On April 11, 1983, the then Acting Provincial Fiscal of Cagayan, Alejandro Pulido, filed an Information accusing Romeo, Alex, Fortunato, Dante, Delfin, and Cirilo, all surnamed Agapinay, of murder, as a consequence of the fatal stabbing of Virgilio Paino on April 13, 1981.  The same reads as follows:

That on or about April 13, 1981, in the municipality of Gonzaga, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Romeo Agapinay, Alex Agapinay, Fortunato Agapinay, Dante Agapinay, Delfin Agapinay and Cirilo Agapinay, armed with bolos (lilit) and stones, conspiring together and helping one another, with intent to kill, with evident premeditation, with treachery and with abuse of superior strength, did then and there wilfully, unlawfully and feloniously assault, attack, chase, stone and stab, one, Virgilio Paino, inflicting upon him wounds on his body which caused his death.

Contrary to law.^[1]

On arraignment, all six accused pleaded "not guilty."^[2]

The evidence of the prosecution shows that the Agapinays are brothers, except Romeo, who is Delfin's son,^[3] and that along with Virgilio Paino, Amor Flores, and Eufemio Paino, they were hirelings of Julia Rapada, an operator of fishing boats.  On April 12, 1981, they set out, along with other complement, on a fishing venture in the sea of Batangan, in Gonzaga, Cagayan.  They returned to shore the following day, April 13, 1981, whereupon, they unloaded their catch and spread out their fishnet on the sand to dry.  Thereafter, except for Romeo Agapinay, they mended the net, with thread and small knives, under a portable shed.^[4] Meanwhile, Virgilio Paino took the shed and placed it where he and Alex and Cirilo Agapinay were.  Moments later, Romeo Agapinay appeared and confronted Virgilio, and berated him for taking the shed without permission.  Virgilio said that they were going to use it.  Shortly, the two exchanged words and tempers apparently flared.  Romeo lunged at Virgilio with a hunting knife, six inches long, that hit his right arm.  Virgilio ran away but Delfin and Fortunato Agapinay met him and held on to his arms.  Romeo approached him and dealt him a second stab at the right side of his back.  Virgilio, however, managed to extricate himself again and ran away.  While he was running, Delfin, Alex, Fortunato, Dante, and Cirilo took turns in stoning him.  All of a sudden Amor Flores appeared and plunged a knife at the back of Virgilio.  It was then that Virgilio collapsed.  Meanwhile Julia cried, "Kill him and we will bury him."^[5]

The prosecution also established that Cirilo and Delfin had attacked Eufemio Paino, a brother of Virgilio, with their own knives but the latter defended himself with a paddle.  The former ran away.  The rest of the Agapinays likewise fled.^[6]

Antonio and Eufemio Paino, brothers of Virgilio, and Artemio Siababa brought the wounded Virgilio to his (Virgilio's) house.  The latter supposedly executed an ante-mortem statement there wherein he implicated the Agapinays as well as Amor Flores, as responsible for the incident.  Thereafter, he was brought to the Don Alfonso Enrile Hospital at Gonzaga.  He was dead, however, on arrival.^[8]

Police Corporal Rufino Sunico, when informed of the stabbing, went to the scene to investigate but Virgilio had already been brought to his home.  Later, Patrolman Sunico took a supposed confession of Romeo Agapinay who surrendered to him at 9:00 o'clock in the morning of April 13, 1981.  Meanwhile, Cirilo and Delfin Agapinay proceeded to the police headquarters to complain that Eufemio Paino also assaulted them.  They refused to make any further statement.^[9]

The cadaver of Virgilio was later autopsied.  Dr. Silverio Salvanera's post-mortem examination showed that the late Virgilio Agapinay suffered the following injuries:

x x x (a) 2 cm. long, penetrating to the liver, directed upwards and medially, located at the level of the 7th intercostal space along the mid-clavicular line; (b) 2.5 cm. long penetrating to the lungs, directed upwards and medially, located at the level of the 7th intercostal space along posterior axillary line; and (c) Thru and thru wound at the medial aspect between the distal and medial 3rd of the right arm, 2.5 cm. point of entrance, 1.5 cm. point of exit, 6.2 cm. apart.^[10]

After the prosecution rested, the accused presented their evidence.

