THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PATROCINIO DOFILEZ, ACCUSED-APPELLANT.

Automatic review of the decision rendered by the defunct Court of First
Instance of Davao Oriental in Criminal Case No. 214 which imposed the
death penalty on PATROCINIO DOFILEZ.

In the court a quo an information for double murder was filed against Dofilez worded as follows:

“That on or about July 12, 1969, in the Municipality of San
Isidro, Province of Davao Oriental, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, armed with a firearm, with
treachery and evident premeditation, and with intent to kill, did then
and there wilfully, unlawfully and feloniously attack, assault and shot
with said weapon Cecilio Gonzales and Mamerta Gonzales Y Aneslag,
thereby inflicting upon them mortal gunshot wounds which caused their
instant death.” (Expediente, p. 21.)

The accused pleaded “not guilty” when he was arraigned on May 19,
1970, and after trial he was sentenced “with the maximum penalty of
DEATH and to indemnify the heirs of the victims Cecilio Gonzales and
Mamerta Gonzales the amount of TWENTY FOUR THOUSAND (P24,000.00) PESOS
and to pay the costs.” (Id., p. 91.)

The People’s version of the facts is as follows:

“The deceased spouses Cecilio Gonzales and Mamerta Gonzales were
caretakers of the property belonging to Felixberto Catada situated in
barrio Bagsac, San Isidro, Davao Oriental. (tsn., p. 32, Jan. 5, 1971).

At about two o’clock in the afternoon of July 12, 1969, as their 15
year-old daughter, Evangeline, was taking a bath in an artesian well
inside the premises of said property, in company with Felisa Matabalan, a
teacher, who was washing clothes thereat, the accused Patrocinio
Dofilez and his wife Anita arrived at the place. (tsn., pp. 8-11, Jan.
5, 1971).

Patrocinio carried a carbine which he placed against the wire fence
as he washed his feet. (tsn., pp. 1-13, id. ). While he was washing
his feet, the deceased Cecilio Gonzales arrived and inquired from his
daughter Evangeline if she knew where her elder brother was. (tsn., pp.
12-13, id. ): Upon seeing Cecilio, the accused told him in a loud
voice: ‘You tell your wife not to utter obscene words.’ (tsn., p. 13,
id.). Overhearing the remark, Mamerta Gonzales, who was nearby making
charcoal, replied: ‘What is that? I am here, you are in hell.’ (Tsn.,
pp. 14-15, id.).

Suddenly, Patrocinio aimed his gun at Cecilio and fired, hitting the
latter in the chest (tsn., pp. 15, 17-18, id.). Cecilio drew out his
bolo and tried to go after the accused who ran away followed by his wife
Anita (tsn., p. 18, id.).

Brandishing his bolo in all directions, Cecilio accidentally hit
both Anita and his wife Mamerta with it, and then fell to the ground
(tsn., pp. 18-19, id.). Mamerta then ran to the side of her husband,
and, upon seeing him gasping for breath, embraced him and began to cry
(tsn., p. 20, id. ). Whereupon, the accused returned and fired several
shots at Mamerta, and, re­marking ‘Will you do it again?’ continued
firing at her until she was dead (tsn, pp. 20-21, id.). Evangeline then
approached the accused and begged him to stop. But the accused pointed
his gun at her; Evangeline ran away out of fear (tsn, p. 21, id.).
Thereafter, the accused surrendered himself to the authorities before
whom he admitted having killed the Gonzales couple with his carbine
(tsn, p. 64, id.; Exh. L, p. 3, Rec.).

Dr. Lily Abad, Municipal Health Officer of San Isidro, performed
an autopsy examination on the bodies of the victims and found seven
gunshot wounds and one lacerated wound on Mamerta Gonzales and two
gunshot wounds on the body of Cecilio Gonzales, one in his right chest
and the other in his right foot (tsn, p. 81, id.). ” (Appellee’s Brief,
pp. 2-4.)

