THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DIOSCORO JOSE AND DOMINADOR BAJAO, ACCUSED-APPELLANTS.

Accused-appellants Dioscoro Jose and Dominador Bajao were charged with
the crimes of murder and frustrated murder before the then Circuit Criminal
Court of Rizal, in CCC Case No. VII-973-Rizal, in an information which reads:

“That on or about October 22, 1970, in the New Bilibid Prisons, Muntinlupa, Rizal, Philippines
and within the jurisdiction of this Honorable Court, the said accused while
then confined at the said institution, conspiring, confederating and acting
together and each armed with improvised deadly weapons, did then and there
willfully, unlawfully and feloniously with intent to kill assault and wound
therewith CRISANTO FAJARDO No. 72340-P and
MARCIANO SULIT, No. 74382-P both
sentenced prisoners serving final sentences in the same institution, inflicting
upon Sulit multiple stab wounds which instantaneously
caused his death and upon the person of Fajardo a
stab wound which could have also caused his death had it not been for the timely medical attention extended
the latter; the persons injured being then unarmed and unable to defend
themselves from the assault launched by
the accused, the said accused performing all the acts of execution which
produced the crime of murder and frustrated murder and in the latter did not
produce the offense by reason of the said timely medical attention extended by
the NBP Hospital.” (p. 1, Record)

Upon being arraigned, both accused, duly assisted by counsel de
oficio, pleaded
guilty to the crimes charged. In view at
the gravity of the offense, the trial court ordered the prosecution to
present evidence to determine the guilt and degree of culpability of the
accused. Thereafter, the trial court found
both accused-appellants guilty beyond reasonable doubt of the crimes of
murder and frustrated murder as charged, and imposed upon both the penalty of
death and both to pay jointly and severally the heirs of the deceased Marciano Sulit, the following
amounts: P24,000.00 for indemnification, P20,000.00
for moral damages, P20,000.00 for exemplary damages; and, the costs of the
suit.

Prosecution evidence shows
that on October 22, 1970, at about 8:50 in the morning, appellant Dioscoro Jose, then confined at Brigade “3D” of
the New Bilibid Prisons and serving sentence for
murder, and his co-appellant Dominador Bajao, also confined at the same brigade and serving
sentence for murder and frustrated murder, together with several other
prisoners numbering more than 600, were at the waiting shed of the New Bilibid Prisons in Muntinlupa for
a final check-up preparatory to their departure for the Davao
Penal Colony where they were to be transferred. Upon arrival thereat, appellant
Bajao sat at
the center of the waiting shed beside Crisanto
Fajardo, while appellant Jose stood at the door and
waited for Marciano Sulit,
also an inmate of the same
institution. When Sulit arrived, appellant Jose drew
a bladed weapon which was tucked
inside a mat and, therefrom,
stabbed Sulit several times at the right side
of his chest, following which he ran away, threw his weapon into a canal and
then laid flat on the ground.

When appellant Bajao saw
that appellant Jose had already stabbed Sulit, he too
stabbed Crisanto Fajardo
with an ice pick hitting the victim at the stomach. Bajao
then ran away until he was overtaken and
beaten by the prison guards.

The victims, Sulit and Fajardo, were rushed to the New Bilibid Prisons’ Hospital for
emergency medical treatment. Notwithstanding, Sulit
died at about 11:45 that same
morning. Fajardo, who suffered stab wounds and
lacerations in the abdomen as found by Dr. Avelina Alcantara, Supervising Physician of the New Bilibid Prisons, was
confined at the NBP Hospital for eleven (11) days.

Appellants Jose and Bajao were
investigated and they executed sworn statements, admitting that he (Jose)
stabbed prisoner Marciano Sulit
and that he (Bajao) stabbed prisoner Crisanto Fajardo (Exhibits
“G” and “H”, respectively).

As aforestated, appellants were both
sentenced to suffer the supreme penalty of death. Thus, this case is now before Us
on automatic review, pursuant to Section 9,
Rule 122 of the Revised Rules of Court.