Cirilo Agapinay stated that the incident started when Virgilio Paino grabbed the atal (a piece of wood used to roll boats ashore) without his, Cirilo's, permission.  Cirilo resented this but Virgilio allegedly clubbed him and that he lost consciousness.  Delfin and Fortunato Agapinay brought him to the hospital.^[11]

Delfin Agapinay, on the other hand, testified that he was with Cirilo and a certain Jesus Alveza on that fateful morning at the seashore of Batangan mending fishnet.  There, Virgilio confronted them and asked why Cirilo took the atal without his permission.  Cirilo declared that he had Virgilio's companions' permission.  It was then that Virgilio clubbed Cirilo until the latter passed out.  He claimed that Romeo, Dante, Alex, and Fortunato Agapinay were not around when the incident happened.^[12] He testified, finally, that Virgilio attacked them with a knife and that he, together with Cirilo, sustained injuries.

Fortunato Agapinay contended that he was asleep aboard the boat at that time and was roused by his nephew, Alfredo Maximo, and whereupon, he saw men fighting.  Cirilo and Delfin Agapinay, together with Amor Flores, were allegedly on their way home, whom he followed.  Upon reaching their house, Romeo Agapinay appeared and confessed that he had stabbed Virgilio Paino.^[13]

Alex Agapinay testified that he was with Salvador and Mariano Agapinay at that time repairing a lamp.  They then saw Fely Rose Paino running, who informed them that Virgilio Paino had been stabbed, and that Romeo Agapinay was the culprit.  Dante Agapinay corroborated his testimony.^[14]

Romeo Agapinay, who had been tagged as the knife-wielder, alleged that on April 13, 1981, he was at the shore of Batangan, in Buguey, mending net.  He claimed that he was with his father, Delfin Agapinay, and uncle, Cirilo Agapinay, a certain Martin Maximo, Jesus Alveza, and unidentified complement.  It was then that Virgilio Paino suddenly appeared "uttering bad words to his father Delfin."^[15] Virgilio then allegedly struck Cirilo Agapinay and his father with a paddle.  He stated that he was forced to stab Virgilio three times.  Virgilio allegedly later went home alone.^[16]

The defense pictured Virgilio as having been drunk at that time, and that he came on strong without provocation, haranguing the Agapinays for two hours.^[17]

The trial judge rejected the accused's claim of defense of relatives^[18] and convicted all six accused of the crime of murder, attended by treachery.19 He also noted that it was not Virgilio who assaulted Cirilo and Delfin Agapinay with a knife, but rather, Eufemio Paino.  He held that the Agapinays can not thus say that they had been defending themselves (against Virgilio).

The lower court also found that the Agapinays had conspired to kill Virgilio Paino and thus held them, in the dispositive portion of its decision, "all principals by participation."

In giving credence to the prosecution's evidence, the trial court observed that Virgilio could not have given a valid cause for the Agapinays to assault him.  ("[I]t is hard to believe that the late Virgilio just clubbed accused Cirilo and Delfin without cause."^[20])

Virgilio could not have blamed the Agapinays, as the latter claim, for taking the atal (the act that, as alleged by the Agapinays, precipitated the fight), because it was Fortunato Agapinay who was the head of the complement, and if any person should begrudge the Agapinays' act, the logical one was he, Fortunato.  ("Thus, there is no plausible reason for the late Virgilio to have clubbed Cirilo and Delfin as the deceased was not the owner of the atal..."^[21])

The trial court likewise found that Cirilo and Delfin were not defending themselves against Virgilio when they suffered stab wounds of their own, but rather, against Eufemio Paino.  It lent faith and credence to Corporal Sunico's testimony who heard both Cirilo and Delfin pin the blame on "Temyong" (Eufemio) Paino.^[22]

The court commanded the Provinical Fiscal to indict Julia Rapada as alleged principal by inducement for having ordered the Aqapinays to "[k]ill Virgilio Paino,"^[23] as well as Amor Flores, to account for their crimes.  (Neither of them is accused in the Information.)

