THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANTONIO GONGORA, ET AL., DEFENDANTS, ESTANISLAO LLURCA, DEFENDANT-APPELLANT.

On August 29, 1957, two separate informations were
filed with the Court of First Instance of Leyte against
Antonio Gongora and Estanislao Llurca, the first for the
murder of Isabel Cortez alias Merolina Fuentes alias Nene
(Criminal Case No. R-1542), and the second for frustrated
murder against the person of Epifanio Boncag (Criminal
Case No. R-1543).

During the arraignment and first day of trial on November 6, 1957, the accused pleaded not guilty to both cases.
Inasmuch as both cases arose from the same incident, trial
thereof was consolidated upon motion of the prosecuting
fiscal. The same fiscal moved for the discharge of accused
Antonio Gongora in order to be used as State Witness.
Over the objection of the counsel for Llurca, the motion
was granted and Gongora was ordered discharged and
released from jail.

Trial thus proceeded with respect to accused Estanislao
Llurca. He was found guilty of murder, as charged in
Criminal Case No. R-1542, and sentenced to suffer the
penalty of life imprisonment with the accessories of the
law; to indemnify the heir of the late Isabel Cortez in
the amount of P6,000.00 without subsidiary imprisonment
and to pay costs. He was likewise found guilty of frustrated murder as charged in Criminal Case No. R-1543,
and sentenced to undergo an indeterminate prison term
ranging from 4 years, 9 months and 1 day of prision correcional to 8 years and 1 day of prision mayor, with the
accessories of the law; to indemnify Epifanio Boncag in
the sum of P300.00, and to pay the costs. Hence this
appeal.

After going over the record, We found that the evidence
for the prosecution has brought out the following: On
June 24, 1957, Epifanio Boncag, a lad of 21 years and a
resident of St. Bernard, Leyte, was in the neighboring town
of Cabalian, same province, for the fiesta. At about 7
o’clock in the evening in the said town of Cabalian, he met
his sweetheart, Isabel Cortez, a lass of 16 years, and the
two of them repaired to a school building where they
indulged in sexual intercourse. From the school building,
the lovers went to the town plaza to watch the coronation
ball. At about 10 o’clock, Isabel asked Boncag to conduct
her home to St. Bernard. The two rode on Boncag’s
bicycle, and on the way, they agreed to have another carnal intercourse. They stopped by the roadside, near the
cemetery of St. Bernard past the bridge of Malbago which
connects the provincial road between St. Bernard and
Cabalian. Boncag dragged along his bicycle up to the foot
oi a coconut tree surrounded by grasses. The lovers took
off their shoes, while Boncag also took off his trousers,
and had intercourse. When Boncag stood up and was still
buttoning his trousers, a man gave him a thrust “with a
bolo perhaps” and he ran away. He did not recognize his
attacker, as it was dark, but he noticed that his said attacker was short in height. Boncag was able to arrive
at his house at Magbagakay where he fell unconscious.;
He was still prostrate on the floor covered with blood from
the waist down, when Ambrosio Cuaton, chief of police and
Filemon Galdo, justice of the peace, both of St. Bernard,
arrived at his house to investigate.

The next morning, the lifeless body of Isabel Cortez was
found by Cuaton and his men in a brook about 800 meters
away from the cemetery and some 200 meters away from
the old house of Llurca where an undershirt of the “Johnny
Best Quality” make was found hanging on a corner with
bloodstains in front and rust stains on the belly part.

Antonio Gongora, the accused turned State witness, pinned down Llurca as the attacker. That evening of the

incident, Gongora met Llurca riding a bicycle at the bridge
along the provincial road. Llurca had a flashlight by
which he identified Antonio. Llurca greeted him, “Nong,
I would like to borrow your bolo.” Antonio’s bolo was
then tied around his waist. Without much ado, Llurca
untied the string around Gongora’s waist and took the
bolo from its scabbard, saying that the place where he was
going was haunted. Llurca and Antonio Gongora proceeded towards the Malbago bridge. Near a coconut tree,
Llurca left his bicycle and/proceeded towards the cemetery,
with Gongora trailing behind. Llurca,, using his flashlight,
went to a spot amidst growing bamboos and where a bicycle
was seen at a short distance. He detoured to the left and
then crawled to a place where there were nipa palms. Not
long (thereafter, Gongdra heard a man cry, “Aroy!”; Then
appealed a woman running out of the place towards the
provincial road. Llurca, pursued this woman and was able
to overtake her, Llurca placed his arm on her shoulder
and the pair proceeded towards the Malbago bridge, walked along the river side, and finally entered the abandoned
house of Llurca on a hill. Antonio Gongora, who was then
in the yard, heard the woman pleading to Llurca, “Tan,
if you pity me, please conduct me to my home,” and Llurca
merely answered, “And so you know me. Why did you
show to me what you have done?” After thirty minutes,
Llurca and the woman came out of the house and resumed
their walk toward the mountain. At this juncture, witness Gongora testified that while Llurca and the woman
proceeded on their way, the woman was heard crying:
“What a pity, Tan. You are going to include me.” And
after the woman had uttered these words, she expired.

