PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE VS. ROSALIO PANCHO, DEFENDANT AND APPELLANT.

Rosalio Pancho was charged with murder before, the Court of First Instance of
Cebu for the death of Nicolas Anero and frustrated murder for the: injuries
inflicted on the person of Esteban Anero in separate informations. The same
having arisen out of a single incident, the two charges were, by agreement of
the parties, tried jointly. For the crime of murder, he was found guilty and
sentenced to suffer reclusion perpetua, with the accessories of the
law, to indemnify the heirs, of the deceased in the sum of P4,000.00, and to pay
the costs; while for the second charge, he was found guilty of serious physical
injuries and sentenced to suffer 8 months of prision correccional and
to pay the costs. In both cases, the accused has appealed.

At about 6:30 o’clock in the evening of August 19, 1956, while Nicolas Añero
was walking along the road in the municipality of Ginatilan, Cebu, he was
suddenly hacked by Rosalio Pancho with a sharp bolo. Having been hit on the
right shoulder, Añero raised his hands, covered his head and ran towards the
store of Catalino Duterte, but Pancho followed and continued hitting him with
the bolo inflicting on him 11 wounds on the neck, breast, thigh, back, spinal
column, forearm, and on the abdominal region, as a result of which Añero died
instantly due to heart failure secondary to profuse hemorrhage.

After wounding and killing Nicolas Añero, Pancho met Esteban Añero, Nicolas’
brother, in the store of Fabing Asion situated 20 meters away and struck him
with the bolo on the left face causing him to fall to the.ground unconscious.
Esteban was treated by the sanitary inspector and transferred to the Southern
Hospital where he was released on September 9, 1956, showing permanent deformity
on his face.

Rosalio Pancho admits that he was the one who inflicted the wound in the
persons of Nicolas and Esteban Añero, but explained that the same were inflicted
as follows: that at about 6:00 o’clock in the afternoon of the day in question
he was oniis way to the poblacion because he was called by Roberto
Tacao to prepare a coffin for a child who died; that he carried with him a bolo
in going to the house of Tacao; that when he was near the house of Catalino
Duterte, Nicolas Añero, who was then holding a stone in his left hand and a
Batangas knife in his right, approached him and all of a sudden stoned him on
the left breast; that after throwing the stone Añero immediately stabbed him
with the knife but he was able to parry the blow; that Añero stabbed him again,
and it was at this juncture that he was able to pull out his bolo and hit Añero
on the forearm; that when he was about to hack him again, Añero stooped down and
was hit on the head; that Anero continued to stab him several times but he was
able to parry all the blows, while he inflicted 11 wounds on Anero; that Esteban
Añero, Nicolas’ brother, who was armed with a hunting knife and a stone, also
approached and threw a stone at him; that Esteban also stabbed him and it was
then that he struck and wounded Esteban on the face, causing him to fall to the
ground unconscious; that thereafter he went home; and that the motive why
Nicolas Añero attacked him was that he refused to settle a case of physical
injuries Añero filed against him in May, 1955 which resulted in his acquittal,
and from that date on the Añeros harbored a grudge against him.

We agree with the finding that in the evening in question while Nicolas Añero
was walking along the road in the poblacion of Ginatilan, Cebu, he was
suddenly attacked by appellant and that despite the fact that Añero ran away
with his raised hands, appellant pursued him and continued slashing him in
different parts of his body causing his instant death, and that thereafter upon
meeting Esteban Añero appellant also hacked him on his left face which almost
caused his death though it left a scar which caused his deformity. And we are
persuaded that such is the true version because it finds support not only in the
testimony of Delfin Gravamen, who was present when Nicolas Añero was assaulted
on the fateful evening, but also in the testimony of his brother Esteban who
survived the attack, corroborated by the rural health nurse who performed the
autopsy of the deceased and by Dr. Jorge Espina who treated the wound of Esteban
Añero. The trial court found these witnesses trustworthy and deserving of
credit.

The effort made by appellant to show that he inflicted the wounds on the two
brothers in self-defense is of no avail, for if it were true that he was
attacked by the Añeros while he was allegedly on his way to the house of Roberto
Tacao to make a coffin for his dead child it is strange that he came out
unscathed while the two received serious wounds which caused death to one and
deformity to the other. Indeed, according to the autopsy performed on the body
of Nicolas Añero, the latter received 11 wounds in different parts which do not
jibe with the manner the same were inflicted according to the theory of the
defense. This is more so when, according to appellant, the incident happened
when he and the two brothers were close to each other and all were armed with
deadly weapons. And while we may grant arguendo that when appellant met
Nicolas Añero the latter immediately threw a stone at him hitting him on the
breast and that right after the incident he went direct to the rural health
nurse for treatment who promised to give him a certificate to attest to his
wound, he, however, never made any attempt to obtain such a certificate, nor has
he presented the health officer as a witness to corroborate his claim that he
merely acted in self-defense.

On the other hand, the nature, location and number of wounds sustained by the
deceased tend to prove that it was appellant who really started the aggression
in the manner testified to by Delfin Gravamen whose testimony was given credence
by the trial court because he was found to be disinterested and without motive
to testify falsely against him. And with regard to the claim that the two
brothers were the ones who ambushed and attacked appellant on one single
occasion thus implying that appellant merely acted in self-defense, the defense
has failed to explain the vital fact that Nicolas Añero died near the store of
Catalino Duterte while his brother Esteban fell unconscious near the store of
Fabing Asion, the two stores being quite apart from one another, which
unmistakably shows that they were indeed attacked in the manner proven by the
prosecution.

The contention that all the elements of self-defense are here present cannot
also be sustained, it appearing, as already shown, that the aggression did not
come from the deceased nor from his brother but rather from appellant. As a
matter of fact, the evidence shows that it was appellant who started the
aggression with evident treachery when he attacked Nicolas Añero suddenly and
without any warning.

The law and the evidence sustain the findings that the crime committed
against Nicolas Añero is murder, and there being present the aggravating
circumstance of recidivism,^[1] without
any mitigating circumstance to offset it, the penalty that should be imposed is
death. However, for lack of sufficient number of votes, he should only be
sentenced to reclusion perpetua.

With regard to the second crime, we also agree that the act committed is
merely one of serious physical injuries because it does not appear clear that
appellant attacked Esteban Añero with intention to kill him. However, the
penalty imposed by the trial court should be modified to make it conformable to
the provisions of the Indeterminate Sentence Law. Following, therefore, the
recommendation of the Solicitor General, appellant should be sentenced to suffer
for the second crime an indeterminate penalty of not less than 4 months and 21
days of arresto mayor and not more than 2 years 4 months and 11 days of
prision correctional.

Wherefore, modifted as above indicated, the decision appealed from is
affirmed in .all other respects, with costs against appellant.

Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Reyes, J.B.L.,
Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.

Judgment affirmed with modifications.

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^[1] Since recidivism is only an
aggravating circumstance (People vs. Melendes, 59 Phil., 164; People
vs. Bernal, 63 Phil., 750); it need not be pleaded for it is not an
integral element of the offense charged, but it may be proven at the trial, and,
if proven, must be taken into consideration in imposing the penalty (U.S.
vs. Campo, 23 Phil. 368.