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PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. L-38297. October 23, 1982.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARIO CAPALAC, Defendant-Appellant.

The Solicitor General for Plaintiff-Appellee.

Pio A. Sepulveda, for Defendant-Appellant.

SYNOPSIS


Mario Capalac was convicted of murder for the death of Jimmy Mag-aso committed with evident premeditation and treachery with the accused taking advantage of his position as a police officer and employing means which added ignominy to the natural effects of his fact. He was sentenced to suffer the death penalty. The similar charge against his brother, Jesus, who, together with him attacked the victim after the latter had stabbed their brother Moises, was dismissed as he had died in the meanwhile.

In praying for the reversal of the judgment, appellant averred that the lower court erred in appreciating conspiracy, and the qualifying as well as the aggravating circumstances, all to his disadvantage.

On automatic review, the Supreme Court held that the lower court correctly held that the crime was one of murder, the qualifying circumstance of treachery being present. Appellant was assisted by three others; the victim was unable to put up any defense as his hands were raised in surrender; he was pistol-whipped and lying prostrate on the ground when he was stabbed; and there was no risk at all to the aggressors. Conspiracy was attendant to the commission of the crime as indicated by the manner by which the appellant, his brother and 2 other companions attacked the victim. Their purpose was to avenge the stabbing of Moises Capalac and this common purpose impelled them to act in concert to perpetuate their objective. The Supreme Court however held that the aggravating circumstances of evident premeditation, of means being employed or circumstances brought about to add ignominy to the natural effects of the act, and of the crime being committed with the offender taking advantage of his official position were not duly proved. The criminal act, evidently made in the heat of anger, did not call for a finding that there was evident premeditation. Appellant and his brother, who were prompted by their desire to avenge their brother, assaulted the victim relying on the weapons they carried with them cannot be said to have deliberately employed means to add ignominy to the natural effects of the act as all they were interested in was that there be retribution for what was done to their brother. The fact that appellant was a member of the police force did not of itself justify that the aggravating circumstance of advantage being taken by the offender of his public Position be considered as present. He acted instinctively to aid his brother who was assaulted and he did not purposely rely on his being a policeman to commit the act.

The Supreme Court held that the lower court failed to take in to consideration the existence of the mitigating circumstance of the immediate vindication of a grave offense for what was done was an immediate vindication of the stabbing perpetrated by the victim on appellant’s brother.

In view of the foregoing considerations, the crime of murder having been qualified by treachery and mitigated by the circumstance of immediate vindication of a grave offense, the imposition of the death penalty was not warranted and the imposable penalty should be ten years and one day of prision mayor to seventeen years, four months and one day of reclusion temporal.

Judgment modified.


SYLLABUS


1. CRIMINAL LAW: CONSPIRACY: PRESENT IN MURDER WHERE ACCUSED ACTED IN CONCERT IMPELLED BY A COMMON PURPOSE. — The circumstances indicative of the manner by which the two brothers, as well as their two companions. who apparently were not apprehended as they were not included in the information, attacked the hapless victim, would suffice to show conspiracy. They apparently had one purpose in mind, to avenge the stabbing of Moises Capalac. Such a reaction, as noted at the outset, is quite understandable. It was not to be expected that they would even bother to inquire why their brother was stabbed. It was enough that it was done. They were impelled by a common purpose. They acted in concert. There is sufficient basis for the finding of conspiracy then.

2. ID.; ID.; ESSENTIAL ELEMENTS. — As far back as United States v. Magcamot (13 Phil. 386), a 1909 decision, Justice Mapa stressed as the essential element for conspiracy to exist the "concurrence of wills" and "unity to action and purpose." A recent decision is partial to the phrase, "tacit and spontaneous coordination," in the assault. (People v. Aleta, L-40694, August 31, 1976, 72 SCRA 542, per Aquino, J.). A careful analysis of the evidence by the lower court can yield no other conclusion but that conspiracy was duly proved.

3. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; HOW COMMITTED. — "There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution there of which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make." (Article 14, par. 16 of the Revised Penal Code.)

