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FIRST DIVISION

G.R. No. 73656 October 5, 1989

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROGELIO VILLAPANDO y BUNSOL, Defendant-Appellant.

MEDIALDEA, J.:

The accused-appellant, Rogelio Villapando y Bunsol was charged before the Regional Trial Court of Batangas City ¹ with the crimes of murder in CCC-VIII-823(79) and of attempted homicide in Criminal Cases Nos. 770 and 771. The information filed in the said cases read as follows:

That on or about the 14th day of January, 1979, at around 6:10 o'clock in the evening at P. Genato St., Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above- named accused, while armed with a fan knife, with intent to kill and with the qualifying circumstance of either treachery or evident premeditation, did then and there, wilfully, unlawfully and feloniously attack, assault and stab suddenly and without warning, one Saturno Romulo Manalo y Gabia, thereby inflicting upon the latter wounds on the different parts of his body which directly caused the victim's instantaneous death.chanroblesvirtualawlibrarychanrobles virtual law library

CONTRARY TO LAW. (Records of CCC-VIII-823(79), p. 1)

That on or about the 14th day of January, 1979, at around 6:10 o'clock in the evening at P. Genato St., Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above- named accused, while armed with a fan knife, with intent to kill and without any justifiable cause, did then and there, wilfully, unlawfully and feloniously commence the commission of the crime of homicide directly by overt acts, that is, by then and there, attacking, assaulting and stabbing with said fan knife one Alicia Beron y Panganiban, thereby inflicting upon the latter physical injuries, to wit: 'incised wound 1cm. long posterior aspect distal 3rd forearm right,' which injuries had required medical attendance and prevented her from performing her customary work for a period of not more than nine (9) days, and if said accused did not perform all the acts of execution which should have produced the crime of homicide as a consequence, it was not due to his spontaneous desistance but because Saturno Romulo Manalo y Gabia was able to push the offended party.chanroblesvirtualawlibrary chanrobles virtual law library

CONTRARY TO LAW. (Records of CC No. 770, p. 1)

That on or about the 14th day of January, 1979, at around 6:10 o'clock in the evening at P. Genato St., Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above- named accused, while armed with a fan knife, with intent to kill and without any justifiable cause, did then and there wilfully, unlawfully and feloniously commence the commission of the crime of homicide directly by overt acts, that is, by then and there, attacking, assaulting and stabbing with said fan knife one Ramon Tolentino y Delgado, thereby inflicting upon the latter physical injuries, to wit: 'l. Sutured wound 23 cms. long extending from distal half of arm to proximal 3rd of forearm, anterior aspect right; and 2. Sutured wound 14 cms. long anterior aspect right forearm,' which injuries had required medical attendance and prevented him from performing his customary work for a period of more than one (1) month, and if said accused did not perform all the acts of execution which should have produced the crime of homicide as a consequence, it was not due to his spontaneous desistance.chanroblesvirtualawlibrary chanrobles virtual law library

CONTRARY TO LAW. (Records of CC No. 771, p. 1)

Upon being arraigned, the accused entered a plea of not guilty to the offenses charged. After trial on the merits, the lower court rendered its decisions in CCC-VIII-823(79) on October 9,1984, and in Criminal Cases Nos. 770 and 771 on July 12, 1985, the dispositive portions of which read:

WHEREFORE, premises considered, accused ROGELIO VILLAPANDO Y BUNSOL is hereby sentenced to suffer the penalty of RECLUSION PERPETUA (life imprisonment), to indemnify the lawful heirs of the deceased in the sum of TWELVE THOUSAND (Pl2,000.00) PESOS, plus FIVE THOUSAND (P5,000.00) PESOS as actual damages and TWENTY FIVE (sic) (P25,000.00) PESOS as moral and exemplary damages and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library

IT IS SO ORDERED. (Rollo, P. 92)

PREMISES CONSIDERED, in Criminal Case No. 770, accused Rogelio Villapando is hereby sentenced to a straight penalty of TWENTY (20) DAYS imprisonment and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library

In Criminal Case No. 771, accused Rogelio Villapando is hereby sentenced to an imprisonment of SIX (6) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS and ONE (1) DAY of prision correccional, as maximum, together with the accessory penalties and to pay the costs.chanroblesvirtualawlibrarychanrobles virtual law library

The accused in the said two cases shall be credited with the full term of his preventive imprisonment if he has any, and to serve first the most severe penalty imposed against him in these two cases, pursuant to Art. 70 of the Revised Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. (Rollo, p. 70)

