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[ GR No. 116524, Jan 18, 1996 ]



322 Phil. 24


[ G.R. No. 116524, January 18, 1996 ]




Charged with murder in an Information reading as follows:
That on or about the 20th day of June 1993, at around 12:00 o'clock noon, in barangay Malusak, Municipality of Boac, Province of Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, wilfully, unlawfully and feloniously, with deliberate intent to kill, and with treachery, assault, attack, maim and violently kick the vital parts of the body of one Manuel Lazarte y Malvar, while he was lying dead-drunk and unconscious on the pavement, inflicting upon him the following fatal injuries:

Ruptured Small Intestine (jejunum) with spillage of the Intestinal content In trap er iton eally

Cause of Death:

Ruptured Viscus, allegedly secondary to mauling

(p. 3, Rollo.)
Lyndon Flores, upon arraignment, entered a plea of not guilty, and after trial on the merits, he was found guilty by the court a quo in a decision which accordingly disposed:
In view of the above observations and findings, this Court found Lyndon Flores y Malarayap guilty beyond reasonable doubt of the crime of Murder without any mitigating nor aggravating circumstance attendant to its commission.

Under the rule on application of penalty and as enunciated in People vs. Muñoz, et al., G.R. No. L- 38969-70, February 9, 1989, 170 SCRA 107, reiterated in People vs. Sadia, Jr., G.R. No. 92633, Oct. 17, 1991, 203 SCRA 62-71, the proper penalty imposable is reclusion perpetua.  Hence, Lyndon Flores y Malarayap is hereby sentenced to suffer the penalty of RECLUSION PERPETUA together with the accessory penalty thereof (People vs. Penilles, et a!., G.R. No. 65673, 30 Jan. 1992; People vs. Catubig, G.R. No. 89732, Jan. 31, 1992).

The accused shall be credited with the full extent of his preventive imprisonment in accordance with the provision of the Revised Penal Code.

The accused is hereby ordered to pay the heirs of the victim the sum of P50,000.00 as and for death indemnity; the further sum of P30,000.00 for hospitalization and medicines and for the coffin and burial of Manuel Lazarte.

The body of the accused is hereby committed to the custody of the Director of Prisons, National Penitentiary, Muntinlupa, Metro Manila, thru the Provincial Jail Warden of Marinduque.

Let the mittimus be prepared for the accused's immediate commitment.

(p. 25, RoIlo.)
From said decision, the instant present appeal has been interposed, with accused-appellant putting up the general allegations or, shot-gun type of arguments that the trial court erred in finding him guilty of murder instead of simple homicide.  In consequence, accused-appellant submits that the trial court erred when it imposed the penalty of reclusion perpetua. We find no merit in the first argument.  With regard to the second argument, we sustain accused-appellant but on the basis of grounds other than those he proffers. But first to the background facts which were capsulized by the trial court in this wise:
Cesar Lanot pointed to the accused who is in court and declared that at 12:00 noon of June 20, 1993, while he was at the ground floor of their residence he saw Manuel Lazarte alias Ato being kicked by Lyndon Flores alias Jojo (accused).  Ato was then opposite Rustico Malvar's house lying on the pavement seven arms length from him dead drunk. Thereafter, Ato Lazarte was brought to the hospital.

He explained that the accused hit Ato Lazarte at his stomach twice with the use of the right foot with Topsider leather shoes.

He relayed that on that noon Ato's mother Emperatriz Lazarte had an altercation with the accused due to a cassette belonging to the former.  He was attracted by a commotion outside prompting him to go out so he saw Lyndon kicking Manuel Lazarte who had been lying on the pavement five (5) minutes before the kicking.

Of the persons present around he can remember only Popong Mendoza, Taba, whose exact name he does not know and Lydia Vargas.  Thereafter, Ato Lazarte was brought to the hospital where he died two days after the incident.  He even dissuaded Jojo, saying "that is enough because Manuel will not fight back as he remained lying," thereafter Flores left A to.