It found that no evident premeditation attended the killing but appreciated treachery and conspiracy.  The dispositive portion of its Decision reads:

WHEREFORE, PREMISES CONSIDERED, this Court finds accused Romeo Agapinay, Delfin Agapinay, Cirilo Agapinay, Fortunato Agapinay, Alex Agapinay and Dante Agapinay, all principals by participation, guilty beyond reasonable doubt of the crime of murder prescribed and penalized under Article 248 of the Revised Penal Code and hereby sentences each of herein accused to suffer the penalty of reclusion perpetua and to indemnify the heirs of deceased Virgilio Paino the sum of THIRTY THOUSAND (P30,000.00) PESOS and to pay the costs of this suit.

SO ORDERED.^[24]

The six accused now submit that the Decision under appeal should be reversed, and that the trial court erred in the following terms:

FIRST.      -	THE TRIAL COURT ERRED IN FIND­ING THAT THE APPELLANT ROMEO AGAPINAY STABBED THE DECEASED TWICE.
SECOND. -	THE TRIAL COURT ERRED IN FIND­ING THAT DELFIN AGAPINAY, ALEX AGAPINAY, FORTUNATO AGAPINAY TOOK TURNS IN STONING THE VICTIM.
THIRD.      -	THE TRIAL COURT ERRED IN ADOPTING AS PART OF THE EVIDENCE THE PROCEEDINGS AT THE PRELIMINARY INVESTIGATION (1ST STAGE) CONDUCTED BY THE MUNICIPAL CIRCUIT TRIAL JUDGE.
FOURTH.  -	THE TRIAL COURT ERRED IN FIND­ING THAT THERE WAS CONSPIRACY ON THE PART OF THE APPELLANTS WHEN THEY COMMITTED THE CRIME CHARGED.
FIFTH.        -	THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANTS ARE GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER QUALIFIED BY TREACHERY.
SIXTH.        -	THE TRIAL COURT ERRED IN SEN­TENCING THE APPELLANTS TO THE PENALTY OF RECLUSION PERPETUA.
SEVENTH.  -	THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLANTS TO PRESENT EVIDENCE TO FIND OUT IF THE EVIDENCE TO BE PRESENTED CONSTITUTES NEWLY DISCOVERED EVIDENCE AS A BASIS FOR A NEW TRIAL.[25]

We affirm, with modifications, the Decision appealed from.

To begin with, the errors, except the last, assigned by the accused refer to credibility of witnesses, and in a long line of cases, we have held that "credibility" is the domain of the trial court.

There indeed seems to be no controversy that the Agapinays (that is, the six accused) are guilty of participating in the slay of Virgilio Paino:  (1) Romeo admitted having stabbed him; (2) thereafter, Delfin and Fortunato held him, whereupon, Romeo thrust another stab;  (3) as Virgilio ran away, Delfin, Alex, Fortunato, Dante, and Cirilo threw rocks at him.

Although it appears that it was Amor Flores who dealt Virgilio the death blow, the Agapinays can not deny that they had the intent to kill him, and performed acts to carry that out, for which they should be held accountable under the law.^[26]

With respect to Amor Flores, we agree with the trial judge that he should be brought to the bar of justice.  As regards, however, Julia Rapada, it is the opinion of this Court, and based on the records, that she can not be held liable (as a principal by inducement).  Her words, "Kill him and we will bury him"^[27] amount but to imprudent utterances said in the excitement of the hour or in the heat of anger (it does not appear whether or not Rapada held a grudge against the deceased), and not, rather, in the nature of a command that had to be obeyed.  It has been held:

