THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LAURENZO (LORENZO) ALQUIZAR, DEFENDANT.

This is a review en consulta
of the decision of the Circuit Criminal Court at Pasig,
Rizal, convicting Laurenzo
(Lorenzo) Alquizar of murder, sentencing him to death
and ordering him to pay the heirs of Fernando Rivas an indemnity of P22,000
(Criminal Case No. 988).  He did not
appeal from that decision.

It is not disputed that in the afternoon of April 10, 1971, Alquizar,
31 or 32, a native of Cebu
City and a prisoner in the national
penitentiary at Muntinlupa, Rizal
since 1963, inflicted two stab wounds on Rivas, another prisoner, while the
two, together with more than eighty prisoners, were being brought from the
prison kitchen to Building 13.  Rivas
died at the prison hospital at four-fifty-five on that same afternoon.

He sustained a fatal stab wound eleven centimeters deep in the
iliac region which cut an artery and another stab wound four centimeters deep
in the back below the right shoulder blade or infrascapular
region.

Alquizar testified that he acted in
self-defense.  His version was that on
that afternoon, after coming from the prison kitchen, together with around
eighty prisoners and after he had reached his brigade (meaning he was out in
the open) and after the prisoners were counted, Rivas, who was following him,
boxed him on the right temple.  That blow
made him dizzy.  In retaliation, he boxed
Rivas.

Then, Rivas drew a bladed weapon which Alquizar
grabbed from Rivas by twisting his right hand. 
With that weapon, he stabbed the latter in the abdomen.  Rivas ran to the “bar stand” or the
office of the officer of the day where he collapsed.  The prison guard, Ludovico
Bautista, hit Alquizar on the left ear with his
club.  He allegedly surrendered to
Bautista.  He was brought to the officer
of the day.  He told the officer of the
day that he stabbed somebody but he did not claim that he acted in self-defense
(20 tsn May
10, 1972).

The stabbing took place not inside the “gola”
but near the gate of the brigade or Dormitory 13-C in the presence of more than
eighty prisoners, Alquizar’s “co-kitchen
boys”.

Rogelio Llamas, a native of Cebu City,
who was convicted of estafa through falsification and
was also a prisoner working in the kitchen, corroborated the testimony of Alquizar that he was boxed by somebody, that Alquizar retaliated by boxing his assailant and that the
latter drew a knife and attacked Alquizar.

Antonio Rivera, a native of Cebu City,
a prisoner convicted of robbery and evasion of service of sentence, the
“assistant mayor” of a brigade and a member of the Oxo gang, also corroborated Alquizar’s
testimony that Rivas boxed Alquizar.  Rivera did not know what Alquizar
did to Rivas after he was boxed by the latter.

In rebuttal, prison guard Bautista testified that Llamas was not
at the scene of the killing.  He was not
among the more than eighty prisoners who were to be brought to Dormitory 13-C.

Prison guard Nicolas Bersabe testified
that Rivera in the afternoon of April
10, 1971 was confined in Dormitory 7-C and that he was not near the
gate of Building 13 where the killing was perpetrated.

Certain circumstances militate against Alquizar’s
plea of self-defense.  He made it appear
that Rivas boxed him without any provocation. 
He did not state the motive as to why Rivas boxed him.  According to his version, he did not even
know Rivas by name.  He did not explain
why Rivas would dare to box him.  He (Alquizar) had undergone training as a boxer and was a
well-known boxer in prison.

It is not plausible that Rivas would box Alquizar
near the gate of Building 13 in the presence of more than eighty prisoners.  If Rivas had any felonious intent against Alquizar and if, according to his version, Rivas was armed
with an improvised bladed weapon, then it is not
probable that Rivas would merely box him initially.  He would have stabbed Alquizar
at the outset instead of waiting for Alquizar to
strike him and then drawing his weapon after he was hit by Alquizar.

Also incredible is his testimony that he grabbed the blade of the
weapon (Exh. D) but his
hands were not injured.  He merely
sustained a slight wound in the small finger.

Moreover, right after the stabbing, Alquizar
was brought to the officer of the day. 
He did not apprise that official that he acted in self-defense.

On the other hand, the prosecution’s version was that at about
three-forty in the afternoon of April
10, 1971, Bautista, the prison guard, was leaning near the window
of the “gola” between “post
towers” Nos. 11 and 13 of the national penitentiary in Muntinlupa,
Rizal.  He had
just come out of the prison kitchen and had escorted eighty-five prisoners who
were to be returned to their dormitory in Building 13.  The kitchen was about one hundred fifty yards
away from the dormitory.  Bautista was
waiting for the keeper of the dormitory.

He heard a shout or exclamation of pain, “Inang ko po“,
emanating from the direction behind his back. 
He turned and saw Alquizar stabbing
Rivas.  He approached them and hit Alquizar on the head with his club to prevent him from
killing Rivas.  Alquizar
held the clothes of Rivas and stabbed him for the second time.  Rivas ran towards the office of the officer
of the day pursued by Alquizar.  Bautista and Eulalio
G. Solmayor, the keeper of Buildings 11 and 13,
blocked the path of Alquizar.  He was apprehended by the two prison
employees.

