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[ GR No. 45100, Oct 26, 1936 ]



63 Phil. 601

[ G. R. No. 45100, October 26, 1936 ]




Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First Instance of Laguna, the dispositive  part of which reads as follows: "In view of the foregoing considerations, the court  finds the accused Epifanio  Diokno and Roman Diokno guilty of the crime of murder, beyond a reasonable doubt, and sentences each of them  to  reclusion perpetua, to indemnify jointly and severally  the heirs  of the deceased in the sum of P1,000 and to pay the costs of the suit.  "It is so ordered."

In  support of their appeal, the appellants  assign the following alleged errors  as committed by the  court a quo in its judgment in question, to wit:
  1. The  lower court erred in accepting  Exhibit  E  as evidence.
  2. The lower court erred  in  admitting  Exhibit K  as evidence.
  3. The lower court erred in not acquitting the appellant Roman.
  4. The lower court erred in sentencing the appellant Epifanio to reclusion  perpetua."
The following facts have been proven  beyond a reasonable doubt during the  trial:
The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas.   At about 7 o'clock in the  morning of January  4, 1935,  Salome  Diokno,  to  whom Yu Hiong was engaged for about a  year, invited the latter to go with her.   Yu Hiong  accepted the invitation but he told Salome that  her father  was  angry with him.  Salome  answered him:  "No  matter, I   will  be  responsible."  At  about  6 o'clock in the afternoon of said day, Yu Hiong and Salome Diokno took an  automobile  and  went  to  the  house  of Vicente Verina, Salome's cousin,  in  Pagbilao.   As  they found nobody in the house, they went on their way up  to San Pablo, Laguna.   On  January 5th  or  6th of said year, Roman  Diokno telegraphed his father  Epifanio Diokno, who was in Manila, informing him that Salome had eloped with the Chinese Yu Hiong.  On the morning of January 7, 1935, Epifanio Diokno and Roman Diokno went to San Pablo, Laguna, in  search  of the  elopers.  Having been informed that the latter were stopping at the house of Antonio Layco,  they  went there.  Upon  arriving near  the house, they saw Yu Hiong coming down the stairs.  When Yu Hiong saw them, he ran upstairs and they pursued him. As the  Chinese  found the door of the house locked, he shouted that  it be opened for him.  At that moment, he was  overtaken by  the accused who carried knives  locally known as balisong, of different sizes.  Yu  Hiong fell on his knees and implored pardon.  In that situation Roman Diokno stabbed him with the knife in the back and later in the  left  side. Epifanio Diokno also stabbed him  once. Yu Hiong fell on the landing of the stairs in the balcony, and there he  was again  stabbed repeatedly.   Then Roman Diokno said:  "Enough, father."  Yu Hiong lost consciousness. Juan Alcantara, who lived on the same street, Hermanos Belen, in  front of Antonio Layco's house, saw  the accused  pursue Yu Hiong and fired shots for the police to come.  Upon  hearing the shots,  municipal policeman Francisco Curabo appeared and found Yu Hiong pale and lying on the  landing  of the  stairs.  He then asked who had wounded  the Chinese and the accused Epifanio Diokno answered that it was he.  The policeman took  the knife (Exhibit C)  which Epifanio Diokno carried in his  right hand and brought him  to  police headquarters.  Roman Diokno had left before the policeman arrived and he was not located until after three days.   The municipal  president of San  Pablo, Laguna, also went to the scene of the crime, found the  Chinese  almost  unconscious and ques- tioned him, putting down his answers in Exhibit E.   The Chinese was  brought to the provincial hospital of  San Pablo where  he was examined by Drs.  David Evangelista and  Manuel Quisiimbing, who found that he had five incised wounds in  different parts of the  body, one of them at the back and about three and a half inches long, piercing  the  pleura  and  penetrating the  lower lobe of the right lung about an  inch, which wound  was necessarily mortal and which caused the death of the victim.  On January  8, 1935, while  the said Chinese was in a serious condition in the  hospital, he made a statement telling how he was attacked by the accused (Exhibit  K).
The accused, testifying as witnesses in their own behalf, stated that they had  not. gone to San Pablo together on the day  in question;  that when Roman Diokno arrived, his father  Epifanio Diokno was coming down the stairs of Antonio Layco's house with a knife in his hand; that Epifanio Diokno told  his  son  Roman to go home and tell their relatives what had  happened; that when Epifanio Diokno overtook Yu Hiong on the landing of the stairs of Antonio  Layco's house, he  asked Yu  Hiong whether he was willing to marry his daughter; that the Chinese answered him in  the negative and at the same time tried to take something from  his pocket;  that as Epifanio knew that Yu  Hiong carried  a  revolver,  he  feared the Chinese might harm him; he became obfuscated,  drew his knife and  knew not what happened afterwards.

