G.R. No. 74146. August 02, 1991
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. REMELITO LUBREO AND LUCRESIO LUBREO, ACCUSED-APPELLANTS.
DAVIDE, JR., J.:
This is an appeal from the decision[1]
of Branch 31 (Dapa, Surigao
del Norte) of the Regional Trial Court, Tenth Judicial Region, in Criminal Case
No. 239 for Murder, promulgated on 30
January 1986, finding the accused guilty of the crime of Murder,
the dispositive portion of which reads as follows:
“WHEREFORE, viewed
in the light of the foregoing, the Court finds Remelito
Lubreo and Lucrecio Lubreo guilty beyond reasonable doubt of the crime of MURDER as defined and penalized under
Art. 248 of the Revised Penal Code. With
‘voluntary surrender’ to Remelito Lubreo’s
credit, the Court sentences him to suffer an Indeterminate Penalty of TEN (10) YEARS and ONE (1) DAY of Prision
Mayor maximum as minimum to SEVENTEEN
(17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal
maximum as maximum; while Lucrecio Lubreo, without any mitigating nor aggravating
circumstance, is hereby sentenced to suffer the penalty of RECLUSION
PERPETUA. Both accused are likewise
ordered to indemnify jointly and severally the heirs of the victim, Mamerto Sanico, the sum of Twelve
Thousand (P12,000.00) Pesos; plus Three Thousand Forty (P3,040.00) Pesos for
actual and incidental expenses; and another Five Thousand (P5,000.00) Pesos for
moral and exemplary damages, without subsidiary imprisonment in case of
insolvency; to suffer the accessory penalties imposed by law; and to pay the
costs.
The bolo surrendered by Remelito Lubreo which was used in the perpetration of the offense,
is hereby ordered forfeited in favor of the government. x x x“
At 4:00 o’clock in the
afternoon of 10 March 1976,
the accused, Remelito Lubreo,
voluntarily surrendered to the Police Station of District II, of the Municipality
of Del Carmen, Surigao
del Norte INP Command,[2]
after killing one Mamerto Sanico
at about 2:30 o’clock that same
afternoon at the Provincial Road
in Barangay Antipolo of
said municipality. He was accompanied by
the Barangay Captain of Antipolo,
to whom he immediately surrendered after the incident.[3]
He also surrendered the bolo he allegedly used in the killing.
On 11 March 1976,
Remelito’s sworn statement[4]
was taken by Pfc. Altario Bonsorio
of the Police Station. He claims therein
that when he met Mamerto at the place above indicated
and asked him if he slaughtered his (Remelito’s) dog,
Mamerto immediately drew his dagger and stabbed him,
but he was not hit. Then, he drew his
bolo and stabbed Mamerto several times until his
dagger was thrown away. He left Mamerto believing him to be already dead.
Also on the same date, the sworn statement[5]
of Lucresio Lubreo, brother
of Remelito, was taken by the same police
officer. Lucresio
declares therein that he saw the fight between Remelito
and Mamerto; he was 150 meters away from them.
On 23 March 1976,
a complaint for Homicide, docketed as Criminal Case No. 2546,[6]
was filed in the then Municipal Court of Del Carmen, Surigao
del Norte, charging Remelito Lubreo
alone with the crime of Homicide in connection
with the killing of Mamerto Sanico. Judge Leonor Gorgolon of said court conducted both the preliminary
examination and the preliminary investigation.
Thereafter, he forwarded the records of the case to the Office of the
Provincial Fiscal.[7]
In the meantime however, the Office of the Provincial Fiscal of Surigao del Norte conducted its own preliminary
investigation and, on the basis of the affidavits of Lucas Sanico,
Epifanio Pangatungan, and Nenita Monter, which were
subscribed and sworn to before Assistant Provincial Fiscal Pedro Azarcon on 17 March 1976,[8]
filed on 13 April 1976 with Branch III of the then Court of First Instance (now
Regional Trial Court) at Dapa, Surigao
del Norte an Information for Murder against herein accused (hereinafter
referred to as appellants) Remelito Lubreo and Lucresio Lubreo, which was docketed therein as Criminal Case No.
239.[9]
The accusational portion of the Information reads as
follows:
“That on or about the 10th day of March, 1976, at about 3:00
o’clock in the afternoon, more or less, in Barangay Antipolo, Municipality of Del Carmen, Surigao
del Norte, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accuseds (sic), with treachery and evident premeditation, and with intent to kill, each armed with bolos,
conspiring, confederating and helping one another did then and there,
willfully, unlawfully and feloniously attack from behind and hack, stab and
wound one MAMERTO SANICO, thereby inflicting upon the latter multiple mortal
wounds in the different parts of his body, thus resulting to his death to the
damage and prejudice of the heirs of said MAMERTO SANICO in the amount of
P12,000.00.
Contrary to law, with the qualifying
circumstance of treachery and the aggravating circumstance of evident
premeditation and superior strength.”
x x
x
On 26 September 1978, Acting 3rd Assistant Provincial Fiscal
Antonio Paraguya, the prosecuting fiscal assigned to
the aforesaid court, handed down a resolution wherein he adopted the findings
of Assistant Provincial Fiscal Azarcon and
disregarded the findings of Judge Gorgolon.[10]
Appellants entered a plea of not guilty when arraigned on 23 November 1978.
Trial on the merits was then conducted on various dates.
The prosecution presented Lucas Sanico,
Nenita Monter, Epifanio Pangatungan, Dra. Leonora Gorgolon, and Imelda
Sanico as its witnesses, while the defense presented Hilario Sumaylo, Montano Golindang, Restituto Plazo, Alejandro Cordita, Eduardo
Blase, Pat. Sofronio Espaldon, Lucresio Lubreo, and Judge Leonor Gorgolon, who had by then already retired. Appellant Remelito Lubreo failed to attend the homestretch of the proceedings
and to testify on his own behalf despite several notices and arrest orders
issued against him. Instead, the defense, through the testimony
of Judge Gorgolon, presented and offered Remelito’s sworn statement
(Exhs. “5” and “5-A”) which was,
together with the other exhibits for the defense, admitted in the Order of 29 August 1985.[11]
Promulgation was set for 27
September 1985; however, upon the request of the bondsmen for
sufficient time to produce Remelito Lubreo, it was reset on 28 November 1985.
