G. R. No. 45373. March 31, 1937
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. PRIMO PARANA, DEFENDANT AND APPELLANT.
AVANCENA, C.J.:
judgment of the Court of First Instance of Occidental Negros sentencing
him, for the crime of murder committed on the person of Manuel
Montinola, to the penalty of reclusion perpetua and to indemnify the heirs of the deceased in the sum of P1,000, with the costs.
On the morning of May 19, 1936, in the municipality of Silay,
Occidental Negros, the deceased, who was taking part in a game of monte
in the house of Jose Lapuos, was informed by the chauffeur Valentin
Poblacion that his brother Glicerio Montinola’s car, which he had
ordered for his trip to the municipality of Cadiz, was ready to start.
Five minutes later the deceased came downstairs and upon reaching the
street, he turned towards the car which was waiting for him. At that
moment the chauffeur Poblacion, who saw the appellant behind the
deceased in the attitude of stabbing him with a dagger, shouted to warn
him of the danger, and the deceased, looking behind, really saw the
appellant about to stab him. The deceased, defending himself, retreated
until he fell on his back into a ditch two meters wide and 1.7 meters
deep. Without lessening the aggression the appellant mounted astride of
the deceased and continued to stab him with the dagger. As the
chauffeur Poblacion had been making an alarm from the beginning, Liboro
Montelibano, who was in a nearby drug store, about fifty meters away,
went to said place and found the appellant astride of the deceased who
was defending himself with his hands and feet from the blows the
appellant gave him with the dagger. Montelibano wrested the dagger from
the hands of the appellant who, finding himself disarmed, seized the
revolver which the deceased carried in his belt and tried to fire at
the latter without succeeding in his attempt because Montelibano
likewise wrested said weapon from him. After the appellant and the
deceased had been separated, the former still asked Montelibano for the
weapon taken from him, but at that moment a policeman arrived and the
appellant was placed under arrest. When the deceased was later removed
from the ditch into which he had fallen, he was found wounded and was
taken to the municipal building. He was later transferred to the
provincial hospital where he was treated by Dr. Ochoa, expiring six
days later, as a result of general peritonitis produced by one of his
wounds.
The preceding night, at about 11 o’clock, monte had also
been played in the house of Glicerio Montinola, brother of the
deceased. The deceased took part in said game where the appellant was
designated to attend to the players. One Lamay, who was also taking
part in the game, gave the appellant the sum of P2 to buy beer. For
failure of the appellant to immediately comply with this request, a
discussion ensued between him and Lamay and, as both raised their
voices, they were admonished by the deceased. As the appellant
disregarded said admonition, the deceased slapped him and ordered him
to leave the house. The appellant left and went to Lapuos’ house where
he lived, where the deceased took part in another game on the following
day, and where said deceased came from when he was attacked.
At about 7 o’clock in the morning of the crime, the appellant
purchased from the store of the Japanese Matzu Akisama a hunting knife
(Exhibit F), which is the same knife used by him in attacking the
deceased.
On that same morning, at about seven thirty, the appellant went to
the house of Crispin Espacio for whom he used to work, to ask to be
excused from work that day as he intended to wreak vengeance on
somebody. Espacio advised him against it as he might again go to
Bilibid prison, inasmuch as he had already served a term for the crime
of homicide.
These are the facts found by this court to have been established in
this case, proving beyond all doubt that it was the intention of the
appellant to kill the deceased, judging not only from the condition of
the weapon with which he provided himself but also by the manner and
circumstances under which he committed the aggression.
The appellant’s testimony is the only evidence in his defense.
According to him, on the morning of the crime he saw the deceased
taking part in the game in Lapuos’ house where he lived. The deceased
then uttered threatening words to him, which he disregarded, leaving
the house and going to a nearby Chinese store. Sometime, later, as he
was on his way to Lapuos’ house, he saw the deceased coming down and,
approaching the latter, he spoke to him about the incident of the
previous night and of their meeting a few minutes before, asking said
deceased to forgive and not wreak vengeance on him. The deceased, by
way of an answer, drew the revolver which he carried in his belt, and
the appellant, in the face of such attitude, attempted to wrest the
weapon from him. In the struggle the deceased fell on his back into a
ditch and the appellant mounted astride of him, tried to wrest the
revolver from him, and at the same time drew the knife which he
carried, attacking the deceased therewith. When the appellant had
succeeded in taking possession of the revolver, the deceased got up and
walked towards the car. At that moment Liboro Mpntelibano appeared and
the appellant turned over the knife and the revolver to him.