The appellant admitted that he killed the Gonzales spouses but he
“professes self-defense, to save himself and the life of his wife from
the unlawful aggression of the deceased couple.” (Appellant’s Brief, p.
2.)

The appellant claims that the trial court committed several errors
which may be categorized as follows: (1) in denying a motion for
reconsideration or new trial; (2) in appreciating the evidence; and (3)
in finding the accused guilty instead of acquitting him for justified
self-defense.

The decision of the trial court was promulgated on September 17,
1971. In a Motion dated October 1, 1971, counsel for the accused asked
the court “to exercise its judicial discretion in granting a new trial,
or allowing the accused the recall or presentation of witnesses in
support of the instant motion before the same be finally resolved.” (Expediente, p. 97.)

The accused asked for a new trial because of (a) “serious doubts
on the credibility of the prosecution witnesses” and (b) “errors of law
have been committed.” (Id., p. 92.)

The trial court heard the Motion on October 15, 1971, and denied it
in an Order dated October 16, 1971. The court denied the Motion for the
following reasons: (1) it was not accompanied by an affidavit of
merit; (2) the movant failed to cite any errors of law or irregularities
during the trial; and (3) it was not shown that newly discovered
evidence could be introduced. (Id., pp. 104-105.)

The accused, again thru his counsel, filed on October 18, 1971, a
Supplemental Motion with the same prayer. The court set it for hearing
on November 18, 1971, but on that day counsel for the accused failed to
appear. The court denied the Supplemental Motion.

For the reasons stated by the trial court, it committed no reversible error in denying the two motions of the accused.

Every system of law recognizes self-defense as a justifying
circumstance. But for self-defense to be validly invoked the following
must concur: unlawful aggression, reasonable necessity of the means
employed to prevent or repel it, and lack of sufficient provocation on
the part of the person defending himself. And it is well-settled that:

“Once the defendant in a criminal case has admitted that he killed
a human being, the burden is on him to establish the presence of any
circumstance which may relieve him from responsibility or mitigate the
offense committed. To prove justification, the defendant must rely on
the strength of his own evidence and not on the weakness of that of the
prosecution, for even if it were weak, it could not be disbelieved after
the accused had admitted the killing.

“Self-defense is an affirmative allegation that must be proven
with certainty by sufficient, satisfactory and convincing evidence that
excludes any vestige of criminal aggression on the part of the person
invoking it.” (J Aquino, The Revised Penal Code, pp. 120-121 [1976].)

There were only three witnesses for the defense: the appellant himself, his wife, and Dr. Augusto Resurreccion.

Dr. Resurreccion was called to testify on the wounds of Anita Dofilez
who was brought to the Mati Baptist Hospital on July 12, 1969. By his
own admission it was not he but Dr. Austriberta Jacob who treated Anita;
he was merely the supervising physician. The documents issued by the
hospital which were identified by Dr. Resurreccion show that Anita
sustained five hacking wounds: three on the head and two on the arms.
There is no dispute on the appellant’s claim that his wife sustained
wounds on the day he shot and killed the Gonzales spouses.

The appellant’s version of the incident which contains some arguments is as follows:

“The accused-appellant Patrocinio Dofilez is the fishpond overseer
of one Antonio Estioco whose fishpond is located at Owason, San Isidro,
Davao Oriental. Bagsak, the place where the incident took place, is
another barrio of San Isidro, Davao Oriental, where residents of Owason
used to pass through in going to Lupon, Davao Oriental. Although, there
is no evidence that the artesian well at Bagsak where the shooting took
place was not usually passed by the residents of Owason in going to
Lupon, yet the trial court made its own unfounded presumption that ‘one
must go there purposely and with some intention.’ (Decision, p. 15).
The unfounded presumption, unfortunately, was against the accused.

