G.R. No. L-45722. June 23, 1987
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LEONCIO JUSEP, DEFENDANT-APPELLANT.
FERNAN, J.:
The records of this case
were elevated to this Court from
the Court of First Instance of Zamboanga
del Norte, Branch III* at Dipolog City for automatic review of the decision of December 23, 1976 which found Leoncio Jusep guilty beyond
reasonable doubt of murder and imposed on him the death penalty and
other accessory penalties under the law, and the payment of an indemnity of
P12,000 to the heirs of the victim, Jesus Gandola,
plus the costs of the suit (Criminal Case No. 1118).
As gathered by the prosecution, the facts of the case are as
follows:
Jesus Gandola was the administrator of
the 28-hectare land located along the seashore of Malolong,
Zamboanga del Norte, belonging to his aunt, Maria Perdices. He lived
in nearby Loquilos, Manukan,
also in Zamboanga del Norte. He was engaged in fishing (“sensoro“) as was Leoncio Jusep, who used to stay in Perdices‘
land before he was driven out of it for failure to pay rentals (TSN, November 14, 1974, pp. 25-26; August 23, 1974, pp.
4-5).
The stiff business competition between Gandola
and Jusep developed into something akin to bad blood
between them. One time, Gandola tried to borrow fifteen empty fish boxes from Jusep but the latter refused to lend him any. On another occasion, Jusep
asked Gandola’s father, Angel, to admonish Etot (Gandola’s nickname) not to
spread the rumor that Jusep had stolen a cow (TSN, supra,
p. 26). And, there was a time when Gandola fired his rifle at Jusep
whom he caught disturbing with a fish net the school of fish which had been
spotted by Gandola’s fisherman (TSN, August 23, 1974,
pp. 11-12).
Sometime in May, 1967,
Pastor Cotillas, who took charge of Jusep’s fishing business, went to Hilongos,
Leyte under the pretext of recruiting
fishing laborers or “buseros“. Actually, he was on an errand for Jusep to look for a hit man to do away with Gandola. Pastor contacted
his cousin, Alfredo Cotillas, and brought him to Manukan where Alfredo met Jusep
for the first time. The latter went with
Pastor to Manukan.
When Pastor introduced
them to each other, Jusep asked Alfredo if he was the
same person that Pastor had told him about and Alfredo replied that he was
indeed the one. Jusep
then told Alfredo to shoot Gandola in consideration
of the amount of P2,000. He
promised to give Alfredo said amount after he had shot Gandola
(TSN, August 15, 1974, pp. 14, 28 & 32).
Jusep and Alfredo frequently talked to one another
because the former’s house was very near that of
Pastor where Alfredo stayed. When
Alfredo asked Jusep where he would meet Gandola, Jusep answered that he
should go to that part of Manukan where there was a
big house and he would not miss Gandola who was a big
fellow (TSN, supra, p. 15). The first time Alfredo
saw Gandola was when they were on the seashore and Jusep pointed out Gandola who was
then standing on a bamboo
raft. The second time was when Jusep made him ride a jeep which passed by Gandola’s house (TSN, supra, pp. 57-58).
When Alfredo asked for a gun, Jusep
told him to wait awhile because the .45 caliber gun had not yet arrived (TSN, supra,
p. 16). In the morning of August 1, 1967, while Alfredo was in
the kitchen of Pastor’s house, Jusep arrived. He presented Alfredo with a .32 caliber
revolver and told him to use it in shooting Gandola. Jusep said,
“You always tack that revolver on your waist because there will be a movie in the afternoon and that
fellow might come and you finish him (‘butangi‘)
there” (TSN, supra, p. 17).
But, as instructed by Jusep, Alfredo did not
leave Pastor’s house that afternoon.
When Jusep came back, he informed Alfredo that
Gandola was not watching the movie. So, he told Alfredo, “You better go to
his house because he is not around” (TSN, supra, p. 18).
