THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROGELIO PERIO-PERIO, ACCUSED-APPELLANT.

On June 24, 1972,
spouses Domingo Albios and Tomasa
Albios, their daughter Luzviminda
Albios, and nieces Ester Tangcay
and Delia Villa, attended the inauguration of a new school building in Bagwa, Sibutad, Zamboanga del Norte. As part of the celebration, a dance was held attended
by the residents of the community. Domingo Albios and
his family left the dance at about two o’clock in the morning of June 25, 1972 and proceeded for their residence. As it was
showering, Tomasa wore a hat, her husband’s loafer
and a towel. Domingo covered himself with a banana leaf only, while their other
companions did not have anything on to protect themselves.

While they were walking home in a column, with Tomasa Albios leading the way,
they heard an explosion or a gunshot. Immediately, Domingo and his companions,
except Tomasa, hid themselves in the bushes nearest them, and almost simultaneously they heard
Tomasa saying: “Aguy, Domingo, I was hit.” From his hiding
place, Domingo saw his wife Tomasa turn around and
fall to the ground. As he was not armed, Domingo ran home to inform the members
of his family that Tomasa was shot. Likewise, he was
able to report the matter to the policeman who was on duty at the dance.

Tomasa died on the spot. Her body was
taken to the Albios residence where they found her
wounded at the left side of her back thru the front of the abdomen. Her body
was not examined by a physician before she was buried at the municipal cemetery
of Sibutad,
Zamboanga del Norte.

The incident was brought to the attention of the Chief of Police
who, together with Patrolmen Palma and Necesario,
went to the scene of the crime immediately after they had received the
information. As the body of the victim was no longer there, they proceeded to
her residence. It came out from the investigation conducted by the said peace
officers that Tomasa Albios
was a para­mour of one Florencio Jumawan.
As a consequence, said Jumawan was brought to the
police station where he was investigated and admitted that he hired one Rogelio
Perio-­Perio to shoot Domingo Albios,
husband of Tomasa. In the process, it was Tomasa who was hit.

The Chief of Police had Perio-Perio
located and, upon investigation, the latter admitted that he was hired by Florencio Jumawan to shoot
Domingo Albios, husband of Tomasa.
Perio-Perio also revealed that it was a home­made shotgun he used in shooting the victim. Florencio Jumawan indicated to
the authorities the place where he hid the fatal weapon. The Chief of Police,
together with Fiscal Balisado, went to the place
indicated (in the plantation owned by a certain Cabilin)
and there they found the weapon.

An information for murder was filed
against Rogelio Perio-Perio, and only against him
because Florencio Jumawan
died when he was detained in the municipal jail of Sibutad.

Defendant Perio-Perio denied his
alleged participation in the commission of the crime charged. In fact, he
claimed that he did not even know where Sitio Bagwa is, much less has he ever been there. He admitted his
signature in the document, marked Exhibit “E”, but contended that he
had to sign it because the policemen told him that he would be killed if he
would refuse. He was not even asked questions but was only presented with the
said document for his signature.
Likewise, he denied having been brought to the Office of Municipal Judge Nicomedes Cabasa. It was in the
Office of the Chief of Police where he saw the judge. He also denied the
statement imputed to him that Florencio Jumawan offered him P100.00 to shoot Domingo Albios; and, regarding the weapon used in the commission of
the crime, he saw it for the first time only in court.

The testimony of the accused Perio-Perio
was rebutted by Patrolman Mario Calizo saying that it
was the Chief of Police who investigated herein accused, and that he did not
maltreat or force the latter to sign Exhibit “E.”

After trial, the lower court rendered a decision, the dispositive portion of which reads:

“WHEREFORE, the Court finds the accused Rogelio Perio-Perio guilty beyond a reasonable doubt of the crime
charged in the information. The commission of the crime, however, was attended
with treachery, and as defined and penalized under Article 248 of the Revised Penal Code, the penalty imposable is
reclusion temporal in its maximum period to death. As there are no
mitigating and no aggravating cir­cumstances to consider, the penalty to be
imposed should be in its medium period.