“In the afternoon of July 12, 1969, accused-appellant and his
wife, Anita Bitoon, were on their way to Lupon from Owason where they
reside. There being no responsible person at Owason to be left with the
carbine entrusted to accused-appellant in his capacity as fishpond
overseer, he took along with them as was customary said firearm.
Arriving at the artesian well at Bagsak where they had used to pass, and
which happened to be near the house of the deceased couple,
accused-appellant put down his carbine and started to wash his feet.
These acts of the accused-appellant upon arrival of putting down his gun
and of washing his feet were both testified to by prose­cution
witnesses Evangeline Gonzales and Felisa Ma­tabalan, and established as
facts by the trial court, (Decision, pp. 5 & 9). How the incident,
shooting, or fight started has become the controversy and issue of the
case. The prosecution through its witnesses tried to show that the
accused-appellant went to Bag­sak purposely to kill the deceased couple,
while the accused-appellant on the other hand professes self-defense,
to save himself and the life of his wife from the unlawful aggression of
the deceased couple. At any rate, when the incident finally ended, the
facts show that Cecilio Gonzales was found dead with a gunshot wound on
his right chest, at his right heel, and another on his right foot,
lateral aspect; Mamerta Gonzales, dead with several gunshot wounds on
her right shoulder and arm, with one lacerated wound on the right side
of her back (p. 85, t. s. n. – Mosqueda); Anita Bitoon Dofilez, found
unconscious with wounds on her forearm, head, hands, and shoulder (p.
234, t.s.n. – Mosqueda); while accused-appellant surrendered to the
authorities his carbine still containing one live bullet (Testimony Sgt.
Catalino Ramos).” (Appellant’s Brief, pp. 1-3.)

It is manifest from the foregoing that whether or not the appellant
acted in self-defense when he shot and killed the Gonzales spouses is a
question of fact.

The trial court heard the testimony of several persons who were at the
scene of the shooting and saw what happened. On the part of the
prosecution the following testified: Evangeline Gonzales, daughter of
the deceased spouses; Felisa Matabalan, a school teacher; and Silvestra
Anislag, a neighbor of the deceased spouses. Those who testified for
the defense have already been mentioned above.

The trial court found the prosecution witnesses to be more credible than
those of the defense and there is nothing in the record which will
justify a reversal of its finding especially because under the
circumstances the burden of proof had shifted from the prosecution to
the defense.

The appellant claims that he had “to save himself and the life of his
wife from the unlawful aggression of the deceased couple.” (Appellant’s
Brief, p. 2.) But were the deceased spouses the aggressors? The record
is bereft of any evidence to show that the Gonzales spouses were the
aggressors. On the contrary there is every reason to suppose that it
was the other way around.

The evidence for the prosecution shows that the appellant and his wife
resented a rumor said to have been circulated by Mamerta Gonzales to the
effect that the appellant was having sexual relations with Eva, the
daughter of Anita Dofilez by her previous husband, and for which reason
Anita was reported to have said, “We will not surrender until when there
will be someone who will be dead here in Bagsak.” (TSN, p. 140.) In the
light of this fact, the deceased Gonzales spouses could not have been
the aggressors.

In U.S. vs. Laurel, 22 Phil. 252 (1912), Exequiel Castillo and
Jose Laurel engaged in combat. Each accused the other of having
commenced the assault. The Supreme Court said:

“In the presence of this marked contradiction, and being compelled
to inquire into the truth of the matter, we are forced to think that
the person who would consider himself aggrieved at the kiss given the
girl Concepcion Lat, in the street and in the presence of several
witnesses, would undoubtedly be Exequiel Castillo, the suitor of the
girl, and it would appear to be a reasonable conclusion that he himself,
highly offended at the oldness of Jose Laurel, was the person who
wished to demand explanation of the offense.” (At p. 263.)

Applying the Laurel case to the present one, the Dofilez spouses who felt aggrieved must have been the aggressors.

The appellant points to the fact that his wife sustained bolo wounds and
from this circumstance it is suggested that the deceased Gonzales
spouses were the aggressors. This suggestion is shattered by the fact
that even Mamerta Gonzales sustained bolo wounds inflicted by her
husband. The explanation is that after Cecilio had been shot he tried
to go after the appellant, flailing his bolo in the process but weakened
by his wounds he hit not only Anita Dofilez but also his own wife.

