G.R. No. L-32792. February 02, 1979
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DIONISIO BASTASA @ DIONY AND VIRGINIA DUGENIA BASTASA @ VIRGIE, DEFENDANTS. DIONISIO BASTASA ALIAS “DIONY”, DEFENDANT-APPELL…
CONCEPCION JR., J.:
In Criminal Case No. 4609 of the Court of First Instance of
Zamboanga del Norte, the spouses Dionisio Bastasa and Virginia Bastasa were
charged with the crime of murder, allegedly committed as follows:
“That in the evening on or about the 2nd day of December,
1966, in the municipality of Dipolog, Zamboanga del Norte, within the
jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and working together, armed with firearm and with intent to kill
by means of treachery and evident premeditation did, then and there wilfully,
unlawfully and feloniously shoot Atty. SOLOMON SUDIACAL, thereby inflicting
upon him multiple gunshot wounds on various parts of his body at least one of
which caused his death on the spot.”[1]
x x x x x x x x x
When arraigned on February 17, 1967, both accused entered a plea
of not guilty;[2]
thereafter, trial proceeded and the prosecution as well as the defense adduced
their respective evidence. After the
trial, on July 16, 1970, the trial court rendered a decision,[3]
the pertinent part of the dispositive portion of which reads as follows:
“IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the Court,
declaring that the prosecution has proved beyond reasonable doubt the guilt of
accused Dionisio Bastasa @ Diony of the crime of murder in the character of
principal, with the concurrence of the aggravating circumstance of evident
premeditation, which, however, is offset by the mitigating circumstance of
his voluntary surrender to the PC authorities in Sicayab, Dipolog, Zamboanga
del Norte soon after he committed said crime, and that accused Virginia Dugenia
Bastasa @ Virgie, was only accessory-after-the fact in the crime under
paragraph 3 of Article 19 of the Revised Penal Code, for which reason, as
spouse of said accused Dionisio Bastasa @ Diony, she is exempt from any
criminal liability, hereby sentences accused Dionisio Bastasa @ Diony to the
penalty of reclusion perpetua, with the accessories of the law, to indemnify
the heirs of the deceased victim Atty. Solomon Sudiacal in the sum of Twelve
Thousand Pesos (P12,000.00), without subsidiary imprisonment in case of
insolvency, to pay them Ten Thousand Pesos (P10,000.00) as moral damages and
Five Thousand Pesos (P5,000.00) as exemplary damages, and to pay one-half (1/2)
of the costs, and declares accused Virginia Dugenia Bastasa alias Virgie
acquitted from the charge in the information, with one-half (1/2) costs de
oficio and cancellation of her bond for her provisional liberty. Accused
Dionisio Bastasa @ Diony will be credited with the full period of his
preventive imprisonment if he agrees in writing to abide by the laws and
disciplinary rules imposed upon convicted persons, and with only 4/5 thereof if
he does not so agree.”[4]
x x x x x x x x x
Dissatisfied with the above judgment, the accused Dionisio
Bastasa interposed the present appeal, pleading among others, that the trial
court erred in not applying the provisions of Article 247 of the Revised Penal
Code in the imposition of the penalty.
The evidence for the prosecution shows that from 6:30 to 7:00
o’clock in the evening of December 2, 1966, the deceased Atty. Solomon
Sudiacal was with his wife Leonora Lacaya Sudiacal – a pharmacist – in their
drug store at Dipolog, Zamboanga del Norte. After 7:00 o’clock that evening, the deceased left their drug
store. His wife did not know where he
was going; however, she was then expecting that he (the deceased) would go to
Katipunan,[5]
Zamboanga del Norte.
