PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ESPERIDION RECIMIENTO, JR., AND ROMEO RECIMIENTO, DEFENDANTS-APPELLANTS.

This is an appeal from the decision of the Court of First Instance of Cebu, the dispositive portion of which reads:

“WHEREFORE, the Court finds the accused, Esperidion Recimiento,
Jr. and Romeo Recimiento, guilty beyond reasonable doubt of the crime of
murder described in the aforequoted information. Appreciating in favor
of the accused Esperidion Recimiento, Jr., the mitigating circumstance
of voluntary surrender, but counting against both defendants the
aggravating circumstance of complete disregard of the respect due the
offend­ed party on account of his age and rank, the said accused should
be, as they each are, hereby sen­tenced to the penalty of reclusion
perpetua, with the accessory penalties of the law; to indemnify the
heirs of the deceased Gregorio Macapaz in the sum of P12,000.00, and to
pay the costs.”^[1]

The two appellants are brothers. Only Romeo seeks complete acquittal
claiming he had no part in the killing of the deceased, while Esperidion
seeks modification of the crime committed from murder to simple
homicide. The Solicitor General after analyzing the evidence
recom­mends that the crime committed be modified as requested, but
insists on the participation of Romeo as a co-principal, at least, or as
a co-conspirator.

The evidence for the prosecution would seek to prove the following facts as stated in the People’s brief:

“At about 6 o’clock in the evening of May 15, 1978, on the
occasion of the fiesta in Asturias, Cebu, the family of barrio
councilman Gregorio Macapaz gathered at his house in Barrio Agtarap
together with some guests. Gregorio’s son, Frisco Macapaz, who was
present, had eaten his supper at his father’s house although he resided
at another house nearby. (tsn, September 12, 1978, pp. 3-4).

“Suddenly, a scream rang from Frisco’s house. Frisco’s wife
Visitacion was crying for help as there was a fight going on near the
house. Gregorio, Frisco and a guest by the name of Freddie Tabañag
responded. (Id., 4-5). On their way, the three met Gregorio’s other
son, Elpidio, who told them that Gali Lacaba and appellant Esperi­dion
Recimiento, Jr. were quarrelling. Gregorio and Frisco proceeded on
their way but Tabañag stayed behind to converse with Elpidio. (Id.,
5-6).

“Further on, Frisco went up his house to comfort his wife. She
told him that appellants Esperidion and Romeo Recimiento, on the one
hand, and Gali Lacaba, on the other, were having a fight near the house.
Frisco looked out from the window and saw his father Gregorio, with
lamp in hand, approach the protagonists. (Id., 6-7).

“Gregorio urged appellants not to harm Lacaba since he was their
own cousin. Appellant Romeo turned on Gregorio instead and, without
warning, stabbed him on the chest with a small bolo. (Id., 7-8, 12).
The latter reeled back with the lamp still in his hand. Forthwith,
ap­pellant Esperidion moved up and also stabbed him on the chest with a
stainless hunting knife. (Id., 9-10, 13). As Gregorio fell down the
char­coal pit, he cried out to his son Frisco to help him. (Id., 11).

“Frisco hurried down from his house but, before he could get to
his father, appellants Romeo and Esperidion took turns in further
stabbing Gregorio. (Id., 18-19). As Frisco reached his father’s side,
however, his assailants moved back. Frisco cuddled his father who then
acknowledged that he was going to die of the wounds inflicted by the
appellants. (Id., 20).

“Just then, Elpidio Macapaz, Gregorio’s other son, arrived and
took his father into his arms. Frisco faced appellants who began
throwing stones. One stone in particular hit Elpidio. (Id.,
21-22). Freddie Tabañag also arrived prompt­ing appellants to flee.
When Tabañag asked Gregorio who his assailants were, he replied that
they were the appellants. (Id., 22-23).

“Gregorio was carried to his house but he died before reaching it.
(Id., 24) According to the municipal health officer who conducted an
autopsy of the body of the deceased, the latter sustained the following
wounds:

“External Examination:

Patient is in state of Rigor Mortis. There was signs of decom­position.

“Estremeties:

– Stab wound with clear-cut edges which is located on the
lateral side of forearm right which is 2 1/2 inches in length; 1 1/2
inch in depth.

– Lacerated wound which is loca­ted on the left arm which is 1 inch in length.

– Stab wound with clean-cut edges which measures 2 1/2 inches in
length found on the right arm which is about 1 1/2 inch from the wrist
joint.

“Chest:

– Stab wound located on the left chest at the level of the 4th
inter­costal space which measures 3 1/2 cm. in length; 2 1/2 inches in
depth which directed obliquely going downward towards the left. Stab
wound is loca­ted 1 inch from the left nipple.

