People vs Berang People vs Berang G.R. Nos.

L-46526 and L-46527 October 31, 1939 Facts: The appellant was charged in three different cases with parricide. He was acquitted in one of them and found guilty in the other two. In the morning of November 4, 1938, Beling, the wife of the accused, and his children, four-year-old X and six-month-old Y, were boloed to death in the appellant's house. The first Government agents who arrived at the house were Constabulary Sergeant Ignacio Bersamina and the health inspector of Tugboc, Agustin Candia. The accused told the sergeant that he killed his wife and children because he was made with rage. In the afternoon of the same day the accused, who showed some wounds, was taken to the Davao Public Hospital, and on the following day, November 5th, answering the questions of the fiscal in the presence of Lieutenant Villares, deputy clerk of court Mr. Frias, and Sergeant Bersamina, he admitted killed his wife and children and having wounded himself on the neck and head. Issue: Whether accused-appellant is deemed guilty of both parricide and homicide? Held: Yes. Finding the accused guilty beyond reasonable doubt of killing his daughter X and wife Beling, with whom he lived maritally, in the absence of clear evidence of the marriage, the court considered the crime committed by Berang in killing Mora Beling as homicide only, and acquitted the accused in one of the three cases, sentencing him in the other, for the crime of homicide, to an indeterminate penalty ranging from six (6) months and one (1) day of prision mayor to twelve (12) years and (1) day of reclusion temporal, to indemnify the heirs of Beling in the amount of P2,000, and in the third case, for the crime of parricide for the death of his daughter X, it sentenced the accused to reclusion perpetua, and to pay the costs in both cases, without pronouncement as to the indemnity for the death of said X, considering that the accused, as the father, is the presumptive heir of the deceased. In the present appeal the accused contends that his guilt has not been established beyond a reasonable doubt; that the testimony of Bayna, his mother, is contradictory; that he could not read well his declaration before the Fiscal when it was read to him, and that he had not spoken to Sergeant Bersamina. He testified that on November 4, 1938, while he was sleeping, he was wounded by Beling, and when he woke up he saw his daughter X dead by his side, and upon noting that Beling was holding a bolo, he grabbed it from her and gave her bolo blows, because according to him he took pity on his

children. Wherefore, the court affirms the appealed judgment, with the costs to the appellant. So ordered. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-46526 and L-46527 October 31, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERANG (Bagobo), defendant-appellant. J.E. Blanco for appellant. Office of the Solicitor-General and Assistant Attorney Maalac for appellee.

CONCEPCION, J.: The appellant was charged in three different cases with parricide. He was acquitted in one of them and found guilty in the other two. From these judgment he appealed to this court. lwphi1.nt In the morning of November 4, 1938, Beling, the wife of the accused, and his children, four-yearold Paya and six-month-old Trinidad, alias Sinanga, were boloed to death in the appellant's house. The first Government agents who arrived at the house were Constabulary Sergeant Ignacio Bersamina and the health inspector of Tugboc, Agustin Candia. The accused told the sergeant that he killed his wife and children because he was made with rage. In the afternoon of the same day the accused, who showed some wounds, was taken to the Davao Public Hospital, and on the following day, November 5th, answering the questions of the fiscal in the presence of Lieutenant Villares, deputy clerk of court Mr. Frias, and Sergeant Bersamina, he admitted killed his wife and children and having wounded himself on the neck and head. His declaration was reduced to writing. After trial, the court rendered a decision wherein it made an analysis of the evidence for the prosecution and for the defense. As Mora Bayna, mother of the accused, testified that she saw the latter wrest the bolo from her son and wound her own child Sinanga who was in the arms of its mother Beling, the court entertained "doubt as to how the child Trinidad alias Sinanga met its death." "It is," said the court "possible that while Beling was already wounded, as testified to by witness Bayna, in wrestling the bolo from the accused and in the struggle for its possession, she could have wounded the child Sinanga who was in its mother's left arm. It might be that the accused had not remembered correctly whether

he or Beling had caused the wounds of Sinanga, for which reason he admitted to the Fiscal having caused its death. Finding the accused guilty beyond reasonable doubt of killing his daughter Paya and Beling, with whom he lived maritally, in the absence of clear evidence of the marriage, the court considered the crime committed by Berang in killing Mora Beling as homicide only, and acquitted the accused in one of the three cases, sentencing him in the other, for the crime of homicide, to an indeterminate penalty ranging from six (6) months and one (1) day of prision mayor to twelve (12) years and (1) day of reclusion temporal, to indemnify the heirs of Beling in the amount of P2,000, and in the third case, for the crime of parricide for the death of his daughter Paya, it sentenced the accused to reclusion perpetua, and to pay the costs in both cases, without pronouncement as to the indemnity for the death of said Paya, considering that the accused, as the father, is the presumptive heir of the deceased. In the present appeal the accused contends that his guilt has not been established beyond a reasonable doubt; that the testimony of Bayna is contradictory; that he could not read well his declaration before the Fiscal when it was read to him, and that he had not spoken to Sergeant Bersamina. He testified that on November 4, 1938, while he was sleeping, he was wounded by Beling, and when he woke up he saw his daughter Paya dead by his side, and upon noting that Beling was holding a bolo, he grabbed it from her and gave her bolo blows, because according to him he took pity on his children. We believe that the evidence for the defense has not overcome that for the prosecution. Wherefore, we affirm the appealed judgment, with the costs to the appellant. So ordered. Avancea, C.J., Villa-Real, Imperial, Diaz and Laurel, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-38833 March 12, 1980 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. AIROL ALING Y MAJURI, accused whose death sentence is under review. Mamintal Tamano for the accused. Office of the Solicitor General for appellee.

