THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. BRAULIO BERSALONA, ET AL., DEFENDANTS. BRAULIO BERSALONA AND MARCELO VALLECERA, DEFENDANTS AND APPELLANTS.

Appeal from a judgment of the Court of First Instance of Bohol, Hon. Hipolito
Alo, presiding, finding appellants Braulio Bersalona and Marcelo Vallecera
guilty of the crime of murder with the attendance of five aggravating
circumstances, and sentencing each of them to suffer the penalty of death, to
indemnify jointly and severally the heirs of the deceased in the amount of
P6,000.00, and to pay the costs at the rate of one-third each.

The information charges the appellants and one Eleuterio Rajas with the crime
of murder upon the person of one Francisco Bersalona, with the aggravating
circumstances of evident premeditation, treachery, superior strength, disregard
to age and relationship and uninhabited place. Before the presentation of the
evidence, upon petition by the Provincial Fiscal, the charge against the accused
Rajas was dismissed, in order that he may be utilized as state witness.
Thereafter, a separate trial was held, with the understanding that the evidence
for the prosecution be considered taken in a joint trial.

The facts as proved by the evidence submitted by the prosecution are as
follows: The victim of the crime is Francisco Bersalona, who, on pr before
February, 1955, was a resident of the barrio of Tambo, Municipality of Mabini,
Bohol. He was ,a veteran discharged from the United States Army on Jiine 13,
1919, joined the organized defense volunteers of Oahu, Hawaii in 1942, and
discharged therefrom in July, 1945. Thereafter he found employment with the
California Packing Corporation. While in the service of this Company, he had an
accident for which he suffered physical injuries, as a result of which he
stopped working. This was on August 11, 1950. He received some money by virtue
of an insurance policy issued in his favor as a worker in the California Packing
Corporation. He came back to the Philippines around the year 1954 and lived with
his younger brother, the appellant herein Braulio Bersalona.

On or about March 29, 1955, the body of Francisco Bersalona was found on the
seashore in the barrio of Tambo, Mabini, Bohol. The corpse -was lying flat on
the shore face down. The body was found by one Nicolas Jamen, who thereupon
informed Braulio Bersalona and Eleuterio Rajas thereof. The place where the
corpse was found was about 2 kilometers from the place of Braulio Bersalona, and
the body was found at about 3:00 in the afternoon. Jamen informed Braulio of the
finding of the corpse and thereupon Braulio and Eleuterio Rajas proceeded to the
place where it was found. Braulio and Eleuterio then went to town to inform the
teniente del barrio about the corpse, and so the mayor, the sanitary
inspector and a physician went to the place where the body was found and
inspected it. After the inspection, the body was brought to the house of Braulio
Bersalona at about 10:00 in the evening.

The findings of the physician who examined the corpse are that the cause of
death is unknown; that the death could not have been due to drowning because the
stomach was not filled with water. She found hematoma behind the neck, although
she did not state this in the certificate of death which she made, Exhibit “4”,
as no autopsy was made.

The body was interred as usual and thereafter the properties left by him were
divided among his heirs who were his brothers and sisters. On July 17, 1956, one
Candido Misiona executed an affidavit before the Justice of the Peace of Mabini,
Bohol, wherein he made the following statement:

“* * * Not long after I heard a sudden harsh voice of Nong Boliong coming
behind me saying: ‘Here comes at last the person whom my bolo is intended for.’
Then when I turned my face back I saw the holo of Nong Boliong already
unsheathed and he stabbed me saying: ‘You will he the next to Nong Kikoy,’ but I
was able to roll down and ran away.” (Exhibit “R-1”)

The prosecution has not proved how the State began to suspect that the
appellants herein are responsible for the death of Francisco Bersalona. However,
Abraham Bersalona, nephew of the deceased, testified that three days after the
death of Francisco Bersalona, tie visited his uncle, the appellant Braulio
Bersalona, to inquire about the possible reasons for the death of Francicso, and
that Braulio told him that he was drowned. Then he proceeded to inquire about
the papers left by him, like a mortgage over several coconut trees in favor of
the deceased, but the appellant did not disclose that he had such papers.
However, on the anniversary of the death of Francisco, when many of the
relatives were present, Braulio surrendered the papers, Exhibits “L” and “L-1”
to “L-21” which were the papers of the deceased. Aside from this, Braulio also
delivered Exhibit “C”, which is the last will and testament of Francisco
Bersalona. After Braulio showed the will, by virtue of which Francisco left all
his properties to Braulio, Abraham brought it to the Chief of Police, with the
request that the same be studied, Abraham believing that the death must have
arisen from what is contained in said will. At this time, however, the
Constabulary had already begun making inquiries about the cause of death.