Instead of going to Katipunan, the deceased went to the house of
the spouses Dionisio Bastasa and Virginia Bastasa at Jones Street, Dipolog,
Zamboanga del Norte, to find out if the appellant Dionisio Bastasa with whom he
had placed an order for cigarettes had already arrived from Zamboanga City. Having been informed by Virginia Bastasa
that the appellant had not yet arrived, the deceased decided to wait for
him. He then sat on a chair in the
sala, while Virginia Bastasa, who had her back to him, sewed on a sewing
machine. Thereafter, while the
deceased was in the sala sitting and scanning a fashion magazine, the appellant
fired shots at him.[6]
Meanwhile, at about 8:30 in the evening of that day, Francisco
Balboza, Jr. together with Blanco Carreon and other students were playing cards
at the second floor of the house rented by Leoncio Corpuz. After playing cards at around 9:30 in the
evening, the two decided to go home. While they were downstairs, they heard shots coming from the house of
the Bastasa spouses. When they looked
at the appellant’s house they saw a man – who turned out to be the deceased
Atty. Solomon Sudiacal – fully clothed, his face soaked in blood, slowly
walking towards the kitchen while the appellant was behind him aiming a gun at
him. Appellant then fired at the
deceased who thereafter fell on the floor of the kitchen.[7]
Francisco Balboza, Jr. and his companion went nearer to the house of appellant,
and standing on a coconut stump, they saw appellant’s wife Virginia Bastasa
come out from their room. Thereupon,
the spouses undressed the deceased and brought his naked body to the sala and
then to the balcony. Not long
afterwards, they heard four or five successive shots, and thereafter, the
appellant and his wife left their house.[8]
On the other hand, the appellant Dionisio Bastasa admitted that
he shot the deceased in his house in the evening of December 2, 1966. His version of the incident is as follows:
On November 30, 1966, he went to Zamboanga City – without
informing his wife when he would return – to find out from the Bureau of
Customs what foreign boat would dock at Pulawan and to pay for the boarding
permit.[9]
On December 2, 1966, he went home, arriving at Dipolog City at
about 9:00 o’clock in the evening of that day. On his way home, he was surprised to see the jeep of the deceased Atty.
Solomon Sudiacal parked along General Luna Street near the establishment or
store of one Omamalin about 70 meters away from his house.[10]
Arriving home, he passed through the secret passage leading to the old balcony
of his house, which he used to pass especially when going home at night in
order not to disturb his wife and children who were already asleep.[11]
Upon reaching the balcony, he saw a jacket on top of the center table in the
sala. He went inside to find out who
owned the jacket, and as he approached the center table, he also found thereon
a .45 caliber pistol.[12]
Believing that somebody was inside their bedroom, he took the
pistol and went downstairs passing through the same old balcony.[13]
After finding that the pistol was loaded, he climbed the ladder on the northern
side of the house where he could see who was inside without being noticed.[14]
When he reached the top of the ladder, he saw the deceased, naked from the
waist, lying down with his wife and having sexual intercourse with her. Somehow his feet slipped from the ladder and
he took hold of a board which created some noise. Immediately thereafter, the deceased stood up. At that moment, he shot the deceased four
times, and the latter ran out of the bedroom to the sala and picked up his
jacket. Again, he fired three more
shots at the deceased, who ran to the kitchen with the jacket on his
breast. Then he climbed down the ladder
to pursue the deceased upstairs.[15]
While the appellant was about to go up the house, he heard a sound
as if a body crashed against the plywood board, which served as a provisional
shutter of the door of the new balcony. Looking towards the new balcony, he saw the plywood board fall down with
the deceased. Thereafter, he went up
the house, and again, he shot the deceased two more times. Thereupon, he turned over the body of the
deceased which was then lying face downward and thereafter removed his trousers
with the intention of cutting his penis but desisted when he heard the sound of
an approaching jeep. Immediately, he
left the house and placed the pistol on the stomach of the deceased. Failing to get a motorcab, he went to the
house of his uncle, Dr. Destura, where he took the latter’s car and proceeded
to the house of his cousin, Gregorio Bastasa, whom he requested to get in touch
with his (Bastasa’s) parents to secure a bond for him. From there, he went to the PC Headquarters
at Sicayab, Dipolog, Zamboanga del Norte, and surrendered, informing them that
he killed a man inside his own house.[16]
The Solicitor General is inclined to believe the version of the
appellant. It is his observation that
appellant’s version is more credible than that of the prosecution because it
