G.R. No. 1581. March 15, 1904

On December 3, 1902, the provincial fiscal of Occidental Negros filed an
information in the Court of First Instance of that district charging Pedro Git,
Laurencio Sernal, Julio Occia, Pedro Mijares, and Laureano Mijares as
principals, and Basilio Situado, Petronilo Berdaga, and Eugenio Berdaga as
accessories after the fact, of the crime of murder, in that one Saturday, prior
to the 11th of November, 1902, for the purpose of appropriating to themselves
the lands of Miguel Pastor and of preventing him from presenting any claim
whatever, Pedro Mijares and Laureano Mijares, his brothers-in-law, who were
working the said lands, proposed to Pedro Git and Laurencio Sernal, while the
latter were in the house of the said Laureano, that they kill said Pastor for
the sum of 100 pesos, instructing them to kill the said Pastor with clubs for
the purpose of avoiding the shedding of blood by which the crime might be
revealed and in order that his death might be attributed to the cholera, which
was then epidemic; that the said Git and Sernal accepted the proposition and
resolved to carry it into effect at 12 o’clock on the said 11th day of November
while Miguel Pastor was sound asleep in his house at Bontot in the township of
Escalante of that district, in which house they were living as laborers employed
by Pastor; that Pedro Git struck Pastor a blow on the back of the neck with a
club, being then and there aided by Julio Occia, who was present with a rope
provided by Pedro Mijares for that purpose, with which rope the deceased was
bound while attempting to defend himself after the blow was struck; that after
Pastor was killed his body was buried in the cemetery with the aid of Basilio
Situado, Petronilo Berdaga, and Eugenio Berdaga, the first of whom was suspected
of having sustained illicit relations with the wife of the deceased, who on that
account had discharged him some days before the occurrence; that the second
person above named had found spots of blood in the said house but failed to make
a proper investigation, thereby giving occasion for the concealment of the
crime. The fiscal asked in his information that the youth, Paulo Sernal, be not
prosecuted, as his participation in the crime was not proven.

The complaint having been filed, Paulo Sernal was discharged, and the defense
then asked that Pedro and Laureano Mijares be given a separate trial, which
petition was granted. Afterwards the case was dismissed as to the defendant
Petronilo Berdaga at the request of the prosecuting attorney, and he was
accordingly discharged.

Mr. G. A. Barber, a sanitary inspector, having been informed by some of the
inhabitants of the place that early on the morning of November 12, 1902, a man
had been buried in the cemetery under suspicious circumstances, reported the
case to the local president of the town of Escalante, who, accompanied by his
secretary, the said inspector, and the justice of the peace, with his witnesses,
immediately proceeded to make an examination; they went to the grave where they
observed spots of blood on the ground. The body having been exhumed, it was
found to he that of Miguel Pastor. When exhumed the corpse was wrapped in a mat.
An examination of the body showed that a piece of rope was wrapped around the
neck, one end of it being fastened to the left arm, the other free end having
been apparently broken. A wound was found on the back of the neck and the right
cheek, right eye and nose were bruised.

Claro Singson, the municipal president, and his secretary, Juan Alarcon,
stated in their testimony, in addition to the facts above related, that
Marcelino Gamao, a member of the municipal council, also stated that he had been
informed by the gravediggers that spots of blood were found around the grave in
which Miguel Pastor was interred, and consequently, in view of the condition in
which the body was found when exhumed, he directed the arrest of the men who had
buried the body, the result being the detention of Pedro Git, Pedro Mijares,
Basilio Situado, and Laurencio Sernal. This witness testified further that when
exhumed the body was dressed in an undershirt and trousers and that there was a
white stocking on one of the feet; that the grave was only two or three spans in
depth; that after the place was inspected and an examination of the body made by
Dr. Barber, the corpse was reinterred; that about 10 o’clock on the morning of
the 12th of November, Apolonio Quintao, a corporal of the Constabulary force,
reported to the local president and to the justice of the peace that he had
arrested Laureano Mijares, a member of the town council, because Pedro Git and
Laurencio Sernal had stated that they had killed the deceased, Pastor, the night
before, by orders of the said Laurencio, in consideration of the compensation of
100 pesos.

