THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. AMBROSIO PAUNIL AND ALFREDO PAUNIL, DEFENDANTS AND APPELLANTS.

Appeal from a judgment of the Court of First Instance of Cebu, Hon. Ignacio
Debuque presiding, finding Ambrosio Paunil and Alfredo Paunil, guilty of the
murder of Daniel Dacalos, with the qualifying circumstance of alevosia, with the
aggravating circumstance of nocturnity, and sentencing each of them to reclusion
perpetua, to indemnify jointly and severally the heirs of the deceased in the
sum of P6,000, and to pay the costs.

The evidence shows and it is not disputed that around 9:00 o’clock in the
evening of April 4, 1952, while Daniel Dacalos was standing at the door of his
store, his back towards the road in front, in the barrio of Langtad,
municipality of Naga, province of Cebu, he was suddenly hit with a bullet on the
left arm; he was taken to the Cebu Portland Cement Company hospital at Barrio
Tinaan, Naga, where he received medical attention, but this was to no avail
because the following morning at 5:00 o’clock he died.

Death was caused by acute hemorrhage caused by the wounds, which were found
on his person, as follows:

“1. Lacerated, “wound “with compound comminuted, fracture of the left,
medical portion of the humerus; there is loss of substance.

“2. Another lacerated, wound between the left, thumb and index, finger with
compound, comminuted, fracture of the first, metacarpal bone.

“3. Contusion at the left, lateral side of the thorax.” (Exhibit
“L”.)

The place where acting mayor Dacalos had his store is along the provincial
road. In front of the store across the street and around 40 meters therefrom was
an artesian well near some coconut trees. The store was surrounded by other
stores and houses of the store owners. On the other side of the store, beyond
the artesian well, were houses of the other residents of Barrio Langtad, Naga,
Cebu.

The investigation that was conducted the day following the shooting showed
that the bullet must have been fired from a rifle by a person standing near a
coconut tree near the artesian well. This was evident from the direction of the
traces of a bullet passing along and through the bushes between the artesian
well and the store of the victim. It was also found out that the bullet that hit
the left arm of the deceased Dacalos, after striking his arm, struck the frame
of the door of the store and was lodged therein. The two shots were fired that
evening at about 9 :00 o’clock. As to which of these hit the victim it is not
disclosed.

Daniel Dacalos belonged to the Nacionalista Party and was candidate for the
position of municipal councilor in the general elections of 1951, but failed to
get elected. On April 1, 1952, he was appointed by the then Governor Sergio
Osmeña, Jr. as acting mayor of Naga, Cebu, during the suspension of the mayor
who was under investigation.

When on the evening of April 1, 1952 the appointment of Daniel Dacalos was
known in the barrio, certain members of the Liberal Party, among whom were
Ambrosio Paunil and Alfredo Paunil, expressed disgust over the appointment. In
the store of Matilde Dacalos, which was beside the store of the deceased,
Alfredo Faunil expressing disgust over the appointment of the acting mayor, said
that it is useless to hold elections for the vice-mayor does not take the place
of the mayor when the latter is suspended (Testimony of Julio Dacalos, t. s. n.
p. 16; Id. of Eriberto Dacalos, p. 11).

At about 7:00 o’clock in the evening of April 4, 1952, Cocopati Paunil asked
the deceased to allow cockfighting to continue on that day, but the mayor
refused to grant the permission, saying that the same is not permitted by law.
Upon hearing this, Cocopati said that something bad would happen, so Julio
advised the deceased to close his store (Testimony of Julio Dacalos, t. s. n.
pp. 23-24).

The night of the shooting, when the Constabulary soldiers undertook to
investigate the possible authors of the shooting, both Ambrosio Paunil and
Alfredo Paunil were taken in for investigation and they were continuously
investigated on various days after the incident, showing that suspicion fell on
them.

The most important witness for the prosecution is Santiago Emnace, a laborer,
who resided around 300 yards away from the artesian well. According to this
witness, on the evening in question, he and his wife had stayed until around
8:00 o’clock in a store on the road, drinking Pepsi Cola. At 8:00 o’clock they
returned to their house and upon finding that there was no water in the jar,
Santiago walked back to the artesian well bringing with him a can. He passed by
the house of Paterno Abella, where Santiago saw four persons playing pool. As he
approached the artesian well he saw persons standing on the way, one of whom was
Ambrosio Paunil, his compadre, who greeted him. Beside him he saw Alfredo
Paunil. The distance where Ambrosio and Alfredo were was about 10 brazas from
the artesian well. After filling the can with water Emnace went home and on his
way back he again saw the brothers Paunil still in the same place. Upon reaching
home, he asked his wife to help him lower the container, but just at that
moment, he heard a “bang”, a rifle shot. He sat down and then went down below to
answer a call of nature. There he heard a second rifle shot, and after that, he
heard the cry of a woman saying “Help Daniel Dacalos.”

