Direct Participation

8/10/2019 Direct Participation

1/66

G.R. No. L-54445 May 12, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.MARIO NUNAG, ARNEL MANDAP, alias "Bubot", EFREN SALANGSANG, DANILOCARPIO and DIOSDADO MANALILI, accused-appellants.

The Solicitor General for plaintiff- appellee.

Victorino M. David for accused-appellants except Arnel Mandap.

Feliciano G. Mandap for Arnel Mandap.

PADILLA, J .:

Accused-appellants Mario Nunag, Arnel Mandap alias "Bubot", Efren Salangsang, DaniloCarpio, and Diosdado Manalili were charged before the Court of First Instance of Pampangawith the crime of Rape committed as follows:

That on or about the second week of May, 1978, in the Municipality of Minalin,province of Pampanga, Philippines, and within the jurisdiction of this HonorableCourt, the said accused, with lewd design, conspiring and confederating togetherand mutually helping one another, and armed with deadly weapon, by means ofviolence and intimidation, did then and there willfully, unlawfully and feloniouslyhave carnal knowledge of the complainant Lorenza Lopez, against her will, andin a backyard, near a ricefield.

All contrary to law, and with the aggravating circumstances [sic] that the saidoffense was committed at night time.

The complainant, Lorenza Lopez, a resident of Barangay San Nicolas, Minalin, Pampanga, thenabout fifteen and a half years old, declared that in the second week of May 1978, at about 7:30o'clock in the evening, she was watching a television program in the house of her neighbor,Carmen Laxamana. She stood outside the house and peeped through an open window. As shewas standing there, she saw the accused Mario Nunag, one of her neighbors, coming towardsher. Mario Nunag was staggering and appeared to be drunk. The moon was bright and shereadily recognized him.

Mario Nunag came to her and asked her to go with him. But she refused, so that Nunag held

her by the hand and poked a knife at her stomach and threatened to kin her. Nunag then placedsomething in her mouth and led her to a nearby ricefield, about 15 meters behind the house ofCarmen Laxamana. 1Very soon thereafter, they were joined by the other accused Arnel Mandap, EfrenSalangsang, Danio Carpio and Diosdado Manalili, who were also very well known to her. After conferringin whispers, Arnel Mandap and Efren Salangsang held her hands, while Danilo Carpio and DiosdadoManalili held her feet, and forced her to he on the ground. She struggled to free herself, but the accusedheld her tightly.


2/66

Mario Nunag then undressed her and had sexual intercourse with her, at the same time fondlingher breasts. She felt pain in her vagina. After Mario Nunag had finished, Arnel Mandap followed.

After Arnel Mandap had finished, she lost consciousness and regained it while DiosdadoManalili was abusing her.

Then, the five accused left, after warning her not to report the incident to anybody, otherwise,

they would kill her, her parents and brothers. The complainant felt pains and aches all over herbody, especially in her breasts and vagina.2She rested for a while and when the pains hadsomewhat subsided, she went home. She did not report the incident to anybody for fear of what theaccused might do to her and her family. 3

After the incident, the complainant missed her menstruation when it became due and noticedthat her stomach was getting bigger. Nevertheless, she did not tell anybody. However, on 4

August 1978, her mother noticed her condition and asked her about it. She did not tell hermother at first, but, when her mother and brothers got angry, she told them that she had beenraped by the five accused. They asked her why she did not inform them earlier and she repliedthat she was afraid because the accused had threatened to kill her and her family if she shouldtell anyone of the incident. 4

Lorenza Lopez was brought to the Central Luzon General Hospital at San Fernando,Pampanga, after which a complaint was lodged with the police authorities. 5

On 10 October 1978, she gave birth prematurely to female twins, baptized Merlin and MariaLopez who both died after a few hours. 6

The appellant Mario Nunag admitted having sexual intercourse with the complainant. However,he denied the charge of rape. He also claimed that he had sexual intercourse with thecomplainant at a date different from that mentioned by the complainant. He declared that atabout 9:00 o'clock in the evening of 22 May 1978, while he was sleeping atop a wooden bed atthe backyard of their neighbor, Carmen Laxamana, he was awakened by the complainant whotouched his penis and embraced and kissed him. He felt lascivious and got the motorcycle of hiscousin and brought the complainant to a ricefield in barrio Sta. Rita, Minalin, Pampanga, andhad sexual intercourse with her. After the intercourse, the complainant asked him for somemoney and he gave her P4.00. Then he went home. 7

The accused-appellant Efren Salangsang also admitted having sexual intercourse with thecomplainant. He denied the charge of rape. He declared that while he was watching abasketball game on the TV set of Carmen Laxamana on 20 June 1978, the complainant cameto him and led him to the backyard of Carmen Laxamana where they had sexual intercourse. Healso stated that after the intercourse, the complainant asked for some money and he gave herthe amount of P2.50. 8

The accused-appellant Diosdado Manalili also admitted that he had sexual intercourse with thecomplainant, but not during the first or the second week of May 1978. He declared that he hadsexual intercourse with the complainant at about 9:00 o'clock in the evening of 30 June 1978.

According to him, he was in the store of one Tess Carpio when the complainant entered thestore and told him that she had something to tell him. She led him to the backyard of CarmenLaxamana and asked him to have sexual intercourse with her. But, he refused. However, thecomplainant took hold of his penis and he had to capitulate. 9


3/66

The accused-appellant, Danilo Carpio, upon the other hand, denied having sexual intercoursewith the complainant at any time, although sometime in October 1976, while he was watching atelevision program from outside the house of Carmen Laxamana, the complainant came to himand placed her hands inside the pocket of his pants and extracted therefrom some coinsamounting to P1.00. After getting the money, the complainant asked him to fondle her breast,which he did. 10

The accused-appellant Arnel Mandap also claimed that he did not have sexual intercourse withthe complainant at any time. He declared that while he had known the complainant for sometime, he was not close to her. However, in the evening of 20 June 1978, at about 8:00 o'clockwhile he was watching a television program through the window of the house of CarmenLaxamana, the complainant who was standing beside him, suddenly took hold of his penis andinvited him to the backyard of Carmen Laxamana. He agreed and when he rejoined thecomplainant, he found the complainant already lying down on the ground. He lifted her skirt andinserted his finger inside her vagina. He also fondled her breast. But, when he saw that herstomach was already quite big, he became afraid and left. As he was leaving, the complainantasked him for some money, but he had none to give her. On his way back to the place where hewas watching TV, he met Efren Salangsang going towards the backyard of Carmen

Laxamana. 11

However, the trial judge, Hon. Felipe B. Kalalo, found the accused guilty of the charge andsentenced them, as follows:

... accused Mario Nunag, Arnel Mandap and Efren Salangsang tosuffer RECLUSION PERPETUA, and upon the accused Danilo Carpio andDiosdado Manalili, who were both above sixteen and below eighteen years ofage at the time of the commission of the offense, the indeterminate penalty offrom TEN (10) YEARS ofprision mayor, as minimum, to SEVENTEEN ( 7)YEARS AND FOUR (4) MONTHS of reclusion temporal, as maximum, and for allthe accused to indemnify the victim Lorenza Lopez in the sum of Eighty

Thousand Pesos (P80,000.00) representing moral damages and TwentyThousand Pesos (P20,000.00) as exemplary damages, all to be paid jointly andseverally, without subsidiary imprisonment in case of insolvency; and, to pay thecosts.

Accused Mario Nunag, Efren Salangsang, Danilo Carpio and Diosdado Manalilishall be credited with the time they have been under preventive imprisonment inthe service of their sentence pursuant to existing law. 12

From this judgment, all the five (5) accused appealed to this Court. They assail the trial court forgiving credence to the testimony of the complainant, which they claim to be concocted andfraught with irreconciliable contradictions.

There is no merit in the appellants' appeal. We find no cogent reason for altering the trial court'sappreciation of the credibility of the testimony of the complainant. Thus, the variance betweenthe testimony of the complainant in court and her sworn statement, 13as to the exact date whenshe was raped, if this be so, does not materially affect her main claim that the five (5) appellants hadsexual intercourse with her, against her will.


4/66

Besides, it would appear that the complainant had no motive whatsoever to testify falselyagainst the appellants, some of whom were her very close neighbors, and impute to them thecommission of so grave a crime.

This Court has consistently held that the testimony of a rape victim as to who abused her iscredible where she has no motive to testify against the accused. 14

It further appears that the complainant is a poor barrio girl, then about 15 years and a half in agewhen she testified in court, who looked timid and inexperienced in the ways of the world. It is,therefore, quite improbable that she would fabricate matters and thereby undergo the travails ofa public trial exposing herself to humiliation and embarrassment by unraveling nasty mattersagainst her virginity by lodging against the appellants so grave and serious a charge, if nottrue. 15

Moreover, the complainant was straight-forward and consistent in her testimony and describedin detail the manner by which she was dragged by Mario Nunag from the place where she waswatching a television program outside the house of their neighbor and brought to a secludedplace where she was sexually abused by the five (5) appellants, one after another, without herconsent. She could not shout because Mario Nunag had placed something in her mouth andhad pointed a knife at her stomach. She could not also escape or run away from her attackersbecause the appellants held her arms and legs while one of them was abusing her. She couldnot have been mistaken in identifying the appellants because they are very well known to herand the moon was bright.

The appellants make capital of the failure of the complainant to immediately report the incidentto the authorities. But, this failure to report the incident to the authorities earlier had beensatisfactorily explained. The complainant declared that she was afraid to report the incidentbecause the accused-appellants, two of whom were her very close neighbors, had warned hernot to report the incident to anybody or else she and her family would be killed.

Finally, the accused-appellants contend that it was improbable for them to have raped thecomplainant in the second week of May 1978, as claimed by her, because she was found to beabout 6 to 7 months pregnant when she was examined by Dr. Teresita Santos on 3 August1978; and 7 to 8 months on the family way when Dr. Ricardo Naguit examined her on 4 October1978.

