SECOND DIVISION

G.R. No. 98197; January 24, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANILO MAGSOMBOL, accused-appellant.

D E C I S I O N

PUNO, J.:

Accused DANILO MAGSOMBOL appeals the judgment of the trial court convicting him of Murder for the death of GERALDO MAGSOMBOL.

Initially, accused was charged with Murder and Grave Threats. The Information for Murder reads:

That on or about the 25th day of December 1980, at about 9:00 o’clock in the evening, at barangay Calumpang, East, Municipality of San Luis, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with a double-bladed hunting knife, with intent to kill, without justifiable cause and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said hunting knife one Geraldo Magsombol, thereby inflicting upon the latter physical injuries directly causing the death of said Geraldo Magsombol.

Contrary to law.1

Upon the other hand, the Information for Grave Threat reads:

That on or about the 25th day of December, 1980, at about 9:00 o’clock in the evening, at Brgy. Calumpang East, Municipality of San Luis, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by personal resentment which he entertained against Jojo Magsombol, did then and there wilfully, unlawfully and feloniously threaten the said Jojo Magsombol with the infliction upon the latter of a wrong amounting to a crime, that is, by then and there threatening to stab and chasing said offended party with a double-bladed hunting knife.

Contrary to law.

At the arraignment, accused pleaded not guilty to the charges. Joint trial of the cases ensued.

The prosecution presented three (3) eyewitnesses, namely: Jojo Magsombol, Leopoldo Magsombol and Reynaldo Maullion. Through their testimonies, the prosecution established that on the afternoon of December 25, 1980, at about 4:00 p.m., accused and GERALDO MAGSOMBOL figured in a fistfight. Prosecution witness REYNALDO MAULLION was then by the window of his house when he saw accused and Geraldo initially engaged in conversation. Accused’s brother-in-law was engaged in recruiting residents in the barangay for overseas employment. Reynaldo overheard Geraldo ask accused: “Why is your brother-in-law making a fool of our people, . . . getting their money on the (pretext) of getting them employed in Saudi (Arabia), but in reality, he was only pocketing the(ir) money?” Immediately, there was an exchange of fistblows. Reynaldo went out of his house and pacified the two.2 Accused and Geraldo then went their separate ways.

That night, at about 9:00 p.m., while JOJO MAGSOMBOL was tending his store in Calumpang East, San Luis, Batangas, GERALDO MAGSOMBOL, LEOPOLDO MAGSOMBOL and REYNALDO MAULLION, all residents of the area, met in front of his store, each intending to buy cigarettes. Geraldo, Leopoldo and Reynaldo engaged in small talk for a short while. Afterwards, Geraldo left and proceeded towards the direction of his house.3

About five (5) meters from the store, Geraldo met accused DANILO MAGSOMBOL who, without warning or provocation, immediately stabbed him on the stomach. Geraldo then half ran and half staggered for a distance of about 15 meters while accused fled in the opposite direction.4

Jojo, Reynaldo and Leopoldo witnessed the stabbing in front of the store. Reynaldo and Leopoldo immediately rushed to Geraldo’s succor. Jojo closed his store before following Reynaldo and Leopoldo. However, on the way, Jojo met accused who vented his wrath on him. Accused pursued Jojo and, with knife in hand, threatened: “Isa ka pa. Papatayin ko kayong lahat.” Jojo ran for about a hundred meters. While in pursuit, accused stumbled and failed to catch up with Jojo. Jojo then sought refuge in the house of one Pabling Casilao who accompanied him back to his house.5

NOLASCO CILINDRO who was then talking to a neighbor, heard Geraldo’s cry for help. He sought the place where the voice was coming from and saw Geraldo staggering and bloodied. As Geraldo was about to fall on the ground, Nolasco caught him. When Reynaldo and Leopoldo reached the place where the victim lay slumped on the ground, Nolasco was already cuddling Geraldo on his lap. Before expelling his last breath, Geraldo identified accused as his assailant and expressed surprise to Nolasco that accused stabbed him.6

Reynaldo and Leopoldo informed the victim’s parents about the stabbing incident. They accompanied the victim’s parents to the scene of the crime. They then rushed the victim to the provincial hospital where he was pronounced dead on arrival.

