VOL.

29, SEPTEMBER 30, 1969 483

People vs. Gensola

No. L-24491. September 30, 1969.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. RUFINO GENSOLA, FIDELINA TAN and
FELICISIMO TAN, defendants-appellants

Criminal law; Justifying circumstances; Where the facts

belied legitimate defense.—The claim of legitimate defense was
denied on the following grounds: (1) the serious wounds and
fractures of the skull on the back of the head and on the left
forehead of the victim, which could have been caused only by
strong blows with pieces of iron, (2) the testimony of the doctor
who performed autopsy testified that he did not see any pile of
stones near the dead body of the victim, which belies the claim of
the accused that the victim fell and his forehead struck against a
pile of stones.
Same; Criminal liability; Assumption of criminal liability for
another.—The penal law does not allow anyone to assume the
criminal liability of another.
Remedial law; Evidence; Witnesses; Credibility; Where
contradictions involve minor matters.—The testimonies of the
principal prosecution witnesses were believed because: (1) The
contradictions pointed out against them involve only the relative
locations of .the three carinderias near the scene of the crime, not
the acts of commission of the three defendants at a distance of
about seven meters from where the two state witnesses were then
standing; (2) The uncertainties pointed out

484

484 SUPREME COURT REPORTS ANNOTATED

People vs. Gensola,

refer to the description of .the pieces of iron used by Felicisimo

Tan and Fidelina Tan, that is, as to the size, length and other
details. Considering that the place was not well lighted and that
there was little time to observe, accurate description of the
weapons used could not be expected three years later when the
witnesses testified.
Same; Same; Same; Same; Where contention that witnesses
testified out of spite was not believed.—The contention that
Enrique Gelario and Enrique Gela testified against Felicisimo
Tan and Fidelina Tan out of spite because the latter had refused
to transport the former to their respective barrios, is not well'
taken. It is not natural for a person to testify under oath against
his neighbor on a matter of life and. death just because of a
trifling incident causing slight inconvenience,
Criminal law; Conspiracy; Where facts belied presence of
conspiracy; Case at bar.—Conspiracy was found to be absent in
the case at bar for the following reasons: (1) Fidelina Tan's
intention revealed by the words she muttered to herself, "He does
not appear because I will kill him," was not shared by Feliciano
Tan, who kept silent. Silence is not a circumstance indicating
participation in the same criminal design. With respect to Rufino
Gensola, he was not even in the truck at the time. (2) When
Miguel Gayanilo was crossing Gerona St, it was only Rufino
Gensola who followed closely behind, Fidelina Tan and Felicisimo
Tan were in the middle of the street. The words shouted by
Fidelina Tan, "Rufino, strike him," were meant as a command and
did not show previous concert of criminal design. (3) The blows
given with pieces of iron on the back of the head and on the left
forehead by Felicisimo and Fidelina after Rufino had struck with
a piece of stone the left face of Miguel, do not in and by
themselves show previous concert of criminal design. Particularly
when it is considered that Rufino and Fidelina remained for a few
seconds observing the prostrate body of Miguel until Fidelina
muttered, "He is already dead." In the absence of conspiracy, the
liability of the three appellants is individual, that is, each
appellant is liable only for his own act.
Same; Principals; Principal by inducement; "Inducement"
defined; Command must be the moving cause of the offense.—The
second class of principals, according to Article 17 of the Revised
Penal Code, comprises, "those who directly force or induce others
to commit it (the act)." Those who directly induce others to
commit the act are called "principals by inducement" or
"principals by induction," from the Spanish "autores por
inducción." The word "inducement" comprises, in the opinion of
Viada and the Supreme Court of Spain, reward, promise

485

VOL. 29, SEPTEMBER 30, 1969 485

People vs. Gensola

of reward, command, and pacto. With respect to command, it must
be the moving cause of the offense. In the case at bar, the
command shouted by Fidelina, "Rufino, strike him," was not the
moving cause of the act of Rufino Gensola. The evidence shows
that Rufino would have committed the act at his own volition,
even without said words of command.
Same; Criminal liability; Where injury was inflicted upon
dying person; Case at bar.—Assuming that the trauma inflicted
by Felicisimo was by itself sufficient to produce death due to
traumatic shock, should Fidelina be also held liable considering
that death could have resulted anyway f rom the act of Felicisimo
and that a person cannot be killed twice? The obvious answer is
that although a dead person cannot be killed again, a dying
person can still be killed. Miguel was not dead but dying when
Fidelina struck his left forehead with a piece of iron. Hence, the
trauma inflicted by her hastened the death of Miguel from
traumatic shock made doubly severe. She must, therefore, be also
held criminally liable for the death of the victim.
Same; Aggravating circumstances; Alevosia (treachery); Where
killing was attended by treachery.—The crime committed is
murder if the killing is attended with the qualifying circumstance
of alevosia.
Same; Same; Same; Same; Case at bar.—There was alevosia
because after Rufino suddenly struck Miguel Gayanilo with a
stone, Miguel, defenseless, was struck by Felicisimo Tan with a
piece of iron on the back of the head and by Fidelina Tan with a
piece of iron on the left forehead.

