THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. SARIKALA, DEFENDANT AND APPELLANT.

C. H. Cotton, a farmer of the American colony of Mumungan, Lanao, and his
adopted daughter Francisca, a girl of 11 or 12 years of age, were foully
murdered on or about January 14, 1917, while sleeping in their home. Sarikala, a
Moro laborer, was charged with the crime, was found guilty in the lower court,
and was given the death penalty. On review, as the proof is entirely
circumstantial in nature, we must describe antecedent events and closely analyze
the evidence.

And first, the motive. Sarikala had been employed as a laborer by Cotton. His
services had been found to be unsatisfactory. On Saturday, January 13, 1917,
Sarikala was discharged by Cotton who used violent and profane language. We
shall not repeat these words but they were such as naturally to arouse enmity. A
further point indicating ill-feeling on the part of Sarikala toward the little
girl is revealed by evidence to the effect that some time previous Francisca had
outraged the Moro’s religious belief by putting pork in his rice. The finger of
guilt thus points at Sarikala. But mere suspicion is not sufficient to
convict.

So next, the circumstantial evidence, deduced point by point—

First. Sarikala was familiar with the house of Cotton and his belongings. He
knew that the wire of a window which was found open after the murder could be
broken with pliers and he knew that Cotton had weapons which could be used to
commit the crime.

Second. Sarikala admitted having spent the night of January 14, 1917, in the
little house near Cotton’s residence.

Third. Sarikala left the scene of the murder immediately thereafter. Flight,
when unexplained, is a circumstance from which an inference of guilty may be
drawn. “The wicked flee, even when no man pursueth; but the righteous are as
bold as a lion.”

Fourth. On a white coat and khaki trousers belonging to Sarikala were found
blood stains. The medical expert testified from microscopical examination that
this was blood but that he could not tell whether it was the blood of a human
being or of an animal. On this point, Stewart on Legal Medicine (p. 322),
says:

“Under ordinary circumstances there is no difficulty in determining whether a
given stain is, or is not, a blood stain; and, in case the blood corpuscles are
intact the blood of reptiles or birds is readily distinguished from that of
mammals. But even under the most favorable conditions the determination of the
particular mammal from which a sample of blood has been obtained, is a matter of
great difficulty, calling for expert skill and very careful microscopical
examination. Even the most expert would hesitate to testify to the presence of
human blood, in distinction from dog’s blood, for example, when such testimony
would mean the conviction of one accused of murder.”

Fifth. The ghastly wounds were made either by the machete (knife or
bolo) of Cotton, or a weapon identical therewith. Sarikala knew of this weapon,
and after the murder, while in jail, told another person that Cotton’s weapons
could be found in the well. The weapons were discovered in the well.

Sixth. After arrest, Sarikala told a story implicating another Moro named
Mudag. But no motive for Mudag to commit the murder, unless it was robbery, can
be imagined and no other evidence against Mudag was presented.

Seventh. Sarikala made denials as to his ownership of the breeches, as to
having asked permission of another Moro Tayaba to sleep in his house, and of
having met Esperanza Andrews who lived nearby. The statements of Sarikala on
these points were found to be false. .

Eighth. Sarikala testified that the coat with the blood stains was one which
he had exchanged with his cousin. But the cousin was not introduced as a
witness. American courts have been generally much more liberal to the accused
for failure to produce evidence than English courts. The true rule is we believe
as stated by Dean Wigmore in his work on Evidence [4, p. 3148]:

