THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JERBERTO DIAMONON, DEFENDANT-APPELLANT.

AUTOMATIC REVIEW of the judgment rendered by the Circuit Criminal
Court, Pasig,
Rizal in Criminal Case No. CCC-VII-1000-Q.C. finding
the accused guilty of the crime of murder and sentencing him to suffer the
penalty of DEATH, for the killing of Ciriaco Macasinag.^[1]

The record shows that at about 10:00
o’clock in the evening of November
17, 1971, Jerberto Diamonon,
Ely Calicdan, Jr. and the latter’s brother arrived at
the Tito Amor’s Furniture Shop, located at No.
15-A Matatag St., Piñahan, Quezon
City.  Jerberto Diamonon and Ely Calicdan, Jr. already drunk when they entered the shop, told
Reynaldo Mars, a furniture maker work­ing on a table, to move to one end and
thereafter settled down to drink the two bottles of gin they had brought along
with them.^[2]

A few minutes later, Ciriaco Macasinag passed by^[3]
and Ely Calicdan, Jr. invited him to drink with
them.  Ciriaco Maca­sinag accepted the invitation.^[4]
After consuming the two bottles of gin, Jerberto Diamonon and Ely Calicdan, Jr.
left the shop.  Not long, thereafter,
Reynaldo Mars went home.  While on his
way, he passed by Diamonon and Calicdan,
Jr. at the water pump near the stairway of his house.  He overheard Diamonon
ask Calicdan: 
“Sino ba iyan utol?” Ely Calicdan, Jr.
answered:  “He is a matadero, at the NEPA-Q-MART.” Diamonon
then said:  “Kursunada
ko iyan“, to which Calicdan, Jr. replied: 
“Yes, go ahead, I will follow you. 
(Susundan kita).”
Upon hearing this, Reynaldo Mars interceded in behalf of Ciriaco
Macasinag and told Diamonon
and Calicdan: 
“Huwag naman ninyong gawin iyan
sa tao, wala
namang kasalanan ang tao sa
inyo.” Then he went back to the shop to warn Ciriaco Macasinag.  But, Diamonon and
Ely Calicdan, Jr. followed him to the shop and asked Macasinag for some cigarettes.  Macasinag, however,
had no cigarettes and told Diamonon and Calicdan:  “We
had no cigarette here, wait a minute, I will buy with Rene.” So, Macasinag and Reynaldo Mars left the shop to look for some
cigarettes.  While buying cigarettes,
they noticed that Diamonon and Calicdan
had followed them.  After buying the
cigarettes, Macasinag gave them to Diamonon and Calicdan.  Reynaldo Mars then told Ciriaco
Macasinag that they better go home.  On their way, Mars saw Diamonon
pull out a “patalim“, so that he told Macasinag: 
“Faster, they might over­come us. 
They might overtake us.” But, Macasinag
did not believe him.  Diamonon
overtook Macasinag at the foot of the stairs of the
latter’s house and immediately stabbed him with a “patalim“,
“at the left side lower or below the armpit.” Ely Calicdan,
Jr. went after Reynaldo Mars.  But the
latter was able to run home and his wife had immediately closed the door after
him.  While inside the house, Reynaldo
Mars heard a commotion (kalabugan) outside near the
stairs of the house of Macasinag.^[5]
After a time, the wife of Ciriaco Macasinag
was heard shouting for help:  “Tulungan ninyo kami, ang asawa
ko sinasaksak.” Juan Mateos, a neighbor, answering the call for help, went down
his house and saw Ciriaco Macasinag
lying flat on his back and Ely Calicdan was stabbing Ciriaco Macasinag with a “veinte-nueve (29) Batangas knife.”
Jerberto Diamonon, who was
beside Ely Calicdan was holding a “patalim,” and about to stab Ciriaco
Macasinag. 
(“May akma siyang
sumaksak“). 
Mateos was afraid so he went back to his
house.  After a few minutes, he heard
another call for help.  He went down and
saw Ciriaco lying prostrate on the ground.  Ciriaco was
alone.  So, he lifted Ciriaco
and carried him to the store to call for a taxicab that would take them to the
hospital.  But, Jerberto
Diamonon and Ely Calicdan,
with weapons in hand, blocked his way. 
He was asked:  “Where are you
going?  Do you like to die?” He was
afraid, so, he returned to his house. 
Sometime later, a police mobile car arrived and Ciriaco
was brought to the V. Luna Hospital.^[6]
Reynaldo Mars assisted in taking Ciriaco to the
hospital.  When they arrived thereat, Ciriaco Macasinag was already
dead, and on removing his clothes, Reynaldo Mars saw that Macasinag
had stab wounds on the chest, face and both arms.^[7]

