THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. DY TOO (ALIAS DONATO POMORALA) AND CHU SE BENG, DEFENDANTS AND APPELLANTS.

For the killing of Chinaman Alfonso Ang Liongto near the wharf of Davao City on April 15, 1946, Dy Too alias Donato
Pomorala and Chu Se Beng were charged with murder in the Court of First
Instance of Davao, were found guilty and sentenced to reclusion
perpetua with the accessory penalties prescribed by law, to indemnify,
jointly and severally, the heirs of the deceased Alfonso Ang Liongto in
the sum of P5,000 and to pay a proportionate part of the costs. Both
accused have brought the case here on appeal.

After a careful review of the evidence in the case, we find the
following facts to have been fully established: On March 27, 1946,
appellant Chinaman Chu Se Beng with four Chinese companions, named
James Young, Ang Chu Yeng, We Cod Guan and Carlos Ching, arrived by
plane in Cebu City from Tacloban, Leyte. There they were joined by
appellant Dy Too, another Chinaman. Three days later they all took a
plane for Davao City where they arrived on March 30, 1946. They took
lodging in a hotel kept by a certain “Macao” at Claveria Street. A week
later, the six companions transferred to the house of Eustaquio Sambas
at Magallanes Street, where they occupied two rooms, the group paying
P60 as advance room rent for one month.

In the evening of April 6, 1946, Ang Cui Bao, a Chinaman, went to
the People’s Restaurant kept by Gan Yek Kiao, in a car sent by the
latter, for a conference. In that conference Gan Yek Kiao introduced
his visitor Ang Cui Bao to appellant Chu Se Beng and his companion Ang
Chu Yeng. These two told Ang Cui Bao that they and some companions had
come from Manila with authority to investigate the activities of the
Chinese Community in Davao during the Japanese occupation! that a
number of local Chinese residents had filed complaints against Alfonso
Ang Liongto, and that to investigate said complaints, they (Chu Se Beng
and his companions) wanted to confer with said Alfonso Ang Liongto and
for this purpose they were asking Ang Cui Bao to notify Liongto of the
desired conference, with the warning that should Ang Liongto refuse to
confer with them, he might suffer the same fate of a certain Chinaman
whom they had killed in Leyte. Ang Cui Bao transmitted the message and
warning to Ang Liongto but the latter not only declined to give
importance to the matter but also refused to have any conference with
Chu Se E;eng and his companions, saying that he had just arrived from
Manila himself and he knew that no one was authorized either by the
Government or the Chinese Consulate to make an investigation. This
attitude and decision of Ang Liongto was duly transmitted to Gan Yek
Kiao who presumably conveyed it to Chu Se Beng and his companions.

About 7 o’clock in the evening of April 15, 1946, six Chinese were
seen on the wharf or pier of Davao, grouped together and apparently in
conference. Not far from them and standing near an electric post was
appellant Dy Too. About the same time, Ang Liong to was standing in
front of his store situated right next to the pier, at a point about
six meters from Dy Too. Wot long thereafter, three witnesses for the
prosecution, namely: Jose Ang, a son of Ang Liongto, Maria Gellamucho
who was keeping a store next to the house and store of Ang Liongto, and
Pantaleon Cabilao, a complete stranger who happened to be at the pier,
saw appellant Dy Too approach Ang Liongto from behind and at a distance
of about two and one-half meters fire two pistol shots at him, wounding
him in the back. Ang Liongto was rushed to the Davao Public Hospital in
a jeep but he died on the way. Tommy Alawe, a police detective and two
companions, Ramon Posadas and his brother Filemon Posadas, were about
200 to 300 yards from the scene of the shooting. Upon hearing the two
shots they hastened toward the pier but on the way they saw a Chinaman
whom they later identified as the other appellant Ghu Se Beng running
along Monteverde Avenue away from the pier. When questioned by
detective Alawe, Chu Se Beng cried out “ladron” at the same time
pointing to a man running some distance behind him. Alawe believing
that there had been a case of theft or robbery and that the thief or
robber was the man indicated, confronted the said person as he came
abreast of Alawe and asked him what was the matter. This person, a
Chinaman who turned out to be appellant Dy Too and who was carrying a
.45 caliber pistol, in his turn cried out “ladron” and pointed to Chu
Se Beng who was running ahead of him. Alawe acting upon this
information chased Chu Se Beng but because of the headstart had by him
while Alawe was questioning Dy Too, Chu se Beng was able to escape. The
two companions of Alawe, Ramon Posadas and Filemon Posadas, in their
turn chased Dy Too acting on the hunch that after all he may be the
real thief indicated by the first Chinaman Chu Se Beng but they were
also unable to capture him.

