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SECOND DIVISION

G.R. No. L-80457 September 29, 1988

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. CASIANO ROSE, SR. (deceased), CASIANO ROSE, JR. and FELICISIMO ROSE, alias "Timong," accused-appellants.

The Office of the Solicitor General for plaintiff-appellee.chanrobles virtual law library

Adolfo M. Iligan for accused-appellants.

PARAS, J.:

The accused-appellant Casiano Rose, Jr., appeals from the Decision of the Regional Trial Court, Branch III, Kalibo, Aklan finding him guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua.

Also charged initially were Casiano Rose, Sr. and Felicisimo Rose. The information filed by the Second Assistant Provincial Fiscal reads-

The undersigned Second Assistant Provincial Fiscal of Aklan hereby accuses CASIANO ROSE, SR., CASIANO ROSE, JR. and FELICISIMO ROSE, alias "TIMONG" of the crime of MURDER, committed as follows: chanrobles virtual law library

That on or about the 17th day of October, 1981, at 12:30 o'clock in the afternoon, in Barangay Rosario, Municipality of Malinao, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, and mutually helping one another with treachery, evident premeditation and abuse of superior strength, without just motive, and while armed with knives and with intent to kill one FRANCISCO IMACULATA, did then and there willfully, unlawfully and feloniously attack, assault and wound the said FRANCISCO IMACULATA, thereby inflicting upon the latter mortal wounds, as follows: chanrobles virtual law library

Injuries: chanrobles virtual law library

1. Stab wound back 3 inches lateral to the spinal cord at the level of the 7th rib, 1� inches opening 6 inches deep.chanroblesvirtualawlibrary chanrobles virtual law library

2. Stab wound back, � inch opening at the level of the 8th rib.chanroblesvirtualawlibrary chanrobles virtual law library

3. Stab wound right lumbar area, 1 inch wide opening.chanroblesvirtualawlibrary chanrobles virtual law library

4. Stab wound left arm thru and thru.chanroblesvirtualawlibrary chanrobles virtual law library

5. Incise wound, 1� inches long skin deep right forearm.chanroblesvirtualawlibrary chanrobles virtual law library

as per Autopsy Report of Dr. Querubin R. Iguban Rural Health Physician, Main Health Center, Malinao, Aklan, hereto attached and forming integral part hereof, which wounds directly caused the death of the said FRANCISCO IMACULATA.chanroblesvirtualawlibrarychanrobles virtual law library

That as a result of the criminal acts of the herein accused, the heirs of the deceased FRANCISCO IMACULATA suffered the following damages: chanrobles virtual law library

1. P12,000.00 as actual and compensatory damages; chanrobles virtual law library

2. P12,000.00 as moral damages; and chanrobles virtual law library

3. P5,000.00 as exemplary damages.chanroblesvirtualawlibrary chanrobles virtual law library

CONTRARY TO LAW. (pp. 56-57, Rollo)

All the accused pleaded not guilty when arraigned. But, in the course of the trial, Casiano Rose, Sr. died. Consequently, the lower court dismissed the case with respect to him. Trial thus proceeded with respect to Casiano Rose, Jr. and Felicisimo Rose only.chanroblesvirtualawlibrary chanrobles virtual law library

After trial, the lower court rendered a decision finding both accused guilty as charged. The dispositive portion of the decision reads-

WHEREFORE, premises considered, the Court finds accused Casiano Rose, Jr. and Felicisimo Rose GUILTY beyond reasonable doubt of the crime of Murder. The Court hereby sentences each of them to a penalty of RECLUSION PERPETUA, with costs.chanroblesvirtualawlibrary chanrobles virtual law library

They are hereby ordered to pay the heirs of the deceased Felicisimo Imaculata the sum of P30,000.00 for the death of the said deceased, P12,000.00 for moral damages, P5,000.00 for exemplary damages and P3,000.00 for funeral expenses chanrobles virtual law library

The claim for loss of earnings is hereby denied for being speculative.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. (p. 16, Decision, p. 341, Record; pp. 2-3, Brief for Appellee; p. 88, Rollo)

