G. R. Nos. L-9866-7. November 28, 1964
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEES VS. JULIAN TIONGSON Y DE LA CRUZ, ET AL., DEFENDANTS PAULINO GUIEB Y MENDOZA, WILSON ALICANTE Y MORALES, ANTONIO YACAT Y B…
MAKALINTAL, J.:
The above-named defendants were charged under two separate informations filed
in the Court of First Instance of Rizal (Quezon City Branch) with the murders of
Rizalino Lopez and of Mariano Lopez, Jr., respectively. After trial they were
found guilty as charged — the crimes being qualified by treachery and abuse of
superior strength, and aggravated by the circumstances that they had been
committed by a band — and sentenced in each case to suffer the penalty of
reclusion perpetua; to indemnify, jointly and severally, the heirs of the victim
(Rizalino in Criminal Case No. Q-765, and Mariano, Jr., in Criminal Case No.
Q-766) in the amount of P6,000.00, with the accessory penalties provided by law;
to pay 5/6 of the costs.
All the defendants appealed from the judgment, but Julian Tiongson, upon
motion, was permitted to withdraw his appeal by resolution of this Court of
August 13, 1963. The remaining appellants are Paulino Guieb y Mendoza, Wilson
Alicante y Morales, Antonio Yacat y Belmonte and Pablo Antonio y Feria.
The following facts appear clearly established. Sometime before June 26, 1052
Mariano Lopez, Jr. and Rizalino Lopez, brothers, had a quarrel with Jesus Sayo,
Nephew-in-law of their sister, Mrs. Marcelino Sayo. Her husband, Atty. Marcelino
Sayo, having heard rumors that his wife’s relatives were intending to create
trouble, with the help of Tondo gangsters, asked for protection from the
Philippine Army, of which he was formerly an officer. The Army Chief of Staff
assigned herein appellants, then soldiers, to act as security guards at the Sayo
residence in Halcon Street, Quezon City.
On June 26, 1952 the four appellants were on duty at said residence. At about
7:00 p.m. of that day Rizalino Lopez and his brother Ramon arrived in a jeepney
and got down at the corner of Maria Clara and Halcon streets. From there they
walked up to the corner of Halcon and Simoun streets, where Ramon left Rizalino
and proceeded alone to the Sayo house. Their intention was to borrow money from
their sister with which to buy medicine for Rizalino’s sick child. Ramon was
allowed by the guard stationed at the gate to go inside. Ramon had a brief talk
with his sister, received P3.00 from her and then left to rejoin his brother.
When he arrived at the corner of Halcon and Simoun streets, he saw Rizalino
being questioned by Julian Tiongson, a civilian, who was also a guard in the
premises, having been assigned by Atty. Sayo himself. Revolver in hand, Tiongson
included Ramon in the questioning, and also Mother brother, Mariano, Jr., who in
the meantime had come with their cousin Pacifico Arceo. With Tiongson another
armed man, known only by the name “German.” Even so, Tiongson called out to the
soldiers at the Sayo residence, and at the same time herded the four, the Lopez
brothers and their cousin, to the middle of the street in the direction of the
house. Suddenly a shot rang out, immediately followed by a continuous volley.
Ramon Lopez was able to hide behind the fence of his sisters’ house while
Pacifico Arceo sought shelter in a nearby alley.
The incident having been reported to the Homicide Section of the Secret
Service Division, Quezon City Police Department, a group of detectives headed by
Detective Napoleon Albano rushed to the scene and there found the bullet-riddled
bodies of Rizalino and Mariano Jr., sprawled in the middle of Halcon street.
Results of the necropsies conducted by Dr. Ernesto Brion, medico-legal
officer of the National Bureau of investigation, showed that Mariano, Jr.,
suffered seventeen (17) gunshot wounds, five of them fatal, and Rizalino
suffered eighteen (18) gunshot wounds, three of them fatal. Five slugs were
recovered from the body of Mariano, Jr. and four from the body of Rizalino.
A search of the premises by the police detectives yielded five (5) .45
caliber fired empty cartridge cases; one (1) .45 caliber AP type ball
ammunition; thirty one (31) .30 caliber fired empty carbine cartridge cases; one
(1) .30 caliber fired empty cartridge case; one (1) .38 caliber dud revolver
ball ammunition; and three (3) .30 caliber fired bullets.