4. ID.; ID.; ID.; CRIME COMMITTED IS MURDER QUALIFIED BY TREACHERY. — Mag-aso’s situation was hopeless. Any defense he could have put up would be futile and unavailing. His hands were raised in surrender. That notwithstanding, he was pistol-whipped. When lying prostate on the ground, he was stabbed. It must be remembered that, according to the testimonial evidence, there were two other persons assisting the brothers Capalac. If they were not included in the information. the explanation would appear to be that they managed to elude capture. There was no risk, therefore, to the aggressors, no hope for the victim. The trial court committed no error then in appreciating the circumstances of treachery as being present.

5. ID.; AGGRAVATING CIRCUMSTANCES; PROOF REQUIRED. — As early as 1903, Justice Mapa, in United States v. Alvarez, (3 Phil. 24), made clear that an aggravating circumstance must be "as fully proven as the crime it self." He added: "Without clear and evident proof of their presence, the penalty fixed by the law for the punishment of the crime cannot be increased."cralaw virtua1aw library

6. ID.; ID.; EVIDENT PREMEDITATION; NOT PRESENT IN MURDER WHEN CRIME COMMITTED IN THE HEAT OF ANGER. — Where there is no evidence showing that the defendant had, prior to the moment of its execution, resolved to commit the crime, nor is there proof that this resolution was the result of meditation, calculation and persistence. evident premeditation cannot be said so have attended the commission of the crime. In People v. Mendoza, (100 Phil. 811 [1957]) it was emphasized that it should not be "premeditation" merely; it is "evident" premeditation. A recent decision, People v. Anin, (L-39046, June 30, 1975, 64 SCRA 729) ruled that the perpetration of a criminal act "evidently made in the heat of anger did not call for a finding that there was evident premeditation. What is required is that the offense was "the result of cool and serene reflection."cralaw virtua1aw library

7. ID.; ID.; EMPLOYING MEANS TO ADD IGNOMINY TO THE NATURAL EFFECTS OF THE ACT; NOT PRESENT IN CASE AT BAR. — What was done by the brothers of Capalac cannot be categorized as falling within the norm of means being employed or circumstances being brought about to add ignominy to the natural effects of the act. It is well to stress that they were prompted by their desire to avenge their brother. They went after Mag-aso, the victim. They assaulted him, relying on the weapons they carried with them. Jesus stabbed him and appellant Mario pistol-whipped him. They did what they felt they had to do to redress a grievance. It cannot be said, therefore, that they deliberately employed means to add ignominy to the natural effects of the act. It is quite apparent that all they were interested in was to assure that there be retribution for what was done to their brother.

8. ID.; ID.; TAKING ADVANTAGE OF OFFICIAL POSITION; NOT PRESENT WHERE APPELLANT DID NOT PURPOSELY RELY ON HIS BEING A POLICEMAN TO COMMIT THE ACT. — The mere fact that appellant Mario Capalac is a member of the police force certainly did not of itself justify the aggravating circumstance of advantage being taken by the offender of his public position be considered as present. He acted like a brother, instinctively reacting to what was undoubtedly a vicious assault on his kin that could cause the death of a loved one. It would be an affront to reason to state that at a time like that and reacting as he did, he purposely relied on his being a policeman to commit the act. He pistol-whipped the deceased because he had his pistol with him. It came in handy and he acted accordingly. (Cf. United States v. Rodriguez, 19 Phil. 150 (1911); People v. Yturriaga, 86 Phil. 534(1950); Peoples v. Ordiales, L-30956, November 23, 1971,42 SCRA 239.) That he was a policeman of no relevance in assessing his criminal responsibility.

