Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. Nos. L-67803-04 July 30, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.Pat. RICARTE MADALI and ANNIE MORTEL MADALI, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Juan B. Soliven for defendants-appellants.

FERNAN, C.J.:

Husband and wife Patrolman Ricarte Madali and Annie Mortel Madali appeal from a decision of the Regional Trial Court of Romblon, Branch LXXXI 1 finding them guilty beyond reasonable doubt of killing father and son Cipriano and Felix Gasang, and seriously wounding Agustin Reloj and Cipriano's daughter, Merlinda. The dispositive portion of the decision states:

WHEREFORE, the Court hereby finds the guilt of accused Ricarte Madali and Annie Mortel Madali beyond reasonable doubt of the following offenses and sentences each of them as follows:

(1) For the frustrated murder of Agustin Reloj, each accused is meted an indeterminate penalty of SIX (6) YEARS of prision correccional, as minimum to TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as maximum. (E)ach of them is also sentenced to suffer all the accessory penalties provided for by law, and each is ordered to pay in solidum the offended party, Agustin Reloj, the sum of P200.00 as reimbursement of medical and hospitalization expenses.

(2) For the murder of Felix Gasang, each accused is sentenced the penalty of reclusion perpetua and each of them is likewise sentenced to suffer the accessory penalties provided for by law, and each is also ordered to pay in solidum to the heirs of Felix Gasang, the sum of P12,000, as death indemnity.

(3) For the murder of Cipriano Gasang and the mortal (sic) wounding of Merlinda Gasang (which has been converted into a complex crime of murder with frustrated murder) each accused is sentenced to the penalty of reclusion perpetua together with the accessory penalties provided for by law and to indemnify in solidum the heirs of Cipriano Gasang the sum of P12,000.00 and each is also ordered to pay in solidum, Merlinda Gasang the sum of P6,000 for reimbursement of medical and hospitalization expenses.

Each of the accused is likewise ordered to pay in solidum the heirs of deceased, Cipriano Gasang and Felix Gasang, the sum of P50,000.00, which amount represents the value of the loss (sic) earning capacity of deceased Cipriano and Felix, both surnamed Gasang, and the sum of P30,000.00 as moral damages, and the sum of P10,000.00 as exemplary damages.

The sentences of reclusion perpetua and the indeterminate penalty imposed upon each accused should be served successively, with proportionate costs.

IT IS SO ORDERED. 2

According to the prosecution, said crimes stemmed from an altercation between the son of the Madali spouses, Ramon, and the group of Felix Gasang, who was twenty years old when he was killed. 3 It appears that on October 26, 1979, Felix figured in a fist-fight with someone who was a friend of Ramon. The latter interceded and mauled Felix with a "chako" 4 One of Felix's companions then was Agustin Reloj. 5

The following day, the police summoned Felix to the municipal building. Felix's mother, Desamparada Gasang, went with him. 6 At the police station, Ricarte Madali, a police officer, angrily scolded Felix and his cousin, Arnaldo Fadriquilan, and told them that because they were "very brave", he would put them in jail for twelve hours. Madali added after asking about Felix's age that he would "sow bullets" in the body of Felix. 7 According to witness policeman Aristeo Fetalino, Madali also uttered, "Kailangan sa imo lubongan bala" which means, what you need is a bullet embedded in you. 8 Madali's father-in-law, Agustin Mortel, who arrived at the police station, agreed with Madali that Felix and his group must be "sown with bullets" to eradicate them. 9 Another group mate of Felix was detained at the municipal jail but Felix was sent home with his mother. 10

At around 9:00 o'clock in the evening of October 31, 1979, Felix and his cousin, Agustin Reloj, went home together from the town plaza. Their houses were located near each other in sitio Marawi, barangay Cagbo-aya, San Agustin, Romblon.

Felix and Agustin parted ways at the Marawi bridge. Felix dropped by the store of Coroy Mangao to buy cigarettes while Agustin proceeded home. Around fifteen meters from the house of Ricarte Madali, the latter accosted, him, held him by his arm and said, "So you are here, you devil, now you are finished. I have been waiting for you. I have been watching for you for three nights already. 11 Then Madali dragged Agustin towards the gate of his (Madali's) house. When Agustin asked Madali why he was dragging him, Madali said that the reason was because Agustin helped in fighting his son.

As one of Agustin's feet stepped over the knee-high fence at the gate of the Madali residence, he was clubbed by Annie Madali with a piece of wood. Annie struck him first on the left shoulder and would have given him another blow had not Agustin freed himself from Madali's hold. Annie landed that blow on Madali instead. 12

Agustin was looking back as he ran away when Madali shot him. He was hit below his right hip. He fell to the ground and did not get up fearing that Madali might shoot him again. Agustin was still lying down on the ground with his eyes focused on Madali when Felix Gasang arrived. He saw Annie beamed her flashlight at Felix and she said, "Here comes another." 13

Agustin saw Felix raising his hands as Annie focused her flashlight on Felix. Felix told Madali that he would not fight with him but then Madali shot Felix twice. Felix fell to the ground. Madali was still near the gate of his house when Cipriano Gasang arrived. Annie beamed her flashlight at Cipriano and she said, "Here comes, here comes another, fire upon him. 14 Madali shot Cipriano who fell to the ground. Merlinda Gasang, who was with her father Cipriano, clung to the fence nearby and shouted that she was also hit. Then Desamparada Gasang arrived and shouted for help. One Romeo Manes came and carried away Merlinda. Agustin slowly stood up and as he walked towards his house, he saw Roman Galicia (Galicha) and the Madali spouses who were then entering their gate. 15

Merlinda Gasang * was at home when she heard an explosion. Her father, Cipriano, was also at home then but after the second shot, he went out of the house towards the direction of the source of the gunfire. There was a minute interval between the first and the second shots but only a second elapsed between the second and the third shots. The fourth shot came about two minutes later. 16

Cipriano was "beyond the gate" of the Madali residence when he was shot by Madali. Merlinda was around three meters from her father. 17 She saw Annie focused her flashlight at Cipriano and she heard Annie say, "Yara pa, yara, pa, barila" meaning "Here comes another one, here comes another one, shoot." 18 That was when the fourth explosion occurred and Merlinda heard her father

exclaim that he was hit. Merlinda felt that she was also hit. 19 She did not fall to the ground because she was able to take hold of the wooden fence. 20 She saw both her brother Felix and Agustin lying flat on the ground with the latter's head turned to one side. 21

Merlinda shouted for help. Romeo Manes came and brought her to the Tablas Island Emergency Hospital. 22 She did not notice anymore where Ricarte Madali was at that time because she was looking towards the direction of their house. She saw her mother running to her. 23

Desamparada Gasang was washing the dishes after supper when she heard the first shot. After the fourth shot, she became apprehensive because a policeman was mad at her family. 24 She proceeded to where she heard the gunbursts and she met her daughter Merlinda who informed her that she was shot by Madali and that she saw Annie focused a flashlight on her. Then Desamparada saw her husband crawling on the ground. She asked him to stand up but he could not do so. Cipriano told her, "Ging iwagan ako ni Annie Madali cag ging baril ako ni Ricarte Madali" (Annie focused a light on me and Ricarte Madali shot me.) She then went back to her daughter and shouted for help.

