[ G. R. No. L-5384. June 12, 1953 ] 93 Phil. 319
[ G. R. No. L-5384. June 12, 1953 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. DOMINGO VISAGAR, DEFENDANT AND APPELLANT. D E C I S I O N
BAUTISTA ANGELO, J.:
This is an appeal from a decision of the Court of First Instance of Leyte finding the accused guilty of murder and sentencing him to suffer the penalty of death, with the accessory penalties of the law, to indemnify the heirs of the deceased in the sum of P4,000, without subsidiary imprisonment in case of insolvency, and to pay the costs. Domingo Visagar and Pedro Basilio had been neighbors for sometime, their houses being situated a few meters apart at the corner of Veteranos Street and Rizal Avenue in Tacloban, Leyte. Prior to the incident in question, the relationship between their families was quite cordial until the later part of July, 1951 when a dispute arose between them over a passageway from the house of Basilio leading to Veteranos Street. Pedro Basilio was leasing a house and lot belonging to Angel Tomanda at Veteranos Street where he lived with his family. Fronting that street were two vacant lots belonging to Tomanda and Leonardo Enage which were also leased to Pedro Basilio. On the vacant lot of Tomanda there was a strip connecting the main street with the houses situated in the interior lot one of which belonged to Domingo Visagar. It appears that, a few days before the incident, Pedro Basilio started fencing the vacant lot thereby closing the passageway leading to the main street. The closing of that way greatly inconvenienced Visagar who had a jeep which used to pass through that passageway in going to and from his house. At around 10 o’clock in the morning of July 10, 1951, Pedro Basilio and the wife of Visagar met in the office of Mayor Epifanio Aguirre where a heated argument took place between them regarding the affair. Mrs. Visagar pleaded to the Mayor that he make use of his influence so that Basilio may grant them the way they need for their jeep. Despite the intervention of the Mayor, who tried to bring about an amicable settlement, nothing was done because Basilio refused to compromise. Angel Tomanda, owner of the lot in dispute, was also asked to intervene, but he declined alleging that the lot was leased to Pedro Basilio. As Mrs. Visagar and Basilio could not reach an understanding, before departing, the former addressing the latter said, “If that is what you wish, something may happen.” A few minutes later, Mrs. Visagar returned to the Mayor’s office with her husband to request the Mayor once again to prevail upon Pedro Basilio not to close the passageway. The Mayor then called Angel Tomanda to his office and requested him to settle the dispute being the owner of the vacant lot being fenced by Basilio. This time Tomanda promised that he would look for a back alley which would allow the Visagars to bring their jeep to the main street, but Mrs. Visagar turned down the offer insisting that they had every right to use the old passageway, and in the presence of the Mayor said, “Mang Angel, please help settle this matter because something will happen.” Mr. Visagar, who was nearby, also made this remark, “My wife told me that she is being downtrodden, abused * * * I better go to jail, there is no more use, if I cannot let my jeep enter my house and it is prohibited to park the jeep in the street I better go to jail.” After the conference in the office of the Mayor, Angel Tomanda and the spouses Visagar proceeded to the vacant lot being fenced by Pedro Basilio to view it and attempt another settlement. During the ocular inspection, Domingo Visagar suddenly rushed to Basilio with the evident intention of attacking him, but Tomanda stopped him and momentarily he was pacified. As Basilio remained adamant in his attitude in closing the passageway, Domingo Visagar faced him saying, “You Indong, you are always like that, do you want a fight with guns?” And in a split second ran towards his house, got his .45 caliber automatic pistol, and went to look for Basilio who at that time was leaning against the kitchen door of his house with his hands akimbo. At a distance of about three meters, and without mediating any word, Visagar fired two shots which hit Basilio on the chest causing two mortal wounds. Already wounded, Basilio entered the kitchen, followed by Visagar, who fired several shots in succession at Basilio after closing the door behind him. The wounded man staggered inside the kitchen where he dropped dead. Dr. Isidoro Madlangbayan, resident physician of the Leyte Provincial Hospital, performed the autopsy and found six serious wounds in the different parts of the body of the deceased. The cause of death were the perforations of the heart, lungs and blood vessels which produced severe internal hemorrhage. The accused admitted having shot to death the deceased Pedro Basilio, but he alleged self-defense. He gave the following version: After coming from the Mayor’s office where a conference was held to reach an amicable settlement, he, together with his wife and Tomanda, went to the vacant lot being fenced by the deceased where he met the latter. During the ocular inspection, when the deceased and Tomanda were showing to the accused the proposed passageway, the deceased asked the latter, “What will pass here, a jeep?” After the accused answered affirmatively, the deceased replied, “If a jeep is going to pass here, let the jeep fly.” The accused retorted saying, “there is no jeep that can fly” and that “I will have my jeep pass through regardless of what will be destroyed upon my passing through.” Sensing danger, Tomanda started to run, and forthwith, resentful of these remarks, the deceased drew his .38 caliber pistol and tried to shoot the accused. The latter grabbed the pistol with his right hand and both grappled for its possession at which instance the pistol fired. The deceased then held the accused tightly by the breast with his left hand and that, while struggling at close range, the accused was able to draw from the left pocket of his pants his .45 caliber pistol and with it shot the deceased several times. There is no doubt in the mind of the court that the accused is guilty of having killed the deceased considering the manner and circumstances under which the wounds were inflicted on the latter which caused his instant death. That the accused started the aggression by firing his .45 caliber pistol at the deceased when he became incensed at the adamant attitude of the latter in connection with his plea that he give him a lane for the passage of his jeep from his house to the main street, is clearly proven not only by the eye-witnesses but by the nature and number of the wounds found in the body of the deceased in the autopsy performed by Dr. Isidoro Madlangbayan. According to eye-witnesses Trinidad Apura and Bibiana Labajo, the deceased was suddenly shot by the accused while leaning against the kitchen door of his house with his hands akimbo without mediating any struggle or exchange of words between the two immediately before the shooting. Trinidad, a laundrywoman of the Basilio family, was then standing in the kitchen while taking rest from