G.R. No. L-8871. December 18, 1956

Appeal from a judgment of the Court of First Instance of Nueva Ecija, Hon. Jose N. Leuterio, presiding, finding accused-appellant Eliseo  Sawit guilty of murder and sentencing him to reclusion perpetua, to indemnify the heirs of the deceased Atty. Mariano Garcia in the sum of P6,000 and to pay the costs.

The evidence for the  prosecution shows, and  it is not disputed by the defense, that on August  19, 1951 Atty. Mariano Garcia, special counsel for the City of Cabanatuan, had his birthday,  and in celebration thereof he arranged for an evening party at the house of Felino Mariano  in Licab, Nueva Ecija, where  dog meat was to be served. Members of the party came  at sunset, some from a neighboring store of one Matias Velasquez.  Among them were, Zosimo Garcia, Carlos Garcia, Leopoldo Dimaliwat, Felino Mariano, the  celebrant Atty.  Mariano E. Garcia, and others.   Enrique  Perez, driver of the jeep of Zosimo Garcia, joined the party at the  house of Mariano at around seven o’clock, when it was  already dark.

Soon after his  arrival, Atty. Garcia asked  Perez to call for his (Garcia) driver, one by the name of Eladio Lopez, so Perez  went down.   But just as he was going away from the house,  he was met by three persons, one of whom was armed with a pistol,  another with a Thompson, and the third with a carbine.  The  person who was armed with a pistol (whom he identified as the accused-appellant Eliseo Sawit) asked him where he was going, and after being told that  it was to call for Eladio Lopez, searched his person for arms and found that he had a pistol, which the person took away.   Perez told him that the pistol belonged to Zosimo Garcia.   Thereupon Perez  was asked to call for Zosimo  Garcia.  It so happened  that  the latter was at that time  beside a  window, so Perez called him to come down, but as Garcia (Zosimo) did not notice Perez, the latter went up the stairs and signalled Zosimo to come down, and the latter did so.  As Zosimo Garcia went down, he asked Perez for his gun, but Perez answered that it had  been taken  by  his  “Tio  Seong”  (appellant), who was downstairs.  As soon as Garcia was down and near the three persons,  Zosimo talked with  the leader,  (the  one with a  pistol),  calling the latter “Tio Seong”, but the latter did not answer but just brushed Garcia aside.  Soon after wards,  Carlos Garcia was  also asked  to go down, which he  did, and once down he was also searched for arms by the three armed  persons.

By the  time the food was ready, Felino Mariano went inside from the kitchen, but he found that there were no more people in the sala.  He went to the stairs, but he met thereat  Nicasio Ventura, who informed him that the persons in the house had been asked to go  down.  He also wanted to go down, but Ventura told him he was not sure who those persons  downstairs were.  So  he went to the kitchen, and there went down to a camarin.  It was while there that he  afterwards  heard shots,  and  after  ten minutes a person  came with a  lamp.   The next person to  go  down  after Zosimo was  Carlos  Garcia.  Carlos went to the kitchen and  as he was about to go down, he  saw two  soldiers carrying guns.  It  was then  that Mariano Garcia was also called down.  Carlos went back to the  sala and  then to the balcony, and  while there  he was also  called down.  As  soon  as  he  reached  the ground, one  of the soldiers also searched him for arms. He saw a few meters  away from him his uncle Mariano being searched by two of the armed persons, one of whom was the one who carried the pistol and the other a Thompson.  As  they pointed the pistol and the Thompson  at him, Mariano  Garcia pushed  their gun aside  and said, “Don’t  please”, and thereupon  he ran away.   As Mariano ran away four shots were fired at him. Carlos  Garcia promptly  laid himself flat on  the ground.  After firing the  shots the three armed persons ran away.

Soon thereafter, a person came with  a lamp, and he and Felino Mariano found Mariano Garcia already dead, under the floor of the kitchen, his face flat on the ground. The medical officer that examined his body  a day after wards,  found that the victim had at least three gunshot wounds, one  of the mandible, another at the left lumbar region,  and  a third  at  the  right hypochondriac region. He declared that the wounds in the body  were necessarily mortal  and that he actually died  therefrom.

