PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PEDRO BORJA, PEDRO FUSTIGO, INOCENCIO DEMEN, RUFINO PAVIA, FELIPE BENAVIDES, DOMINADOR DE LOS SANTOS, JOHN DOE, AND RICHARD DO…

This is an appeal from the consolidated decision of September 8,
1960, by the Court of First Instance of Albay, in
Criminal Case No. 2578 for murder, and Criminal Case No. 2590 for frustrated
murder, both bearing the identical titles, PP. vs. Pedro Borja,
Pedro Fustigo, Inocencio Demen, Rufino Pavia,
Felipe Benavides, Dominador de los
Santos, John Doe and Richard Doe.

The decision convicted
the accused, as follows:

In Criminal Case No. 2590, the Court, fully convinced that Pedro Borja, Pedro Fustigo, Inocencio Demen, Rufino Pavia, Felipe Benavides
and Dominador de los
Santos, are guilty beyond the peradventure of reasonable doubt of the crime of
frustrated murder, as principals, hereby sentences
each of them to undergo imprisonment ranging from six (6) years, one (1) month,
and eleven (11) days of prision mayor,
as the minimum, to fourteen (14) years, ten (10) months, and twenty-one (21)
days of reclusion temporal, as the maximum; to suffer inherent accessory
penalties; to indemnify the offended party, Salutiano
Isorena, in the sum of P5,000.00, as moral and
exemplary damages, severally and jointly, but not to undergo subsidiary
imprisonment in case of insolvency, by reason of the nature of the penalty
imposed; and to pay the costs of this proceeding on equal basis.

In Criminal Case No. 2578,
the Court after having been convinced beyond the realm of reasonable doubt of
the guilt of Pedro Borja, Pedro Fustigo,
Inocencio Demen, Rufino Pavia, Felipe Benavides
and Dominador de los
Santos, of the crime of murder, as principals, deeply hurting as it is, hereby
sentences each of them to the maximum penalty of death; to suffer inherent
accessory penalties; to indemnify the offended parties, Mercedes Chuidian Vda. de Gancayco and her children in the sum of P6,000.00 for the death of Santiago Gancayco,
Jr., as a matter of law and practice, and another amount in the sum of
P30,000.00 as moral and exemplary damages, both severally and jointly, but not
to undergo subsidiary imprisonment in case of insolvency, by reason of the
nature of the penalty imposed; and to pay the costs of this proceeding on equal
basis.

In the decision, the trial court – pursuant to the Revised Penal
Code, Article 5 – recommended to the President, through the Secretary of
Justice, with respect to the accused Dominador de los Santos,
“that executive clemency be extended to him, or that at least his death
penalty be minimized or commuted to life imprisonment.” The court so
recommended because “the testimony of this accused had contributed in a
large measure to the Court in its pursuit of truth and justice in these
cases.” It should be stated here that by resolution of January 24, 1966, the Court noted the
contents of de los Santos’
motion withdrawing his appeal in this case.

It appears that on December
18, 1958, the Anderson Fil-American
Guerrillas (AFAG) held a general meeting at the bahay-pulungan
of the religious sect known as Watawat Ng Lahi at Barrio Buragwis, Legaspi City.  The locale of the meeting was so chosen because
many AFAG members are also Watawat members.  One of the accused, Pedro Borja,
presided over the meeting, which was attended by more than a hundred
members.  Borja,
who has the rank of a full colonel, is the AFAG head for the entire Bicol region, which is said to have 36,000 members.  He had good news for the members:  he announced that their backpay
was forthcoming at the rate of P36,000.00 for a
ranking officer, and a lesser amount for those of lower rank.

When the meeting ended, Borja called an
exclusive conference among selected officers and members, including the other
accused Rufino Pavia, Inocencio Demen, Pedro Fustigo, Felipe Benavides, Dominador
de los Santos,
Alejo Balimbing, and Tito Oljina.  (The last
two, now deceased, are referred to in the title of this case as John Doe and
Richard Doe).  At the secret meeting, Balimbing proposed to Borja that
they conduct a raid the following morning at the Hacienda San Miguel, located
at San Miguel Island,
across the bay from Tabaco, Albay.  That same evening, Demen
cleaned a .45 caliber pistol.  The
conference over, all eight men slept in the bahay-pulungan.

