THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. APOLINARIO LUMANTAS @ PEOLE, DEFENDANT-APPELLANT.

Olimpio Badiang
and Apolinario Lumantas
were convicted of the crime of murder by the Honorable Mariano A. Zosa of the Court of First Instance of Misamis
Occidental (Branch III – Oroquieta) and sentenced to
different penalties.  The dispositive part is phrased as follows:

“-
– – – –;
and, pursuant to the provisions of Article 248 taken together with the
provisions of Article 14, paragraphs 9 and 15 and Article 64, paragraph 6 of
the same Revised Penal Code, as to Olimpio Badiang alias Lim, the court sentences him to suffer an
imprisonment of SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY to TWENTY
(20) YEARS of Reclusion Temporal; and, likewise sentences Apolinario
(Peole) Lumantas, who,
after having made a stab wound to the deceased, fleed
(sic) from the scene of the crime, to suffer an imprisonment of one degree lower
or TEN (10) YEARS, and ONE (1) DAY of prision mayor
in its maximum period, to indemnify, the heirs of Laureto
Limpahan in the sum of P1,500.00 each, without subsidiary
imprisonment in case of insolvency, to pay the proportionate costs of the
proceedings and suffer the accessory penalties provided for by law.

“The instruments exhibited are hereby declared
confiscated.”

Both accused appealed the
decision to the Court of Appeals, but the appeal of Olimpio
Badiang was dismissed on 14 September 1965 upon his own petition.  The Court of Appeals found that the imposable
penalty upon the remaining appellant, Apolinario Lumantas, is reclusion perpetua,
for which reason it certified the case to the Supreme Court.^[1]

The evidence on record
shows that many people had gathered in the marketplace of Mobod,
Oroquieta, Misamis
Occidental, at about five o’clock in the afternoon of Thursday,
14 November 1963.  Although it was not a market day, a fair was
being held in extended celebration of All Saints’ Day.  There was cockfighting and a “hantak” game
was being played.  Among the players in
the said game was the late Laureto (or Laurito) Limpahan.

The principal witness for the prosecution, Francisco Bati-on, who was about two (2) meters away from where the
“hantak” game was being played (t.s.n., page 31), saw accused Badiang
and Lumantas at both sides of the deceased.  This witness narrated what happened moments
later, as follows:

“Q   You said that you knew Apolinario
Lumantas, do you know what he was doing at that time?

“A    I saw only Peoley
(Apolinario Lumantas) who
was standing beside Laurito Limpahan.

“Q   What did Peoley do
there?

“A    When Laurito was
in the “hantak” game I saw him stood up and
counted his money; and, it was at that time that this Lim Badiang
slapped him with the back of his palm at his face and with his left hand
delivered a thrust to him.

“Q   What happened next?

“A    When Laurito was
hit (witness was pointing to the left side of his body his hand up; next he
made a motion jerking up) and then Peoley stabbed him
at the right side of the body (witness pointing to the right side of his body
below the armpit).  When Peoley stabbed him, Lim stabbed him by the left hand.

“Q   You said that Apolinario
Lumantas stabbed Laurito Limpahan where did that land in the body of Limpahan?

“A    Peoley thrust him to the right armpit of Laurito.” (T.S.N., pages 11-12) (sic)

After he was stabbed, Laurito Limpahan ran away, with Badiang and Lumantas in
pursuit.  Limpahan
collapsed after running a distance of ten meters.  Badiang kicked him
in the face.  Prosecution witness Bati-on, who was a friend of Badiang,
entreated the latter to stop kicking Limpahan as he
was already dead, but Badiang tried to stab Bati-on instead. 
When Lumantas saw that Limpahan
was dead, accused left the place and went home.

The people scampered away
even as Badiang brandished his bloody bolo and
challenged everyone to a fight. 
Policeman Hospecio Pausal
happened to be in the marketplace at the time, serving subpoena.  He was attracted by the commotion and, seeing
Olimpio Badiang carrying a
bolo covered with blood, fired a shot in the air and commanded Badiang to put down his weapon.  Badiang did as
commanded.  Pausal
brought him to the municipal building and turned him over to the guard on duty.

Policeman Pausal inspected the body of Laurito
Limpahan and found at the left side a sharp-pointed
bolo, with the blade partly drawn from its scabbard about two (2) inches, and
an Indian slingshot in the right pocket.