Not satisfied with the aforesaid decisions, the accused appealed.chanroblesvirtualawlibrarychanrobles virtual law library

The antecedent facts as summarized in the People's brief are as follows:

On January 14,1979 at about 6:00 o'clock in the evening, Ramon Tolentino, Nelia Panganiban and Alicia Beron went to the BLTB Co. bus terminal in Batangas City to take a bus bound for Manila (pp. 10-11, tsn., July 28, 1983). Romulo Manalo, who was Alicia's boyfriend, went with them to see Alicia off (p. 11, Ibid.). Upon reaching the terminal, Nelia, Alicia and Romulo immediately boarded a parked bus while Ramon went to the terminal counter to secure student fare discounts for themselves (pp. 12-13, Ibid.). The trio proceeded to the back of the bus where Nelia and Alicia were able to seat themselves (p. 13, Ibid.). While inside the bus, it appears that Romulo got into an argument with the accused who was seated infront (sic) of the girl's (sic) seats (p.5, tsn., Dec. 9, 1983). Subsequently, Romulo turned to the direction of the bus door to alight from the bus (p. 13, Ibid., July 28, 1983). He was followed by the accused (Id.). Near the door of the bus, Romulo and the accused began to exchange fist blows (pp. 5-6, Ibid., Dec. 9, 1983). They continued to trade fist blows on the ground (Id.). Suddenly, the accused pulled out a fan knife and stabbed Romulo (pp. 8-9, tsn., May 13,1983). Upon seeing Romulo being stabbed by the accused, both Alicia and Ramon approached the duo to break up the fight (p. 10, Ibid.). As Alicia embraced Romulo, the accused lunged at her three times with the knife (Id.). The first two blows landed near the base of her handbag and at the bottom of her handbag. The third blow struck her right forearm (Id.) Ramon, on the other hand, who was also pulling Romulo away from the accused, was likewise stabbed by the accused with the knife, hitting the former twice on the right arm (pp. 10-11, Ibid.). The accused then ran away towards the public market (pp. 11-12, Ibid.). Ramon chased the accused but gave up the pursuit at the entrance of the market as it was already dark (p. 12, Ibid.). Romulo died as a result of the stab wound inflicted by the accused on his chest which penetrated his chest wall and caused him to suffer cardiac arrest (pp. 7-9, tsn., Aug. 31, 1983; Exh. U). Ramon sustained 2 stab wounds on his right forearm which incapacitated him from performing his regular work for a period of more than 1 month (Exhibit A). Alicia suffered a stab wound on her right arm which prevented her from doing her customary duties for nine (9) days (Exhibit B). (Appellee's Brief, pp. 4-6; Rollo, p. 105)

The accused, on the other hand, interposed the defense of alibi. He claimed that he and his kumpadre, Romy Acedillo, were at the cockpit in San Pablo City at the time of the incident; and that thereafter, on their way to Acedillo's house, accused purchased a Seiko watch from out of his winnings and the store issued to him a guarantee book dated January 14, 1979. In addition, he presented an eyewitness to the crime, Paquito Sorizo who testified that the accused was not the victims' assailant.chanroblesvirtualawlibrary chanrobles virtual law library

The lower court discredited the appellant's defense of alibi as weak and the testimony of the defense witness as biased and without probative value.chanroblesvirtualawlibrary chanrobles virtual law library

In this appeal, the accused assigned the following errors:

The Trial Court grossly became dishonest to itself when it did not take into consideration the defense of ALIBI put up by the accused perfected collaborated (sic) by two credible witnesses; chanrobles virtual law library

The Trial Court blinded itself by not taking against the prosecution the inconsistencies in the testimonies given by the witnesses against the accused. (Appellant's Brief, p. 3; Rollo, p. 57)

The appeal is devoid of merit.chanroblesvirtualawlibrarychanrobles virtual law library

We have already ruled that for alibi to serve as a basis for acquittal, it must be established by clear and convincing evidence (People v. Cruz, G.R. No. 68805, July 9,1986; 142 SCRA 576). Appellant must not only prove that he was elsewhere at the time the crime was committed but also that it was impossible for him to have been at the scene of the crime. This appellant failed to do. The distance between San Pablo City and Batangas City does not render it impossible for appellant to be present at the place and time of the incident taking into account the modern means of transportation. Further, the Seiko guarantee booklet is to Us an unconvincing piece of evidence. It does not assure Us that the purchase was really done in San Pablo City and not in Batangas City. It is also possible that the watch was purchased in the morning or in the afternoon of the said date. The conflicting testimonies of appellant and his witness regarding the circumstances attendant to the purchase of the watch, likewise, weakens the defense of alibi. Appellant contends that upon his purchase of the Seiko watch, the jewelry store just handed him a guarantee booklet but did not give him any receipt (TSN, February 10, 1984, p. 7; Records, p. 296). On the other hand, his witness, Romy Acedillo, testified that the store issued to appellant a receipt and a guarantee booklet (TSN, February 10, 1984, pp. 71-72; Records, pp. 360-361). If the two were indeed together in purchasing the watch, how come their testimonies as to the circumstances of the purchase do not jibe?chanrobles virtual law library

