G.R. No. L-30487. August 24, 1984
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PROTACIO DANES ALIAS “TESING” AND AGAPITO ATUNDO ALIAS “PITO”, ALIAS “PEPITO”, DEFENDANTS-APPELLANTS.
GUERRERO, J.:
“Pepito”, were charged of the crime of murder by the Assistant
Provincial Fiscal of Samar in an information which reads as follows:
“That on or about the 19th day of September, 1964, at about 10:00
o’clock in the evening in barrio Tangbo, municipality of Catubig,
province of Samar, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating
together and mutually helping one another with intent to kill, with
evident premeditation and treachery and taking advantage of superior
strength and the darkness of the night, did then and there wilfully,
unlawfully and feloniously attack, assault, slash, hack and stab one
Edencio Gorpido alias Eden with bolo which said accused conveniently
provided themselves of the purpose, thereby inflicting upon the said
Edencio Gorpido wounds on the different parts of his body which directly
caused his death.Contrary to law.” (p. 4, Rollo).
The lower court found the two (2) accused guilty of the crime of murder
in a decision dated April 10, 1969, the dispositive portion of which
reads:
“In view of the foregoing considerations, the Court finds and so
holds that the accused Protacio Danes alias Tesing and Pepito Atundo
alias Pito are guilty beyond reasonable doubt, of the crime of murder
and there being neither aggravating nor mitigating circumstances
attendant to the commission of the crime, the said accused are hereby
sentenced each to life imprisonment, to indemnify jointly and severally
the heirs of the deceased Edencio Gorpido in the amount of P6,000.00 and
each to pay 1/2 of the cost of suit.SO ORDERED.” (p. 31, Rollo)
From the judgment of conviction by the lower court, the two (2) accused appealed before this Honorable Court.
The facts of the case as contained in the People’s Brief are as follows:
“In the evening of September 10, 1964, at Barrio Tangbo, Catubig,
Northern Samar, Canuto de los Santos overheard his brother-in-law,
Edencio Gorpido, in a heated argument with Protacio Danes and Pepito
Atundo. De los Santos approached Gorpido and advised the latter to come
with him to his house to which Gorpido agreed. (p. 6, t.s.n., Delim,
Nov. 27, 1967). Later, at about 9:00 o’clock that same evening after
waking from a light nap, Gorpido decided to go home. De los Santos who
was afraid that Danes and Atundo ‘might do something bad against him’,
because of an earlier altercation, accompanied Gorpido towards the
school building. On the way, de los Santos met Antonio Isanan and they
talked with each other for a while, after which Gorpido proceeded on his
way to his farm. (p. 25, t.s.n., Delim, Nov. 27, 1967; p. 32, t.s.n.,
Delim, Dec. 1, 1967). The moon was bright at the time, and as Gorpido
approached the school gate, de los Santos and Isanan saw Pepito Atundo
emerge from the flower plant at the gate and thrust a bolo attached at
the end of a bamboo pole against Gorpido, hitting the latter at the
lower right side of the body. When Gorpido turned and attempted to run
towards de los Santos and Isanan, Protacio Danes emerged from the other
side of the street with a long bolo. Danes and Atundo pursued Gorpido
who swerved straight for the river. When Danes caught up with him
(Gorpido), the former slashed him at the back several times with his
bolo. (p. 9, t.s.n., Delim, Nov. 27, 1967; p. 35, t.s.n., Delim, Dec.
1, 1967). After Danes and Atundo had left, de los Santos recovered
Gorpido from the river. Before his death that same evening, Gorpido
gave an ante-mortem declaration, fingering his attackers. (p. 11,
t.s.n., Delim, Nov. 27, 1967; Exhibit “C”, p. 5, Vol. 1, rec.). And
autopsy performed the following day by Dr. Luz Desales, Municipal Health
Officer of Laoang, Catubig, Northern Samar disclosed the following
findings:1. Incised wound extending from the left interscapular
region directed transversely with the longitudinal axis of the body to
11 inches long towards the right arm, posterior portion, cutting
completely the skin, muscles, small blood vessels but not the bone.2. Incised wound located 2 inches below the left shoulder
and directed longitudinally downward to a length of 8-1/2 inches cutting
completely the skin, muscles and partially the left scapula.3. Slash wound extending 1.5 inches above the level of the
upper portion of the left ear and extending diagonally downward to a
length of 7-1/2 inches towards the base of the neck clipping off a
portion of the occipital bone and cutting completely the scalp and
muscles of the nape.4. Incised wound with the left extremity meeting the lower
extremity of wound No. 3 and extending towards the right shoulders to a
length of 9-1/2 inches cutting the skin, the muscles and upper portion
of the right scapula completely.5. Stab penetrating wound located 6 inches below the right
armpit along the posterior axillary line, directed medially upwards
cutting the 5th and 6th ribs and hitting the liver and lungs.” (Exh.
