THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. BONIFACIO INDIC, ET AL., DEFENDANTS, BONIFACIO INDIC AND ANTONIO CABIAS, DEFENDANTS AND APPELLANTS.

In Criminal Case No. 7899, CFI of Leyte, Bonifacio Indic, Antonio
Cabias, and Tansing Estaco, were charged with direct assault upon one
Felix Tampadong, in another criminal case No. 7761, same court, Indic
and Cabias were also charged with murder, for having conspired together
with Estaco (who is still at large), for the death of one Bernardo
Camadoc. Both cases were jointly tried. On February 19, 1960, however,
the Fiscal asked for the dismissal of the charge of direct assault
against Cabias for insufficiency of evidence. Trial proceeded on the
charge of direct assault against Indic and that of murder against Indic
and Cabias after which the trial court on October 29, 1960, imposed the
following penalties:

(a) In criminal case No, 7899 (direct assault),
Indic and Cabias to suffer each four (4) months of arresto mayor and to
pay a fine of P3,000.00 with subsidiary imprisonment not exceeding
one-third (1/3) of the principal penalty in case of insolvency and to
pay one-half (1/2) of the costs;

(b) In criminal case No.
7761 (murder), said Indic and Cabias to suffer each, reclusion
perpetua, and to pay one-half (1/2) of the costs.

The trial court, however, in an amended decision, excluded accused
Cabias from the case of direct assault. Both accused appealed from the
decision. After the records had been received in this Court, Indic,
upon his petition, was allowed to withdraw his appeal, thereby leaving
only the appeal of Cabias in the case of murder for determination.

We glean from the evidence adduced by the State, the following facts:

At about 9:00 o’clock in the evening of September 28, 1958, in the
barrio of San Jose, Dulag, Leyte, the three accused Bonifacio Indic,
Antonio Cabias and Tancing Estaco. went to the house of Cosmiana
Camadoc and challenged her brother Alberto Camadoc to a fight. Cosmiana
Slipped away thru the back door and fetched sub-barrio lieutenant Felix
Tampadong to stop the three from creating trouble. Tampadong advised
the three to go home and not to cause trouble. Instead of heeding the
advise. Indic grabbed Tampadong’s right hand, because Indic was holding
a “pisao” (small bolo) in his other hand, Tampadong unloosened himself
from Indic’s grasp and ran towards his house 100 meters away, pursued
by the three men. On teaching his house, Tampadong closed the door,
while Indic and his two companions called him to go down so that they
could kill him. As the challeged Tampadong refused to do so, the three
challengers left. Later, Tampadong took a bus and reported the incident
to the Chief of Police of the town.

On that same evening, accused Indic, Cabias and Estaco returned to
Gosmiana’s house and again challenged Alberto to a fight, each
brandishing a “pisao” (bolo). Barbara Camadoc (cousin of Alberto)
cautioned him not to accept the challenge. Bernardo Camadoc
(brother of Barbara) who was in the opposite house across the street,
also shouted to Alberto from the window, not to go down. Irked by
Bernardo’s interference, accused Indic went up the house and hacked
Bernardo with his bolo, hitting Bernardo at the right lower hip. At
that juncture, accused Cabias and Estaco were waiting in the yard of
Bernardo’s house. After being wounded, Bernardo jumped out of the
window, but Indic ran after him, and his two companions joined him in
the chase. As they overtook Bernardo, the three thrust their bolos at
him, causing him to fall, face downward. The three then put wings to
their feet, leaving Bernardo in that condition. Barbara Camadoc and
Agaton Advincula, a neighbor who saw all that had transpired,
approached the wounded Bernardo, while Edilberto Camadoc, another
neighbor who also witnessed the assault on Bernardo went to call
Tampadong; who had already gone to town to report an earlier incident.
About an hour later, the Chief of Police of Dulag, Amado Barbasa,
arrived with Tampadong and another policeman and found Bernardo, lying
on the ground, still alive. They asked, Bernardo who attacked him.
Bernardo named Indic, Cabias and Estaco, as his assailants. Bernardo
was brought and confined in the clinic of Dr. Simplicio P. Lagunzad,
Health Officer of Dulag. Accused Indic was arrested on September 30,
1958, in the mountains of sitio Buenavista, San Jose, Dulag, and
surrendered his “pisao” to the police. Accused Cabias was arrested on
the same day in barrio Tanghas, Tolosa, Leyte. As heretofore stated,
accused Estaco is still at large.

