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[ GR No. 7498, Sep 12, 1912 ]



23 Phil. 171

[ G.R. No. 7498, September 12, 1912 ]




This case has come before  us through an appeal raised by the three defendants  from the judgment of conviction rendered by the Honorable Adolph Wislizenus, judge.

On  October 19, 1904,  Hilarion Layaolayao,  then  lieutenant of  the  barrio of Tobod, of the  municipality of Dumanjug, ordered several members of the police to make investigations in that barrio for the purpose of ascertaining who were and who were  not provided  with personal registration certificates, and to prepare  a list of such persons. In obedience to this  order the policemen Felix Cambonga, Cesareo Ordeliza, and Fau'sto Oatisan, together with their corporal, Cesareo Padayao, started to discharge their  duty at 3  o'clock  in the  afternoon of that same day, and, at about  7 o'clock in the evening, went in front  of the house of Santiago, Feliciano,  and  Ciriaco Ginosolongo.  After wishing them good-evening, the officers stated to them the purpose  of their presence there, whereupon  they  were invited by  the owners of the  house  to come inside.  Only the corporal, Cesareo Padayao, provided solely with a small whip,  accordingly entered the house,  the three other policemen,  who carried bladed  weapons, remaining in the yard below.  When the corporal Padayao, asked the said men for their  cedulas or registration certificates, one of  them replied that he would show them to him at once, offering him at the same time a cigar, and while they were getting the cedulas from some place in the house, Santiago Ginosolongo put out the light and with a pinuti, a long pointed bolo,  pierced  corporal  Padayao through  the  body, the weapon entering below the left armpit and the point of the blade coming out at the right side; thereupon the wounded man shrieked and called to the other policemen for help and rushed precipitately toward the yard, but on the stairs he was wounded again by another blow on the right leg.  At the first shriek of the victim, the three policemen who  were in the yard below responded, but were met by the defendants who were also coming down the stairs in pursuit of the corporal, and then a  struggle ensued between the former and the policeman, Felix  Cambonga, the  only one  of the officers who made resistance, for the  other two policemen, his companions, took  to flight.  As  a result of the fight, Antonio Ginosolongo, the  defendants' father,  and Petra Ginosolongo, their sister, were killed  in the yard, and the policeman, Cambonga, received three wounds, inflicted by the said Santiago Ginosolongo, in the forehead, in the left side and in the chest or waist.

The aforesaid facts were brought  to the notice  of the justice of the peace court of Dumanjug, on October 21,1904, by Corporal Padayao's widow, and, a preliminary investigation having been made on August 28, 1911, a complaint was accordingly filed  by the provincial fiscal in the Court of First  Instance of Cebu, charging the said  Santiago,  Feliciano, and Ciriaco Ginosolongo with the crime of homicide, and this case having been instituted, the court,  after due consideration of the evidence, rendered judgment on November  7, 1911, sentencing each  of the defendants to the penalty of twelve years and one day of reclusion temporal and to pay one-third of the costs.  From this judgment, the defendants appealed.

From the facts aforerelated, duly proven in this case, it appears that,  in the  evening  of  October 19, 1904, on an occasion when four policemen, complying with their duties as agents of the authorities, were carrying out an  order from the municipal president of Dumanjug, and as soon as their corporal, Cesareo Padayao, entered the house, upon the invitation  of some one of its inmates, to which  latter he announced the object of his visit, he was offered a cigar to smoke, the said inmates agreeing to show him the cedulas which he desired to see; that thereupon, without warning, Padayao was assaulted by Santiago Ginosolongo who stabbed him with a long, pointed bolo which pierced him through the body, the weapon entering below the left armpit and its point coming out at the right side; that, when the wounded man was running down from the house to the yard below, he was still pursued  by his assailant,  who  inflicted upon him two other wounds as a result of which he immediately fell at full  length  and died at a place about. 10 meters distant from the house; that as the policeman, Felix Cambonga, at the shrieks of the unfortunate assaulted corporal, approached to  render aid, he was also set upon by Santiago Ginosolongo, who inflicted upon him three serious wounds, and, as a  consequence of  the struggle  between Cambonga and the defendant just above mentioned, the latter's father and sister, Antonio and Petra Ginosolongo, were also killed, they having approached the said  combatants, and whether they came near the latter to separate them or to take a hand in the fight by assisting their son and brother, is a fact not satisfactorily shown by the record.

The acts committed by Santiago Ginosolongo, besides constituting  unlawful resistance to agents of the authorities while they were performing the duties  of their office, are characteristic of the crime of murder, perpetrated against the corporal, Padayao, on account of  the  roughness and suddenness of the attack made by the aggressor at a moment when the assaulted party  was unsuspicious of danger and unarmed  and was  waiting to be shown the cedulas which he had  demanded, far from suspecting that he was to be assaulted in that manner after he had been invited to enter the house  and  had  been accorded a  friendly  reception therein.  JJut, as the complaint only charges the accused with the crime of homicide, it would not be lawful to convict them of the more serious crime of murder, and,  therefore, this case must be decided in accordance with the classification  made of the crime under prosecution.