As stated earlier, only Casiano Rose, Jr. appealed his conviction to this Court contending that the lower court erred in giving credence to the evidence of the prosecution and in convicting him of the crime charged (p. 1, Appellant's Brief; p. 48, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library

The prosecution narrates the facts as follows:

The stabbing incident in question happened during a fiesta at barangay Rosario, Malinao, Aklan (p. 3, tsn, May 29, 1984).chanroblesvirtualawlibrary chanrobles virtual law library

At about past noon of October 17, 1981, people gathered at the barangay plaza to watch the ball games played as part of the festivities. Present among those who watched the ballgames were: Francisco Imaculata, his sister Rosalia, Casiano Rose, Sr. with his two sons Casiano Jr. and Felicisimo and a certain Larry Fernando. Rosalia Imaculata stood near her brother Francisco. Larry Fernando, on the other hand, stood about nine (9) meters away from Rosalia Imaculata and her brother Francisco. Months prior to the fiesta, Francisco Imaculata killed Danilo Rose, a member of the Rose family (pp. 7, 9, tsn, May 29, 1984).chanroblesvirtualawlibrary chanrobles virtual law library

While the basketball game was being played, Casiano Rose, Sr., coming from behind, suddenly stabbed Francisco Imaculata at the back. Francisco Imaculata ran away despite his wound but Casiano Rose, Jr. and Felicisimo Rose chased him. After a short chase, Casiano Rose, Jr. and Felicisimo Rose overtook Francisco Imaculata and stabbed him at the back and side of his body. As a result Francisco Imaculata fell to the ground (pp. 4-7, Id., pp. 6-10, tsn, Aug. 7, 1984).chanroblesvirtualawlibrary chanrobles virtual law library

Immediately after the stabbing incident, Francisco Imaculata was rushed to the puericulture center but he expired on the way as a result of the stab wounds sustained by him. Casiano Rose, Sr., Casiano Rose, Jr. and Felicisimo Rose, on the other hand, fled (p. 5, tsn, May 29, 1984).chanroblesvirtualawlibrary chanrobles virtual law library

The next day, Dr. Querubin Iguban, Municipal Health Officer of Malinao, Aklan, performed an autopsy on the cadaver of Francisco Imaculata. His post-mortem report on the injuries sustained by Francisco Imaculata and on the cause of his death states as follows: chanrobles virtual law library

Injuries: chanrobles virtual law library

1. Stab wound back 3 inches lateral to the spinal cord at the level of the 7th rib, 1� inches opening 6 inches deep.chanroblesvirtualawlibrary chanrobles virtual law library

2. Stab wound back, � inch opening at the level of the 8th rib.chanroblesvirtualawlibrary chanrobles virtual law library

3. Stab wound right lumbar area, 1 inch wide opening.chanroblesvirtualawlibrary chanrobles virtual law library

4. Stab wound left arm thru and thru.chanroblesvirtualawlibrary chanrobles virtual law library

5. Incise wound, 1� inches long skin deep right forearm.chanroblesvirtualawlibrary chanrobles virtual law library

Cause of Death: chanrobles virtual law library

Massive hemorrhage due to stab incise wounds. (Exh. A, p. 4, Record; pp. 3-5, Brief for Appellee; p. 88, Rollo)

On his part, appellant interposed the defense of denial and alibi. Thus, he testified that he was in Kalibo, Aklan on the date of the incident. He was not in Rosario, Malinao where the incident occurred. He declared he was told the deceased was stabbed by his father Casiano Rose, Sr.chanroblesvirtualawlibrary chanrobles virtual law library

The issue in this case therefore, rests on credibility. In convicting appellant, the trial court relied heavily on the testimonies of prosecution witnesses Larry Fernando and Rosalia Imaculata which categorically pointed to him as one of the assailants. The testimony of eyewitness Larry Fernando is as follows:

Q In the afternoon of October 17, 1981 or to be exact at about 12:30 do you remember where were you?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Please tell the court where were you at that time? chanrobles virtual law library