AQUINO, J.: This is a parricide case. Norija T. Mohamad, 30, was stabbed in the chest and diaphragm on January 28, 1972 at Calarian, Zamboanga City. She died at the Brent Hospital two days later. Girlie Aling a relative of Airol Aling stated in her affidavit of February 21, 1972 that she and Darla Aling (Norija's daughter) brought the victim to the hospital. They learned from the police that Norija was stabbed by her husband (p. 4, Record). On March 24, 1972 Airol Aling 35, was investigated by the police. He declared in the Chavacano dialect (his declaration was translated into English) that he killed his wife (whom he married according to Muslim rites because e he was informed in prison by his relatives that his wife was living with another man and fooling around with other men. He recounted the killing in this manner: At or about one o'clock in the afternoon of January 28, 1972, I was at the seashore of Calarian relaxing since I have just arrived from Jolo, Sulu that particular day. At that time, I was already running away from the authorities because I am an escapee from San Ramon Prison and Penal Farm. Later on, I proceeded to my father's house which is just near the seashore, Upon reaching the house, I saw Nori Mohamad but I had no time to talk to her because immediately after seeing me, Nori ran away, going to the direction of the street. Armed with the bolo which I had been carrying with me, I chased after Nori and I catch up with her at the street where I started stabbing her with the bolo, hitting her on the different parts of the body. When I saw Nori fell down on the street badly wounded, I hurriedly left the place and ran towards the far end of Calarian. (Exh. 2). Two policemen in their affidavit of March 24, 1972, affirmed that Airol admitted to Sergeant Antonio Macrohon in their presence that he stabbed his wife because she had been going with many men (Exh. 1). On April 19, 1972, Airol Aling was charged with parricide in the Court of First Instance of Zamboanga City. It was alleged in the information that Airol was a convict serving sentence at the penal colony for robbery with frustrated homicide. The case was first called for arraignment on March 15, 1974. The accused signified his willingness to plead guilty although he had no lawyer. A counsel de oficio was appointed for him. The trial court granted counsel's motion to transfer the arraignment to March 18. On that date, by agreement of the parties, the arraignment was transferred to March 29, then to April 5, and later to April 30, 1974. On that last date, the information was translated into the Tausug dialect which is spoken by the accused. With the assistance of his counsel, he pleaded guilty.

Then, the accused was placed on the witness stand and examined by his counsel. He admitted that he killed his wife. He declared that after he was informed by his counsel that the penalty for parricide is death or life imprisonment, he, nevertheless, admitted the killing of his wife because that was the truth. In answer to the question of the fiscal, the accused said that he understood that by pleading guilty he could be sentenced to death or reclusion perpetua because he was an escaped convict. He described the confrontation with his wife. When he arrived at his home, his wife ran and he pursued her. He overtook her, stabbed her but she was able to parry the blow, and when -she fell on the ground, he repeatedly stabbed her in the abdomen. He said that he was not coerced nor cajoled into entering a plea of guilty. He admitted that he was a prisoner in the penal colony. He was a Muslim belonging to the Samal tribe of Siasi Sulu. He killed his wife because while he was in prison, she did not visit him and she neglected their four children. He agreed that his father-in-law could have the custody of his children. He was able to leave the penal colony because he was a "living-out-prisoner". When he went to his house on January 28, 1972, his purpose was to be reconciled with his wife but when she saw him, instead of waiting for him, she ran away. He had information that his wife was guilty of infidelity or had a "kabit". That was a grievous offense under Muslim customs. He Identified his signature in his confession which was sworn to before the clerk of court (Exh. B or 2). The trial court sentenced Airol Aling to death and to pay an indemnity of twelve thousand pesos to the heirs of Norija Mohamad. It noted that he pleaded guilty with full knowledge of the meaning and consequences of his plea. The case was elevated to this Court for automatic review of the death penalty. Counsel de oficio assigned to present the side of the accused in this review, contends that the marriage of Airol to Norija was not indubitably proven. That contention cannot be sustained. The testimony of the accused that he was married to the deceased was an admission against his penal interest. It was a confirmation of the maxim semper praesumitur matrimonio and the presumption "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage" (Sec. 5[bbl, Rule 131, Rules of Court). He and the deceased had five children. He alluded in his testimony to his father-in-law. That implies that the deceased was his lawful wife. The fact that he bitterly resented her infidelity. Her failure to visit him n prison and her neglect of their children are other circumstances confirmatory of their marital status. The contention that the accused did not understand fully he nature and effect of Ms plea of guilty is belied by the record. The trial judge, a Muslim, took pans to follow the rule that in case a plea of guilty is entered in a capital case, evidence should be received in order to leave no room for reasonable doubt that the accused is guilty of the offense charged and that he had full knowledge of the meaning and consequences of his plea of guilty (People vs. Duaban, L-31912, August 24, 1979).