The first question to  be decided  in  the present appeal is whether or not the court a quo erred in admitting as evidence Exhibit E, consisting in the investigation conducted by the municipal president of San Pablo in the same place where Yu Hiong had fallen a few minutes before, at about 1.30 p. m. on January  7, 1935, and wherein Yu Hiong, answering  the  questions  asked  by  said municipal president,  stated that  it  was Roman  Diokno and  Epifanio Diokno who had wounded him.

It is argued by the defense that said document Exhibit E should not be  admitted  on the ground that some words had been altered and because it has not heen proven that the declarant had a sense  of impending death.

It does not appear that said document was altered after it had been signed, but on the contrary, municipal president Jacinto Peiiaflor, upon  being  cross-examined by the defense,  declared  that  he neither erased any  word  nor put another  in  its place after said document had  been finished.

The fact that Yu  Hiong failed to  state that he  had given up all hope of life, in answering the municipal president's questions, does not make his declaration inadmissible.   It is enough if, from the circumstances of the  case, it can be inferred with certainty that such  must have been his state  of mind (People vs. Chan Lin Wat, 50 Phil., 182). In  the present  case,  Yu Hiong was  semiconscious as  a result of the  wounds received  by him and, consequently, he could  not have the hope to live when he made his declaration immediately after  he was mortally wounded.   But even if the document  Exhibit E were not admissible as an ante mortem declaration,  it is admissible as a part of the res gestse  because  it was made  under circumstances so proximate  to the incident that it  may be  considered  as a part thereof.  (People vs. Portento and Portento, 48 Phil., 971; People vs.  Palamos, 49 Phil., 601.)

The first assignment of alleged error is, therefore, untenable.

With respect to the second assignment of alleged error consisting  in that the court a quo erred in admitting Exhibit K as an ante mortem declaration of Yu Hiong, because it does not  appear that when the declarant made it he was aware of impending death  and that he did not die  until three  days  after making it, all  that has been said relative to  Exhibit  E,  which is the subject matter of the first assignment of alleged error, may be repeated  in connection with said Exhibit K,  in the sense that it is admissible as an  ante  mortem declaration.  Furthermore,  when the deceased made  the declaration Exhibit K, he complained of great difficulty in breathing and  of  being very ill.  The fact that he did not die until three days later neither implies that  he  had no sense of impending  death when he made his declaration because he did not improve thereafter, but became worse  until  he died; nor detracts  from its character  of  an ante  mortem declaration because  what gives the declaration such character is the declarants conviction, upon  making it, that he is not going to live  (U. S. vs. Mallari, 29 Phil., 14).

The third assignment of alleged error consists in the failure of the court a quo to acquit  the  appellant Roman Diokno.

The testimony of the eyewitnesses Juan Alcantara and Antonio Layco, corroborated  by the different dimensions of the wounds which, according to Dr. Manuel Quisumbing, .were caused  by two instruments  of different  sizes, and the ante mortem declarations  (Exhibits E and  K) of the deceased, leave no  room for  doubt  that Roman  Diokno cooperated  with his  father and stabbed  the  deceased Yu Hiong with a knife in  different parts of the body.  Furthermore, the deceased  stated in his  ante mortem declaration (Exhibit K) that it was  Roman Diokno who inflicted the necessarily mortal wound in his back, which caused his death.

