THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RAFAEL DUMLAO, ALIAS “RAFY DUMLAO”, ACCUSED-APPELLANT.

In Criminal Case No. L-2568 of the
defunct Court of First Instance of Pangasinan, Branch
I, presided by Judge Willelmo C. Fortun,
RAFAEL DUMLAO was accused of
murder said to have been committed in the words of the information as follows:

“That on or about the 25th day of July, 1981, at barangay Portic, municipality of Bugallon, province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a bolo, with intent to kill and with evident premeditation
and with abuse of superior strength, did, then and there, wilfully,
unalwfully, and feloniously attack, assault, and hack
Alfredo “Boy” Fernandez, thereby inflicting upon the latter mortal
wounds which caused his death.” (Expediente,
p. 29.)

In his decision Judge Fortun said:

“The wounds inflicted on the victim (13 incised wounds, on the
lips, jaw, carotid artery, cheek, shoulder, etc.) shows a determined intention
to kill.  The killing is murder as
the victim, Alfredo Fernandez,
was hacked from behind, in a sudden, unexpected, and,
therefore, treacherous manner. 
The aggrava­ting circumstances of evident premeditation and abuse of superior strength were not
proved by the prosecution.  The aggravating
circumstance of night time is absorbed by treachery and cannot, therefore, be
considered as attendant.  No mitigating
circumstance was proved by the defense.” (Expediente, pp. 63-64.)

Conformably to his finding, Judge Fortun
sentenced Dumlao as follows:

“WHEREFORE, the Court finds the accused, RAFAEL DUMLAO, alias
“Raft Dumlao” GUILTY beyond
reasonable doubt of the crime of murder, and, pursuant to law, hereby
sentences him to suffer the medium penalty of reclusion perpetua
(life imprison­ment), to indemnify the heirs of the victim, Alfredo
“Boy” Fernandez, in the amount of P12,000.00,
with­out subsidiary imprisonment in case of insolvency, and to pay the costs,
less the preventive period of his im­prisonment.” (Expediente, p. 64.)

Dumlao appealed and now claims that the
trial court committed the following errors:

“I. THE TRIAL COURT ERRED IN
NOT CONSIDERING THE SIGNIFICANCE AND IMPORT OF THE AUTOPSY REPORT AND TESTIMONY
OF DR. ARMANDO V. CANTO THE RURAL HEALTH PHYSICIAN OF BUGALLON, PANGASINAN.

II.   THE TRIAL COURT ERRED IN NOT CONSIDERING
THERE WAS NO POSITIVE IDENTIFICATION OF THE ACCUSED RAFAEL DUMLAO WHO ALLEGEDLY HACKED THE VICTIM ALFREDO “BOY”
FERNANDEZ.

III.  THE TRIAL COURT ERRED IN
CONVICTING THE ACCUSED RAFAEL DUMLAO
BASED ON THE UNCORROBORA­TED WEAK AND INSUFFICIENT TESTIMONY OF PRUDENCIO AYAP;
WHEREAS, THE EVIDENCE OF ACCUSED-APPELLANT IS CLEAR AND CONVINCING AS TO
PRECLUDE HIS PRESENCE AT THE TIME OF THE ALLEGED HACKING INCIDENT.

IV.  THE TRIAL COURT ERRED IN OVER LOOKING TO
CONSIDER THE ABUNDANT EVI­DENCE ON RECORD THAT WILL UNMASK THE REAL
PERPETRATORS OF THE CRIME AGAINST THE VICTIM.” (Brief,
pp. a-b.)

The People’s version of the facts is as follows:

“Alfredo “Boy” Fernandez was on his way home at aroud 7:00 o’clock in the evening of July 25, 1981 after
paying a visit to the spouses Prudencio Ayap and his wife, Angelina de Vera.  A few minutes after he left, Prudencio went to the kitchen to close the window
shutters.  While doing so, he saw Alfredo
walking towards the bridge fronting his house which was only 30 meters away; he
was obviously unaware that someone who was holding a bolo, followed close­ly
behind him.  Prudencio
immediately recognized him to be Rafael “Rafy”
Dumlao.  He and
his family had known him since he was a small boy and since his house was
situated about 80 meters away from Prudencio’s house
at Barangay Portic, Bugallon, Pangasinan and some­times
they even saw each other twice a week because of the proximity of their houses
(Tsn, May 11, 1982, pp. 35- 36; Tsn,
May 26, 1982, p. 6).  All of a sudden as
Alfredo was nearing the foot of the bridge, Prudencio
saw accused hack him at the back (Tsn, May 12, 1982,
p. 15) with his 16 inch-bolo (Tsn, May 11, 1982, p.
43).  Prudencio
saw accused hack him twice with his bolo although he did not know how many
times thereafter he might have hacked him (Tsn, May
11, 1982, p. 40) because he had by then rushed downstairs to call for his son
who was under the house (Tsn, May 26, 1982, p.
10).  Realizing that Alfredo’s life might
be in danger, they hurried towards the bridge; it did not take them three minutes to reach a distance of from 12 to 15
meters from the bridge.  Rafael was by
then on the other side of the creek but Alfredo “Boy” was nowhere in
sight (Tsn, p. 10, id).  Brandishing his bolo, Rafael threatened them
thus:  ‘If you
will reveal what happened to any­one, I will kill both of you.’ (Tsn, May 11, 1982, p. 41; Tsn, May 12, 1982, p. 5).  Fearing for their lives, they ran towards
their house.  They remained there only
for the night because the next day, without reporting the matter to the police because of the acts of the accused,
they went up to the mountains to get rattan. 
It was only three days later that they came down; they found out that
Alfredo “Boy” was dead (Tsn, May 12, 1982,
p. 9).  A total of 13 wounds were found
on his body (Tsn, May 11, 1982, p. 6).

