[ G. R. No. 45373. March 31, 1937 ] 64 Phil. 331
[ G. R. No. 45373. March 31, 1937 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. PRIMO PARANA, DEFENDANT AND APPELLANT. D E C I S I O N
AVANCENA, C.J.:
The accused Primo Parana appeals from the judgment of the Court of First Instance of Occidental Negros sentencing him, for the crime of murder committed on the person of Manuel Montinola, to the penalty of reclusion perpetua and to indemnify the heirs of the deceased in the sum of P1,000, with the costs.
On the morning of May 19, 1936, in the municipality of Silay, Occidental Negros, the deceased, who was taking part in a game of monte in the house of Jose Lapuos, was informed by the chauffeur Valentin Poblacion that his brother Glicerio Montinola’s car, which he had ordered for his trip to the municipality of Cadiz, was ready to start. Five minutes later the deceased came downstairs and upon reaching the street, he turned towards the car which was waiting for him. At that moment the chauffeur Poblacion, who saw the appellant behind the deceased in the attitude of stabbing him with a dagger, shouted to warn him of the danger, and the deceased, looking behind, really saw the appellant about to stab him. The deceased, defending himself, retreated until he fell on his back into a ditch two meters wide and 1.7 meters deep. Without lessening the aggression the appellant mounted astride of the deceased and continued to stab him with the dagger. As the chauffeur Poblacion had been making an alarm from the beginning, Liboro Montelibano, who was in a nearby drug store, about fifty meters away, went to said place and found the appellant astride of the deceased who was defending himself with his hands and feet from the blows the appellant gave him with the dagger. Montelibano wrested the dagger from the hands of the appellant who, finding himself disarmed, seized the revolver which the deceased carried in his belt and tried to fire at the latter without succeeding in his attempt because Montelibano likewise wrested said weapon from him. After the appellant and the deceased had been separated, the former still asked Montelibano for the weapon taken from him, but at that moment a policeman arrived and the appellant was placed under arrest. When the deceased was later removed from the ditch into which he had fallen, he was found wounded and was taken to the municipal building. He was later transferred to the provincial hospital where he was treated by Dr. Ochoa, expiring six days later, as a result of general peritonitis produced by one of his wounds.
The preceding night, at about 11 o’clock, monte had also been played in the house of Glicerio Montinola, brother of the deceased. The deceased took part in said game where the appellant was designated to attend to the players. One Lamay, who was also taking part in the game, gave the appellant the sum of P2 to buy beer. For failure of the appellant to immediately comply with this request, a discussion ensued between him and Lamay and, as both raised their voices, they were admonished by the deceased. As the appellant disregarded said admonition, the deceased slapped him and ordered him to leave the house. The appellant left and went to Lapuos’ house where he lived, where the deceased took part in another game on the following day, and where said deceased came from when he was attacked.
At about 7 o’clock in the morning of the crime, the appellant purchased from the store of the Japanese Matzu Akisama a hunting knife (Exhibit F), which is the same knife used by him in attacking the deceased.
On that same morning, at about seven thirty, the appellant went to the house of Crispin Espacio for whom he used to work, to ask to be excused from work that day as he intended to wreak vengeance on somebody. Espacio advised him against it as he might again go to Bilibid prison, inasmuch as he had already served a term for the crime of homicide.
These are the facts found by this court to have been established in this case, proving beyond all doubt that it was the intention of the appellant to kill the deceased, judging not only from the condition of the weapon with which he provided himself but also by the manner and circumstances under which he committed the aggression.
The appellant’s testimony is the only evidence in his defense. According to him, on the morning of the crime he saw the deceased taking part in the game in Lapuos’ house where he lived. The deceased then uttered threatening words to him, which he disregarded, leaving the house and going to a nearby Chinese store. Sometime, later, as he was on his way to Lapuos’ house, he saw the deceased coming down and, approaching the latter, he spoke to him about the incident of the previous night and of their meeting a few minutes before, asking said deceased to forgive and not wreak vengeance on him. The deceased, by way of an answer, drew the revolver which he carried in his belt, and the appellant, in the face of such attitude, attempted to wrest the weapon from him. In the struggle the deceased fell on his back into a ditch and the appellant mounted astride of him, tried to wrest the revolver from him, and at the same time drew the knife which he carried, attacking the deceased therewith. When the appellant had succeeded in taking possession of the revolver, the deceased got up and walked towards the car. At that moment Liboro Mpntelibano appeared and the appellant turned over the knife and the revolver to him.
