G.R. No. 66324. July 06, 1990
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALFREDO CEMPRON, ACCUSED-APPELLANT.
PARAS, J.:
This is an appeal interposed by accused Alfredo Cempron who was convicted of the crime of Murder by the
Regional Trial Court of Bohol,[1]
Branch 3, for stabbing to death one Gregorio Gudelusao
on November 1, 1982. The dispositive portion of the trial court’s decision reads:
“WHEREFORE, in view of the foregoing considerations, judgment
is hereby rendered finding accused Alfredo Cempron
guilty beyond reasonable doubt of the crime of Murder penalized under Articles
No. 248 of the Revised Penal Code and there being no aggravating circumstance
nor mitigating circumstance alleged in the information, the Court hereby
sentences accused Alfredo Cempron to suffer the
penalty of imprisonment of Reclusion Perpetua to its full extent
which shall not exceed 30 years, together with all the accessory penalties
thereto attached and provided by law; and to indemnify the heirs of Gregorio Gudelusao the amount of P12,000.00; P3,205.00 actual damages; P7,000.00 moral damages; all
Philippine Currency, without subsidiary imprisonment in case of
insolvency pursuant to and in accordance of Article 39 of the Revised Penal
Code as amended by Republic Act No. 5465 and to pay the costs of the
proceedings.
“It appearing from the record that the accused voluntarily
surrendered on November 1, 1982 in the Inabanga
police authorities and was confined at the Inabanga
Municipal Jail since then and was transferred to the Bohol
Rehabilitation Center, Tagbilaran City on January 3,
1983 and had been under preventive imprisonment since then and until at present
and it appearing from the record that he
reduced into writing his conformity and intention to abide by the rules
and regulations applicable to convicts, is given 4/5 credit of his preventive imprisonment at the Inabanga Municipal Jail and full credit of his preventive
imprisonment that he had already undergone at the Bohol
Rehabilitation Center since January 3, 1983 and until at present, pursuant to
and in accordance with the provisions of Republic Act No. 6127.
“The weapon marked Exhibit A is
ordered confiscated in favor of the government.” (pp. 9-10, Judgment;
pp. 162-163, Rollo)
The facts as summarized by the Solicitor General are as follows:
“At or about 3:30 o’clock in the afternoon of November 1982 (tsn, March 24, 1983, p. 2; tsn,
May 19, 1983, p. 26), Gregorio Gudelusao was in a
cockpit in Cogon, Inabanga, Bohol, where
cockfights were currently going on (tsn, May 19, 1983, p. 26).
Gudelusao was a ‘mananari’,
or a person who placed gaffs on fighting cocks (ibid.).
“As Gudelusao was squatting on the ground counting
money consisting of bets of different persons (id; tsn,
March 24, 1983, p. 2), appellant suddenly came from behind him (tsn, May 19, 1983, p. 26; March 24, 1983, p. 2; August 8,
1983, p. 34) holding a fighting cock on the left hand with a knife (Exh. A) concealed beneath the
wings of the cock (tsn, August 8, 1983, p. 35).
Thereafter, appellant successively stabbed Gudelusao
who was totally unprepared for the attack (tsn, March 24, 1983, p. 4; tsn, May 19, 1983,
p. 27). After being stabbed several
times, Gudelusao fell to the ground (tsn, May 19, 1983,
p. 27), with his intestines already exposed (ibid., p. 28). Meanwhile, appellant ran away still holding
his knife (Exh. A) (id; tsn,
March 24, 1983, pp. 4-5).
“Thereafter, Humberto Gudelusao a brother of the victim,
rushed the latter to the Clarin
Emergency Hospital. Later, Gudelusao
was transferred to the Bohol
General Hospital
(tsn, march 24, 1983, p. 5; tsn, May 19, 1983,
p. 28) where Dr. David Indino treated the victim (tsn, May 19, 1983,
p. 16). Unfortunately, however, Gudelusao died at about 8:30
o’clock that same evening due to massive blood loss (ibid.,
p. 17). Dr. lndino executed a Certificate of Death (Exh. C) attesting to Gudelusao’s death (id., pp. 17-18).