The municipal health
officer of Oroquieta, Dr. Henry Y. Dullin, performed a post-mortem examination of the cadaver
of Laureto Limpahan at eight o’clock that evening and found the following:

“-   wound located over the left chest just below
the nipple about 4 inches in length, deep penetrating which injured the heart,
lung and great blood vessels around the heart and lungs;

“-   wound located over the right axilla about 2 inches in length, deep;

“-   wound located over the right chest about 2
inches in length, deep, situated over the 6 intercostal
space along the right mid-axillary line;

“-   wound over the left forearm lateral surface 5
inches in length:

“-   wound over the right thenar
eminence;

“-   abrasion over the forehead, bridge of the
nose and left cheek.” (Exhibit “A”)

As this appeal pertains only to Apolinario
Lumantas, we shall limit this review to his case,
skipping the version of his co-accused, Olimpio Badiang.

The appellant’s defense is alibi, claiming that at the
time of the com­mission of the crime, in the afternoon of 14 November 1963, he was not at Mobod but at Upper Lamak,
about one and a half to two kilometers away, to gather tuba from 17 coconut
trees.

Appellant argues that the testimony of prosecution witness
Francisco Bati-on is unreliable because while he recognized
the weapon used by Badiang the witness was not clear
on the weapon used by appellant Lumantas.  This uncertainty as to the kind of weapon
used does not necessarily impair his reliability.  There was a wound just below the left nipple
of the deceased, while two wounds existed at the right side of his body.  These wounds tally with Bati-on’s
testimony that Badiang inflicted one wound at the
left and the knife came out at the right side, and that the second wound at the
right side of the victim was inflicted by Lumantas.  Bati-on’s
non-recognition of the weapon used by Lumantas does
not alter the fact that the latter did use a weapon to produce the wound
described.

Neither do we find that this eyewitness acted through improper
motives, the charge of personal enmity by the accused not being adequately
supported.

A defense witness, AnseImo Mahawan, testified that, as a member of the police force at
the time of the stabbing, he was designated to look for witnesses.  He went to the scene of the crime, saw the
mother of the deceased crying over her son, and asked her about the companion
of her son.  The mother pointed to
Francisco Bati-on. 
When Mahawan inquired from Bati­-on
what he knew about the incident, Bati-on denied
knowledge of anything.  This testimony of
defense witness Mahawan was unrebutted;
but while the fact that Bati-on denied any knowledge
about the crime soon after its commission before the investigating policeman
reduces the credibility of Bati-on, such diminution
is not substantial.  It is not unusual
for witnesses at first refusing to be involved in a criminal proceeding.  The witness disclosed what he knew about the
incident shortly thereafter, on 16
November 1963, when he signed a statement taken from him by the
police at the municipal building; gave additional answers to interrogations by
the municipal Judge; and swore to the truth thereof on 17 November 1963 (CFI Criminal Case Rec.
Wrapper, page 7).  This sworn statement
was not offered in evidence, but it forms part of the record of the preliminary
investigation conducted by the municipal judge and can be taken judicial notice
of by both the trial court and the Supreme Court.  (People vs. Bautista, 60 Phil. 1026)

Alibi is one of the weakest defenses that can be resorted to by
an accused (People vs. De la Cruz, 76 Phil. 701).  To establish it, the accused must show that
he was at some other place for such a period of time that it was impossible for
him to have been at the place where the crime was committed at the time of its
commission (U. S. vs. Oxiles, 20 Phil. 587; People
vs. Palomos, 49 Phil. 601; People vs. Resabal, 50 Phil. 780). 
These requisites accused-appellant failed to establish; he did not even
show how long he stayed in Upper Lamak,
which was only two kilometers away from the Mobod
market place.

Appellant Lumantas props his defense of
alibi with the fact that prosecution witness, policeman Hospecio Pausal, did not see said
appellant in the market place when he apprehended Badiang
after the stabbing incident.  That
appellant was not seen by Pausal may be explained by
the fact that appellant Lumantas had left the place
when he saw that Limpahan
was already dead, and the patrolman’s attention was concentrated on Badiang who was challenging all and sundry while
brandishing a bolo.

The prosecution did not prove any motive of appellant Lumantas for committing the crime, but lack of motive does
not preclude conviction of the offense when the crime and the participation of
the accused are definitely proved, as was done in this case (People v. Tanco, 58 Phil. 255; People v. Reyno,
L-19071, 30 April 1965; People v. Villalba, L-17243,
23 August 1966, 17 SCRA 948).

