PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. MARCELINO MARIO, ALIAS “CELINO” AND DOROTEO DULAY, ALIAS “DOROT”, DEFENDANTS AND APPELLANTS.

This
appeal is from a conviction for murder by the Court of First Instance
of Pangasinan, wherein appellants Marcelino Mario and Doroteo Dulay
were each sentenced to suffer the penalty of reclusion perpetua; and jointly and severally to pay indemnity in the sum of P6,000.00 to the heirs of the victim Pablo Sagaoinit.

It was definitely established by the testimonies of the prosecution
witnesses that on January 6, 1955, at barrio Tebuel, Manaoag,
Pangasinan, while Consuelo Mendoza, daughter of Eligio Mendoza, barrio
lieutenant of said barrio, wa3 tending to their store, she was engaged
in a lively conversation with Faustina Riola, wife of Pablo Sagaoinit.
Said conversation dwelt on an incident which took place in a dance at
barrio Sapang, an adjoining barrio, where one Rose disappointed
appellant Doroteo Dulay, otherwise known as Pilong Mara. Pablo
Sagaoinit, who also happened to be in the store, joined in the
conversation, remarking, “Pilo is a little bit crazy”. At this precise
moment, appellant Marcelino Mario, brother-in-law of appellant Dulay,
who was entering the store, overheard said remark. He thereupon
confronted Pablo Sagaoinit, and pointing his right hand at Pablo’s
face, told him; “Remember what you have said”. Appellant Mario then ran
to their house and called for appellant Dulay, telling the latter what
Pablo Sagaoinit had just said about him. In a short while, appellant
Dulay, accompanied by his wife, Dionisia Mario, together with appellant
Mario, returned to the store.

When the trio arrived at the
store, appellant Dulay immediately rushed at Pablo, saying, “Why do you
say that I am a little bit crazy?” The latter denied the statement,
saying that it was not meant for him (Dulay). Unsatisfied with Pablo’s
answer, appellant Dulay challenged him to a “sports fight”, and further
uttered, “Even if it is a fight up to death.” Noticing appellant
Dulay’s belligerent attitude, Eligio Mendoza tried to pacify him, but
said appellant pushed him aside, as a result of which, Mendoza fell. At
this juncture, Ildefonso Sagaoinit, uncle of Pablo Sagaoinit, who had
just arrived at the scene, tapped appellant Dulay’s left shoulder, and
admonished him thus, “Better stop that Doroteo, my son.” In response,
appellant Dulay pushed him, causing him to fall. When Ildefonso
Sagaoinit was about to get up, appellant Dulay shouted at his
brother-in-law, appellant Mario, saying “What are you doing, Marcelino
(Mario), come on, you hit.” Upon hearing said appellant’s order to
attack, appellant Mario immediately stabbed the back of Ildefonso
Sagaoinit with his dagger (Exh. C). Appellant Dulay, who was behind
Pablo Sagaoinit, then grabbed the latter’s waist and placed his hands
around it, thereby pinning Pablo Sagaoinit’s arms. Appellant Mario lost
no time in stabbing Pablo Sagaoinit at his left breast above the nipple
with the same dagger (Exh. C), inflicting on him a deep mortal wound, 3
inches deep, entering the victim’s body between the second and third
ribs very close to the edge of the sternum (Exh. A). Thereafter, both
appellants fled from the scene of the crime. Pablo Sagaoinit died as a
result of the wound inflicted on him. Ildefonso Sagaoinit was brought
to town for medical treatment.

Since appellant Marcelino Mario had withdrawn his appeal,^[1] appellant Doroteo Dulay is deemed the only appellant in this case.

Appellant Dulay claims that the trial court erred in holding him a
principal in the commission of the crime of murder of which he was
convicted.

The claim has no merit. According to the findings
of the trial court, to which we agree, appellant grabbed the waist of
the deceased and placed his hands around it, thereby pinning his (the
deceased’s) arms. It was at this juncture when his co-accused Marcelino
Mario stabbed the deceased at his left breast above the nipple with his
dagger (Exh. C). Under the circumstances, it is clear that appellant is
a principal to the commission of the crime of murder, as he cooperated
in the execution thereof by another act, without which, it would not
have been committed. (Art. 17[3], Rev. Penal Code.) There was treachery
in the killing, which qualified it to murder, because by holding the
deceased’s waist and placing his hands around it, and pinning his arms,
appellant thereby employed means to insure the execution of the crime
without risk to himself arising from the defense which the deceased
might make. As the lower court observed:

“To
the mind of the Court, there is a clear case of treachery and there is
a clear case of taking advantage of superior strength by the said
accused persons. When the deceased was killed, he was in a defenseless
position because his two hands were being held by Doroteo Dulay when he
was stabbed at the breast by his co-accused, Marcelino Mario.’ There is
treachery when the offender commits any of the crime against persons,
employing means, methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make. The
Supreme Court on this matter held that ‘even though at the inception of
the aggression which ended in the death of the deceased treachery is
not present, however, if at the time the fatal wound is inflicted on
the deceased he is defenseless, the circumstance of treachery must be
taken into account.’ (U. S. vs. Baluyot, 40 Phil. 385). In the
present case at bar, when the deceased was stabbed, that cause his
death, he was defenseless and could not avoid being hit by Marcelino
Mario because his hands were being held by Doroteo Dulay (appellant
herein) who was then at his back.”

Granting, arguendo,
that appellant is not a principal by cooperation, he may be considered
a principal by induction (Art. 17[2], Rev. Penal Code), inasmuch as he
induced his co-accused Mario to stab the deceased.

We agree
with the Solicitor General that the aggravating circumstance of abuse
of superior strength may not be considered in the instant case, because
it is absorbed by the circumstance of treachery. Wherefore, finding no
error in the decision of the trial court, the same is hereby affirmed,
with costs against the appellant Doroteo Dulay. So ordered.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, and Gutierrez David, JJ., concur.

Reyes, J.B.L., J., on leave, took no part.

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^[1] Duly approved by this Court in its resolution of Sept. 1, 1958