When they woke up the next day, December 19, 1958, the eight men held an early-morning
conference.  Balimbing
aired to Borja his grievances against Santiago Gancayco, Jr. the manager of the hacienda.  Balimbing charged
that it was Gancayco who killed Balimbing’s
cousin at Rawis, Tabaco, Albay.  Balimbing further
complained that it was Gancayco who ordered that the camote plantations of the hacienda squatters – who were
related to Balimbing – should be bulldozed.  It appears that Balimbing
was only rehashing what he had already related to Borja
several months before, at the AFAG regional headquarters at Pili,
Camarines Sur.

That same morning, the eight men left by bus
for Tabaco, via Legaspi City.  They were armed as
follows:  Borja
had two pistols tucked in a shoulder holster; Pavia had a .45 caliber pistol; Balimbing had a hunting knife with a scabbard; and Fustigo had a pistol. 
They were attired as follows:  Borja wore a khaki suit, black jacket, buri
hat, and sunglasses; Demen wore a khaki suit; Fustigo wore a blue shirt and khaki pants; de los Santos wore a red T-shirt, brown jacket, and maong pants; Benavides wore denim pants and printed polo shirt;
Pavia wore a striped polo shirt and denim pants with
jacket; Balimbing wore white pants; and Oljina wore a brown polo shirt and khaki pants.

In Tabaco, the group went to Barrio San
Jose, where they ate breakfast at the house of de los
Santos’ brother.  Upon Borja’s
instruction, Balimbing hired a motorboat operated by
Mariano Burac, who observed at the trial that the
eight men acted suspiciously and conferred sotto voce among
themselves.  They crossed the bay, and
the group disembarked at the hacienda. 
At a seashore conference, they agreed to pose as members of the
Philippine Constabulary, ostensibly on a mission to inspect the firearms of the
hacienda.  At this time, Borja started to wear a pair of white gloves.  They proceeded on their way, and Balimbing tried to open the bamboo gate of the fence
surrounding the manager’s house.  He was
accosted by Emilio Lanon, a security guard and barrio
lieutenant of the hacienda, who was later one of the principal eyewitnesses for
the prosecution.  Balimbing
and Lanon knew each other.  Balimbing
introduced his companions as PC officers and soldiers, identifying Borja as a major and Pavia as a sergeant.

On Lanon’s advice, Balimbing
proceeded to the office and emerged with Salustiano Isorena, the hacienda overseer.  Isorena told Lanon to inform Gancayco about
the presence of the visitors.  Then, on Pavia‘s
advice, he and Isorena went to the house, where Isorena informed Mrs. Gancayco
about the visitors.  On Mrs. Gancayco’s suggestion, the group went to the office to wait
for Gancayco, who arrived later.

Gancayco shook hands with Borja and Pavia.  He offered Borja a
pack of cigarettes, from which Borja took one
stick.  Informed of the group’s alleged
mission, Gancayco instructed Isorena
to present the license of the firearms. 
But Isorena failed to find the license in the
office, so Gancayco went to the house to look for it
there.  While in the house, he instructed
his wife to prepare a meal for the guests.

Gancayco returned to the office, gave
the license to Isorena, and then left.  Isorena presented
the license to Borja, who remarked that the license
listed only five firearms, as against reports received at the headquarters in Albay that there were ten firearms in the hacienda.  Borja then ordered Isorena to produce the firearms for inspection; Isorena, in turn, instructed Lanon
to get the firearms.  Lanon
went to the house and obtained a carbine, the magazine of which he removed; as
well as a shotgun.

On his way back to the office, he met de los
Santos and Oljina,
who took the firearms and the magazine from him.  Isorena again
instructed Lanon to get the other firearms.  In compliance, Lanon
sent Jaime Rawit to get the grease-gun from Lanon’s house, while Lanon
himself went to Gancayco’s house to get another
grease-gun which had no magazine.  Rawit and Lanon met at Gancayco’s house and from there, while Lanon
was carrying the two grease-guns, he met Demen and
Benavides, who took them away.

