EN BANC

[G.R. Nos. L-36662-63. July 30, 1982.]

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

CAMANO , defendant-appellant.

The Solicitor General for plaintiff-appellee.

Deogracias Eufemio for defendant-appellant.

SYNOPSIS

The accused, who had been drinking, stabbed the victim Godofredo Pascua
twice from behind with a bolo called "palas," thereby causing his death and another
victim Mariano Buena or who was in a kneeling position with his head "stooping down"
when he was hacked on the head and continuously stabbed until he died. The accused
was charged under two separate informations for the crime of murder but by
agreement of the parties the two cases were tried jointly. The accused denied killing
Pascua but admitted the killing of Mariano although in self defense. The trial court in
rejecting the defense of the accused, convicted him of murder and sentenced him to
death. On automatic review the fact of death of the two victims and the cause of their
deaths are not disputed. Counsel de o cio for the accused merely claims that the
accused is not guilty of murder but only of homicide.
The Supreme Court held that the trial court did not err in nding the accused
guilty of murder in the two cases and sustained its ndings on the presence of
treachery as the attacks were from behind, but ruled: (a) that the alternative
circumstance of intoxication should be considered as mitigating; (b) that there is no
evident premeditation as there was no evidence of planning or preparation in the killing
nor of marked persistence to accomplish that plan and (c) that abuse of superiority is
absorbed in treachery.
Judgment modi ed, penalty reduced to an indeterminate penalty of prision
mayor as minimum to reclusion temporal as maximum in each case.

SYLLABUS

1. CRIMINAL LAW; MURDER; AGGRAVATING CIRCUMSTANCES; EVIDENT

PREMEDITATION; ESSENTIAL ELEMENTS OF. — There is evident premeditation when
the killing had been carefully planned by the offender, when he prepared before hand
the means which he deemed suitable for carrying it into execution, and when he had
su cient time dispassionately to consider and accept the consequences, and when
there has been a concerted plan (U. S. vs. Cornejo, 28 Phil. 457).
2. ID.; ID.; ID.; EVIDENT PREMEDITATION; PROOF REQUIRED; ABSENCE OF
PROOF IN CASE AT BAR. — Evident premeditation requires proof of the following: (1)
the time when the offender determined to commit the crime; (2) an act manifestly
indicating that the culprit had clung to his determination; and (3) a su cient lapse of
time between the determination and the execution of the crime to allow him to re ect
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 upon the consequences of his act and to allow his conscience to overcome the
resolution of his will. In the case at bar, as there is no direct evidence of the planning or
preparation in the killing of Pascua and Buena or and of the marked persistence to
accomplish that plan, the trial court's conclusion that there is evident premeditation
cannot be sustained.
3. ID.; ID.; ID.; ABUSE OF SUPERIOR STRENGTH; ABSORBED IN TREACHERY.
— The rule is already settled that abuse of superiority is absorbed in treachery.
4. ID.; ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT WHEN
THE ACCUSED ATTACKED THE VICTIM FROM BEHIND; CASE AT BAR. — The
contention of counsel for the accused that treachery is not present in the commission
of the crime is without merit, where the witness Amado Payago categorically declared
that Filomeno Camano attacked Godofredo Pascua from behind, a method which has
ensured the accomplishment of the criminal act without any risk to the perpetrator
arising from the defense that his victim may put up; where the testimony of said
witness is corroborated by the nature and location of the wounds sustained by the
deceased; where with respect to the other victim Mariano Buena or, the evidence
shows that he was attacked while in a kneeling position, with his arms on top of the
gate of the fence surrounding his hut and his head was "stooping down" when he was
hacked on the head, causing him to fall to the ground and then successively hacked and
stabbed without respite, as he lay on the ground, until he died, and where the attack was
also sudden, unexpected, and lethal, such as to disable and incapacitate the victim from
putting up any defense.
5. ID.; ID.; ALTERNATIVE CIRCUMSTANCES; INTOXICATION;
DETERMINATION OF NATURE; CONSIDERED MITIGATING IN CASE AT BAR. —
Drunkenness or intoxication is mitigating if accidental, not habitual nor intentional, that
is, not subsequent to the plan to commit the crime. It is aggravating if habitual or
intentional (Aquino, Revised Penal Code, p. 407). To be mitigating, it must be
indubitably proved (Ibid., at p. 408). A habitual drunkard is one given to intoxication by
excessive use of intoxicating drinks. The habit should be actual and con rmed. It
lessens individual resistance to evil thought and undermines will-power making its
victim a potential evildoer (Ibid., pp. 408-409). In the case at bar, the intoxication of the
appellant not being habitual, and considering that the said appellant was in a state of
intoxication at the time of the commission of the felony, the alternative circumstance of
intoxication should be considered as a mitigating circumstance.
6. ID.; PENALTY; ONE MITIGATING CIRCUMSTANCE WITHOUT ANY
AGGRAVATING CIRCUMSTANCE TO OFFSET IT; PENALTY; CASE AT BAR. — The
offense being attended by the mitigating circumstance of intoxication, without any
aggravating circumstance to offset it, the imposable penalty is the minimum of that
provided by law or 17 years, 4 months and 1 day to 20 years of reclusion temporal.
Applying the Indeterminate Sentence Law, the appellant should be, as he is hereby,
sentenced to suffer an indeterminate penalty ranging from 10 years and 1 day of
prision mayor, as minimum, to 17 years, 4 months and 1 day of reclusion temporal, as
maximum, in each case.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROHIBITION OF CRUEL OR
UNUSUAL PUNISHMENT; NOT A CASE OF; DEATH PENALTY. — The death penalty is not
cruel, unjust or excessive. "The penalty complained of is neither cruel, unjust nor
excessive. In Ex-Parte Kemmler, 136 U. S. 436, the United States Supreme Court said
that 'punishments are cruel when they involve torture or a lingering death, but the
punishment of death is not cruel, within the meaning of that word as used in the
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 Constitution.' It implies there something inhuman and barbarous, something more than
the mere extinguishment of life."