The bodies of Cipriano and Felix Gasang were not removed from the road until around midnight. They were brought to the Gasang residence for autopsy. 25 The rural health physician who conducted the postmortem examinations on both Cipriano and Felix found that Cipriano sustained a gunshot wound at the right lower quadrant of the abdomen along the mammary line. From that point of entry, the bullet followed an obliquely downward course penetrating the small and large intestines and the urinary bladder, and exited at the middle of the left buttock. Cipriano's death was caused by hemorrhage due to the gunshot wound. 26

Felix also died of hemorrhage resulting from the gunshot wound at the right second intercostal space within the mid-clavicular line of the chest. The bullet veered backwards towards the left hitting the right lung, its blood vessels and the fourth cervical vertebra. The second gunshot wound was at the right side of the abdomen at about the level of the navel and within the right anterior axillary line. The bullet hit the subcutaneous tissues and exited at the posterior axillary line. 27

Merlyn (Merlinda) Gasang sustained a gunshot wound at the anterior upper third portion of her right leg with no exit wound and which would incapacitate her for ten to fifteen days 28 However, she stayed for treatment at the emergency hospital in San Agustin for 39 days. Later, she was brought to the hospital in Romblon for extraction of the slug lodged in her leg. For the treatment of her wound, Merlinda spent P6,200.00. She could not go to school for three months. 29

Agustin Reloj suffered a gunshot wound at the glutael region of the right thigh. The bullet entered the lateral aspect of the upper third of the right thigh and exited at the posterior aspect of the gluteus maximus muscle. The attending physician certified that Agustin's injury would incapacitate him for seven to nine days, 30 Agustin, who was then a laborer, stayed one week at the hospital and spent P200 for the treatment of his wound. For his pain and anxiety he stated, that he should be compensated in the amount of P500.00. 31

Madali voluntarily surrendered to the San Agustin police. 32 He handed his .38 caliber service revolver to the policemen who arrived at the scene of the crime and they noted that there were only two remaining bullets in the revolver. 33 He was placed under technical arrest by the provincial commander of the Philippine Constabulary. 34

After the investigation, on February 1, 1980, two informations were filed against Patrolman Madali and his wife, Annie Mortel Madali. In Criminal Case No. 981, said spouses were charged with multiple murder for the killing of Felix and Cipriano Gasang. The information alleged that they conspired, confederated and mutually helped each other in killing Felix and Cipriano treacherously, with evident premeditation and with the use of a .38 caliber revolver. 35

In the separate information for multiple frustrated murder in Criminal Case No. 982, conspiracy, treachery and evident premeditation were also alleged as having attended the felonious assault with the use of a .38 caliber revolver on Merlinda Gasang and Agustin Reloj which could have resulted in the crime of murder had not timely and able medical assistance intervened. 36

At the trial, both Madali and his wife, who had pleaded not guilty to the crimes charged, testified in their own defense. According to Madali, at around 9:00 o'clock in the evening of October 31, 1979, he and his family were about to sleep when a stone was hurled at their house. His wife said that it could have been a stray stone. But then, three other stones landed on the GI sidings, and the lawanit and bamboo walls of their house. Madali went to their porch where he noticed a person crouching near their gabi plants. He could not identify the person because of the fog so he went inside their room and dressed up in his fatigue trousers and jacket. He went down the house and noticed that there was no one in the gabi plants anymore.

Madali was behind their kitchen and about to go back to his house when someone hit his left shoulder. The person struck him again but he was able to catch the club aimed at him and strike the person with his nightstick. Madali was about to give

him another blow with his nightstick but the person caught it. They tried to get each other's club.

They were in that position when Madali's foot stepped into a low canal, causing him to fall down flat on his back. The intruder fell with him and landed on Madali's stomach. The person shouted at someone in the vicinity what the latter was tarrying about. As Madali tried to get up, he heard his wife call, "Carte, Carte." Just then he kicked the intruder on the stomach and the latter fell to the ground.

Madali hurriedly stood up, pulled his gun and fired at the intruder. He noticed two other persons approaching him. One person had a club and the other had what looked like a knife. He warned them, "This is a policeman. Do not come near." One of the persons proceeded to strike him and Madali was hit on his forehead by the man with the club. Madali in turn dealt him with a blow by swinging back his left forearm. The man with a club fell down.

When the man with the knife was about to stab him, Madali fired his gun at him. As that man was still closing in on him, Madali shot him again. The man with the knife retreated to the gate and fell just outside of it.

After firing two shots, Madali turned sideward and saw the man with the club about to strike him. So, Madali shot him. The man walked away. Madali later identified the man crouching amidst their gabi plants as Agustin Reloj. 37

Annie Mortel Madali corroborated her husband's testimony from the stoning of their house until he dressed up, got his gun and nightstick, and went out of the house. When she heard Madali opening the door to the stairs, Annie got up and went to their balcony to peep. She saw her husband going around their house in a clockwise direction. When he was near their kitchen, Annie saw him grappling with someone over the possession of a club. Her husband and his protagonist fell into a canal, trampling the gabi plants. She heard the man say, "Hay, naga tanga pa kamo dira!" meaning "What are you still waiting for!"

Annie then saw two persons rushing inside their premises. One person was holding a club while the other one had something which he appeared to thrust forward. Losing her composure, Annie warned her husband by calling out his name, "Carte, Carte!" Then she heard a gunshot and the person holding a club who grappled with her husband ran out of the premises.

Annie heard her husband say, "Pulis ini, ayaw maglapit" meaning "This is a policeman do not come near." After that, she heard three more gunshots. The two who came rushing inside their premises scampered away and out of their fence.

