G.R. No. 1304. January 22, 1904

The judgment of the court below, dated March 26, 1903, which is
before us for review and on appeal, condemned the defendants
Petronilo Donoso, Gregorio Calin, Felix Ballos, and Timoteo Ladores
to the penalty of death with the accessories and costs, as guilty of
the crime of murder. By the same decision the defendant Antipatro Ada
was acquitted and his discharge was ordered and the same action was
taken with respect to the defendants Baldonido, Balaizuche, Ciego,
and Aquiatan, the evidence as to them being insufficient to support a
conviction.

On February 17, 1903, the provincial fiscal of Samar filed an
information in the Court of First Instance of that province charging
the nine defendants with the crime of murder, in that on the 24th of
April, 1902, willfully, feloniously, with alevosia and
premeditation, they attacked one Pedro Almasan, inflicting upon him
various wounds which caused his death, and that after killing him
they decapitated his corpse. This in an uninhabited place in the
township of Tubig and contrary to the statute in the case made and
provided.

From the evidence taken at the trial it appears that the municipal
president of the town of Tubig, by name Petronilo Donoso, acting
under instructions of Lieutenant Collins, commanding the American
troops stationed in the neighboring town of Dolores, on the Island of
Samar, and in conjunction with Sergeant Leo Gross, commanding the
military detachment at Tubig, on the 24th and 25th of April, 1902,
directed several policemen of the town and members of the volunteer
corps to make an expedition into the neighboring forest for the
purpose of compelling the townspeople who had taken refuge there to
return to the village. Among others, the expedition was composed of
Gregorio Calin, Felix Ballos, Timoteo Ladores, Antipatro Ada, Alberto
Aquiatan, Rufino Ciego, Gavino Balaizuche, and Pablo Baldonido, who
were armed with bolos and lances. About 2 o’clock on the afternoon of
the same day the expedition arrived at the forest of Amansurao, where
they found Pedro Almasan in his house with his wife, Perpetua Balmes,
her sister, Cristeta Balmes, and some seven other persons, men and
women, apparently relatives and friends of Almasan. They immediately
arrested Almasan and bound him elbow to elbow. Gregorio Calin, a
policeman who was commanding the expedition, immediately directed
that the inhabitants of the house should be removed from it and
taken toward the town,which order was obeyed, the people in question
being conducted by the members of the expedition. While on the road,
suspecting Calin’s evil intentions, Almasan’s wife begged him on her
knees not to kill her husband, who had been the best man at Calin’s
wedding, but the latter pushed her away and told her to walk
along,and get out of the way, and immediately after Calin attacked
Pedro Almasan, wounding him in the back with a lance, which pierced
him to the stomach. Felix Ballos and Timoteo Ladores also took part
in the assault, the deceased being at that time bound elbow to elbow
and consequently unable to escape or ward off the blow. Seeing this
attack, the wife of the deceased fainted, falling to the ground.
Subsequently she heard Calin say, after the commission of the crime,
that he had killed her husband because, in the time of the Spanish
Government, his father had been exiled by orders of the deceased.

Shortly after, while the wife of the deceased was walking along
with the other prisoners, she saw that Timoteo Ladores was carrying
her husband’s head, which had been separated from the trunk by
Calin’s orders. The head, which was subsequently presented to
President Donoso, was, on the following day, upon the arrival of the
party in the town, exhibited in the public square impaled upon the
point of a lance held by the defendant Gregorio Calin, while
President Donoso, in a loud tone, informed the crowd which had
gathered that this was the head of Capt. Pedro Almasan, a
disobedient man, a thief, and a brigand, and then asked whether he
had done right or wrong in having ordered that the head of the
deceased be brought to the town square, to which the crowd responded
that he had done well. It further appears that the members of this
expedition took possession of all the money, jewels, and other
property belonging to the deceased, and before leaving set fire to
the house in which he was arrested. Subsequently, 500 of the 650
pesos which had been found in the house of the deceased were returned
by President Donoso to the widow, who also succeeded in recovering
some of the stolen jewelry. The evidence shows that, with the
exception of the defendants Calin, Ballos, and Ladores, no other
members of the expedition took any part in the murder of the
deceased.