In this appeal, appellants, assisted by counsel de oficio, contend that the trial court erred
(1) in convicting appellants Jose and Bajao of murder
and frustrated murder on the basis of their extrajudicial confessions and their
pleas of guilty which suffer from constitutional and legal infirmity; (2) in finding that there was conspiracy
when in truth and in fact the prosecution failed to establish the existence of
conspiracy other than on the basis of appellants’ involuntary extrajudicial
confessions and improvident pleas of guilty; and, (3) in convicting appellants
of murder and frustrated murder on the basis of evidence which is consistent
with their innocence.

Dioscoro Jose died on April 6, 1975 (p. 100, Rollo), and, this Court, in its resolution of May 27, 1975 (p. 103, Rollo), dismissed the case against him “but only
insofar as his criminal liability is concerned.” Hence, this appeal refers
to Dominador Bajao only.

Bajao assailed the extrajudicial
confession asserting that he
executed the same in voluntarily as at the time he was questioned, he was in the hospital suffering from painful
multiple injuries, and overcome by fear, he has resigned to all the proddings, promptings and insinuations, if not directions,
either wittingly or unwittingly given by the prison guard investigator; that
there were no witnesses when he was being investigated by Prison Guard De la Cuesta; and that the latter insisted on getting his thumbmark. (p. 24, Appellants’ Brief)

We cannot sustain appellant Bajao’s
contention. He suffered only minor injuries and it was already on the fourth
day of his confinement when he was investigated by Prison Guard De la Cuesta. Neither are We persuaded that
he did not sign the extrajudicial confession (Exhibit “H”) because
his thumbmark appears thereon, together with the
signatures of the witnesses, Evelyn Peneyra and Renato Banaag. On the other hand,
there is the presumption that Prison Guard Buenaventura de la Cuesta and Supervising Prison Guard Filomeno
Mencero performed their official duties regularly. Nothing
in the record reveals any motive on the part of said prison officers to testify
falsely against appellant. Finally, We cannot agree
with the contention of appellant that the questioned extrajudicial confession,
which was executed before the effectivity of the New
Constitution on January 17, 1973,
is inadmissible, pursuant to Section 20, Article IV thereof. In Magtoto vs. Manguera, 63 SCRA 4, the
Supreme Court made it clear that:

“A confession obtained from a person under investigation for the
commission of an offense, who has not been informed of his right (to silence
and) to counsel, is inadmissible in evidence if the same had been obtained after
the effectivity of the New Constitution on January
17, 1973. Conversely, such confession is admissible in evidence against
the accused, if the same had
been obtained before the effectivity of the New Constitution, even if
presented after January 17, 1973,
and even if he had not been
informed of his right to counsel, since no law gave the accused the right to be so informed before that
date.”

In the case at bar, the confession
of Bajao was given by him before the effectivity of the New Constitution.

The claim of appellant Bajao that he was not assisted by counsel during the
arraignment and that his plea of guilty was improvidently entered and
therefore suffered from constitutional and legal infirmity is untenable because
during the arraignment, the following transpired:

“ATTY. CORONEL:

Appearing as counsel de oficio
for the accused, your Honor.

FISCAL
GUERRERO:

In connection with this case, may I make a
manifestation, your Honor?

ATTY.
CORONEL:

Your, Honor, before the State Prosecutor starts
with his manifestation, I wish to make of record that one of the accused is
willing to plead guilty to the crime of Murder and the other one is willing to
plead guilty to the crime of Frustrated Murder. I noticed that there are two
sets of information here.

FISCAL
GUERRERO:

Precisely, your Honor, this case arose from
the same incident and there seems to be an identity of the interest. One of them is willing to plead guilty to the crime of
Murder and the other one is willing to plead guilty to the crime of Frustrated
Murder.

Your Honor, the position of the government in this case is that the two
accused are guilty in both Murder and Frustrated Murder which arose from the
same incident. And we feel that we cannot do other­wise than to prosecute the case
for both offenses because it will establish a very awkward precedent in the
National Penitentiary.

COURT:

At any rate, I will receive the evidence.

FISCAL GUERRERO:

Yes, Your Honor.

