THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GREGORIO PACADA, JR., GREGORIO PACADA, SR., AVELINO PACADA AND CESARIO MAUR, ACCUSED, GREGORIO PACADA, JR., AND, AVELINO P…

In a
joint Decision of the Court of First Instance of Oriental Mindoro,
Branch II, Pinamalayan, in Criminal Case No. P-639 for Murder, and in
Criminal Case No. P-640 for Frustrated Murder, both entitled
“People of the Philippines vs. Gregorio Pacada,
Sr., Cesario Maur, Gregorio
Pacada, Jr. and Avelino Pacada,” Gregorio Pacada,
Sr. and Cesario Maur were
acquitted, but Gregorio Pacada, Jr. and Avelino Pacada were convicted of
both charges and sentenced to death for the Murder charge and an indeterminate
prison term for the Frustrated Murder charge.

The prosecution has
narrated the incident involved as follows:

“At about 8:00 o’clock in the evening of September 9, 1974, Alfonsa Patnon was asleep in her
house at Oring, Sta. Maria, Mansalay,
Oriental Mindoro in the company of her son, Romeo Patnon, her daughter-in-law, Ofelia Dris
Patnon, and the latter’s child (pp. 7, 8, t.s.n., Feb. 13, 1975). 
The barking of dogs awakened her, and looking outside through the
window, she saw two persons, running towards their kitchen (p. 9, t.s.n., ibid.).  Alfonsa lighted a lamp and proceeded to the sala to verify who the persons were and she was met by
appellants Avelino Pacada
and Gregorio Pacada, Jr. who suddenly hacked her with
their bolos on the head and other parts of her body (pp. 10, 11, t.s.n., Ibid).  As
she laid prostrate on the floor, her son, Romeo Patnon, came out of their room but he was also met and
hacked by appellants until he fell down (pp. 14, 15, t.s.n.,
Ibid)

“Meanwhile, Romeo’s wife, Ofelia Dris
Patnon, was inside the room, and witnessing what
appellants did to her husband and mother-in-law, she hurriedly picked up her
child, jumped out of the window and ran towards the house of her brother-in-law
Nathaniel Patnon to whom she reported the incident
(pp. 42-48, t.s.n., March 13, 1975).  Nathaniel immediately rushed to his mother’s
place and as he approached the house, he saw through
the window appellants Gregorio Pacada, Jr. and Avelino Pacada hacking somebody
on the floor (pp. 2, 3, t.s.n., March 14, 1975). 
At the same time, he overheard somebody saying, ‘Patayin
na ninyo‘.  He beamed his flashlight towards the place
and saw Gregorio Pacada, Sr. and Cesario
Maor standing at the foot of the stairs some 8 meters
away from him (p. 4, t.s.n., Ibid).  The two chased Nathaniel who, however, was
able to escape.  When Nathaniel and his
relatives whose help he had sought returned to the place later, the assail­ants
were already gone.  They saw Alfonsa and Romeo both critically wounded so they placed
them in hammocks and rushed them to the hospital at Bongabon,
Oriental Mindoro (pp. 7, 8, t.s.n.,
Ibid).

“Romeo Patnon died five minutes
after his arrival at the hospital (p. 11, t.s.n.,
April 4, 1975).  His mother Alfonsa was treated of her hacked wounds on the head and
other parts of her body by Dr. Leovegildo Comia who testified that had it not been for the emergency
surgical treatment administered to her, Alfonsa Patnon would have died (p. 8,
t.s.n., Ibid).  Alfonsa was hospitalized
for two months and spent P1,700.00 for her
hospitalization (p. 24, t.s.n., Feb. 13, 1975).  The body of Romeo Patnon
was autopsied by Municipal Health Officer Belen Cusi Buenconsejo who thereafter prepared the Necropsy Report
Exhi­bit ‘L’ (pp. 7-9, t.s.n., July 16, 1975; Exh. ‘L’, p. 28, rec.).

“It appears that prior to the incident in question, Alfonsa Patnon instituted a land
case in court against Cesario Maor
who is an uncle of the appellants (p. 13, t.s.n.,
Feb. 13, 1975).”^[1]

The PACADA brothers’ defense, on the other hand, is one of denial and alibi.

AVELINO Pacada, 24, a farmer, married,
testified that at the time of the incident, he was at home praying with his
wife, two children, and a visitor; Violeta Gramo, who corroborated his testimony.  Their prayer and bible study lasted for three
hours.  The next day, at about 5:00 A.M., he was likewise at home when
Patrolman Rotao arrived and asked him for the
residence of his brother GREGORIO.  At
the patrolman’s instance, together they went to GREGORIO’s
house.