APPEAL from a decision of the Court of First Instance of

Iloilo. Imperial-Reyes, J.

The facts are stated in the opinion of the Court.

          Solicitor General Antonio P. Barredo, Assistant
Solicitor General Isidro C. Borromeo and Solicitor Pedro A.
Ramirez for plaintiff-appellee.
          Dominador Garin for defendant-appellant Rufino
Gensola.
     Juan C. Orendain for other defendants-appellants.

CAPISTRANO, J.:

Appeal from the decision of the Court of First Instance of

Iloilo finding the defendants, Rufino Gensola, Fidelina
486

486 SUPREME COURT REPORTS ANNOTATED

People vs. Gensola,
Tan and Felicisimo Tan, guilty as principals of the crime of
murder and sentencing each of them to reclusión perpetua
and ordering said defendants to pay in solidum the sum of
P6,000 as indemnity to the heirs of the deceased Miguel
Gayanilo.
Rufino Gensola was the driver, while Fidelina Tan and
Felicisimo Tan were the conductors, of a passenger truck,
Gelveson No. 17 (belonging to Jose Tan, father of Fidelina
and Felicisimo), with station at Guimbal, Iloilo. They
suspected Miguel Gayanilo of. having punctured the tires of
the truck while it was parked in front of his carinderia on
Gerona St., Guimbal, on November 18, 1958. In the
afternoon of the following day, November 19, on the return
trip of the truck, then driven by a temporary driver,
Restituto Gersaneva, from Iloilo City, Enrique Gelario and
Enrique Gela were among the passengers of the truck,
Before the truck entered the poblacion of Guimbal, it
parked on Gonzales St. to discharge a passenger and his
baggage. Enrique Gelario and Enrique Gela, overheard
Fidelina Tan mutter to herself, obviously referring to
someone she did not name: "He does.not appear because I
will kill him." ("No aparece porque le voy amatar.") The
truck then continued on its way and parked in front of
Teodora Gellicanao's carinderia on Gerona St. in the
poblacion. All the passengers got off the truck. Enrique
Gelario and Enrique Gela crossed the street towards the
carinderia of Pedro Genciana to await 'another passenger
truck for their respective barrios. The Gelveson No. 17 then
left in the direction of the nearby carinderia of Violeta
Garin, returned a short time later, and parked in front of
the bodega of its owner, Jose Tan, The time was about 6:30
p.m. Miguel Gayanilo was crossing the street from the
public market in the direction of his carinderia with Rufino
Gensola, holding in his right hand a stone as big as a man's
fist, following closely behind. At this time, Felicisimo and
Fidelina Tan were standing in the middle of the street.
After Miguel Gayanilo had crossed the middle of the street
near the two, Fidelina Tan shouted, "Rufino, strike him."
Upon hearing the shout Miguel looked back and Rufino
suddenly struck him on the left face with the stone. Feli-

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People vs. Gensola

cisimo then struck Miguel with a piece of iron on the back

of the head causing serious wounds and fracture of the
skull. Not content with the two blows already given,
Fidelina struck Miguel with another piece of iron on the
left forehead causing serious wounds and fracture of the
skull. Miguel fell to the ground near the canal along the
side of the street. Rufino Gensola immediately left for his
house situated on Gonzales St. Felicisimo and Fidelina
observed the prostrate body for a few seconds until Fidelina
muttered: "He is already dead." ("Ya esta muerto.") The two
then left the scene of the crime.
The autopsy report shows that Miguel Gayanilo suffered
lacerated wounds on the left face, serious wounds and
fracture of the skull on the back of the head, and serious
wounds and fracture of the skull on the left forehead.
Death was caused by traumatic shock.
The death of Miguel Gayanilo caused by traumatic shock
which resulted from the strong blows inflicting trauma on
the back of the head and on the left forehead, was admitted
particularly by the accused Rufino Gensola, who assumed
sole responsibility for the same.
The lower court found the three defendants guilty as
principals of the crime of murder and rendered judgment
as follows:

"Por tanto, el Juzgado declara a los acusados Rufino Gensola,

Fidelina Tan y Felicisimo Tan culpables, fuera de toda duda
racional, del delito de asesinato, tal como se alega en la querella y,
no habiendo circumstancias que pueden modificar su
responsibilidad criminal, condena a cada uno de los tres a sufrir la
pena de reclusión perpetua, a indemnizar, mancomunada y
solidariamente, a los herederos de Miguel Gayanilo en la suma de
P6,000.00 sin sufrir prisión subsidiaria correspondiente, en caso
de insolvencia, dada la naturaleza de la pena principal, a las
accesorias de la ley y a pagar ademas, cada uno una tercera (1/3)
parte de las costas del juicio."