The group had now succeeded in obtaining possession of four of
the five firearms, and they were not able to get the one remaining firearm only
because it was with an hacienda employee guarding
cattle some kilometers away.  An
atmosphere of menace descended on the hacienda as the men loaded the firearms
and took a hostile stance.  An apprehensive
Isorena asked the equally perturbed Gancayco for instructions, but was only cautioned to remain
calm and deal courteously with the group, as Gancayco
had already sent someone to Tabaco to request police
assistance.

During this time, Balimbing was
investigating Lanon inside the bodega.  Lanon was
surrounded by Balimbing with a hunting knife, Pavia with a .45 caliber pistol,
and Benavides with a grease-gun.  In the
course of his interrogation, Balimbing told Lanon that they were going to kill Gancayco,
Isorena, Lanon, and one
Pablo Balimbing, chief herder of the hacienda,
because these employees were bootlickers to the Gancaycos.  Then Balimbing
pushed Lanon out of the bodega.

Gancayco and Isorena
were talking at the balcony of the house. 
They were approached by Demen who had a
grease-gun, and Oljina who had a shotgun.  De los Santos
with a carbine posted himself under the citrus tree
near the water tank in front of the house. 
Gancayco asked to see a search warrant from Demen and Oljina, who referred
him to Borja. 
So Gancayco and Isorena
descended and inquired for the warrant from Borja,
who was standing in front of the house. 
Instead of replying, Borja talked to Pavia, who was near the
guardhouse.  Borja
then called Balimbing and, referring to Gancayco and Isorena, ordered him
to “fix them up” since it was already getting on towards noon.  Borja herded the other men of the hacienda inside the
bodega, where they were guarded by Benavides who was armed with a grease-gun, and Fustigo with a
pistol.  Borja
faced the hacienda personnel, holding in readiness his two pistols.  Lanon stood in
front of him, facing out of the bodega.

In the meantime, Balimbing, Pavia, Demen,
de los Santos,
and Oljina escorted Gancayco
and Isorena towards the office.  Isorena went up the
stairs and turned around when he reached the top; behind him, de los Santos held
a carbine in a ready position.  Benavides
asked Gancayco for the magazine of the grease-gun he
was holding.  When Gancayco
answered that it had no magazine, Benavides accused him of lying and sideswiped
him with the grease-gun.  Then Benavides
left for the bodega.

Now the men surrounded Gancayco in
front of the office.  Facing him was Balimbing, who was swinging his hunting knife.  Also facing him, to Balimbing’s right, was Pavia whose jacket, draped over
his left arm, concealed his right hand which held a .45 caliber pistol.  To Pavia‘s right was Demen, who was
aiming the grease-gun at Gancayco.  Slightly behind Demen,
Oljina aimed the shotgun at Gancayco.

Balimbing accused Gancayco
of killing Balimbing’s cousin, and demanded that Gancayco produce the .45 caliber pistol which he claimed
was used to perpetrate the death.  Gancayco explained that
it was not he but Solon Demetrio who accidentally
shot Balimbing’s cousin, and that Gancayco
had no such pistol.  Pavia interjected that it was unbelievable for Gancayco, as manager of the hacienda, not to have such a
pistol.  But Gancayco
insisted that there was none.

While this exchange was taking place, Gancayco,
who was unarmed, stood with his back towards the foot of the stairs.  He was surrounded by Balimbing
who held a hunting knife; Pavia
who held a .45 caliber pistol concealed beneath his jacket; Demen
who held the grease-gun with his arms down and the muzzle of the gun pointed
slightly upward; and Oljina who held a shotgun.  The four men were about two meters away from Gancayco.  Up in the
balcony, de los Santos
stood guard with a carbine in ready position, standing slightly back of Isorena.  Gancayco and the four men were about four meters away from Isorena and de los Santos.

Gancayco had insisted that he had no
.45 caliber pistol.  At this fateful
moment, Pavia
suddenly jerked his right hand upward and fired point-blank with his .45
caliber pistol at Gancayco.  Hit, Gancayco
stooped to hold the pit of his stomach and cried, “Aray
ko po!”
Instinctively, he stepped backward and was turning around when Demen fired at him with a grease-gun.  He ran away in a crouching position towards
the citrus plantation, while Demen continued firing
at him.  Then Demen
aimed rapid fire at Isorena, who fell flat on the
balcony floor.  Demen’s
line of fire accidentally caught de los Santos
in the forehead.

