PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LUIS B. TORING, DIOSDADO BERDON AND CARMELO B. BERDIN, ACCUSED-APPELLANTS.

The appellants herein seek the reversal of the October 28, 1980 decision of the
Circuit Criminal Court in Cebu
City in Criminal Case No.
CCC-XIV-2170 the dispositive portion of which reads:

“WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond reasonable doubt of the crime of
MURDER by direct participation as principal; Diosdado
Berdon as accomplice thereto; and Carmelo
Berdin as accessory after the fact.

Appreciating in favor of the accused Luis B. Toring
the mitigating circumstance of voluntary surrender, the said circumstance
having been offset by the aggravating circumstance of nighttime, the accused
Luis Toring should be, as he is, hereby sentenced to
the penalty of RECLUSION PERPETUA, with the accessory penalties of law.

There being neither mitigating nor aggravating circumstances on the
part of the accused Diosdado Berdon,
the said accused should be as he is hereby sentenced to the indeterminate
penalty of from SIX (6) YEARS of Prision Correcional, as minimum, to TWELVE (12) YEARS and ONE (1)
DAY of Reclusion Temporal, as maximum, with the accessory penalties of the law.

Appreciating in favor of the accused Carmelo
Berdin, the privileged mitigating circumstance of
minority, the said accused being only 17 years of age, the accused Carmelo Berdin should be, as he
is, sentenced to the penalty of SIX (6) MONTHS and ONE (1) DAY of Prision Correcional, with the
accessory penalties of the law.

The defendants shall jointly and solidarily
indemnify the heirs of the deceased Samuel Augusto
for actual and compensatory damages in the sum of P15,000.00
and for moral damages in the sum of P50,000.00, without subsidiary imprisonment
in case of insolvency.

The instrument of the crime, the knife, Exhibit “B”, is
confiscated in favor of the government.

Proportionate costs.”

SO ORDERED.”^[1]

According to the prosecution, the antecedent facts are as
follows:

In the evening of May
25, 1980, a benefit dance was held at sitio
Naga, Babag II, Lapu-lapu City
for the last canvassing of votes for the candidates for princesses who would
reign at the sitio fiesta.  As one of the candidates was the daughter of
Samuel Augusto, he and the members of his family
attended the affair.

Also present were members of the Kwaknit
gang, a group which was noted for their bird-like way of dancing and their
propensity for drunkenness and provoking trouble.  Its president, called the “alas”
king, was Luis Toring.  The group was then outside the dancing area
which was ringed by benches.

At around 10:45 p.m.,
Samuel’s daughter was proclaimed the winner in the contest.  Beer and softdrinks
having been served the parents of the candidates by the officers of the Naga Chapel Association which took charge of the affair,
Samuel was tipsy when, after his daughter’s proclamation, he stepped out of the
dancing area to answer the call of nature.

At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and Diosdado Berdon proceed to a dark area while whispering to each
other.  Diosdado
Berdon handed a knife to Luis Toring,^[2]
who then approached Samuel from behind, held Samuel’s left hand with his left
hand, and with his right hand, stabbed with the knife the right side of
Samuel’s abdomen.^[3]
Upon seeing Felix running towards them, Luis Toring
pulled out the knife and, together with Carmelo Berdin and Diosdado Berdon, ran towards the dark.  Felix tried to chase the three but he was not
able to catch them.  He returned to where
Samuel had slumped and helped others in taking Samuel to the hospital.

According to Maria Catalina Sorono, who
was six (6) meters away from Samuel and Luis when the assault occurred, Diosdado Berdon and Carmelo Berdin were poised to
deliver fist blows on Samuel just before Luis Toring
stabbed him.  Diosdado
gave the knife to Luis Toring.^[4]

As soon as she saw the stabbing of Samuel, Maria Catalina shouted
for help.  The three assailants ran
towards the direction of the fields. 
Jacinto Lobas and Mario Andog
responded to her shouts and brought Samuel to the Opon Emergency
Hospital where he died on
arrival.  According to the necropsy
report,^[5]
Samuel, who was thirty years old, died due to massive hemorrhage secondary to
the stab wound on the abdomen.  Said
wound is described in the report as follows:

“Stab wound, with herniation
of omental tissues; elliptical, 3.5 cms. long, running
vertically downward, edges clean-cut, superior extremity rounded, inferior
extremity sharp, located at the abdominal region, right anterior aspect, 7.5 cms. to the right of anterior
median line and 107.0 cms. above
right heel, directed backward, upward and medially, involving
skin and the underlying soft tissues, penetrating right peritoneal cavity,
incising inferior vena cava, attaining an approximate depth of 15.0 cms.”

