G.R. No. L-31102. May 05, 1979
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FELIPE DUEÑO, ALIAS FELIPE CATALAN, SOFRONIO DUEÑO AND ANDRESITO BELONIO ALIAS HAPON, DEFENDANTS-APPELLANTS.
SANTOS, J.:
This is an appeal interposed on April 22, 1969 by the above-named
three defendants from a decision of the Court of First Instance of Capiz, 11th Judicial District, Roxas
City, Hon. Judge Jose A. Aligaen, presiding, in
Criminal Case No. 3771 for murder, finding them guilty as charged and imposing
upon them the penalty of life imprisonment or reclusion perpetua with all accessory penalties and to
pay, jointly and severally, the heirs of
the victim the amount of Six Thousand Pesos (P6,000.00).[1]
It appears that on November
27, 1963, the Provincial Fiscal of Capiz
filed an Information for murder against the three accused thus ?
“That on or about the 21st day of January, 1963, in the municipality
of Maayon, province of Capiz,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, all armed with pistol, revolver and fighting bolo, conspiring,
confederating and helping on another, with evident premeditation and treachery,
did then and there wilfully, unlawfully and
feloniously shoot and hit one Bernardo Demontaño,
thereby inflicting upon the latter a “bullet wound passing through the
body, entering the left costal arch mammary line and passing out of the
right-mid-infra clavicular lines, which resulted in
the instantaneous death of the said Bernardo Demontaño;
that due to the death of the said Bernardo Demontaño
and the consequent loss of his earning capacity, (the deceased having no
permanent physical disability at the time of his death), his heirs have
suffered damages in the sum of P8,000.00 in consonance with the provision of
Article 2206 of the New Civil Code.
“Contrary to law.”[2]
Upon arraignment on June 13, and July 25, 1964 all of the accused pleaded not guilty. At the trial, the prosecution presented its
evidence ? consisting of the testimonies of Dra.
Teresa C. Andrada, Federico Dolfo,
Roque Dellomos and Sgts. Ramon Espeleta and Fidel Soberano and Exhibit A ? before Judge Ignacio Debuque.[3]
Thereafter, the sala became vacant for four
years. It was only in 1968 that the
defense presented its evidence ? consisting of the testimonies of Herminda del Rosario, Federico Bitoon
and the three accused ? before the Hon. Judge Jose Aligaen,
who rendered judgment on March 24, 1969 convicting all the accused.[4]
The appeal was directed to the Court of Appeals, but, in view of
the penalty involved, the records were forwarded to this Court on October 4, 1969.[5]
On January 2, 1977, and May 8, 1978 ? after the case had
been submitted for decision on February
1, 1972 ? appellants Felipe Dueño
and Sofronio Dueño,
respectively, withdrew their appeals.
These withdrawals were allowed in resolutions dated January 2, 1977 and June 28, 1978.[6]
Hence, only the appeal of accused-appellant Andresito
Belonio is under review in this decision.
The evidence for the prosecution and the defense, as correctly
synthesized by the Solicitor General in the People’s brief[7]
– are as follow
“At about five
thirty o’clock in the afternoon of January 21, 1963, while Roque
Dellomos was on his way to the hacienda of the
Central Azucarera del Pilar,
at Maayon, Capiz, he met
the three accused Felipe Dueño, Sofronio
Dueño and Andresito Belonio near the house of Federico Dolfo
(p. 101, t.s.n., Dec. 10, 1964, Dellomos). Upon seeing Roque Dellomos, Felipe Dueño fired
a shot at Dellomos from a Caliber .45 pistol he had
at the time (p. 102, Id.). Roque Dellomos immediately ran
away and while running he heard a second shot fired from the gun of the said
accused. (p.106, Id.).
“In the evening of that day, January 21, 1963, at about past
9:00 o’clock just after Roque Dellomos
and Bernardo Demontaño, a nephew of the former, had
taken their supper at Dellomos house in Balighot, Maayon, Capiz, Bernardo Demontaño opened
the door of the house preparatory to going down. (p. 113, t.s.n.,
Dec. 10, 1964, Dellomos). At that moment, Roque
Dellomos, who was fixing the plates they used in
eating heard a shot from a gun and at the same time heard his nephew Bernardo Demontaño fall from the stairs of the house (p. 113, Id.). Dellomos immediately
got his flashlight and blew out the light from his lamp on the table where
they ate. (Id.)