A At the Plaza.chanroblesvirtualawlibrary chanrobles virtual law library

Q In the Plaza of what place? chanrobles virtual law library

A Rosario.chanroblesvirtualawlibrary chanrobles virtual law library

Q What municipality and province? chanrobles virtual law library

A Malinao, Aklan.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q What were you doing in the plaza of Rosario, Malinao, Aklan at about 12:30 in the afternoon of October 17, 1981? chanrobles virtual law library

A I was there to see games.chanroblesvirtualawlibrary chanrobles virtual law library

Q Why, what was the game going on at the plaza at that time? chanrobles virtual law library

A Volleyball games and basketball.chanroblesvirtualawlibrary chanrobles virtual law library

Q While you were watching volleyball and basketball games at the plaza of Rosario, Malinao, Aklan at about 12:30 in the afternoon of October 17, 1981 do you recall any unusual incident that happened? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Please tell the court that incident? chanrobles virtual law library

A Somebody was stabbed.chanroblesvirtualawlibrary chanrobles virtual law library

Q Who was that somebody who was stabbed? chanrobles virtual law library

A Francisco Imaculata.chanroblesvirtualawlibrary chanrobles virtual law library

Q Who stabbed Francisco Imaculata? chanrobles virtual law library

A Casiano Rose.chanroblesvirtualawlibrary chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q Now, what did Francisco Imaculata do if any after he had been stabbed once by Casiano Rose, Sr.chanroblesvirtualawlibrary chanrobles virtual law library

A He run away but he was chased by Casiano Rose, Jr.chanroblesvirtualawlibrarychanrobles virtual law library

Q Besides Casiano Rose, Jr. who else, if any, chased Francisco Imaculata when he ran away? chanrobles virtual law library

A Felicisimo Rose.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q What happened if any to Francisco Imaculata after he had been overtaken by Casiano Rose, Jr. and Felicisimo Rose? chanrobles virtual law library

A They stabbed him.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, when you say "they" to whom are you referring to? chanrobles virtual law library

A Casiano Rose, Jr. and Felicisimo Rose.chanroblesvirtualawlibrary chanrobles virtual law library

Q You said that Casiano Rose, Jr. stabbed Francisco Imaculata, how many times did Casiano Rose, Jr. stab Francisco Imaculata? chanrobles virtual law library

A Twice.chanroblesvirtualawlibrary chanrobles virtual law library

Q Was Francisco Imaculata hit? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q In what part of his body was he hit? chanrobles virtual law library

A In the center or riddle part of his back.chanroblesvirtualawlibrary chanrobles virtual law library

Q What weapon did Casiano Rose, Jr. use in stabbing Francisco Imaculata? chanrobles virtual law library

A A knife.chanroblesvirtualawlibrarychanrobles virtual law library

Q You also testified a while ago that Felicisimo Rose stabbed Francisco Imaculata, how many times did Felicisimo Rose stab Francisco Imaculata chanrobles virtual law library

A Once.chanroblesvirtualawlibrary chanrobles virtual law library

Q Was Francisco Imaculata hit? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q In what part of his body was he hit? chanrobles virtual law library

A At his side. (pp. 3-6, tsn, May 29, 1984; pp. 7-9, Brief for Appellee; p. 88, Rollo)

This was corroborated by the testimony of Rosalia Imaculata, as follows:

Q while this Francisco Imaculata was watching the basketball game, do you remember if there was anything unusual that happened? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q What was that incident about? chanrobles virtual law library

A I do not know how it started. All that I can tell is that they suddenly stabbed my brother.chanroblesvirtualawlibrary chanrobles virtual law library

Q When you said "they," whom are you referring to? chanrobles virtual law library

A To Casiano Rose.chanroblesvirtualawlibrary chanrobles virtual law library

Q There are two Casiano Rose ... Sr. or Jr.? chanrobles virtual law library

A S r.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q After Francisco Imaculata had been stabbed by Casiano Rose, Sr., what did Francisco Imaculata do, if any? chanrobles virtual law library

A He ran away.chanroblesvirtualawlibrary chanrobles virtual law library

Q Towards what direction did he run? chanrobles virtual law library

A Towards the school.chanroblesvirtualawlibrarychanrobles virtual law library

Q When Francisco Imaculata ran away after he had been stabbed by Casiano Rose, Sr., what did the other accused do, if they did anything? chanrobles virtual law library