In this case, the arraignment was postponed three times in order to enable his counsel to confer with him and explain to him the consequences of his plea of guilty. The accused testified. His confession and the affidavit of the policemen who investigated him were presented in evidence. The contention that the crime was mitigated by the plea of guilty lack of intention to commit so grave a wrong and the circumstance that the accused is a non-Christian is not well taken because he is a quasirecidivist. The special aggravating circumstance of quasi-recidivism cannot be offset by generic investigating circumstances. The fact that he escaped from confinement in order to kill his wife shows a high degree of perversity and incorrigibility His being a non-Christian cannot serve to extenuate the heinousness of his offense. He understood the gravity of his crime because he had attained some education. He reached first year high school and he used to be a checker in a stevedoring firm. However, only since Justices (Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Guerrero, Abad Santos, De Castro and Melencio-Herrera) voted for the imposition of the death penalty. WHEREFORE, the trial court's judgment is affirmed with the modification that, for lack of one vote, the accused is sentenced to reclusion perpetua Costs de oficio. SO ORDERED. Barredo, Makasiar, Antonio, Concepcion Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ. concur.

Separate Opinions

FERNANDO, C.J., concurring: I concur with Justices Teehankee and Fernandez. I vote for the imposition of reclusion perpetua. TEEHANKEE, J., concurring: I vote with Justice Fernandez to reduce the penalty to reclusion perpetua. FERNANDEZ, J., concurring: I vote to impose the penalty of reclusion perpetua. I doubt whether the accused and the victim were legally married . AQUINO, J., concurring:

I certify that Mr. Justice Abad Santos voted for the imposition of the death penalty.

Separate Opinions FERNANDO, C.J., concurring: I concur with Justices Teehankee and Fernandez. I vote for the imposition of reclusion perpetua. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION September 30, 1942 G.R. No. L-48143 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PILUS SUBANO, defendant-appellant. Ricardo C. Lacson for appellant. Assistant Solicitor-General Reyes and Solicitor Barcelona for appellee. , J.: This is an appeal from the judgment of the Court of First Instance of Zamboanga finding the accused Pilus Subano guilty of the crime of parricide and sentencing him to reclusion perpetua and to indemnify the heirs of the deceased in the sum of P2,000. On July 9, 1940, defendant and his wife Bankalot had a quarrel because the latter, then suffering from a headache, refused to work in their kaigin. The defendant then remarked in a fit of anger that it would be better if she were dead. The quarrel was resumed the following morning when she again refused to accompany her husband to a creek of the Macasin River to catch fish; but this time, defendant dragged her along with him. When he returned home the afternoon of that day, he was alone and was noticeably pale and restless. Ebol Subano, father of Bankalot, and Biwang Subano, father of Cumay, another wife of the defendant, noticed bloodstains on his bolo and on its scabbard. Defendant sought to explain these bloodstains as of a big fish which he had cut. Ebol and Biwang noticed, however, that the defendant had not brought home any fish, and suspecting the something might be wrong, Ebol asked the defendant where his daughter was. Defendant disclaimed knowledge of her. With nightfall bringing no sign of Bankalots coming, Ebol and Biwang began searching for her. Four days later, they found her dead body lying in an isolated place in the middle of a creek of the Macasin River with a mortal wound on the back and another at the neck which almost severed the head from the body, and with several contusions.