DECISION

CONCEPCION, JR. , J : p

MANDATORY REVIEW of the death sentence imposed upon the accused

Filomeno Camano by the Court of First Instance of Camarines Sur, in Criminal Case
Nos. T-20 and T-21, for the killing of Godofredo Pascual and Mariano Buenaflor.
The inculpatory facts as stated by the trial court show that:
"On February 17, 1970, in the barrio of Nato, Municipality of Sagñay, Province of
Camarines Sur, between the hours of four and five o'clock in the afternoon, after
the accused had been drinking liquor, he stabbed twice the victim Godofredo
Pascua with a bolo, called in the vernacular Bicol "palas" which is a sharp bladed
and pointed instrument about two feet long including the black handle, tapering
to the end, about one and one-half inches in width, (Exhibit "C") while the latter
was walking alone along the barrio street almost infront of the store of one
Socorro Buates. The victim, Godofredo Pascua, sustained two mortal wounds for
which he died instantaneously, described by Dr. Constancio A. Tan, Municipal
Health Officer, of Sagñay, Camarines Sur in his Autopsy Report (Exhibit "A", pp. 5,
Record Crim. Case No. T-21) as follows:

"NATURE OF WOUNDS UPON AUTOPSY:

"1. WOUND STAB — three (3) inches long at left side, three (3)
inches below left axilla, a little bit posteriorly, cutting the skin,
subcutaneous tissues, muscles one (1) rib, pleura of left lung, pericardium,
penetrating the ventricles of the heart, Media stinum, the right lung and exit
to the right chest. One inch opening.
"2. WOUND INCISED, one inch long at the left arm.

"CAUSE OF DEATH — Wound No. 1 causing instant death due to

severe hemorrhage."
After hacking and stabbing to death Godofredo Pascua, the accused proceeded to
the seashore of the barrio, and on finding Mariano Buenaflor leaning at the gate
of the fence of his house, in a kneeling position, with both arms on top of the
fence, and his head stooping down hacked the latter with the same bolo, first on
the head, and after the victim fell and rolled to the ground, after said blow, he
continued hacking him, until he lay prostrate on the ground, face up, when the
accused gave him a final thrust of the bolo at the left side of the chest above the
nipple running and penetrating to the right side a little posteriorly and superiorly
with an exit at the back, of one (1) inch opening, (Exhibit B) causing instant death.
The victim, Mariano Buenaflor sustained eight wounds, which were specifically
described by Dr. Tan in his Autopsy Report (Exhibit "B" dated February 17, 1970,
as follows: llcd

"NATURE OF WOUNDS UPON AUTOPSY:

"1. WOUND STAB, Two (2) inches long at the left side of chest
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 above the nipple, running to the right side a little posteriorly and superiorly
with an exit at the back of one (1) inch opening. Penetrating the skin,
subcutaneous tissues, pericardium the suricles of the heart, the left lung
towards the right side of back.