9. ID.; MITIGATING CIRCUMSTANCE; IMMEDIATE VINDICATION OF A GRAVE OFFENSE; CONSIDERATION THEREOF IN FAVOR OF THE APPELLANT WHO IMMEDIATELY SOUGHT RETRIBUTION FOR THE OFFENSE COMMITTED ON HIS BROTHER. — What was done was an immediate vindication of the stabbing perpetrated by Mag-aso on appellant’s brother Moises. For relatively less serious crimes than this, this Court has taken into consideration this mitigating circumstance. Certainly it seems probable that the reason why the lower court failed to do so was the fact that appellant was a member of the police force. That is not conclusive. What is decisive is the fact that the brothers Capalac, responsive to what is a traditional norm of conduct, reacted in a manner which for them was necessary under the circumstances. That was a fulfillment of what family honor and affection require. The aggressor who did them wrong should not go unpunished. This is not to justify what was done. It offers though an explanation. At the same time, the rule of law, which frowns on an individual taking matters into his own hands, requires that every circumstances in favor of an accused should not be ignored. That, to render justice according to law. This mitigating circumstance calls for application.

10. ID.; MURDER; IMPOSABLE PENALTY IN CASE AT BAR. — Where the murder was qualified by the circumstance of treachery and there was likewise considered the mitigating circumstance of immediate vidication of a grave offense, the penalty imposed on the accused should be "ten years and one day of prision mayor to seventeen years, four months and one day of reclusion temporal."


D E C I S I O N


FERNANDO, C.J.:


It was not unexpected, considering the close family ties so traditional among Filipinos, that the stabbing, apparently without provocation, of one Moises Capalac by Jimmy Magaso, would be attended with serious, if not tragic, consequences. It happened on September 20, 1970 at around 2:00 o’clock in the afternoon, the scene of the gory incident being a duly licensed cockpit in the City of Iligan. The aggressor, attempting to escape, was confronted by two brothers of Moises, Jesus Capalac, originally included in the information but now deceased, and appellant Mario Capalac. The attempt of Magaso to board a jeep was unsuccessful, he having alighted after two shots were fired in succession. Knowing that he was completely at the mercy of the two brothers, he raised his hands as a sign of surrender, but they were not to be appeased. He was pistol-whipped by appellant Mario Capalac, being dealt several blows on the head and the face. After he had fallen to the ground, Jesus Capalac stabbed the deceased on the chest three or four times. He was brought to the hospital where he died, the cause, according to the coroner’s report, being "hemorrhagic shock due to a wound of the heart."cralaw virtua1aw library

The above facts are not open to dispute, the decision of the lower court and the briefs for both appellant and appellee being substantially in agreement. After trial duly held, Mario Capalac was convicted of murder. The lower court found that the crime was committed with evident premeditation and treachery. The lower court also held that appellant took advantage of his position as a police officer and employed means or brought about circumstances which added ignominy to the natural effects of his act. It sentenced him to suffer the death penalty. Hence, this case is before this Tribunal for automatic review. 1

The brief for the appellant prays for the reversal of the judgment and assigns four errors as having been committed by the lower court. The first error speaks of the absence of conspiracy. The second and the third deny the existence of the qualifying as well as the aggravating circumstances. Lastly, the brief imputes as error of the lower court what it referred to as "discarding the ante mortem statement of the victim." As will be shown, there is no basis for reversal. The judgment, however, calls for modification. Murder was committed, the qualifying circumstance of alevosia being quite evident. The aggravating circumstances, however, were not proved. Moreover, the lower court did not take into consideration the existence of the mitigating circumstance of the immediate vindication of a grave offense. Hence, the imposition of the death penalty was not warranted.chanrobles virtual lawlibrary

1. The circumstances indicative of the manner by which the two brothers, as well as their two companions, who apparently were not apprehended as they were not included in the information, attacked the hapless victim, would suffice to show conspiracy. They apparently had one purpose in mind, to avenge the stabbing of Moises Capalac. Such a reaction, as noted at the outset, is quite understandable. It was not to be expected that they would even bother to inquire why their brother was stabbed. It was enough that it was done. They were impelled by a common purpose. They acted in concert. There is sufficient basis for the finding of conspiracy then. As far back as United States v. Magcamot, 2 a 1909 decision, Justice Mapa stressed as the essential element for conspiracy to exist the "concurrence of wills" and "unity of action and purpose." 3 A recent decision is partial to the phrase, "tacit and spontaneous coordination," in the assault. 4 A careful analysis of the evidence by the lower court can yield no other conclusion but that conspiracy was duly proved.