This contention is without merit. The findings of Drs. Teresita Santos and Ricardo Naguit cannotbe given due weight and credence because the said findings are based upon the suppositionthat the complainant was carrying only one child in her womb. Dr. Teresita Santos said:

Court:

Q In this particular case Dra. you stated that you were able todetermine the age of the fetus because of the abdominal size?

A Yes, Your Honor.

Q And in your determination you only based on the fact that thereis only one fetus inside?


5/66

A Yes, Your honor. 16

Dr. Ricardo Naguit declared that had he known that the complainant was carrying twins, hisfindings would have been different. His testimony reads as follows:

Q When you examined Lorenza Lopez on 4 October 1978 andfound that she was between 7 and 8 months pregnant, youassumed that there was only one fetus inside of the womb, is itnot?

A Yes, sir, I assumed there was only one fetus.

Q That is why you concluded, considering the size of theabdomen or gestation size of Lorenzo Lopez, it was between 7 to8 months?

Atty. Santos

He did not conclude but he presumed.

Court

Reform the question.

Fiscal Pangilinan

Q If a woman, like the case of Lorenza Lopez, when youexamined her on 4 October 1978 with that size of the womb orstomach of Lorenzo Lopez, if only you knew already that the fetus

inside her womb were twins, would your assumption that she wasbetween 7 and 8 months pregnant still be true?

A Well, if I knew really, but then it is really very hard to determinein that period the presence of double pregnancy. I think there isfifty percent error in determining the presence of doublepregnancy in woman pregnant for the first time.

Court

The Question of the Fiscal is supposing there are twins insideas in fact there were, would your findings be the same, that the

fetus of the woman is 7 to 8 months pregnant? This ishypothetical.

A The findings will no longer be the same, sir.

Q Why?


6/66

A Because there will be relative increase in the height of the fetusby affection.

Q If there are two?

A Yes, sir.

Q In what way?

A The presence of double pregnancy, it is but natural that therewill be relative increase in the size of the uterus because of thepresence of two babies there or the height of the fundus. 17

The Solicitor General recommends that each accused be found guilty of five (5) distinct andseparate crimes of rape, because each accused is responsible, not only for the act of rapecommitted personally or individually by him, but also for the act of rape committed by the others,all five (5) accused having conspired, confederated together and mutually helped one another. It

would appear, however, that there is no conclusive evidence that the accused-appellants DaniloCarpio and Efren Salangsang had sexual intercourse with the complainant, since thecomplainant said that she lost consciousness after the second man (Arnel Mandap) the firstbeing Mario Nunag had sexually abused her and she regained consciousness whileDiosdado Manalili was abusing her sexually, and that she merely asumed that Danilo Carpioand Efren Salangsang had also sexually abused her. Her testimony reads as follows:

Q You better remember your answer to the Court. After you wereabused by the second accused Arnel Mandap, you said you lostconsciousness and you regained consciousness when the fifthaccused Diosdado Manalili was sexually abusing you. Does theCourt understand that when Efren Salangsang and Danilo Carpio

were sexually abusing you, you did not yet regain yourconsciousness?

A Yes, Your Honor.

Court

Q In other words, you are not in a position to state whetheraccused Efren Salangsang and Danilo Carpio abused youbecause you stated you lost consciousness at that time. You evendo not know who succeeded Arnel Mandap?

A Because during all the time that they were having sexualintercourse with me, they were holding my feet and that two ofthem were holding my hands. I lost my consciousness after ArnelMandap had sexual intercourse with me and I know that EfrenSalangsang and Danilo Carpio had also sexual intercourse withme, sir.

Q How did you come to know that when you lost consciousnessBe sincere now with the Court. How did you come to know that


7/66

Danilo Carpio. and Efren Salangsang abused you when you saidyou lost consciousness?

A They had also sexual intercourse with me because they were inthe company of the three (3) accused, your Honor.

Q So your declaration before the Court that Danilo Carpio andEfren Salangsang abused you also was only your presumptionbecause they were in the company of the three (3) accused?

A Yes, your Honor. 18

Consequently, each of the five (5) accused-appellants must be found guilty of three (3) distinctand separate crimes of rape, the first three, namely, Mario Nunag, Arnel Mandap and DiosdadoManalili, by direct act and participation and the other two, namely Danilo Carpio and EfrenSalangsang, by indispensible cooperation

Accused-appellants Mario Nunag, Arnel Mandap and Efren Salangsang are each sentenced tosuffer three (3) penalties of reclusion perpetuawhile accused-appellants Diosdado Manalili andDanilo Carpio, both being above sixteen (16) years and below eighteen (18) years at the time ofthe commission of the offenses, are each sentenced to suffer three (3) indeterminate penaltiesof ten (10) years ofprision mayor, as minimum, and seventeen (17) years and four (4) monthsof reclusion temporal, as maximum.

WHEREFORE, except for the modification above indicated, the judgment appealed from isAFFIRMED in all other respects, with costs against the appellants.

SO ORDERED.

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

Sarmiento, J., is on leave.

Footnotes

1 T.s.n. of Jan. 17,1979, pp. 15-19; tsn of Feb. 5, 1979, pp. 13-15.

2 T.s.n. of January 17, 1979, pp. 20-38, tsn of February 26, 1979, pp. 34-36.

3 Id., pp. 38-41.

4 Id., pp. 42-46.

5 Id., pp. 47-48.

6 Id., pp. 48-52; also Exhs. A and A-1.


8/66

7 T.s.n. of June 6, 1979, pp. 12-20.

8 T.s.n. of June 11, 1979, pp. 18-19.

9 T.s.n. of June 13, 1979, pp. 7-12.

10 T.s.n. of July 3, 1979, pp. 17-21.

11 T.s.n. of Sept. 20, 1979, pp. 34-44.

12 Original Record, pp, 141-142.

13 Exhibit 4.

14 People vs. Lopez, G.R. No. L-47299, Feb. 19, 1986, 141 SC 385, 390.

15 People vs. Daing, G.R. No. L-40574, Nov. 29, 1984, 133 SC 448, 459.

16 T.s.n. of March 14, 1979, pp. 17-18.

17 T.s.n. of August 1, 1979, pp. 38-40.

18 T.s.n. of Feb. 26, 1979, pp. 34-36.


9/66

G.R. No. L-20911 October 30, 1967

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.SULPICIO DE LA CERNA, ET AL.,defendants.SULPICIO DE LA CERNA, SERAPIO MAQUILING, TEODORO LIBUMFACIL, GODOFREDO

ROTOR, SEVERINO MATCHOCA, and ANTONIO BAUTISTA,defendants-appellants.

Godofredo Galindez for defendants-appellants.Office of the Solicitor General for plaintiff-appellee.

BENGZON, J.P., J .:

Sixteen persons, among them herein appellants, were indicted by the provincial fiscal in theCourt of First Instance of Cotabato for double murder for the fatal shooting of Rafael andCasiano Cabizares,1father and son, in Barrio Cebuano, municipality of Tupi, province ofCotabato, on February 3, 1958. All pleaded not guilty.

In the course of the trial, after the prosecution had rested the People's case, the accused filed amotion to dismiss on the ground, inter alia, that the fiscal, after conducting his own preliminaryinvestigation, included in the charge the other accused who were already dropped therefrom bythe Municipal Court. The trial court denied said motion but acquitted accused Gaspar Bautista,

Agapito Avellana, Cesar Abapo and Eriberto Matchoca for insufficiency of evidence againstthem.

The defense then presented its evidence. While at this stage, accused Segundo de la Cernadied and the charge against him was dropped.

After trial, the lower court, on January 3, 1962 promulgated its decision. Acquitted were

Guillermo Esperanza, Concordio Pardillo, Deogracias Pardillo, Andres Abapo and JoaquinLibumfacil.

Convicted for the murder of Rafael Cabizares were Sulpicio de la Cerna and Serapio Maquiling,asprincipals, and Godofredo Rotor, Antonio Bautista, Severino Matchoca and TeodoroLibumfacil, as accomplices.

For the murder of Casiano Cabizares, the court convicted Sulpicio de la Cerna and SerapioMaquiling asprincipals, and Ramon Alquizar as accessory.

A motion to reconsider by the convicted accused failed to move the lower court. So the saidaccused followed up with their notice of appeal. Two days later accused Ramon Alquizar was

allowed to withdraw his intended appeal. And during the pendency of the appeal in this Court,accused Serapio Maquiling moved to withdraw his appeal also, and this was granted on August8, 1967.

The present appeal, therefore, involves only Sulpicio de la Cerna as principalfor the killing ofboth Rafael and Casiano Cabizares; and Teodoro Libumfacil, Godofredo Rotor, SeverinoMatchoca and Antonio Bautista asaccomplicesfor the killing of Rafael Cabizares.


10/66

The first question is procedural. It appears that when the municipal court finished with thepreliminary investigation, it opined that only appellant Sulpicio de la Cerna was guilty while therest of the accused were not. The fiscal, however, without seeking a review of the findings of thecourt, conducted his own investigation and, afterwards, indicted all the accused. It is contendedthat this was serious error. The objection, however, was raised only after the prosecution hadalready rested its case. Hence, whatever procedural defect there was, had been waived by the

appellants by their failure to raise it before entering their pleas.2

Appellants next assail the lower court for relying on the prosecution witnesses who gave, insubstance, the following narration of facts and circumstances:

Early in the morning of February 3, 1958, Rafael Cabizares, accompanied by his wife, Hospicia,his brothers Margarito and Romualdo, and his sons Gumercindo, Marcelo, Casiano, Juan andLamberto, left Barrio Cebuano headed for the poblacion of Tupi, Cotabato, bringing five sacks ofcorn loaded on a bull cart to be milled in Tupi. Juan, Marcelo and Lamberto, who were allminors, were then going to school. Upon approaching a hilly part, they had to stop since thecarabao could not pull the bull cart uphill. Rafael then requested his two brothers and his sonGumercindo to accompany him up the hill and carry on their backs the sacks of corn. With

Rafael leading, the four proceeded uphill.

