[No. 45100.

October 26, 1936]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and
appellee, vs. EPIFANIO DIOKNO and ROMAN DIOKNO,
defendants and appellants.
1

1.CRIMINAL LAW; HOMICIDE; CIRCUMSTANCES MODIFYING

CRIMINAL LIABILITY; ABUSE OF SUPERIOR STRENGTH.The
circumstance of abuse of superior strength, qualifying the crime
of murder, which the trial court found to have been proven, has
not been established beyond a reasonable doubt. In the case of
United States vs. Devela (3 Phil., 625), this court said that "the
mere fact that the number of the assailants is superior to that of
those attacked by them is not sufficient to constitute the
aggravating circumstance of abuse of superiority."
2.ID.; ID.; ID.; EVIDENT PREMEDITATION.Neither is the existence
of the other circumstance qualifying murder, that is, evident
602

602
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PHILIPPINE REPORTS ANNOT

People vs. Diokno and Diokno
premeditation, proven beyond a reasonable doubt because, even
assuming that both the accused went to San Pablo, Laguna, each
carrying the knife used by him in attacking Y. H., it being
customary for the people of said province to carry it, it cannot be
inferred with certainty from the mere fact that they carried knives
that their intention in going to San Pablo was to look for the
deceased in order to kill him.
3.ID.; ID.; ID.; ID.In order that premeditation may be considered
either as an aggravating circumstance or as a qualifying
circumstance, it must be evident, that is, the intention to kill must
be manifest and it must have been planned in the mind of the
offender and carefully meditated. It is not enough that it arose at
the moment of the aggression.
4.ID.; ID.; ID.; MITIGATING CIRCUMSTANCES.The presence of the
fifth mitigating circumstance of article 13 of the Revised Penal
Code, that is, immediate vindication of a grave offense to said
accused, may be taken into consideration in favor of the two
accused. There was no interruption from the time the offense was
committed to the vindication thereof. The herein accused belong
to a family of old customs to whom the elopement of a daughter

with a man constitutes a grave offense to their honor and causes

disturbance of the peace and tranquillity of the home and at the
same time spreads uneasiness and anxiety in the minds of the
members thereof.
5.ID.; ID.; ID.; ID.The fact that the accused saw the deceased
run upstairs when he became aware of their presence, as if he
refused to deal with them after having gravely offended them,
was certainly a stimulus strong enough to produce in their mind a
fit of passion which blinded them and led them to commit the
crime with which they are charged, as held by the Supreme Court
of Spain in similar cases in its decisions of February 3, 1888, July
9, 1898, February 8, 1908, May 25, 1910, July 3, 1909, and in
other more recent ones.

APPEAL from a judgment of the Court of First Instance of

Laguna. Santos, J.
The facts are stated in the opinion of the court.
Ramon Diokno and Gabriel N. Trinidad for appellants.
Solicitor-General Hilado for appellee.
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VOL. 63, OCTOBER 26, 1936

People vs. Diokno and Diokno

VlLLA-REAL, J.:
Epifanio Diokno and Roman Diokno appeal to this court
from the judgment of the Court of First Instance of
Laguna, the dispositive part of which reads as follows:
"In view of the foregoing considerations, the court finds
the accused Epifanio Diokno and Roman Diokno guilty of
the crime of murder, beyond a reasonable doubt, and
sentences each of them to reclusin perpetua, to
indemnify jointly and severally the heirs of the deceased
in the sum of P1,000 and to pay the costs of the suit. "It is
so ordered."
In support of their appeal, the appellants assign the
following alleged errors as committed by the court a quo
in its judgment in question, to wit:
'"1.The lower court erred in accepting Exhibit E as