She could not recognize the three intruders. Madali then walked towards her and asked her to call the police. Annie went inside their sala and told her daughter Agnes to summon the police. 38

Policeman Numeriano Galang who heard the gun reports, met Agnes on his way to sitio Marawi. When he arrived at the Madali residence, he found Madali with his face and jacket smeared with mud and with a swollen forehead. 39 Galang asked Madali what happened but he did not put his investigation in writing. 40 At the yard, he found stones, two slippers and a nightstick. 41 He did not find bloodstains in the yard because it was drizzling. 42 Neither did he find bloodstains outside the yard because he inspected only the areas surrounding the Madali house. 43

Policeman Antonio Morales arrived at the scene of the crime with two other policemen. He found Felix Gasang lying flat on his belly about one foot from the gate. 44 To identify him, they turned Felix's body face up and found that his right hand was holding a knife. 45 Later, that knife was turned over to police investigator Pfc. Ernesto Solano. 46 The other victim (Cipriano) was found about five to six meters from the body of Felix. 47 Like Galang, Morales saw pieces of stones which were different from the stones found in Madali's yard which were mere corals or "boga," two pairs of slippers and the gabi plants which appeared to have been trampled upon. 48

To prove aggression on the part of his victims, Madali presented a medical certificate stating that on November 1, 1979, he was examined at the Tablas Island Emergency Hospital for a vertical contusion (hematoma) on his left forehead and another contusion on the left deltoid region. 49

The lower court gave full faith and credit to the evidence of the prosecution, especially the testimonies of eyewitnesses-victims Agustin Reloj and Merlinda Gasang. It found that the concerted acts of Madali and his wife while committing the crimes proved conspiracy between them thereby making their criminal responsibility collective. While finding that the prosecution failed to prove evident premeditation, the lower court positively appreciated treachery to qualify as murder the killing of both Cipriano and Felix Gasang. It noted, however, that the prosecution erred in charging as the separate crimes of murder and frustrated murder the killing of Cipriano and the wounding of Merlinda. Observing that only one bullet hit Cipriano and his daughter, Merlinda, the lower court concluded that the Madali spouses should have been charged with the complex crime of murder and frustrated murder. Accordingly, it imposed the penalties set out above for the crimes of frustrated murder, murder and the complex crime of murder and frustrated murder.

In this appeal, the Madali spouses pray for their acquittal arguing that the lower court erred in: [a] finding Annie Mortel Madali guilty as principal by direct participation; [b] not finding that the Gasangs and their kins were motivated by revenge; [c] not finding that Ricarte Madali acted in self-defense; and [d] in giving credence and/or adopting the theory of the prosecution instead of that of the defense.

The prosecution of these cases was highlighted by notable developments. Firstly, before the defense could present its evidence, on September 6, 1980, the capitol building of Romblon was razed to the ground. All court records were lost. The records of Criminal Cases Nos. 981 and 982 were, however, reconstituted and the accused arraigned anew. 50 Secondly, prosecution eyewitness, Roman Galicia recanted his testimony and appeared for the defense claiming that he did not see the gunwielder. 51 He alleged that he testified for the prosecution for fear that the special prosecutor would revive the rape case against him. 52 The lower court thereafter disregarded his entire testimony inasmuch as only the transcript of his cross-examination as prosecution witness could be reproduced. 53 Thirdly, only the testimony of Ricarte Madali was heard by the ponente below as the previous presiding judge was transferred to another sala. 54

In view of the disqualification of Roman Galicia as a witness, the issue of the credibility of the eyewitnesses has gained importance in this case. Significantly, it is the word of the accused Madali spouses as against that of the surviving victims, Agustin Reloj and Merlinda Gasang. Both prosecution and defense failed to present corroborative witnesses to buttress their testimonies.

Matters of credibility are ordinarily addressed to the discretion and discernment of the trial court which is presumed to have observed the demeanor of the witnesses at the stand. While the ponente of the decision below was able to hear only the testimony of accused Ricarte Madali, the Court sees no reason for not giving sufficient weight to his factual findings considering that he took pains in thoroughly studying the case even to the extent of conducting an ocular inspection of the scene of the crimes and hearing part of the cross-examination of Madali thereat. 55

The defense is anchored on the justifying circumstance of self-defense. In order that such plea can prosper, it must be positively shown that there was a previous unlawful and unprovoked attack that placed the defendant's life in danger and forced him to inflict more or less severe wounds upon his assailant, employing therefor reasonable means to resist the said attack. 56

The defense miserably failed to pass said test. Its allegation that the Madali residence was hurled with stones before Madali confronted the Gasang group, was

not credibly established. No one was able to positively identify the stone-throwers. Not even Madali and his wife, Annie. There is no proof that the stones found in the Madali yard were indeed the stones thrown at their house. It is interesting to note that even defense witness Antonio Morales, a fellow policeman of Madali, testified that he did not have personal knowledge on where the stones were discovered because he was only informed by Galang (another policeman) "who in turn was only told by Ricarte that the latter was stoned. 57

Indeed, the defense story is riddled with contradictions and loopholes which the appellants failed to rectify. At the trial, Agustin Reloj sketched a map of the neighborhood and placed Felix Gasang's body on a spot across the road from the Madali gate. 58 The defense tried to discredit Reloj's sketch and his testimony thereon by presenting policemen Morales and Galang who testified that Felix's body was found close to the gate of the Madali residence. However, the testimonies of said policemen clashed with each other. Morales testified that both the two dead bodies were found close to the gate while Galang swore that while one body was near the gate, the other body was five meters away from the Madali fence. 59 It should be noted that ten days after the alleged commission of the crime, police investigator Fetalino found blood stains in the middle of the street indicating that a blood-drenched body had been dragged across the street. 60

If it were really true that both Agustin and Cipriano were armed with clubs, at least Cipriano's club would have been found as he died on the spot. The nightstick found by the police could not have been the one used by any of the victims. According to defense witness policeman Galang, the nightstick was similar to that of a policeman. 61 Hence, it could have been the same nightstick which Madali admittedly used in striking one of the intruders. 62

Granting that Agustin Reloj and Felix and Cipriano Gasang were armed with clubs and a knife, Madali's means of resisting them was unreasonable under the circumstance. Having known that an interloper was inside his yard, Madali, being a policeman, should have first fired a warning shot to deter said intruder from executing whatever vicious plans he had. As it were, he fired directly at his victims and all four shots hit their targets.