Dr. Dante Osmillo of the Marinduque Provincial Hospital attended to Manuel Lazarte on June 20, 1993 identifying Exh. B, explaining that there was no swelling nor abrasion but found tenderness at the epigastric area. The exploration of the intestine was done by Dr. Edgardo Mar quez (Exh. B-2) without his assistance.

That at the time of admission the patient Manuel Lazarte was positive of alcoholic breath complaining of epigastric pain.  He did not see any abnormal physical appearance and no sign of external illness.  The whole body appeared to be normal.  However, in the afternoon of June 21, the victim complained of epigastric pain such that believing it to be merely gas pain he gave medicine for such.  He endorsed the patient normally to another physician (Dr. Sevilla) there being no alarming sign and symptom.

Alfredo Alvarez declared that at 12:00 noon of June 20, 1993 after hearing a commotion outside their residence at Malvar and Madrigal Streets, Boac, Marinduque he went out and found Emperatriz Lazarte arguing with Lyndon Flores.  Later he saw Lyndon kick Manuel Lazarte who was lying on the pavement dead drunk in front of Malvar's residence about 4 arms length away from him.  Flores hit Lazarte three times at the breast and stomach with Lyndon's left and right feet wearing leather shoes. Chic-Chic, Lyndon's companion, held Manuel's breast shirt, slapped Manuel and dropped him.  That it was Cesar Lanot who first pacified Lyndon while Chic-Chic was just looking.  Police arrived and together with others carried (inusong) Ato upstairs of their residence, after which he went to the cockpit and did not know anything that transpired.

He described that the kicking was by dropping the feet on the stomach, first by the right foot which landed on the chest while the second and third at the stomach.  He did not hear anything from Manuel Lazarte.

Emperatriz Lazarte, mother of the victim, claimed that at 12:00 noon on 20 June 1993 while watering her plants she saw people outside their residence with her son lying prostrate on the pavement but did not know why.  She saw the accused Lyndon looking straight to her rubbing his hands. She recalled having lost her cassette and was able to trace it at Salvo's Pawnshop pawned by the accused in his name.  When Mrs. Salvo refused to give it back she redeemed it for P20.00 and instructed Mrs. Salvo to inform anybody who will complain to see her.  Confronting the accused, exchange of words ensued which made Lyndon mad. Accused Lyndon turned to her son and kicked him three times then pulled him by the shirt lifting his son then left him fall.  She got nervous because she heard the head hit the pavement.  The accused was with other man, one of whom was a certain

Chic-Chic. That the accused was pacified by Cesar Lanot up to the time her son was brought to her residence.  Ato Lazarte was brought to the hospital that Sunday afternoon and died in the evening of the following day, Monday.

That the victim was married with six children.  She allegedly spent P30,000.00 for the hospital, coffin, church and medicines.

Her son has no permanent occupation but earns.  That the victim was not suffering from any illness before the death but did not know why he was lying on the pavement that day.

Dr. Edgardo Marquez was consulted on June 21, 1993 to evaluate Manuel's condition whose abdomen was distended and tender.  There was no clear hematoma on the abdomen. X-ray showed presence of air intra-abdominally.  Suspecting that there was ruptured viscus, they operated on and found ruptured intestines, duodenum, with two (2) ruptured areas intra-abdominally with the abdomen bloody (chocolate color) with alcoholic contents.  He opined that it must have been caused by a strong blow, like repeated kicking on the abdomen.  Before the surgery the patient can communicate.  The proximate cause of loss of fluid was intestinal Infection. He did not find any ulcer on the small intestines since there was no perforation.  However, the ruptures appeared to be about 2 or 3 days but there was no abscess.

(pp. 1-5, Decision; pp. 14-18, Rollo.)
Accused-appellant denies having kicked the victim.  He asserts that he merely touched, with his right foot, the victim who was lying dead drunk on the pavement to wake him up so that the victim could explain the circumstances of the loss of Emperatriz Lazarte's cassette recorder. Emperatriz imputed to accused-appellant the loss of her cassette recorder which she eventually found in a pawnshop from where she redeemed it.  Accused-appellant insists that it was the victim Manuel Lazarte who pawned the cassette recorder and so he was trying to wake up the victim so that the latter could inform his mother that it was he who pawned the cassette recorder.

