THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MELCHOR TIVIDAD, DELFIN TIVIDAD, FULGENCIO TIVIDAD AND FRUCTUOSO TIVIDAD, DEFENDANTS-APPELLANTS.

At about five-thirty o’clock in the afternoon of Feb­ruary 14, 1961, a cockfight
jointly sponsored  Regino
Murillo and Delfin
Tividad was held in the sitio
of Calumpit, barrio of Calantas,
Calaca, Batangas.  In the course of the sport, a heated argument
arose between two bettors brought about by the refusal of one of them to make
good a bet.  As co-sponsor of the event, Delfin Tividad tried to settle
the dispute, to no avail.  Neither did Regino Murillo have any success.  In apparent disgust, the latter blurted out, “if we
could not agree, we better stop the cockfight”, and then stalked out of the
arena.  Melchor
Tividad, an older bro­ther of Delfin,
followed Regino, and, as the
latter stood by the door of the cockpit, gave him a first blow.  The two thereupon grappled until Melchor, the smaller of the two, fell to the ground with Regino bending over him, firmly holding his shoulders and
trying to pin him down.  At this juncture, Delfin
came running out of the arena and with a knife stabbed Regino in the back, causing the latter
to fall
on his buttocks.  Delfin then stabbed
him in the neck and breast, causing him to fall on his back.  While Regino was
sprawled on the ground, Melchor hacked him with a
bolo drawn from the scabbard on Regino’s side.  Then Fulgencio
came
and, with a piece of bamboo picked up from among those scattered
in the ground, hit Regino on the head.  He was followed by Fructuoso who, with a bamboo pole, swung at the prostrate figure of Regino,
hitting the latter on the left arm.  With
Regino bleeding profusely from his wounds, the Tividad
brothers left.  Soon thereafter, Regino died.

On March 28, 1961 the four brothers were
charged with murder before the Court of First Instance of Batangas.  After due trial, the lower court rendered
judgment, the dispositive portion of which reads as follows:

“WHEREFORE, the Court finds all the four ac­cused Melchor, Delfin, Fulgencio and Fructuoso, all
surnamed Tividad, guilty beyond reasonable doubt of
murder, the killing being qualified by treachery.  There being no other modifying cir­cumstance
to consider, the penalty provided for by law for the offense (reclusion temporal
in its maximum period to death) should be imposed in its medium period.  Hence, all four accused are hereby sentenced
to life imprisonment, to jointly and severally indemnify the heirs of Re­gino Murillo in the sum of P6,000.00,
without subsidiary imprisonment in case of insolvency, and to pay 1/4 of the
costs each.”

From this decision, the defendants have
appealed to this Court.  Subsequently Melchor Tividad withdrew his
appeal which was accordingly dismissed.

The appellants denied complicity in the killing of Regino Murillo.  Delfin declared that when he arrived at the cockpit, the
fight was already over and Regina
was on the ground dying.  Fulgencio testified similarly.  On the other hand, Fructuoso
asserted that when he arrived at the scene of the
fight, his brother Melchor had already obtained
possession of the bolo of the deceased for which reason he
saw no more necessity in going to his
brother’s aid.  Melchor
admitted killing Murillo but only in self-defense.  However, as he has already with­drawn his
appeal, it is no longer
necessary to consider the merits of his
defense.

It is the theory of the defense that only Melchor
Tividad fought with Regina Murillo, and that Delfin, Fulgencio and Fruc­tuoso did not participate therein in any manner.  The only wit­ness presented by the defense
counsel other than the accused themselves was Doroteo
Sara, a resident of barrio Calantas.  Sara testified that in the afternoon of February
14, 1961, he saw Melchor and Regino
fighting with one another; that Regino had a bolo
with which he tried to hack Melchor; that the lat­ter
was able to wrest the bolo from Regino and with it
hacked the latter, several times in the chest; that Regino
fell on his back and remained in that position until Melchor
desisted from the attack; that Delfin, Fulgencio and Fructuoso were present during the fight but did not
intervene therein; that they left the cockpit together after the fight; and that he
himself left after the fight had ended.

We have exhaustively examined the record and nowhere do we find
any support for the theory proffered by the defense.  The nature and location of the wounds
sustained by the de­ceased, and the declarations of the prosecution witnesses,
create a different picture of the incident.  In the autopsy report (exh. A) of the municipal
health officer, Dr. Antonio E. Platon, the eleven
wounds sustained by the deceased are described as follows:

1. Stab wound on the left side of the neck cutting the left
carotid artery and vein;

2. Cut wound on the mouth cutting all teeth affect­ing also both commissures;

3. Cut wound above the right clavicle;

4. Stab wound in front right side near the sternum on the third intercostal space down deep into the thoracic cavity about
6 inches deep;

5. Cut wound on the left shoulder;

6. Stab wound on the left shoulder joint deep about 5 inches;

7. Cut wound on the right thumb;

8. Cut wound on the dorsum of the left hand;

9. At the back stab wound near the spinal column below the angle
of the right scapula down deep into the thoracic cavity of about 6 inches deep;

10. Cut wound on the left occipito-parietal
junc­tion affecting the skull just reaching the gray matter only;

11. Linear longitudinal erosion of the skin from the left ear lobe
to the cheek of same side of about 4 inches in length.