Lieutenant Olivares, to whom the case was reported , repaired to the hut of the defendant who came down with an unsheathed bolo accompanied by his brother also carrying a bolo. The lieutenant ordered them to drop their bolos and when they refused he ordered his men to aim their rifles at them, whereupon the accused dropped his bolo and was arrested. Taken to the scene of the crime, he would not look at the dead body of his wife although he was asked to view and identify it, and showed no sign of grief. The accused at the trial denied having killed his wife. But on the strength of the foregoing facts, we are satisfied that the identity of the accused as the author of the crime has been established beyond reasonable doubt. The rule is that before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the crime. (U. S. vs. Villos, 6 Phil. 627.) This requirement has been fully met in the instant case. The fact that the accused had a quarrel with the deceased during which he remarked that it would be better if she were dead, and the day after he dragged her to the creek where they were supposed to fish; that he returned home in the afternoon of the same day alone and was noticeably pale and restless; that when asked about his wife, he disclaimed knowledge of her; that this bolo had bloodstains on it and when he asked about such bloodstains he offered but an incredible explanation; that four days after, the deceased was found in the same creek where they had gone to together, with a mortal wound on the back and on the neck; that he defied arrest and when brought to the scene of the crime he would not look at the dead body of his wife and showed no sign of grief ? this chain of prior and subsequent circumstances, unless otherwise satisfactorily explained, leaves no room for doubt as to the identity of the accused as the author of the crime. It is suggested that the deceased might have been the victim of the supposed magahat practice among this tribe in the locality by which the members of a family who have just suffered a loss of a member thereof, run amuck to kill any one they meet to stop death toll in the family. But this is a mere conjecture in no way borne out by any direct or indirect evidence to that effect. We are, however, of the opinion and so hold that the crime committed is homicide and not parricide. From the testimony of Ebol Subano, father of the deceased, it appears that the defendant has three wives and that the deceased was the last in point of time. Although the practice of polygamy is approved by custom among these non-Christians, polygamy, however, is not sactioned by the Marriage Law which merely recognizes tribal marriage rituals. The deceased, under our law, is not thus the lawful wife of the defendant and this precludes conviction for the crime of parricide. With the modification that the accused be sentenced to an indeterminate penalty of from eight years of prision mayor to fifteen years of reclusion temporal, the judgment is affirmed, with costs. Yulo, C.J., Paras, Bocobo and Imperial, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-31102 May 5, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIPE DUEO alias FELIPE CATALAN, SOFRONIO DUEO and ANDRESITO BELONIO alias HAPON, defendants-appellants. R. B. Agrava for appellants. Solicitor General Felix Q. Antonio for appellee.

SANTOS, J.: This is an appeal interposed on April 22, 1969 by the above named three defendants from a decision of the Court of First Instance of Capiz, 11th Judicial District, Roxas City, Hon. Judge Jose A. Aligaen presiding, in Criminal Case No. 3771 for murder, finding them guilty as charged and imposing upon them the penalty of life imprisonment or reclusion perpetua with all accesory penalties and to pay, jointly and severally, the heirs of the victim the amount of Six Thousand Pesos (P6,000.00). 1 It appears that on November 27, 1963, the Provincial Fiscal of Capiz filed an Information for murder against the three accused thus That on or about the 21st day of January, 1963, in the municipality of Maayon, province of Capiz, Philippines, and within the jurisdiction of this Honorable Court, the said accused, all armed with pistol, revolver and fighting bolo, conspiring, confederating and helping one another, with evident premeditation and treachery, did then and there wilfully, unlawfully and feloniously shoot and hit one Bernardo Demontano thereby inflicting upon the latter a "bullet wound passing through the body, entering the left costal arch mammary line and passing out of the right-mid-infra clavicular lines, which resulted in the instantaneous death of the said Bernardo Demontano that due to the death of the said Bernardo Demontanio and the consequent loss of his earning capacity, (the deceased having no permanent physical disability at the time of his death), his heirs have suffered damages in the sum of P8,000.00 in consonance with the provision of Article 2206 of the New Civil Code. Contrary to law. 2 Upon arraignment on June 13, and July 25, 1964 all of the accused pleaded not guilty. At the trial, the prosecution presented its evidence consisting of the testimonies of Dra. Teresa C. Andrada, Federico Dolfo, Roque Dellomos and Sets. Ramon Espeleta and Fidel Soberano and Exhibit A before Judge Ignacio Debuque. 3 Thereafter, the sala became vacant for four years. It was only in 1968 that the defense presented its evidence consisting of the testimonies of Herminda del Rosario, Federico Bitoon and the three accused before the Hon. Judge Jose Aligaen who rendered judgment on March 24, 1969 convicting all the accused. 4 The appeal was directed to the Court of Appeals, but, in view of the penalty involved, the records were forwarded to this Court on October 4, 1969. 5 On January 2, 1977, and May 8, 1978 after the case had

