Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 77776 June 27, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

ROMEO AGAPINAY, ALEX AGAPINAY, FORTUNATO AGAPINAY, DANTE AGAPINAY, DELFIN AGAPINAY and
CIRILO AGAPINAY, accused-appellants.

The Solicitor General for plaintiff-appellee.

Juan T. Antonio for accused-appellants.

SARMIENTO, J.:

On April 11, 1983, the then Acting Provincial Fiscal of Cagayan, Alejandro Pulido, filed an information
accusing Romeo, Alex, Fortunato, Dante, Delfin, and Cirilo, all surnamed Agapinay, of murder, as a
consequence of the fatal stabbing of Virgilio Paino on April 13, 1981. The same reads as follows:

That on or about April 13, 1981, in the municipality of Gonzaga, province of Cagayan, and within the
jurisdiction of this Honorable Court, the said accused, Romeo Agapinay, Alex Agapinay, Fortunate
Agapinay, Dante Agapinay, Delfin Agapinay and Cirilo Agapinay, armed with bolos (lilit) and stones,
conspiring together and helping one another, with intent to kill, with evident premeditation, with
treachery and with abuse of superior strength, did then and there wilfully, unlawfully and feloniously
assault, attack, chase, stone and stab, one, Virgilio Paino, inflicting upon him wounds on his body which
caused his death.

Contrary to law. 1

On arraignment, all six accused pleaded "not guilty." 2

The evidence of the prosecution shows that the Agapinays are brothers, except Romeo, who is Delfin's
son, 3 and that along with Virgilio Paino, Amor Flores, and Eufemio Paino, they were hirelings of Julia
Rapada, an operator of fishing boats. On April 12, 1981, they set out, along with other complement, on a
fishing venture in the sea of Batangan, in Gonzaga, Cagayan. They returned to shore the following day,
April 13, 1981, whereupon, they unloaded their catch and spread out their fishnet on the sand to dry.
Thereafter, except for Romeo Agapinay, they mended the net, with thread and small knives, under
portable shed. 4 Meanwhile, Virgilio Paino took the shed and placed it where he and Alex and Cirilo
Agapinay were. Moments later, Romeo Agapinay appeared and confronted Virgilio, and berated him for
taking the shed without permission. Virgilio said that they were going to use it. Shortly, the two
exchanged words and tempers apparently flared. Romeo lunged at Virgilio with a hunting knife, six
inches long, that hit his right arm. Virgilio ran away but Delfin and Fortunato Agapinay met him and held
on to his arms. Romeo approached him and dealt him a second stab at the right side of his back. Virgilio,
however, managed to extricate himself again and ran away. While he was running, Delfin, Alex,
Fortunate, Dante, and Cirilo took turns in stoning him. All of a sudden Amor Flores appeared and
plunged a knife at the back of Virgilio. It was then that Virgilio collapsed. Meanwhile Julia cried, "Kill him
and we will bury him." 5

The prosecution also established that Cirilo and Delfin had attacked Eufemio Paino, a brother of Virgilio,
with their own knives but the latter defended himself with a paddle. The former ran away. The rest of
the Agapinays likewise fled. 6

Antonio and Eufemio Paino, brothers of Virgilio, and Artemio Siababa brought the wounded Virgilio to
his (Virgilio's) house. 7 The latter supposedly executed an ante-mortem statement there wherein he
implicated the Agapinays as well as Amor Flores, as responsible for the incident. Thereafter, he was
brought to the Don Alfonso Enrile Hospital at Gonzaga. He was dead, however, on arrival. 8
Police Corporal Rugino Sunico, when informed of the stabbing, went to the scene to investigate but
Virgilio had already been brought to his home. Later, Patrolman Sunico took a supposed confession of
Romeo Agapinay who surrendered to him at 9:00 o'clock in the morning of April 13,1981. Meanwhile,
Cirilo and Delfin Agapinay proceeded to the police headquarters to complain that Eufemio Paino also
assaulted them. They refused to make any further statement. 9

The cadaver of Virgilio was later autopsied. Dr. Silverio Salvanera's post-mortem examination showed
that the late Virgilio Agapinay suffered the following injuries:

... (a) 2 cm. long, penetrating to the liver, directed upwards and medially, located at the level of the 7th
intercostal space along the mid-clavicular line; (b) 2.5 cm. long penetrating to the lungs, directed
upwards and medially, located at the level of the 7th intercostal space along posterior axillary line; and
(c) Thru and thru wound at the medial aspect between the distal and medial 3rd of the right arm, 2.5 cm.
point of entrance, 1.5 cm. point of exit, 6.2 cm. apart. 10

After the prosecution rested, the accused presented their evidence.

