G.R. No. L-1441. April 07, 1949
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. MIGUEL M. MORENO (ALIAS CAPTAIN MORENO), DEFENDANT AND APPELLANT.
PERFECTO, J.:
sentence in the San Ramon Penal Farm where he was assigned as assistant chief of
the machinery and engineering division. He says that he was also designated by
USAFFE Major Pitcher to take charge of the observation squadron of the Penal
Colony, and, as such observer, he was ordered, together with the superintendent
of the institution, Severo Yap, to burn the wharf in Recodo, get some machinery
and truck nearby and bring them to San Ramon. At the time there was a jail break
and so he, together with some guards, was ordered to apprehend the escapees.
According to him, he was later on pardoned by President Quezon, and the order of
pardon was received by the superintendent, of the colony, a copy of which was
handed to him in the early part of 1942.
After the Japanese had landed in Zamboanga, defendant was made
a commander of the “Kaigun Juitai”, a military organization attached to the
Japanese naval police of Zamboanga. As such he was authorized to possess a .45
caliber revolver, a Japanese saber, and a “caborata” and to wear a uniform of
blue denim shirt and pants and an olive green cap with an anchor at the front.
He allowed his beard to grow down to his chest.
Accompanied by his daughter Olimpia, Ramon B. Alvarez went in
the afternoon of November 16, 1943, for a friendly visit to Otto Galle, a
German-born naturalized Filipino citizen and owner of a one thousand hectare
coconut plantation known as Patalon. Ramon was met by Heddy, Galle’s
daughter and wife of Dr. Eduardo del Rosario. She told him that if he had not
cone, she would have called for him. She brought him to an adjoining building
which housed the canteen where Dr. Del Rosario’s house was also located. Del
Rosario handed a note conceived as follows: “I would like you to come here at
Cadalogan at 6 a.m., sharp for a conference. In coming to that place just come
alone. (Sgd.) Berenguer, 1st Lt. Infant.”
Because the letter was delivered by one Ernesto, a nephew of
appellant’s wife, Mrs. Del Rosario had misgivings about the authenticity of the
letter. Alvarez suspected it to be fake and as a trick of appellant to meet Del
Rosario, because he knew that Lieutenant Berenguer was then in Dipolog and could
not be in Cadalogan, within the jurisdiction of Zamboanga. Besides, Berenguer
was only a second infantry lieutenant.
The fact that the owner of the Patalon plantation used
to give the guerrillas a monthly contribution of P150, some medicine, coffee and
other foodstuffs and the fact that some members of the resistance movement used
to visit Galle’s house strengthened the worries and fears of Alvarez and the Del
Rosario spouses. Alvarez advised that the note must not be answered and that a
sailboat be prepared in order to leave the place when necessary. Otto Galle
requested Alvarez to pass the night in Patalon. Although he himself
entertained fears that he might be implicated if found in the Galle residence,
Alvarez consented to remain in the place for the night with his daughter.
After supper and when Alvarez had already retired to the room
assigned to him, a voice from the yard outside was heard calling for Dr. Del
Rosario. The latter went to a window and asked who was calling, and the answer
was: “The one who arrived,” which was understood by the inmates of the house to
be that the one who answered was or pretended to be a guerrilla.
Those in the house assembled in the sala. Heddy, del Rosario
came telling that: “it is exactly 10:05.” After a conference, Del Rosario took
his wrist watch and handed it to Alvarez telling him; “give it to them.” Alvarez
was about to follow the suggestion but in the middle of the stairs he became
afraid and told Galle that he could not comply as it was dangerous for him to do
so. Galle took the wrist watch and went downstairs with a light in his right
hand, but returned because he was ordered by the men outside to put out the
light. When he went down again he was followed by Alvarez. There he met the
appellant.
Appellant Moreno asked Alvarez for Del Rosario and ordered
Galle to go with him outside. Galle refused and so Moreno struck him. Then Galle
said: “You can do anything you want.” Whereupon, shots were heard and Galle fell
down.
Heddy del Rosario sounded the alarm, but Moreno shouted: “Stop
that sounding and put out the light.” When the light was about to be put out,
another shot was fired which entered the room where Olimpia Alvarez was, and so
Alvarez ran and jumped to the other side of the barbed wire fence, then went
down to a brook and hid in a bamboo grove.
The next morning, at about 6 o’clock, Moreno came again with
his men and started firing many shots at the house. Sometime later, Alvarez was
able to count more than two hundred empty shells in the yard. During the firing
that morning Alvarez and his daughter were able to escape by the back yard to
about two hundred meters away where they took a vinta and went to Talisayan.
Alvarez saw Galle’s house burning.
Within the house ten persons were killed, Otto Galle, his wife
Ines, Eduardo del Rosario, Heddy del Rosario, Nene del Rosario, Fred del
Rosario, two maids Alejandra and Gregoria, Cristino Geronimo and Andres Fabian.
According to Elena Casongcay, a maid who was able to, witness the proceeding
from a hidden place near the fenee, after the assailants had looted the house of
its many personal belongings, Moreno ordered his men to burn it. Blas Francisco,
a worker in the service of Galle and who had survived from that holocaust,
substantially corroborated both Alvarez and Elena Casongcay.