“A”, p. 13, Vol. 1, rec.).
In the appeal by the accused, they assign as errors the following:
I. The lower court erred in giving credence to the inherently incredible evidence of the prosecution.
II. The lower court erred in refusing to give
credence to the motion to dismiss for failure of the prosecution
witnesses to identify the accused.III. The lower court erred in refusing to give credence to the evidence of the defense.
IV. The lower court erred in not acquitting the defendants-appellants.
We affirm the conviction for the crime of murder. There are no reasons
warranting a reversal of the trial court’s finding of guilt.
The accused Protacio Danes does not deny that he inflicted bolo blows
upon the deceased during the incident in the evening of September 19,
1964 which led to the eventual death of Edencio Gorpido. However, he
disclaims any criminal liability by invoking self-defense. (p. 19,
appellant’s brief).
On the other hand, the other accused, Pepito Atundo, denies any
participation in the commission of the crime alleging that, at the time
of the incident, he was sick and did not leave the house. In other
words, his defense is alibi.
The claim of Protacio Danes that he was only trying to defend himself
from the alleged unlawful aggression of Edencio Gorpido strongly
militates against the evidence and testimonies presented before the
lower court. As testified to by Dr. Luz Desales, the Health Officer of
Laoang, Catubig, Northern Samar, who conducted the autopsy of the
deceased, all the slashes and the stab wound of the latter were at the
back. It would be improbable for the deceased to be the aggressor when
all the wounds he sustained were at the back while accused-appellant
Protacio Danes, a man smaller than the deceased, did not even suffer a
scratch on his body. Supportive of a plea of self-defense and defense
of honor is that the accused also suffered several incised wounds.
(People vs. Banasen, 125 SCRA 306). There being no evidence to show
that Danes suffered bruises or even minor scratches on his body, throws
out the contention of self-defense. It is incumbent upon the accused to
show that the requisites of self-defense were present. (People vs.
Librado, 127 SCRA 541). Furthermore, the fact alone that the wounds
sustained by the deceased were at back, clearly negates the claim of
self-defense.
The testimonies of the witnesses for the prosecution belie the claim of
self-defense. Their testimonies are to the effect that it was Protacio
Danes who attacked from behind the victim and when the latter was about
to run towards the direction of his companions, he was again slashed at
the back, this time by Pepito Atundo, the other accused, who suddenly
emerged from the bushes. We reproduce here the pertinent portion of
the testimony of Canuto de los Santos, a prosecution witness.
“Q – While you were proceeding to the place of the school building, what happened if there was anything that happened?
A – When Edencio Gurpido was nearing the fence of the school
building, I saw this Pepito Atundo stood up and thrust with his bolo
attached to a bamboo pole against Edencio Gurpido.Q – At this precise time when Pepito Atundo thrust the bolo attached to a bamboo pole, how far were you from Pepito Atundo?
A – No less than 10 meters.
Q – And after the bolo attached to a bamboo pole was thrusted to
the body of Edencio Gurpido, what happened to Edencio Gurpido?A – He ran back towards me.
Q – Did you know whether he was wounded or not?
A – I know that he was wounded because I really saw that he was hit.
Q – Where was he wounded, what part of his body was wounded?
A – At his back, witness indicating his right back side of the body.
Q – Now, after Edencio Gurpido ran to you wounded, what happened if there was anything that happened?
A – When Edencio Gurpido was running back towards me I saw that
this Danes appeared and so Edencio Gurpido was not able to proceed
towards me and instead, he ran towards the back of the river. Then,
both of them chased Edencio and there he was slashed by Danes, in that
place.Q – Where was or how far was Danes when he slashed Edencio Gurpido from you?
A – I think no less than 7 meters.
Q – Was Edencio Gurpido wounded by the slash of Danes?
A – Yes, Sir.
Q – Where was he wounded, what part of his body was wounded?
A – All at the back of the head and back of his body.
Q – After Edencio Gurpido was slashed by Danes also pursued by Pepito Atundo, where did Edencio Gurpido go?
A – He was already in the water.
Q – And how about you where did you go?
A – I was just looking there and then I called the authorities of the barrio saying that there was a person being slashed.
Q – And after Edencio Gurpido went into the water what happened if there was anything that happened?
A – He was calling.
Q – What did you do if you did anything?
A – Because there was no authority that answered the call for help and being a brother, I went to him and saved him.
Q – And when you rescued Edencio Gurpido from the water where was Danes and Pepito Atundo?
A – They returned to their respective homes.