The death weapon, a kitchen knife made of stainless steel and
with a red-colored handle, was recovered from the house of Luis Toring.  According to
Patrolman Pantaleon P. Amodia,
the police found out during the investigation that Luis Toring
had left the weapon with “Camilo” Berdin.  When the
police confronted Berdin, the latter led them to the
house of Toring which Berdin
entered.  When he emerged from the house,
Berdin handed the weapon to the police.^[6]

An information for murder was filed
against Toring. 
Subsequently, however, the information was amended to include Diosdado Berdon and Carmelo Berdin as
defendants.  The three were charged
therein with conspiracy in killing
Samuel Augusto in a treacherous manner.  Berdon, it was
alleged, “conveniently supplied the death weapon” which Toring used in stabbing Samuel while Berdin
allegedly concealed the weapon to prevent its discovery by the police.^[7]
The crime was purportedly committed with the attendance of the generic aggravating
circumstances of evident premeditation and nighttime.

All three accused pleaded not guilty to the offense charged.  At the trial, Luis Toring,
alias “Lowe,” testified that he was not the president of the Kwaknit gang.  He
went to the benefit dance in the company of Venir Ybanez, Joel Escobia, Ely Amion, Abel Pongase, Abe Berdon, Genio Berdin
and Alex Augusto. 
Toring and his group were standing outside the
dancing area when, at around eleven o’clock
in the evening, Samuel, a known tough guy (“maldito“),
approached them and held Venir Ybanez
by his collar.  Then Samuel thrust the
butt of his shotgun on the chin of Joel Escobia,^[8]
proceeded to another group who were also gangmates of Toring, and again,
with the barrel of his shotgun, hit Eli Amion’s chest
several times.^[9]

Reacting to what he saw, Toring got his
kitchen knife which was tucked in his waist,
approached Samuel from the latter’s right side and stabbed him once as he did not intend to kill Samuel.  Toring then ran
towards the dark portion of the area and went home.  There, he left the knife and proceeded to the
hut by the fishpond of one Roman.^[10]

Toring was sleeping in the hut with his
older brother, Arsenio, when, at around 4:00 o’clock in the morning of May 26, 1980, Edgar Augusto, the younger brother of Samuel, shot them.  Arsenio was hit on
the left leg and he stayed two months in the hospital for the treatment of his
wound.^[11]

At 2:00 o’clock in the
afternoon of May 26, 1980, Toring surrendered to two Philippine Constabulary soldiers.^[12]
They brought him to the police of Lapu-lapu City
on May 28, 1980.^[13]
When the police asked him about the knife he used in stabbing Samuel, Toring told them to go to Carmelo
Berdin because he was the only person who knew where Toring hid it.^[14] Asserting that he was the one who
returned the knife to his own house, Toring testified
that Carmelo Berdin used to
see him hide his weapons upstairs because Berdin was
a frequent visitor of his.^[15]

For his part, Carmelo, a 5-feet tall,
asthmatic 17-year-old whom the court described as “lilliputian,”
admitted that he witnessed the stabbing incident but he ran away with his group
immediately after because he was afraid he might be shot by Samuel.  He was with Toring
when the latter hid the still bloodied knife under a trunk in Toring’s house.  He
was familiar with the hiding place of the
knife because Toring showed it to him and there were
times when he would get the knife there upon Toring’s
request.  Carmelo
corroborated Toring’s testimony that on that fateful
night, Toring carried the knife tucked at the back of
his waistline.^[16]

In court, Toring testified that he
never saw Diosdado at the dance.^[17]
However, in his sworn statement dated May
28, 1980 and marked as Exhibit D, Toring
stated that he took the knife from Diosdado to stab
Samuel.  Confronted with said statement, Diosda­do said that when he asked Toring
why he implicated him, Toring allegedly replied that
he “included” Diosdado because of the case the barangay brigade had filed against Toring.^[18]

According to Diosdado, he did not
attend the May 25 dance because of the trouble which erupted during the dance
the night before.  He did not have anything
to do with the stabbing of Samuel.  He
admitted, however, that a week after the incident, his family went to barrio Andaliw, Ronda, Cebu,
for their yearly visit to his father-in-law. 
He stayed there for fifteen days and would have stayed longer had not
his mother informed him of the subpoena addressed to him.^[19]

