G.R. No. L-21937. November 29, 1969
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FELIPE B. PAREJA, ET AL., DEFENDANTS, FELIPE B. PAREJA, DEFENDANT-APPELLANT.
PER CURIAM:
In the early evening of July
3, 1961, as Antonio Abad Tormis, lawyer and columnist-editor of Cebu City’s
leading daily newspaper The Republic News, came out of the Esquire
Barber Shop along Borromeo
street in Cebu City,
a man casually sidled alongside and greeted him courteously. Acknowledging the greeting but without
changing his normal pace, Tormis proceeded towards
his car, which was parked nearby. He had already entered his car and was about
to start the motor when the same man suddenly whipped out a revolver and pumped
three bullets into him. At practically
point-blank range, all three bullets accurately found their mark: two of them penetrated the victim’s heart and
death was instantaneous.
The news of the Tormis killing spread
like wildfire not only in Cebu
City but throughout the
nation. The violent death of Tormis, who was regarded as a leading local citizen, one
whose credentials as a crusading newspaperman had been impressive, arrested the
concern of an awakened public. Local as
well as national police agencies joined hands in tracking down the
perpetrators.
About a week after the occurrence, the police received a tip that
two laborers in the arrastre service at the port
of Cebu,
namely, Cesario Orongan and
Gaspar Mesa, might have had some participation in the
commission of the crime. First to be
apprehended was Gaspar Mesa, who, after being duly
investigated, executed a sworn written statement (Exh.
“GG”) relating in detail the incidents of the killing and the extent
of his participation therein. In his
statement Mesa admitted that he was
the gunman’s companion at the time. He
acknowledged having witnessed the actual shooting and positively identified
Cesar Roble[1]
as the one who fired the gun, pursuant to the instruction of a certain
“Toto”,[2]
who had earlier supplied the fatal weapon.
Mesa also admitted having
received P100.00 from Orongan to buy his
silence. Mesa
further declared in his sworn statement that hours before the shooting he and Orongan were taken by Toto to the office of appellant Pareja, where the murder plan was finalized. Thus:
“Q Do
you know what is the true name of Toto and where he works?
A I
do not know the true name of Toto, but I can recognize him if I see him, and I
know that he is working at the City Hall.
Q Why
do you know that Toto works at the City Hall?
A Because
on July 3, 1961, at about 9:00 o’clock in the morning I and Cesar Roble (Orongan) were brought by
Toto to the Office of Pareja at City Hall.
Q For
what reason and object did Toto bring you and Cesar Roble
to the office of Pareja?
A I
did not know because it was only Toto and Cesar Roble
who were talking in whispers.
Q On
that morning when you arrived at the City Hall, did you see Cesar Roble and Toto enter the office of Pareja
at about 9:00 o’clock in the morning
of July 3, 1961?
A I
saw Toto and Cesar Roble enter the office of Pareja and I was outside.
Q Who
is this whom you call Pareja at the City Hall?
A I
do not know Pareja, but at the Office which Toto and
Cesar entered, I saw a name ‘Pareja‘ and below ‘Treasurer’.”
(Exh. “GG-1”, p. 2)
Armed with this information, the police arrested Avelino Monzolin. When asked if he was the “Toto”
mentioned by Gaspar Mesa, Monzolin
promptly denied that he was the same person.
However, when brought before Mesa
for confrontation, Monzolin broke down and confessed
that he had been ordered by city treasurer Felipe B. Pareja
to contact a killer who would shoot Tormis for a
reward of P400.00, because Tormis had been relentlessly
attacking him (Pareja) in The Republic News
regarding the “garbage can scandal”.
Monzolin also pointed to appellant Pareja as the mastermind of the killing. His disclosures were finally embodied in a
written sworn statement (Exh. “MM”), part
of which reads:
Q Do
you know where Antonio Abad Tormis
is now?
A I
know, he is already dead.
Q Do
you know why Antonio Abad Tormis
died?
A I
know, sir, because last May Mr. Pareja started
ordering me to kill him that I could not do it, Sir. ‘Look for one of your friends’, but I did not
look for anyone who could do it because I was afraid to be implicated. Then on June Mr. Pareja
kept on scolding and insulting me because I did not look for anyone since I was
afraid to be implicated. At the end of
June he again reprimanded me because I did not look for anyone. Then I told him ‘Sir, please pity me; I may
be implicated and I have a family’, and he said ‘just tell them if they happen
to be apprehended they should just own the crime because they were mad at
someone, because if I am implicated who is going to spend during the trial. . .
‘
Q Do
you know the reason why Mr. Pareja ordered you to
kill Antonio Abad Tormis in
the month of May?
A Yes,
sir. Mr. Pareja
said that Mario Ortiz cannot also publish if it were not for that beast Tormis. Moreover, he
was continuously attacked in The Republic News, regarding the garbage
can. What Mr. Pareja
said was ‘what do I have to do with the garbage can since that came from Manila,
that Tormis is certainly crazy’.
Q Did
you comply with the order of Mr. Pareja to look for
one of your friends who could kill Antonio Abad Tormis?
A Yes,
sir. . . . “
Monzolin then proceeded to narrate, in
the same sworn statement, the events leading to the search for an assassin, how
the killing was to be subsequently carried out and the manner of its actual
execution. He also gave the information
that the gun used for the purpose came from Pareja,
to whom he returned it after getting it back from Orongan.