2
3
4

evidence.
"2.The lower court erred in admitting Exhibit K as
evidence.
"3.The lower court erred in not acquitting the appellant
Roman.
"4.The lower court erred in sentencing the appellant
Epifanio to reclusin perpetua."
The following facts have been proven beyond a
reasonable doubt during the trial:
The deceased Yu Hiong was a vendor of sundry goods in
Lucena, Tayabas. At about 7 o'clock in the morning of
January 4, 1935, Salome Diokno, to whom Yu Hiong was
engaged for about a year, invited the latter to go with
her. Yu Hiong accepted the invitation but he told Salome
that her father was angry with him. Salome answered
him: "No matter, I will be responsible." At about 6 o'clock
in the afternoon of said day, Yu Hiong and Salome Diokno
took an automobile and went to the house of Vicente
Verina, Salome's cousin, in Pagbilao. As they found
nobody in the house, they went on their way up to San
Pablo, Laguna. On January 5th or 6th of said year, Roman
Diokno telegraphed his father Epifanio Diokno, who was
in Manila, informing him that Salome had eloped
604

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PHILIPPINE REPORTS ANNO

People vs. Diokno and Diokno
with the Chinese Yu Hiong. On the morning of January 7,
1935, Epifanio Diokno and Roman Diokno went to San
Pablo, Laguna, in search of the elopers. Having been
informed that the latter were stopping at the house of
Antonio Layco, they went there. Upon arriving near the
house, they saw Yu Hiong coming down the stairs. When
Yu Hiong saw them, he ran upstairs and they pursued
him. As the Chinese found the door of the house locked,

he shouted that it be opened for him. At that moment, he

was overtaken by the accused who carried knives locally
known as balisong, of different sizes. Yu Hiong fell on his
knees and implored pardon. In that situation Roman
Diokno stabbed him with the knife in the back and later in
the left side. Epifanio Diokno also stabbed him once. Yu
Hiong fell on the landing of the stairs in the balcony, and
there he was again stabbed repeatedly. Then Roman
Diokno
said:
"Enough,
father."
Yu
Hiong
lost
consciousness. Juan Alcantara, who lived on the same
street, Hermanos Belen, in front of Antonio Layco's house,
saw the accused pursue Yu Hiong and fired shots for the
police to come. Upon hearing the shots, municipal
policeman Francisco Curabo appeared and found Yu Hiong
pale and lying on the landing of the stairs. He then asked
who had wounded the Chinese and the accused Epifanio
Diokno answered that it was he. The policeman took the
knife (Exhibit C) which Epifanio Diokno carried in his right
hand and brought him to police headquarters. Roman
Diokno had left before the policeman arrived and he was
not located until after three days. The municipal president
of San Pablo, Laguna, also went to the scene of the crime,
found the Chinese almost unconscious and questioned
him, putting down his answers in Exhibit E. The Chinese
was brought to the provincial hospital of San Pablo where
he was examined by Drs. David Evangelista and Manuel
Quisumbing, who found that he had five Incised wounds
in different parts of the body, one of them at the back
and about three and a half inches long, pierc605

VOL. 63, OCTOBER 26, 1936

People vs. Diokno and Diokno
ing the pleura and penetrating the lower lobe of the right
lung about an inch, which wound was necessarily mortal

and which caused the death of the victim. On January 8,

1935, while the said Chinese was in a serious condition in
the hospital, he made a statement telling how he was
attacked by the accused (Exhibit K).
The accused, testifying as witnesses in their own behalf,
stated that they had not gone to San Pablo together on
the day in question; that when Roman Diokno arrived, his
father Epifanio Diokno was coming down the stairs of
Antonio Layco's house with a knife in his hand; that
Epifanio Diokno told his son Roman to go home and tell
their relatives what had happened; that when Epifanio
Diokno overtook Yu Hiong on the landing of the stairs of
Antonio Layco's house, he asked Yu Hiong whether he
was willing to marry his daughter; that the Chinese
answered him in the negative and at the same time tried
to take something from his pocket; that as Epifanio knew
that Yu Hiong carried a revolver, he feared the Chinese
might harm him; he became obfuscated, drew his knife
and knew not what happened afterwards.
The first question to be decided in the present appeal is
whether or not the court a quo erred in admitting as
evidence Exhibit E, consisting in the investigation
conducted by the municipal president of San Pablo in the
same place where Yu Hiong had fallen a few minutes
before, at about 1:30 p. m. on January 7, 1935, and
wherein Yu Hiong, answering the questions asked by said
municipal president, stated that it was Roman Diokno and
Epifanio Diokno who had wounded him.
It is argued by the defense that said document Exhibit E
should not be admitted on the ground that some words
had been altered and because it has not been proven that
the declarant had a sense of impending death.
It does not appear that said document was altered after it
had been signed, but on the contrary, municipal president