As the four approached Sulpicio de la Cerna's house on top of the hill and were about to putdown the sacks of corn, appellant Sulpicio, who was in the house, fired at and hit Rafael, whofell down. Sulpicio then ordered his companions to burn his house so that they would have anexcuse. Meanwhile, Casiano, Gumercindo, Marcelo and Romualdo brought the wounded RafaelCabizares to the house of the latter's father, Demetrio, 100 meters away. Felisa Bastismo,Rafael's mother, Ursula Cabizares and Segundino Cabizares were there at the time.

After the group reached the house, Rafael's wounds were washed with hot water and then hewas brought inside the third room of the house. Subsequently, appellant Sulpicio and the otheraccused arrived at the premises, armed with firearms, bolos and canes. They stoned the houseand trust their bolos thru the bamboo walls and flooring. Finding that there were women insidethe house, the accused ordered them to get out or else they would be killed also. As FelisaBastismo and Ursula Cabizares alighted from the besieged house, Marcelo Cabizares followedthem, and although held by accused Conrado Pardillo and boxed by Serapio Maquiling, he wasable to escape to the nearby forest.

Serapio Maquiling then climbed up the window of the kitchen, and with the carbine which he gotfrom appellant Sulpicio de la Cerna, shot at Rafael Cabizares who was sitting in the third room.

At this moment, Casiano Cabizares jumped down from the house thru the kitchen door and ranaway. Serapio Maquiling followed him and shot the latter at the back, killing him a few metersaway from Demetrio's house. Appellant Sulpicio de la Cerna then got back the carbine, climbedup the house and fired once more at Rafael, who was now lying down on the floor, killing himfinally. Thereafter, the cadaver of Casiano Cabizares was tied to a bamboo pole, carried byaccused Ramon Alquizar and one Wilfredo Malias (at large) and placed near the burned houseof Sulpicio de la Cerna, as some of the accused followed while the rest proceeded to Rafael'shouse.

The post mortem examination3conducted that very same day showed that Casiano Cabizaresdied from a gunshot wound, the bullet entering the back and passing out in front, while RafaelCabizares sustained three gunshot wounds of entrance, one gunshot exit wound, and one stab


11/66

wound. Dr. Bienvenido Garcia, the Municipal Health Officer, explained that the bullet whichcaused the first wound located in front, at the left lower abdomen, did not go thru at the back butsplit into two parts after entering the body. However, these two parts were already palpable onthe left buttock of the decedent from which they were extracted. The bullet which caused thesecond wound located directly at the back lodged in the 11th thoracic vertebra. The third bulletentered near the left breast and went out at the right lumbar region.

The prosecution also presented proof that prior to the incident, a land dispute arose betweenRafael and some of the accused,4and that he had filed complaints5with the Agrarian Courtagainst the latter, the trial of which cases was scheduled on February 10, 1958.

Appellants would have this Court believe that they are innocent. The four appellants convictedas accomplices insist they were never at the vicinity of the killing. On the other hand, appellantSulpicio de la Cerna claims that both Rafael and Casiano were killed in self-defense.

Sulpicio's version of what transpired is this:

In the morning of February 3, 1958, Guillermo Esperanza and Sulpicio de la Cerna had justroasted corn in the latter's house when Rafael, Casiano, and others, all armed with bolos andcanes, arrived. Rafael demanded of Sulpicio to come down for a confrontation. The latter'srefusal to do so angered Rafael who threw his cane at Sulpicio and ordered his companions tosurround the house, thrust their bolos thru it and burn it. Because the house was on fire, andfearing that he would be killed, Sulpicio alerted Guillermo Esperanza got his carbine and firedindiscriminately at his attackers to drive them away. When Rafael and Casiano were hit, theircompanions fled. Guillermo Esperanza and Sulpicio then got down from the burning house andleft, passing by the prostrate bodies of the decedents. Sulpicio proceeded to the house of onePedro Esperanza to drink water and while there, he saw a jeep coming loaded with policemento whom be surrendered himself and his carbine. Expectedly Guillermo Esperanza gave thesame version as above-narrated.

Said appellant's version cannot be accepted. The autopsy reports contradict Sulpicio's claimthat he shot the decedentsfrontally while he was up in his house. For both deceased eachsustained a gunshot wounddirectly at the back. Moreover Casiano's wound of entry locatedalong the 12th rib is lower than the wound of exit located along the 6th rib6showing thatthe bullet flight path was upwards, not downwards. A gun fired from the elevated flooring 7of ahouse like Sulpicio's, and aimed downwards, could not have caused such wounds. Lastly,Rafael's cadaver bore a stab wound on the left side. Appellant's version could not account forthis.

While on the one hand nothing was found around the burned house of appellant Sulpicio de laCerna, such as the alleged cane thrown by Rafael, nor any other weapon or stones which may

indicate agression or violence, on the other, bloodstains were found inside Demetrio Cabizares'house8and also on the ground at the spot where, according to the prosecution, 9Casiano fellwhen shot by Serapio Maquiling. An empty carbine shell (Exh. I) was also found by Dr. Garcia inthe kitchen. In this regard, his testimony is not hearsay, as appellant contends, for although Dr.Garcia did not personally pick it up, he saw the empty shell taken from the floor and handedover to his companions before finally reaching him.10While Casiano's body was found nearSulpicio's burned' house, even appellant's own witness11admitted having found Rafael's bodyinside Demetrio's house right after the incidents occurred. Appellant's supposition that Rafael's


12/66

companions must have returned and carried away his body can hardly be accepted since thereis no reason why they would not also bring back Casiano's body.

Moreover, we find it hard to believe that Sulpicio, after felling the decedents and dispersing thelatter's companions would still leave his house when it was not yet totally burned, as he himselfadmitted. The natural thing for him to have done were it true that it was decedents who set

fire to it was to put down the fire and save his house. Anyway his life was no longer indanger.

Lastly, Sulpicio has more reason to resent and kill Rafael than the latter would have as to him.The source of the possible motive is the same: land trouble between Rafael Cabizares andSulpicio's father, and the ejectment suit instituted before the Agrarian Court against the latter bythe former. Considering that Rafael was the prevailing party in the land dispute before theNARRA, it is quite hard to believe that he would be the one entertaining a grudge against thoseover whom he had prevailed. Rather, it was the accused, who were defeated and who were nowfacing an ejectment suit which was set for hearing, that harbored resentment against thedeceased.

Furthermore, all the foregoing considerations fit well into the prosecution's version. We havegone over the testimonies of the prosecution witnesses and found them credible. That most ofthem are related to the victim does not necessarily impair their credibility.12Appellants howeverinvite our attention to inconsistencies and improbabilities allegedly abounding in theirtestimonies. We shall consider each witness and their testimonies separately.

1. Romualdo CabizaresHe was with his brother Rafael when the latter was shot nearSulpicio's house and was among those who brought Rafael to their father's (Demetrio) house100 meters away. He did not go up the house since he had to go back and evacuate his familyto a forest 400 meters away. Having done so, he went back and saw the incidents aroundDemetrio's house from a place covered with corn plants just 25 meters away.

Appellants point out that his statements on the whereabouts of Conrado Pardillo wereinconsistent, leading the lower court to disbelieve him and acquit Pardillo. We find noinconsistency since Pardillo's going to Rafael's house with the other accused was after theevents in Demetrio's premises had taken place.13The lower court acquitted Pardillo not becauseit disbelieved Romualdo but rather, taking his testimony as true, the court held that the factsproved were insufficient to tack criminal liability on Pardillo. 14

This witness was able to observe the events around Demetrio's house. Even if the corn plantswhere he hid were sparse, because of the 25-meter distance from the accused whoseattentions were focused on Demetrio's house, and considering that he was in a hiddenplace15while the accused were in the open field, Romualdo could see them without their

noticing him. It is true that the forest where Romualdo took his family was 400 meters away, butthe accused took some time before they followed to Demetrio's house and Romualdo ranback after hiding his family.16

2. Margarito CabizaresHe was beside his brother Rafael at the hill top when the latter wasshot by Sulpicio. When he tried to hide near some banana clumps, Guillermo Esperanzastabbed him, hitting him near the left shoulder and causing him to fall unconscious. Shortly laterwhen he recovered consciousness, he followed Rafael who was being brought to Demetrio's


13/66

house but he was told by Rafael to save himself so he went to a forest 400 meters away wherehe saw the goings-on around Demetrio's house.

Appellants state that nothing much can be gathered from his testimony. However, they overlookthe obvious fact that Margarito was an eyewitness to the shooting of Rafael near Sulpicio'shouse. Although he lost consciousness after being stabbed, it was momentary only, the wound

not being very serious.17It was not impossible for him to have observed activities aroundDemetrio's house at a distance of 400 meters. Witness Bonifacio Barro corroborates him on thispoint.18Lastly, he need not be a ballistics expert to recognize gunshot bursts.

3. Gumercindo CabizaresHe was with his father Rafael at the hill top. He warned his fatherjust before Sulpicio fired the carbine. After Rafael was hit, he helped carry him to Demetrio'shouse but did not stay there since he was told by Rafael to go to Dadiangas to call the P.C.

Appellants claim that his testimony regarding a conversation with Juan Cabizares on the waydownhill is contradicted by Juan himself who stated that he was not with those who broughtRafael to Demetrio's house. We fail to see any contradiction. Juan did not denyhavingconversed with Gumercindo. And what the latter said was that after meeting Juan, they wentahead and Juan probably followed behind.19We do not think it is stupidity for a son to warn hisfather of imminent danger as Gumercindo did and to come to the latter's aid despitedanger. We prefer to consider such behavior as "courage under fire."