“The failure to produce evidence, in general, other than his own testimony,
is open to inference against a party accused, with the same limitations
applicable to civil parties. Here the effect of the burden of proof has
sometimes tended to confuse. It is true that the burden is on the prosecution,
and that the accused is not required by any rule of law to produce evidence; but
nevertheless he runs the risk of an inference from nonproduction. This seeming
paradox, which has been already sufficiently noticed in treating of the general
principle, has misled a few courts to deny that any inference may be drawn.
(People vs. Cline [1890], 83 Cal., 374, 378; 23 Pac, 391 [larceny of
horse; defendant’s failure to call the alleged vendor, held to be open to
inference] ; State vs. Griswold [1900], 73 Conn., 95; 46 Atl., 829;
Price vs. U. S. [1899], 14 D. C. App., 391, 400 [failure to attempt to
prove an alibi]; Frazier vs. State [1893], 135 Ind., 38, 39; 34 N. E.,
817 [failure to produce any evidence]; State vs. Hinkle [1858], 6 Iowa,
385 [failure to explain where arsenic was bought] ; State vs. Hasty
[1903], —id.—; 96 N. W., 1115 [the absence of contradiction for certain facts
may be noticed, even though the accused is the only one who could contradict
them]; Com. vs. Webster [1850], 5 Cush., 295, 316; (quoted
supra.) Com. vs. Harlow [1872], 110 Mass., 411; Com.
vs. Brownell [1887], 145 id., 319; 14 N. E., 108; People vs.
Mills [1893], 94 Mich., 630, 638; 54 N. W., 488; State vs. Costner
[1900], 127 N. C, 566; 37 S. E., 326 [failure to call witnesses to explain
accused’s whereabouts] ; Jackson vs. State [1892], 31 Tex. Cr., 342,
344; 20 S. W., 921 [failure to account for possession of stolen goods].)”

“The inference (supposing the failure of evidence not to be explained away)
is of course that the tenor of the specific unproduced evidence would be
contrary to the party’s case, or at least would not support it.” (1 Wigmore on
Evidence, p. 377; see also Ann. Cas. [1914 A], pp. 907 et
seq., especially p. 932.)

Counsel de officio has presented the case for his client in a most
convincing manner. Cupidity, not revenge, he argues, was the motive. Not one of
the articles missing from the house was found in the possession of the accused.
Naturally, counsel dwells on the thin veneer of circumstantial evidence,
suspicion, conclusion, and conjecture. The brief concludes:

“It is not known who committed either the murder or the robbery. It might
have been Mudag, or it might have been Andrews, or it might have been someone
else. We may never know the author of the deed; certainly we do not know him at
this time. And, however much ill-founded suspicion there may be, certain it is
that Sarikala has not been proven to be the perpetrator of the crime.” .

To a considerable degree we are inclined to concur with counsel. We must
convict, if at all, on circumstantial evidence. Yet when we weigh the argument
for the defense against this circumstantial evidence, we find the balance
inclined towards guilt. We believe that for revenge Sarikala secured the
machete, broke open the window of Cotton’s house, entered,
treacherously, murdered Cotton and the little girl, threw all the weapons in the
well, left his bloody trousers in the hut, escaped, and then when arrested
endeavored to put the guilt on Mudag.

The crime charged was double murder with robbery. Robbery was not proved. The
trial judge took into consideration as to the death of Cotton the qualifying
circumstance of premeditation and the extenuating circumstance of passion and
obfuscation, and as to the death of the little girl the qualifying circumstance
of premeditation with the aggravating circumstance of nocturnity and no
mitigating circumstance. On close study we cannot agree that premeditation or
nocturnity are proved. As to the mitigating circumstance of passion and
obfuscation we likewise cannot agree that it can be taken into consideration
because more than twenty-four hours elapsed after the insults of Cotton to the
accused and the criminal act.

“The mitigating circumstance of passion and obfuscation cannot be considered
when a long period of time has intervened between the impulse which produces it
and the criminal act.” (Decision of the supreme court of Spain of March 29,
1882.)

On the contrary, we find present, alevosia, raising the crime to
murder, and the aggravating circumstance of commission in the dwelling of Cotton
and his daughter, but balanced by the mitigating circumstance of ignorance and
lack of education. Wherefore, we sentence the defendant and appellant to life
imprisonment (cadena perpetua), the accessory penalties provided by
law, to pay an indemnity of P500 to the heirs of C. H. Cotton and an indemnity
of P500 to the heirs of the girl Francisca, and to pay the costs of both
instances. So ordered.

Arellano, C. J., Torres, Johnson, Carson, Araullo, Street, and
Avanceña, JJ., concur.