FIRST DIVISION

[G.R. No. 81404. January 28, 1991.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ISRAEL CARMINA alias "Boy" and VALERO CARMINA, accused.
VALERO CARMINA, accused-appellant.

SYLLABUS

1. Â REMEDIAL LAW; EVIDENCE; ALIBI; UNAVAILING IN THE FACE OF

POSITIVE IDENTIFICATION. — His alibi must fall not only because of its
inherent weakness but also because of his positive identification by the two
eyewitnesses, one of whom was his near-victim and the other his compadre.
2. Â CRIMINAL LAW; CONSPIRACY; MANIFEST IN CASE AT BAR. —
While it is true that it was not he who actually shot and later dismembered
Jose Agotano, the evidence has clearly established a conspiracy between
him and his son that makes him equally guilty with the latter. The two of
them acted in concert in the conception and execution of the killing. The
decision to kill Billy was reached by the two of them although it was Israel
who personally implemented it. While Israel did his part in the killing yard,
Valero detained Victoriano in the house at gunpoint and watched the
shooting and dismemberment of Billy. As a father, Valero made no move to
restrain his son; on the contrary, he watched with approval as Israel carried
out their joint decision.
3. Â ID.; QUALIFYING CIRCUMSTANCE; TREACHERY; ATTENDANT
WHERE THE VICTIM WAS SHOT IN THE BACK ENTIRELY DEFENSELESS. — The
crime was qualified with treachery because, although the victim was
forewarned of his impending death, he was shot in the back while he was
entirely defenseless and the killers were under no risk whatsoever from any
retaliation the victim might make. This Court held there was treachery when
the accused shot and killed the victim.
4. Â ID.; ID.; OUTRAGING OR SCOFFING AT THE CORPSE; APPARENT
WHERE THE VICTIM WAS DISMEMBERED AND HIS BODY OPENED UP TO
REMOVE THE INTESTINES, LIVER AND LUNGS. — Even if treachery were not
present in this case, the crime would still be murder because of the
dismemberment of the dead body. One of the qualifying circumstances of
murder under Article 248, par. 6, of the Revised Penal Code is "outraging or
scoffing at (the) person or corpse" of the victim. There is no question that
the corpse of Billy Agotano was outraged when it was dismembered with the
cutting off of the head and limbs and the opening up of the body to remove
the intestines, lungs and liver. The killer scoffed at the dead when the
intestines were removed and hung around Victoriano's neck "as a necklace"
and the lungs and liver were facetiously described as " pulutan."
5. Â ID.; ID.; EVIDENT PREMEDITATION; NOT CONSIDERED WHERE
THERE WAS NO SHOWING THAT THE ACCUSED HAD PREVIOUSLY PLANNED
THE EXECUTION OF THE OFFENSE. — We agree with the trial court that
evident premeditation should be disregarded because sufficient time had not
elapsed between the determination to commit the crime and its execution,
to enable the accused to reflect upon the consequences of their act. It is not
certain that when early in that afternoon, Valero told the captives in
Megriño's house that they would die, the Carminas had already definitely
resolved to commit the murder. In fact, although the threat was made to all
of the captives, only Billy was killed in the end. Moreover, there was no
showing that they had coolly and dispassionately planned the execution of
the offense. The events leading to the murder suggest that the Carminas
were from the start busy with oppressing the Agotanos or drinking tuba,
leaving no time for that detached and undisturbed premeditation of the
murder. It was only when they were in Katiad's house that the decision to kill
Billy was made, the justification being that "we have already maltreated him,
this time we will just finish him because he might retaliate."
6. Â ID.; ID.; AGGRAVATING CIRCUMSTANCE; ABUSE OF SUPERIOR
STRENGTH; ABSORBED IN ALEVOSIA. — Abuse of superior strength was also
correctly not considered, being absorbed in alevosia.
7. Â ID.; ID.; IGNOMINY; NOT CONSIDERED WHERE THE VICTIM WAS
ALREADY DEAD WHEN DISMEMBERED. — But it was incorrect to appreciate
adding ignominy to the offense because the victim was already dead when
his body was dismembered. This aggravating circumstance requires that the
offense be committed in a manner that tends to make its effects more
humiliating to the victim, that is, add to his moral suffering.
8. Â ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER;
NOT APPRECIATED BY MERE NON-RESISTANCE TO ARREST. — On the other
hand, the fact that Valero yielded when he was apprehended did not operate
to mitigate the penalty because mere non-resistance to arrest is not
considered voluntary surrender.
9. Â CIVIL LAW; DAMAGES; INDEMNITY TO DEATH INCREASED TO
P50,000.00. — The sentence imposed, except only as to the civil indemnity,
which is increased to P50,000.00, is AFFIRMED.

