402 Phil. 547
That on or about the 2nd day of May, 1993, in Quezon City, Philippines, the said accused [CESAR GIVERA], conspiring together, confederating with EPEFANIO GAYON y GERALDE and ARTURO GAYON y GERALDE, and mutually helping one another who were charged with the same offense at the Regional Trial Court of Quezon City, Branch 104, and docketed as Criminal Case No. Q-93-44315, did, then and there, willfully, unlawfully and feloniously, with intent to kill, taking advantage of superior strength, with evident premeditation and treachery, attack, assault, and employ personal violence upon the person of EUSEBIO GARDON y ARRIVAS, by then and there stabbing him with a knife hitting him on the different parts of his body, and striking him with a piece of stone on the head, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of EUSEBIO GARDON y ARRIVAS.Accused-appellant pleaded not guilty during his arraignment on April 10, 1996, whereupon he was tried.
CONTRARY TO LAW.
WHEREFORE, the judgment appealed from is MODIFIED. We instead find accused-appellants EPIFANIO GAYON, ARTURO GAYON and MAXIMO GIVERA guilty beyond reasonable doubt of MURDER committed with grave abuse of superior strength and imposes upon each of them the penalty of reclusion perpetua with the accessory penalties provided by law, and ordering them to indemnify the heirs of the deceased Eusebio Gardon in the amount of P100,000.00. Costs against accused-appellants.For the prosecution, the victim's daughter Milagros Gardon and his niece Melinda Delfin were presented as witnesses. On the other hand, only accused-appellant testified in his defense.
Melinda Delfin, niece of the victim, corroborated the testimony of Milagros Gardon. She said:
Q: Particularly about 4:00 p.m., were you at your residence at that time? A: Yes, sir. Q: And what were you doing there at that time? A: I was in the house because I was watching my father, sir. Q: What was your father doing at that time? A: I let him go to sleep because he was a little bit drunk, and I was watching him so that he will not go outside. Q: Why do you say you were watching him so that he would not anymore go out? A: Because he was warned by [accused-appellant Cesar Givera] that if he goes outside, he will kill my father. Q: At that time and place while you were watching your father, what else happened if any? . . . . A: [O]ur house was being stoned. Q: Who was stoning your house? Could you tell us who was throwing stones to your house? . . . . COURT: She mentioned that because her father was not coming out of the house, the accused started stoning the house. Q: Who was stoning your house? A: Cesar Givera, sir. Q: Was he alone at that time? A: They were in a group, sir, but he was the only one stoning the house. And the other one, who was already arrested, by the name of Onying went inside the house. Q: You said a while ago that there was somebody with Cesar who went to your house, could you recall that somebody? A: Onying [Epifanio Gayon], sir. Q: You said he was already "nakakulong"? A: Yes, sir. Q: Now, what happened after this person Cesar and the other one Onying went inside the house? A: Onying asked my father to go out of the house while Cesar was stoning the house. Onying led my father out of the house, and when they were already outside, Cesar was waiting for them. Then Cesar scampered away and my father followed him. Cesar caused my father to run after him until they reached the place where there was another person, and that person stabbed my father. Q:
So how many persons in all have you seen?
A: They were four in all, sir.
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Q: What did these 4 persons do when her father was with them if any? . . . . A: Cesar was stoning the house. Then Onying got my father from the house. Turing [Arturo Gayon] told the other one to stab my father while the one who stabbed my father was waiting under the bridge. . . . . Q: What happened to your father after you said he was stabbed or mauled? A: After he was stabbed, the person who stabbed him ran away, sir. On cross-examination, Milagros Gardon said: Q: Who else were with you at that time? A: My brother and sister, sir. Q: They were Laura Gardon and Leonardo Gardon, correct? A: Yes, sir. Q: And your father inside the house because he was already resting after having been from a drinking spree, correct? A: Yes, sir. . . . . Q: And you were watching TV at that time, correct? A: Yes, sir. Q: And then suddenly you heard stones being thrown on the roof of your house, is that correct? A: Yes, sir. . . . . Q: This Onying [Epifanio Gayon] suddenly entered your house, correct? A: Yes, sir. Q: He was alone when he entered your house, correct? A: Yes, sir. Q: How did he effect his entrance in your house? A: He went inside directly, sir. . . . . Q: At that time were you in a position so as to see him actually effect his entrance through the front door? A: Yes, sir. Q: Why? Where were you at that time? A: I was in the sala, sir. Q: You were in the sala right next to your father, is that correct? A: Yes, sir. Q: And likewise with your two other companions Laura and Leonardo, they were situated right near to your father, correct? A: Yes, sir. . . . . Q: Now, when this Onying entered the house, did he call out the name of your father if you can remember? A: Yes, sir. Q: And your father, did he give any response thereto? A: Yes, sir. Q: What was his response if any? A: He asked Onying if he need anything. And Onying asked him to go out with him. . . . . Q: And your father stood up and joined Onying in going out of the house? A: Yes, sir.
