PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RUBEN CABARRUBIAS @ AMBEN AND ZOSIMO ANTIPORDA @ SAMONG, DEFENDANTS-APPELLANTS.

This is an appeal from the joint decision of the Regional Trial
Court, Branch 2, Bangued, Abra,
in Criminal Cases Nos. 442 and 443, convicting Ruben Cabarrubias
alias “Amben” and Zosimo Antiporda alias “Samong” of murder (Art. 248, Revised Penal Code). The dispositive portion of the assailed decision reads as
follows:

“WHEREFORE, the Court finds both accused in Criminal Cases
Nos. 442 and 443 guilty beyond reasonable doubt of the crime of murder as
defined and penalized in Art. 248 of the Revised Penal Code, the killing of Jonalyn Espiritu in Criminal Case
No. 442 being qualified by treachery and taking advantage of superior strength
with the aggravating circumstance of nighttime; while the killing of Pedro Espiritu in Criminal Case No. 443 is qualified by treachery
with the aggravating circumstance of nighttime, with no mitigating
circumstances proven in both cases, and sentences them to suffer the penalty of
reclusion perpetua and to indemnify the
families of their victims the amount of P100,000.00 each, and to pay the costs
of these proceedings” (Rollo, p. 25).

The information filed in Criminal Case No. 442 against the
accused Ruben Cabarrubias reads as follows:

“That on or about July 13, 1986, at about 7:00 o’clock at
night, at Barangay Patoc, in
the municipality of Bucay, Province of Abra, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, with treachery
and evident premeditation and while armed with a sharp-pointed bolo, did then
and there, wilfully, unlawfully and feloniously
assault, attack and stab one Jonalyn Espiritu, an 8 year-old child, hitting her on her abdominal
cavity and on other parts of her body, which multiple stab wounds caused her
death shortly thereafter” (Rollo, p. 18).

The information filed in Criminal Case No. 443 against the
accused Zosimo Antiporda
reads as follows:

“That on or about July 13, 1986, at about 7:00 o’clock at
night, at Barangay Patoc,
in the municipality of Bucay, Province of Abra, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, with treachery
and evident premeditation and while armed with a sharp-pointed bolo, did then
and there, wilfully, unlawfully and feloniously
assault, attack and stab one Pedro Espiritu, hitting
him on his neck, which stab wound caused his death shortly thereafter” (Rollo, pp. 18-19).

At his arraignment, appellant Cabarrubias
manifested his willingness to plead guilty to the lesser offense of homicide in
Criminal Case No. 442, and to assume responsibility to the charge in Criminal
Case No. 443, but these manifestations were not accepted by the trial court
(Order, March 5, 1988; TSN, August 18, 1987, p. 2).

The arraignments proceeded with both appellants pleading not guilty.
The two cases were tried jointly “because of their proximity of time and
place of occurrence” (Decision, p. 2; Rollo, p.
19).

The records in the two cases show that at about 7:00 P.M. of July 13, 1986, Talledo Espiritu was at his house waiting for his 17-year old son,
Pedro, to come home from the fields. Pedro suddenly appeared at the door, with
a gaping wound on his neck and blood stains all over his clothes. Embracing his
father, Pedro told him that he was stabbed by “Samong“,
referring to Antiporda. After identifying his
assailant, Pedro collapsed and he died a few moments later. Talledo
then shouted for help.

At about the same time, the screams of a child were heard.
Domingo Espiritu, a next-door neighbor of Talledo, ran outside his house to where the screams were
coming from. He saw his eight-year old granddaughter, Jonalyn
Espiritu, squatting on the ground about three meters
from Talledo’s house. Domingo saw appellants running
away from the scene, with Antiporda heading towards
the direction of the house of Saturnina Belaras. Jonalyn told Domingo
that she was stabbed by “‘Nong Amben“, referring to Cabarrubias.

Estefana Tubana,
the adoptive mother of Jonalyn and who rushed to her
succor, was told by Jonalyn that she saw Antiporda stab Pedro and that appellants chased her upon
noticing her presence.