her work when suddenly the accused came up and immediately fired shots at the deceased. Bibiana, on her part, was in her house about 10 meters distant from the kitchen of the deceased and while she was spliting firewood, she saw the accused pass by with a pistol in his hand and upon approaching the deceased he fired at him. Then, she said, the accused entered the kitchen and thereafter she heard several more shots. When he came out of the house, he was already carrying two pistols in his hands and went directly to her house inquiring for her brother-in-law and not finding him there he went home and then, according to Bibiana, she heard another shot. When policeman Baltazar Cormero arrested the accused in his house he found in his possession not only his own pistol, caliber .45 but also the nickel-plated pistol of the deceased caliber .38. And when these pistols were examined, it was found that all the bullets in the .45 caliber pistol had been fired whereas in the .38 caliber pistol only one bullet was missing. This finding is significant for it corroborates the statement of the prosecution witnesses Apura and Labajo that the accused fired upon the deceased a rain of shots in rapid succession when he was assaulted in the kitchen of his own house and that when the accused went home carrying the two pistols, he again fired another shot. Evidently, the accused fired the lone shot from the pistol of the deceased to pave the way and give a semblance of truth to his plea of self-defense. The version of the two witnesses is confirmed by the findings of Doctor Madlangbayan who declared that, judging by the nature of the wounds found in the victim’s body, the first two shots were fired by appellant at a distance of about three meters and that there was no struggle between the two immediately before the shooting. The multiple wounds found in the different parts of the victim’s body also corroborate the multiple shots fired at him by the accused. The claim of self-defense of the accused is hard to believe considering the circumstances which, according to him, preceded the shooting. He said that during the ocular inspection, the deceased sarcastically told him, “if a jeep is going to pass here, let your jeep fly”, to which he replied saying, “there is no jeep that can fly” and that “I will have my jeep pass through regardless of what will be destroyed upon my passing through.” The accused says that, because of this retort, the deceased became enraged and drew his .38 caliber pistol and tried to shoot him. Then he grabbed the pistol of the deceased with his right hand and while grappling for its possession, it fired once, and while struggling at close range he (accused) was able to draw his .45 caliber pistol from his left pocket and with it shot the deceased several times. If the accused merely remarked that there is no jeep that can fly and that at any rate he should have his jeep pass through regardless of the consequence, we cannot perceive how this remark could have enraged the deceased to the extent of shooting him with his pistol. That remark was at most a mere threat, and unless carried out, no harm could be done. It could not have provoked the deceased to the extent of drawing his pistol knowing that the accused was equally armed with a deadly weapon. On the other hand, it was the accused who had every reason to be resentful and to be enraged considering the stubborn refusal of the deceased to heed the accused’s plea that he be given a way for the passage of his jeep to the main street. And then there was the threat made by the accused few hours before the fatal occurrence when he said that if he could not have his jeep enter his house because of the prohibition of the deceased he would prefer to go to jail. These circumstances lead to but one conclusion: That it was the accused who initiated the aggression which ended in the instant death of the deceased. The findings of Doctor Madlangbayan as regards the number and nature of the wounds as found in the body of the victim also belie the claim of self-defense of the accused. If it is true that the shooting was preceded by a personal grappling or handling between the assailant and the victim where both were armed with pistols, it does not stand to reason why the accused did not receive any wound whereas the deceased received many serious wounds which caused death immediately. Moreover, if we were to believe the accused’s version of the shooting, he must have been at a very close range when he fired the fatal shots. According to him, he fired the shots while locked in struggle with the deceased for the possession of the latter’s gun. Doctor Madlangbayan belied this story when he explained that no powder burns were found on the victim’s body. The defense presented three character witnesses to prove that the deceased was a man of violent temper and of quarrelsome disposition. They testified that the deceased was of aggressive character and had a bad reputation because he used to ill-treat his employees. But these witnesses proved to be biased because during their testimony they showed that they bore deep resentment against the deceased. They also testified that the act and behavior on which they base this character of the deceased took place more than ten years ago or long before the last war and considering the period that has elapsed since then, the character of the deceased may have undergone such change as befits his education and social standing in the community. On the other hand, this attempt to besmirch the character of the deceased appears sufficiently rebutted by two prominent and respectable residents of the place, Gerardo Villasin, Chairman of the local Board of Directors of the Philippine National Red Cross, Vice-President of the Boy Scouts, Grand Knight of Columbus and member of the Rotary Club, and Dr. Virginio Fuentes, Chief of the City Hospital and President of the Tacloban Lions Club. These witnesses assured the court that the deceased was a man of good reputation and standing in the community. According to the Solicitor General, the crime committed is merely homicide and not murder as found by the trial court. And this is so because, according to him, it was the accused who challenged the deceased to a gunfight before the shooting, which shows that the attack was not treacherous because it gave the deceased a chance to prepare for the impending attack. And considering the brief period that had elapsed from the time the challenge was hurled to the actual shooting, it cannot be said that appellant had premeditated the commission of the crime. To this we agree. In the commission of the crime, the aggravating circumstance of dwelling is present which is offset by the mitigating circumstance of passion, and obfuscation. The penalty prescribed by law should therefore be imposed in the medium period. Wherefore, with the modification that the accused be sentenced to an indeterminate penalty of not less than 12 years of prision mayor and not more than 17 years and 4 months of reclusion temporal, the judgment appealed from should be affirmed, with costs against apellant. Paras, C. J., Bengzon, Reyes, Jugo and Labrador, JJ., concur.