For his part, GREGORIO Pacada, 22, a
farmer, single, narrated that on September
9, 1974, at 8:00 P.M., he
was at home with his father, mother, brothers and sister.  He did not leave the house that night.  The following morning, his
brother AVELINO, Pat. Rotao and another
individual fetched him at his (GREGORIO’s) house and
together, they all went to the house of the Barrio Captain where Ofelia Dris was present and was asked to identify him and his
brother as the assailants but Ofelia remained silent.  He and his, brother were
then taken to the Municipal
Building where they were
incarcerated for a week as the alleged authors of the crime and
investigated.  Thereafter, they were
taken to the hospital where one of the victims, Alfonso Patnon,
was confined.  A photograph was taken showing Alfonso
lying in bed and pointing to them as the culprits (Exhibit “B”).  GREGORIO, however
maintained that Alfonsa was able to raise her hand to
point at him and his brother because her son Nathaniel, held her arm and pointed
it towards their direction.

After assessing the evidence the Trial Court rendered judgment es follows:

“WHEREFORE, accused Gregorio Pacada,
Sr. is hereby acquitted for insufficiency of evidence while accused.  Cesario Maur is likewise acquitted on the ground of reason­able
doubt in both cases, and are therefore ordered imme­diately released:  Gregorio Pacada,
Jr. and Avelino Pacada are,
however, found guilty beyond reasonable doubt of the crime of murder as defined
and penalized in Section 248 of the Revised Penal Code as principals by direct
participation, with the qualifying circumstances of treachery and evident
premeditation and the attendant aggravating circumstances of nocturnity and dwelling, without any miti­gating
circumstance, so that they should be as they are hereby sentenced to suffer the
capital punishment of DEATH and to indemnify the heirs of Romeo Patnon in the sum of P12,000.00, without subsidiary
imprisonment in case of Insolvency, in view
of the nature of the principal penalty.

“Both accused Gregorio Pacada, Jr.
and Avelino Pacada are also
found guilty beyond reasonable doubt of the crime of frustrated murder as
defined and penalized in Article 248 of the Revised Penal Code in relation to
Article 50 of the same Code, with the qualifying circumstances of treachery and
evident premeditation and aggravated by the circumstances of nocturnity and dwelling, with no mitigating circumstance,
so they are accordingly sentenced to suffer the penalty of TWELVE (12) YEARS,
of prision mayor, as to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of reclusion temporal as maximum; and to indemnify the offended party, Alfonsa Patnon, in the amount of
P6,000.00, without subsidiary imprisonment in case of in­solvency.  They are entitled to the full credit of their
preventive imprisonment and are hereby condemned to pay the proportionate costs
in both cases.

IT IS SO ORDERED.”^[2]

Appellants now assign the following errors:

I.

“The Trial Court erred in believing the evidence for .the
prosecution, especially with respect to the identification of the
defendants-appellants.

II.

“The Trial Court erred in not believing the defense of alibi
of the defendants-appellants.

III.

“The Trial Court erred in finding the defendants?appellants
guilty beyond reasonable doubt of the crime of murder and frustrated murder.

IV.

“The Trial Court erred in sentencing the defendants-
appellants to the supreme penalty of death.”

Upon review of the
evidence, we find that the three (3) prose­cution witnesses, namely, Alfonsa Patnon, the first victim
attacked, Ofelia Dris, her daughter-in-law, and
Nathaniel Patnon, her son, positive­ly and
satisfactorily identified appellants as the culprits.

Alfonsa, who lived to tell her tale, testified that
she was in the sala of her house to verify the
identity of the two persons whom she saw running towards their kitcken when she was suddenly hacked by appellants on her
head and on different parts of her body severing a portion of her thumb; that
while she lay prostrate on the floor, appel­lants also attacked with their
bolos her son, Romeo, who came out of the room to help her.  She could identify appellants as she had
known them for approximately seven (7) years and the sala
was illuminated be­cause of the lamp she had lit.

Ofelia Dris Patnon, Romeo’s wife,
awakened by the destruction of part of the buri walls
of the house, also recognized appellants hack­ing her mother-in-law, Alfonsa, and later, her husband, Romeo, and terrified, she
jumped out of the window approximately four feet from the ground (Exhibit
“E”) to call for help from her brothers-in-law Nathaniel and
Abraham whose houses were nearby.

Nathaniel
and Abraham Patnon, respondend
immediately.  As they approached their mother’s house,
Nathaniel even saw appellants through the open window of the house hacking
someone on the floor.