In the light of the foregoing, the appellant’s claim of self-defense is
not impressed with merit and the only other matter which has to be
considered is whether the crime committed is simple homicide or murder.

The information alleges treachery and evident premeditation as
qualifying circumstances. The appellant denies their existence. We
hold that there was treachery because the attack on the Gonzales spouses
was sudden and they had no opportunity to defend themselves or to seek
cover. There was also evident premeditation because, as Thelma Nangan
testified, there was a threat to kill even before July 12, 1969. (TSN,
pp. 171-174.)

The appellant is guilty of double murder because the victims were killed
with different bursts of fire from his gun and not from a single shot.

Under the circumstances it would be appropriate to impose two death
penalties on the appellant but for lack of the necessary number of
votes, two reclusion perpetua are imposed instead.

WHEREFORE, the judgment under review is hereby modified in that
Patrocinio Dofilez shall suffer the penalty of two (2) reclusion
perpetua and ordered to indemnify the heirs of the deceased spouses the
amount of Sixty (P60,000.00) Thousand Pesos and to pay the costs.

SO ORDERED.

Fernando, C.J., Teehankee, Aquino, Concepcion, Jr., Guerrero,
Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, and Cuevas, JJ., concur.

Makasiar, J., see partial dissent.

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PARTIAL DISSENT

MAKASIAR, J.:

The appellant should be convicted only of one homicide and one murder, both mitigated by obfuscation and voluntary surrender.

In the case of the deceased Cecilio Gonzales, neither treachery nor
evident premeditation was established. It is not shown that the
appellant decided to kill Cecilio Gonzales before going to the Gonzales
premises with the carbine, when he arrived at such decision, and the
duration to reflect thereon until its execution. The mere fact that he
was armed with a carbine, does not demonstrate that he already was
determined to kill the victim Cecilio Gonzales before arriving at the
Gonzales premises that fateful afternoon of July 12, 1969. Such fact
may indicate merely that he intended to use the carbine for defense of
himself and his wife in case Cecilio Gonzales should assault them or
should become violent. This is emphasized by the fact that upon
reach­ing the Gonzales premises, he placed the carbine against the wire
fence and proceeded to wash his feet at the artesian well of the
Gonzaleses in the presence of the Gonzales’s 15-year-old daugh­ter
Evangeline and a school teacher, Felisa Mata­balan, who were
respectively bathing and washing clothes by the artesian well. The fact
that the attack was sudden does not necessarily mean that it was
treacherous, because, as stated before, appellant placed the carbine
against the fence and, while washing his feet, he just admonished the
deceased Cecilio Gonzales “to tell his wife not to utter obscene words.”
Upon hearing the admonition addressed by appellant to her husband
Cecilio Gonzales, Mamerta angrily replied, “What is that? I’m here. You
are in hell.” This further angered appellant. Mamerta Gonzales, wife
of the victim Cecilio, was reputedly the source of the gossip that
appellant was having carnal intercourse with the daughter of his wife
Anita by a previous husband, which gossip obfuscated appellant.

With respect to the shooting of Mamerta Gonzales, there is no evident
premeditation, because after the appellant shot. Cecilio, he ran away,
followed by his wife Anita. But Cecilio, although mortally wounded,
pursued both of them, brandishing his bolo and in the process, wounded
both his wife Mamerta and Anita. The sight of his wife being attacked
by the de­ceased Cecilio with his bolo, caused appellant to turn back
and to fire repeatedly at the wounded Mamerta, who was then crying while
embracing her injured husband, who fell to the ground as he pursued
appellant and his wife Anita.

Treachery qualified the killing of Mamerta who could not defend herself
as she embraced her dying husband even as her eyes were blinded by the
tears streaming down her cheeks.

As aforesaid, both homicide and murder are mitigated by obfuscation and voluntary surrender.