COURT:

All right, arraign
the accused.

At this juncture,
the interpre­ter is reading the
information in the presence of accused Dioscoro Jose and Dominador Bajao and counsel de oficio, Atty. Coronel.

INTERPRETER – to the accused

WHAT IS YOUR PLEA?

DIOSCORO JOSE – GUILTY

DOMINADOR
BAJAO – GUILTY

COURT:

Q    Are you aware that by pleading guilty you will be
punished in accordance with law?

ACCUSED JOSE and BAJAO:

A     Yes,
your Honor.

Q    And the Court had no other alternative but to
impose the death penalty under Article 116?

A     Yes,
your Honor.

Q    And notwithstanding the fact that you will be
punished by death, you still insist on pleading
guilty?

A     Yes,
your Honor.

At any rate, we
better present evidence.” (pp. 2-4, tsn, March 2, 1972)

Where the accused was
assisted by counsel at the arraignment, the presumption is that said counsel regularly
are faithfully discharged his
official functions, which included the duty of advising the accused as
to the meaning of his plea of guilt (People vs. Perete,
1 SCRA 1290).

While We admit the admissibility of the
extrajudicial confession of Bajao, We cannot accept
the position of the prosecution that conspiracy is attendant in the case at bar
merely because of his plea of guilt. “Conspiracy must be proved by
independent evidence other than the confession. x x x Conspiracy must be real and presumptive. It must be
proved as the crime itself, independent from the confession (People vs. Chaw
Yaw Shun, 23 SCRA 127).”

Records do not show that he pleaded guilty to both of the crimes charged. Dominador
Eajao did not participate in the stabbing of Sulit. Thus, he is guilty only for the injuries suffered by
victim Crisanto Fajardo,
who, according to prosecution witness Dr. Avelina G. Alcantara, would not have died even if he was not attended
to, unless there was complication. Hereunder is the testimony of Dr. Alcantara on this point:

“COURT:

Q    If
it were not for your treatment, would Fajardo die?

A     No, sir.

Q    He
could not have died even if you
did not attend to him?

A     If
there is no complication, the patient may not have died.

ATTY. GALVAN:

Your
honor, I will stop my cross examination because it is very clear that the
wounds will not cause death which is not serious because according to the
doctor, the patient was confined for 11 days only. I have no further question
on cross, your Honor.” (pp. 13-14, tsn., March 18, 1972)

Thus, appellant Dominador Bajao is guilty of attempted murder and not of frustrated
murder. However, his liability is increased by the presence of the special
aggravating circumstance of quasi-recidivism, because after having been convicted
by a final judgment and while
serving the same, he committed a new felony. He shall be punished by the
maximum period of the penalty prescribed by law for the new felony (Article 160
of the Revised Penal Code). Thus, the mitigating circumstance of plea of guilty
cannot be considered in his favor.

WHEREFORE, Dominador Bajao is found guilty of attempted murder only and he is
hereby sentenced to suffer an indeterminate penalty of FOUR (4) YEARS and TWO
(2) MONTHS of prision correccional,
as minimum, to TEN (10) YEARS of prision mayor, as
maximum, and to pay the costs.

SO ORDERED.

Makasiar, Concepcion,
Jr., Guerrero, Melencio-Herrera, Plana,
Escolin, and
Gutierrez, Jr., JJ.,
concur.

Teehankee, Acting C.J., concurs in the result, while maintaining his dissent
in Magtoto on the inadmissibility of all uncounselled confessions. Republic Act 1083 enacted on June 15, 1954, long before the 1973 Constitution, recognized the
right to counsel of every person under custodial interrogation, by adding the
second paragraph of Art. 125 of the Revised Penal Code that “(I)n every case,
the person detained shall be informed of the cause of his detention and shall
be allowed, upon his request, to communicate and confer at any time with his
attorney or counsel.

Aquino, J., concurs but because of his plea of guilty the maximum of his
indeterminate penalty may be fixed at eight years and one day of prision mayor medium and minimum could be
four or three years.

Abad Santos and Vasquez, JJ., on leave.

De Castro, J., on sick leave.