THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LUCIO GUTIERREZ, DEFENDANT-APPELLANT.

The decision convicting Lucio Gutierrez of the murder of Fausto
Casanova covered all of 127 typewritten pages. As if reading it was not punishment enough, the accused-appellant was
sentenced to reclusion perpetua, payment of civil indemnity in
the sum of P12,000 to the victim’s heirs, and one-half of the costs.^[1]
His father, Juan Gutierrez, who was also charged as his co-conspirator, was
acquitted on reasonable doubt (although he was probably not spared the tedium
of reading the judgment against his son). The conviction of Lucio Gutierrez is now before us.

Obviously not a believer in the eminently advisable practice of
separating the chaff from the
grain, Judge Glicerio V. Carriage, Jr. of the then Court of First Instance of
Cotabato, took pains to narrate
the testimonies of the nine witnesses for the prosecution and the thirteen
defense witnesses. This covered 104
pages. The rest of the decision is an analysis of the evidence, followed by the conclusions of the
court, with which we do not entirely agree.

From the mass of
conflicting evidence presented by the parties, the Court finds that this was
what actually happened on November 20, 1973, when Fausto Casanova was killed.

At about 3 o’clock in the afternoon of that date, Lucio Gutierrez
went to the drug store of Angelita de Castro. He was slightly
drunk. He asked her to settle things
already (“ayusin na natin”) which she interpreted as referring to his father’s proposal of
marriage. She had consistently
rejected this. Lucio called out for
beer but she told him to go to the nearby soda fountain. She went to the private room adjacent to the
drug store but he followed her and kept sitting beside her, making her change
seats to keep away from him. She told
him to go away and went upstairs. Lucio
remained in the room where Fausto Casanova was sitting beside a round table.^[2]

It was here that Casanova was stabbed with a foot-long kitchen knife that was to cause his death. Angelita de Castro while going downstairs
saw Lucio holding the handle of the knife
which was still embedded in Casanova’s abdomen. Lucio
ran out of the building.^[3]
Casanova was taken to the hospital but refused to make a statement until Lucio was apprehended and brought before
him. Only then did Casanova point to
Lucio as his assailant. Casanova expired several hours later.

Lucio admitted having stabbed Casanova but pleaded
self-defense. He claimed that during
their conversation, Casanova sent him away and told him never to come back or he would be killed. Lucio pointed out that Casanova was not the owner of the building and this answer so angered Casanova that he boxed him but missed. He threw the typewriter he was working on at
him but missed again. Casanova then
grabbed the kitchen knife and tried to stab
him. They grappled, with Lucio
holding on to Casanova’s wrist to prevent him from stabbing him. As they
struggled, Lucio was able to point the knife at Casanova and succeeded in stabbing him. When he saw what he had done, he ran away. Later, he surrendered to the authorities and admitted stabbing
Casanova but claimed he did so only to defend himself.

Having made this plea, Lucio can no longer invoke the
constitutional presumption of innocence. The burden has shifted to him to prove that he killed Casanova because
otherwise Casanova would have killed him. The evidence must be clear and convincing; and it must prevail because
it is strong, not because the evidence of the prosecution is weak.^[4]

Lucio has not proved the first requirement of self-defense, which
is an unlawful aggression on the part of
the victim against his killer.^[5] This
is a condition sine qua
non. Moreover, the aggression
must be of such nature and severity as to
justify commensurate measures to avert it.^[6]

The accused-appellant  claims
that the violence between him and Casanova began when the latter tried to box
him and later hurled a typewriter at him. The boxing by itself, even if true, could not have justified his knifing
Casanova to death. He himself said that
Casanova missed and, no less noteworthy, he was a young and agile man, not yet
twenty-five at the time, facing an elderly opponent. As we have consistently held:

When a person was
attacked with fist blows only, there was no reasonable necessity to inflict
upon the assailant a mortal
wound with a dagger. (People v.
Montalbo, 56 Phil. 443)

In order that such plea (self-defense) can prosper, it must be
positively shown that there was a previous
unlawful and unprovoked attack that placed the defendant’s life in danger and
forced him to inflict more or less severe wounds upon his assailant, employing
therefor reasonable means to resist the said attack. (People v. Pasco, Jr., 137 SCRA 137; People v. Madali, 188 SCRA
69)

The supposed act of unlawful aggression on the part of the victim
is not believable at all. The
prosecution proved that the typewriter Casanova supposedly hurled at Lucio was
a heavy Olivetti desk model,^[7] not
the portable kind as the defense contended. Casanova, who was then fifty-seven years old, could hardly have heaved
that ponderous object as if it were a rock or a stone or some similarly light
article. Moreover, he would not have
thought of throwing such an expensive machine, even in anger, considering its
value and the fact that he was using it for his work.