Dr. Alberto M. Reyes, Medico-Legal Officer of the NBI, conducted
a post-mortem examination of the cadaver and found that the victim suffered the
following lesions:

“Abrasion, hand, left, palmar
aspect, 0.5 x 0.3 cm. right, incised wounds: 
Arms, upper third, lateral aspect, 3.0 cm. and left, 1.0 cm.; shoulder,
left, lateral aspect, 1.5 cm. and 3.6 cm. and posterior aspect, 1.7 cm.;
forearm, left, upper half lateral aspect, 7.0 cm.; hand, right, dorsal aspect,
1.3 cm.; buttocks, right, side, 1.5 cm.

Stab wounds:  I Infra
auricular region, left, 12.5 cm. from the anterior median line, elliptical in
shape, edges clean cut, 1.5 cm. long, with a withdrawal wound of 1.1 cm.,
oriented backward and downward with sharp postero-inferior
and contused antero-superior extremities, directed
backward, downward and medially, involving skin and underlying soft tissues,
grazing the left ranus of the mandible with an
approximate depth of 5.0 cm.

II       Pectoral region, right, 10.5 cm. from the
anterior median line, elliptical in shape, edges clean cut, 3.0 cm. long,
oriented downward and medially, with sharp infero-medial
and contused supero-lateral extremities, directed
backward, upward and laterally, in­volving only the skin and underlying soft
tissues, with an approximate depth of 5.5 cm.

III      Sternal region,
left side, 1.0 cm. from the anterior median line, elliptical in shape, edges
clean cut, 2.0 cm. long with a withdrawal wound of 1.0 cm., oriented down­ward
and medially with sharp infero-medial and contused supero-lateral extremities, directed backward, downward and
medially involving skin and underlying soft tissues, cutting the 1st left dostal cartilage, piercing the innominate
vein, with an approximate depth of 8.0 cm.

IV     Infraclavicular
region, left, 9.0 cm. from the anterior median line, ellip­tical in shape,
edges clean cut, 2.0 cm. long, oriented upward and laterally with sharp supero-lateral and contused infero­-medial
extremities, directed backward, down­ward and medially, involving only the skin
and underlying soft tissues, with an approximate depth of 6.5 cm.

V      Hypochondriac region, left, 9.0 cm. from
the anterior median line, elliptical in shape, edges clean cut, 1.7 cm. long,
oriented downward and medially with sharp infero-medial
and contused supero-lateral extremities; directed
backward, downward and medially involving skin and underlying soft tissues,
penetrating the 9th left inter-space along the anterior axillary
line, perforating the diaphragm, grazing the speen,
perforating the stomach, with an approximate depth of 12.0 cm.

VII    Axillary region,
left, 10.0 cm. from the posterior medial line, elliptical in shape, edges clean
cut, 1.8 cm. long with a withdrawal wound of 0.7 cm., oriented backward and
down­ward with sharp postero-inferior and contused antero-superior extremities directed backward, upward and
medially, involving the skin and underlying soft tissues, with an approximate
depth of 6.5 cm.

