THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. HUGO PEREGIL AND SALVADOR MONDIDO, DEFENDANTS AND APPELLANTS.

At about 6 o’clock in the evening of June
11, 4-949, while Jovito Co, manager of the Visayan Shipping Company,
was going home in a jeep after the day’s work in his office on Muelle
Loney in the city, of Ilolo, he was ambushed and fired upon by Hugo
Peregil and his gang at the intersection of said muelle and
Aldeguer street, about 20 meters from the company premises. Mortally
wounded, Jovito Co died that same evening in the provincial hospital
despite all medical effort to save his life.

Hugo Peregil was a member of the Hollo city police, who, contrary
to civil service rules, was at the same time working for a commission
as a passenger and freight agent, in which work he was aided by
Salvador Mondido. Having been allowed to act as such agent for the
Visayan Shipping Company, Peregil took offense when he was summarily
dismissed by its manager, the deceased Jovito Co, and the shooting
appears to be the culmination of a series of retaliatory measures taken
by him against the company.

For the killing of Jovito Co, Hugo Peregil, Salvador Mondido and
Leonardo Miranda (their companions not having been captured) were
prosecuted for murder, and having been found guilty as charged they
were sentenced each to a penalty of from 14 years and 8 months of reclusion temporal to reclusion perpetua.
with the accessories of the law, jointly and severally to indemnify the
heirs of Jovito Co in the sum of P6,000, and to pay proportionate costs.

Hugo Peregil and Salvador Mondido appealed. But with the case
against Hugo Peregil already dismissed following his death in prison
during the pendency of his appeal, only the appeal of Salvador Mondido
now remains to be considered, and as to this appellant the sole
question is whether he had any part in the killing of Jovito Co.

Three eyewitnesses to the shooting testified for the prosecution.
They were Rogelio Victoriano, Doroteo Zulieta, and Irineo Bautista.

Rogelio Victoriano testified that he was the one dtiving Jovito
Cofs jeep when it was ambushed, Co being then seated beside him while
Doroteo Zulieta, another employee of the Visayan Shipping Company,
occupied the back seat; that they had just left the company premises on
Muelle Loney and gone about 20 yards when, as they were about to turn
left on Aldeguer street, he saw Hugo Peregil standing in the middle of
the road, rifle in hand; that upon seeing them, Peregil cried: “Ah, you
are here” and then began fir ing at them, followed by his companions;
that Co jumped from the jeep while he, on his part, tried to flee by
veering the vehicle to the right and heading it for the river; that
instead of plunging into the water, the jeep hit a pile of logs at the
edge of the wharf, whereupon he and Doroteo Zulieta jumped into the
river and hid in the crevices of the retaining wall until the danger
was over; that of Peregil’s companions he recognized three, one of them
being the appellant Salvador Mondido, who, standing about three braaas
behind Peregil, also fired at them with his Thompson; and that the
other two were Buenaventura Bayona and one Tobin or Miranda (must be
the accused Leonardo Miranda), both of whom also fired at them with
their guns. He said that he had known Mondido since the Japanese
occupation when the two of them were in Capiz, he as a guerrilla
soldier and Mondido as the “verdugo” of Col.Grasparil.

Doroteo Zulieta’s account of the shooting is more or less the same
as that of Rogelio Victoriano, except that he was able to recognize
Hugo Peregil only, the others, who also fired, being persons unknown to
him. Asked if Salvador Mondido was with the gang that ambushed them, he
replied, “No 36; tal vez estar£a entre aquellos; es que no he conocido
por su cara.”

Irineo Bautista was a foreman of the Visayan Shipping Company. He
testified that he was outside the office of Jovito Co when the latter
left on his jeep and that it was then that Peregil and Mondido emerged
from where the post and the drums or garbage cans were at the corner of
Muelle Loney and Aldeguer street, about 20 yards from where he was;
that as the jeep drew near, Peregil raised his left hand and began
firing, followed by Mondido, who was behind him, and others who were
apparently deployed on both sides of the street; and that he had known
Peregil and Mondido for tteethjrears, for like himself, these two had
been engaged in procuring passengers from Antique, with Mondido driving
the car for Peregil.