At the outburst of gunfire, Borja
rushed out of the bodega.  He saw Gancayco running towards the citrus plantation and he
shouted: “Habulin! Habulin!” The
men carrying their firearms gave chase; they were led by Demen
and included de los Santos.  They ran along the road towards a cluster of
houses in the northern part of the hacienda, but they stopped in front of the
house of Estrella Cortezano.  Balimbing asked Cortezano whether she saw where Gancayco
went, but he got a negative answer.  As
the men ran in pursuit, Gancayco traversed the citrus
plantation and reached the cluster of houses. 
Although he was bleeding profusely, he managed to cross the road and to
open the gate by removing one of the bamboo railings.  He then turned towards the trail that wound
through the abaca plantation at the left side of the road.

While the pursuers tracked their prey, Lanon
left the bodega by the back door and went to Gancayco’s
house.  Mrs. Gancayco
told him to close all the windows and take the children downstairs, and he
complied.  Then he left the house and
looked for Gancayco whom he found in the abaca
plantation, climbing a small hill towards another cluster of houses at the
hilltop.  Lanon
found Gancayco bleeding profusely in the breast.

Gancayco, his wife, and children, Isorena, and some other personnel of the hacienda, were
able to rendezvous at the seashore.  They
got into a waiting motorboat and sped away towards Tabaco,
in the hope of taking the wounded men to the hospital there.  But this was not to be, for en route, Gancayco died in the arms of his wife.  His body was brought to Manila,
where it was examined and autopsied by the National Bureau of
Investigation.  Although seriously
wounded, Isorena survived.  He received first-aid treatment at the Tabaco Hospital
and was airlifted the next day to Manila
where he was confined, first at the North
General Hospital,
and then at the National Orthopedic
Hospital.  Dr. Casiano Flaviano, a resident physician at the National
Orthopedic Hospital
who treated Isorena testified that the latter would
have died from his injuries had he not received immediate medical attention.

While events unfolded on Tabaco Bay,
the group of eight men reached the seashore and chanced upon a motorboat
anchored there.  Balimbing
wrapped the four firearms in some anahaw leaves.  When the men discovered that the motorboat
did not have enough gasoline, they looked for another and dragooned Bienvenido Taller into transporting them.  Taller observed that the eight men were
excited and apprehensive.  Balimbing told him, with some braggadocio, that they had
just killed Gancayco and Isorena.  The men alighted at the lighthouse at Malinao and immediately afterwards, Taller reported to the
police authorities of the town.  However,
he was advised to report to the police authorities of Tabaco,
who had jurisdiction over the case.

The eight men reached the poblacion
of Malinao.  On
Borja’s orders, they bought a jute sack where they
placed the firearms.  Borja
instructed Pavia
and Demen to make their separate way towards Barrio Buragwis.  Before he
left with Demen, Pavia left his .45 pistol with Balimbing.  The
remainder of the group boarded a passenger bus going to Tiwi.

As the bus stopped near the market at Tiwi,
another car overtook it and policemen from Tabaco,
headed by Chief of Police Ceferino Firaza, alighted and surrounded the bus.  Firaza in a loud
voice called for the surrender of all those in the bus responsible for the
killing at the Hacienda San Miguel.  He
was suddenly fired upon by Borja and then by Balimbing.  The
fusillade hit him on the right cheek, and he ordered his men to return
fire.  The encounter resulted in the
death of Balimbing and Oljina;
the capture of Benavides and de los Santos;
and the escape of Borja and Fustigo.  Lt. Melanio Rey of the Tabaco police
confiscated the firearms, magazines, and ammunition taken from the hacienda;
the .45 caliber pistol and its shell; the hunting knife and its scabbard from
the dead body of Balimbing; and other paraphernalia
from the dead bodies of Balimbing and Oljina.

