THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LORENZO PORTUGUEZA @ ENSOY, ET AL., DEFENDANTS, LORENZO PORTUGUEZA @ ENSOY, DEFENDANT-APPELLANT.

Indicted for murder in the Court of First Instance of Samar, with an allegation of conspiracy, evident pre­meditation,
treachery and abuse of superior strength in the information, accused Florentino Gapole alias Floren, duly assisted by counsel, pleaded guilty to the
charge.  On October 31, 1963, a decision
was rendered finding him guilty of the crime charged and sentencing him to
suffer an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to twelve (12)
years and one (1) day of reclusion temporal, as maximum, to
indemnify the heirs of the deceased in the amount of P3,000.00,
and to pay one-half of the costs.  His
co-accused, Lorenzo Portugueza alias Ensoy, entered a plea of not guilty and trial proceeded against him. 
In a decision rendered on December 27, 1963, he was found guilty of
murder, with the aggravating circumstance of having taken advantage of the
defendants’ superiority in number and of the fact that the victim was 70 years
of age while accused was only 20 years old, and sentenced to suffer the penalty
of reclusion perpetua, to indemnify
jointly and severally with his co-defend­ant the hairs of the victim, Francisco
Balicuas, in the amount of P5,000.00,
and to pay the costs.  One-half of the
preventive imprisonment undergone by him was ordered credited in his
favor.  Lorenzo Portugueza
appealed.  In view of the gravity of the
penalty im­posed upon him, his appeal was elevated directly to this Court.

The evidence of the prosecution tends to show that at about 4:00
o’clock in the afternoon of July 27, 1963, while Ana Taringting
was taking in fresh air, after a day’s work at the farm, at the yard of her
house on the slope of a hill in barrio Cabatuan, Pala­pag, Samar, she saw the
victim, Francisco Balicuas, on the trail at the foot
of the hill being hacked with bolos by the two accused.  Florentino Gapole delivered the first blow, hitting the deceased on
the left arm.  Appellant Lorenzo Portugueza followed with a blow on the left flank just
below the armpit.  We quote from the
testimony of prosecution witness, Ana Taringting:  “Q.- Since you
said that Lorenzo Portugueza also hacked Francisco Balicuas, will you please tell the court where Francisco
was hit by Lorenzo Portugueza?”   “A.- Witness
indicating the left side of her body below the armpit.” (t.s.n. p. 8, Delim.)

Forthwith, Ana Taringting ran to the
barrio pro­per where the daughters of the deceased lived, and having reported
the incident, the latter went back to the scene of the crime.  The deceased was bathe
in blood, lying down in a twisted position on the trail with his face
upwards.  His left arm was almost severed
from his body.  He told his daughters
that his assailants were Florentino Gapole and Lorenzo Portugueza.

At the G. B.
Tan Memorial Hospital
where the de­ceased was brought, Dr. Leocadio C.
Mendoza who minis­tered to him, found on his person the following injuries:

“1. Left arm almost amputated completely at its upper
3rd.  Note:  Only a portion of the skin and subcutaneous
tissue were left to hold the left forearm.

“ 2. One incised wound 1-1/2 inch in
length diagonally disposed at left flank, mid axillary
line at the level of 7-8 rib.  Very superficial involving only the subcutaneous tissue.

“3. One incised wound 1-1/4 inch in length
diagonally disposed at dorsal surface of right hand.”  (Exhibit A)

The first wound was fatal, the second and the third were
superficial and would heal in ten days barring com­plications.  Such was the opinion of the doctor.  In the early morning of the next day, the
victim died.  Before his death, he gave a
written statement to the barrio lieutenant of Cabatuan
naming the two accused as his assailants. 
(Exhibits C, C-1)

Appellant testified on his behalf that on the after­noon in
question, he was on his way home to their farm at the upstream portion of
barrio Cabatuan, having gone to visit his uncle at
the barrio proper that morning.  On the
trail leading to their farm, Florentino Gapole, whom he encountered there, and he met the
deceased.  Gapole
suddenly stabbed the victim, the blow landing on the left arm.  The deceased failed to retaliate, although he
was about to draw his bolo, because Gapole delivered
two more blows in succession, hitting the deceased on the left side of his body
and at the back of his hand.

The first question to be resolved is whether or not appellant
participated in the commission of the crime. 
He claims that his version should be accepted as the more credible
because it was not shown that he had any motive to take part in the crime; that
the only reason for his implication was because he refused to testify as a
prosecution witness as requested by the daughters of the de­ceased.

Motive is relevant where the identity of the person accused of
having committed a crime is in dispute, where there are no eyewitnesses, and
where suspicion is likely to fall upon a number of persons.  Appellant in the case at bar, was duly
identified by an eyewitness to the crime, Ana Taringting,
and his participation is shown not only by the testimony of said witness.  The ante-mortem statement of the deceased,
repeating a verbal statement given to his daughters, also names the appellant
as one of those who assaulted him. 
Hence, motive to commit the crime is not material.