Accused-appellant's denial that he kicked the victim runs counter to the evidence on record. Prosecution witness Cesar Lanot categorically testified that accused-appellant kicked the victim in the belly, thusly:

What happened to Manuel Lazarte when he was kicked by the accused Lyndon Flores alias "Jojo"?
He was brought to the hospital, sir.
When the accused kicked Manuel Lazarte, do you know if he was hit?
Yes, sir.
in what part of the body was he hit?
On the stomach, sir.
How many times?
Two (2) times, sir.
With what foot?
Right foot, sir.

What was the appearance of the accused at the time he kicked Manuel Lazarte?
He was wearing shoes, sir.
What kind of shoes?
He was wearing a topsider leather shoes, sir.

(p. 5, tsn., Oct. 5, 1993)
Cesar Lanot's testimony was corroborated by Aifredo Azaula who testified as follows:
Who kicked Manuel Lazarte?
Lyndon Flores, sir.
Who is this Lyndon Flores?
The accused, sir.
Where was Manuel Lazarte when he was kicked by Lyndon Flores?
He was lying on the pavement in front of the house of the Malvars, sir.
How far were you from Manuel Lazarte at that time?
More or less four arms length, sir.
Where was Manuel Lazarte hit by the kicks of Lyndon Flores?
On the chest and stomach, sir.
Did you observe the appearance of the feet of the accused which he used in kicking Manual Lazarte?
Yes, sir.
Was he wearing anything?
Shoes, sir



Aside from kicking Manuel Lazarte what happened before the accused left the scene?
He held the collar of Manuel Lazarte and delivered a slapping blow on the face and then dropped Manuel Lazarte on the cemented pavement, sir.
How many times did the accused kick Manuel Lazarte?
Three times, sir."

(pp. 14-16, tsn., Oct. 7, 1993)
  (pp. 10-12, Appellee's Brief; p. 70, Rollo.)
There is no reason to doubt the credibility of these prosecution witnesses and the veracity of their testimony. Their statements are not tainted with any contradiction, inconsistency, or prevarication.  As the trial court observed, witnesses testified in a candid, categorical, and consistent manner, lending much credibility to their declarations and making their testimony deserving of full faith and credit (People vs. Barte, 230 SCRA 401 [1994]).

Likewise, there being nothing on the record to show that said witnesses were actuated by any improper motive, their testimony shall be entitled to full faith and credit (People vs. Dela Cruz, 229 SCRA 754 [1994]).  Moreover, it is settled that when the credibility of witnesses is at issue, appellate courts will not disturb the findings of the trial court, the latter being in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during the trial, unless certain facts of substance and value had been overlooked which, if considered, might affect the result of the case (People vs. Gomes, 230 SCRA 270 [1994]). Much as one way may scour the record, no such fact of substance or value seems to surface. Accused-appellant's denial is a feeble defense which cannot stand against the positive testimony of the eyewitnesses to the crime (People vs. Gomez, 229 SCRA 138 [1994]). The findings of fact of the trial court, therefore, stands.

The testimony of accused-appellant that he merely touched or nudged with his foot the victim as the victim was lying dead drunk on the pavement in order to wake him up so that he may explain to his mother the circumstances concerning the pawning of a cassette recorder is totally negated by the extent of the injuries suffered by the victim.  Had accused-appellant merely poked or nudged the victim with his foot, the latter would not have suffered any injury, much less deadly damage to internal organs. Verily, the foot jabs delivered by accused-appellant to the victim were more than nudges, but severe kicks which ruptured the intestines of the victim, later resulting in his death.  Dr. Edgardo Marquez, the attending physician, had this to say on the point:

Did you make any surgery?
We had an impression that there is rupture of the viscus pre-operatively so, we did an emergency surgery, exploratory laparatomy on the patient.
What step was done next?
We did an exploratory laparatomy and the operative findings are the following:
There is ruptured small intestines in particular the jejunum with two ruptured areas intra abdominally. The abdomen was filled with bloody chocolate colored fluid with alcoholic scent. The whole intestines are soaked with spilled intestinal contents.
What could have caused the ruptures viscus, Doctor?
This was possibly caused by a very strong blow.
Could repeated kicks to the abdomen have caused the injuries?
Possible, sir."