The place where Emnace went to answer the call of nature is a patch of
unplanted cornfield near the house. After hearing the second shot and the cry of
the woman calling for help, he heard the barks of dogs passing near the place
where he was to move his bowels. He sat down to find out what was the cause of
the barking”, and with the help of the moonlight he saw Ambrosio Paunil and
Alfredo Paunil running across the plowed field, towards the house of Alfredo.
Alfredo was then carrying with him a rifle, Cal. 30, presumably the same rifle
that Emnace had seen many times in the possession of Alfredo Paunil and which
the latter had some time previous received from Pio Tesalona and delivered thru
Lucero Samoro. Witness had actually seen the rifle delivered, to Alfredo Paunil,
with some bullets. At about 9:00 o’clock that evening, the moon was about as
high as the sun at 2:00 or 3:00 o’clock in the afternoon, and according to
Emnace the sky was clear and he easily identified the accused as they were near
the artesian well and as they were running away to the house of Alfredo
Paunil.

Another witness for the prosecution is Eriberto Dacalos. According to this
witness, that evening of April 4, he and various companions, among whom were
Paterno Abella, Lucrecio Samoro, Francisco Baricuatro and Celestino Lapitan,
were playing pool at the house of Paterno Abella. At about 9:00 o’clock, they
suddenly heard a shot and thereupon Eriberto Dacalos ran out of the pool house,
with the purpose of going home and intending to pass the artesian well because
that was the way towards his house. But as he approached the artesian well, a
.second shot was fired and upon directing his eyes towards the place of the
explosion, he saw Alfredo Paunil in the act of lowering the rifle with which he
had fired the shot.

The third witness for the prosecution is Silvino Abayata. He stated that
about 9:00 o’clock that evening, he was in the store of Daniel Dacalos, the
victim. At that time Daniel was standing at the door of the store, facing the
store with his back towards the road. While in that position, he suddenly heard
a shot which was fired from the artesian well. He directed his attention thereto
and saw two persons standing near the artesian well, although he did not know
who they were. He declared that the artesian well is 40 brazas from the store
and that persons near the well could be seen from the store.

A fourth witness called for the prosecution was Paterno. Abella. But this
witness, at the beginning of the examination, unexpectedly became hostile. It is
a fact, however, that on the 9th of April, 1952, he subscribed an affidavit
before the assistant provincial fiscal of Cebu, pertinent portion of which is as
follows:

“Q. 4.-Who shot Mayor Daniel Dacalos?

A.-I did not see the one who shot. But when I went down from our house after
I heard the shout for help, I saw two men walking toward the sea from the
coconut tree near the artesian well in front of the store of Matilde Dacalos.
These men according to what I recognize by their “way of walking, were Alfredo
Paunil and Ambrosio Paunil. The one ahead was Ambrosio and the one behind him
was Alfredo who was carrying a gun in his right hand. Before long1 after I saw
them, they ran toward the sea and they were followed by a dog which was barking.
Because of my fear, I returned immediately to Kadaggitan.” (Exhibit
Q-1.)

Attempt was made by the defense to involve witness Santiago Emnace in
contradictions, between his testimony and his affidavit which he swore to on
April 6, 1952 before Captain Lumbre and the municipal judge. But upon comparing
the affidavit and the testimony rendered in court, We find no difference as to
the substantial and material facts about the case, which would indicate that his
testimony in court is not entitled to credit as to substantial facts. This is
the most important part of his affidavit:

“Q. On that evening what happened in the barrio where you live?

“A. What I know was only when I went home from the store with my wife and
child. When we arrived in our house which is situated in the seashore of
Langtad, I looked up our jar, and when I saw that there was no water in the jar,
I told my wife that I would fetch water in the artesian, well. My “wife told me
to hurry up and I answer yes, and then I proceeded, and when I saw compadre
Ambrosio and Fredo Paunel who are brothers, When they saw me that I was bringing
with me a can water container, he told me to hurry up because no water might
come out from the artesian well. I told him, ‘compadre, water will come out if I
push the artesian well up and down’, and when I pushed it and my can water
container was already filled up, I carried it on my head and then I walk. When I
passed by the same road, they were still there, and then I continued walking and
these persons were squatting on their feet. When I arrived home, I told my wife
to help me out in unloading” the can water container. After she helped me I
place the can water container. Before my child received the water can container
I heard two shots which were successive and which was the only thing I have
heard. When I heard the shot, inasmuch as it was a moonlight night, I saw them
running carrying a rifle. When they ran, they went direct to the seashore, and
they were followed by the dog. * * *.” (Exhibit “1-K”).