been submitted for decision on February 1, 1972 - appellants Felipe Dueno and Sofronio Dueno, respectively, withdrew their appeals. These withdrawals were allowed in resolutions dated January 2, 1977 and June 28, 1978. 6 hence, only the appeal of accused appellant Andresito Belonio is wider review in this decision. The evidence for the prosecution and the defense, as correctly synthesized by the Solicitor General in the People's brief 7 are as follow At about five thirty o'clock in the afternoon of January 21, 1963, while Roque Dellomos was on his way to the hacienda of the Central Azucarera del Pilar, at Maayon, Capiz, he met the three accused Felipe Dueo, Sofronio Dueo and Andresito Belonio near the house of Federico Dolfo (p. 101, t.s.n., Dec. 10, 1964, Dellomos). Upon seeing Roque Dellomos, Felipe Dueno fired a shot at Dellomos from a Caliber. 45 pistol he had at the time (p 102, Id). Roque Dellomos immediately ran away and while running he heard a second shot fired from the gun of the said accused. (p. 106, Id). In the evening of that day, January 21, 1963, at about post 9:00 o'clock just after Roque Dellomos and Bernardo Demontano a nephew of the former, had taken their supper at Dellomos house in Balighot Maayon, Capiz, Bernardo Demontanio opened the door of the house preparatory to going down. (p. 113, t.s.n., Dec. 10, 1964, Dellomos). At that moment, Roque Dellomos, who was fixing the plates they use in eating heard a shot from a gun and at the same time heard his nephew Bernardo Demontano fall from the stairs of the house pp. 113, Id). Dellomos immediately got his flashlight and blew out the light from his lamp on the table where they ate. (Id) He went towards the door where his nephew fell and focused his flashlight outside his house while his body was behind the bayong full of palay beside the door and peeped from a hole on their wall. (p. 112. t.s.n., Dec. 11, 1964, Dellomos). He saw the accused Felipe Dueno with a gun in hand which was fired but missed him. He also saw the two accused, named Sofronio Dueo with a gun in hand and accused Andresito Belonio with a bolo in hand. (p. 113, 114 and 117, t.s.n., Dec. 10, 1964, Dellomos). When the three accused left the house of Roque Dellomos, the latter verified what happened to his nephew Bernardo Demontanio and he saw his dead body downstairs of his house just in line with the eves of the roof. (p. 129, t.s.n., Dec. 10, 1964, Dellomos). The next morning, Roque Dellomos reported the incident to the municipal authorities of Maayon, Capiz (p. 130, Id); Dr. Teresa Capote Andrada the Rural Health Physician of Maayon examined the body of the deceased Bernardo Demontano (p. 25, t.s.n., Aug. 7, 1964, Andrada) and found gun shot wounds which caused his death instantaneously. (Exh. "A"). On that same night of January 21, 1963, one Federico Dolfo, a neighbor of Roque Dellomos, while the former was preparing the milk of his infant child in their house, he heard two gun shots from the direction of the house of Roque Dellomos. (p. 61, t.s.n., Nov. 4, 1964, Dolfo). Having been almost also a victim of the attack by the accused that same afternoon with Roque Dellomos, he thought that it might be the accused attacking Roque Dellomos, his neighbor, so he got his flashlight and his bolo and went down his house and hid himself from the banana plantations infront of his house near the barrio trail,

(p. 61, t.s.n., Nov. 4, 1964, Dolfo). While thus hiding he heard noises of persons passing the trail near him and when He saw persons running by that trail, which was about five meters from where he was, he lighted his flashlight and focused it on the persons running and recognized them to be accused Felipe Dueo, Sofronio Dueo and Andresito Belonio. (p 64, t.s.n., Nov. 4, 1964, Dolfo). Appellants relied on alibi as their common defense. That on or about the same time that the crime for which they were convicted was committed, appellant Sofronio Dueo and Andresito Belonio were at the house of Herminea del Rosario at Barrio Guba Pontevedra, Capiz (p. 238, t.s.n., July 12, 1968). Appellants tried to support their alibi with the testimony of Herminea del Rosario of Barrior Guba Pontevedra, Capiz. Appellant Felipe Dueoalleged that at the time the crime was allegedly committed he was in Barrio Hipona Pontevedra, Capiz, having slept in the evening of January 21, 1963 at the house of Federico Bitoon at Barrio Hipona Pontevedra, Capiz. Federico Bitoon corroborated such testimony of the appellant. (p. 286, t.s.n. Sept. 17, 1968, Dueo) The trial Court after considering the prosecution evidence and the alibi put up by the three accused found as the motive for the commission of the offense that the three accused were angry at Roque Dellomos and Federico Dolfo because the latter returned the stolen carabao to its owner in Malagit, Pontevedra. The stolen carabao was left by Felipe Dueo on the care of his father-in-law. The deceased Bernardo Demontanio was mistaken for Roque Dellomos. It further found that the three accused conspired in committing the offense, as shown "by the fact that in an incidents of their criminal adventure they were always together. Even in their gayest moment while drinking tuba in the house of their principal witness, Mrs. Herminda del Rosario, they were together." The defense of alibi was considered very weak, since "(t)he distance of the alleged hide-outs of the three accused in the town of Pontevedra to the town of Maayon, the seat of the crime, is not very far. Maayon, was formerly a barrio of the town of Pontevedra and a good road now running vast sugarcane plantations, connects the two towns which are very accessible to each other by trucks, jeeps and automobiles. The crime took place at about nine o'clock in the evening. One can be catching fish or doing carpentry work in Pontevedra during daytime and commit murder in Maayon in the evening." After weighing the evidence, the trial Court found the three defendants Felipe Dueo, Sofronio Dueo and Andresito Belonio "guilty beyond reasonable doubt of the crime of murder with the qualifying circumstances of treachery and evident premeditation, with the aggravating circumstance of nighttime to facilitate its commission," and imposed "life imprisonment or reclusion perpetua with all necessary penalties attached to it; to pay jointly severally the heirs of Bernardo Demontano the amount of six thousand (pesos) ... with costs. 8 Accused-appellants in this appeal seek the review and reversal of the decision alleging that the lower Court erred I ... IN FINDING, ON THE BASIS OF THE INCREDIBLE TESTIMONIES OF DELLOMOS AND DOLFO, THAT APPELLANTS SHOT BERNARDO DEMONTANO IN THE EVENING OF JANUARY 21, 1963.

