G.R. No. L-36377. January 30, 1982
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NOEL AGDA AND ROMY GELINA, ACCUSED-APPELLANT.
CONCEPCION, JR., J.:
of Dolores, Province of Eastern Samar, during a drinking party he
attended, Antonio Quitorio was stabbed causing his death a few minutes
later.
As a result, an information charging Noel Agda and Romy Gelina of murder
dated February 24, 1970, was filed with the Court of First Instance of
Samar, Branch VIII, as follows:
“That on or about the 30th day of November, 1969, in the evening,
in the poblacion, municipality of Dolores, province of Eastern Samar,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating together and mutually
helping one another with intent to kill and with evident premeditation
and treachery, did, then and there wilfully, unlawfully and feloniously,
attack, assault strike and stab one ANTONIO QUITORIO, with a blunt
instrument and a sharp bladed weapon, with which the said accused have
conveniently provided himself for the purpose, thereby inflicting upon
the said ANTONIO QUITORIO, stab wounds on his body, which wounds
directly caused his death.“Contrary to law.”[1]
After arraignment, plea of not guilty[2]
and trial, the lower court on its decision dated November 20, 1972,
convicted the accused Noel Agda and Romy Gelina, with dispositive
portion as follows:
“Considering all the foregoing, accused Noel Agda and Romy Gelina,
both as principals, are found guilty beyond reasonable doubt of the
crime of Murder charged against them. Wherefore this Court hereby
imposes upon each of them a penalty of Reclusion Perpetua; to indemnify
the heirs of Antonio Quitorio, deceased, in the amount of P12,000.00; to
pay the costs of this suit and to suffer other accessory penalties
provided by law.“So Ordered.”[3]
Both the accused appealed on December 16, 1971.[4] Acting on appellant Noel Agda’s motion for withdrawal of his appeal, this Court granted the same on July 6, 1981.[5]
The version of the prosecution is:
In the evening of November 30, 1969, at around 9:00 p.m. Victor Almazan
and Paulino Beros went to the house of Toribio Crisologo located at
Tumaginting, Dolores, Eastern Samar, to attend a drinking spree wherein
they were invited. At the ground floor of the said house, Almazan and
Beros saw seated around a table and already drinking Antonio Quitorio,
Roly Eclipse, Joaquin Robin, Placer Afable and Todo Baldonesa.[6] The two joined the group upon invitation by Antonio Quitorio.[7] While the group was drinking, accused Noel Agda and Romy Gelina arrived. Both also joined in the drinking.[8]
After both accused Agda and Gelina drank their second glass of tuba, they asked permission to leave.[9] At that moment, just before the two accused left their seats, witness Victor Almazan went outside the house to urinate.[10]
While Almazan was urinating outside, his attention was attracted by a
noise. Looking towards the direction of the noise, Almazan saw Noel
Agda stab a person who apparently fell on the ground and whom Almazan
did not recognize at that time. He saw Noel Agda run away together with
Romy Gelina.[11]
Immediately after urinating, Almazan rushed to the side of the fallen
person who was then in the act of rising up and proceeding to enter the
door of the house, pressing a hand on his abdomen. Almazan, recognizing
the identity of that person, said – “It is you Mano Tony.” The victim
Antonio Quitorio replied – “Yes, I am stabbed by Noel Agda.”[12]
Before the victim Antonio Quitorio could reach his seat at the table,
and immediately after uttering those words, he fell down on the floor.
Seeing the victim in that condition, those seated around the table
dispersed. Victor Almazan and Paulino Beros attended to the victim.
Then, Almazan ran to fetch Dr. Procopio Necito, Jr. Before the doctor
and Almazan arrived, the victim Antonio Quitorio expired. He died
without moving from the spot where he fell and without uttering any
other word except his last aforequoted statement.[13]
Witness Paulino Beros corroborated the testimony of witness Almazan. He
declared that as soon as the two accused asked permission to leave,
both left the drinking table. When the two accused reached the door,
both tarried a while, and called for the victim Antonio Quitorio.
Antonio also left the table and joined the two accused at the door.[14] Witness Beros saw the three – the two accused and the victim – go outside the house passing through the door.[15]
Beros remained at the table and did not see what happened outside the
house. After the lapse of more than three minutes from the time the
three went out of the house, witness Beros saw the victim Antonio
Quitorio staggering as the latter attempted to reach his seat at the
table, holding a part of his abdomen. Beros heard the victim Antonio
say – “I am stabbed by Noel Agda.” After uttering those words, Antonio
fell to the floor. Thereafter he died.[16]
Both witnesses Almazan and Beros declared that Antonio Quitorio was
already dead when the doctor arrived. A few minutes later, Chief of
Police Jaime Camacho arrived with one policeman.[17]
After a cursory examination of the spot outside the house where the
victim Quitorio was stabbed, the doctor and the Chief of Police directed
that the cadaver be brought to the Puericulture Center for autopsy.
