PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GUILLERMO TABION, ENRIQUE FAGEL, LUCIANO TABULOC, IGNACIO TADENA @ ASIONG, SIMO TABULOC AND JOHN DOE, DEFENDANTS, ENRIQUE FAGE…

MANDATORY REVIEW of the death sentence imposed upon the accused
Enrique Fagel by the Court of First Instance of Ilocos Sur, the dispositive portion of the decision reading as follows:

“In view hereof this Court hereby finds the accused Enrique Fagel guilty beyond a reasonable doubt of the crime charged
in the Information and sentences him to death for the killing of the late Jesus
Tobias, and also six prison terms of eight (8) years and twenty-one (21) days
of prision mayor in its maximum period to four (4)
years and two (2) months of prision correccional in its minimum period for attempted murder on
the lives of Susante Tobias, Regulo
Tobias, Deogracias Tobias, Justino
Tobias, Ramon Villaflor and Rolando Jaramillo, there being
three aggravating circumstances present in the commission of this crime and no
mitigating circumstance to upset them; said accused is also hereby directed to
indemnify the heirs of Jesus Tobias the sum of P25,000.00 and to pay P5,000.00
as moral damages, also to said heirs.

Costs against the accused.

SO ORDERED.”^[1]

The record shows that at about 8:00 o’clock in the evening of
June 27, 1965, Susante Tobias, Regulo
Tobias, Justino Tobias, Deogracias
Tobias, Ramon Villaflor, Rolando Jara­millo, and the
late Jesus Tobias were in the national highway, in front of a drugstore, in Sto. Domingo, Ilocos Sur, waiting for a bus bound for Manila.  Upon seeing the group, Guillermo Tabion, a member of the police force of Sto.
Domingo, Ilocos Sur,
addressed his companions:^[2]
“They are these ones now,” and went towards the said group.^[3]
As they were approaching the Tobias group, the policemen deployed and took up
strategic positions.  Upon seeing Susante Tobias, then a member of the town council, Luciano Tabuloc sidled up to him
and put his hands on his shoulders, saying: 
“Would you mind coming here, lawyer, and let us have a talk.”^[4] Susante Tobias went with Luciano Tabuloc.  Sensing
some trouble, the rest of the Tobias group went inside the drugstore.  As Susante Tobias
came near the other policemen, he noted that their weapons were aimed at
him.  Realizing the danger he was in, Susante Tobias parried the muzzles of the guns nearest him
and dashed into the drugstore.  No sooner
had he entered the drugstore than the policemen fired at them in the drugstore.^[5]
To escape the barrage, Susante Tobias and his
companions sought refuge at the back of the drugstore and hid behind some
“sidings”.^[6]
After time, the policemen stopped shooting as Guillermo Tabion
entered the drugstore.^[7]
Once inside, Guillermo Tabion went towards the back
of the drugstore and fired his gun indiscriminately at the persons hiding
thereat and immediately went out. 
Shooting, thereafter, continued.^[8]

The gunshot fired by Guillermo Tabion
hit Jesus Tobias who was hiding behind some panels.  He exclaimed that he had been shot and was
evacuated to the nearby house of Ramon Villa­flor
even as the shooting continued.  From the
house of Villaflor, Jesus Tobias was brought to the
house of one Mrs. Tremor where they borrowed a jeep and in which Jesus Tobias
was taken to the provincial hospital where he died a few minutes later.^[9]

As a result, Guillermo Tabion, Enrique Fagel, Luciano Tabuloc, Ignacio Tadena, Maximo Tabuloc, and one John Doe
were charged with the crime of Murder with Multiple At­tempted Murder before
the Court of First Instance of Ilocos Sur.  But, Maximo Tabuloc and the unidentified person have not been
apprehended and remain at large.^[10]
Ignacio Tadena, upon motion of the prosecution, was
discharged as defendant and utilized as a state witness.^[11]
Guillermo Tabion and Luciano
Tabuloc died during the trial of the case,^[12]
so that only Enrique Fagel was tried and thereafter
convicted of the crime charged.