“He went towards the door where his nephew fell and focused
his flashlight outside his house while his body was behind the bayong full of palay
beside the door and peeped from a hole on their wall. (p. 112, t.s.n.,
Dec. 11, 1964, Dellomos). He saw the accused Felipe Dueño
with a gun in hand which was fired but missed him. He also saw the two accused, named Sofronio Dueño with a gun in hand
and accused Andresito Belonio
with a bolo in hand. (pp. 113, 114 and
117, t.s.n., Dec.
10, 1964, Dellomos).
“When the three accused left the house of Roque
Dellomos, the latter verified what happened to his
nephew Bernardo Demontaño and he saw his dead body
downstairs of his house just in line with the eves of the roof. (p. 129, t.s.n.,
Dec. 10, 1964, Dellomos).
“The next morning, Roque Dellomos reported the incident to the municipal authorities
of Maayon, Capiz (p. 130, Id.);
Dr. Teresa Capote-Andrada, the Rural Health Physician
of Maayon examined the body of the deceased Bernardo Demontaño (p. 25, t.s.n., Aug. 7,
1964, Andrada) and found gun shot wounds which caused
his death instantaneously. (Exh. “A”).
“On that same night of January
21, 1963, one Federico Dolfo, a neighbor
of Roque Dellomos, while
the former was preparing the milk of his infant child in their house, he heard
two gun shots from the direction of the house of Roque
Dellomos. (p.
61, t.s.n., Nov. 4, 1964, Dolfo). Having been almost also a victim of the
attack by the accused that same afternoon with Roque Dellomos, he thought that it might be the accused attacking
Roque Dellomos, his
neighbor, so he got his flashlight and his bolo and went down his house and hid
himself from the banana plantations infront of his
house near the barrio trail. (p. 61, t.s.n., Nov. 4, 1964, Dolfo). While thus hiding, he heard noises of persons
passing the trail near him and when he saw persons running by that trail, which
was about five meters from where he was, he lighted his flashlight and focused
it on the persons running and recognized them to be accused Felipe Dueño, Sofronio Dueño and Andresito Belonio. (p. 64, t.s.n.,
Nov. 4, 1964, Dolfo).
“Appellants relied on alibi as their common defense.
“That on or about the same time that the crime for which they
were convicted was committed, appellant Sofronio Dueño and Andresito Belonio were at the house of Herminea
del Rosario at Barrio Guba, Pontevedra,
Capiz (p. 238, t.s.n., July
12, 1968). Appellants tried to support
their alibi with the testimony of Herminia del
Rosario of Barrio Guba, Pontevedra,
Capiz.
“Appellant Felipe Dueño alleged
that at the time the crime was allegedly committed he was in Barrio Hipona, Pontevedra, Capiz, having slept in the evening of January 21, 1963 at
the house of Federico Bito-on at Barrio Hipona, Pontevedra, Capiz. Federico Bito-on
corroborated such testimony of the appellant.
(p. 286, t.s.n., Sept. 17, 1968, Dueño).”
The trial Court — after considering the prosecution evidence and
the alibi put up by the three accused — found as the motive for the commission
of the offense that the three accused were angry at Roque
Dellomos and Federico Dolfo
because the latter returned the stolen carabao to its
owner in Malagit, Pontevedra. The stolen carabao
was left by Felipe Dueño in the care of his father-in-law. The deceased Bernardo Demontaño
was mistaken for Roque Dellomos. It further found that the three accused
conspired in committing the offense, as shown “by the fact that in all
incidents of their criminal adventure they were always together. Even in their gayest moment while drinking
tuba in the house of their principal witness, Mrs. Herminda
del Rosario, they were together.” The defense of alibi was considered very
weak, since “(t)he distance of the alleged hideouts of the three accused
in the town of Pontevedra to the town of Maayon, the seat of the crime, is not very far. Maayon, was
formerly a barrio of the town of Pontevedra
and a good road now running vast sugarcane plantations, connects the two towns
which are very accessible to each other by trucks, jeeps and automobiles. The crime took place at about nine o’clock in the evening. One can be catching fish or doing carpentry
work in Pontevedra during daytime and commit murder
in Maayon in the evening.” After weighing the
evidence, the trial Court found the three defendants — Felipe Dueño, Sofronio Dueño and Andresito Belonio — “guilty beyond reasonable doubt of the crime
of murder with the qualifying circumstances of treachery and evident
premeditation, with the aggravating circumstance of nighttime to facilitate its
commission,” and imposed “life imprisonment or reclusion perpetua with all necessary penalties attached to
it; to pay jointly severally the heirs of Bernardo Demontaño
the amount of six thousand (pesos) x x x with costs.”[8]
Accused-appellants in
this appeal seek the review and reversal of the decision alleging that the
lower Court erred —
I . .