    (p. 4, Isn.,Dec. 3, 1993)
(pp. 12-13, Appellee's Brief; p. 70, Rollo.)
Accused-appellant's finally contends that the crime he committed is homicide and not murder.

Such contention is devoid of merit.  The evidence clearly establishes the fact that the victim was totally unconscious, dead drunk, lying on the pavement, when accused-appellant administered strong, vicious, and as borne out later, killing kicks at the belly of the victim. Totally unconscious at the time of the attack, the victim could not have put up any defense whatsoever against the sudden assault by the accused-appellant.  Unquestionably, the attack was characterized by treachery.  An attack upon an unconscious victim who could not have put up any defense whatsoever is treacherous.  There was absolutely no risk to accused-appellant from any defense that the victim might have made.  There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tends directly and specially to insure its execution, without risk to himself arising from the defense which the offended party may make (No. 16, Article 14, Revised Penal Code).

Nonetheless, we believe the trial court erred when it imposed the penalty of reclusion perpetua on accused-appellant.

Under Paragraph 1, Article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended.  Thus, anyone who inflicts injuries voluntarily and with intent is liable for all the consequences of his criminal act, such as death that supervenes as a consequence of the injuries.  Here, accused-appellant is liable for the demise of the victim for such was caused by the violent kicks which he inflicted on the vital parts of the victim's body. And, as earlier discussed, since the assault was qualified by treachery the crime committed is murder and not homicide as suggested by accused-appellant.

However, the mitigating circumstance of lack of intent to commit so grave a wrong as that committed (Paragraph 3, Article 13, Revised Penal Code) should be appreciated in favor of accused-appellant for he had no intent to kill when he attacked the victim.  His intention was merely to inflict injuries on the victim.

Thus, the trial court erred in imposing the penalty of reclusion perpetua for it failed to appreciate the mitigating circumstance of lack of intent to commit so grave a wrong as that committed in favor of the accused-appellant.  Under Article 248 of the Revised Penal Code, the penalty for the crime of murder is reclusion temporal in its maximum period to death.  There being no aggravating circumstance to offset the mitigating circumstance of lack of intent to commit so grave a wrong as that committed, the imposable penalty is reclusion temporal in its maximum period, or 17 years, 4 months, and 1 day, to 20 years, the minimum of the penalty provided for by law (Paragraph 2, Article 64, Revised Penal Code).  Applying the Indeterminate Sentence Law, the penalty next lower in degree is prision mayor in its maximum period to reclusion temporal in its medium period or 10 years and 1 day of prision mayor to 17 years and 4 months of reclusion temporal (People vs. Espinosa, 243 SCRA 7 [1995] citing People vs. Roel Ponayo V Villanueva, G. R. No. 111523, August 10, 1994).

The Court is not unaware of the New Death Penalty Law (Republic Act No. 7659) which took effect on December 31, 1993 (People vs. David, 235 SCRA 366 [1994]), amending Article 248 of the Revised Penal Qode by increasing the imposable penalty for murder to reclusion perpetua to death.  But such amendment cannot be applied to the present case for the crime was committed on June 20, 1993, before the effectivity of the Republic Act No. 7659.

WHEREFORE, the decision appealed from is HEREBY AFFIRMED with the modification that accused-appellant IS HEREBY SENTENCED to an indeterminate prison term of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months, and one (1) day of reclusion temporal (People vs. Sarol, 139 SCRA 125 [1985]), as maximum.

No special pronouncement is made as to costs.


Narvasa, C.J. (Chairman), Davide, Jr., Francisco, and Panganiban, JJ., concur.