PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOVITO CALLAO Y CALLORA, FRUCTUOSO CALLAO, NARIA CALLAO (AT LARGE) AND SEGUNDINA CALLAO (AT LARGE), ACCUSED-APPELLANTS.

Subject of this appeal is the decision of the Regional Trial
Court, Branch 30, Dumaguete City, in Criminal Case No. 8668 entitled: “People vs. Jovito Callao y Callora,
et. al.”, convicting appellants, Jovito Callao and Fructuso Callao of the crime
of murder under the information which reads:

“That on or about March 28, 1989 at 5:30 o’clock in the
afternoon, more or less, at barangay Ilaya-Tayasan, Negros Oriental,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, with intent to kill, treachery and evident premeditation, did then and
there, wilfully, unlawfully and feloniously waylay, assault, attack, stone,
stab and wound one VICENTE AMISTOSO, with the use of stones and a
“plamingko” with which accused Jovito Callao was then armed and
provided, thus inflicting injuries to wit:

1. Contusion measuring 1
cm. wide 3 cm. long located at the right shoulder.

2. Abrasion measuring 1/2
cm. wide x 3 1/2 cm. long located at the left elbow laterally.

3. Abrasion measuring 1/4
cm. wide x 2 cm. long located at the left elbow posteriorly.

4. Abrasion measuring 1 1/2
cm. wide x 2 cm. long located at the left middle portion of the leg anteriorly.

5. Abrasion measuring 1 cm.
wide x 3 cm. (sic) long located at the right middle portion of the leg
laterally.

6. Abrasion measuring 1 cm.
wide x 1 1/2 cm. (sic) long located at the distal portion of the right leg
laterally.

7. Stab wound measuring 1 cm. wide x 4 cm.
(sic) long located at the left 5th intercostal space along the mid-clavicular
line penetrating the thoracic cavity.

which caused victim’s death immediately
thereafter.”^[1]

Only Fructuoso Callao and Jovito Callao were arraigned during
which they entered a plea of “NOT GUILTY”. The two other accused-appellants are still at large.

The facts of the case are as follows:

It was election day for barangay officials, March 28, 1989 when
Ana Amistoso and husband Vicente Amistoso (now deceased), were in the electoral
polling place of barangay Ilaya in the town of Tayasan, Negros Oriental to cast
their vote. Accused Fructuoso Callao
and Jovito Callao, father and son respectively, together with their wives, were
there too for the same purpose. Accused
Fructuoso Callao left the precinct ahead of the Amistoso couple, who left at
around 5:30 that afternoon. Vicente
Amistoso and his wife reached a place near the river bank about 16 meters below
their house which was on top of a hill, when they were suddenly met by the four
accused who immediately pelted Vicente with stones hitting him on various parts
of his body, particularly on the legs, on the left arm, on the shoulder, on the
right cheek and at the back. Vicente
tried to run away but in his attempt, he stumbled to the ground as a result of
which he was overtaken and stabbed by accused Jovito Callao with a small bolo
(plamingko) on the left chest causing his death. Dr. Julio L. Abella, Municipal Health Officer of Ayungon, Negros
Oriental, examined the dead body of Vicente and thereafter submitted his
report.^[2]

Accused-appellants relying on self-defense and on defense of
relative, advanced their own version of the facts which are as follows:

Fructuoso Callao and Jovito Callao together with their respective
wives were in the polling place in Ilaya, Tayasan, Negros Oriental at 10:00
o’clock in the morning of March 28, 1989 in order to cast their vote during the
election of barangay officials being held on that day. The wives of Fructuoso and Jovito left the
polling place at 2:00 o’clock in the afternoon leaving their husbands
behind. At about 5:30 that same
afternoon, the two accused, father and son left for home. When they reached the portion of the road at
the foot of the hill above which the house of Vicente Amistoso was perched,
they saw the latter, being held back by his wife running towards them carrying
a stainless knife. Upon reaching the
two accused, Vicente Amistoso immediately thrust his knife at Jovito Callao
which the latter parried, causing the knife to fall to a river nearby. The tip of the knife however, grazed
Jovito’s abdomen. Fructuoso then picked
up the knife and used it in stabbing Vicente Amistoso on the chest which
resulted in the latter’s death. Fructuoso and Jovito went home and there they were picked up by the
police authorities bringing with them the fatal knife.