II ... IN FINDING THAT THERE WAS A SUFFICIENT MOTIVE FOR APPELLANTS TO COMMIT THE MURDER OF WHICH THEY STAND CHARGED. III ... IN NOT GIVING CREDENCE TO APAPPELLANTS' DEFENSE OF ALIBI. 9 Appellants' counsel 10 undertook with notable zeal a detailed and painstaking scrutiny of the testimonies of the prosecution witnesses and now argue in support of the assigned errors as follows: 1. On the alleged incredibility of the testimonies. That the declarations of Roque Dellomos and Federico Dolfo who witness the incident in the afternoon and Identified the defendents as the ones responsible for the death of the victim Bernardo Demontao in the evening "are so inherently improbable as not to be credible"; 11 that Dellomos' act of extinguishing the kerosene lamp and immediately switching on his flashlight is illogical; 12 that Dellomos' testimony that he focused his flashlight for three (3) minutes runs counter to the natural reaction of a person who had just n fired upon; 13 that Dolfo's testimony that he recognized the three accused after focusing his flashlight on them is also incredible since he also admitted that he went behind some banana trees for his own safety; 14 that if Dolfo's testimony were true, appellants would have stopped to investigate the person who flashed the light on them. 15 2. On the insufficiency of motive. That the motive as found by the trial court has no factual basis for "if it is true that Felipe (Dueo) stole the carabao, he would not have kept it in Bo.Balighot in the yard of his father-in-law, but would. 16 have brought it somewhere else. And, 3. On the alibi. That it is unfortunate that the lower court rejected the alibi which was corroborated by witnesses who had no reason to lie. 17 And now to consider the merits of the foregoing assigned errors and the arguments in support thereof. 1. Appellants' contention that the testimonies of the eyewitnesses Dellomos and Dolfo are inherently improbable as not to be credible has been successfully traversed by the Solicitor General. 18 For, Dolfo and Dellomos, having been the target of accused-appellants only a few hours earlier in the afternoon of the same day, may and should be expected to take some risk to the point perhaps of being illogical and reckless to identify and, if possible, frustrate any further attempts on the part of the three accused to assault and to try to kill them again. As the People's brief explains There is nothing illogical in Dellomos putting out their kerosene lamp upon hearing the first gunshot just outside his house Find upon hearing his nephew (Bernardo Demontao supplied) fall from their stairs. It could be stated that the thought that he almost cost his life to a gun from the three accused that same afternoon must hate made him thought (sic, should be think) that he was again the target of said gun Putting out the light would conceal his indentity and his whereabouts inside the house from anyone outside. The fact that he got his flashlight and focused a fight from it outside the house from the door opening where his nephew fell and at the same time concealing his body with a sackfull of palay near the door and at the same time peeping from a hole away from the lighted flashlight he was holding is not an unnatural thing to do for any person similarly situated Instead of being an unnatural reaction of a

person in such situation, as appellant asserts, it is but a natural instinct for anyone to investigate from who and where was the source of the gunfire, (sic) taking safety precaution for himself from any possible harm as witness did when he hid his body behind a sack-full (bayong) of palay by their open door, if not to scare away those intruders who use the darkness of night as a means of attaining any evil purpose. On this point, witness Dellomos testified as follows: xxx xxx xxx Q. And after that you flashed your flashlight directing to the opening of the door where Bernardo Demontano passed, am I right? A Yes., sir. Q Now, when you flashed your flashlight to that open- ing of the door you saw Bernardo Demontano on the ground, am I right? A. No sir. The first person I saw was Felipe Dueflo who was near the stairs and I was behind a big bayong of palay. Q. Where is that big bayong of palay where you were posted? A. By the side of our table. Q. How far is that bayong where you have posted yourself from the opening at the door where Bernardo Demontano passed in going downstairs? A. Very near. The distance of the bayong from the panel of the door is fifteen inches to my estimate. Q You do not answer my question. My question is, how far is that bayong where you were posted from the opening of the door where Bernardo Demontano passed? A. That is what I have told, fifteen inches, Q. And that bayong where you have posted is at the side of the door, am I right? A. Yes, sir. Q. So since it is near the door it will obstruct the opening of the door, am I right? Fiscal DELFIN: Your Honor, please, the question is already a conclusion of fact. COURT: Reform the question. What do you mean by that? You are using a future tense. This is all past. Atty. CORDENILLO :

