THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FRANCISCO CANANOWA, ACCUSED WHOSE DEATH SENTENCE IS UNDER REVIEW EN CONSULTA.

This is a murder case.  In the
evening of Saturday, December 21,
1968, Emilio Royo, a
thirty-three-year-old married man, a “helper” by occupation, was
stabbed inside a residence on Maximo
Street, near the church
of Iglesia
ni Cristo,
squatter’s area, Pasig Line, Barrio Olympia, Makati, Rizal.  He died at the Philippine General Hospital at
nine-fifty on that same night.

He sustained fifteen stab wounds located on the chest, shoulder,
back, head, and left arm, some of which injured his lungs, diaphragm and
stomach.  He also suffered a contusion on
the forehead and abrasions on the head and on the infraclavicular
and infrascapular regions.

From the fact that nine wounds could have been caused by a
double-bladed weapon and that the other six
wounds were oval-shaped, the medico-legal officer concluded that they
were caused by two weapons, a double-edged knife and an ice pick, and that
there was more than one assailant.

The prosecution presented only one eyewitness, Rogelio Dineros, a twenty-four-year-old driver, to prove that
Francisco Cananowa stabbed Royo.  Dineros testified
briefly that in the evening in question, while he and Martin Geroda were drinking in the kitchen of his residence on Maximo Street, he heard Royo shouting the name “Emerita“.  The shout came from the house which was the
second from the house of Dineros.  On hearing that shout, Dineros
climbed the wall and he saw his neighbor, Royo, held
by two persons and being stabbed by Francisco Cananowa
who was facing Dineros.  The place was near a lighted electric
post.  Dineros
knows Francisco because they were both drivers and they often met at the Caltex gas station. 
He did not know Francisco’s companions because their backs were turned
to him.

Dineros‘ testimony was a confirmation
of his sworn statement to the police which reads:

“Samantalang kami
ng aking pinsan ay nagiinuman ay nakarinig ako ng
sigaw sa may kabila ng pader
at nang madinig ko ang sigaw
ay umakyat ako sa may pader upang
tingnan (kung) sino at ano yaong sigaw
na iyon.

“Nang ako
ay nasa itaas
na ng pader
ay nakita ko si Emilio Royo na hawak ng
dalawang tao at sinasaksak naman ni Francing (Francisco Cananowa).  Ngayon na
makita kong ganoon ay bumalik na ako sa
aming bahay dahil (sa) natakot
ako baka ako ay madamay.

“Nakita ko
po at nakilala ko po si
Francing (Francisco Cananowa)
sapagkat maliwanag po ang mga
ilaw sa paligid
at isa pa dati ko pong kakilala sila.” (Nos. 5 and 6 of Statement,
p. 6, Record).

Emerita Royo
testified that her brother Emilio resided with her but his wife, Gorgonia Castillo, was staying in the house of Francisco Cananowa with her friend, the sister of Francisco.  That arrangement was resorted to because
Emilio and his wife had not been able to rent a house after they were evicted
from the house where they resided (No. 11, page 4, Record).

Emerita further testified that Rosario
Robles, the wife of Francisco, suspected Emilio of having thrown a stone at
Francisco’s house and that the two men who held Royo
were Zosimo Palacio and
Jesus Cananowa, the nephew of Francisco who later
went to Samar (18 tsn Marsh
10, 1969).

Francisco Cananowa, a
twenty-seven-year-old driver, relied on an alibi.  He testified that at the time the stabbing
occurred he was working in Infanta
Street, Makati,
driving a truck and delivering ice.  He
went home at ten o’clock or after the stabbing had been consummated and
he found his nephew, Jesus, in the house with a wound in his abdomen.  Jesus told Francisco that he was stabbed by Royo.

Francisco allegedly instructed his sister, Sinforosa,
to bring Jesus to the hospital.  He (Francisco)
remained at home.  He did not know
anything about Royo’s death.

The police blotter and the police report (Exh.
1 and 2) offered in evidence by the defense disclose different motives for the
killing of Royo supposedly by Jesus Cananowa.

According to Exhibit 1, at nine-thirty on that night of December 21, 1968, the stabbing was
reported to the police and entered in the police blotter.  It was recorded therein that Jesus Cananowa, a twenty-seven-year-old married man, a laborer,
residing at the squatter’s area, Pasig Line, Barrio
Olympia, Makati,
was stabbed by Emilio Royo and was brought to the
Philippine General Hospital (p. 147, Record).