Moreover, appellant was clearly and positively Identified by the prosecution witnesses as the assailant. Witness Ramon Tolentino testified:

FISCAL ATIENZA:chanrobles virtual law library

Q Now, Mr. Tolentino, after you were stabbed twice by that particular man, what else happened if anything else happened? chanrobles virtual law library

A He turned again on Romulo Manalo, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what did he do again if he did anything else? chanrobles virtual law library

A Maybe he delivered another stab blow but I did not see where it landed, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q What else happened if anything else happened? chanrobles virtual law library

A I spoke these following words: 'Tama na naman.' And then we faced each other and then he ran away, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q You have been referring to this particular man who stabbed Romulo, who stabbed you and likewise stabbed Alicia, if that man is present in court, will you be able to point to him? chanrobles virtual law library

A I could, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Please do so.chanroblesvirtualawlibrarychanrobles virtual law library

A (Witness pointing to a person and when that person pointed to was asked of (sic) his name, Identified himself as Rogelio Villapando) chanrobles virtual law library

Q Now, when you mentioned that man whom you Identified now as Rogelio Villapando ran away, what did you do if you did anything?chanrobles virtual law library

A I chased him up to the point he was able to gain entrance to the old public market of Batangas City, sir.

xxx xxx xxx

ATTY. CABILING (counsel for the accused): chanrobles virtual law library

Q When you saw for the first time that Romulo was being stabbed, Mr. Romulo was facing you, is that correct?chanrobles virtual law library

A Yes, sir, but Romulo was holding the neck around his left arm (kilik) while that person being "kilik" stabbed him sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And the person who was stabbing Romulo whom you had just described as "kilik," embraced by the neck by Romulo, has his back in front of you, is that correct? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q So that at that precise moment when you saw for the first time Romulo being stabbed by that man, you were not able to see his face at all? chanrobles virtual law library

A It was this way, sir. When Romulo was stabbed first by the accused, Romulo was facing me and Romulo was holding the accused by the neck and his back was facing me, and I approached Romulo and pulled him back and that was the time when the accused turned on me and stabbed me twice and I was able to hold his hand and thereafter since Romulo was already wounded, he turned again on Romulo.chanroblesvirtualawlibrarychanrobles virtual law library

x x x. (TSN, May 13, 1983, pp. 11 -13, 27-28; Records, pp. 65-67, 81-82)chanrobles virtual law library

and witness Nelia A. Panganiban also declared:chanrobles virtual law library

FISCAL ATIENZA: chanrobles virtual law library

Q And when you heard the shouting outside the BLTBCo bus, what else transpired, if anything else transpired? chanrobles virtual law library

A Alicia also alighted and I remained at the bus, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And then what did you do thereafter? chanrobles virtual law library

A I approached the right side of the BLTBCo. bus and I moved to a seat for two (2) persons and by the side of the window, I looked out of that window, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Looking out from that window, what did you witness, if you witnessed anything?chanrobles virtual law library

A I saw Villapando stabbing Romulo Manalo, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q If this Villapando is inside the courtroom, will you be able to point to him? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Please do so.chanroblesvirtualawlibrary chanrobles virtual law library

A There he is, sir. (Witness pointing to a person and when that person pointed to was asked of (sic) his name, Identified himself as Rogelio Villapando)chanrobles virtual law library

Q And you mentioned that Villapando was stabbing Romulo Manalo at that time that you looked out from the window of that BLTBCo. bus, will you please demonstrate to us their respective positions on (sic) that time you saw Villapando striking stab blows on the person of Romulo Manalo? May I request, if your Honor please, for any female person here? (The witness representing herself as Romulo Manalo and the old woman representing Villapando, standing face to face while the left hand of Romulo was embracing the neck of Villapando while Villapando's right hand was delivering stab blows from the left side of his head downward) chanrobles virtual law library