At the Quezon City Police headquarters Ramon Lopez and Pacifico Arceo
declared that the shooting had been perpetrated by two civilians, Julian
Tiongson and the one known only as German, and by the four soldiers. These four
soldiers surrendered their respective firearms but refused to make any statement
when they were taken to the police headquarters that night. German had escaped
and remained at large even during the trial of case. Julian Tiongson, however,
was apprehended the following day aside from the weapons surrendered by the four
soldiers, the police authorities also recovered two other firearms at the scene
of the crime, one a .38 caliber revolver, commando type, and the other a .45
caliber automatic pistol.
In their joint brief the four appellants contend (1) that Antonio Yacat and
Pablo Antonio should be acquitted; (2) that there was no proof of conspiracy
among them to kill the deceased; (3) that the circumstances preceding the
shooting should have been considered by the trial court; and (4) that they
should not have been convicted of the two murders, qualified by treachery and
abuse of superior strength, and aggravated by its having been committed by a
band. Another brief was filed by Pablo Antonio alone, wherein he dwells
particularly on the comparative credibility of prosecution witnesses Ramon
Lopez, Pacifico Arceo and Napoleon Albano, on one hand, and of himself and his
own witnesses, on the other.
In the resolution of this appeal, the defense of Yacat and Antonio calls for
a separate treatment from that of Guieb and Alicante. The first two deny having
taken part in the shooting; the last two admit such participation, but allege
certain circumstances which, they contend, should exempt them from criminal
liability. The prosecution, however, sought to establish that all of them
plotted (with Tiongson and German) to kill the Lopez brothers and in consonance
with such criminal plan shot the victims. Appellants Yacat and Antonio maintain
that at the time of the shooting they were both at the back of the Sayo
residence, having been assigned by Corporal Guieb to guard that part of the
premises, and that they never fired their guns at all. This second point finds
support in the very evidence for the prosecution.
The firearms confiscated from the four soldiers were Presented at the trial
and identified as Exhibits G-l to G-4, inclusive, thus:
magazines – 5018389 (Exhibit G-4).
G-3),
one (1) Magazine and 17 live ammo. – 522539 (Exhibit G-l).
rounds ammo. 2245108 (Exhibit G-2).
Julian Tiongson’s gun was .38 caliber revolver, Colt commando type, with
serial No. 14137, marked Exhibit G-5. The sixth gun, a .45 caliber automatic
pistol, with serial No. 13147, marked Exhibit G-6, appears to have been the one
used by the other civilian named German.
The above firearms, as well as the cartridge cases and bullets found at the
scene of the crime, and the bullets extracted from the bodies of the victims,
were all submitted to the Criminal Investigation Laboratory of the Manila Police
Department to determine which firearms had fired which shells or bullets.
Ballistics tests were conducted by Simeon F. Molina, ballistics technicians of
said laboratory, who submitted to report (Exhibit P) and testified in court on
his findings.
According to Molina, except for four .30 caliber fired bullets and one .30
caliber fired carbine cartridge case, as to which no conclusions could be made
because of their deformed or mutilated conditions, all the bullets and cartridge
cases examined by him came from the fire- arms marked Exhibit G-3, G-4, G-5 and
G-6. None of them, he said, could have been discharged from appellant Yacat’s
weapon (Exhibit G-l) which, although also of caliber .30, is not of the carbine
type but a Browning automatic rifle. And so far as appellant Antonio’s M-l
Garand rifle (Exhibit G-2) was concerned, no bullets or empty shells from such a
firearm were submitted to Moling for examination. It is significant to note
further in this connection that when Exhibits G-l and G-2 were surrendered the
first had its magazine still containing 17 live ammunition, and the second had
its clip with 8 rounds likewise undischarged.
In convicting these two appellants, Yacat and Antonio, the lower court relied
on the testimony of Ramon Lopez and Pacifico Arceo to the effect that all the
soldiers took part in the shooting, and on the statement of Detective Napoleon
Albano that they made no admission to that effect when he questioned them.
The version given by Ramon Lopez and Pacifico Arceo is substantially as
follows: Tiongson pointed his .38 caliber revolver at the Lopez brothers and
their cousin and then ordered them to march to the middle of the street. At the
same time, Tiongson ordered “German” to call Guieb. Tiongson then shouted
“Alex”, presumably some kind of code word. One of the soldiers approached
Tiongson and had a whispered conversation with him, left and then came back. At
that moment the other soldiers had already come out to the street. Tiongson
said, “sige, tirahin mo na,” and fired the first shot, followed by continuous
volley from German and the four soldiers.