. . . .
Q: Then you together with your two other companions got back to watching the television show is that correct? A: No, sir. Q: But you stayed inside the house, you and your two other companions? A: No, sir. Q: Now, thereafter you heard stones thrown again towards your house, is that correct? A: Yes, sir. Q: But just the same, you did not peep out through any opening of your house for safety? A: We were already outside when they were stoning the house. We followed him outside. . . . . Q: Was Onying also hit by any of those stones? A: No, sir. Only my father and my sister. Q: What is the name of that sister of yours who was also hit? A: Laura Gardon, sir.
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Q: And where was Laura hit? A: At her left shoulder, sir. Q: And how many stones if you know hit Laura? A: Only one, sir, because while they were stoning they were running away. Q: Who were these people running away? A: Onying and Cesar, sir. Q: Are you saying that Onying also stoned your father? A: No, sir. Q: Because he was right next by your father at that time, that is why he was not at all stoning your father, correct? A: He was boxing him. . . . . Q: You saw Cesar Givera actually stoning towards the direction of your father, is that what you mean? A: Yes, sir. . . . . Q: And your father followed Cesar Givera, is that what you mean? A: Yes, sir. Q: Likewise, with Onying, he followed Cesar Givera? A: Yes, sir. Q: And they ran quite a distance, correct? A: Yes, sir. Q: And then you lost sight of them yes or no? A: No, sir. Q: But you stayed in the house, correct? A: No, sir. I was outside the house. When the incident happened, I was already outside the house. Q: But because you did not state that you also followed your father as he ran after Cesar, does that mean that you just stayed in front of your house? A: We stopped because we already saw the place where my father was stabbed, that is why we did not follow them. Q: How far did they get, using as reference the front door of your house? How far did they get as they ran away? A: About fifteen meters away, sir. Q: Did they not turn corners? A: It is straight, sir. They only made a turn after the stabbing incident, sir. Q:
They turned a corner after your father was stabbed?
A: Yes, sir, because they ran away, sir. Q: Only one of the accused stabbed your father, correct? A: Yes, sir. Q:
And who was this?
A: Bingo Givera [Maximo Givera], sir. Q: Did you actually see him stab your father? A: Yes, sir. On re-direct examination, Milagros said: Q: Madam witness, you said a while ago that you saw while your father was stabbed, and the name of that person is Onying who stabbed your father? A: Maximo Givera, sir. . . . . Q: Now, when you saw Maximo Givera stab your father, where was Cesar at that time? . . . . A:
He was also at the same place, sir.
Q: And the other 3 accused Arturo Gayon and Efipanio Gayon, could you tell us where they were when Maximo was stabbing your father? A: They were also at that place, sir.
To prove the fact and cause of death of Eusebio Gardon, the prosecution presented in evidence the testimony of medico-legal officer, P/Maj. Florante Baltazar, given in Criminal Case No. Q-93-44315. The testimony shows that the victim sustained one fatal stab wound possibly caused by a single bladed weapon. In addition, he sustained abrasions in his lower chin, possibly hitting a rough surface, as well as an incised wound caused by a bladed weapon, on his posterior middle left arm. The stab wound appears to be fatal because it pierced the pericardium and left ventricle of the heart, which could be the immediate effect of hemorrhage, shock and eventual death of the victim. A death certificate evidencing the death of the victim was presented by the prosecution.
At about 4:00 p.m. of May 4, 1993, could you tell us where you were at that time?
