THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. VALENTIN CUSTODIO, ET AL., DEFENDANTS AND APPELLANTS.

Appellants, Valentin Custodio and his two brothers, Tomas and Silvestre, seek
reversal of a judgment of the Court of First Instance of Quezon (Criminal Case
No. 11464) sentencing them to reclusion perpetua with the opposite
accessory penalties and costs, for the murder of one Melanio Balancio, and to
pay jointly and severally, an Indemnity of P6,000 to the heirs of the
deceased.

The evidence is that in the evening of February 22, 1953, the spouses Melanio
Balancio and Ines Edovas were wakened by the bleating of a goat in the corral
near their home in barrio Mangalang, Sariaya, Quezon. The husband stood up and,
equipped with a flashlight, went down the rear stairway of the house, at the
back porch (batalan). As he was descending, he was shot at from behind
by someone below the house. As Balancio staggered on, more shots were fired at
him from near a coconut tree standing a few meters north of the house, and he
fell. Ines Edovas, the wife, upon hearing the shots, came from within the house
with a gas (petroleum) lamp; she placed it on the porch railing and descended,
only to find her husband sprawled on the ground and bleeding profusely. She
wailed, “My God, why is this done to us,” (“Dios ko, bakit kami ginanito”) to
which some one, whom she recognized as Valentin Custodio, was heard to reply,
“That is what befits a bully” (“Yaan ang bagay sa barako”). Thereupon, Valentin
was rejoined by his brothers Tomas and Silvestre, and the three, bearing
firearms, went away. Ines Edovas shouted for help, but as no one came, she
managed to drag her bleeding husband up their house. She then sped to the house
of a neighbor, Maria Mindanao, and fetched her.

The deed was also witnessed by Antonio Goc, a brother-in-law of the deceased,
whose curiosity while proceeding toward Meianio’s house, was aroused by the
bleating of a goat as he neared the corral. His view being impeded by the tall
grass, Goc went around the corral toward the house; and from behind a tree a few
meters west of it, he saw Valentin Custodio fired at Melanio Balancio as the
latter descended the stairs, while another series of shots was fired by
Silvestre Custodio a little later, from a point near another coconut tree north
of the house. The third brother, Tomas Custodio, then arrived holding a goat by
the leg; and afterwards, Valentin was heard to say “Patay na ang barako” (the
bully is dead) as the wife of the deceased reached the scene. Apparently fearful
of detection, Goc scurried away to his father-in-law’s house; from there,
accompanied by his wife, he returned to the residence of the deceased to furnish
whatever help he could.

Neighbors began pouring in the Balancio house a short time after the
shooting. Toward midnight, the wounded man recovered enough to tell his
brother-in-law to have the Custodio brothers arrested as the ones answerable for
what happened to him. This statement, given in gasps, was also heard by the
wife. Shortly thereafter, Melanio Balancio died. The medical certificate is to
the effect that he received six gunshot wounds; three bullets had coursed upward
from the buttocks to the abdominal region; two more penetrated from the back to
the chest; and a sixth grazed the right thigh (Exhibit ,A). The investigating
officers found .45 caliber rifle shells on the ground, five near the stairway,
and the other elsewhere.

Upon instructions of the barrio lieutenant Juan Resurreccion, Antonio Goc
reported the killing to the Chief of Police of Sariaya, who enlisted the help of
the Constabulary. Sergeant Ernesto Jose” investigated the widow and the
neighbors, and thereafter, search started for the Custodio brothers. The latter,
however, voluntarily surrendered before arrest.

The appellants concentrate their attack primarily on the sufficiency of their
identification, based on alleged inconsistencies and contradictions of the
eyewitnesses, Ines Edovas and Antonio Goc; the improbability of their being able
to recognize the culprits in the darkness; the seriousness of Balancio’s wounds
as allegedly precluding his ability to give an ante mortem statement.
Lastly, they rely on the alibi testified to by the witnesses for the
defense.

We find no improbability in the testimony of either the widow Edovas or
Antonio Goc. The Custodios had been former neighbors of Balancio and his wife,
in barrio Aratan, Sariaya, and hence their features were familiar to the latter;
nor does the defense contest that Antonio Goc also knew the three brothers. As
to the possibility of recognition, the Court below was satisfied that the moon
and the lamp at the “batalan” furnished adequate illumination for it,
considering that, as found by the Judge at the ocular inspection, the appellants
were seen in an open space, and the surrounding trees lay. some 6 meters away
from the spot where the appellants were identified. Counsel’s plea that the
recognition was rendered dubious by shadows cast by the trees and by the slats
of the “batalan” flooring, disregards the fact that the attackers’ positions
must have changed from time to time, so that there is no denying the possibility
of their features having been sufficiently revealed during the interval between
the shooting and their departure. It is to be remembered also that the witnesses
saw the culprits at close range—ten meters more or less, to judge from the
evidence. That there was a clear moon, although in its quarter phase, is not
denied.

While Edovas and Goc differed as to some details, the variations are
compatible and do not affect their credibility, for they saw the occurrence from
different angles. Indeed, it would be suspicious if their narrations had
completely coincided.