The facts testified to by Rajas are as follows: In the middle of the month,
of February, 1955, Braulio, his father-in-law, came to see him while he was
watching his plants in the field, and told him that the will of Francisco
Bersalona had already been executed; that in said will the latter’s brothers and
sisters were to have no participation whatsoever in Francisco’s properties,
which will all go to Braulio; and that he would see Marcelo Vallecera. Braulio’s
plan then was to choke Francisco to death. Thereafter Braulio went to Marcelo
Vallecera for help in executing his plan. Marcelo’s land was mortgaged to
Francisco and Braulio promised him that upon Francisco’s death Braulio would
release the mortgage and cancel the indebtedness. On the following day, while
Rajas was again in his field, Braulio and Mareelo came and disclosed to him
their plan to waylay Francisco and choke the latter.

The first attempt was made on the last Friday of February, when Francisco
left Tambo for the poblacion by boat. But it so happened that Francisco then had
a companion. The second attempt was on the first Friday of March, but again
nothing happened, as it was market day and Francisco had gone to the poblaeion
with another person by the name of Jamen.

On March 27, 1955, Braulio went to Rajas to inform him that his brother was
going to town to mail some letters. The following day, March 28, Francisco left
for the town. After he was gone, Braulio went to Mareelo to inform him of this
fact. At about 8:00 in the morning the three, Braulio, Mareelo and Eleuterio
went to the shore at Tambo and they saw Francisco going to town alone, so they
agreed to come back in the afternoon. At about 2:00 in the afternoon, they came
back to the seashore, then rode in the baroto of Braulio. As they
paddled into the sea, they saw the boat of Francisco, with the latter as sole
occupant. When their boat had approached that of Francisco, Braulio asked
Francisco if he had money, but the latter answered he had none. By this time the
two boats were close to each other and thereupon Braulio crawled to the boat of
Francisco, followed by Mareelo. Francisco was then sitting in his boat, with his
feet inside the boat. Thereupon Braulio, with his feet dangling, rode on the
body of Francisco, while Mareelo stayed behind Francisco holding the latter’s
hands together at his (Francisco) back. Eraulio choked Francisco to death with
his bare hands, and when Francisco expired, Braulio took his ring, pants,
fountain pen and money. After this, he and Marcelo lifted the dead body of
Francisco and dumped it into the sea. Then Braulio left, walking in the mangrove
swamps, while Eleuterio and Marcelo paddled home. The murder took place away
from the shore, so that nobody was in sight.

On the cross-examination of Eleuterio Rajas, it was suggested that on March
28. 1955, Eleuterio’s wife had delivered, ao that he stayed at home to take care
of her, but Eleuterio insisted that his wife had delivered long before that
date. On being asked on the supposed wounds on the forehead of Francisco, the
witness explained that it may have been caused by the rubbing of the face
against the mangroves.

The Justice of the Peace of Mabini, Bohol, Dionisio J. Calibo, also testified
in court to the effect that he took the declarations of Braulio, Exhibit “F”, in
the course of the preliminary investigation, directing questions to him and the
latter answering the questions; that the questions asked by him were almost the
same as those asked in an affidavit of Braulio notarized before the Clerk of
Court on July 23,1956, Exhibit.”G”, the reason for the similarity being that he
used this affidavit as a guide in asking the questions. He also declared that
the affidavit was in the form of questions and answers, the Acting Chief of
Police taking down the questions and answers on a typewriter. On
cross-examination, he declared that when the accused was questioned, he did not
ask to be assisted by a lawyer, although the witness had apprised him of his
right to have counsel.

With respect to Marcelo’ Vallecera, the Justice of the Peace declared that
when the case was called for preliminary investigation botli Vallecera and Rajas
pleaded guilty while Braulio pleaded not guilty, and as they had already
executed their affidavits before the Clerk of Court, he decided to take down
their declarations again as part of the preliminary investigation; that
“Vallecera and Rajas were not assisted by counsel as they did not ask for that
right, notwithstanding the fact that they were advised thereof. Witness further
said he asked questions and Wrote down the answers, following Vallecera’s
affidavit executed before the Clerk of Court. Being cross-examined he said there
was no record of the plea of guilt of Vallecera, but his declaration, Exhibit
“H”.