After the fruitless chase Alawe headed for the pier to find out
what had really happened and there he was informed that Ang Liongto had
been shot down and had been rushed to the hospital. The shooting was
immediately reported to police headquarters and Detective Untalan was
sent to the scene of the shooting to investigate. With the aid of a
flashlight he found two empty .45 caliber cartridges bearing the mark
“E-C–42” marked as exhibits “B” and “B-1”. During his investigation,
one of the sons of the deceased Ang Liongto showed him a copy of a
letter addressed by his father to the Provincial Fiscal reporting that
six Chinamen who lived in the house of Eustaquio Sambas in Banquerojan,
Davao had made threats to kill him. Acting upon this lead, detective
Untalan accompanied by other detectives went to the said house and
found therein five Chinamen, among whom was appellant Chu Se Beng. It
will be remembered in this connection that this was the very house
where the two appellants and their four Chinese companions had taken up
two rooms. There the detectives were informed that their companion Dy
Too had left the house about 5:30 that same afternoon. In the course of
the s earch, two rounds of .45 caliber ammunition bearing the same mark
“E-C-42” were found in a buri bag belonging to Dy Too. Two .32 caliber
revolvers were also found and confiscated by the detectives. All the
five Chinamen were arrested and taken to the police station. A
policeman was left in front of the house to wait for Dy Too.

Early the next morning Dy Too was seen entering the house wearing
khaki pants dripping wet, with neither shirt nor undershirt on him. The
guard immediately ieat to the station to report what he had seen, but
when he, accompanied by other policemen, returned to the house they
were informed that Dy Too had already left heading for the river. The
policemen followed him and finally saw him in a banca being rowed away.
He was arrested and when asked where he was going, he answered that he
was going to a distant barrio which was found to be much nearer and
much more easily accessible by land instead of by water transportation.
After being questioned at the police station, he was taken to the house
where he was staying and there he showed the police the pair of wet
pants which he had hidden under the stove. While being detained at the
police station, appellant Dy Too spoke to one Ramon Posadas who was at
the station as a witness and told him that he should not sign any paper
because the police had no evidence against him (Dy Too) because
although he had really killed Ang Liongto, the gun with which he shot
him had not been found, and that if Posadas would help him, he (Dy Too)
would introduce him to many rich Chinese merchants who were coming to
the station and said Chinese merchants would give him anything that he
wanted.

Based on all these evidences, there is not the least doubt that Dy
Too was the killer. He was seen by three ocular witnesses who saw the
actual shooting and positively identified him as he fired the shots and
as he passed near them when he ran away to escape. This, apart from his
admission made to Ramon Posadas at the police station that he was the
one who killed Ang Liongto, Dy Too did not even bother or take the
trouble to testify at the trial in order to deny the imputation made
against him as the person who fired the fatal shots.

