G.R. No. 11074. February 27, 1960
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. RUFELINO ZAPATA AND FERNANDICO TUBADEZA, DEFENDANTS AND APPELLANTS.
ENDENCIA, J.:
convicting Rufelino Zapata and Fernandico Tubadeza of the crime of
murder, as principal and accomplice, respectively, and sentencing the
former to reclusion perpetua, and the latter to an indeterminate penalty of from 6 years, 1 month and 11 days of prision mayor, as minimum, to 12 years, 5 months and 11 days of reclusion temporal, as maximum, both to indemnify the heirs of the deceased in the sum of P6,000.
It appears from the evidence on record that on the evening of
February 15, 1951, at about eight o’clock, while Fausta Tubadeza, a
sexagenarian, was cutting firewood near her house at the barrio of
Camcamiring, municipality of Dolores, Abra, appellants Rufelino Zapata
and Fernandico Tubadeza approached her, and Zapata, after telling her
‘You are the old woman who bewitched my wife,” repeatedly beat her with
a piece of wood about 2½ feet long and 8 inches in diameter, on
different parts of her body, while Fernandico Tubadeza dragged her by
the arms. Her husband Mariano Bondame, also a sexagenarian, attracted
by the noise outside their house, looked out of the window and saw his
wife being dragged by Fernandico Tubadeza and clubbed by Rufelino
Zapata. Mariano Bondame immediately set to go down to help his wife,
but Zapata met him at the stairs and threatened him bodily harm should
he intervene. Bondame helplessly saw his wife being beaten and dragged
towards the direction of the house of councilor Simeon Tubadeza.
Bondame then went to the house of Estanislao Elvena to ask for help and
followed appellants to the house of councilor Tubadeza, where he saw
his wife already sprawled on the yard uttering, “I am going to die
now,” so he approached and embraced her. Fausta then told her husband
she had been maltreated and that some of her teeth were broken. The
evidence further shows that Fausta was taken to the house of councilor
Tubadeza, who told appellant Zapata and one Florencio Pilor to go to
Fausta’s house, and upon their return they brought a bottle of wine and
a bottle of oil and told the councilor, “Here are the ingredients for
witchcraft that we took from her house.” The councilor then wrote on a
piece of paper (Exhibit A) a statement that Fausta practiced witchcraft
on Zapata’s wife and had the same thumbmarked by Fausta. Likewise
Bondame was forced to sign it. Fausta died that same evening at the
house of councilor Tubadeza.
Dr. Paterno Millare who made a post-mortem examination of Fausta’s body, found that the cause of her death was:
“Fracture, compound, complicating, Rib 5th,
postero-lateral portion, right; Hemorrhage, internal, acute; Wound,
lacerated, lung, right; and Contusion, multiple and ecchymosis,
abrasion evulsion, teeth, upper incisor, canine, jaw, left, and etc.”
Appellant Fernandico Tubadeza submitted a defense of alibi,
attempting to show that on the night of February 15, 1951, he was in
Bantay, Ilocos Sur, in the house of the parents of his wife; while
Rufelino Zapata offered the following defense: That on the night in
question, his wife Carolina Mercurio was seriously ill; that in view of
the barking of dogs and whining of pigs in his yard, he went down and
saw Fausta Tubadeza, who had a reputation in their barrio of being a
witch, run away; that while he was phasing her, she fell face down;
that when he overtook her, she confessed that she had bewitched his
wife, whereupon Zapata took her to the house of councilor Simeon
Tubadeza; that the latter, being a near relative of Fausta and ashamed
of her admission of having practiced witchcraft, kicked her a number of
times in her right side; that councilor Tubadeza then ordered appellant
Zapata to fetch her husband Mariano Bondame, and when Bondame arrived
and knew of his wife’s admission, he became angry and also kicked her a
number of times on the right side, below the armpit; and that councilor
Tubadeza then wrote affidavit Exhibit A whereby Fausta assumed
responsibility should Zapata’s wife die.
By and large, the issue in this appeal is credibility of witnesses.
Referring to the alibi put up by Fernandico Tubadeza, we give it
little or no evidence at all not only because this kind of defense can
be fittingly conceived and conveniently adjusted to suit any time and
place ad libitum but that his witnesses are all his
relatives. On the other hand, prosecution witnesses Salvador Turqueza,
Relito Claro and Mariano Bondame positively identified and pointed him
as the one who dragged the deceased while his co-defendant Rufelino
Zapata clubbed her.
Appellant Zapata’s defense that the deceased died from the hands of
Simeon Tubadeza, Florendo Pilor and her own husband Mariano Bondame,
who all kicked her, is likewise unworthy of belief. Although it is true
that, originally, Simeon Tubadeza and Florendo Pilor were included as
defendants in the complaint filed before the justice of the peace, upon
reinvestigation of the case, however, the same was dismissed as against
them for lack of evidence and the fiscal had to exclude them from the
information. Besides, Mariano Bondame was not among those originally
indicted. It is hard to believe that Mariano Bondame, the aged husband
of the deceased, would ever attempt to harm his wife, let alone kick
her several times in the presence of many people, just for the flimsy
reason of having admitted that she was a witch. On the contrary,
Bondame positively testified that he tried in vain to rescue his wife
from the hands of appellants when he saw her being beaten up, only to
be confronted by Zapata at the stairs and threatened with bodily harm.
