G.R. No. L-1749. April 02, 1949
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. LUCAS GEMPES, MARCELINO BOSTILLO, AND PROCESO ROCERO, DEFENDANTS AND APPELLANTS.
TUASON, J.:
Mindoro, Lucas Gerapes was sentenced to reclusion perpetua and Marcelino
Bostillo and Proceso Rocero to an indeterminate penalty of from 10 years and 1
day of prision mayor to 17 years 4 months and 1 day of reclusion
temporal. The three accused were also sentenced to pay the heirs of the
deceased, jointly and severally, the sum of P2,000 and each to pay a
proportionate share of the costs. Eleuterio Escorpizo, co-accused with the
appellants, was acquitted for lack of sufficient evidence.
Sabino Almendras was picked up at his home in barrio
Pinagsabañgan, municipality of Naujan, province of Mindoro, by a group of nine
men on the night of July 28, 1943, and murdered before dawn of the next day in
sitio Viga in the same municipality. By their admission, the defendants formed
part of the band but denied that they took part or were present in the actual
killing.
The evidence for both sides is wholly oral Jose Nuñez, one of
the participants in the crime, gave the main evidence for the prosecution as
government witness. The salient points of his testimony are these:
He was a guerrilla. On July 28, 1943, at about 6:30 in the
afternoon, he and other members of his outfit were ordered by Sgt. Gempes to
accompany him to Sabino Almendras’ place, where they arrived at about 10 o’clock
p. m. There were nine of them altogehter, among them being Proceso Rocero,
Marcelino Bostillo, Eleuterio Escorpizo and Gempes. Upon reaching Sabino
Almendras’ house, Gempes told him and his other companions to get Almendras. He
did not go up the house, but saw Rocero, Crispulo Cantos and Melquiades Madula
bring Almendras down, bound with a piece of rope. Gempes was at the foot of the
stairs. He (witness) was armed with a rifle, Sgt. Gempes with a .45 caliber
pistol, Marcelino Bostillo a shotgun, Eleuterio Escorpizo a Chinese rifle and
Proceso Rocero an automatic rifle. While Almendras was being led downstairs, an
old woman, Almendras’ wife, with a lamp followed. From that place Almendras,
with his hands tied behind his back, was carried to Mapalo, Naujan, Mindoro,
where their camp was located, reaching the camp about one o’clock a. m. It was
Proceso Rocero who held the loose end of the rope and who, at the camp, tied
Almendras to a post. Lucas Gempes was with the band in returning to the camp
walking at the head thereof. Once Almendras was tied to a post, Sgt. Gempes told
Marcelino Bostillo to get a pick and a shovel and dig a grave near the Viga
river. Marcelino Bostillo obeyed and when he returned reported to Gempes that
the grave was ready. Then Gempes ordered the witness to kill the prisoner, but
he refused and was scolded. Thereupon Gempes assigned Crispulo Cantos and
Melquiades Madula to carry out the order, and Almendras was dragged by Proceso
Rocero to the place where he was to be killed followed by Gempes, Bostillo,
Escorpizo and the witness. That place was about 200 yards from the camp. At the
execution the witness mounted guard near the road. Beside the grave Almendras
was made to kneel by Gempes. When Almendras was in this position, Gempes gave
the order to kill him, and Padilla struck him with the butt of a rifle in the
head. Almendras fell into the grave, after which he was given a finishing blow
by Crispulo Cantos with a fixed bayonet. This was about four o’clock in the
morning. He had been under Gempes for two days when Almendras was executed, and
four days after that Captain Adeva arrived and he rejoined that officer.
Romana Añil, Sabino Almendras’ widow, 49 years old, testified
that at about 10 o’clock p. m. on July 28, her “husband was taken by one of our
enemies.” Of the men who came she recognized only Lucas Gempes; the latter was
at the foot of the stairs. She heard Gempes give the order to bring her husband
downstairs. Her husband and Lucas Gempes were political leaders of opposing
candidates before the war and were not on speaking terms. Her husband belonged
to the faction of Jose Basa and Gempes to that of Cirilo Gaba. During the
occupation both Gempes and her husband were guerrilleros but Almendras
was only a food collector.