Defendant appealsed.
Appellants contend that Rufino Gensola alone inflicted
with stone blows the serious wounds and fractures of the
skull which caused the death of Miguel Gayanilo, but that

488

488 SUPREME COURT REPORTS ANNOTATED

People vs. Gensola

he did so in legitimate defense of Fidelina Tan and of

himself. The contention is unmeritorious in view of the
following considerations: (1) The testimony of Rufino
Gensola and Fidelina Tan that Miguel Gayanilo, then
drunk, angrily demanded to know from Fidelina why she
suspected him of f having punctured the tires of the truck
and was about to strike Fidelina with a stone, and that in
legitimate defense of Fidelina and of himself Rufino picked
up two stones, struck Miguel on the left face with one
'stone and threw the other stone at him when he started to
run away, hitting him on the back of the head and causing
him to fall and strike his forehead against a pile of stones,
is belied by, first, the serious wounds and fractures of the
skull on the back of the head and on the left forehead of the
victim, which could have been caused only by strong blows
with pieces of iron; and, second, by the testimony of Dr.
Juan Encanto, who performed the.autopsy, that he did not
see any pile of stones near the dead body of Miguel
Gayanilo when he arrived at the place in response to a call
(2) The admission of Rufino Gensola that he alone was
responsible for the serious wounds and fractures of the
skull inflicted upon Miguel Gayanilo in legitimate defense
of Fidelina Tan and of himself, has no probative value
because it constitutes, in the face of contrary credible
evidence for the prosecution, an assumption by Rufino
Gensola of the criminal liability of Felicisimo Tan and
Fidelina Tan. The penal law does not allow anyone to
assume the criminal liability of another.
Appellants contend that the testimonies of the principal
prosecution witnesses, Enrique Gelario and Eurique Gela,
are unworthy of credence because of contradictions and
uncertainties, showing that they were not present and did
not witness the commission of the crime. The contention is
untenable for the following reasons. (1) The contradictions
pointed out involve only the relative locations of the three
carinderias near the scene of the crime, not the acts of
commission of the three defendants at a distance of about
seven meters from where the two state witnesses were then
standing, (2) The uncertainties pointed out
489

VOL. 29, SEPTEMBER 30, 1969 489

People vs. Gensola

refer to the description of the pieces of iron used by

Felicisimo Tan and Fidelina Tan, that is, as to the size,
length and other details. Considering that the place was
not well lighted and that there was little time to observe,
accurate description of the weapons used could not be
expected three years later when the witnesses testified. (3)
The contention that Enrique Gelario and Enrique Gela
testified against Felicisimo Tan and Fidelina Tan out of
spite because the latter had ref used to transport the f
ormer to their respective barrios, is not well-taken. It is not
natural for a person to testify under oath against his
neighbor on a matter of life and death just because of a
trifling incident causing slight inconvenience. (4) We find
the testimonies of the four defense witnesses, Fidelina Tan,
Felicisimo Tan, Elias Gensola and Salvador Gayatao, that
Enrique Gelario and Enrique Gela were not present at the
scene of the crime because they had already left Gerona St
walking to another street to await transportation to their
respective barrios, unworthy of credence.
Let us now consider the criminal liability of the three
appellants. The lower court found them guilty as principals
of the crime of murder on the assumption that there was
conspiracy among them. We do not agree, for the following
reasons: (1) Fidelina Tan's intention revealed by the words
she muttered to herself, "He does not appear because I will
kill him," was not shared by Felicisimo Tan, who kept
silent. Silence is not a circumstance indicating
participation in the same criminal design. With respect to
Rufino Gensola, he was not even in the truck at the time.
(2) When Miguel Gayanilo was crossing Gerona St., it was
only Rufino Gensola who followed closely behind. Fidelina
Tan and Felicisimo Tan were in the middle of the street.
The words shouted by Fidelina Tan. "Rufino, strike him,"
were meant as a command and did not show previous
concert of criminal design, (3) The blows given with. pieces
of iron on the back of the head and on the left forehead by
Felicisimo and Fidelina after Rufino had struck with a
piece of stone the left face of Miguel, do not in and by
themselves show previous concert of criminal
490