Saturnina Belaras,
a neighbor of Talledo’s, was washing dishes when
someone tried to forcibly open the door of her house. When she opened the door,
Antiporda entered and talked with Saturnina’s
son. Antiporda did not stay long and hurriedly left
the house when shouts for help were heard.

Jonalyn died the following day,
succumbing to five wounds.

Criminal Case No. 442

Cabarrubias admitted before the trial
court to killing both Jonalyn Espiritu
and Pedro Espiritu. He testified that he went to see
Pedro to confront him about the latter’s attempt to electrocute Cabarrubias‘ sister with an electric fishing device. Pedro
reacted by unsheathing his bolo and attacking Cabarrubias,
who was able to parry the attack and stab Pedro. He claimed that after the
traumatic incident, he was possessed by a state of mind that bordered on
insanity overpowered by a force beyond his control. This was his explanation of
why he stabbed Jonalyn who happened to cross his path
(Cabarrubias‘ Brief, pp. 4-5, 7-9; Rollo, pp. 82-83, 85-87).

In this appeal, Cabarrubias asserts
that he should have been exempted from liability on the ground of insanity and
of having acted under the compulsion of an irresistible force.

Insanity was not invoked as a defense by Cabarrubias
in the trial court . and no
evidence was presented to overcome the presumption of sanity. It is too late on
appeal to raise the defense of insanity (People v. Yagong,
181 SCRA 479 [1990]).

The evidence on record does not show any outward act of Cabarrubias, indicating his “complete
deprivation of intelligence” nor “total deprivation of freedom
of the will.” On the other hand, as pointed out by the Solicitor General, Cabarrubias was able to give a lucid account of the series
of events, from the moment he crossed path with Jonalyn
to the moment he stabbed her (Consolidated Brief for the Appellee,
pp. 28-31; Rollo, pp. 164-167). He was able to
describe the bolo he had used and to demonstrate how he used it (TSN, August*
25, 1988, pp. 23-24).

There is also no showing in the record which would lead this
Court to a finding that Cabarrubias had acted under
the compulsion of an irresistible force.

Cabarrubias further contends that he
should have been convicted of homicide, not murder, and that the mitigating
circumstance of lack of intention to commit so grave a wrong as that committed
and the mitigating circumstance of passion or obfuscation, should have been
appreciated in his favor.

He alleges that he stabbed Jonalyn
without any intention of killing her but merely to stop her from screaming. He
points out that Jonalyn did not suffer any mortal
wound as shown by the fact that after being stabbed, she was still strong
enough to assume a squatting position and even answer questions asked her by
Domingo Espiritu. He further claims that Jonalyn did not die as a result of the stabbing but of
shock and internal hemorrhage secondary to her wounds (Cabarrubias‘
Brief, pp. 10-13, Rollo, pp. 88-91).

Contrary to the claim of Cabarrubias,
the evidence shows that he intended to kill Jonalyn.
He used a bolo to inflict five incisions and penetrating wounds on the head and
torso of Jonalyn, a mere eight-year old child. The
mitigating circumstance of lack of intent to commit so grave a wrong as that
committed cannot be appreciated where the acts employed by the accused were
reasonably sufficient to produce the result that they actually produced – the
death of the victim (People v. Amit, 32 SCRA 95
[1970]).

Cabarrubias asserts that Pedro’s
alleged act of attempting to electrocute Cabarrubias‘
sister, Pedro’s alleged unlawful aggression, and Jonalyn’s
screams produced the passion and obfuscation that deprived him of the time for
reflection (Cabarrubias‘ Brief, pp. 13-15; Rollo, pp. 91-93).

The circumstance of passion and obfuscation is not mitigating
when the accused acted in a spirit of lawlessness. Besides, the screams of an
eight-year old child are not provocative enough to generate a sudden impulse of
natural and uncontrolled fury (People v. Caliso, 58
Phil. 283 [1933]).

The trial court convicted Cabarrubias
of murder qualified by treachery and taking advantage of superior strength and
aggravated by nighttime.