Contradicting the most damaging details of the foregoing
testimony, Lucas Gempes said that he was a mess sergeant in the guerrilla unit
quartered in Mapalo, Naujan. The highest officer of that outfit was Lt. Roel
Beloncio. Next in rank to Beloncio was Sgt. Jimenez from whom he received
orders. As mess sergeant, his sole duty was to procure foodstuff for the outfit.
On July 28, 1943, he was invited by Sgt. Jimenez to point to him the house of
Sabino Almendras.” With him were Padilla, Porong, Melquiades, Bostillo, Sgt.
Jimenez, Nuñez and two others whom he no longer remembered. After pointing to
Jimenez Almendras’ house he was ordered by Jimenez to find food and he separated
from him, returning to the camp the following morning with rice and chickens. It
was only upon his return to the camp that he was informed Sabino Almendras had
been taken to Viga. Jose Nuñez, he said, lied, when he declared that he (Gempes)
was responsible for the seizure and murder of Almendras. He said Jose Nuñez was
“angry with him” because Nuñez had made love to his (Gempes’) daughter and tried
to kiss, embrace, and elope with her, When he heard, from his daughter, of what
Nuñez had done to her, he sent Nuñez away and told him “it was useless to
continue his advances with my daughter.” When he left, Nuñez warned, him, “You
will have your day.” Outside of the camp he was not authorised to carry firearm.
He was never assigned to go on patrol. He denied having threatened. Romana Añil
with bodily harm when she refused to give his soldier sugar. He said he never
asked sugar from her. He said that he and Sabino Almendras belonged to the same
Basa faction ever since he became an elector. He denied that he and Almendras
were political enemies.
Jose Nuñez’s and Romana Añil’s testimony is cogent, couched in
simple and natural language, and free from any sign of falsehood or
exaggeration. That Nuñez made an attempt to abuse Gempes’ daughter, if true,—and
it does not sound true—should have been a cause for atonement, and apology
instead of revenge. It is to be noted moreover that Nuñez testified, not against
Gempes alone but also against the other defendants with whom he is not alleged
to have had any unpleasantness.
It can not have been a mere coincidence that the men on whom
the accused pin the blame for Almendras’ death are either dead or fugitives from
justice. Quite apart from this, the imputation of the crime to Jimenez is
completely devoid of any color of verisimilitude. It has not been shown that
Jimenez had any resentment against Almendras. In fact nothing was said about his
antecedents, his assignments in the guerrilla organization, or his relation and
attitude towards Almendras. Granting that Almendras was a Japanese collaborator,
Roel Beloncio, the commanding officer of the outfit would have been the man to
decide on what should be done with him for his treason. One might well imagine
that he would at least be consulted in such a matter of high policy and of vital
concern to the underground resistance. The killing of Almendras was riot an
emergency affair demanding prompt action.
Considering all the circumstances, there was little likelihood
that Gempes went only as far as Almendras’ house to .point the place to the
murderers. Almendras appears to have been a prominent inhabitant of his barrio.
Certainly no guide was needed to locate his home in such a small community. With
respect to the other defendants, it takes more than a strange tale of accused to
overcome the positive testimony of eyewitnesses. It would have been strange if
after walking 28 kilometers both ways to kidnap Almendras these defendants had
abstained from going at least to the place of execution which was within a
stone’s throw from the camp.
Unlike Jimenez, Gempes had a personal motive to slay Almendras.
We believe the testimony of Almendras’ widow that the relation between the two
men was bitter. There is nothing in that testimony which has any legitimate
tendency to impeach her truthfulness and sincerity. Gempes’ denial has not
shaken the conviction that he and the deceased were political enemies. His
statement that he and the deceased had supported the same candidate for mayor
could have been easily corroborated, and his failure to present such
corroboration may properly be considered as affecting his credibility. On the
other hand, we do not believe Romana Añil would dare make a false assertion on a
matter of public knowledge, such as defendant’s political affiliation and
activities, which she knew could easily be disproved.