DECISION

CRUZ, J :
p

The grisly details of the killing cannot be told without revulsion, but
they must be told. It is unbelievable that it happened in this day and age and
not in a distant and savage time when brutality was a way of life and death
when it came aroused no special reverence. This case belongs to that
barbaric past.
The victim was Jose Billy Agotano, who was only twenty years old when
he was killed in cold blood. According to the prosecution, the killers were
Valero Carmina, the herein accused-appellant, and his son Israel Carmina,
also known as Boy.
The two were charged before the Regional Trial Court of Mati, Davao
Oriental, in an information reading as follows:
That on or about November 15, 1986, in the Municipality of
Tarragona, Province of Davao Oriental, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with
treachery and evident premeditation, armed with garand rifles and
sharp-pointed bolo (pinuti), and with intent to kill, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot with said
garand rifle one JOSE BILLY AGOTANO, thereby inflicting upon the
latter wound which caused his death, and not contended with that,
with the use of the said bolo, accused slaughtered the dead body of
said Jose Billy Agotano.
The commission of the crime was attended by the aggravating
circumstances of abuse of superior strength and adding ignominy to
the natural effects of the crime.
cdrep

Only Valero Carmina could be arraigned and tried because Israel

disappeared and remains at large to date. After trial, the accused-appellant
was found guilty and sentenced to life imprisonment. * He was also required
to pay civil indemnity in the amount of P30,000.00 to the victim's heirs plus
the costs of the suit. 1
The case for the prosecution was established mainly through the
testimony of two eyewitnesses, namely, Victoriano Agotano, the victim's
brother, and Ramon Katiad, in whose yard the crime was committed.
Victoriano testified that he and Billy were on their way home from their
farm when they were intercepted at gunpoint by Valero, his wife Ernita, their
son Israel, and Aileen Masanguid at about 2:30 o'clock in the afternoon of
November 15, 1986. Valero had a carbine, Israel a Garand rifle and a hunting
knife, and Ernita a bolo at her waist. The group accused Billy of being a
"pulahan" because of the red t-shirt he had wrapped around his head to
cover it from the rain. The two of them were taken to the nearby house of
Dionisio Megriño, where Billy was struck in the forehead by Valero and in the
chest by Israel with the handle of their respective firearms.
The group stayed there for about thirty minutes, and then Victoriano
and Billy were ordered to march to their brother Alfredo's house, with their
captors trailing them closely. He, Billy and Alfredo, together with two other
persons named Pilo and Roger, who happened to be in the house at the time,
were ordered to fall in line and sing "Bayang Magiliw." When they reached
the line "Ang mamatay nang dahil sa iyo," Valero and Israel told them, "You
shall die." Twenty minutes later, they were all taken to a cousin of the
Agotanos from whom the Carminas demanded tuba, rice and chickens.