This implausible claim makes also suspect Lucio’s other contention
that Casanova next grabbed the kitchen knife and struck at him. It is not likely that the remark he said he
had made would have provoked Casanova enough to want to kill him. Notably, Angelita de Castro denied that the
kitchen knife belonged to her household.^[8] Her
10-year old daughter testified that she saw Lucio pull it from his stockings,^[9]
possibly meaning that it was strapped to his ankle.

The only other defense witness who corroborated Lucio’s testimony
was Purificacion Leynes, who presented herself only at the trial and never
offered to talk about the stabbing while it was being investigated by the
police.^[10]
On rebuttal, Angelita and Angeli de Castro both testified that Leynes was not
present when Lucio stabbed Casanova because she did not report for work that
day.^[11]
Leynes admitted on cross-examination that her house was on a parcel of land
belonging to Juan Gutierrez, which fact, according to the trial court, made her
testimony biased.^[12]

The supposed ante-mortem statement made by Casanova was improperly
admitted by the trial court as a dying declaration. The requisites of a dying declaration, to be admissible as an
exception to the hearsay rule, are: (a)
that it must concern the cause and surrounding circumstances of the declarant’s
death; (b) that at the time it was made the declarant was under a consciousness
of an impending death; (c) that he was otherwise competent as a witness; and (d) that the
declaration is offered in evidence
in a criminal case for homicide, murder or parricide in which the declarant is
the victim.^[13]

The said statement^[14]
read in full as follows:

Q-1 Who are you?

A         Fausto Casanova, 57 years old, married and a resident of Makakua
Street, Cotabato City.

Q-2     Why are you here now in the emergency room of the Public Hospital being treated?

A     I was stabbed, sir.

Q-3 When and where did this incident happen?

A         On or about 4:30 o’clock in the afternoon of November 20, 1973, particularly
inside the City Drug store, along Makakua St., this City.

Q-4 Do you
know who stabbed you?

A     Yes, sir, it was Lucio Gutierrez.

Q-5     Do you know the reason or reasons why this Lucio Gutierrez stabbed you?

A         Yes, sir, he has grudge on me due to
the case of de Castro vs. Juan
Gutierrez, father of Lucio Gutierrez.

Q-6 Can
you identify him personally if presented before you?

A     Yes, sir.

Q-7 Presenting to you now Lucio Gutierrez inside the emergency room, is he
the same person who stabbed you?

A     Yes, sir, he is the very one.

Q-8 How
do you feel of the wound you sustained?

A     It’s very painful sir.

That is all.

Ante Mortem statement was taken in the presence of the ff.
witnesses:

1. (SGD) MRS. ANGELITA DE CASTRO

2. (SGD) PATM F. PEDROSO

RIGHT THUMBMARK

FAUSTO CASANOVA

(Affiant)

It is obvious from this statement that it was not made by
Casanova under a consciousness of impending death. All he said was that his wound was “very painful.” The
mere fact that he was under dextrose then and passed away a few hours later did
not indicate that he felt he was about to die.

At any rate, Casanova’s identification of Lucio as his assailant was not really necessary because Lucio himself admitted in open court,
and in an earlier sworn statement made some
twenty days after the incident,^[15]
that it was he who stabbed and
killed Casanova. The sworn statement
was admissible against him, having been freely made by him apparently with the assistance of counsel.

It is noteworthy that in that
statement Lucio said he grabbed the kitchen knife from the table when Casanova
heaved the typewriter at him and that he accidentally stabbed Casanova while parrying his attack.^[16]
This does not square with his subsequent testimony that it was Casanova who grabbed
the knife and that he stabbed the older
man during their struggle.^[17]

The record clearly shows that there was bad blood between the
Gutierrezes and Angelita because of some court cases between them and that
Casanova was directly involved because of his relationship with Angelita as her
uncle and business adviser.^[18] When
Lucio went to the drugstore and residence of Angelita “slightly
drunk,” by his own admission, there arose a tense situation that, not
surprisingly, resulted in violence and death.