This version of the incident given by the appellant in his
testimony, without any corroboration, is contradicted by the testimony
of the chauffeur Poblacion and of Liboro Montelibano. Furthermore it is
improbable, taking into consideration the fact that he was the offended
party, suffering from the injustice of the offense received, provided
himself with a lethal weapon and approached the’ deceased, which
circumstances do not agree with his attitude, according to his
testimony.
The court correctly found that the qualifying circumstance of treachery was present in the commission of the crime.
The appellant, in spite of having seen the deceased in the upper
story of Lapuos’ house, did not wish to attack the latter there
undoubtedly to avoid his being defended by the many players who were
with him. Instead, he waited for the deceased at a nearby store until
the latter came down, and attacked him while he had his back turned and
could not see the appellant. All these, which were the beginning of the
execution of the appellant’s design to kill the deceased, constitute
treachery inasmuch as they tended to avoid every risk to himself
arising from the defense which the deceased might make (U. S. vs. MeMann, 4 Phil, 561; U. S. vs. Pendleton, 7 Phil., 457; U. S. vs. Mercoleta, 17 Phil., 317; U. S. vs.
Cabanog, 34 Phil., 620). It matters not that the deceased accidentally
turned around upon hearing Poblacion’s warning and was able to defend
himself from the blow which, at that moment, the appellant was about to
give him with a dagger, because the treacherous character of a means
employed in the aggression does not depend upon the result thereof but
upon the means itself, in connection with the aggressor’s purpose in
employing it. Otherwise the crime of attempted or frustrated murder
would not be punishable (People vs. Reyes, 47 Phil., 635).
For this reason the law does not require that the treacherous means
insure the execution of the aggression, without risk to the person of
the aggressor arising from the defense which the offended party might
make, it being sufficient that it tend to this end.
However, even considering the1 incident at the moment the deceased
turned around and saw the appellant in the attitude of stabbing him,
this court also finds therein the elements of treachery inasmuch as the
aggression, under the circumstances, was so sudden that the deceased,
who carried a revolver in his belt, had no chance to defend himself
with it.
Considering the incident at the moment the appellant mounted
astride of the deceased, who defended himself only with his feet and
hands without having been able to use the revolver carried by him in
his belt, when said appellant, in such situation, inflicted the wound
which caused the death of the deceased, he likewise acted with
treachery on the ground that, under the circumstances, he was not
running, as in fact he did not run, any risk arising from the defense
which the deceased might make.
And so, whether the beginning and the end of the aggression be
considered singly, or the development thereof be considered as a whole,
it is evident that the aggravating circumstance of treachery was
present.
The aggravating circumstance that the appellant is a recidivist
must be taken into consideration. The mitigating circumstance that he
had acted in the immediate vindication of a grave offense committed
against him a few hours before, when he was slapped by the deceased in
the presence of many persons, must likewise be taken into
consideration. Although this offense, which engenders perturbation of
mind, was not so immediate, this court is of the opinion that the
influence thereof, by reason of its gravity and the circumstances under
which it was inflicted, lasted until the moment the crime was
committed. Lastly, the other mitigating circumstance that the appellant
had voluntarily surrendered himself to the agents of the authorities
must be considered.
For the foregoing considerations, this court finds the appellant
guilty of the crime of murder qualified by treachery, and, taking into
consideration the presence of one aggravating and two mitigating
circumstances in the commission of the crime, and applying the
Indeterminate Sentence Law, Act No. 4103, he is sentenced to the
penalty of from ten years of prision mayor, as the minimum, to seventeen years, four, months and one day of reclusion temporal, as the maximum, affirming the appealed sentence in all other respects, with the costs. So ordered.
Abad Santos, Imperial, and Diaz, JJ., concur.
DISSENTING
VILLA-REAL, J.,
worthy opinion of the majority in so far as it finds the circumstance
of treachery established and takes it into consideration in order to
qualify as murder the crime committed by the herein accused-appellant
Primo Parana.
