PEOPLE OF THE PHIL. ISLANDS vs . FELIPE KALALO, ET AL.

SECOND DIVISION
[G.R. Nos. 39303-39305. March 17, 1934.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plainti-appellee, vs.
FELIPE KALALO, ET AL., defendants. FELIPE KALALO, MARCELO
KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants.

Meynardo M. Farol and Feliciano Gomez for appellants.

Acting Solicitor-General Pea for appellee.
SYLLABUS
1.
CRIMINAL LAW; HOMICIDE; CIRCUMSTANCES OF "ABUSE OF
SUPERIOR STRENGTH". Under article 248 of the Revised Penal Code, which
denes murder, the circumstance of "abuse of superior strength", if present,
raises homicide to the category of murder. However, said circumstance may not
properly be taken into consideration in the two cases at bar, either as a qualifying
or as a generic circumstance, if it is borne in mind that the deceased were also
armed, one of them with a bolo, and the other with a revolver. The risk was even
for the contending parties and their strength was almost balanced because there
is no doubt but that, under circumstances similar to those of the present case, a
revolver is as effective as, if not more so than three bolos.
2.
ID.; ID.; ID.; ATTEMPTED HOMICIDE. The evidence shows that M. K.
red four successive shots at H. H., without hitting him, while the latter was
eeing from the scene of the crime in order to be out of reach of the appellants
and their companions and save his own life. The fact that the said appellant, not
having contented himself with ring only once, red said successive shots at H.
H., added to the circumstance that immediately before doing so he and his coappellants had already killed A. H. and M. P., cousin and brother-in-law,
respectively, of the former, shows that he was then bent on killing said H. H. The
acts thus committed with no modifying circumstance to be taken into
consideration because none has been established.
DECISION
DIAZ, J :
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On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo,
Juan Kalalo and Gregorio Ramos, were tried in the Court of First Instance of

Batangas jointly with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in
criminal case Nos. 6858, 6859 and 6860, the rst two for murder, and the last
for frustrated murder. Upon agreement of the parties said three cases were tried
together and after the presentation of their respective evidence, the said court
acquitted Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced
the appellants as follows:
In case No. 6858, for the alleged murder of Marcelino Panaligan, to
seventeen years, four months and one day of reclusion temporal, with the
corresponding accessory penalties, and to indemnify the heirs of the said
deceased Marcelino Panaligan in the sum of P1,000, with the costs.
In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen
years, four months and one day of reclusion temporal, with the corresponding
accessory penalties, and to indemnify the heirs of the aforesaid victim, the
deceased Arcadio Holgado, in the sum of P1,000, with the costs.
In the third case, that is, No. 6860, wherein the court a quo held that the
crime committed was simply that of discharge of rearms, not frustrated murder,
the appellant Marcelo Kalalo was sentenced to one year, eight months and
twenty-one days of prision correccional and to pay the proportionate part of the
costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as their coaccused Fausta and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were
acquitted of the charges therein.
The accused in the aforesaid three cases appealed from their respective
sentences assigning six alleged errors as committed by the trial court, all of
which may be discussed jointly in view of the fact that they raise only one
question, to wit: whether or not said sentences are in accordance with law.
A careful study and examination of the evidence presented disclose the
following facts: Prior to October 1, 1932, the date of the commission of the three
crimes alleged in the three informations which gave rise to the aforesaid three
cases Nos. 6858, 6859 and 6860, the appellant Marcelo Kalalo or Calalo and
Isabela Holgado or Olgado, the latter being the sister of the deceased Arcadio
Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation
over a parcel of land situated in the barrio of Calumpang of the municipality of
San Luis, Province of Batangas. On September 28, 1931, and again on December
8th of the same year, Marcelo Kalalo led a complaint against the said woman in
the Court of First Instance of Batangas. By virtue of a motion led by his
opponent Isabela Holgado, his rst complaint was dismissed on December 7,
1931, and his second complaint was likewise dismissed on February 5, 1932.
Marcelo Kalalo cultivated the land in question during the agricultural years 1931
and 1932, but when harvest time came Isabela Holgado reaped all that had been
planted thereon.
On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one
of the deceased, decided to order the aforesaid land plowed, and employed
several laborers for that purpose. These men, together with Arcadio Holgado,
went to the said land early that day, but Marcelo Kalalo, who had been informed
thereof, proceeded to the place accompanied by his brother Felipe and Juan

