Upon an Information for Homicide filed before the Court of First Instance of Isabela, Branch IV, Roxas, for the death of Abraham Cortez alias Luis Cortez, Jr. (deceased), and after due trial, petitioner-appellant was sentenced to suffer an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months of reclusion temporal, as maximum, to indemnify the heirs of the deceased in the amount of P6,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

On appeal to the Court of Appeals, the judgment of conviction was affirmed but the penalty was amended as follows:

"WHEREFORE, the judgment of conviction is hereby affirmed with modification of the penalty from ten (10) years and one (1) day of prision mayor, as the minimum, to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal, as the maximum, and to pay an indemnity of P12,000.00 to the heirs of the deceased, without sub­sidiary imprisonment in case of insolvency, and to pay the costs."

It appears from the evidence that the deceased was killed in the night of June 3, 1967 and that shortly before his death, the deceased was playing cards in the house of appellant in the municipality of San Manuel, Isabela, together with appellant, the latter's cousin Victor Buduan, Cresencio Doctor, Fermin Esteban, and Esmeraldo Pagatpatan.

The original criminal complaint in regard to the death of the deceased was filed against Victor Buduan and appellant before the Municipal Court of San Manuel, Isabela, on June 7, 1967. But because Victor Buduan could not be arrested and had remained at large, only appellant was tried under the Information filed before the Court of First Instance of Isabela, as follows:

"That on or about the 3rd day of June, 1967, in the municipality of San Manuel, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rodrigo Dacanay, together with Victor Buduan, who is still at large, conspiring and confede­rating together and helping one another, did then and there will­fully, unlawfully, and felonious­ly, with intent to kill and with­out any just motive, the said Victor Buduan, assault, attack and stab with a scythe (lilit) one Abraham Cortez alias Luis Cortez, Jr., while being held on his right shoulder by the herein accused Rodrigo Dacanay, thereby inflicting the following wounds upon the said Abraham Cortez alias Luis Cortez, Jr., to wit: a stab wound, abdomen, penetrating and perforating small intestines and lumbar area, right, three perforations in small intestines, which directly caused the death of said Abraham Cortez alias Luis Cortez Jr., due to external and internal hemorrhage secondary to the stab wound."

The theory of the prosecution is that the deceased was stabbed by Buduan with a scythe ("lilit") while he was being held by appellant from behind.

On June 6, 1967, or the day before appellant was charged with Homicide before the Municipal Court of San Manuel, he gave a statement before the Chief of Police of San Manuel wherein he stated that during the card game Buduan accused the deceased, who was acting as banker, of cheating; that because of that charge, a fight ensued between the deceased and Buduan; that in order to separate the two, appellant held the shoulders of the deceased with his two hands and while so doing Buduan stabbed the deceased with a scythe ("lilit").^[1] On June 7, 1967, after he was charged with the crime before the Municipal Court, appellant also gave a statement before the Municipal Judge reiterating what he had told the Chief of Police the day previous.^[2]

During the trial before the Court of First Instance, appellant changed his story and claimed that, during the card game, Buduan and the deceased left appellant's house together to get chicken for "arroz caldo;" that at about 8:00 o'clock that night, appellant was informed by a neighbor that Buduan had stabbed the deceased while they were between the houses of Daniel Peralta and Esmeraldo Pagatpatan; that appellant was not present during the stabbing; that he did not bother to go outside to see the deceased and that Buduan did not come back to his (appellant's) house after the stabbing.

There is no doubt in our minds that the deceased was stabbed in the house of appellant in the course of the card game, as confirmed by appellant's statements,^[3] and that the deceased was not killed out­side of appellant's house as claimed by him at the trial. It is also clear to us that the deceased was stabbed by Buduan while appellant was holding the arms of the deceased from behind, thus making possible Buduan's fatal stabbing of the deceased. That was sufficiently established by the testimonies of Cresencio Doctor and Fermin Esteban who were participants in the card game and who declared as follows:

"Q.  What part of the body of the deceased Luis Cortez was held by Rodrigo Dacanay?

A.   His hands, sir.

Q.  Will you demonstrate before this Honorable Court the way Rodrigo Dacanay held Luis Cortez while being stabbed by Victor Buduan?

A.   Yes, sir. (Witness demons­trating how Luis Cortez Jr. was being held by Rodrigo Dacanay with up (sic) both arms from behind).

