THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FLLEMON CUTUEA, DEFENDANT-APPELLANT.

Before the Court of First Instance of Bohol Guillermo Cuevas, Emilio
Parilla, Rufino Orillosa, Santiago Jusay, Cesario Sarigumba, Pedro
Marapao, Moises Ticong, Filemon Cutura, Guillermo Patayan, John Doe and
Richard Doe were charged with the crime of murder committed on the
person of one Jesus Cimafranca. Upon motion of the provincial fiscal,
the accused Cesario Sarigumba, Moises Ticong and Pedro Marapao were
discharged from the information in order that they may be utilized as
government witnesses. Thereupon, Guillermo Cuevas, Emilio Parilla,
Rufino Orillosa, Santiago Jusay and Filemon Cutura were arraigned and
entered a plea of not guilty. After their arraignment, the provincial
fiscal moved for the dismissal of the case with respect to accused
Guillermo Patayan, John Doe and Richard Doe who were still at large,
which motion was granted by the court.

After trial, the court rendered judgment finding the accused Filemon
Cutura and Rufino Orillosa guilty of the crime charged, with the
mitigating circumstance of obfuscation, and sentenced each of them to
suffer an indeterminate penalty of 10 years and 1 day of prison mayor to 17 years 4 months and 1 day of reclusion temporal,
and to pay one-eleventh (1/11) of the costs. They were also sentenced
to indemnify, jointly and severally, the heirs of the deceased in the
amount of P6,000.00, without subsidiary imprisonment in case of
insolvency. Guillermo Cuevas, Emilio Parilla and Santiago Jusay were
acquitted, with costs de oficio.

Of the two accused who were found guilty, only Filemon Cutura
appealed to the Court of Appeals, but in a resolution entered on
January 29, 1957, the latter court, considering that the mitigating
circumstance of obfuscation is not supported by the evidence, certified
the case to this Court upon the theory that the imposable penalty upon
appellant is reclusion perpetua which comes under the jurisdiction of this Court.

In the evening of December 11, 1944 a benefit dance was held under
the auspices of certain guerrilla organizations in barrio Bahugan,
Dimiao, Bohol. The dance was held in honor of the soldiers of the
guerrilla forces that were stationed in that place. While the dance was
going on, a , quarrel arose between one Siding and Jesus Cimafranca in
i the course of which the latter fired his gun. Having been apprised of
the trouble, Lt. Parilla, a detachment commander, and Lt. Cuevas
intervened so that peace may be restored and the dance may proceed.
While the two officers were trying to pacify the parties the carbine of
Cimafranca fired whereupon Lt. Parilla rushed towards him and taking
the carbine gave it to one soldier for safekeeping. Lt. Parilla
promised to return the carbine to Cimafranca the following morning.

In the morning of the following day, while Lt. Parilla and some
soldiers were in the vicinity of the chapel of Bahugan, Cimafranca
appeared and asked Lt. Parilla to return him his gun. Lt. Parilla told
him to wait, but instead of obeying him, Cimafranca grabbed the gun and
said, “Who is brave? Alright you face me now.” Because of this
incident, the people coming from the chapel scampered away. Cimafranca
fired the gun once in the air and tried to point it at Lt. Parilla who
sought cover behind his father Emiliano Cimafranca, Having been
pacified by his father, Jesus Cimafranca left the place while Lt.
Parilla went to his station in the barrio of Cambayaon, four
kilometers from the place of the incident.

On December 13, 1944, Lt. Cuevas ordered some members of his
detachment to apprehend Jesus Cimafranca who was then supposed to be
near the municipal building of Dimiao, Bohol, but when they went to
that place Cimafranca was not to be found and so they proceeded to look
for him at a place where there was posted a volunteer guard from whom
they inquired about the whereabouts of Cimafranca, and upon being
informed that he was in the house of one Saturnina Yecyec in the barrio
of Canduaw, they proceeded to said house. Parilia’s men divided
themselves into two groups some of them staying at the left and the
rest at the right with the agreement that when Parilla whistle the men
will start firing into the air. Upon reaching near the house, Parilla
called for Cimafranca but nobody answered and so Parilla whistled and
his men started firing in the air. After hearing the shots, Cimafranca
came down the house and gave himself up. The group then proceeded to
Dimiao taking with them Cimafranca with his hands hogtied. He was
brought to the headquarters of Lt. Cuevas. Upon seeing him, Lt. Cuevas
told him that he would pay for what he did, and after uttering this
admonition, his men began assaulting Cimafranca. Pedro Marapao gave him
several fist blows. Filemon Cutura hit him on the head with a big piece
of wood thereby causing him to fall to the ground. Then he was struck
on the head by Crispin Carbonera with a piece of iron, and while lying
prostrate he was stabbed on the abdomen with a bolo by Rufino Orillosa.
As a result of the injuries inflicted on him, Cimafranca died. He was
buried in a nearby place. When his body was exhumed it was identified
by his mother to be that of her son Jesus Cimafranca.

From the testimony of Dr. Andres Lawengco who examined the body of
the deceased the trial court found that the skull of the deceased had a
broken portion which could have been caused by a blow with a piece of
wood. According to Dr. Lawengco, this fracture was sufficient to cause
the death of the victim.