The witnesses Domingo Sabete, Fabio Dotdot, and Anastacio Cobete testified
that, according to information which they had received, Miguel Pastor was killed
by Git and Sernal, workmen in his employ, by order of Laureano Mijares. The last
witness testified further that the house of Pedro and Laureano Mijares was about
200 brazas away from that of Miguel Pastor. Petronilo Berdaga testified that on
the morning of November 12 Pedro Git came to his house and told him that Miguel
Pastor had died of cholera and asked him to assist in the burial of the body in
the cemetery, but that the witness, being ill, excused himself and ordered his
brother Eugenio Berdaga to go with Git and bury the body. That at daybreak he
went to the chapel but found that the body was no longer there, but met Pedro
Git, Laurencio Sernal, Julio Occia and his brother Eugenio, and also Basilio
Situado, who were coming from the direction of the cemetery; that as he observed
spots of blood on the floor of the building, he asked from whence this blood had
come, to which Git replied that they were part of the fecal matter which had
come from the corpse, which statement the witness believed; that after he was
arrested and taken to the Constabulary barracks he heard Pedro Git, Laurencio
Sernal, and Julio Occia state to the Constabulary corporal that Git was the man
who killed Pastor with the aid of Scrnal and Occia, by order of Laureano and
Pedro Mijares; that Git owed the deceased a certain sum of money which he had
refused to pay; that after Git’s arrest a pair, of trousers, an undershirt, and
a shirt of the deceased were found in his possession, which garments the witness
recognized, he also being a laborer employed by Pastor.

Laurencio Sernal testified that he lived in the house of the deceased with
his brother and Paulo Sernal, and that while asleep on the night of the
occurrence he was aroused by a loud cry from Pastor, who called for assistance;
that he immediately arose for that purpose and, there being no light, he crawled
along the floor on his hands and knees; that just at this time Pedro Git, who
was also in the house, lit a light and then witness saw the corpse of Miguel
Pastor lying on the floor, face upward, with a rope fastened to one of the arms
and wrapped several times around the neck; this witness further testified that
Git was not in the house before the witness went to bed and that he had not seen
him up to the time that the light was lit and that he believes that Git was the
man who killed the deceased and struck the blows, the noise of which lie heard
immediately after the cry; that the said Git immediately left the house and
shortly after returned with Pedro Mijares, who was desirous of determining for
himself whether Pastor was dead or not, and that upon being convinced that he
was, he said: ” Pardon me, brother Miguel, for the harm which I have done thee;
” that Git and Pedro Mijares then went away and shortly after returned bringing
some pieces of split cane with which they made up a sort of crate in which they
placed the body after wrapping it in the mat; that thereupon the witness, Pedro
Git, Basilio Situado, Eugenio Berdaga, and Julio Occia took the corpse to the
cemetery; that Pedro Mijares also saw the rope wrapped around the neck of the
corpse; that Situado and Berdaga were called by the said Git and Mijares to help
carry the body; that about 4 o’clock on the afternoon of the same day while
passing along in front of the house of Laureano Mijares, Pedro Mijares invited
the witness to come in, and upon his entering, the said Pedro, in the presence
of Laureano, told him that if anything happened that night in the house of
Miguel Pastor that he was to keep quiet about it; the witness replied that lie
did not understand what they meant; that when the light was lit and he saw
Pastor there dead he also saw Julio Occia squatting near the body; that Paulo
Sernal, who also slept in the house, did not awake at that time.

Paulo Sernal testified that on the night of the 11th of November lie went to
bed beside Miguel Pastor and did not observe that the latter arose from the bed
to go to sleep on the floor; that when he awoke on the following morning he
missed Pastor, and shortly after he was arrested, together with his brother
Laurencio; that he then heard that Pastor had been beaten to death, and that
when Pedro Git, his brother Laurencio, and Julio Occia testified before the
justice of the peace the witness heard that the latter were the persons who had
been guilty of the crime; this witness further testified that he and the persons
last named lived in Pastor’s house.

Upon this testimony the judge below, considering the crime of murder proven,
as also the guilt of Pedro Git as principal and also that of Laurencio Sernal
and Julio Occia as accessories after the fact, condemned Pedro Git to death and
Laurencio Sernal and Julio Occia to the penalty of ten years of presidio
mayor each, with the accessory penalties, and all three of them to the
payment to the heirs of the deceased of the sum of 1,000 pesos each and to the
payment of three-fifths of the costs. Basilio Situado and Eugenio Berdaga were
acquitted, and two-fifths of the costs were declared de oficio.

Against this decision there was no appeal by the provincial fiscal or the
defendants Sernal and Occia, and accordingly with respect to them the judgment
of the court below is final and the case is before us solely with respect to the
conviction of Pedro Git, who was condemned to suffer the death penalty.