DR. EUFROCINO VILLALOBOS, the municipal health officer of San Luis, Batangas, conducted a postmortem examination on the body of the victim. His examination revealed the presence of two (2) injuries on the victim’s abdomen: one was a superficial linear abrasion which could have been caused by a sharp-edged or pointed instrument; and, the more serious injury was the fatal stab wound on the umbilical region of the abdomen on the left side of the linear alba, seven (7) inches in depth. The direction of this wound was upward, affecting the liver, intestines, respiratory diaphragm, apex of the heart, small blood vessels and the nerves. These internal injuries brought about massive hemorrhage which caused the victim’s death.7

After bringing the victim to the hospital, Reynaldo reported the incident to the police authorities. When the police arrived, Reynaldo accompanied them to accused’s house but the latter was nowhere to be found.8

Accused invoked self-defense. He testified that a couple of days before December 25, 1980, he had an altercation with the victim Geraldo. Geraldo’s brother, Orlando, had applied for overseas employment with accused’s brother-in-law Rodolfo Pagaduan. Geraldo complained to accused about the delay in the deployment of his brother for work abroad. Irritated, accused punched Geraldo. Geraldo left but not without a warning. He threatened accused, thus: “May araw ka rin.9

On December 25, 1980, at about 7:30 p.m., accused was fetched in his house by his friends CECILIO ATIENZA, REXELL BANTA and CHARLES ASERON to attend a reunion at Cecilio’s house.10

About a half hour after they arrived at Cecilio’s house, accused and his three (3) friends went to the store of Jojo Magsombol to buy cigarettes. They then hang out in front of the store and talked. Accused was smoking while seated on a cemented bench in front of the store.11

After a while, accused saw Geraldo approaching them. When Geraldo reached the store, he approached accused and threw a punch at accused, hitting him on the right eye. Accused fell on the ground. Totally taken by surprise, accused asked Geraldo why he hit him. Geraldo gave no response.12

One of accused’s friends, Cecilio, assisted accused in getting up. Cecilio seated accused on the cemented bench. Accused sensed someone was behind him. He looked to his left and saw Cecilio holding on to Geraldo and trying to prevent the latter from stabbing him. Geraldo had a bladed weapon with which to stab him.13

Geraldo uttered something which scared Cecilio. When Cecilio’s hold loosened, Geraldo lunged at accused with the bladed weapon. Accused evaded the thrust. Accused and Geraldo then wrestled with each other for possession of the knife. They fell on the ground, with Geraldo on top of accused. When the knife was about to touch the left side of his chest, accused pushed the knife back towards Geraldo and was able to stab him.14

After frustrating the knife attack on Geraldo, accused left and returned to his house. Fifteen (15) minutes later, accused’s brother-in-law, Antonio Malapitan, brought him to the latter’s house in Barrio Manggahan where he spent the night. The next morning, accused’s father arrived together with the police authorities. Accused surrendered. He submitted himself for medical examination.15 His examination revealed that he suffered two (2) slight injuries: one was ecchymosis or reddening, with slight swelling, of the right eyelid, and; the other was abrasion (“gasgas”) on the small and middle fingers of the left hand and on the toe of the left foot. Dr. Villalobos testified that these two (2) injuries may have been caused by contact with a hard object.16

Accused denied that after stabbing Geraldo, he also pursued Jojo Magsombol and threatened to stab him. He averred that prosecution witnesses Reynaldo Maullion and Nolasco Cilindro were not around at the time of the incident. However, he confirmed that Jojo Magsombol witnessed the incident.17

CRESENCIANO MALAPITAN corroborated accused’s testimony. He testified that on December 25, 1980, at about 5:00 p.m., he went to the house of Francisco Magsombol in Calumpang, San Luis, Batangas. Francisco asked him to assist in the preparation of food for the celebration of the baptism of Francisco’s daughter, Myleen.18

Cresenciano stayed in Francisco’s house until 7:00 p.m. that day. Thereafter, he and Francisco went to the house of Benjamin Magsombol where they ate and drank wine. At one time during their drinking spree, Cresenciano went outside Benjamin’s house to relieve himself. About four (4) meters away, he heard accused’s voice, inquiring: “Bakit mo ako sinuntok?” When he glanced towards the direction of the voice, he saw Geraldo in front of a store, attacking accused with a knife. Accused, however, was able to parry the stabbing blow. Accused and Geraldo then fell on the ground. After a while, he saw accused stand up and walk towards the direction of his house.19

The prosecution presented two (2) rebuttal witnesses in the persons of JUBY CELINDRO and CARMEN HERNANDEZ.

