BANAGAN LUMIGUIS, RAMON SUBANO, SEDINAN SUBANO AND KAMBA LUMIGUIS, PETITIONERS, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

Appeal by certiorari to
review the decision of the Court of Appeals in its CA – G. R. No. 01599-CR.

The facts of the case as found by the Court of Appeals are as
follows:

“In the afternoon of Sunday,
April 12, 1959, on the beach
of Diculum,
Zamboanga del Norte, Godo Idlay engaged appellant Kamba Lumiguis in a fistic
fight.  They were surrounded by appellant
Banagan Lumiguis, brother
of appellant Kamba Lumiguis,
Dungo-an Abao, uncle of Kamba Lumiguis, Sedinan Subano and Ramon Subano, relatives of Kamba Lumiguis.  In the
course of the fight, Godo Idlay
who was the better boxer was able to knock down Kamba
Lumiguis.  As Kamba fell, Dungo-an Abao struck Godo Idlay on the back of his head with a piece of wood about 3
feet long causing him to fall to the ground, face downward.  In such a position, appellant Kamba stood up and taking a piece of wood about 3 feet
long, the size of his wrist struck Godo Idlay on the right fore­head.  Then he was followed by appel­lants Banagan, Ramon and Sedinan who
alternately hit Godo Idlay
on his back.  Banagan
used a piece of bamboo 2 1/2 feet long and about the size of his wrist and
Ramon and Sedinan used a piece of wood about 3 1/2 feet long the size of their
arm.  At this juncture, Bay-Abbu arrived at the scene and immediately appellant Banagan Lumiguis struck him on
the forehead with a piece of bamboo causing him to fall to the ground.  Then, Codalis Idlay, brother of Godo Idlay arrived and he was also struck by appellant Banagan Lumiguis.  The blow, however, was parried by Codalis Idlay and when he tried
to grab the piece of bamboo from Banagan Lumiguis, the latter and his four com­panions
(co-appellants) ran away.  It was then
that Laydan Alimbac who was
a spectator approached and helped Codalis Idlay lift Godo Idlay from the ground and brought him to the house of Abdul
Hosen Chiong in a very serious con­dition.  Abdul Hosen Chiong,
who was a barrio lieutenant,
inquired from Godo Idlay
what happened and Godo answered that he had a fistic
fight with appellant Kamba Lumiguis
and the latter’s co-appellants, namely, Banagan Lumiguis, Dungo-an Abao, Sedinan Subano
and Ramon Subano struck him.  Abdul asked the cause of the fight and Godo related that he fought Kamba
when the latter got mad because he tried to collect the amount of P12 as his
indebtedness.  Abdul tried to give Godo some porridge but he was not able to take it as he vomitted blood. 
Concerned, Abdul tried to bring Godo to the
town proper of Siocon for medical treatment but Godo said that he could not endure the trip and that he
will die.  In fact Godo
Idlay died at dawn of April 13, 1959.

“It appears that before Godo Idlay’s cadaver was buried, his body was examined for wounds in the house of Abdul Hosen Chiong by Provincial Sanitary Inspector David Z. Alpuerto. 
Examination of the body disclosed that Godo Idlay suffered contusion at the right forehead; that the
skull behind the right ear was frac­tured; that there was contused wound
therein; that the neck was bruised and that the body was also bruised (Exh. A).  Alpuerto affirmed at the trial that a skull bone 7 inches
long and 2 1/2 inches wide protruded from the fractured skull; that the
contused wound in the fractured skull behind the right ear was 1 1/2 inches
deep; that there were bruises in the neck, on the breast and at the back of the
body.”

Upon the foregoing facts,
the Court of Appeals rendered a decision
the dispositive
part of which is as follows:

“ACCORDINGLY, the judgment a quo is affirmed insofar as it concerns Dungo-an
Abao, and otherwise modified as follows:  (1) each of the four ap­pellants, Banagan Lumiguis, Kamba Lu­miguis, Sedinan Subano and Ramon Su­bano, is hereby
sentenced to suffer an indeterminate imprisonment of 3 years of prision correccional
to 11 years of prision mayor; and (2) all of the five appellants are hereby sentenced,
jointly and severally, to indemnify the heirs of the deceased Godo Idlay in the sum of
P6,000.00.  The remainder of the judgment
a quo is affirmed.  Costs
against all the five appellants.”

Banagan Lumiguis,
Kamba Lumiguis, Sedinan Subano and Ramon Subano appealed to this Court.  However, Sedinan Subano withdrew his appeal, which withdrawal was approved
by resolution of this Court dated October 29, 1965.  Dungo-an Abao did not appeal.

Petitioners aver that the Court of Appeals erred (1) in
convicting the petitioners as accomplices in the crime of homicide, alleging
that Banagan Lumiguis and
Ramon Subano should be convicted at most for physical injuries only and Kamba Lumiguis should be
acquitted; (2) in considering the aggravating circumstance of abuse of superior
strength and in not considering the miti­gating circumstance of lack of
instruction and/or igno­rance in favor of the five accused-appellants, on the
assumption that the four-co-accused of Abao were
guilty as accomplices; and (3) in sentencing all the five accused-appellants,
jointly and severally, to indemnify the heirs of the deceased in the sum of
P6,000.00.