Claiming that very important matters were needed by it for
clarification from the principal witnesses of the prosecution, the trial court
issued an order on 30 August 1985 ordering that a
“re-enactment” would be conducted at the scene of the incident on 7 September 1985[12]
and directed witnesses Nenita Monter
and Epifanio Pangatungan,
among others, to be present thereat. At
the “re-enactment”, the trial court conducted an on-the-spot examination, under
their previous oath, of witnesses Nenita Monter and Epifanio Pangatungan and appellant Lucresio
Lubreo.
Remelito was subsequently arrested and
committed to the Provincial Warden on 11
November 1985.[13]
Thereafter, his counsel moved that he be allowed to testify, which the
prosecuting fiscal opposed. However, the
trial court in its Order of 28
November 1985 resolved to allow him to testify on 17, 18 and 19 December 1985. In the meantime, the promulgation was reset
to 8 January 1986.[14]
Remelito testified in his own behalf on 17 December 1985.
Due to the absence of the accused, occasioned by inclement
weather, the promulgation on 8 January
1986 was reset to 30 January 1986.[15]
It did take place on said date.
As stated in the
exordium of this decision, the trial court found the appellants guilty of the
crime of murder. In reaching that
verdict, it relied on the prosecution’s version of the incident, as borne out
by the medical certificate testified upon by Dr. Leonora Gorgolon, and the testimonies of Nenita
Monter and Epifanio Pangatungan, thus:
x x
x
“The prosecution’s version:
while hiking that 3:00 o’clock in the afternoon, 10th day of March,
1976, from Barangay Tuburan
towards Barangay Antipolo,
Del Carmen, Surigao del Norte, Mamerto
Sanico, the 23-year old victim met his tragic death
due to the 20 injuries he sustained from the hands of the two (2) accused, the
details of the injuries were reflected in the Medical Certificate, viz:
‘Patient: Mamerto Sanico, 23-years old,
male, married, residing in Tuburan, Del Carmen, Surigao del Norte.
Findings: MULTIPLE HACKED WOUNDS –
1.
Stabbed wound, deep penetrating, 2.5 inches in
length, located at the left 3rd rib parasternal
line. Complete fracture of the 3rd rib
upon probing with index finger.
2.
Hacked wound, 10-inches, in length, deep,
located below the right axilla extend towards the
midline and ending at the right coastal cartilages. Complete fracture of the 5th rib upon probing
with the index finger.
3.
Hacked wound, 3 inches in length, extending from
the side of the right nipple towards the anterior axillary
line obliquely placed crossing the wound no. 2.
4.
Hacked wound, deep, 5.5 inches in length,
located at the left infrascapular area. Incomplete fracture of the 5th rib upon
probing with index finger.
5.
Hacked wound, deep, 3 inches in length at the
medical side of the posterior mid-forearm.
6.
Hacked wound, 3 inches in length at the medial
side of the dorsum of the left hand.
7.
Hacked wound, horizontal, 6 inches in length,
deep with 1.5 inches wide, with visible and palpable cutting the scalp of the
area.
8.
Hacked wound, 2 inches in length, deep, at the
left temporal region, cutting the scalp at that area.
9.
Hacked wound, 6 inches in length, deep with
palpable fracture of the left fronto-temporal region,
also cutting the scalp at that area.
10.
Hacked wound, 2 inches in length, deep located
at the left zygomatic area.
11.
Hacked wound, 7.5 inches in length, deep,
located at the right temporo-zygomatic area.
12.
Hacked wound, 7.5 inches in length, deep,
located at the right temporo-orbital area, with
palpable fracture of the right temporal bone.
13.
Hacked wound, 3 inches in length, deep located
at the right frontal bone with palpable fracture of the right frontal bone,
cutting the scalp at that area.
14.
Hacked wound, 3.5 inches in length of the right
hand, disarticulating the 4 fingers at the proximal joint.
15.
Hacked wound, 2 inches in length,
disarticulating the right thumb at the middle third.
16.
Hacked wound, 3 inches in length, deep located
at the lateral side of the posterior aspect of the right wrist, with complete
fracture of the ulna at the distal 3rd.
17.
Hacked wound, 2.5 inches in length, located at
the palmar side of the left middle finger.
18.
Hacked wound, 3 inches in length, of the left
hand, disarticulating the ring and little finger at the proximal joint.
19.
Hacked wound, 3 inches in length, 2 cms. in depth, located at the medial aspect of the left hypothenar region.
20.
Hacked wound, 3 inches in length, deep located
at the medial side of the left wrist with complete fracture of the left ulna at
the distal 3rd.
(SGD) LEONORA T. GORGOLON, M.D. Resident Physician’
x x
x
Testimonial Evidence
for the Prosecution
1. NENITA MONTER, x x x
Q Mrs.
Nenita Monter, do you still
remember where were you on March 10,
1976 at around 3:00 o’clock
in the afternoon?
A I
was (going) to Barangay Antipolo
during that time;
Q Who
were with you if any during that time when you were (going) to Barangay Antipolo?
A That
Mamerto Sanico;
Q While
you were going to Barangay Antipolo, Del
Carmen, Surigao del
Norte, Mamerto Sanico,
what unusual incident transpired, if any?
A That
was the very incident when Mamerto Sanico was hacked;
Q Who
hacked Mamerto Sanico?
A That
Remelito Lubreo;
x x
x
Q How
did Remelito Lubreo hacked (sic) Mamerto
Sanico?
A (The
witness demonstrated x x x
stating that they met each other and upon meeting each other with two steps, x x x witness placed her right hand
to the left side of her waist in order to unsheathe the bolo; and thereupon he
hacked the same);
Q Was
Mamerto Sanico hit upon
being hacked by Remelito Lubreo?
A He
was hit, sir;
Q In
what part of his body was he hit?
A At
his back. x x x;
Q Then, after Mamerto
Sanico was hit, what happened next?