The accused-appellant, testifying on the aggression, said :
“And when I went home, it was the precise moment when Manuel Montinola
was coming down and we met on the way. I then called him saying:
Please, I have to tell you something. I approached him and said:
Maning, last night you slapped me and you still continue to talk
against me; you do not pity me. It was you who took me to serve in that
gambling house; if you take revenge upon me I shall lose the job and
there is no other person to whom I can apply for help. I would die of
hunger. Have compassion on me because I have not offended you. I have
done nothing wrong against you and if I have committed an offense
please forgive me. You used to give me something when you won in the
game. By way of an answer he said to me: Go away, you are a fool, and
immediately drew his revolver from his pocket. When I saw him take his
revolver from his pocket, I held him by the wrist and he persisted in
his efforts. I then jerked his hand and in the struggle he retreated
until he fell into the ditch. I released him because he slipped from my
grasp. He then pulled his revolver out of his pocket and I jumped into
the ditch and seized his hand holding the revolver, pressing it against
his breast. With my left hand I took the revolver and with my right I
unsheated the hunting knife, which I carried in my belt. I warned him
saying: Do not fire your revolver seizing the barrel of the revolver
with my left hand, twisting it with my right hand which carried the
hunting knife. We struggled for the possession of the revolver and I
succeeded in taking it away. I then left him and withdrew to a distance
of about one braza from him while he got up and ran towards
the car. Then Benito Abellar arrived and said to me: Give me your
hunting knife and the revolver. Liboro Montelibano later arrived and
said to me: Primo, do you know me? I answered: Yes, I know you. You are
one of my friends. He told me: Turn over to me the revolver and the
hunting knife.”
Valentin Poblacion, a witness for the prosecution, testifying on the aggression stated briefly as follows:
As the deceased Manuel Montinola had borrowed his brother Glicerio
Montinola’s car, which was being driven by the witness as Glicerio
Montinola’s chauffeur, he (Poblacion) brought it at 10 o’clock in the
morning of the day of the crime to the house of Jose Lapuos, where said
Manuel Montinola was playing monte. The accused-appellant Primo Parana was also in said house playing monte.
The witness left the car parked in front of Jose Lapuos’ house and went
up to notify Manuel Montinola. As Manuel Montinola told him to wait,
the witness left the house and went to the car to do as he was told.
About five minutes after he had left, he saw the deceased Manuel
Montinola also coming downstairs. The Jatter told him to wait because
he had yet to go to his house. The witness had hardly turned when, upon
looking back, he saw the accused Primo Parana behind the deceased in
the attitude of stabbing the latter in the back. The witness then
called out to Manuel Montinola, saying: “Maning, Maning, Primo is going
to stab you.” Upon hearing this, Manuel Montinola turned around and,
seeing the accused in the attitude of stabbing him, retreated defending
himself. He fell on his back in the street near a ditch and in this
position he continued to defend himself with his feet and hands until
he finally fell into the ditch, which was a braza wide and
threefourths of a meter deep, without ceasing to defend himself. This
struggle lasted only about two minutes, in the course of which, the
accused succeeded in inflicting a slight wound in the left side of
Manuel Montinola’s breast. Liboro Montelibano then came and, seizing
the accused by his left side, wrested from him the dagger, Exhibit P,
with which he stabbed the deceased,’ and took the accused to the
municipal building. The witness saw no revolver on the person of the
deceased.
It will be noted that between the testimony of the
accused-appellant and that of Valentin Poblacion, there is a
discrepancy as to the commencement, of the aggression. While the
accused-appellant states that he had a conversation with the deceased
during which the latter called him a “fool” and drew his revolver from
his pocket, which said accused-appellant tried to wrest from him,
Valentin Poblacion stated that after he had informed Manuel Montinola
that his brother Glicerio’s car was at his disposal and Manuel told him
to wait because he would first go home, he (Poblacion) went to his car,
and, upon turning around, he saw the accused-appellant behind the
deceased in the attitude of stabbing him. The testimony of the
accused-appellant relative to the conversation had between him and
Manuel Montinola is very probable inasmuch as on the morning in
question both were at the house of Jose Lapuos from which they came
down. This conversation was not contradicted by anybody.