The testimony of Ananias Gloria, chief of police of Cabalian who
joined the investigation, reveals that the undershirt which was found
in the house of Llurca fitted the latter, who, at the time of the
fitting, was wearing another undershirt of the same “Johnny Best
Quality” brand. This shirt also had an identical rust stain at the same
place where the rust stain was discovered on that found in the house.
According to Filemon Galdo, justice of the peace of St. Bernard and
Chief of Police Cuaton, Llurca admitted to them that he (Llurca) had
three undershirts of the same make.

When the accused was brought in for investigation, a red stain was
discovered underneath his thumbnail, by Chief of Police Gloria. Llurca
was asked if he had butchered a pig or touched anything bloody, and he
answered in the negative. Judge Galdo called Dr. Eudaldo Samaco,
Municipal Health Officer of St.. Bernard, to extract and examine the
stain. After the doctor had removed the stain, Llurca told his
investigators thus—”I butchered a pig within this week and I went
fishing and I caught a fish called patikan which I cut.” Dr. Samaco
testified that the specimen which he had extracted from
the thumbnail of Llurca was a human bloodstain.

Dr. Samaco examined the injuries of Boncag and performed; an autopsy on the cadaver of Isabel Cortez. He
declared that Boncag sustained (1) an incised wound on
the right thumb, (2) a through and through stab wound
on the left hand, and (3) another stab wound on the left
lumbar area which exposed the abdominal covering of the
intestinal organ. He said that these injuries could have
been inflicted by a sharp pointed bolo, and it was possible
that only one “fast and strong’ thrust had inflicted them.
On his autopsy, Dr. Samaco declared that the major
injury sustained by the deceased was a stab wound on
the left breast which penetrated the heart, diaphragm
and left lobe of the liver. He opined that the weapon
used was a sharp bladed instrument, with the same size
and kind used to assault Boncag, because, according to
him, the sizes of the wounds of Boncag and those on
the body of Isabel were the same. Dr. Samaco further
rendered the opinion that the other wounds on the body of the dead victim must have been sustained after the girl
had died.

The defense presented ten witnesses, besides appellant,
to prove two major exculpatory points: the real culprit is
Antonio Gongora, and appellant Llurca was at home at the
time of the incident.

Estanislao Llurca, then 22 years old, denied that he was
a suitor, much less, a former lover of the late Isabel Cortez.
He and Boncag are third cousins. He knew that Boncag
and Isabel were sweethearts, because Boncag told him so,
and it was Boncag who introduced him to Isabel. Obviously, the purpose of this testimony is to show lack of
motive on the part of the accused appellant.

Llurca affirmed that he attended the Cabalian fiesta on the day of
the incident, but said that Antonio Gongora was not one of his
companions, as he did not even know said Antonio, and that he left
Cabalian for home at about 1:30 p.m. This contradicts the stories of
Gongora, Priacilla Villamor and Gaudencio Alfaro, which tend to
indicate that Llurca and Gongora are friends and were together in
Cabalian at least up to 4:00 p.m. when the two parted ways.

Through the testimonies of Mercedes Gumpay, Margarito
Reyes and Quirino Limbo, the defense tried to corroborate
appellant’s claim that he was already at home during the
incident. Mercedes Gumpay is appellant’s mother. Margarito Reyes, a neighbor of the Llurcas testified that he
stayed in the house of the Llurcas and had a drinking
spree with the father of appellant between 9 o’clock in
the evening of June 24 and 1 o’clock the following morning, and saw appellant lying and sleeping in his room
during that time. Quirino Limbo is the first cousin and
partner of appellant in the peddling business. He declared that he had a drinking spree at the house of the
Llurcas, with the father of appellant and witness Margarito
Reyes, from 10:00 in the evening of June 24 up to 5:00 the following morning, and during all that time he lay
down beside appellant who was then sleeping in his room.

