THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOHNNY BASADRE, DEFENDANT-APPELLANT.

In Criminal Case No. CCC-II-15 (BB) of the then Circuit Criminal Court
of Baguio, accused Johnny Basadre was found guilty of the crime of
murder, qualified by treachery, and with the aggravating circumstance of
recidivism and the special aggravating circumstance of
quasi-recidivism, was sentenced to suffer the extreme penalty of death,
to indemnify the heirs of the deceased Alfonso Rayray in the amount of
P12,000.00 and to pay the costs. Thus, this case is before Us on
automatic appeal.

Prosecution evidence shows that in the afternoon of August 8, 1971,
Alfonso Rayray and his brother Domingo, together with one Edito Tacla,
were at Maresciel Soda Fountain in Baguio City to partake of some
refreshments. Domingo Rayray and Edito Tacla sat on the stools beside
the counter and eventually proceeded to enjoy the refreshments they have
ordered. Alfonso Rayray went towards the juke-box near the door which
is about two meters where his brother Domingo and Edito Tacla were
seated.

While Alfonso was scanning the list of musical selections available for
play, a commotion suddenly broke out in front of the Maresciel Theater,
sending people to scamper away from the place. Suddenly, a man who was
later on identified as Johnny Basadre (herein appellant) approached
Alfonso Rayray and stabbed him with a knife. Spontaneously, Alfonso
exclaimed: “Binagsuldac metten”, meaning (I am already wounded).

Alfonso Rayray was rushed to the Baguio General Hospital and was
immediately operated on by Dr. Magdaleno Mucum who found the patient
with a fatal stab wound at he hypogastric region where part of the
intestine protruded. He was confined at the hospital up to September
24, 1971 when he was transferred at the Pines City Doctors’ Hospital
where he underwent another operation by Dr. Ernesto Bayuga.

On October 31, 1971, Alfonso was transferred at the Lahos Clinic and
Hospital at Vigan where he underwent one more operation on November 4,
1971. However, on November 16, 1971, on account of internal hemorrhage,
the patient finally succumbed and died of hemorrhage complication.

When Alfonso Rayray was still at the Baguio General Hospital, Pat.
Tinasa was able to interview and question him in the course of which he
was shown five (5) photographs of different police characters. Alfonso,
who was then weak, pointed to a photograph (Exhibit G-2) which turned
out to be the picture of appellant Johnny Basadre.

On September 9, 1971, Domingo Rayray confirmed Alfonso’s identification
of appellant Basadre as the assailant by pointing to the latter’s
picture (Exhibit G-2), among the five photographs shown him as the very
person who stabbed his brother.

The defense is denial and alibi. Appellant declared that in 1970 he was
in New Bilibid Prisons at Muntinlupa serving sentence until he escaped
therefrom on December 13, 1970. He went to Manila where he stayed for
about six (6) months and, upon learning that the Muntinlupa prison
guards were looking for him, he went into hiding in Dagupan for some
four (4) months, following which he transferred to Lingayen, Pangasinan
and stayed with his grandparents. In August 1971 he claimed that he was
in Ba-ay and did not go up to Baguio until October 1971 because “I was
afraid that this is the place I had cases” and “I was thinking that they
might be looking for me here in Baguio.” However, he admitted that in
1971 his parents were living in Baguio and that was the reason he
finally went there to see his mother.

On December 16, 1971, appellant Basadre was apprehended by Pat. Talostos for possessing a concealed deadly weapon.

Convicting appellant Basadre of the crime of murder, the trial court said –

“The accused admitted that he was in Ba-ay, Lingayen, Pangasinan,
sometime in August although he could not remember the exact date. He
also admitted that before he returned to Baguio in October 1971 he had
gone to Camp 6 five or six times the last of which was in the month of
September 1971 when he stayed for a week with an uncle working in the
mines.

“Under these circumstances it is not impossible that on August 8,
1971, he could have gone to Baguio and committed the crime. It must not
be overlooked that at that time the accused was a fugitive from justice
— an escapee from Muntinlupa and as such he never stayed in one place
long enough to be traced by authorities. It was therefore not
impossible for him to penetrate Baguio in any of his trips to Camp 6.
His reason that he purposely did not proceed to Baguio because he was
afraid the authorities might catch up with him does not by itself render
impossible his going there. As a matter of fact even with this fear he
nevertheless went to Baguio in October 1971 to see his mother. His
forays to Baguio previous to October 1971 without being caught by the
police must have emboldened him even more to come to Baguio until the
police finally caught up with him in December 16, 1971.

x x x                          x x x                             x x x

“It is therefore the considered opinion of this court that as
against the positive identification of the accused, the defense failed
to prove his alibi to the satisfaction of the court. x x x” (pp. 36,
38, Rollo)

In this appeal, defendant-appellant claims that the trial court erred
(1) in not dismissing the information on the ground of double jeopardy;
(2) in not acquitting the accused, the evidence being insufficient for
conviction; (3) in disregarding the evidence for the defense; and (4) in
finding that treachery and quasi-recidivism were present.