. IN FINDING, ON THE BASIS OF THE INCREDIBLE TESTIMONIES OF DELLOMOS AND DOLFO, THAT
APPELLANTS SHOT BERNARDO DEMONTAÑO IN THE EVENING OF
JANUARY 21, 1963.
II . . . IN FINDING THAT THERE WAS A SUFFICIENT
MOTIVE FOR APPELLANTS TO COMMIT THE MURDER OF WHICH THEY STAND CHARGED.
III . . . IN NOT GIVING CREDENCE TO APPELLANTS’
DEFENSE OF ALIBI.[9]
Appellants’ counsel[10] undertook with notable zeal a detailed and
painstaking scrutiny of the testimonies of the prosecution witnesses and now
argue in support of the assigned errors as follows:
1. On the alleged
incredibility of the testimonies. That
the declarations of Roque Dellomos
and Federico Dolfo — who witnessed the incident in
the afternoon and identified the defendants as the ones responsible for the
death of the victim Bernardo Demontaño in the evening — “are so inherently improbable as not to be credible”;[11]
that Dellomos‘ act of extinguishing the kerosene lamp
and immediately switching on his flashlight is illogical;[12] that Dellomos‘
testimony that he focused his flashlight for three (3) minutes runs
counter to the natural reaction of a person who had just been fired upon;[13] that Dolfo’s testimony
that he recognized the three accused after focusing his flashlight on them is
also incredible since he also admitted that he went behind some banana trees for his own safety;[14] that if Dolfo’s
testimony were true, appellants would have stopped to investigate the person
who flashed the light on them.[15]
2. On the insufficiency
of motive. That the motive as
found by the trial court has no factual basis for “if it is true that
Felipe (Dueño) stole the carabao,
he would not have kept it in Bo. Balighot, in the
yard of his father-in-law, but would have brought it somewhere else.[16]
And,
3. On the alibi. That it is unfortunate that the lower court
rejected the alibi which was coroborated by witnesses
who had no reason to lie.[17]
And now to consider the merits of the foregoing assigned errors
and the arguments in support thereof.
1. Appellants’ contention
that the testimonies of the eyewitnesses Dellomos and
Dolfo are inherently improbable as not to be credible
has been successfully traversed by the Solicitor General.[18]
For, Dolfo and Dellomos,
having been the target of accused-appellants only a few hours earlier in the
afternoon of the same day, may and should be expected to take some risks — to
the point perhaps of being illogical and reckless — to identify and, if possible, frustrate any further attempts on the
part of the three accused to assault and to try to kill them again. As the People’s brief explains —
“There is nothing
illogical in Dellomo’s putting out their kerosene
lamp upon hearing the first gunshot just outside his house and upon
hearing his nephew (Bernardo Demontaño, supplied)
fall from their stairs. It could be stated
that the thought that he almost lost his life to a gun from the three accused
that same afternoon must have made him thought (sic, should be think) that he
was again the target of said gun. Putting
out the light would conceal his identity and his whereabouts inside the house
from anyone outside. The fact that he
got his flashlight and focused a light from it outside the house from the door
opening where his nephew fell and at the same time concealing his body with a sackfull of palay near the door and
at the same time peeping from a hole away from the lighted flashlight he was
holding is not an unnatural thing to do for any person similarly
situated. Instead of being an unnatural reaction of
a person in such situation, as appellant asserts, it is but a natural instinct
for anyone to investigate from who and where was the source of the gunfire,
(sic) taking safety precaution for himself from any possible harm as witness
did when he hid his body behind a sackfull (bayong) of palay by their open
door, if not to scare away those
intruders who use the darkness of night as a means of attaining any evil
purpose. On this point, witness Dellomos testified as follows:
x x
x
“Q. And
after that you flashed your flashlight directing to the opening of the door
where Bernardo Demontaño passed, am I right?