A search was thereupon launched to locate the weapon. Properly armed with search warrants earlier
issued by Cebu City Judge Maambong,
a seven-men team composed of an agent of the National Bureau of Investigation
(NBI), city policemen and Philippine Constabulary soldiers, proceeded to the
house of Pareja.
They were received by Pareja himself, who did
not register any protest against the projected search. But the team leader, PC Captain Bianzon, suggested that the search be first conducted at
appellant’s City Hall office, since at that early hour[3]
there would be no employees and kibitzers to hamper them. Pareja went along
and was cooperative enough to open his desk drawers as well as those of his
employees, and even the bigger one of his two steel safes. However, because he said he could not
remember the proper lock combination of the smaller safe near his desk, the
search of the premises was temporarily suspended and the team repaired back to
his house. Meanwhile, the unopened safe
was sealed and guards were posted to keep watch over it.
The search was continued at the house, after which the party
returned to his office. This time Pareja was able to open the small safe after casually
consulting a memorandum notebook he took from his shirt pocket. Among the articles found inside was a .32
caliber revolver COLT, SN-200425 (Exh.
“O”), which the prosecution later on established as the gun used in
the killing.
In the meantime, a combined force of police-PC–NBI men
went on a hunt for Orongan, finally locating and
arresting him on July 13, 1961. They frisked him and found a wallet which
contained a piece of paper on which was written “Avelino
Monzolin, c/o Treasurer’s Office, Cebu City.”
Orongan told the arresting officers that Monzolin had given him that piece of paper so that he would
know where to get in touch with Monzolin should he, Orongan, ever be in need of money. Interrogated by the NBI, Orongan
made a clean breast of his part in the crime.
His sworn statements were reduced to writing and then duly signed (Exh. “KK”), substantially corroborating
statements previously given by Monzolin and Mesa. He said that the .32 Caliber revolver he used
had been furnished him by Monzolin; that he killed Tormis in consideration of the sum of P400.00; that he
received the money from Monzolin when the latter took
back the revolver from him; and that he shot Tormis
on orders of Monzolin, who told him about having an
“understanding” with his boss.
Thus:
Q Do
you know any person here in the City of Cebu whose name is Toto Monzolin?
A Yes.
Q Why
do you know him?
A Because
he was always in the pier riding boats.
Q When
was that when you knew him in the pier?
A That
was quite a long time ago and possibly three or two years now. But his real name I did not know, yet.
Q When
did you actually know his real name?
A That
was during the incident because he left me an address.
Q What
do you mean during the incident?
A When
I shot because they ordered me.
Q Who
was that person shot and who ordered?
A The
person shot was Antonio Tormis and the one who
ordered me was Avelino Monzolin
because he had an understanding with his boss.
Q Who
do you mean his boss?
A It
is Pareja.
Q Who
is that Pareja?
A The
boss of Toto in his office in the City Hall.
. . . . . . .
. .
Primarily on the strength of the foregoing written statements and
the other evidence so far obtained, Felipe B. Pareja,
Avelino Monzolin, Gaspar Mesa and Cesario Orongan were charged with the crime of murder in the Court
of First Instance of Cebu. The information, dated July 24, 1961, alleged
conspiracy “with the attendant qualifying circumstance of treachery, and
the aggravating circumstances of: (1)
evident premeditation, (2) nocturnity, (3) taking
advantage of superior strength or employing means to weaken the defense, (4)
with the aid of armed men or persons to insure or afford impunity, and (5) in
consideration of a price, reward, or promise.”
Upon arraignment on August
4, 1961, Cesario Orongan
pleaded guilty and was accordingly sentenced, on the following August 11, to
“life imprisonment with all the accessories of the law, to indemnify the
heirs of the deceased Antonio Abad Tormis in the sum of P6,000.00 and to pay his proportionate
share of the costs.” Orongan has since been
serving his sentence.
The other defendants, Pareja, Monzolin and Mesa,
pleaded not guilty and trial proceeded with respect to them. The case for the prosecution, as established
by the evidence, is graphically and accurately restated in the decision of the
trial court (Judge Amador Gomez, presiding) as follows:
“1. That as columnist editor
of The Republic News, Antonio Abad Tormis had been conducting a vigorous and relentless
crusade for clean government and official morality, and an uncompromising
indictment of all forms of official venalities, graft, corruption, abuses, and
excesses;
“2. That the accused Felipe
B. Pareja, City Treasurer of Cebu,
particularly was the butt of strong and vitriolic comments and editorials of Tormis in The Republic News covering the period from
September 13, 1960 up to July 1, 1961, or two days before he was shot to death,
as may be gleaned in the various issues and numerous articles, comments and
editorials in the said newspaper, . . .