“The accused Rogelio Perio-Perio is
hereby sentenced to reclusion perpetua.

“He is further
sentenced to suffer all the accessory penalties provided for by law.

“He is further sentenced to
pay the heirs of the victim P12,000.00 as
indemnity for the death of the victim; P10,000.00 for moral damages; P10,000.00
for exemplary damages and P5,000.00 for loss of earning capacity.

“He is further sentenced
to pay the cost.

“As detained prisoner he is entitled to all his preventive
imprisonment if he will agree in writing to abide by all the rules and regu­lations
provided for convicted persons, other­wise he will be entitled to only
four-fifths (4/5) thereof. The firearm,
a homemade shotgun or paliuntod used in the commission is hereby ordered
confiscated in favor of the state and turned over to the Philippine Constabulary for proper disposition.”

The trial court said that even if it were to disregard the
extrajudicial confession, the following facts appeared uncontradicted:

“(a) That on June 25,
1972, Tomasa Abao
de Albios was shot while on her way home from a dance
at the Bagacay
Elementary School and died on the spot. Her body was later taken to her home where police
authorities saw and examined it.

“(b) That the accused Florencio Jumawan had an ‘affair of the heart’ with the deceased Tomasa Abao de Albios.

“(c) That there was
a prior attempt to eliminate Domingo Albios.

“(d) That
immediately before the shooting of Tomasa, the
accused Florencio Jumawan
was seen by witness Warlito Embrado
talking with accused Rogelio Perio-Perio. Florencio Jumawan was pointing to
accused, Rogelio Perio-Perio, at several directions around them;

“(e) That Tomasa Albios was shot and killed
near the spot where both accused
had been seen talking, the previous day.

“(f) That accused
Rogelio Perio-Perio was then living with the accused,
now deceased, Florencio Jumawan.

“(g) That accused
Rogelio Perio-Perio, before his affidavit
(confession) was taken, he admitted his participation
in the commission of the crime.

“(h) He admitted
that he was offered by his then co-accused
Florencio Jumawan the sum
of P100.00 to shoot Domingo Albios.

“(i) Instead of Domingo Albios
being shot and killed, it was Tomasa Albios, the paramour of Florencio
Jumawan who was killed.

“(j) That the death
weapon, Exhibit ‘F’ was found by the authorities where both Jumawan and Perio-Perio said Jumawan hid
it in the mud in a rice field. This particular fact belied the claim of the
accused that he did not know anything about the death weapon. As hidden,
it was impossible to find that ‘paliuntod‘ unless the
person or persons who hid it were to locate it themselves. Therefore, it is
clear that accused, Rogelio Perio-Perio
knew where the gun was hidden, otherwise he could not have divulged its exact
location to the police authorities.” (pp. 20-21, Rollo)

Appealing to Us, Perio-Perio alleged
that the trial court erred (1) in finding that appellant, before his alleged
extrajudicial confession was taken, had admitted his participation in the
commission of the crime and that he was offered by his then co-accused Florencio Jumawan a sum of money to shoot Domingo Albios;
and, (2) in finding that appellant knew where the deadly weapon was.

Going over the records of the
case, it is clear that prosecution witnesses, Domingo Albios
and Luzviminda Albios, who were then with the deceased, Tomasa Albios, both admitted in
court that they did not see, much less recognize, the
appellant. Domingo declared:

“Q   Have
you heard a shot that was fired that
hit your wife?

A     I heard.

Q    Then what did you do upon hearing the
shot?

A     What I did when I heard the
explosion I threw myself to the bushes to hid myself.

Q    How long, have you kept yourself hidden in the bushes?

A     For
short while.

Q    Then what did you do?

A     During
the explosion I heard my wife said, ‘Aguy, Domingo, I
was hit.’ From the place I hid myself I looked towards the place where my wife was and I saw her turn around and
fall to the ground. When I saw that I ran towards out place because I have no
arm.