Q. When you flashed your light through the opening of the door you allegedly saw Felipe Dueno, am I right? A. Yes, sir. COURT: Q. Where was Felipe Dueno the first time you saw him after you have focused your flashlight? A. On the side of our house because you know the wall of our house had a hole and the first time I focused my flashlight I saw him through the hole. Q. Where were you at that time when you first saw Felipe Dueno? A. I was behind the bayong of palay and peeping when I focused my flashlight looking for the place where the shot came from. Q. How far were you from Felipe Dueno when you saw him for the first time? A. A. About two or three brazas away because the elevation of my house to the ground is a little bit high because the rung of my stairs was six rungs. xxx xxx xxx Q. While you were looking at Felipe Dueno where were his companions, how far were they from Felipe Dueno? A. The companions were about two brazas away from him. Q. What were they doing, what were his companions doing A. Andre sito was holding are revolver .38 caliber aiming the revolver forward. The other one was holding fighting bolo hanging on his side. Q. Were the two companions standing? A. Yes, sir. Q. They did not advance towards Felipe Dueo, is that right? A. No, sir, they did not go near Felipe Dueno, but they were holding their weapons. (pp. 227-235, Transcript 1) Such evidence clearly and positively proves that the accused herein were Identified as the perpetrators of the crime, as the trial Court correctly found.

In the absence of any showing that the court a quo disregarded a material fact which would damage the conclusion made, this finding must be upheld. (People vs. Dorado, 30 SCRA 53. Accord: People vs. Ruben Ablaza, 30 SCRA 173). xxx xxx xxx Another point that appellant asserts in support of their arguments that the testimony of Roque Dellomos is improbable is the fact that said witness focused his lighted flashlight upon the accused for three minutes more or less. It is argued that such fact 'runs counter to the natural reaction of a person who has just been fired upon. (p. 18, Appellant's brief), On cross-examination, witness Dellomos testified as follows: Q. Atty. CORDENILLO A. We are sure now Mr. Dellomos, that you allegedly saw Felipe Dueno below your house through a hole at the wall of your house, but not through the opening of the door of our house, am I right? Q. Yes, sir. A. And where did you let the light of your flashlight pass through, through the opening of the door, or through the hole of the wall of your house? Q. I focused my flashlight on the stairway, but because of the illumination of the light I saw Felipe Dueno through the hole of the wall of the house. A. How long was it from the first shot to the time when you focused the light of your flashlight through the door? Q. Immediately after hearing the shot I took hold of my flashlight and focused my flashlight because I was surprised that Bernardo Demontano had fallen. Q. Shall we say five minutes? A. Perhaps about a minute. That is only an estimate because I had to stand yet and get the flashlight. Q. How long have you focused the light of your flashlight through the door? No sir I did not expose my flashlight out of the door, but I just put the inner part of my flashlight in the opening of the door but the rays of the light has spread up to the wall of the house. (pp. 124-126, t.s.n)
19

xxx xxx xxx Again appellant assails the testimony of witness Federico Dolfo as not worthy of credit and as unnatural His testimony is that while hiding among the banana plantation in front of bis house near the barrio trail, he lighted (sic) his flashlight and focused the same upon the running persons whom he recognized to be

the accused, (pp. 64, t.s.n., Nov. 4, 1964, Roque). Admittedly, this testimony is in corroboration to that of Dellomos as regards the Identity of the accused. Appellants ask: If the aim of Dolfo in going down his house was for his own safety, what purpose would there be to flash his light upon them while passing? (p. 20, Appellant's brief Contrary to appellants assertion of falsity, such act of lighting on the running persons by witness was but a natural and instinctive act of anyone under such situation He was not sure that the gun shots he heard were from the accused ... The fact that the accused did not stop to investigate who was lighting on them and did not fire on him is but a lucky stroke of fate. 20 2. The position of the Solicitor General on the second assigned error, is also well taken. Thus It is respectfully submitted that the Identity of the accused as the perpetrators of the crime was clearly established by the evidence in the instant case and it being so we submit that the question of motive is not important (People vs. Bautista, 30 SCRA 558). xxx xxx xxx Motive is relevant where the Identity of the persons accused of having committed the crime is in dispute, where there are no eyewitness, and where suspicion is likely to fall upon a number of persons (People vs. Portugueza, L-22604, July 31, 1967). In the case at bar, the Identity of the accused was positively proved by eyewitnesses, so motive is irrelevant. 21 3. And finally, on the alibi, the People's brief correctly justifies the lower court's finding and conclusion. Thus The trial court did not err in rejecting alibi as appellants defense. The evidence does not show that it was inherently impossible for the appellants to be at the scene of the crime on that fatal evening. It must be clearly shown not only that the accused was at some other place but as well that it was physically impossible for him to be at the scene of the crime at the time of its commission. (People vs. Marquez, L24373-74, Nov. 28, 1969). The trial court stated: The distance of the alleged hide-outs of the three accused in the town of Maayon, (Capiz) the seat of the crime is not very far. Maayon was formerly a barrio of the town of Pontevedra and a good road now running between vast sugarcane plantations, connects the two towns which are very accessible to each other by trucks, jeeps and automobiles. The crime took place about nine o'clock in the evening. Once can be catching fish or doing carpentry work in Pontevedra during daytime and commit murder in Maayon in the evening. (p. 253, Rec.). By way of resume then. The evidence for the prosecution establish that in the afternoon of January 21, 1963, the three accused-appellants fired upon Roque Dellomos and Federico Dolfo but mis them; and theft in the evening of the same day, the three again were Identified as the assailants who fired upon and killed Bernardo Demontao who was mistaken for Roque Dellomos and/or Federico Dolfo. It also appears that their defense of alibi was not worthy of credence. The guilt of the three accusedappellants, therefore, has been established and proved beyond reasonable doubt.