2. From the facts as narrated above, there can be no other conclusion except that the crime was one of murder, the qualifying circumstance of treachery being present. The specific language of the Revised Final Code calls for application: "There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make." 5 Mag-aso’s situation was hopeless. Any defense he could have put up would be futile and unavailing. His hands were raised in surrender. That notwithstanding, he was pistol-whipped. When lying prostrate on the ground, he was stabbed. It must be remembered that, according to the testimonial evidence, there were two other persons assisting the brothers Capalac. If they were not included in the information, the explanation would appear to be that they managed to elude capture. There was no risk, therefore, to the aggressors, no hope for the victim. 6 The trial court committed no error then in appreciating the circumstance of treachery as being present.

3. The lower court erred, however, in finding the aggravating circumstances of evident premeditation, of means being employed or circumstances brought about to add ignominy to the natural effects of the act, and of the crime being committed with the offender taking advantage of his official position as having attended the commission of the crime. As early as 1903, Justice Mapa, in United States v. Alvares, 7 made clear that an aggravating circumstance must be "as fully proven as the crime itself." 8 He added: "Without clear and evident proof of their presence, the penalty fixed by the law for the punishment of the crime cannot be increased." 9 Moreover, insofar as evident premeditation is concerned, there is this relevant excerpt from the same opinion: "The record contains no evidence showing that the defendant had, prior to the moment of its execution, resolved to commit the crime, nor is there proof that this resolution was the result of meditation, calculation and persistence. 10 In People v. Mendova, 11 it was emphasized that it should not be "premeditation" merely; it is "evident" premeditation. 12 A recent decision, People v. Anin, 13 ruled that the perpetration of a criminal act "evidently made in the heat of anger" did not call for a finding that there was evident premeditation. 14 What is required is that the offense was "the result of cool and serene reflection." 15 What was done by the brothers of Capalac cannot be categorized as falling within the norm of means being employed or circumstances being brought about to add ignominy to the natural effects of the act. It is well to stress that they were prompted by their desire, to avenge their brother. They went after Mag-aso, the victim. They assaulted him, relying on the weapons they carried with them. Jesus stabbed him and appellant Mario pistol-whipped him. They did what they felt they had to do to redress a grievance. It cannot be said, therefore, that they deliberately employed means to add ignominy to the natural effects of the act. It is quite apparent that all they were interested in was to assure that there be retribution for what was done to their brother. The mere fact that appellant Mario Capalac is a member of the police force certainly did not of itself justify that the aggravating circumstance of advantage being taken by the offender of his public position be considered as present. He acted like a brother, instinctively reacting to what was undoubtedly a vicious assault on his kin that could cause the death of a loved one. It would be an affront to reason to state that at a time like that and reacting as he did, he purposely relied on his being a policeman to commit the act. He pistol-whipped the deceased because he had his pistol with him. It came in handy and he acted accordingly. 16 That he was a policeman is of no relevance in assessing his criminal responsibility.

4. There is another aspect of the decision that calls for correction. The mitigating circumstance of immediate vindication of a grave offense was not considered. There is no ambiguity in the language of the Revised Penal Code. That the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural, or adopted brothers or sisters, or relatives by affinity within the same degree." 17 What was done was an immediate vindication of the stabbing perpetrated by Magaso on appellant’s brother Moises. For relatively less serious crimes than this, this Court has taken into consideration this mitigating circumstance. 18 Certainly it seems probable that the reason why the lower court failed to do so was the fact that appellant was a member of the police force. That is not conclusive. What is decisive is the fact that the brothers Capalac, responsive to what is a traditional norm of conduct, reacted in a manner which for them was necessary under the circumstances. That was a fulfillment of what family honor and affection require. The aggressor who did them wrong should not go unpunished. This is not to justify what was done. It offers though an explanation. At the same time, the rule of law, which frowns on an individual taking matters into his own hands, requires that every circumstance in favor of an accused should not be ignored. That is to render justice according to law. This mitigating circumstance calls for application.chanroblesvirtualawlibrary