The encounter in Tiwi took place in the
afternoon of December 19, 1958.  Subsequently, the rest of the band fell one
by one into the hands of the law.  Pavia, Demen,
Fustigo were arrested, and Borja,
the last one to fall, was captured on February
27, 1959 after a nationwide manhunt.

The trial judge characterized this narration of the shooting of Gancayco and Isorena as both
watertight and airtight.  He found that
the tenor of the evidence presented – consisting in the main of the testimony
of Isorena, an eyewitness; and of the accused de los Santos, who testified for the state during Borja’s separate trial – was confirmed by the testimonies
of the medico-legal expert and the ballistician.  He noted that the five accused who were separately
tried from Borja admitted all the facts leading to
the shooting, but interposed the common defense of fear of Borja,
who, they claimed, had threatened disobedient AFAG members with death.  The trial judge was not persuaded and he
discounted this common defense, characterizing it as “an after-thought to
save their respective skins in the face of the overwhelming evidence of the
prosecution pointing to their voluntary participation in the commission of the
crimes of murder and frustrated murder.” Instead, the trial judge found
that the five men participated in the killing “because they were inspired
by the juicy thought or promise of an enormous amount of backpay
for each.”

Borja, who was still at large at the
time the five accused were being tried, had a separate trial.  The trial court found that he “has a
version entirely distinct and separate from that of the five accused, which
version in turn is astronomically far from the evidence presented by the
prosecution.” Borja washed his hands of any complicity in the killing which he
sought to lay at Balimbing’s door.  Conveniently for Borja,
Balimbing is dead and cannot tell his tale.  But like his colleagues, Borja
failed to convince the trial judge.  Noting that Borja was the commanding
officer of eight AFAG regiments in the entire Bicol
region, while Balimbing was just a sergeant, the
trial court refused to believe that Balimbing openly
defied Borja by instigating the sanguinary episode at
the hacienda.  Instead, the trial
court declared: “The contrary was the real and painful truth.  Pedro Borja was the
leader of the group that raided Hacienda San Miguel, and he was the very one
who ordered the liquidation of Santiago Gancayco, Jr.
and Salustiano Isorena.”

The trial court found that conspiracy was “conclusively
established” and that “the guilt of all the accused has been
established by proof above the shadow of doubt.” It found that the killing
of Gancayco constitutes murder, while the shooting of
Isorena constitutes frustrated murder.  The trial court held that either evident
premeditation or treachery qualifies the crimes to murder and frustrated
murder; since the law requires only one qualifying circumstance, the other
should be considered as an aggravating circumstance.

The trial court found five aggravating circumstances against Fustigo, Demen, Pavia, Benavides, and de los Santos, to
wit:

(1) the crimes of murder and frustrated
murder were committed by a band, or with the aid of armed men;

(2) means were employed to weaken the
defense, wherein is included taking advantage of superior strength;

(3) craft, fraud and/or disguise were
employed;

(4) there was promise of backpay in the commission of the crimes; and

(5) there was treachery or evident
premeditation, depending upon whatever is used to qualify the crimes to murder
and frustrated murder.

With respect to Pedro Borja in both
cases, the trial court considered against him four aggravating circumstances,
consisting of the five above-mentioned, but excluding the promise of backpay.  It found
another aggravating circumstance in the case of frustrated murder, i.e. dwelling.  Hence, in the case of frustrated murder, it
found six aggravating circumstances against Fustigo, Demen, Pavia,
Benavides, and de los Santos;
and five aggravating circumstances against Borja.

All the five accused in the first trial admitted practically all
the evidence for the prosecution in their testimonies in their own behalf, and
additionally in their respective affidavits narrating their individual
participation in the commission of the two crimes.  Moreover, they freely and voluntarily
re-enacted the crime at the hacienda,
in the presence of the trial judge.  The
re-enactment proceedings were photographed and tape-recorded, and bore out the
version testified to by Isorena and Lanon, eyewitnesses for the prosecution.