Q At that particular time when you saw Villapando stabbing Romulo Manalo, who among them were facing you, if anybody of them were facing you? chanrobles virtual law library

A Romulo was facing me, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q If Romulo was the one facing you, how were you able to say with clarity here it was Villapando who was stabbing Romulo at the time? chanrobles virtual law library

ATTY. BAYANI: chanrobles virtual law library

Objection, Your Honor. It is fiscal who is cross-examining this witness.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL ATIENZA: chanrobles virtual law library

Precisely that is just to clarify.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: chanrobles virtual law library

That is very favorable to the defense. He is helping you.chanroblesvirtualawlibrary chanrobles virtual law library

WITNESS:chanrobles virtual law library

A They made a turn, sir.chanroblesvirtualawlibrary chanrobles virtual law library

FISCAL ATIENZA: chanrobles virtual law library

Q And during that turn, who were then facing you? chanrobles virtual law library

ATTY. BAYANI:chanrobles virtual law library

Leading, Your Honor.chanroblesvirtualawlibrarychanrobles virtual law library

COURT:chanrobles virtual law library

Villapando was facing after the turn.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL ATIENZA:chanrobles virtual law library

Q And then thereafter, what else did you do, if you did anything?chanrobles virtual law library

A I took my things and alighted from the bus, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q And then after alighting from the bus, what else transpired, if anything else transpired?chanrobles virtual law library

A When I had already alighted from the bus, I saw Ramon Tolentino chasing Villapando towards the south, sir.chanroblesvirtualawlibrarychanrobles virtual law library

x x x. (TSN, July 28, 1983, pp. 14-17; Records, pp. 116-119)

We find nothing in the records of the case which would show that these witnesses were actuated by improper motives in pointing to the appellant as the person responsible for their injuries and for the death of their companion. Their testimonies are, therefore, credible and worthy of belief.chanroblesvirtualawlibrary chanrobles virtual law library

Appellant's avowal of innocence also cannot be sustained on the basis of the testimony of his witness, Paquito Sorizo. A careful reading of Sorizo's entire testimony fails to convince Us of its veracity. Sorizo appears to be more of a coached witness. The following findings of the trial court demonstrate clearly the unreliability of Sorizo's testimony:

As to the testimony of defense witness Paquito Sorizo stating that he witnessed the said stabbing incident that resulted to the death of Romulo Manalo, this court could not believe him when he said that Rogelio Villapando is not the assailant of Romulo Manalo. This particular witness of the defense is a bias witness due to the special relationship and/or treatment given by the accused, his wife and the lawyer of the defense, under the following circumstances, to wit: chanrobles virtual law library

1. That he was always present during the hearing of this case and the other two (2) attempted homicide cases filed against herein accused, as evidenced by his testimony earlier stated in this findings; chanrobles virtual law library

2. That he attended at the Letty's Restaurant to have a conference with the lawyer for the defense upon the request of the wife of the herein accused.chanroblesvirtualawlibrary chanrobles virtual law library

If really said witness was (sic) present when the deceased was assaulted and stabbed to death and that he was only two (2) brazas away from the crime-scene, why is it that there is (sic) no showing that he at least attempted to prevent the victim and the accused from the (sic) struggling with each other, if really true (sic) as janitor of the BLTBCo, that he was then only two brazas away from them, why did he not help when Alicia Beron embraced the victim in order to prevent the (sic) further assault of the accused and likewise did not prevent the said accused from inflicting injury to said Alicia Beron and Ramon Tolentino? and (sic), finally, why did he fail and/or refuse to execute any written statement similar in substance on what he said in court immediately after the stabbing incident or immediately after the apprehension of the accused, considering that the said incident was properly attended to for investigation by the police authorities of Batangas City who were then personally present immediately after the incident took place? chanrobles virtual law library

To the best analysis and findings of this court, witness Paquito Sorizo was coached by someone to testify in favor of the accused and his testimony given in court is (sic) concocted or fabricated one and, therefore, without credence and probative value in the instant case.chanroblesvirtualawlibrary chanrobles virtual law library

It is a well-settled rule that if a man remains silent when he ought to speak (like in the present case) he will be barred from speaking later (Gabriel vs. Bans, 56 Phil. 314).chanroblesvirtualawlibrary chanrobles virtual law library

Further, the court has observed the demeanor or manner of said witness Paquito Sorizo while on the witness stand and while testifying, said witness usually responded to the questions propounded by the defense counsel on direct- examination in a manner as if the answers were already inside his mouth or just at the tip of his tongue and, when asked if the assailant was inside the courtroom, said witness answered that the accused was not present, although said witness did not bother himself to look around the court premises and gave his answer while his face was little bit downward and facing directly to the Presiding Judge. (Rollo, pp. 33-34)