A. Yes,
sir.
Q. Now,
when you flashed your flashlight to that opening of the door you saw Bernardo Demontaño on the ground, am I right?
A. No,
sir. The first person I saw was Felipe Dueño who was near the stairs and I was behind a big bayong
of palay.
Q. Where
is that big bayong of palay
where you were posted?
A. By
the side of our table.
Q. How
far is that bayong where you have posted yourself
from the opening at the door where Bernardo Demontaño
passed in going downstairs?
A. Very
near. The distance of the bayong from the panel of the door is fifteen inches to my
estimate.
Q. You
do not answer my question. My question
is, how far is that bayong where you were posted from
the opening of the door where Bernardo Demontaño
passed?
A. That
is what I have told, fifteen inches.
Q. And
that bayong where you have posted is at the side of
the door, am I right?
A. Yes,
sir.
Q. So
since it is near the door it will obstruct the opening of the door, am I right?
Fiscal DELFIN:
Your Honor, please, the
question is already a conclusion of fact.
COURT:
Reform the question. What do you mean by that? You are using a
future tense. This is all past.
Atty. CORDENILLO:
Q. When
you flashed your light through the opening of the door you allegedly saw Felipe
Dueño, am I right?
A. Yes,
sir.
COURT:
Q. Where
was Felipe Dueño the first time you saw him after you
have focused your flashlight?
A. On
the side of our house because you know the wall of our house had a hole and the
first time I focused my flashlight I saw him through the hole.
Q. Where
were you at that time when you first saw Felipe Dueño?
A. I
was behind the bayong of palay
and peeping when I focused my flashlight looking for the place where the shot
came from.
Q. How
far were you from Felipe Dueño when you saw him for
the first time?
A. About two or three brazas away because the elevation of my house to the ground
is a little bit high because the rung of my stairs was six rungs.
x x
x
Q. While
you were looking at Felipe Dueño where were his
companions, how far were they from Felipe Dueño?
A. The
companions were about two brazas away from him.
Q. What
were they doing, what were his companions doing?
A. Andresito was holding a revolver .38 caliber and aiming the revolver forward. The other one was holding fighting bolo hanging on his side.
Q. Were
the two companions standing?
A. Yes,
sir.
Q. They
did not advance towards Felipe Dueño, is that right?
A. No, sir, they did not go near Felipe Dueño, but they were holding their weapons. (pp. 227-235, Transcript I)
“Such evidence clearly and positively proves that the accused
herein were identified as the perpetrators of the crime, as the trial Court
correctly found.
“In the absence of any showing that the court a quo disregarded
a material fact which would damage the conclusion made, this finding must be
upheld. (People vs. Dorado, 30 SCRA 53.
Accord: People vs. Ruben Ablaza, 30 SCRA 173).
x x
x
“Another point that appellant asserts in support of their
arguments that the testimony of Roque Dellomos is improbable is the fact that said witness
focused his lighted flashlight upon the accused for three minutes, more
or less. It is argued that such fact
‘runs counter to the natural reaction of a person who has just been fired
upon.’ (p. 18, Appellant’s brief).
“On cross-examination, witness Dellomos
testified as follows:
“Atty. CORDENILLO:
Q. We
are sure now Mr. Dellomos, that you allegedly saw
Felipe Dueño below your house through a hole at the
wall of your house, but not through the opening of the door of our house, am I
right?
A. Yes,
sir.
Q.
And where did you let the light of your flashlight pass through, through
the opening of the door, or through the hole of the wall of your house?
A. I focused my flashlight on the stairway, but
because of the illumination of the light I saw Felipe Dueño
through the hole of the wall of the house.
Q. How long was it from the first shot to
the time when you focused the light of
your flashlight through the door?
A. Immediately after hearing the shot I took
hold of my flashlight and focused my flashlight because I was surprised that
Bernardo Demontaño had fallen.