A (The
witness again turn (sic) her body by facing obliquely and pointed to the other
accused, Okingay (Lucresio Lubreo, added) who thereupon hacked x x
x hitting him (witness pointed again to her
forehead);
x x
x
Q Then,
after Okingay Lubreo hacked
Mamerto Sanico hitting him
on the forehead, what happened next?
A That
was the very moment (I shouted) saying:
‘you run’; and upon his reaching the distance of 3-fathoms, more or
less, that was the very moment he fell down; (then) they ganged up by hacking
one after the other; as if they were beating and hacking a snake;
Q x
x x Was Mamerto
Sanico hit by the hacking of Remelito
Lubreo and Okingay (Lucresio) Lubreo?
A He
was hit, sir;
Q In
what part of his body?
A What
I have seen (was at the back), the forehead, below the right and left armpit
and the epigastric region also;
x x
x
On Court’s questioning, she persisted that Lucresio
Lubreo, alias ‘Okingay‘,
was with Remelito Lubreo
during the incident. Whether the accused
and the victim was facing each other before the initial hacking blow was
executed, during the same cross-examination, she said —
‘ATTY. CORRO:
Q You
also testified during the direct examination that before Remelito
Lubreo hacked Mamerto Sanico x x x
they were facing each other?
A He
was through hacking already when Mamerto faced him.’
On Court’s clarificatory questions, she
amplified that Remelito Lubreo
and Mamerto Sanico who were
hiking at opposite directions had passed each other approximately two (2) steps
before the initial hacking blow was executed by Remelito
Lubreo.
Whether the hacking blow was preceded by a conversation between them,
she said -?
‘Q According
to you, this Mamerto and the accused knew each other;
when they met in that afternoon, did you notice whether they have (sic) some
conversation before the incident?
A No,
Your Honor.’
Continuing, she said that although they (victim and witness) were
all bound for Barangay Antipolo
that fateful afternoon, the victim walked a little ahead of her; and that her
shout of caution to the victim was almost simultaneous to the unsheathing (sic)
of the bolo and hacking blow by Remelito Lubreo.
2. EPIFANIO
PANGATUNGAN
. . . said that last
March 10, 1976 at about 3:00 P.M., he
was clearing grasses at his ricefield when he heard a
shout for help from Nenita Monter. He went to the place of the incident, his portrayal of the incident that he saw
is hereunder reproduced:
Q At
the time when you saw this Remelito Lubreo and Okingay (Lucresio) Lubreo were hacking Mamerto Sanico, what did you do?
A I
ran towards them;
x x x
Q What
about x x x Mamerto Sanico, at that time when
this Remelito Lubreo was
doing the act you demonstrated, what was his position?
A He
was lying on the road;
Q What was the position of Mamerto Sanico who was lying on
the road?
A He
was lying face upward;
Q What
about Lucresio Lubreo, what
was he doing at the time when Remelito Lubreo was hacking Mamerto Sanico who was already lying on the ground?
A The
same he was abetted (sic) in hacking x x x;
Q Do
you know how many times Remelito Lubreo
hacked Mamerto Sanico?
A Many
times, it could not be counted;
Q How
about Lucresio ‘Okingay’ Lubreo, how many times?
A He
abetted in hacking as if they will come after the other in hacking his head and
the neck;
After having witnessed the incident, he informed the parents of the
victim of the fate of the victim.
Finding the father of the victim stunned and helpless, he asked his
relatives for assistance and they
brought the victim to the crossing of the road in order to bring him to the
hospital at Dapa.
x x x”[16]
In respect to the qualifying circumstance of treachery and the
aggravating circumstances of evident premeditation and superior strength, the
trial court held:
“With respect to ‘alevosia’ as qualifying, ‘evident premeditation’ and
‘superior strength’ as generic circumstances, were such circumstances attendant
to aggravate the imposable penalties?
Again the burden to prove treachery is imposed on the prosecution,
principally on the accounts of Nenita Monter and Epifanio Pangatungan. Both in
the examinations in chief during the re-enactment, said witness persuasively
convinced the court that what made the initial attack treacherous was the
sudden hacking blow of Remelito Lubreo
which head (sic) Mamerto Sanico
at the back, said injury tallied squarely with the ‘Injury No. 4. Hacked wound, deep, 5.5 inches in length
located at the left infracapular area; incomplete
fracture of the 5th rib upon probing with index finger.’ Such conclusion finds
support in the following cases, viz:
‘A sudden and unexpected attack under circumstances which render
the victim unable to defend himself by reason of the suddenness and severity of
the attack constitute (sic) alevosia.’ [People vs. Candado,
84 SCRA 508].
‘Killing of the deceased by appellant without warning giving
deceased no time for preparation, resistance or escape qualified the killing by
treachery.’ [People vs. Paya-an, 84 SCRA 393].
The existing jurisprudence as pronounced in many lines of cases
mandates that ‘superior strength’ and ‘evident premeditation’ are absorbed in
treachery. This is true as a treacherous
felon in making preparatory plans naturally will include superiority in
manpower as well as in the instruments to be used during the execution
thereof.”[17]
It further ruled that conspiracy was established because “the
testimonies of Nenita Monter
and Epifanio Pangatungan
corroboratively show that the accused had unity of purpose — to kill the
victim. x x x.”[18]
It discredited appellant Remelito Lubreo’s claim of self-defense and appellant Lucresio Lubreo’s defense of
“alibi” saying, as regards the former, that:
“The self-defense posture is anchored on the allegation that Mamerto Sanico was the unlawful
aggressor; that there was reasonable necessity in using the bolo by Remelito Lubreo in killing the
victim; and that Remelito Lubreo
did not make sufficient provocation to the victim; hence, justified. The crucial task is in determining whether
the entire defense evidence is persuasively convincing as against that evidence
for the prosecution.
The aforecited inconsistent testimonies,
coupled by the recorded fact that Remelito Lubreo failed to post additional bail bond of Ten Thousand
(P10,000.00) Pesos and that he had chosen to jump bail and failed to testify in
the previously scheduled hearings, his whereabouts at that time was unknown,
would lead any Court to disregard and disbelieve the self-defense theory. His actuations during the homestretch of the
proceedings are synonymous with guilt.