Cirilo Agapinay stated that the incident started when Virgilio Paino grabbed the atal (a piece of wood
used to roll boats ashore) without his, Cirilo's, permission. Cirilo resented this but Virgilio allegedly
clubbed him and that he lost consciousness. Delfin and Fortunato Agapinay brought him to the hospital.
11

Delfin Agapinay, on the other hand, testified that he was with

Cirilo and a certain Jesus Alveza on that fateful morning at the seashore of Batangan mending fishnet.
There, Virgilio confronted them and asked why Cirilo took the atal without his permission. Cirilo declared
that he had Virgilio's companions' permission. It was then that Virgilio clubbed Cirilo until the latter
passed out. He claimed that Romeo, Dante, Alex, and Fortunato Agapinay were not around when the
incident happened. 12 He testified, finally, that Virgilio attacked them with a knife and that he, together
with Cirilo, sustained injuries.

Fortunato Agapinay contended that he was asleep aboard the boat at the time and was roused by his
nephew, Alfredo Maximo, and whereupon, he saw men fighting. Cirilo and Delfin Agapinay, together
with Amor Flores, were allegedly on their way home, whom he followed. Upon reaching their house,
Romeo Agapinay appeared and confessed that he had stabbed Virgilio Paino. 13

Alex Agapinay testified that he was with Salvador and Mariano Agapinay at that time repairing a lamp.
They then saw Fely Rose Paino running, who informed them that Virgilio Paino had been stabbed, and
that Romeo Agapinay was the culprit. Dante Agapinay corroborated his testimony. 14

Romeo Agapinay, who had been tagged as the knife-wielder, alleged that on April 13, 1981, he was at the
shore of Batangan, in Buguey, mending net. He claimed that he was with his father, Delfin Agapinay, and
uncle, Cirilo Agapinay, a certain Martin Maximo, Jesus Alveza, and unidentified complement. It was then
that Virgilio Paino suddenly appeared "uttering bad words to his father Delfin."15 Virgilio then allegedly
struck Cirilo Agapinay and his father with a paddle. He stated that he was forced to stab Virgilio three
times. Virgilio allegedly later went home alone. 16

The defense pictured Virgilio as having been drunk at that time, and that he came on strong without
provocation, haranguing the Agapinays for two hours. 17

The trial judge rejected the accused's claim of defense of relative 18 and convicted all six accused of the
crime of murder, attended by treachery. 19 He also noted that it was not Virgilio who assaulted Cirilo and
Delfin Agapinay with a knife, but rather, Eufemio Paino. He held that the Agapinays can not thus say that
they had been defending themselves (against Virgilio).

The lower court also found that the Agapinays had conspired to kill Virgilio Paino and thus held them, in
the dispositive portion of its decision, "all principals by participation."

In giving credence to the prosecution's evidence, the trial court observed that Virgilio could not have
given a valid cause for the Agapinays to assault him. ("[I]t is hard to believe that the late Virgilio just
clubbed accused Cirilo and Delfin without cause." 20 )

Virgilio could not have blamed the Agapinays, as the latter claim, for taking the atal (the act that, as
alleged by the Agapinays, precipitated the fight), because it was Fortunato Agapinay who was the head
of the complement, and if any person should begrudge the Agapinays' act, the logical one was he,
Fortunate. ("Thus, there is no plausible reason for the late Virgilio to have clubbed Cirilo and Delfin as
the deceased was not the owner of the atal ..." 21)

The trial court likewise found that Cirilo and Delfin were not defending themselves against Virgilio when
they suffered stab wounds of their own, but rather, against Eufemio Paino. It lent faith and credence to
Corporal Sunico's testimony who heard both Cirilo and Delfin pin the blame on "Temyong" (Eufemio)
Paino. 22

The court commanded the Provincial Fiscal to indict Julia Rapada as alleged principal by inducement for
having ordered the Agapinays to "[k]ill Virgilio Paino, "23 as well as Amor Flores, to account for their
crimes. (Neither of them is accused in the Information.)