Alfredo, Roger and Pilo were forced to drink the tuba with Valero and Israel.
The drinking lasted for two hours. Then the Carminas decided to leave,
taking with them Victoriano and Billy, who were ordered to carry a kettle, the
rice and the chickens.
 The group walked to the house of Ramon Katiad about one and a half
kilometers away and arrived there at 6:30 p.m. Katiad was not there at the
time but came home at about seven o'clock. The Agotanos cooked the rice
and roasted the chickens which they and the Carminas ate. Katiad and his
family had their own supper later.
At about ten o'clock, Israel told Billy, "You can no longer be home, Do."
When asked why, he replied: "Because you are wearing a red cloth around
your head." Katiad pleaded that Israel not do anything in his house but Israel
said, "I am going to kill him." In desperation and fear, Victoriano told Billy to
kneel before Israel and beg for his life, which Billy did. But to no avail. Israel
took Billy with him downstairs while Valero detained Victoriano in the house,
pointing his rifle at him.
In the yard, Israel pushed Billy from behind and then shot him, hitting
him in the nape. Billy died as he fell to the ground. Israel then stripped and
exposed the dead body. He went back to the house to get his mother's bolo
and ordered Victoriano to go down and look at his brother's corpse. The
Katiad family (including the children) was also told to go to the yard. When
everyone had gathered around the dead body, they watched in horror at the
gruesome acts that followed.
Israel chopped off Billy's arms and legs. Then he beheaded the corpse
and, raising the severed head, shouted "Taganlang," meaning God. He cut
open the stomach and pulled out the intestines. He hung these around
Victoriano's neck, saying, "You use this as your necklace, the intestines of
your younger brother." Going back to the dismembered corpse, he pulled
out the liver and the lungs. Triumphantly raising them, he shouted. "We will
use this as pulutan!"
Having done all this, Israel then turned his attention to Victoriano and
said, "I will kill you next!" He lunged at Victoriano but lost his balance and
the latter was able to parry the blow. Victoriano ran for his life! It was, as he
put it later, "a suicide run." Israel pursued and took a shot at him but missed.
Victoriano made good his escape. Arriving at about two o'clock in his
mother's house, he reported what had happened and warned the family that
the Carminas were after them. Under cover of darkness even as deathly fear
stalked them, they took refuge in a neighbor's house. Later in the morning,
they reported the killing to the authorities.
Victoriano's narration of the killing and slaughter was corroborated by
Katiad, the other eyewitness. He added the distasteful detail that after
shooting Billy to death, Israel broke into happy song: "Siga-siga sa baryohan,
hindi natatakot sa barilan!" He said that the Carminas took him with them
after Victoriano's escape but finally released him after about fifteen minutes.
Later, he and several policemen gathered the parts of the dismembered
corpse that were scattered in his yard and put them in a sack. LibLex