Finding the version of the prosecution to be more credible, both
accused were found guilty beyond reasonable doubt of the crime of murder and
each of them sentenced to suffer the penalty of reclusion perpetua with the
accessory penalties provided by law, and to jointly and severally indemnify the
heirs of Vicente Amistoso in the amount of Thirty Thousand (P30,000.00) Pesos
and to pay the costs.

The accused-appellants assigned the following as errors of the
lower court:

1. In not giving
exculpatory weight to the evidence adduced by the defense.

2. In holding that there
was conspiracy on the part of accused-appellants relative to the stabbing of
the victim.

3. Assuming that
accused-apellants are guilty, the trial court erred in a) convicting them of
murder; and b) in not considering the mitigating circumstance of voluntary
surrender.

Fructuoso’s testimony tried to show, among others, that when he
first saw Vicente Amistoso at what he called the “ambush” site or at
the scene of the incident, Vicente was being held back by his wife but was able
to slip away from his wife’s hold causing him to stumble to the ground and roll
5 meters down the incline. When he
stopped rolling, Vicente stood up and thrust the knife at Jovito but the latter
was able to hold the hand of Vicente and
twisted it causing the knife to fall.^[3]

Jovito’s testimony however is that while he and his father were
walking in a column, he saw Vicente Amistoso 8 meters away running towards
them, carrying a “hunting knife” shouting, “Here is the Barangay
Tanod of the stupid Barangay Captain (sic).” Then Vicente thrust his knife
at Jovito, grazing Jovito’s abdomen, and the latter took hold with his two
hands the hand of Vicente that was holding the knife and twisted it, causing the knife to fall to the river.^[4]

It is difficult to ignore the inconsistency in the testimonies of
both the accused. The testimony of
Fructuoso concentrated on the claim that Vicente stumbled to the ground after having
freed himself from the restraining hold of his wife and rolled down the incline
while Jovito claimed that Vicente was running continuously even after freeing
himself from his wife’s hold.

Fructuoso’s testimony shows that at the time of the confrontation
with Vicente Amistoso he and co?accused Jovito Callao were following a
footpath on the opposite side of a small stream which is three feet wide and
the water less than a foot deep. They
were between 80 to 100 meters from the house of Vicente Amistoso. He further testified that he saw Vicente
running down the incline towards their direction, holding a hunting knife,
shouting, “You have the same mind as that crazy Barangay Captain of
yours.”^[5]
However, what Jovito heard Vicente was shouting while running towards them was,
“Here comes the Barangay Tanod of the stupid Barangay Captain (sic),”
contrary to what Fructuoso said.^[6]

The foregoing shows that appellants were already alerted to
Vicente Amistoso’s alleged impending assault while still far (80 meters) from
them, and which, naturally, have put them on guard. Ordinarily, since neither of them claimed not to have carried a
weapon, they would have run away following the natural instinct of
self-preservation, or prepared themselves with any available means with which
to successfully thwart the assault considering their numerical superiority over
Vicente. That Vicente was able to hit
Jovito on the abdomen with the thrust of the knife on the basis of the facts
mentioned is an improbable situation, one contrary to ordinary human
experience.

Furthermore, Fructuoso alleged that Vicente Amistoso was rolling
on the ground up to about a fathom from Jovito when he got up and stabbed
Jovito. Considering Fructuoso’s own
testimony that from the house of Vicente one had to cross a stream, about three
feet wide, before reaching the footpath where they were at the time, it is
difficult to believe that Vicente had been rolling up to about a fathom from
where Jovito was. By no stretch of the
imagination could that circumstance be perceived to have happened, even taking
into account the shallowness of the water.

Fructuoso’s testimony that Jovito twisted Vicente’s hand which
was holding the knife causing the same to drop two fathoms away into the water
of the stream and which Vicente attempted to pick up but was beaten to it by
Fructuoso is highly incredible, considering that Fructuoso was two fathoms
behind Jovito as testified to by him. How then can Fructuoso have reached for the knife which was four fathoms
away from him than Vicente who was just two fathoms from said knife?