"2. WOUND STAB at sternum one and one-half (1-1/2) inches

deep three-fourth (3/4) inch long penetrating the skin and the sternum.

"3. WOUND STAB left side of neck three-fourth (3/4) inch long
one and one-half (1-1/2) inches deep.
"4. WOUND HACKED, cutting left ear and bone four (4) inches
long.
"5. WOUND HACKED, left leg three (3) inches long cutting skin
and bone of anterior side.
"6. WOUND INCISED left palm two (2) inches long.

"7. WOUND STAB, one (1) inch long two (2) inches deep at the
back near spinal column.
"8. WOUND HACKED, two (2) inches long at dome of head
cutting skin and bone.

"CAUSE OF DEATH — Wound number one (1) causing instant death due to severe
hemorrhage from the heart." Out of the eight (8) wounds, two (2) are mortal
wounds, namely, wound Number one (1) and wound Number Three (3), (Exhibit
"B") (t.s.n., pp. 18-20, Session November 22, 1971). The two victims Godofredo
Pascua and Mariano Buenaflor, together with the accused are neighbors, residing
at the same street of Barrio Nato, Sagñay, Camarines Sur (t.s.n., pp. 31, Session
Nov. 22, 1971). The bloody incident was not preceded or precipitated by any
altercation between the victims and the accused (t.s.n. p. 60, Nov. 22, 1971).
Likewise, it is an undisputed fact that three years prior to this incident, the two
victims had a misunderstanding with the accused while fishing along Sagñay
River. During this occasion it appears that the accused requested Godofredo
Pascua to tow his fishing boat with the motor boat owned by Mariano Buenaflor
but the request was refused by both. This refusal greatly offended and embittered
the accused against the victims. From this time on the accused begrudged the
two, and entertained personal resentment against them. And although on several
occasions, the accused was seen at the same table with Godofredo Pascual
drinking liquor, the friendly attitude towards Pascua, seems to be merely artificial
than real, more so, with respect to Mariano Buenaflor whom be openly detested.
He consistently refused to associate since then with the two victims, especially,
Mariano Buenaflor. In fact, no less than ten attempts were made by Amado
Payago, a neighbor, inviting the accused for reconciliation with the victims but
were refused. Instead, defendant when intoxicated or drunk, used to challenge
Mariano Buenaflor to a fight, and announce his evil intention to kill them (t.s.n.,
pp. 50-53, Session November 22, 1971.) cdrep

Also proved beyond dispute, the fact that the bolo or "palas" belongs to the
accused. That after killing the two victims, he returned to his house, where he
subsequently surrendered to Policemen Adolfo Avila, Juan Chavez, and Erasmo
Valencia, upon demand by said peace officers for him to surrender. When brought
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 to the Police Headquarters of the town for investigation he revealed that the bolo
he used in the killing was hidden by him under the table of his house. Following
this tip, Patrolman Jose Baluyot was dispatched, and recovered the weapon at the
place indicated, which when presented to the Chief of Police was still stained with
human blood from the base of the handle to the point of the blade. And when
asked as to who was the owner of said bolo, the accused admitted it as his. He
also admitted the killing of Godofredo Pascua and Mariano Buenaflor. However,
when he was asked to sign a statement, he refused. 1