From the evening of September 28, 1958 (when he was brought to Dr.
Lagunzad’s clinic) to September 30, 1958, Bernardo remained
unconscious. On October 1, 1958, he regained consciousness and he gave
a statement to policeman Teodulfo Tupa, again naming or pointing to the
three accused, as the ones who attacked and wounded him on the night of
September 28, 1958. The statement was reduced by policeman Tupa in
writing (Exhibits A and A-l) and was thumbmarked and acknowledged by
Bernardo before Mayor Vicente Yutangeo. Later that day (Oct. 1, 1958),
Bernardo died. At the autopsy of the cadaver, Dr. Lagunzad found that
Bernardo sustained multiple stab wounds inflicted at the pelvic region,
lumbar regions and head and the cause of death to be stack due to
internal hemorrhage (Exh. C).

The defense on the other hand, with respect to Appellant Cabias,
claimed that between 9:00 to 10:00 p.m. of Septemebr 28, 1958, Cabias
went to the store of one Catalino Rabino in San Jose, Dulag, to buy
cigarettes, riding on a bicycle. On his way home, he saw Indic in a
sitting position in front of the house of Cosmiana Camadoc, being
beaten by Bernardo and Alberto Camadoc. At this moment, accused Estaco,
a companion of Indic, was about to stab Bernardo, when Cabias pleaded
him (Estaco), not to do so, as said Bernardo was his uncle; but Estaco stabbed Bernardo just the same and threatened him
(Cabias) . Cabias and one Margarita Salas who also came to the scene,
ran away and went home. At about 3:00 o’clock in the morning of’
September 29, 1958, Cabias went fishing in Bo. Tanghaa, Tolosa, a place
near his barrio, using the local fish net called “bitana”; and he was
arrested there.

In his brief, appellant Cabias alleged that the trial court erred in
convicting him of murder, notwithstanding the fact that direct and
conclusive evidence pointed to his co-accused Indic and Estaco, as the
only persons responsible for the death of Bernardo; and the failure of
the prosecution to prove conspiracy. The whole matter is reduced to a
mere question of credibility.

We are fully convinced that the killing occurred in the manner as
narrated by the witnesses for the prosecution. The claim of appellant
Cabias that only lndic and Estaco perpetrated the crime, is untenable.
Three eye-witnesses,—Barbara Camadoc, Agaton Advincula and Edilberto
Camadoc, positively declared in a straight forward manner, that on the
night In question, they had seen and witnessed Indic, Estaco and Cabias
pursue, and in unison, attacked Bernardo, who was unarmed at the time,
with their bolos. There are no improper motives shown why these
witnesses would concoct evidence and impute to them so serious an
offense as murder. The claim of appellant Cabias that Barbara testified
against him because more than a year before the incident, lie gathered
nipa on a piece of land that Barbara had mortgaged to his aunt, is too
trifle, if true, to impel Barbara who is also his (Cabias) aunt, to
implicate her nephew in a very grave offense. Agaton and Edilberto
categorically and spontaneously identified appellant Cabias, as one of
those who chased and stabbed Bernardo and appellant made no effort to
show that they entertained any ill will or grudge against him. The
trial court was correct in giving these witnesses full credence in
their testimony.

Of course, appellant stresses upon the declaration of the sub-barrio
lieutenant Tampadong, to the effect that when the Chief of Police
Barbasa, interrogated Bernardo on the very night of September 28, 1958,
as to who assaulted him, Bernardo named only Indic and Estaco, without
mentioning him (Cabias). As has been seen, Tampadong’s testimony was
belied by Agaton and Edilberto who identified Cabias as one of the
aggressors and who clearly heard Bernardo tell the Chief of Police that
he was assaulted by Indic, Cabias and Estaco. And that acting upon this
identification, the Chief of Police, filed the next day, September 29,
1968, the criminal Complaint against Indic, Cabias and Estaco.
Tampadong’s testimony in this respect, could have been due to lack of
attention on his part, to the details of the incident in question. It
is also to be noted that Bernardo’s affidavit of October 1, 1958,
pointing to Cabias, as one of his assailants, was taken by policeman
Teodulo Tupa who did not know Cabias then and had no motive to
improperly induce Bernardo to include Cabias in said sworn statement.