Of these wounds, those described in
paragraphs (1), (4) and (9) were fatal. 
Any one of them, according to Dr. Platon,
could have caused the death of Murillo.

Dr. Platon classified the wounds into
three groups: (a) cut wounds or those caused by a sharp instrument like a bolo,
(b) stab wounds or those caused by a sharp and pointed instru­ment like a
knife, and (c) the wound described in paragraph 11 of the autopsy report which
was caused by a blunt instrument like a bamboo pole or the handle of an
ordinary knife.  From a careful scrutiny
of the autopsy report and the testimony of Dr. Platon,
only one compelling inference presents itself, which is, that the wounds on the
body of the deceased were caused by different
weapons and not solely by the bolo allegedly wrested by Melchor from Regino
as the defense would have us believe.  If
the latter were the case, the
wounds would have exhibited much the
same appearance.  No evidence was presented
by the defense to show that Melchor used
some other weapon in killing Murillo.  Moreover, the wounds on the back,
head, shoulder and mouth of the deceased disprove Sara’s statement that
he saw Melchor hack Murillo only in the chest.  Considering Sara’s testimony that the
deceased never changed his position after falling to the ground as to expose
his back to Melchor’s onslaught, we can only conclude that he had
misrepresented the truth as to the actual sequence of the events.

The failure of the
appellants’ evidence to tally with the autopsy findings of the municipal health
officer considerably weakens their case and correspondingly strengthens the
testi­monies of the prosecution witnesses. 
In their brief, the ap­pellants belabor the alleged bias of the
prosecution witnesses Fabian Salanguit and Donato Ma. Katigbak,
growing out of their relationship
with the deceased, they being the half-brother and father-in-law of
Murillo, respectively.  The ap­pellants
likewise assail the
testimony of Gaudencio Panaligan,
husband of the mistress of Delfin Tividad,
one of the accused.  While witnesses may
be said to be interested by reason of their relationship with one of the parties, their
declarations should not be disregarded or rejected capriciously on the ground of
apparent bias alone where they are reasonable, consistent and supported by other facts and circumstances (U.S. vs. Pagaduan 37 Phil.
90, 92).  This is the situation
obtaining in this case.  The autopsy report (exh. A) not only gives credence
to the testimonies
of Salanguit,
Katigbak and Panaligan and
bolsters the prosecution’s theory that
Murillo was stabbed by Delfin in the back, neck and chest, hacked by Melchor in
the breast, and struck by Fulgencio
and Fructuoso in the head and arm with pieces of bamboo, but as well utterly
destroys the pretensions of the defense.

Despite the number of people who witnessed the affray and the
alleged notoriety of the deceased in the community, it is strange that the
appellants were able to present only the hardly credible testimony of Doroteo Sara.  Not
only does such testimony fail to dovetail with the medical find­ings, but as
well it disputes a material point in the testimonies of Delfin
and Fulgencio. 
While the latter categorically denied their presence during the fight
between Melchor and Regino,
Sara asserted that they were present although they did not intervene
therein.  Neither in the court a quo nor in their brief did the appellants
explain this patent contradiction.

The prosecution has taken the position that the appellants acted
in common accord, with the same criminal purpose and mur­derous intent, as to
render each one as well liable for the acts of the others.  As proof of this fraternal conspiracy, reliance is placed on the apparent simultaneity of the attack on the de­ceased.  That there was a prior agreement among the Tividad brothers to kill Murillo has not been averred, much
less proven, by the prosecution.  While it may be true that direct proof is not
essential to prove conspiracy and that it may be shown by acts and
circumstances from which may logically be inferred the existence of a common design among the accused to commit the
offense charged (People vs. Cabrera, 43 Phil. 64, 96; Peo­ple vs. Carbonel,
48 Phil. 868, 875-876) nonetheless the evi­dence to prove the same must be positive
and convincing (Peo­ple vs. Aplegido, 43 O.G. 114, 117). 
As a facile device by
which an accused may be ensnared and kept within the penal fold, conspiracy
requires conclusive proof if we
are to maintain in full strength the substance of the time-honored principle of
criminal law requiring proof beyond reasonable doubt before con­viction.  It is with this guidepost in mind
that we have exam­ined the evidence on
record and consequently arrived at the con­clusion that the facts of the
case do not support the position of the prosecution.