On October 28, 1980,
a day after the last date of hearing, the lower court^[20]
rendered a decision descrediting Toring’s
claim that the killing of Samuel was justified because it was done in defense
of a stranger pursuant to Article 11 (3) of the Revised Penal Code.  The lower court found that Toring was the “aggressor acting in retaliation or
revenge by reason of a running feud or long-standing grudge” between the Kwaknit gang and the group of Samuel, who, being the son of the barangay captain, was a “power to be reckoned
with.” It mentioned the fact that a year before the incident in question, Toring was shot by Edgar Augusto
(Samuel’s brother) and hence, in his desire to avenge himself, Toring “needed but a little excuse to do away with the
object of his hatred.”^[21]

The lower court could not believe that Samuel brought along his
shotgun to the dance because he was “not reputed to be a public official
or functionary entitled to possess a firearm.” Otherwise, the police and
the barangay tanod would
have arrested him.  The court surmised
that if Samuel really carried a shotgun, he certainly must have had a permit or
license to possess the same.

It noted that while Toring testified
that Samuel was aiming his shotgun at the chest of Ely Amyon
(Amion), prosecution witness Joel Escobia
claimed that he was at the receiving end of Samuel’s thrusts with the butt of
his shotgun.  To the court, such
discrepancy is fatal to the defense because in appreciating the justifying
circumstance of defense of a stranger, the court must know “with
definiteness the identity of the stranger defended by the accused.”^[22]

The lower court, however, ruled out the existence of conspiracy
among the three accused on the ground that there was no proof on what they were
whispering about when Felix saw them. 
Accordingly, it held that the accused have individual or separate
liabilities for the killing of Samuel:  Toring, as a principal, Diosdado Berdon as an accomplice by his act of giving Toring the knife, and Carmelo Berdin as an accessory for concealing the weapon.  It considered treachery as the qualifying
circumstance to the killing, found no proof as to the allegation of evident
premeditation but appreciated nighttime as an aggravating circumstance.  It meted the accused the penalties mentioned
above.

All three accused appealed.

Toring seeks his exoneration by
contending that his assault on Samuel was justified because he acted in defense
of his first cousin, Joel Escobia.  Article 11 (3) of the Revised Penal Code
provides that no criminal liability is incurred by anyone “who acts in defense of x x
x his relatives x x x by
consanguinity within the fourth civil degree, provided that the first and second
requisites prescribed in the next preceding circumstance are present, and the
further requisite, in case the provocation was given by the person attacked,
that the one making defense had no part therein.” The first and second
requisites referred to are enumerated in paragraph (1) in the same article on
self-defense as:  (a)
unlawful aggression, and (b) lack
of sufficient provocation on the part of the person defending himself.

Joel Escobia, whose chin was hit with the butt of Samuel’s shotgun, is the first
cousin of Toring their fathers being brothers^[23]
although no explanation appears on record why
they have different surnames.  At
any rate, this allegation on relationship was not rebutted by the prosecution.

The appreciation of the justifying circumstance of defense of a
relative, however, hinges in this case on the presence of unlawful aggression
on the part of the victim.  Corrollarily, the claim of Toring
that Samuel was, at the time of the assault, carrying a shotgun to intimidate Toring’s group must be proven.

Understandably, no prosecution witness attested that they saw
Samuel with a firearm.  The prosecution
even recalled to the witness stand Samuel’s widow who asserted that her husband
did not own any firearm.^[24] Going along with the prosecution’s evidence,
the lower court arrived at the rather gratuitous conjecture that Samuel could
not have had a shotgun with him because no one without a permit would carry a
firearm without risking arrest by the police or the barangay
tanod.  At the
same time, however, the lower court described Samuel as the son of the barangay captain who “had the run of the place and had
his compelling presence felt by all and sundry.”^[25]

While matters dealing with the credibility of witnesses and
appreciation of evidence are primarily the lower court’s province, this Court
has the power to determine whether in the performance of its functions, the
lower court overlooked certain matters which may have a substantial effect in
the resolution of a case.^[26]
Defense witness Joel Escobia was, besides Toring, the only witness whose sworn statement was taken by
the police on May 26, 1980,
the day after the fatal assault on Samuel.