JUBY CELINDRO, the local civil registrar of San Luis, Batangas, presented the Certificate of Live Birth20 of Mylene Magsombol where it appears that Mylene was born in Calumpang, San Luis, Batangas on May 1, 1973.21 On the other hand, CARMEN HERNANDEZ the secretary of the parish priest of San Luis, Batangas, presented in court the Baptismal Certificate22 of Mylene Magsombol which showed that, contrary to the testimony of defense witness Cresenciano Malapitan, Mylene was baptized on December 28, 1975.23 Thus, these last two (2) witnesses refuted the claim of defense witness CRESENCIANO MALAPITAN that he was in the house of Francisco Magsombol on December 25, 1980 for the baptism of Francisco’s daughter, Mylene.

After trial, accused was acquitted of Grave Threats but was found guilty of Murder for the death of Geraldo Magsombol.24 The trial court appreciated the qualifying circumstances of treachery and evident premeditation against accused. The trial court found that the crime was committed with treachery by reason of the suddenness of accused-appellant’s attack on the victim. It also found the attendance of the qualifying circumstance of evident premeditation. The trial court surmised that the stabbing was the result of a fistfight between accused-appellant and the victim earlier that afternoon. The dispositive portion of the Decision reads:

WHEREFORE, the Court hereby finds accused guilty beyond reasonable doubt of having committed the Crime of Murder in Criminal Case No. 767-L and hereby impose on said accused the penalty of reclusion perpetua with all the accessory penalties provided by law; and to pay the heirs of deceased Geraldo Magsombol the civil indemnity in the sum of P30,000.00.

Accused is acquitted of Grave Threats in Criminal Case No. 768-L.25

Hence this appeal. Accused-appellant contends that:

I

THE TRIAL COURT ERRED IN TOTALLY DISREGARDING THE POSITIVE, CLEAR AND CONVINCING EVIDENCE OF APPELLANT.

II

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE VAGUE, CONTRADICTORY AND FABRICATED TESTIMONIES OF THE PROSECUTION WITNESSES.

III

THE TRIAL COURT COMMITTED GROSS MISAPPREHENSION OF FACTS AND/OR ITS FACTUAL CONCLUSIONS DO NOT FIND SUPPORT IN THE EVIDENCE.

IV

THE TRIAL COURT ERRED IN FINDING THAT TREACHERY AND EVIDENT PREMEDITATION ATTENDED THE COMMISSION OF THE OFFENSE.

V

THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

The assigned errors, being interrelated, shall be discussed jointly.

For the justifying circumstance of self-defense to prosper, the following elements have to be established: (a) there was unlawful aggression on the part of the victim; (b) the reasonable necessity of the means employed by accused to repel the aggression, and; (c) lack of sufficient provocation on the part of accused.26 In the case at bar, accused-appellant’s claim of self-defense, if true, has all the above elements. However, the records would bear that accused-appellant’s version of the incident was a complete fabrication.

Accused-appellant insists that the trial court erred in disregarding his claim of self-defense and in giving credence to the testimonies of the prosecution witnesses which were not supported by evidence. He cites that while Jojo Magsombol and Reynaldo Maullion testified that accused stabbed the victim only once, the postmortem examination revealed that the victim suffered two (2) wounds: one was a superficial linear abrasion (“gasgas”), and the other was the fatal stab wound. Accused-appellant contends that these two (2) wounds conclusively support his version that he and the victim grappled for the knife and that the victim’s death was merely the unfortunate consequence of his effort to defend himself.

We find accused-appellant’s contentions bereft of merit. Both wounds are located vertically on the left side of the victim’s abdomen. The first wound, a superficial linear abrasion (“gasgas”), was just a little above the stab wound. By the position of these wounds, it is probable that the abrasion was caused when the knife grazed the victim before penetrating his abdomen.