Appellant’s first assigned error is devoid of merit. Criminal Case No.
522 of the then Court of First Instance of Baguio and Benguet for murder
against herein appellant Johnny Basadre was only transferred by raffle
to the Circuit Criminal Court of the Second Judicial District which
docketed it as Criminal Case No. CCC-II-15 (BB), pursuant to
Administrative Order No. 274, dated September 11, 1968, as amended by
Administrative Order No. 274, dated September 30, 1968, of the then
Department of Justice. Thus, it cannot be said that Criminal Case No.
522 of the Court of First Instance was terminated, much less was
appellant convicted or acquitted therein. After his arraignment in said
Criminal Case No. 522, the case was transferred for actual trial to the
Circuit Criminal Court where it was given the corresponding docket
number.

With respect to the identity of appellant as the assailant of Alfonso
Rayray, prosecution witness Domingo Rayray testified as follows:

“Q You said your name is Domingo Rayray. Do you know somebody by the name of Alfonso Rayray?

A Yes, sir.

Q Why do you happen to know him?

A He was my brother sir.

Q You said “was my brother.” What happened to him?

A He was stabbed.

Q When was he stabbed?

A August 8, 1971.

Q Where was your brother stabbed?

A At the Maresciel Soda Fountain, Zandueta Street, Baguio City.

Q Do you know who stabbed your brother?

A Yes, sir.

Q Would you look around the courtroom and see if the one who stabbed your brother is present?

A (witness pointing to accused Johnny Basadre).

Q How do you know that the accused Johnny Basadre is the same person who stabbed your brother?

A It was he whom I saw who stabbed my brother.

Q Were you alone at the time Johnny Basadre stabbed your brother?

A No, sir.

Q Who was your companion, if any?

A Edito Tacla.

Q By the way, where is your brother now, if you know?

A He is already dead.

Q Would you please tell the court how Johnny Basadre stabbed your brother?

A When we came from our boarding house at Kayang, we proceeded to Maresciel Soda Fountain to take refreshment.

Q You said “we”. Who are your companions?

A Edito Tacla and my brother sir.

Q Then what happened?

A While Edito Tacla and I were having our refreshments, my late
brother went to play music at the jukebox. That was the time when he
stabbed him.

Q You said “he”, to whom are you referring?

A (Witness pointing to the accused Johnny Basadre.)

Q How far were you and Edito Tacla away from the jukebox where your brother was playing music?

A Maybe two meters sir.

Q Will you please step down from the witness stand and
demonstrate the position of your brother just before he was stabbed by
the accused? Assuming that the table over here which was used by the
Court Interpreter is the jukebox. Assuming that you are your late
brother, how was his position?

A (Witness placing his right hand on the table which is presumed to be the jukebox, facing the jukebox).

Q Assuming that the Interpreter was your brother and you are the accused, how did the accused stab your brother?

A He stabbed him like this sir. (witness standing on the left
side of the deceased and with his right hand, made a position sidewards
and then backwards to the direction of the deceased).

Q How many times did the accused stab your brother?

A Only once sir.

Q Did you see what weapon the accused used in stabbing your brother?

A I cannot recognize sir.

x x x                          x x x                             x x x

COURT:

Q Just a minute, what did the accused use in stabbing your brother?

A I cannot recognize sir.

Q Did you see it?

A Yes sir.

Q Was it a piece of wood? Was it a dagger? What was it he used
in stabbing your brother? Did you see or did you not see?

A I saw It sir.

Q What was it? A piece of stone, a stick?

A A knife sir.

Q Are you sure of that?

A Yes, sir.

ATTY. TABANGIN:

Q Before the accused stabbed your brother, from what direction did the accused come from in relation to your brother?

A I don’t know where he came from sir.

ATTY. BUCAYCAY:

May I make of record that his original answer was he doesn’t know?

COURT:

Make it also of record that the question was not yet asked in Ilocano by the Interpreter.

Q Do you understand English?

A A little sir.

Q Do not answer if you can not understand English very well. Wait until it is interpreted. What grade did you reach?

A First year college sir.

ATTY. TABANGIN:

Q Before the accused stabbed your brother, from what direction did the accused come from in relation to your brother?

A I do not know where he came from sir.

Q Was the jukebox playing music at the time your brother was stabbed?

A Yes, sir.

x x x                          x x x                             x x x

Q When you entered this establishment, Maresciel Soda Fountain, did you see the accused immediately before the stabbing?