The evidence given by Lopez and Arceo implicating appellants Yacat and
Antonio is, as previously observed, contradicted by the finding of the
ballistics expert presented by the prosecution that not a single bullet or
cartridge case found in the premises or extracted from the victim’s bodies came
from the firearms of said appellants. Arceo testified as to the number of
soldiers who participated, but could not positively identify them individually
at the trial. Considering the exciting and rather confused events of the
evening, it is not improbable for him to be mistaken as to the exact number of
the assailants. The testimony of Ramon Lopez concerning the part played by Yacat
and Antonio is hardly any better. After the incident his sworn statement was
taken at the Quezon City Police Department. On cross- examination at the trial
he said:
incident which happened on June?
* * * * * * *
the house and conversed with Mr. Tiongson, while in that declaration you talked
of two soldiers coming out of the house of Mrs. Sayo, which of the two
statements is true?
to the materiality to show why we are asking the production of that statement.
The defense here is that the two soldiers were at the back of the house. I want
that to be appreciated.
incident; do you mean to say that those statements which you gave because you
were not feeling well at that time were inaccurate?
soldiers who responded to the call of Mr. Tiongson at that time?
there were 4 soldiers.
before in that investigation was two soldiers?
The spontaneous declaration of Ramon Lopez right after the incident that only
two soldiers were involved in the shooting throws a serious doubt upon his
subsequent declaration in court when he tried to incriminate all the four
appellants, especially in the light of the established physical fact that the
firearm of Yacat and Antonio did not fire any of the pertinent bullets retrieved
and submitted for ballistics examination.
Much reliance was also placed by the lower court on the declaration of
Detective Napoleon Albano that when he inquired from the one who was in charge
of the guards (presumably referring to Guieb) as to who shot the two Lopez
brothers, Guieb “admitted they were the ones who fired the shots”; and that “I
also inquired from them who among them fired at the victims because be- forehand
at the scene of the crime they already admitted having fired the shots, and they
said all of them fired.”
Certain circumstances detract from the weight of this testimony. First, not
one of the soldiers made a written statement confirming the alleged admission.
Second, while Albano himself said lie considered such admission to be important,
he nevertheless made no mention thereof in his written report submitted to the
fiscal’s office. And third, the transcript shows that Albano did not ask the
soldiers individually if each had participated in the shooting, but simply
addressed the question to them as a group.
Guieb and Alicante both testified that at about 7:00 pm. of June 26, 1952,
Yacat and Antonio were instructed by Guieb to guard the back part of the Sayo
residence. Before the incident the four soldiers were in front. A certain
Captain Camacho, a friend of Atty. Sayo, arrived, followed presently by Atty.
Sayo himself. Right after Sayo’s arrival, Yacat and Antonio, in obedience to
Guieb’s order, went to the backyard to stand guard there, while Guieb and
Alicante remained at the street side of the house. A little later a maid called
Yacat and Antonio to eat in the kitchen, located on the ground floor at the
back. It was while they were eating that they heard shots. The lights went out
and they got hold of their respective firearms, ready for any eventuality.
Captain’ Camacho rushed down the stairs to get his son whom’ he had left in his
car parked outside. When he came back he ordered Antonio to continue guarding
the premises back of the house and had Yacat stay near him as he sought refuge
inside the toilet. The foregoing testimony of Yacat and Antonio is corroborated
by both Captain Camacho and Atty. Sayo.
We are of the opinion, on the evidence as a whole, appellants Yacat and
Antonio are entitled to exoneration on the basis, at least, of reasonable doubt
as to their guilt.
We now come to the appeal of Guieb and Alicante’ They admit having taken part
in the shooting, but claim (1) that they did not conspire with Tiongson to kill
the victims; (2) that the killings were not qualified by treachery and abuse of
superior strength; (3) that the crimes were not aggravated by its having been
committed by a band; and (4) that the death of the Lopez brothers was not caused
intentionally, but resulted from the erroneous belief on the part of the
appellants that they were being attacked.
On the first issue, we agree with appellants that their presence at the Sayo
residence on the night in question was not in pursuance of a conspiracy. They
were there upon orders of a superior officer and in the performance of the
assignment given to them- However, the shooting itself was preceded by
circumstances which show that a common accord actuated appellants. Thus when
Tiongson shouted “Alex,” Guieb and Alicante came out and deployed in front of
the Sayo residence, facing the Lopez brothers and their cousin Arceo; and when
Tiongson said “sigue, tirahin mo na” and fired the first shot the soldiers then
followed suit with a hail of bullets that literally riddled the two victims.[1]
Guieb and Alicante contend that they acted in the er- roneous belief that
they were being attacked and that they killed the victims accidentally, without
fault or intention, while they were engaged in the performance of a lawful act
with due care. We find no merit in this contention.
