THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS, LEOPOLDO DOMENDEN AND EUFEMIO SEGUNDO, DEFENDANTS AND APPELLANTS.

On the night of January 15, 1958, Jovita Antolin, her son Pedro Antolin
Jr., Norberto Vargas, Jaime Foronda and Jovencio Ismael went to see a zarsuela being
shown at barrio Luna, Burgos, Ilocos Sur, on the occasion of the barrio
fiesta. After the zarsuela, at about 1:00 a.m. on January 16, 1958, the
five took the road home hiking in barrio Dayanki. Jovita saw the
accused Leopoldo Domenden and Eufemio Segundo walking about 2 1/3
meters ahead of them, on the right side of the road. When the group of
Jovita had overtaken the accused and was almost side by side with them,
the accused hurried their pace, advancing a little to the front.

And after looking at Foronda and Ismael, the two accused suddenly
retreated to the right, kneeled and without any warning, loosed a
fusillade in rapid succession with their guns a— .45 caliber pistol and
a carbine. When Jovita saw Foronda and Ismael fall, she rolled on the
ground reaching the shoulder of the western embankment. Before she
could recover from her fall, Pedro Jr. called “Mamang, my abdomen was
hit”. Jovita raised her head and shouted at the accused, saying “Oh
Pemyong and Poldo, what a crime you have committed. Why did you shoot
us in an unexpected moment?” For answer, the two accused turned their
guns on Jovita arid Domenden shot her below the right shoulder. And as
Ismael was crying and shouting for water, the accused kicked him until
he rolled to the culvert in the ditch. To find if Jovita was still
living, accused Domenden placed his foot under her body and pushed her
face upwards, but Jovita feigned that she was already dead and tried
hard to hold her breath, inspite of the fact that Domenden had stepped
on her stomach. After one of the accused had remarked that all were
dead except the boy, and that he would soon die also, the assailants
hurriedly went home. Jovita, benumbed, crawled to her son Pedro Jr. who
told her he was hit in the abdomen. Jovita, with much effort, reached
the house of Tomas Mina, in front of which the incident occurred. Mina
refused, out of fear, to carry Pedro Jr., but sought, upon Jovita’s
request, the help of barrio lieutenant Mauro Directo and councilor
Julian Carta. When help arrived, Jovita and her son were transported in
a jeep to the Provincial Hospital at Tamag, Vigan, Ilocos Sur. That was
3:30 in the morning. At 5:00 o’clock in the afternoon, Pedro Jr.
expired despite medical treatment.

According to the autopsy report of Dr. Jesus Degala, municipal
health officer of Burgos, Ilocos Sur, the deceased Jovencio Ismael
sustained four (4) gunshot wounds—one (1) at the left forearm, one (1),
at the middle of the left buttock; one (1) at the right buttock, all
thru and thru, and one (1) penetrating into the thoracic cavity, the
entrance of each was about 3/4 cm. in diameter (See Exh. A for a more
detailed description, p. 11, Record). The deceased Jaime Foronda
received five (5) gunshot wounds—one (1), at the occipital region; one
(1), at the right buttock, both thru and thru, one (1) at the thorax;
one (1) on the right buttock and one (1) on the left buttock, the
entrance of each, ranges from about 3/4 to 1 1/2 cm., in diameter (See
Exh. B for a more detailed description p. 12).

According to Dr. Estela Cariaga, resident physician of the Ilocos
Sur, Provincial Hospital, Pedro Antolin, Jr., died due to severe
hemorrhage, secondary to gunshot wound, which is more particularly
described as follows:

“WOUND, gunshot, thru and thru at lateral lumbar 1/2
cm. in its widest diameter lacerating the small intestines 3 times;
exit left iliac region stellate shaped with loops of small intestines
coming out.” (Exh. C, p. 30 rec.)

and Jovita Antolin sustained one (1) gunshot wound, thru and thru,
‘entrance, right shoulder 1/2 cm. wide, penetrating the thorasic
cavity, making its exit at the right posterior hemithorae stellate
shaped about the level of the interior angle of the right scapular’
(Exh. D) which would have caused her death had it not been for timely
medical treatment and assistance.

The accused offered an alibi, as defense, and a flat denial
of the imputations made by the witnesses for the prosecution against
them, regarding their participation.