“3. That in those articles
and editorials Tormis in no uncertain terms put in
question the honesty of the accused Felipe B. Pareja
as City Treasurer, and vehemently urged that he be both administratively and
criminally investigated
a) for . . . receiving substantial amounts in the form of
‘kickbacks’ and thereby profiting personally in the anomalous transaction to
the detriment of the City of Cebu;
b) for the overpricing of office supplies. . .; and
c) hospitalization loan anomalies,. . .;
“4. That there were even
insinuations in the columns of Tormis that the money
thus acquired by Pareja from those sources were used
in buying properties and registered in the name of Aurora B. Reynoso, allegedly an employee in the Office of the City
Treasurer with whom Pareja maintained illicit
relations;
“5. That in the face of the
continuous and persistent blasts of Tormis against
him in the newspaper, the accused Felipe B. Pareja
felt that Tormis was out to destroy him and would not
stop until he is removed from office and/or put to jail;
“6. That exposed thereby
almost daily to public humiliation by Tormis in his
unrelenting campaign in the newspaper for his investigation and prosecution,
Felipe B. Pareja finally arrived at the conclusion
that the elimination of Tormis was the only solution;
“7. That the accused Felipe
B. Pareja had a confidant and a bodyguard in the person
of his co-accused Avelino Monzolin,
who was employed in his office, and who had been enjoying his protection
despite the fact that he was a police character;
“8. That since May, 1961
Felipe B. Pareja has already been urging Avelino Monzolin, to eliminate
Antonio Abad Tormis
himself, but the latter told him that he could not do it, whereupon Pareja urged Monzolin to look for
one among his friends who would not be afraid to kill Tormis,
but Monzolin still declined because he was, afraid to
be implicated;
“9. That on June, 1961, Pareja kept on scolding and insulting Monzolin
for not helping him eliminate Tormis, and so Monzolin contacted one Fernando Frecillas
alias Pandot, a notorious underworld character in the
waterfront and asked the latter point-blank whether he had the guts to kill
somebody for a reward, but Pandot declined, saying he
could not kill a man who is not his enemy; Pandot,
however, suggested that one Cesar, also a waterfront character, might be
disposed to do so;
“10. That Pandot further told Avelino Monzolin that Cesar could be contacted by Gaspar Mesa who happened to be near the two of them at the
time, and who allegedly was the constant companion of Cesar;
“11. That Gaspar Mesa
accompanied Avelino Monzolin
to the house of Cesar at Villa-Abono, and once there Avelino Monzolin asked Cesar if
he had the guts to kill for a reward, and Cesar answered in the affirmative;
“12. It was then that
Cesar Roble (whose true name is Cesario
Orongan) agreed to do the killing of Antonio Abad Tormis for the sum of
P400.00 which, according to Avelino Monzolin, would be paid by his boss, City Treasurer Felipe
B. Pareja;
“13. That Avelino Monzolin furnished Cesario Orongan with a revolver, Exh. ‘O’, supplied by Felipe B. Pareja,
and with it Cesario Orongan
shot Antonio Abad Tormis to
death at about 6:30 in the evening of July 3, 1961 as he entered his automobile
parked in front of the Esquire Barber Shop in A. Borromeo
St., Cebu City, with Gaspar
Mesa for a companion, serving as the look-out man;
“14. That the next day, July
4, 1961, Cesario Orongan
and Gaspar Mesa went to Avelino
Monzolin to collect the P400.00 reward for the
killing; and Avelino Monzolin
left the house and went to see Felipe B. Pareja who
gave him the amount of P400.00 with which to pay the killer, but Felipe B. Pareja required Avelino Monzolin to secure back the revolver used in the killing of
Tormis before paying out.”
After trial, which lasted 102 days, during which scores of
witnesses for both sides testified and numerous exhibits were presented, the
Court of First Instance of Cebu found all three (3)
defendants guilty as charged and sentenced them to reclusion perpetua and to pay the heirs of the victim, jointly
and severally, the total sum of P131,785.65.
From this judgment of conviction, only Felipe B. Pareja
appealed. He assigns eight (8) errors in
the decision, to wit:
1. The lower court erred in
holding that the extrajudicial confessions of Gaspar
Mesa, Avelino Monzolin and Cesario Orongan were voluntarily
given.
2. The lower court erred in
declaring the extrajudicial confessions of Gaspar
Mesa, Avelino Monzolin and Cesario Orongan are admissible
evidence against defendant-appellant Felipe B. Pareja.
3. The lower court erred in
giving credence to the testimony of Cesario Orongan.
4. The lower court erred in
giving credence to the testimonies of Major Epifanio Hermosisima, Lauro Cauba, Captain Nicomedes Bacalso, and Municipal Judge Joaquin T. Maambong.
5. The lower court erred in
finding that Exhibit “O” is the death gun.
6. The lower court erred in giving more weight to the testimony of
Atty. Osmundo Galang in
relation to Exhibit “O” than the testimony of Lt. Simeon Molina.
7. The lower court erred in
holding that there was a conspiracy beyond reasonable doubt among the accused
to kill the late Antonio Abad Tormis.
8. The lower court erred in
convicting the herein defendant-appellant of murder and therefore erred in
sentencing him to life imprisonment, to pay the costs and to pay the heirs of
the late Antonio Abad Tormis,
jointly and severally with the accused Avelino Monzolin and Gaspar Mesa, the sum
of P131,785.65.
The question raised in the first assignment of error is
essentially factual: whether or not the
extrajudicial confessions of Gaspar Mesa, Avelino Monzolin and Cesario Orongan were voluntarily
given. Both Mesa and Monzolin
testified at the trial that they confessed because they were subjected to
physical maltreatment and torture.
The general rule, based on logic and experience, is that the
findings of the judge who tried the case and heard the witnesses are not
disturbed on appeal, unless there are substantial facts and circumstances which
have been overlooked and which, if properly considered, might affect the
result of the case.