For the killing of Godofredo Pascua and Mariano Buena or, Filomeno Camano
was charged, under two (2) separate informations, with the crime of murder attended
by evident premeditation and treachery. By agreement of the parties, the two cases
were tried jointly.
The accused admitted killing Mariano Buena or, but claims that he did so in self-
defense. He denied killing Godofredo Pascua. He also denied holding a grudge against
Godofredo Pascua and Mariano Buena or and belittled the st ght he had with
Mariano Buena or. He said that while they were drinking, they had a heated discussion,
and because they were drunk, it resulted in a fist fight, which they had soon forgotten. 2
His version of the incident is that in the early morning of February 17, 1970, he
was shing in the open sea. He went ashore at about 7:00 o'clock in the morning and
was met by Mariano Buena or who, upon seeing that he had a big catch, demanded a
percentage for the shery commission. When he refused to give what was asked,
Buena or remarked that he was hard-headed. He went home, taking his things along
with him. After eating breakfast, he went to sleep and awoke at about 3:30 o'clock in
the afternoon. 3 He ate his dinner 4 and prepared to go out to sea again. While he was
standing in the yard of his house, Mariano Buena or, Godofredo Pascua, Gorio Carable,
Jesus Carable, Tomas Carable, Abelardo Bolaye, Amado Payago, and Loreto Payago,
who were drinking at the store of Socorro Buates, went to him and Godofredo Pascua,
without any provocation whatsoever, boxed him. He recounted what happened next: "I
defend myself but inspite of that I was hit on my upperarm. Then after that I was again
boxed by Mariano Buena or and I was hit on my lower jaw. (Witness pointing to the
bolo marked Exhibit C.) And I was able to grab that bolo from him."
"When I met Godofredo Pascua he was on the act of boloing me but I was able to
take hold of his hands and I was able to grab the bolo. After I have taken the bolo from
Godofredo Pascua, all I know is that he fell on the ground and the rest of the group
except Mariano Buena or run away after seeing that Godofredo Pascua fell already on
the ground. Mariano Buena or approached me having also a bolo then immediately
when we meet each other I boloed him and when he was wounded he run away and
when he was running away I run after him. After I have boloed Mariano Buena or he run
away so I run after him because I know that he has a gun and if he reach home he will
get that gun and he might shoot me." 5 Mariano Buenaflor was hit on the head.
The trial court, however, rejected the defense of the accused, saying:
"Coming to the evidence for the defense, the Court, much to its regret cannot give
credence to the testimony and story of the accused, and his lone witness,
Nemesio Camano, who is his first cousin. The claim of self-defense does not find
support in the evidence presented. The claim, that a group of eight (8) men
headed by Godofredo Pascua and Mariano Buenaflor ganged up on him by
boxing him one after another while others were throwing stones at him; that he
was attacked by Godofredo Pascua with a bolo which he succeeded in wresting
from him; that he did not know Godofredo Pascua was killed; that he killed said
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 Mariano Buenaflor after a bolo duel, are mere fictions of a desperate man without
evidentiary support. His testimony on these points, and that of his cousin
Nemesio Camano are simply incredible not only because they are inherently
improbable in themselves, but also because of their clear inconsistencies on
contradictions against each other. For, conceding in gratia argumenti that he was
really ganged up by eight (8) persons, some boxing him while others throwing
stones at him, and two of whom were armed with a bolo, and that he was all
alone fighting them, and yet he did not suffer any physical injury, is indeed
incredible and beyond belief. With eight (8) persons to contend with, two armed
with bolos, it is simply unbelievable that he should come out of the melee
unscathed. LibLex

"The Court has carefully examined and verified very carefully each and every
piece of evidence presented by the defense and has relaxed all technical rules of
evidence in favor of the accused in search for evidentiary support of his claim of
self-defense in vain. Conscious of the enormity of the offense and the bitterness
attached to an adverse decision, the Court has earnestly searched in vain for facts
upon which to lay the basis at least of a finding of reasonable doubt in favor of
the accused at least just to avoid the ugly and unpleasant task of signing an
adverse court decision. But, the falsity of their concocted story is so apparent and
self-evident to need further elucidation. This is demonstrated by the record. They
simply cannot stand, as basis of belief. Moreover, the Court feels very much
intrigued by the fact that notwithstanding that many people witnessed the
incidents, having occurred in broad daylight, and that the accused had more
sufficient time to look for witnesses among his friends, relatives, and neighbors in
the barrio, during the long period that this case has been pending trial since
February 17, 1970, that he could not get any witness to testify in his favor, other
than his lone witness, Nemesio Camano, whose testimony, coming as it is from a
very close relative is naturally very vulnerable to grave doubt and suspicion for
coming from a biased source. Could this mean lack of public sympathy because
the horrible act was in truth committed by the accused? Is this a sign of public
condemnation? Be it as it may, this unpleasant circumstance has no bearing or
influence in the painful decision of this case. What impelled and compelled this
Court in making this painful decision, much to his dislike, are the bare and
incontrovertible facts of the case born out by the evidence presented indicating
beyond per adventure of doubt the stark reality which shows that there exist that
moral certainty that convinces and satisfies the reason and conscience of those
who are to act upon it. (People v. Lavarios, L-24339, June 29, 1968, 22 SCRA
1321) For the bitter conclusions herein reached, is based on the compelling and
irresistible facts born out by the evidence of record found after sleepless night of
study that the accused is guilty beyond reasonable doubt of the crime charged
committed with the aggravating circumstances of evident premeditation,
treachery, abuse of superior strength, and intoxication with no mitigating
circumstance. The accused and his only witness, Nemesio Camano changed their
declarations not only once, twice, or thrice, but many times, placing the Court in
quandary and confused what theory or testimony is to be believed and considered
among the mess of contradictory, inconsistent, and diametrically opposed
statements. Considering the manner and tenor they were given, — the accused
and his only witness changing stand in every turn, leaves no room for doubt than
that said testimonies are merely concocted and fabricated as a desperate attempt
to salvage a hopeless case." 6