4. Marcelo CabizaresHe was near the bullcart downhill and when he heard gun shots, hewent uphill. There he helped carry his father Rafael to his grandfather Demetrio's house. Afterthe accused arrived in the latter's house, the women were ordered to get out. He followedUrsula Cabizares and Felisa Bastismo on the way down but he was held by Pardillo and boxedby Serapio Maquiling. Still, he was able to escape.

Appellants point out to two statements of his, one wherein he was able to identify all theaccused and the other, wherein he was able to name only four of them, alleging materialinconsistency. The statements however referred to different situations. The first was when allthe accused arrived at Demetrio's place, and the second statement refers to those whomMarcelo Cabizares saw when he came down from the house.20He was able to run away afterSerapio Maquiling boxed him because he was freed from the hold of Pardillo and Serapio.21Onredirect, he clarified that he left Demetrio's house in the morning. 22

5. Juan CabizaresHe also stayed with the bullcart downhill and when he heard gun shots, hewent uphill and saw his father wounded. He then followed behind the group carrying Rafael toDemetrio's house and while inside the house, saw the killing of Rafael and Casiano.

Juan did not lie when he said his father was shot by Sulpicio for altho he did not see the actual

shooting, he had good reasons to conclude that Sulpicio fired the shot since he saw the latter,shortly after the shooting, holding the carbine which was still pointed at Rafael. 23Anyway, histestimony on the point is merely corroborative of the others who were eyewitnesses. He wasable to identify Serapio Maquiling as the one who first shot his father in Demetrio's housealthough Serapio was behind the bamboo partition, since there were openings in it enabling oneto see thru and he peeped thru it.24The measurements in the third room (3 m x 4 m) arecompatible with Juan's statement that Sulpicio was 1-1/2 m away from Rafael when the thirdshot was fired since Sulpicio did not go inside the room but fired from the window


14/66

outside.25Juan was competent to testify on what occurred outside the house since he was alsopeeping thru the slits in the bamboo walls.26

6. Felisa BastismoShe was the mother of Rafael Cabizares. She was with Ursula Cabizaresand Segundino Cabizares inside Demetrio's house when the wounded Rafael was brought in.

After Rafael's wounds were washed, Felisa went down from the house with Ursula, as ordered

by the accused. And in the corn fields nearby, she witnessed the killing of Casiano.

Appellants make much of Felisa's testimony referring to Rafael's "wounds" when he wasbrought in the house, and argue that Rafael had been shot at least twice already. But Felisa didnot examine the wound of Rafael. Neither did she state how many wounds he had. Thesubstance of her testimony is only that Rafael was woundedwhen he arrived. As to theimpossibility for the stones to go thru the broken window shutter (Exh. K), Felisa admitted thatshe merely heard the sound when they fell on the floor. 27Surely, appellant cannot seriouslycontend that one has to see stones going thru the house to know that it is being stoned.

Anyway, it is not impossible for a large stone hurled against a bamboo shutter to cause a holetherein measuring 14" x 1 ." And assuming that such hole appears more to have been cut by abolo and forced open, Felisa testified that the accused also thrust their bolos thru the walls. 28

It is not impossible for Felisa to have seen Casiano's shooting for she lay flat on theground afterhaving witnessed it already.29She also explained why she was alone in the cornfields although she left the house together with Ursula. Being 76 years old, she was slower thanUrsula, and she stumbled while fleeing so she was able to reach up to the corn fields only.30Asto Juan's arrival, the testimonies of the other witnesses are uniform that the group carryingRafael arrived in Demetrio's house first and Juan, who followed behind, arrivedafterwards.31Juan corroborates Felisa that he helped carry Rafael to the third room.32Marceloprobably noticed Juan only after Rafael had been brought to the third room, leading him to saythat Juan arrived after Rafael was brought there.33

7. Ursula and Segundino CabizaresBoth were in Demetrio's house with Felisa Bastismo.They saw the arrival of the accused and the stoning and thrusting of bolos thru the wallings.One of the bolos wounded Segundino Cabizares on the left thigh. Ursula Cabizares hid in apalay container but when they were ordered to get out, she and Felisa Bastismo left andreturned later in the afternoon.

While Ursula was evidently mistaken when she said that Margarito was also in the house, theerror is immaterial. Contrary to appellants' contention, she saw Serapio Maquiling on her waydown the house.34As to whether the other accused besides appellant Antonio Bautista werearmed with bolos, she stated she did not know since she only saw the bolo tips penetrating thruthe wallings.35Her positive statement that She saw appellant Godofredo Rotor36prevails, ofcourse, over the negative testimony of Maximo Caa.

Appellants argue that since Segundino Cabizares was fearful, he could not have been movinginside the besieged house of Demetrio, peeping every now and then thru the openings in thewalls and observing the accused. They seem to forget however that different people reactdifferently even when apprehensive. Thus, Segundino's restlessness inside the house is neitherunnatural or ridiculous to believe.


15/66

8. Bonifacio BarroHe was with Fiscal Daproza and Sgt. Paladin inside Demetrio's house afew days after February 3, 1958 and upon orders of the Fiscal, he took out part of the flooring(Exh. K), the bamboo slatch (Exhs. L and L-1) and the stones (Exhs. M, M-1 and M-2).

His statement that Exhs. M, M-1 and M-2 were someof the stones Fiscal Daproza found on theroof of Demetrio's house corroborates the other prosecution witnesses who testified that the

accused stoned the house. He also stated that there were other stones inside the house,corroborating Romualdo Cabizares.37

9. Dr. Bienvenido GarciaAs municipal health officer, he performed the autopsy on Rafaeland Casiano Cabizares on February 3, 1958. He found Casiano's body near the burned houseof Sulpicio de la Cerna, and Rafael's, inside Demetrio's house. In the latter house, he also sawa bullet hole on the floor (Exh. J-1) and a carbine shell (Exh. 1).

Appellants would cavil on Dr. Garcia's statement that he saw Exh. J (part of the flooring) only incourt. What he said however was that he saw it as cut already from the floor only in court.38Hisstatements as to the room dimensions (3-4 m x 4-5 m) and the distance of Rafael's body to thepartition (1 m or 2 ft.) areapproximationsonly and not exact measurements.39A difference of afew insignificant meters is to be expected. Lastly, his statements that the bullet hole (Exhibit J-1)was on the floor coincides with Barro's testimony that Exh. J was cut from the flooring. 40

From all the foregoing, it is apparent that the so-charged inconsistencies and improbabilities inthe testimonies are without substantial and significant basis. Hence, the lower court's findingsshould stand, especially since they involve an appreciation of the evidence and credibility of thewitnesses.

We now proceed to the criminal liability of the appellants.

The killing of Rafael Cabizares was attended by treachery. Appellant Sulpicio contends that the

first shot, fired by him, was not attended with treachery since there is evidence that Rafael waswarned by his son Gumercindo just before he was hit in the lower abdomen.41However, evenassuming the argument to be tenable, the second shot, by Serapio Maquiling, was definitelytreacherously fired since Rafael was then in the third room of Demetrio's house, wounded anddefenseless. The treachery here has to be independently considered due to the sufficient lapseof time42from the first shot, in which the following events intervened: (1) the bringing of Rafael toDemetrio's house 100 meters away after being hit; (2) the washing of his wounds and his beingbrought to the third room to rest; (3) the arrival of the accused and their ordering the two womento get out. It was only after the women left that Serapio climbed up the kitchen and fired thesecond shot at Rafael.

Appellant Sulpicio is chargeable for the treacherous shooting of Rafael by Serapio Maquiling

since both were acting as co-conspirators pursuant to their understanding in the meeting heldthe day before in Andres Abapo's house, as will be shown presently. Anyway, the third shot,fired by Sulpicio, was treacherously done. Rafael was then flat on the floor and although stillalive, was completely defenseless, having been shot twice already. The portion of Dr. Garcia'stestimony43cited by appellants shows that Rafael died afterthe third shot hit him

Q. After wound No. 1 was inflicted, is it possible that Rafael Cabizares was stillalive?


16/66

A. Rafael Cabizares was still alive.

Q. After inflicting wound No. 2, is it possible that Rafael Cabizares was still alive?

A. He was still alive.

Q. When wound No. 3 was inflicted, was he still alive by your conclusion?

A. He was dead.

Q. What makes you conclude that he was already dead when wound No. 3 wasinflicted?

A. Because wound No. 3 is mortal.

thus corroborating Juan Cabizares' testimony that his father was still alive after the second shotwounded him.

Evident premeditation was also present in this case. The previous plan to kill Rafael Cabizareswas testified to by witness Maximo Caa who was present in the meeting of February 2, 1958,in the house of Andres Abapo. Of the many persons present, he recognized only appellantsSulpicio de la Cerna, Antonio Bautista, Severino Matchoca and Serapio Maquiling. Bautista toldthe group that the purpose of the meeting was to plan the killing of Rafael Cabizares. Then bothhe and Serapio Maquiling signified their willingness to execute it. Appellant Sulpicio also offeredto do it provided his family would be taken care of. To this offer, Bautista and Maquiling repliedthat they would take care of Sulpicio's family. Caa testified further that none of those attendingvoiced out any objection but all agreed to the plan. Caa was also present in the early morningof February 3, 1958, when Matchoca, accompanied by Bautista, gave the magazine of bullets toGodofredo Rotor. He was likewise with the accused when Rafael was shot at the hill top, and

when he (Rafael) and Casiano were killed in Demetrio's place.