Kalalo, his brother- in-law Gregorio Ramos and by Alejandro Garcia, who were
later followed by Fausta Abrenica and Alipia Abrenica, mother and aunt,
respectively, of the first three.
The rst ve were all armed with bolos. Upon their arrival at the said land,
they ordered those who were plowing it by request of Isabela and Arcadio
Holgado, to stop, which they did in view of the threatening attitude of those who
gave them said order.
Shortly after nine o'clock on the morning of the same day, Isabela Holgado,
Maria Gutierrez and Hilarion Holgado arrived at the place with food for the
laborers. Before the men resumed their work, they were given their food and
long after they had nished eating, Marcelino Panaligan, cousin of said Isabela
and Arcadio, likewise arrived. Having been informed of the cause of the
suspension of the work, Marcelino Panaligan ordered said Arcadio and the other
laborers to again hitch their respective carabaos to continue the work already
began. At this juncture, the appellant Marcelo Kalalo approached Arcadio, while
the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn,
approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother of
the Kalalos, about as follows, "what is detaining you?" they all simultaneously
struck with their bolos, the appellant Marcelo Kalalo slashing Arcadio Holgado,
while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos slashed
Marcelino Panaligan, inicting upon them the wounds enumerated and described
in the medical certicates Exhibits I and H. Arcadio Holgado and Marcelino
Panaligan died instantly from the wounds received by them in the presence of
Isabela Holgado and Maria Gutierrez, not to mention the accused. The plowmen
hired by Arcadio and Isabela all ran away.
Arcadio Holgado's body bore the following six wounds, to wit:
"1.
A cut wound on the ulnar side of right arm near the wrist,
cutting the ulnar bonee completely and, the radius partially.
"2.
A cut wound on the anterior upper portion of the left arm
measuring about 7 cm. long and 5 cm. wide extending to the bone and
cutting the deltoid muscle across.
"3.
A penetrating wound on the left chest just below the clavicle
going thru the rst intercostal space measuring about 8 cm. long and 2 cm.
wide.
"4.
A wound on the left side of the back about 20 cm. long
following the 10th intercostal space and injuring the lung, diaphragm,
stomach and large intestine.
"5.
A small supercial cut wound about 2 cm. long and cm.
wide situated on the inner side of the right scapula.
"6.
A supercial wound barely cutting the skin, about 4 cm. long in
the lumbar region just to the right of the spinal column." (Exhibit I.)

Marcelino Panaligan's body, in turn, bore the following fourteen wound, to

wit:
"1.
A penetrating cut wound in the epigastric region of the
abdomen measuring about 7 cm. long 3 cm. wide cutting the omentum and

injuring the lower portion of the stomach and a portion of the transverse
colon, but no actual perforation of either one of the two organs.
"2.
A cut wound on the head just above the forehead about 6 cm.
long and 4 cm. wide lifting a portion of scalp as a flap.
"3.
A cut wound on the left side of the head measuring about 7 cm.
long and 2 cm. wide.
"4.
A cut wound about 12 cm. long across the face just below the
eyes extending from one cheek bone to the other, perforating the left
antrum and cutting the nasal bone.
"5.
A cut wound on the anterior portion of the left forearm
extending to the bone with a ap of skin and muscle which measures about
12 cm. long and 6 cm. wide.
"6.
A cut wound across the dorsal side of the right hand about 5
cm. long and 2 cm. wide cutting the bones of the hand.
"7.
A supercial wound about 6 cm. long and 4 cm. wide and 2 cm.
deep situated in the left axilla.
"8.
A cut wound about 6 cm. long and 2 cm. wide situated over the
left scapula.
"9.
A cut wound on the right shoulder about 6 cm. long passing
near the inner angle of the scapula cutting the muscles of the shoulder.
"10.
A cut wound about 7 cm. long and 3 cm. wide situated near
and almost parallel to the inner border of the right scapula.
11.
A wound on the back of the head, oval in shape, about 10 cm
long. and 5 cm. wide from which a flap of scalp was removed.
"12.
A wound across the back and left side of the neck about 12
cm. long and 7 cm. deep cutting the vertebral column together with the
great arteries and veins on the left side of the neck.
"13.
the back.

A wound about 15 cm. long and 4 cm. wide on the left side of

"14.
A small wound on the left thumb from which a portion of the
bone and other tissues were removed." (Exhibit H.).