In this appeal, the fact of death of Godofredo Pascua and Mariano Buena or and
the cause of their deaths are not disputed. Counsel de o cio merely claims that the
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 accused is guilty of homicide only in each case, and not murder, as charged; and prays
for the modi cation of the judgment and the consequent reduction of the penalty
imposed upon the accused Filomeno Camano. Cdpr

(1) Counsel contends that there is no evident premeditation since the acts of
the accused, as testified to by the prosecution witnesses, are all indicative of a "spur-of-
the-moment" decision and action.
The contention is well taken. There is evident premeditation when the killing had
been carefully planned by the offender, when he prepared beforehand the means which
he deemed suitable for carrying it into execution, and when he had su cient time
dispassionately to consider and accept the consequences, and when there has been a
concerted plan. 7 It has also been held that evident premeditation requires proof of the
following: (1) the time when the offender determined to commit the crime; (2) an act
manifestly indicating that the culprit had clung to his determination; and (3) a su cient
lapse of time between the determination and the execution of the crime to allow him to
re ect upon the consequences of his act and to allow his conscience to overcome the
resolution of his will. 8 In the instant case, it cannot be stated that the killing of Pascua
and Buena or was a preconceived plan. There is no proof as to how and when the plan
to kill Pascua and Buena or was hatched or what time had elapsed before the plan was
carried out. The trial court merely concluded that the killing of Pascua and Buena or
was premeditated because "the accused has been nursing the evil design to kill both
the victims since three years prior to the occurrence of the incident on February 18,
1970, when both of them refused the request of the accused to have his boat towed by
the motor boat belonging to Mariano Buena or while shing along Sañgay River," and
"from that time on, to the fatal killings, said accused refused consistently to join his
neighbors in their drinking spree where both the victims especially Mariano Buena or
were present;" "in fact, no less than ten attempts made by witness Amado Payago
inviting the accused to be reconciled with the victims were rejected;" and that "on the
contrary, it has been established that whenever the accused was drunk, he announces
his intention to kill the victims, and as a matter of fact he challenged several times
Mariano Buenaflor to a fight."
The incident referred to, however. does not establish the time when the appellant
decided to commit the crime. If ever, the aforementioned incident merely established
the motive for the killing of the two victims. 9
The fact that the accused had challenged Mariano Buena or to a ght whenever
he was drunk and announces his intention to kill the latter does not reveal a persistence
of a criminal design since there is no showing that in between the utterances of the
threats and the consummation of the crime, the appellant made plans or sought the
deceased to accomplish the killing. prcd

As there is no direct evidence of the planning or preparation in the killing of

Pascua and Buena or and of the marked persistence to accomplish that plan, the trial
court's conclusion cannot be sustained.
(2) Counsel for the accused also claims that treachery is not present in the
commission of the crime.
The contention is without merit. Amado Payago categorically declared that
Filomeno Camano attacked Godofredo Pascua from behind, a method which has
ensured the accomplishment of the criminal act without any risk to the perpetrator
arising from the defense that his victim may put up. His testimony reads, as follows:
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 "Q At that time and date while you were in front of your house did you
notice whether there is anything unusual incident that happened?
A Yes, sir.
Q Can you relate before this Honorable Court?