After the autopsy the remains of the victim was brought to his house.[18]
The post mortem examination conducted by Dr. Nacito, Jr. indicates that
the victim Antonio Quitorio suffered a stab wound at the “anterior
abdominal wall” and by a “sharp pointed instrument” as the edges of the
wound were clean.[19] The
victim died of “excessive hemorrhage secondary to abdominal aorta and
intestinal injuries due to stab wound at about 3/4 inch long, located at
about 1 inch above and lateral to the umbilicus, abdomen, left, and
penetrating the abdominal wall.”[20] According to the doctor, the victim also had an injury at the lower lip which may have been caused by a fist blow.[21]
Dr. Nacito Jr. issued the death certificate showing the time of the
infliction of the injury on the victim to be at 10:00 p.m. and death
occured at about 10:30 p.m.[22]
The version of the defense is:
Both of the accused interposed the defense of alibi. They claim that
they arrived at the drinking spree in the house of Toribio Crisologo at
past 6:30 p.m. that evening of November 30, 1969, and they left the
place at around 7:00 p.m. They were not in that place when the victim
Quitorio was stabbed and killed at past 10:00 p.m. After leaving the
house of Toribio Crisologo, the two proceeded to another drinking spree
in the house of Francisco Magro, about 500 meters from the house of
Crisologo, arriving in the house of Magro at about 8:00 p.m. From 8:00
p.m. the two engaged in drinking with Francisco Magro, the latter’s wife
and son until 2:00 a.m. Both accused slept in the house of Magro,
leaving only the following morning.[23]
The lower court’s decision of conviction against the accused Noel Agda
is no longer an issue as appellant Noel Agda was allowed by the Court to
withdraw his appeal.[24]
The issue of credibility of witnesses for the prosecution and the
defense has been decided by the trial court, and no error can be
detected in its ruling. Thus, the trial court, ruled:
“The testimonies of prosecution witnesses Almazan and Beros appear
to be clear and positive, inspite of rigid cross-examination they were
subjected to, and the attempt of defense witnesses to destroy their
credibility. Almazan clearly identified these two accused because he is
acquainted with them, and he affirmed having seen the persons with the
aid of the beam of light coming from within Crisologo’s house. He saw
Noel Agda actually stab the deceased Quitorio, and after which both
perpetrators fled away. In the cases of People vs. Sanchez and People
vs. Del Prado, et al., Nos. L-13335 and L-13336, Nov. 29, 1960, the
Supreme Court said ‘the defense of alibi which is easy to concoct,
cannot prevail over the clear and positive testimonies establishing the
identities of the perpetrators.”[25]
The trial court’s conclusion that treachery is definitely proven in this case can hardly be questioned.[26]
Both accused were the nephews of the victim, and the latter never
suspected that he would be stabbed when he went with the accused outside
the house. The attack was sudden and unexpected, leaving the victim
without any means of defending himself.[27]
As to the liability of appellant Romy Gelina as co-conspirator, the
prosecution, represented by the Solicitor General, and the defense are
in accord with the conclusion that no evidence of conspiracy exists in
this case.[28]
The only incriminating evidence against appellant Romy Gelina are: He
arrived and left the drinking spree together with accused Noel Agda.
Romy Gelina was standing nearby when witness Almazan saw Noel Agda stab
Quitorio. Both Agda and Gelina ran away after the stabbing.[29]
It is not true, as nothing appears in the record, that when appellant
Romy Gelina ran away after the stabbing he was holding a thing that was
“black and looked like a horn.”[30]
There is no evidence of appellant Gelina’s direct participation in the stabbing.[31]
Although no formal agreement is necessary to establish conspiracy and
said conspiracy may be inferred from the circumstances attending the
commission of the crime, yet conspiracy like any other ingredient of the
offense, must be established by clear and convincing evidence. There
must be evidence of intentional participation in the transaction with a
view to the furtherance of the common design and purpose.
The incriminating evidence against appellant Romy Gelina is not
sufficient to establish conspiracy as correctly concluded by both the
prosecution and the defense. Without conspiracy, appellant Romy Gelina
cannot be considered liable as he had no direct participation in the
crime. The presumption of innocence in favor of the appellant has not
been successfully overwhelmed by evidence beyond reasonable doubt to
establish his guilt.
WHEREFORE, and upon recommendation by the Solicitor
General, the decision dated November 20, 1972 in Criminal Case No. 22,
by the Court of First Instance of Eastern Samar, Branch VIII, Oras, is
hereby MODIFIED, REVERSING and SETTING ASIDE the judgment of conviction
against appellant Romy Gelina, and entering another for his ACQUITTAL on
the ground of reasonable doubt, with costs de oficio.
SO ORDERED.
Barredo, (Chairman), Abad Santos, De Castro, Ericta, and Escolin, JJ., concur.
Aquino, J., see attached dissent.
[1] p. 1, Original Record, Criminal Case No. 22, CFI of Eastern Samar, Branch VIII.
[2] p. 5, rollo.
[3] p. 244, Original Record.
