THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. AGUSTIN TENGYAO, DEFENDANT AND APPELLANT.

In
a complaint subscribed and sworn to on 25 February 1956 by sergeant
Martin C. Cabigas of the Philippine Constabulary Agustin Tengyao was
charged with murder for the death of Villamor Pagarigan, a prisoner
serving sentence in the provincial jail, on 17 February 1956 in Bontoc,
Mountain Province. After preliminary investigation, on 5 March 1956 the
Justice of the Peace of Bontoc bound him over to the Court of First
Instance where on 11 May 1956 the Provincial Fiscal filed an
information charging him with murder under the provisions of article
248 of the Revised Penal Code. Upon arraignment the defendant entered a
plea of not guilty. The Court proceeded with the trial of the case.
After the prosecution had rested its case, counsel for the defendant
moved for the dismissal of the case on the ground that the prosecution
had failed to prove a prima facie case against the defendant
and prayed that he be granted a period of twenty days from 4 March 1958
within which to file a memorandum in support of his motion. The
Provincial Fiscal waived his right to file a memorandum in reply.
Whereupon the Court granted the defendant the period asked for the
purpose stated. On 26 March 1958 the defendant sent by registered mail
his memorandum in support of the motion to dismiss, which was received
by the Court on 28 March 1958. On 24 April 1958 the Court denied the
defendant’s motion to dismiss. On 23 June 1958 the defendant filed a
motion for reconsideration. On 28 June 1958 the Court denied it.

Upon
resumption of the trial of the case the defendant introduced his
evidence and the prosecution, its rebuttal evidence. On 31 October 1958
the Court rendered judgment holding that “there was no imperative need
for the accused to shoot Pagarigan;” that the shooting of the latter
was unjustified; and that the defendant is guilty of the crime charged,
and sentencing him to suffer the penalty of reclusion perpetua, to idenmnify the heirs of the deceased in the sum of P6,000 and to pay the costs.

The defendant has appealed.

The
appellant was a guard in the provincial jail of Bontoc, Mountain
Province. In the afternoon of 17 February 1956 sergeant Bartolome
Dipalog of the provincial guards assigned the appellant and Walter
Casiwen to watch the prisoners Villamor Pagarigan and Pais Palaoay, who
had been told to cut grass (zacate) for feed of the carabaos owned by
the provincial government in Cholao, Bontoc, Mountain Province. After
Pagarigan had cut some stalks of grass (zacate) and bundled them, he
asked the appellant’s permission to defecate, which the latter granted.
The former went to a place about seven or eight meters away from the
appellant and sought cover behind stone boulders to defecate, from
where the appellant could see him from the bust up (Exhibits C &
F). While Pagarigan was defecating the appellant passed water and
afterwards took out his match to light a cigarette. At that juncture he
noticed that Pagarigan had disappeared from sight. He called out
Pagarigan’s name and went to where the latter was defecating to look
for him but hie was no longer there. Again the appellant called out
Pagarigan’s name and went to the irrigation ditch nearby. There he saw
footprints. The appellant followed the path of the footprints and saw
Pagarigan running away. He ordered Pagarigan to stop and when he
refused, he fired a warning shot in the air while he was about seven
meters away from him. Because Pagarigan did not heed his warning, the
appellant fired another shot which misfired. The appellant reloaded his
gun and as Pagarigan jumped to the lower part of the rice paddies, he
aimed and fired at his leg hitting him. At that time the appellant was
about four meters away from Pagarigan. While the victim was on the
lower part of the rice paddies, about seven meters away from the
appellant, the former made an attempt to jump. At that juncture the
appellant aimed and fired at his back but was not sure that he hit him.
When the appellant finally caught up with Pagarigan the former found
that he had hit the latter on the back. The appellant called for his
companion, Walter Casiwen, and told him to report the incident to the
provincial warden (Exhibit C). Casiwen did as requested.

Captain
Juan M. Duyan, commanding officer of the 12th P. C. Company, stationed
in Bontoc, and Dr. Sotero A. Torralba, chief of the provincial
hospital, received report of the incident. Captain Duyan ordered
sergeant Martin C. Cabigas and private William David to proceed to the
scene to investigate. Dr. Torralba dispatched Dr. Lucio Mendoza in an
ambulance to the same place.