A Yes, sir.
Q Please relate it?
A I saw Filomeno Camano run towards his house and took a bolo and
run after Godofredo Pascua and immediately stabbed him.
Q How far more or less were you when Godofredo Pascua was stabbed
by Filomeno Camano?
A More or less 12 to 15 meters.
Q What was Godofredo Pascua doing when he was stabbed by
Filomeno Camano?
A He was walking to his house.
Q In relation to Godofredo Pascua where was Filomeno Camano at the
time that Filomeno Camano stabbed Godofredo Pascua?
A From behind sir.
Q After Godofredo Pascua was stabbed by Filomeno Camano what
happened to Godofredo Pascua?
A He fell down and keep on turning.
Q What about Filomeno Camano, what did he do after Godofredo
Pascua fell down?
A He run towards the seashore looking after Mariano Buenaflor." 1 0

His testimony is corroborated by the nature and location of the wounds

sustained by the deceased Godofredo Pascua. The autopsy report, 1 1 showed that the
point of entry of the stab wound in icted upon Pascua was three (3) inches long and
three (3) inches below the left armpit, a little bit posteriorly or toward the hinder end of
the body; and the point of exit was the right chest, one (1) inch lateral to the right nipple
with a one (1) inch opening. If the deceased was stabbed while he was facing his
assailant, as claimed by counsel for the accused, the entrance wound would have been
in the front part of the body, and its exit wound, if any, would be at the back. The trial
court, therefore, did not commit an error in nding that the deceased Godofredo
Pascua was assaulted from behind. LLjur

With respect to Mariano Buena or, the evidence shows that he was attacked
while in a kneeling position, with his arms on top of the gate of the fence surrounding
his hut and his head was "stooping down." 1 2 He was hacked on the head, causing him
to fall to the ground, and then successively hacked and stabbed without respite, as he
lay on the ground, until he died. The attack was also sudden, unexpected, and lethal,
such as to disable and incapacitate the victim from putting up any defense.
(3) Counsel de o cio further claims that the aggravating circumstance of
abuse of superior strength, which the lower court appreciated in xing the penalty, is
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 absorbed in treachery.
This contention is likewise correct. The rule is already settled that abuse of
superiority is absorbed in treachery. 1 3
(4) Counsel next contends that the alternative circumstance of intoxication
was erroneously appreciated as an aggravating circumstance. Counsel argues thusly:
"As to the alternative circumstance of intoxication, it is respectfully submitted that
there was no proof that the accused was intoxicated at the time of the killing
other than the bare testimony of Payago that from his house he allegedly saw the
accused drinking in his house which is about 30 meters away. The prosecution
did not present any police report or doctor's certification that accused was found
to be intoxicated at the time of the killing. Moreover, it was not shown by
competent evidence that accused purposely became drunk to facilitate the
commission of the offense.
"If at all, intoxication should be properly appreciated as a mitigating circumstance
because it affected accused's mental facilities such that it diminished his
capacity to know the injustice of his acts and to comprehend fully the
consequences of his acts." 1 4

There is merit in the contention. Drunkenness or intoxication is mitigating if

accidental, not habitual nor intentional, that is, not subsequent to the plan to commit the
crime. It is aggravating if habitual or intentional. 1 5 To be mitigating, it must be
indubitably proved. 1 6 A habitual drunkard is one given to intoxication by excessive use
of intoxicating drinks. The habit should be actual and con rmed. It is unnecessary that
it be a matter of daily occurrence. It lessens individual resistance to evil thought and
undermines will-power making its victim a potential evildoer. 1 7
The records of these cases do not show that the appellant was given to
excessive use of intoxicating drinks although he used to get drunk every now and then.
The testimony of Amado Payago to this effect, reads as follows:
"Q But after that incident Godofredo Pascua and Filomeno Camano are
already in good terms because they even go on drinking spree, is it
not?

A Yes, sir, that is true but Filomeno Camano has an evil plan against
Godofredo Pascua.
Q And how did you come to know about this plan?

A He talk(s) (about) that very openly specially when he is drunk.

Q During the three years that the incident where Camano's boat was not
towed, could you remember how many times more or less did yon
hear him speak about his plan before the stabbing incident?

A Whenever he is drunk.
Q Can you not remember more or less how many times have you heard
him?
A I cannot remember, sir.
Q About five times?

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 FISCAL CLEDERA:
Already answered.
A Whenever he is drunk.
ATTY. TRIA:

Q How often does he drink (sic), if you know?

A I cannot estimate, sir.
Q What about Mariano Buenaflor, could you also state that there had
been an altercation between him and Filomeno Camano prior to the
incident, is it not?

