PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALFREDO CAGALINGAN Y ROMINA, JOVITO CAGALINGAN Y ROMINA AND VICTOR ROMINA, JR. Y VELANCIO, DEFENDANTS-APPELLANTS.

This is an appeal interposed by the accused from the judgment* rendered in Criminal Case No. X-87-187 of the
Regional Trial Court of Cagayan at Aparri, finding them guilty of the crime of Murder and
sentencing the accused Jovito Cagalingan
y Romina and Victor Romina,
Jr. y Velancio to suffer the penalty of reclusion
perpetua; the accused Alfredo Cagalingan y Romina, to suffer an
indeterminate penalty of from ten (10) years and one (1) day of prision mayor as minimum, to seventeen (17)
years, four (4) months and one (1) day of reclusion temporal as
maximum, and ordering all of said accused to pay, jointly and severally, the
heirs of  the deceased Joemar Desor the amounts of P11,500.00
as actual damages, and P30,000.00, as indemnity for the death of said Joemar Desor, and the costs of
suit.

The facts of the case, according to the People’s counsel, are as
follows:

“On or about 1:30
in the afternoon of June 4, 1984
at Looban, Block 14, Centro, Aparri,
Cagayan, eight persons were playing bingo in the
house of the spouses Alfredo and Benita Flores. 
Two of the players were Lory Bunabon and Veron Cagalingan (pp. 6-7, tsn, Dec. 11, 1984).  Not long after her arrival and while seated
at the door of the balcony.  Lory Bunabon saw the accused Jovito Cagalingan about six meters
away holding a basket containing claws of crabs.  Joemar Desor (the victim) approached Jovito,
took hold of the basket, and jokingly asked the latter to give him the crabs so
that he could roast them.  Jovito refused saying that he was bringing them home for
their viand (PP. 50-53 and 58-59, tsn, Dec. 11,
1984).

Soon thereafter, the two were laughing although each of them was
grappling for the possession of the basket (pp. 53-54, tsn,
Dec. 11, 1984).

In order to gain advantage over Jovito to
secure the possession of the basket, Joemar held the
throat of Jovito with his right hand (pp. 51-54, tsn, Dec. 11,
1984). Jovito however was able to remove
the hand of Joemar and went at the back of the latter
(p. 80, tsn, Dec. 11, 1989).

Veron Cagalingan,
wife of Alfredo Cagalingan, saw them and shouted that
Jovito was being killed by Joemar.  This impelled accused Alfredo Cagalingan, who was inside the house of his parents-in-law
Alfredo and Benita Flores, to jump out of the house and proceed to the
scene.  Holding a bolo measuring 15 1/2
inches long (Exh. C), Alfredo went behind Joemar and stabbed him twice on the right side of his body
parallel to his navel (pp. 9-10, tsn, Dec. 11, 1984).

Jovito who was able to free himself from Joemar drew his nine-inch kitchen knife from his waist and
also stabbed the victim twice (pp. 11-12, tsn, Dec. 11, 1984).

While the stabbing was being perpetrated, accused Victor Romina, Jr. jumped out of the window of his house to join
the other accused.  Using a nine-inch
kitchen knife (Exh. D) , he also stabbed Joemar once.  The
latter at the time was already immobile, lying prostrate on the ground (p. 12, tsn, Dec. 11, 1984).

Mercedes Desor, mother of the victim,
heard the commotion and rushed to the crime site.  There she saw his (sic) son Joemar lying prostrate on the ground with the three accused
still holding the bladed weapons dripping with blood.  At this juncture, Alfredo Cagalingan
was heard uttering a challenge saying who else still is brave man companion of Joemar Desor’ (pp. 27-28, tsn, May 15, 1985).

Thereafter, Alfredo and Jovito Cagalingan went towards the direction of the police
precinct while Victor Romina, Jr. ran eastward
towards the Ryan Cinema
(p. 28, tsn, May 15, 1989).

The mother of the victim embraced and pulled her son up but both of
them fell down.  She screamed for
help.  Her nephew and cousin responded
and brought Joemar to the Aparri Emergency
Hospital where the victim was
treated by a certain Dr. Macria Ayuyang
(pp. 28, 29, tsn, May 15, 1985). 
Unfortunately, Joemar died after then (sic)
minutes from arrival due to loss of blood (PP. 3-8, tsn,
Aug. 12, 1985).

Dr. Romulo de Rivera, Municipal Health
Officer of Aparri, Cagayan,
conducted an autopsy on the cadaver of the victim and submitted his
medico-legal necropsy report (Exh. H) containing the
following findings, to wit:

‘1.      stabbed wound – 4.0 cm. x 1.5 cm x 11.0
cm. depth below the right axilla directed inward with
sharp end backward.

2.       stabbed wound – 6.0 cm. x 3.0 cm. x 22.0
cm. in depth over the right flank with 8th rib fractured sharp end anteriorly.

