PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO CASTRO, ACCUSED-APPELLANT.

Appeal from the decision of the Court of First Instance of Camarines Sur, convicting Romeo
Castro of the crime of murder, qualified by treachery, and sentencing him
“to suffer the penalty of reclusion perpetua
and to pay the heirs of Ferdinand Recoco the amount
of P12,000.00 as indemnity for death; P540.10 as actual damages; and P2,000.00
as moral damages; with costs against the accused.”

Appellant does not dispute his guilt for the death of 9-year old
Ferdinand Recoco. 
He contends, however, that his conviction for the crime of murder and
the penalty of reclusion perpetua imposed upon him
are not warranted by the circumstances established by the evidence.  He assigns as error the failure of the trial
court to appreciate the extenuating circumstances of defense of his son and
lack of intent to commit so grave a
wrong.  Appellant thus prays that he be
declared guilty only of simple homicide, with the foregoing circumstances
considered in his favor to mitigate the penalty.

The facts established by
the prosecution are as follows:

At about 4:30 in the afternoon of November
17, 1971, Leonor Gata, aunt of the
deceased, was looking out of the window of her house when she saw the
appellant, then the barrio captain of San Juan, Pili, Camarines Sur, running towards
Ferdinand Recoco, who was in the middle of the
street.  Upon reaching Ferdinand,
appellant boxed him with his left fist, hitting him on the right eye, followed
by another fist blow on the left temple and a “karate chop” below the
right ear.  Ferdinand fell on the asphalt
road, face downward.  Leonor
went down the house and asked appellant why he boxed Ferdinand.  The appellant replied that he was angered
when he saw Ferdinand box his 4-year old son, Ely.  The deceased forthwith admitted having boxed
Ely because the latter took a potshot at him with a water pistol.^[1]

That evening, Ferdinand
developed a fever; and the following morning, Dr. Mateo Dalisay
treated Ferdinand for fever and inflammation of the right eye.  When the boy’s condition showed no sign of
improvement after four days of treatment, Dr. Dalisay
advised the family that the boy be taken to an eye specialist.^[2] On November 25, 1971, Ferdinand was brought to the pro­vincial
hospital in Pili, Camarines
Sur, where he was treated by Dr. Jesus Miraflores.  On December
5, 1971, i.e., 13
days after the incident, he died.^[3]

Dr. Zenaida
S. Decena, who conducted a post-­mortem examination
of the deceased on December 8, 1971, rendered the following autopsy report:

“External finding ?

1)       
Superificial
abrasion, 2 inches in length, temporal side, right eye;

2)       
hematoma,
upper and lower lids;

3)       
with bluish discoloration of
entire anterior abdominal wall;

4)       
intestines gangrenous and inferior
surface of liver greenish in color.

“Internal finding ?

1)       
purulent exudate
recovered surrounding tissues of right eye;

2)       
with clotted blood over cerebral
blood vessels and slight puru­lent material frontal lobe.

“Cause of death – Septicemia secondary to pan-opthalmitis due to trauma.”

The appellant’s version of the incident, on the other hand, is as
follows:

At about 4:00 in the
afternoon of the day in question, while appellant was in the public market of Pili, Camarines Sur, helping his wife sell fish, his 4-year old son Ely
arrived and asked money for merienda.  The appellant bought biscuits for him and
told him to go home.  As the boy was
walking home, Ferdinand Recoco approached Ely and
boxed him.  The appellant immediately ran
toward the place where the boys were and, upon seeing that Ely was being boxed
by Ferdinand for the second time, he hit Ferdinand on the face and pushed him aside. 
Thereafter Ferdinand ran away.^[4]

The appellant vehemently denied having delivered several fist
blows and a ‘karate chop’ on Ferdinand, claiming that he hit the latter only
once on the face after which he pushed him.^[5]

To corroborate appellant’s version of the inci­dent, Teofilo Casero, a porter at the
PNR station at Pili, Camarines
Sur, testified that he was about 12 meters distant
when he saw Ferdinand box Ely Castro; that when Ferdinand was about to box Ely
for the second time, barrio captain Romeo Castro arrived and struck Ferdinand
on the face with his fist.  Casero denied having seen appellant deliver several fist
blows and a ‘karate chop’ on the deceased.^[6]

In pronouncing appellant guilty of murder, the court a quo
rationalized its conclusion thus: 
“in giving successive boxing and karate blows on a child of tender
years any possibility of danger resulting to
the accused from the child was nil.  The qualificative circumstance of treachery therefore attended
the killing.”^[7]

The appeal is impressed with merit.

For treachery to be considered as an aggravating circumstance, it
must be established that the means, method or manner of execution of the
offense was deliberately and consciously adopted in order to make it impossible
or difficult for the victim to defend himself or to retaliate.^[8]

In the case at bar, appellant had neither the opportunity nor the
reason to plan or deliberate on the mode of execution of the crime because he
undoubtedly acted at the impulse of the moment. 
Instinctively, he lifted a hand when he saw his 4-year old son being
boxed by a bigger boy.  Clearly, the
method of attack he adopted was not consciously chosen to facilitate the
execution of the crime without risk to himself. 
Treachery must therefore be ruled out.