However, one year and ten months after he had testified for the prosecution, witness Caa waspresented as a defense witness. As such, he completely retracted on his previous testimony,explaining that all what he had stated was false since he was not in Tupi on February 2 and 3,1958. Gaudencio Esperanza, presented to corroborate him, testified that in August, 1958,Hospicia Cabizares, widow of Rafael, went to the former's house where Caa was staying, andgave the latter P50.00 to testify falsely for the prosecution. On rebuttal, Hospicia Cabizaresdenied this.44

We have thus two sets of testimonies by Caa completely at variance with each other. Now therule is that mere retraction by a prosecution witness does not necessarily vitiate the original

testimony otherwise credible.45

The proper thing for the trial court to do is to weigh and compareboth testimonies. Here, the lower court, after having done so, accepted Caa's testimony for theprosecution. In this, it did not err.

Firstly, the original testimony ispositive and replete with details, and Caawithstood a long andthorough cross-examination which could not have been so, if the story were merely fabricated.Secondly, Caa's narration of the shooting incident was fully corroborated by the otherprosecution witnesses. Lastly, the charged inconsistencies and improbabilities therein are tooinsignificant to affect the substance thereof.


17/66

On the other hand, in his subsequent testimony,46Caa was evasive and most of his answerswere: I don't remember" or "I don't know". His statement that he was in Marbel on February 2and 3, 1958 is not only uncorroborated but even contradicted by two prosecution witnesses whosaw him with the accused on February 3, 1958.47Caa was also in sincere, claiming that hisconscience bothered him greatly but he admitted that he could not sleep only in themornings48and notwithstanding the serious predicament he was in because of the

inconsistent statements made in open court he was even smiling.49Moreover, according toGaudencio Esperanza, who is the father-in-law of Serapio Maquiling, Caa was onlyconstrained to testify falsely when he was bribed by Rafael's widow, Hospicia Cabizares,sometime in August, 1958. This pretense can not be believed since a month prior to that, or onJuly 28, 1958, Caa had already executed an affidavit (Exh. V) incriminating the appellants. Italso appears highly improbable for Rafael's widow to go to the house of a relative of theaccused and in his presence openly bribe Caa, a resident therein. Lastly, it is hard to believethat although Gaudencio Esperanza knew of this incident, he told the defense counsel about itonly after Caa had already testified for the defense and had been incarcerated to face acharge of perjury.50The impulse of a man similarly situated would have been to relate suchmatter at once to his accused relatives. Gaudencio's failure to do so makes of his story aworthless fabrication.

There being a previous direct conspiracy one day before the killing, evident premeditation isduly established.51This qualifying circumstance is further buttressed by the following actuationsof appellant on February 3, 1958: (1) Upon seeing Rafael near his house, Sulpicio told hiscompanions to get readysince the one they were awaitingwas there already. And then he shotat Rafael. (2) As Rafael was being brought to Demetrio's house, Sulpicio ordered hiscompanions to burn his house so they would have an excuse already. (3) With the otherappellants, he pursued the wounded Rafael to Demetrio's house where after they had stonedthe same and thrust their bolos thru its wallings, they ordered the women folk to leave lest theybe killed also; and (4) after Serapio had already shot at Rafael, Sulpicio still fired a third shot,finally killing Rafael. All these still overtly show appellant's determination to end Rafael's life.The killing, therefore, was properly qualify as murder.

However, appellant Sulpicio cannot be held liable for the killing of Casiano Cabizaresnotwithstanding a conspiracy between him and Serapio Maquiling. The conspiracy was to killRafael only and no one else. Nothing was said or agreed upon about the members of Rafael'sfamily. In fact, in executing their plan appellants let the two women inside Demetrio's houseleave unhurt and they did no harm to the remaining companions of Rafael in the house. Theirtarget was solely Rafael Cabizares. And the rule has always been that co-conspirators are liableonly for acts donepursuant to the conspiracy. For other acts done outside the contemplation ofthe co-conspirators or which are not the necessary and logical consequence of the intendedcrime, only the actual perpetrators are liable.52Here, only Serapio killed Casiano Cabizares. Thelatter not even going to the aid of his father Rafael but was fleeing away when shot.

Although Serapio got the carbine from Sulpicio, the latter cannot be considered a principal byindispensable cooperation or an accomplice. There is no evidence at all that Sulpicio was awareSerapio would use the rifle to kill Casiano. Presumably, he gave the carbine to Serapio for himto shoot Rafael only as per their agreement. Neither is there concrete proof that Sulpicio abettedthe shooting of Casiano. Sulpicio might have been liable if after the shooting of Rafael, Serapioreturned the carbine to him but upon seeing Casiano fleeing, immediately asked again for thecarbine and Sulpicio voluntarily gave it to him. Serapio's criminal intention then would bereasonably apparent to Sulpicio and the latter's giving back of the rifle would constitute his


18/66

assent thereto. But such was not the case. Sulpicio, therefore, must be acquitted for the killingof Casiano Cabizares.

Appellants Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro Libumfacil allput up alibias their defense. This the trial court rejected but it held them liable as accomplicesonly, finding reasonable doubt on their guilt as co-principals. Appellants would again advance

their respective alibishere.

Appellant Rotor claims that at dawn on February 3, 1957, he went aloneto the spring in BarrioCebuano to fetch water and after staying awhile there, started back home. On the way back, hismother met him and told him not to go home because of an incident (the killing of thedecedents) so he went instead to Simeon Navajas' house and stayed there until February 18,1958.

The prosecution, however, proved that in the early morning of February 3, 1958, Rotor was withMaximo Caa fetching water in the spring. On their way home, they met appellants Bautista andMatchoca. The latter gave Rotor a carbine magazine with bullets, saying: "Here is the magazineof the bullets and give it to Sulpicio de la Cerna." And appellant Bautista said: "Please hurry.Give it to Sulpicio de la Cerna because we will follow later on." Shortly afterwards, Caa wentwith him to Sulpicio's house where he gave the magazine to Sulpicio, saying: "Here are somebullets supposed to be given to you."53

Rotor was seen outside downstairs of Sulpicio's house later that morning by Margarito andGumercindo Cabizares. After Sulpicio had fired at Rafael, Rotor got the pistol from appellantLibumfacil and fired also at Rafael.54This appellant was also seen by Romualdo, Ursula andSegundino Cabizares as among those who arrived at Demetrio's house.55When UrsulaCabizares alighted from the house, she saw Rotor outside holding a pistol which he gave toLibumfacil commenting that it was stuck.56After the killing of the decedents, RomualdoCabizares saw him with the group following the cadaver of Casiano Cabizares which was beingbrought near Sulpicio's burned house.57

In the face of the overwhelming positive identification of six prosecution witnesses, Rotorsuncorroborated alibi must fail. Although he was not present or did not participate in the meetingof February 2, 1968, his presence in the situs of the shootings on February 3, 1958 was notmerely passive. His active participation shooting at Rafael and carrying a pistol which hasa direct connection with the criminal design against Rafael Cabizares makes him a principal byindirect conspiracy, not an accomplice only. Motive is not wanting. Rotor admitted that his wifeis the sister of Sulpicio's wife58and the evidence shows that his father had a land dispute withRafael Cabizares and was a respondent in the case before the Agrarian Court.59

Appellant Bautista claims that on February 2, 1958, he left Barrio Cebuano for Tupi (5 kms.

away) to get a truck to load his corn. That afternoon, he returned to Cebuano where they loadedcorn but he could not return to Tupi as the truck would not start, so he slept at home. Early thenext day, February 3, 1958, they pushed the truck to start it. Later, appellant Matchoca arrivedand helped them. He also rode in the truck but upon reaching an uphill road, it stopped again.They were able to recharge its batteries from a tractor that happened to pass by. Theycontinued the trip and finally arrived in the poblacion of Tupi at about 8:00 A.M. Several monthslater, while he was at Sergio Rotor's house, his child told him that a P.C. soldier was waiting athome, so instead of going home, he had a conference with Andres Abapo, Ramon Alquizar,


19/66

Roberto Matchoca (son of Severino) and Agapito Avellana. They all decided to proceed to Tupiand surrender to the Mayor.

Appellant Matchoca related the same incident told by Bautista regarding the trip to Tupi. Hethen claimed to have returned to Barrio Cebuano about noontime and there learned of theincident. The next day, he evacuated his family to avoid trouble.

The prosecution, however, has established that these two appellants were in the meeting heldin Abapo's house on February 2, 1958. They openly participated therein. Their meeting withappellant Rotor early the following morning has also been established thru the testimony ofMaximo Caa.

These two were also seen outside Sulpicio's house. Bautista was carrying a bolo and a caneand was heard shouting at Rafael thus: "Rafael, you cannot reach the trial because we will killyou."60Gumercindo Cabizares also heard Matchoca shouting: "Go ahead, shoot. We will kill himso that he will not reach the day of the hearing." 61

Bautista and Matchoca were among those who went to Demetrio's house.62The former thrusthis bolo thru the bamboo wallings hitting Segundino Cabizares. 63When Ursula Cabizares camedown from the house, she saw Bautista holding a bolo.64Romualdo, on the other hand, claimedhaving seen him holding a firearm.65After the killings had taken place, Bautista went with thegroup that proceeded back to Sulpicio's burned house whereas Matchoca marched with theother group headed for Rafael's house.66

The positive identification of the several prosecution witnesses must prevail over the alibisproferred by these appellants. Their presence and active participation in the meeting in Abapo'shouse make them actual conspirators in the killing of Rafael. They were also present andzealously participating in the execution of their criminal design, giving a carbine magazine andinstructions to appellant Rotor, threatening Rafael and giving encouragement to Sulpicio toshoot at the latter. They were among those who laid siege to Demetrio's house and left togetherwith the others after finally accomplishing their criminal deeds as agreed upon. AppellantsBautista and Matchoca are therefore also liable as co-principals in Rafael's murder. Regardingmotive, it was proved that both were among those involved in the land conflict with RafaelCabizares and were among the respondents in the case before the Agrarian Court.