The facts above stated show that the crime which was committed is murder. The
evidence in the case shows that on the night of the 11th of October, 1902, while
Miguel Pastor was sound asleep on the floor of his house, he was struck on the
back of the neck with a piece of hard wood and a rope immediately wrapped around
his neck, one end of which was fastened to his left arm; that the deceased,
being for this reason unable to defend himself or to arise, was strangled to
death. The postmortem examination shows that his death was caused by the blow on
the neck back of the right ear about two inches from the petrous part of the
temporal bone, and also by asphyxia, he having been strangled to death with the
said cord; that the wound was inflicted with a sharp, pointed instrument which
penetrated to the brain.

It is therefore evident that Miguel Pastor was killed under circumstances
constituting alevosia, the crime having been perpetrated while he was
asleep, and consequently the assailant without any risk whatever to himself
succeeded in treacherously committing the crime.

The defendant Pedro Git pleaded not guilty, but in his testimony as a witness
for the defense said that he killed his master, Miguel Pastor, on the night in
question in obedience to orders received from Pedro and Laureano Mijares,
brothers-in-law of the deceased; that he struck the deceased on the neck with a
piece of guayaba wood, used for an axe handle, which was about as thick
as a man’s arm and while the deceased was sound asleep in his house; that the
Mijares brothers, having met the witness in the house of Laureano to which he
had been invited by Pedro, after giving him several drinks of wine, proposed to
him that he kill Pastor; that although he refused to accede to this proposition
at first, he consented after they offered him a reward of 100 pesos; that they
then encouraged him, telling him not to be afraid because one of them was a
member of the town council and that it would be easy to attribute the death to
the cholera, which was then epidemic in the town; that after he was drunk,
Laureano gave him a rope with which to tie the victim in case of resistance, and
a box of matches with which to make a light for the purpose of finding the place
where Pastor was lying; that accordingly, at midnight, he went to Pastor’s
house, and having found the place where he was lying, struck him a blow on the
neck with the club he was carrying; that Pastor cried out for help, whereupon
the witness immediately tied the cord he was carrying to one of the hands of the
deceased and then wrapped it several times around his neck and strangled him;
that by this means he killed Pastor and while committing the crime called for
Laurencio Sernal and Julio Occia, who came to his assistance, holding the
deceased by the feet and hands; that after Pastor was dead he reported the fact
to Laureano and Pedro Mijares and the latter provided the bamboo with which the
body was crated and prepared for burial; that they then called for Basilio
Situado and Eugenio Berdaga, who, together with the witness and the said Occia
and Sernal, carried the body out to the cemetery and buried it.

The defendant Pedro Git has been unquestionably the material executor, the
conscious instrument of the crime planned by the Mijares brothers, he having
committed it in consideration of the sum of 100 pesos which they promised to pay
him, believing that because of the prevalence of the cholera he could commit the
crime with impunity by attributing to that disease the sudden death,
disappearance, and burial of his victim.

The guilt of the defendant Git is unquestionable, and is fully proven not
only by his own confession but also by the testimony of his codefendants and
that of several witnesses who heard his statements before he testified in court.
The contention that he acted in proper obedience to orders is untenable, because
the order which he received was plainly and manifestly unlawful. The guilt of
the Mijares brothers will be determined in a separate case which is being
prosecuted against them.

No mitigating circumstances can be considered to have been present in the
perpetration of the crime. The mitigating circumstance of drunkenness can not be
considered, both because it does not appear that the vice of drunkenness was not
habitual to the defendant, and also because it appears from the evidence that a
considerable quantity of wine was given to Git purposely, which he voluntarily
accepted before deciding to commit the. crime. Against the defendant we must
consider aggravating circumstances Nos. 3, 7, 15, and 20 of article 10 of the
Penal Code; the crime having been committed in consideration of the promised
remuneration of 100 pesos, with evident premeditation, and in the darkness and
silence of the night and in the dwelling of the deceased. Consequently the
judgment of the court below is supported by the evidence and is in accordance
with the law, and, therefore, for the reasons stated, we are of the opinion that
the judgment must be affirmed with respect to Pedro Git, with one-fifth part of
the costs, the death penalty to be executed in accordance with the provisions of
Act. No. 451 of the Civil Commission, enacted September 2, 1902.

Judgment will be entered accordingly and the case remanded to the trial court
with a certified copy of this decision for execution. So ordered.

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