With respect to Mesa’s extrajudicial confession, the following
observations of the trial court are both pertinent and convincing:
“Actually there is hardly anything damaging to the declarant Gaspar Mesa in that
written statement, Exhibit “GG”, except his having been in the
company of Orongan until shortly before the actual
shooting of Tormis, his having received P100.00 from Orongan, and his having been in possession of the hunting
knife, Exh. “W”, which was originally the
weapon intended to be used in stabbing Tormis. That statement of Gaspar
Mesa is obviously too tame and too innocuous insofar as he himself is concerned
to make likely and credible the claim that he made during the trial of the case
when he testified that, to extort that statement from him, the Police, led by
no less than their Chief, Higinio Pacaña,
and their assistant Chief, Major Efren Arnejo, had to punch him repeatedly at the solar plexus,
apply the so-called ‘hi-fi’ treatment of spurting into his nostrils the carbonated
soft drink ‘7-Up’, torturing him by squeezing his testicles, thereby causing
him to gasp laboriously for breath, threaten to kill him by putting the muzzle
of their guns in his mouth. If the
Police did resort to such brutality to secure a written statement from Gaspar Mesa, it does not stand to reason that they would
have been satisfied with the answers given by Gaspar
Mesa which are evasive insofar as he is concerned,. . . it is evident that he
(Mesa) was exempting himself from any guilty knowledge of the plan and
conspiracy to kill Tormis. The yield is too disappoitingly
meager for the (alleged) excessive display of brutality and inhumanity
on the part of the Police,. . .”
x x x
Obviously, Gaspar Mesa’s imputation of
violence, maltreatment, threats, and intimidation against the police
authorities is not characterized by spontaneity. He has allowed a period of almost one year to
lapse before making a revelation thereof.
He has had four previous opportunities of appearing before judges in the
months of July and August in the year 1961, when the events were still fresh,
and yet he made no such charge or complaint.
He first appeared before Judge Joaquin T. Maambong
on July 11, 1961 at 1:15 p.m. And on
July 20, 1961 he appeared before Judge Jose Mendoza in connection with the Habeas
Corpus proceedings, Sp. Proc. No. 2172-R “RRR”), not only in open
Court but also in chambers. And on July
24, 1961 at 2:55 p.m. he appeared before Judge Maambong. The fourth time was before the presiding
judge of this Court on the occasion of his arraignment on August 4, 1961.”
The same observations also hold true with respect to Avelino Monzolin. He had several opportunities, from the time
he was arrested to the day of the trial, to complain about the alleged physical
violence inflicted upon him, but he chose to wait for about a year before doing
so. Said the Court:
“Avelino Monzolin
has executed and sworn to more documents than has co-accused Gaspar Mesa. He not
only executed the extrajudicial confessions, Exhs.
‘LLL’ and ‘MM’, on July 11 and 16, 1961, respectively, and the request he made to
the PC Provincial Commander for protective custody, EXH. ‘NNN’, on July 11,
1961, but he also executed the deposition, Exh. ‘KK’,
on July 12, 1961 in connection with the application of the police authorities
for the issuance of a warrant for the search in the residential house of Felipe
B. Pareja and in his office as City Treasurer of Cebu at the City Hall for the revolver allegedly used in
the shooting of the late Antonio Abad Tormis. Avelino Monzolin has therefore
appeared four different times in the month of July 1961 before the Municipal
Judge, Hon. Joaquin T. Maambong. Each time he confirmed the contents of the
documents which he in fact subscribed and swore to before the judge. Not once did he complain to him against the
police authorities for alleged maltreatment in securing any of those statements
from him. Then not long thereafter
during that same month of July, 1961, General Campo, Chief of the Philippine
Constabulary no less, came to Cebu and visited Monzolin and Mesa in the PC stockade, and made direct inquiries
from them about the treatment they had been receiving from the police authorities,
and Avelino Monzolin
testified before this Court that he told the General they had no complaint, and
that they had been receiving good treatment.+++ Then on August 4, 1961, Avelino Monzolin, like Gaspar Mesa, also appeared before this Court on the
occasion of his arraignment. He was then
told of his rights under the law to have the assistance of counsel to defend
him at every stage of the proceedings. Monzolin never complained to this Court then of any alleged
maltreatment that he has received from the police.”
Inasmuch as Cesario Orongan,
the confessed gunman, aside from executing his extrajudicial confession also
testified during the trial, the question of the voluntariness
of his extrajudicial confession has little relevancy under the first assigned
error. His part in the killing will be
more extensively dealt with later.
In the main we see no valid reason to differ with the trial court
in its conclusions regarding the manner the extra-judicial confessions were
taken. They are replete with details
known exclusively to the declarants. The narrations reflect spontaniety
and coherence, and the response to every question is so fully informative, in
many instances going beyond what the question calls for, as to indicate that
the mind of the declarant was free from extraneous
compulsion or restraint. We are thus
satisfied that the confessions, viewed objectively and in the light of the
testimony of the officers who took them and before whom they were signed, were
voluntary given. (People vs. Cruz, 73
Phil. 615.)
One additional factor militates against Monzolin’s
and Besa’s claim of maltreatment. Dr. Fe Sison, a
doctor in the Southern Islands Hospital, testified that in the early hours of July 12, 1961, those two were brought
to her by the police, and in her capacity as the medico-legal officer on duty
she examined them physically. She found
no traces of physical injury on their persons, nor did they complain of
any. Although another physician in the
same hospital, Ruben Arquillano, also testified and
said that the physical examination made by Dr. Sison
was rather haphazard, not much weight can be accorded to his testimony. His opinion as to how Dr. Sison
conducted the physical examination is at best subjective; and in any case even
a casual examination would have revealed signs of maltreatment, if there were
any, or at least elicited some complaint of pain and discomfort from the
persons being examined.