Q. Shall we say five minutes?
A. Perhaps about a minute. That is only an estimate because I had to
stand yet and get the flashlight.
Q. How
long have you focused the light of your flashlight through the door?
A. No,
sir, I did not expose my flashlight out of the door, but I just put the inner
part of my flashlight in the opening of the door but the rays of the light had
spread up to the wall of the house. (pp.
124-126, t.s.n.)[19]
x x
x
“Again appellant
assails the testimony of witness Federico Dolfo as
not worthy of credit and as unnatural. His testimony is that while hiding among the banana
plantation in front of his house near the barrio trail, he lighted (sic) his
flashlight and focused the same upon the running persons whom he recognized to
be the accused. (pp. 64, t.s.n., Nov. 4,
1964, Roque). Admittedly, this testimony is in corroboration
to that of Dellomos as regards the identity of the
accused. Appellants ask: If the aim of Dolfo
in going down his house was for his own safer, what purpose would there be to
flash his light upon them while passing? (p. 20, Appellant’s brief). Contrary
to appellants assertion of falsity, such act of lighting on the running persons
by witness was but a natural instinctive act of anyone under such
situation. He was not sure that the gun shots he heard were from the
accused. x x x The fact that the accused did not stop to investigate who
was lighting on them and
did not fire on him is but a lucky
stroke of fate.“[20]
2. The position of the
Solicitor General on the second assigned error, is also well taken. Thus —
“It is respectfully submitted that the identity of the accused
as the perpetrators of the crime was clearly established by the evidence in the
instant case and it being so we submit that the question of motive is not
important (People vs. Bautista, 30 SCRA 558).
x x
x
“Motive is relevant where the identity of the persons accused
of having committed the crime is in dispute, where there are no eyewitnesses,
and where suspicion is likely to fall upon a number of persons (People vs. Portugueza, L-22604, July 31, 1967). In the case at bar, the identity of the
accused was positively proved by eyewitnesses, so motive is irrelevant.”[21]
3. And finally, on the alibi, the People’s brief correctly
justifies the lower court’s finding and conclusion. Thus —
“The trial court did not err in rejecting alibi as appellants
defense. The evidence does not show that
it was inherently impossible for the appellants to be at the scene of the crime
on that fatal evening. It must be
clearly shown not only that the accused was at some other place but as well
that it was physically impossible for him to be at the scene of the crime at
the time of its commission. (People vs.
Marquez, L-24373-74, Nov. 28, 1969).
“The trial court stated:
“The distance of the alleged hideouts of the three accused in
the town of Maayon,
(Capiz) the seat of the crime is not very far. Maayon was formerly
a barrio of the town of Pontevedra
and a good road now running between vast sugarcane plantations, connects the
two towns which are very accessible to each other by trucks, jeeps and automobiles. The crime took place about nine o’clock in the evening. One can be catching fish or doing carpentry
work in Pontevedra
during daytime and commit murder in Maayon in the
evening. (p.253, Rec.).
By way of resume then. The
evidence for the prosecution establish that in the afternoon of January 21,
1963, the three accused-appellants fired upon Roque Dellomos and Federico Dolfo but
missed them; and that in the evening of the same day, the three again were
identified as the assailants who fired upon and killed Bernardo Demontaño who was mistaken for Roque
Dellomos and/or Federico Dolfo. It also appears that their defense of alibi
was not worthy of credence. The guilt of
the three accused-appellants, therefore, has been established and proved beyond
reasonable doubt.
In specific regard to the circumstances attendant in the
commission of the offense, Article 248 of the Revised Penal Code is clear that
only one qualifying circumstance is necessary to qualify the offense as murder. In the present case, the trial court found
that the two qualifying circumstances — treachery and evident premeditation —
attended the commission of the offense and utilized both conjointly to qualify
it to murder. This is error. As treachery sufficiently qualifies the
killing to murder — evident premeditation having been also alleged in the
information and proved, should be considered as a generic aggravating
circumstance only.[22]
However, jurisprudence is settled that evident premeditation cannot be appreciated
in a case where, although the accused had planned the perpetration of the
killing, the victim was different from the person whom the accused had
originally intended to kill.[23]
Thus, in the Mabug-at case,[24]
We said that “(e)ven when there is sufficient
proof of premeditation x x x,
it cannot be considered as a qualifying circumstance x x
x, because the person whom the accused intended to
kill was not Perfecta Buralo, who was hit by the
bullet, but her aunt Juana Buralo.” In the case
at bar, it was Roque Dellomos
whom accused-appellants intended to kill, but it was his nephew, Bernardo Demontaño, instead, who was shot at and hit and
instantaneously died.