Petitioners contend that Banagan Lumiguis and Ramon Subano should
at most be convicted of physical in­juries and not as accomplices in the crime
of homicide, al­leging that the mortal blow was delivered by Dungo-an Abao, the ones delivered
by Banagan Lumiguis and
Ramon Subano having merely caused bruises on different parts of the body of the
deceased.  They also contend that Kamba Lumiguis should be
acquitted because the injuries sustained by him on ac­count of his quarrel with
the deceased, as shown by the medical certificate (Exh.
10), more than compensated for the blow delivered by him against the deceased.

The contentions are devoid of merit.  It is an established fact that after Dungo-an Abao had delivered the
mortal blow, the petitioners followed attacking the
deceased with clubs.  It has been held
that infliction of wounds by a co-accused after the principal accused has
delivered the fatal blow shows actual participation in the criminal design and
such co-accused is guilty in the character of accomplice (People vs. Tumayao, 56 Phil. 587; People vs. Azcona,
59 Phil. 580).  In People vs. Cortes, et
al., 55 Phil. 143, we ruled: “Where the three accused attacked a third person,
one of them inflicting, with a club, a fatal blow on the forehead of the
victim, while the other two, immediately thereafter, inflicted minor injuries
with blows from similar weapons, a conviction of the first assailant in the
character of principal in homicide, and of the two companions in the character
of accomplices, is proper.”

Petitioners claim that the trial court erred in considering the
aggravating circumstance of abuse of superior strength and in not considering
the mitigating circumstance of lack of instruction and/or ignorance, on the
assumption that the petitioners are guilty as accomplices.

The claim is tenable
insofar as the aggravating
circumstance of abuse of superior strength is concerned.  We have ruled:  “The estimation of this cir­cumstance is
essentially inconsistent with the finding that only one of three accused is
guilty in the character of principal, while the other two participated in the
character of accomplices only.  Where the
abuse of superior strength is to be estimated as an aggravating circumstance
from the mere fact that more than one person participated in the offense, it
must appear that the accused cooperated together in some way designed to weaken
the defense; and if, in the case before us, the two accomplices really par­ticipated
in the sense necessary to enable the court to estimate against them the
aggravating circumstance men­tioned, this would make them guilty in the
character of principals.  But the court
having found that only one of the three was a principal and the other two did
not cooperate in the way necessary to make them principals, it is evi­dent that
the single principal cannot be said to have taken advantage of superior
strength; nor can said aggravating circumstance be estimated against the
accomplices” (People vs. Cortes, supra).

With respect to the
mitigating circumstance of lack of instruction and/or ignorance, petitioners
invoke Section 106 of the Administrative Code of the Department of Mindanao and
Sulu, which we quote:

“Sec. 106.  Sentences upon Moros and non-Christians.  – In pronouncing sentence upon a Moro or
other non-Christian inhabitants of the Department convicted of crime or
misdemeanor, the judge or justice may ignore any minimum penalty provided by
law for the offense; and may impose such penalty not in excess of the highest
penalty provided by law, as, in his opinion, after taking into consideration
all the circumstances of the case, including the state of en­lightenment of the
accused and the degree of moral turpitude which attaches to the offense among
his own people, will best sub served the interest of justice.  The judge or justice may also, in his dis­cretion
at any time before the expira­tion of the period allowed for appeal, suspend
the execution of any penalty or part thereof so imposed, subject to such condition as he may prescribe.”

In the imposition of penalty on a non-Christian inhabitant, it is
within the discretion of the trial court to apply the special provision
above-quoted (People vs. Pawin, 85 Phil. 528; People
vs. Salazar, 56 O. G. 6334).  Such
discretion should not be disturbed on appeal in the absence of abuse thereof,
and we are of the opinion that no such abuse was committed here.

Lastly petitioners claim that the civil liability for which they
are bound to answer should be based on the extent of their actual
participation.

The claim is tenable. 
Article 110 of the Revised Penal Code provides that
“notwithstanding the provisions of the preceding article, the principals,
accomplices, and accessories, each
within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and subsidiarily for those of the other persons liable.”
It has been held that the sole principal in the commission of the offense of
homicide or murder is pri­marily liable for his own part of the indemnity and sub­sidiarily liable for the portion adjudged against his
ac­complices, in case of their insolvency; while the several accomplices are
jointly and severally liable for the por­tion adjudged against them and subsidiarily liable for the portion of their principal, in
case of his insolvency (People vs. Bantagan, 54 Phil.
834; People vs. Cortes, 55 Phil. 143).

With respect to the penalty to be imposed upon the petitioners,
Article 52 of the Revised Penal Code provides that the penalty next lower in
degree than that prescribed by law
for the consummated felony shall be imposed upon the accomplices, which in this
case is prision mayor.  Considering the non-attendance of any
mitigating or aggravating circumstance, and applying the Indeterminate Sentence
Law, the minimum range of the indeterminate penalty imposable upon each of the
three petitioners is from 6 months and 1 day to 6 years, and the maximum range
thereof is from 8 years and 1 day to 10 years.

In view of the foregoing
considerations, the judgment appealed from is modified with respect to
the penalty, by reducing the maximum imposed by the Court of Appeals from eleven (11) years to ten (10) years of
prision mayor; and with respect to the civil
liability, by apportioning the indemnity of P6,000.00 awarded by the Court of
Appeals as follows:  the principal, Dungo-an Abao, shall be liable
primarily for P3,000.00; and the four petitioners herein, including Sedinan Subano, shall be liable
primarily and in solidum among themselves for
P3,000.00.  The subsidiary liability of
all of them shall be enforced in accordance with the provisions of Article 110
of the Revised Penal Code.  No pronouncement
of costs in this instance.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Zaldivar, and Sanchez, JJ., concur.

Castro, J., took no part.