VII    Axillary region,
left, 19.5 cm. from the posterior median line, elliptical in shape, edges clean
cut, 2.0 cm. long oriented downward and backward with sharp postero-inferior
and contused antero-superior extremities, directed
backward and upward and medially involving only the skin and underlying soft
tissues, with an approxi­mate depth of 6.5 cm.

VIII    Shoulder, left, posterior aspect, 23.0 cm.
from the posterior median line, elliptical in shape, edges clean cut, 1.6 cm.
long, with a withdrawal wound, of 0.5 cm., oriented downward and medially with
sharp infero-medial and contused supero-lateral
extremities, directed forward, downward and medially, involving only the skin
and underlying soft tissues, with an approximate depth of 9.0 cm.

IX     Sufrascapular
region, left, 8.5 cm. front the posterior medial line, elliptical in shape,
edges clean cut, 5.0 cm. long, oriented upward and medially with sharp supero-medial and contused infero-lateral
extremities, directed forward, downward and medially involving skin and
underlying soft tissues, penetrating the 8th left inter-space along the midscapular line, perforating the lower lobe of the left
lung, with an approximate depth of 11.0 cm.

X      Infrascapular
region, left, 14.5 cm. from the posterior median line, elliptical in shape,
edges clean cut, 1.6 cm. long, oriented downward and medially with sharp infero-medial and contused supero-lateral
extremities, directed forward, upward and medially involving only the skin and
underlying soft tissues, with approximate depth of 4.5 cm.

XI     Posterior lumbar region, left, 7.0 cm. from
the posterior median line, elliptical in shape, edges clean cut, 1.8 cm. long
with a withdrawal wound of 0.3 cm., oriented down­ward and laterally with
sharp, infero-lateral and contused supero-medial extremities, directed forward and upward and
medially involving only the skin and underlying soft tissues, with an
approximate depth of 6.5 cm.

XII    Arm, left, upper third, lateral aspect, 19.5
cm. above the left elbow, elliptical in shape, edges clean cut, 1.6 cm. long
with a withdrawal wound of 1.0 cm., oriented upward and posteriorly
with sharp supero-posterior and contused infero-anterior extremities directed slightly backward,
upward and medially involving only the skin and underlying soft tissues, with
an approximate depth of 4.5 cm.

XIII    Arm, left, middle third, lateral aspect,
11.0 cm. above the left elbow, elliptical in shape, edges clean cut, 2.0, cm.
with a withdrawal wound of 1.0 cm., oriented upward and posteriorly
with sharp supero-posterior and contused infero­-anterior extremities directed forward, slightly
downward and medially involving only the skin and underlying soft tissues, with
an approximate depth of 4.0 cm.

XIV   Buttocks, left, 12.0 cm. from the anterior
median line elliptical in shape, edges clean cut, 2.0 cm. long oriented upward
and medially, with sharp supero-medial and con­tused infero-lateral extremities, directed for­ward, upward and
laterally involving the skin and underlying soft tissues, with an approximate
depth of 7.0 cm.

XV    Buttocks, right, 8.0 cm. from the posterior
median line elliptical in shape, edges clean cut, 1.5 cm. long with an
withdrawal wound, of 1.1 cm., oriented upward and medially with sharp supero-medial and contused infero-lateral
extremities, directs forward, upward and medially involving the skin and
underlying soft tissues, with an approximate depth of 8.0 cm.

XVI   Buttocks, right, 3.5 cm. from the posterior
median line elliptical in shape, edges clean cut, 1.5 cm. long with a with­drawal
wound of 0.5 cm., oriented upward and laterally with sharp supero–
lateral and contused infero-medial extremities,
directed forward, upward and laterally involving only the skin and underlying
soft tissues, with an approximate depth of 4.5 cm.

Hemothorax, left, about 950 cc.

Hemoperitoneum, about 500 cc.

Brain and other visceral organs, pale.

Stomach, half full of moderately digested rice and other particles
mixed with yellowish fluid.