We  find  the  fourth  assignment of  alleged error well founded.   The circumstance of abuse of superior strength, qualifying the crime of  murder, which the trial court found to have been proven, has not been  established  beyond a reasonable doubt.  In the case of United  States  vs. Devela (3 Phil., 625), this  court said that  "the mere  fact that the number of the assailants is superior to that of those attacked by them is not sufficient to  constitute the aggravating circumstance of  abuse of superiority."  In this case we have the photographs of the body of the deceased (Exhibits  D and  D-1)  showing that  he  had a strong constitution ; but there is no evidence of the physical constitution of the  accused Epifanio  Diokno  and  Roman Diokno. Therefore, we cannot determine whether or not said accused were physical  stronger than the deceased and whether or not they abused such  superiority.

Neither does  this court find the existence  of  the  other circumstance  qualifying murder,  that  is, evident premeditation, proven beyond  a reasonable doubt because, even assuming that both the accused went to San Pablo, Laguna, each carrying the knife used by him in attacking Yu Hiong, it being customary for the people of said province to carry it, it cannot be  inferred with certainty from the mere fact that they carried knives that their intention in going to San Pablo was to look for the deceased in order to kill him. In order that premeditation may be considered either as an aggravating circumstance or as a qualifying circumstance, it must be evident, that is, the intention to kill must be manifest and it must  have been planned in the mind of the offender and carefully meditated.   It is  not  enough that it arose at the moment of the aggression.

Therefore,  there having been  neither abuse  of superior strength nor evident  premeditation, the crime committed by the accused  is simple homicide.

The presence of the  fifth mitigating circumstance  of article 13 of the Revised Penal Code, that is, immediate vindication of  a grave  offense  to said  accused, may  be taken  into consideration in favor of  the two accused, because  although  the elopement  took place on  January 4, Id35, and the  aggression on the  7th of said  month and year,  the offense did not cease while Salome's  whereabouts remained unknown and her marriage to the deceased unlegalized.  Therefore, there was no interruption  from the time the offense was committed  to the vindication thereof. Our opinion  on this  point  is based on  the fact that the herein accused  belong to a family of old customs to whom the elopement of a daughter with a man constitutes a grave offense to their  honor and causes disturbance of the peace and tranquillity of the home and at the same time spreads uneasiness and anxiety in the minds of the members thereof.

The presence of the sixth  mitigating circumstance of said article 13,  consisting in having acted upon an impulse so powerful as naturally to have produced passion or obfuscation, may  also be taken into consideration in favor of the accused.  The fact that the accused saw the deceased run upstairs when he became aware of their presence, as if he refused to deal with them after having gravely offended them, was certainly a stimulus strong enough to produce in their  mind  a fit of  passion  which blinded them and led them  to commit the crime with which they are charged, as held by the  Supreme Court of Spain in similar cases in its decisions of February 3, 1888, July 9, 1898, February 8, 1908,  May 25, 1910, July 3, 1909, and in other more recent ones.

The seventh circumstance  of article  13 of the Revised Penal Code, consisting in having surrendered himself immediately to the agents of  persons in authority, should also be taken into  consideration in favor of the accused Epifanio Diokno.

In view of the foregoing considerations, this court concludes that  the accused are  guilty beyond a reasonable doubt of the  crime  of  homicide defined  and punished in article 249  of the Revised Penal Code, the  penalty prescribed therein being reclusion temporal in  its full extent. Three mitigating circumstances must  be taken  into consideration in favor of the accused Epifanio Diokno and two in favor of the accused Roman Diokno, with no aggravating circumstance, thus authorizing the imposition of the penalty next lower  to that prescribed by law (reclusion temporal  in its full extent), or prision mayor in its full extent, in the period that  this  court deems applicable,  which is the medium period in  this case,  in accordance  with the provisions of article  64, rule  5, that is eight years and one day of prision mayor.

Both  accused  should  be granted the benefits of  the indeterminate sentence provided in Act No. 4103, as amended by Act No.  4225, which prescribes a penalty the  minimum of which shall be taken from that next  lower to  prision mayor, or prision correctional of from six months and one day to six years.  Taking into account the circumstances of the case,  the indeterminate penalty to which each of said accused must be sentenced is fixed at from two years and one day of prision correctional to eight years and one day of prisidn mayor, crediting each with one-half  of the time during which  they have  undergone preventive imprisonment (art. 29, Revised Penal Code).