Marcelino Bostillo invokes the benefits of Amnesty Proclamation
No. 8. In this connection witnesses for the defendants, but not any of these,
gave testimony to the effect that the deceased had a pro-Japanese leaning.
Feliciano Garing testified that he was mayor of Naujan in 1943;
that during that year Almendras was a leader of the neighborhood association and
was briefed by him on his duties as such; that “some reports came to me that
Sabino Almendras violated the instruction of the guerrilleros;” that the
guerrilleros asked him how he “could amend the idea of Almendras, because
he was advising the people not to give foodstuff to bogus guerrillas, even an
egg.”
Dominador Buhat, 23 years of age, testified that Julian de Alva
requested him to transport two cavanes of palay on a sledge to the
guerrilla camp; that he was not able to obey this order because Almendras later
stopped him saying that he was going to give the cereal to the Japanese; that
Japanese came and carried the palay while he and Almendras were still
conversing.
Esteban Beloncio testified that he was a guerrilla captain in
1943 with camp at Mapalo, Naujan, of which the highest officer in charge was
Roel Beloncio; that “since 1942 he (Almendras) had a leaning towards the
Japanese which had been subsequently supported by the reports of some of my
soldiers”. He said that in 1942, when he was in hiding on his land in
Pinagsabañgan he “was repeatedly warned by his men to move his camp somewhere
for the simple reason that there were persons there who had been once in a while
reporting his presence in that place to the Japanese,” Almendras being one of
them; that when the enemy garrison was transferred to the crossing at Naujan,
they had. an encounter with the Japanese in Halauan; and that before; the
encounter he was already aware that Almendras had been frequenting and staying
in the garrison and Japanese had been visiting him in his house.
This charge of collaboration is far from satisfactory, let
alone convincing. Almendras’ widow denied that her husband was ever a
neighborhood association leader, and she ought to have known if he had been
appointed or acted as such. As to Buhat he is biased. It happened that this
witness was married to Gempes’ daughter, the girl Jose Nuñez is alleged to have
abused. Without any corroboration from a neutral source Buhat’s testimony is not
worthy of credence. In fact the testimony on its face is unbelievable. It is
highly unbelievable that, living with his family in a barrio far from a Japanese
garrison and without Japanese or police protection, a barrio to which the
guerrillas had full access, Almendras could have told guerrillas in their face
that they could not have his rice because it was intended for the enemy. No man
in his right senses would have committed and said a thing so suicidal. As to
Beloncio’s testimony, the same is vague, general, or hearsay. It does not ring
true. We are persuaded that, not only is Almendras’ alleged collaboration with
the Japanese a fabrication out of whole cloth but that he, too, was identified
with the guerrilla activities.
None of the defendants or their witnesses testified that
Almendras was liquidated on account of his alleged pro-Japanese attachment and
sympathy. Admitting for the purpose of this decision that Almendras was a
collaborationist, it does not necessarily follow that this was the motive for
his execution. Motives are a state of the mind. The accused better than any
other know the emotion that prompted their action. Since this is a matter that
lies peculiarly with their knowledge and since moreover this is an affirmative
defense, the burden is oil them to prove, or at least to state, which they could
easily do personally or through witnesses, that they killed the deceased in
furtherance of the resistance movement. That the killing was perpetrated with
this aim in view can not be left to inference from the mere fact that the
deceased was disloyal or was suspected of disloyalty to his country. This is
specially true where there is convincing and positive proof that a long standing
animosity existed between the principal accused and Almendras and that the
deceased was not, as a matter of fact, a pro-Japanese. It is not enough to cast
a hint or create a room for speculation that cooperation with the Japanese might
have been behind the crime, when the defendants by their plea indirectly but
clearly state the contrary. Neither does it suffice to show merely that the
victim was a traitor unless treason was in and of itself sufficient
justification or excuse for killing traitors.
