G.R. No. 71527. August 10, 1989
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PANTALEON BERBAL (DECEASED), ANACLETO BERBAL AND RESTITUTO JUANITE, ACCUSED-APPELLANTS.
MELENCIO-HERRERA, J.:
Originally, this case was elevated to this Court for automatic
review by reason of the death penalty imposed on accused-appellants, Anacleto Berbal and Restituto Juanite, for the crime
of Murder, by the Regional Trial Court at Dapa, Surigao del Norte, Branch XXXI, in
its Criminal Case No. 538.
Considering that, pursuant to Section 19(1), Article III of the
1987 Constitution, the death sentence has been automatically commuted to reclusion
perpetua, the Court required accused-appellants to file a written
manifestation stating whether or not they wished to continue with the case as
an appealed case.
It appears that accused, Pantaleon Berbal, died on 25
March 1983 and that the Trial Court had dismissed the case as
against him. As to accused
Restituto Juanite, who had
absconded after having entered a plea of Not Guilty, the Trial Court deferred
the promulgation of his sentence until after his arrest.
On 2 July 1987,
accused-appellant, Anacleto Berbal, manifested that he
wished to continue with this case as an appealed case. Briefs were respectively filed by the
parties, and this case was calendared for deliberation on 20 July 1989 before the Court en banc,
which resolved to refer it to this Division.
The facts for the prosecution follow:
On 28 December 1982,
Cristina Basul, a 58-year old woman, was stabbed to
death at her home at Barangay San Roque,
Socorro, Surigao del
Norte. She sustained 25 stab
wounds. Living with her at the time were
her granddaughter, Dolores, nine years of age, and her two grandsons, Arnel, a Grade I student, younger than Dolores (t.s.n., September 22, 1983, p. 24), and Dondon,
who was even younger than Arnel (ibid., p. 25). Only Dolores witnessed the stabbing
incident. She recounted:
“Q – What were you doing
that time of 8:00 o’clock in the
evening on December 28, 1982
together with your companions?
A – We were already asleep and what I notice
(sic) was the noise.
Q – What was the noise about?
A – I heard the moaning of mother (sic) and the
kicking of her feet on the mat.
Q – What did you do upon noticing the said
moaning of your grandmother?
A – I just pretended to sleep and I heard Anacleto Berbal said ‘Kadlit na to’.
Q – Who said ‘kadlit na to?’
A – That Anacleto Berbal.
Q – What is ‘kadlit na to?’
A – You light the match.
Q – Then immediately after you heard that voice,
what happened?
A – Then I opened my eyes and what I saw was Anacleto Berbal and Restituto Juanite.
Q – Can you explain why you saw these two
persons?
A – I saw Anacleto Berbal kept (sic) on stabbing or ‘nagluba-luba‘
in the local dialect to (sic) Nanay Cristina.
A – How about Restituto
Juanite, what did he do while Anacleto
Berbal was stabbing Nanay
Cristina?
A – He was holding a match that he had lighted.
x x x x
x x
Q – How far was Restituto
Juanite from Anacleto Berbal when he was holding that lighted match?
A – They were only standing abreast.
Q – How about your Nanay
Cristina, where was she in relation to Anacleto Berbal when Anacleto Berbal was stabbing her?
A – Very
near only.
Q – What was the position of this Nanay Cristina?
A – She
was lying on one side.
Q – This Anacleto Berbal, do you know him personally.
A – Yes, sir.
Q – How long have you known him?
A – It is quite a very long time already, sir.
Q – If
he is in the court room, can you identify him?
x x x x
x x
Q – And, have you seen this Anacleto
Berbal many times before December 28, 1982?
A – Yes, sir.
I often saw him.
Q – Where?
A – There in barangay
San Roque, Socorro, Surigao
del Norte.
Q – How about Restituto
Juanite, do you know him?
A – Yes, sir, I know him also.
x x x x
x x
Q – How long have you known him?
A – While I was yet a child I knew him already.
Q – Do you know where was Restituto
Juanite residing that time?