“At about 7:00 o’clock
in the evening of the same day, appellant voluntarily surrendered to Agripino Lofranco, a Barangay Officer of Luyo, Inabanga, Bohol,
and the knife (Exh. A) he
used in stabbing Gudelusao (tsn,
June 6, 1983, pp. 1-3). Thereafter, Lofranco
and a certain Patrolman Torreon brought appellant to
the police station (ibid., pp. 3-5).
They gave the knife (Exh. A) to the Administrative Officer for safekeeping (id.,
p. 9).
“Patrolman Torreon
entered the stabbing incident in the police blotter (Exh.
B) (id., p. 3-4).
“It is undisputed that appellant is responsible for Gregorio Gudelusao’s death.
By this appeal, however, appellant maintains that the prosecution failed
to establish, by positive evidence, circumstances which qualify the criminal
act to Murder. He avers that he stabbed Gudelusao merely in self-defense. Hence, or he should be convicted merely of
Homicide, and not Murder, as found by the trial court.” (pp. 3-6, Brief
for the plaintiff-appellee, p. 170, Rollo)
The trial court’s decision convicting appellant Cempron of Murder was premised on the qualifying circumstance
of Treachery. For alevosia or treachery to be appreciated as an
aggravating or qualifying circumstance, the offender should have employed
means, methods or forms in the execution of the crime which tended directly and
specifically to insure its execution without
any risk to himself arising from the defense which the offended party might
make.[2]
On his part, Alfredo Cempron testified
that
“On November 1, 1982, at about 12:00
o’clock noon, he was
already at the cockpit to bet. The
cockfight had started at 11:00 o’clock
in the morning. He bet once only and he
won. The deceased received his (accused’s) bet of P10.00, the former being the collector (‘tenedor’). The deceased was a gaffer and at the
same time, a bet collector. After
winning, he asked the money he won from the deceased. But the deceased said to him, “You did
not give anything to me.” He insisted in asking the amount that he
won. The deceased got angry and boxed
him hitting him in the abdomen. It was 1:00 o’clock in the afternoon when he was boxed
by the deceased. He felt the pain and
walked away. The deceased is robust and
a big man while he is very thin and weak.
Thereafter, he went towards the nearby restaurant and got a kitchen
knife for self-protection. Then, he
proceeded to the deceased reiterating his demand for the bet that he had allegedly won. The deceased got something from his pocket and the accused thought that it
was the money he won. But it turned out
to be a “tari” (gaff). The deceased told him that this (“tari“) will
be the one he would give the accused.
Then, the deceased thrusted that gaff towards
his body. Fortunately, he was able to
evade said thrust. He got his knife and thrusted it against the deceased’s body. There were many persons when he stabbed the
deceased. He stabbed the deceased only
in self-defense. He did not stab the
deceased while the latter was squatting.
He did not stab the deceased from behind. He did not stab the deceased because the
latter testified before the Fiscal that he (accused) gave his knife to one Catalino Luga to kill the son of Luz Gudito. He stabbed the deceased just once in the left abdomen. After stabbing the deceased, he ran towards
the barangay councilman of Luyo
in order to surrender. He did not
surrender directly to the police for
fear of being mauled. He has no
other case.”
(pp. 148-149, Rollo)
In the case at bar, the records show that the deceased was inside
the cockpit and in a squatting position counting the bettors’ money when
suddenly, appellant, holding a knife which was concealed under a cock’s wing,
and while passing behind the deceased, stabbed the latter on different parts of
the body. These facts are clearly estalished by the testimonies of Humberto
Gedulusao and Severina Gudez in open court, thus:
FISCAL MENDOZA:
Q. While
you were at the cockpit at Cogon, Inabanga, Bohol, on November 1, 1982, at 3:30
in the afternoon, did you witness an unusual incident?
HUMBERTO GUDELUSAO:
A. Yes,
sir, there was.
Q. Will
you state and tell the Honorable Court what was that unusual incident about?
A. While
my younger brother Gregorio Gudelusao was squatting on the ground counting
the money, immediately Alfredo Cempron came near
bringing with him a cock and immediately went near to my younger brother,
Gregorio Gudelusao, and stabbed him.