In his sworn statement,^[27]
Escobia attested that as he was about to dance with a
girl, Samuel stopped him, pointed his shotgun at him, took a bullet from his
jacket pocket, showed it to Escobia and asked him,
“Do you like this, Dong?” to which Escobia
replied, “No, Noy, I do not like that.” Samuel then
placed the bullet in the shotgun and was
thus pointing it at Escobia when Toring came from behind Samuel and stabbed the latter.  Even on cross-examination at the trial, Escobia did not depart from his statement.  In fact he added that Samuel pointed the
shotgun at his chin and told him to eat the bullet.^[28]

There is no reason to doubt Joel Escobia’s assertion of Samuel’s
unlawful aggression inasmuch as his sworn statement^[29]
and testimony in court had not been successfully discredited by the prosecution
which also failed to prove that Joel had reason to prevaricate to favor Toring.

The presence of unlawful aggression on the part of the victim and
the lack of proof of provocation on the part of Toring
notwithstanding, full credence cannot be given to Toring’s
claim of defense of a relative.  Toring himself admitted in court^[30]
as well as in his sworn statement^[31]
that in 1979, he was shot with a .22 caliber revolver by Edgar Augusto, Samuel’s brother. 
It cannot be said, therefore, that in attacking Samuel, Toring was impelled by pure
compassion or beneficence or the lawful desire to avenge the immediate wrong
inflicted on his cousin.  Rather, he was
motivated by revenge, resentment or evil motive^[32]
because of a “running feud”
between the Augusto and the Toring brothers.  As the defense itself claims, after the
incident subject of the instance case occurred, Toring’s
brother, Arsenio, was shot on the leg by Edgar Augusto.  Indeed,
vendetta appears to have driven both camps to commit unlawful acts against each
other.  Hence, under the
circumstances, to justify Toring’s act of assaulting Samuel Augusto
would give free rein to lawlessness.

The lower court correctly considered the killing as murder in
view of the presence of the qualifying circumstance of treachery.  The suddenness of the assault rendered Samuel
helpless even to use his shotgun.  We
also agree with the lower court that conspiracy and evident premeditation were
not proven beyond reasonable doubt. 
Moreover, nighttime cannot be considered as an aggravating
circumstance.  There is no proof that it
was purposely sought to insure the commission of the crime or prevent its discovery.^[33]
However, Toring should be credited with the priviIeged
mitigating circumstance of incomplete
defense of relative and the
generic mitigating circumstance of voluntary surrender.

The penalty for murder
under Article 248 of the Revised Penal Code being reclusion temporal maximum to
death, the imposable penalty is prision
mayor maximum to reclusion temporal medium in view of the presence of the mitigating circumstances of
incomplete defense of relative and voluntary surrender (Art. 64 [5]).  Applying the Indeterminate Sentence Law, the proper penalty to be meted on Toring is prision correccional maximum as minimum to prision mayor maximum as maximum penalty.

On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot be
sustained in the absence of proof that it was physically impossible for him to
be at the scene of the crime when it was committed.^[34]
His house was only a kilometer away from the place where he supplied the knife
to Toring.^[35]
That distance does not preclude the possibility that Diosdado
aided Toring in the perpetration of the crime as it
could be negotiated in just a
few minutes by merely walking.^[36]
Moreover, his alibi was uncorroborated
as it was founded only on his own testimony and what appears as a
self-exonerating affidavit.^[37]

But what pins culpability on Diosdado
were the testimonies of at least two prosecution witnesses who positively
identified him as the one who gave Toring the
knife.  Motive, therefore, has become
immaterial in the face of such positive identification^[38]
and hence, even if it were true that he was not a member of the Kwaknit gang, his participation in the killing has been
proven beyond reasonable doubt.  Add to
this is the fact that Toring himself in his sworn statement before the police pointed to him as the source of the knife.^[39] Verily, Toring
could not have implicated him because of the incomprehensible reason that a
case had been filed against Toring before the barangay brigade.

Pursuant to Article 52 of the Revised Penal Code, as an
accomplice by his previous act of supplying Toring
the death weapon, Diosdado Berdon
should be meted the penalty of prision mayor
maximum to reclusion temporal medium which is the penalty next
lower in degree to reclusion temporal maximum to death, the
penalty prescribed for murder by Article 248 (Article 6 [3]).  There being no mitigating or aggravating
circumstances, the penalty should be in its medium period or reclusion temporal
minimum (Article 64 [1]).  Applying the
Indeterminate Sentence Law, the minimum penalty should be taken from prision mayor minimum while the maximum
penalty should be within the period of reclusion temporal
minimum.