A – Yes, sir, there at Barangay
San Roque, Socorro, Surigao
del Norte.” (t.s.n., September 22, 1983 pp. 9-15)
Upon further inquiry as regards the persons she saw in her
grandmother’s room that night, she declared:
“Q – Only Anacleto Berbal and Restituto Juanite were there when you saw the killing of your Nanay Cristina, is this correct?
A – Yes, your Honor.
Q – There were no other persons that you saw at
the time when your Nanay Cristina was stabbed?
A – None, your Honor.
Q – But it was Anacleto
Berbal who did the stabbing, is this correct?
A – Yes, your Honor.
Q – And Restituto‘s participation was only the lighting of these matches, is
this correct?
A – Yes, your Honor.” (ibid., p. 22)
As to whether or not she saw the weapon used in stabbing her
grandmother, she stated:
“Q – Have you seen the weapon used in the stabbing
of your Nanay Cristina?
A – Yes, your Honor, it was a sharp pointed bolo.
Q – Will you demonstrate, how long was that bolo
that you saw?
A – I
could not demonstrate, your Honor, because their light
was put off later on.” (ibid.)
On cross-examination, Dolores Basul was
asked as to why and how she was able to recognize her grandmother’s attacker
and she declared as follows:
Q – Now that evening during the stabbing of your Nanay Cristina, where
was your Nanay Cristina sleeping?
A – At the bedroom already, your
Honor.
Q – That house of your Nanay
Cristina, how many rooms were there?
A – Only two (2).
Q – Now, in
the room where your Nanay
Cristina was sleeping who was sleeping with your Nanay
Cristina during the stabbing?
A – She was alone (sic) herself.
Q – How about you where (sic) you slept in that
place, when you said that you slept near the bench?
A – Yes, your Honor.
Q – This place where you slept near the bench was
this in the sala or in another bedroom?
A – At the sala of the
house where we used to sleep.
Q – This room where your Nanay
Cristina was sleeping had a door also?
A – Yes, your Honor.
Q – Was there a shutter to this door of the room
of your Nanay Cristina?
A – None, sir, not even a curtain.
Q – You mean to tell the court that there was no
shutter, is this correct?
A – Yes, your Honor.
x x x x x
x
Q – Now this place where you slept near the bench
of your sala, how far to the door where your Nanay Cristina slept?
A – From
where I was sleeping to the door of the room was 4 meters.
Q – This door of your Nanay
Cristina’s bedroom, how wide is this?
A – Witness demonstrated right in the witness
stand about 3 feet wide.
Q – Now this door was opened and your Nanay Cristina was visible from the place where you were sleeping?
A – Yes, your Honor.” (t.s.n., September
22, 1983 pp. 46-48)
x x x x x
x
Q – Now according to you, you saw Anacleto Berbal stabbed your Nanay Cristina because you pretended to be
sleeping. Do you remember having
said that?
A – Yes, sir.
Q – And when Anacleto Berbal did this high act, there was no more light inside
the room of your Nanay Cristina?
A – Yes, sir.
Q – All
right, now, how did you happen to recognize Anacleto Berbal who stabbed your Nanay
Cristina when your were 4-meters away from the room where she was sleeping?
A – Because Restituto Juanite lighted the match and I opened my eyes and I saw Restituto Juanite and Anacleto Berbal, the two of them.
Q – Where was Restituto
Juanite when he lighted this match?
A – There at the side of Anacleto
Berbal.” (t.s.n., September 22, 1983, pp. 60-61)
x x x x x
x
Q – And where was your Nanay
Cristina sleeping inside the room on the bed or just on the floor?
A – On the floor.
Q – So there was no bed therefore?
A – None, sir.
Q – And, according to you the door of the room
was just opposite where your were sleeping?
A – Yes, sir.
Q – And the width of the door as you demonstrated
is wide as this?
A – Yes, sir.
Q – Now considering that the width of the door of
the room is as long as that would it be alright if I
will tell you that this is supposed to be the floor of your Nanay
Cristina because of the same width?
A – Yes, sir.
Q – Now since they are exactly opposite each
other, could you tell us where does this Nanay
Cristina use to sleep.
In your side, in
this side or in the center of the door?