CAUSE OF DEATH:  Multiple Stab wounds.”^[8]

Accordingly, Ely B. Calicdan, Jr. and Jerberto (Edilberto) Diamonon were charged with the crime of murder committed as
follows:

“That on on or about the 17th day of
November, 1971, in Quezon City, Philippines, the
above-named accused, conspiring together, confederating with and mutually
helping one another, did, then and there, wilfully,
un­lawfully and feloniously, with intent to kill, qualified by evident
premeditation and treachery by taking advantage of superior strength, attack,
assault and employ personal violence upon the person of CIRIACO MACA­SINAG by
then and there stabbing him several times, hitting Ciriaco
Macasinag on different parts of his body, thus
inflicting upon him multiple stab wounds which were the direct and immediate
cause of his death.

That, by reason of the death of Ciriaco Macasinag, the heirs suffered actual, moral and other
damages, under the Civil Code.

Contrary to law.”

Ely B. Calicdan, Jr., however, has not
been arrested and still remains at large, so that trial proceeded against Jerberto Diamonon.  Jerberto Diamonon denied that he stabbed Ciriaco
Macasinag, saying that it was Ely Calicdan,
Jr. alone who inflicted the injuries upon the victim.  He declared that at about 10:00 o’clock in the evening of November 17, 1971, he went to Matatag Street at the Piñahan District to visit his friend Jimmy Surallo.  While on
his way, “Renato,” the witness who had
preceded him on the stand,^[9]
saw him, and invited him to have a drink with them at the compound of Calicdan.  He went
inside and saw this “Renato” and Calicdan drinking. 
He just looked at them and then left for the house of Jimmy Surallo nearby. 
While there, he heard a woman shout: 
“Saklolo” (help).  He went towards the direction where the call
emanated and saw Ely Calicdan astride Ciriaco Macasinag’s chest and
stabbing him on the breast.  He
shouted:  “Tama na,
tama na.  (That
is enough).  Upon hearing him, Ely Calicdan turned and tried to stab him.  So, he ran away.^[10]

The trial court, however, rejected the defendant’s claim because
he was positively identified by Reynaldo Mars, Juan Mateos
and Elena Macasinag to be one of the assailants of Ciriaco Macasinag.  Besides, the trial court said, it is only
natural for him to “pass the buck” to his co-accused Ely Calicdan, Jr., in the belief that Calicdan,
who had not yet been apprehended, was in no position to contradict this
statement.  Moreover, the act of the
defendant of leaving his residence a month after the occurrence and in not
returning thereto until after three years later, without any known reason or
cause, is not the actuation of a man with a clear conscience.

Counsel for the accused now seeks the reversal of the judgment
upon the ground that the guilt of the accused had not been established beyond
reasonable doubt, pointing to a discrepancy in the declaration of Reynaldo Mars
which would render his testimony unworthy of credit.  Counsel prays, in the alternative, that the
said judgment be modified and the penalty imposed upon the accused reduced, in
view of the absence of evident premeditation, treachery, and abuse of
superiority to qualify the offense or aggravate the penalty, and the presence
of the alternative circumstance of intoxication to mitigate the penalty.

The Solicitor General, upon the other hand, contends that the
defendant Jerberto Diamonon
is guilty of murder, qualified by treachery; but recommends the reduction of
the penalty to imprisonment of from 15 years, as minimum, to 20 years of reclusion
temporal, as maximum, since evident premeditation and abuse of
superiority were not attendant to the crime, and the presence of intoxication
as a mitigating circumstance.