The case against appellant Chu Se Beng is not so easy. He did not
participate in the shooting. His criminal responsibility if any must be
based on conspiracy. Considering all that had happened before the
shooting of Ang Liongto, from the time that Chu Se Beng and four other
Chinese companions left Leyte by plane until the conference at Gan Yek
Kiao’s restaurant where Chu Se Beng m&de a threat against Ang
Liongto’s life, including the events that took place shortly after the
killing, we are convinced that there was a conspiracy between Dy Too
and Chu Se Beng to kill Ang Liongto. It may not be amiss to recall that
Chu Se Beng and his four companions upon arriving in Cebu on March 27,
1946, immediately contacted Dy Too and three days later they all
emplaned for Davao. There, they lodged together in the same hotel at
Claveria Street. A few days later Chu Se Beng and his four original
Chinese companions and his co-appellant transferred to the house of
EustaqUio Sambas where they occupied two rooms paying P60 in advance.
Then, on April 6, in the evening, Chu Se Beng and his companion Ang Chu
Yen had a conference with Gan Yek Kiao and Ang Cui Bao, Chinese
residents, where Chu Se Beng sent a message to Ang Liongto for the
latter to confer with him and his companions who had been authorized
from Manila to investigate him particularly his conduct during the
Japanese occupation, accompanying the invitation with threats that if
he refused to see them, he might be killed, lastly, it will be
remembered that CbarSe Beng was near the scene of the killing, perhaps
one of the Chinamen who were seen suspiciously loitering at the pier
right in front of the house of Ang Liongto, and that immediately after
the shooting he was seen running away from it. And, what is more
important, to avoid being suspected or apprehended by the police, he
tried to confuse and mislead detective Alawe by making it appear that
what had been committed was not a killing but a robbery or theft and he
even indicated someone behind as the thief. Dy Too in his turn and
showing an understanding and concert of action played the same trick on
the police by shouting “ladron” and pointing to Chu Se Beng who had
continued running away and had already a good headstart rendering
difficult his capture as in fact he escaped that evening.

The defense of alibi interposed by both appellants was
correctly rejected by the trial court. Chu Se Beng claimed that he was
in the house all evening playing poker with his companions and later
went to bed, but this defense may not prevail over the testimony of at
least two witnesses who saw him running away from the scene of the
crime immediately after the shooting. As to Dy Too, his theory that he
was in a movie house all evening on April 15 was not accepted by the
trial court which found that the place where he pretended to have taken
refreshments and entertained friends at the Restaurant “El Dolor” is
only about five minutes ride from the pier and that he could have
easily gone to that place before he went to the movie house, assuming
that he actually went there that evening. Moreover, he was seen by two
others as he ran away from the pier carrying a .45 caliber gun, the
same caliber of the two empty shells found at the scene of the shooting
as well as of two rounds of ammunition found in his buri bag in his
room.

The circumstances surrounding the shooting clearly prove the
qualifying circumstance of treachery. The deceased was shot from behind
in a surprise and unexpected attack. We agree with the trial court that
the aggravating circumstance of premeditation accompanied the killing.
The elaborate preparations made by the two appellants from the time
that they left Cebu and during the several days of their stay in Davao
where they tried to contact Ang Liongto, perhaps to obtain money from
him or lure him into a trap, with threats against his life, have
sufficiently established this aggravating circumstance. To offset it,
the lower court found in their favor the mitigating circumstance of
lack of instruction. The Solicitor General, however, believes that the
two appellants being merchants and, consequently, intelligent and not
entirely ignorant, are not entitled to the same. It is to be noted,
however, that the trial court did not believe the claim of the
appellants, made through Chu Se Beng, that they were merchants who had
come to Cebu with a capital of P12,000 to buy corn. There is,
therefore, no reason to uphold the contention of the Solicitor General
and reject the finding of the trial court.

In conclusion, we find the guilt of the two appellants to have been
established beyond reasonable doubt. Finding no reversible error in the
decision appealed from, the same is hereby affirmed, with costs.

Moran, C. J., Ozaeta, Pablo, Bengzon, Tuason, and Reyes, JJ., concur.

MORAN, C. J.:

Mr, Justice Padilla voted for affirmance.