This version of the incident given by the appellant in his testimony, without any corroboration, is contradicted by the testimony of the chauffeur Poblacion and of Liboro Montelibano. Furthermore it is improbable, taking into consideration the fact that he was the offended party, suffering from the injustice of the offense received, provided himself with a lethal weapon and approached the’ deceased, which circumstances do not agree with his attitude, according to his testimony. The court correctly found that the qualifying circumstance of treachery was present in the commission of the crime.
The appellant, in spite of having seen the deceased in the upper story of Lapuos’ house, did not wish to attack the latter there undoubtedly to avoid his being defended by the many players who were with him. Instead, he waited for the deceased at a nearby store until the latter came down, and attacked him while he had his back turned and could not see the appellant. All these, which were the beginning of the execution of the appellant’s design to kill the deceased, constitute treachery inasmuch as they tended to avoid every risk to himself arising from the defense which the deceased might make (U. S. vs. MeMann, 4 Phil, 561; U. S. vs. Pendleton, 7 Phil., 457; U. S. vs. Mercoleta, 17 Phil., 317; U. S. vs. Cabanog, 34 Phil., 620). It matters not that the deceased accidentally turned around upon hearing Poblacion’s warning and was able to defend himself from the blow which, at that moment, the appellant was about to give him with a dagger, because the treacherous character of a means employed in the aggression does not depend upon the result thereof but upon the means itself, in connection with the aggressor’s purpose in employing it. Otherwise the crime of attempted or frustrated murder would not be punishable (People vs. Reyes, 47 Phil., 635). For this reason the law does not require that the treacherous means insure the execution of the aggression, without risk to the person of the aggressor arising from the defense which the offended party might make, it being sufficient that it tend to this end. However, even considering the1 incident at the moment the deceased turned around and saw the appellant in the attitude of stabbing him, this court also finds therein the elements of treachery inasmuch as the aggression, under the circumstances, was so sudden that the deceased, who carried a revolver in his belt, had no chance to defend himself with it.
Considering the incident at the moment the appellant mounted astride of the deceased, who defended himself only with his feet and hands without having been able to use the revolver carried by him in his belt, when said appellant, in such situation, inflicted the wound which caused the death of the deceased, he likewise acted with treachery on the ground that, under the circumstances, he was not running, as in fact he did not run, any risk arising from the defense which the deceased might make.
And so, whether the beginning and the end of the aggression be considered singly, or the development thereof be considered as a whole, it is evident that the aggravating circumstance of treachery was present.
The aggravating circumstance that the appellant is a recidivist must be taken into consideration. The mitigating circumstance that he had acted in the immediate vindication of a grave offense committed against him a few hours before, when he was slapped by the deceased in the presence of many persons, must likewise be taken into consideration. Although this offense, which engenders perturbation of mind, was not so immediate, this court is of the opinion that the influence thereof, by reason of its gravity and the circumstances under which it was inflicted, lasted until the moment the crime was committed. Lastly, the other mitigating circumstance that the appellant had voluntarily surrendered himself to the agents of the authorities must be considered.
For the foregoing considerations, this court finds the appellant guilty of the crime of murder qualified by treachery, and, taking into consideration the presence of one aggravating and two mitigating circumstances in the commission of the crime, and applying the Indeterminate Sentence Law, Act No. 4103, he is sentenced to the penalty of from ten years of prision mayor, as the minimum, to seventeen years, four, months and one day of reclusion temporal, as the maximum, affirming the appealed sentence in all other respects, with the costs. So ordered.
Abad Santos, Imperial, and Diaz, JJ., concur.