Appellant Libumfacil's story is that in the morning of February 3, 1958 he was in the Menzi Areaabout 6 kilometers from Barrio Cebuano. That afternoon, he returned to the poblacion of Tupi.To corroborate him, Lauro Esconde stated that he saw Libumfacil that day working on thelatter's farm lot in the Menzi area.

However, Maximo Caa saw appellant Libumfacil outside Sulpicio's house when the former

arrived there with appellant Rotor in the morning of February 3, 1958. Libumfacil had a pistolwhich he also fired at Rafael.67Gumercindo Cabizares also saw him holding a pistol which hegave to Rotor who then took a shot at Rafael.68

Appellant Libumfacil was seen by Caa again among those who went with the other accuseddownhill from Sulpicio's house to Demetrio's house.69The other prosecution witnesses saw himalso around Demetrio's house, armed with a pistol.70He was among those who stoned thehouse.71When Ursula Cabizares alighted therefrom, she saw appellant Libumfacil outside,conversing with Rotor and receiving from the latter a pistol which had gotten stuck. After the


20/66

incidents in Demetrio's house, Libumfacil went with appellants Rotor and Bautista to Sulpicio'sburned house.72

Libumfacil's alibi, though corroborated, cannot overcome the positive identification of the eightprosecution witnesses who saw him. Although he was not present in Abapo's house onFebruary 2, 1958, he was present at Sulpicio's house and in the premises of Demetrio's house

with the other accused and appellants. He was armed, had fired atRafael also, and tookpart inthe stoning of Demetrio's house where Rafael was brought. His actuations manifest that he wasaware of the criminal design of the original conspirators that he approved of it and carried it out,thus showing that his presence at the scene of the crime was not merely passive.Consequently, he is a co-principal in Rafael's murder. And motive is not wanting. It wasestablished that his mother had a land conflict with Rafael73and that his step-father DiosdadoEsperanza was one of the respondents in the case before the Agrarian Court.

We find therefore all five appellants guilty as co-principals in the murder of Rafael Cabizares.

The aggravating circumstance of treachery, applicable against appellant Sulpicio de la Cernaonly, is offset by his voluntary surrender after the incident. This mitigating circumstance howevercan not benefit the remaining appellants who did not voluntarily surrender. For all theappellants, therefore, the penalty for Rafael Cabizares' murder must be imposed in the mediumperiod. For the killing of Casiano Cabizares, appellant Sulpicio de la Cerna must be acquitted.

WHEREFORE, the judgment appealed from is modified as follows:

(a) Appellants Sulpicio de la Cerna, Godofredo Rotor, Antonio Bautista, SeverinoMatchoca and Teodoro Libumfacil are hereby found guilty as principals for the murder ofRafael Cabizares and sentenced to each suffer reclusion perpetua, to indemnify, jointlyand severally, the heirs of Rafael Cabizares the sum of P6,000.00 and to pay the costs;

(b) Appellant Sulpicio de la Cerna is hereby acquitted for the murder of CasianoCabizares.

So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles andFernando, JJ.,concur.

Footnotes

1Originally, there were two informations but upon motion of the accused, they wereconsolidated and jointly tried in the same proceedings.

2Sec. 10, Rule 113, now Rule 117, Rules of Court; Oca v. Jimenez, L-17777, June 29,1962.

3Exhs. A-B and E-F.


21/66

4See Exh. T.

5Exhs. N-1, N-2 and O.

6Exh. B.

7The flooring was about 5 ft. high from the ground (t.s.n. Millares 842.).

8T.s.n. (Ibero) p. 960.

9T.s.n. (Ibero) pp. 88-89; 193.

10T.s.n. (Ibero) pp. 38, 51-52 .

11Pat. Absalon Tabar, t.s.n. (Ibero) p. 937.

12People v. Constantino, L-23558, Aug. 10, 1967.

13T.s.n. (Ibero) pp. 129-130.

14See Appellant's brief, p. 154.

15Maximo Caa testified that a person inside the corn stalks could not be seen (t.s.n.[Ibero] p. 274).

16T.s.n. (Ibero) p. 167.

17See Exh. P.

18T.s.n. (Ibero) p. 529.

19T.s.n. (Ibero) pp. 569-570.

20T.s.n. (Ibero) pp. 454-455; 473-475.

21T.s.n. (Ibero) pp. 490-491.

22T.s.n. (Ibero) p. 498.

23T.s.n. (Ibero) p. 67.

24T.S.n. (Ibero) pp. 98-101.

25T.s.n. (Ibero) pp. 107-108.

26T.s.n. (Ibero) p. 104.

27T.s.n. (Ibero) p. 430.


22/66

28T.s.n. (Ibero) p. 410.

29T.s.n. (Ibero) p. 414.

30T.s.n. (Ibero) p. 412, .

31T.s.n. (Ibero) pp. 79, 110, 308-309, 408-409, 449, 545, 569-570; (Millares), p. 10.

32T.s.n. (Ibero) pp. 80, 418.

33T.s.n. (Ibero) pp. 451-452.

34T.S.n. (Ibero) p. 339.

35T.s.n. (Ibero) p. 347.

36T.s.n. (Ibero) pp. 345-346.

37T.s.n. (Ibero) pp. 144, 519-520.

38T.s.n. (Ibero) p. 41.

39T.s.n. (Ibero) pp. 43-45.

40T.s.n. (Ibero) pp. 43, 518.

41T.s.n. (Ibero) p. 556.

42See U.S. v. Baluyot, 40 Phil. 385.

43T.s.n. (Ibero) p. 50.

44T.s.n. (Millares) pp. 73, 75.

45People v. Urbina, 97 Phil. 515; People v. Alcaraz, 103 Phil. 533.

46T.s.n. (Ibero) pp. 1126-1189.

47T.s.n. (Ibero) pp. 331-332; 558-559.

48T.s.n. (Ibero) p. 1189.

49T.s.n. (Ibero) p. 1186.

50T.s.n. (Millares) pp. 107-108.

51U.S. v. Cornejo, 28 Phil. 457; People v. Bangug 52 Phil. 87.


23/66

52People v. Hamiana, 89 Phil. 225; People v. Daligdig, 89 Phil. 598; People v. Umali, 96Phil. 185; People v. Dueas, L-15307, May 30, 1961; See also I Reyes, The Rev. PenalCode, 432-433.

53T.s.n. (Ibero) pp. 205-209.

54T.s.n. (Ibero) pp. 366-368, 403, 539, 542.

55T.s.n. (Ibero) pp. 169-170, 311; (Millares) pp. 10, 25.

56T.s.n. (Ibero) pp. 316, 345-346, 354; Romualdo also saw Rotor holding a firearm, t.s.n.(Ibero) p. 170.

57T.s.n. (Ibero) p. 129.

58T.s.n. (Ibero) p. 744.

59

See Exhs. T and N-1.

60T.s.n. (Ibero) pp. 366-367; 539, 542-543.

61T.S.n. (Ibero) pp. 543, 565.

62T.s.n. (Ibero) pp. 218-219, 312-A-313, 473; (Millares) pp. 10, 25.

63T.s.n. (Millares) p. 13.

64T.s.n. (Ibero) pp. 316, 318.

65T.s.n. (Ibero) pp. 169-170.

66T.s.n. (Ibero) pp. 129-130.

67T.s.n. (Ibero) pp. 210, 259-262.

68T.s.n. (Ibero) pp. 539, 542.

69T.s.n. (Ibero) p. 270.

70T.s.n. (Ibero) pp. 62, 70, 215, 312-,A 474; (Millares) pp. 10, 25.

71T.s.n. (Ibero) p. 169.

72T.s.n. (Ibero) p. 129.

73T.s.n. (Ibero) p. 765.


24/66


25/66

G.R. No. L-20911 October 30, 1967

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.SULPICIO DE LA CERNA, ET AL.,defendants.

SULPICIO DE LA CERNA, SERAPIO MAQUILING, TEODORO LIBUMFACIL, GODOFREDOROTOR, SEVERINO MATCHOCA, and ANTONIO BAUTISTA,defendants-appellants.

Godofredo Galindez for defendants-appellants.Office of the Solicitor General for plaintiff-appellee.

BENGZON, J.P., J .:

Sixteen persons, among them herein appellants, were indicted by the provincial fiscal in theCourt of First Instance of Cotabato for double murder for the fatal shooting of Rafael andCasiano Cabizares,1father and son, in Barrio Cebuano, municipality of Tupi, province ofCotabato, on February 3, 1958. All pleaded not guilty.

In the course of the trial, after the prosecution had rested the People's case, the accused filed amotion to dismiss on the ground, inter alia, that the fiscal, after conducting his own preliminaryinvestigation, included in the charge the other accused who were already dropped therefrom bythe Municipal Court. The trial court denied said motion but acquitted accused Gaspar Bautista,

Agapito Avellana, Cesar Abapo and Eriberto Matchoca for insufficiency of evidence againstthem.

The defense then presented its evidence. While at this stage, accused Segundo de la Cernadied and the charge against him was dropped.

After trial, the lower court, on January 3, 1962 promulgated its decision. Acquitted were

Guillermo Esperanza, Concordio Pardillo, Deogracias Pardillo, Andres Abapo and JoaquinLibumfacil.

Convicted for the murder of Rafael Cabizares were Sulpicio de la Cerna and Serapio Maquiling,asprincipals, and Godofredo Rotor, Antonio Bautista, Severino Matchoca and TeodoroLibumfacil, as accomplices.

For the murder of Casiano Cabizares, the court convicted Sulpicio de la Cerna and SerapioMaquiling asprincipals, and Ramon Alquizar as accessory.

A motion to reconsider by the convicted accused failed to move the lower court. So the saidaccused followed up with their notice of appeal. Two days later accused Ramon Alquizar was

allowed to withdraw his intended appeal. And during the pendency of the appeal in this Court,accused Serapio Maquiling moved to withdraw his appeal also, and this was granted on August8, 1967.