On April 22, 1944, appellant also took active part in the
arrest in Labuan of Eulogio and Dionisio Biel and of Enrique Fargas, made by a
group of Japanese and Filipino soldiers. The two Biels were arrested because of
the help they were giving to the guerrillas. The three arrested persons were at
about 4 o’clock in the afternoon taken in a truck to San Ramon Penal Colony and
on April 28 they were seen by Filoteo being escorted by Japanese soldiers on a
truck bound for the City Hall Building of Zamboanga. None of them were ever
heard of or seen alive since then. These facts are proven by the testimonies of
Patrocinio Vda. de Biel, Agueda Vda. de Biel, Romula Biel, Fermin Filoteo and
Mamerto de Leon.
In the morning of February 11, 1944, another patrol of armed
Japanese and “Kaigun Juitai” Filipino soldiers, led by appellant as one
of the leaders, arrived at the house of Venancio Ventura in Boongan, Isabela de
Basilan, Zamboanga. Several persons in the house were called by the members of
the patrol for investigation. After Eduardo Ventura, one of the members of the
patrol, had started to make investigation about the guerrillas and their
activities in the place, shots were fired from a nearby hill directed towards
the patrol, the members of which laid flat on the ground and returned the shots.
The firing lasted almost half an hour. While the firing was going on, Prudencio
and Raymundo Nonial ran away to a nearby bush and were able to escape. After the
shooting had ceased, Moreno and his companions continued investigating Agustin
and Claro Nonial regarding the whereabouts of Ramon and Miguel Nonial,
lieutenant and surgeon respectively of the guerrillas at Bangue. Because of
their denials, they were slapped and struck with fist blows. Agustin Ventura,
Venancio Ventura, Claro Nonial, Agustin Nonial, Agustin Laracochea and Victor
Garcia were ordered to inarch in single file. After they had walked for about
thirty meters, Eduardo Ventura ordered them to turn to the left and on
appellants order, he machine-gunned them all, Agustin and Claro Nonial were
instantly killed, while the four others were wounded. The left arm of Laracochea
was later amputated.
The above facts were testified to by Agustin Laracochea,
Prudencio Nonial, Venancio Ventura and Victor Garcia.
During the first week of August, 1944, Toribio Timonel, Candido
Cabrera and Daniel del Rio, all imprisoned guerrillas, were investigated by
appellant, who took part in the maltreatment of the first two. Ramon Camagay and
Hermenegildo A. Santos testified to these facts. Since then these three
guerrillas were never seen nor heard of anymore.
The trial court found the appellant guilty of treason,
complexed with multiple murder of fifteen persons, and sentenced him to suffer
the penalty of death in the manner prescribed by law and to pay a fine of
P10,000, to pay indemnity of P2,000 to each of the heirs of Otto Galle, Ines
Galle, Eduardo del Rosario, Heddy del Rosario, Nene del Rosario, Fred del
Rosario, maid Alejandra, maid Gregoria, Cristino Geronimo, Andres Fabian,
Eulogio Biel, Dionisio Biel, Enrique Fargas, Agustin Nonial and Claro Nonial,
and to pay the costs.
Counsel for the appellant assign in their brief eight alleged
errors of the trial court. We shall now consider them.
I
“The trial court erred in denying the petition of appellant for
the postponement of the hearing to enable his counsel to prepare his defense
properly, a right which is granted him by our fundamental
laws.”
At the start of the trial, appellant’s counsel moved for the
postponement of the hearing in order to prepare properly for the defense,
stating:
“Your honor, please.—My services was just hired by the family
of the accused, so we ask for the postponement of the trial of the case in order
to prepare properly our defense.” (1).
The petition was not granted. The accused was arraigned and the
trial proceeded.
Appellant now invokes the provision of Section 7 of Rule 114,
Rules of Court, which reads, as follows:
“SEC. 7. Time to prepare for trial.—After a plea of not guilty,
except when the case is on appeal from the justice of the peace, the defendant
is entitled to at least two days to prepare for trial unless the court for good
cause shown shall allow further time.”
The prosecution contends that appellant cannot invoke the above
provision, because the petition was made before the arraignment, and the
proper time for filing the petition is after arraignment and a plea of
not guilty, and not before. The prosecution contends further that, from what
appears in the transcript, counsel has waived the right for postponement
because, when asked whether he had any objection to the prosecution introducing
its evidence, he answered: “Yes, Your Honor without prejudice to reserve our
right to ask for the postponement for the presentation of the evidence for the
defense.” (2).
There cannot be any question that a petition or a motion for
postponement of hearing can be filed before or after arraignment. The
proper time for filing said petition or motion is not provided for in Section 7
of Rule 114, which is only intended to guaranty that “after a plea of not
guilty, * * * the defendant is entitled to at least two days to prepare for
trial.”
There is conflict of opinion as to whether defendants counsel
made express waiver of his petition for postponement.