Through the testimonies of Lolita Boctot and Bernardino
Gongora, the defense attempted to switch criminal responsibility from Llurca upon Gongora. Lolita Boctot, a minor
of ten years, testified that Antonio Gongora confessed to
her father: “I am hiding, Ingko Meli, because I killed a
woman whom I caught doing some bad acts, i killed this
woman with a dagger and also wounded a man with a
bolo.” Bernardino Gongora bared that in the afternoon
of the preliminary investigation he talked with and asked
Antonio: “Cousin, why are you doing this?” “My goodness, I lost my senses. I did not know why I killed that

woman.”

On rebuttal, Matiide Ordiz and Basilisa de Pagado, aunt
and cousin, respectively, of Isabel Cortez, provided a
possible motive for the bloody affair, in the face of Llurca’s
declaration that he never courted his deceased victim.
Ordiz and Pagado disclosed that Llurca and Isabel were
engaged until Epifanio Boncag came along and alienated
Isabel’s affections from Llurca.

Melecio Boctot was also presented who disclaimed the
statement of his daughter, Lolita, that Antonio Gongora
had confessed to him that he (Antonio Gongora) was the
one who killed Isabel and wounded Boncag.

After a thorough review of the record, We have arrived
at the conclusion that the guilt of appellant Estanislao
Llurca of the offenses charged herein has been established
beyond the scintilla of doubt.

Three vital considerations, unexplained by the defense, have
fingered appellant as the perpetrator of the offenses. The first is the
undershirt with bloodstains on its front part found by Cuaton’s men the
following morning of the tragedy at the abandoned house of the Llurcas
where appellant had taken Isabel on her last night. The ownership of
this undershirt was traced to appellant who gave the feeble excuse that
in the early morning of June 25,
his father went to the farm and nobody was there.

It is important to note that while the defense enlisted
as many friends and relatives to testify, it did not put
appellant’s father on the witness stand to affirm that he
had really gone to the abandoned house and to explain his
purpose in going there that early morning immediately
following the incident.

The second circumstance is the bloodstain found underneath
appellant’s thumbnail. His reaction on two occasions upon this piece of
incriminating evidence tends to betray a guilty conscience. Before the
bloodstain was extracted for analysis, Chief of Police Gloria asked
appellant if the latter butchered a pig or touched anything bloody
within the week and appellant simply retorted “No.” When Dr. Samaco had
removed the stain, appellant finally told Gloria that he butchered a
pig within that week and furthermore cut a fish which he had caught
while fishing.

The third is the lack of motive on the part of Antonio
Gongora, and its presence in the case of appellant. The
aunt and cousin of the dead girl, with whom she had
lived, gave testimony tending to show that appellant and
the dead girl were lovers until Boncag came along and
won over Isabel. Boncag disclosed that appellant went
one time to visit the dead girl but did not enter the house,
perhaps because he saw said Boncag already there.
Llurca admitted it was Boncag who introduced him to
Isabel some five or seven months before the incident.
While it was shown that appellant and Boncag are friends
and appellant had been one of Isabel’s suitors, evidence
is wanting to show that Antonio Gongora knew the
victims.

Parenthetically, We have to state that in accepting the
testimony of Antonio Gongora, originally an accused but
later discharged in order to be utilized as prosecution witness, the Court is not unmindful of the repeated principle
that in such a case the testimony of the witness should
be received with great caution and should be carefully
scrutinized. (U.S. vs. Remigio et al. 37 Phil. 599; People
vs. Marcos, et al., 70 Phil. 468; Enage vs. Warden of
Davao, 82 Phil. 23.)

We must reject, as did the lower court, the declarations
of Lolita Boctot and Bernardino Gongora. Lolita denied
having conferred with the defense counsel prior to the
hearing, testifying thus—

“Q. Now, did you talk to anyone about this case before youi came
here in ordef to testify?

“A. No.

“Q. In other words you did not talk to anyone about what you
have known about this case?

“A. No.

“Q. Not to anyone?

“A. No.

“Q. Not even to Atty. Rosal?

“ROSAL: She must be told who he is.

“COURT: Do you know Atty. Rosal?

A. I know him.

Q. Where is he?

“A. (Indicating Atty. Rosal) There. ,

“Q. Today or yesterday before you sat there on your chair did
you ever talk to Atty. Rosal about the nature of your
testimony today? .

“A. No, Sir.

“Q. Did he not ask you about the nature of your testimony in
case you are called to testify?

“A. No, Sir.

“Q. You did not tell anybody either to the mother of the accused
or to the accused himself that you were going to declare
such story you are now telling us?

“A. No, Sir.

“Q. Was there anybody who asked you any question about this
case before you were called to testify?