Moreover, if Agustin, Felix and Cipriano were the intruders, then they should be credited for their extraordinary bravery in entering the Madali yard. They were neighbors and they must have known that as a policeman, Madali possessed a service revolver. The lower court, which saw for itself the Madali yard considered it "rather inconceivable" for people like the victims to ever dare go inside the premises armed only with a knife and clubs. 63

The lower court is correct in characterizing the felonious assault on Agustin Reloj as frustrated murder. While Agustin Reloj was hit only below his right hip, Madali's act of shooting was plainly attended by an intent to kill. This is evidenced by the revealing statements of Madali while accosting Agustin Reloj some fifteen (15) meters from Madali's house, thus: "So you are here, you devil, now you are finished. I have been waiting for you. I have been waiting for you for three nights already. 64 The statements "now you are finished" and "I have been waiting for you for three nights already" sufficiently show that Madali not only intended to do away with Agustin Reloj but also that the crime had been premeditated. They satisfactorily prove that Madali had formed a determination to commit the crime prior to the moment of its execution; that he had clung to his determination and that there was sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act. 65

Moreover, after uttering those damaging statements, Madali dragged Reloj towards his gate. Annie then clubbed Reloj who, however, succeeded in freeing himself from Madali's hold. Reloj was running away when Madali shot him, hitting him below the right hip. 66

Indeed, firing at his fleeing victim and subsequently shooting to death two (2) other persons on the same occasion, to our mind, evince quite clearly the intent to kill being then entertained by Madali.

There is likewise no doubt that Madali committed murder when he shot Felix Gasang twice in the body. Treachery qualified the killing to murder punishable under Article 248 of the Revised Penal Code. There was treachery because of the suddenness of the attack. Felix was raising his hands, 67 and saying that he would not fight back when Madali feloniously fired at him twice. Annie Madali's uttering "Here comes another" before Madali shot Felix may not be considered sufficient warning so as to rule out suddenness of the attack. 68 However, no generic aggravating circumstance has been sufficiency proven.

We agree with the trial court that with respect to the killing of Cipriano Gasang and the wounding of Merlinda Gasang, the crime committed was the complex crime of murder with frustrated murder inasmuch as a single shot hit them both. 69 It is immaterial that Merlinda Gasang was wounded on the leg and not on a vital part of her body. What is of primordial consideration is the fact that the criminal act which killed Cipriano also caused Merlinda's injury. 70 As in the kiling of Felix, treachery qualified the killing of Cipriano to murder because of the suddenness of the attack.

Annie Mortel Madali's defense strategy is to deny participation in the commission of the crimes and to interpose an alibi. She insists that like any other wife, her natural reaction to situations which involve risk is "to stay away, meditate and to shout and warn her husband of the intruders rushing towards him. 71 She bewails the fact that the prosecution has pictured her as "a brave, pugnacious and aggressive wife like the heroine of the pre-war movie "Annie of the Indies". 72 Indeed, Annie's role in the commission of the crimes may appear to be straight out of an action picture were it not for the fact that her denials and uncorroborated alibi cannot stand against the categorical declarations of prosecution eyewitnesses Agustin Reloj and Merlinda Gasang on her participation therein. 73 She should have presented witnesses to support her story. As she herself admitted, she and her husband were not alone in their house when they were allegedly stoned. Six of their children were home then. 74 Some of them must have been within the age of discernment inasmuch as their eldest child was 21 years old and therefore, any one of them could have corroborated her story.

Nevertheless, the Court finds that proof beyond reasonable doubt has not been established as to the existence of conspiracy between the Madali spouses. While direct proof is not essential to prove conspiracy as it may be shown by acts and circumstances from which may logically be inferred the existence of a common design among the accused to commit the offense(s) charged, the evidence to prove the same must be positive and convincing considering that conspiracy is a facile devise by which an accused may be ensnared and kept within the penal fold. 75 With this and the principle that in criminal prosecution, doubts must be resolved in favor of the accused, as guides, the Court rules that the liability of Annie Mortel Madali with respect to the crimes committed herein, is only that of an accomplice.i•t•c-aüsl

Annie's participation in the shooting of the victims consisted of beaming her flashlight at them and warning her husband of the presence of other persons in the vicinity. By beaming her flashlight at a victim, Annie assisted her husband in taking a good aim. However, such assistance merely facilitated the commission of the felonious acts of shooting. Considering that, according to both of the Madali spouses, "it was not so dark nor too bright 76 that night or that "brightness and darkness were equally of the same intensity. 77 Ricarte Madali could have nevertheless accomplished his criminal acts without Annie's cooperation and assistance.

Neither may Annie's shouts of "here comes, here comes another, shoot" be considered as having incited Ricarte to fire at the victims to make Annie a principal by inducement. There is no proof that those inciting words had great dominance and influence over Madali as to become the determining cause of the crimes. 78

The rapidity with which Madali admittedly fired the shots 79 eliminated the necessity of encouraging words such as those uttered by Annie.

The fact that Annie dealt a blow on Agustin while he was being dragged by Madali to their yard does not make her a principal by direct participation. Annie's act, being previous to Madali's act of shooting Agustin, was actually not indispensable to the crime committed against Agustin. 80

Proof of motive is unnecessary where there is a clear identification of the accused. 81 More so in this case where the principal accused does not deny having fired the fatal shots. But the Madali spouses must have harbored a deep resentment against the Gasang family to put into action Madali's threat of "sowing bullets" on them. What makes Madali's crimes even more reprehensible is the fact that he claims to have committed them in the pursuit of his task as a peace officer. He even went to the extent of wearing his fatigue jacket and trousers to create a facade of performance of an official function. Sadly, he misused his authority and his wife, harboring an improper sense of connubial cooperation, did not even try to dissuade him.

Under Article 48 of the Revised Penal Code, the penalty for a complex crime shall be the maximum period of the penalty for the most serious crime. The death penalty being the maximum period of the penalty for murder of reclusion temporal maximum to death under Article 248 of the same Code, the death penalty should be imposed for the complex crime of murder with frustrated murder considering that under Article 63, an indivisible penalty cannot be affected by the presence of any mitigating or aggravating circumstance. It should be noted that under the ruling in People v. Muñoz, L-38968-70, February 9, 1989, Article III, Section 19(1) of the 1987 Constitution does not change the period of the penalty for murder except only insofar as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. Hence, the lower court correctly imposed the penalty of reclusion perpetua on Ricarte Madali for said complex crime.

The mitigating circumstance of voluntary surrender which was proven but not appreciated in favor of Ricarte Madali by the trial court, should be considered in imposing on him the penalty for the murder of Felix Gasang. The presence of this mitigating circumstance without any aggravating circumstance to offset the same justified the imposition of the minimum period of the penalty for murder pursuant to Article 64(2) of the Revised Penal Code. Accordingly, the proper penalty should be the indeterminate sentence of not less than ten (10) years and one (1) day of prision mayor as minimum and not more than twenty (20) years of reclusion temporal as maximum. 82

The same mitigating circumstance should be considered in the imposition of the penalty on Ricarte Madali for the crime of frustrated murder committed against Agustin Reloj. The penalty for frustrated murder in accordance with Article 50 in relation to Article 248 is prision mayor in its maximum period to reclusion temporal in its medium period. Taking into consideration the mitigating circumstance of voluntary surrender and applying the Indeterminate Sentence Law, the penalty imposed on Ricarte Madali is four (4) years, two (2) months and one (1) day of prision correccional as minimum to 12 years of prision mayor as maximum.

