THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE BALICTAR ALIAS BODO, SOFIO ADA, TITO NALE ALIAS BANDOT AND PEDRO DUARTE, DEFENDANTS-APPELLANTS.

People versus Balictar

The Case

This is People versus Balictar, a criminal appeal from a conviction for murder rendered by the Court of First Instance of Samar, sitting at Laoang. Four men were charged with killing Lucio Lebeco, Senior, with bolos: Jose Balictar, Sofio Ada, Tito Nale and Pedro Duarte. The case matters to a reviewee for three reasons. First, it shows how a dying declaration is tested against the declarant's consciousness of impending death. Second, it shows how the Supreme Court weighs the number of weapons used against the physical evidence of wounds. Third, and most importantly, it is a clean illustration that superiority in number is not the same as abuse of superior strength, so that a killing attended by numerical advantage alone remains homicide and not murder.

Procedural History

The Assistant Provincial Fiscal of Samar filed an information for murder against the four accused. At the outset of the trial, Jose Balictar withdrew his plea of not guilty and, with the approval of the court and without objection from the prosecution, pleaded guilty to the lesser offense of homicide, admitting that he had stabbed the victim to death. He was sentenced accordingly. The trial court also acquitted Sofio Ada on reasonable doubt as to his participation. The case proceeded against Tito Nale and Pedro Duarte, and the trial court convicted them, imposing reclusion perpetua on Duarte and the death penalty on Nale. Duarte appealed, and because the death penalty was imposed on Nale, his case was simultaneously elevated to the Supreme Court on automatic review. The appeal and the review were resolved together.

Facts

In the morning of May 6, 1964, Lucio Lebeco, Senior, his wife Felisa Melindo, and their sons Lucio, Junior and Romy went to Barrio Bañgon, Gamay, Samar, to sell abaca. After selling it, the father and Lucio, Junior went for a stroll and passed by the house of Pantaleon Rebay, where Tito Nale, Pedro Duarte, Sofio Ada and Jose Balictar were drinking Chinese wine. Nale invited the Lebecos to join, and the group moved to the house of Maria Laodeño, where tuba was sold. In the course of the drinking, Lebeco, Senior instructed his son to fetch carabao meat, which Balictar sliced with his knife. Moments later, Nale took the victim's French cap and exchanged it for his own buri hat. Duarte, who had come from another barrio to help make a coffin for a dead friend, excused himself after one glass of tuba.

When the victim prepared to go home, he squatted on the street to wait for Nale, who had his cap. Nale pretended to hand the cap over but withdrew it each time the victim reached for it, at least three times. Balictar teased the victim as a weakling who could not even get his cap back. The victim then threw Nale's buri hat on the cement floor and declared that this would be the time the tough guys of Lomoy and Bañgon would meet. After more heated words, Balictar suddenly snatched the victim's own bolo from his waist and thrust it into his abdomen, then thrust again. The victim, weaponless, picked up a piece of wood to parry the attack. He fled toward the river bank, and it is here that the prosecution and the defense versions diverge.

The prosecution claimed that Duarte, Nale, Balictar and Ada pursued the victim and that, when he was overtaken, Duarte and Nale stabbed him. The defense claimed that only Balictar pursued him, that Nale tried to stop Balictar, and that Duarte was wounded on the forehead by Lucio, Junior and merely defended himself. The sanitary inspector found five stab wounds on the body, and the victim died shortly after giving an ante-mortem statement to the barrio captain. That statement named Bodo, Bandoy Nale and Sofio as the stabbers but did not mention Duarte.

Issues

• Whether or not the ante-mortem statement of the victim is admissible as a dying declaration, given the claim that he was not conscious of an impending death.
• Whether or not the alleged inconsistencies in the testimony of the victim's widow and son destroy their credibility.
• Whether or not Pedro Duarte's participation in the stabbing was proved beyond reasonable doubt.
• Whether or not the aggravating circumstances of evident premeditation and treachery attended the killing.
• Whether or not abuse of superior strength qualified the killing to murder.
• Whether or not the penalty imposed on Tito Nale was correct, in light of his voluntary surrender and the qualifying circumstance of quasi-recidivism.