Upon arrival sergeant Cabigas
saw the scene of the incident and found in the vicinity four empty
shells and two live ammunitions of a .30 caliber rifle (Exhibits D,
D-1, D-2, D-3, E and E-1). Sergeant Cabigas took the appellant into
custody and brought him to the P. C. headquarters in Bontoc where on
the same day, 17 February 1956, the appellant freely and voluntarily
narrated to sergeant Cabigas how he shot and killed the victim. On the
next day, 18 February 1956, he subscribed and swore before Judge Jerome
Fakat, Justice of the Peace of Bontoc, the statement he gave to
sergeant Cabigas, Exhibit C. On 22 February 1956 the appellant was
interrogated by Captain Duyan and he subscribed and swore before
Bernabe de Castro, deputy clerk of the Court of First Instance, the
statement, Exhibit F.

In the afternoon of the day of the
incident, 17 February 1956, the cadaver of the victim was brought to
the Provincial hospital where at about 5:00 or 6:00 o’clock in the
afternoon, Dr. Sotero A. Torralba conducted a post mortem examination
and found the following:

1. Wounds, Gunshot
a. Thru and thru, middle third, medial aspect, right thigh (2″x4″)

b.
Thru and thru, at the inter-scapular region (½ cm. in diameter) with
exit at the right side of chest 2 cm. below the right nipple.

2. Wound, lacerated, thorax, right laterial side 5 ½ long extending up to the ribs. (Exhibit A.)

According to Dr. Torralba, the point of entry of the first wound is on
the back of the thigh and the point of exit is on the front middle part
of the thigh, and the point of entry of the second wound is on the
middle of the back, about 4 ½ inches below the nape of the neck, and
the point of exit is about 2 cms. below the right nipple; and that the
assailant must have followed the victim from behind. Internal
hemorrhage is the cause of death (Exhibit A), which could have been
instantaneous.

The appellant does not deny having shot and killed Villamor
Pagarigan but pleads that he did it in fulfillment of a duty as a
provincial guard to prevent his escape, and under the impulse of an
uncontrollable fear of an equal or greater injury, the certainty of
being imprisoned had the victim succeeded in escaping.

On the
witness stand the appellant swears that when he saw Pagarigan at a
distance of about 120 meters “running away without clothes and swinging
his bolo,” he shouted at him to stop but refused; that he ran after
Pagarigan and fired a warning shot in the air; that when he did not
stop despite the warning the appellant fired another shot in the air
but misfired; that at a distance of about 80 meters the appellant aimed
and fired at the victim’s leg but was not sure whether he hit him; that
Pagarigan ran to and hid in the thick and tall grass (zacate) stalks;
that the appellant pursued him and fired at him in the thicket two or
three times; that afterwards he looked into the thicket and saw
Pagarigan lying flat on his belly.

The appellant has deviated
from his original statement, Exhibit C, given freely and voluntarily
before sergeant Martin C. Cabigas on the day of the incident, 17
February 1956. There and then he stated that when he saw Pagarigan
running away he ordered him to stop; that when he refused he fired a
warning shot in the air while he was about seven meters away from him;
that because Pagarigan did not heed his warning shot he again fired
another shot which misfired; that he reloaded his gun and as Pagarigan
jumped to the lower part of the rice paddies, at a distance of about
four meters he aimed and fired at his leg hitting him; that when
Pagarigan again attempted to jump, at a distance of about seven meters
away from him, the appellant fired at his back but was not sure that he
hit him. As the trial Court aptly said—

* *
* This story as told to Sgt. Cabigas is more believable than his
version on the witness stand for the former was related when the
accused has no chance to concoct or weave a fanciful yarn. His
statements then were spontaneous and made when he had as yet no chance
or opportunity to talk with anyone who may be interested in his
acquittal. So that what the accused tried to picture that he and the
deceased were still far away from each other is of doubtful veracity.

While
it is the appellant’s duty as a provincial guard to prevent the escape
of the victim, his act of shooting and killing the latter is
unjustified. He already had wounded him on the thigh while at a
distance of about four meters away from the victim and the wound the
latter had sustained would have made it difficult for him to run away
because he would have limped. It could have been very easy for the
appellant to recapture the victim without the necessity of firing
another shot at him. Besides, as found by the trial Court, and this is
borne out by the evidence, the probability of escape was remote because
the victim was running toward a steep cliff of 50 yards high. Moreover
at that time the victim had but less than five months to serve in jail,
because he was supposed to have been released from confinement on 20
July 1956 (Exhibit H & H-1), and would not have thought of escaping.