A – At the center.
Q – You mean just right where the
stenographer is sitting?
A – Yes, sir.
Q – All right now according to you these Anacleto Berbal and Restituto Juanite went directly
to the room of your Nanay Cristina and there was no
light in the sala.
Will you tell the Court, how you were able to identify that the person
who entered and went to the room of your Nanay
Cristina were Anacleto Berbal
and Restituto Juanite when
there was no light?
A – When they entered the house Anacleto Berbal said ‘kadlit na
to’ or you light the match ‘to’ which is referring to Restituto
Juanite.
Q – Were you already awakened during that time?
A – Yes, sir.
Q – Now what was your feeling or what was your reaction
when you noticed that the intruders got inside the house?
A – I
kept pretending myself asleep.
COURT:
Q – Why did you pretend to sleep?
A – Because I just observe of (sic) what
they will be doing.
Q – But
you were not frightened, is this correct?
A – I was afraid.
Q – Then, because you were frightened, how
did you feel?
A – I could not move and I could not even
shout because of fear.
Q –
But your eyes were closed, is this correct?
A – Yes, I kept pretending to be asleep.
Q – You did not open your eyes, is this correct?
A – When Anacleto Berbal said ‘kadlit na to’ or you light the match,
what I saw were Anacleto Berbal
and Restituto Juanite.”
(t.s.n., September
22, 1983, pp. 85-89)
To corroborate Dolores’ testimony, the prosecution presented
Buenaventura Tandayag, who declared that in the
evening of 28 December 1982, at his house in the quay at San Roque, accused-appellants, Anacleto
Berbal and Restituto Juanite, inquired from him whether he was going to Sitio Sabang, which was a neighboring town about one
kilometer away. He replied in the
affirmative as he needed to buy petroleum for his lamp. Thereafter, at around 11:00 o’clock that same evening, the three of them left
San Roque for Sabang,
riding in his (the witness’) “baroto.” When
asked whether they had any conversation en route, he
replied:
“Q – What
did he say?
A – He
said: “that mother or Auntie
Cristina would die as I “lubaluba“, I
stabbed her.”
x x x x
x x
Q – After Anacleto Berbal
commented, what did you do?
A – I just
did not make a reply that time as I was afraid” (t.s.n.,
January 11, 1984, pp.
9-10).
And as to whether Anacleto Berbal was bringing something, Buenaventura
said:
“Q – Do
you remember if Anacleto Berbal
was bringing something in his possession in going to Sabang?
A – Yes,
sir.
Q – What
did he bring?
A – What
he brought with him was his jacket and that sundangay,
about one foot and a half, about
14 inches long”
Q – Where
did he place that bolo?
A – He
just held it.
Q – Without his scabbard?
A – There
was a scabbard.
Q – You
mean the bolo was placed in the scabbard?
A – Yes, sir” (ibid., p.
10).
For his part, Anacleto Berbal denied that he was the assailant contending that he
and Rodrigo Maturan left San Roque
at around 3:30 P.M. on 28 December 1982 for Barrio Sabang arriving thereat at around 5:00 P.M. Then they
pulled out to sea to go fishing and returned only in the morning of the
following day (t.s.n., March 28, 1984, pp. 11-12). Maturan
corroborated this testimony (t.s.n., November 27, 1984, pp. 3-4, &
6).
The Trial Court rejected the defense of denial and alibi and
meted out a judgment of conviction, thus:
“WHEREFORE, viewed in the light of the foregoing, the Court
finds Anacleto Berbal and Restituto Juanite guilty beyond
reasonable doubt of the crime of MURDER as defined and penalized under Art. 248 of the Revised Penal Code. With three (3) generic aggravating
circumstances of ‘nightime‘, ‘dwelling’ and
‘disregard of age and sex’ without any mitigating circumstance, Anacleto Berbal and Restituto Berbal are hereby
sentenced each to suffer the penalty of DEATH for the murder of Cristina B. Basul. The said
accused are further ordered, jointly and severally to indemnify the heirs of
the victim the amount of twelve thousand (P12,000.00) Pesos; and another
(P6,000.00) Pesos for actual and incidental expenses incurred due to the death
of the victim; plus Five Thousand (P5,000.00) Pesos as moral and exemplary
damages without subsidiary imprisonment in case of insolvency. Finally, said accused shall suffer the
accessory penalties imposed by law and to pay the costs.