As an accomplice, Annie Mortel Madali should be imposed the penalty next lower in degree than that prescribed by law for the consummated felonies. 83 For the complex crime of murder and frustrated murder, like her husband, she shall be imposed the penalty of reclusion perpetua, 84 considering that the penalty prescribed by law for Ricarte Madali is the death penalty. For the murder of Felix Gasang, the penalty imposable on her is prision mayor maximum to reclusion temporal medium, 85 and there being no aggravating nor mitigating circumstances, the penalty should be reclusion temporal minimum. 86 Applying the Indeterminate Sentence Law, Annie Mortel Madali should therefore be meted the penalty of six (6) years and one (1) day of prision mayor as minimum to fourteen (14) years and eight (8) months of reclusion temporal as maximum. For the crime of frustrated murder committed against Agustin Reloj, Annie Mortel Madali shall be sentenced to an indeterminate penalty of from six (6) months and one (1) day of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum.

Ricarte Madali and Annie Mortel Madali shall also be liable to the heirs of Cipriano and Felix Gasang for indemnity in the total amount of sixty thousand pesos (P60,000) in the proportion of 2:1 (2 shares for Ricarte Madali as principal and 1 share for Annie Mortel Madali as accomplice), with each accused-appellant being subsidiarily liable for the other in case of insolvency. The Court sees no reason to disturb the lower court's findings on the reimbursement of hospitalization and medical expenses in favor of Merlinda Gasang and Agustin Reloj as well as the award of damages, except to clarify that payment thereof shall likewise be in the proportion of 2:1 as above stated and with each accused being subsidiarily liable for the other in case of insolvency.

WHEREFORE, except as hereinabove modified, the decision of the lower court is hereby affirmed. Costs against the appellants.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

DECISION

May 31, 1974

G.R. No. L-27031THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.LORETO RENEGADO y SENORA, accused-appellant.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio A. Torres and Solicitor Alicia V. Sempio-Diy for plaintiff-appellee. Roberto C. Alip as counsel de oficio for accused-appellant.

, J.:

p

On September 4, 1966, Mamerto de Lira, a teacher of the "Tiburcio Tancinco Memorial Vocational School," died at the Calbayog City General Hospital from a stab wound inflicted upon him a few days before, more particularly, on August 29, within the premises of the school by Loreto Renegado, an employee of the same institution. As a result, the City Fiscal of Calbayog City filed with the local Court of First Instance an Information against Loreto Renegado for "Murder with assault upon a person in authority," which, as amended, reads:

That on or about the 29th day of August, 1966, at about 9:30 A.M., in Calbayog City, Philippines, and within the premises of the Tiburcio Tancinco Vocational School and within the jurisdiction of this Honorable Court; the above-named accused armed with a sharp-pointed double bladed weapon, with decided intent to kill, with assault upon a person in authority; the deceased being at the time a public school teacher of the Tiburcio Vocational School and therefore a person in authority; and at the time was in the lawful performance of his duties as such or on the occasion of such performance and, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab with his weapon Mamerto de Lira, who, as a result thereof, sustained stab wound on his abdomen which caused his death. (p. 11, original record)

The Hon. Jesus N. Borromeo who conducted the trial of the case found the accused guilty as charged and pursuant to Articles 148 and 248 of the Revised Penal Code in relation to Article 48 thereof, sentenced him to "suffer the supreme penalty of death; to indemnify the heirs of the deceased Mamerto de Lira in the amount of P6,000.00; and to pay the costs." (p. 94, ibid) The case is now before Us on automatic review.

We find the following facts duly established by the evidence of the prosecution: .

The Tiburcio Tancinco Memorial Vocational School is run by the national government in the City of Calbayog, and for the school year 1966-67 its principal was Mr. Bartolome B. Calbes, and in his absence, Mr. Felix U. Tingzon was authorized to act as officer-in-charge (Exhibit E). The deceased Mamerto de Lira was a classroom teacher of mathematics in said school with daily classes from Monday to Friday, starting at 7:10 o'clock in the morning till about 4:00 o'clock in the afternoon with vacant periods in-between (Exhibit D) while accused-appellant, Loreto Renegado, was a clerk in the same institution whose duties included the following:

1. To type correspondence, memorandum, circulars of the Head of the school.

2. To help type test questions of teachers for every periodical test.

3. To help type reports of the schools.

4. To help type handout of the teachers.

5. To file and account records of the school.

6. To mail some reports, prepared form like Form 137 and mail it, etc. (Exhibit F)

A periodical test was scheduled on September 2, 1966, and the teachers were instructed to submit their questions for approval and cutting of the stencil for mimeographing purposes by August 25 and 26. 1

At about 4:00 o'clock in the afternoon of Friday, August 26, 1966, appellant Renegado was in the school canteen and other persons present at the time were teachers Natividad Boco, Mrs. Alviola, and Mrs. Benita Tan, and some students. On that occasion Lira entered the canteen and seeing Renegado he requested the latter to type the stencil of his test questions for the examination set for September 2. Renegado answered that he had much work in the principal's office and that

typing test questions was not among his duties. Lira reminded Renegado of the instructions of the principal that he could be asked by the teachers to type their test questions especially if the teacher concerned had no knowledge of typing, and Lira finished his remark stating: "you can finish your work if you only will sit down and work." At this remark, Renegado became angry and as he stepped out of the canteen he boxed with his fist a cabinet which belonged to Mrs. Alviola. Seeing the hostile attitude of Renegado, Lira followed the latter outside of the canteen and asked Renegado if he was challenging him. Renegado did not answer but quickly left the place. 2

On his way out of the school premises, later that afternoon, Renegado passed by the guardhouse where he met security guard, Primitivo Velasco, and Renegado told the latter: "Friend, I will be sad if I could not kill somebody," and having learned about the altercation between Renegado and Lira, Velasco placed his arm around the shoulder of Renegado and pacified him with these words: "Loreto, do not do that because that is a little trouble, you might be able to kill someone and you will be separated from your family." 3 Also on that afternoon before leaving the school, Renegado met Basilio Ramirez, another employee, to whom he recounted his altercation with Lira and ended up saying: "I am going to kill him." Basilio Ramirez, however, advised Renegade: "Padi, do not take that to the extent because to kill a person is not good, think of your family, you have many children." 4

