THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RUFINO GENSOLA, FIDELINA TAN AND FELICISIMO TAN, DEFENDANTS-APPELLANTS.

Appeal from the decision of the Court of First In­stance of
Iloilo finding the defendants, Rufino Gensola, Fidelina Tan and Felicisimo Tan, guilty as principals of the crime of murder
and sentencing each of them to reclusion perpetua
and ordering said defendants to pay in so­lidum
the sum of P6,000 as indemnity to the heirs of the
deceased Miguel Gayanilo.

Rufino Gensola
was the driver, while Fidelina Tan and Felicisimo Tan were the conductors, of a passenger truck, Gelveson No. 17 (belonging to Jose Tan, father of Fidelina and Felicisimo), with
station at Guimbal, Ilo­ilo.  They suspected Miguel Gayanilo
of having punctured the tires of the truck while it was parked in front of his carinderia on Gerona St.,
Guimbal, on November
18, 1958.  In the afternoon of
the following day, November 19, in the return trip of the truck, then driven by a temporary driver, Restituto
Gersaneva, from Iloilo
City, Enrique Gelario
and Enrique Gela were among the passengers of the
truck.  Before the truck entered the pobla­cion of Guimbal, it
parked on Gonzales St. to
discharge a passenger and his baggage. 
Enrique Gelario and Enrique Gela overheard Fidelina Tan
mutter to herself, obviously referring to someone she did not name:  “He does not ap­pear because I will kill
him.” (“No aparece porque
le voy amatar.”) The
truck then continued on its way and parked in front of Teodora
Gellicanao’s carinderia
on Gerona St. in the poblacion. 
All the passengers got off the truck. 
Enrique Gelario and Enrique Gela crossed the street towards the carinderia
of Pedro Genciana to await another passenger truck
for their respective barrios.  The Gelveson No. 17 then left in the direction of the nearby carinderia of Violeta Garin, returned a short time later, and parked in front of
the bodega of its owner, Jose Tan. 
The time was about 6:30 P.M. Miguel Gayanilo
was crossing the street from the public market in the direction of his carinderia with Ru­fino Gensola, holding in his right hand a stone as big as a
man’s fist, following closely behind.  At
this time, Felici­simo Tan and Fidelina
Tan were standing in the middle of the street. 
After Miguel Gayanilo had crossed the middle
of the street near the two, Fidelina Tan shouted,
“Rufino, strike him.” Upon hearing the shout Miguel looked back and Rufino
suddenly struck him on the left face with the stone.  Felici­simo then
struck Miguel with a piece of iron on the back of the head causing serious
wounds and fractured of the skull.  Not
content with the two blows already given, Fidelina
struck Miguel with another piece of iron on the left forehead causing serious
wounds and fracture of the skull.  Miguel
fell to the ground near the canal along the side of the street.  Rufino Gensola immediately left for his house situated on Gonzales
St. Felicisimo and Fidelina
observed the prostrate body for a few seconds until Fidelina
muttered:  “He is already
dead.” (“Ya esta muerto.”) The
two then left the scene of the crime.

The autopsy report shows that Miguel Gayanilo
suffered lacerated wounds on the left face, serious wounds and fracture of the
skull on the back of the head, and serious wounds and fracture of the skull on
the left forehead.  Death was caused by
traumatic shock.

The death of Miguel Gayanilo caused by
traumatic shock which resulted from the strong blows inflicting trauma on the
back of the head and on the left forehead, was admitted par­ticularly by the
accused Rufino Gensola, who
assumed sole res­ponsibility for the same.

The lower court found the three defendants guilty as principals
of the crime of murder and rendered judgment as follows:

“Por tanto,
el Juzgado declara a los acusados Rufino
Gensola, Fidelina Tan y Felicisimo Tan culpables, fuera de toda duda
racional, del delito de asesinato, tal como se alega en la querella y, no habiendo circunstancias que pueden modificar su responsibilidad criminal, condena a cada uno de los tres
a sufrir la pena de
reclusion perpetua, a indemnizar,
mancomunada y solidariamente,
a los herederos de Miguel Gayanilo en la suma de P6,000.00,
sin sufrir prision subsidiaria cor­respondiente, en caso de insolvencia, dada la naturaleza de la pena principal,
a las acceso­rias de la ley y a pagar ademas,
cada uno una tercera (1/3) parte de las costal del juicio.”

