The file was converted using http://www.convertapi.com Please purchase credits to remove this text http://www.convertapi.

com/prices

Republic of the Philippines

COURT OF APPEALS
Manila

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

-versus- CA G.R. CR. No. 01218

ALEJANDRO A. OLIMPO
Accused-Appellant.
x-----------------------x

TRIAL BRIEF FOR THE APPELLEE

STATEMENT OF THE CASE

This is an appeal from a decision of the Regional Trial Court of Tacloban City, Branch
8 dated May 31, 1984 convicting the accused-appellant Alejandro A. Olimpo alias Kiko of
Homicide, the dispositive portion of which reads as follows:

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of
the lesser crime of Homicide, an offense included in that charged in the
Information and sentences him to suffer the indeterminate penalty of six (6) years
and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal as maximum. To indemnify the
offended party the sum of twelve thousand (P12,000.00) pesos, without
subsidiary imprisonment in case of insolvency; thirteen thousand two hundred
twenty one pesos and fifteen centavos (P13,221.15) as actual damages; ten
thousand (P10,000.00) pesos as moral damages and to pay the costs.

SO ORDERED. (Records, p. 300)

COUNTERSTATEMENT OF FACTS

At about 9:00 in the evening of June 14, 1980, Macario Lagmay, Jr., Gregorio Mueca,
and Virgilio Alcaide were drinking beer grande with seven (7) other friends inside a store
owned by Mrs. Norma de la Cruz at Barangay Quarry District, Tacloban City, (tsb, oo, k8-19,
May 26, 1982). After about thirty (30) minutes, Mrs. De la Cruz informed them that a nearby
house owned by Pedro Nuesca was being pelted with stones, which prompted the group led
by Macario Lagmay to go outside the store and curiously look into the incident (tsn. pp. 19-21,
Ibid).

As Macario Lagmay reached the gate of the compound of the store, Alejandro Olimpo,
a resident of the house which was pelted with stones, suddenly rushed towards him and
stabbed him with a two-foot long bayonet (tsn. pp. 21-22, Ibid). Immediately thereafter,
Olimpo was followed by two (2) companions, Danny Rivera armed with a chako and Roger
Paulino who was carrying a cane. Danny Rivera then tried to strike Gregorio Mueca, who was
behind Lagmay, with his chako which Mueca fortunately evaded (tsn. pp).

Realizing the dire consequence of what was done to Lagmay, whose intestines were
already gaping at that time, Olimpo and his companions fled as Lagmays companions went
to his rescue.

Thereafter, the victim was brought to the Eastern Visayas Regional Medical Center
where he eventually died on June 16, 1980 (pp. 25-26, tsn. Id). An autopsy conducted by Dr.
Rolando Queliza on the body of the victim revealed the following findings:

x x x x x x xxx
The file was converted using http://www.convertapi.com Please purchase credits to remove this text http://www.convertapi.com/prices

External Findings:

Head - Normal findings.

Chest - Normal findings.

Abdomen - Stab wound, 1 - .5 in., left lateral subcostal margin.

Penetrating.

Stab wound, 1 15 in., level of anterior axillary line,

penetrating, on the right upper quadrant.

Internal Findings:

Abdomen - Penetrating stab wound perforating and lacerating on the

left side to the descending colon and Sigmoid.

Penetrating stab wound on the right upper quadrant of the

abdomen cutting the jejunum, perforating the terminal ilium
and lacerating the mesentery with massive
hemoperitoneum. (Records, p. 7)

On February 19, 1981, an Information was filed with the Regional Trial Court of
Tacloban City, Branch 8, charging the accused Alejandro Olimpo with the crime Murder
(Records, p. 37).

When arraigned, the accused pleaded not guilty after which trial ensued (Records, p.
54).

On, June 14, 1984, the court a quo promulgated the assailed decision convicting the
accused of the lesser crime Homicide upon finding that the accuseds act of killing Lagmay
was not attended with evident premeditation and treachery but was rather done in the spur of
the moment (pp. 299-300, Records).

Accused-appellant now appeals the said decision with the following assignment of
errors.

ASSIGNMENT OF ERRORS

I. THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE
TESTIMONIES OF PROSECUTION WITNESSES GREGORIO MUECA AND
VIRGILIO ALCAIDE;

II. THE TRIAL COURT ERRED IN REFUSING TO GIVE FULL FAITH AND CREDIT,
AND IN COMPLETELY DISREGARDING THE EVIDENCE PRESENTED BY
ACCUSED ALEJANDRO OLIMPO WHICH PROVED HIS INNOCENCE OF THE
CRIME IMPUTED TO HIM;

III. THE TRIAL COURT ERRED IN CONDEMNING INSTEAD OF ACQUITTING THE

ACCUSED ALEJANDRO OLIMPO.

EVEN GRANTING ARGUENDO THAT THE ACCUSED WAS GUILTY, THE TRIAL
COURT ERRED IN NOT CONSIDERING THE FOLLOWING MITIGATING
CIRCUMSTANCES IN HIS FAVOR:

A. LACK OF INTENT TO COMMIT SO GRAVE A WRONG ;

B. SUFFICIENT THREAT AND PROVOCATION ON THE PART OF THE OFFENDED

PARTY;

C. INCOMPLETE SELF-DEFENSE OR INCOMPLETE DEFENSE OF RELATIVE;

The file was converted using http://www.convertapi.com Please purchase credits to remove this text http://www.convertapi.com/prices

D. VOLUNTARY SURRENDER.

(p. 1, Appellants brief)

ARGUMENT

Refutation of the First Assignment of Error

In vainly trying to discredit the testimonies of prosecution witnesses Gregorio Mueca

and Virgilio Alcaide, accused-appellant first contends that they were biased witnesses since
Mueca was the victims brother-in-law while Alcaide was a close friend. Moreover, accused-
appellant claims that all three of them were listed as suspects in pelting the house of Pedro
Nuesca at the night of the incident.