In the course of the trial and after the prosecution had rested,
counsel for the defendants moved that Petronilo Donoso, Antipatro
Ada, Alberto Aquiatan, Rufino Ciego, Gavino Balaizuche, and Pablo
Baldonido be discharged, there being no evidence against them, and
also moved that all the defendants be discharged upon the ground that
they were entitled to the benefits of the amnesty proclamation of
July 4, 1902.

The court below granted the motion of counsel for the defense in
part and directed that Pablo Baldonido, Gavino Balaizuche, Rufino
Ciego, and Alberto Aquiatan be discharged. The provincial fiscal
excepted to this ruling and the attorney for the defense excepted to
the ruling with respect to the other five defendants. The record
contains a writing filed by the provincial fiscal giving notice of
appeal from a judgment of acquittal of the court in favor of the four
defendants above named.

Upon the termination of the trial and in view of the evidence
adduced, the court below rendered judgment on March 26, 1903,
acquitting the defendant Antipatro Ada and condemning the others,
Petronilo Donoso, Gregorio Calin, Felix Ballos, and Timoteo Ladores,
to the death penalty, accessories, and costs, directing that they be
executed by garrote in such a manner and at such a time and place as
the court might designate, and directed that the said Ada be
immediately discharged.

The violent killing of a human being, committed with alevosia
by reason of the employment by the assailants of means and forms
which tend directly and especially to insure the consummation of the
crime without any risk to themselves which might arise from an
attempt at self-defense on the part of the person attacked,
constitutes the crime of murder, defined and punished by article 403
of the Penal Code, as the circumstance of alevosia qualifies
the crime and requires the imposition of a heavier penalty than that
corresponding to the crime of homicide.

There can be no doubt whatever as to the existence of the crime,
for Pedro Almasan was killed in the presence of a number of
witnesses, and some hours afterwards his head, separated from the
trunk, was exhibited in the public square of the town of Tubig, where
it was seen by all the inhabitants. Furthermore Gregorio Calin, one
of the defendants, confesses the commission of the crime.

The accused all plead not guilty. The defendant Gregorio Calin,
testifying as a witness in his own behalf, said that he killed Pedro
Almasan because the latter refused to go back to the town and to
accompany the party as directed; that as night was falling and the
return of the party was being delayed, and as the prisoner Almasan
even offered him money if he would release him, and he was
furthermore afraid that the partisans of Almasan might fall upon
them, he decided to kill him, and ordered his companion in the
expedition, Timoteo Ladores, to decapitate the corpse in order that
the .head might be presented to the municipal president, because the
dead man was the leader of the thieves who were wont to invade the
town of Tubig and rob the inhabitants, this being a notorious fact in
the said town; that before the expedition under his orders left the
town, President Donoso told him that if the leader of the thieves or
any of the thieves themselves should refuse to return to the town he
was to kill them; that the president did not at that time mention the
name of Pedro Almasan, although he subsequently said that he ordered
him to kill Pedro Almasan, the chief of the brigands; that for this
reason, upon returning to the town, he reported to the president that
he had killed the said Almasan, and that he had brought the latter’s
head with him; that the president expressed neither approval nor
disapproval of the deed; that the commanding officer of the town of
Tubig also gave him the same orders, to the effect that if he met
Pedro Almasan, the leader of the thieves, he need not bring him back
to the town, because all the members of Almasan’s band had been
robbing the inhabitants. This defendant in his testimony denies that
he killed Almasan on account of enmity or because the latter had
deported his father, but insists that he did so because he was so
instructed by the president and by the commanding officer in case
Almasan should refuse to accompany him to the town.