A: Yes, sir, I was about to reach the house of Eusebio Gardon. Q: What was your purpose in going there? A: Eusebio Gardon called me up because he has just come from Bicol and he will give me rice. Q: You said you were about to arrive at the residence of Eusebio Gardon at 4:00 p.m. on May 4, 1993, what did you notice or observe when you were about to arrived at that place of his residence? A: I saw "Onying" [Epifanio Gayon] with his hand on the shoulder of Eusebio Gardon going out of their yard. (Nakita ko si Onying akbay akbay si Eusebio Gardon palabas sa bakuran nila.) . . . . Q: What else did you notice? A: When I came out of the gate I saw Cesar Givera boxed Eusebio Gardon. (Paglabas ko ng bakuran nakita ko si Cesar na sinalubong ng suntok si Eusebio Gardon.) . . . . Q: What else did you see aside from the fact that you saw Cesar Givera boxing Eusebio Gardon? A: Cesar boxed him and also Onying boxed him, they both helped each other in boxing Eusebio Gardon, and then they back to the house of Eusebio Gardon and my uncle followed them. Not quite far, Bingo [Maximo Givera] and Turing [Arturo Gayon] were there. . . . . Q: And what happened when you said this Bingo was there? A: Onying and Cesar gave fistic blows to Eusebio Gardon and he was also stabbed by Bingo, and they were also kicking Eusebio Gardon. Q: Eusebio Gardon was boxed by Onying and Cesar Givera? A: Yes, sir. Q: And stabbed by? A: Bingo, sir. Q: Actually, how many persons were there when [Eusebio] Gardon was stabbed and being boxed? A: I saw four of them, sir. Q: Would you made these four (4)? A: Turing, Bingo, Cesar and Onying. . . . . Q:
And what happened to Eusebio Gardon, whom you said was boxed, mauled and then stabbed?
A: He was lying down under the bridge for about thirty (30) minutes, and then his children arrived. . . . . Q: You said earlier that you saw Cesar Givera and Epifanio Givera threw stones towards the victim's house, is that true? PROSECUTOR CONCHA: Excuse me, Your Honor, the witness said she saw that fellow by the name of Onying and Cesar boxing - - ? WITNESS:
"Suntok, bato at sipa."
ATTY. MASCALAS: Q: Where did you see them doing these acts on Eusebio? A: Outside the premises, sir. Q:
A: The premises of Eusebio Gardon, sir. Q: Did you not say earlier that Onying came out with Eusebio Gardon from the latter's house? A: I saw Onying, "akbay-akbay niya.." Q: You even saw Onying embracing Eusebio Gardon, correct? A: Yes, sir. . . . . Q: Were there stones being hurled to Onying and Eusebio? A: Yes, sir. Q: Did you see who were throwing those stones? A: It was Cesar, sir. . . . . Q: Did you see if Gardon was hit by any of these stones? A:
Q: And you also saw Onying hit by stones, correct? A: No, sir. . . . . Q: Who boxed your uncle? A: Cesar, sir. Q: Are you saying that Cesar while throwing stones to your uncle was so close to him that he was able to box him? A: Because they were advancing towards my uncle and Onying. They were going towards them. . . . . Q: And when they were able to come near, how near did Cesar get to your uncle? A: Maybe three to four meters, sir. Q: That was when Cesar boxed your uncle? A: Not yet, sir. Q: When did Cesar box your uncle? A: When they come near to my uncle.
. . . .
Q: And then Cesar Givera ran away and your uncle gave chase? A: Yes, sir. Q: And upon reaching the bridge which is about fifteen (15) meters away from the victim's house, you saw Bingo stabbed your uncle? A: Yes, sir. Q: There were only -- You said that there were only four (4) persons in that place where your uncle was stabbed and those persons do not include Milagros Gardon? A: No, sir. Q: Because Milagros Gardon was still in their house? A: She was already outside their house. Q: She was outside their house -- although outside their house she was still inside the premises of their lot? A: She was still inside, but she saw the incident. Q: And that premises of the victim was about 15 meters away from the bridge where the alleged incident took place? A: Yes, sir. Q: Were you also with Milagros Gardon at the time that stabbing was done? A: We were not together but I was approaching their house. . . . . Q: So you were also about 15 meters away from the bridge where the alleged incident took place? A: Yes, sir. Q: And that is your distance when you were claiming that you saw this incident? A: It was just a little less. (Makalampas lang ng konti). . . . . Q: It was Turing Gayon [Arturo Gayon] whom you heard shout: "Sige, todasin na yan!" A: Yes, sir. Q: And it was Bingo [Maximo Givera] whom you saw stabbed your uncle? A: Yes, sir. . . . . Q: You said that it was Bingo who stabbed the victim Eusebio Gardon. You said that you saw it? A: Yes, sir. Q: What was Cesar Givera doing when the victim was stabbed by Bingo? A: They were kicking and boxing my uncle. Q: Givera was doing that? I was asking you about Cesar Givera? A: He was boxing and kicking my uncle. Q: Who, Eusebio Gardon, the victim? A: Yes, sir.
