THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ZOILO CASTRO, DEFENDANT-APPELLANT.

This is an appeal by the accused from a judgment of conviction in
two cases jointly tried by the Court of First
Instance of Pampanga.

Said cases arose from an incident which took place on November 29, 1952, in front of the
house of the de­ceased, Moises Gomez, a barrio
lieutenant, by a small street in barrio Sto. Niño, San Fernando,
Pampanga, at around
four to four thirty
in the afternoon.  It started with an
altercation between Donaciano Vitug
and Alfredo Briones, and ended with Zoilo Castro, Briones’ companion,
shooting two persons who later got involved, Moises
Gomez, who was killed, and Candido Vitug, who was wounded but did not die.

Separate informations we thereafter
filed against Zoilo Castro in the Court of First
Instance of Pampanga for murder of Moises Gomez (Criminal Case No. 1546) and for frustrated murder
of Candido Vitug (Criminal
Case No. 1597).  As stated, the cases
were jointly tried, after the accused entered a plea of not guilty to both charges.  After
trial, the accused was convicted of the murder of Moises
Gomez, for which the penalty of reclusion perpetua was imposed, plus indemnity of P6,000.00 to
the heirs and P1,400.00 to the widow of the deceased; and for attempted murder
of Candido Vitug, to suffer
four (4) months and twenty (20) days of arresto mayor, as minimum
to four (4) years and two (2)
months of prision correccional,
as maximum, plus indemnity of P800.00 with subsidiary imprisonment if
insolvent, and costs, credit of one-half of preventive imprisonment, if any,
and forfeiture of the revolver used in the shooting.  And hence this appeal.

It is not disputed that at the time of the incident there were a
number of persons inside the house of the deceased Moises
Gomez where a game of monte was in pro­gress.  The prosecution tried to establish through
the testimony of Donaciano Vitug
that he and his brother Can­dido went to the house to
look for some companions who were
gambling there.  After staying for about
twenty minutes he went out and met Alfredo Briones, a
policeman then in plainclothes and off duty, who commented that it would be proper
to put a hand grenade into the car owned by Donaciano
(Tsn of Feb. 24, 1955, Vergara, p. 3).  Said car was then parked in the street
in front of the deceased’s house.  They
had exchanged words when Zoilo Castro, Brio­nes‘ companion, also a policeman then off duty and in
plainclothes, came out of the house and asked Briones
if Donaciano was tough.  As Briones did not
answer, Castro challenged Donaciano to fight but the
latter refused.  Moises
Gomez arrived and tried to pacify Castro, explain­ing that Donaciano
will not fight.  As Castro refused to
listen, Gomez warned that “Before you harm him, you better harm me
first.” At this, Castro brushed Gomez aside saying “You are
another.” Gomez then raised his hands and said “We will not fight
you.”  However, Castro stepped back, and calling him “son of a
harlot” pulled out his gun and fired at Gomez, who was hit in the head and fell.  (Tsn of Dec. 23,
1955, Maglalang, pp. 2-6)

As Gomez was shot, Candido Vitug came out of the house.  Castro also shot him.  Hit by the first shot, he fell to the ground
and tried to protect himself by kicking Castro as the latter continued to
shoot.  At this instance, Donaciano got a piece of stone and hit Castro on the
head.  Castro then faced Donaciano and tried to shoot him but he grabbed Castro’s
arm.  They both fell on the ground as
they grappled for the gun.  Somehow
Castro was able to stand up, but before he could shoot, Donacia­no
threw the stone at him.  Castro ran with Donaciano chasing him. 
However, Donaciano was not able to catch him
because he was able to board a jeepney (Tsn., ibid.,
pp. 6-7).  Donaciano
then brought his brother to the hos­pital.

Candido Vitug
testified that, having been told that his brother was arguing with somebody, he
went out of the house to find out what was going on.  It
was then that he was shot.  Fallen to the ground, he kicked Castro everytime the latter fired at
him.  Castro suddenly stopped firing at
him and he saw Donaciano grapple with Castro after
which Castro was able to run away (Tsn of March 16, 1956, Maglalang,
pp. 24-27, 32).

The Vitugs’ foregoing testimony was
corroborated by Menen Gomez who stated that he saw
the incident happen as he was seated on one of the two jeeps parked in front of
the house of the deceased.

Conrada Pili-Gomez,
the deceased’s wife, did not see the deceased being shot (Tsn.,
ibid., p. 37), but she testified to Castro’s occasional presence in their house
where her husband maintained a gambling
den.  On that afternoon, she testified to
having seen Menen Gomez sitting with her son in the
jeep (Tsn., ibid., p. 
51).

Setting forth the theory of self-defense, Zoilo
Cas­tro and Alfredo Briones stated that they went to
the house of the deceased merely to check a report that said de­ceased was
again maintaining a gambling den.  During
the exchange of words between them, the deceased Gomez pushed Castro, after
which he felt himself hit on the head. 
As Castro fell on his knees, dizzy, he pulled out his gun and, noticing
that two men were coming at him, shot them in the belief that he was about to be killed (Tsn
of May 6, 1958, pp. 72-81; Tsn of May 14, 1957, Maglalang,
pp. 64-65).  Jorge
Sangalang, a puto vendor,
claimed that he saw a man hit Castro with a big stone while the latter was
talking to the deceased Gomez (Tsn of July 28, 1958, Maglalang, pp. 88-90).