Petronilo Donoso, testifying as a witness, stated under oath that
when he surrendered to the American military authorities in January,
1902, he was by them appointed municipal president of Tubig, which
office he held until the time of his arrest; that Pedro Almasan in
April, 1902, was the leader of the people still in the hills, and was
engaged in stealing carabaos belonging to people who had surrendered
to the authorities and that, according to statements made by the
police, Almasan was the man who ordered these robberies; that these
statements were corroborated by people who came into the town from
the forests; that in the month of March preceding he had heard that
the thieves had cut the telephone wire and had carried it to the
forest; that on the 3d of April three men engaged in cutting nipa
leaves at a place called Palangui were surprised by the thieves, who
destroyed the leaves which they had cut, beat these men, and carried
two of them away; that on the 10th of the said month the said thieves
captured a girl who was out in the country gathering pili
fruit, and killed another woman, her companion, because she screamed;
that on the following night they entered the town and thrust their
lances through the walls of some of the houses where the people were
lying asleep; that on the 18th of the month while three persons were
engaged in cutting rattan by orders of the witness, at a place called
Bananacon, they were surprised and two of them were killed, and that
the survivor, by name Catalino, came in and reported the occurrence;
that on this account Lieutenant Collins ordered the witness to direct
that the police and volunteers go into the mountains for the purpose
of gathering in all the people they might find there so that they
might go on with the work to be done, and also directed that this
expeditionary force should endeavor to run down the thieves and
robbers, the leader of whom, according to information received, was
Pedro Almasan; that on a former expedition by the police and
volunteers the witness instructed the leader, Gregorio Calin, that in
case he should meet any thieves who refused to surrender and submit
to the military authorities he was to kill them; that the same order
had been given from time to time by the commanding military officer
at Tubig; that he did not repeat the order at the time of the last
expedition of the 24th or 25th of April, but simply told Calin to try
and get all the people in hiding in the forest to come into the town
so that they might dispose of the public work there pending, and told
him that if they did not want to come to let them stay; that when he
saw the head of the deceased, which had been brought in by orders of
Gregorio Calin, he asked the latter why he had brought it, to which
Calin replied that it was in order that the commanding officer of the
town might know that he had killed Pedro Almasan, the chief of the
brigands, who was no personal enemy of his; that when the head was
exposed in the public square of the town, he, the witness, asked the
crowd if they knew whose head that was, to which they replied in the
affirmative and added that when they were in the forests the deceased
tried to prevent them from coming into the town to surrender; that
Sergeant Gross returned the jewels which had been found in the dead
man’s house to the latter’s family and took charge of the cash there,
which amounted to some 500 pesos; that after the deatli of Almasan a
number of the leading men came into the town, as also some of the
members of the band of brigands and a number of revolutionists who
had not responded to General Guevara’s call upon them to surrender.

The witnesses Mariano Docena, Escolastico Balanong, Manuel Balmes,
and Alberto Aquiatan, who accompanied the expedition to the woods,
corroborated the statements of President Donoso and denied that they
had heard him give any instructions that any person was to be killed,
and stated that the orders were that the expeditionary force was to
require persons in hiding in the forests to return to the town,
although the witnesses were unable to say whether or not Calin had
received any private instructions. They testified further that they
were not present when Almasan was killed, as the first three
witnesses named were in another squad of the expedition, and the
last-named witness was in advance in charge of the persons who had
been arrested in Almasan’s house. Alberto Aquiatan also testified
that on the occasion of a former expedition they had arrested five
men who were subsequently recaptured from them by the thieves while
on the way to the town, and that their information was that these men
belonged to the gang led by the deceased Almasan.

Claro Guevara, the so-called commander in chief of the
revolutionists in the Island of Samar, testified that on April 25,
1902, Pedro Almasan was the municipal president of the town of Tubig
and at the same time a captain of infantry in the revolutionary army;
that he had never received any complaints against Almasan, and that
his reputation was that of an honest man who performed his duties in
good faith, even in the time of the Spanish Government ; that he had
been twice reflected municipal president of Tubig; that in
consequence of conferences between himself and General Smith an
armistice had been agreed upon from the middle of March to the 27th
of April, 1902; that Pedro Almasan knew that this armistice existed,
as appears from two letters which the witness had received from
Almasan and which he exhibited. (Record, pp. 140, 141.)

The evidence clearly shows the guilt of the defendants Pedro
Caliu, Felix Ballos, and Timoteo Ladores, of whom Calin was the first
one to run the deceased through with a lance, his attack being
seconded by the other two defendants named. This was done in the
presence of eyewitnesses to the crime and Avhile the deceased was
unarmed,bound elbow to elbow, and unable to defend himself.
Consequently there can be no doubt as to the guilt of the three
defendants as principals.