Appellant, furthermore, assails the credibility of some prosecution witnesses. He claims that the prosecution witnesses second, rather than their first, statements before the police were submitted to the court; that the given description of the assailant in their first statements matched the description given by defense witness Sorizo; that the second statements' description of the assailant did not match appellant's physical appearance especially as to height since he is short while the given height was 5'7"; that witness Panganiban's identification of appellant is questionable since it was not done in a police line-up and appellant was in front of Panganiban ready to be identified; that, also, she did not see the actual stabbing of her companions, Tolentino and Beron; that witnesses Alicia Beron and Dr. Celso Bulanhagui, the attending physician, were not presented in court; that the mother of the victim, Lucia Manalo, did not identify the accused; and that Miss Rosario Panaligan, Head, Medical Records Section of the Batangas Regional Hospital, who was presented in lieu of Dr. Bulanhagui, could not testify as to the correctness of the death and medical certificates signed by Dr. Bulanhagui (Appellant's Brief, pp. 6-10; Rollo, p. 57).chanroblesvirtualawlibrary chanrobles virtual law library

We are not persuaded. The fact that Panganiban did not see the actual stabbing of Ramon Tolentino and Alicia Beron and that Lucia Manalo did not identify the appellant as the assailant is of no moment. The important thing is that the victims themselves identified their assailant as the appellant.chanroblesvirtualawlibrary chanrobles virtual law library

Moreover, identification of an accused need not be done in a police line-up. It may also be made by just pointing to the accused directly as what was done in this case. We find, too, that contrary to the appellant's claim, witness Panganiban was aware of appellant's near presence, thus:

COURT: chanrobles virtual law library

Q Upon arrival at the police headquarters, what did you do? chanrobles virtual law library

A I pin-pointed at the person of Villapando and there were many persons inside when I pin-pointed to him, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library

Q Why did you pin-point to him upon your arrival at the police station? chanrobles virtual law library

A Because I was asked by the police if I could possible (sic) point the assailant of Romulo Manalo, Your Honor.

xxx xxx xxx

ATTY. BAYANI (counsel for the accused):chanrobles virtual law library

Q When your statement was being taken by the police, where was Villapando? How far was Villapando from you? chanrobles virtual law library

A Very near, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q How many meters, inches or feet?chanrobles virtual law library

A About less than two (2) meters distance at the time my statement was taken, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q And Villapando was also seated? chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q He was standing? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q And when you were being investigated, you already knew that Villapando was the one standing approximately one and one-half (1 1/2) meters from you? chanrobles virtual law library

. A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q How about the other persons whom you claimed to be present at the investigating room, how far were they from you? chanrobles virtual law library

A They were also equi-distant from one another. They moved one after the other, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q But Villapando was all the while standing infront (sic) of you? chanrobles virtual law library

A He was somewhat on my left side, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q He was all the while standing on your leftside during the investigation?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q while the others were walking from one direction to another? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

x x x. (TSN, July 28,1983, pp. 36-37,42-43; Records, pp. 138- 139, 144-145)

As regards the medical and death certificates signed by Dr. Bulanhagui, We hold that the testimony of Miss Panganiban is admissible to prove the authenticity of Dr. Bulanhagui's signatures on the said documents. The circumstance of Dr. Bulanhagui being abroad and thus, could not verify the contents of the documents is not fatal to the prosecution's case. Neither is the unavailability of Alicia Beron to testify as she is now in the United States weaken the prosecution's cause. The fact of the death of the victim and the injuries sustained by the other victims could be established by testimonial evidence as was done in this case (TSNs May 13, 1983, pp. 14-15, 20-22; Records, pp. 68-69, 74- 75; August 14, 1983, pp. 6-1 0; Records, pp. 168-170; July 28, 1983, pp. 17-20; Records, pp. 11 9-122).chanroblesvirtualawlibrarychanrobles virtual law library

Contrary to appellant's assertion, all the statements executed by the prosecution witnesses were submitted and now formed part of the records of the case (Records of CCC-VIII-825, pp. 3-9, 11). The alleged inconsistency regarding the description of the height of the assailant compared to appellant's actual height is trivial. It must be noted that the description given by Alicia Beron was merely the approximate height of the assailant which does not militate against her credibility.chanroblesvirtualawlibrary chanrobles virtual law library