Gempes’ testimony that as a mess sergeant he had nothing to do
with the military phase of the guerrilla movement, and was not even allowed to
carry arm outside the camp, explodes the insinuation that Almendras’ slayer was
prompted by his fraternizing with and giving aid to the Japanese, Execution of a
prominent citizen for treason is not decreed or carried out by a mere sergeant,
much less a mess sergeant whose assignments were confined to looking for and
preparing food for the men. Counsel for Gempes and Rocero must have realized the
untenableness and futility of this theory when, in a well written brief, they
reduced their plea for reversal to the proposition that their clients did not
participate in the concluding part of the crime.
The judgment will be affirmed with costs, except that the
indemnity will be increased to P6,000. It is so ordered.
Moran, C.J., Pablo, Bengzon, Briones, and
Montemayor, JJ., concur.
DISSENTING
PERFECTO, J.:
A complete summary of the testimonies is necessary to give a
clear idea as to the effect of the evidence and determine whether or not
appellants are guilty of murder or are rather entitled to the benefits of the
guerrilla amnesty.
The witnesses for the prosecution testified in substance as
follows:
- Jose Nuñez, 24, married.—He was a member of the resistance
movement, and on July 28, 1943, he was in their camp, in barrio Mapalo, Naujan,
Mindoro, which was under the charge of Sergeant Lucas Gempes, who, at 6:30 in
the afternoon of July 28, 1943, took him and others, including Proceso Rucero
and Marcelino Bostillo, to a place they did not know. They went to the house of
Sabino Almendras. With his hands tied with a piece of rope, Almendras was taken
down from his house, led by Rucero. The witness was then posted as guard in
front of the window of Almendras’ house, while Gempes was by the foot of the
stairs. It was about 10 o’clock at night when Almendras was taken. (2-5).
Almendras was brought by them to the camp at Mapalo, and they arrived at 1
o’clock in the morning. Upon their arrival Almendras was tied tea post by
Proceso Rucero. (6). Then the witness heard Gempes order Marcelino Bostillo to
get a pick and a shovel and dig a grave naar the Viga River. Thereafter,
Bostillo reported to Gempes that tile grave was already dug. (7). “Sgt. Gempes
ordered me to kill Sabino Almendras,” but the witness did not obey. “* * * I
asked him (Gempes) if there was an order from our headquarters and he got mad
with me.” “He told me that he does not like disobedient soldiers.” “He ordered
another one to kill Sabino Almendras.” He ordered Crispulo Cantos and one
Padilla to do so. Then Almendras was dragged by Proceso Rucero to the grave. The
witness, Lucas Gempes, Marcelino Bostillo and Eleuterio Escorpiso accompanied
the group while Almendras was being dragged. That grave was about 200 yards from
the camp. “I was again ordered to mount guard near the road.” (8). Gempes
ordered Almendras to kneel near that grave and then ordered Almendras to be
killed; so, Padilla (a soldier) hit him with the butt of a rifle on the head and
Almendras “dropped to the grave.” (9). Then Crispulo Cantos bayoneted. Almendras
and Gempes ordered the grave to be covered. Almendras was finally killed at
about 4 o’clock in the morning. Almendras was not investigated before he was
killed. (10). While the grave was being covered Gempes admonished them that
anybody who would reveal the incident would be killed. (11). It was Melquiades
Madola who, with two others, went up the house of Almendras to get him.
(13).The witness admitted having signed Exhibit 1, which was read
first to him by Judge Baldes before he affixed his signature. (13). From the
time he was dragged from the post where he was tied to the time he was taken to
the grave, Almendras did not utter any word; neither Gempes nor anyone said
anything to Almendras. (15). Almendras made no protestations. He did not utter
any word from the time he was taken from his house to the time he was taken to
the place where he was burried; if he did, the witness would have heard him
because he was then near. (15-16). The distance between the house of Almendras
and the post in the Camp where he was tied is about fourteen kilometers. The
trip from Almendras’ house to the camp was made from 10 o’clock to 1 o’clock on
the same night. “I was one of the accused in this case and I am now revealing
everything that is true.” The witness was not, however, included in the
information filed with the Justice of the peace of Naujan because the chief of
police, on the authority of the fiscal, excluded him from the information.