His having testified last December 17, 1985 did not change the facts
which served as the basis of the decision.”[19]
With regard to the latter, the trial
court said:
“As to ALIBI of Lucresio Lubreo, the onus probandum rests
with the prosecution (sic). x x x
x x
x
The positive declarations
of Nenita Monter and Epifanio Pangatungan that one of
the assailants was Lucresio Lubreo
outweigh (sic) the defense of alibi, the jurisprudential support hereof reads
—
‘Positive identification by
witnesses that the accused are the perpetrators of the crime is more credible than denials and
alibis of the accused which were not established by full, clear and
satisfactory evidence. [People vs. Candado, 84 SCRA 508].
Defense of alibi is not
considered credible in the case at bar because of the material contradictions
in testimony between accused and his witnesses.
[People vs. Pilones, 84 SCRA 167].
Alibi is a feeble defense where accused’s
residence was only a short distance from the scene of the crime.’[20]
[People vs. Sabater, 81 SCRA 564].”
On 14 February 1986,
through new counsel, Atty. Ignacio P. Moleta, accused
filed an Appearance and Notice of Appeal wherein they gave notice that they are
appealing from the decision to the Intermediate Appellate Court.[21]
On 20 February 1986, the
trial court handed down an Order giving due course to the appeal and directing
the Clerk of Court to forward all the records to the Intermediate Appellate
Court.[22]
However, on 14 April 1986,
the Clerk of Court of the latter forwarded to this Court the records of the
case for the reason that it was erroneously transmitted, it appearing that the
penalty imposed upon accused is reclusion perpetua.[23]
Per the resolution of 23
June 1986,[24]
We accepted the appeal.
On 24 November 1986, the Chief of the Criminal Cases Section of
the Court of Appeals transmitted to this court a Motion For Withdrawal of
Appeal, dated 26 July 1986, signed and thumbmarked by
the appellants,[25]
to which is attached a letter addressed to the Clerk of Court of the
Intermediate Appellate Court, signed by the Appellants, informing the latter
that they are withdrawing the appeal since they are no longer interested in
pursuing it and that they are financially handicapped. Then, in a Joint Motion and Prayer,[26]
dated 27 November 1986 and filed
with this Court on 2 December 1986, appellants informed this Court that they
have lost contact with their former lawyer; they are not satisfied with the
judgment of conviction; and since they are poor and cannot afford to pay the
services of counsel, they pray that an attorney de officio be appointed by the
Court to assist them in their appeal.
Acting thereon, the Court, in its resolution of 5 January 1987, appointed Atty. Constantino B. de Jesus as counsel de officio for the
appellants.[27]
After no less than twenty-seven extensions of time to file
Appellants’ Brief were granted by the Court, Atty. de Jesus eventually filed
said Brief on 24 December 1987.[28]
The Office of the Solicitor General filed the Appellee’s
Brief on 22 March 1988.[29]
Appellants anchor their appeal on the following assigned errors:
“First
Assignment of Error:
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED APPELLANT
REMELITO LUBREO OF THE CRIME OF MURDER DESPITE THE ABSENCE OF EVIDENCE TO
ESTABLISH BEYOND REASONABLE DOUBT THE QUALIFYING CIRCUMSTANCE OF TREACHERY.
Second Assignment of Error:
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING ACCUSED APPELLANT LUCRESIO LUBREO OF THE CRIME OF MURDER
DESPITE THE ABSENCE OF EVIDENCE TO ESTABLISH BEYOND REASONABLE DOUBT HIS
PARTICIPATION IN THE PERPETRATION OF THE SAID CRIME.”
On the first assigned error, appellants maintain that treachery was not established and the conclusion
of the trial court to the contrary, on account of the suddenness of the initial
hacking blow, finds no support as it is based on the testimonies of Nenita Monter and Epifanio Pangatungan which could
hardly be believed. They assert that the
latter did not make any statement relating to the initial attack; in fact, he
admitted that the fight was already
in progress at the time it came to his attention, thus:
“Q While
you were surveying, what unusual incident had you witnessed, if any?
A I
heard the shout saying ‘help’ and when I glanced over it, I saw Mamerto
was ganged up in hacking. [TSN, 28 August 1979, p. 11].
Q Now, that distance is quite near, will you please recall what you heard?
A I heard a shout, your Honor, ‘please help,
help Mamerto Sanico was
hacked!
Q What
did you do upon hearing that shout?
A When I turned my face towards there, I saw
persons hacking one after the other.” [TSN, 7 September 1985, pp. 11-12].
And, insofar as Nenita
is concerned, she merely
demonstrated the alleged hacking blow, thus:
“Q How
did Remelito Lubreo hacked
(sic) Mamerto Sanico?
A (The
witness demonstrated right in the witness stand by pointing both her left and
right hand upon stating that they met each other and upon meeting each with two
steps. And again the witness
demonstrated by holding, placing her right hand to the left side of her waist
in order to unsheathe the bolo, and thereupon he hacked the same.)” (TSN,
6 December 1978, p. 5).
and, during the re-enactment:
“Q You
walk again and demonstrate how the victim was hacked initially at this place;
where the accused was before the initial hacking incident took place?
A (Witness
walking towards Barangay Tuburan
and while passing each other with the victim at a distance of about two (2)
steps, she turned her back to the left and pulled the bolo; thence, hacked the
victim at the back).” [TSN, 7
September 1985, p. 5].
Besides, her testimony is not credible as it is replete with
improbabilities and material inconsistencies.
Thus, for one, if Lucresio Lubreo
were indeed present and one in intent with his brother Remelito,
he would not have simply stood by and watched; he would have either immediately
helped his brother or would have done something to keep Nenita
from shouting for help and attracting attention. Then, it is surprising why, instead of going
home immediately after the incident and to tell her husband about it, she went
to friends and relatives in the next town; moreover, it took her more than
seven (7) days before she executed an affidavit
attesting to the incident. Finally:
“x x x her
testimony is replete with inconsistent statements, which necessarily taint and
discredit the whole. After all, she
positively testified on direct examination
that accused-appellant Lucresio Lubreo hacked the victim on the forehead, causing the
latter to fall (T.S.N., p. 6, 6 December 1978).