The prosecution also introduced in evidence the affidavits of the accused,
Exhibits “G” and “P” (of Braulio Bersalona), Exhibit “I” (of Marcelo Vallecera).
The Clerk of Court testified that on July 26, 1956, Braulio Bersalona was
brought before him, accompanied by two Constabulary soldiers, who asked him that
the affidavits of Bersalona and Vallecera be signed and sworn to before him.
Before Exhibit “G” was signed, the Clerk of Court showed it to Braulio and read
to him the contents thereof. Braulio said he understood the contents of the
affidavit, and then signed it in the presence of two witnesses, who also signed
the same.

As regards Exhibit “I”, affidavit of Vallecera the Clerk also testified that
the affidavit was already prepared when it was brought to him; that he read the
same to Vallecera, who afterwards admitted the same to be correct; that
thereafter Vallecera signed the affidavit before him in the presence of two
witnesses who thereafter also signed the same.

The Clerk also testified that Exhibit “P”, another affidavit of Braulio, was
signed before him on August 9, 1956. He also read the affidavit, which was in
the form of question and answer and after reading it to Braulio, the latter
admitted that the statements are true and correct, and thereafter Braulio and
his witnesses signed said affidavit.

In the decision of the lower court, the substance of the above exhibits are
stated, and are as follows:

“Exhibit ‘G’ (Bersalona).—That on March 28, 1955, at 2:00 in the afternoon,
he went to meet his elder brother Francisco Bersalona coming from the Poblacion
of Mabini; that it was Marcelo Vallecera and Eleuterio Rajas who helped each
other to choke to death the deceased; that he did not help in this attack,
although it was their purpose to kill the deceased, because he pitied the
latter; that Marcelo Vallecera killed the deceased because the latter refused to
lend him money; that lie took part in this conspiracy due perhaps to the fact
that Rajas was his son-in-law; that Vallecera and Rajas took from the body of
the deceased the amount of P10.00, which both divided equally; and that he found
in the boat of the deceased the key of the latter’s trunk.”

“Exhibit ‘P’ (Bersalona).—That in the month of February, 1955, Atty. Nicanor
Vallecera, nephew of his wife, suggested to the deceased that a document be
drawn instituting him (Braulio) as his sole heir; that three days after, Atty.
Vallecera prepared the document which was signed by the deceased Francisco
Bersalona and !by the witnesses; that after the execution of the document, Atty.
Vallecera told him (Braulio) to kill immediately the deceased; that Atty.
Vallecera tol d him that, as a lawyer, he would take the responsibility, if
there would be a complaint; that after thp deceased had been killed, he did not
meet again Atty. Vallecera,; that he gave Atty. Vallecera P100.00 as advance
payment; that after the deceased had been killed, he gave Valleeera, the accused
herein, the six coconut trees which the latter had mortgaged to the deceased for
the sum P65.00; that he also gave to his son-in-law Rajas his share of
P20.00.”

“Exhibit ‘I’ (Vallecera).—That on March 28, 1955 at 2:00 in the afternoon, he
was taken by force by Braulio Bersalona and Rajas in order to meet the deceased
coming from Poblacion of Mabini, Bohol; that they rode on the boat of Braulio;
that when they. arrived at the seashore of Bacood, Tambo, Mabini, Bohol, they
saw the deceased riding alone in his boat; that when they were near the deceased
Braulio told him: ‘You jump to it, Rad’; that because he was paid, he jumped
followed by Rajas and Braulio; that when they were in the boat of the deceased
the three of them held the deceased and choked him to death; thiat Braulio took
the money of the deceased from his pocket that he was paid P65.00 for his help,
representing the value of his six coconut trees which was the subject of
mortgage.”

Braulio Bersalona declared that all the testimonies presented against him are
false; that his affidavit, Exhibit “G” was secured by the Philippine
Constabulary by means of force, having been beaten into signing said affidavit;
that Rajas had a grudge against him because a parcel of land owned in common by
them had not been transferred to Rajas; that his brother Lucio also declared
against him because of envy, the deceased having chosen to live with him rather
than with Lueio. He also declared that on March 28, 1955, he did free and
voluntary work in the school house of Tambo, Mabini, Bohol, from 9:00 to 12:00
in the morning and from 1:00 to 4:00 in the afternoon. Regarding the affidavit
supposedly exacted from him by force, he named a Constabulary soldier, Barreda,
as author of the beating. This soldier was not presented as a witness for the
reason that he was studying in Manila and it was inconvenient for him to be
brought to Bohol for the trial. However, the prosecution introduced one Pacomio
Galve, who was present at the taking of the affidavit and who denied the
supposed beating and asserted instead that the statements contained in the
affidavit were voluntarily made.