In the evening of that Friday, August 26, there was a dance at the school premises and on that occasion Renegado was seen cycling around the school several times, 5 and Renegado inquired from security guard, Nicomedes Leonor, if Lira was at the dance. Leonor informed Renegado that the teacher was not around and at the same time advised Renegado thus: "Choy, do not attend to that small trouble and we have families. Have patience because we have families." 6 Another teacher, Arturo Querubin, likewise saw Renegado that evening acting in a suspicious manner and sensing the state of mind of Renegado because of the incident which happened earlier in the afternoon, Querubin approached Renegado, advised him to "calm his temper," and told him "remember, you have plenty of children, please be calm." 7

Came Monday morning, August 29, and at around 9:00 o'clock, Erlinda Rojo, a bookkeeper in the school, met accused Renegado in the office of the principal. Renegado inquired from Erlinda about his salary loan, and during their conversation, the school janitor called the attention of the two to some boys quarreling near the school's shop building and Renegado remarked: "stab him"; to those words Erlinda replied: "That is the case with you. Your intention is to stab. If that is your attitude, there will be nobody left on earth, they will all die," to which

Renegado countered: "So that the bad persons will be taken away and eliminated," and after that exchange of remarks Renegado left the room. 8

That same morning, past 9:00 o'clock, which was his vacant period, Lira went to the school canteen, seated himself at the counter, and ordered a bottle of "pepsi cola" from the girls who were then serving, namely, Venecia Icayan and Lolita Francisco. At about 9:30 while Lira was drinking his "pepsi cola" Renegado entered the canteen and seeing Lira with his back towards him, he immediately and without warning stabbed Lira with a knife hitting the latter on the right lumbar region. The wounded Lira turned around holding his abdomen and raised a chair to ward off his assailant who was poised to stab him for the second time. Renegado tried to reach Lira but he was blocked by Mrs. Tan who shouted "Stop it, Loreto, don't anymore." Because of the intervention of Mrs. Tan and the screaming of the girls inside the canteen, Renegado desisted from continuing with his attack and left the canteen. 9 During that incident, Felix Tingzon was also in the canteen having a snack with a guest and although he did not actually see the very act of stabbing, he saw however that when Renegado entered the canteen Lira was beside the counter and had his back towards appellant Renegado. 9a

Lira was brought to the Calbayog City General Hospital and was attended by Dr. Erlinda Ortiz who performed an operation on him. Dr. Ortiz found that the weapon of the assailant entered through the right lumbar region of the victim and penetrated the right lower lobe of the liver. Notwithstanding the medical attention given to Lira, the latter died on September 4, 1966, from "hepatic insufficiency" caused by the stab wound which perforated the right lower lobe of the liver resulting in internal hemorrhage. 10

Appellant Renegado asks Us not to believe the above-given narration of the witnesses for the prosecution and submits instead his own version of the incident as follows:

At about 4:30 o'clock in the afternoon of Friday, August 26, he was in the school canteen for a snack and on that occasion Lira arrived and approached him with a bunch of papers and told him to type the stencil of his test, questions; he answered that he could not do the work because he was busy in the principal's office; Lira got mad and pointing his finger at him said: "The question with you is that the work that you can do in a day you finish it in so many days, because you stroll only in the office and keep on sleeping."; scared by the aggressive mood of Lira, he went out of the canteen, but Lira followed him and, overtaking him near the door, boxed him on his stomach; he told Lira that he was not fighting back, however, Lira angrily shook his fingers at him and said: "don't show yourself to me, I will kill you with maltreatment"; he proceeded to the office of the principal and informed the latter

about the incident but the principal advised him not to mind Mr. Lira and to go ahead with his work; later, in the afternoon he went home; the following morning, Saturday, he was in his house repairing the "pantao" or wash stand and on that occasion spouse Lourdes and Feling Renegado came to the house and they talked about the incident between him and Lira; Lourdes Renegado suggested the filing of a complaint against Lira but he replied he was not taking the matter seriously and, at any rate, he was resigning from his job; on Monday, August 29, at about 7:30 o'clock in the morning he went to his work in the school as usual; upon reaching the school, he proceeded to the room of Miss Rojo to get some papers on which he was working, and then he returned to his room; at about 9:30, he went to the canteen for a snack and on the way, he was "singing, whistling, and tossing a coin in his hand"; before reaching the canteen, he saw Lira and Manuel Cordove conversing and when the two parted, Lira went to his room; upon reaching the canteen, he went to the counter (see Exhibits 3 and 3-A), and while he was there standing, Lira arrived, stood beside him, elbowed him, and said in a loud voice: "Ano ka?"; he turned around to face Lira and the latter banged on the counter the folders he (Lira) was carrying; Lira then placed his right hand inside his pocket, pulled with the other hand a chair and pushed it at him; he became confused and remembered that on Friday afternoon Lira threatened to kill him if he (Lira) would meet him again; after a while he saw Mrs. Tan standing before him and heard her say: "Loreto, don't do that"; upon hearing those words, "he regained his senses" and only then did, he realize that he had wounded Lira; he became panicky, left the canteen, proceeded home, and informed his wife that he had wounded a person; he then called for a tricycle, looked for a policeman, and surrendered to the

latter. 11

To corroborate his testimony that in the morning of the stabbing incident he was ahead of Lira in the school canteen, appellant called to the witness stand Manuel Cordove who declared that on Monday morning after he and Lira had conversed and parted, Lira proceeded to his (Lira's) office while he went to his own room and on the way he passed by Renegado who was then standing by the door of the canteen and greeted him; after a short while he heard shouts from the canteen and he learned that Renegado had stabbed Lira. 12 Another witness, Lourdes Renegado, testified on the conversation between her and her brother-in-law, the herein appellant, on Saturday morning, and she tried to impress the court that appellant Renegado had dismissed from his mind his altercation with Lira and as a matter of fact on the following day, Sunday, she met Renegado who had just come from church and was on his way to attend a cockfight. 13 Appellant's wife, Elena de Guia, also took the witness stand and declared inter alia that when her husband returned home on Friday afternoon and narrated to her the occurrence at the canteen she suggested that a complaint be filed against Lira but her husband said:

"never mind"; in the evening of that same day, Friday, her husband invited her to go with him to the school dance, however, she excused herself because of the children; on Monday morning, August 29, her husband reported for work at the school as usual and before leaving the house he told her that he was returning about 9:00 o'clock for his "merienda"; her husband returned later in the morning only to tell her that he had stabbed someone; upon hearing the news she cried out: "Oh my God what have you done to us?", and he replied: "I would not have done that had he not bullied me, he purposely did it to me, that is why I was hurt."; after that, her husband left the house to surrender to the police. 14