The second error assigned touches on the admissibility of the
extrajudicial confessions of Monzolin, Mesa
and Orongan as evidence against appellant Pareja. It is urged
that even granting that they were voluntarily made, they may not be used
against Pareja because “x x
x it is a fundamental rule of evidence that
confessions are admissible only against the makers”. It must be borne in mind, however, that the
said confessions, while not admissible as proof in themselves of specific
acts imputed to Pareja, may be taken into
consideration as strongly indicative of the truth of the other evidence against
him, particularly the testimony of the confessed trigger-man, Cesario Orongan.
The prevailing rule is that in the absence of collusion among the
declarants, their confessions should be read together
in order to form a complete picture of the whole situation and to consider them
collectively as corroborative or confirmatory of what evidence there is apart
from the confessions themselves.
“Extrajudicial confessions, independently made without
collusion, which are identical with each other in their essential details and
are corroborated by other evidence on record, are admissible as circumstantial
evidence against the person implicated to show the probability of the latter’s
actual participation in the commission of the crime.” (People v. Condemena, et al., L-22426, May 29, 1968; 23 SCRA 910)
The case against the appellant is largely based on the evidence
given by Cesar Orongan at the trial. His credibility is assailed with
understandable vehemence. And it is that
credibility that finds strong support in his own previous extra-judicial
confession as well as in the confessions of Mesa
and Monzolin.
Above all, Orongan’s plea of guilt and
willingness to pay for his crime is a well-nigh conclusive proof of the truth
of his confession and, by the same token, of his testimony on the witness
stand.
Orongan’s testimony has been accurately
summarized by the trial court as follows:
“(1) That it was a Friday, the end of the month of June, 1961
when he was first sought by Gaspar Mesa and Avelino Monzolin in his house at
Villa-Abono;
(2) That Monzolin feted him to eats and
drinks that day and also the succeeding day;
(3) That it was on their second meeting that Monzolin
first told him about his ‘boss’ in the City Hall having an enemy whom he wanted
to kill;
(4) That Monzolin left that evening for Leyte and came back on Monday morning, July 3, 1961;
(5) That he and Monzolin took their lunch
at the latter’s house that day, and at 2:00 p.m.
they went to the City Hall;
(6) While they stood there waiting for Gaspar
Mesa, an automobile arrived, and Monzolin told Orongan that the man in the car was his ‘boss’;
(7) Monzolin approached the car and
opened the door thereof, and the person who stepped out of it was the accused
Felipe B. Pareja;
(8) Monzolin went up the City Hall with
his ‘boss’, while Orongan remained outside still
waiting for Gaspar Mesa;
(9) A short while after, Monzolin stepped
down, and the two of them proceeded to the waterfront, as Monzolin
claimed he would look for his elder brother and a nephew in the boat DOÑA
REMEDIOS;
(10) Then at about 3:00 o’clock
the two of them went back to the City Hall;
(11) Monzolin again went upstairs,
leaving Orongan outside with the instruction to await
the arrival of Gaspar Mesa;
(12) After a short while, Monzolin
stepped out again, and the two proceeded to a store in front of the City Hall,
where Monzolin ordered tuba and beer;
(13) Not long after, Gaspar Mesa showed
up and joined the two;
(14) It was then that Monzolin told Orongan that they would shoot the enemy of his ‘boss’ that
evening;
(15) Orongan hesitated for a while, but Monzolin urged him to go ahead and promised that he would
be given work and money;
(16) Orongan yielded, but he suggested
that instead of shooting he would just use a hunting knife in the projected
killing;
(17) When it was already about 5:00 p.m. the three of them went to
the City Hall;
(18) They went up the office of the City Treasurer;
(19) Monzolin stepped into the room,
while Orongan and Mesa posted themselves by the door,
from where Orongan could see Pareja
and Monzolin talking, but he did not hear exactly
what they were talking about;
(20) During all the time that Monzolin
and Pareja were conversing, Monzolin
kept on pointing at the two of them to Pareja;
(21) Orongan and Mesa stepped down,
followed later on by Pareja and Monzolin;
(22) After Monzolin had escorted Pareja to the car, he rejoined Orongan
and Mesa;
(23) The three of them rode on a bicycle and proceeded to Pier No.
3;
(24) Once there, Monzolin gave Orongan a hunting knife, Exh.
“W”, wrapped in a copy of the Free Press;
(25) From there, they proceeded to Rosita’s Bazar;
(26) There Monzolin pointed to a tall
building and told Orongan that the enemy of his
‘boss’ had his office there;
(27) Monzolin also told him the number of
the automobile of his boss’ enemy, Plate No. 29934;
(28) Monzolin instructed the two to look
for a car bearing that Plate number, at the same time telling them to go also
to the Colegio de San Jose where, according to Monzolin the enemy of his ‘boss’ used to ‘stand-by’;
(29) They finally located the car with Plate No. 29934 parked a
little distance from a barber shop, but nobody was in;
(30) Orongan and Mesa returned to Monzolin at Rosita’s Bazar, and
reported to him having located the car;
(31) Monzolin instructed them to go in
the barber shop and look for a man with his right ear folded forward (‘pyonggot‘);
(32) Orongan and Mesa did so, and located
the man with that description inside the barber shop, and so they went back to Monzolin, who was then in an alley beside the Rosita’s Bazar;
(33) There Monzolin told Orongan and Mesa to keep watch of that man with the right
ear folded forward (‘pyonggot‘), and at the same time
instructed the two not to do the killing by stabbing with a hunting knife, but
to shoot him instead;
(34) With that instruction of Monzolin, Orongan gave to Mesa the hunting knife, Exh.