Appellant Cabias’ defense cannot be believed, at all. He claims that
he was present when Bernardo was attacked and assaulted by Estaco,”
that he even pleaded to him not to harm Bernardo because he was not
armed while Estaco was armed and had wounded Bernardo, and then after
the incident he went to sleep. Cabias’ behaviour is unusual and
inconsistent with human experience. It is strange that he would not
have rushed to his uncle’s side after Estaco had left, to see how he
was wounded or give him medical succor or report the crime to the
authorities; instead, he was unconcerned, he slept peacefully that
night and very early the next morning (8:00 o’clock), he went to the
remote barrio of Tanghas to fish, as if nothing had happened the
previous night. There is really something fishy in connection with the
fish story, for the truth of the matter, is that on the very evening of
September 28, 1958, police officers went to the house of Cabias and did
not find him there, for he had already taken flight to barrio Tanghas
where he was arrested two days after. Like his co-accused Indic,
appellant Cabias wanted to evade arrest.

Contrary to the pretensions of the defense, conspiracy has been
shown. The appellant’s direct and active participation in the assault
against Bernardo, in that he also chased and thrust his “pisao” (bolo)
at Bernardo and stabbed him, simultaneously with Indic and Estaco; and
the presence of multiple stab wounds in the different parts of
Bernardo’s body, reveal a concerted attack made by the three accused;
unity of action and a joint purpose and design. Conspiracy arises on
the very instant the plotters agree, expressly or impliedly, to commit
the felony and decide to pursue it (People vs. Monroy, 104
Phil. 759), In the instant case, conspiracy arose from the moment the
three accused challenged Alberto to a fight and continued until Indic
attacked Bernardo inside a house, and later joined by appellant and
Estaco, who were in the yard, in the pursuit of Bernardo who ran away
until he was overtaken and wounded simultaneously by them.

Admittedly, no motive was shown, why appellant Cabias should want to
harm his uncle/ While it may be noted that bad company must have
induced him to participate in the commission of the offense, proof of
motive is not indispensable to convict, the guilt of the accused having
teen sufficiently established by the testimony of several witnesses who
directly and categorically identified the appellant Cabias to be one of
the culprits. It is, indeed, disgraceful to see that now-a-days, people
kill even in broad daylight, just for the mere sake of killing, or for
the fun of it, shooting their fellow mortals, as if they are jungle
ducks.

In view, however, of circumstances which will readily be discussed,
We are of the opinion that the appellant Cabias is merely guilty of
simple homicide. Evident premeditation is net present. It was Alfredo
and not Bernardo whom the accused were challenging to a fight and they
turned on Bernardo only when the latter cautioned Alfredo not to accept
their challenge. This being the case, it does not appear that the
accused reflected on an intention and clung to such intention to kill
Bernardo, between the time when they jointly acted to consummate the
crime and the time it was actually committed. The generic aggravating
circumstance of abuse of superior strength is present. The accused who
were all armed and decidedly superior in number, made a concerted
attack upon the lone Bernardo, who was unarmed. This circumstance could
have qualified the crime to murder, but it is not alleged in the
information, although proven. The qualifying circumstance alleged in
the information is evident premeditation, but not proved. Treachery
(alevosia) is not present. The joint attack on deceased Bernardo by the
three accused does not appear to have been directly and specially or
consciously adopted to insure its execution without risk arising from
any defense the deceased might make (par. 16, Art. 14, Rev. Pen. Code;
People vs. Tumaob, 83 Phil. 742.); it was rather unplanned,
sudden and impulsive, prompted or provoked only by the latter’s flight.
The mitigating circumstance of intoxication appreciated by the lower
court, was not at all proven. The lower court considered nevertheless,
the mitigating circumstance of lack of instruction in appellants’
favor, declaring that they “are ignorant, if not entirely illiterate
persons”. As it is for the trial court, rather than the appellate
court, to find the existence of this circumstance, for it is not
illiteracy alone, but the lack of sufficient intelligence and knowledge
of the full significance of one’s acts which only the trial court can
appreciate, that determines such mitigating circumstance (People vs. Sari, L-7169, May 30, 1956 and cases cited therein), We hold that appellant is entitled to the same.

We declare that appellant Antonio Cabias is guilty beyond
peradventure of doubt, of the crime of simple homicide, aggravated by
abuse of superior strength, but compensated by the mitigating
circumstance of lack of instruction; and hereby sentence him to suffer
an indeterminate penalty ranging from eight (8) years and one (1) day,
of prision mayor to seventeen (17) years, and four (4) months, of
reclusion temporal. With this modification, the decision appealed, from
is AFFIRMED in all other respects, with costs on the appellant.

Bengzon, C. J., Padilla, Reyes, J,. B. L., Barrera, Dizon, Regala and Makalintal, JJ., concur.