It was  also proved by the prosecution that Atty.  Mariano Garcia was the leader of the civilian volunteers, an organization  of  civilians armed by the Army to help fight the Huks,  and that the organization to which  Mariano Garcia had belonged had encounters with the Huks.

The defense set up by the accused-appellant is that of an alibi.  So the most important issue is the identification of the  three persons who went to  the house of  Felino Mariano on the evening in question, called down the persons in the party, searched their  persons for arms,  and later fired the  shots  at the deceased Mariano  Garcia. Three of  the witnesses positively  identified the  accused-appellant as one of the three armed men, more particularly the  one who was armed with  a  pistol.  The first is Enrique Perez.   He declared that it  was the  appellant whom he met as he went down  to call for Garcia’s driver, and that he asked him where he was going, and searched for and took away the  pistol he  was  carrying.  Perez had  known appellant  long before,  and could  not possibly have been  mistaken, taking into account  his nearness to appellant and the fact that they talked  to each  other.

The second witness is Zosimo Garcia, who is a nephew of appellant himself and had known the latter from childhood.  He testified that as he went down the stairs, his driver Enrique Perez told him that it was appellant who had taken his gun; that he met appellant and his two companions  near the house of Felino Mariano and talked to him, pleading with  him; that appellant even  asked him for Atty. Garcia. The third is Carlos  Garcia.  At least the first two could not  have made a mistake as to appellant’s identity, having met the latter  at close  range and talked to him. There was a strong light  (Petromax)  in the sala of the house where the  party was, and  as  the floor of the house was only more than a meter high, and there was  a balcony towards the street from which  the three armed persons had come, the place where appellant was met and was seen by the two witnesses  must have been sufficiently  illuminated indirectly by the Petromax lamp in the sala to have allowed Perez  and Zosimo Garcia, old acquaintances, to have positively indentified appellant. Zosimo would not have implicated an uncle had he not  identified him on the  night  in  question.   Besides, the defense of  alibi presented is not satisfactory.  Appellant  said that during the period from April, 1951 to  April, 1952 he was in the Caraballo Mountains. That fact does not exclude the possibility of  his having  gone down to Licab in the month of August, 1951, the month when the incident took place.  Then he has not offered any witness to corroborate his defense, or any circumstance that may convince us of his absence from  the  neighborhood,  and that it was impossible for him to have been one of the three men who appeared in Licab on the night in question.

The second important defense relied upon by appellant’s counsel is the fact that  it was  not shown that the bullets that wounded the deceased had come  from the pistol of the appellant.  As a matter of fact upon exhumation of the body of the deceased before the trial, it was found out that a .30  cal. pellet was lodged  in the sternum.  This must have come from the carbine of one of the companions of the appellant and  not from the pistol of the latter, which was a cal. .45.  The Thompson used by the the third was also a cal. .45.  None of the lead pellets found in the other parts of the body of the deceased could be determined as to their caliber.  On the above facts counsel for appellant argues that the guilt of the appellant (in inflicting any of the wounds) has not been proved beyond reasonable doubt.   And  as to conspiracy, he further argues that the same is based on mere  inference and there is also no satisfactory proof thereof.

That the shots must have been fired by  at least two of the three armed men  who came that  night to the house where  the party was being held is evident, as found by the trial  court, from  the  fact that the wounds were inflicted from different directions.  We may add that the acts of the three assailants conclusively prove  conspiracy. In the first place, one of them, the one with the pistol, the appellant herein was always the one who searched for weapons and  directed  the  questions.   The  other two  merely co-operated with him.  In the second place, the almost simultaneous firing of the shots  (four of them), evidently all fired at the deceased alone,  and not at the others, shows a previous concert to kill the deceased.   In  the third place, the assailants ran away after the deceased  had fallen down,  and this fact shows only one common purpose, that of liquidating the  deceased.  In  view of  these  circumstances, we find that  the claim that there was  no conspiracy or proof thereof is without merit.

The  judgment finding the  accused-appellant guilty  of murder, with the qualifying circumstance of treachery, is fully sustained by the evidence.  Said judgment, as  well as the  sentence imposed, are hereby affirmed.   With costs against the accused-appellant.  So  ordered.

Paras,  C.  J., Bengzon, Padilla,  Montemayor,  Bautista Angela, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.