THE PEOPLE OR THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FLORO TUMAYAO, SIMEON TUMAYAO, TOMAS CANETE AND SERGIO CANETE, DEFENDANTS AND APPELLANTS.

This appeal has been brought to reverse a judgment of the Court of First
.Instance of the Province of Cebu, finding the appellants, Floro Tumayao, Simeon
Tumayao, Tomas Canete, and Sergio Cafiete, guilty of the offense of homicide,
committed upon the person of Mariano Tundag, and sentencing each of them to
undergo imprisonment for fourteen years, eight months and one day, reclusion
temporal, with the accessories prescribed by law, and requiring them jointly and
severally to indemnify the heirs of the deceased in the amount of P1,000, as
well as to pay the costs of prosecution.

The appellants in this case, as well as the deceased, were residents of the
barrio of Canagahan, municipality of Liloan, Cebu. In 1928 one Isidoro Ontong, a
resident of the same barrio, informally mortgaged a piece of land to Tomas
Canete, one of the appellants in this case, as security for a loan of P20. It
was agreed that the land might be redeemed by payment of the loan at the
expiration of three years. When the time for redemption had about arrived,
Isidoro Ontong went to the house of Tomas Canete for the purpose of redeeming
the property. Canete refused to receive the money, asserting that the money
loaned belonged to his neighbor, Floro Tumayao. Disconcerted by this attitude on
the part of Canete, Isidoro Ontong proceeded to the house of Mariano Tundag for
the purpose of obtaining advice from him. Upon being informed of the incident,
Tundag sent for Tomas Canete and, upon his arrival, inquired the reason why he
had refused to permit Ontong to redeem the land. Canete became angry and
threatened Tundag with a beating, at-the same time advising him that he should
not meddle in the business of other people. The next day, which was December 18,
1930, Mariano Tundag, accompanied by Floro Tumayao, was proceeding across an
open field in the direction where Simeon Tumayao, the son of Floro Tumayao, was
standing. As the two neared the point where Simeon was at work, the latter ran
to a group of banana trees, picked up a spear (lanza), and, as his
father and Tundag approached, he raised the spear in a threatening manner as if
to hurl it at Tundag, at the same time saying: “Now what is it? You pretend to
be smart, and teniente; that money loaned to Isidoro Ontong belongs to
us.” About the same time Sergio Cafiete and Tomas Caiiete appeared on the scene,
and Sergio threw a stone at Tundag, hitting him on the left breast. Immediately
thereafter Floro Tumayao, who was standing somewhat behind Tundag, and
apparently to his right, struck Tundag on the right arm with a bolo, thereby
inflicting a serious wound. Tundag thereupon raised a sickle in his left hand
and advanced upon Simeon Tumayao. The latter, however, retreated, while Tomas
Cafiete struck Tundag on the left hand with a bolo, inflicting a slight cut and
causing Tundag to drop the sickle. It is also claimed that Tomas Caiiete gave
Tundag a second blow on the left leg, but if any such blow was delivered, it
resulted in no flesh wound. Mariano Tundag fell to the ground, and while he was
in this position Simeon Tumayao approached and, with his spear, stabbed Tundag
in the abdomen. The defendants then ran away.

The facts above related are deduced mainly from the testimony of Crestituto
Tundag, a boy of the age of 10 years, or more, who viewed the scene from a
nearby point. This boy’s testimony shows that he was an intelligent observer and
alert in taking in the scene that was transacted before him. Victoria Tundag, a
married woman of the age of 32 years, and a daughter of Tundag, was also an
eyewitness to the trouble. But she failed to take any note of the presence of
Sergio and Tomas Caiiete and apparently failed to see the part which Simeon
Tumayao took in the affair. We have no hesitancy in declaring that the facts, as
above stated and found by the trial court, correctly state the material
incidents of the trouble.

Tundag died in a few days from infection and loss of blood. The doctor who
attended upon him testified that he found three wounds upon the deceased, one
upon the right arm, another upon the left hand, and another in, the abdomen, but
the death evidently resulted from the more serious wound on the arm.

The evidence fails to show that there was any conspiracy on the part of the
four accused to kill the deceased or to do him grave bodily harm. The fact that
the four had, as they seem to have imagined, a cause of grievance against the
deceased arising from his intervention in the misunderstanding that had arisen
between Tomas Canete and Isidoro Ontong over the redemption of a piece of land,
and that the four were somewhat incensed against Tundag on that account, does
not prove a conspiracy to take his life or inflict upon him bodily injury.
Furthermore, the fact that Simeon was not armed with a dangerous weapon when his
father and Tundag approached him in the field, and that Sergio Canete used no
weapon, indicates sufficiently that the homicide was probably the result of an
unexpected encounter. The fatal blow was that given by Floro Tumayao.

Sergio Canete and Tomas Canete, in our opinion, are not guilty of
participation in the homicide, but are more properly subject to punishment for
assault and battery. Sergio Canete, it is true; threw a stone at Tundag and
struck him on the left shoulder, and Tomas Canete intervened for the protection
of Simeon Tumayao, inflicting the slight wound on Tundag’s hand, already
mentioned. There is no proof that either of these two participated in the
criminal design of the principal, Floro Tumayao, nor that there had been any
concert between them with respect to making the unlawful aggression.

As to the part taken by Simeon Tumayao, the same favorable inference cannot
be drawn, for he was the first person to commit himself to the unlawful assault
upon Tundag, and after the latter had been struck down he attacked the prostrate
man with his bolo, inflicting a wound in the abdomen ; and while the wound thus
inflicted was not of a character that would have resulted in death, it shows an
intention to cooperate with his father in inflicting injury upon the deceased.
His position in this matter resembles closely that of Ramon Tamayo in People vs.
Tamayo (44 Phil., 38, 54), who was declared to be an accomplice because of acts
done by him after a fatal injury had been inflicted upon the deceased by another
person. We are of the opinion that in this case also, the appellant Simeon
Tumayao is responsible as an accomplice.

From what has been said it results that the judgment appealed from must be
affirmed, in so far as it finds the appellant Floro Tumayao guilty of the
offense of homicide and sentences him to undergo imprisonment for fourteen
years, eight months and one day, reclusion temporal, with the
accessories prescribed by law, and requires him to indemnify the heirs of the
deceased in the amount of P1,000. The judgment must be reversed as to the other
three appellants: And as to Simeon Tumayao, judgment will be entered declaring
him guilty of homicide, in the character of accomplice, and requiring him to
undergo imprisonment for eight years and one day, prision mayor, with
the accessories prescribed in article 61 of the Penal Code, and imposing upon
him liability to indemnify the heirs of the deceased in the amount of P500, it
being understood that this liability shall be subsidiary to the liability of
indemnification imposed upon Floro Tumayao. These appellants are further
sentenced to pay one-fourth of the costs of both instances. Tomas Canete and
Sergio Canete are adjudged guilty of assault and battery (malos tratos de
obra) under No. 1 of article 589 of the Penal Code, and are sentenced to
confinement for five days, arresto, and required to pay each one-fourth the
costs of both instances. So ordered.

Avanceña, C. J., Johnson, Villamor, Romualdez, and VillaReal,
JJ., concur.

Malcolm, Ostrand, and Imperial, JJ., dissenting in
part:

The circumstances under which the assault was carried out by the accused, and
particularly their concerted action, indicate the existence of a conspiracy
between them, and accordingly we are of the opinion that the judgment should be
affirmed.