We find the prosecution’s version to be credible and a sufficient
proof that Alquizar did not act in self-defense.

Alquizar impugned the voluntariness of his confession.  His counsel de oficio
contends that no probative value should be given to it.  He repeatedly testified that he signed it
because he was maltreated.  The
confession was taken about four days after the stabbing.  Why it took the investigator more than
seventy-two hours to take Alquizar’s statement was
not explained.

 The confession was signed
in the presence of two witnesses and it was sworn to before an administrative
officer of the Bureau of Prisons.  The
witnesses and the swearing officer did not testify at the trial.  There is no showing that the swearing officer
read to Alquizar that confession.

It is in the Tagalog dialect.  It does not contain any notice to the accused
that he had the right to remain silent and that any statement made by him might
be used against him.  In that statement,
it appears that when he was asked whether he knows Tagalog,
his answer was:  “Maka intindi, sir, pero hindi masiyadong
makasalita” (“I understand it, sir, but I
do not speak it well.”).  However,
an examination of Alquizar’s answers in his
confession shows that he speaks Tagalog well.  This may indicate that the answers therein
were not in his own words.  Cebuano is his
native dialect.

We hold that the confession cannot be admitted as evidence
against Alquizar. 
There is doubt as to whether it was freely and voluntarily made.  The investigator did not testify as to how he
took the confession of Alquizar.

In fact, there is a discrepancy between the confession and the
investigator’s report which was made ten days after the stabbing.  According to the confession
(Exh. B), Alquizar
allegedly told the investigator, Buenaventura de la Cuesta,
that he stabbed Rivas because he thought that Rivas was a mem­ber of the Sigue-Sigue gang that was responsible for the
killing of Alquizar’s alleged cousin, Salvador Alcontin.  (Alquizar denied that Alcontin was
his cousin.) However, De la Cuesta in his report
stated that both Alquizar and Rivas were members of
the Sputnik gang.

Thus, De la Cuesta said:  “Napagalaman ng tagapagsiyasat matapos mapagaralan ang mga natipong
impormasyon na ang biktima (Rivas) ay nasaksak dahil (sa) ito’y napaghinalaan
ng salarin (Alquizar) na kasapi
sa pangkat ng Sputnik. 
Na kaya napaghinalaang
kasapi sa
nasabing pangkat ang biktima (ay) dahil sa ito’y
madalas nakikitang sumasama at nakikipagusap sa mga kasapi
ng Sputnik na ang pangkat na
ito at ang pangkat ng mga
Bisaya na kinaaaniban ng salarin (Alquizar) ay magkaalyado pa x x x” (Exh. A,
p. 17, Record).  The investigator
was confused in assuming that Rivas and Alquizar
belonged to allied prison gangs.

It was alleged in the information that the killing was qualified
by treachery.  No other qualifying
circumstance was alleged.  Treachery was
not proven by means of the testimony of Bautista, the only prosecution witness
who saw the stabbing.  He did not witness
the inception of the stabbing.

The first thing that he witnessed was that Alquizar
had already inflicted the first stab wound on Rivas.  He saw them because Rivas gave a cry of
pain.  Bautista’s back was turned when Alquizar initially assaulted Rivas.

It is the confession that may prove that the assault was
treacherous.  But since, as already
stated, no credence can be accorded to the confession, only Bautista’s
testimony should be taken into account as to the manner of the attack.  His testimony is deficient on that
point.  It may be noted that since the
first wound was inflicted in the abdomen, the logical conclusion would be that
Rivas and Alquizar were face to face when the initial
assault was made.  That circumstance may
negative the existence of treachery.

Therefore, there is no justification for holding that the
stabbing was treacherous.  The
prosecution’s evidence on that point is not conclusive.  Counsel de oficio
is correct in contending, alternatively, that the killing should be charac­terized
as homicide.

Alquizar was a quasi-recidivist because
at the time he stabbed Rivas he (Alquizar) was
confined in the national penitentiary, serving sentences for (1) robbery with
slight physical injuries, (2) theft and (3) evasion of service of sentence.  The penalty for homicide should be imposed in
its maximum period pursuant to article 160 of the Revised Penal Code.

Alquizar is not entitled to an
indeterminate sentence because he escaped from confinement and evaded the
service of his sentences for robbery and theft (Exh.
F).  The
mitigating circumstance of voluntary surrender to the authorities cannot be
appreciated in his favor because, when he supposedly surrendered, he was still
pursuing the victim after inflicting the stab wounds.  Alquizar could have
surrendered after Bautista had struck him with a club.  Instead of doing so, he inflicted a second
stab wound and pursued the victim.  Alquizar was really apprehended or arrested.  He did not surrender voluntarily.

WHEREFORE, the trial court’s death sentence is set
aside.  Alquizar
is convicted of homicide and sentenced to twenty (20) years of reclusion
temporal maximum.  The indemnity
imposed by the trial court is affirmed.  Costs de oficio.

SO ORDERED.

Fernando, C.J., Teehankee,
Barredo, Makasiar, Antonio,
Concepcion, Jr., Fernandez, Guerrero, and Melencio-Herrera,
JJ.,
concur.

Abad Santos, De Castro, and Santos,
JJ.,
abroad.