The majority had voted affirmatively. Although the majority
vote appears to be supported by the wording of counsel’s statement in the lower
court, the writer’s dissenting vote was cast on the ground that said statement
should be interpreted jointly with the petition for postponement and the
statements made by the court, the fiscal and the accused’s counsel, made before
and after the statements in question, and all said circumstances when considered
make the waiver at least doubtful.
II
“The trial court erred in denying the petition of appellant for
the voluntary inhibition of the trial judge who tried this case for the simple
reason that they had already formed a biased opinion and therefore could not
render an impartial judgment.” (1).
Because of the fact that Judge Florentino Saguin one of the
members of the trial court had sentenced appellant for murder based on the same
facts as alleged in count number 4 of the information for treason, appellant’s
counsel moved for the voluntary inhibition of said judge to sit in this treason
case, and now complains that his motion was denied.
The complaint is groundless. Counsel was not able to invoke any
provision of law in support of his motion. As a matter of fact, there is none.
The petition was addressed to the discretion of Judge Saguin, and Judge Saguin
acted properly and wisely in sitting in this case.
It is not contended that Judge Saguin was disqualified under
any specific provision of law. Consequently, it was his duty to take cognizance
of a case. To take or not to take cognizance of a case, does not depend upon the
discretion of a judge not legally disqualified to sit in a given case. It is his
duty not to sit in its trial and decision if legally disqualified; but if the
judge is not disqualified, it is a matter of official duty for him to proceed
with the trial and decision of the case. He cannot shirk the responsibility
without the risk of being called upon to account for his dereliction.
III
“The trial court erred in abusing too much his discretion and
by assuming the role of the prosecution and converting our courts of justice
into that of an inquisitorial tribunal.” (1).
The reasons pointed out in appellants brief do not justify his
complaint.
There is nothing on record to show that anyone of the judges of
the trial court attempted to help the prosecution. The questions propounded by
the judge, subject of appellant’s complain, appeared to have been intended to
elicit the truth from the witnesses. The inquisitiveness complained of by
appellant’s.counsel did not have the purpose of unduly harming the substantial
rights of the accused. It was only to be expected from judges who, with full
consciousness of their responsibilities, could not easily be satisfied with
incompleteness and obscurities in the testimonies.
With regards to the resolution sustaining an objection which
does not appear in the transcript to have been made, the prosecution believes
that the transcript need not contain a complete account of what actually
transpired.
Accepting that the lower court erred in this respect, appellant
has not shown that the error had adversely affected him in a substantial manner.
In the absence of such a showing, further discussion on the question is
unnecessary.
IV
“The trial court erred in admitting Exhibits A, B, and C.”
(1).
The admissibility of Exhibits A, B and C has been established
by the testimony of Patrocinio Vda. de Biel, Mamerto de Leon and Ramon
Camagay.
V
“The trial court erred in denying petition of appellant for an
occular inspection of the place of Otto Galle.” (1).
There is not enough showing that the trial court erred in
refusing defendant’s request for an occular inspection of the Galle
plantation.
Whether such an occular inspection should have been made or
not, rested upon the discretion of the trial court. In the instant case there is
no showing that the trial court committed a grave abuse of discretion.
VI
“The trial court erred in giving credit to the testimony of the
witnesses for the prosecution and disregarded the testimony of the witnesses for
the defense.”VII
“The trial court erred in finding appellant herein guilty of
the crime charged.”VIII
“The trial court erred in holding appellant guilty and
responsible for the crime of high treason cbmplexed with multiple murders, and
in not acquitting him.” (1).
This court is fully satisfied that the findings of fact of the
trial court are substantially supported by the evidence on record. This
conclusion disposes of the appellant’s contentions as to the last three alleged
errors of the lower court. The appellant admitted that he is a Filipino
citizen.
Upon the facts proved we find that appellant is guilty of the
crime of treason as punished under Article 114 of the Revised Penal Code.
A majority voted for the affirmance of the appealed judgment,
while there are minority members who voted that appellant be sentenced to
reclusion perpetua. The writer, as a result of his position regarding the
non-postponement of the trial in the lower court, voted to remand this case for
a re-trial in the lower court. The final result is to modify the judgment.
Accordingly, appellant is sentenced to reclusion
perpetua and to pay a fine of P10,000 and the costs. Under the ruling in
People vs. Amansec (80 Phil., 424, 435) he is also ordered to pay an indemnity
of P90,000 at the rate of P6,000 to the respective heirs of each one of the
following fifteen persons: Otto Galle, Ines Galle, Eduardo del Rosario, Heddy
del Rosario, Nene del Rosario, Fred del Rosario, maids Alejandra and Gregoria,
Cristino Geronimo, Andres Fabian, Eulogio Biel, Dionisio Biel, Enrique Fargas,
Agustin Nonial and Claro Nonial. With these modifications the appealed judgment
is affirmed.
Moran, C.J., Paras, Bengzon, Briones, and
Montemayor, JJ., concur.
Pablo, M., Voto por la confirmacion de la sentencia.
Tuason, J., I vote for affirmance.
CONCURRING
OZAETA, J.:
This case was deliberated upon and voted on October 12, 1948;
but as the decision will be promulgated during my absence, I desire to record
now my vote for the affirmance of the death penalty imposed by the People’s
Court upon the appellant.