Guieb’s version is as follows: That night, while he and his companions were
standing guard at the Sayo residence, he heard a commotion, followed by two
shots, so he ordered Alicante to take cover. Guieb himself sought refuge beside
a car (belonging to Capt. Camacho) parked in front of the house. As the gunfire
became intense he ordered Alicante to shoot back. Both of them fired at their
supposed attackers, whom they could discern only as figures in the dark. When
the firing ceased, he went out to reconnoiter the place and it was then that he
saw the two victims lying dead. Alicante testified along the same lines as
Guieb. The aforesaid version, however, is far from convincing. The clear
evidence for the prosecution is that Arcco and the three Lopez brothers were not
mere figures in the dark just before the shooting. Tiongson was herding them in
the middle of the street in plain view of Guieb and Alicante.
They were unarmed, made no hostile move at all and had their hands raised in
a gesture of helpless surrender. In fact no shots were fired other than with the
four firearms mentioned heretofore. The situation could not possibly have given
Guieb and Alicante cause to believe that they were being attacked.
The killings were attended by the qualifying circumstance of treachery. The
attack, though frontal, was sudden, and perpetrated in a manner tending directly
and especially to insure its execution, free from any danger that the victims
might defend themselves. As to the circumstance of abuse of superior strength,
we agree with the Solicitor General that the same was absorbed in the
circumstance of treachery. (People vs. Peritu, L-13895, Sept. 30,1963;
People vs. Guarnes, L-12819, Dec. 29, 1960; People vs.
Balines, Lr-9045, Sept. 28, 1956).
As aggravating circumstance, it has been sufficiently established that the
offenses were committed by a band, that is, by more than three armed malefactors
acting together. Four of the six guns recovered after the shooting appear to
have been fired Three of those from guns were used by Tiongson, Guieb and
Alicante, respectively. The fourth, a .45 caliber automatic pistol, was seen by
Ramon Lopez and Pacifico Arceo in the Hands of the man known to them only as
German. Five empty cartridges found at the scene and submitted for ballistics
examination are definitely known to have come from the said firearm.
The mitigating circumstance of voluntary surrender should be considered in
favor of appellants Guieb and Alicante, it appearing that they gave themselves
up to the Quezon City police right after the incident. There being two
circumstances, one aggravating and one mitigating, to offset each other, the
penalty provided by law for each of the offenses, namely, reclusidn temporal in
its maximum period to death, should be imposed in its medium degree, which is
reclusion perpetua, as imposed in the judgment of the trial court.
Wherefore, the judgment appealed from is reversed with respect to appellants
Antonio Yacat y Belmonte and Pablo Antonio y Feria, who are hereby acquitted;
and affirmed with respect to appellants Paulino Guieb y Mendoza and Wilson
Alicante, y Morales, who shall be solidarily liable, with the accused Julian
Tiongson y de la Cruz, for the indemnities provided for in said judgment. The
costs shall be apportioned accordingly.
Bautista Angelo, Concepcion,
Reyes, J. B. L. Barrera, Paredes, Dizon, Regala, Bengzon, J. P. and
Zaldivar, JJ. concur.
[1] This Court has repeatedly decided that
Conspiracy may inferred from the acts of the accused themselves when such acts
point to a point purpose and design (see People vs. Upao-Moro, G. R.
No. L-G771, May 28, 1957, and cases cited therein). Unlike in evident
premeditation, where a sufficient period of time must elapse to afford full
opportunity for meditation and reflection and for the perpetrator to deliberate
on the consequences of his intended deed (U. S. vs. Gil, 13 Phil. 530),
conspiracy arises o the very instant the plotters agree, expressly or impliedly
commit the felony and forthwith decide to pursue it. Once this assent is
established, each and everyone of the conspirators made criminally liable for
the crime committed by anyone of them (People vs. Abrina, et al. G. R.
No. L-7849, December 1957). Hence, the accord between the accused is evidence by
their concerted assault upon their victim, rendering each assailant liable for
the entire consequences of the unlawful act. Peoplev. Monroy and Idica, 65 Off.
Gaz. 9042.