by the trial
court as earlier discussed (pages 9-10).
The same thing can be said of their contention that no rape could have
taken place, in view of the complainant’s unruptured
hymen. That this stand is untenable has
been previously shown in this opinion (pages 8-9).
The trial court considered that all the accused appellants acted
in conspiracy and are equally responsible as co-principals. We agree with defense counsel that the
details of commission of the offense do not satisfactorily support the finding
of conspiracy, particularly in view of the uncontradicted
fact that the herein appellants met the complainant Minda
Reyes and her companion and friend, Brillantes,
purely by chance. Whatever the
responsibility of Magat and Villar,
it must be predicated on their action in separating Brillantes
from the complainant when all five had reached the river dike, and thereafter
preventing Brillantes from rendering aid to Minda. While this
act was undoubtedly one of help and cooperation, We do not view it as
indispensable, so that the rape could not have been committed without the
sequestration of Brillantes. It must be recalled that at the grandstand,
the latter proved no match for Pastores, who boxed
and effectively weakened Brillantes; and further, Pastores was then armed with a knife while Brillantes had no weapon.
That Villar and Magat
were aware of Pastores‘ criminal design to rape Minda Reyes is apparent under the circumstances. Upon returning home Magat
advised his father of what transpired at the river dyke, and thereafter the
father informed patrolman Bulaya that Minda had been raped.[21]
Considering that appellant Edmund Magat had not seen
either Pastores or Minda
Reyes at the river dyke after he and Villar had taken
Brillantes away, Magat’s
informing his father that Minda had been raped
demonstrates these two appellants’ awareness of what Pastores
intended to do with Minda when he asked his two
companions to guard Brillantes while he (Pastores) compelled Minda to go
with him.
Villar and Magat’s
cooperation not being indispensable for the commission of the crime, they are
only liable as accomplices, as admitted by Villar’s
counsel in his brief (page 10).
In People vs. Balili (G. R. L-14044,
August 5, 1966, 17 SCRA 892-898), the accused who stayed outside the house
while the others robbed and killed the victims yet had knowledge of the
criminal intention of the other accused and only went along with them was only
convicted as an accomplice. And in the
case of People vs. Crisostomo (46 Phil. 775), three
of the accused who held the victim’s companions to prevent the latter from
rendering any help to the victim who was being kidnapped were only convicted as
accomplices, even if cirÂcumstances indicated conspiracy among them, for their
acts were not indispensable to the realization of the crime. Well known is the rule that in case of doubt
as to the participation of an accused the lesser liability should prevail.
In People vs. Tamayo, 44 Phil. 38, this
Court made the obserÂvation that –
“………………………….. as against an accomplice, a court will sometimes
draw the inference of guilty participation in the criminal design from acts of
concert in the consumÂmation of the criminal act and from the form and manner
in which assistance is rendered, where it would not draw the same inference for
the purpose of holding the same accused in the character of principal. This is because, in case of doubt, the courts
naturally lean to the milder form of responsibility.”
The preceding doctrine was followed in many subsequent cases,
collated in the decision penned by Mr. justice Fernando in People vs. Tolentino, G. R. No. L-29419, August 30, 1971.
The penalty for an accomplice is one degree lower than that
prescribed for a principal (Rev. Penal Code, Article 52); so that Pastores having been meted out reclusion perpetua, the penalty for his accomplices should be reclusion
temporal, ranging from 12 years and one (1) day to 20 years. Applying the indeterminate sentence law (Acts
4103 and 4225), Magat and Villar
should be sentenced to a minimum penalty within the range of prision mayor and to a maximum within the range
of reclusion temporal (People vs. Mallari, 60
Phil. 400).
WHEREFORE, the decision appealed from is affirmed in so
far as it finds appellant Carlos Pastores guilty as
principal in the rape of comÂplainant Minda Reyes;
but the decision is modified as to Edmund Magat and Eugenio Villar, who are found
guilty as accomplices merely, instead of co-principals, and each one of the two
is sentenced to undergo a minimum of eight (8) years of prision
mayor and a maximum of sixteen (16) years of reclusion temporal. All three are jointly and severally conÂdemned
to indemnify the complainant in the sum of 5,000.00 and to pay the costs.
Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Castro, Fernando, Teehankee, Barredo,
Villamor, and Makasiar, JJ., concur.
[1]
p. 25, t.s.n., hearing of September 26, 1967.
[2]
p. 20, t.s.n., hearing of October 4, 1967.
[3]
p. 102, t.s.n., hearing of October 3, 1967.
[4]
p. 62, t.s.n., October 3, 1967.
[5]
p. 64, ibid.
[6]
p. 66, ibid.
[7]
pp. 82-83, ibid.
[8]
p. 119, t.s.n., October 25, 1967.
[9]
pp. 122-125, hearing of October 25,
1967.
[10]
p. 125, ibid.
[11]
p. 127, ibid.
[12]
pp. 156-157 ibid.
[13]
p. 210, t.s.n., hearing of December 7, 1967.
[14]
p. 215, ibid.
[15]
“SEC. 4. Who must prosecute
criminal actions. –
xxx xxx xxx
“The offenses
of seduction, abduction, rape or acts of lasciviousness, shall not be proseÂcuted
except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been expressly
pardoned by the above named persons, as the case may be. x x x.”
[16]
94 Phil. 354.
[17]
People vs. Canastre, 82 Phil. 480.
[18]
People vs. Hernandez, 49 Phil. 980.
[19]
p. 27, t.s.n., hearing of September 27, 1967.
[20] Pastores claimed that he and the complainant were once
classmates in one subject at St. Mary’s college; Minda,
on the other hand, denied having known the accused prior to the incident.
[21] T.s.n., Martinez,
page 140 (7 December 1967).