The present appeal, therefore, involves only Sulpicio de la Cerna as principalfor the killing ofboth Rafael and Casiano Cabizares; and Teodoro Libumfacil, Godofredo Rotor, SeverinoMatchoca and Antonio Bautista asaccomplicesfor the killing of Rafael Cabizares.


26/66

The first question is procedural. It appears that when the municipal court finished with thepreliminary investigation, it opined that only appellant Sulpicio de la Cerna was guilty while therest of the accused were not. The fiscal, however, without seeking a review of the findings of thecourt, conducted his own investigation and, afterwards, indicted all the accused. It is contendedthat this was serious error. The objection, however, was raised only after the prosecution hadalready rested its case. Hence, whatever procedural defect there was, had been waived by the

appellants by their failure to raise it before entering their pleas.2

Appellants next assail the lower court for relying on the prosecution witnesses who gave, insubstance, the following narration of facts and circumstances:

Early in the morning of February 3, 1958, Rafael Cabizares, accompanied by his wife, Hospicia,his brothers Margarito and Romualdo, and his sons Gumercindo, Marcelo, Casiano, Juan andLamberto, left Barrio Cebuano headed for the poblacion of Tupi, Cotabato, bringing five sacks ofcorn loaded on a bull cart to be milled in Tupi. Juan, Marcelo and Lamberto, who were allminors, were then going to school. Upon approaching a hilly part, they had to stop since thecarabao could not pull the bull cart uphill. Rafael then requested his two brothers and his sonGumercindo to accompany him up the hill and carry on their backs the sacks of corn. With

Rafael leading, the four proceeded uphill.

As the four approached Sulpicio de la Cerna's house on top of the hill and were about to putdown the sacks of corn, appellant Sulpicio, who was in the house, fired at and hit Rafael, whofell down. Sulpicio then ordered his companions to burn his house so that they would have anexcuse. Meanwhile, Casiano, Gumercindo, Marcelo and Romualdo brought the wounded RafaelCabizares to the house of the latter's father, Demetrio, 100 meters away. Felisa Bastismo,Rafael's mother, Ursula Cabizares and Segundino Cabizares were there at the time.

After the group reached the house, Rafael's wounds were washed with hot water and then hewas brought inside the third room of the house. Subsequently, appellant Sulpicio and the otheraccused arrived at the premises, armed with firearms, bolos and canes. They stoned the houseand trust their bolos thru the bamboo walls and flooring. Finding that there were women insidethe house, the accused ordered them to get out or else they would be killed also. As FelisaBastismo and Ursula Cabizares alighted from the besieged house, Marcelo Cabizares followedthem, and although held by accused Conrado Pardillo and boxed by Serapio Maquiling, he wasable to escape to the nearby forest.

Serapio Maquiling then climbed up the window of the kitchen, and with the carbine which he gotfrom appellant Sulpicio de la Cerna, shot at Rafael Cabizares who was sitting in the third room.

At this moment, Casiano Cabizares jumped down from the house thru the kitchen door and ranaway. Serapio Maquiling followed him and shot the latter at the back, killing him a few metersaway from Demetrio's house. Appellant Sulpicio de la Cerna then got back the carbine, climbedup the house and fired once more at Rafael, who was now lying down on the floor, killing himfinally. Thereafter, the cadaver of Casiano Cabizares was tied to a bamboo pole, carried byaccused Ramon Alquizar and one Wilfredo Malias (at large) and placed near the burned houseof Sulpicio de la Cerna, as some of the accused followed while the rest proceeded to Rafael'shouse.

The post mortem examination3conducted that very same day showed that Casiano Cabizaresdied from a gunshot wound, the bullet entering the back and passing out in front, while RafaelCabizares sustained three gunshot wounds of entrance, one gunshot exit wound, and one stab


27/66

wound. Dr. Bienvenido Garcia, the Municipal Health Officer, explained that the bullet whichcaused the first wound located in front, at the left lower abdomen, did not go thru at the back butsplit into two parts after entering the body. However, these two parts were already palpable onthe left buttock of the decedent from which they were extracted. The bullet which caused thesecond wound located directly at the back lodged in the 11th thoracic vertebra. The third bulletentered near the left breast and went out at the right lumbar region.

The prosecution also presented proof that prior to the incident, a land dispute arose betweenRafael and some of the accused,4and that he had filed complaints5with the Agrarian Courtagainst the latter, the trial of which cases was scheduled on February 10, 1958.

Appellants would have this Court believe that they are innocent. The four appellants convictedas accomplices insist they were never at the vicinity of the killing. On the other hand, appellantSulpicio de la Cerna claims that both Rafael and Casiano were killed in self-defense.

Sulpicio's version of what transpired is this:

In the morning of February 3, 1958, Guillermo Esperanza and Sulpicio de la Cerna had justroasted corn in the latter's house when Rafael, Casiano, and others, all armed with bolos andcanes, arrived. Rafael demanded of Sulpicio to come down for a confrontation. The latter'srefusal to do so angered Rafael who threw his cane at Sulpicio and ordered his companions tosurround the house, thrust their bolos thru it and burn it. Because the house was on fire, andfearing that he would be killed, Sulpicio alerted Guillermo Esperanza got his carbine and firedindiscriminately at his attackers to drive them away. When Rafael and Casiano were hit, theircompanions fled. Guillermo Esperanza and Sulpicio then got down from the burning house andleft, passing by the prostrate bodies of the decedents. Sulpicio proceeded to the house of onePedro Esperanza to drink water and while there, he saw a jeep coming loaded with policemento whom be surrendered himself and his carbine. Expectedly Guillermo Esperanza gave thesame version as above-narrated.

Said appellant's version cannot be accepted. The autopsy reports contradict Sulpicio's claimthat he shot the decedentsfrontally while he was up in his house. For both deceased eachsustained a gunshot wounddirectly at the back. Moreover Casiano's wound of entry locatedalong the 12th rib is lower than the wound of exit located along the 6th rib6showing thatthe bullet flight path was upwards, not downwards. A gun fired from the elevated flooring 7of ahouse like Sulpicio's, and aimed downwards, could not have caused such wounds. Lastly,Rafael's cadaver bore a stab wound on the left side. Appellant's version could not account forthis.

While on the one hand nothing was found around the burned house of appellant Sulpicio de laCerna, such as the alleged cane thrown by Rafael, nor any other weapon or stones which may

indicate agression or violence, on the other, bloodstains were found inside Demetrio Cabizares'house8and also on the ground at the spot where, according to the prosecution, 9Casiano fellwhen shot by Serapio Maquiling. An empty carbine shell (Exh. I) was also found by Dr. Garcia inthe kitchen. In this regard, his testimony is not hearsay, as appellant contends, for although Dr.Garcia did not personally pick it up, he saw the empty shell taken from the floor and handedover to his companions before finally reaching him.10While Casiano's body was found nearSulpicio's burned' house, even appellant's own witness11admitted having found Rafael's bodyinside Demetrio's house right after the incidents occurred. Appellant's supposition that Rafael's


28/66

companions must have returned and carried away his body can hardly be accepted since thereis no reason why they would not also bring back Casiano's body.

Moreover, we find it hard to believe that Sulpicio, after felling the decedents and dispersing thelatter's companions would still leave his house when it was not yet totally burned, as he himselfadmitted. The natural thing for him to have done were it true that it was decedents who set

fire to it was to put down the fire and save his house. Anyway his life was no longer indanger.

Lastly, Sulpicio has more reason to resent and kill Rafael than the latter would have as to him.The source of the possible motive is the same: land trouble between Rafael Cabizares andSulpicio's father, and the ejectment suit instituted before the Agrarian Court against the latter bythe former. Considering that Rafael was the prevailing party in the land dispute before theNARRA, it is quite hard to believe that he would be the one entertaining a grudge against thoseover whom he had prevailed. Rather, it was the accused, who were defeated and who were nowfacing an ejectment suit which was set for hearing, that harbored resentment against thedeceased.

Furthermore, all the foregoing considerations fit well into the prosecution's version. We havegone over the testimonies of the prosecution witnesses and found them credible. That most ofthem are related to the victim does not necessarily impair their credibility.12Appellants howeverinvite our attention to inconsistencies and improbabilities allegedly abounding in theirtestimonies. We shall consider each witness and their testimonies separately.

1. Romualdo CabizaresHe was with his brother Rafael when the latter was shot nearSulpicio's house and was among those who brought Rafael to their father's (Demetrio) house100 meters away. He did not go up the house since he had to go back and evacuate his familyto a forest 400 meters away. Having done so, he went back and saw the incidents aroundDemetrio's house from a place covered with corn plants just 25 meters away.

Appellants point out that his statements on the whereabouts of Conrado Pardillo wereinconsistent, leading the lower court to disbelieve him and acquit Pardillo. We find noinconsistency since Pardillo's going to Rafael's house with the other accused was after theevents in Demetrio's premises had taken place.13The lower court acquitted Pardillo not becauseit disbelieved Romualdo but rather, taking his testimony as true, the court held that the factsproved were insufficient to tack criminal liability on Pardillo. 14

This witness was able to observe the events around Demetrio's house. Even if the corn plantswhere he hid were sparse, because of the 25-meter distance from the accused whoseattentions were focused on Demetrio's house, and considering that he was in a hiddenplace15while the accused were in the open field, Romualdo could see them without their

noticing him. It is true that the forest where Romualdo took his family was 400 meters away, butthe accused took some time before they followed to Demetrio's house and Romualdo ranback after hiding his family.16

2. Margarito CabizaresHe was beside his brother Rafael at the hill top when the latter wasshot by Sulpicio. When he tried to hide near some banana clumps, Guillermo Esperanzastabbed him, hitting him near the left shoulder and causing him to fall unconscious. Shortly laterwhen he recovered consciousness, he followed Rafael who was being brought to Demetrio's


29/66

house but he was told by Rafael to save himself so he went to a forest 400 meters away wherehe saw the goings-on around Demetrio's house.