is consistent with the physical facts of the case, namely: (a) the presence of four empty bullet shells
on the floor of the bedroom supports appellant’s statement that he aimed and
fired four shots at the deceased while the latter was inside the bedroom;[17]
(b) the absence of bullet holes on the T-shirt of the deceased although he sustained
several wounds on the breast affirms appellant’s statement that the deceased
had only his pants on when he shot him;[18]
(c) the fact that the bullet holes on the jacket of the deceased do not tally
with the bullet wounds found on the upper portion of the deceased’s body
substantiates appellant’s statement that the jacket was held by the deceased
as shield for his breast when fired at in the sala – the multiplicity of the
holes thereon apparently were occasioned by the fact that the deceased held the
jacket in a crumpled manner towards his breast;[19]
(d) the fact that the fashion magazines, found by the police authorities lying
under a small table in the sala, have bullet holes on them, one from cover to
cover and the other up to page 31 thereof where the slug was found embedded,
proves that the deceased could not have been sitting on a chair in the sala
scantling a fashion magazine (the one with bullet holes from cover to cover)
when the first four shots were fired at him; the probability being that a bullet
fired at the deceased while he was already in the sala from the bedroom found
its mark on the fashion magazines as they lay under a small table one on top of
the other;[20]
and (e) the fact that the dead body of the deceased was found completely naked
in the living room on top of a piece of plywood with the jacket under his right
arm and his pants below his feet verifies the truth of appellant’s declaration
that while he was climbing down the ladder he heard a banging of the plywood
board which served as temporary door shutter of the new balcony of the house
and that he saw the deceased fall down with the board.[21]
The Solicitor General has also observed that the antecedent
facts of the case, particularly the ongoing illicit relations between the
deceased and the appellant’s wife, are duly established by the evidence and
provide ample basis for the conclusion that the deceased’s real purpose in
going to appellant’s house on that fateful evening of December 2, 1966 was to
indulge in the sexual act with appellant’s wife.[22]
This conclusion is bolstered by the disclosure of the records that on November
30, 1966 appellant left his residence in Dipolog City for Zamboanga City
without informing his wife when he would be returning home.[23] Indeed, according to the Solicitor General,
it was a perfect opportunity for the deceased to indulge in sexual act with
Mrs. Bastasa, what with her husband away from home.[24]
Thus, the Solicitor General concludes that the appellant killed
the deceased under the conditions stated in Article 247 of the Revised Penal
Code, and, consequently, recommends that the appellant be sentenced to suffer
the penalty of destierro in accordance with said article.[25]
We have carefully examined the records of this case and We agree
with the observations of the Solicitor General as well as his conclusion that
the appellant killed the deceased while in the act of committing sexual
intercourse with the appellant’s wife, Virginia Bastasa. Accordingly, the appealed decision must be
modified and the appellant sentenced to suffer the penalty of destierro
as provided for by the first paragraph of Article 247 of the Revised Penal
Code, to wit:
“ART. 247. Death or
physical injuries inflicted under exceptional circumstances. Any legally married person who having
surprised his spouse in the act of committing sexual intercourse with another
person, shall kill any of them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious physical injury, shall
suffer the penalty of destierro.”
We have noted, however, that the appellant has been under
preventive imprisonment since December 2, 1966, or a period of almost twelve
(12) years to date. Considering that
the penalty of destierro has a duration of from six months and one day
to six years, it appears that appellant has more than served the full duration
of the penalty imposable on him, even if he be credited with only
four-fifths of his preventive imprisonment — a period of nine years and six months — pursuant to Article 29 of
the Revised Penal Code, as amended, which reads:
“ART. 29. Period of
preventive imprisonment deducted from term of imprisonment. – Offenders who have undergone preventive imprisonment
shall be credited in the service of their sentence consisting of deprivation of
liberty, with the full time during which they have undergone preventive
imprisonment, if the detention prisoner agrees voluntarily in writing to abide
by the same disciplinary rules imposed upon convicted prisoners, except in the
following cases:
“1. When they are
recidivists, or have been convicted previously twice or more times of any
crime; and
“2. When upon being
summoned for the execution of their sentence they have failed to surrender
voluntarily.