Applicable Provisions

The decision applies the rule on dying declarations under the Rules of Court, which provides:

The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.

This is the provision through which the victim's ante-mortem statement was admitted against Nale.

The Revised Penal Code defines and penalizes homicide, which provides:

Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

This is the provision under which the crime was ultimately classified once the qualifying circumstances were discarded.

The Revised Penal Code defines quasi-recidivism, which provides:

Any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony.

This is the provision that raised Nale's penalty to its maximum period despite his voluntary surrender.

Ruling

On the first issue, the Court held that the ante-mortem statement was properly received as a dying declaration. The fact that the declarant was moving uneasily, or restless, and that he expired immediately after making the statement more than satisfied the requirement that he was conscious of an impending death. The circumstances cited by the defense, that he was seated, that he scolded the barrio captain, that he was under the influence of liquor, did not overcome that showing.

On the second issue, the Court held that the alleged inconsistencies and contradictions in the testimony of the widow and the son were so minor and inconsequential that they could not negate their evidentiary value, apart from the general rule that credibility is for the trial court to determine.

On the third issue, the Court acquitted Duarte. The ante-mortem statement did not name him among the assailants, and that omission, taken together with the defense claim that he was nursing a wound inflicted by Lucio, Junior, raised a reasonable doubt as to whether he was at the river bank at all. The Court expressly rejected the Solicitor General's contention that more than two weapons were used, and explained the number of weapons in the light of its findings on who was present.

On the fourth issue, the Court held that neither evident premeditation nor treachery attended the killing. There was no showing of a preconceived plan. The killing was an impulse of the moment, arising from the jesting among the victim, Nale and Balictar, and the victim himself created the atmosphere by throwing the buri hat as a dare.

On the fifth issue, the Court held that abuse of superior strength was not established, and this is the heart of the decision. Speaking through Justice Abad Santos, the Court quoted its own doctrine:

Superiority in number does not necessarily mean superiority in strength. It is necessary to prove, besides, that the attackers cooperated in such a way as to secure advantage from superiority of strength.

And again:

The mere fact that the number of the assailants is superior to that of those attacked by them is not sufficient to constitute the aggravating circumstance of abuse of superiority.

Since the qualifying circumstances failed, the crime committed was homicide only, punishable by reclusion temporal.

On the sixth issue, the Court held that Nale's voluntary surrender could not offset the qualifying aggravating circumstance of quasi-recidivism, he having been previously convicted of homicide and being on parole surveillance when he committed the crime, so that the penalty had to be applied in its maximum period.

Doctrine

A dying declaration is admissible where the declarant made it under the consciousness of an impending death; restlessness and immediate death after the statement sufficiently establish that consciousness. Superiority in number is not, by itself, abuse of superior strength; the prosecution must prove that the attackers cooperated in such a way as to secure an advantage from their numerical superiority. Where that circumstance is not proved, the killing is homicide, not murder. Quasi-recidivism is a qualifying aggravating circumstance that compels the imposition of the penalty for the new felony in its maximum period, and it is not offset by an ordinary mitigating circumstance such as voluntary surrender.

Disposition

Pedro Duarte was acquitted on reasonable doubt, while Tito Nale was convicted of homicide and sentenced to an indeterminate penalty of twelve years of prision mayor as minimum to eighteen years of reclusion temporal as maximum, to indemnify the heirs of the victim and to pay a share of the costs.

Remember This

Memorize the line that superiority in number does not necessarily mean superiority in strength, for the attackers must be shown to have cooperated to secure that advantage. Examiners use this case to test abuse of superior strength as a qualifying circumstance, and to test the requisites of a dying declaration.