WHEREFORE, judgment is hereby rendered finding the accused Cesar Givera guilty beyond reasonable doubt of the crime of murder as charged.Hence, this appeal. Accused-appellant's sole assignment of error is that-
The accused is hereby sentenced to reclusion perpetua, with the accessory penalties of the law, and to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs.
DUE TO THE PRESENCE OF REASONABLE DOUBT, THE COURT A QUO HAS COMMITTED AN ERROR IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGEDThe appeal has no merit.
It is noteworthy that both Milagros Gardon and Melinda Delfin knew accused-appellant and the other assailants, and that in fact some of them are related to the witnesses. Accused-appellant has not shown that these witnesses were motivated by ill will against him. As correctly observed by the trial court:
Q: The police did not get your statement because you did not tell them that you were an eyewitness and if it is true, correct? A: No, sir. Q: You were only asked by your relatives - - You testified in this case in the sala of Judge Asuncion after the children of the victim asked you to? Correct? A: They did not tell me. I voluntarily testified, sir, because I saw the incident. Q: What do you mean by saying that you voluntarily testified? Did you just come to court and asked the court to take you as witness in this case? A: No, sir, because in the police station the police told me that they will not take my statement. They will just "ihahabol na lang ako." Q: Did you not inquire from them why your statement will not longer be taken and what do you mean by that "ihahabol na lang ikaw"? A: I did not ask because I do not know anything about that. That was the first time that incident happened to my life.
[T]he court has no reason to doubt the testimonies of the prosecution witnesses.All things considered, we think the trial court correctly dismissed accused-appellant's claim and gave credence to the testimonies of the prosecution witnesses. From the fact that the victim died and that accused-appellant and his companions were the last persons seen with the victim before he died, it can be concluded that they are responsible for the victim's death.
In the first place, accused Cesar Givera has not shown any motive on the part of the prosecution witnesses to testify as they did against said accused.
Second, accused Cesar Givera and the other accused in this case are all residing within the vicinity where the crime was committed, and are even related by affinity to the deceased. There is, therefore, no reason to doubt their identification by the prosecution witnesses."
. . . [T]reachery will also be deduced from the evidence on record. The deceased was unarmed when he was stabbed by on Maximo Givera and boxed and kicked by accused Cesar Givera and two other accused.Treachery is the deliberate and unexpected attack on the victim, without any warning and without giving him an opportunity to defend himself or repel the initial assault. For treachery to be appreciated, it must be shown to be present at the inception of the attack, otherwise, even if present at a subsequent stage, it cannot be considered. In the instant case, the victim cannot be said to have been totally oblivious of the impending attack by all the group of accused-appellant. He thus had every opportunity to escape from the attack. In fact, his daughter Milagros testified that prior to the stoning incident, the victim had been threatened with harm by accused-appellant the moment he went out of his house, which is why she stayed beside her father to make sure he did not go out of the house. Indeed, the victim had been forewarned of the danger posed by accused-appellant and his group.
. . . From the evidence adduced, accused Givera and Epifanio Gayon taunted and provoked the deceased by throwing stones at him and then lured him to run after them towards the bridge where the other accused were lying in wait ready to pounce on the deceased without risk to themselves as the deceased was then defenseless."
Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part thru the fault of such adverse party. But when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent.Still and all, the fact and cause of death of the victim had been sufficiently proved by the accounts of the two eyewitnesses, corroborated by the offer in evidence of the death certificate of the victim.