After examining the records, We find no reason to disturb the
findings of the trial court that the accused Jerberto
Diamonon was an active participant in the killing of Ciriaco Macasinag.  Reynaldo Mars, a close friend of the accused,
Juan Mateos, and Elena Macasinag
positively identified him as one of those who stabbed Ciriaco
Macasinag.  The
variance in the testimony of Reynaldo Mars to the effect that he saw the
accused Diamonon and Calicdan
stab the deceased Ciriaco Macasinag,
and the statement he gave to the police investigators after the stabbing
incident,^[11]
wherein he said that he did not actually see the stabbing of Ciriaco Macasinag, had been
sufficiently explained by him.  He stated
that he did not implicate Jerberto Diamonon and Ely Calicdan, Jr. in
the killing of Ciriaco Macasinag
when he executed the statement before the police because he was afraid of
reprisals from Diamonon and Calicdan,
Jr. who were at large and “this Ely Calicdan,
Jr. used to return there and they were threatening me.”^[12]

At any rate, it was not Reynaldo Mars alone who witnessed the
stabbing incident.  Elena Macasinag testified that she saw Ely Calicdan
and Jerberto Diamonon
helping one another in stabbing Ciriaco Macasinag.^[13]
Juan Mateos also declared that he saw Jerberto Diamonon about to stab Ciriaco Macasinag. “May akma siyang sumaksak.”^[14]
The trial court found that the capacity of these witnesses for telling the
truth cannot be doubted since they have no motive to testify falsely against
the accused, especially Reynaldo Mars who considers himself a friend of the
accused Jerberto Diamonon,
his teacher in karate.^[15]

The information alleged that the crime of murder was qualified by
evident premeditation, treachery, and taking advantage of superior
strength.  The facts of record, however,
cannot sustain a finding of evident premeditation.  The meeting between Diamonon
and Macasinag was not sought after and the senseless
killing of Macasinag for fun was made at the spur of
the moment.  Dia­monon
did not even know who Macasinag was and it was only
when they were drinking that Diamonon met Macasinag for the first time, such that Diamonon
was heard to ask Calicdan:  “Sino ba iyan, utol?” Besides, no
motive existed as to precipitate the killing, and, moreover, no sufficient
period of time had inter­vened between the time the killing was conceived,
(when Diamonon said: 
“Kursunada ko iyan,” to which Calicdan
replied:  “Yes, go ahead I will
follow you”) up to the time of its perpetration, for the accused to have
made a cool and circumspect deliberation of the consequences of their intended
act.

It is also obvious from the records that treachery was not
present in the commission of the crime. 
Reynaldo Mars stated that, upon overhearing the foregoing remarks of Diamonon and Calicdan, he went
back to the furniture shop to warn Ciriaco Macasinag of the peril to his life and he even tried to lead
Maca­sinag to a place of safety, but Macasinag refused to believe him.  Then, while on their way home, he saw Diamonon pull out a “patalim“,
so that he told Ciriaco Macasinag,
“faster, they might overcome us. 
They might overtake us.” Again, Macasinag
did not believe what he was saying, so that they were overtaken at the foot of
the stairs of the house of Ciriaco Macasinag and Diamonon stabbed Ciriaco Macasinag.  The attack was frontal and the deceased had
been forwarned of the intended attack.  He had every opportunity to evade it, by
running away, or to make whatever defense he is capable of.

But abuse of superiority had been duly proved.  It appears that Diamonon
and Calicdan, both armed with knives, had cooperated
in such a way as to secure advantage from their combined superiority in
strength and took turns in stabbing Ciriaco Macasinag, who was unarmed. 
Elena Macasinag, who was sleeping in the house
of her brother on the night in question, declared that she was awakened by the
commotion (“kalabugan“) at the foot of
their stairs and when she opened the door, she saw Ely Calicdan,
Jr. and Jerberto Diamonon
helping one another in stabbing Ciriaco Macasinag who was lying on the ground.  Juan Mateos, a
neighbor of Macasinag, upon hearing the cry of the
wife of Ciriaco Macasinag
for help, went down his house and saw Ciriaco Macasinag lying flat in his back and Ely Calicdan, Jr. was stabbing him with a knife.  Jerberto Diamonon was beside Calicdan and
about to stab Macasinag.  (“May akma siyang sumaksak.”) The crime
committed is, therefore, murder, qualified by abuse of superiority.