Jacinto Peaflor, upon being cross-examined by the

606

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PHILIPPINE REPORTS ANNO

People vs. Diokno and Diokno
defense, declared that he neither erased any word nor
put another in its place after said document had been
finished.
The fact that Yu Hiong failed to state that he had given up
all hope of life, in answering the municipal president's
questions, does not make his declaration inadmissible. It
is enough if, from the circumstances of the case, it can be
inferred with certainty that such must have been his state
of mind (People vs. Chan Lin Wat, 50 Phil., 182). In the
present case, Yu Hiong was semiconscious as a result of
the wounds received by him and, consequently, he could
not have the hope to live when he made his declaration
immediately after he was mortally wounded. But even if
the document Exhibit E were not admissible as an ante
mortem declaration, it is admissible as a part of the res
gest because it was made under circumstances so
proximate to the incident that it may be considered as a
part thereof. (People vs. Portento and Portento, 48 Phil.,
971; People vs. Palamos, 49 Phil., 601.)
The first assignment of alleged error is, therefore,
untenable.
With respect to the second assignment of alleged error
consisting in that the court a quo erred in admitting
Exhibit K as an ante mortem declaration of Yu Hiong,
because it does not appear that when the declarant made
it he was aware of impending death and that he did not
die until three days after making it, all that has been said
relative to Exhibit E, which is the subject matter of the
first assignment of alleged error, may be repeated in
connection with said Exhibit K, in the sense that it is

admissible as an ante mortem declaration. Furthermore,

when the deceased made the declaration Exhibit K, he
complained of great difficulty in breathing and of being
very ill. The fact that he did not die until three days later
neither implies that he had no sense of impending death
when he made his declaration because he did not
improve thereafter but became worse until he died; nor
detracts from its
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People vs. Diokno and Diokno
character of an ante mortem declaration because what
gives the declaration such character is the declarant's
conviction, upon making it, that he is not going to live (U.
S. vs. Mallari, 29 Phil., 14).
The third assignment of alleged error consists in the
failure of the court a quo to acquit the appellant Roman
Diokno.
The testimony of the eyewitnesses Juan Alcantara and
Antonio Layco, corroborated by the different dimensions
of the wounds which, according to Dr. Manuel
Quisumbing, were caused by two instruments of different
sizes, and the ante mortem declarations (Exhibits E and
K) of the deceased, leave no room for doubt that Roman
Diokno cooperated with his father and stabbed the
deceased Yu Hiong with a knife in different parts of the
body. Furthermore, the deceased stated in his ante
mortem declaration (Exhibit K) that it was Roman Diokno
who inflicted the necessarily mortal wound in his back,
which caused his death.
We find the fourth assignment of alleged error well
founded. The circumstance of abuse of superior strength,
qualifying the crime of murder. which the trial court found
to have been proven, has not been established beyond a

reasonable doubt. In the case of United States vs. Devela

(3 Phil., 625), this court said that "the mere fact that the
number of the assailants is superior to that of those
attacked by them is not sufficient to constitute the
aggravating circumstance of abuse of superiority." In this
case we have the photographs of the body of the
deceased (Exhibits D and D-1) showing that he had a
strong constitution; but there is no evidence of the
physical constitution of the accused Epifanio Diokno and
Roman Diokno. Therefore, we cannot determine whether
or not said accused were physically stronger than the
deceased and whether or not they abused such
superiority.
Neither does this court find the existence of the other
circumstance qualifying murder, that is, evident preme608

608

PHILIPPINE REPORTS ANNO

People vs. Diokno and Diokno
ditation, proven beyond a reasonable doubt because,
even assuming that both the accused went to San Pablo,
Laguna, each carrying the knife used by him in attacking
Yu Hiong, it being customary for the people of said
province to carry it, it cannot be inferred with certainty
from the mere fact that they carried knives that their
intention in going to San Pablo was to look for the
deceased in order to kill him. In order that premeditation
may be considered either as an aggravating circumstance
or as a qualifying circumstance, it must be evident, that
is, the intention to kill must be manifest and it must have
been planned in the mind of the offender and carefully
meditated. It is not enough that it arose at the moment of
the aggression.
Therefore, there having been neither abuse of superior
strength nor evident premeditation, the crime committed

by the accused is simple homicide.