Likewise, accused-appellant cites the other injuries he sustained as supportive of his claim of self-defense. He claims that the reddening and swelling of his eyelid and the slight abrasions on his hand and foot proved that the victim punched him on the eye before they grappled for the knife. Accused-appellant’s injuries will not exculpate him. Dr. Villalobos, the municipal health officer who examined accused-appellant, testified that although the slight swelling of accused-appellant’s eyelid may have been caused by a fistblow, it was also possible that the same may have been due to other causes, namely, by mere rubbing of the eye, or if soap or other foreign object entered the eye.27 Moreover, it was established that earlier that day of December 25, 1980, at about 4:00 in the afternoon, accused-appellant and the victim engaged in a fistfight. The slight swelling of accused-appellant’s eyelid may have very well been inflicted on said occasion. As to the abrasions on accused-appellant’s hand and foot, Dr. Villalobos testified that they were caused by direct contact with a rough object. He opined that it was possible that accused-appellant could have stumbled while running and fell on his face which caused the swelling of the left eyelid and the abrasion on the left hand and left foot. 28

Accused-appellant faults the trial court for according weight to the testimonies of prosecution witnesses Reynaldo Maullion and Jojo Magsombol, the two being related to the deceased.29 He urges that these witnesses’ relationship to the victim detracts from their credibility.

We reject accused-appellant’s submission. Prosecution witnesses Reynaldo Maullion, Nolasco Cilindro and Jojo Magsombol are also residents of the same barrio. Accused-appellant himself admitted that they were all in good terms and he had no altercation with any of them.30 Except for the fact that Reynaldo Maullion and Jojo Magsombol were related to the deceased, accused-appellant could not point to any specific motive why these prosecution eyewitnesses would concoct such a serious charge against him. We have repeatedly held that mere relationship of a witness to an aggrieved party would not, by itself, taint his otherwise credible testimony nor disqualify him from taking the stand.31

Accused-appellant attempts to excuse his failure to present his three (3) friends (Cecilio Atienza, Rexell Banta and Charles Aseron) to corroborate his claim of self-defense by asserting that his friends allegedly refused to testify out of fear since, like the parties involved in the case, his friends were also residents of the same barangay.

We are not persuaded. In a number of cases, this Court has taken cognizance of the fear entertained by eyewitnesses to get involved in the solution of criminal cases. It is precisely for this reason that we generally allow reasonable leeway in the delay of witnesses in giving a statement or reporting a crime to the police. However, it would not in any way justify an accused’s failure of putting these fear-gripped witnesses on the stand. An accused is open to seek the compulsory processes of the court to compel recalcitrant witnesses to testify. The alleged fear entertained by accused-appellant’s friends was not sufficiently established. Nowhere in the records does it show that any of them was ever threatened by the family of the victim. We thus reject accused- appellant’s submission that his failure to present his three (3) friends as witnesses was justified and excusable. On the contrary, we find it incredible and highly suspect that an accused would prefer to languish in jail for a crime he did not commit than compel his witnesses to testify, unless, of course, accused is apprehensive that their testimonies would not be favorable to his cause.

In lieu of putting his friends on the stand to give an alleged eyewitness account, accused-appellant instead presented a perjured witness in the person of CRESENCIANO MALAPITAN to corroborate his testimony. Malapitan’s claim that on December 25, 1980, he was in Francisco Magsombol’s house hours before the stabbing incident for the baptism of the Francisco’s daughter, Myleen, was successfully discredited by the prosecution. The Certificate of Live Birth of Myleen Magsombol showed that she was born on May 1, 1973 and her Baptismal Certificate confirmed her baptism to have been held, not on December 25, 1980 as claimed by Malapitan, but on December 28, 1975 or five (5) years earlier.

On balance, we have the self-serving statement of accused-appellant and the perjured testimony of his corroborating witness Cresenciano Malapitan regarding the defense’s version of the events that transpired on that fateful day. Weighed against the consistent and credible testimony of two (2) prosecution eyewitnesses, the uncorroborated testimony of accused-appellant fails to persuade.

Nonetheless, we agree with accused-appellant that the crime committed is Homicide, neither treachery or evident premeditation having been proved to have attended its commission. The qualifying circumstance of evident premeditation cannot be appreciated against him for there was not a shred of evidence on record of the planning and preparation made by accused-appellant to commit the crime.32 Although there was a previous fistfight between the victim and accused-appellant, it was not categorically established that, by reason thereof, accused-appellant determined to kill the victim. Neither was there proof of the elements of evident premeditation, viz.: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender had clung to his determination; and (3) sufficient lapse of time between the determination to commit the crime and the execution thereof to allow the offender to reflect upon the consequences of his act.33 Likewise, the qualifying circumstance of treachery was not established. No evidence was adduced to prove that accused-appellant consciously and deliberately adopted his mode of attack to insure execution without risk to himself. It is settled that mere suddenness of an attack would not, by itself, constitute treachery.34 Thus, the crime committed in the case at bar is only Homicide for failure to prove the qualifying circumstances of treachery and evident premeditation.