There is no dispute that as a result of certain incidents that had
taken place between Jesus Cimafranca and some soldiers of the guerrilla
forces stationed in Dimiao, Bohol, he was arrested under the authority
of the commander of said forces in the morning of December 13, 1944,
and upon being brought before Lt. Guillermo Cuevas he was manhandled
and tortured and as a result of the injuries inflicted on him he died
on the very same occasion. The only question to be determined is
whether or not appellant Filemon Cutura actually participated in the
assault which culminated in the victim’s death and if he did what is
the extent of his criminal responsibility.

After a careful review of the evidence, the Court is satisfied that
appellant actually participated in the assault which resulted in the
victim’s immediate death. To this effect no less than six witnesses
testified who pointed to him as the one who hit the accused on the head
with a big piece of wood. These witnesses are Pedro Marapao, Cesario
Sarigumba; Domingo Balasa, Leonor Dellosa, Moises Ticong and Severino
Bangalao. These witnesses could not have been mistaken in their
identification not only because they were all present on the occasion
of the assault but because appellant is well-known to them.

Counsel for the defense, however, makes an attempt to weaken the
testimony of Pedro Marapao, Cesario Sarigumba, Moises Ticong and Leonor
Dellosa by pointing out certain variance in their declarations because,
while Pedro Marapao stated that appellant hit Cimafranca on the head,
Sarigumba said that he was hit in both lower cheeks and head, and at
the left and right portions of the face, whereas Ticong and Dellosa
were not able to mention on what part of Cimafranca’s body the blow of
appellant landed. But we consider this variance inconsequential
because, aside from the fact that the assault was effected by several
persons at the same time which may have accounted for the alleged
discrepancy, it appears clear that appellant Cutura actually hit the
deceased with a big piece of wood thus contributing to his immediate
death.

It is true that Marapao, Sarigumba and Ticong were formerly
co-accused of appellant who were later discharged to be utilized as
government witnesses, but this circumstance alone cannot nullify their
testimony if they are otherwise found credible by the trial court.
Moreover, while the testimony of said witnesses should be taken with
caution, there is no reason why it cannot be given credence it
appearing that the same appears corroborated by other eyewitnesses such
as Leonor Dellosa, Domingo Balasa and Severino Bangalao who likewise
declared that appellant actually assaulted the deceased.

The claim of appellant that he has not in any way taken part in the
assault because it was Cesario Sarigumba who hit the deceased with a
piece of wood and Pedro Marapao who stabbed him on the abdomen is of no
avail for it appears contradicted by six eyewitnesses who pointed to
him as one of the aggressors. It is noteworthy that in his attempt at
his own exculpation no mention was made by him of the participation of
his co-accused Rufino Orillosa thereby indirectly relieving him from
liability, which attempt failed when Rufino Orillosa took in good grace
his conviction by not appealing from the decision. This is an
indication of the character of appellant who in his desire to exculpate
himself would have no compunction in distorting the truth.

The trial court after evaluating the evidence reached the conclusion
that the attack on the deceased is not the result of conspiracy or of a
preconceived plan hatched by the accused and for that reason gave the
opinion that their liability can only be considered in the light of
their individual participation and not of a common criminal design.
While we agree that the existence of conspiracy does not necessarily
require that there be a previous agreement to commit a crime because
such may be inferred from the manner and circumstances surrounding its
commission, we consider it unnecessary to dwell on this matter, for
even in its absence we may conclude that appellant is responsible for
the death of Jesus Cimafranca. It is a matter that appears clear in the
record that appellant hit Cimafranca on the head with a big piece of
wood which has contributed to his death. The blow inflicted by
appellant may not have been mortal, but it certainly accelerated the
death of the victim. It is not necessary that each of the separate
injuries be necessarily fatal in itself. It is sufficient if they
cooperated in bringing about his death or contributed mortally thereto.
(U.S. vs. Rodriguez, 23 Phil., 22; U.S. vs. Abiog, 37 Phil., 140.)

The defense claims that the trial court erred in not considering in
favor of appellant the benefit of Amnesty Proclamation No. 8, series of
1946, because the deceased was assaulted in pursuance of the resistance
movement in which 5 appellant and his co-accused were then engaged in
the province of Bohol. It appears that this claim has already been
presented before the Amnesty Guerrilla Commission that has
jurisdiction over the case but that it was rejected be cause it was
found that the aggression was the result of personal strife and not the
hostile activities of the deceased. The trial court made the same
finding in its decision. Indeed, it appears that the quarrel between
Cimafranca and the men who arrested him has as its root the incident
Cimafranca had between him and one Siding as a result of which his
officers intervened but who were all defied and disobeyed. There is not
a scintilla of evidence showing that his arrest was due to activities
inimical to the resistance movement.

We find, however, that the trial court erred in consideiing in favor
of the accused the mitigating circumstance of obfuscation for the
record is barren of any evidence to support it. It must be remembered
that when Cimafranca was arrested and brought to the headquarters of
Lt. Cuevas with both hands tied, he was immediately taken before said
lieutenant who then and there made the admonition that the time has
come for him to pay for what he had done. Cimafranca did not utter a
word, and yet simply induced by such admonition appellant and his
co-accused jumped upon him and inflicted the injuries that killed him.
There really appears no justification for concluding that appellant
participated in the assault prompted by passion and obfuscation as
found by the trial court. There being no modifying circumstance to
consider in favor or against the accused, the proper penalty to be
imposed under Article 248 of the Revised Penal Code is reclusion
perpetua. The penalty imposed by the trial court, therefore, should be
modified accordingly.

WHEREFORE, modified as above indicated, the decision appealed from
is affirmed in all other respects, with costs against appellant.

Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Paredes, Dizon, and De Leon, JJ., concur.