With respect to nighttime, the rule in People v. Magsilang[25]
that except in special cases, the circumstances of treachery and nocturnity “always go together and are absorbed in the
same offense” and that both “may well be regarded as complementing
each other and (are) to be considered as one circumstance only, to qualify the
killing as murder,”[26]
applies in this case. Nocturnity, like abuse of superiority is absorbed in
treachery because it forms part of the peculiar treacherous means and manner
adopted to insure the execution of the crime.
It facilitates the treacherous character of the attack. As an element of treachery, it would not be
just to use it again as an aggravating circumstance.[27]
Accordingly, night-time, like evident premeditation, cannot be separately
appreciated in the instant case.
There being no mitigating or aggravating circumstance, the
penalty of life imprisonment or reclusion perpetua
is the proper penalty in accordance with Art. 248, in relation to Articles 64,
par. 1, and 77 of the Revised Penal Code.
The civil indemnity to the heirs of the deceased, however, should
be raised from P6,000.00 to P12,000.00.
The trial court’s decision should accordingly be modified.[28]
As noted earlier, accused-appellants Felipe Dueño
and Sofronio Dueño had
withdrawn their appeals, and the decision of the trial court already became
final and executory as to them. This decision is binding as to the third
accused-appellant, Andresito Belonio,
who pursued his appeal.
WHEREFORE, with the modification that the indemnity to be
paid to the heirs of the deceased should be raised from P6,000.00 to P12,000.00
without subsidiary imprisonment in case of insolvency, the decision appealed
from is hereby AFFIRMED. No cost.
SO ORDERED.
Aquino, (Acting Chairman)*, Concepcion, Jr., Abad Santos, and De
Castro**, JJ., concur.
[1]
Rollo, p. 90; Decision.
[2]
Id., pp. 15-16.
[3]
Id., p. 63.
[4]
Ibid.
[5]
Id., p. 1.
[6]
Id., pp. 196, 213.
[7]
Id., p. 157.
[8]
Id., p. 90.
[9]
Id., p. 59.
[10]
Atty. Raoul
B. Agrava, counsel de oficio,
represented the three appellants.
[11]
Rollo, p. 75.
[12]
Id., p. 76.
[13]
Id., p. 77.
[14]
Id., p. 78.
[15]
Id., p. 79.
[16]
Id., p. 80.
[17]
Id., p. 81.
[18]
The Solicitor General, now Associate Justice Felix Q. Antonio, assisted by Assistant
Solicitor General Bernardo P. Pardo and Assistant
Solicitor General Eufracio B. Cosio,
filed the People’s brief.
[19]
Brief for Appellee, pp. 6-11.
[20]
Id., pp. 12-13.
[21]
Id., pp. 13-14.
[22]
See Aquino, The Revised Penal Code, Vol. 1, 1976 ed.,
p. 341, citing cases.
[23]
Ibid., citing People vs. Mabug-at,
51 Phil. 967 (1926) and People v.
Guevarra, L-24371, April 16, 1968, 23 SCRA 58; see
also People vs. Guillen, 85 Phil. 307, 318-319
(1950) and People v. Umali; 96 Phil. 185, 201
(1954).
[24]
Supra, p. 970.
[25]
82 Phil. 271, 275-276 (1948).
[26]
Citing U.S. v.
Salgado, 11 Phil. 56 (1908).
[27]
See Aquino, supra, Vol. 1, 1961 ed., p.
305, citing cases.
[28]
People v. De Leon,
L-28480-1, Sept. 30, 1971,
41 SCRA 120; People v. Abboc,
L-28327, 53 SCRA 54; People v. Cardena, L-29090, April
29, 1974, 56 SCRA 631.
* Justice Felix Q. Antonio, then
Solicitor General, filed the brief for the People in this case.
** Justice Pacifico de Castro was designated vice Justice Felix
Q. Antonio.