The accused, however, is entitled to the mitigating circumstance
of intoxication.  Reynaldo Mars declared
that Jerberto Diamonon and
Ely Calicdan, Jr. were already drunk when they entered
the furniture shop and continued drinking the two bottles of gin they had
brought along with them.  He further
declared that during the time he had known Diamonon,
he had not seen him drunk in any other occasion.  His testimony is, as follows:

“Q   Where
were these two persons, Ely Calicdan, Jr. and Jerberto Diamonon drinking at
about 10:00 o’clock in the afternoon of November 17, 1971?

 A    In my place of work, sir.

 Q   Have you seen them drinking before the
incident?

 A    I did not know that they were drinking but I
saw them when they arrived at the place and I saw them with two bottles of
beer.

COURT:

Q    Days
before that, did you see them drinking?

A     No,
your Honor.

Q    Weeks
before that, did you see them drinking?

A     No
sir.

Q    So
that intoxication is not habitual.”^[16]

Since the intoxication of the accused was
not habitual nor intentional intoxication should be appreciated as a mitigating
circumstance.

The crime committed is murder, qualified by abuse of superior
strength.  The imposable penalty is reclusion
temporal in its maximum period to death.^[17]
There being the mitigating circumstance of unintentional or non-habitual
intoxication which is not offset by any aggravating circumstance, the minimum
period of the penalty should be imposed.

WHEREFORE, the judgment of the trial court is hereby
modified to the effect that the accused Jerberto Diamonon should suffer an indeterminate sentence ranging
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.  Thus modified, the same is hereby affirmed in
all other respects.  With costs against
the accused Jerberto Diamonon.

SO ORDERED.

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

Teehankee, J., concurs with the dissenting opinion of J. Makasiar.

Makasiar, J., concurs and dissents in a separate opinion.

Aquino, J., see concurring and dissenting opinion.

Santos, J., concurs with the
opinion of J. Aquino.

Abad Santos, J., took no part.

^[1]
The dispositive portion of the decision reads, as
follows:

“WHEREFORE,
finding the accused, Jerberto Diamonon,
GUILTY, beyond reasonable doubt, of the crime of Murder, as defined under
Article 248 of the Revised Penal Code, as charged in the information, the Court
hereby sentences him to suffer the penalty of DEATH; to indemnify the heirs of
the victim the amount of P12,000.00; to pay moral damages in the amount of
P10,000.00 and another P10,000.00, as exemplary damages; and to pay the costs.

Pursuant to
Section 32, Rule 138 of the New Rules of Court, Atty. Jose O. Galvan, who was appointed
as counsel de oficio for the accused, is hereby
ordered compensated in the amount of P500.00, subject, however, to the
availability of funds.

SO ORDERED.”

^[2] t.s.n., Nov. 2,
1973, pp. 8, 19, 39, 48, 53.

^[3] Id.,
pp. 9, 48.

^[4] Id.,
p. 9.

^[5] Id.,
pp. 9-29.

^[6] t.s.n., Nov. 7,
1973, pp. 27-35.

^[7] t.s.n., Nov. 2,
1973, p. 32.

^[8]
Exhibit A.

^[9]
Obviously, he was referring to Reynaldo Mars, nick­named “Rene”, a
witness for the prosecution.

^[10] t.s.n., of December
3, 1973, pp. 4-13.

^[11]
Exhibit 1.

^[12] t.s.n., of Nov. 2,
1973, p. 73; also t.s.n., of Nov. 7, 1973, pp. 6-19.

^[13] t.s.n., Nov. 17,
1973, p. 13.

^[14] t.s.n., Nov. 7,
1973, p. 31.

^[15] t.s.n., Nov. 2,
1973, p. 83.

^[16] t.s.n. of Nov. 2,
1973, pp. 39-41.

^[17]
Art. 246, Revised Penal Code.

6 pt
6 pt
0
3

6 pt
6 pt
0
3