A Yes, sir.
Q What was this altercation about?
A It started when the request of Filomeno Camano to tow his boat was
refused by Godofredo Pascua because that boat used by Godofredo
Pascua is owned by Mariano Buenaflor.
Q How did you also know that Camano resented against (sic) this
Buenaflor?
A Everytime he is drunk he keep(s) on challenging Mariano Buenaflor."
xxx xxx xxx
Q Have you ever seen the accused Filomeno Camano drink liquor
immediately prior to the incident?
A Yes, sir.
Q Where?

A In his house.
Q When you saw him where were you?
A I was also in my house because I can just see his house from our
window.
Q About how far is your house from the house of Filomeno Camano so
that you can see from your house?
A More or less 30 meters.
Q With whom was Filomeno Camano drinking?
A Bienvenido Pascua, Leopoldo Balaye and this (sic) persons (who) are
living far from our house.
Q According to your personal knowledge do you know whether or not the
accused was drunk when this incident happened?
A Yes, sir.
Q But the truth is that, you still affirm that you don't know of any
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 incident immediately prior that has precipitated this stabbing incident
between the accused and the victim.

A None, sir.
ATTY. TRIA:
Q How about you, did you now drink that time? No, sir." 1 8

The intoxication of the appellant not being habitual, and considering that the said
appellant was in a state of intoxication at the time of the commission of the felony, the
alternative circumstance of intoxication should be considered as a mitigating
circumstance.
5. Finally, counsel claims that death is a cruel and unusual penalty and not
proper in the cases at bar, citing Art. IV, Sec. 21 of the Constitution which provides that:
"Excessive fines shall not be imposed, nor cruel or unusual punishment inflicted."
The contention is without merit. The death penalty is not cruel, unjust or
excessive. In the case of Harden vs. Director of Prisons, 1 9 the Court said:
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-Parte
Kemmler, 136 U.S. 436, the United States Supreme Court said that 'punishments
are cruel when they involve torture or a lingering death, but the punishment of
death is not cruel, within the meaning of that word as used in the Constitution.' It
implies there something inhuman and barbarous, something more than the mere
extinguishment of life."

The trial court, therefore, did not err in nding the accused Filomeno Camano
guilty of Murder in each of the two cases. The offense being attended by the mitigating
circumstance of intoxication, without any aggravating circumstance to offset it, the
imposable penalty is the minimum of that provided by law or 17 years, 4 months and 1
day to 20 years of reclusion temporal. Applying the Indeterminate Sentence Law, the
appellant should be, as he is hereby, sentenced to suffer an indeterminate penalty
ranging from 10 years and 1 day of prision mayor, as minimum, to 17 years, 4 months
and 1 day of reclusion temporal, as maximum, in each case. cdrep

WHEREFORE, with the modification of the penalty imposed upon the appellant, as
above indicated, the judgment appealed from should be, as it is hereby, AFFIRMED in all
other respects. With costs against the said appellant.
SO ORDERED.
Fernando, C.J., Teehankee, Barredo, Guerrero, Abad Santos, De Castro, Melencio-
Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Makasiar, J., Besides intoxication, voluntary surrender shall also mitigate the guilt
of appellant. who had the choice to surrender or not when demanded by the policemen,
who did not place him under arrest nor had an arrest warrant.
Aquino, J., I dissent. Premeditation is aggravating. The accused should be
sentenced to two reclusion perpetuas.

Footnotes

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 1. Decision, pp. 2-6.

2. t.s.n., Nastor, p. 102.

3. Id., pp. 97-98.
4. Id., p. 107.
5. Id., pp. 100-101.
6. Decision, pp. 13-16.

7. U.S. vs. Cornejo, 28 Phil. 457.

8. People vs. Verges, G.R. Nos. L-36882-84, July 24, 1981, 105 SCRA 744.

9. People vs. Alde, 158 Phil. 1285.

10. t.s.n., Nastor, pp. 45-46.

11. Exhibit "A".

12. t.s.n., Nastor, p. 62.

13. People vs. Guarnes, 110 Phil. 379; People vs. Belen, 118 Phil. 880; People vs. Tiongson,
120 Phil. 1197.

14. Appellant's Brief, p. 7.

15. Aquino, Revised Penal Code, p. 407.

16. Id., at p. 408.

17. Id., at pp. 408-409.

18. pp. 51-53 and 60-61, t.s.n., taken by E. Nastor.

19. 81 Phil. 741, 747.

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