In the Brief for all accused-appellants except Pedro Borja, John Doe, and Richard Doe (John Doe and Richard Doe
refer to Alejo Balimbing
and Tito Oljina, who were killed during the en­counter
at Tiwi), the five accused – Fustigo,
Demen, Pavia, Benavides,
and de los Santos – do not deny their culpability for
the offenses charged.  In their Brief, they prayed for the reduction
of the penalty from death and its accessory penalties, to reclusion temporal
and its accessory penalties.  They
admitted with candor: “The finding of facts in the decision of the trial
court having been found to be a faithful narration of the incident as related
during the trial of the case and given in the two occular
inspections of the premises where the shooting happened, it would seem a use­less
endeavor to reiterate said findings of facts. . . .” (Brief
for the Accused-Appellants except Pedro Borja, pages
6-7).

The five accused controverted the
findings of the trial court that there were five aggravating circumstances in
the case for murder.  Instead, they contended
that the trial court should have appreciated only three aggravating
circumstances.  They reasoned that any of
the alleged aggravating circumstances should necessarily be absorbed to qualify
the crime of murder, thereby leaving only four aggravating circumstances.  Moreover, they argued that the aggravating
circumstance of promise of backpay was not alleged in
the information, and consequently should not be taken as an aggravating
circumstance.

We find that the trial court correctly considered that either
treachery or evident premeditation qualifies the crime to murder, and hence the
other alternative circumstance should be considered as aggravating.  We reject the contention of the five accused;
for while it is true that the aggravating circumstance of promise or reward was
not alleged in the information, nevertheless, it was proven during the trial,
and therefore can be considered as a generic aggravating circumstance, though
not a qualifying circumstance.  (People of the Philippines vs. Navarro, et al., L-20860, November
28, 1964, 12 SCRA 530).  On the
other hand, as Borja contends, infra, the
other aggravating circumstances are absorbed by alevosia
or treachery.  Hence, if it is treachery
which is considered as the qualifying circumstance, there remain two generic
aggravating circumstances which attended the com­mission of the two crimes with
respect to the five accused:  evident
premeditation; and promise or reward (which does not apply with respect to Borja.)

The five accused contended that there were three mitigating
circumstances in their favor:  lack of
instruction; fear of Pedro Borja; and lack of
motive.  We find no merit in this
contention.  The argument of lack of
instruction is based on the allegation that the five accused did not finish
primary education.  But the defense
adduced no proof to establish the existence of this circumstance, leaving in
full force the holding that extenuating circumstances must be proven positively
and cannot be based on mere deduction or inference.  (PP. vs. Sakam, et al., 41566, December 7, 1934, 61 Phil. 27).  If by “lack of instruction” the
defense refers to illiteracy, it is not sufficient to constitute a mitigating
circumstance, for there must also be lack of intelligence.  (PP. vs. Gorospe, L-10644-45, February 19, 1959, 105 Phil. 184; PP.
vs. Ripas, L-6246, May 26, 1954, 95 Phil. 63; PP. vs.
Semañada, L-11361, May 26, 1958, 103 Phil. 790; PP.
vs. Tengyao L-14675, November 29, 1961, 113 Phil.
465).

The second mitigating circumstance advanced by the five accused
is “awe and fear of Pedro Borja.” But the
element of fear is not one of those enumerated as a mitigating circumstance
under the Revised Penal Code, Article 13. 
If the defense refers to the element of “uncontrollable fear or
duress” which is an exempting circumstance under the Revised Penal Code,
Article 12, the argument is still invalid, for it has been held that the
element of duress should be based on real, imminent, or reasonable fear for
one’s life or limb and should not be speculative fanciful, or remote fear.  (PP. vs. Quilloy, No. L-2313, January 10, 1951, 88 Phil. 53).  We
find no evidence to support the claim that Borja
threatened any or all of the other accused.

The third alleged mitigating circumstance is lack of motive.  We are hard put to discuss this contention
because the Revised Penal Code, Article 13 does not include “lack of
motive” as one of the mitigating circumstances.  Finally, the defense argues that “the
undiplomatic attitude of Gancayco and Isorena, bordering on provocation” should be considered
as another mitigating circumstance.  This
contention is not borne out by the evidence; on the contrary, it appears that
instead of being “undiplomatic”, Gancayco
was pacific, and he counselled Isorena
that “the best thing for us to do is to talk to them peacefully and follow
them, whatever they want.” (T.s.n.
p. 1466).  This leaves as the only
remaining assertion of the five accused the claim that “the alleged
premeditated conspiracy to kill Gancayco was not
clearly revealed in the records of the case.” We shall discuss this
assertion in dealing with the defense of Borja.