The evidence in the record does not show sufficiently that Almasan
was in fact the leader of a band of brigands engaged in pillage, for
the witnesses who make this statement testify by hearsay only. Even
if he were such, as the facts established by the evidence are that
the deceased when found by the policemen and volunteers gave himself
up and allowed himself to be bound without making any resistance
whatever at the time of his arrest or while on the road, and that he
made no attempt to escape from his captors, there can be no
justification for the murder of a man who surrenders without
resistance, no matter how great a criminal he may have been.

It is a legal principle universally recognized in all civilized
countries that the power to apply the laws in criminal cases, to
judge and to carry the judgment into execution, pertains exclusively
to the courts and the judges, and that no penalty can be imposed for
criminal acts except in accordance with the laws and by virtue of
judgments rendered by competent courts and judges.

No matter how severe the laws of war may be, some investigation,
if only the summary proceeding of a drumhead court-martial, is
required before a delinquent can legally be made to suffer the death
penalty. Consequently the killing of Pedro Almasan can not be
justified as a lawful act.

In the perpetration of this murder no aggravating circumstance
appears to be present. The circumstance of premeditation does not
exist because it does not appear that when Calin left the town of
Tubig in command of the expedition he had formed the premeditated
idea and determination to murder Almasan, for his overt acts up to
the moment of the commission of the crime do not show such an
intention. The circumstance established by article 11 of the Penal
Code must be applied in favor of the three defendants in mitigation
of the penalty by reason of their racial characteristics and
ignorance. Doubtless it was under the belief, which may or may not
have been erroneous, that Almasan was in fact the leader of a band of
brigands and they thought in good faith that they were justified in
killing him for the benefit of the town of Tubig, the inhabitants of
which had been victims of the crimes of the deceased. For these
reasons the penalty of the law must be imposed in its minimum degree.

With respect to Petronilo Donoso, there is not sufficient evidence
to convince us beyond a reasonable doubt that he had any
participation in the murder in question. His plea of not guilty is
not overcome by the sole testimony of Pedro Calin, unsupported by any
other evidence, apart from the fact that his testimony is that of a
codefendant and that he made self-contradictory statements. Further
more, Calin’s own explanation that they killed Almasan in order that
he might not delay them and that they might not be overtaken by
nightfall and because they were afraid of the prisoner’s partisans is
in itself sufficient to condemn him and is the best demonstration of
his guilt—that is, that in the commission of the crime he acted
upon his own spontaneous determination, and that lie was not acting
on the suggestion or inducement of any other person. Consequently
Donoso must be acquitted.

The evidence does not show that Alberto Aquiatan, Rufino Ciego,
Gavino Balaizuche, Pablo Baldonido, and Anti patro Ada were in any
way participants in the crime, and consequently the judgment of the
court below by which they are acquitted must be affirmed.

For the reasons stated we are of the opinion that the judgment of
the court below must be reversed and the defendant Gregorio Calin
condemned to the penalty of twenty years cadena temporal and
the defendants Felix Ballos and Timoteo Ladores to the penalty of
seventeen years four months and one day of cadena temporal,
all three of them to the accessories of civil interdiction during the
penalty and absolute perpetual disqualification and subjection to the
vigilance of the authorities during their lifetime and the
indemnification of 1,000 Insular pesos pro rata or in solidum
to the widow and heirs of the deceased and to the payment by each one
of one-fifth part of the costs of both instances. The other
defendants Antipatro Ada, Alberto Aquiatan, Rufino Ciego, Gavino
Balaizuche, and Pablo Baldonido are acquitted with the remainder of
the costs de oficio. So ordered.

Arellano, C.J., Mapa, Willard, and Johnson, JJ.,
concur.

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DISSENTING

COOPPER and McDONOUGH, JJ.,

We dissent from the opinion of the majority, as we believe that
the defendants are entitled to the benefits of the amnesty
proclamation of the States promulgated July 4, 1902.