‘W’, which was still wrapped in a copy of the Free Press, and he posted himself
in the alley by the side of Rosita’s Bazar waiting
for the man with the right ear folded forward to step out from the barber shop;
(35) A little while after, a man stepped out from the barber shop
and proceeded towards the car, and as he opened the car Orongan
approached him, greeted him ‘Good Evening’;
(36) Once the man was already inside the car and as he sat down, Orongan shot him three times;
(37) The revolver that he used had a whitish handle, Exh. ‘O’;
(38) From there Orongan went to his
sister’s house in Alaska, Mambaling, where he hid the
revolver in the trunk of his sister;
(39) Then he went back to Pier No. 3 where he found Gaspar Mesa, whom he invited to sleep with him that evening
in Alaska, Mambaling;
(40) When they woke up the next day, Gaspar
Mesa asked where the revolver used in the killing was;
(41) Orongan took it out from the trunk
and showed it to Mesa, after doing
which he put it back in the trunk;
(42) Orongan and Mesa then went again to
Pier No. 3, and after a while they proceeded to the house of Monzolin to collect the ‘reward money’ that was promised;
(43) They found Monzolin, who left them
for a while, but returned at about 11:00 A.M.;
(44) Upon his return Monzolin brought Orongan inside a room and gave him the sum of P400.00,
telling him it was all the money his ‘boss’ gave him;
(45) Monzolin told Orongan
to give Gaspar Mesa P100.00;
(46) Monzolin asked for the revolver used
in the killing, and so the three of them went to the house of Orongan’s sister in Alaska, Mambaling;
(47) As they boarded a taxi, Orongan gave
Monzolin P20.00;
(48) Once in the house of his sister in Alaska, Mambaling,
Orongan took out the revolver and gave it back to Monzolin;
(49) There Monzolin gave P5.00 to his brother-in-law,
Inocencio Canoy;
(50) They then stepped out and as they were walking towards the
street to hail a vehicle, Orongan gave Monzolin P21.00 more;
(51) They then separated, but at 3:00 P.M. the three of them met again
at T. Padilla Street where they indulged in a drinking orgy up to 5:00 P.M.;
(52) They transferred to the pier where they continued drinking
until 8:00 P.M.;
(53) Orongan then went to his sister’s
house in Alaska, Mambaling;
(54) Gaspar Mesa went there about midnight;
(55) It was then when Orongan gave Mesa
the sum of P100.00;
(56) Some days later, Monzolin met Orongan in the pier and instructed him to get out of Cebu City
as the search for the killer of Tormis was getting
hot;
(57) Monzolin gave him a piece of paper, Exh. ‘Z-1’, with his name and address written and told Orongan that wherever he might go he could write to him in
that address if he should ever need money.”
In its material points the foregoing testimony of Orongan finds ample corroboration in the totality of the
evidence for the prosecution. Aside from
the extrajudicial confessions of Monzolin and Mesa,
which interlock with the confession of Orongan, the
latter’s story is bolstered by: (1) the
finding of the fatal gun (Exh. “O”) in the
small steel safe of Pareja, confirming Orongan’s declaration that Monzolin
took it back from him after the killing to be returned to Pareja,
who was the owner thereof;3 and (2) the conclusion of the NBI
ballistics expert that at least 2 of the 3 bullets extracted from the body of
the victim had been definitely fired from the said gun.[4]
The logic of the situation is inexorable. If the killer confesses that he shot a man to
death and that he did so on orders of another, who represented himself as a
contact-man acting pursuant to the instruction of the real mastermind, and that
he, the killer, returned the fatal gun to the contact-man, who affirmed in his
own confession that he in turn returned the gun to the mastermind; and if the
gun was later on found in a place to which only the mastermind had access, that
is, in his own steel safe of which he alone know the lock combination, it would
be almost impossible to dismiss the killer’s story as pure fabrication or to
believe the master-mind’s protestation of innocence.[5]
In the fourth assignment of error the appellant impugns the
testimonies of four witnesses for the prosecution: Cebu City Police
Major Epifanio Hermosisima,
an employee of the Treasurer’s Office named Lauro Cauba, Cebu City Police Captain Nicomedes Bacalso and City Judge
Joaquin T. Maambong.
Major Hermosisima declared that Pareja was jittery and nervous when the search for the
fatal gun was being conducted in his office; Cauba,
that he had seen Monzolin carrying things for Pareja; Captain Bacalso, that Pareja inquired from him in an angry manner as to the
whereabouts of Monzolin after the latter was
arrested; and Judge Maambong, that he examined both Monzolin and Mesa in connection with their respective
confessions and that they voluntarily affirmed the same before him. We find no reason to brand the testimonies of
these witnesses as false. The facts to
which they testified, although merely tangential to the main issue, render the
main evidence against appellant so much more entitled to credence.
The fifth and sixth errors assigned refer to the identity of
Exhibit O – the gun found in Pareja’s possession – as
the one used in the commission of the crime.
The identification is challenged by the appellant on the strength of the
opinion of his expert witness[6]
that the bullets recovered from the body of the victim fail to produce
“identifying marks sufficient enough (sic) to show that the same had been
fired from the barrel of the (alleged) fatal gun.” This opinion is
contradicted by the ballistics expert for the prosecution, Attorney Osmundo L. Galang, the chief
ballistician of the National Bureau of Investigation, who examined the same
bullets and came to the conclusion that two of them (the third one was deformed
beyond identification) came from the gun in question.