In the Brief for the defendant-appellant Pedro Borja, the defense contended that since a separate trial
was held for Borja, the trial court erred in
rendering a single decision on which the findings of facts respecting Borja, based on evidence adduced during his separate trial,
are not distinctively set forth, thereby prejudicially impairing Borja’s substantial rights. 
We find no such impairment of the rights of the accused.  The evidence shows that the prosecution
established the same facts in the two separate trials.  Isorena and Lanon testified as eyewitnesses to the incident of December 19, 1958; de los Santos
testified as an eyewitness not only to the same incident, but also to events
before and after the shooting, showing conspiracy among the accused.  Other persons testified in both trials to
supply corroborating evidence.

Borja also contended that the trial
court erred in not according credence to Borja’s
defense and in finding him guilty on the basis in part of what is alleged to be
incompetent evidence adduced not at his separate trial but at that of his
co-accused, and in not acquitting him upon the ground that his guilt was not
proven beyond reasonable doubt.  This is
a blanket allegation which can be dealt with summarily, because the testimonies
of common witnesses in both trials clearly establish facts incriminatory to Borja.  More
specifically, Borja contended that the trial court
erred in finding that a conspiracy existed between Borja
and his co-accused.  We find this
contention to be an excursion outside the perimeters of credibility.  Borja was the AFAG
commander for the Bicol region.  After the second secret conference, he donned
spurious armed forces get-up, complete with uniform and two guns.  When he was introduced to the hacienda
personnel as a PC major in command of the group, it does not appear that he
raised any protest.  Instead, the
evidence shows that he issued the order to Balimbing
to “fix them up,” referring to Gancayco and
Isorena; and he also issued the order “Habulin! Habulin!”
when Gancayco ran for his life.  Borja
consistently acted the leader as he led the dash for illicit freedom.  He led the group in fleeing the island; instructed
that the firearms should be secreted away in a jute sack; and ordered his men
to separate into two groups when his group was surrounded by Tabaco policemen near Tiwi, where
Borja led the gunfight.

He eluded his trackers for more than two months until his
capture.  To flee the fold of the law is
to admit that one has transgressed that law. 
(PP. vs. Wilson, et al., 30012-15, March 7, 1929, 52
Phil. 907).  Borja’s
uncontested actions would be gratuitous and illogical, unless located within
the frame of conspiracy, which is their only reasonable context.  The evidence shows that Borja
acted in concert with the other accused in pursuance of the same
objective.  Hence, conspiracy attaches
and it is no longer necessary to obtain proof as to the previous agreement or
decision to commit the crime.  (PP. vs. Cadag, L-13830, May 31, 1961, 2
SCRA 388; PP. vs. Peralta, L-19069, October 29, 1968, 25 SCRA 759; PP. vs. Alcantara, L-26867, June 30, 1970, 33 SCRA 812).

Borja further contended that assuming
his criminal liability, the trial court erred in appreciating the qualifying
circumstances of treachery and evident premeditation; and the generic
aggravating circumstances of band or aid of armed men; use of means to weaken
the defense; craft, fraud, and/or disguise. 
This contention for the first part flies in the face of the
evidence.  Treachery was present because Gancayco was killed while he was unarmed, and surrounded by
enemies with firearms, including two grease-guns.  Thus, Gancayco was deprived of any means of defense while his enemies were exposed to
no risk arising from the defense which the offended party might have made.  True, Borja was
inside the bodega when the shooting took place; at his
physical absence does not exonerate him, for it was he who ordered the execution.  Moreover, where there is conspiracy,
treachery is considered against all the offenders.  (PP. vs. Carandang, et al., 32039, February 26, 1930, 54 Phil. 503).  The aggravating circumstance of evident
premeditation was sufficiently proved, for prior to the shooting on December
19, 1958, the accused met in two secret conferences and discussed the raid on the
hacienda in order to avenge themselves by exacting redress from Gancayco for allegedly killing Balimbing’s
cousin and bulldozing the camote plantations of Balimbing’s relatives.