Wherefore,  this  court  declares the accused  Epifanio Diokno and Roman Diokno guilty of the crime of homicide and  sentences each of  them to an indeterminate penalty from two years and one day of prision correctional to eight years and one day  of prision mayor, crediting them  with one-half of the time during which they  have undergone preventive imprisonment, and to indemnify the heirs of the deceased in the sum of P1,000, with the costs  of both instances.  So ordered.

Avanceña, C. J., Abad Santos, and Imperial, JJ., concur.



I accept the  conclusion  of the majority of my brethren that the crime committed by the defendants and appellants was simple homicide as the existence of either the qualifying circumstance of evident premeditation  (art.  14, par. 13, Revised Penal Code) or that of abuse of superior strength (art. 14, par. 15, Revised Penal Code),  has not been clearly established. The mere fact that the two appellants  were both armed with balisong knives and that  the deceased knelt before them and implored forgiveness for what he had  done is not, in my opinion, necessarily conclusive of the concurrence of abuse of superior strength in the commission of the crime (besides  U.  S. vs. Devela, 3  Phil., 025, 629, vide I Viada,  Codigo Penal, pp. 278, 279).   To constitute abuse of superior strength, it  is  necessary to show  with sufficient clearness  (People vs. Trumata and Baligasa, 49 Phil., 192,  194), that the  aggressors, individually and collectively, were greatly  superior in strength to the offended party  (People  vs.  Dayug  and Bannaisan, 49  Phil.,  423,

For the reason given  in  the  majority opinion, I  also agree to the taking  into account  of the mitigating circumstance of the appellants having acted upon an impulse so powerful as  naturally to  have produced passion  or obfuscation (art.  13, par. 6, Revised Penal Code).

I  also agree in  according  to  the  appellant,  Epifanio Diokno, the mitigating circumstance of voluntary surrender. (Art. 13, par. 7, Revised Penal  Code.)

I am of the opinion, however, that the mitigating circumstance of immediate vindication  of a grave offense  (art. 13, par.  5, Revised  Penal Code)  should not be considered in favor of the appellants.  It should be observed that the proximate cause of the  tragedy was the  elopement of Salome, the daughter of Epifanio and the sister of Roman. Salome  and  the deceased had been engaged  for about a year and the evidence shows that the elopement took place at the instance of Salome herself.  Under existing legisation, a  woman eighteen years of age or over, can contract marriage without the consent of her parents.   If she leaves the parental home for this  purpose, neither she nor her lover commits any offense.  Under the doctrine laid down by the majority in the present case, if a woman  thirty or more years of age should leave the parental home for the purpose  of marrying or for  some kind or species of that romance described by Tennyson in his Idylls of  the King or by Scott in his Lay of the Last Minstrel, against the wishes of her parents, and her father or  brother should, in hot pursuit, overtake the impassioned Romeo and  kill him on the spot, the enraged assailant or assailants would be accorded the benefit of the mitigating circumstance of having acted in immediate vindication of a "grave offense" committed against them,  notwithstanding the maturity or overmaturity in age of the woman and the fact that  the elopement was had at her  instance and upon her invitation. It seems to me that the  interpretation is  not in keeping with  the mores of the times. Filial  respect and family traditions are best conserved by home education or environment, not to speak of other factors, rather than by the rigid or  liberal application  of the penal  laws.  The act of the deceased in eloping with Salome, at the invitation of the latter was not a "grave offense" which called for or justified immediate vindication.

Disregarding the mitigating circumstance of immediate vindication, considering, furthermore,  that there are  no aggravating circumstances attendant in the commission of the offense, and  applying  the  provisions of article  64 of the Revised Penal Code and those of the Indeterminate Sentence Law, Epifanio Diokno, having in his favor two mitigating circumstances,  should be sentenced  to an indeterminate prison  term ranging from  four years, two months and one  day of prision correctional to ten years and one day of prisidn mayor, and Roman Diokno, having in his favor only one mitigating circumstance,  should  be sentenced to an indeterminate prison  term ranging from six years and one day of prision mayor to twelve years and one day of reclusion temporal.