(16-18). The chief of police of Naujan told the witness, in September, 1946,
that, he was going to be accused. The chief of police did not tell the witness
that he would not be accused; he “did not promise me anything.” (18). The
witness was taken from his house in Naujan by the son of Almendras and by the
chief of police who read to him the complaint “and told me that I am one of the
accused.” (19). “After arriving in the municipal building he (chief of police)
took my affidavit and after taking my affidavit I was told to report to him
every other day for investigation.” (20). The witness was already arrested when
he executed Exhibit 1. (22). - Romana Añil, 49.—She is the widow of Sabino Almendras. At
about 10 o’clock in the evening of July 28, 1943, she was at her home with her
husband and their children, in Pinagsabañgan, Naujan, Mindoro. “My husband was
taken by one of our enemies.” “Lucas Gempes ordered the taking away of my
husband from our house.” She knew only Lucas Gempes among those who had taken
her husband. Gempes “was at the foot of the stairs.” “I heard his order to take
away my husband, to take him downstairs.” Her husband never returned since the
time he was taken. (1). Lucas Gempes and her husband were both political leaders
“and they had a misunderstanding.” They were not on speaking terms even before
the fatal night of July 28, 1943. They had not been in speaking terms even since
the election before the Japanese occupation. Almendras was a guerrillero,
during the Japanese occupation, but his task was that of a mere “food
collector.” One day Gempes sent a soldier to Almendras’ house to get some sugar;
but the witness told the soldier that they had no sugar at all because they had
given it to Captain Beloncio. “So Gempes arrived at our house and scolded us and
told us that someday something would happen to us, and as a matter of fact three
days afterwards my husband was taken away.” Almendras belonged to the political
faction of Jose Basa, while Gempes belonged to Jthat of Cirilo Gaba, who was the
mayor of Naujan when the Japanese arrived. Cirilo Gaba won during the election
before the war. Gempes and Almendras were already enemies even before the
election because both were political leaders of different factions. (2). But
they were not yet enemies before that election in which Gaba and Basa were
candidates. In the elections “my husband worked for Gaba.” That threat of Lucas
Gempes was not reported to any guerrilla because “we evacuated to Bauan,
Batangas, for fear.” “Immediately after they had taken away my husband we
evacuated to Bauan.” (3).
The witnesses for the defense testified in substance as
follows:
- Felicisimo Garing, 40.—In 1943, he was the mayor of Naujan.
Sabino Almendras was a leader of a neighborhood association during the Japanese
occupation. The witness gave instructions to Almendras that they were not
holding their positions to help the Japanese but to accomodate the
guerrilleros and that they should strive to help the latter; but,
thereafter, the witness received reports to the effect that Almendras had
violated the instructions of the guerrilleros and was advising the people
not to give foodstuffs to the guerrillas. (4). The witness, after conferring
with Lt. Jimenez, had a talk in a secluded place with Almendras, the former
telling him that Lt. Jimenez and his men were all angry at him. The witness
advised Almendras to be careful, and to talk with Lt. Jimenez so as to settle
the matter once and for all. Two or three weeks after said conference with
Almendras, the witness received another report regarding Almendras, and so he
advised those reporting to act accordingly. Almendras “told me that if all the
guerrilleros considered him bad he was ready to face them.” But Almendras
denied the charges of the guerrilleros. Almendras and Gempes belonged to
the same political faction of Basa. In the last election in which Jose Basa was
opposed by Cirilo Gaba for mayorship, Gempes worked for Basa. The witness was
then a candidate for vice-mayor in the Basa faction. (5). - Zenaida Gempes, 20.—Jose Nuñez “stayed in our house” in the
year 1943, one for more than two weeks and again for a week. “He was courting
me,” but she did not accept his love. (6). “One day during his stay in our house
he ordered a small child to wake me up and we conversed.” “He held my left arm
and pointed a gun at me forcing me to elope with him.” She refused and requested
him to let her loose, but he kissed her three times, embraced her and touched
her breast. At that time her companions were only two small children,—one being
six years old. Nuñez tried to lay her down, but he did not succeed. Nuñez
touched her private organ. She boxed him several times. It all happened at
noontime. (7). She reported the matter to her father and “he drove away Jose
Nuñez from our house; he was scolded.” “He went away.” He did not return after
the incident. (8). - Proceso Rucero, 25.—He was a guerrilla under Lt. Roel
Beloncio. Lucas Gempes was a mess sergeant. (8). On July 23, 1943, Sgt. Jimenez
gave orders to get ready. “We were ordered to go to the road” about 10 o’clock
in the evening. “When we reached the school building of Pinagsabañgan, Sgt.