Q    Were
you able to see the persons who shot your wife?

A     I did not.”
(pp. 4-5, tsn., May 17, 1973,
Underscoring supplied)

And, hereunder is the testimony of Luzviminda
Albios on this point:

“Q   While on your way, do you remember if there was anything unusual that happened?

A     Yes,
sir.

Q    What
was that incident about?

A     The incident was that my mother was shot, sir.

Q    Have you seen the person who shot
your mother?

A     I
did not see, sir.

Q    How did you know that your mother was shot?

A     I
know that my mother was shot because I heard an explosion, sir.

Q    When you heard that explosion, what
did you do?

A     I
hid myself, sir.

Q    Where
did you hide yourself?

A     Among the bushes, sir.

Q    How long have you remained hiding yourself in the bushes?

A     If I am not mistaken, almost one hour, sir.” (tsn., pp. 4, June 19, 1973 hearing)

Basis of the suspicion that it was appellant who fired the shot was the testimony of
Warlito Embrado who,
according to the trial judge, saw Florencio Jumawan the day before the incident talking with and
pointing to Perio-Perio “several directions
around them.” Thus, Embrado testified as
follows:

“Q   Do
you remember where were you on June 24, 1972 particularly in the afternoon?

A     Yes, Sir.

Q    Please
tell the Honorable Court where were you on that date?

A     In our place in Bagwa,
Sibutad, Zamboanga del Norte, sir.

Q    While
you were in your place in Bagwa, Sibutad,
Zamboanga del Norte, do you
remember having seen a person somewhere in your place?

A     Yes, sir.

Q    Who
were those persons whom you saw?

A     I
saw Florencio Jumawan and
the accused, Rogelio Perio-Perio, sir.

x x x              x x x                 x x x

Q    In what particular place in Bagwa, Sibutad, Zamboanga del Norte did you see
these two persons?

A     In our palay
seedbeds near our house, sir.

Q    What were they doing when you saw
them?

A     I saw them and in that instance, Florencio Jumawan was
raising his hands and pointing in different directions and my wife inquired
from me what they were doing there and I answered ‘maybe about the tethering of
the carabao of Florencio Jumawan‘ because Florencio Jumawan used to tether that carabao
in that place, sir.

Q    How
long did Florencio Jumawan
and Rogelio Perio-Perio stay in that place near your
house?

A     About five minutes, sir.

Q    After
that, did you notice where did they go?

A     Yes, sir.

Q    Where?

A     They
proceeded on their way home, sir.” (tsn., pp.
36-37, Feb. 14, 1974
hearing)

By any stretch of the imagination We
cannot bring to ourselves the relevance
or connection between the meeting and
conversation of Jumawan and Perio-Perio
and the death of Tomasa Albios.
In the first place, Embrado did not hear what the two were talking about. On the contrary,
he could only guess that they were referring to the tethering of their carabaos. Secondly, it is hard to believe that Jumawan knew at the time that the Albios
family would be passing the place at the particular hour and in whose company they would be. To convict appellant on this testimony of Embrado or to consider it as proof would be basing
conviction on mere inference “which can hardly be said
to be reasonable, much less inescapable.” (People vs. Maisug, 27 SCRA 742)

Then, there is the Chief of Police, Marcelino
Camaso, who testified that when he investigated Florencio Jumawan, the latter
pointed to herein appellant as the one who
fired the shot intended for Domingo, but instead, hit Tomasa.
Whereupon, Perio-Perio was brought in for investigation and the latter allegedly admitted in writing (Exhibit
“E”) that Jumawan hired him for P100.00 to
shoot and kill Domingo Albios because the latter’s
wife was Jumawan’s mistress. Further, Camaso declared that
Jumawan pointed to him the place where he hid the
weapon used in the shooting of the victim – in the coconut plantation of a
certain Cabilin. Accompanied by Jumawan
they went to the place and recovered the homemade
shotgun (Exhibit “F”).

