349 Phil. 966
PUNO, J.:
Appellants
Cristituto Cortes and Ariel Cortes seek a review of the Decision of the RTC of
Cebu, Branch 28, Mandaue City, convicting them of murder.[1] Cristituto was sentenced to suffer
the penalty of reclusion perpetua while Ariel was imposed the indeterminate
penalty of 10 years and 1 day of prision mayor as minimum to 17 years, 4 months
and 1 day of reclusion temporal as maximum in view of his voluntary surrender. They were also ordered to pay jointly and
severally the heirs of the victim, Juanito Perez, the sum of P50,000.00
and the cost of suit proportionately.
The Information
against the accused reads:
"The State accuses CRISTITUTO CORTES Y PALCATAN and ARIEL CORTES Y PLEBIAS of the crime of Murder committed as follows:
"That on or about the 6th day
of September 1992, in the City of Mandaue, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, with deliberate intent to kill
and with treachery and evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and stab one Juanito Perez with a
kitchen knife, thereby inflicting upon the latter mortal wounds at his body
which caused his death soon thereafter.
"CONTRARY TO LAW."
Accused Ariel
bargained to plead guilty to the crime of homicide. His offer was rejected by the prosecuting fiscal and the
relatives of Juanito Perez. Both
accused then pled not guilty to the
charge of murder and were tried.
The evidence for
the prosecution shows that on September 6, 1992 at about 12:30 a.m., Roel
Flores, Renato Perez and Juanito Perez were drinking beer in front of Helen's
store located inside the Mandaue City Public Market. Less than three arms length away was the store of Emma Cortes,
the mother of accused Ariel.
After a bottle
of beer, Roel Flores and Juanito Perez went across the store of Helen to answer
the call of nature. They stood three
arms length away from each other. Accused Ariel was then lying on a bamboo bench outside Emma's store and
talking to his co-accused Cristituto, his cousin. All of a sudden, accused Ariel stood up, approached Juanito from
behind, and stabbed him twice with a kitchen knife. Juanito sustained wounds on his left armpit. He ran but was chased by accused Cristituto
who boxed him on the right jaw. The victim
slumped on the ground. Roel Flores
rushed towards the victim and loaded him in a van which brought him to the Southern
Island Medical Center. The effort was
futile. Juanito died.
A balut vendor,
Servillano Remolizan, testified that he passed by Emma's store before the
incident happened. He overheard accused
Ariel say to his co-accused Cristituto: "[i]f a young fellow by the name
of Juanito will pass by, I will stab." Cristituto replied: "[i]f someone will come to the aid of that fellow, I will also stab
that person."[2] Later, he saw a young man come,
urinate and while relieving himself was stabbed twice by accused Ariel. The victim ran, was pursued and boxed by
accused Cristituto. The two ran away
and Roel Flores assisted the victim. He
came to know that the victim was Juanito Perez.
Accused Ariel
admitted stabbing Juanito. He claimed,
however, that he defended his co-accused Cristituto who was being mauled by the
victim. Cristituto fell in a canal and
lost consciousness. He shouted at the
victim who tried to attack him. He
stabbed the victim twice with a knife and then surrendered to the police.
Accused Cristituto
corroborated Ariel's story. He said the
victim arrived at the store and immediately choked him. The victim then boxed him at his midsection. He lost consciousness which he regained only
in the police station. He presented a
medical certificate dated September 28, 1992 issued by Dr. Allan Son of the
Southern Islands Hospital to prove his injuries.[3]
The trial court
convicted the accused of murder. It found conspiracy. It ruled there was treachery. It appreciated the mitigating circumstance of voluntary surrender in
favor of accused Ariel.
In this appeal,
the appellants contend:
I
The trial court erred in not appreciating in favor of accused-appellant Ariel Cortes the justifying circumstance of defense of a relative despite its being proved by clear and convicting evidence.
II
The trial court erred in finding that accused-appellants conspired to kill the victim.
III
The trial court erred in finding accused-appellants guilty beyond reasonable doubt of the crime of murder.
We find no merit
in the appeal.