In the same manner, she asserted that Lucresio
Lubreo started hacking the victim only AFTER the
latter had fallen (T.S.N., p. 7, 7 September 1985). Moreover, on re-enactment, she assuredly
claimed that it was accused-appellant Remelito Lubreo who hacked the victim the (sic) forehead, causing
the latter to fall (T.S.N., p. 6, 7 September 1985). Also, her initial statement referred to
meeting accused-appellant Remelito Lubreo ONLY (T.S.N., p. 4, 6 December 1978; T.S.N., p. 4, 7
September 1985), a statement which she later refuted by insisting on the
presence and participation of accused-appellant Lucresio
Lubreo (T.S.N., p. 6, 6 December 1978; T.S.N., pp.
7-8, 7 September 1985). For another, she
claimed that the victim fell after the second blow (T.S.N., p. 6, 6 December
1978), but she again refuted this statement later by claiming that the victim
even managed to run a few paces before he fell (T.S.N., p. 7, 7 September
1985). Then she claimed that she shouted
as soon as she saw accused-appellant Remelito Lubreo drawing his bolo (T.S.N., p. 4, 6 December 1978),
but she she (sic) again amended this when she claimed
that she started shouting only after he had fallen (T.S.N., p. 5, 7 September
1985).”
All these improbabilities and material
inconsistencies serve to cast doubts on the credibility of Nenita.
Appellants then conclude that the crime of murder was not
committed; at the most, Remelito Lubreo
could only be guilty of Homicide, mitigated by his voluntary surrender.
On the second assigned error, appellants likewise focused on the
incredibility of the testimonies of Nenita Monter and Epifanio Pangatungan. They
allege that the latter committed falsehoods when he claimed that he himself,
together with a certain Tirso Rudela,
brought the victim to the hospital, when it was actually Alejandro Cordita and Tirso who did so; and
when he asserted in his earlier testimony that he was in his own rice
plantation in Barangay Antipolo
when he heard the shout for help, although, as he admitted on cross-examination during the
“re-enactment”, he does not own any rice plantation.
They further characterize as incredible the story of Epifanio that the victim’s parents, contrary to parents’
natural instinct, preferred not to aid their son when his life was already
hanging in the balance and instead
asked another person to help and take care of him and his claim that both
appellants ran toward Barangay Tuburan
upon seeing him when, as testified by Alejandro Cordita,
he met them in Antipolo.
Appellants finally argue that if indeed Lucresio
Lubreo was a participant in the killing and that he
and Remelito each used a bolo, two bolos should have
been presented in evidence. Yet, only
one was produced and offered in evidence.
No corpus delicti was
established as against him.
Appellants then pray for judgment:
“(1) ACQUITTING accused-appellant Lucresio Lubreo of the crime of
MURDER; and
(2) CONVICTING accused-appellant Remelito Lubreo of the lesser
crime of HOMICIDE, mitigated by voluntary surrender.”
These assigned errors and arguments were squarely met in the
Brief for the Appellee.
Appellee submits that the trial court
did not err in convicting the appellants.
The issues raised by the appellants involve credibility of witnesses and
it is well established that findings of facts of the trial court should not be
disturbed unless there are facts or circumstances of substance which were
overlooked by it which, when considered, would alter the judgment of
conviction.[30]
There is no showing in this case
that the trial court overlooked some facts of substance which, when considered,
would affect its findings. Its judgment
was not based on mere persuasive evidence but on sufficient proof, for purposes of creating moral
certainty, from the testimony of Nenita Monter, an eyewitness to
the crime, regarding the treacherous acts of appellants. Appellee further
argues that the inconsistencies or contradictions in the testimonies of Nenita Monter and Epifanio Pangatungan, capitalized
on by appellants, are merely on minor points and do not affect the
effectiveness of their positive testimonies and identification of appellants.
As regards treachery, Appellee
contends:
“Appellants’ claim that treachery cannot be appreciated
against them is negated by the fact that the victim was unable to prepare
himself for defense, the attack being sudden and unexpected and launched from
behind (pp. 5-6, tsn, December 6, 1979); the victim was
hacked continually even after he fell to the ground (pp. 14-17, tsn,
August 28, 1979); the initial blow
was fatal (Exhibits A and A-1); and the victim suffered 20 hack wounds, all of
which were fatal (Id.). There is alevosia when the attack
is sudden and unexpected, under circumstances which render the victim unable to
defend himself by reason of the suddenness and severity of the attack (People
vs. Candado, 84 SCRA 508). Treachery exists when the offender employ
means which tend directly and specifically to insure the execution of the
offense, without risk to himself arising from the defense which the offended
party might make (Article 14, par. 16, Revised Penal Code). The killing of the deceased without warning,
giving him no time for preparation, resistance or escape, qualifies the killing to murder (People vs. Paya-an, 84 SCRA
353).”[31]
We shall now resolve the assigned errors.
1. Under the first assigned
error, appellant Lucresio Lubreo
admits that he committed a crime in the killing of Mamerto
Sanico but maintains that the crime committed was simple homicide since the qualifying
circumstance of treachery was not established.
He has completely abandoned his theory of self-defense. And rightly so. It would have been futile to hold on to it
for his own testimony and those of his witnesses miserably failed to prove the
elements of self-defense. The nature and
locations of the nineteen hack and one (1) stab wounds inflicted on the victim[32]
and the fat that the bolo (sundangay) of the victim
was inside its scabbard when seen by defense witness Alejandro Cordita[33]
negate and belie such claim.