“For reasons that Restituto Juanite is still at large, the promulgation of his sentence
is deferred until he is arrested.
Concomitantly, let arrest orders be issued against Restituto
Juanite; the warrants of arrest be coursed through the
Provincial Commander of Surigao del Norte and the National Bureau of
Investigation (NBI), Region X, Cagayan de Oro City and Metro
Manila.
“The bonds posted for the temporary liberty
of Anacleto Berbal is
hereby ordered CANCELLED and the pertinent papers, if any, shall be returned to
the bondsmen.
“Let the records of this case be forwarded to the Supreme
Court of the Philippines,
Metro Manila, for automatic review of the case.” (Decision, pp. 30-31, Rollo, pp. 45-46)
Assailing the aforesaid judgment, Anacleto
Berbal maintains that the lower Court erred in:
“(1) not ruling that the guilt of
defendant-appellant has not been proven beyond reasonable doubt; (2) ruling
that the crime was aggravated by nocturnity; and (3)
ruling that the crime was aggravated by
disregard of the respect due the victim because of her age and
sex.” (Appellants’ Brief, p. 1, Rollo, p. 113)
The first assigned error zeroes in on the alleged inherent
incredibility and hopelessly contradictory testimony of the nine-year old grandaughter of the victim, Dolores.
On this score, the
Trial Court had this to say:
“Being a minor when she took the witness stand, her competency
was duly shown; coupled by the spontaneous and straight-forward manner she
recounted the details of the incident
but with neglible inconsistencies, the court found
her testimony credible – pointing to Anacleto Berbal and Restituto Juanite as killers of the victim. Inspite the rigid
and lengthy cross-examination, she stood firm on her version unconfused. x x x
x x x x x
x
“The narration of
facts by Dolores Basul with detailed clarity
pinpointing to Anacleto Berbal
as the person who inflicted the stab injuries
in conspiracy with Restituto Juanite remained untoppled upon
being cross-examined lengthily. Her
demeanor while recounting details of
the incident generated discernible
message of truth worthy of credence.
x x x ” (Decision, pp. 19-20; Rollo,
pp. 36-37)
We have gone over the transcript of Dolores’ testimony meticulously
and agree with the assessment made by the Trial Court.
Appellant claims that if it
be true that Dolores really saw her grandmother murdered, it is incredible that
she would have done nothing; that she would have just gone back to sleep and
waited till the next morning before going to the house of her aunt, which was
100 to 200 meters away to inform her of the tragedy instead of going
immediately to the house of their nearest neighbor, which is only 25 to 30
meters away (t.s.n., September 22, 1983, pp. 26; 80).
We find nothing incredible in Dolores’ foregoing actuations. On the contrary, for a child of her age, she
showed good judgment. It should be
recalled that, aside from her grandmother, her only companions in the house
were her first cousins, two boys who were younger than she, and who were both
fast asleep. To have gone out of the
house immediately by herself in the darkness of night would have been risky on
her part besides the fact that she was “afraid”. She judiciously waited till early dawn,
although it was really still dark that she had to light the lamp in their sala, woke her cousins up, and together they proceeded to their aunt’s house. Although a neighbor did live nearer their
place, there was no assurance that the same assistance and concern as that of a
blood relative would be extended to them.
That she took no positive action immediately after the incident but went
back to sleep is neither strange for, as testified to by her, she could neither
move nor shout because of fear (t.s.n., September 22, 1983, p. 88). She
had sensed that with all the stabbings her grandmother had received, she was
already dead.
“Q – You
did not bother to find out in the room of your Nanay
Cristina what happened to her but you just went back to sleep?