3.       stabbed wound – 4.0 cm. x 1.5 cm. x 26.0
cm. in depth perpendicular end of the wound with sharp end downward.

4.       stabbed wound – 3.5 cm. x 1.5 cm. x 6.0
cm. over the right lumber region with sharp end upward.

5.       stabbed wound – 2.0 cm. x 1.0 cm. x 5.0
cm. along left infra – axillary region with sharp end
downward.

CAUSE OF DEATH: shock secondary to hemorrhage due to multiple
stabbed wounds.’

On the basis of the foregoing happenings, the Assistant Provincial
Fiscal of Cagayan, after due preliminary
investigation, filed the corresponding Information for murder against the three
accused-appellants with the Regional Trial Court.”^[1]

The defendant-appellant Alfredo Cagalingan,
while admitting having inflicted injuries upon the deceased Joemar
Desor, insisted that he acted in legitimate defense
of his brother when he inflicted the mortal wounds which resulted in the death
of the said Joemar Desor.  His version of the incident is summarized by
the trial court as follows:

“x x x
that about 1:30 in the afternoon of June 4, 1984. he was inside their house,
owned by his parents-in-law Alfredo Torres and Benita Flores, at Looban, Aparri, Cagayan, listening to a radio drama when he heard screams
from the bingo players.  Looking through
the window he saw Joemar Desor
on top of his brother Jovito, about seven meters
away, lying on the ground being strangulated by Joemar.  He went to pacify Joemar
telling him ‘do not ‘do that manong we are but one.’ Joemar answered ‘even all of you.’ When Joemar
partly unsheathed his knife he stabbed him several times with a big bolo (Exh. ‘5′-defense, Exh.
‘C’-prosecution), thinking that Joemar will kill his
brother with his (Joemar’s) stainless steel knife (Exh. ‘1’-defense). 
Thereupon he went to the police headquarters and surrendered to Pat.
Edwin Reyes telling him ‘sir, I am surrendering because I killed somebody, Joemar Desor.'”^[2]

The accused-appellant, Jovito Cagalingan, upon the other hand, denied having stabbed the
deceased Joemar Desor.  He claimed that while he was on his way home,
at about 1:00 o’clock in the
afternoon of 4 June 1984, he
was suddenly boxed on his right cheek by Joemar Desor.  He just cried
and went away because Joemar Desor
was bigger than he and was the recognized “kingpin” of the
neighborhood.  But Joemar
Desor followed and boxed him several times on the
chest causing him to fall.  When he fell,
Joemar Desor went astride
him and sat on his belly, and then held his neck, choking him.  As a result, he lost consciousness.  When he regained consciousness, he saw his
brother, Alfredo Cagalingan, jumping out from the
window of their house and coming to them. 
Alfredo then stabbed Joemar Desor with a bolo. 
After a while, Pat. de la Cruz of the local police arrived at the scene
and he (Jovito) was brought to the police precinct.^[3]

The defendant-appellant Victor Romina,
Jr. also denied having stabbed the deceased Joemar Desor and interposed the defense of alibi.  He declared that at about 12:20 o’clock in the afternoon of 4 June 1984, he went to see a movie at
the Ryan Cinema
with his friend, one Ferdinand .from Faire, Cagayan.  At around 3:00
o’clock in the afternoon, his name was flashed on the screen of the
cinema as “wanted outside”.  He
went outside and was met by policemen who then arrested him and brought him to
the police station for investigation.^[4]

His testimony was corroborated by Ferdinand Ugale
who declared that he and Victor Romina, Jr. went to
see a movie at the Ryan Cinema at about 12:30 o’clock in the afternoon of 4
June 1984; and that while they were watching a movie, the name of Victor Romina, Jr. was flashed on the screen as “wanted
outside” and Victor Romina, Jr. left him inside
the moviehouse. ^[5]

In support of their appeal, the defendants-appellants claim that
the trial court erred: (1) in not holding that the accused Alfredo Cagalingan killed the deceased Joemar
Desor in defense of his relative; (2) in not holding
that Jovito Cagalingan and
Victor Romina, Jr. had no participation in the killing
of the said Joemar Desor;
and (3) in sentencing the accused Jovito Cagalingan to suffer the penalty of reclusion perpetua.

1.  The appellants first
claim that the trial court seriously erred in finding that unlawful aggression
was not present in the killing of Joemar Desor.  They argue
that there was unlawful aggression on the part of the deceased because the
latter was strangulating Jovito Cagalingan
when he was stabbed by Alfredo Cagalingan.

A review of the evidence, however, fails to lend credence to the
appellants’ claim that there was unlawful aggression on the part of the
deceased.  Lory
Bunabon categorically stated that the deceased Joemar Desor and the appellant Jovito Cagalingan were laughing
and joking as they were grappling for the possession of the basket of crabs
which Joemar Desor wanted
to get from Jovito Cagalingan.  For unlawful aggression to be present, there
must be a real danger to life or personal safety.^[6]
Here, there was no danger to the life of Jovito Cagalingan as they (Jovito and Joemar) were in a frolicsome mood.