The presence of the fifth mitigating circumstance of
article 13 of the Revised Penal Code, that is, immediate
vindication of a grave offense to said accused, may be
taken into consideration in favor of the two accused,
because although the elopement took place on January 4,
1935, and the aggression on the 7th of said month and
year, the offense did not cease while Salome's
whereabouts remained unknown and her marriage to the
deceased unlegalized. Therefore, there was no
interruption from the time the offense was committed to
the vindication thereof. Our opinion on this point is based
on the fact that the herein accused belong to a family of
old customs to whom the elopement of a daughter with a
man constitutes a grave offense to their honor and
causes disturbance of the peace and tranquillity of the
home and at the same time spreads uneasiness and
anxiety in the minds of the members thereof. The
presence of the sixth mitigating circumstance of said
article 13, consisting in having acted upon an impulse so
powerful as naturally to have produced passion or
obfuscation, may also be taken into consideration in favor
of the accused. The fact that the accused saw the
deceased
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People vs. Diokno and Diokno
run upstairs when he became aware of their presence, as
if he refused to deal with them after having gravely
offended them, was certainly a stimulus strong enough to
produce in their mind a fit of passion which blinded them
and led them to commit the crime with which they are
charged, as held by the Supreme Court of Spain in similar
cases in its decisions of February 3, 1888, July 9, 1898,

February 8, 1908, May 25, 1910, July 3, 1909, and in

other more recent ones.
The seventh circumstance of article 13 of the Revised
Penal Code, consisting in having surrendered himself
immediately to the agents of persons in authority, should
also be taken into consideration in favor of the accused
Epifanio Diokno.
In view of the foregoing considerations, this court
concludes that the accused are guilty beyond a
reasonable doubt of the crime of homicide defined and
punished in article 249 of the Revised Penal Code, the
penalty prescribed therein being reclusin temporal in its
full extent. Three mitigating circumstances must be taken
into consideration in favor of the accused Epifanio Diokno
and two in favor of the accused Roman Diokno, with no
aggravating
circumstance,
thus
authorizing
the
imposition of the penalty next lower to that prescribed by
law reclusin temporal in its full extent), or prisin mayor
in its full extent, in the period that this court deems
applicable, which is the medium period in this case, in
accordance with the provisions of article 64, rule 5, that is
eight years and one day of prisin mayor.
Both accused should be granted the benefits of the
indeterminate sentence provided in Act No. 4103, as
amended by Act No. 4225, which prescribes a penalty the
minimum of which shall be taken from that next lower to
prisin mayor, or prisin correccional of from six months
and one day to six years. Taking into account the
circumstances of the case, the indeterminate penalty to
which each of said
610

610

PHILIPPINE REPORTS ANNO

People vs. Diokno and Diokno
accused must be sentenced is fixed at from two years