[4] p. 247, Id.
[5] p. 110, rollo.
[6] pp. 3-4, 26-27, t.s.n.
[7] pp. 4, 27-28, Id.
[8] pp. 5-6, 28-29, Id.
[9] pp. 6, 29-30, Id.
[10] pp. 6-7, 23, Id.
[11] pp. 7, 16-20, Id.
[12] pp. 7-8, 17-18, Id.
[13] pp. 8-10, 13, 20-21, Id.
[14] pp. 29-31, Id.
[15] p. 31, Id.
[16] pp. 31-35, Id.
[17] pp. 9-10, 13, 34-35, Id.
[18] pp. 10-11, 35-36, 47, Id.
[19] p. 48, Id.
[20] Exh. “A”, p. 5, Original Record; p. 50, t.s.n.
[21] Exh. “B”, p. 4, Original Record; p. 51, t.s.n.
[22] Exh. “B”, p. 4, Original Record; p. 49, t.s.n.
[23] pp. 142, 156-165, t.s.n.
[24] p. 110, rollo.
[25] p. 8, Decision; p. 241, Original Record.
[26] p. 10, Decision; p. 243, Original Record.
[27] p. 10, Appellee’s Brief.
[28] pp. 4-6, Appellants’ Brief; pp. 6-8, Appellee’s Brief.
[29] pp. 5-6, 7, 28-29, 30, 15-16, t.s.n.
[30] p. 7, Appellee’s Brief.
[31] p. 7, Id.
DISSENTING OPINION
AQUINO, J.:
I dissent. In the evening of November 30, 1969, in Barrio Tumagingting,
Dolores, Eastern Samar, Victor Almazan, Jr., 25, an elementary school
teacher, and Paulino Beros, Jr., 26, a radio technician, were drinking
tuba on the ground floor of the house of Toribio Crisologo. Also
present at that party were Antonio Quitorio, 34 (a farmer, Almazan’s
brother-in-law), Rudy Eclipse, Joaquin Robin, Placer Afable and Todo
Baldonesa.
Later, Noel Agda, 19, a student, and Romeo Gelina (first cousins)
arrived and participated in the drinking bout. They were the nephews in
the second degree of Antonio Quitorio (they called him Mano Tony).
Beros testified that after drinking two glasses of tuba, Agda and Gelina
told Quitorio that they were leaving. Almazan also stood up and went
out to urinate in the yard. When Agda and Gelina reached the door, they
stopped. Agda called Quitorio and the three went out of the house
(29-31 tsn). The three emerged on the yard when Almazan was urinating
in that place.
Almazan testified that while urinating he heard a noise and when he
looked towards the place where the sound emanated, he saw Agda stabbing
Quitorio after the latter had fallen on the ground. Gelina was standing
nearby. Then, Agda and Gelina ran away (7, 16). Almazan was only two
to three meters away from the scene of the stabbing (15). The place was
illuminated by the light coming from a hasag (20).
Quitorio was able to rise and reenter the house, followed by Almazan who
asked Quitorio what happened. Quitorio answered that he was stabbed by
Agda. After giving that answer, Quitorio collapsed on the floor (8,
18). He died shortly thereafter. Quitorio had a mortal stab wound in
the abdomen. He had also a wound in the lower lip which contributed to
his death (51 tsn).
It should be noted that, while Almazan in his testimony did not
implicate Gelina in the killing of Quitorio, Almazan in his sworn
statement before the municipal judge three days after the incident said
that when he turned around to ascertain what caused the noise or sound
(hagaltak), which he heard while urinating, he saw “Gelina holding” “a
blunt instrument” (p. 6, Record).
During the preliminary examination, Almazan testified before the
municipal judge that the blunt instrument which Gelina was holding was
“a carabao horn,” “in the form of a bolo but small and pointed” “about
ten inches (long) excluding the handle” (p. 10, Record). That testimony
was the basis for including Gelina in the information as a
co-conspirator of Agda. They waived the second stage of the preliminary
investigation (p. 35, Record).
The trial judge said that, according to Almazan, Gelina was holding a
blunt, black object which looked like a horn (p. 235, Record). Defense
counsel says that that observation is not borne out by the record. But,
as noted above, it is supported by Almazan’s affidavit and testimony
before the municipal judge.
While Agda testified during the trial to plead an alibi, Gelina availed himself of his constitutional right to remain silent.
In my opinion, the record proves beyond doubt that Gelina struck
Quitorio with a carabao horn, thus inflicting upon him the wound in his
lower lip and causing him to fall to the ground. In turn, Agda stabbed
once the prostrate victim.
Agda and Gelina went together to the place where the drinking bout was
held. They left the place together. They were the two persons who were
with Quitorio when he was mortally wounded. It could not be that
Gelina was a mere passive spectator when his first cousin, Agda, stabbed
their uncle, Quitorio. The two were together when they fled from the
scene of the crime.
I vote for the affirmance of the trial court’s judgment imposing reclusion perpetua on Gelina.