The over-all evidence presented in these cases has fully established the culpability of the appellant beyond reasonable doubt. However, We do not agree with the trial court that treachery is present in CCC- VIII-823(79). For treachery to be present, it must be shown that the offender employed means, methods or forms of execution which tend directly and specifically to insure its execution, without risk to himself arising from the defense which the offended party might make (Art. 14,par. 16, Revised Penal Code). In the case at bar, the testimonies of the eyewitnesses were limited to the actual stabbing of the victims by the accused. There were no details as to how the stabbing incident commenced and developed. The death certificate presented by the prosecution also did not disclose the nature of the stab wound which killed the victim so as to infer therefrom how he was killed. It merely recited the following: "death due to cardiac arrest, stab wound, chest, left, penetrating chest cavity" (Exhibit U, Records of CCC-VIII-823(79), p. 133). There being no circumstance which would qualify the killing to murder, the crime committed is simple homicide. Neither do We agree that reiteracion or habituality should be appreciated in this case. The appellant was found by the trial court to have committed offenses prior to and after the incident of January 14, 1979, as follows: "(1) prior to January, 1979, he was arrested and accused of the crime of theft, in Criminal Case No. 172 before the Municipal Court of Mendez, Cavite; (2) that on May 15, 1973, he was likewise charged for physical injuries in Lipa City but said case was amicably settled; (3) that on January 15, 1973, he was likewise charged in Criminal Case No. 1343 in Lemery, Batangas for the crime of theft and he was convicted of the said offense; (4) that he was likewise charged and convicted before the City Court of Batangas City in Criminal Case No. 9517; (5) that he was also charged in Criminal Case No. 842-B for theft, before the Court of First Instance of Binan Laguna, but said case was settled amicably; (6) finally, accused was charged and convicted for the crime of theft before the Court of First Instance of Manila in Criminal Case No. 8212791 per Judgment of said court on October 30, 1982" (Decision, p. 19; Rollo, p. 89). In reiteracion or habituality, it is essential that the offender be previously punished, that is, he has served the sentence, for an offense in which the law attaches, or provides for an equal or greater penalty than that attached by law to the second offense, or for two or more offenses, in which the law attaches a lighter penalty (People v. Layson, et al., G.R. No. L- 25177, October 31,1969, 30 SCRA 92). Here, the records do not disclose that the appellant has been previously punished by an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty. Considering therefore, the absence of either aggravating or mitigating circumstances, the penalty for homicide, which is reclusion temporal should be imposed in its medium period (Article 249, in relation to Article 64, paragraph 1, of the Revised Penal Code). Applying the Indeterminate Sentence Law, the minimum penalty is twelve (12) years of prision mayor and the maximum penalty is seventeen (17) years of reclusion temporal. The indemnity for death imposed by the trial court is increased to thirty thousand (P30,000.00) pesos in addition to the award of five thousand (P5,000.00) pesos as actual damages and twenty five thousand (P25,000.00) pesos as moral and exemplary damages.chanroblesvirtualawlibrarychanrobles virtual law library

As to Criminal Case No. 770, We uphold the trial court's finding that the appellant is guilty of slight physical injuries only, it not being shown by any clear and convincing evidence that appellant intended to kill Alicia Beron.chanroblesvirtualawlibrarychanrobles virtual law library

In Criminal Case No. 771, We find the appellant guilty only of less serious physical injuries. We gathered from the testimony of Ramon Tolentino that appellant stabbed him and Alicia Beron because they intervened in his fight against the deceased. In fact, when Tolentino was held back momentarily by his wounds, appellant attacked the deceased again and then, ran away (TSN, May 13, 1983, pp. 10-11; Records. pp. 64-65). There was no injury to any vital part of Tolentino and Beron. Clearly from the foregoing, We could not see any intention on the part of appellant to kill Tolentino and Beron (see United States v. Maghirang, 28 Phil. 655). He merely wanted to incapacitate these two people so he could turn his ire once more to his real and intended victim, the deceased Romulo Manalo. Absent the intent to kill, appellant should be liable only for less serious physical injuries. He should, therefore, be sentenced to an imprisonment of four (4) months.chanroblesvirtualawlibrary chanrobles virtual law library

ACCORDINGLY, the judgments appealed from (1) in Criminal Cases Nos. CCC-VIII-823 (79) and 771, are hereby modified as above indicated; and (2) in Criminal Case No. 770, is hereby affirmed. Costs against accused-appellant.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Endnotes:

1 Presided over by Judge Jose M. Aguila