The above claim deserves scant consideration. It has been time and again held that
mere relationship of prosecution witnesses to the victim does not necessarily vitiate their
otherwise credible testimony nor does it impair their positive and clear evidence (People vs.
Nacuspag, L-31682, July 20, 1982).

Moreover, since the accused-appellant himself admitted having known no reason why
the witnesses testified against him nor was he in bad terms with them (tsn. p. 6, Nov. 18,
1982), the presumption is that said witnesses were not actuated by improper motives and
their testimonies are entitled to full faith and credit (People vs. Araya, L-24780, June 29,
1981).

Whether or not the said witnesses were named suspects in the pelting incident is also
not sufficient motive to falsify against the accused-appellant, especially since it involves a
grave crime of murder. Besides, the witnesses were merely named suspects and were never
charged in court of the acts imputed to them.

Accused-appellant next contends that contrary to the prosecution witnesses

testimonies, the witnesses for the defense show that Macario Lagmay was stabbed only after
committing acts of unlawful aggression against Danny Rivera and the accused-appellant
himself. The bone of contention however, goes into the question of credibility of witnesses
and there is no cogent reason to deviate from the doctrine that findings of the trail court on the
matter should not be disturbed since it heard the witnesses themselves and observed their
deportment and manner of testifying during trial (People vs. Mosquerra, 124 SCRA 775).

Refutation of the Second and third Assignment of Errors

The second and third assignment of errors being intertwined, we beg leave to refute
them jointly.

Accused-appellant claims that he went out of the house only to request the victim,
Macario Lagmay, and his companions who were allegedly pelting the house with stones, to
refrain from doing so, and that he stabbed the victim only after Lagmays group repeatedly
clubbed and threw large stones at his brother-in-law, Danny Rivera, forcing the latter to fall
down to the ground.

The theory is however unworthy of belief as the injuries allegedly sustained by Danny
Rivera, serious as they should be if indeed he suffered back injuries, were not even supported
by a medical certificate to show he was treated for such wounds. The fact then that both
accused-appellant and Danny Rivera escaped unharmed from the incident proves that the
attack of the victim was so sudden that not even one of the victims companions could have
prevented him from sustaining the injuries, much less, initiate retaliatory action of the
assailants.

Moreover, assuming that Macario Lagmays group were pelting the house with stone,
the accused-appellant was nonetheless not justified in stabbing the victim for he would be
merely acting in defense of property which is not of such importance as the right to life.
The file was converted using http://www.convertapi.com Please purchase credits to remove this text http://www.convertapi.com/prices

Besides, as accused-appellant admitted, he had already asked his sister Lydia Rivera to
summon the police for them to stop Lagmays group from doing further damage to the house.

Refutation of the Fourth Assignment of Error

Accused-appellant lastly faults the court a quo with the error in not considering the
mitigating circumstances of (a) lack of intent to commit so grave a wrong; (b) sufficient threat
and provocation on the part of the offended party; (c) incomplete self-defense or defense of
relative; and (d) voluntary surrender.

The foregoing contentions are however devoid of merit for the following reasons:

Intention This mitigating circumstance addresses itself to the intention of the

offender at the particular moment when he executed or committed the criminal act; not his
intention during the planning stage (People vs. Boyles, 11 SCRA 88). Since accused-
appellant, angered by the stone throwing incident, went out of the house armed with a
bayonet to vent his ire on the victim whom he suspected as having thrown the stones, his
obvious intention was therefore to inflict injuries on the said victim which caused his life.

Sufficient Provocation As already discussed above, the only provocation which may
have been imputed on the victim, i.e. throwing stones, was not sufficient or adequate to excite
the accused-appellant to commit the wrong done. It can hardly be said that the victims act
constitutes sufficient cause for accused-appellant to draw out a bayonet and kill the former,
for which reason this circumstance cannot be appreciated.

Incomplete Self-defense / Defense of Relative In order that the mitigating

circumstance may be appreciated, it has been repeatedly held that unlawful aggression
should always be present, for the absence of this element precludes incomplete self-defense
(People vs. Rosal, Unrep. 93 Phil. 1116). Since the alleged aggression was not equivalent to
assault nor at least a threatened assault of immediate and imminent kind, the said mitigating
circumstance cannot also be entertained.

CONCLUSION AND RECOMMENDATION

The foregoing therefore clearly establish that the accused-appellant is guilty beyond
reasonable doubt of the crime of Homicide for the slaying of Macario Lagmay, Jr. in the
evening of June 14, 1980.

The amount of indemnity of twelve thousand (P12,000.00) pesos awarded to the heirs
of the deceased should however be increased to thirty thousand (P30,000.00) pesos in view
of the recent rulings of the Supreme Court in People vs. Laganzon, G.R. No. L-47118, May
21, 1984, and People vs. Moreno, G.R. No. L-53915, May 28, 1984.

WHEREFORE, premises considered, it is most respectfully prayed that the appealed

decision be affirmed with modification on the aforementioned indemnity and with costs.

Manila. October 15, 1985.

ATTY. HOSPICIO A. GUEVARRA

Assistant Solicitor General
IBP No. 200215 / 04-19-78 / Manila
PTR No. 3252997 / 06-30-85 / Manila
Roll No. 2105

COPY FURNISHED:

ATTY. ROBERT A. REYES

Counsel for the Defendant
Reyes Law Office
No. 9-A, Real Street, Tacloban City, Leyte / BY PERSONAL SERVICE