COURT:
Make it appear on record
that the witness was demonstrating by squatting near the testifical
chair. Proceed.
FISCAL MENDOZA:
Q. Who
was squatting at that time as you have demonstrated before this Honorable
Court?
A. Gregorio
Gudelusao.
Q. While Gregorio Gudelusao
was squatting on the ground, what was he doing?
A. He
was counting the money.
x x x
Q. While
your brother, Gregorio Gudelusao, was counting money
as bet in that cockpit as he was the ‘tenedor‘, where
was accused Alfredo Cempron when you said he stabbed
your brother?
A. He was behind Gregorio Gudelusao.
Q. What
was the position of Alfredo Cempron,
was he sitting or standing?
A. He
was standing. (The witness was standing up for the witness
was called to demonstrate before the Court).
Q. Let
us make this clear. You,
as accused Alfredo Cempron, and Mr. Ursino Apalisok (clerk in the
Clerk of Court’s Office, Br.
III) as your brother, Gregorio Gudelusao, counting
the money. Please demonstrate or
show to the Honorable Court how Alfredo Cempron
stabbed your brother, Gregorio Gudelusao?
A. Witness
standing behind Mr. Ursino Apalisok
with the use of his right hand demonstrating by stabbing the left breast. With the use of his right
hand in the act of stabbing the left side of the breast of Ursino
Apalisok.
COURT:
The right hand of
witness Humberto Gudelusao in illustrating the stabbing was over the left shoulder of Ursino Apalisok. Proceed.
Q. Before
Alfredo Cempron stabbed your brother as you have
illustrated, where did he come
from?
A. From
behind Gregorio Gudelusao.
Q. How
did Alfredo Cempron approach the back portion of
Gregorio Gudelusao?
In what manner?
A. He
maneuvered behind the back of my brother, Gregorio Gudelusao.
Q. And
how far were you to accused Alfredo Cempron at the
time he stabbed your brother?
A. Five
(5) meters away.
Q. Was
there a previous exchange of words between Alfredo Cempron
and Gregorio Gudelusao before Alfredo Cempron came behind Gregorio Gudelusao
and stabbed him?
A. None,
sir.
Q. What
was used by Alfredo Cempron in stabbing Gregorio Gudelusao?
A. A
knife (kutsillo).
Q. Did
you see clearly the knife used in stabbing your brother, Gregorio Gudelusao?
A. Yes,
sir.
Q. You
demonstated that Alfredo Cempron
used his right hand in stabbing Gregorio Gudelusao. Now, Do you know
where Alfredo Cempron placed that knife used in
stabbing Gregorio Gudelusao before he stabbed
Gregorio Gudelusao?
A. Beneath
the wing of the cock that he was bringing.
Q. How
did Alfredo Cempron bring the cock? Will you demonstrate that in the Court?
A. The
witness demonstrated that the cock was brought by Alfredo Cempron
under his left armpit.
Q. How
did Alfredo Cempron get the knife from behind the
wings of the cock before he stabbed Gregorio Gudelusao?
A. Alfredo
Cempron got the knife, hidden beneath the wings of
the cock with the use of his right hand and got it and immediately stabbed
Gregorio Gudelusao.
And at that time the cock was dropped to the ground.
Q. Was
Gregorio Gudelusao able to defend himself when he was
stabbed by Alfredo Cempron on his left breast?
A. No,
sir.
Q. Why?
A. He
was unaware of the stabbing.
Q. How
do you know that he was unaware.
A. Because
he was counting the money at the time he was stabbed.
Q. While
your brother was still squatting counting money, how many times did Alfredo Cempron stab your brother Gregorio Gudelusao?
A. Four
times, sir, while squatting and counting the money.
x x x
(tsn, March
24, 1983, pp. 2 4)
Severina Gudez
also testified as follows:
FISCAL MACDOZA:
Q. While
you were in the cockpit in the afternoon of November 1, 1982, was there any unusual incident that
happened?
SEVERINA GUDEZ:
A. Yes, sir, there was.
Q. What was the unusual incident about?
A. My husband was stabbed
by Fredo.