The record is bereft
of any fact or circumstance, whether anterior to the commission of the offense
or subsequent thereto, indicative of conspiracy
among the accused.  Although all
the Tividad brothers were present during the
cockfight, this fact does not give rise
to any inference of unity of criminal pur­pose as their attendance
therein may be explained by the facts that in the rural areas, cockfighting is a
communal activity, especially among the menfolk, and
that, in this case, one of them (Delfin) is a co-sponsor of the event.  Neither is their departure together and in
the same direction after the affray a positive manifestation of conspiratorial
unity as it was merely an affirmance of the uncontradicted fact that they were neighbors.  There is no proof that the Tividad
brothers bore the deceased any grudge previous to the assault on the
latter.  In fact, they were even seen
together in conversation before the
cockfight by Gaudencio Panaligan,
one of the prosecution witnesses.  If
the parties had differences, the joint sponsorship of the cockfight by Delfin Tividad and the deceased
would not have been possible.

This leads us to a consideration of the fight itself.  It is indubitably clear from the record that
the accused did not attack the deceased
simultaneously.  Even if they
did, this would not of itself indicate the existence of a conspiracy among them as simultaneity per se is not a badge
of conspiracy, absent the requisite
concurrence of wills.  It is not
sufficient that the attack is joint and simultaneous; it is necessary that the assailants are animated by one and
the same purpose (U.S.
vs. Magcomot, 13 Phil. 386,
389; People vs.
Caballero, 53 Phil. 595-596).  Evidently, in a
situation where the assaults were
not simultaneous but successive,
greater proof is demanded to establish concert of criminal design.  The
evidence for the prosecution shows that the assaults on the deceased were
carried out by the accused successively. 
Panaligan even testified that while Melchor and Regino were grappling
in the early stages of the fight, Delfin and Fructuoso stayed inside the arena some five meters away
from the protagonists.  Fulgencio, although outside the arena, was also about five
meters distant from the two.  If, later,
they seemingly went to the aid of their brother, it was out of strong fraternal
instincts and not on account of
a conspiracy, express or implied, to take the life of
the deceased or inflict upon him bodily injury. 
With the exception of Delfin, none of the
accused was armed.  The bamboo poles used
by Fulgencio and Fructuoso
were simply picked up by them from the many pieces lying on the ground near the
cockpit.  If it were their intention to
kill Murillo, they would have priorly armed
themselves with more lethal wea­pons.  Of
considerable significance is the circumstance that Mel­chor,
who started the fracas, was unarmed and smaller in build than the deceased while
the latter was not only bigger but also carried a bolo.  As the appellants themselves asserted, the
deceased was reputed in the locality to be a “siga-siga
or “barako” and was, presumably, more than
familiar with the ways of street fighting. 
Would the accused have carelessly
risked the
life of their unarmed brother if they really had the intention of doing away with
Murillo?  As it was, the brothers did not
intervene in the fight until after Melchor had been
thrown to the ground.  In brief, then,
the facts do not disclose that the accused had previously conspired to kill
the deceased.

In the absence of conspiracy, each of the accused is responsible
only for the consequences of his own acts (U.S.
vs. Abiog and Abiog, 37 mil. 137, 140; People vs. Tamayo,
44 Phil. 38, 47-49).  As to the remaining appellants, the qualifying
circumstance of treachery should be appreciated only against Delfin Tividad who was positively
identified as the one who treacherously stabbed the deceased in the back
while the latter was trying to pin down Melchor.  The injury caused, described in paragraph (9)
of the autopsy report as about six inches deep, was one of the three fatal wounds sustained by Murillo.  Fulgencio and Fructuoso, whose community of interest with the other
accused has not been shown, should be held liable only for the consequences of
their own acts.  While the evidence shows
that each of them hit the deceased once with a piece of bamboo, it is silent as to the extent of
the injuries caused, in which case they
should be held guilty only of slight physical injuries.  As to Melchor
Tividad, with the withdrawal and subsequent dismissal
of his appeal, the judgment a quo against him has long become final.

ACCORDINGLY, the judgment appealed from is
affirmed with respect to Delfin Tividad, and modified with respect to Fulgen­cio
Tividad and Fructuoso Tividad to the
extent that they are hereby held guilty only of slight physical injuries
and sentenced to ten days of arresto
menor. 
Having already served more than four years of preventive
imprisonment, they are hereby ordered released from custody. 
The indemnification of P6,000 be paid to the
heirs of Regino Murillo shall be borne jointly and
severally by Melchor Tividad
and Delfin Tividad.  The costs of this appeal shall be paid
proportionately by the three remaining appellants.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, and
Sanchez, JJ., concur.