The above detailed description of the wounds just enumerated discloses

and there is nothing of record to contradict it that all of them were caused by a
sharp instrument or instruments.
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground
dead, the appellant Marcelo Kalalo took from its holster on the belt of Panaligan's
body, the revolver which the deceased carried, and red four shots at Hilarion
Holgado who was then fleeing from the scene in order to save his own life.
The appellants attempted to prove that the ght, which resulted in the
death of the two deceased, was provoked by Marcelino Panaligan who red shot
at Marcelo Kalalo upon seeing the latter's determination to prevent Arcadio
Holgado and his men from plowing the land in question. No such ring, however,
can be taken into consideration, in the rst place, because of the existence of

competent evidence such as the testimony of Maria Gutierrez, who is a

disinterested witness, which corroborates that of Isabela Holgado in all its details,
showing that the said deceased was already lying prostrate and lifeless on the
ground when the appellant Marcelo Kalalo approached him to take his revolver
for the purpose of using it, as he in fact did, against Hilarion Holgado; in the
second place, because the assault and aggression of the said appellant were not
directed against said Marcelino Panaligan but exclusively against Arcadio
Holgado, the evidence of record on this point being overwhelming, and if his
claim were true, he naturally should have directed his attack at the person who
openly made an attempt against his life; in the third place, because the evidence
shows without question that Panaligan was an expert shot with a revolver, and
among the eight wounds that the appellant Marcelo Kalalo received (Exhibit 3),
not one appears to have been caused by bullet, and similarly, none of the other
appellants received any wound that might, in any way, suggest the possibility of
having been caused by bullet; and nally, because the fact that he and his coappellants, together with those who had been charged jointly with them, had
gone to the place of the crime armed with bolos, determined at any cost to
prevent the Holgados from plowing the land in dispute, cannot but disclose not
only their determination to resort to violence or something worse, but that they
did not need any provocation in order to carry out their intent.
They likewise attempted to prove that the appellant Marcelo Kalalo alone
fought against the deceased Marcelino Panaligan and Arcadio Holgado and
inicted upon them the wounds which resulted in their death, said appellant
testifying that he was compelled to do so in defense of his own life because both
of the deceased attacked him rst, the former with a revolver, ring three shots
at him, and the latter with a bolo. For the same reasons hereinbefore stated,
such defense of the appellants cannot give credit. One man alone could not have
inicted on the two deceased their multiple wounds, particularly when it is borne
in mind that one of them was better armed, because he carried a revolver, and
that he was furthermore an expert shot and scarcely two arm-lengths from
Kalalo, according to the latter's own testimony. The two witnesses for the
defense, who witnessed the crime very closely, refuted such allegation saying
that Marcelo Kalalo alone fought the deceased Arcadio Holgado and that the
other three appellants went after the other deceased. It is true that Arcadio
Holgado also used his bolo to defend himself from Marcelo Kalalo's aggression but
it is also no less true that ve of the principal wounds of the other deceased
Marcelino Panaligan were inicted on him from behind, inasmuch as according to
Exhibit H they were all found at the back of the head, on the neck and on his
back. Neither is it less true that all the wounds of the appellant Marcelo Kalalo
were inicted on him from the front, which fact shows that it was not he alone
who inicted the wounds on the two deceased because had he been alone
Panaligan would not have exposed his back to be thus attacked from behind,
inasmuch as he was armed with a revolver, which circumstance undoubtedly
allowed him to keep at a distance from Kalalo; and in connection with the
testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows
furthermore that the three appellants Felipe Kalalo and Gregorio Ramos attacked
said Panaligan with their respective bolos at the same time that Marcelo Kalalo

attacked Arcadio Olgado, in order that all might act simultaneously in conformity
with the common intent of the four and of their coaccused to eliminate through
violence and at any cost, without much risk to them, all those who wanted to
plow the land which was the cause of the dispute between the two parties. And it
is not strange that the three appellants, who inflicted the wounds upon Marcelino
Panaligan, should act as they did, because they knew that the latter carried a
revolver in bolster on his belt.
Although it may seem a repetition or redundancy, it should be stated that
Marcelo Kalalo's allegation that he acted in self-defense is absolutely unfounded
on the ground that, were it true that the deceased Marcelino Panaligan
succeeded in using his revolver, he would have wounded if not the said appellant,
at least the other appellants.
The trial court has acted correctly in not giving credit to the testimony of
the appellants Juan and Felipe Kalalo and Gregorio Ramos that they proceeded to
the scene of the crime completely unarmed, with the exception that one of them
had a brush in his hand and the other a plane, after Marcelino Panaligan and
Arcadio Holgado had already expired, which is incredible and improbable under
the circumstances, knowing, as in fact that then knew, that their brother Marcelo
Kalalo had been attacked by armed men. This court cannot help but agree with
the decision of the lower court where it states:
"It is improbable that after having been informed that their brother
was engaged in a ght, they went to the scene of the crime, one merely
armed with a plane and the other with a brush. It is improbable that Felipe
Kalalo also went to that place simply to follow Juan Kalalo and Gregorio
Ramos upon seeing them run unarmed in that direction. These
improbabilities of the defenses of the accused, in the face of the positive and
clear testimony of the eyewitness pointing to the said accused as the
aggressors of the deceased Marcelino Panaligan and Arcadio Holgado,
cannot, of course, prevail against nor direct from the weight of the evidence
of the prosecution, particularly taking into consideration the numerous
wounds of each of the deceased and the positions thereof, which show that
the said deceased were attacked by several persons and that those several
persons were the defendants. Furthermore, the established fact that after
the commission of the crime the said defendants had been in hiding in order
to avoid arrest, is corroborative evidence of their guilt."