Valero's defense was alibi. He declared under oath that at the time of
the murder, he was hiding in the mountains of Manay from the family of
Elnoro Badadao, whom he "was forced to kill" over a land dispute. He denied
knowing the Agotanos and Megriño but admitted that Katiad was his friend
and former neighbor. He said the testimonies of the prosecution witnesses
were all lies because the last time he was in Ompao was in 1983.
Charito Garsona, the only other witness for the defense, testified that
on November 15, 1986, the accused-appellant and three other persons
passed by her house in Manay, Davao Oriental, at about 4 o'clock in the
afternoon and asked for food.
In his brief, the accused-appellant contends that he should not be
blamed for the killing of Billy Agotano, granting arguendo that it was Israel
who killed the victim and dismembered his corpse. Israel, if at all, should be
held accountable alone for his act. The fact that the accused-appellant did
not try to escape but yielded when he was arrested should indicate his
innocence, which should be presumed in the absence of proof of his guilt
beyond reasonable doubt.
There is indeed such proof. His alibi must fall not only because of its
inherent weakness but also because of his positive identification by the two
eyewitnesses, one of whom was his near-victim and the other his compadre.
While it is true that it was not he who actually shot and later
dismembered Jose Agotano, the evidence has clearly established a
conspiracy between him and his son that makes him equally guilty with the
latter. The two of them acted in concert in the conception and execution of
the killing. The decision to kill Billy was reached by the two of them although
it was Israel who personally implemented it. While Israel did his part in the
killing yard, Valero detained Victoriano in the house at gunpoint and watched
the shooting and dismemberment of Billy. As a father, Valero made no move
to restrain his son; on the contrary, he watched with approval as Israel
carried out their joint decision.
The crime was qualified with treachery because, although the victim
was forewarned of his impending death, he was shot in the back while he
was entirely defenseless and the killers were under no risk whatsoever from
any retaliation the victim might make. In People v. Barba , 2 the accused
pointed a rifle at the victim from a distance of six meters and said, "Pardong,
stand up, we are going to shoot you!" With hands raised, the victim pleaded,
"Do not kill me, investigate first what was my fault!" This Court held there
was treachery when the accused shot and killed the victim.
Even if treachery were not present in this case, the crime would still be
murder because of the dismemberment of the dead body. One of the
qualifying circumstances of murder under Article 248, par. 6, of the Revised
Penal Code is "outraging or scoffing at (the) person or corpse" of the victim.
There is no question that the corpse of Billy Agotano was outraged when it
was dismembered with the cutting off of the head and limbs and the opening
up of the body to remove the intestines, lungs and liver. The killer scoffed at
the dead when the intestines were removed and hung around Victoriano's
neck "as a necklace" and the lungs and liver were facetiously described as "
pulutan."
Although the information did not categorically allege this qualifying
circumstances in the exact words of the law, it was nevertheless deducible
from the statement that the "accused slaughtered the dead body of said Jose
Billy Agotano."
Thus, in People v. Obenque, 3 the information charged "that after thus
shooting Sergio Cabradilla, the accused Elpidio Obenque in the furtherance
of his criminal design, loaded the body of his victim in the Volkswagen
Brasilia Sedan with Plate No. BEE 164, Series of 1977 and with utmost
cruelty, dump the corpse in a ravine . . ." It was held that this act of the
accused constituted an outrage of or scoffing at the corpse of the victim.LibLex

We agree with the trial court that evident premeditation should be

disregarded because sufficient time had not elapsed between the
determination to commit the crime and its execution, to enable the accused
to reflect upon the consequences of their act. It is not certain that when
early in that afternoon, Valero told the captives in Megriño's house that they
would die, the Carminas had already definitely resolved to commit the
murder. In fact, although the threat was made to all of the captives, only
Billy was killed in the end. Moreover, there was no showing that they had
coolly and dispassionately planned the execution of the offense. The events
leading to the murder suggest that the Carminas were from the start busy
with oppressing the Agotanos or drinking tuba, leaving no time for that
detached and undisturbed premeditation of the murder. It was only when
they were in Katiad's house that the decision to kill Billy was made, the
justification being that "we have already maltreated him, this time we will
just finish him because he might retaliate."
Abuse of superior strength was also correctly not considered, being
absorbed in alevosia.
But it was incorrect to appreciate adding ignominy to the offense
because the victim was already dead when his body was dismembered. This
aggravating circumstance requires that the offense be committed in a
manner that tends to make its effects more humiliating to the victim, that is,
add to his moral suffering. 4
On the other hand, the fact that Valero yielded when he was
apprehended did not operate to mitigate the penalty because mere non-
resistance to arrest is not considered voluntary surrender.
What possessed the killers in the commission of their nauseating acts
can only be left to incredulous conjecture. What is certain is that whether it
was caused by fanatic ideology, or plain intoxication, or an innate bestiality,
the bizarre desecration of the corpse was utterly disgusting and deserves
the strongest if helpless condemnation. The penalty prescribed by law,
which is only reclusion perpetua, does not seem severe enough. cdll

WHEREFORE, the appeal is DISMISSED. The sentence imposed, except

only as to the civil indemnity, which is increased to P50,000.00, is AFFIRMED.
It is so ordered.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
Â
 Footnotes

* Â Decision penned by Judge Ricardo M. Berba.

1. Â Rollo, p. 26.

2. Â G.R. No. L-7136, September 30, 1955.

3. Â 147 SCRA 488.

4. Â U.S. v. Abaigar, 2 Phil. 417.