Attempt was also made to discredit this principal witness by the fact that
immediately after the shooting he was given work in the Engineering Department
of the City of Cebu and had since then begun to live there. This was done
evidently for the purpose of insuring his loyalty to the cause of the
Government in the case against the accused. We have noted, however, that
Ambrosio Paunil was a foreman in the Cebu Portland Cement factory and that he
exercised some influence over laborers among whom was Santiago Emnace. Judging
by the fact that some of the witnesses for the prosecution have turned hostile
at the time of the trial, the act of the Government in giving work to this
principal witness to insure his loyalty to the cause of the prosecution may not
be considered censurable; it was indeed necessary to protect the interests of
justice. Anyway the defense subjected the witness to a very intense and
searching examination, in which Emnace clearly did not budge an inch as to the
fact that he saw the appellants near the well before the shooting, and saw them
afterwards running away towards the house of Alfredo Paunil, Ambrosio ahead of
Alfredo and the latter carrying the rifle that had been in his possession.

That Alfredo Paunil had a rifle in his possession at the time of the shooting
is also borne out by the testimony of Lucrecio Samoro. According to him the said
rifle had formerly been in his possession during the Japanese Occupation; that
the rifle was given to Pio Tesalona, who later gave the rifle to Alfredo Paunil
(thus corroborating the testimony of Santiago Emnace about the delivery of the
rifle by Pio Tesalona to Alfredo Paunil). This witness was also shown the slugs
which were found at the scene of the shooting and he declared that the same kind
of shells were used by him. in the rifle in question. With the testimony of this
witness, it is not necessary that the rifle itself should have been produced.
The rifle was seen by three persons, witnesses for the prosecution: Eriberto
Dacalos, soon after the second shot was fired, then by Santiago Emnace, as
Alfredo and Ambrosio Paunil were running away from the scene of the shooting,
and on various occasions previous to the shooting same rifle was seen in the
possession of Alfredo Paunil both” by Lucrecio Samoro and Santiago Emnace.

We are satisfied by and large by a careful reading of the testimonies of the
witnesses for the prosecution that notwithstanding the discrepancies on minor
and unimportant details and circumstances, there can be no reasonable ground to
believe that their testimonies are false and fabricated. We are satisfied that
on the whole they point to no other individuals as authors of the crime but
Ambrosio Paunil and Alfredo Paunil, as these were the only persons seen near the
vicinity of the place from where the shots were fired at or about the time of
the incident of the shooting and because they also had the motive to act as they
did, as well as the means with which to carry out the deed.

The next question that poses solution is, Does the evidence submitted by the
defense destroy the credibility of the witnesses for the prosecution to such an
extent as to create a reasonable doubt that the accused-appellants are the ones
who actually perpetrated the deed? No less than 9 witnesses in addition to both
the accused-appellants testified for them. Paterno Abella, owner of the house
where pool was being played at the time of the shooting, testified that when the
first shot was heard all of the five playing pool, including Eriberto Dacalos,
Lucrecio Samoro, Francisco Baricuatro and himself laid down prone on the ground,
thus seeking to discredit the testimony of Eriberto Dacalos that the latter,
upon hearing the first shot, ran away from the house in the direction of the
artesian well to go home. But Abella’s testimony is contradicted not only by
that of Eriberto Dacalos but also by the testimony of Francisco Baricuatro,
appellants’ own witness, who instead of corroborating the declaration of Abella
that Lucrecio Samoro and Eriberto Dacalos also laid prone on the ground,
corroborated, that of Eriberto Dacalos to the effect that the latter and
Lucrecio Samoro ran away together upon hearing the first shot. Besides, as
already adverted to in the consideration of the evidence for the prosecution, in
his affidavit (supra) Paterno Abella declared that he recognized Ambrosio Paunil
and Alfredo Paunil, the latter carrying a gun in his right hand, both walking
near the artesian well and afterwards after the gunshots were heard, saw them
ran away towards the sea followed by a barking dog. Lastly, Abella is a cousin
of both appellants and while he may have originally wanted to testify to the
truth, he might have later on changed his mind and instead of testifying for the
prosecution moved over to the other side as witness for the defense.

Witness Francisco Baricuatro, for the defense, was introduced merely to
prove, on the part of the defense, that witness for the prosecution Eriberto
Dacalos and another one, Lucrecio Samoro, upon leaving the pool house directed
their steps towards the house of Lucrecio Samoro. Granting that this statement
is correct, it does not necessarily mean the two continued running to the house
of Lucrecio; it does not discount the possibility that Eriberto, after running
away in the direction of the house of Samoro, may have directed his steps
towards the artesian well, as he testified, and as the artesian well was on the
way to his house. The same witness was also presented to show the condition of
the moon on that night, but his testimony is of no consequence because the
weather observer in Cebu City was in better position to testify how high was the
moon at 9 :00 o’clock in the evening of April 4, 1952. This is Manuel Bonjoc,
who himself was introduced as witness for the defense.