Alfonsa, Ofelia, and Nathaniel Patnon
knew appellants even before the incident, Alfonsa for
seven years, Ofelia for three years.  Alfonsa and Ofelia knew the Pacada
house to be on the other side of the mountain and Alfonsa
and Ofelia used to pass by the Pacada place.  Appellant, AVELINO, himself testified that
his house was approximately half a kilo­meter from Alfonsa’s;
that he knew Alfonsa and her son Romeo for ten years,
and that when they (the Pacadas) started to reside in
the vicinity, Alfonsa’s family was already residing
thereat.  Thus, Alfonsa,
Ofelia and Nathaniel could not have been mistaken in their identification of
appellants.  Pat. Rotao’s
testimony that Ofelia remained silent when he asked her to finger appellants is
contradicted by his earlier testimony that when he had interviewed her she said
that the members of the PACADA family were the culprits.^[3]

GREGORIO’s testimony that Alfonsa’s
hand was merely held by her son Nathaniel when she pointed to appellants
in the hospital is belied by the photograph taken at the time (Exhibit
“B”).  On rebuttal, Alfonsa also denied that imputation.

While it may be that the
lower Court disbelieved Alfonsa Patnon’s
identification of accused Cesario Maur,
who was acquitted, it does not follow that the Court should have discredited
her entire testimony under the principle of falsus in
uno falsus in
omnibus”.  Suffice it to state that
the rule is not an absolute one, and it is perfectly reasonable to believe the, testimony of a witness with respect to some facts and
disbelieve it with respect to other facts.^[4] The rule is not mandatory but permissive and the Courts may or may not draw the
inference depending on the circumstances^[5], such as, the corroborative evidence, the
pro­babilities and improbabilities of the case, the general character of the
witness, his manner and demeanor on the stand, his intelligence and means of
knowledge, and his willingness to speak the truth.^[6]
In fact, in respect of Alfonsa Patnon’s
and Ofelia Dris‘ credibility, the Trial Court
assessed their testimony thus:

“x x x the
direct participation of accused Gregorio Pacada, Jr, and Avelino Pacada has been sufficiently ventilated by the testimonies
of the victim herself, Alfonsa Patnon,
and that of Ofelia Dris, both of whom saw and
witnessed both incidents.  Their
testimony is almost flaw­less in important details and the Court is convinced
from their demeanor while testifying that they were telling the truth, so that
it is inevitable that they should be as they are hereby found guilty as charged
in the informa­tion for murder and frustrated murder by direct parti­cipation,
x x x’^[7]

It is likewise
significant that early in the morning of the day after the incident the police
already invited appellants for questioning. 
That circumstance lends veracity to Abraham Patnon’s
testimony that his brother Romeo, as he lay wounded after the assault, revealed to him that
the PACADA brothers were the authors of
the crime.^[8] That dis­closure was in the nature of a
dying declaration.  Thus, it was in the
same evening of the incident that Nathaniel informed the Barrio Captain^[9], and the next morning Pat. Eleazer Rotao^[10], of the iden­tity of the perpetrators, so much so that when the Chief of Police released
appellants from detention on the alleged ground that proof against them was
insufficient, Nathaniel forthrightly sought help from the Provincial Fiscal^[11],
who thereupon asked the CIS through Agent Bernardo C. Esquilona,
to conduct the investigation and who thereafter took appel­lants to custody on
September 20, 1974.  These actuations
negate the defense contention that it
was merely “suspicion” that led to the “incarceration” of
appellants and resulted in their “identification” and event­ual
“conviction”.

Appellants’ defense of alibi must fail as it is overturned by
their positive identification by prosecution witnesses, who had known them for
several years.  Moreover, the governing
rule is that it is not enough to prove that the accused were somewhere else
when the crime was committed but it must likewise be demonstrated that it was
physically impossible for them to have been at the scene of the crime at the
time of its commission.^[12]  The evidence discloses that appellant’s homes
wherein they allegedly were during the incident, were only one kilometer away
in so far as GREGORIO was concerned, and half a kilometer away as to AVELINO,
from the crime scene.^[13]

Contrary to their contention, appellants were not without motive
for the killing.  In 1973, Alfonsa Patnon had filed Civil
Case No. R­292 against Cesario Maur,
appellants’ uncle, for the recovery of a parcel of land of 22 hectares, and the
incident involved occurred three days before the scheduled date of the hearing.^[14]
The Patnons were in actual possession of the land and
were cultivating it as early as 1952^[15]
but the Pacadas took possession of the land^[16]
and Cesario Maur erected a
house thereon.^[17]
And at one instance, Alfonsa had stopped the Pacadas from cutting her bananas on the disputed property. 
But even in the absence of a known motive, the time-honored rule is that
motive is not essential to convict when there is no doubt as to the identity of
the culprit.^[18]

In fine, the conclusion we draw from the evidence is that
appellants’ identity and guilt have been proven to a moral certitude.