On the other hand, the police report made at ten-forty-five on
that same night shows that Jesus Cananowa was
brought to the emergency room of the hospital. 
Although wounded in the abdomen, Jesus managed to tell a policeman that
he, Royo and one Iso had a
contract to install a pump for P250; that Royo
received that amount and pocketed it; that Royo’s
concubine, Gorgonia Castillo, separated from him and
lived with Jesus; that Royo and one Avelino Basas (Basa) went to the house of Jesus and challenged him to a
fight and that it was only when he (Jesus) could not endure Royo’s
taunts anymore that he went down from his house and fought Royo
(Exh. 2, page 148, Record).

In the same report, it was stated that “the fatal weapon and
the weapon used by Jesus” Cananowa, were
recovered by the police from his aunt, Sinforosa Cananowa, the sister of Francisco.  (They were not presented in evidence).

The trial court did not give credence to the alibi of Francisco Cananowa.  It
convicted him of murder, sentenced him to death and ordered him to pay an
indemnity of twelve thousand pesos to the heirs of Royo
(Criminal Case No. 126).  Francisco did
not appeal from that decision.  The case
was elevated to this Court for review of the death sentence.

Francisco’s counsel assails the finding of the trial court that
he admitted in his testimony that he stabbed and killed Royo.  The Solicitor General concedes that that conclusion of the trial court is erroneous.  The truth is that Francisco did not make any
such admission.

What may be gleaned from his testimony and the testimony of his
sister, Sinforosa, is that their nephew, Jesus, had a
fight with Royo and in the course of the fight Royo sustained the stab wounds which caused his death.

But that error of the trial court does not warrant the reversal
of the judgment of conviction.  The
testimony of Dineros is sufficient proof as to the
complicity of Francisco Cananowa in the killing of Royo.

Francisco’s counsel contends that the trial court erred in
appreciating the aggravating circumstances of treachery and abuse of
superiority and in not convicting him of homicide only.  Treachery was the only aggravating
circumstance alleged in the information. 
In the complaint for murder filed by the police in the municipal court,
treachery was not alleged.  What was
alleged was employment of means to weaken the defense.

Inasmuch as abuse of superiority was not alleged in the
information, it cannot be regarded as qualifying in this case.  It may be appreciated as a generic
aggravating circumstance since there were three assailants.

Treachery cannot likewise be considered as aggravating because
the sole prosecution eyewitness did not see the com­mencement of the assault on
the victim.  There is no evidence in the
record as to how the stabbing started.

The Solicitor General cites the ruling in U.
S. vs. Valdez
and Gamit, 40 Phil. 876 that there was treachery in a
case where the appellant held the victim from behind while the other accused
assaulted him.  That case is different
from the instant case.

In the Valdez
case, two witnesses testified as to the inception of the assault on the
victim.  They declared that the two
assailants followed the victim and that one assailant, without saying a word,
held the victim from behind and, while in that position, the other assailant
stabbed the victim.

In the instant case, the record does not show how the assault on Royo began.  In fact,
one of the supposed assailants, Jesus Cananowa,
claimed that he was wounded by Royo, the victim.  That circumstance may signify that there was
no surprise attack on Royo.

Hence, the killing of Royo should be
regarded as homicide only.  The trial
court did not err in disbelieving the alibi of Francisco Cananowa.  He was sufficiently identified by Dineros.  His counsel
was not able to impeach the credi­bility of Dineros,
his neighbor and acquaintance.

WHEREFORE, the judgment of conviction is affirmed but the
death sentence is set aside.  Francisco Cananowa
is convicted of homicide with the aggravating circumstance of abuse of
superiority and without any mitigating circumstance.  He is sentenced to an indeterminate penalty of
twelve (12) years of prision mayor, as minimum, to eighteen (18)
years of reclusion temporal, as maximum.  The indemnity of twelve thousand pesos is
affirmed.  Costs de
oficio.

SO ORDERED.

Fernando, C.J., Teehankee,
Barredo, Antonio, Concepcion,
Jr., Fernandez, Guerrero, De Castro, and
Melencio-Herrera, JJ., concur.

Makasiar and Abad Santos, JJ., no part.

Santos, J., is abroad.