and one day of prisin correccional to eight years and

one day of prisin mayor, crediting each with one-half of
the time during which they have undergone preventive
imprisonment (art. 29, Revised Penal Code).
Wherefore, this court declares the accused Epifanio
Diokno and Roman Diokno guilty of the crime of homicide
and sentences each of them to an indeterminate penalty
from two years and one day of prisin correccional to
eight years and one day of prisin mayor, crediting them
with one-half of the time during which they have
undergone preventive imprisonment, and to indemnify
the heirs of the deceased in the sum of P1,000, with the
costs of both instances. So ordered.
Avancea, C.J., Abad Santos, and Imperial, JJ., concur.
LAUREL, J., concurring and dissenting:
I accept the conclusion of the majority of my brethren
that the crime committed by the defendants and
appellants was simple homicide as the existence of either
the qualifying circumstance of evident premeditation (art.
14, par. 13, Revised Penal Code) or that of abuse of
superior strength (art. 14, par. 15, Revised Penal Code),
has 'not been clearly established. The mere fact that the
two appellants were both armed with balisong knives and
that the deceased knelt before them and implored
forgiveness for what he had done is not, in my opinion,
necessarily conclusive of the concurrence of abuse of
superior strength in the commission of the crime (besides
U. S. vs. Devela, 3 Phil., 625, 629, vide I Viada, Cdigo
Penal, pp. 278, 279). To constitute abuse of superior
strength, it is necessary to show with sufficient clearness
(People vs. Trumata and Baligasa, 49 Phil., 192, 194), that
the aggressors, individually and collectively, were greatly
superior in strength to the offended party (People vs.
Dayug and Bannaisan, 49 Phil., 423, 427).

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People vs. Diokno and Diokno
For the reason given in the majority opinion, I also agree
to the taking into account of the mitigating circumstance
of the appellants having acted upon an impulse so
powerful as naturally to have produced passion or
obfuscation (art. 13, par. 6, Revised Penal Code).
I also agree in according to the appellant, Epifanio
Diokno, the mitigating circumstance of voluntary
surrender. (Art. 13, par. 7, Revised Penal Code.)
I am of the opinion, however, that the mitigating
circumstance of immediate vindication of a grave offense
(art. 13, par. 5, Revised Penal Code) should not be
considered in favor of the appellants. It should be
observed that the proximate cause of the tragedy was
the elopement of Salome, the daughter of Epifanio and
the sister of Roman. Salome and the deceased had been
engaged for about a year and the evidence shows that
the elopement took place at the instance of Salome
herself. Under existing legislation, a woman eighteen
years of age or over, can contract marriage without the
consent of her parents. If she leaves the parental home
for this purpose, neither she nor her lover commits any
offense. Under the doctrine laid down by the majority in
the present case, if a woman thirty or more years of age
should leave the parental home for the purpose of
marrying or for some kind or species of that romance
described by Tennyson in his Idylls of the King or by Scott
in his Lay of the Last Minstrel, against the wishes of her
parents, and her father or brother should, in hot pursuit,
overtake the impassioned Romeo and kill him on the spot,
the enraged assailant or assailants would be accorded
the benefit of the mitigating circumstance of having

acted in immediate vindication of a "grave offense"

committed against them, notwithstanding the maturity or
overmaturity in age of the woman and the fact that the
elopement was had at her instance and upon her
invitation. It seems to me that the interpretation is not in
keeping with the mores of the times. Filial respect and
family traditions are best conserved by home education
or environ612

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PHILIPPINE REPORTS ANNO

People vs, Diokno and Diokno
ment, not to speak of other factors, rather than by the
rigid or liberal application of the penal laws. The act of
the deceased in eloping with Salome, at the invitation of
the latter was not a "grave offense" which called for or
justified immediate vindication.
Disregarding the mitigating circumstance of immediate
vindication, considering, furthermore, that there are no
aggravating circumstances attendant in the commission
of the offense, and applying the provisions of article 64 of
the Revised Penal Code and those of the Indeterminate
Sentence Law, Epifanio Diokno, having in his favor two
mitigating circumstances, should be sentenced to an
indeterminate prison term ranging from four years, two
months and one day of prisin correccional to ten years
and one day of prisin mayor, and Roman Diokno, having
in his favor only one mitigating circumstance, should be
sentenced to an indeterminate prison term ranging from
six years and one day of prisin mayor to twelve years
and one day of reclusin temporal.
DIAZ, J., dissenting:
I am firmly convinced that the crime committed by the
appellants is not simply homicide but murder. It is so
qualified by the proven fact that abuse of superior

strength, which is one of the circumstances raising

homicide, if committed, to the category of murder, was
present in the commission thereof (art. 248, subsec. 1, of
the Revised Penal Code).
From Juan Alcantara's testimony to which the court gives
absolute credit, so that it is stated in the majority opinion
that he saw the appellants pursue the deceased, Yu
Hiong, on said occasion, and that he fired shots in the air
in order to call the police for help, it appears that upon
looking out of the window of his house, almost fronting
that of Antonio Layco on the landing of whose stairs the
crime was committed, he saw the deceased running
along Hermanos Belen Street pursued at close range by
the appel613