An autopsy conducted by Dr. Armando Canto, the rural health
physician of Bugallon, Pangasinan
on July 26, 1981 revealed
the following findings (Exh. A):

‘AUTOPSY
REPORT

Cadaver of ALFREDO FERNANDEZ, 26 years old, male, married, from Umanday, Bugallon, Pangasinan.

Findings:

1.   Incise wd. nose to upper
lip, 3 inches long

2.   Incise wd. 2-1/2 inches
long lower jaw, left

3.   Incise wd. 2-1/2 inches
lower jaw 1/2 inch from wd. No. 2, left

4.  Incise wd. 6 inches long
neck left cutting the carotid artery and the jugular vein

5.   Incise wd. 2-1/2 inches
long upper lip, left

6.   Incise wd. 2 inches
long, check left

7.   Incise wd. 3-1/2 inches
long, left cheek to ear

8.   Incise wd. 2-1/2 inches long tem­poral, left

9.   Incise wd. 1-1/2 inches
long supra-orbital, left

10. Incise wd. 3 inches long frent­-temporal,
left

11. Incise wd. 1-1/2 inches long frontal

12. Incise wd. 1-1/2 inches long shoulder left

13. Incise wd. 4 inches long scapular, left (Decision, p. VI-VII)

According to him, the wounds could have only been inflicted by a
sharp bladed weapon such as a bolo (Tsn, May 11,
1982, pp. 11-19).

Investigation would reveal that the accused nurtured a grudge
against the victim for the latter’s refusal to join his gangmates
in stealing cows (Tsn, May 26, 1982, pp. 42-43).  Earlier on June 26, 1981, while the victim, Jose Viliran and his com­panions were constructing a shade for
his sister’s wedding, accused sent his brother-in-law, Inciong,
to call Alfredo because he wanted to tell him some­thing (Tsn,
May 26, 1982, p. 32).  When Alfredo
ignored Dumlao’s command, he sent another person to
call him but the victim stood pat on his decision.  Failing to get Alfredo to come to him,
accused himself went up to their construction place and asked him to explain
his refusal to heed him.  Fired with anger, accused called him ‘arrogant’ (Tsn, p. 34, id) and made Alfredo understand that he can
never forget the incident.  Upon Viliran’s intervention, a possible en­counter failed to
materialize.  Accused left the place but
came back 15 minutes later.  He followed
the workers who were going up the house and brought along his bolo.  He challenged Alfredo anew and when the
latter refused, he took hold of his hair and knocked his head against the wall
(Tsn, p. 35, id). 
When Alfredo would not budge and instead pleaded with him to stop
hurting him, accused grabbed Alfredo’s right hand and punched the latter’s face
with it (Tsn, id, p. 36).  Failing to elicit a favorable response to his
challenge, he shifted his concentration on Viliran
and challenged him instead but the latter refused.  Definitely enraged, he went down­stairs and
said ‘I will never forget this incident’ (Tsn, May
26, 1982, p. 37).  Alfredo might have had
a pre­sentiment about what will later on befall him because when accused had left, he told Viliran that should
he die other than by natural death, the accused will be the one responsible for
it (Tsn, id).

It was only five months later, when Prudencio
and Albino found out that Rafael had taken residence in another barrio, Barrio Cayanga, that they were able to summon enough courage to
give their statements about the
incident.  On the 21st of
December, 1981, Prudencio gave his statement (Exh.
C) before PC Sgt. Graciano
G. Aquino (Tsn, May 27,
1982, p. 24) and Albino Ayap gave a similar statement
(Exh. D) on December 23, 1981.  Immediately after, Prudencio
likewise transferred his house to a land owned by his wife (Tsn,
May 12, 1982, p. 15).  In fact, when
photo­graphs of the situs of the crime were taken on June 19, 1982, a year had passed since the incident took
place and Prudencio’s house no longer stood in the
place.” (Brief, pp. 3-7.)