Testifying in his own defense, the appellant Salvador Mondido
declared that on the day of the shooting he was driving taxi No. 8 of
the Crown Taxi; that at about 4 p.m.. on that day he was called by Jose
San Agustin to the Bachelor’s Grill; that upon entering the grill, San
Agustin1s companion, Atty. Zamora, asked him to fetch Atty. Mario
Guariña from his house and bring him to the grill; that upon coming
back with Atty. Guariña, the latter asked permission from Atty.
Zamora to have the taxi take him to Santa Barbara Country Club; that
after taking Guariña to the club, he came back to the grill where
Zamora and San Agustin were waiting for him; that arriving there at
about 5 p.m. he was asked to wait; and that while he was waiting inside
the grill, he heard shots and pretty soon someone came in and said that
there was shooting at the wharf; that a little after 6 p.m., he took
San Agustin and Zamora to the house of Jose Balleza, who was giving a
party that night, and there he was made to wait; that after using his
taxi until 9:30 that night San Agustin paid him 15, which was the
amount registered by the taximeter, and this amount was turned over by
him to the Crown Taxi together with the other earnings of the day; that
in addition to the fare, he was tipped by both Zamora and San Agustin,
receiving P3 from each; that he had no part in the shooting; and that
the witnesses Rogelio Victoriano and Doroteo Zulieta had a grudge
against him because on one occasion while he was in San Jose, Antique,
with his taxi cab, some passengers whom Victoriano was booking for the
S.S. “Alex” left the bus where they were riding and transferred to
appellant’s taxi, which brought them to Iloilo, and Victoriano became
so enraged that he boxed appellant on the nose.

Mondido’s declaration is not convincing, contradicted as it is in
part by his own witness, Jose San Agustin, According to Mondido the car
he was driving that day was a taxicab bearing plate No, 6 of the Crown
Taxi, for the use of which San Agustin paid him P15, exclusive of the
tip. On the other hand, San Agustin declared that the car was not a
taxicab; that it was for private use; that he supposed it belonged to
Mondido; and that, all he gave the latter was,a tip of P2. In addition,
we have the testimony of Federico Galano, a chauffeur of the Crown
Taxi, who assured the court that it was he and not Mondido who drove
the Crown taxicab bearing plate No. 8 on that day, from 5 a.m. to 11
p.m.

But even supposing that it was a taxicab that Mondido drove and
that he was made to wait for one hour or more while his fare was having
his drinking spree at the Bachelor’s Grill, it is not likely that he
would do his waiting inside the grill and leave his vehicle on the
street unguarded for such a length of time. The most natural thing for
any driver to do in the circumstances would be to wait inside the
vehicle or in its immediate vicinity. And this detail is important
because, as pointed out by the Solicitor General, the place of the
ambush was only about 600 yards away, so that it was not physically
impossible for Mondido to have gone there and come back without his
absence being noticed by his fare.

The lower court, we think, did well in not giving credence to
Mondido’s alibi. The account of his pretended presence at the
Bachelor’s Grill when the shooting occurred is so improbable that it
can not be allowed to prevail over the testimony of the eyewitnesses
Bogelio Victoriano and Irineo Bautista, both of whom saw him at the
scene of the crime and positively identified him as one of the
assailants. The only reason he could give why these two testified
against him was that on one occasion he had an argument with them over
certain passengers. But from his own version of the incident it would
appear that hi was the one who should have a cause for grievance for
having received a good drubbing from Victoriano without being able to
retaliate.

The defense makes much of the fact that in his dying declaration
Jovito Co named Hugo Peregil only when he was asked who shot him. But
it does not appear that he was asked if Peregil had any companions, and
it is also quite possible that the deceased had named Peregil alone
because he was the only one he knew, a theory which is made probable by
the testimony of Rogelio Victoriano, who said that when he asked Joyito
Co in the hospital if he knew those who had fired he answered that he
only knew one (“solamente conceit a lino”), that one being Peregil. Far
from implying that Peregil was the lone assailant, Co’s reply carries
the suggestion that there were others.

In the last analysis the case hinges on the credibility of the
witnesses, and on that question we cannot substitute our own judgment
for that of the trial judge, who, having had the advantage of
personally hearing the witnesses testify and observing their demeanor
on the stand, has found Salvador Mondido guilty “beyond reasonable
doubt.”

The crime committed is murder, qualified according to the trial
court by abuse of superior strength, “because the assailants were six
and armed with pistols and rifles while the victim was alone and,
though armed with a pistol, was not able to use the same in his
defense, having been subjugated by the superior force employed against
him by the accused Hugo Peregil, Salvador Mondido and Leonardo Miranda
and their three uncaptured companions.”

There being neither aggravating nor mitigating circumstances, the penalty imposable is life imprisonment.

Wherefore, with the prison term imposed upon Salvador Mondido
changed to reclusion perpetua, the sentence below is, as to this
appellant, affirmed, with proportionate costs against him.

Paras, C. J., Feria, Pablo, Bengzon, Padilla, Tuason, Jugo and Bautista Angelo, JJ., concur.

Mr. Justice Montemayor did not take part.