It found that no evident premeditation attended the killing but appreciated treachery and conspiracy.
The dispositive portion of its Decision reads:

WHEREFORE, PREMISES CONSIDERED, this Court finds accused Romeo Agapinay, Delfin Agapinay, Cirilo
Agapinay, Fortunato Agapinay, Alex Agapinay and Dante Agapinay, all principals by participation, guilty
beyond reasonable doubt of the crime of murder prescribed and penalized under Article 248 of the
Revised Penal Code and hereby sentences each of herein accused to suffer the penalty of reclusion
perpetua and to indemnify the heirs of deceased Virgilio Paino the sum of THIRTY THOUSAND
(P30,000.00) PESOS and to pay the costs of this suit.

SO ORDERED. 24

The six accused now submit that the Decision under appeal should be reversed, and that the trial court
erred in the following terms:

FIRST. — THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT ROMEO AGAPINAY STABBED THE
DECEASED TWICE.
SECOND. — THE TRIAL COURT ERRED IN FINDING THAT DELFIN

AGAPINAY, ALEX AGAPINAY, FORTUNATO AGAPINAY TOOK TURNS IN STONING THE VICTIM.

THIRD. — THE TRIAL COURT ERRED IN ADOPTING AS PART OF THE EVIDENCE THE PROCEEDINGS AT THE
PRELIMINARY INVESTIGATION (1ST STAGE) CONDUCTED BY THE MUNICIPAL CIRCUIT TRIAL JUDGE.

FOURTH. — THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY ON THE PART OF THE
APPELLANTS WHEN THEY COMMITTED THE CRIME CHARGED.

FIFTH. — THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANTS ARE GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MURDER QUALIFIED BY TREACHERY.

SIXTH. — THE TRIAL COURT ERRED IN SENTENCING THE APPELLANTS TO THE PENALTY OF RECLUSION
PERPETUA.

SEVENTH. — THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLANTS TO PRESENT EVIDENCE TO
FIND OUT IF THE EVIDENCE TO BE PRESENTED CONSTITUTES NEWLY DISCOVERED EVIDENCE AS A BASIS
FOR A NEW TRIAL. 25

We affirm, with modifications, the Decision appealed from.

To begin with, the errors, except the last, assigned by the accused refer to credibility of witnesses, and in
a long line of cases, we have held that "credibility" is the domain of the trial court.

There indeed seems to be no controversy that the Agapinays (that is, the six accused) are guilty of
participating in the slay of Virgilio Paino: (1) Romeo admitted having stabbed him; (2) thereafter, Delfin
and Fortunato held him, whereupon, Romeo thrust another stab; (3) as Virgilio ran away, Delfin, Alex,
Fortunato, Dante, and Cirilo threw rocks at him.

Although it appears that it was Amor Flores who dealt Virgilio the death blow, the Agapinays can not
deny that they had the intent to kill him, and performed acts to carry that out, for which they should be
held accountable under the law. 26

With respect to Amor Flores, we agree with the trial judge that he should be brought to the bar of
justice. As regards, however, Julia Rapada, it is the opinion of this Court, and based on the records, that
she can not be held liable (as a principal by inducement). Her words, " Kill him and we will bury him" 27
amount but to imprudent utterances said in the excitement of the hour or in the heat of anger (it does
not appear whether or not Rapada held a grudge against the deceased), and not, rather, in the nature of
a command that had to be obeyed. It has been held:

xxx xxx xxx

... A chance word spoken without reflection, a wrong appreciation of a situation, an ironical phrase, a
thoughtless act, may give birth to a thought of, or even a resolution to, crime in the mind of one for
some independent reason predisposed thereto without the one who spoke the word or performed the
act having any expectation that his suggestion would be followed or any real intention that it produce a
result. In such case, while the: expression was imprudent and the results of it grave in the extreme, he
would not be guilty of the crime committed. Therefore, in applying the principles laid down to concrete
cases it is necessary to remember only that the inducement must be made directly with the intention of
procuring the commission of the crime and that such inducement must be the determining cause of the
crime. 28

xxx xxx xxx

We also believe that conspiracy has not been shown beyond reasonable doubt to hold all six accused as
co-principals in the crime of murder. As the lower court observed, the stabbing happened in the "spur of
the moment." 29 Conspiracy means, however, an agreement concerning the commission of a felony and
a decision to commit it. 30 If the tragedy was a chance stabbing, there can be no conspiracy to speak of.
Hence, the parties' liability should be considered individually. 31

It is our considered opinion that only Romeo, Delfin, and Fortunato should be held as principals in the
crime of murder. Romeo is guilty, as he admitted in open court, by direct participation, 32 while Delfin
and Fortunate are liable as principals by cooperation. 33 In holding the victim by his arms, both allowed
Romeo to inflict upon him a stab wound. 34

Alex, Dante, and Cirilo, on the other hand, should be held as simple accomplices 35 for their acts of
pelting the victim with rocks. Since the deceased had already sustained two stab wounds, the act of
hurling rocks at him was not indispensable to justify holding them legally liable as principals. 36 There is
further no doubt that murder has been committed, but not because of treachery, as ruled by the trial
court. Treachery depends on the suddenness of the attack, by which the victim is rendered hors
d'combat, as in an ambuscade, or any manner in which the victim is deprived of all defenses, and in
which the malefactor faces no risk to

himself. 37 The manner of attack must be shown. 38 There is no such showing here.