“A. No, Sir.. (t.s.n. pp. 257-258)

It is difficult to see how an important, illiterate and young
witness like Lolita—she was barely ten years old—could
be placed on the witness stand without conferring with
her lawyer. On further questioning, Lolita admitted that
her mother is related to appellant’s mother and that the
latter gave her money for meals and dresses, including
the dress she wore during the trial. Finally, Lolita’s
revelation was flatly disowned by her own father, Melecio
Boctot. Except for the sake of truth, We find no other
reason why Melecio Boctot should give testimony directly
opposed to his daughter.

Antonio Gongora also allegedly confessed to Bernardino Gongora in
the afternoon of July 24, 1957, while the preliminary investigation was
going on. Bernardino admitted that he is related to Llurca. He revealed
that he did not report his supposed conference with Antonio to the
proper authorities and did not volunteer to testify in the preliminary
investigation. When the prosecuting Fiscal moved for the discharge of
Antonio Gongora, the defense objected and, as one ground for its
opposition, mentioned the affidavit of Lolita Boctot and said nothing
about the alleged conference between Bernardino and Antonio. Lolita
testified in the morning, while Bernardino testified in the afternoon.
It is probable that Bernardino Gongora was prevailed upon to testify in
the afternoon in an endeavor to provide corroboration to the testimony
of Lolita Boctot who, the trial court observed, was “incredible and
insincere” and whose testimony “are conflicting on fundamental and
material points.”

The three significant circumstances pointed above substantially strengthen the eyewitness account of Antonio
Gongora. His testimony is materially the same as those
contained in the affidavits he had sworn and signed on
two occasions before the preliminary inquiry.

As to appellant’s claim he did not know Antonio Gongora, this is
belied by the testimonies of Priscilla Villamor and Gaudencio Alfaro
who said they saw appellant and Gongora together in the afternoon of
the Cabalian fiesta. Gongora’s spontaneous implication of appellant
before the investigators, which led to the apprehension of said
appellant, is a circumstance indicative of the fact that Antonio
Gongora and Llurca are acquaintances.

Appellant’s alibi must fail. Mercedes Gumpay is the
mother and Quirino Limbo is the first cousin of appellant.
These two, as well as Margarito Reyes, did not testify
during the preliminary investigation. Margarito Reyes
subscribed to an affidavit before the Justice of the Peace
of St. Bernard on June 26, 1957. In that affidavit, he
disclosed on that day he already knew that appellant was
suspected as the murderer. Oddly enough, he has no
statement therein to the effect that it was impossible for
appellant to commit the crimes because he was in the
house of the Llurcas between 9 o’clock in the evening
and 1 o’clock the following morning of the tragedy and
during all that time he saw appellant lying and sleeping
in his room.

In Criminal Case No. R-1542, the murder of Isabel
Cortez was qualified by the circumstance of superior
strength (People vs. Quesada, 62 Phil. 446; People vs. Samaralin, G. R. No. L-2257, February 19, 1951). The
existence of the qualifying circumstances of treachery and
evident premediation are not borne out by the facts. As
to the modifying circumstances, We find present the
aggravating circumstance of night time and the mitigating circumstance of intoxication. The court below said
that appellant was under the influence of liquor in the afternoon immediately preceding the incident and there
is no evidence indicating that he is a habitual drunkard.
The appellant should suffer a penalty of life imprisonment
as imposed by the court below.

In Criminal Case No. R-1543, the lower court was correct in
appreciating the qualifying circumstance of treachery and the
mitigating circumstances of intoxication and passion or obfuscation.
The attack was sudden and unexpected. The aggravating circumstance of
night time, which we appreciated in the murder case, cannot be
considered here for purposes of increasing the penalty as same is
absorbed in treachery (People vs. Magsilang, 46
Off. Gaz., 1557; People vs.
Young, 46 Off. Gaz., Supp., p. 154). However, the lower court erred in
the computation of the penalty. For frustrated murder, the prescribed
penalty is prision mayor in its maximum period to
reclusion temporal in
its medium period. (Article 50, Revised Penal Code). Considering the
presence of two mitigating circumstances without aggravating
circumstances to offset them, and further considering the provisions of
the Indeterminate Sentence Law, as amended, the appellant should be
sentenced to undergo an indeterminate prison term of from 4 months and
1 day of arresto mayor to 4 years, 2 months and 1 day of prision
correctional with subsidiary imprisonment in case of insolvency.

Modified with respect to the imprisonment, the appealed
judgment is hereby affirmed in all other respects. With
costs.

Bengzon, C. J., Bautista Angelo, Labrador, Concepcion,
Dizon and Makalintal, JJ., concur.
Reyes, J.B.L., J., concurs except as to passion and obfuscation.
Paredes, J., reserve his vote.