The accused Eufemio Segundo tried to prove that at about 7 o’clock
p.m. of January 15, 1958, he took supper with his wife and children in
their house, at the poblacion of Burgos, only 70 meters from
the municipal building. At about 11 p.m. one Alfredo Basconcillo asked
if he could borrow a flash light. When Segundo was about to deliver the
flash light, he saw persons carrying someone (Teofilo Vitalis) to the
municipal building. As he was informed that Teofilo Vitalis was
stabbed, he decided to go with Basconcillo to the municipal building.
There he saw Atty. Bernardino Segundo and the Chief of Police of Burgos
(Orlando Quidaiigen) investigating Vitalis. Policeman Jose Rosario and
accused Leopoldo Domenden were, at the time, also in the municipal
building. A few minutes later, the Chief of Police, Rosario, Segundo
and Domenden heard a burst of gunfire. Not long thereafter, policeman
Emilio Manogan arrived and reported that a man was lying on the road in
barrio Dayangki. The Chief of Police and some policemen proceeded to
investigate the incident, accused Domenden stayed in the municipal
building and Segundo went home. Explaining the motive why Jovita and
Norberto Vargas testified against him, accused Segundo averred that
when he was a policeman, he used to raid the gambling den being
maintained then by Jovita and Norberto.

The accused Domenden, endeavored to show that on said date January
15, 1958, he was on duty, as policeman in the municipal building from
12:00 p.m. to 6:00 the following morning; that although his tour of
duty should start at 12:00 p.m., he was already at work at 11:00 p.m.
because Teofilo Vitalis, wounded, was brought to the municipal
building; that the Chief of Police caused a nurse and a lawyer to be
called; that the lawyer (Atty. Segundo) was taking the statement of
Vitalis, when they heard a burst of gunfire, followed by the arrival of
policeman Manogan who reported that a person was killed on the road in
barrio Dayangki and that policeman Manogan and Rosario went to the
place of incident, but accused Domenden stayed, to guard the municipal
building.

Predicated upon the above evidence, the trial court returned a verdict of guilty and sentenced the accused as follows:

“For each of the multiple murder, the accused
Leopoldo Domenden and Eufemio Segundo are each sentenced to suffer
reclusion perpetua or life imprisonment, with the accessory penalties
prescribed by law, to indemnify jointly and severally the heirs of the
deceased Jaime Foronda, Jovencio Ismael and Pedro Antolin, Jr. each in
the sum of P6,000.00, without subsidiary imprisonment in case of
insolvency in view of the nature of the principal penalty, and to pay
one-half (1/2) of the costs.

“For the frustrated murder
committed against Jovita V. Antolin, the Court further sentences the
accused Leopoldo Domenden and Eufemio Segundo each to suffer an
indeterminate penalty ranging from 4 years, 2 months, and 1 day of
prision correccional to 12 years and 1 day of reclusion temporal, with
the accessory penalties provided by law, and to pay one-half of the
costs.”

Upon denial of their motion for reconsideration and new trial, the
accused appealed to this Court and alleged that the trial court
committed error (1) In giving full credence and weight to the evidence
of the prosecution; (2) In not acquitting the appellants; (3) In
finding both the appellants guilty of frustrated murder with respect to
Jovita Antolin; and (4) In denying new trial.

No less than two eye-witnesses identified the accused Eufemio
Segundo and Leopoldo Domenden and narrated how, with treachery, they
fired and killed Jaime Foronda, Jovencio Ismael and Pedro Antolin, Jr.
and injured Jovita. Being one of the victims herself, Jovita must have
tried hard to recognize their assailants. In fact, she was shot because
she called the nick names of the accused and to eliminate witnesses,
the accused turned their guns on her. There can be no doubt regarding
the ability or opportunity of Jovita and/or of Norberto Vargas to
identify the accused. They were acquainted with the appellants prior to
the incident, and were only about 2 to 7 meters away from appellants
when the latter started the fusillade. When the shooting occurred, the
vendors and those who attended the zarsuela who were also on their way
home and were immediately ahead and behind the group of Jovita, carried
with them hasags and kerosene lamps, which illuminated the
scene of the crime. The moon was then beginning to rise. Immediately
before they were ambushed and while Jovita was side by side with
appellants, she clearly saw and recognized the appellants. From his
hiding or vantage place, where he sought cover after the first shot.
Norberto Vargas also saw the appellants shoot Jovita and kick the body
of Ismael.

It is contended that when Jovita was investigated by the Chief of
Police, after the incident, at the veranda of the house of Tomas Mina,
she said that because it was dark, she did not recognize their
assailants. Granting this to be true, for the sake of argument, she
explained, however, that as her son Pedro was found in a very serious
condition and she herself was wounded, she had to see first that her
son was brought to the hospital for medical treatment; which was the
most natural thing for her to do. But the following day of the
incident, she gave her statement to Sgt. Narciso Cabrera in the
presence of the Justice of the Peace of Burgos. And on the same day
also (January 17, 1958), Norberto Vargas gave his statement before the
same Sgt. Cabrera, in the presence of Pfc. Aurelio Dagdag. In both
statements, the two witnesses pointed to the appellants Segundo and
Domenden as the assasins.