The respective reports of the two experts are as follows:
A. GALANG REPORT, Exh. “YY”
“FINDINGS-CONCLUSION:
1. Comparative
examinations were made between evidence bullets, x x x and test bullets fired from the evidence firearms with
positive results on Colt Revolver, Caliber .32, SN-200425; the evidence
bullets, x x x were fired
through the barrel of Colt Revolver, Caliber .32, SN-200425.
2. Comparative
examinations were made between evidence bullet x x x and test bullets fired from Colt Revolver, Caliber .32,
SN-200425. There are no sufficient
individual characteristics to establish identity as to whether or not evidence
bullet x x x was fired
through the barrel of Colt Revolver, Caliber .32, SN-200425 due to its
deformed, mutilated and distorted condition.”
B. MOLINA REPORT, Exh. “17-Pareja”
“STUDIES:
1. The exhibit
bullets x x x were examined
against each other under the comparison microscope. There are no identifying marks sufficient
enough to show that both had been fired from the barrel of only one and the
same firearm.
2. The exhibit
bullets x x x were examined
under the comparison microscope in conjunction with the test bullets obtained
from the exhibit firearm. There are no
identifying marks sufficient enough to show that both had been fired from the
barrel of only and the same firearm.
CONCLUSION:
No definite conclusion could be rendered on the studies made on the
exhibit bullets x x x in
relation to the exhibit firearm and the test bullets obtained therefrom due to the insufficiency of consistent individual
characteristic identifying marks.
The exhibit .32 caliber lead revolver marked “H-2″ is
badly damaged beyond identification.”
As correctly noted by the trial court, the main conflict in the
foregoing reports proceeds from a divergence of views as to what is necessary
for a positive finding that a certain bullet has been fired from a particular
gun. Lieutenant Molina would require the
striations on the evidence bullet to flow into or coincide with the striations
all around the circumference of the test bullet; Attorney Galang
disagrees, and maintains that the presence of at least eight (8) congruent
striations in the two bullets would justify the conclusion that the evidence
bullet and the test bullet have been fired through the barrel of the same
gun. In support of his conclusion,
Attorney Galang cites the following authorities:
“Complete identity between all the striae
in any one rifling above groove of one bullet and all the striae
in the corresponding rifling groove of another bullet probably NEVER
OCCURS.” (Forensic Chemistry and Scientific Criminal Investigation by A.
Lucas, 1946 Edition, p. 228)
“Perfect correspondence between all striae
is not required for proof of identity, and in fact is not to be expected. A correspondence between major striae, general gross contour, and a reasonable number of
finer striae will prove identity. No two bullets encounter precisely the same
conditions in passing through a bore, nor do the corresponding striae always appear at the same lengthwise position on
identical specimens.” (An Introduction to Tool Marks, Firearm and the Striagraph by John B. Davies, 1958 Edition, p. 146).
“If a sufficient number of individual characteristics
correspond when comparing fatal bullets with test bullets, it is then possible
for the firearms identification technician to render an opinion in answer to
the question, ‘Did this gun fire this particular bullet?'” (Homicide
Investigation by Le Mayne Snyder, 1959 edition, p.
161)
We are satisfied as to Attorney Galang’s
qualifications as a ballistics expert, and accept, as did the trial court, his
conclusion with respect to the identity of the gun from which the fatal bullets
were fired. For one thing, he was a
disinterested witness. Lieutenant Molina, on the other hand, was admittedly a
hired expert for the defense, who was paid P3,000 for his report, aside from
his expenses in attending the trial.
Bias, therefore, could have conceivably colored his opinion. Again, while Attorney Galang’s
opinion is positive and categorical, all that Lieutenant Molina can say is that
he cannot make a definite conclusion, one way or the other, because “there
are no identifying marks sufficient enough to show x x
x” that the fatal bullets had been fired from
the evidence gun. He does not make any
clear statement as to what identifying marks would be sufficient for a positive
finding, although apparently he would require a congruence of all the
striations of the test and evidence bullets in order to be able to arrive at
such a conclusion. On a similar question
this Court had occasion to observe:
“At this point, it may be well to refer to certain elementary
principles of ballistics. The barrel of
a gun is bored with a cylindrical steel which leaves inside the bore a rifling
of spiral character. The rifling
produces grooves – and lands on the bore which are impressed upon the bullet
that passes through the barrel. These impressions
or striations identify the gun from which a bullet is fired. To determine, therefore, whether or not a
bullet is fired from a certain gun, it is compared with test bullets that are
actually fired from that gun. If the
striations appearing on the test bullets match or marry with the striations
appearing on the bullet in question the conclusion is that the latter bullet
has been fired from the said gun. The
striations, being minute scratches, can be seen under a compound microscope
and may be reproduced in photographs. If
eight or more scratches or strations coincide, they
are sufficient ground for identification.
x x x“(People
v. Timbol, XI Lawyers Journal, pp. 109, 113)
Attorney Galang, by means of several
comparison charts, pointed to at least eight (8) striations in the fatal
bullets, running from one end to the other, which correspond to the striations
in the test bullets.
Finally, whatever doubt there might still be, notwithstanding
the evidence given by said expert, is erased beyond peradventure by the
positive identification of the death gun by the confessed triggerman, Cesario Orongan.
In the penultimate error assigned, the appellant vigorously
insists that the trial court erred in holding that there was conspiracy among
the accused in the killing of the victim.