Finally, Fructuoso claimed that Vicente had no more weapon after
he lost his knife and yet he still stabbed Vicente with the knife hitting the
latter on the left breast, and his reason for doing so was in
“retaliation” for the injury inflicted by Vicente on Jovito. When the knife fell off the hand of Vicente,
following the line of the evidence of the defense, and there was no showing
that Vicente had another weapon other than said knife, he was no longer a
threat nor a danger to the lives and limbs of the two accused. There was nothing more to repel or prevent
by means of a knife. It is precisely
the helpless condition of Vicente that Fructuoso took advantage of by stabbing
the former on the breast “in retaliation” and therefore, no longer in
legitimate defense of his son.

Evidence shows that Vicente Amistoso sustained not only a stab
wound on the chest but also six contusions and abrasions on different parts of
his body,^[7]
thus giving sufficient corroboration to the prosecution witnesses’ testimony
that Vicente and his wife were waylaid and then pelted with stones by Fructuoso
Callao and Jovito Callao with the cooperation of their respective wives. That the said wives left the polling place
ahead of their respective husbands gave them the opportunity to participate in
the ambush of Vicente Amistoso.

It is worthwhile mentioning that the testimonies of father and
son only dealt with the stab wound inflicted on the deceased but there was no
mention as to the contusions and abrasions found on the body of Vicente. To this, no valid explanation was given by
the defense.

As the evidence would show, the house of the Callaos were only
about 750 meters from the polling place towards the northwest while that of
Vicente Amistoso was more than a kilometer away towards the east. The incident happened, as the evidence would
further show, between 80 to 100 meters from the house of the deceased. That Fructuoso Callao and Jovito Callao were
in the vicinity of the house of Vicente Amistoso at the time of the incident
when their own house could be reached ahead of that of Vicente is a
circumstance indicating that they were possibly waiting for someone for they
had no legitimate reason being within the vicinity of Vicente’s house.

The information alleges conspiracy among all the accused which
allegation has been sufficiently shown by the evidence that Fructuoso Callao
participated in pelting Vicente with stones until the latter fell to the ground
after which he was stabbed by Jovito on a vital spot of his body.^[8]
The attack on Vicente was treacherous for upon reaching that place of the
incident hear their house, Vicente Amistoso was suddenly pelted with stones by
Fructuoso and Jovito together with their wives, forcing Vicente to run until he
stumbled to the ground and stabbed on the left chest by Jovito Callao.^[9]
Nothing can be more indicative of treachery than the conduct of the two
accused.

Appellants’ claim of voluntary surrender as a mitigating
circumstance in their favor does not deserve serious consideration. For voluntary surrender to be appreciated,
it is necessary that the same, be spontaneous in such manner as to show the
intent of the accused to surrender unconditionally to the authorities, either
because he acknowledges his guilt or because he wishes to save them the trouble
and expense incident to his search and capture.^[10]
As found by the court a quo:

“If Fructuoso Callao did in fact act in
defense of his son, it is surprising why he did not surrender to the
authorities immediately after the incident and spontaneously give that
statement to the police. He instead
went home with his son, Jovito, only to go to the Police Station upon being
apprehended by the police authori­ties”.^[11]

PREMISES considered, the guilt of the appellants, Jovito Callao
and Fructuoso Callao of the crime of murder, as charged, has been proved beyond
reasonable doubt.

WHEREFORE, the appealed decision is hereby AFFIRMED, and
each of the accused-appellants sentenced to
suffer the penalty of RECLUSION PERPETUA and, to jointly and severally
indemnify the heirs of Vicente Amistoso in the amount of Fifty Thousand Pesos
(P50,000.00).^[12]
Costs against appellants.

SO ORDERED.

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

^[1]
pp. 6-7, Rollo.

^[2]
pp. 67-70, TSN, September 6, 1989; Exhibit “B”.

^[3]
pp. 5-8, TSN, October 16, 1989.

^[4]
p. 6-8, TSN, December 19, 1989.

^[5]
p. 9, TSN, November 14, 1989.

^[6]
pp. 6, TSN, December 19, 1989.

^[7]
pp. 67-70, TSN, September 6, 1989.

^[8]
People vs. Francisco, G.R. No. 69580, 182 SCRA 305 (1990).

^[9]
People vs. Rey, G.R. No. 80089, 172 SCRA 149 (1989).

^[10]
People vs. Lingatong, G.R. No. 34019, 181 SCRA 424 (1990).

^[11]
p. 10, Rollo.

^[12]
People vs. Sison, G.R. No. 86455, 189 SCRA 643 (1990).