In specific regard to the circumstances attendant in the commission of the offense, Article 248 of the Revised Penal Code is clear that only one qualifying circumstance is necessary to qualify the offense as murder. In the present case, the trial court found that the two qualifying circumstances treachery and evident premeditation attended the commission of the offense and utilized both conjointly to qualify it to murder. This is error. As treachery sufficiently qualifies the killing to murder evident premeditation having been also alleged in the information and proved, should be considered as a generic aggravating circumstance only. 22 However, jurisprudence is settled that evident premeditation cannot be appreciated in a case where, although the accused had planned the perpetration of the killing, the victim was different from the person whom the accused had originally intended to kill. 23 Thus, in the Mabug-at case, 24 We said that "(e)ven when there is sufficient proof of premeditation ..., it cannot be considered as a qualifying circumstance ..., because the person whom the accused intended to kill was not Perfecta Buralo, who was hit by the bullets, but her aunt Juana Buralo." In the case at bar, it was Roque Dellomos who accused-appellants intended to kill, but it was his nephew, Bernardo Demontano instead, who was shot at and hit and in instantaneously died. With respect to nighttime, the rule in People v. Magsilang 25 that except in special cases, the circumstances of treachery and nocturnity "always go together and are absorbed in the same offense" and that both "may well be regarded as complementing each other and (are) to be considered as one circumstance only, to qualify the killing as murder, 26 applies in this case Nocturnity, like abuse of superiority is absorbed in treachery because it forms part of the peculiar treacherous means and manner adopted to insure the execution of the crime. If facilitates the treacherous character of the attack. As an element of treachery, it would not be just to use it again as an aggravating circumstance. 27 Accordingly, nighttime, like evident premeditation, cannot be separately appreciated in the instant case. There being no mitigating or aggravating circumstance, the penalty of life imprisonment or reclusion perpetua is the proper penalty in accordance with Art. 248, in relation to Articles 64, par. 1, and 77 of the Revised Penal Code. The civil indemnity to the heirs of the deceased, however, should be raised from P6,000.00 to P12,000.00. The trial court's decision should accordingly be modified. 28 As noted earlier, accused-appellants Felipe Dueno and Sofronio Dueno had withdrawn their appeals, and the decision of the trial court already became final and executory as to them. The decision is binding as to the third accused-appellant, Andresito Belonio, who pursued his appeal. WHEREFORE, with the modification that the indemnity to be paid to the heirs of the deceased should be raised from P6,000.00 to P12,000.00 without subsidiary imprisonment in case of insolvency, the decision appealed from is hereby AFFIRMED. No cost. SO ORDERED. Aquino, Concepcion, Jr., Abad Santos and De Castro, JJ., concur.

#Footnotes 1 Rollo, P. 90; Decision. 2 Id, pp. 15-16. 3 Id., p. 63. 4 Ibid . 5 Id, p. 1. 6 Id, pp- 196, 213. 7 Id, p. 157. 8 Id, p. 90. 9 Id P. 59. 10 Atty. Raoul B. Agrava, counsel de oficio represented the three appellants. Rollo, p. 75. 11 Id, p. 76. 12 Id, p. 77, 14 Id p. 78. 15 Id p. 79. 16 Id, p. 80. 17 Id, p. 81. 18 The Solicitor General now Associate Justice Felix Q. Antonio, assisted by Assistant Solicitor General Bernardo P. Pardo and Assistant Solicitor General Eufracio B. Cosio filed the People's brief. 19 Brief for Appellee, pp. 6-1 1 20 Id, pp. 12-13. 21 Id, pp. 13-14. 22 See Aquino, The Revised Penal Code, Vol. 1, 1976 ed., p. 341, citing cases. 23 Ibid, citing People vs. Mabugat 51 Phil. 967 (1926) and People v. Guevarra, L-2437 1, April 16, 1968, 23 SCRA 58; see also People vs. Guillen, 85 Phil. 307, 318-319 (1950) and People v. Umall 96 Phil. 185,201(1954). 24 Supra, p. 970.

25 82 Phil. 217, 275-276 (1948). 26 Citing U. S. v. Salgado, 1 1 Phil. 56 (1908). 27 See Aquino, supra, Vol. 1, 1961 ed., p. 305, citing cases 28 People v. De Leon, L-28480-1, Sept. 30, 1971, 41 SCRA 120; People v. Abboc, L-28327, 53 SCRA 54; People v. Cardena, L-29090, April 29, 1974, 56 SCRA 631. * Justice Felix Q. Antonio, then Solicitor General, filed the brief for the People in this case. ** Justice Pacifico de Castro was designated vice Justice Fe Q. Antonio.