We find this claim negated by the established facts.
The acts of the accused, collectively and individually
considered, have clearly demonstrated the existence of a common design towards
the accomplishment of the same unlawful end.
Appellant Pareja had the primary motive, and
was the instigator of the crime, who provided both the fatal weapon and
monetary reward to persuade Cesario Orongan to accept the role of executioner; Avelino Monzolin acted as the
contact man between Pareja and Orongan
and the one who took charge of the details as to how the killing was to be
effected; and Gaspar Mesa actively assumed the role
of look-out. Their respective individual
participations were geared towards a unifying purpose – to kill Tormis, and so all of them were correctly held liable as
principals (see People v. Jaravata, et al., L-22029, August 15, 1967; 20 SCRA 1014).
“Once an express or implied conspiracy is proved, all of the
conspirators are liable as co-principals regardless of the extent and character
of their respective active participation in the commission of the crime or
crimes perpetrated in furtherance of the conspiracy because in contemplation
of law the act of one is the act of all.
The foregoing rule is anchored on the sound principle that ‘when two or
more persons unite to accomplish a criminal object, whether through the
physical volition of one, or all, proceeding severally or collectively, each
individual whose evil will actively contributes to the wrong-doing is in law
responsible for the whole, the same as though performed by himself alone.”
(People v. Peralta, et al., L-19069, October 29, 1968; 25 SCRA 759)
The commission of the crime was attended by two (2)
circumstances, namely, treachery and that the killing was committed in
consideration of a price or reward. Of
these two circumstances, either would suffice to qualify the crime as murder
(Art. 248, RPC). The trial court appreciated
the latter as the qualifying circumstances but refused to consider treachery
even as a generic aggravating circumstances against appellant, on the ground
that he was not present when the crime was actually committed, and left the
means, modes or methods of its commission to a great extent to the discretion
of the others, citing People vs. De Otero, 51 Phil. 201,
The citation is not in point.
It refers to a case where the accused was convicted as principal by
inducement per se under paragraph 2 of Article 17 of the Revised
Penal Code, without proof of conspiracy with the other accused. In the case at bar, however, there was
conspiracy among the defendants, and the rule is that every conspirator is
responsible for the acts of the others in furtherance of the conspiracy. Treachery – evident in the act of the gunman
in suddenly firing his revolver, preceded as it was by a false showing of
courtesy to the victim, thus insuring the execution of the crime without risk
from any defense or retaliation the victim might offer – should be appreciated
as a generic aggravating circumstance against appellant.
The trial court considered evident premeditation as an
aggravating circumstance. Except in the
sense that there is always some element of premeditation when reward is offered
for the commission of a crime, in which case the latter circumstance absorbs
the former, we do not feel justified, for technical reasons, in considering
evident premeditation as a separate and independent aggravating circumstance
herein. The evidence in this respect
consists of the extrajudicial confession of Monzolin,
confidant and bodyguard of appellant, to the effect that for about a month before
Tormis was killed appellant had been giving orders to
Monzolin to look for someone to do the killing. But, as already pointed out, such confession
is not admissible to prove specific acts of appellant, and has been taken into
account, together with the confessions of the two other defendants, only as
corroborative and confirmatory of the testimony of Cesar Orongan,
which, however, is insufficient to establish evident premeditation. Nor is this circumstance to be necessarily
deduced from the existence of conspiracy in this case, for the former is not
inherent in the latter (People vs. Peralta, 25 SCRA 759, 787; People vs.
Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 O. G.
166; People vs. Lesada, 70 Phil. 525.)
Strictly speaking, the trial court’s appreciation of the
mitigating circumstance of passion and obfuscation, as a result of the
newspaper articles written by the victim assailing appellant’s official
integrity, is an error. For this
mitigating circumstance to exist the act producing the obfuscation must be so
proximate, in point of time, to the commission of the crime as to preclude a
sober realization of the wrongfulness of the course of action about to be
taken. This is not true in the case of
appellant, for the publication of the offending articles covered an appreciable
period long enough for pause and reflection.
The presence of one (1) aggravating circumstance without any
mitigating circumstance to offset it would justify the imposition of the
maximum of the penalty provided by law, which is reclusion temporal
in its maximum period to death (Art. 248, RPC).
However, only seven members of this Court, which is one short of the
number required by law, voted affirmatively for that purpose.
Wherefore,
the judgment appealed from is affirmed, with costs against appellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez,
Castro, Fernando, and Teehankee, JJ., concur.
Zaldivar, J., reserves his vote.
Barredo, J., no part.
[1]
There is no dispute that the person referred to is Cesario
Orongan himself, the confessed gunman. Cesar Roble is
merely one of the various names by which Orongan is
known.
[2]
“Toto” was identified later as Avelino Monzolin, driver-bodyguard of herein appellant.
[3]
It was about 4:00 o’clock a.m. of July 12, 1961.
3
Monzolin likewise disclosed in his extra-judicial
confession that he did get back the gun from Orongan
the day after the killing and returned the same to Pareja
in compliance with the latter’s order.
[4]
The 3rd bullet, because of its mutilated condition, could not be positively
established as coming from the fatal gun.
[5]
People vs. Carillo, et al., 47 O. G. No. 8,
pp. 4188, 4173.
[6]
Lt. Simeon Molina, Deputy Chief of the Criminal Investigation Laboratory and
Chief of the Firearms Identification Section of the Manila Police Department.