A – I
just went back to sleep as I could not move and I could not shout because of
fear” (t.s.n., Sept. 22, 1983, p. 121)
Appellant Berbal further claims that
Dolores involved herself in serious contradictions when she declared three
times that she was awakened by the kicking of the door by Anacleto
(t.s.n., September 22, 1983, pp. 55, 64 & 79);
while twice, she also stated that it was the moaning of Cristina that awakened
her (ibid., pp. 9 & 10). Hence, it
is argued, if it was her grandmother’s moaning that awakened her, Dolores could
not have seen the stabbing because the latter preceded the former in point of
time.
The contradiction is more apparent than real. Dolores woke up when the door was kicked open
by Anacleto Berbal but did
not bother to stand up because she had already seen a person.
“Q – You
did not bother to stand up and find out what was his purpose in kicking your
door?
A – I did
not stand up because I saw already a person” (t.s.n.,
Sept. 22, 1983, p. 56).
When that happened, she pretended to be asleep.
“Q – And,
you were awakened when that door was opened because you were just near the door?
A – Yes
(witness demonstrated by closing her eyes pretending that she was slept
(sic).” (ibid. p.55)
In other words, when Anacleto Berbal kicked the door open, she was already awakened but
pretended to be asleep. She then saw Anacleto Berbal enter her
grandmother’s room and heard him instruct Restituto Juanite to light a match after which she saw Anacleto stab her grandmother and heard her moan and kick
her feet on the mat. Dolores was,
therefore, awakened when the door was kicked open and remained awake since then
and throughout the stabbing although she pretended to be asleep.
“Q – In
other words, when your Nanay Cristina was moaning you were already awakened
earlier because of the kicking of the door by Anacleto
Berbal?
A – Yes, your Honor, as
I pretended to be asleep.” (t.s.n., September
22, 1983, pp. 66-67)
The crucial point is that Dolores witnessed the stabbing. She had a direct view as she was lying down
opposite the door of her grandmother’s bedroom – (t.s.n.,
September 22, 1983, p. 85),
which was open and had neither shutter nor curtain (ibid., p. 47). The truthfulness of her testimony can also be
gauged by the fact that she accurately stated that her grandmother was lying on
her side, crosswise on her mat on the floor, when she was stabbed several times
by Anacleto.
This was confirmed by the testimony of the public health nurse who
conducted an examination on the body of the deceased and found multiple stab
wounds at her back (t.s.n., March 8, 1984, pp. 7-9),
by the photographs depicting the stab wounds on her back (Exhibits
“C”, “C-3”, “C-4” and “C-5”), and by
the death certificate (Exhibit “B”) of Cristina Basul
stating that she died of shock secondary to severe internal hemorrhage due to
multiple stab (25) wounds.
The veracity of her testimony is further shown by her statement
that the door of their house was unlocked, which was confirmed in the Affidavit
of accused-appellant Restituto Juanite
executed on 22 January 1983
(p. 10, Original Record). That she was
not prone to exaggerate either, is shown by her
declaration that she could not demonstrate the length of the bolo used by Anacleto as “they (Anacleto
and Restituto) had put off the light.” (t.s.n., September
22, 1983, p. 22)
Her identification of accused-appellants is likewise very
credible. Anacleto
Berbal and Restituto Juanite were no strangers to her (t.s.n.,
September 22, 1983, p. 14). Anacleto, being a
relative of her grandmother (t.s.n., March 28, 1985, p. 14) used to visit
the latter at her house (t.s.n., September 22, 1983, p. 115). In fact, when questioned if Anacleto was her friend, she replied in the affirmative
(ibid., p. 118). That
the lighted match, therefore, illumined only a small area will not affect her
recognition of Anacleto and Restituto
since she knew them well.
There being nothing in her testimony nor from the records to
indicate that Dolores was actuated by improper motives, her
declarations are entitled to full faith and credit (People vs. Boholst, L-73008, July 23, 1987, 152 SCRA 263). Neither can we believe, as claimed by the
defense, that Dolores was just a coached witness. It would have been difficult for a child of
such tender years to have been merely taught to give all the details that she had narrated and to have
withstood a long and grueling cross examination if she had not, in fact,
witnessed the brutal incident.
