G. R. No. L-6357. May 07, 1954

From a decision of the Court of First Instance of Misamis Occidental
finding Arcadio Lumahang, father, Guillermo Lumahang, Genaro Lumahang,
Zosimo Lumahang and Constancio Lumahang, sons and brothers, guilty of
the murder of Victoriano. Vicente, and sentencing each of them to suffer
the penalty of life imprisonment, to indemnify the heirs of the
deceased Victoriano Vicente, jointly and severally, in the amount of
P5,000, with the accessory penalty provided by law, Genaro Lumahang has
appealed. His counsel claims in his brief that said appellant was not at
the scene of the crime and did not participate therein, but that he was
then in his house.

The evidence presented by the prosecution shows, and it is not denied
by the appellant, that on February 26, 1952, at about eight o’clock in
the evening, while Victoriano Vicente and his son Cesar were walking
home on the road from the market place of barrio Tuyabang Bajo,
Oroquieta, Misamis Occidental, they were suddenly met by Arcadio
Lumahang and his sons, who had been crouching on the road in wait for
them; Guillermo, upon recognizing Cesar Vicente, who was ahead of his
father, attacked Cesar with his bolo, but Cesar was able to escape and
run away. Guillerrno gave up the pursuit and immediately returned to
where his father was. It was then that Victoriano Vicente arrived at the
place. Arcadio accosted him, and upon recognizing that it was
Victoriano, he informed Guillermo about it. Thereupon Guillermo flashed
his light on Victoriano and immediately assaulted him with his bolo, his
father and other brothers joining him in the attack. Victoriano
received various wounds in the arms, in the face, and in the back, but
was still able to run away, about fifty meters away from the place where
he was first attacked. Cesar went to inform the police about the attack
on his father, and the police found the latter dead on the road. A
policeman went to the house of Genaro and there found, together with
Genaro, Zosimo and Arcadio. Arcadio was found rolled in a mat, trying to
hide himself, with a blood-stained bolo in his possession. The
policeman also found a blood-stained scythe in the house of Genaro. The
father and his sons were taken by the police, and Arcadio, Guillermo,
and Gonstancio made written confessions admitting their participation in
the assault on the deceased Victoriano Vicente. These affidavits were
taken the day following the commission of the crime.

It was also shown that on February 16, 1952, a dance was held in the
school building, wherein Guillermo and his brothers participated,
Guillermo and his brothers danced even without having ribbons, in
violation of a rule that only those with ribbons could be allowed to
dance Cesar was the sergeant-at-arms on that occasion, and he called
attention to the president of the dance that Guillernio and his brothers
were dancing without the corresponding ribbons. Guillermo had asked
that he also be pinned with a ribbon, but as he refused to pay the price
for the ribbon, he was not given one. Notwithstanding this, he
continued dancing. After this incident, Guillermo called his brothers
together, telling them to prepare themselves for a fight and learn how
to fence.

On February 26, about six o’clock in the evening, Guillermo saw Cesar
in the market place and invited the latter to drink tuba, but
Cesar refused. Afterwards Guillermo was seen with a bolo, but this bolo
was taken away by Victoriano, Cesar’3 father. After this Guillermo
disappeared in the market place.

Defendant-appellant Genaro Lumahang did not make any confession, and
he asked for a separate trial for the presentation of his evidence.

The evidence submitted by the prosecution with respect to his
participation in the attack consists of the testimonies of three
witnesses. Basilio Pandac, the first witness, testified that at about
eight o’clock in the evening of February 26, 1952, as he was going home
and had just passed the school building, and was approaching that part
of the road where there were many acacia trees, he saw Arcadio and his
sons crouching near the road in wait for someone. Arcadio, Guillermo,
and Zosimo were in a line, and behind them were Genaro and Gonstancio.
As he passed Arcadio, the latter asked him who he was, and as he
answered that he was Basilio Pandac, he was allowed to pass by. But as
he walked farther on to the other two behind, Constancio suddenly
attacked him with his scythe but was not able to hit him, because he
immediately ran away and hid himself among the bushes beside the road.
He stopped for a while to find out whether he had been wounded, and felt
that he was not, although the weapon with which he was attacked had
produced a rent in his khaki shirt. At that time there was light from a
Petromax lamp about twenty meters away from where he was attacked, and
with that light he was able to recognize Genaro and Constancio on the
road near the acacia trees. Genaro was then wearing a red undershirt
with short drawers.