– Stab wound with clean-cut edges located on the left chest at
the level of the 5th intercostal space which measures 4 1/2 cm. in
length; 4 cm. in depth with an oblique direction going downward towards
the left. Stab wound is located 7 cm. from the midline.

“Internal Findings:

“Heart:

– There was accumulation of blood clots in the pericardial cavity which is about 300 cc.

– Penetrating wound on the apex of the heart.

“Cause of Death:

– Internal hemorrhage due to stab wound penetrating into the heart. — Exhibit A.”^[2]

We first dwell on the question of whether Romeo took part in the stabbing of the deceased; which Romeo denies.

There are various circumstances to cast reasonable doubt on Romeo’s having stabbed the deceased along with his brother.

(1) Only two witnesses testified against Romeo, and they are both
sons of the deceased. The trial court mentioned along also as a witness
whose testimony is positive as the other brother, Freddie Tabañag, as
having testified against Romeo. It is not true that Tabañag took the
witness stand. One would think, he was suppressed because he would
testify against the prosecution and that if the two witnesses, both
children of the deceased, testified the way they did, including Romeo,
their relationship with the deceased was strong enough a motive to
testify falsely, which is not so for a non-relative.

(2) The testimony of the doctor who performed the autopsy would
point that the wounds he found were caused by one and the same bladed
instrument. (pp. 27-30, tsn, September 4, 1978). Yet the two
appellants, according to Frisco Macapaz, had two different weapons, one a
stainless knife, and another, a small bolo.

(3) Frisco’s testimony as to who delivered the first blow was
variant. In the reinvestigation of the Fiscal, he said it was
Esperidion. In Court on cross-examination it was Romeo. (pp. 5-6,
Appellant’s Brief).

(4) The defense explained that Esperidion was surrendered by his
father. If the two appellants were not in their house when the police
went there, it is not that they fled. Romeo went also to the Asturias
Police Station to visit his brother who had surrendered. If Romeo was
as guilty as his brother who was surrendered by the father. Romeo
should also have surrendered. (p. 9, Appellant’s Brief) This could have
easily been shown by the police blotter. (p. 10, Appellant’s Brief).

If Romeo had delivered as many stabs on vital part of the body of the
deceased, Freddie Tabañag who was with Frisco and the latter’s brother
would have seen Romeo’s participa­tion in the killing. Why did not the
prosecution present Tabañag as a witness instead of presenting only the
two sons of the deceased? As we have earlier stated Tabañag, if
presented may come out with the truth and say that only Esperidion had a
hand in the killing.

It is true the prosecution made mention of a dying declaration of the
deceased which pointed to both Romeo and Esperidion as his assailants.
But this was testified to only by Frisco whose testimony as already
shown does not itself deserve full credibility for the dying declaration
he testified about to be credible.

With the above circumstances, our mind cannot be made to rest easily on the guilt of Romeo. He must accordingly be acquitted.

We agree with the Solicitor General that the crime committed is only
simple homicide, the qualifying circumstance alleged not being present,
not even treachery as the Solicitor General himself opined.

We, therefore, accept the recommendation of the Solicitor General but only as applied to Esperidion.

WHEREFORE, the appealed decision is modified in that Romeo Recimiento,
whose guilt has not been established beyond reasonable doubt, is
acquitted and Esperidion Recimiento, Jr. is convicted for the crime of
homicide with the mitigating circumstance of voluntary surrender,
without any aggravating circumstance and sentenced to an indeterminate
penalty of SIX (6) YEARS and ONE (1) DAY of PRISION MAYOR as minimum to
TWELVE (12) YEARS and ONE (1) DAY of RECLUSION TEMPORAL as maximum, with
the accessory penalties of the law, to indemnify the heirs of the
deceased Gregorio Macapaz in the sum of P12,000.00 and to pay the costs.
SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos and Escolin, JJ., concur.

Makasiar, Acting C.J., (Chairman), see partial dissent.

Aquino, J., dissents. The killing was murder qualified by abuse
of superiority. The participation of Romeo Recimiento in the killing
was proven beyond reasonable doubt as shown in the trial court’s
findings. He votes to affirm the trial court’s judgment.

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^[1] pp. 1-2, Appellee’s Brief, pp. 64-65, Rollo.

^[2] pp. 2-6, Appellee’s Brief, pp. 65-69, Rollo.

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DISSENTING OPINION

MAKASIAR, J.:

I concur with the conclusion that the crime committed is only homicide;
because the qualifying circumstance of treachery is not established
satis­factorily. However, both brothers-appellants should be convicted
of homicide; because the testimonies of the sons of the deceased
sufficed to establish that appellant Romeo is a co-principal by
cooperation of appellant Esperidion. While state witness Freddie Tabañag
was not presented by the prosecution, there is no showing that he was
not equally available to the defense. At any rate, the testi­monies of
the two sons of the deceased demonstrate beyond reasonable doubt the
guilt of both appellants.