The accused Enrique Fagel does not deny
that the late Jesus Tobias died as a result of the gunshot wounds inflicted
upon him by Guillermo Tabion.  Enrique Fagel
claims that he did not participate in the shooting incident and was somewhere
else when it happened.  He said that he
arrived at the municipal build­ing of Sto. Domingo a
few minutes before 6:00 o’clock in the evening of June 27, 1965 and immediately
proceeded to the back of the municipal building in order to cook their supper,
which he and Pat. Tualla and some other members of
the municipal force ate.  After he had
eaten, he went to buy some cigarettes at a store located north of the municipal
hall.  While there, he heard a gun report
coming from the south.  Being a
policeman, he went to the place where the shot emanated from.  While on his way, he met Pat. Ignacio Tadena.  The latter
was helping Guillermo Tabion who was wounded.  So, he helped Pat. Tadena
in taking Guillermo Tabion to the hospital at Vigan.  But, before
they lifted Tabion to the jeep which would carry him
to the hospital, he fired his gun into the air in order to scare those who shot
Tabion.^[13]

The defense of alibi cannot prevail over the positive testi­mony
of the witnesses identifying and pointing to the accused Enrique Fagel as one of the policemen involved in the shooting
incident in question.  Pat. Florentino Tabarnilla of the Sto. Domingo police force testified that Enrique Fagel was in the group of policemen who went towards the
drugstore on the night in question; and that not long thereafter he heard gun
shots coming from that direction.  He
further stated that after the shooting incident, Luciano
Tabuloc and Enrique Fagel
returned to the municipal building and challenged the other policemen who did
not join them in the shooting incident.^[14]
Ignacio Tadena, another member of the police force of
Sto. Domingo, who was discharged from the information
and utilized as a state witness, categorically declared that Enrique Fagel was one of the policemen who shot at the persons
inside the drugstore.^[15] Susante Tobias also identified Enrique Fagel
as one of the policemen who shot at them.^[16] Deogracias Tobias, likewise, stated that Enrique Fagel was one of the armed policemen who confronted them at
the drugstore.^[17]

Besides, this claim is inconsistent with his earlier admission
that he was present during the said shooting incident.  Thus, in his sworn statement given to PC
investigators after the incident, Enrique Fagel
stated:

“Q   Will
you narrate what really happened in the night of June 27, 1965 at Sto. Domingo, Ilocos Sur?

A     At
about 8:00 o’clock in the night of June 27, 1965, I was in the municipal
building of Sto. Domingo, Ilocos
Sur when I was called by Pat. Luciano
Ta­buloc informing me that Pat. Guillermo Tabion saw a boy by the name Lando
loaded a carbine and proceeded towards the south and entered inside the Farmacia Sto. Domingo, Ilocos Sur.  We went to Farmacia
Sto. Domingo taking our way to the plaza and
approached in front of the Farmacia and while we were
near to the Farmacia, Councilor Zusante
Tobias approached us and said “ANIATTI UMAYYO SISIIMUN DITOY” and
Pat. Tabuloc answered that we were not watching them
and told them that a boy name Lando loaded a carbine
and enter­ed inside the drugstore, but Councilor Zusante
Tobias said that Lando is not there and
simultaneously Lando came out of the door of the
drugstore hold­ing a carbine at his back.”^[18]

The accused also contends that he cannot be found guilty of the
crime charged because of the absence of conspiracy between him and Guillermo Tabion who fired the fatal shot that killed Tobias.

The contention is without merit. 
Conspiracy has been clearly shown by Fagel’s
direct and active participation in shooting at the persons inside the
drugstore.  He is, therefore, as guilty
as the actual assailant in the commission of the crime.