The trial court
did not err in rejecting appellants' plea for exoneration on the ground of
defense of a relative. For this plea
to succeed, the appellants must prove: (1) unlawful aggression on the part of
the victim; (2) reasonable necessity of
the means employed to prevent or repel it; and (3) in case the provocation was
given by the person attacked, the one making the defense had no part therein.[4]
Our running
jurisprudence is that the unlawful aggression of the victim must be clearly
established by evidence.[5] In the case at bar, the appellants
miserably failed to prove the unlawful aggression of the victim. On the contrary, two witnesses - Roel Flores
and Servillano Remolizan - testified that appellant Ariel stabbed the victim
without any provocation. Both witnesses
have no motive to fabricate their testimonies, especially Servillano, the balut
vendor. The contrary story of the
appellants does not deserve any credence. They were not corroborated by any neutral witness. Even the documentary evidence repudiate
their version. In the witness chair,
appellant Ariel declared he stabbed the victim who was mauling his co-appellant
Cristituto. In the police report,[6] however, he said he was the one boxed by the victim. Appellant Cristituto's evidence was
similarly contradictory. In the witness
stand, he said he was boxed at his midsection. His medical certificate, however, showed he had scars on various parts
of his body except his midsection. Thus, for failing to prove unlawful aggression on the part of the
victim, appellants' plea of defense of relative cannot succeed.
We also hold
that the trial court correctly found that the appellants conspired to kill
Juanito Perez. Article 8, paragraph 2
of the Revised Penal Code states that "conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide
to commit it." To establish conspiracy, two or more persons must be shown
to come to an agreement concerning the commission of a felony. It is not, however, necessary that direct
proof be adduced to establish such agreement. It can be inferred from the acts of the accused which clearly manifest a
concurrence of wills, a common intent or design to commit a crime. If it is proved that two or more persons
aimed by their acts towards the accomplishment of the same unlawful object,
each doing a part so that their acts, though apparently independent, were in
fact connected and cooperative, indicating a closeness of personal association
and concurrence of sentiment, then a conspiracy may be inferred.[7]
The conspiracy
of the appellants to kill the victim was clearly proved. They were overheard by Servillano
Remolizan, the balut vendor, expressing
their plan to stab the victim and anybody who would come to his aid. They executed their plan when they saw the
victim. Their mutual acts show their
unity of mind to kill the victim.
We also hold
that the trial court correctly convicted appellants of the crime of murder considering
that the killing of Juanito Perez was attended by the qualifying circumstance
of treachery. Treachery is present when
the offender employs means, methods or forms which tend directly and especially
to insure the execution of the crime, without risk to himself arising from the
defense which the offended party might make. Thus, it is our constant ruling that treachery is present when the
attack is unexpected, and renders the victims unable to defend himself.[8]
In this case,
treachery is evident from the fact that when appellant Ariel Cortes saw Juanito Perez relieving himself, he
immediately stood up from the bamboo bench, walked behind the victim and suddenly stabbed the victim sans
provocation or warning. The attack was
swift, deliberate and unexpected, and afforded the hapless, unarmed and
unsuspecting victim no chance to defend himself. And when the victim tried
to escape, the appellant Cristituto
chased him and upon gaining on him, boxed him on the right jaw causing him to
fall to the ground.
IN VIEW
WHEREOF, the
Judgment appealed from is AFFIRMED. Costs against accused-appellants.
SO ORDERED.
[1]
Criminal Case No. DU-3115, Judge Mercedes Gozo-Dadole penned the
Decision.
[2]
TSN, Servillano Remolizan, March 23, 1993, p.3.
[3]
Exhibit "2", Original Records, p. 28.
[4]
See paragraph 2 of Article 11 of the Revised Penal Code.
[5]
People v. Quino, 232 SCRA 400 [1994].
[6]
Exhibit, 1, 1-A, Original Records, pp. 26-27.
[7]
People v. Layno, et al., G.R. No. 110833, November 21,
1996.
[8]
People v. Isleta, G.R. No. 114971, November 19, 1996.