The appeal raises two
questions, namely:  whether or not Dumlao killed Alfredo Fernandez and, if he did, should the
crime be denomi­nated as murder or homicide only.

Anent the first question,
Prudencio Ayap and his son,
Albino, positively identified the appellant as the one who hacked Alfredo with a
bolo.  The trial court believed the
testimony of the father and his son and We see no
reason to disturb the finding for it was able to observe the demeanor of the
witnesses.  It is to be noted that the
appellant was well-known to the witnesses. 
The appellant and the witnesses not only lived in the same barrio but they were also neighbors.

It is true that the Ayaps did not report the incident until late in December
1981 or only after the lapse of five months from July 25, 1981.  The
reason for the delay is well explained by the threat of the accused who said,
“If you reveal what happened to anyone, I will kill both of you.” (TSN, May 11, 1982, p. 41.) But when the Ayaps
made the report, the appellant had changed his residence to another barrio.

Dumlao interposed the defense of alibi.  He said that on July 25, 1981, he resided in Bo. Portic,
Bugallon, Pangasinan, but
on that day he was in Bo. Cayanga, about 2 kilometers away, with Jorge Espiritu.  He helped Espiritu
to plant rice from 8:00 A.M. to
5:00
P.M. then ate his
supper and slept at Espiritu’s house until the next
day when he went home.

Dumlao’s claim that he was elsewhere when Fernandez
was killed cannot be taken seriously for the following reasons:

1. He was positively identified by the Ayaps
as the killer of Fernandez and he has not satisfatorily
shown any reason why the Ayaps would perjure
themselves.

2. The barrio where he was supposed to be is not so far that it
was not physically impossible for him to have gone to the scene of the crime.

The remaining question is
whether the appellant committed the crime of murder or homicide only.

The information alleges
the qualifying circumstances of evident premeditation and superiority.  We agree with the trial court that the record
does not support these allegations.  The
trial court, however, still convicted Dumlao of
murder because, to use its words, “the victim Alfredo Fernandez, was
hacked from behind, in a sudden, unexpected, and,
therefore, treacherous manner.”

Assuming for the sake of argument that treachery was
present when Dumlao killed Fernandez, it cannot
qualify the crime as murder.  For
treachery is not alleged in the information as a qualifying circumstance and it
is well-settled that, “A qualifying circumstance not alleged in the information
or complaint, although proven, may only be con­sidered as an aggravating
circumstance, but not to qualify the offense charged.” (People
vs. Navarro, L-20860, Nov. 28, 1964, 12 SCRA 530, 537.)

Under the circumstances, Dumlao can be convicted of homicide only with treachery as
a possible generic aggravating circumstance.

The first assignment of
error attempts to negate the presence of treachery.  Thus it is asserted:

“x x x that all the 13 wounds were inflicted on the left side of
the body (tsn-pp. 20-21, May 11, 1982); that if the assailant is a right handed man, all of the wounds
were inflicted in a frontal attack (tsn-p. 27,
May 11, 1982); but if he is
a left handed man, the wounds would be on the right side of the body (tsn-pp. 27-28, May
11, 1982; xxx.” (Brief, p. 23.)

And it is further
asserted:

“Evidently the foregoing declaration of Prudencio
Ayap [that Alfredo Fernandez was hacked at the back]
is false because Dr. Armando Canto testified that all the 13 wounds were in­flicted
on the left side of the body (tsn-pp. 20-21, May 11,
1982); that if the assailant is a right-handed man, all the wounds were
inflicted in a frontal attack (tsn-p. 27, May 11,
1982); but if he is a left-handed man, the wounds would be on the right side of
the body (tsn-pp. 27-28, May 11, 1982); Now, the
conclusion is inescapable that the assailant must have been a right-handed man
because all the 13 wounds were inflicted on the left side of the body; and that
said wounds were inflicted in a frontal attack, according to Dr. Canto in his testimony.”
(Brief, pp. 25-26.)

The most that can be said of Dr. Canto’s testimony is that it was
based on mere supposition.  It cannot
prevail over the testimony of an
eye-witness.  And the possibility that Dumlao used his left hand in hacking Fernandez from behind
cannot be discounted.

The crime committed by the appellant is homicide aggravated by
treachery.

WHEREFORE, the judgment of the court a quo
is hereby modified; the appellant is adjudged guilty of homicide and sentenced
to an indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to eighteen (18)
years of reclusion temporal as maximum, to indemnify the heirs of
the deceased in the amount of P12,000.00, and to pay
the costs.

SO ORDERED.

Concepcion, Jr., Guerrero, De Castro,
and Escolin, JJ., concur.

Makasiar, J., (Chairman), joins J. Aquino’s concurrence.

Aquino, J., concur but vote for ten years and one day of prision mayor as minimum penalty.