THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. TIMOTEO PENESA, DEFENDANT AND APPELLANT.

PADILLA, J.:

Timoteo Penesa and Rosario Aguillon lived, as husband and wife, in the barrio
of Marupit, municipality of Camalingan, province of Camarines Sur. Their
daughter and five children of Rosario by her late husband lived with them. Due
to continuous wrangles between Timoteo and Rosario’s children by her late
husband, both agreed to part. In pursuance of the agreement and after dividing
the palav, lumber and firewood between Timoteo and the children of Rosario by
her late husband, Timoteo left the house on 30 August 1942. Early in the morning
of the following day, Timoteo returned to the house and asked Rosario to live
with him in another place (pp. 4, 31, t.s.n.). The request was refused (p. 4,
t.s.n.). Santiago Cerrado, a cousin of Rosario, came to the house and, upon
seeing Timoteo, asked the latter why he was there after they had agreed to live
apart. Angered by this remark, Tiinoteo unsheathed his bolo and assaulted
Santiago. Crescencio Doro, the eldest son of Rosario, who tried to prevent
another blow upon Santiago, and.had made a remark similar to that of Santiago
before the latter came to the house, was also assaulted by Timoteo. At this
juncture, Rosario went down through the stairway, preceded by Santiago.
Crescencio and Timoteo grappled for the possession of the bolo and both fell to
the floor. A brother of Rosario appeared upon the scene and snatched the bolo
and a dagger from the hands of Timoteo. As a result of the assault upon Santiago
Cerrado, two wounds were inflicted upon him, one on the left forearm and another
under the left axilla. They were not serious. Upon Crescencio Doro, the
following wounds were inflicted: in the left palm affecting two fingers, 3
inches long and from ½ to ¾ inch deep, which on the day of the trial was still
bandaged because it was not yet healed; a cut in the skin not 30 deep in the
left axilla parallel to the left nipple, 3 inches long; a cut above the elbo?;
of the left arm, 3 inches long and 1/8 inch deep; and another in the right hand
from the index to the little finger. The one in the left palm which cut the
joints of the bones was serious and, if the hemorrhage was not stopped, it would
have resulted in Crescendo’s death.

Upon this evidence the trial court found Timoteo Penesa guilty of frustrated
homicide; and, holding that the mitigating circumstance of passion and
obfuscation without any aggravating circumstance to offset it concurred in the
commission of the crime, sentenced him to suffer 6 years and one day of prlsi6n
mayor, with the accessories of the lav;, and to pay the costs. From this
judgment he has appealed.

Appellant testifies that on 30 August 1942, Rosario Aguillon agreed to live
with him in another house; that early in the morning of the following day, he
returned to the house and sat on a trunk, and not long after Santiago Cerrado
came and in a loud voice told him to come down because he had nothing left in
that house, a remark which Santiago repeated when he went up. the house; that he
answered Santiago that he had a share in the house because he had built it, and
for that reason he told him that he would not move out; that Santiago took hold
of him by the hand and forced him to leave immediately; that while he was being
led by Santiago and pushed toward the kitchen, he was assaulted from behind with
a piercing weapon, and for that reason he fell down; that when he tried to rise,
they struck him on the right shoulder and on the head; that he took from the
partition wall (tabique) a bolo to defend himself; that he struck and
hit with the bolo all his assailants; that he was further struck on the right
side of the breast, on the right eye on the neck, and on the cheek; that he fell
unconscious; and that when he came to he found himself tied to a post.

The
account given by the appellant of the incident is not worthy of belief. It was
he who, annoyed and peeved by the interference of Santiago Cerrado and Crescendo
Doro, assaulted both. There was no reason for the Santiago Cerrado and Crescendo
Doro to force appellant to leave the house, for after all the latter and Rosario
Aguillon already had agreed the previous day to live apart. It is incredible
that he could have gotten hold of the bolo from the partition wall
(tabique), because the trunk on which he sat was opposite the corner of
the house where the bolo was kept and the trunk was nearer the door and the
kitchen than said corner (pp. 46, 47, t.s.n.), and he was being pushed from the
trunk to the kitchen. He could not have taken the bolo from the place where it
was kept while he was being pushed towards the kitchen or after falling down.
There can be no doubt that he had the bolo about his body when he came to the
house early in the morning of that day. In view of the inherent improbability of
the appellant’s story about the assault of which he claims to have been the
victim, as testified to by him alone, the version of the incident, as related by
the three witnesses for the prosecution, which is logical, and reasonable) has
to be accepted.

The trial court found the appellant guilty of frustrated homicide. This is an
error. When he went to the house of Rosario early in the morning of 31 August,
it was not with the intention to. kill anybody, for he went there to entreat
Rosario Aguillon to live with him in another house. Neither could the remarks
uttered by Crescendo Doro and Santiago Cerrado have aroused his temper to such
an extent as to engender the desire and intent to kill them. The finding of the
trial court is based on the kind of weapon? carried by the appellant when he
went to the house and on the parts of the victims’ bodies at which the weapons
were aimed, as shown by the wounds inflicted. The bolo with which the appellant
inflicted the wounds upon Santiago Cerrado and Crescencio Doro was one
ordinarily used by farm laborers. The dagger was carried for self-defense. The
wounds inflicted upon the offended parties by the appellant were caused
indiscriminately and not deliberately. Appellant’s purpose in going to the
house, and not the kind of weapons he carried, nor the parts of the victims’
bodies on which the wounds were inflicted indiscriminately, is indicative and
determinative of his intent.

We are of the opinion that the crime committed by the appellant against
Santiago Cerrado, in the absence of proof as to the period of the offended
party’s incapacity for labor or of the required medical attendance, is slight
physical injuries, as provided for in article 266 of the Revised Penal Code; and
against Crescendo Doro is serious physical Injuries, for, although the physician
who had treated him did not state in his testimony the time during which the
wounds would heal or the period during which the offended party would be
incapacitated to perform his ordinary or usual work, nevertheless the evidence
shows that the wound inflicted on the 31st of August upon Crescencio Doro in the
left palm affecting two fingers, 3 inches long and from ½ to ¾ inch deep, was
not yet cured on the day of the trial held on 9 October 1942, or that the wound
did not heal within 30 days. Pursuant to article 263, paragraph 4, of the
Revised Penal Code, and giving the appellant the benefit of the mitigating
circumstance of passion and obfuscation, taken into consideration in his favor
by the trial court (article 13, par. 6, Revised Penal Code), the penalty to be
imposed upon him is six months and 1 day of prision correccional for
the wounds inflicted upon Crescencio Doro; and 15 days of arresto menor
for the wounds inflicted upon Santiago Cerrado.

The other points raised by the appellant were passed upon correctly by the
trial court. Granting that the prosecuting officer did not have a lawful
appointment, he was at least a de facto officer. The motion for new
trial was denied properly. The fact that the appellant was detained was no
obstacle for him to secure witnesses for his defense. He could have secured them
through his relatives and friends or through compulsory process by giving their
names to the trial court. The facts set forth in the affidavit filed in support
of the motion for new trial show that the same are not newly discovered but
forgotten evidence. If admitted, the facts in the affidavit would contradict
several points of the appellant’s testimony.

The judgment appealed from is thus modified, with costs in both instances
against the appellant.

Paras, Actg. C.J., Feria, Pablo, Perfecto, Bengzon, Briones, and
Tuason, JJ., concur.