The trial court is correct in finding Cabarrubias
guilty of murder qualified by treachery. Killing a child is characterized by
treachery even if the manner of the assault is not shown because the weakness
of the victim due to her tender age results in the absence of any danger to the
accused (People v. Ganohon, 196 SCRA 431 [1991]).

However, taking advantage of superior strength was not alleged as
a qualifying circumstance in the information and, therefore, it cannot be
properly appreciated as such. Neither can it be appreciated as a generic
circumstance because it is absorbed in treachery.

Nighttime cannot be properly appreciated against Cabarrubias because there is no evidence to show that he
purposely sought this circumstance to commit the crime or to facilitate the
commission of the crime (People v. De Los Reyes, 203 SCRA 707 [1991]). Granting
that nighttime attended the commission of the crime, this circumstance is also
absorbed in treachery.

Criminal Case No. 443

To bolster his defense of alibi, Antiporda
relies on Cabarrubias‘ testimony in open court
admitting that he, not Antiporda, was the one who
stabbed to death Pedro Espiritu. Antiporda
points to this testimony of Cabarrubias, his lack of
motive to kill Pedro and the dimly-lit place of the stabbing, which made
identification difficult, as sufficient grounds to negate the weight of the
dying declaration of Pedro (Antiporda’s Brief, pp.
6-9; Rollo, pp. 40-43).

The trial court dismissed Cabarrubias‘
version of the killing of Pedro as a “shallow concoction and confabulation
to save the neck of his cousin and constant companion, accused Zosimo Antiporda in Criminal Case
No. 443″ (Decision, p. 4; Rollo, p. 21).

The version of Cabarrubias is
uncorroborated and is contradicted by the evidence of the prosecution,
principally the dying declaration of Pedro that he was stabbed by Antiporda, not by Cabarrubias.
The dying declaration of Jonalyn, as told to Estefana Tubana, also pointed to Antiporda as the assailant of Pedro.

The trial court found no reason to doubt the credibility of Pedro
in making his ante mortem declaration and that of Talledo Espiritu in conveying
said declaration (Decision, p. 7; Rollo, p. 24). We
find no reason to depart from the rule that the findings of the trial court on
the credibility of witnesses are given the highest degree of respect by the
appellate court (People v. Saulo, 211 SCRA 888
[1992]).

Anent the defense of alibi, this defense is unavailing where
there is affirmative evidence of the presence of the accused at the scene of
the crime at the time of its commission (People v. Plaza, 140 SCRA 277 [1985];
People v. Pigon, 173 SCRA 607 [1989]).

Lack of motive does not preclude conviction when the crime and
the participation of the accused therein are definitely established (People v. Caranzo, 209 SCRA 232 [1992]).

We find, however, that the trial court erred in appreciating the
circumstance of treachery, which it considered to qualify the crime to murder.
Treachery cannot be appreciated in the absence of evidence of the mode of
attack; it cannot be presumed, but must be proved positively (People v. Quilaton, 205 SCRA 279 [1992]).

Nighttime cannot be properly appreciated against Antiporda, there being no evidence that it was purposely
sought by him to commit the offense (People v. De Los Reyes, 203 SCRA 707
[1991]).

Consequently, Antiporda can only be
convicted of homicide, with no modifying circumstance.

WHEREFORE, in view of
the foregoing, the decision of the trial court is AFFIRMED with the following
modifications:

In Criminal Case No. 442, appellant Ruben Cabarrubias
is found guilty of murder and sentenced to suffer the penalty of reclusion
perpetua. He is ordered to pay the heirs of Jonalyn Espiritu the amount of
FIFTY THOUSAND PESOS (P50,000.00) as indemnity.

In Criminal Case No. 443, appellant Zosimo
Antiporda is found guilty of homicide, and sentenced
to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal, as
maximum. He is ordered to indemnify the heirs of Pedro Espiritu
in the sum of FIFTY THOUSAND PESOS (P50,000.00).

SO ORDERED.

Cruz (Chairman),
Griño-Aquino and Bellosillo, JJ., concur.