Another witness, Policarpio Morales, testified that as he was also
going home that evening at about eight o’clock, he saw Arcadio and his
sons approaching the place where a Petromax lamp had been left. He saw
Arcadio hit the lamp with a stick. The lamp had been left by the one who
had been carrying it because of, the commotion that had been seen on
the road ahead. He saw Cesar Vicente approaching the place where Arcadio
and his sons were, and he also saw how Cesar was pursued by Guillermo,
and how Cesar’s father Victoriano was simultaneously attacked by
Guillermo and his brothers and their father. He declared that the father
and all his four sons helped in the attack, and that he recognized
Genaro as one of them, because he had recognized him while he was still
crouching on the road before the attack took place.

The third witness is Cesar Vicente, who declared that from a distance
of thirteen meters he saw Genaro actually slashing at his father just
after he had been pursued by Guillermo. He said that with the flashlight
of Guillermo, he was able to see Genaro crouching on the road on his
right side in front of him just before he was attacked, and that while
his father was being assaulted, the light from the flashlight of
Guillermo enabled him to recognize Genaro as one of the assailants.

The evidence submitted by Genaro to counteract the testimonies of the
three eyewitnesses who testified to his presence at the scene of the
crime, consists of his own testimony and that of his wife. His wife
testified that on February 24, 25, and 26 Genaro, her husband, was
gathering nuts from the land of one Rosenda Abuton; that late in the
afternoon of February 26, Genaro went with her to the market place; that
they went home together at sunset, their house being two hundred meters
away from the market place; that when her husband arrived at their
house, he attended to making ropes for the c&rabao, while she cooked
food for their supper; that they heard shouts coming from the market
place between six and seven o’clock in the evening; that at that time
Arcadio, Guillermo, and Zosimo went to their house, confirming the fact
that there had been trouble in the market place; that after supper she
went to the house of the wife of Guillermo, who was sick, and that she
slept there that night.

It is to be noted that the supposed presence of her husband in their
house was before seven o’clock, while the evidence shows that the
assault took place at eight o’clock in the evening. Considering that the
house of Genaro is only two hundred meters away from the market place,
and his wife went: away after supper at about seven o’clock, it is
evident that her testimony does not exclude the probability of her
husband’s presence at the place of the assault,Genaro, for his part,
declared that about seven o’clock in the. evening he heard shouts coming
from the market, after which his father and Guillermo and Zosimo
arrived; that Guillermo told him that he had trouble with Victoriano
Vicente, and that they had hacked at each other; that it was eight
o’clock when Guillermo recounted the story to him; that after a while
the authorities arrived and asked him to come down. He denied that he
had attended the dance on February 16, 1952. He also denied the
testimony of Basilio Pandac regarding his having been seen on the road
on the evening of the incident, although he admits that he has no grudge
against Basilio Pandac. He claimed that the testimony of Policarpio
Morales that he was seen on the road that evening is false, alleging
that he had a misunderstanding with him, because he had thrown a bolo at
the pig of Morales when the pig had destroyed his camote plants.

It is important to note that his father and his brothers who had made
confessions stated therein that Genaro took part in the assault on
Victoriano Vicente. While confessions of a co-conspirator are not
ordinarily admissible as evidence against another co-conspirator, the
fact that they implicate the latter and were made soon after the
commission of the crime, is circumstantial evidence to show the
probability of their co-conspirator having actually participated
therein. Especially is this so in the case at bar, where the
co-conspirator implicated is a son or a brother. Besides, if Genaro had
not actually participated in the assault, he should have called upon his
brothers to testify in his favor, which he did not.

There is no evidence worthy of the name that we may consider as
corroborating Genaro’s denial of his participation, that of his wife
having been shown to be of no value at all. We have carefully read the
testimonies of the witnesses who declared to have recognized him as
among the five who were crouching on the road awaiting their victim, and
we have not been able to see anything therein which may cast some doubt
on their credibility. The claim of appellant that he did not
participate in the commission of the crime must, therefore, be
dismissed.

Finding no error in the sentence imposed upon the accused, including
the defendant-appellant, the same is hereby affirmed, with costs.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo,
Bautista Angelo, Labrador, and Concepcion, JJ., concur