xxx                            xxx                               xxx

xxx A chance word spoken without reflection, a wrong appreciation of a situation, an ironical phrase, a thoughtless act, may give birth to a thought of, or even a resolution to, crime in the mind of one for some independent reason predisposed thereto without the one who spoke the word or performed the act having any expectation that his suggestion would be followed or any real intention that it produce a result.  In such case, while the expression was imprudent and the results of it grave in the extreme, he would not be guilty of the crime committed.  Therefore, in applying the principles laid down to concrete cases it is necessary to remember only that the inducement must be made directly with the intention of procuring the commission of the crime and that such inducement must be the determining cause of the crime.^[28]

xxx                            xxx                               xxx

We also believe that conspiracy has not been shown beyond reasonable doubt to hold all six accused as co-principals in the crime of murder.  As the lower court observed, the stabbing happened in the "spur of the moment."^[29] Conspirary means, however, an agreement concerning the commission of a felony and a decision to commit it.30 If the tragedy was a chance stabbing, there can be no conspiracy to speak of.

Hence, the parties' liability should be considered individually.^[31]

It is our considered opinion that only Romeo, Delfin, and Fortunato should be held as principals in the crime of murder.  Romeo is guilty, as he admitted in open court, by direct participation,^[32] while Delfin and Fortunato are liable as principals by cooperation.33 In holding the victim by his arms, both allowed Romeo to inflict upon him a stab wound.^[34]

Alex, Dante, and Cirilo, on the other hand, should be held as simple accomplices^[35] for their acts of pelting the victim with rocks.  Since the deceased had already sustained two stab wounds, the act of hurling rocks at him was not indispensable to justify holding them legally liable as principals.^[36]

There is further no doubt that murder has been committed, but not because of treachery, as ruled by the trial court.  Treachery depends on the suddenness of the attack, by which the victim is rendered hors d'combat, as in an ambuscade, or any manner in which the victim is deprived of all defenses, and in which the malefactor faces no risk to himself.^[37] The manner of attack must be shown.38 There is no such showing here.

The fact that Delfin and Fortunato Agapinay held Virgilio Paino while Romeo stabbed him, does not demonstrate treachery.  Rather, what it proves is abuse of superiority.  It is indeed plain from the records that the trio of Romeo, Delfin, and Fortunato had taken advantage of their strength to overcome the victim who, at that time, was already injured.^[39]

Abuse of superiority qualifies the taking of the life of another into murder.^[40] Accordingly, we affirm the trial court's Decision insofar as it found Romeo, Delfin, and Fortunato, all surnamed Agapinay, guilty as co-principals of murder.  We however, find Alex, Dante, and Cirilo, also all surnamed Agapinay, guilty as accomplices in the commission of the same offense.

Anent the last error assigned, that the lower court erred in not allowing a new trial, we sustain the action of His Honor, Judge Felipe Tumacder.  As he held, the appeal having been perfected, "[t]he Court...has no more jurisdiction to entertain"^[41] any incident.

The counsel for the accused alleges that "the only reason why the Notice of Appeal was filed was because on January 30, 1987, the Motion for New Trial had not been formally resolved or denied, hence, the motion was filed as a precautionary measure not to lose the right to appeal which was set to expire on February 3, 1987."^[42] The accused's counsel has apparently ignored the fact that "[t]he time during which a motion...for a new trial has been pending shall be deducted..."^[43] and hence, he faced no risk of losing the right to appeal in the event his motion was denied.

As we noted, the trial court repudiated the accused's posturing of defense of relatives, so also do we.  "Defense of relatives" requires the concurrence of three elements:  (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) the person defending the relative had no part in provoking the assailant, should any provocation have been given by the person attacked.^[45] Of these three requisites, "unlawful aggression" is said to be the most essential and primary, without which any "defense" is not possible or justified.  Thus:  "If there is no unlawful aggression there would be nothing to prevent or repel."^[46] In that event, not even incomplete self-defense can be validly invoked.47

The Court is not persuaded that Virgilio Paino had acted with unlawful aggression that might have provoked the Agapinays' deadly wrath.  The records show that all that Virgilio did was to address offensive language to Delfin Agapinay.^[48] In one case, this Court held that "injurious words or threats"49 do not amount to unlawful aggression.  Assuming that Virgilio did strike Delfin and Romeo Agapinay with a paddle, the expediente reveals that thereafter and upon having been stabbed in the right arm by Romeo, he, Virgilio, ran away.  It has also been ruled that:  "Self-defense does not justify the unnecessary killing of an aggressor who is retreating from the fray."^[50]