It is likewise contended that Vargas had also admitted to barrio
lieutenant Cayetano Berras, Mayor Jose Lugayan and Atty. Segundo that
he, too, was unable to identify the assailants because it was dark at
the scene of the crime then. The testimony of these defense witnesses,
should be taken with a grain of salt. The alleged admission was
completely denied by Vargas who asserted that in 3 successive days in
October, 1958, (while the case was already pending in court), appellant
Domenden, accompanied by his counsel, Atty. Segundo, Atty. Debadeb and
a policeman, tried to convince him (Vargas) to sign a prepared
affidavit repudiating the first statement identifying the appellants
and that Atty. Segundo even dropped some money into Vargas’ pocket
which he threw back, because he did not want to sign the said
affidavit. Moreover, if it were true that Vargas had made such
admission, it is strange that Mayor Lugayan or Atty. Segundo did not
reduce it in writing, considering its vital importance to the defense.

The records disclose, that neither Jovita nor Vargas had any motive
to testify falsely in so serious a crime as that committed. Appellant
Domenden admits that he had no misunderstanding with Jovita prior to
the incident. They were close friends and even joked each other.
Appellant Domenden could offer no reason for Vargas’ testimony.
Appellant Segundo declared that he had no misunderstanding with Vargas,
although with respect to Jovita, he supposed she might have been angry
with him, because when he was still a policeman, he allegedly used to
raid her gambling joint. But this did not pass beyond a mere
supposition. And even at that, we do not believe it would be a
sufficient cause for the state witness to impute falsely, the
commission of a wholesale murder by the appellants, if the latter were
not really seen by said witness.

It is almost trite to be repeating herein, that appellants’ alibi
is weak and unconvincing, notwithstanding the herculean efforts of
counsel to convince the court that the testimony of the Chief of Police
Quidañgan, policeman Rosario, barrio lieutenant Basconcillo and defense
counsel Atty. Segundo, is veracious. For, with the exception of their
lawyer, all of said witnesses were members or former members of the
local police force who because of their close relationship with
appellants, can not be expected to testify truthfully. Mina Segundo who
testified that her husband (appellant Segundo) was in the municipal
building on the night in question is necessarily biased. According to
appellant Domenden, his tour of duty was supposed to start at 12:00
o’clock midnight. Yet, he reported for duty at 11:00 p.m., unusually
early. It was not explained why policeman Domenden, a resident of
barrio Dayanki, the situs of the killing, was not brought by the Chief
of Police who was accompanied instead by Pat. Rosario whose tour of
duty had already ended. Nor was it explained why appellant Segundo who
was all curiosity personified when he allegedly went to the municipal
building to see the wounded Vitalis, did not continue the same
attitude, uponx hearing the killing in question, to see who the victims
were. He just went home and did not join the party of the said Chief of
Police. The distance from the scene of the crime to the municipal
building was merely 2 1/2 kilometers; the house of appellant Segundo
was only 70 meters from the municipal building. It was not impossible
for them to have committed the offenses charged and returned unnoticed
to their respective places. In the face of the positive, direct and
straightforward testimonies of the eyewitnesses, identifying the
appellants as the assasins, the alibi, unreliable and weak as it is, “vanishes into the thin air.”

What could be the motive behind the killing? A few hours before the
incident, the deceased Jaime Foronda and appellant Domenden had an
altercation (Exh. 3 p. 4). Appellant Domenden harbored resentment
against Jovita, because he suspected her of having maintained illicit
relations with said Foronda. Pedro Antolin, husband of Jovita, who was
then working with the army, in the United States, is a close relative
of appellant Domenden. When Domenden’s uncle Anastacio, was killed by
one Rosalino Quinto on January 15, 1959, the deceased Foronda shielded
Quinto and threatened to shoot Domenden’s relatives who wanted to get
even with the Quintos.

It is claimed that the trial court had erred in not allowing a new
trial on the basis of the retraction made by Jovita Antolin and
Norberto Vargas or on the affidavit of Anacleto Zamora (Exhibits A, C,
C-1 and C-2), In their retractions, Antolin and Vargas wish the Court
to believe, that they were not able to identify the assailants and in
the affidavit of Zamora, the latter pointed out Ernesto, Pedro,
Rodrigo, surnamed Dasalla and Delfin Gapusan, as the assailants. It is
easy to see that these affidavits do not constitute newly discovered
evidence; and even if they are, they would not alter the result of the
case, in view of the evidence adduced in the trial. The motion for new
trial was therefore, appropriately denied by the trial court.

There being conspiracy, both appellants are responsible for the
gunshot wounds inflicted by appellant Domenden upon Jovita Antolin,
which wounds would have produced the crime of murder as a consequence
of the acts of execution performed by him, which did not, however,
produce it, by reason of causes independent of his will. Appellants
are, therefore, correctly found guilty of frustrated murder committed
on Jovita Antolin.

In view hereof, the guilt of appellants Leopoldo Domenden and
Eufemio Segundo of the crimes charged, has been proven beyond
reasonable doubt. The decision appealed from, being in accordance with
law and the evidence, is hereby affirmed, with costs.

Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala and Makalintal, JJ., concur.