The Court is of the considered belief that when Lucio intruded
into the drug store and the private room and was told by Casanova to leave and
never come back or he would be killed, Lucio’s anger, fueled by his mild
intoxication, drove him to reach for the knife and plunge it into Casanova’s
spleen.

The killing was done on impulse, at the spur of the moment and
not deliberately planned. We find there
was no evident premeditation, if only because it is incredible that Lucio would
have been so reckless as to kill Casanova in broad daylight, and in the
latter’s own dwelling place at that. Lucio would have expected the presence of members of the household, not
to mention other possible witnesses, considering that the scene of the stabbing
was adjacent to a drug store and a soda
fountain. Customers were not unlikely
at that time of day.

We cannot accept the conclusion of the trial court that Lucio
simply stabbed Casanova while the latter was seated, and even sleeping. The testimony of the 10-year old Angeli
strains credibility. The finding that
the killing was attended by treachery
must be rejected because the peculiar manner of the stabbing alleged by the prosecution has not been adequately established.

The qualifying circumstances of treachery and evident
premeditation not having been proven and none of the other qualifying
circumstances having been alleged or established, the killing of Fausto
Casanova must be classified merely as homicide and not murder.

There is some doubt as to whether Lucio surrendered or was
apprehended. In his own sworn
statement, he said he was on his way to surrender to the police when he was arrested, but Constable Melchor Bada
said the suspect voluntarily surrendered to him.^[19]
Resolving the doubt in Lucio’s favor,
the trial court correctly appreciated the mitigating circumstance of voluntary
surrender. We shall do so too. It
results that the crime committed being homicide with the mitigating
circumstance of voluntary surrender and no aggravating circumstance, the
prescribed penalty is reclusion
temporal in its minimum
period.

Applying the Indeterminate Sentence Law, the Court hereby imposes
upon Lucio Gutierrez the penalty of imprisonment ranging from 8 years and 1 day
of prision mayor, as minimum, to 12 years and 1 day of reclusion
temporal as maximum. The amount of civil indemnity is increased from P12,000.00 to P50,000.00
conformably to existing
doctrine.

It is worth noting that after the submission of the briefs of the
parties, the accused-appellant filed a Manifestation-Motion^[20]
informing the Court that Angelita de Castro died sometime in August 1976 and
that the property dispute between her estate and the Gutierrezes has been
resolved in a Memorandum of Agreement approved by the probate court. Hence, according to the counsel for the
accused,^[21]
“it is respectfully prayed
that the case be now dismissed on the
ground of said supervening events.” Coming from a member of the bar, the
statement is nothing short of amazing. It is an axiom known even to a first year law student that a criminal
conviction cannot be undone by a civil compromise.^[22]

WHEREFORE, the appeal
is DISMISSED and the conviction of the accused-appellant is AFFIRMED, but only
for the crime of homicide, resulting in the modification of the penalty as
above discussed. It is so ordered.

Griño-Aquino,
Medialdea, and Bellosillo, JJ., concur.

^[1]
Rollo, pp. 6-132.

^[2]
TSN, July 17, 1974, pp. 17-28.

^[3]
Ibid., pp. 36-38.

^[4]
People v. Rey, 172 SCRA 149; Ortega v. Sandiganbayan, 170 SCRA
38.

^[5]
Article 11(1) Revised Penal Code. The
other requirements are reasonable necessity to prevent or repel the unlawful
aggression and lack of sufficient provocation on the part of the person
defending himself.

^[6]
People v. Sazon, 189 SCRA 700; Araneta, Jr. v. CA, 187 SCRA 123.

^[7]
TSN, June 8, 1976, p. 21; June 10, 1976, p. 8.

^[8]
TSN, June 8, 1976, p. 27.

^[9]
TSN, July 16, 1974, p. 24.

^[10]
TSN, February 18, 1975, pp. 32, 65.

^[11]
TSN, June 8, 1976, p. 19; June 10, 1976, p.
3.

^[12]
Rollo, p. 118.

^[13]
People v. Baguio, 196
SCRA 459.

^[14]
Record, pp. 5-6.

^[15]
Ibid., p. 26; TSN, May 4, 1976, pp. 21-22.

^[16]
Id.

^[17]
TSN, May 4, 1976, p. 18.

^[18]
TSN, July 17, 1974, pp. 96, 106.

^[19]
TSN, August 19, 1975, p. 8.

^[20]
Rollo, p. 267.

^[21]
Atty. Guinaid M. Guiani.

^[22]
Subject to Art. 344, Revised Penal Code.