The accused further contends that evident premeditation was not
present in the commission of the crime. 
This contention is, likewise, without merit.  It appears that a month previous to the
incident, Susante Tobias filed an administrative case
with the Municipal Council of Sto. Domingo, Ilocos Sur against the accused
policemen Guillermo Tabion, Enrique Fagel, and Luciano Tabuloc for having maltreated a boy and a barrio captain.^[19] Susante Tobias also brought the mother of the boy and some
witnesses to the NBI Branch office at Vigan, Ilocos Sur, and after
investigation, Guillermo Tabion, Enrique Fagel, and Luciano Tabuloc were charged in court.^[20]
Because of this, the aforenamed policemen harbored
ill-feelings against Susante Tobias.  They no longer talked with him.^[21]
At about 3:00 o’clock in the afternoon of June 27, 1965, Guillermo Tabion openly showed his ill-feelings and personal grudge
against Susante Tobias when, upon seeing Martin Tela, first cousin of the wife of Susante
Tobias, in the house of Mrs. Cristeta Tela, he stabbed him three times with a balisong,
saying:  “I do not like you because
I suppose you are not with us including Atty. Susante
Tobias who has not been helping us in spite of the fact that he is the present
councilor of Sto. Domingo, Ilocos
Sur.”^[22]
“If I will only meet your brother-in-law, he does not care to take our
side, there will be a time when I will be able to find him.^[23]
Then, at about 7:30 o’clock in the
evening Guillermo Tabion, Enrique Fagel,
Luciano Tabuloc and Maximo Tabuloc arrived at the
municipal building of Sto. Domingo.  All were armed with firearms and appeared to
have drank some wine.  Thirty minutes
later, they told Ignacio Tadena to go with them and
look for Martin Tela. 
But, they proceeded towards the house of Susante
Tobias.  Before reaching the said house,
however, they saw a group of persons in the highway, in front of the
drugstore.  Guillermo Tabion
said:  “They are the ones now,”
and went towards them.  As they
approached the group, the policemen deployed and took up strategic positions.^[24]
After exchanging a few words with Atty. Susante
Tobias, who thereafter ran to the drugstore for his life, the policemen fired
at the men inside the drugstore.

These circumstances speak eloquently of a conspiracy generated by
an all consuming hatred to kill Susante Tobias.  The lower court, therefore, did not err in
considering that evident premeditation qualified the crime.

The trial court did not also err in finding that the accused took
advantage of his public position as a policeman.  He committed the crime with the aid of a gun
which he had been authorized to carry as a peace officer.^[25]

Treachery was also present. 
Guillermo Tabion shot the unarmed,
unsuspecting and defenseless Jesus Tobias who was then hiding behind some
panels inside the drugstore, where he had taken refuge from the combined
firepower of the high-powered guns of the policemen.

Although not alleged in the information, We hold as proven by the
evidence the aggravating circumstance that the offense was committed by a band
because there were more than three attackers all armed with high-powered guns,
and all firing in concert around the besieged drugstore.^[26]

For the killing of Jesus Tobias, therefore, the crime committed
is murder qualified by evident premeditation and aggravated by the
circumstances of treachery, taking advantage of his public position, and
committed by a band.  The six cases of
attempted murders are likewise qualified by evident premeditation and committed
with the same aggravating circumstances.

WHEREFORE, the decision of the lower court should be, as
it is hereby, affirmed.  However, for
lack of the required number of votes for the imposition of the death penalty,
the accused Enrique Fagel is sentenced to suffer the
penalty of reclusion perpetua.

SO ORDERED.

Teehankee, Barredo,
Aquino, Santos, Fernandez, Abad
Santos, De Castro, and Melencio-Herrera, JJ.,
concur.

Fernando, C.J., in the result.

Makasiar, J., see dissenting opinion.

Antonio, and Guerrero,
JJ., took no part.

^[1]
pp. 44-A-45-A, Accused-Appellant’s Brief.

^[2] Enrique
Fagel, Luciano Tabuloc, Maximo Tabuloc, Ignacio Tadena, and an
unidentified person.  Enrique Fagel, Luciano Tabuloc and Ignacio Tadena were
members of the police force of Sto. Domingo, Ilocos Sur.

^[3] t.s.n., p. 34.

^[4] Id.,
p. 99.

^[5] Id.,
p. 100.

^[6] Id.,
p. 101.

^[7] Id.,
pp. 38, 102.

^[8] Id.,
p. 103.

^[9] Id.,
pp. 111, 113-114; See also Exh. “A”.

^[10]
See Information, Original Record, p. 31.

^[11]
Original Record, p. 65.

^[12] Id.,
pp. 203, 224.

^[13] t.s.n., pp. 311-321.

^[14] Id.,
pp. 73, 75-76.

^[15] Id.,
p. 36.

^[16] Id.,
p. 98.

^[17] Id.,
p. 201.

^[18]
Exhibit “R”.

^[19] t.s.n., p. 115.

^[20] Id.,
pp. 158-160.

^[21] Id.,
p. 164.

^[22] Id.,
pp. 185-186.

^[23] Id.,
p. 187.

^[24] Id.,
pp. 27, 29, 35.

^[25]
People vs. Madrid, 88
Phil. 1.

^[26]
People vs. Collado, 60 Phil. 610.

150
Clean

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