Besides, it would appear that the deceased was unarmed at the
time and sustained five (5) stab wounds in different parts of his body.^[7]
which indicates that the act (stabbing) was not in defense of a relative but a
determined effort to kill the deceased.

It would also appear that when Alfredo Cagalingan
voluntarily surrendered to the police, he did not inform the latter that he
killed the deceased in order to protect the life of his brother Jovito.  He merely
said that he accidentally injured one Desor.^[8]
As stated by the Court in one case,^[9]
“if he had really acted in self-defense, the probability is that he would
have immediately informed the authorities of that fact if only to minimize his
guilt if not to exculpate himself.”

2.  We also find no merit in
the claims of the appellants Jovito Cagalingan and Victor Romina, Jr.
that they did not participate in the commission of the crime.  Lory Bunabon positively identified the said appellants as among
those who stabbed the deceased Joemar Desor.^[10]
Lory Bunabon could not have
been mistaken in her identification of the appellants (Jovito
and Victor) as perpetrators of the crime because she was near them and the
protagonists were her immediate neighbors in the community.

Besides, the trial court found that the testimony of Jovito Cagalingan “is
replete with self-contradiction – a mark of untruthf ulness and incredulousness”^[11]
and we find nothing in the record which would justify our setting aside said
finding.

As for the alibi of Victor Romina, Jr.
that he was inside the Ryan Cinema at the time of the commission of the crime,
suffice it to state that the said moviehouse is only
about 100 to 150 meters away from the scene of the crime and the said appellant
has not shown that it was physically impossible for him to be at the scene of
the crime at the time it was committed. Besides, his alibi cannot prevail over
his positive identification by Lory Bunabon.

3.  Finally, the appellants
claim that the penalty of reclusion perpetua,
imposed by the trial court upon the appellants Jovito
Cagalingan and Victor Romina,
Jr. is excessive.  Appellants argue that
with the elimination of the death penalty in the 1987 Constitution, the penalty
for Murder was accordingly reduced.

The contention is without merit. 
This issue had been laid to rest in the case of People vs. Munoz,^[12]
where the Court ruled that Article III. Section 19(1) of the 1987 Constitution
does not change the periods of the penalty prescribed by Article 248 of the
Revised Penal Code except that it prohibits the imposition of the death penalty
and reduces it to reclusion perpetua.  The Court therein further ruled that the
range of the medium and minimum penalties for murder remains unchanged.

We find, however, that Jovito Cagalingan and Victor Romina, Jr.
are only accomplices in the crime since their participations therein were not
absolutely indispensable in the commission of the crime.  Lory Bunabon declared that Jovito Cagalingan stabbed the deceased Joemar
Desor after Alfredo Cagalingan
had stabbed the deceased at the back, while Victor Romina,
Jr. stabbed the said deceased while the latter was already lying prostrate on
the ground.^[13]
While the acts of Jovito Cagalingan
and Victor Romina, Jr. show a community of design
with the principal, Alfredo Cagalingan, who inflicted
the fatal wound, and they (Jovito and Victor)
cooperated in hastening the victim’s death, the said appellants’ acts were not
absolutely indispensable in the commission of the crime.  A person who assaults a victim already
fatally wounded by another, is only regarded as an accomplice.^[14]

The penalty for appellants Jovito Cagalingan and Victor Romina, Jr.
as accomplices must be modified.  They
are hereby sentenced to suffer an indeterminate penalty of from eight (8) years
and one (1) day of prision mayor, as
minimum, to fourteen (14) years, and eight (8) months of reclusion temporal,
as maximum.

With the modification above indicated, the judgment appealed from
is hereby AFFIRMED in all other respects, with costs against the appellants.

SO ORDERED

Melencio-Herrera, (Chairman), Paras, Sarmiento and Regalado, JJ., concur.

*
Penned by Judge Ricardo A. Daculi.

^[1]
Appellee’s Brief. PP. 3-7

^[2]
Decision, pp. 13-14

^[3]
tsn of June 18. 1986, pp. 3-6, 8

^[4]
tsn of July 22, 1986, pp. 2-5

^[5]
tsn of August 21, 1986, pp. 4-5

^[6]
People vs. Sabio, G.R.
No. L-23734, April 27, 1967,
19 SCRA 901

^[7]
Exhibit H

^[8]
tsn of May 15, 1985, p. 5

^[9]
People vs. Sarol, G.R.
No. 66240, October 8, 1985, 139 SCRA 125, 130-131

^[10]
tsn of December 11, 1984, p. 9

^[11]
Decision, p. 43

^[12]
G.R. Nos. L-38969-70. February 9, 1989, 170 SCRA 107

^[13]
tsn of December 11, 1984, pp. 11-13; tsn of December 12,
1984, PP. 81-82

^[14]
People vs. Antonio and Desargo, 73 Phil 421