“If the detention prisoner does not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, he shall be credited in
the service of his sentence with four-fifths of the time during which he has
undergone preventive imprisonment.” (As amended by Republic Act No. 6127,
June 12, 1970.)
This brings Us to the question of whether or not the benefits of
Article 29 aforequoted can be extended to the appellant, considering that the
penalty imposable on him is destierro. We hold the affirmative view. Article 29 of the Revised Penal Code applies when the penalty to which
the accused has been sentenced consists of deprivation of liberty.[26]
The penalty of destierro, according to this Court in Uy Chin Hua vs.
Dinglasan,[27]
means banishment or only a prohibition from residing within the radius of 25
kilometers from the actual residence of the accused for a specified length of
time. Although destierro does
not constitute imprisonment (which is a typical example of deprivation of
liberty, it is nonetheless a deprivation of liberty.[28]
It follows that Article 29 is applicable when the penalty imposed is destierro. Therefore, in the instant case where the
penalty of destierro is to be imposed on the appellant, the benefits of
Article 29 should be extended to him, that is, he should be credited with the
time during which he has undergone preventive imprisonment.
ACCORDINGLY, the judgment of the trial court is modified
holding the appellant Dionisio Bastasa alias “Diony” guilty of
the crime of killing the victim, Solomon Sudiacal, under exceptional
circumstances as defined and penalized under Article 247 of the Revised Penal
Code, as amended, and is hereby sentenced to suffer the penalty of destierro. Considering the preventive imprisonment that
he has undergone, he is hereby ordered released immediately from custody. No pronouncement as to costs.
SO ORDERED.
Fernando, (Chairman), Barredo, Antonio, Aquino, and Santos, JJ., concur.
Abad Santos, J., did not take
part.
[1]
Original Record, p. 27.
[2]
Ibid., pp. 97, 107.
[3]
Ibid., p. 388.
[4]
Ibid., p. 412.
[5]
T.s.n., November 24, 1967, pp. 398; 403-404.
[6]
Exhibit “YY”, Folder of Exhibits.
[7]
T.s.n., July 11, 1967, pp. 123-125.
[8]
T.s.n., July 11, 1967, pp. 127-128, 129.
[9]
T.s.n., September 16, 1969, pp. 290-291.
[10]
T.s.n., September 16, 1969, pp. 265-266.
[11]
T.s.n., September 16, 1969, p. 266; t.s.n., September 17, 1969, pp. 295-296.
[12]
T.s.n., September 16, 1969, pp. 266-267.
[13]
T.s.n., September 13, 1969, pp. 267-268.
[14]
T.s.n., September 16, 1969, p. 268; t.s.n., September 17, 1969, p. 305.
[15]
T.s.n., September 16, 1969, pp. 268-272.
[16]
T.s.n., September 16, 1969, pp. 272-276.
[17]
Rollo, p. 286, par. (b).
[18]
Ibid, p. 288, par. (d).
[19]
Loc, cit.
[20]
Ibid., p. 287, par. (c).
[21]
Ibid., pp. 288-289.
[22]
Ibid., p. 282.
[23]
Ibid., p. 283.
[24]
Ibid., p. 285.
[25]
Ibid., p. 294.
[26]
This is evident from the opening clause of Art. 29 which states that
“preventive imprisonment shall be credited in the service of the sentence
consisting of deprivation of liberty x x x.”
[27]
86 Phil. 617, 619.
[28]
People vs. Abilong, 82 Phil. 172, 174.