Appellants lay much stress on the alleged failure of the widow to disclose
immediately the identity of the killers to the barrio lieutenant, when the
latter went to her house shortly after her husband had expired. But she cogently
explained that her difference was due to her fear of reprisals from the armed
killers, who might still be lurking near by shortly after the murder; on the
other hand it is uncontroverted that she denounced the appellants the next day,
to the Constabulary investigator, and also in her affidavit of February 25. Our
jurisprudence reveals repeated instances of witnesses silenced by fear until the
police authorities had intervened. As to the argument that if she or Goc had
really revealed the identity of the killers to the Sariaya police, the
constabulary would not have been called, nor would the latter have spent some
six hours interrogating witnesses and looking for evidence, we find the
contention based on the worthless assumption that investigators should be
satisfied with the widow’s statements, without taking pains to verify the truth
thereof, or scrutinizing the scene of the crime. It is also significant in this
connection that when the Chief of Police of Sariaya testified, the defense did
not ask for his reasons in referring the case to the Constabulary
authorities.

For the rest, it is needless to discuss at length whether Balancio could have
survived his wounds long enough to make the ante mortem statement. The
matter depends upon the vitality of the individual, for which no general rules
can be laid. The dying declaration rests on the testimony of Edovas and Goc, who
heard it, and the trial Court was satisfied of their reliability. The appellants
have failed to show sufficient reasons to change that conclusion.

The deceased himself had previously revealed to constabulary sergeant Jose
the motive for the crime, to wit, that he was suspected to have done away with
one of the Custodio brothers. (Epifanio), shot in barrio Aratan in 1950. And
none of the appellants denied their having possession of or access to rifles of
the type used in shooting the deceased.

We find no adequate reason for reversing the trial court’s disbelief in
appellant’s alibi. From the testimony of the defense witnesses, their
memory appears riveted exclusively on the night of the crime, i.e., Sunday,
February 22, when they claim to remember that Tomas and Silvestre Custodio were
in Taysan, Batangas, at about eight in the evening; but the same witnesses
professed inability to recall other dates or occasions in which they met said
appellants. The lower court also noted the curious coincidence that appellant
Tomas Custodio should go as far as Taysan, Batangas, to cut bamboos when he had
other bamboo groves nearer home; and that he should have decided to do so on the
very same day that his brother Silvestre likewise proceeded. to the same town,
precisely on a date set for the holding of a baptismal party for a child of
their brother Valentin, that by custom Tomas and Silvestre would be most
interested in attending. We find that the alibi can not prevail over
the positive testimony of the credible witnesses for the prosecution, who
positively identified the accused as the locus of the crime (People vs.
De Asis, 61 Phil. 389; People vs. Faltado, 84 Phil., 88; People
vs. Mendoza, (84 Phil., 148; People vs. Jistiado, 94 Phil.,
825; People vs. Fader, 94 Phil., 522).

The guilt of appellants having been established beyond reasonable doubt,
there remains the question of the appropriate penalty. The lower court imposed
the medium, to wit reclusion perpetua, on the theory that the murder
was characterized by the presence of both alevosia (which also absorbed
nocturnity) and premeditation, but with one of them compensated by the
mitigating circumstance of voluntary surrender. In our opinion, however, it was
error to consider that evident premeditation existed, merely on the basis of the
conspiracy between the apellants herein.

Under normal conditions, where the act of conspiracy is directly established,
with proof of the attendant deliberation and selection of the method, time, and
means of executing the crime, the existence of evident premeditation can be
taken for granted. In the case before us, however, no such evidence exist; the
conspiracy is merely inferred from the acts of the accused in the perpetration
of the crime. There is no proof how and when the plan to kill Melanio Balancio
was hatched, or what time elapsed before it was carried out; we are, therefore,
unable to determine if the appellants enjoyed “sufficient time between its
inception and its fulfillment dispassionately to consider and accept the
consequences.” (cf. People vs. Bangug, 52 Phil. 91). In other words,
there is no showing of the opportunity for reflection and the persistence in the
criminal intent that characterize the aggravating circumstance of evident
premeditation (People vs. Mendoza, 91 Phil., 58; People vs.
Itturiaga, 47 Off. Gaz., (Supp. to No. 12) 166; People vs. Lasada, 70
Phil. 525).

Our view is supported by the Sentencia of the Tribunal Supremo of Spain,
dated 19 October 1933, wherein, speaking of evident premeditation, it held:

“Considerando que—no concurre si el veredicto solo expresa que previo
concierto de voluntades, se ejecuto el acuerdo, sin concretar el tiempo
transcurrido y los actos de deliberacion, reiterados y persistentes, precedents
a la ejecucion del delito, pues aquella circunstancia requiere que la
determinacion del agente de perpetrar el delito concebido se haya formado por
medio de un raciocinio pleno y reflexivo, de manera tal que revele un proposito
preserverante en su realizacion, debidamente exteriorizado y
conocido.”

It follows that while the crime committed by appellants is murder, qualified
by treachery, their guilt is attenuated by voluntary surrender. Hence, the
correct penalty is the minimum provided by law, which is reclusion
temporal in its maximum degree (Article 248, R.P.C.), i.e. from 17 years, 4
months and one day to 20 years of imprisonment. Giving them the benefits of the
Indeterminate Sentence Law (Act 4103, section 2), the appellants should be and
are hereby sentenced to not less than ten (10) years and one (1) day of
prision mayor and not more than eighteen (18) years of reclusion
temporal, plus the corresponding accessory penalties (People vs.
Ducosin, 59 Phil. 109).

Modified as to the penalty, in the sense indicated, the judgment appealed
from is otherwise affirmed. Costs against appellants. So ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista
Angelo, Labrador, and Concepcion, JJ., concur.