5. There is no point in discussing the fourth assigned error, namely, that the ante mortem statement of the victim should have been given weight by the Court. Such exhibit, 19 even if considered a dying declaration, would not call for a reversal. It consisted of seven questions and answers. The answers to the second and the third questions referred to what happened to Magaso and who was responsible. His answer was that he was stabbed, and that it was done by Jesus Capalac. The other questions dealt with when and where it happened as well as whether or not he was in possession of his senses, and a rather unnecessary question as to whether he was aggrieved. This Court, as was the lower court, is aware that the stabbing was by Jesus Capalac, not by appellant. It does not thereby mean that no criminal liability was incurred by him. In the light of the foregoing, and following the case of People v. Rosel 20 where the murder was qualified by the circumstance of treachery and there was likewise considered the mitigating circumstance of immediate vindication of a grave offense, the penalty imposed on the accused should be "ten years and one day of prision mayor to seventeen years, four months and one day of reclusion temporal." 21

WHEREFORE, the accused is found guilty of murder, but the decision of the lower court is hereby modified. The accused is sentenced to ten years and one day of prision mayor minimum to seventeen years, four months and one day of reclusion temporal maximum. In all other respects, the lower court decision stands affirmed.

Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, and Relova, JJ., concur.

Makasiar and Vasquez, JJ., I reserve my vote.

Aquino and Gutierrez, JJ., took no part.

De Castro, J., concurs in the result.

Teehankee, J., is on leave.

Endnotes:



1. He remained the sole accused, there being an order of the lower court of February 12, 1972 dismissing the charge against his brother, Jesus, who, had died in the meanwhile.

2. 13 Phil. 336.

3. Ibid.

4. People v. Aleta, L-40694, August 31, 1976, 72 SCRA 542, per Aquino, J.

5. Article 14, par. 16 of the Revised Penal Code.

6. Cf. People v. Ong, L-34497, Jan. 30, 1975, 62 SCRA 174; People v. Mabuyo, L-29129, May 8, 1975, 63 SCRA 532; People v. Bautista, L-38624, July 25, 1975, 65 SCRA 460 (where deceased had no chance to defend himself); People v. Tizon, L-29724, Aug. 29, 1975, 66 SCRA 372; People v. Payao, L-29364, Nov. 21, 1975, 68 SCRA 70; People v. Pajenado, L-26548, Jan. 30, 1976, 69 SCRA 172; People v. Mojica, L-30742, April 30, 1976, 70 SCRA 502; People v. Palencia, L-38957, April 30, 1976, 71 SCRA 679; People v. Benito, L-32042, Dec. 17, 1976, 74 SCRA 271; People v. Pascual, L-29893, Feb. 23, 1978, 81 SCRA 548; People v. Plateros, L-37162, May 30, 1978, 83 SCRA 401; People v. Alegria, L-40392, Aug 18, 1978, 84 SCRA 614; People v. Cuadra, L-27973, Oct. 23, 1978, 85 SCRA 576; People v. Barbosa, L-39779, Nov. 7, 1978, 86 SCRA 217; People v. Damaso, L-30116, Nov. 20, 1978, 86 SCRA 370.

7. 3 Phil. 24.

8. Ibid, 32.

9. Ibid.

10. Ibid, 31-32.

11. 100 Phil. 811 (1957).

12. Ibid, 818.

13. L-39046, June 30, 1975, 64 SCRA 729. .

14. Ibid, 734.

15. Ibid.

16. Cf. United States v. Rodriguez, 19 Phil. 150 (1911); People v. Yturriaga, 86 Phil. 534 (1950); People v. Ordiales, L-30956, November 23, 1971, 42 SCRA 239.

17. Article 13, par. 5 of the Revised Penal Code.

18. Cf. United States v. Ampar, 37 Phil. 201 (1917); People v. Diokno, 63 Phil. 601 (1936); People v. Rosel, 66 Phil. 323 (1938); People v. Domingo, 118 Phil. 1384 (1962) only alternatively.

19. Exhibit 1.

20. 66 Phil. 323 (1938).

21. Ibid, 326.

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