Jimenez ordered us to get ready because we are going to get somebody.” Madola,
Porong and the witness went up the house to get the man. (9). “We tied him.” “We
brought him downstairs.” They took him to the camp of Mapalo. When the man was
taken to the camp, Sgt. Lucas Gempes “was not with us, * * * because Sgt.
Jimenez had ordered him to look for food.” They arrived at the camp at about 3
o’clock in the morning. It would take two and a half hours walk to cover the
distance from the road where Jimenez sent Gempes to look for food, up to the
camp. Later on, Sgt. Jimenez and Porong took the man, who was brought to the
camp, but the witness did not know where he was taken. Afterwards, Jimenez,
Padilla, Madola, and Porong returned and said that “they have finished their
mission.” They returned about half an hour after they had taken away the man. At
the time the man was taken away by Sgt. Jimenez and his companions, Marcelino
Bostillo was engaged in cooking food because he was the kitchen police, while
Nuñez also remained in the camp. (10). The witness admitted having signed the
affidavit, Exhibit A. (12). - Dominador Buhat, 23.—Julian Alva, a guerrilla, went to his
house to entrust to him two cavans of palay, but he refused because he (witness)
was not living in that house. After his refusal Alva ordered him to secure a
sled to transport the palay to the camp. (23). The witness was not able to
transport the palay to the camp because “Sabino Almendras arrived and told me
not to transport the palay because he would give them to the Japanese.” The
palay “was taken by the Japanese.” “While we were conversing the Japanese
arrived and we left upon their arrival.” The palay was given to the Japanese by
Sabino Almendras. (24). Julian D. Alva and the witness left the place as soon as
they heard the sound of the motor of the truck of the Japanese. (26). They took
cover in a banana plantation nearby. (27). They were not overtaken by the
Japanese. (28). - Esteban Beloncio, 52.—He was a guerrilla captain in a camp
in Mapalo, Naujan. About July, 1943, the camp the was under the charge of Roel
Beloncio. Jimenez was a sergeant. (32). Jimenez was the platoon leader of
Company C. Lucas Gempes was a mess sergeant in the battalion headquarters; and,
under military rules, as mess sergeant he had no authority to order an arrest.
(33). The witness did not receive any sugar or foodstuff from Sabino Almendras,
who had no connection with the resistance movement. Almendras had never been
authorized by the guerrilla to act as food collector. (33-34). Since 1942,
Sabino Almendras had shown a leaning towards the Japanese, and this fact was
supported by reports received from soldiers. (35). The witness had been warned,
while he was hiding in his land in Pinagsabañgan, to move his camp somewhere
because there were persons who had been reporting his presence to the Japanese,
and among those persons, according to report received thru the S-2, was
Almendras, whose house was frequented by the Japanese. (35-36). - Marcelino Bostillo, 48.—In July, 1943, he was a guerrilla
under the command of Lt. Roel Beloncio; he was a private assigned as a kitchen
police. Lucas Gempes was a mess sergeant. At about 9 o’clock on July 28, 1943,
the witness received orders from Sgt. Jimenez to cook, food earlier because they
had a mission to undertake at that time. (41). Nine men, commanded by Sgt.