Antonio Isanan corroborated the testimony of Canuto de los Santos. The pertinent portion of his testimony is as follows:
“Q – While you were talking to Canuto and Edencio going home to his house what happened if there was anything that happened?
A – While I was conversing with Canuto and Edencio was walking
towards the school building and when he reached near to the flowering
plants called Rosal, I saw Pepito who stood up and then thrust against
Edencio with a weapon with a handle.Q – Do you know the family name of this Pepito?
A – I do not know his family name but I know his first name.
Q – If Pepito is here in the Court will you please point to him?
A – Yes, Sir.
Q – Point to him please?
A – He is there, witness indicating to a person who when asked his name answered Pepito Atundo.
Q – How far were you from the place where Pepito Atundo stood up and wounded Edencio?
A – Around 10 meters.
Q – Now, do you know if Edencio was hit with the thrust that was delivered by Pepito Atundo?
A – Yes, Sir, I saw he was hit here, witness indicating his right side of his right hip.
Q – When Edencio was hit at the right hip by Pepito Atundo what happened to Edencio Gurpido?
A – When Edencio was hit he immediately turned back and run
towards us perhaps for the purpose of protection but Protacio was
already there so instead of running towards us he ran to the river.Q – Was Edencio able to reach the river?
A – Yes, Sir.
xxx xxx xxx
Q – You said that when Edencio was hit by Pepito he tried to ran to
the place where you and Canuto were but Danes was already there, and so
Edencio went to the river. Do you know the reason why Edencio went to
the river?A – Yes, Sir.
Q – Why?
A – Because he was already afraid for there were already two attackers against him.
Q – After Edencio ran to the river how about Pepito and Danes where were they, do you know?
A – When Edencio was already on the river Pepito went home while
Protacio went to the river following Edencio and made slashes on
Edencio.Q – After Edencio was slashed several times by Danes what happened?
A – When Protacio was slashing Edencio, Edencio escaped and moved
towards the middle of the river in order that he would not be reached by
the weapon of Danes and so Canuto got a banca and tried to save
Edencio.
From the foregoing testimonies, there could only be one conclusion, and
that is, there was no unlawful aggression on the part of the victim. In
fact, the attack on the latter was characterized by treachery since the
attack on the latter was from behind thereby rendering the victim
unable to defend himself.
Pepito Atundo, the other appellant, invokes the defense of alibi. He
contends that at the time when the incident occurred, he was in his
house and was sick (TSN, p. 73, March 11, 1966). This defense is
totally destroyed by the positive identification of the two (2)
prosecution witnesses, pointing to Danes and Atundo as the aggressors.
Alibi is worthless in the face of positive identification by prosecution
witnesses pointing to the accused as particeps criminis. (People vs.
Martinez, 127 SCRA 260). Besides, accused-appellant Atundo did not show
an impossibility on his part to be at the scene of the crime. In fact
his house was just near from where the killing occurred (p. 115, TSN,
Aug. 22, 1968). It is a rule, so well established in Our jurisprudence,
that to establish an alibi, it is not enough to prove that the
defendant was at some other place when the crime was committed, but it
must likewise be demonstrated that it was physically impossible for him
to have been at the scene of the crime at such time. (People vs.
Martinez, 127 SCRA 260; People vs. Regato, 127 SCRA 287).
Accused-appellants also criticize the lower court for giving credence to
the inherently incredible evidence of the prosecution. We have
reviewed the testimonies of the witnesses for the prosecution and We do
not find any reason to disturb the lower court’s lending of credibility
to said witnesses. The Supreme Court respects the trial court’s
finding on credibility of witnesses. (People vs. Palon, 127 SCRA 529).
Finally, the last error to be disposed of is the allegation of the
accused-appellants that they were never identified by the witnesses of
the prosecution. They maintain that when one of the witnesses was asked
if he knew the family name of Pepito Atundo and the answer was he did
not, this was sufficient for a ground of a motion to dismiss on the
theory that there was a failure to identify them during the trial. We
disagree with the appellants. The fact that the family name of one of
the accused was not known by the witness is not fatal to the evidence of
the prosecution. The identification of Atundo as one of the
perpetrators of the crime was fully supported by the testimonies of the
witnesses. On the other hand, the identification of Protacio Danes need
not be discussed as he himself admitted judicially, the killing of
Edencio Gorpido.
WHEREFORE, with the modification that an indemnity of P30,000.00 be
ordered paid to the heirs of Edencio Gorpido by appellants Protacio
Danes and Pepito Atundo solidarily, the judgment appealed from is
AFFIRMED in all other respects, with costs.
SO ORDERED.
Aquino, (Acting Chairman), Concepcion, Jr., Abad Santos, Escolin, and Cuevas, JJ., concur.
Makasiar, J., (Chairman), on official leave.