It certainly is a fact of record that the said three appellants Felipe Kalalo,
Juan Kalalo and Gregorio Ramos were not arrested until several days, because
they had been hiding or, at least, absenting themselves from their homes.
That the four appellants should all be held liable for the death of the two
deceased leaves no room for doubt. All of them, in going to the land where the
killing took place, were actuated by the same motive which was to get rid of all
those who might insist on plowing the land which they believed belonged to one
of them, that is, to Marcelo Kalalo, a fact naturally inferable from the
circumstance that all of them went there fully armed and that they
simultaneously acted after they had been instigated by their mother with the
words hereinbefore stated, to wit: "What is detaining you?"

The question now to be decided is whether the appellants are guilty of

murder or of simple homicide in each of cases G.R. No. 39303 and G.R. No.
39304. The Attorney-General maintain that they are guilty of murder in view of
the presence of the qualifying circumstance of abuse of superior strength
particularly refer. The trial court was of the opinion that they are guilty of simple
homicide but with the aggravating circumstance of abuse of superior strength.
It is true that under article 248 of the Revised Penal Code, which denes
murder, the circumstance of "abuse of superior strength", if proven to have
present, raises homicide to the category of murder; but this court is of the
opinion that said circumstance may not properly be taken into consideration in
the two cases at bar, either as a qualifying or as a generic circumstance, if it is
borne in mind that the deceased were also armed, one of them with a bolo, and
the other with a revolver. The risk was even for the contending parties and their
strength was almost balanced because there is no doubt but that, under
circumstances similar to those of the present case, a revolver is as eective as, if
not more than so than three bolos. For this reason, this court is of the opinion
that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. 39303 and
39304, respectively), merely constitute two homicides, with no modifying
circumstance to be taken into consideration because none has been proved.
As to the case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo
Kalalo red four successive shots at Hilarion Holgado while the latter was eeing
from the scene of the crime in order to be out of reach of the appellants and their
companions and save his own life. The fact that the said appellant, not having
contented himself with ring only once, red said successive shots at Hilarion
Holgado, added to the circumstances that immediately before doing so he and his
co-appellants had already killed Arcadio Holgado and Marcelino Panaligan, cousin
and brother-in-law, respectively, of the former, shows that he was then bent on
killing said Hilarion Holgado. He performed everything necessary on his part to
commit the crime that he determined to commit but he failed by reason of
causes independent of his will, either because of his poor aim or because his
intended victim succeeded in dodging the shots, none of which found its mark.
The acts thus committed by the said appellant Marcelo Kalalo constitute
attempted homicide with no modifying circumstance to be taken into
consideration, because none has been established.
Wherefore, the three appealed sentences are hereby modified as follows:
In case No. 6858, or G.R. No. 39303, the court nds that the crime
committed by the appellants is homicide and they are hereby sentenced to
fourteen years, eight months and one day of reclusion temporal each, to jointly
and severally indemnify the heirs of Marcelino Panaligan in the sum of P1,000
and to pay the proportionate part of the costs of the proceedings of both
instances; and by virtue of the provisions of Act No. 4103, the minimum of the
said penalty of reclusion temporal is hereby fixed at nine years;
In case No. 6859, or G.R. No. 39304, the court likewise nds that the crime
committed by the appellants is homicide, and they are hereby sentenced to
fourteen years, eight months and one day of reclusion temporal each, to jointly

and severally indemnify the heirs of Arcadio Holgado in the sum of P1,000 and to
pay the proportionate part of the costs of both instances; and in conformity with
the provisions of Act No. 4103, the minimum of the penalty of reclusion temporal
herein imposed upon them is hereby fixed at nine years;
In case No. 6860, or G.R. No. 39305, the court nds that the crime
committed by the appellant Marcelo Kalalo is attempted homicide, and he is
hereby sentenced to two years, four months and one day of prision correccional,
it being understood that by virtue of the provisions of said Act No. 4103, the
minimum of this penalty is six months, and he is furthermore sentenced to pay
the costs of the appeal in this case.
In all other respects, the appealed sentences in the said three cases are
hereby armed without prejudice to crediting the appellants therein with onehalf of the time during which they undergone preventive imprisonment, in
accordance with article 29 of the Revised Penal Code. So ordered.

Street, Abad Santos, Hull and Butte, JJ., concur.