Q. Who is this Fredo who stabbed your husband?
A. Fredo
Cempron was angry with my husband.
Q. This
Fredo Cempron whom you said
stabbed your husband, is he the
same Alfredo Cempron who is the accused on this case?
A. Yes, sir.
x x x
Q. What was the position of
your husband at the time he was stabbed
by Alfredo Cempron?
A. He was squatting.
Q. Why was he squatting?
A. He was writing on the
ground in order to compute the amount of the win.
Q. Will
you illustrate and show to this Honorable Court the position of your husband
while he was squatting and making the writings on the ground when he was computing the amount to be given to
the winner and the owner of the cockpit?
A. Witness
squatting on the floor with the use of her right hand writing on the floor.
Q. It
appears that your left hand is closed.
Tell the Honorable Court what your husband was doing at that time with
his left hand.
A. Money was on his left
hand.
Q. That money was for whom?
A. To be given to the
winners, sir.
Q. What was used by your
husband in making the computation on the ground?
A. Finger, sir.
x x x
Q. You
said your husband was stabbed by Alfredo Cempron
while your husband was squatting on the ground.
Now, How did Alfredo Cempron
approach your husband before he stabbed your husband?
A. The
Court interpreter acts as the victim.
Witness standing behind the right shoulder of the victim with the use of
the right hand in thrusting with her closed fist over the left shoulder and
hitting the lower abdomen of the victim.
Q. Where did Alfredo Cempron get a weapon in stabbing your husband?
A. It was hidden in his
armpit covered with wing of his fighting cock he was bringing along.
Q. After your husband was
stabbed twice he was still squatting, what did he do?
A. He fell to the ground
with face up.”
(tsn,
May 19, 1983, pp. 26-27)
The foregoing appears that the mode of attack adopted by
appellant insured the accomplishment of his purpose without risk to
himself. The trial court therefore
correctly applied the qualifying circumstance of treachery.
Appellant alleges that the trial court erred in imposing the
penalty of reclusion perpetua.
He is correct. The trial
court failed to consider one (1) mitigating circumstance, that is, voluntary
surrender.
Prosecution witness Agripino Lofranco, a barangay official in
the place of the stabbing incident, positively testified that in the same
evening of said incident appellant purposely went to him and sought his help in
surrendering to the police authorities and
he actually turned our appellant to them. In fact,
the trial court made this finding:
“The testimony of Agripino Lofranco for the prosecution was also given weight and
credence by this Court that Alfredo Cempron
surrendered to him after the
stabbing incident and delivered to him the weapon marked Exhibit A.” (p. 161, Rollo) Consequently, appellant
should be credited the mitigating circumstance of “voluntary
surrender.”
The penalty for murder is reclusion temporal maximum to
death. Considering the mitigating
circumstance of voluntary surrender, the imposible
penalty would be the minimum period of the penalty provided for by law which
has a range of 17 years 4 months and 1 day to 20 years. In crimes punishable with death or life imprisonment provided the resulting penalty,
after considering the attending circumstances, is
reclusion temporal or less, the Indeterminate Sentence Law applies. (Aquino,
1 Revised Penal Code 724, 1987
edition).
Applying the provisions of the Indeterminate Sentence Law, the
minimum range of the indeterminate sentence is 10 years 1 day to 17 years 4
months and the maximum range is 17 years 4 months 1 day to 20 years.
PREMISES CONSIDERED, the decision appealed from is hereby
MODIFIED as follows: Alfredo Cempron is guilty beyond reasonable doubt of the crime of
murder, but the penalty, applying the indeterminate sentence law, to be imposed
shall be from ten (10) years and one (1) day of prision mayor to eighteen (18) years and one (1) day of reclusion temporal as maximum and the indemnity is
increased to thirty thousand pesos (P30,000.00) in
line with the prevailing jurisprudence.
SO ORDERED.
Melencio-Herrera, (Chairman),
Padilla, Sarmiento, and
Regalado, JJ., concur.
[1]
Penned by Judge Andres S. Namocatcat.
[2]
People v. Bacho, G.R. No. 66645, March 29, 1989.