490 SUPREME COURT REPORTS ANNOTATED

People vs, Gensola

design. Particularly when it is considered that Rufino

immediately left thereafter while Felicisimo and Fidelina
remained for a few seconds observing the prostrate body of
Miguel until Fidelina muttered, "He is already dead."
In the absence of conspiracy, the liability of the three
appellants is individual, that is, each appellant is liable
only for his own act.
Appellant Rufino Gensola is liable only for the lacerated
wounds inflicted by him on the left face of Miguel Gayanilo.
Such lacerated wounds caused disfigurement ("deformity")
of the face within the meaning of Article 268 (3) of the
Revised Penal Code punishable by prisión correccional in
its minimum and medium periods in relation to the
Indeterminate Sentence Law. The offense having been
committed with treachery, the penalty should be imposed
in its maximum period.
Is appellant Fidelina Tan also liable for the offense
considering that she gave the command "Rufino, strike
him"? The second class of principals, according to Article 17
of the Revised Penal Code, comprises "those who directly
force or induce others to commit it (the act)." Those who
directly induce others to commit the act are called
"principals by Inducement" or "principals by induction,"
from the Spanish "autores por inducción." The word
"inducement" comprises, in the opinion of Viada and the
Supreme Court of Spain, reward, promise of reward,
command, and pacto. With respect to command, it must be
the moving cause of the offense. In the case at bar, the
command shouted by Fidelina, "Rufino, strike him," was
not the moving cause of the act of Rufino Gensola. The
evidence' shows that Rufino would have' committed the act
of his own volition. even without said words of command.
Are the appellants Felicisimo Tan and Fidelina Tan both
liable for the 'death of Miguel Gayanilo? Our opinion is in
the affirmative. The trauma inflicted by Felicisimo and the
trauma inflicted by Fidelina, combined, produced death due
to traumatic shock. When Fidelina struck with
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People vs. Gensola

a piece of iron the left forehead of Miguel, he was not yet

dead. It was only after the trauma inflicted by Fidelina
that the dying Miguel fell to the ground and died seconds
later. This is clear from the evidence that after Miguel had
fallen to the ground, Felicisimo and Fidelina observed his
prostrate body for a few seconds until Fidelina muttered;
"He is already dead."
Assuming that the trauma inflicted by Felicisimo was by
itself sufficient to produce death due to traumatic shock,
should Fidelina be also held liable considering that death
could have resulted anyway from the act of Felicisimo and
that a person cannot be killed twice? The obvious answer is
that although a dead person cannot be killed again, a dying
person can still be killed. Miguel was not dead but dying
when Fidelina struck his left forehead with a piece of iron.
Hence, the trauma inflicted by her hastened the death of
Miguel from traumatic shock made doubly severe. She
must, therefore, be also held criminally liable for the death
of the victim.
Was the killing murder? Our opinion is in the
affirmative because it was attended with the qualifying
circumstance of alevosia. There was alevosia because after
Rufino suddenly struck Miguel Gayanilo with a stone,
Miguel, defenseless. was struck by Felicisimo Tan with a
piece of iron on the back of the head and by Fidelina Tan
with a piece of iron on the left forehead.
PREMISES CONSIDERED, that part of the appealed
judgment sentencing each of the appellants Felicisimo Tan
and Fidelina Tan to reclusión perpetua is affirmed. Said
appellants are also ordered to pay in solidum the sum of
 P12,000 as indemnity to the heirs of the deceased, Miguel
Gayanilo. That part of the judgment against appellant
Rufino Gensola is modified by sentencing said appellant to
an indeterminate penalty of from 3 months. of arresto
mayor as minimum to 3 years of prisión correccional as
maximum.
Costs against the appellants.

492

492 SUPREME COURT REPORTS ANNOTATED

Comia vs. Nicolas

          Concepcion, C.J., Makalintal, Zaldivar, Castro,

Fernando and Teehankee, JJ., concur.
     Barredo, J., did not take part,
     Reyes, J.B.L., Dizon and Sanchez, JJ., are on leave.

Judgment against Gensola modified and affirmed as

regards to other defendants.

Notes.—(a) Credibility not affected by contradictions in

minor details.—See People vs. Viñas, 25 SCRA 682; People
vs. Guardo, 24 SCRA 851; People vs. Pelago, 24 SCRA 1027;
People vs. Albapara, 22 SCRA 1043 ("Differences in details
serve to enhance rather than destroy credibility"); People
vs. Belchez, 22 SCRA 1321.
(b) Conspiracy.—See the annotation in 26 SCRA 761766.
(c) Principal by inducement.—A person may be regarded
as a principal by inducement if his acts or words, done or
uttered before the commission of the offense for that
purpose, were the- direct and determining cause thereof
(People vs. Castillo, 17 SCRA 721).
(d) Treachery.—See the annotation in 27 SCRA 30-40.

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