1. CRIMINAL LAW; CONSPIRACY; CIRCUMSTANCES SHOWING COMMUNITY OF CRIMINAL PURPOSE; CASE AT BAR. — Community of criminal purpose on the part of the appellants is plainly inferable from these circumstances: (1) The appellants came together to the scene of the occurrence. (2) While J. T. struck the first blow, E. D. held R. C., and the other defendant (R. V.) unsuccessfully attempted to hit R. B. (3) As the latter tried to run away, he was pursued by the appellants who trampled on his body after he had been boxed by E. D. (4) The appellants together left R unconscious oil the ground and, together also went to the house of P. Y.

2. ID.; TREACHERY; MERE SUDDENNESS OF ATTACK NOT SUFFICIENT TO CONSTITUTE TREACHERY. — Mere suddenness of the attack is not sufficient to make the qualifying circumstance of treachery present, where the mode adopted by the appellants does not positively tend to prove that they thereby knowingly intended to insure the accomplishment of their criminal purpose without any risk to themselves arising from the defense that R. B. might offer.

This is an appeal from a judgment of the Court of First Instance of Cebu, convicting the defendants (Edwin Delgado, Juanito Trinidad and Ricardo Villanueva) of homicide, and sentencing each of them to undergo imprisonment for an indeterminate period of from eight (8) years and one (1) day, prision mayor, to fourteen (14) years, eight (8) months and one (1) day, reclusion temporal, with the accessories prescribed by law; to indemnify jointly and severally the heirs of the deceased (Restituto Bragat) in the sum of P2,000, and to pay the costs.

The facts of this case, as found by the trial court and stated in the Solicitor General’s brief, are more or less as follows: On June 8, 1945, at about 8 o’clock in the evening, while Restituto Bragat and Ramon Chavez were occupying table in the store of Dolores Macabosque in Madridejos, Cebu, the three defendants arrived. All of a sudden, Juanito Trinidad gave Restituto Bragat a fist blow which landed on the back of the latter’s neck and which was followed by another that hit Restituto’s mouth and sent him to the ground. In the meantime, Edwin Delgado held Ramon Chavez by the shirt and the attempt by Ricardo Villanueva to strike Restituto Bragat failed only because of the table that separated them. Before Restituto could stand, he was kicked by Juanito Trinidad on the hip. Somehow the former managed to arise and to leave the store, but no sooner had he reached the middle of the street when he was overtaken by the defendants, one of whom (Edwin Delgado) boxed Restituto. This again caused the latter to fall, face downward, whereupon the defendants stepped on and pounded him with their heavy army shoes. Upon noticing the arrival of policeman Marcelo Seville, who was summoned to the scene by Anastacio Chavez, the three defendants ran to the house of Pepe Ybañez, where they were arrested by Marcelo Seville. From the time Restituto Bragat was abandoned by his assailants until his death at about 9 o’clock in the municipal building to which he was brought by Anastacio Chavez, he continued to be in an unconscious state.

While the appellants admit that the three of them were present at the time Restituto Bragat was attacked, they contend that it was Juanito Trinidad and Federico Macahilo who actually participated in the fight that proved fatal to Restituto. It is thus alleged that as the latter and Juanito Trinidad were exchanging fist blows, Federico Macahilo intervened by boxing Restituto who, then in a crawling position, was next kicked on the hip by Federico. As Restituto ran away, he was chased by Juanito Trinidad and Federico Macahilo and, upon being overtaken, was again kicked by Federico, Juanito now saying to Federico, "Bedic that is enough."cralaw virtua1aw library

The witnesses for the prosecution were Anastacio Chavez, Ramon Chavez, Dolores Macabosque and Marcelo Seville. They deserve full credit. There is absolutely no intimation that they testified against the appellants for any reason other than their desire to tell the truth. Indeed, it is improbable that policeman Marcelo Seville and the store owner Dolores Macakosque would have dared and chosen to show any preference in favor of Restituto Bragat, Ramon Chavez and Anastacio Chavez, who are strangers to them and in Madridejos, in much the same way as the appellants.