The only evidence which would pin appellant to the case at bar
are his statement (Exhibit “E”) and the recovery of the firearm
(Exhibit “F”). Relative thereto, We are
dubious of appellant’s guilt because –

1. Why would Jumawan, a married man, plot the assassination of Domingo Albios when the latter is the offended party in the alleged
liaison of the former with Tomasa, a mother of ten
(10) children. The reverse would be more natural and
logical. And, there is no certainty that Tomasa is really the mistress of Jumawan.

2. After appellant
was arrested and detained he obtained injuries during his investigation and
signing of Exhibit “E”. In his decision, the trial judge said: “He showed his small scar on his right upper lip and another scar on the right elbow and on the left forehead which
according to him were scars of the wound when he was hit with the pistol butt
by Patrolman Mario Caliso who warned him that he will
kill him if he will not sign the confes­sion or if he will tell the judge that he was maltreated.” (p. 163-164, Original Records)

3. Florencio Jumawan died even
before a case against him could
be filed in court. As observed
by the trial court in its decision, Jumawan “died of an illness. Apparently, he was not
attended by any physician while he was detained in the municipal jail of Sibutad, Zamboanga del Norte, although he was sent to the Rizal Memorial Hospital for treatment when his sickness was already
quite serious. As a matter of fact, he died on his way to the
hospital.” (p. 154, Original Records) Records do not show the nature of his fatal illness and what caused it, or why no medical attendance was given him – cir­cumstances which, according to the
defense – “give rise to the inference that he was a victim of
torture.”

4. The victim, Tomasa Albios, was not autopsied
before she was buried. While it was true that she died of gunshot wounds, there
is no evidence that the bullet that hit her came from the firearm, Exhibit “F”. Stated
differently, any gun could have been presented with a “concocted story
that it was found where the accused had said it was hidden.”
(p.10, Appellant’s brief).

5. Appellant, a
third grader, testified that he saw the firearm, Exhibit “F”, for the
first time in court and he was not the one who told the Chief of Police where it was hidden; that he signed the
statement (Exhibit “E”) because he was maltreated and threatened to
be killed. On this point, the Chief of Police declared that before taking the
confession” of Perio-Perio he advised the latter
that under the constitution, he has the right to be assisted by counsel, right
not to answer any question and explained to the accused that whatever the
accused will say, will be used against him or in his favor, as the case
maybe,” (p. 158, Original Records) The advice supposedly given appellant,
particularly on the matter of assistance of counsel, does not appear on Exhibit “E” because the only question asked in
connection therewith was –

‘INVESTIGATOR: Are you
willing to answer all questions
that may be propounded to you, and are
you willing to sign this statement to
prove that all you stated here are true and correct?” (p.
86, Original Records)

‘SUBJECT: Yes, I am willing to answer and to sign this statement’

We are astonished that the requisites of
the 1973 constitution with respect to the admission of extra-judicial confession, were allegedly observed by the police when the
statement of appellant was taken on June 25,
1972 or before the new fundamental law took effect.

Under these circumstances, it is hard to believe that the
statement (Exhibit “E”) was given freely and voluntarily. The least
that can be said of the People’s evidence in the case at bar is, it is
insufficient to sustain the allega­tions of the information because it is
tainted with doubt, inconclusiveness and inferences consonant with the innocence of the accused. The rule requiring proof beyond reasonable
doubt has not been complied
with. It is true that appellant’s
defense of alibi is weak, but well established and founded is the rule that the
prosecution must rely on the strength of its own evidence and not on the
weakness of the defense; and that the accused need not prove his innocence because that is presumed.

WHEREFORE, on reasonable doubt, the judgment of the lower court, dated August 30, 1974 is REVERSED and appel­lant Rogelio Perio-Perio
is hereby ACQUITTED.

SO ORDERED.

Melencio-Herrera, (Acting Chairman), Abad Santos, Plana, and Escolin, JJ., concur.