G.R. Nos. L-7258 & L-7259. September 28, 1954

This is an appeal taken by Basilio Cabang from the decision rendered
by the Court of First Instance of Misamis Occidental in criminal cases
Nos. 3055 and 3056 thereof, which are interrelated. The defendants in
both cases, namely, appellant Basilio Cabang, and his children, Maximo,
Isabelo, Fausto and Avelino, all surnamed Cabang, are charged, in each
case, with murder. The victim in the first case is Andres Robiato. In
the second case, the victim is Tirso Sapar. In the two cases, Fausto and
Avelino Cabang were acquitted upon the ground of reasonable doubt,
whereas Basilio, Maximo and Isabelo Cabang were convicted of homicide in
case No. 3055, and of murder in case No. 3056, and sentenced in the
former to an indeterminate penalty ranging from 8 years of prision mayor to 16 years of reclusion temporal,
to indemnify the heirs of Andres Robiato in the sum of two thousand
(P2,000.00) pesos, without subsidiary imprisonment in case of
insolvency, and to pay each 1/5 of the costs, and in the second case to
19 years of reclusion temporal, to jointly and severally
indemnify the heirs of Tirso Sapar in the sum of (P2,000.00)pesos
without subsidary imprisonment incase of insolvency and to pay each 1/5
of the costs. Only Basilio Cabang has appealed from the decisions thus
rendered by the said court to the Court of Appeals. By a resolution,
dated August 13, 1953, the records of both cases were, however,
forwwarded to this Court by the Court of Appeals, upon the ground that
the latter believes, upon a review of said records, that appellant is
guilty of two crimes of murder and that he should be sentenced to, at
least, life imprisonment.

It is not disputed that on April 27, 1950, at about 6:00 p.m., Andres Robiato was killed in his house in the Barrio
of Sibula, Municipality of Lopez-Jaena, Misamis Occidental, by Maximo
and Isabelo Cabang, and that, immediately thereafter, these defendants
went to the store of Tirso Sapar, at sime distance away, and killed him.
The witnesses for the prosecution testified, and the lower court held,
that said killers were then accompanied by their father appellant
Basilio Cabang and his children Fausto and Avelino Cabang did not enter
the house of Andres robiato he (Basilio) carried the scythe, Exhibit
“A”, until he and his four children arrived at the foot of said house;
that he delivered the scythe to Isabelo and bade him to enter said house
and kill Andres robiato, but not his wife; that, thereupon, Isabelo
scaled the window of said house, with his brother Maximo, who had a
knife or bolo; that Basilio, Fausto and Avelino Cabang remained on guard
outside, holding stones; that with the sharp pointed instruments with
which they were armed, Isabelo and Maximo Cabang inflicted several
wounds upon Andres Robiato who died, in consequence thereof, almost
instantaneously; that before leaving the place, appellant inquired
whether Andres was already dead; that as Isabelo Cabang answered in the
affirmative, appellant and his children proceeded to the store of Tirso
Sapar, which Isabelo and Maximo Cabang entered; that after maltreating
several persons therein, Isabelo and Maximo Cabang killed Tirso Sapar,
within the view of Basilio, Fausto and Avelino Cabang, who stood at the
threshold of the store, watching tha attack; that then Basilio entered
the place to view the body of Sapar; and that he departed after assuring
himself that Sapar was dead.

Appellant merely set an alibi. According to the defense,
while appellant was near his yard, tethering several carabaos, he heard
screams for help coming from the place in which the house of Andres
Robiato is located, whereupon, overcome by fear, he and his children,
Fausto and Avelino Cabang, hid themselves in a mangrove swamp nearby,
until they felt it was safe to come out. Then, appellant claims, they
reported the matter to the chief of police.

It is obvious, however, that this alibi is far from sufficient to
off-set the testimony of Epifania Robiato, Basilio Dolorican, Macaria
Cabang and Lucia Ledaven who asserted positively that appellant was
present at the scene of the occurrence, under the conditions already set
forth. Moreover, said alibi becomes clearly untenable in the light of
the affidavit (Exhibit E) made by appellant, on April 29, 1950, before
the justice of the peace of Lopez-Jaena, confirming substantially said
the testimony of the witness for the prosecution. Although appellant
tried to repudiate said affidavit, by declaring that it was secured by
Lt. Juan Cabigon of the Constabulary through duress, it appears from the
testimony of said justice of the peace that appellant voluntarily and
freely swore to the truth of the contents of said instrument and
subscribed the same, after the peace officers who escorted appellant had
cleared the court room.

Lastly, it has been satisfactory proven that appellant and his
aforementioned children had the motive to commit the crimes charged.
Andres Robiato and the Cabangs, particularly appellant herein, were not
in friendly relations since January, 1950, owing to a dispute over a
parcel of land claimed by the Cabangs and held by Andres Robiato, whon
refused to vacate it. On top of this, Andres Robiato had an altercation
with Isabelo Cabang several hours before the occurrence, inasmuch as
Andres charged Isabelo with theft of coconuts. Again, a few days before
April 27, 1950, Tirso Sapar demanded payment of a debt of Isabelo Cabang
in the sum of P10.00, in such a manner, seemingly, that the sensibility
of the Cabang was hurt.

It is apparent from the foregoing, that the lower court has not erred
in accepting the theory of the prosecution and in rejecting appellant’s
alibi. We are of the opinion, however, that the crime committed against
Andres Robiato was murder, not homicide as held by the lower court, it
appearing from the acts of appellant and his children, that there was
evident premeditation on their part. Considering that the offenses were
perpetrated in the dwelling of the respective offended parties, the
proper penalty is death, which, however, can not be imposed owing to the
lack of the number of votes required by law therefor. Hence, appellant
should be sentenced to life imprisonment in both cases.

Thus modified as to the penalty imposed to appellant Basilio Cabang,
the decisions appealed from are hereby affirmed, therefore, in all other
respects, with costs against said appellant.

IT IS SO ORDERED.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes A., Jugo, Bautista Angelo, and Reyes J.B.L., JJ., concur.