The Court finds, however, that the accused should be entitled to the mitigating circumstance of provocation^[51] (or vindication of a grave offense52 or passion or obfuscation.^[53]) since clearly, the deceased uttered offending words ("vulva of your mother, if you are talking as if you have no debts, not like me, I have no debts"54) that made the Agapinays, especially Romeo, react violently.  While the trial court disregarded this particular piece of evidence, the entire picture seems to indicate that Virgilio Agapinay did say bad words that made the Agapinays act in retaliation.

WHEREFORE, Romeo, Delfin, and Fortunato, all surnamed Agapinay, are ORDERED to undergo an indeterminate sentence of ten (10) years and one (1) day of prision mayor maximum, as minimum, to seventeen (17) years, 4 months, and one (1) day of reclusion temporal maximum, as maximum.  Alox, Dante, and Cirilo, also surnamed Agapinay, are ORDERED to undergo an indeterminate sentence of four (4) years and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision mayor maximum, as maximum.  All six accused are also ORDERED to pay, jointly and severally, to the heirs of Virgilio Paino, the sum of THIRTY THOUSAND (P30,000.00) PESOS.  Costs against the accused.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Regalado, JJ., concur.

---

^[1] Original Records, 145.

^[2] Id., 158.

^[3] Id., 329.

^[4] Referred to as "shade" in the Decision; id., 327.

^[5] Id.

^[6] Id.

^[7]Id., 3.

^[8] Id., 327.

^[9] Id., 328.

^[10] Id.

^[11] Id.

^[12] Id., 328.

^[13] Id., 329.

^[14] Id., 330.

^[15] Id., 331.

^[16] Id.

^[17] Id.

^[18] REV. PEN. CODE, art. 11, par. 2.

^[19] Supra, art. 248.

^[20] Original Records, id., 336.

^[21] Id.

^[22] Id., 340.

^[23] Id., 327.

^[24] Id., 345.

^[25] Brief for Appellants, 7.

^[26] REV. PEN. CODE, supra, art. 4.

^[27] Original Record, id., 327.

^[28] United States v. Indanan, 24 Phil. 203, 219 (1913).

^[29] Original Record, id., 343.

^[30] REV. PEN. CODE, supra, art. 8; see People v. Saavedra, No. L-48738, May 18, 1987, 149 SCRA 610, 623-624, and cases cited there.

^[31] Supra.

^[32] REV. PEN. CODE, supra, art. 17, par. 1.

^[33] Supra, par. 3.

^[34] See United States v. Cueva, 23 Phil. 553 (1912), where the accused struck the deceased while his brother held the latter by the arms.

^[35] REV. PEN. CODE, supra, art. 18.

^[36] See People v. TatIonghari, No. L-22094, March 28, 1969, 27 SCRA 726, 740.

^[37] United States v. Devela, 3 Phil. 625 (1904).

^[38] See I AQUINO, THE REVISED PENAL CODE 388 (1987 ed.)

^[39] Id., 378.

^[40] REV. PEN. CODE, supra, art. 248, par. 1.

^[41] Original Records, id., 526.

^[42] Brief for Appellants, id., 18.

^[43] RULES OF COURT, Rule 41, sec. 3.

^[44] People v. TatIonghari, supra, 742.

^[45] REV. PEN. CODE, supra, art. 11, par. 2.

^[46] AQUINO, id., 138, citing United States of Vallados, 4 Phil. 339 (1905).

^[47] United States v. Carrero, 9 Phil. 544 (1908).

^[48] See United States v. Santos, 17 Phil. 87 (1910).

^[49] Supra, 91.

^[50] United States v. Dimitillo, 7 Phil. 475 (1907).

^[51] REV. PEN. CODE, supra art. 13, par. 4.

^[52] Supra, par. 5.

^[53] Supra, par. 6.

^[54] Original Records, id., 331.