Appellant’s defense of
alibi cannot prevail over the positive
identification made of him by prosecution witness, Dolores Basul,
aside from the fact that he failed to prove that it was physically impossible
for him to have returned from his fishing trip and to have been at the situs of the crime at the time it was committed.
Moreover, disproving Anacleto’s claim
that he was out fishing, and could not have been at San Roque,
the scene of the crime, was the testimony of prosecution witness, Buenaventura Tandayag, who declared that at around 11:00 o’clock P.M. on
28 December 1982, Anacleto Berbal
and Restituto Juanite rode
on his banca from San Roque
to go to Sitio Sabang where
he intended to buy petroleum. In other
words, they were at San Roque where the crime took
place that evening. Notwithstanding that
Pantaleon Berbal was Tandayag’s brother-in-law and Restituto
Juanite’s father was Tandayag’s
“compadre“, Tandayag
still testified the way he did.
We come now to the modifying circumstances accompanying the
commission of the crime. The aggravating
circumstance of nighttime was correctly appreciated by the Trial Court,
contrary to the second assignment of error.
It is self-evident that it was sought by appellant to facilitate the
commission of the offense, when all the members of the household were
asleep. The fact that Restituto Juanite lit a
matchstick does not negate the presence of said aggravating circumstance. Thus, in People vs. Rogelio Soriano, et al. (L-32244, June 24, 1983, 122 SCRA 740),
this Court rejected the contention that nocturnity could
not be appreciated because flashlights were used.
We agree with the defense, however, when it claims in its third
assigned error, that the aggravating circumstance of disregard of the respect
due the victim on account of her age, 58 years old at the time of the
commission of the crime, is not present.
The prosecution failed to show that the accused had deliberately
intended to offend or insult her age (People vs. Diaz, L-24002, January 21,
1974, 55 SCRA 178).
Nor can we appreciate the aggravating circumstance of disregard
of the respect due the victim on account of her sex. It has not been shown that Appellant had
particularly intended to cast insult or commit disrespect to the sex of the
victim (People vs. Brana, L-29210, October 31, 1969,
30 SCRA 307). In one case where lesiones were inflicted by the defendant on
his prospective mother-in-law, abuse of superiority was considered aggravating
but not disregard of sex (United States vs. Juan Escobar, 1 Phil. 200, cited in
the Revised Penal Code, Book I, Aquino, p. 290).
Abuse of superior strength which was alleged in the Information,
must, indeed, be appreciated in the case at bar. Appellant and Restituto
Juanite purposely used excessive force out of
proportion to the means of defense available to the person attacked. The 58-year old victim herein was attacked
while she was asleep. Although only one
of them was armed, the presence of the other served to ensure the accomplishment
of their felonious act. An attack made
by a man with a deadly weapon upon an unarmed and defenseless woman constitutes
the circumstance of abuse of that superiority which his sex and the weapon used
in the act afforded him, and by means of which the woman was overcome and
rendered unable to defend herself, and perhaps not even able to escape from the
savage attack of her aggressor (U.S. vs. Consuelo, 13 Phil. 612 (1909); People
vs. Quesada, 62 Phil. 446 (1935).
With the qualifying circumstance of abuse of superior strength,
and the aggravating circumstances of nocturnity and
dwelling, without any mitigating circumstances, the supreme penalty is, indeed,
imposable. However, considering the
provisions of Article III, Section 19, paragraph (1) of the 1987 Constitution, and the majority ruling in People vs. Millora, L-38968-70, February
9, 1989,[1]
the penalty should be reduced to reclusion perpetua.
The indemnity to be paid to the heirs of the victim should be
increased to P30,000.00 consistent with prevailing
jurisprudence.
WHEREFORE, the judgment of conviction of the accused Anacleto
Berbal and Restituto Juanite, is hereby AFFIRMED, with the modifications that
the penalty is reduced to reclusion perpetua and
the civil indemnity increased to P30,000.00. Proportionate costs against
the accused, Anacleto Berbal
and Restituto Juanite.
SO ORDERED.
Paras, Padilla, Sarmiento,
and Regalado, JJ., concur.
[1] Subject to the dissents in
that case.