However, Borja’s contention for the
second part is well taken.  The defense
argues that the circumstance of band and aid of armed men, cannot be taken
separately from the circumstance of use of means to weaken the defense, and advantage
of superior strength.  It was correctly
pointed out that all these circumstances are absorbed in treachery and may not
be considered independently.  (U.S. vs. Estopia, et al., No. 9411, September 29, 1914, 28 Phil. 97;
U.S. vs. Oro, No. 5781, August 14, 1911, 19 Phil.
548; U.S. vs. Vitug,
et al., No. 5430, September 8, 1910, 17 Phil. 1; PP. vs. Sespeñe,
No. L-9346, October
30, 1957, 102 Phil. 199; PP. vs. Lumantas, L-28355, July 17, 1969, 28 SCRA 764; PP. vs. Agustin, L-18368, March 31, 1966, 16 SCRA 467; PP. vs. Layson,
L-25177, October 31, 1969, 30 SCRA 32).  It
was also correctly pointed out that treachery absorbs the circumstance of
craft, fraud and disguise.  (PP. vs. Malig, et al., L-2083, May 30,
1949, 83 Phil. 804).  Nonetheless,
this leaves the aggravating circumstance of evident premeditation, which
applies to all the accused; and the aggravating circumstance of promise of backpay, which applies to all the accused, except Borja.

Lastly, Borja contended that, assuming
he is criminally liable, the trial court erred in not according him the benefit
of the mitigating circumstance of voluntary surrender.  We do not view this as error.  It appears that Borja
did not surrender but was captured on February
27, 1959.  His own witness,
Captain Eliseo Farol of the
Armed Forces of the Philippines,
testified that he received a report that Borja was
holed up at Barrio Sumakap, Cavinte,
Laguna. 
Accordingly, he sent a ranger team which located the house and called on
Borja to come down. 
As the house was surrounded by
soldiers, Borja offered no resistance.  Capt. Farol also
testified that while Borja was at large, he killed a
PC soldier in an armed encounter at Catanauan, Quezon, as a result of which he was indicted for murder in
the court of first instance in that province. 
Capt. Farol also declared that a prize of P2,000.00 was
put on Borja’s head for being a dangerous
fugitive.  These are not indicia of the
personality seeking voluntary surrender.

Mr. Santiago Gancayco, Jr., manager of
a 1,700-hectare hacienda and scion of a prominent family, is dead.  His demise when he was only in his early
thirties was rendered more tragic in that he breathed his last in the bosom of
his grieving family, consisting of his wife and six small children, in the
course of his flight from ostensible visitors who had suddenly been transformed
into cold-blooded killers.  Dr. Rizalino Reyes, Chief of the Medico-Legal Division of the
National Bureau of Investigation who performed an autopsy on the body of
Santiago Gancayco, Jr. testified that his death was
due to hemorrhage, severe, secondary to multiple gunshot wounds of the body and
that shock, traumatic was contributory. 
It was abundantly established in the trial court that his killing was
attended by treachery, which qualifies the crime committed by the perpetrators
into murder.

Five of the accused, namely: 
Pedro Fustigo, Inocencio
Demen, Rufino Pavia, Felipe Benavides and Dominador
de los Santos have been in custody since December 19,
1958, or shortly thereafter; while Pedro Borja was
apprehended on February 27, 1959.  It can
thus be seen that all of them have been under detention for over twenty years.

WHEREFORE, the judgment of the lower court in Criminal
Case No. 2590 is hereby affirmed in toto;
that in Criminal Case No. 2578 is modified in respect of the principal penalty
from death to reclusion perpetua for
lack of necessary votes, and in respect of the civil indemnity from P6,000 to P12,000.00.

SO ORDERED.

Fernando, C.J., Makasiar, Concepcion, Jr., Santos, Fernandez, Guerrero, De Castro, and Melencio-Herrera,
JJ., concur.

Teehankee, J., voted for affirmance of the death penalty.

Barredo, J., concurs in a separate opinion.

Antonio and Aquino, JJ., no part.