The fact that Delfin and Fortunato Agapinay held Virgilio Paino while Romeo stabbed him, does not
demonstrate treachery. Rather, what it proves is abuse of superiority. It is indeed plain from the records
that the trio of Romeo, Delfin, and Fortunato had taken advantage of their strength to overcome the
victim who, at that time, was already injured. 39

Abuse of superiority qualifies the taking of the life of another into murder. 40 Accordingly, we affirm the
trial court's Decision insofar as it found Romeo, Delfin, and Fortunate, all surnamed Agapinay, guilty as
co-principals of murder. We however, find Alex, Dante, and Cirilo, also all surnamed Agapinay, guilty as
accomplices in the commission of the same offense.

Anent the last error assigned, that the lower court erred in not allowing a new trial, we sustain the
action of His Honor, Judge Felipe Tumacder. As he held, the appeal having been perfected, "[t]he Court ...
has no more jurisdiction to entertain" 41 any incident.

The counsel for the accused alleges that "the only reason why the Notice of Appeal was filed was
because on January 30, 1987, the Motion for New Trial had not been formally resolved or denied, hence,
the motion was filed as a precautionary measure not to lose the right to appeal which was set to expire
on February 3, 1987. 42 The accused's counsel has apparently ignored the fact that "[t]he time during
which a motion ... for a new trial has been pending shall be deducted ... 43 and hence, he faced no risk
of losing the right to appeal in the event his motion was denied. 44

As we noted, the trial court repudiated the accused's posturing of defense of relatives, so also do we.
"Defense of relatives" requires the concurrence of three elements: (1) unlawful aggression; (2)
reasonable necessity of the means employed to prevent or repel it; and (3) the person defending the
relative had no part in provoking the assailant, should any provocation have been given by the person
attacked. 45 Of these three requisites, "unlawful aggression" is said to be the most essential and primary,
without which any "defense" is not possible or justified. Thus: "If there is no unlawful aggression there
would be nothing to prevent or repel." 46 In that event, not even incomplete self-defense can be validly
invoked. 47

The Court is not persuaded that Virgilio Paino had acted with unlawful aggression that might have
provoked the Agapinays' deadly wrath. The records show that all that Virgilio did was to address
offensive language to Delfin Agapinay. 48 In one case, this Court held that 'injurious words or threats 49
do not amount to unlawful aggression. Assuming that Virgilio did strike Delfin and Romeo Agapinay with
a paddle, the expedients reveals that thereafter and upon having been stabbed in the right arm by
Romeo, he, Virgilio, ran away. It has also been ruled that: "Self-defense does not justify the unnecessary
killing of an aggressor who is retreating from the fray." 50

The Court finds, however, that the accused should be entitled to the mitigating circumstance of
provocation 51 (or vindication of a grave offense 52 or passion or obfuscation. 53) since clearly, the
deceased uttered offending words ("vulva of your mother, if you are talking as if you have no debts, not
like me, I have no debts" 54) that made the Agapinays, especially Romeo, react violently. While the trial
court disregarded this particular piece of evidence, the entire picture seems to indicate that Virgilio
Paino did say bad words that made the Agapinays act in retaliation.

WHEREFORE, Romeo, Delfin, and Fortunate, all surnamed Agapinay, are ORDERED to undergo an
indeterminate sentence of ten (10) years and one (1) day of prision mayor maximum, as minimum, to
seventeen (17) years, 4 months, and one (1) day of reclusion temporal maximum, as maximum. Alex,
Dante, and Cirilo, also surnamed Agapinay, are ORDERED to undergo an indeterminate sentence of four
(4) years and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision
mayor maximum, as maximum. All six accused are also ORDERED to pay, jointly and severally, to the
heirs of Virgilio Paino, the sum of THIRTY THOUSAND (P30,000.00) PESOS. Costs against the accused.
SO ORDERED.

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