The
appellant contends that he is exempt from criminal liability in killing
the victim because he “acted under an impulse of an uncontrollable fear
of equal or greater injury.” According to him had the victim succeeded
in escaping, “he was certain of his going to prison.” As already
stated, the first wound sustained by the victim was enough to prevent
him from running fast and the appellant could have easily recaptured
him. Besides he could not have escaped. For these reasons his fear of
equal or greater injury is unwarranted.

The appellant assails
the accuracy as evidence against him of the statement, Exhibit C. “The
use by the appellant of unintelligible and faulty language, the
probability of inaccurate interpretation by the examiner, the
appellant’s present state of mind and emotional tension at the time his
affidavit was being taken should all be borne in mind,” says his
counsel. Judge Jerome Fakat, Justice of the Peace of Bontoc, before
whom the appellant subscribed and swore the statement, Exhibit C,
testifies that when on 18 February 1956 the appellant came to him with
the statement, Exhibit C, already prepared, he (Judge Fakat) read to
him the questions propounded by the investigating officer and the
appellant’s answers, one by one, in the Bontoc dialect, a dialect which
the appellant understood; that the appellant acknowledged to him the
truth of the answers he had given; that the appellant did not give
indication that he was in doubt as to the meaning and import of his
answers; and that the appellant did not complain to him that he was
under compulsion in giving those answers and in signing his statement.
These statements and obserservations of Judge Fakat, a disinterested
witness with no evil motive to pervert the truth to deprive the
appellant of his life and liberty, render unassailable the conclusion
reached by the trial Court that the appellant’s sworn statement,
Exhibit C, “is more believable than his version on the witness stand
for the former was related when the accused had no chance to concoct or
weave a fanciful yarn.”

The appellant claims the benefit of
four mitigating circumstances, namely, voluntary surrender, having
given himself up to the P.C. authorities for investigation; lack Of
instruction, being unschooled, illiterate and a member of the
non-Christian tribe; passion or obfuscation, engendered by the powerful
impulse of fear of punishment; and lack of intention to commit so grave
a wrong. Of these mitigating circumstances, only the first and the last
may be considered in favor of the appellant. “Not illiteracy alone but
also lack of sufficient intelligence are necessary to invoke the
benefit of the circumstance” of lack of instruction. ^[1]
There is no showing that before the appellant fired the shot that
caused the fatal wound on the victim’s back, the latter had provoked
the former to anger. The fact that after wounding the victim on the
thigh, making it difficult for him to flee, the appellant fired at him
on the back, a shot no longer necessary for his recapture, which under
ordinary circumstances could not be deemed lack of intent to commit so
grave a wrong, still in the spur of the moment he could not have
harbored the intent to kill the prisoner. All he wanted to do was to
stop him to prevent his escape. So the attenuating circumstance of lack
of intent to commit so grave a wrong may be taken into account. There
is, however, no aggravating circumstance to offset the two mitigating
circumstances.

Although the last shot that kilted the victim
was fired at the latter’s back, it cannot be considered done with
treachery to qualify the crime committed by the appellant because the
shots were fired in succession and the appellant had no intent to
employ means, methods or forms in the execution thereof which tended
directly and especially to insure its execution, without risk to
himself arising from the defense which the victim might make. It may be
doubted that he knew that the victim was hit on the thigh.

The crime committed by the appellant is homicide, provided for and punished with reclusion temporal
in article 249 of the Revised Penal Code. In view of the presence of
two attenuating circumstances without any aggravating circumstance to
offset them, in accord with paragraph 5, article 64, of the Revised
Penal Code, prision mayor, the penalty next lower to that
prescribed by law, must be imposed. Pursuant to the Indeterminate
Sentence Law, the minimum penalty that should be imposed is 6 months
and 1 day of prision correctional and the maximum, is 8 years and 1 day of prision mayor and the accessories of the law.

Modified
as hereinabove stated as to penalty to be meted out to the appellant,
the rest of the judgment appealed from is affirmed, with costs against
him.

Bengzon, C. J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, and De Leon, JJ., concur.

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^[1] People vs. Ripas, 95 Phil., 63; People vs. Semañada, 103 Phil., 790.