Another witness for the defense is Marcelo Pacquiao. He declared that after
the second shot in the evening he went to the house of Alfredo Paunil to ask for
a cigarette and that he saw Alfredo then sleeping in the hall of the house. The
purpose he had in going seems to be so insignificant and trivial to believe that
it was sufficient cause for the supposed visit. He also declared that Santiago
Emnace was not in the vicinity of the place of the shooting on April 4, 1952,
because when Santiago Emnace was being investigated Emnace disclaimed any
knowledge of the incident because he had gone to Bayran on the evening in
question for the purpose of curing a boy, son of one Filomeno. We cannot give
much credit to the testimony of this witness as the record discloses that as
early as April 6, 1952, Emnace already executed this affidavit wherein he
declared that he actually was at the scene of the shooting and had actually seen
Alfredo Paunil and Ambrosio Paunil and had seen them also running to the house
of Alfredo Paunil (Exhibit “1-K”.) We also note that no other witness was
introduced to corroborate this witness’ statement that Emnace was in Bayran on
the night in question. The best witness should have been the parents of the
child who was treated by Emnace.

Both appellants submitted evidence that they were in their respective houses
at the time of the shooting on the night in question. Each of the appellants’
testimony to that effect is corroborated by his wife. Susana Sayson, wife of
Ambrosio Paunil, declared that when she heard the second shot on April 4, she
woke up her husband Ambrosio who was then sleeping; that at about 12:00 o’clock
that evening, the Chief of Police went to their house and called Ambrosio for
questioning. Elaborating on her husband’s whereabouts, she declared that he
arrived at 6:00 o’clock of that day and a little time thereafter had dinner,
after which he went to sleep. In this testimony, she is corroborated by Asuncion
Viray, who pretended to have been in the house of Ambrosio listening to the
radio. She declared that after the second shot Ambrosio was awakened by his
wife, and that Ambrosio peeped out thru the window, went to the balcony, and
asked his neighbors what had happened. Another witness who sought to corroborate
the supposed stay of Ambrosio at the time of the shooting is Concepcion Anxper,
who supposedly was at the house of Ambrosio since 4:00 o’clock in the afternoon
of that day. This woman testified that after Ambrosio had asked a neighbor
whether there was shooting, Ambrosio went back to sleep and did not wake up
until 12:00 o’clock when the police came.

Saturnina Alforque, wife of Alfredo Paunil, testified in the same manner for
her husband, declaring that at the time the shots were heard Alfredo was in the
house sleeping until Marcelo Pacquiao came asking for cigarettes. She also
declared that Alfredo Paunil had gone to sleep early that evening because he had
been playing-basketball in the afternoon. She further declared that Alfredo did
not take supper that evening because when he arrived he had, stated that he had
already taken in bread.

The court cannot give much weight to the testimonies of the accused
themselves and to those of the witnesses introduced by them to support their
alleged stay in their respective houses at the time of the shooting. The
witnesses were either relatives’ or friends. What appears to us rather strange
is that the two accused should be doing practically the same thing, sleeping at
a very early hour of the night. Their presence in their respective houses just
after the shooting and the fact that they returned to bed after having learned
of the shooting, instead of coming out to see what was the cause of the
shooting, indicate or reveal a presence of a guilty mind. Had they been actually
and really innocent they would not have been asleep at such an early hour as
9:00 o’clock, and as they were neighbors of consequence in the barrio, their
conduct tends to create suspicion, because instead of making inquiries in the
surroundings of the place of the incident, to find out the cause thereof, they
purposely stayed at home pretending to be asleep. In any case, we are satisfied
that the evidence that the defense has submitted in support of the denial and
the alibi is insufficient to overcome the overwhelming testimony of the
witnesses for the State, to the effect that they were the only ones at the scene
of the shooting at the time thereof.

For the foregoing considerations we find that the accused-appellants were the
only persons present at the-place where the shots that killed Daniel Dacalos
were fired, at the time of the shooting and that as they were provided with a
rifle using the same bullets as the slug that hit Dacalos, their guilt of the
murder of acting mayor Daniel Dacalos must be deemed proved beyond reasonable
doubt. The crime is qualified by alevosia. Nocturnity cannot be considered as an
aggravating circumstance because it is included in the qualifying circumstance
of alevosia. That both the accused are guilty is evident from the fact that they
acted jointly at the time of the attack and must have been impelled by the same
desire and intent to assassinate their victim and had conspired to do so. The
Solicitor General agrees that no mitigating circumstance has been proved.

Wherefore, the sentence imposed upon the appellants by the trial court is
hereby affirmed, with costs.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J.B.L., and Endencia, JJ., concur.