Q The three (3) of them chased my brother and they stabbed him.chanroblesvirtualawlibrary chanrobles virtual law library

A Who stabbed your brother Francisco Imaculata he ran away? chanrobles virtual law library

Q Felicisimo and this Casiano, Jr.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q You said that Felicisimo Rose and Casiano Rose, Jr. stabbed Francisco Imaculata after the latter ran away. Can you tell the court the relative positions of this Casiano Rose, Jr. and Felicisimo Rose when they stabbed Francisco Imaculata? chanrobles virtual law library

A (As demonstrated and explained by the witness, Francisco Imaculata ran away and he was chased and when Francisco Imaculata was overtaken he was stabbed and as demonstrated Francisco Imaculata was stabbed at the right side of his body).chanroblesvirtualawlibrary chanrobles virtual law library

Q Who stabbed Francisco Imaculata at the right side of his body? chanrobles virtual law library

A Casiano, Jr.chanroblesvirtualawlibrarychanrobles virtual law library

Q How many times did Casiano, Jr. stab Francisco Imaculata? chanrobles virtual law library

A Once only. How about Felicisimo Rose, what did he do, if any, after Francisco Imaculata had been stabbed by his brother Casiano, Jr.? chanrobles virtual law library

Q He stabbed also. Was Francisco Imaculata hit when he was stabbed by Feliciano Rose? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Where was he hit? chanrobles virtual law library

A (Witness demonstrated on her body that her brother was hit at his back). (pp. 5-7, tsn, Aug. 7, 1984; pp. 10-11 Brief for Appellee; p. 84, Rollo)

No error was committed by the trial court in convicting appellant on the basis principally of the categorical testimonies of these two (2) prosecution witnesses. The defense has not shown any improper the part of said witnesses in testifying any per motive on the way they did against appellant. Their testimonies are therefore entitled to full weight and credence (People vs. Alcantara, 126 SCRA 426).chanroblesvirtualawlibrary chanrobles virtual law library

Moreover, the record shows that appellant and his co-accused Casiano Rose, Sr. and Felicisimo Rose in killing Francisco Imaculata had a motive. Prosecution witness Larry Fernando testified that months prior to the stabbing incident in question, Francisco Imaculata had killed Danilo Rose, who was a member of the family of appellant and his co-accused. This certainly, generated ill feelings towards Francisco Imaculata if not a resolution to avenge the death of Danilo Rose.chanroblesvirtualawlibrary chanrobles virtual law library

The defense of alibi interposed by appellant is unavailing. It cannot prevail over the positive Identification of the witnesses for the prosecution (People vs. Pacada, Jr., 142 SCRA 427).chanroblesvirtualawlibrarychanrobles virtual law library

Appellant's brother, his co-accused Felicisimo Rose testified that the route from Kalibo to Rosario Malinao can be reached in one (1) hour. It was not therefore physically impossible for them to be at that place at the time of the commission of the crime.chanroblesvirtualawlibrary chanrobles virtual law library

The crime was committed with treachery and was, therefore, correctly categorized as Murder. No other modifying circumstances attended the commission of the offense.chanroblesvirtualawlibrary chanrobles virtual law library

Pursuant to Article 248 of the Revised Penal Code, the imposable penalty should have been reclusion perpetua, as imposed by the trial court. However, with the abolition of capital punishment in the 1987 Constitution, the penalty for Murder is now reclusion temporal in its medium period, to reclusion perpetua. In the absence of any modifying circumstances, the penalty is imposable in its medium period, or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. For purposes of the Indeterminate Sentence Law, the penalty next lower in degree is prison mayor maximum to reclusion temporal medium or from ten (10) years and one (1) day to seventeen (17) years and four (4) months Art 61, par. 3, Revised Penal Code; (People vs. Alcantara, G.R. No. 74737, July 29, 1988; People vs. Rizal Idnay y Batara, G.R. No. L-48269, Aug. 15,1988).chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the judgment appealed from is hereby AFFIRMED except that the penalty is modified to ten (10) years and one (1) day of prison mayor as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.