The crime of homicide is provided for and punished by article 404 of the Penal  Code; and it is  an unquestionable fact that the police corporal, Cesareo Padayao, met a violent death at the hands of his assailant, Santiago Ginosolongo, and,  therefore,  it is beyond peradventure that this defendant is the sole proved perpetrator by direct participation confessed and convicted of the said crime, classified in the complaint as simple  homicide, instead  of murder,  as  it should have been, since it was committed with treachery.

In view of the fact that in the complaint itself the crime of attempt  against the  agents of the  authorities,  is not charged, this crime may not, lawfully, be considered in this decision, which must deal exclusively with that of homicide.

With  respect to the allegation made by Santiago Ginosolongo, that,  in attacking  Corporal Padayao,  he acted in his own  defense and in that of his father and sister, the  record of this case does not show that the four policemen went into the defendant's house, nor that they committed any abuse or insult against the inmates thereof.  Neither is there proof that  when this defendant, Santiago, assaulted Padayao and pierced him  through the body with a deadly weapon, he himself had previously been  attacked, and his father, Antonio Ginosolongo, was already wounded; for the appellant's own brothers, Feliciano and Ciriaco, not only did not corroborate his unfounded allegation,  but testified differently and contradicted him.   Moreover, the facts were perfectly proven that the corporal, Padayao, was the only one  of the  officers who  entered the house;  that, after he had been seriously wounded and when he was leaving it, yelling for help, he was still being pursued by his assailant, Santiago Ginosolongo, for the latter succeeded in inflicting upon him two other wounds, one  in the leg, while Padayao was still on the stairs in the act of leaving the house, and the other, in the yard below; that the struggle between this defendant and the policeman, Felix Cambonga, the only person  who attempted to aid the corporal, took place in the yard, when Padayao was  already lying  stretched out on  the ground dying, on which occasion Felix also received three wounds from the said  Santiago, and so it is true that the struggle did not take place in the upper part of the house, but in the yard below, that  the assailant's father  and sister  were killed in the yard  and  not  inside the house, upon  their approaching the combatants, Santiago and Felix, for when Padayao,  the assaulted party, ran below,  pursued  by the former, all  of  Santiago's family came out of the house; therefore, there are  absolutely  no  grounds  whatever to support the defense maintained  by this defendant, to the effect that there was a  prior assault on the part of the policemen, against his said father and sister.

Notwithstanding that  Felix Cambonga testified that the other defendants,  Ciriaco and Feliciano Ginosolongo,  also took part in the assault made upon him, by throwing stones at  him  from  a distance, while he  was  struggling  and defending himself against their brother, Santiago Ginosolongo, yet this statement  does not appear to be corroborated by  any other  evidence,  even  circumstantial, tending to prove their guilt beyond  all reasonable doubt; therefore, in the absence of proof that they actually  participated in the crime of homicide  under prosecution, and though we deem their innocence doubtful,  they must be acquitted.

In the commission of this crime of homicide, no consideration  is to be had  of the attendance  of the special circumstance specified in article 11 of the Penal Code, for the reason that it does not  appear  to have been proved that the defendant, Santiago, was entirely uneducated, though unusual perversity is noticeable  in his conduct, since he   assaulted, suddenly, unexpectedly and without provocation, an agent of the authorities who was complying with his duties, after the defendant had  promised to exhibit his eedula and had inspired confidence in the officer by inviting him to come into the house, and offering him a cigar.  On the other hand, account ought to be taken of the concurrence of the circumstance of treachery attending the commission of the criminal act, for the reason that when this circumstance qualifies the crime of homicide the latter is thereby converted into murder.  However, since only the crime of homicide was charged in the complaint and the case was prosecuted and decided in accordance with that charge, it is not permissible nor  would it be lawful to try and convict the accused for the crime  of  murder,  yet  strict justice requires that the element of treachery which attended the commission of the crime charged, must be taken into account in the present case, as  a mere aggravating circumstance.

For the foregoing reasons, whereby the errors assigned to  the judgment appealed from are deemed  to have been refuted, we are  of the opinion  that we should,  as we do hereby, sentence Santiago  Ginosolongo to the penalty of seventeen years four months and one day  of reclusion temporal, to the accessories provided by article 59, to indemnify the widow and heirs  of Cesareo Padayao in the sum of P1,000, and to pay one-third of the costs of both instances; and, further, that we should, as  we do hereby, acquit Feliciano and Ciriaco Ginosolongo, with two-thirds of the costs of both instances de oficio, thus affirming the judgment appealed from in so far  as it is in agreement herewith  and reversing it in so far as it is not.   Let an order be issued to the Director of Prisons for the immediate release of the two last-mentioned defendants, if they are not held on any other charge.  So ordered.

Arellano, C. J., Mapa, Johnson,  Carson,  and Trent,, JJ,, concur.