Jusep and Alfredo then hiked along the
seashore to the house of Gandola. When they arrived there, they stayed by the
coconut tree near the house. They waited
for people to come out of the house as it was then time for cooking supper.
When they noticed that the people in the house were about to take
supper, Jusep directed Alfredo to go under the house
while he stayed a little distance therefrom (TSN, supra,
pp. 19-23).
The floor of Gandola’s house was 2½ to 3 feet from the
ground. Alfredo went to that part of the
ground underneath the house just below where Gandola
was seated eating his supper. He could
easily see the persons inside the house because the floor was made of bamboo
slats placed one-fourth of an inch apart (Exh. E;
Record, p. 164; TSN, supra, p. 24).
Meanwhile, Gandola, his wife Arcelita, two of their three children, a baby-sitter and
some “buseros” were taking their
supper. Gandola
was seated at one end of a bench beside his daughter. Unexpectedly, they heard an explosion. Gandola stood up,
looked towards the national road and then towards the sea. Suddenly, he held his side and said,
“Gin, I was shot” (TSN, August 23, 1974, p. 7).
Alfredo shot Gandola by holding the gun
perpendicularly and aiming at the left side of Gandola’s
abdomen just below his ribs. Having hit
his mark at the first shot, Alfredo
aimed for another shot but due to the smoke emitted by the gun after the blast,
he got out from under Gandola’s house, went to where Jusep was, and together they proceeded to Jusep’s house (TSN, August 15, 1974, pp. 24-25).
After learning that Gandola had been shot, one of the “buseros”
tried to put out the light from the Petromax
lamp but Arcelita quickly pumped air into the lamp to
brighten the house. Seeing her husband
wounded, she took a flashlight
and went down the house hoping that she could still see the assailant. When
she saw nobody downstairs, she went up the house and saw her husband leaning on
the bench. Gandola
told her to inform his father about the incident. Arcelita acquiesced
and hurried towards Linay, Manukan
to her father-in-law’s house. Along the
way, she met someone to whom she entrusted the task of informing Gandola’s father about the shooting incident (TSN, August
23, 1974, pp. 7-8).
When Arcelita returned to their house, Gandola told her to inform his father that it was Leoncio Jusep who had
“looked for” his killer. As he spoke, Gandola
acted as if nothing had happened to him.
He then asked Arcelita to hail a vehicle so
that he could be brought to a hospital.
He repeated his instruction to Arcelita to
tell his father that it was Leoncio Jusep who had looked for a person to kill him (TSN, supra,
p. 8).
Arcelita waited for a vehicle to pass by but none came. Later, the person she had told to go to her
father-in-law arrived in a jeep. On the way to
the hospital in Dipolog
City, Gandola
once more told Arcelita that Leoncio
Jusep was the one who had looked for his killer and
that, should he be unlucky and die, Arcelita should take over their fishing business.
When they arrived at the hospital at around 10:00 o’clock that evening, Gandola
was x-rayed. While he was being wheeled
to the operating room, Gandola reiterated to Arcelita that it was Leoncio Jusep who had looked for his killer. Arcelita stayed
outside the operating room while her husband was being operated on. At 4:00
o’clock the following morning, she was informed that Gandola was dead (TSN, supra, p. 9).
Gandola, who was 36 years old at the
time of his death, underwent an exploratory laparotomy
with gastrorraphy and splenectomy. The bullet which entered his left lower
chest, lateral aspect, penetrated his abdomen and thoracic cavities, perforated
his stomach and lacerated his spleen thus causing massive intra-abdominal
hemorrhage (Exh. M; Record, p. 171). The immediate cause of his death was severe
anemia due to massive hemorrhage (Exh. K; Record, p.
169).
In the meantime, coming from Gandola’s
place, Alfredo and Jusep encountered two persons
(TSN, August 15, 1974, p. 25). One of
them, Andres Gundes (Geondres),
was defecating near his house about a
hundred meters from Gandola’s house. He heard the explosion and, shortly
thereafter, saw two men walking towards him.