The reason for appellant’s alleged implication is likewise of
little significance in the determina­tion of his guilt or innocence, for the
reason that it was not the daughters of the deceased but Ana Taring­ting who pointed to him as an assailant.  The appellant failed to show in the court
below, and he does not argue at this instance, that Ana Taringting
testified against him out of evil motive. 
It is significant that appellant declared that he was at the scene at
the time the crime was being committed, and that he saw Ana Ta­ringting
atop the hill, which imply that the prosecution witness told the truth when she
testified that she saw the appellant.  No
reason was shown why the witness of the prosecution would foist a crime on
appellant if he did not really commit it. 
Neither does the record indicate any justification for rejecting the
finding of the trial court – that the testimony of Ana Taringting
is credible.  Upon the evidence, we hold
that the appell­ant’s bare denial is not enough to overcome the positive
evidence adduced by the prosecution showing beyond per­adventure of doubt his
participation in the commission of the crime.

Appellant contends in the alternative, however, that the
allegation of conspiracy was not proved satisfacto­rily.  This contention, the last of the questions
for re­solution, deserves serious consideration.  Aside from the fact that appellant and his
co-accused are brothers-in-law, their wives being sisters, no other evidence
was presented by the prosecution to show conspiracy, which, according to the
settled rule, must be proved as clearly and as convin­cingly as the commission
of the crime itself.  Of course, the
existence of a previous agreement to commit the crime need not be proved to
show conspiracy, as it is suffi­cient that at the time of the commission of the
crime, the accused had the same purpose and were united in its execution, or
that they acted in concert pursuant to the same objective.  However, none of the foregoing facts and
circumstances indicative of conspiracy was shown.  The finding of the trial court as to how the agression was committed is as follows:  “that she (Ana Taringting)
saw the victim Francisco Balicuas who was hacked by
the accused Floren and Ensoy
meaning Florentino Gapole
alias Floren and Lorenzo Portugueza
alias Ensoy, respectively.”

Such a finding does not prove conspiracy.  The evidence has conclusively shown that
while the appell­ant was on the trail leading to his farm, Florentino
Gapole, whom he encountered there, and he met the
deceased, and when Gapole got near the deceased, the
for­mer hacked with his bolo the latter, landing the bolo blow at the left arm
of the victim.  The meeting of the
accused was purely casual, and equally casual was the meeting with the victim.

Although the appellants are relatives and had acted with some
degree of simultaneity in attacking their victim, nevertheless, this fact alone
does not prove conspiracy.  (People vs. Caayao, 48 Off. Gaz. 637.)  On the contrary, from the nature and gravity
of the wounds inflicted on the deceased, it can be said that the appellant and
the other defendant did not act pursuant to the same objective.  Florentino Gapole’s purpose was to kill the deceased, as shown by the
fact that he inflicted a mortal wound which almost severed the left arm.  The injury inflicted by the appellant, merely
scratching the subcutaneous tissue, does not indicate a purpose to kill the
victim.  It is not enough that appellant
had participated in the assault made by his co-defendant in order to consider
him a co-principal in the crime charged. 
He must have also made the criminal resolution of his
co-accused his own.  As this was not
proven, appellant’s liability is separate and individual – that for less
serious physical injuries – considering that the injury inflicted by him would
incapacitate the deceased, had he survived, or would have required medical
attendance, for only ten days.

WHEREFORE, the decision appealed from is hereby set aside
and another one is entered, holding appellant Lorenzo Portugueza
guilty beyond reasonable doubt of the crime of less serious physical injuries,
and sen­tencing him to suffer an imprisonment of six(6)
months of arresto mayor.  The preventive imprisonment undergone by him
is ordered credited in his favor.  It
appearing from the records of the case (original record of the CFI and the rollo of this Court) that the appellant has been detained
since August 26, 1963, by virtue of a warrant of arrest issued by the court for
the offense he is charged with in this case, and taking into account the
duration of the penalty hereby imposed on said appellant with the benefit of
the application of the preventive imprisonment he has undergone, show­ing that
said appellant has been detained for a period of time, much longer than the
duration of the penalty imposed, it is hereby ordered that said appellant be
immediately released from incarceration. 
Let a copy of this decision be served on the Director of the Bureau of
Prisons, Muntinlupa. 
Proportionate costs against the appellant.

Reyes, JBL, Acting C.J., Makalintal, Bengzon, JP, Zaldivar, Sanchez, Ruiz
Castro, and Fernando, JJ.,
concur.

Concepcion, C.J., Dizon,
J., on official leave of absence.