We come now to the penalty. Under Article 249 of the Revised Penal Code, the penalty for Homicide is reclusion temporal. With the presence of the mitigating circumstance of voluntary surrender, without any aggravating circumstance to offset the same, the penalty should be imposed in its minimum period. Applying the Indeterminate Sentence Law, the minimum of the imposable penalty could thus be anywhere within the range of six (6) years and one (1) day to twelve (12) years of prision mayor, and the maximum imposable penalty should be within the range of reclusion temporal in its minimum period, i.e., twelve (12) years and one (1) day to fourteen (14) years and eight (8) months imprisonment.35

IN VIEW WHEREOF, the appealed Decision is hereby MODIFIED. Accused-appellant DANILO MAGSOMBOL is found guilty of Homicide and is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum, to thirteen (13) years, nine (9) months and ten (10) days of reclusion temporal as maximum. Further, the award of thirty thousand pesos (P30,000.00) as indemnity to the heirs of the victim Geraldo Magsombol is increased to fifty thousand pesos (P50,000.00) in accordance with current jurisprudence. No costs.

SO ORDERED.

Regalado, Romero and Mendoza, JJ., concur.

_________________________________

Footnotes

1 Original Records, p. 111.

2 Id., pp. 11-13.

3 TSN, August 25, 1982, pp. 3-4; TSN, September 30, 1982, pp. 3-4, 8-9.

4 TSN, September 30, 1982, pp. 12 & 22.

5 Id., pp. 24-28.

6 TSN, March 7, 1983, pp. 5-7.

7 TSN, June 21, 1982, pp. 6-13.

8 TSN, November 4, 1982, pp. 7-9.

9 Id., pp. 15-21.

10 TSN, September 17, 1984, pp. 4-6.

11 Id., pp. 8-13.

12 Id., pp. 14-15.

13 Id., pp. 23-24.

14 Id., pp. 25-30.

15 Id., pp. 31-36.

16 TSN, January 27, 1988, pp. 11-14.

17 Id., pp. 37-40.

18 TSN, September 8, 1987, pp. 6-8.

19 Id., pp. 9-13.

20 Exhibit “M.”

21 TSN, January 24, 1990, pp. 2-4.

22 Exhibit “N.”

23 TSN, January 24, 1990, pp. 5-6.

24 Decision, dated August 13, 1990; Penned by Executive Judge Glicerio L. Cruz, Presiding Judge, Regional Trial Court, Region IV, Branch V, Lemery, Batangas; Rollo, pp. 231-242.

25 Rollo, p. 242.

26 Article 11, par. 1, Revised Penal Code.

27 TSN, March 15, 1988, 16-23.

28 TSN, January 27, 1988, pp. 22-23.

29 Jojo Magsombol was a first cousin of the deceased, while Reynaldo Maullion was an uncle of the deceased, November 24, 1986, pp. 3-4.

30 TSN, July 15, 1986, pp. 3-5; TSN, September 15, 1986, pp. 3-4.

31 People v. Nitcha, G.R. No. 113517, January 19, 1995, 240 SCRA 283; People v. Abapo, G.R. Nos. 93632-33, December 28, 1994, 239 SCRA 469; People v. Ta&ntildeote, G.R. No. 109769, November 28, 1994, 238 SCRA 443.

32 People v. Soldao, G.R. No. 80225, March 31, 1995, 243 SCRA 119; People v. Morin, G.R. No. 101794, February 24, 1995, 241 SCRA 709.

33 People v. De la Cruz, G.R. No. 111568, March 2, 1995, 242 SCRA 129.

34 People v. Teehankee, Jr., G.R. Nos. 111206-08, October 6, 1995; People v. Supremo, G.R. No. 100915, May 31, 1995.

35 People v. Nemeria, G.R. No. 96288, March 20, 1995, 242 SCRA 448, citing People v. Amaguin, G.R. No. 54344, January 10, 1994, 229 SCRA 166.

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