Evidence was also submitted by Bersalona tending to show that the deceased
may have been drowned in a squall, because a witness testified that there was
such a squall on the day when the death took place. Another witness declared
that there was foam in the mouth of the deceased and that his hands were closed
with some sand clutched in his palms. These evidence, however, are insufficient
to overcome the declaration of the physician who stated that death by drowning
could not have taken place. The supposed death by drowning is also contradicted
by the declaration (Exhibit “G”) of the aceused Braulio Bersalona himself, when
he stated that the deceased was choked to death, although by his colleagues.
Attempts were also made to discredit the witness Rajas by another witness, who
declared that Rajas had told him that the accused Bersalona did not kill the
deceased, but that if (Rajas) be given the liberty he would say that the accused
Bersalona did actually kill the deceased. But this witness admitted having been
convicted three times for theft, and was then serving the last conviction.

Marcelo Vallecera also denied the charge and the supposed payment to him for
helping in the conspiracy, Claiming that on the day of the death.of Francisco,
he and his wife were in their field cleaning their tabacco plantation and that
the affidavit signed by him, Exhibit “I”, was secured by the Constabulary by
means of compulsion. There was, however, no witness who testified on his alibi
other than his own daughter, and his claim that his affidavit was secured
through force and compulsion was belied by the testimony of the Clerk of Court
that he signed the same voluntarily before said Clerk, and by that of the
Justice of the Peace who also testified to his statement during the preliminary
investigation.

We have read and studied the testimony of Rajas, and we find it to be direct,
positive, coherent and inherently truthful. The testimony that he gave in court
is exactly the same as that he gave in his affidavit, Exhibit “I”. The story
about the origin of the conspiracy tallies with the fact of the execution of the
will and the apparent greediness of Braulio. After having choked Francisco,
Braulio took possession of all the valuables that the deceased had in his body,
including his very pants. These facts show that Braulio was possessed of a
greediness that knew no bounds, which would not respect the age of, or his
relationship to, his victim, or the favor received from the latter in
instituting him as his universal heir.

After a consideration of all the evidence, we are fully convinced that the
deceased was killed in the manner described by the witness Rajas, that is, by
being choked to death by the accused Braulio Bersalona while Marcelo Vallecera,
his co-accused, held his (deceased) hands at the back. We also find it to have
been conclusively shown at the trial that the cause that impelled the killing
was the execution of the will of Francisco Bersalona on February 3, 1955; that
it was Braulio who induced Marcelo Vallecera and Eleuterio Rajas in the
conspiracy to kill the deceased; and that the motive of Braulio was to be able
to take immediate possession of the properties to be left by his elder brother,
the deceased herein. We also find that Marcelo Vallecera joined in the
conspiracy because of his desire to free himself of an indebtedness of P65.00
contracted in favor of the deceased, which obligation Braulio promised to
cancel. As for Rajas, he must have followed Braulio because the latter was his
father-in-law, in whose house he and his wife were living.

The trial court found five aggravating circumstances to have been proved,
namely evident premeditation, uninhabited place, disregard of due respect to the
deceased on account of his old age, the victim was Braulio Bersalona’s own
brother, and the obvious ungratefulness of the latter. It found no mitigating
circumstance. We declare that this finding is correct. It is to be noted,
however, that two of the aggravating circumstancea, that of relationship and
ungratefulness, are applicable to Braulio Bersalona alone and not to his
co-accused Marcelo Vallecera.

In view of his apparent perversity, we .do not hesitate to affirm the
imposition of the supreme penalty of death upon the accused Braulio Bersalona.
But as to his co-accused Marcelo Vallecera, there is no sufficient number of
votes among the members of the Court to support the imposition of said penalty.
The penalty to be imposed upon Marcelo Vallecera should, therefore, be reduced
to reclusión perpetua.

Wherefore, with the above modification of the penalty, the judgment appealed
from is hereby affirmed, with costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., Barrera, Paredes, and Dizon, JJ., concur.