Appellants state that nothing much can be gathered from his testimony. However, they overlookthe obvious fact that Margarito was an eyewitness to the shooting of Rafael near Sulpicio'shouse. Although he lost consciousness after being stabbed, it was momentary only, the wound

not being very serious.17It was not impossible for him to have observed activities aroundDemetrio's house at a distance of 400 meters. Witness Bonifacio Barro corroborates him on thispoint.18Lastly, he need not be a ballistics expert to recognize gunshot bursts.

3. Gumercindo CabizaresHe was with his father Rafael at the hill top. He warned his fatherjust before Sulpicio fired the carbine. After Rafael was hit, he helped carry him to Demetrio'shouse but did not stay there since he was told by Rafael to go to Dadiangas to call the P.C.

Appellants claim that his testimony regarding a conversation with Juan Cabizares on the waydownhill is contradicted by Juan himself who stated that he was not with those who broughtRafael to Demetrio's house. We fail to see any contradiction. Juan did not denyhavingconversed with Gumercindo. And what the latter said was that after meeting Juan, they wentahead and Juan probably followed behind.19We do not think it is stupidity for a son to warn hisfather of imminent danger as Gumercindo did and to come to the latter's aid despitedanger. We prefer to consider such behavior as "courage under fire."

4. Marcelo CabizaresHe was near the bullcart downhill and when he heard gun shots, hewent uphill. There he helped carry his father Rafael to his grandfather Demetrio's house. Afterthe accused arrived in the latter's house, the women were ordered to get out. He followedUrsula Cabizares and Felisa Bastismo on the way down but he was held by Pardillo and boxedby Serapio Maquiling. Still, he was able to escape.

Appellants point out to two statements of his, one wherein he was able to identify all theaccused and the other, wherein he was able to name only four of them, alleging materialinconsistency. The statements however referred to different situations. The first was when allthe accused arrived at Demetrio's place, and the second statement refers to those whomMarcelo Cabizares saw when he came down from the house.20He was able to run away afterSerapio Maquiling boxed him because he was freed from the hold of Pardillo and Serapio.21Onredirect, he clarified that he left Demetrio's house in the morning. 22

5. Juan CabizaresHe also stayed with the bullcart downhill and when he heard gun shots, hewent uphill and saw his father wounded. He then followed behind the group carrying Rafael toDemetrio's house and while inside the house, saw the killing of Rafael and Casiano.

Juan did not lie when he said his father was shot by Sulpicio for altho he did not see the actual

shooting, he had good reasons to conclude that Sulpicio fired the shot since he saw the latter,shortly after the shooting, holding the carbine which was still pointed at Rafael. 23Anyway, histestimony on the point is merely corroborative of the others who were eyewitnesses. He wasable to identify Serapio Maquiling as the one who first shot his father in Demetrio's housealthough Serapio was behind the bamboo partition, since there were openings in it enabling oneto see thru and he peeped thru it.24The measurements in the third room (3 m x 4 m) arecompatible with Juan's statement that Sulpicio was 1-1/2 m away from Rafael when the thirdshot was fired since Sulpicio did not go inside the room but fired from the window


30/66

outside.25Juan was competent to testify on what occurred outside the house since he was alsopeeping thru the slits in the bamboo walls.26

6. Felisa BastismoShe was the mother of Rafael Cabizares. She was with Ursula Cabizaresand Segundino Cabizares inside Demetrio's house when the wounded Rafael was brought in.

After Rafael's wounds were washed, Felisa went down from the house with Ursula, as ordered

by the accused. And in the corn fields nearby, she witnessed the killing of Casiano.

Appellants make much of Felisa's testimony referring to Rafael's "wounds" when he wasbrought in the house, and argue that Rafael had been shot at least twice already. But Felisa didnot examine the wound of Rafael. Neither did she state how many wounds he had. Thesubstance of her testimony is only that Rafael was woundedwhen he arrived. As to theimpossibility for the stones to go thru the broken window shutter (Exh. K), Felisa admitted thatshe merely heard the sound when they fell on the floor. 27Surely, appellant cannot seriouslycontend that one has to see stones going thru the house to know that it is being stoned.

Anyway, it is not impossible for a large stone hurled against a bamboo shutter to cause a holetherein measuring 14" x 1 ." And assuming that such hole appears more to have been cut by abolo and forced open, Felisa testified that the accused also thrust their bolos thru the walls. 28

It is not impossible for Felisa to have seen Casiano's shooting for she lay flat on theground afterhaving witnessed it already.29She also explained why she was alone in the cornfields although she left the house together with Ursula. Being 76 years old, she was slower thanUrsula, and she stumbled while fleeing so she was able to reach up to the corn fields only.30Asto Juan's arrival, the testimonies of the other witnesses are uniform that the group carryingRafael arrived in Demetrio's house first and Juan, who followed behind, arrivedafterwards.31Juan corroborates Felisa that he helped carry Rafael to the third room.32Marceloprobably noticed Juan only after Rafael had been brought to the third room, leading him to saythat Juan arrived after Rafael was brought there.33

7. Ursula and Segundino CabizaresBoth were in Demetrio's house with Felisa Bastismo.They saw the arrival of the accused and the stoning and thrusting of bolos thru the wallings.One of the bolos wounded Segundino Cabizares on the left thigh. Ursula Cabizares hid in apalay container but when they were ordered to get out, she and Felisa Bastismo left andreturned later in the afternoon.

While Ursula was evidently mistaken when she said that Margarito was also in the house, theerror is immaterial. Contrary to appellants' contention, she saw Serapio Maquiling on her waydown the house.34As to whether the other accused besides appellant Antonio Bautista werearmed with bolos, she stated she did not know since she only saw the bolo tips penetrating thruthe wallings.35Her positive statement that She saw appellant Godofredo Rotor36prevails, ofcourse, over the negative testimony of Maximo Caa.

Appellants argue that since Segundino Cabizares was fearful, he could not have been movinginside the besieged house of Demetrio, peeping every now and then thru the openings in thewalls and observing the accused. They seem to forget however that different people reactdifferently even when apprehensive. Thus, Segundino's restlessness inside the house is neitherunnatural or ridiculous to believe.


31/66

8. Bonifacio BarroHe was with Fiscal Daproza and Sgt. Paladin inside Demetrio's house afew days after February 3, 1958 and upon orders of the Fiscal, he took out part of the flooring(Exh. K), the bamboo slatch (Exhs. L and L-1) and the stones (Exhs. M, M-1 and M-2).

His statement that Exhs. M, M-1 and M-2 were someof the stones Fiscal Daproza found on theroof of Demetrio's house corroborates the other prosecution witnesses who testified that the

accused stoned the house. He also stated that there were other stones inside the house,corroborating Romualdo Cabizares.37

9. Dr. Bienvenido GarciaAs municipal health officer, he performed the autopsy on Rafaeland Casiano Cabizares on February 3, 1958. He found Casiano's body near the burned houseof Sulpicio de la Cerna, and Rafael's, inside Demetrio's house. In the latter house, he also sawa bullet hole on the floor (Exh. J-1) and a carbine shell (Exh. 1).

Appellants would cavil on Dr. Garcia's statement that he saw Exh. J (part of the flooring) only incourt. What he said however was that he saw it as cut already from the floor only in court.38Hisstatements as to the room dimensions (3-4 m x 4-5 m) and the distance of Rafael's body to thepartition (1 m or 2 ft.) areapproximationsonly and not exact measurements.39A difference of afew insignificant meters is to be expected. Lastly, his statements that the bullet hole (Exhibit J-1)was on the floor coincides with Barro's testimony that Exh. J was cut from the flooring. 40

From all the foregoing, it is apparent that the so-charged inconsistencies and improbabilities inthe testimonies are without substantial and significant basis. Hence, the lower court's findingsshould stand, especially since they involve an appreciation of the evidence and credibility of thewitnesses.

We now proceed to the criminal liability of the appellants.

The killing of Rafael Cabizares was attended by treachery. Appellant Sulpicio contends that the

first shot, fired by him, was not attended with treachery since there is evidence that Rafael waswarned by his son Gumercindo just before he was hit in the lower abdomen.41However, evenassuming the argument to be tenable, the second shot, by Serapio Maquiling, was definitelytreacherously fired since Rafael was then in the third room of Demetrio's house, wounded anddefenseless. The treachery here has to be independently considered due to the sufficient lapseof time42from the first shot, in which the following events intervened: (1) the bringing of Rafael toDemetrio's house 100 meters away after being hit; (2) the washing of his wounds and his beingbrought to the third room to rest; (3) the arrival of the accused and their ordering the two womento get out. It was only after the women left that Serapio climbed up the kitchen and fired thesecond shot at Rafael.

Appellant Sulpicio is chargeable for the treacherous shooting of Rafael by Serapio Maquiling

since both were acting as co-conspirators pursuant to their understanding in the meeting heldthe day before in Andres Abapo's house, as will be shown presently. Anyway, the third shot,fired by Sulpicio, was treacherously done. Rafael was then flat on the floor and although stillalive, was completely defenseless, having been shot twice already. The portion of Dr. Garcia'stestimony43cited by appellants shows that Rafael died afterthe third shot hit him

Q. After wound No. 1 was inflicted, is it possible that Rafael Cabizares was stillalive?


32/66

A. Rafael Cabizares was still alive.

Q. After inflicting wound No. 2, is it possible that Rafael Cabizares was still alive?

A. He was still alive.

Q. When wound No. 3 was inflicted, was he still alive by your conclusion?

A. He was dead.

Q. What makes you conclude that he was already dead when wound No. 3 wasinflicted?

A. Because

Direct Participation

Documents

Transcript of Direct Participation