Article 14 of the Revised Penal Code provides that “there is
treachery when the offender commits any of the crimes against the
person, 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.”
If, as the defense claims, before the fight a conversation was had
between the deceased and the accused, during which the deceased called
the accused a “fool” and drew his revolver, it cannot be stated that
the accused employed means, methods and forms in the fight which tended
directly and specially to insure the infliction of the wound, without
risk to himself arising from the defense which the offended party might
have made, on the ground that the deceased was not only the provoker
but also the aggressor.
But even granting, for the sake of argument that the accused was
about to stab Manuel Montinola, while the latter’s back was turned, but
he did not succeed in his attempt due to Valentin Poblacion’s shouts of
warning, it can not be said that he acted with treachery in wounding
the deceased while the latter lay upon his back in the ditch, inasmuch
as he had been defending himself with his feet and hands and his
defense was so effective that the accused succeeded in wounding him
only slightly. The attempted treachery disappeared from the moment
Manuel Montinola became aware of the danger from the knife of the
accused, to which his person was exposed, and was able to evade it by
retreating until he fell into a ditch from which, as a cat upon its
back, he defended himself with his feet and hands. In order that
treachery may exist, it is necessary that the means, methods, or forms
employed in the commission of any of the crimes against persons be made
use of simultaneously or in such a combination as to afford the
offended party no defense that may endanger the person of the
aggressor. If in the development of a fight commenced treacherously by
the aggressor, the offended party comes upon a chance to defend himself
and is wounded, it cannot be juridically stated that he was wounded
treacherously.
In view of the foregoing considerations, we are, therefore, of the
opinion that treachery, as a circumstance qualifying the crime of
murder, was not present in this case. The crime resulting from the
facts established during the trial should be considered as a simple
homicide and punished with the penalties prescribed therefor by the law.
CONCEPCION, J.:
I concur in the foregoing dissenting opinion of Justice Villa-Real.
CONCURRING AND DISSENTING
LAUREL, J.,
I yield to the conclusion of guilt of the appellant. I also accept
the concurrence of the mitigating circumstance of vindication of a
grave offense in favor of the appellant (par. 5, art. 13, Rev, Penal
Code). I however join in the dissent from the opinion of the majority
that treachery was present in the commission of the offense. I really
do not think that the appellant had adopted a method or form of
execution which tended directly and especially to insure the
accomplishment of his purpose without risk to himself arising from any
defense which Manuel Montinola could have made. The evidence for the
prosecution is to the effect that the appellant was seen by the
chauffeur Poblacion behind the deceased in the attitude of
stabbing the latter. Poblacion called out to Manuel warning him and the
latter turned around and, seeing the attitude of the appellant,
retreated and in so doing fell on his back into a ditch (pp. 24, 26,
30, t. s. n., Set II). Seeing this the chauffeur cried out for help and
brought to the scene Liborb Montelibano who was at the time at a drug
store. Montelibano wrested from the defendant the knife, Exhibit F, and
the revolver which the defendant had taken from the deceased. Whatever
may be the rule as to the continuity of an attack, whether treachery
must precede it (U. S. vs. Balagtas and Jaime, 19 Phil., 164)
or may be considered if present at any time thereafter in the interval
before its termination (U. S. vs. Baluyot, 40 Phil., 385), I
express the opinion that upon the facts of this case there was no
treachery. Although the defendant was in the attitude of stabbing the
deceased from behind, that was at most a mere attempt, ineffectual, and
the wound was actually inflicted while the appellant and the deceased
were struggling in the ditch and in the course of which the deceased
made quite an effective defense.
I believe that the appellant should be convicted of simple homicide
with the aggravating circumstance of recidivism, he having been
previously convicted by final judgment of the Court of First Instance
of Zamboanga in criminal case 2143 for the crime of homicide on July
20, 1921, which circumstance is compensated by the mitigating
circumstance of immediate vindication of a grave offense. Considering
the mitigating circumstance of voluntary surrender in his favor, he
should be sentenced to an indeterminate penalty ranging from six years
and one day, prision mayor, to twelve years and one day, reclusion temporal, with the accessory penalties provided, the indemnity, and the costs.