THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PROCOPIO O. BERMOY, DEFENDANT-APPELLANT.

People versus Bermoy

The Case

This is a criminal appeal in which the People of the Philippines prosecuted Procopio Bermoy for two offenses arising from a single incident: the killing of Humberto Hamo, a bus driver, and the unlawful carrying of a deadly weapon. The case matters for two reasons. First, it is a compact lesson on the weight of positive identification of an accused by eyewitnesses against the defenses of alibi and denial, and on how the Supreme Court treats minor inconsistencies in a witness's testimony. Second, and more importantly for the bar, it is a leading authority on the elements of the offense penalized by Presidential Decree Number 9, the illegal carrying of bladed weapons, which requires proof that the weapon was carried in furtherance of subversion, rebellion, or other public disorder. The Court here acquitted the accused of that second charge even as it affirmed his murder conviction.

Procedural History

Procopio Bermoy was charged in two separate informations before the Court of First Instance of Bohol: one for murder, and one for unlawful carrying of a deadly weapon. After trial, the Court of First Instance convicted him on both counts. In the murder case it sentenced him to reclusion perpetua, ordered him to indemnify the heirs of Humberto Hamo in the amount of 15,000 pesos as actual or moral damages, and to pay the costs. In the unlawful carrying case it sentenced him to ten years of imprisonment and to pay the costs, and ordered the bolo forfeited in favor of the government. Bermoy appealed the decision directly to the Supreme Court, assigning three errors: that his identity and guilt were not proven beyond reasonable doubt, that the trial court failed to credit his alibi, and that he was wrongly convicted under Presidential Decree Number 9 despite the absence of proof that the bolo was used in furtherance of subversion or rebellion.

Facts

On the evening of July 27, 1975, at around six o'clock, Humberto Hamo, a driver of the MB Liner based in Tagbilaran, Bohol, and his conductor Julian Calabes stopped at an intersection in Barrio San Roque. Hamo went inside the store owned by Ponciano Uy and drank Tanduay Rhum at Uy's invitation, while Calabes sat on a bamboo bench outside. At about six thirty in the evening, a fish vendor, Alonso Galas, arrived in the vicinity shouting "fish for sale," and stationed himself some ten meters from the store, which was lighted by two petromax lamps.

Among the buyers who gathered around the fish was Humberto Hamo. While Hamo was bending over the fish, the accused, Procopio Bermoy, approached him from behind and hacked him with a bolo. Everyone in the area scampered for safety except Guillermo Cuyno, another buyer, and the vendor Galas, who wanted to intervene. The first blow completely surprised the deceased, but he still managed to run some fifteen meters away. Even as he ran, and even after he had fallen to the ground, the accused kept striking at him with the bolo. Hamo sustained multiple incised wounds to the scalp, the brain, the face, the chest, the back, and the hands, and he died as a result.

After the incident, the accused tried to contract for a boat to bring him to Leyte, and he hid in a bamboo thicket to avoid arrest. The police looked for him that same evening and, past midnight, went to his house but found only his parents, who told them he had not gone home that evening. At trial, the accused interposed alibi, claiming he was some three kilometers away from the crime scene, and presented a single witness, Maximo Timario, to corroborate him.

Issues

• Whether or not the accused was positively identified as the assailant, and whether or not his guilt for murder was proven beyond reasonable doubt.
• Whether or not the defense of alibi may prevail against the positive identification of the accused by the prosecution witnesses.
• Whether or not the accused may be convicted of unlawful carrying of a deadly weapon under Presidential Decree Number 9 absent proof that the bolo was used in furtherance of subversion, rebellion, or other public disorder.

Applicable Provisions

Presidential Decree Number 9 penalizes the unlawful carrying of deadly weapons, and the Court construed its essential element as requiring that the weapon be carried in furtherance of subversion, rebellion, or other public disorder. The decision refers to this element in the following terms:

The bolo (Exh. B) used in the hacking of Humberto Hamo was not proven to be a weapon used in the furtherance of subversion, rebellion or other public disorders mentioned in Presidential Decree No. 1081, which is an essential element of the crime defined in said Decree.

This element is decisive because, without proof that the weapon was carried in furtherance of subversion or rebellion, the crime defined by the decree is not committed at all.

Ruling

On the first issue, the Court held that the accused was positively identified as the assailant and that his guilt for murder was proven beyond reasonable doubt. The accused attacked the testimony of the fish vendor Alonso Galas, arguing that Galas identified him only after the Chief of Police had named him as the assailant. The Court found that the accused conveniently omitted the portions of Galas's testimony showing that Galas already knew, on his own personal knowledge, that the accused was the killer before the Chief of Police told him so. Galas testified that he saw the hacking, that he admonished the accused to stop, and that the accused warned him, "do not go near, this is a bolo already." The Court found this warning perfectly corroborated by Guillermo Cuyno, who heard the accused shout "A bolo, Nong!" The Court also held that the discrepancy between Galas's affidavit, which said the victim was "hacked," and his testimony at the preliminary investigation, which said "stabbed," was a mere inaccuracy that does not discredit his entire testimony, since a bolo may be used in either a hacking or a stabbing motion. The Court further found that the place was well lighted by two petromax lamps and that the witnesses all knew the accused well before the incident.

On the second issue, the Court held that the alibi cannot prosper against positive identification. The Court noted that the accused was only some three kilometers away from the crime scene, so it was not physically impossible for him to be present at the time of the crime. His lone corroborating witness was found unreliable, and the accused did not present his parents and brother to prove he was at home. The Court also noted the evidence of motive, including a threat the accused muttered against the victim, and his attempt to flee and hide after the incident, which showed a sense of guilt.

On the third issue, the Court ruled in favor of the accused. It held that the bolo used in the hacking was not proven to be a weapon used in the furtherance of subversion, rebellion, or other public disorders mentioned in Presidential Decree Number 1081, which is an essential element of the crime defined in Presidential Decree Number 9. The Solicitor General agreed with the accused on this point. Accordingly, the conviction for unlawful carrying of a deadly weapon was set aside. On the murder charge, the Court held that the killing was qualified by treachery, which absorbed nocturnity, and that evident premeditation was not proven. Without any modifying circumstance, the penalty was imposed in its medium period, which is life imprisonment.

Doctrine

First, the defense of alibi cannot stand against the positive identification of the accused by eyewitnesses who have no motive to falsely charge him, especially where the accused was not so far from the crime scene as to make his presence physically impossible. Second, a minor discrepancy between a witness's affidavit and his testimony in court, such as describing an attack as "hacked" in one and "stabbed" in another, does not destroy the witness's credibility where the inconsistency is a natural inaccuracy of one testifying to a fast-moving event. Third, and most important for the bar, the crime of unlawful carrying of a deadly weapon under Presidential Decree Number 9 requires, as an essential element, proof that the weapon was carried in furtherance of subversion, rebellion, or other public disorder; absent that proof, the accused must be acquitted of that charge.

Disposition

The Court affirmed in full the judgment of conviction for murder in the first criminal case, with costs, and reversed and set aside the judgment of conviction for unlawful carrying of a deadly weapon in the second criminal case, with costs de oficio.

Remember This

The single line worth memorizing is that under Presidential Decree Number 9, the prosecution must prove that the deadly weapon was carried in furtherance of subversion, rebellion, or other public disorder, for that is an essential element of the crime. Examiners use this case to test the elements of the offense under Presidential Decree Number 9, and to test the rule that alibi cannot prevail against positive identification by credible eyewitnesses.