On the basis of the testimony of appellant, his counsel-de-oficio, Atty. Roberto C. Alip, in his well-written brief pleads for an acquittal with the argument that accused should be exempt from criminal liability "because at the precise time that the prosecution claims de Lira was stabbed, accused lost his senses and he simply did not know what he was doing." 15 To bolster his argument on the mental condition of appellant, defense counsel directs Our attention to that portion of the evidence showing that sometime in June of 1950 Renegado was "clubbed" on the forehead by Antonio Redema and was treated by Dr. J.P. Rosales for head injuries (Exh. 4-A), and as a result of that incident Redema was charged with and convicted of "frustrated murder" in the Court of First Instance of Samar on July 21, 1950; 16 that the head injury of appellant produced "ill-effects" because since that particular occurrence appellant would have fits of violent temper such as maltreating his wife and children for no reason at all, and for which he would ask forgiveness from his wife because "he lost his head." 17

For purposes of disposing of appellant's defense it becomes necessary to restate certain basic principles in criminal law, viz: that a person is criminally liable for a felony committed by him; 18 that a felonious or criminal act (delito doloso) is presumed to have been done with deliberate intent, that is, with freedom, intelligence, and malice 19 because the moral and legal presumption is that freedom and intelligence constitute the normal condition of a person in the absence of evidence to the contrary; 20 that one of the causes which will overthrow this presumption of voluntariness and intelligence is insanity in which event the actor is exempt from criminal liability as provided for in Article 12, paragraph 1, of the Revised Penal Code.

In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing act, that is, the accused is deprived of reason, he acts without the least discernment because there is a complete absence of the power to discern, or that there is a total deprivation of freedom of the will, mere abnormality of the mental faculties will not exclude imputability. 21 The onus

probandi rests upon him who invokes insanity as an exempting circumstance and he must prove it by clear and positive evidence. 22

Applying the foregoing basic principles to the herein appellant, his defense perforce must fail.

By his testimony appellant wants to convey that for one brief moment he was unaware or unconscious of what he was doing, that he "regained his senses" when he heard the voice of Mrs. Tan telling him: "Loreto, don't do that," and only then did he realize that he had wounded Lira. That, to Us, is incredible. For it is most unusual for appellant's mind which was in a perfect normal state on Monday morning, August 29, to suddenly turn blank at that particular moment when he stabbed Lira. Appellant himself testified that he was acting very sanely that Monday morning, as shown by the fact that he went to the canteen in a jovial mood "singing, whistling, and tossing a coin in his hand"; he saw the persons inside the canteen namely Venecia Icayan, Lolita Francisco, Benita Tan, Felipe Tingzon and a guest of the latter (all of whom, except the last one, testified for the prosecution); he noticed the arrival of Lira who banged his folders on the table, elbowed him, and said in a loud "ano ka"; he saw Lira put his right hand inside his pocket and with the other hand push a chair towards him; he became "confused" because he remembered that Lira threatened to kill him if he would see him again; at this point he "lost his senses" and regained it when he heard the voice of Mrs. Tan saying: "Loreto, don't do that", and he then found out that he had wounded Lira. If appellant was able to recall all those incidents, We cannot understand why his memory stood still at that very crucial moment when he stabbed Lira to return at the snap of finger as it were, after he accomplished the act of stabbing his victim. His is not a diseased mind, for there is no evidence whatsoever, expert or otherwise, to show that he is suffering from insanity or from any other mental sickness which impaired his memory or his will. The evidence shows and the trial court did find that appellant is a perfectly normal being, and that being the case, the presumption is that his normal state of mind on that Monday morning continued and remained throughout the entire incident..

The testimony of appellant's wife, Elena, that her husband at times manifests unusual behaviour, exempli gratia: lashing at his children if the latter refuses to play with him, tearing off the mosquito net if not properly tied, "executing a judo" on her person, boxing her, and so on and so forth, is not the evidence needed to prove a state of insanity. At most such testimony shows that appellant Renegado is a man of violent temper who can be easily provoked to violence for no valid reason at all. Thus in People vs. Cruz, this Court held that breaking glasses and smashing dishes are simply demonstrations of an explosive temper and do not constitute clear and satisfactory proof of insanity; they are indications of the passionate

nature of the accused, his tendency to violent fits when angry, and inasmuch as the accused was not deprived of the consciousness of his acts but was simply obfuscated by the refusal of his wife to live with him, his conviction for parricide was proper. 23

Very relevant to the case now before Us in U.S. vs. Ramon Hontiveros Carmona, 18 Phil. 62, where the appellant was accused of serious physical injuries committed on his wife, mother-in-law, and sisters-in-law. The accused Hontiveros pleaded insanity as a defense, and claimed that immediately before the incident he had intermittent fever at intervals of a few hours during which he lost consciousness and after he regained consciousness he found himself outside of the house and heard voices commanding him to surrender his weapon, and he came to know that he had wounded his wife, his mother-in-law and sisters-in-law. The Court sustained the conviction of the accused holding:

In the absence of proof that the defendant had lost his reason or became demented a few moments prior to or during the perpetration of the crime, it is presumed that he was in a normal condition of mind. It is improper to conclude that he acted unconsciously in order to relieve him from responsibility on the ground of exceptional mental condition, unless his insanity and absence of will are proven .... Acts penalized by law are always considered to be voluntary, unless the contrary be shown, and by this rule of law Ramon Hontiveros, by inflicting upon the offended parties the respective wounds, is considered to have been in a normal, healthy, mental condition, and no weight can be given to the defendant's allegation of insanity and lack of reason, which would constitute an exceptional condition; nor, for lack of evidence, can his state of mind be deemed to have been abnormal." (p. 65, emphasis supplied)

The next point raised by the defense is that the testimonial evidence of the prosecution comes from "biased, partial, and highly questionable sources," and is not to be believed. 23

Appellant claims that it is highly improbable for a person who intends to kill someone to reveal his plan to others such as what the prosecution witnesses Velasco and Ramirez testified that Renegado told them on Friday afternoon that he was going to kill Lira. It may be true that ordinarily one would keep to one's self such a hideous plot, but the workings of the human mind are at times mysteriously incomprehensible, and to a man like the herein appellant who is pictured by his own evidence to be one of violent disposition, it was natural for him to blurt out his outraged feelings and his evil design to his two co-employees in the school because the incident with Lira was still fresh in his mind at the time.