The crime committed is murder, qualified by treachery,
established by the sudden and unexpected attack upon the victim by the two
accused, who situated themselves on both sides of the deceased and rendered the
victim unable to defend himself (U. S. vs. Castellon,
12 Phil. 160; People vs. Macarinfas, 40 Phil.
1).  Abuse of superior strength also
attended the com­mission of the crime, but this circumstance is absorbed in
treachery (People v. Limaco, 88 Phil. 35; People v. Ruzol, et al., 100 Phil. 537).

The Solicitor General admits that the prosecution failed to prove
evident premeditation (Brief, page 10). 
We agree; and we, likewise, find no mitigating circumstance.

Murder is penalized by “reclusion temporal in its maximum
period to death” (Article 248, Revised Penal Code).  Since there is no aggravating or mitigating
circumstance, the penalty should have been imposed in its medium period, which
is reclusion perpetua.

The errors of the trial court in the imposition of the penalties,
based on its own findings, are at once noticeable; for, having declared Olimpio Badiang^[2] guilty of murder, with the
aggravating circumstances of recidivism and superior strength (Nos. 9 & 15,
Article 14, Revised Penal Code), without any mitigating circumstance, the court
imposed the minimum penalty for murder, reclusion temporal,
instead of the maximum, which is death, and misapplied Article 64, paragraph 6,^[3]
of the code, on the wrong assumption that the maximum penalty for murder is the
maximum period of reclusion temporal.  As
for Apolinario Lumantas,
the court imposed upon him a penalty one degree lower because, after stabbing
the victim, he fled from the scene of the crime.  Flight may indicate guilt,^[4] but certainly, it is not a reward for
committing a crime nor a mitigation of criminal responsibility.  On the contrary, the simultaneity of the
attacks and the strategy of assailing the deceased from both sides fully
establish cons­piracy and common intent.

Not the least of its
errors, also on the face of the dispositive portion
of its decision, is the trial court’s imposition of compensatory damages in the
amount of P3,000.00 for the death of the victim (P1,500.00 from each of the two
accused).  The decision was promulgated
on 12 December 1964, but the then existing jurisprudence (since 1948, People vs. Amansec, 80 Phil. 424) fixed the amount of indemnification
at P6,000.00.  The amount was later raised
to P12,000.00 in People vs. Pantoja, L-18793, 11 October 1968.

Normally, co-conspirators
of a crime are held jointly and severally liable in the amount of P12,000.00,
by way of indemnification for the death of their victim.  But here, the trial court condemned Olimpio Badiang to pay only
P1,500.00, and the decision with respect to him has become final when his
appeal was dismissed by the Court of Appeals at his own request.  The question, therefore, arises:  how much should the co-conspirator, Apolonio Lumantas, the herein
remaining appellant, be made to pay?  We
believe that, in justice to the heirs of Laurito Limpahan, he should pay an indemnity of P12,000.00, but
with the right to demand contribution from his co-accused in the sum of
P1,500.00.  While it may appear that this
award is to some extent Unfair to this appellant, it is a necessary consequence
of the withdrawal of Badiang’s appeal, which rendered final the low indemnity
awarded by the court below (erroneous though it should be), and above all, to
the need of doing justice to the heirs of the victim, whose right to adequate
indemnification is paramount.

FOR THE FOREGOING
REASONS, the appealed
decision, insofar as Apolinario Lumantas
is concerned, is hereby modified, to the effect that he shall suffer the
penalty of reclusion perpetua, with its
accessory penalties, and to pay the heirs of Laurito Limpahan the amount of P12,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the proportionate share of the costs; but with a right
to demand contribution from his co-accused Olimpio Badiang, in the sum of P1,500.00, to the payment of which
said Badiang was sentenced by the court below.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez, Castro, Fernando, Capistrano, Teehankee, and Barredo, JJ., concur.

^[1]
“Whenever in any criminal case submitted to a division the said div­ision
should be of the opinion that the penalty of death or life imprison­ment should
be imposed, the said court shall refrain from entering judgment thereon and
shall forthwith certify the case to the Supreme Court for final determination,
as if the case had been brought before it on appeal.” (Rule 124, Section
12, Rules of Court)

^[2]
This is not to review his case but only to point to manifest errors com­mitted
by the trial court.

^[3]
“Whatever may be the number and nature of the aggravating circumstances,
the courts shall not impose a greater penalty than that prescribed by law, in
its maximum period.”

^[4]
U. S. v.
Sarikala, 37 Phil. 486; People v. Umali, 96 Phil. 185.