There is no question that Moises Gomez
and Candido Vitug were shot
by Zoilo Castro. 
Precisely how this hap­pened depends
upon which of the conflicting testimonies of the parties are
credible.  The court a quo
gave credence to the testimony of the
witnesses of the prosecution.  The rule
adhered to by Us in such cases
is that “as far as credibility
and veracity of witnesses are concerned, the conclusions of the lower court
command great weight and respect, on the ground that the trustworthiness of
witnesses and the merit of the defenses by the accused, are in the peculiar
domain of the trial court.”^[1] In this case We see no reason for departing
from the same rule, there being no showing that some fact or circumstance of
great importance to the case has been overlooked in the records or
misapplied or its significance misunder­stood by the lower court.^[2]

Appellant, for instance, objects to the lower court’s finding
that he and Briones proceeded to the deceased’s house
with “noise and fanfare” on the ground that this is not found in the
records.  The point, however, is that
this circumstance is of no moment, as far as the finding of guilt is concerned.

The records, on the other hand, show that even a defense witness,
Ireneo Talao, testified
that he saw Cas­tro shoot Gomez as the latter was trying to pacify the former (Tsn of April 6, 1957,
p. 55).

Affidavits were presented in the attempt to dismiss the
case:  that of Conrada
Pili-Gomez, wherein she stated that she was no longer
interested in the criminal action because she was convinced that Gomez’s death
was accidental or unavoidable; those of
Menen Gomez and of Ireneo Talao wherein both stated that they now realize that having
been hit first, Castro merely shot in self-defense.

It is Our opinion that the lower court rightly dis­regarded these
affidavits.  While Conrada
Pili-Gomez con­firmed her affidavit under oath, she
admitted having agreed to Castro’s proposal of settlement in considera­tion of
P500.00 (Tsn of Nov. 11, 1958, Vergara,
pp. 57- 58).  And Menen Gomez and
Ireneo Talao admitted in
open court that they signed the affidavits upon the request of Conrada Pili-Gomez who explained
that the case was be­ing amicably settled (Tsn of
Nov. 11, 1958, Vergara, pp. 51-61).

Needless to stress, the present criminal cases are not subject to
compromise.  And the opinion of Conrada Pili-Gomez as to the
guilt of the accused, is not con­trolling, since she was not a witness to the
incident in question.

From the evidence, We find testimony to the effect that when
shot, Moises had his hands up, either to show that he
would not fight, in fright, or to try to ward off the shots that were to come (Tsn of Feb. 24, 1955, Vergara, p.
6; Tsn
of Dec. 23, 1955, p. 6; Tsn of April
6, 1957, Maglalang,
p. 55).  Clearly, the deceased was in a
defenseless position when Castro shot him. 
This constituted treachery and qualified the offense to mur­der which is
punishable under Article 248 of the Revised Penal Code by reclusion temporal in
its maximum period to death.  As the
accused voluntarily surrendered (Tsn of May 4, 1957, Maglalang,
p. 70; Tsn of May 6, 1958, Maglalang,
p. 81), there obtains a mitigating circums­tance in his favor.  Accordingly, the penalty should be imposed in
its minimum period, reclusion temporal maxi­mum.  And the indeterminate sentence law should be
ap­plied, ranging in its minimum from prision mayor
maximum to reclusion temporal medium (a degree lower to reclusion temporal
maximum to death).

 As to the other charge,
frustrated murder, one physician Dr.
Efren Baltazar, senior
resident physician of Pampanga Provincial Hospital,
testified that without medical attendance, Candido Vitug would have died (Tsn of Jan. 9, 1955, Vergara, pp. 22-23), while
another doctor, Dr. Fortunato Guerrero, who treated Candido Vitug in the UST
hospital, believed that the wounds of Candido were
not necessarily fatal so that he
may or may not have recovered without medical treatment (Tsn
of Feb. 18, 1959, Maglalang pp. 13-14).  We consider this doubt in favor of the
accused and affirm the trial court’s conviction for attempted murder.  As mentioned, accused surrendered
voluntarily.  Applying this mitigating circumstance
also to the penalty for attempted murder (prision correccio­nal maximum to prision
mayor medium), the indeterminate sentence minimum should be anywhere from arresto mayor maximum to prision
correctional medium; and the indeterminate maximum should be prision correccional
maximum.  Accordingly, the penalty should
be an indeterminate sen­tenced minimum of four (4) months and twenty
(20) days of arresto mayor (as fixed by the court a quo) up to an in­determinate
sentence maximum of four (4) years two (2) months and (1) day of prision correccional (add one day
to bring it within the minimum period of the penalty provided for by
law).

WHEREFORE, the appealed judgment is hereby modified,
affirming conviction in both cases, but reducing the pe­nalty for murder to an
indeterminate sentence of from ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal as maximum, plus the indemnity
provided for in the said judgment, and costs, with credit for preventive
imprisonment, if any; and correcting the penalty for the attempted murder to
four (4) months and twenty (20) days of arresto
mayor, as minimum, to four (4) years, two
(2) months and one(1) day of prision correccional; in all other respects, said judgment is
affirmed.  No costs in this instance.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and
Ruiz Castro, JJ., concur.

^[1]
People v. Evaristo, L-14520, Feb. 26, 1965; People v. Lumayog, L-19142, March
31, 1965.

^[2]
People v. Amirul Asmawil,
L-18761, March 31, 1965.