Zapata further contends that prosecution witnesses Salvador Turqueza
and Relito Claro who testified having seen him beat the deceased on the
back and on the nape, did not tell the truth because Dr. Millare
contradicted them by saying that he did not find any ecchymosis,
discoloration or laceration at the back and nape. We do not, however
find any inconsistency between the two versions, rather they complement
each other, for while these eye witnesses said that they saw appellant
Zapata beat the deceased on the back, Dr. Millare, in his post-mortem
examination found:
“External: The body is cold and in rigor mortis. The
height is about 4 ft. and 8 inches. The weight is about 100 pounds more
or less. There is presence of contusions and abrasions with ecchymosis
on the left face and with avulsion of the teeth, upper incisor and
canine, left upper jaw. Presence of a compound complicating fracture of
the 5th rib at the right postero-lateral portion of the chest wall.
Presence of contusions on the anterior portions of the legs and thighs.“Internal:
On opening the chest wall, there is a fracture, compound, complicating,
of the 5th rib, right, postero-lateral portion of the chest; with
wound, lacerated on the right lung and internal hemorrhage of the
right-lung. There is approximately 150 cc of unclotted blood on the
right chest cavity. Heart and left lung are apparently normal”
which evidently shows that the deceased was beaten mercilessly not
only on the head but also on different parts of the body as shown by
the avulsion of the teeth, abrasions and ecchymosis on the left face,
the compound fracture of the 5th rib, on the postero-lateral portion.
These two eyewitnesses could not be expected to tell the exact spots
where the blows had landed, considering that it was nighttime and those
fleeting moments cannot be recalled with exact precision. At all
events, both witnesses are agreed that it was appellant Zapata who
clubbed the deceased.
The Solicitor-General points out that Fernandico Tubadeza should not
be held merely as an accomplice as found by the lower court but as
coprincipal, because
“It is to be observed that while it may be true as
the trial court has stated, that ‘there is no showing in what manner
Fernandico took part in the torture, so much so that the evidence
discloses that only the accused’ Rufelino Zapata was provided with a
club,’ yet the established facts that (a) Fernandico accompanied Zapata
in going to the house of the deceased; (b) he held both hands of the
deceased while Zapata was hitting her and (c) he pulled the deceased by
the hands while Zapata continued clubbing her clearly show the
existence of concert of design between the two. At any rate, even
grunting that there existed no previous understanding between the two
appellants, yet it may be implied from the acts of Fernandico, as
stated above, that they had the same unity of purpose in the execution
of the act (People vs. Ging Sam, et al., 94 Phil, 139; People vs. Binasing, et al., 98 Phil., 902).
We agree with the Solicitor-General.
We likewise agree with his observation that evident premeditation is
not present in this case, but that abuse of superior strength should be
taken in its stead as the qualifying circumstance for murder,
considering that the deceased was a frail and undersized woman
sexagenarian.
As to the aggravating circumstances of disregard of sex and age and
nocturnity alleged in the information, we find that while the evidence
fails to show that nighttime was purposely sought by appellants to
commit the crime, it positively demonstrates that they disregarded the
age and sex of the deceased, it appearing that she was a frail woman of
65, weighing only around 100 pounds and only 4 feet and 8 inches in
height, while Zapata and Tubadeza were 32 and 27 years of age,
respectively, when the crime was committed.
On the other hand, we believe that appellants are entitled to the
mitigating circumstance of lack of intention to commit so grave a wrong
as that committed, as it was evident that they merely wantedto denounce
her as a witch before councilor Tubadeza when she was beaten and
dragged to the councilor’s house, but that she received a beating more
than she could take, for which she died that same evening. In addition,
the mitigating circumstance of obfuscation should be appreciated in
their favor, as we so held in U. S. vs. Macalintal, 2 Phil., 448, and People vs.
Balneg, et al., 79 Phil., 805, for it clearly appears that appellants
committed the crime in the belief that the deceased had cast a spell of
witchcraft upon the wife of Zapata which caused her serious illness.
Considering that there are two mitigating circumstances as against
one aggravating in the case, appellants are entitled to the minimum
penalty prescribed by Art. 248 of the Revised Penal Code which is reclusion temporal in its maximum period. Applying the Indeterminate Sentence Law, the penalty that should be imposed is 10 years and 1 day of prision mayor as minimum, and 17 years, 4 months and 1 day of reclusion temporal as maximum.
With the above modifications, the decision appealed from is affirmed in all other respects.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.
Padilla, J., took no part.