We agree with the trial court and the Appellee
that treachery attended the killing of the victim. There is treachery when the offender
commits any of the crimes against the person employing means, methods, or forms
in the execution, without risk to himself arising from the defense which the
offended party might make.[34]
Treachery cannot be presumed; it must be proved by clear and
convincing evidence, or as conclusively as the killing itself.[35]
In order that it may be appreciated, it is necessary to prove the manner in
which the victim was attacked. Where
there is no proof to establish the manner in which crime was committed, it
cannot be insisted that treachery was present.[36]
Where no particulars are known as to the manner in which an aggression was made
or how the act which resulted in the death of the victim began and developed,
it can in no way be established from mere suppositions, drawn from circumstances prior to the very moment of
aggression, that the accused perpetrated the killing with treachery.[37]
It cannot be simply deduced from presumption.[38]
We have time and again
held that the suddenness of an attack is not, of itself, enough to constitute
treachery when the method of killing does not positively show that the
assailant thereby knowingly intended to ensure the accomplishment of his
purpose without risk to himself from any defense which the victim might put up.[39]
But there is treachery when a victim is attacked by an accused
without warning and his back turned to his assailant,[40]
or when the attack is sudden and unexpected and without the slightest
provocation on the part of the victim,[41] or is sudden and unexpected that the
victim was unable to defend himself, thus insuring the execution of the
criminal act without risk to the assailant.[42]
In the instant case, appellant Remelito
Lubreo, after having made two steps behind the victim
suddenly and unexpectedly, with the use of a bolo, hacked the deceased at his
back causing “Injury No. 4 Hacked (sic) wound, deep, 5.5
inches in length, located at the left infracapular
area; incomplete fracture of the 5th rib upon probing with index finger.”[43]
When the victim faced Remelito, he was again hacked
at the forehead.[44]
Remelito denied having hit Mamerto
at the back; according to him, all the injuries he inflicted were frontal,[45]
which he delivered successively after Mamerto
allegedly got his dagger from his net bag and stabbed him;[46]
he also admitted having hacked Mamerto at the base of
his forehead.[47]
According to him, he alone inflicted the injuries on Mamerto
and that his brother Lucresio was not with him.[48]
Yet, he made no attempt whatsoever to explain the aforesaid “Injury No.
4” at the back of Mamerto. This was a clever attempt to cast doubt on
the presence of treachery. But, having
admitted the infliction of all the injuries, his deliberate silence on
“Injury No. 4” strengthens the version of Nenita. We are convinced beyond moral certainty that,
as testified by Nenita, appellant Remelito
hacked Mamerto on his back suddenly and
unexpectedly. Remelito’s
claim that Mamerto
stabbed him with a dagger before he moved allegedly in self-defense is
belied by the unrebutted testimony of his own
witness, Alejandro Cordita, that the bolo (sundangay) — not a dagger — of Mamerto
was inside the scabbard.[49]
And, as testified by Lucresio, his own brother and
co-accused, the victim used no weapon at all; he parried the hacking with his
hands.[50]
It was definitely unexpected because he first made two steps toward the
opposite direction after meeting Mamerto before he
suddenly unsheathed his bolo and hacked Mamerto at
his back. There is nothing in the
evidence to show that at any time before the initial hacking, Mamerto suspected that Remelito
would do any evil act. In short, Mamerto was completely unprepared for the attack and taking
into account the subsequent successive wounds, there is no doubt at all that
the attack was carried out in a manner which precluded any risk of defense or
retaliation which could have come from the victim. It was only the shout of Nenita
which may have warned him of it — but it came too late, as he was already hit
at the back.[51]
The effort of the appellants to discredit Nenita
by testimonies of witnesses to the effect that she was not at the scene of the
crime and therefore could not have witnessed the killing of Mamerto[52]
was a belated attempt to becloud the devastating effect of her testimony. But as
correctly noted by the court, appellants, in their respective sworn statements, admitted the presence of Nenita as a witness
to the incident. In his sworn statement
taken on 11 March 1976,[53]
a day after the incident, appellant Remelito made the
following answer:
“4. Q Who witnessed your fight?
A The ones who witnessed, sir, Nita Monter who was ahead of him whom I also met first
and her distance from us was 40 meters, more or less, Locresio
(sic) M. Lubreo
who was at a distance of 150 meters, more or less, to the place where we were
fighting, and Romeo Tessado, Tita
Tessado, Cely Argana and Mede Argana for they
were all at Barangay Antipolo.”
In his sworn statement,[54]
also taken on 11 March 1976,
appellant Lucresio Lubreo
made the following significant revelations:
“5. Q Who else saw when they were fighting?
A. Romeo Tesado, x x x there was a woman, Neta (sic) Monter,
who also saw who was the companion
of Mamerto
B. Sanico and near to them and who was
the one who was shouting for help because there were persons fighting. x x x“
With treachery having been shown beyond any shadow of doubt, Remelito Lubreo must be held
guilty for the crime of Murder, with the mitigating circumstance of voluntary
surrender to be appreciated in
his favor.
2. An accused is presumed
innocent until the contrary is proved.
This presumption is solemnly guaranteed by the Bill of Rights.[55]
The contrary requires proof beyond reasonable doubt, or that degree of proof
which produces conviction in an unprejudiced mind.[56]
Short of this, it is not only the right of the accused to be freed; it is, even
more, the constitutional duty of the court to acquit him.[57]
Necessarily, the evidence for the prosecution must stand or fall on its own
merits; it cannot be allowed to draw strength from nor can conviction be sustained
on the weakness of the evidence for the defense. The burden of proof is upon the prosecution
and until such burden is sufficiently discharged, the accused continues to
enjoy the presumption of innocence.[58]
In the instant case, the lower court convicted Lucresio Lubreo on the basis of
its conclusion that he was positively identified by witnesses Nenita Monter and Epifanio Pangatungan as one of
the assailants, and that, therefore, his defense of alibi would
not prosper.
As We view it, alibi is not, in reality, the defense of Lucresio. It is more
of a denial. The
trial court has apparently confused one with the other. Lucresio was in the
vicinity of the locus delicti. As a matter of fact, he is number 1 in the
list of witnesses for the prosecution in the complaint for homicide against Remelito Lubreo before the
Municipal Court of Del Carmen, Surigao del Norte.[59]
He admitted his presence at the place of the incident because of the shout for
help and he saw the fight between Remelito and the
victim.[60]
At the hearing of 7 September 1985, conducted at the scene of the crime, which
the court considered as a re-enactment, Lucresio also
testified and, upon questioning by the court, specifically pointed to the place
where he was at the time watching Remelito hack
the victim; he was not able, however, to count the number of times Remelito hacked the victim as he did it “fast”;
then the victim fell and Remelito hacked him again on
the forehead.[61]
Even if it were so and
that it were weak, it did not relieve the prosecution of its burden to prove
the guilt of Lucresio beyond reasonable doubt. Alibi need not even be inquired into where
the evidence for the prosecution is weak.