Defendants appealed.

Appellants contend that Rufino Gensola alone inflict­ed with stone blows the serious
wounds and fractures of the skull which caused the death of Miguel Gayanilo, but that he did so in legitimate defense of Fidelina Tan and of himself.  The contention is unmeritorious in view of
the following considerations:  (1) The
testimony of Rufino Gen­sola
and Fidelina Tan that Miguel Gayanilo,
then drunk, an­grily demanded to know from Fidelina
why she suspected him of having punctured the tires of the truck and was about
to strike Fidelina with a stone, and that in
legitimate defense of Fidelina and of himself Rufino picked up two stones, struck Miguel on the left face
with one stone and threw the other stone at him when he started to run away,
hitting him on the back of the head and causing him to fall and strike his fore­head
against a pile of stones, is belied by, first, the se­rious wounds and
fractures of the skull on the back of the head and on the left forehead of the
victim, which could have been caused only by strong blows with pieces of iron;
and, second, by the testimony of Dr. Juan Encanto,
who per­formed the autopsy, that he did not see any pile of stones near the
dead body of Miguel Gayanilo when he arrived at the
place in response to a call.  (2) The
admission of Rufino Gen­sola
that he alone was responsible for the serious wounds and fractures of the skull
inflicted upon Miguel Gayanilo in le­gitimate defense
of Fidelina Tan and of himself, has no pro­bative
value because it constitutes, in the face of contrary credible evidence for the
prosecution, an assumption by Ru­fino Gensola of the criminal liability of Felicisimo
Tan and Fidelina Tan. 
The penal law does not allow anyone to assume the criminal liability of
another.

Appellants contend that the testimonies of the princi­pal
prosecution witnesses, Enrique Gelario and Enrique Gela, are unworthy of credence because of contradictions
and un­certainties, showing that they were not present and did not witness the
commission of the crime.  The contention
is un­tenable for the following reasons: (1) The
contradictions pointed out involve only the relative locations of the three carinderias near the scene of the crime, not the
acts of com­mission of the three defendants at a distance of about seven meters
from where the two state witnesses were then stand­ing.  (2) The uncertainties pointed out refer to
the descrip­tion of the pieces of iron used by Felicisimo
Tan and Fidelina Tan, that is, as to the size, length
and other details.  Considering that the
place was not well lighted and that there was little time to observe, accurate
description of the weapons used could not be expected three years later when
the witnesses testified.  (3) The
contention that Enrique Gelario and Enrique Gela testified against Felicisimo
Tan and Fidelina Tan out of spite because the latter
had refused to transport the former to their respective barrios, is not well
taken.  It is not natural for a person to
tes­tify under oath against his neighbor on a matter of life and death just
because of a trifling incident causing slight inconvenience.  (4) We find the testimonies of the four
defense witnesses, Fidelina Tan, Felicisimo
Tan, Elias Gen­sola and Salvador Gayatao,
that Enrique Gelario and Enrique Gela
were not present at the scene of the crime because they had already left Gerona
St. walking to another street to await
transportation to their respective barrios, unworthy of credence.

Let us now consider the criminal liability of the three
appellants.  The lower court found them
guilty as principals of the crime of murder on the assumption that there was
con­spiracy among them.  We do not agree,
for the following reasons: (1) Fidelina Tan’s
intention revealed by the words she muttered to herself, “He does not
appear because I will kill him,” was not shared by Felicisimo
Tan, who kept si­lent.  Silence is not a
circumstance indicating participa­tion in the same criminal design.  With respect to Rufino
Gensola, he was not even in the truck at the
time.  (2) When Miguel Gayanilo was crossing Gerona St.,
it was only Rufino Gensola
who followed closely behind.  Fidelina Tan and Feli­cisimo Tan
were in the middle of the street.  The
words shouted by Fidelina Tan, ‘”Rufino, strike him,” were meant as a command and did
not show previous concert of criminal design. 
(3) The blows given with pieces of iron on the back of the head and on
the left forehead by Felicisimo and Fi­delina after Rufino had struck
with a piece of stone the left face of Miguel, do not in and by themselves show
pre­vious concert of criminal design. 
Particularly when it is considered that Rufino
immediately left thereafter while Felicisimo and Fidelina remained for a few seconds observ­ing the
prostrate body of Miguel until Fidelina muttered,
“He is already dead.”