Appellant also contends that the prosecution witnesses are biased and partial. We find that contention unjustified. The mere fact that the witnesses of the People were employees, students, and teachers in the school is no reason to consider their declarations biased in the absence of satisfactory proof that any of them had personal motives if his own either to favor the deceased or prejudice the herein appellant. In assessing the credibility of the prosecution witnesses, the trial judge found no sufficient evidence proving hostility towards the herein appellant or any notable relationship of friendship with the deceased, and We see no valid reason for discrediting His Honor's findings in this regard. Time and again this Tribunal has stated that the findings of the trial court on the credibility of witnesses are not to be disturbed for the trial judge is in a better position to appreciate the same, having seen and heard the witnesses themselves and observed their behaviour and manner of testifying during the trial, unless there is a showing that the trial court had overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have affected the result of the case; in the case at bar, there is no such showing. 24 The rule is so, because as rightly said, the opportunity to observe the demeanor and appearance of witnesses in many instances is the very touchstone of credibility. 25

As a last issue, appellant claims that the court a quo erred in holding the appellant guilty of "murder with assault upon a person in authority." 26

The zeal of appellant's counsel-de-oficio in pursuing all possible lines of defense so as to secure the acquittal of his client or at least to minimize his liability is truly laudable. However, predicated on the credible and impartial testimonies of the prosecution witnesses the judgment of the trial court finding the accused guilty as charged is to be sustained for the following reasons:

First, the killing of Mamerto de Lira is qualified by evident premeditation. The circumstance of evident premeditation is present because on that very Friday afternoon immediately after the incident at the canteen appellant Renegado, giving vent to his anger, told his co-employee, Ramirez, and the security guard, Velasco, that he was going to kill Lira. That state of mind of appellant was evident once more when he went to the school dance that same Friday evening and was seen cycling around the school premises several times, and he asked another security guard, Nicomedes Leonor, if Lira was at the dance. On the following day, Saturday, appellant met Mrs. Benita Tan to whom he confided that had he seen Lira the night before he would surely have killed him. And on Monday morning, knowing the time of Lira for a snack (tsn, Nov. 17, 1966, p. 307), appellant armed himself with a knife or some bladed weapon which by his own admission on cross-examination was his and which he used for "cutting bond paper" (tsn. ibid, p. 299), proceeded to the canteen at around 9:30 o'clock, and seeing the teacher Lira with his back towards

him, without much ado, stabbed Lira from behind hitting the victim on the right lumbar region. Appellant's attempt to show that he does not remember how the weapon reached the canteen is of course futile, preposterous as it is. (tsn. ibid, pp. 299-300) There is no doubt that the act of appellant in bringing with him his knife to the canteen on Monday morning was the culmination of his plan to avenge himself on Lira for the remark made by the latter on Friday afternoon. Evident premeditation exists when sufficient time had elapsed for the actor to reflect and allow his conscience to overcome his resolution to kill but he persisted in his plan and carried it into effect. 27 Here, appellant Renegado had more or less sixty-four hours from the Friday incident up to 9:30 o'clock of Monday morning within which to ponder over his plan and listen to the advice of his co-employees and of his own conscience, and such length of time was more than sufficient for him to reflect on his intended revenge.

Second, treachery attended the killing of Lira because the latter, who was unarmed, was stabbed from behind, was totally unaware of the coming attack, and was not in a position to defend himself against it. There is treachery where the victim who was not armed was never in a position to defend himself or offer resistance, nor to present risk or danger to the accused when assaulted. 28

Third, the killing of Lira is complexed with assault upon a person in authority. A teacher either of a public or of a duly recognized private school is a person in authority under Art. 152 of the Revised Penal Code as amended by Commonwealth Act No. 578. 29

The defense claims, however, that while it is true that Mamerto de Lira was at the time of his death a teacher of the Tiburcio Memorial Vocational School run by the national government, he was not stabbed while in the performance of his duties nor on the occasion of such performance. According to the defense counsel, the motive of the assault is important to determine whether or not the assault falls under Art. 148 of the Revised Penal Code; 30 in the instant case it is clear that the underlying motive for the assault was not that Renegado was asked to type the test questions of the teacher Lira but that the latter made insulting and slanderous remarks to the herein appellant. This contention of the defense is incorrect. The assault or attack on Lira was committed on the occasion of the performance of the duties of the latter as a teacher because: as narrated in the early part of this Decision, Lira was scheduled to give a periodical test on September 2, 1966, and was required to submit his, test questions for approval and mimeographing by August 25 and 26; Lira asked appellant Renegado to prepare the stencil of his questions inasmuch as he was not versed with typing; appellant was duty bound to type said stencil under the memorandum-circular enumerating his duties as a clerk of the school; appellant refused the request of Lira under pretext that he had much

work in the principal's office and furthermore that typing test questions for teachers was not among his duties; Lira reminded Renegado that the principal gave necessary instructions for that purpose, and ended up with the remark: "you can finish your work if you only will sit down and work"; Lira's remark was neither insulting nor slanderous but more of a reminder to Renegado that if he would sit down and work he could finish all the work that had to be done; as a teacher of the school, Lira had the authority to call the attention of an employee of the institution to comply with his duties and to be conscientious and efficient in his work; it was Renegado's violent character, as shown by his own evidence, which led him to react angrily to the remark of Lira and conceive of a plan to attack the latter. Under these enumerated facts, We conclude that the impelling motive for the attack on Mamerto de Lira was the performance by the latter of his duties as a teacher.

In Justo vs. Court of Appeals, wherein the offended party was a district supervisor of the Bureau of Public Schools, the Court held that the phraseology "on occasion of such performance" used in Art. 148 of the Revised Penal Code signifies "because" or "by reason" of the past performance of official duty, even if at the very time of the assault no official duty was being discharged, inasmuch as the evident purpose of the law is to allow public officials and their agents to discharge their official duties without being haunted by the fear of being assaulted or injured by reason thereof. 31

Inasmuch as the crime committed is murder with assault upon a person in authority and the mitigating circumstance of voluntary surrender is offset by the aggravating circumstance of treachery, the penalty of DEATH imposed by the trial court is pursuant to Article 48 in relation to Articles 148 and 248 of the Revised Penal Code. The court a quo, however, in its decision recommends to the President of the Republic the commutation of the death penalty to reclusion perpetua, and the Solicitor General * concurs with such recommendation. On the part of the Court, for lack of ten votes for purposes of imposing the death sentence, the penalty next lower in degree, reclusion perpetua, is to be imposed.

PREMISES CONSIDERED, We affirm the conviction of appellant Loreto Renegado for murder with assault on a person in authority and We sentence him to suffer reclusion perpetua and to indemnify the heirs of the deceased Mamerto de Lira in the sum of twelve thousand (P12,000.00) pesos 32 and to pay the costs. Decision modified.