Gundes aimed his flashlight at them and
recognized them as Pidong Cotillas
and Leoncio Jusep (TSN,
August 22, 1974, p. 4). Gundes had known Jusep for several years and therefore he could not be
mistaken in identifying him (TSN, supra, p. 5).
The other person who saw Alfredo and Jusep was
Teofisto Villarin, who,
after hearing the explosion, alighted from the coconut tree on which he had
perched extracting tuba. Upon reaching the ground, he switched on his
flashlight and saw Alfredo and Jusep (TSN, August 15,
1974, p. 70).
Alfredo returned the gun
to Jusep upon their arrival in Jusep’s
house (TSN, supra, p. 31). Jusep
then instructed Alfredo to spend the night in Pastor’s house. Alfredo stayed there until the 3rd
of August, 1967 when
Jusep handed Alfredo only around twenty pesos instead
of the promised P2,000, and told him to return to Leyte (TSN, supra, pp.
26-27). Alfredo demanded from Jusep that he be given the P2,000 but Jusep
promised him that he would send that amount to him through Pastor (TSN, supra, p. 32).
Agents of the National
Bureau of Investigation (NBI) looked into the killing of Jesus Gandola. The
first suspect to be investigated was one Rivera who allegedly had a quarrel
with Gandola.
Then they picked up Pastor Cotillas (TSN,
August 22, 1974, pp. 29-30).
In his first sworn
statement which he executed on August
10, 1967 in Villaramos, Manukan, Zamboanga del Norte
before NBI agents Arturo H. Nunag and Restituto M. Reluya, Pastor
admitted having worked for Jusep. He claimed that at around 7:30 in the evening of August 1, 1967, he was selling fish in the market
with his wife and the wife of Jusep. He stated that he knew Gandola
because he used to stay in Gandola’s land for around
ten years. He added that Gandola and Jusep had a
misunderstanding because the latter refused to lend fish boxes to the former
but that they later made up and talked to each other again. He admitted that in February, 1967, he built
his house on Jusep’s land without paying rentals
thereon, and that Jusep even lent him P200 for his
house but Jusep never demanded that he pay back said
amount. However, he denied having
received from Jusep P500 to pay whoever would agree
to liquidate Gandola (Exh.
O; Record, p. 264).
Five days later or on August
15, 1967, Pastor
executed another sworn statement before the same NBI agents but this time in Dipolog City. He
admitted therein that he had offered P500 to one Tacluban
to liquidate Gandola; that he was acting on instructions
of Jusep;
that it was Jusep who approached him to find a man
who could kill Gandola; that he went to Ozamis City to look for a hired killer; that his cousin,
Alfredo Cotillas, whom he had recruited for Jusep’s fishing business, told him when they arrived in Manukan that Jusep had suggested
to him (Alfredo) that he should kill Gandola; that he
told Alfredo that it was not a good proposition because even if he (Pastor) had
looked for the hired killer, he did not want any of his relatives to get
involved in the killing; that at 6:00 o’clock in the morning of August 2, 1967,
Jusep told him that Gandola
did not die instantaneously of the gunshot wound inflicted on him by Alfredo
(“Matay, tor, wa man ma antimano“); that
the gun used in killing Gandola was in the possession
of Jusep; and that on the day he executed the
statement, he was leaving for Leyte to warn Alfredo
to keep his mouth shut because Jusep was afraid that
Alfredo might reveal that Jusep had instigated the
killing of Gandola (Exh. P;
Record, pp. 266-269).
