G.R. No. 18242. March 06, 1923

STATEMENT

The defendant Agaton Pañganiban was charged with others in the Court of First
Instance of Batangas with the crime of murder alleged to have been committed as
follows:

“That the said Simplicio Marcellana and the other four, who are the accused
above named, on or about the night of the 12th day of December, 1920, in the
municipality of Taal, Province of Batangas, Philippine Islands, with previous
agreement between themselves, with premeditation and treachery and in an
uninhabited place, did wilfully, unlawfully, and feloniously assault Jose Par
with their respective steel arms and clubs, inflicting several wounds in the
different parts of the body, which caused the almost instantaneous death of the
aforesaid Jose Par.

“Act committed within the jurisdiction of this Court and in violation of
article 403 of the Penal Code.”

Before the trial commenced the fiscal moved that the defendant Eleuterio Poco
be discharged, so that he could be used as a witness for the Government. The
motion was granted over the objection of the attorney for the defendant. At the
conclusion of the evidence on behalf of the prosecution and of the defendants
Agaton Pañganiban, Simplicio Marcellana and Candido Villanueva, the defendant
Victorino Catapang offered to withdraw his plea of not guilty and enter a plea
of guilty, if the fiscal would amend his information so as to charge the crime
of homicide instead of murder. The court granted the motion. At the conclusion
of the trial, the court found the defendants Simplicio Marcellana, Victorino
Catapang, and Agaton Pañganiban guilty as principals and Candido Villanueva as
an accomplice of the crime of homicide, and sentenced the first three to twelve
years and one day of reclusion temporal, and the last to six years and
one day of prision mayor, and all of them to jointly and severally
indemnify the heirs of the deceased in the sum of P1,000, to the accessories of
the law, and each of them to pay one-fifth of the costs. From the judgment the
defendant Agaton Pañganiban alone appeals to this court, contending, first, that
the trial court erred in granting the petition of the fiscal to discharge
Eleuterio Poco, so that he could be used as a witness for the Government, and
that the evidence was not sufficient to convict this defendant of the crime of
homicide beyond a reasonable doubt.

JOHNS, J.:

It is first contended that under the provisions of Act No. 2709, the trial
court erred in discharging Eleuterio Poco to use him as a witness for the
prosecution. There is nothing in the record which tends to show that at the time
the order was made the court knew or had reason to believe that Poco had been
previously convicted of an illegal marriage. That fact was developed on his
cross-examination after the order was made, a fact of which the defendant could
not then take advantage.

Act No. 2709 was largely enacted for the use and guidance of the trial
court.

We have no right to assume that the court had knowledge of the fact that Poco
had previously been convicted of the crime at the time the order was made. If
that fact had been called to the attention of the court before the order was
made, another and different question would be presented, and one of which the
defendant might have a right to complain.

The trial court who heard and saw the witnesses testify found as a fact that
the defendant was one of the principals in the commission of the crime.

The evidence is conclusive that, through a concerted action on the part of
all of them, that two of the defendants at night went to the home of the
deceased where they found him lying in bed, and induced him to go with them to
the adjoining cemetery, for the ostensible purpose of stealing some goats. That
after going there and without any cause or provocation, he was treacherously
attacked by Victorino Catapang and the appellant with bolos and clubs,
who inflicted upon him twenty-one wounds, three of which were mortal. Upon that
point the testimony is conclusive. The defense is an alibi, but it is not
sufficient to overcome the direct and positive proof of the prosecution.

We agree with the fiscal that upon the facts shown the defendant is guilty of
the crime of murder, the penalty for which in this case would be seventeen
years, four months and one day of cadena temporal, but it appears from
the record that during the trial the fiscal agreed in open court that the crime
charged in the information should be reduced to homicide, and that at least two
of the defendants who are equally guilty with the appellant were sentenced by
the lower court to twelve years and one day of reclusion temporal, and
they have not appealed.

All things considered, the judgment of the lower court is affirmed, with
costs. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Ostrand,
and Romualdez, JJ., concur.