The Trial Court correctly categorized the crimes as Murder and
Frustrated Murder.  True, evident
premeditation was not attendant, absent proof of the following elements:  (1) the time when the offender deter­mined’
to commit the crime; (2) an act manifestly indicating that the culprit had
clung to its determination; and (3) sufficient time elapsed between the
determination and the execution to, allow him to reflect upon the consequences
of his act.^[19]

However, treachery has to be taken into account since the attack
by appellants against the victims was sudden and unexpected in such a manner
that there was no risk to themselves arising from the
defense the victims might put up.^[20]
Alfonsa Patnon and her son,
Romeo Patnon, were totally unprepared for the
surprise assault.  Barely had Alfonsa lighted the lamp in the sala
when she was hacked by appellants. 
Romeo, roused from his sleep, unarmed and unaware, was next pounced upon
by them as he went out of his room. 
Thus, treachery, which was alleged in the Information and duly proved,
qualifies the crimes to Murder and Frustrated Murder.

Only the generic aggravating circumstance of dwelling may be
appreciated.  Nocturnity
is inherent in treachery and cannot be separately considered.^[21]

The crime in Criminal Case No. P-639 is
Murder, qualified by treachery, and attended by the aggravating circumstance of
dwelling.  With no mitigating
circumstance to off set the same, the maximum penalty provided in Article 248
of the Revised Penal Code is imposable upon each of the appellants.  However, for lack of the required number of
votes to impose the capital punishment, the penalty should be commuted to reclusion
perpetua. 
The indemnification to be paid for the death of the victim should be
increased to P30,000.00.^[22]

As recommended by the Solicitor General, the Court has opted to
reduce the penalty for the crime of Frustrated Murder for being too high.

WHEREFORE, the judgment under review is hereby MODIFIED in
that (1) in Criminal Case No.
P-639 for Murder, the penalty is reduced to
reclusion perpetua, and the
indemnity for the death of the victim increased to P30,000.00;
and (2) in Criminal Case No. P-640 for Frustrated Murder, the penalty is
reduced to eight (8) years and one (1) day of prision
mayor, as minimum, to fourteen (14) years, eight (8)months and one (1)
day of reclusion temporal, as maximum.

Costs against appellants.

SO ORDERED.

Teehankee, C.J., Abad
Santos, Feria, Yap, Fernan,
Narvasa, Alampay,
Gutierrez, Jr., Cruz, and Paras, JJ., concur.

^[1]
Brief for the Appellee, pp. 3-5.

^[2]
pp. 231-232, Rollo.

^[3]
T.s.n., July
30, 1975, p. 7.

^[4]
People vs. Dasig, 93 Phil.
618 (1953).

^[5]
People vs. Dasig, supra.

^[6]
People vs. Tabadero, 115
SCRA 756 (1982); People vs. Pacabes, 137 SCRA
158 (1985).

^[7]
p. 230, Rollo.

^[8]
T.s.n., April
4, 1975, pp. 8-9.

^[9]
T.s.n., March
14, 1975, p. 32.

^[10]
Ibid., p. 8.

^[11]
ibid., p. 13.

^[12]
People vs. Dalusag, 133 SCRA
15 (1984); People vs. Rosario, 134 SCRA 496 (1985).

^[13]
T.s.n., September
18, 1975, p. 10; December
17, 1975, p. 27.

^[14]
T.s.n., March 13, 1975, p. 33.

^[15]
T.s.n., February
13, 1975, p. 36.

^[16]
ibid., p. 34.

^[17]
T.s.n., September
17, 1975, p. 23.

^[18]
People vs. Almeda, 124 SCRA
486 (1983); People vs. Beltran, 137 SCRA 508 (1985).

^[19]
People vs. Lorenzo, 132 SCRA 17 (1984); People vs.
Daniel, 136 SCRA 92 (1985).

^[20]
People vs. Tirol, 102 SCRA 558
(1981); People vs. Moral, 132 SCRA 474 (1984); People vs.
Beltran, 137 SCRA 508 (1985).

^[21]
People vs. Gueron, 121 SCRA
115 (1983); People vs. Balane, 123 SCRA 614
(1983).

^[22]
People vs. Yurong, 133 SCRA
26 (1984).