With regards to Carmelo Berdin, his culpability as an accessory to the murder has
not been proven beyond reasonable doubt.  The fact that he knew where Toring hid the knife does not imply that he concealed it to
prevent its discovery (Article 19 [2]). 
There simply is no proof to that effect. 
On the contrary, Luis Toring in his sworn
statement and testimony during the trial testified that after stabbing the
victim, he ran away and went to his house to hide the murder weapon.  Being a close friend of Toring
and a frequent visitor to the latter’s house, it is not impossible for Carmelo Berdin to know where Toring hid
his knives.  Significantly, Carmelo
readily acceded to the request
of police officers to lead them to the place where Toring
kept the knife.  He willingly retrieved
it and surrendered it to the police, a behavior we find inconsistent with
guilt.

WHEREFORE, the decision of the lower court is hereby
affirmed insofar as it convicts Luis Toring as
principal in the murder of Samuel Augusto and Diosdado Berdon as an accomplice
thereto.

The lower court’s
decision is modified as follows:

(a) Luis Toring shall be imposed the indeterminate penalty of
six (6) years of prision correccional
maximum as minimum to twelve (12)
years of prision mayor maximum
as maximum;

(b) Diosdado Berdon
shall suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor minimum as minimum to
twelve (12) years and one (1) day of reclusion temporal minimum
as maximum;

(c) Carmelo Berdin
is acquitted as an accessory to the murder of Samuel Augusto,
and

(d) Luis Toring and Diosdado
Berdon shall jointly and severally pay the heirs of
Samuel Augusto an indemnity of thirty thousand pesos
(P30,000.00).  Costs against appellants Toring and Berdon.

SO ORDERED.

Gutierrez, Jr., and Bidin, JJ., concur.

Feliciano, J., on leave.

^[1]
Rollo, pp. 24-25.

^[2]
TSN, September 23, 1980, p.
30.

^[3]
TSN, supra, pp. 37-38.

^[4]
TSN, October 14, 1980, pp.
35-37.

^[5]
Exhibit E.

^[6]
TSN, October 15, 1980, pp. 23-24.

^[7]
Rollo, pp. 8-9.

^[8]
TSN, October 22, 1980, pp.
23-24.

^[9]
TSN, supra, pp. 31-32.

^[10]
TSN, supra, pp. 33-39.

^[11]
TSN, supra,
pp. 68-70.

^[12]
TSN, supra, pp. 41-42.

^[13]
TSN, October 13, 1980, p. 7.

^[14]
TSN, October 22, 1980, pp.
42-43.

^[15]
TSN, supra, pp.
79-81.

^[16]
TSN, October 24, 1980, pp.
19-20; 24-25.

^[17]
TSN, October 22, 1980, p.
93.

^[18]
TSN, October 24, 1980, pp.
7-8.

^[19]
TSN, October 24, 1980, pp.
5-6.

^[20]
Presided by Judge Regino Hermosisima, Jr.

^[21]
Decision, pp. 11-12.

^[22]
Decision, p. 13.

^[23]
TSN, October 23, 1980, p.
32.

^[24]
TSN, October 27, 1980, p.
15.

^[25]
Decision, p. 4.

^[26]
People vs. Ligon, G.R. No.
74041, July
29, 1987, 152 SCRA 419, 426.

^[27]
Exhibit G or Exhibit 2-Toring and Exhibit 3-Berdon and Berdin.

^[28]
TSN, October 23, 1980, p.
35.

^[29]
Exhibit G.

^[30]
TSN, October 22, 1980, pp.
74-75.

^[31]
Exhibit C.

^[32]
See:  People vs. Punzalan, G.R. No. 54562, August 6, 1987, 153 SCRA 1, 12.

^[33]
People vs. Beltran, L-38049, July 15, 1985, 137 SCRA 508.

^[34]
People vs. Renejane, G.R. Nos. 76954-55, February 26, 1988, 158 SCRA 258, 268.

^[35]
TSN, October 24, 1980, p.
9.

^[36]
People vs. Santillan, G.R.
No. 68331, January
29, 1988, 157 SCRA 534, 539.

^[37]
Exhibit 4.

^[38]
People vs. Anquillano, G.R.
No. 72318, April
30, 1987, 149 SCRA 442.

^[39]
Exhibit D.