Moreover, the lower court’s conclusion that appel­lant dealt
successive blows on the deceased finds no basis in the physical evidence
adduced at the trial.  Dr. Mateo Dalisay, who treated Ferdinand from November 18 to December 21, 1971, testified that
“aside from the fever and inflammation of the right eye, he could not find
any other lesion, abrasion or contusion on the body of the deceased.”^[9]
Dr. Dalisay diagnosed his patient’s ailment as
conjunctivitis or sore eye.^[10]
Likewise, Dr. Jesus Miraflores, to whom the deceased
was later referred for medical treatment, declared that “there was no
other lesion on the body of the patient, aside from the fever and the patient’s
inflamed right eye.”^[11]

The testimonies of these doctors strongly corrobo­rate the
defense version that appellant merely gave one fist blow on the deceased.  And even conceding that he did deliver
another fist blow on the left temple of the victim and a karate chop below his
right ear, the findings of Drs. Dalisay and Miraflores strongly sustain the conclusion that these subsequent
blows were not sufficiently forceful as to produce even the slightest contusion
in the areas where the deceased was allegedly hit.

Taking into consideration the circumstances under which the
appellant’s act was executed, as well as the marked disproportion between the
means employed and the ultimate
consequence thereof, the appellant’s claim that he merely intended to chastise
Ferdinand, and not to do away with him, deserves the fullest credence.  On this premise, the mitigating circumstance
of lack of intent to commit so grave a wrong should be appreciated in his
favor.

As heretofore stated, appellant does not seek acquittal, for he
does not justify his act.  But in passing
judgment upon his criminal liability, it be­hooves the Court to consider the
cause or motive that impelled him to act as did.  This is not to justify the offense he
committed, but only to demonstrate the lesser degree of depravity in his
act.  In this connection, advertence
should be made of portions of the testimony of Cresencia
Recoco, mother of the deceased.  As aptly put by Cresencia
herself, appellant committed the offense because he was “carried away by
the impetus of the moment.” She further declared that, as proof of
appellant’s remorse, he accompanied her to the hos­pital and volunteered to
give his share on the medical and hospital expenses; and that when the eye
specialist gave a prescription
for Ferdinand’s medication, appel­lant voluntarily bought the medicine.^[12]

The trial court, in brushing aside appellant’s claim of passion
and obfuscation, opined that the act of Ferdinand in boxing appellant’s 4-year
old son was too trivial and insignificant to have produced the passion or
obfuscation contemplated by law.  But
while the cause would indeed seem trivial and slight, it is nevertheless to be
noted that the appellant’s actuation arose from a natural instinct that impels
a father to rush to the rescue of a beleaguered son, regardless of whether the
latter be right or wrong.  Hence, when
the appellant saw his son Ely being boxed by Ferdinand, a much bigger boy, and
that the latter was in the act of delivering another blow, the appel­lant,
momentarily blinded by anger, lost sight of the fact that his son’s adversary
was but a 9-year old boy.  Clearly, when
appellant hit the deceased, he did so on the impulse of passion and
obfuscation.

Under the circumstances aforementioned, We hold that appellant is
guilty only of the crime of homi­cide, mitigated by two mitigating
circumstances, to wit:  (1) lack of
intent to commit so grave a wrong; and (2) passion and obfuscation.

WHEREFORE, the judgment appealed from is hereby modified
in the sense that appellant Romeo Castro is hereby declared guilty of the crime
of homicide; and applying the provisions of the Indeterminate Sentence Law, he
is hereby sentenced to a term of imprisonment ranging from four (4) years and
two (2) months of prision correcional,
as minimum, to eight (8) years and one (1) day of prision
mayor, as maximum, to indemnify the heirs of deceased Ferdinand Recoco in the amount of P12,000.00, and to pay the costs.

SO ORDERED.

Makasiar, (Chairman), Aquino, Concepcion, Jr.,
Guerrero, Abad Santos, and
De Castro, JJ., concur.

^[1]
TSN, pp. 4-7, May 8, 1972.

^[2]
TSN, p. 116, Oct. 22, 1972.

^[3]
TSN, p. 43, May 8, 1972.

^[4]
TSN, pp. 218-221.

^[5]
pp. 221, 225-226, ibid.

^[6]
pp. 145-147, Oct. 22, 1972.

^[7]
p. 5, lover court’s decision.

^[8]
People vs. Capiling, 74 SCRA 285; People vs. Latorre,
74 SCRA 106.

^[9]
TSN, p. 186, Oct.
11, 1972; pp.
156-157, Oct. 22, 1973.

^[10]
p. 159, Oct. 22, 1973.

^[11]
p. 40, May 8, 1972.

^[12]
TSN, pp. 67-69, 74, May 9, 1972.