I am firmly convinced that the  crime committed by the appellants is not simply homicide but murder.  It is  so qualified by the proven fact that abuse of superior strength, which is one of the circumstances raising homicide, if committed,  to the category of murder, was present in the commission thereof (art. 248, subsec. I, of the Revised  Penal Code).

From Juan Alcantara's testimony to which the court gives absolute credit, so that it is stated in the majority opinion that he  saw the appellants pursue the deceased, Yu Hiong, on  said occasion,  and that he  fired shots in the air  in order to call the police for help, it appears that upon looking out of the  window of his house, almost fronting that of Antonio Layco on the landing of whose stairs the crime was committed, he saw the deceased running along Hermanos Belen Street  pursued  at close range by the appellants, anxious to  enter Layco's house  about twenty or twenty-five meters away  (t. s. n.,  page 57), in order to escape  from the aggression of which he was the victim. It likewise appears that as he saw, upon arriving at the landing of the stairs of Layco's house, that the same  was closed and that he had no other means df escape, not having as he, in fact, did not then have any instrument to defend himself, he fell on his knees, and in  that position asked the appellants, his pursuers, to forgive him.  It finally appears that  instead of stopping  before such attitude of the deceased,  which  clearly  indicated surrender  and  acknowledgment of his helplessness, said appellants attacked him with  their respective weapons, wounding him  in the back, in the side and in  other parts of the body, giving him no peace until they saw him down., and bathed  in his  own blood.  I am of the opinion that,when two armed persons attack another who is not armed, as the appellants did to Yu Hiong who was then completely unarmed  and showed signs of submission to them by falling on his knees and imploring their forgiveness, the circumstance  of abuse of superior strength  clearly and undeniably exists.   It is because one who flees, falls  on his knees later when he  can no longer evade his pursuers, and immediately asks their forgiveness, shows not only his desire not to resist but his conviction  that he is powerless to offer resistance, thereby admitting  his inferiority  and the  superiority of his assailants.  The Supreme  Court of Spain, after whose Penal Code  ours  is patterned, settled a similar question substantially in this sense, in its  decision of June 17, 1872.

In a  decision  of  January 23, 1887, said court, resolving the question whether or not the circumstance  of abuse of superior strength should be taken into consideration in a ease where two persons attack another,  there  being no disparity ,in physical strength between the attackers  and the attacked,  and  the former  committed the aggression with  arms, the  latter having only a small rod to defend himself, sustained  the affirmative.

In another  decision of January  14, 1899, the question whether or not there was abuse of superior strength in a case where two persons, one armed with a cane and the other with a big stone, attacked another who was unarmed, was likewise resolved by said court in the affirmative.

The  question  whether or not  the  accused, who simultaneously  pursued their completely unarmed victim, over-took, surrounded and attacked him later with steel weapons, mortally  wounding  him,  acted  with abuse  of  superior strength, was  similarly determined  in the decision of January 17, 1919,  the court having held therein that singleness of action and purpose was present in taking advantage of the victim's lack of means  of defense, with the correlative odds in favor  of the aggressors.

Abuse of superior strength is  generally determined  by the excess of the aggressor's natural strength over that of the victim, taking into consideration  the momentary  positions of both and the employment of means weakening the defense, although not annulling it (decision of the Supreme Court of Spain of March 6, 1928).  If the case under consideration were to be considered in this light, the conclusion must  be  that  the appellants  really acted  with abuse  of superior strength.

Considering the act committed by the appellants a manifest murder, and not homicide, due to the presence of the qualifying circumstance of abuse of superior strength, and it  being a fact that the mitigating  circumstances stated in the majority opinion were present in the commission thereof, I  am  of  the opinion  that the penalty that  should be imposed upon them,  under article 64,  rule 5,  of the Revised Penal  Code,  is from ten years and  one day  of prision mayor to seventeen years and four months of reclusion temporal, said penalty being next  lower to  that prescribed for the crime of murder, or at least, the indeterminate  penalty of from five years of prision correctional to ten years and  one day of prision mayor,  in accordance with  Act  No.  4103.   With  due respect  to  the  majority opinion, I dissent therefrom and vote as herein stated.