And the rule that alibi must be satisfactorily proven was never intended
to change or alter the burden of proof in criminal cases.[62]
We find it difficult to agree with the trial court on its verdict
against appellant Lucresio Lubreo. As to him, it had to rely solely on the
testimonies of Nenita Monter
and Epifanio Pangatungan.
Unfortunately, however, while it is true that when she first
testified on 6 December 1978, she categorically declared on direct examination
that it was Lucresio who hacked the victim on the
forehead and that when the victim fell down, both he and Remelito
ganged up on him and hacked him as if they were beating and hacking a snake,[63]
which she reinforced by demonstrating; yet, during the
“re-enactment”, she was candid enough to inform the court that Lucresio was just standing by; she could not remember as to
who actually hacked the victim on the forehead and she does not know if Lucresio helped in hacking the victim after the latter fell
to the ground. Here are her answers to
the questions of the trial court during such re-enactment:
“Q Now,
what happened to Mamerto Sanico
when the initial hacking blow transpired while you were at a distance at the
back of the victim?
A
Then upon hitting at his back,
he was able to face Remelito Lubreo
and he was again hacked at the forehead.
Q Who
hacked him at his forehead?
A While
Mamerto Sanico was hit by
the hacking blow at his back I was already shouting saying please help because
there was (sic) a person being hit and he was the same person
who hacked him at the forehead.
Q You
mean to tell the court that the same Remelito Lubreo hacked the victim at the forehead?
A I
cannot remember clearly as to who was the person who hit him by a hacking blow
at the forehead because I was already running towards Antipolo
and I saw when the hacking blow
was made hitting him at the forehead.
Q
You mean to tell the Court you
did not see the victim (sic) who hacked at the forehead?
A No
more, your Honor.
x x
x
Q Will
you please demonstrate where Lucresio Lubreo was when the first hacking blow was inflicted?
A He
was only here, your Honor (witness stand (sic) at a place on the road).
Q Was
Lucresio Lubreo having a bolo that time?
A
He had with him a bolo.
Q When
the first hacking blow and the successive hacking blows were inflicted, will
you please tell the court what did Lucresio Lubreo do the first time that he participated against the
victim?
A He
kept on standing here your Honor.
Q Lucresio Lubreo was standing even
after the first hacking blow and the successive blows were inflicted to Mamerto Sanico?
A
I do not know, your Honor, whether he
had helped at the time when that victim fell down.
x x
x
Q When
the victim fell, where was Lucresio Lubreo?
A He
was here helping in hacking.
Q Now
you mean to tell the court that Lucresio Lubreo only helped in hacking when the victim already fell?
A Yes,
your Honor.
Q Before
the victim fell, Lucresio Lubreo
did not participate in hacking the victim is this correct?
A That
elder brother of his was the one yet
hacking.”[64]
From Nenita’s own version, the
participation of Lucresio is at once enveloped in
serious doubt. It is worse in the case
of Epifanio Pangatungan. Even from the testimony of Nenita, his presence at or near the scene of the crime and
his witnessing the incident is equally placed in serious doubt. According to Nenita,
during the incident, she kept on shouting for help, “but nobody came or
responded for (sic) help”[65]
and when she was already hiding after the hacking
incident, she saw persons who passed by and glanced at the victim but she did
not know or recognize them.[66]
Yet, Epifanio alleges that after hearing the shout
for help of Nenita, he glanced and saw Mamerto Sanico being ganged up
and hacked by Remelito and Lucresio
while Lucresio “abetted in hacking as if they will come one after the other in hacking
his mind (sic) and the neck.”[67]
As to what “abetted in hacking” means was never elaborated by
him. He could not specify the part of
the body of Mamerto which was hit by Lucresio. Then, he
ran towards the house of Mamerto’s parents to inform
them of what happened; thereafter, he returned with his relative, Tirso Rudela, to the place where Mamerto was, brought him to the crossing, loaded him on a
passenger jeepney and brought him to the hospital.[68]
The fact, however, remains that it was Alejandro Cordita with Montano Golindang,
Dario Sumaylo and Ricardo Gallope
who came to the aid of Mamerto Sanico. They placed him on a hammock, brought him to
the crossing, put him on board a
truck and brought him to the hospital.[69]
During the re-enactment, Epifanio had to eat back his solemn words when he
had to admit that when he returned to the scene of the crime, the body of Mamerto was no longer there.[70]
Then again, caught in the
wings of his fancy and imagination,
he claimed that he could even recognize the bolo which appellants used, and
when asked about a bolo marked as Exhibit “A” (Exh.
“A-1” is the scabbard), he answered on cross-examination:
“I have seen that as it is only being handed (sic) by their hands.”
x x
x
I only knew there and identified the same when they ran away as it
is only being held by their hands.”[71]
clearly implying that both appellants had
it in their possession, which is
of course untrue because that bolo was the one surrendered by Remelito which he
admits to be his.
There is evidently insufficient evidence to show the actual
participation of Lucresio Lubreo
in the killing of Mamerto. There being no evidence of conspiracy, he
cannot be held for the acts of his co-appellant.
We shall now
determine the penalty for appellant Remelito Lubreo. In view of
the abolition of the death penalty,[72] the penalty for Murder is now deemed
to be reclusion temporal in its maximum period to reclusion
perpetua,[73]
whose entire duration is 17 years, 4 months and 1 day to reclusion perpetua. Its
minimum period is 17 years, 4 months and 1 day to 18 years and 8 months. The medium period is from 18 years, 8 months
and 1 day to 20 years. The maximum
period is reclusion perpetua.[74]
Appreciating in his favor the mitigating circumstance of
voluntary surrender, the minimum period should then be imposed following the
rule prescribed in paragraph 2 of Article 64 of the Revised Penal Code.
Since he is now entitled to the benefits of the Indeterminate Sentence Law, he may be sentenced to a
penalty whose minimum is within the range of the penalty next lower in degree
and whose maximum is the minimum of the aforesaid imposable penalty under Article 248 of the Revised Penal Code.