Jimenez, went to the road. Gempes pointed to witness the house of Sabino
Almendras. Then Sgt. Jimenez ordered that Almendras be taken, and it was
Telesforo Cantos, one Madula and Rucero who went up the house. Almendras was
taken to the camp; but Lucas Gempez did not go with the troop because he was
ordered by Sgt. Jimenez to procure food. (42). Proceso Rucero was the one who
led Almendras. Almendras was taken by Sgt. Jimenez, accompanied by Padilla,
Telesforo Cantos and Madola, and brought to another place unknown to the
witness. (43). When Sgt. Jimenez and his companions returned at the break of
dawn, Almendras was no longer with them. Since the time they left till the time
they arrived, Rucero was in the camp. Gempes returned to the camp at about 10
o’clock the next morning, bringing with him five gantas of rice and ten
chickens. In the camp there was no pick or shovel. (43-44). - Lucas Gempes, 52.—On July 28, 1943, he was mess sergeant in
a guerrilla outfit in Mapalo, Naujan, under Lt. Roel Beloncio. (46). Sergeant
Jimenez followed Roel Beloncio in rank. As mess sergeant, the witness was the
procurer of foodstuffs for their outfit. On July 28, 1943, the witness was
invited by Sgt. Jimenez to point to him the house of Sabino Almendras; later,
the witness received information that Almendras “was taken.” (47). After
pointing to them where the house of Almendras was Gempes was ordered by Sgt.
Jimenez to procure food. The next morning he brought rice and chickens. (48).
Jose Nuñez, the witness for the prosecution, was angry at the witness. (49). He
was angry because Nuñez offered his love “to my daughter,” he tried to elope
(kidnap) with her and also to kiss and embrace her. “My daughter told me those
things.” So, “I drove Jose Nuñez away because I told him it was useless to
continue his advances with my daughter.” When Nuñez left, he said to Gempes;
“You will have your day.” (50). It is not true, as testified by Romana Añil,
that the witness ever asked sugar from her or threatened her and her husband
with bodily harm. (51). Almendras and the witness belonged to the same Basa
political faction. There was no trouble between witness and Komana Añil’s
husband. (52). The witness was in speaking terms with Almendras on the day he
received order from Sgt. Jimenez to secure foodstuffs. The witness approached
barrio lieutenant Miguel Abocal and Vicente Garibay and obtained from them rice
and five chickens. (15). He secured ten gantas. Later he returned to the camp at
about 10 o’clock in the morning. He did not inquire about what had happened, to
Almendras because he was afraid; Sgt. Jimenez used to slap soldiers. Once “I was
kicked by him.” (16).
Romana Añil, recalled as a rebuttal witness, denied that
Almendras was ever appointed leader of a neighborhood association during the
Japanese time. (16).
Jose Nuñez, also on rebuttal, denied having made love to
Zenaida Gempes. At the time Almendras was killed, Sgt. Jimenez was not in the
camp. Sgt. Jimenez is now dead. (17).
After a careful and thorough consideration of all the evidence
on record, we have come to the following conclusions: (a) That none of
the three appellants ever took part in the killing of Sabino Almendras;
(b) That their participation in the taking of Almendras from his house
could not make them accountable for the killing, there having absolutely no
evidence to show that they took part in any conspiracy with the actual killers
to kill Almendras; and (c) That, at any rate, it has been conclusively
proven that Almendras had been a food-supplier of the Japanese and all those who
took part in his arrest and in his execution were active members of a guerrilla
organization and, consequently, all of them, including the appellants (assuming
that the appellants took part, in the killing) are entitled to the benefits of
the guerrilla amnesty proclamation.
The alleged participation of the three appellants in the
killing of Almendras is made to stand exclusively on the uncorroborated
testimony of Jose Nuñez, the lone witness called by the prosecution to testify
on the point. But the testimony of Nuñez is highly unconvincing.
According to Nuñez, from the time Almendras was taken from the
latter’s house at about 10 o’clock at night until he was finally killed at about
4 o’clock the next morning, the victim did not make any protestation at all; he
did not even utter a single word. Nuñez would want to make us believe such an
unusual thing as the supposed behavior of Almendras actually acting like the
meekest beast of burden.