A Not yet sir. I did not see him.

Q He was not then inside that Soda Fountain establishment when you arrived?

A He was not there yet sir.

Q So he came later after you?

A May be sir.

Q You did not see him come in?

A No, sir.

ATTY. TABANGIN:

Q Where was Edito Tacla also the moment your brother was stabbed?

A We were side by side sir.

COURT:

Q What were you doing?

A We were taking refreshments, sir.

Q Why did your brother go to the jukebox?

A He wanted to play some music sir.

Q But it was yet playing at the time he approached the jukebox?

A Yes, sir.

Q What did he do? Did he still play it upon approaching the jukebox?

A He was looking at the list of tunes to be played sir.

Q Was he able to play his desired music?

A No more sir.

Q Why?

A That was the time when he was stabbed.

Q So what was he doing when he was stabbed? He was just leaning
on the jukebox or aside from that, he was reading the tunes available to
be played?

A He was leaning on the jukebox while looking at the list sir.” (pp. 74-76, 77-79, tsn., December 12, 1973 hearing)

Appellant’s alibi cannot overcome the positive identification by the
victim when appellant’s picture, among others, was shown to him; and, by
Domingo Rayray who pointed to him (Johnny Basadre) when he took the
witness stand. The absence of motive does not preclude the commission
of the crime considering that nowadays it is of judicial knowledge that
others have been killed or assaulted for lesser or no reason at all.
Nowadays, the impulsiveness of youth has given way to mature thinking
(People vs. Reyno 13 SCRA 647).

Anent the fourth assigned error, the Solicitor General agrees with the
defense that the qualifying circumstance of treachery has not been
satisfactorily established and, as a consequence, the crime committed
was only homicide. We quote from the brief of the Solicitor General –

“It is to be recalled that while the deceased was standing before
the jukebox at the side of the door of the Maresciel Soda Fountain, a
commotion occurred in the alley in front of said door, which was also in
front of the Maresciel Theater (See Sketch, Exh. X), so that the people
there ran in all directions. The deceased must have been attracted and
gone to the door to find out what the commotion was all about. At this
juncture, appellant armed with a knife, approached the deceased and
frontally attacked the latter by stabbing him in the abdomen. Under the
circumstances, the deceased could not have failed to see the impending
assault and could have put up a defense, so that it cannot safely be
said that there was absolutely no risk to appellant arising from the
defense the deceased might make.

“Moreover, while the attack upon the victim has been sudden and
unexpected, it does not of itself show treachery unless there is
evidence that such form of attack was purposely adopted by the accused
(People vs. Tumaob, 83 Phil. 742). No such evidence exist to prove this
purpose, not only because the accused and the victim were undisputably
unknown to each other, but further because the accused herein was merely
running away from the site of the commotion and the deceased happened
to be blocking or was along his path. Verily, therefore, it could not
be said that the accused had the opportunity to reflect on the means,
method and forms of attacking the victim.

“Domingo Rayray’s pretension, that the deceased was attacked by
the appellant while the former was leaning on the juke-box scanning the
lists of the records and trying to select which to play, is difficult to
believe. If this were true, appellant, who must have entered the door
of the Maresciel Soda Fountain from the alley, could have easily stabbed
him in the back. But the fact is that deceased was stabbed in the
stomach, indicating that it was a frontal assault.

“Settled is the rule that a qualifying circumstance must be
established as conclusively as the crime itself and that in case of
doubt, the same must be resolved in favor of an accused (U.S. vs.
Adriano Perdon, 4 Phil. 141). The application of the foregoing doctrine
to the case at bar becomes the more imperative, because an estimation
of the alleged qualifying circumstance of treachery, which, as already
adverted to above has not been clearly proved, would require the
imposition of the extreme penalty of death, in view of the aggravating
circumstances of recidivism and quasi-recidivism.” (pp. 15-17,
Appellee’s Brief)

We are not in accord with this finding. The sudden and unexpected
attack on the victim Alfonso Rayray which ensured the commission of the
killing without any risk to the assailant constitutes treachery. It
maybe true that the attack was made by assailant face to face with the
victim, but We should consider the fact that the latter was unarmed, was
totally unaware of the coming attack from someone he did not even know
and was not in a position to defend himself against him. Treachery may
be appreciated in a sudden frontal attack (People vs. Reyno, 77 Phil.
93).

WHEREFORE, the appealed judgment is AFFIRMED with the modifications that
for lack of necessary votes, appellant Johnny Basadre is hereby
sentenced to suffer the penalty of reclusion perpetua, to idemnify the
heirs of Alfonso Rayray in the amount of P30,000.00 and to pay the
costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr.,
Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin,
Gutierrez, Jr., and De la Fuente, JJ., concur.