COURT:

Put on record that the witness Cresencio Doctor is demonstrating that Rodrigo Dacanay held up both arms of Cortez Jr. about the elbows from behind.

ATTY. ABROGENA: (CONT'D)

Q.   How far was Victor Buduan when he hit Luis Cortez while being held by Dacanay; when he stabbed Luis Cortez Jr.?

A.    I could not estimate how far, sir.

COURT:

Q.   But Buduan was able to reach when he stabbed the latter?

A.    Yes, sir."^[4]

"FISCAL DURIAN: (CONT'D)

Q.   Now, when Victor Buduan stabbed Luis Cortez Jr. what did Rodrigo Dacanay do, if he did anything?

A.    Rodrigo Dacanay held Cortez Jr., sir.

Q.   What part of the body of Luis Cortez Jr. was held by Rodrigo Dacanay when Luis Cortez was stabbed by Victor Buduan?

A.    (Witness showing his left and right upper arms).

Q.   In relation to Luis Cortez Jr. where was Rodrigo Dacanay when he held the upper arms of Luis Cortez Jr. Was he in front or at his back?

A.    From behind, sir."^[5]

The substantial question that we have to resolve is whether appellant should be convicted as an accom­plice, as suggested by the Solicitor General, or as a co-principal as held both by the trial Court and the Court of Appeals. On that question we are also finding that appellant should be convicted as a co­-principal and not as a mere accomplice.

There can be no question that appellant's act in holding the victim from behind when the latter was stabbed by his cousin, Victor Buduan, was a positive act towards the realization of a common criminal intent, although the intent can be classified as instantaneous. It can be safely assumed that had not appellant held both arms of the victim from behind, the latter could have parried the thrust or even run away from his assailant. By immobilizing the two hands of the victim from behind, and although there was no anterior conspiracy, the two cousins showed unity of criminal purpose and intent immediately before the actual stabbing. It should be stressed that appellant and his cousin Victor Buduan were playing a card game with the victim. It is apparent that appellant shared the same feeling of anger which Buduan had towards the victim who cheated them. If, indeed, the appellant intended to save the victim from being assaulted with a "lilit" by his cousin Victor, he could have grabbed his cousin and held him back, parti­cularly the arm holding the "lilit", to prevent him from attacking the victim. Or, he could have placed himself between the assailant and the victim, instead of grabbing the victim from behind and holding both arms by the elbows rendering the victim defenseless against the assault of his cousin. The method by which appellant seized the deceased by his elbows from behind clearly prevented the latter from moving and defending himself, and without said act of holding the crime would not have been accomplished. This makes him a principal by indispensable cooperation,^[6] and not merely an accomplice.

We rule out, however, the generic aggravating cir­cumstance of treachery appreciated by the Court of Appeals. The attack was preceded by a quarrel and a heated discussion and must have placed the victim on his guard.^[7] Appellant's act in holding the deceased was impulsively done on the spur of the moment and was not consciously and deliberately adopted.^[8] It mere­ly sprang from the turn of events.

In the absence of modifying circumstances, the penalty for the crime of Homicide, therefore, or reclusion temporal, is to be imposed in its medium period.

WHEREFORE, the judgment of conviction is hereby affirmed, with the penalty modified to an indeterminate sentence of EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal, as maximum; to pay an indemnity of P12,000.00 to the heirs of Luis Cortez Jr., alias Abraham Cortez; and to pay the costs.

SO ORDERED.

Teehankee, (Chairman), Makasiar, Fernandez, and Guerrero, JJ., concur.
De Castro, J., dissents in a separate opinion.

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^[1] Exhibit "B".

^[2] Exhibit "C".

^[3] Exhibits "B" and "C".

^[4] Testimony of C. Doctor, t.s.n., p. 8.

^[5] Testimony of F. Esteban, t.s.n., p. 14.

^[6] See People vs. Labis, 21 SCRA 875, 885 (1967).

^[7] People vs. Gonzales, 76 Phil 473 (1946); People vs. Lara, 54 Phil 96 (1929); People vs. Concha, 49 Phil 212 (1926); and People vs. Templonuevo, 106 Phil 1003 (1960).

^[8] People vs. Calinawan, 83 Phil 647 (1949).

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