The penalty next lower in degree is prision
mayor maximum to reclusion temporal medium.[75]
The penalty then imposed by the trial court on Remelito Lubreo of Ten (10) years
and one (1) day of prision mayor
maximum as minimum to Seventeen (17) years, four (4) months and one (1) day of
reclusion temporal maximum as maximum is correct. Consistent with the latest rulings of this
Court, the indemnity should, however, be increased to P50,000.00.[76]
The prosecution has not established the basis for moral and exemplary damages. Accordingly, the award therefor
should be disallowed.
WHEREFORE, judgment is hereby rendered:
1) AFFIRMING the decision appealed from insofar as
accused-appellant REMELITO LUBREO is concerned, with the modification
consisting in the increase of the
indemnity from P12,000.00 to P50,000.00, and the elimination of the award for
moral and exemplary damages, but
2) REVERSING the same insofar as
accused-appellant LUCRESIO LUBREO is
concerned, who is hereby ACQUITTED and whose immediate release from detention is
hereby ordered.
With costs de officio.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr.,
Feliciano, and Bidin,
JJ., concur.
[1]
Rollo, 31-80.
[2]
Exh. “1”.
[3]
Exh. “5”.
[4]
Exh. “5”, which is in the dialect, and
“5-C” (the English translation thereof).
[5]
Exh. “4”, in the dialect, and Exh. “4-A” (the English translation thereof).
[6]
Exh. “3”.
[7]
TSN-Tesado, 10
July 1985, 6.
[8]
Original records, 3-8.
[9]
Id., 1-2.
[10]
Original records, 30-31.
[11]
Original records, 122.
[12]
Id., 123.
[13]
Id., 126.
[14]
Original records, 128-129.
[15]
Order of 8 January 1986; Id.,
131.
[16]
Judgment of trial court, 1-11; Rollo, 31-41.
[17]
Judgment of trial court, 77-78.
[18]
Judgment of trial court, 76.
[19]
Id., 72.
[20]
Judgment of trial court, 43-46; Rollo, 73-76.
[21]
Original records, 182.
[22]
Id., 183.
[23]
Rollo, 1.
[24]
Rollo, 82.
[25]
Id., 88-89.
[26]
Id., 92.
[27]
Id., 93.
[28]
Id., 130, et seq.
[29]
Rollo, 136, et seq.
[30]
Citing People vs. Renegado, 57 SCRA 275; and
People vs. Bernudez, 57 SCRA 629.
[31]
Rollo, 147-149.
[32]
People vs. Marciales, 166 SCRA 436 and People vs.
Batas, 176 SCRA 46.
[33]
TSN-Tesado, 7
November 1983, 19-20.
[34]
Article 14, par. 16, Revised Penal Code; People vs. Manzanares,
177 SCRA 427; People vs. Villapando, 178 SCRA
343.
[35]
People vs. Manalo, 148 SCRA 98; People vs.
Gaddi, 170 SCRA 549.
[36]
AQUINO, Ramon, C., The Revised Penal Code, vol. 1,
1987 ed., 388.
[37]
U.S. vs.
Perdon, 4 Phil. 141; People vs. Ablao, 183 SCRA 658.
[38]
People vs. Diaz, 167 SCRA 239.
[39]
People vs. Caldito, et al., 182 SCRA 66;
People vs. Sabanal, 172 SCRA 430; People vs.
Malazzab, 160 SCRA 123; People vs. Marciales, supra.; People vs. Bongo, 55 SCRA
547; People vs. Satone, 74 SCRA 106; People vs.
Cabiling, 74 SCRA 185.
[40]
People vs. Rellon, 167 SCRA 75; People vs.
Tachado, 170 SCRA 611.
[41]
People vs. Rey, 172 SCRA 149.
[42]
People vs. Maravilla, 167 SCRA 645.
[43]
Exhs. “A” and “A-1”.
[44]
TSN-Tesado, 7
September 1985, 5.
[45]
TSN-Solloso, 17
December 1985, 10-11.
[46]
Ibid., 7-8.
[47]
Ibid., 10.
[48]
TSN-Solloso, 17
December 1985, 17.
[49]
TSN-Tesado, 7
November 1983, 15-20.
[50]
Ibid., 7 September
1985, 29-30.
[51]
Op. cit., 6 December
1978, 20.
[52]
Testimonies of Hilario Sumaylo,
Restituto Blazo, and
Montano Colindang.
[53]
Exhs. “5” and “5-A” (English
translation); emphasis supplied.
[54]
Exhs. “4” and “4-A” (English
translation); emphasis supplied.
[55]
Sec. 14(2), Article III, 1987 Constitution.
[56]
Sec. 2, Rule 133, Rules of Court.
[57]
People vs. Maisug, 27 SCRA 742.
[58]
People vs. Baderes, 153 SCRA 253.
[59]
Exh. “3”.
[60]
TSN-Solloso, 13
February 1985, 7-11.
[61]
TSN-Tesado, 7
September 1985, 27-28.
[62]
People vs. Mendoza, 174 SCRA 432; People vs. Salguero,
G.R. No. 89117, 19 June 1991.
[63]
TSN-Solloso, 6
December 1978, 6-7.
[64]
TSN-Tesado, 7
September 1985, 5-8.
[65]
TSN-Solloso, 6
December 1978, 7 and 26.
[66]
Ibid., 26.
[67]
TSN-Tesado, 28
August 1979, 16-17.
[68]
Ibid., 19-21.
[69]
TSN-Tesado, 7
November 1983, 5-7.
[70]
Ibid., 7 September
1985, 15.
[71]
Ibid., 30-31.
[72]
Section 19(1) of Article III of the 1987 Constitution.
[73]
The penalty prescribed in Article 248 of the Revised Penal Code is reclusion
temporal in its maximum period to death.
People vs. Abagon, 161 SCRA 197; People
vs. Nolasco, 163 SCRA 623; and People vs.
Alpetche, 168 SCRA 670.
[74]
AQUINO, loc. cit., vol. III, 1988 ed., 628.
[75]
Ibid.
[76]
People vs. Sison, 189 SCRA 643; People vs.
Sazon, 189 SCRA 700.