According to the. evidence, Almendras was not a deaf-mute or
affected with infantilism or idiocy, to the extent of, having made him lose all
urges to resist or avoid the advent of his impending death. This fact miserably
shakes the credibility of Nuñez. Again, Nuñez would want us to believe that he
was the first one ordered by Gempes to till Almendras, but that he refused to
obey and even asked him if there was an order from the headquarters to kill him
and, according to Nuñez, although Gempes got mad, the Latter merely limited
himself to stating that he did not like disobedient soldiers, and then ordered
another to kill Almendras. If this story is to be accepted, it is necessary that
the details should be satisfactorily explained. Now, why is it that, after
getting mad at Nuñez for his alleged disobedience, Gempes merely contented
himself with the casual remark that he did not like disobedient soldiers? A
military superior would certainly have not failed to take a disciplinary measure
against a defiant disobedience by a subordinate. Nuñez has completely failed to
offer any explanation why no such disciplinary action was taken against him. The
absence of such explanation makes his story incredible.
Nuñez testified that he demanded that Gempes produce an order
to kill Almendras, from the headquarters. He failed, however, to say whether
such an order was actually produced or not; and if no such order was produced,
it is incomprehensible how other soldiers in the group could have obeyed the
supposed order to kill Almendras. The most natural thing that could have
happened would have been for all the other soldiers to likewise refuse to
execute Gempes’ order, because all of them must have been aware of the grave
responsibility involved in an unauthorized killing. If, however, such an order
was produced, then again Nuñez would have explained why Gempes had not insisted
that Nuñez should carry out his order. But Nuñez had not given any explanation
as to this.
The testimony of Nuñez which, as already indicated, is tainted
witli unexplained improbabilities, is contradicted by those of Proceso Rucero,
Marcelino Bostillo and Lucas Gempes,—all of them belying the declaration of
Nuñez as to the appellants’ alleged participation in the killing of Almendras.
Besides, it has been proven by the testimony of Zenaida Gempes and Lucas Gempes
that Nuñez, because of his having been rejected by Zenaida in his courtship and
his having been driven by Lucas Gempes from their house after Zenaida had
denounced the improper advances he made to her, had a grudge against the
Gempeses, and so it is not improbable that Nuñez testified against the
appellants because of this grudge. This improper motive is bolstered up by his
desire to free himself from any blame for the killing by throwing the
responsibility upon the appellants. As a matter of fact, Nuñez was not included
in the information, and at the time he was testifying he could not have failed
to feel conscious of the danger of being prosecuted later if he should fail to
shift all the blame on the appellants.
It is a highly dangerous precedent to punish three human,
beings with life imprisonment simply on the uncorroborated testimony of such a
kind of a witness.
Through the testimony of Romana Añil, widow of Almendras, the
prosecution tried to show and claim political enmity between Romana’s husband
and Gempes based on the supposition that both belonged to opposing political
factions. But Romana’s testimony, besides being hearsay, is weakened by her own
contradictory statements as to which of the opposing political factions Gempes
really belonged. On the other hand, by the testimony of Felicisimo Garing (mayor
of Naujan) and that of Gempes himself, it has been established that Gempes
belonged to the political faction of Jose Basa, the same political faction to
which Almendras, according to his widow, also belonged. Felicisimo Garing could
not have been mistaken on this fact because he himself happened to be the
candidate for vice-mayor in the same ticket where Jose Basa was then the
candidate for mayor.
Through the testimony of Dominador Buhat, corroborated by that
of Esteban Beloncio (a guerrilla captain in the Camp at Mapalo, Naujan) it has
also been established that on one occasion two cavans of palay, which Julian
Alva (a guerrilla) wanted to transport to the guerrilla camp, were instead taken
by the Japanese because Almendras prevented the taking of that palay to the
guerrilla camp for the reason that he wanted it to be delivered to the Japanese
who soon after arrived in a truck. Now, considering this fact as well as the
well-known leanings of Almendras towards the Japanese since 1942 (as reported to
Capt. Esteban Beloncio by his soldiers) and also the fact that those who had
taken and killed Almendras were all members of the guerrilla organization in the
camp at Mapalo, Naujan, the conclusion is unavoidable that the killing was
effected in the furtherance of the resistance movement and, therefore, cannot be
punished under the terms of the guerrilla amnesty proclamation.
For all the foregoing, the appealed decision must be set aside,
and the appellants acquitted and immediately released from confinement.
Paras, and Feria, JJ., concur.