VOL. 63, OCTOBER 26, 1936

People vs. Diokno and Diokno
lants, anxious to enter Layco's house about twenty or
twenty-five meters away (t. s. n., page 57), in order to
escape from the aggression of which he was the victim. It
likewise appears that as he saw, upon arriving at the
landing of the stairs of Layco's house, that the same was
closed and that he had no other means of escape, not
having as he, in fact, did not then have any instrument to
defend himself, he fell on his knees, and in that position
asked the appellants, his pursuers, to forgive him. It
finally appears that instead of stopping before such
attitude of the deceased, which clearly indicated
surrender and acknowledgment of his helplessness, said
appellants attacked him with their respective weapons,
wounding him in the back, in the side and in other parts
of the body, giving him no peace until they saw him down
and bathed in his own blood. I am of the opinion
that,when two armed persons attack another who is not

armed, as the appellants did to Yu Hiong who was then

completely unarmed and showed signs of submission to
them by falling on his knees and imploring their
forgiveness, the circumstance of abuse of superior
strength clearly and undeniably exists. It is because one
who flees, falls on his knees later when he can no longer
evade his pursuers, and immediately asks their
forgiveness, shows not only his desire not to resist but his
conviction that he is powerless to offer resistance,
thereby admitting his inferiority and the superiority of his
assailants. The Supreme Court of Spain, after whose
Penal Code ours is patterned, settled a similar question
substantially in this sense, in its decision of June 17,
1872.
In a decision of January 23, 1887, said court, resolving the
question whether or not the circumstance of abuse of
superior strength should be taken into consideration in a
case where two persons attack another, there being no
disparity in physical strength between the attackers and
the attacked, and the former committed the aggression
with arms, the latter having only a small rod to defend
himself, sustained the affirmative.
614

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PHILIPPINE REPORTS ANNO

People vs. Diokno and Diokno
In another decision of January 14, 1899, the question
whether or not there was abuse of superior strength in a
case where two persons, one armed with a cane and the
other with a big stone, attacked another who was
unarmed, was likewise resolved by said court in the
affirmative.
The question whether or not the accused, who
simultaneously pursued their completely unarmed victim,
overtook, surrounded and attacked him later with steel

weapons, mortally wounding him, acted with abuse of

superior strength, was similarly determined in the
decision of January 17, 1919, the court having held
therein that singleness of action and purpose was present
in taking advantage of the victim's lack of means of
defense, with the correlative odds in favor of the
aggressors.
Abuse of superior strength is generally determined by the
excess of the aggressor's natural strength over that of the
victim, taking into consideration the momentary positions
of both and the employment of means weakening the
defense, although not annulling it (decision of the
Supreme Court of Spain of March 6, 1928). If the case
under consideration were to be considered in this light,
the conclusion must be that the appellants really acted
with abuse of superior strength.
Considering the act committed by the appellants a
manifest murder, and not homicide, due to the presence
of the qualifying circumstance of abuse of superior
strength, and it being a fact that the mitigating
circumstances stated in the majority opinion were present
in the commission thereof, I am of the opinion that the
penalty that should be imposed upon them, under article
64, rule 5, of the Revised Penal Code, is from ten years
and one day of prisin mayor to seventeen years and four
months of reclusin temporal, said penalty being next
lower to that prescribed for the crime of murder, or at
least, the indeterminate penalty of f rom five years of
prisin correccional to ten years and one day of prisin
mayor, in accordance
615

VOL. 63, OCTOBER 26, 1936

Espiritu vs. San Miguel Brewery

with Act No. 4103. With due respect to the majority

opinion, I dissent therefrom and vote as herein stated.
Judgment modified.
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