In the absence of conspiracy, the liability of the three
appellants is individual, that is, each appellant is liable only for his own
act.

Appellant Rufino Gensola
is liable only for the la­cerated wounds inflicted by him on the left face of
Miguel Gayanilo. 
Such lacerated wounds caused disfigurement (“de­formity”) of
the face within the meaning of Article 263(3) of the Revised Penal Code
punishable by prision correctional in
its minimum and medium periods in relation to the Inde­terminate Sentence
Law.  The offense having been committed
with treachery, the penalty should be imposed in its maximum period.

Is appellant Fidelina Tan also liable
for the offense considering that she gave the command “Rufino,
strike him”?  The second class of
principals, according to Article 17 of the Revised Penal Code, comprises,
“those who directly force or induce others to commit it (the act).”
Those who direct­ly induce others to commit the act are called “principals
by inducement” or “principals by induction,” from the Spanish
“autores por
induction.” The word “inducement” comprises, in the opinion of Viada and the Supreme Court of Spain, re­ward, promise of
reward, command, and pacto.  With respect to command, it must be the
moving cause of the offense.  In the case
at bar, the command shouted by Fidelina, “Rufino, strike him,” was not the moving cause of the
act of Rufino Gensola.  The evidence shows that Rufino
would have commit­ted the act of his own volition, even without said words of
command.

Are the appellants Felicisimo Tan and Fidelina Tan both liable for the death of Miguel Gayanilo?  Our
opinion is in the affirmative.  The
trauma inflicted by Felicisimo and the trauma
inflicted by Fidelina, combined, produced death due
to traumatic shock.  When Fidelina struck with a piece of iron the left forehead of
Miguel, he was not yet dead.  It was only
after the trauma inflicted by Fidelina that the dying
Miguel fell to the ground and died seconds later.  This is clear from the evidence that after
Miguel had fallen to the ground, Felicisimo and Fidelina observed his prostrate body for a few seconds
until Fidelina muttered, “He is al­ready
dead.”

Assuming that the trauma inflicted by Felicisimo
was by itself sufficient to produce death due to traumatic shock, should Fidelina be also held liable considering that death could
have resulted anyway from the act of Felicisimo and
that a person cannot be killed twice? 
The obvious answer is that although a dead person cannot be killed
again, a dying person can still be killed. 
Miguel was not dead but dying when Fidelina
struck his left forehead with a piece of iron. 
Hence, the trauma inflicted by her hastened the death of Miguel from
traumatic shock made doubly severe.  She
must, therefore, be also held criminally liable for the death of the victim.

Was the killing murder? 
Our opinion is in the affir­mative because it was attended with the
qualifying circum­stance of alevosia.  There was alevosia
because after Rufino suddenly struck Miguel Gayanilo with a stone, Miguel, defenseless, was struck by Felicisimo Tan with a piece of iron on the back of the head
and by Fidelina Tan with a piece of iron on the left
forehead.

PREMISES CONSIDERED, that part of the appealed judgment
sentencing each of the appellants Felicisimo Tan and Fidelina Tan to reclusion perpetua
is affirmed.  Said appellants are also
ordered to pay in solidum the sum of P12,000 as indemnity to the heirs of the deceased, Miguel Gayanilo.  That part
of the judgment against appellant Rufino Gensola is modified by sen­tencing said appellant to an
indeterminate penalty of from 3 months of arresto
mayor as minimum to 3 years of prision
cor­reccional
as maximum.

Costs against the appellants.

Concepcion, C.J., Makalintal,
Zaldivar,Ruiz  Castro, Fernando, and Teehankee, JJ., concur.

Barredo, J., did not take part.

Reyes, JBL, Dizon, and Sanchez, JJ., on leave.