Dolores Macabosque and Ramon Chavez personally saw the incident in question, and as they were able to identify the appellants and particularize their respective roles, the contention urged by the appellants to the effect that the government has not duly proven their motive for wanting to attack, much less to kill, Restituto Bragat, becomes unimportant. The existence and sufficiency of motive may be essential and indispensable in making out certain offenses, but surely not in instances where, as in the present case, the appellants’ connection has been fully established by the testimony of eyewitnesses. At any rate, it seems that Restituto Bragat (nicknamed Totong) was mistaken by the appellants for one Fortunato Borac (nicknamed Totong).

If, as likewise pretended by the appellants, Federico. Macahilo was the principal assailant of Restituto Bragat, their first impulse and natural reaction upon being arrested by Marcelo Seville and later questioned, would have been to disclaim responsibility and to mention Federico as the author of the offense; and yet it was only during the trial that they had thought of interposing that defense. Again, under their theory, Federico appears to be a good friend of, or in some way related to, Juanito Trinidad. Otherwise, Federico would not, without as much as being asked to do so, have allegedly come to the aid of Juanito. Not only that; he would not have excelled Juanito in assaulting Restituto Bragat. It may therefore be assumed that the appellants were in a position to present Federico, by themselves or under subpoena from the court, as a witness with a view to establishing the truth and administering justice. Their failure in this regard engenders the suspicion that their story is only an afterthought.

The next point raised in this appeal is that conspiracy has not been proven, with the result that appellants’ criminal liability should be measured only by their individual and separate participations. It is obvious, however, that community of purpose on their part is plainly inferable from these circumstances: (1) The appellants came together to the scene of the occurrence. (2) While Juanito Trinidad struck the first blow, Edwin Delgado held Ramon Chavez, and the other defendant (Ricardo Villanueva) unsuccessfully attempted to hit Restituto Bragat. (3) As the latter tried to run away, he was pursued by the appellants who trampled on his body after he had been boxed by Edwin Delgado. (4) The appellants together left Restituto unconscious on the ground and, together also, went to the house of Pepe Ybañez.

The injuries received by Restituto Bragat, according to the certificate of the examining physician, were as follows: (1) Fractured frontal bone, left side; (2) Fractured left parietal bone; (3) Fractured occipital bone; and (4) Several traumatic contusions in the face, neck and trunk. The appellants argue that said injuries are more than what would result naturally if the version of the prosecution were true, at the same time intimating that the injuries other than those on the back of the neck and on the mouth of Restituto Bragat must necessarily have been inflicted by Federico Macahilo, in conformity with what the evidence for the defense tended to show. Appellants’ contention is again a mistake. It is enough to recall that, in addition to the fist and pedal blows struck by the appellants on the neck, mouth and hip, they mercilessly trampled on the body of their victim while it lay on the ground face downward, and their total assault was more than sufficient to have produced the injuries specified in the aforementioned medical certificate.

Nevertheless, we cannot accept the observation of the Solicitor General that the qualifying circumstance of treachery was present and should elevate the offense attributed to the appellants to the category of murder. Mere suddenness of the attack is not enough, because the mode adopted by the appellants does not positively tend to prove that they thereby knowingly intended to insure the accomplishment of their criminal purpose without any risk to themselves arising from the defense that Restituto Bragat might offer. As a matter of fact, Juanito Trinidad began his offensive by merely using his bare fist when, if his design was to be relatively, if not absolutely, safe from a possible counter-attack, he could have brought into play some weapon capable of rendering Restituto harmless after the initial blow. The same consideration may be said with respect to the other appellants. Moreover, the deceased was not without a companion, all there is nothing in the record from which we may infer treachery by reason alone of great disparity between appellants’ physical strength and stature and Restituto s fighting ability.

As the judgment appealed from is in accordance with the facts and the law, the same is hereby affirmed with costs against the appellants. So ordered.

Moran, C.J., Feria, Pablo, Perfecto, Hilado, Bengzon, Briones, Padilla and Tuason, JJ., concur.