The following day, August
16, 1967, Pastor executed his third sworn statement before NBI
agents Alberto de la Rosa and Arturo M. Nunag in Zamboanga City. The certified copy of said statement which
was presented in court was in the Cebuano dialect
and, like Exhibit P, it was the only
available copy of said statement.*
Pastor stated therein that he was in the market when Gandola was shot. He
knew that Jusep owned the .32 caliber revolver used
in shooting Gandola because it was Jusep who masterminded or instigated (“nagsugo“) the killing of Gandola. According to Pastor, Jusep
gave him P600, of which P500 would be paid to whoever would agree to kill Gandola and the balance of P100 would be spent in looking for the killer. He reiterated that he had given Tacluban the P500
but Tacluban allegedly lost it in gambling. He stated that sometime in January, 1967,
when Jusep passed by Gandola’s
place to fish, Gandola chased him with his pumpboat. Sometime
in May (1967), Jusep instructed him to look for
“buseros” in Leyte. There, he met Alfredo (Didong
or Pidong) and told him about Jusep’s
quest for a killer. Alfredo went with
him to Manukan and he introduced him to Jusep.
Pastor narrated that it was on July 15, 1967 when Alfredo, Jusep
and himself, talked about the killing of Gandola. Jusep told Alfredo
that if the latter would agree to kill Gandola, he (Jusep) would take
care of everything. At around 11:00 o’clock in the morning of August 1, 1967, the three met once again in the warehouse
(“kamalig“) of Jusep
to map out the plan to liquidate Gandola. They agreed that it would be best to
pass through the seashore both in going to and in coming from Gandola’s house
and that they would execute the
plan at 7:30 o’clock p.m. to
coincide with suppertime.
Pastor admitted that he
was a friend and trusted business associate of Jusep whom he first met in 1958.
The last time he talked to Jusep about the case was the day before (August
15, 1967) around 7:00 o’clock in
the morning when Jusep instructed him to go to Leyte to warn Alfredo not to talk to the NBI agents (Exh. Q; Record, pp. 270-273).
From Zamboanga City, Pastor accompanied NBI Agent Nunag to Hilongos, Leyte.
Together with NBI Agent Carlos Ortega and a policeman from Bato, Leyte, Nunag apprehended Alfredo. At first, Alfredo denied having participated in the commission of the crime.
But when the NBI agents
arranged a confrontation between him and Pastor, Alfredo admitted his
involvement therein. After taking
Alfredo’s sworn statement*, the NBI agents took Pastor and Alfredo to
Dipolog City via Cebu City
(TSN, August 22, 1974, pp. 35-38).
Thereafter, appellant was arrested at
the residence of his lawyer (TSN, supra, p. 45).
Pastor Cotillas, Alfredo Cotillas and Leoncio Jusep were charged with
murder for the death of Jesus Gandola. The municipal judge of Manukan,
who conducted a preliminary examination on the case, issued a warrant for the arrest of the
three suspects. The record of the case
was then forwarded to the Court of First Instance of Zamboanga
del Norte and the provincial fiscal filed the corresponding information before
said court (Criminal Case No. 4826).
When he was arraigned on November
16, 1967 Leoncio Jusep pleaded not guilty
(Record, p. 48). After the case was set
for trial, Second Assistant Provincial Fiscal Hermogenes
S. Balisado filed a motion to discharge Leoncio Jusep as an accused
alleging that after “a judicious study, evaluation and analysis of the
evidence on record”, he was convinced that the prosecution could not
establish conspiracy between Jusep and his
co-accused, and therefore, it would be futile for the prosecution to proceed
with the trial of the case with respect to Jusep
who would anyway be acquitted. He prayed
that Jusep be “provisionally discharged from the information“. The motion, dated November 28, 1967, was made with the conformity and signature
of Leoncio Jusep (Record,
pp. 102-103).
The provisional dismissal of the case against Jusep
was granted by the court for “lack of sufficient evidence to connect him
with the crime” (Criminal Case No. 4826 Decision, p. 2; Record, p.
107). Said dismissal order was issued
after the parties had agreed that the investigators would continue gathering
evidence on the case aimed at its refiling should the
gathered evidence so warrant (Record, p. 82).
The trial of Alfredo and Pastor Cotillas
proceeded. On August 20, 1969, the Court
of First Instance of Zamboanga del Norte, Branch II,
promulgated a decision finding the Cotillas cousins guilty beyond reasonable doubt of murder and imposed on them the indeterminate sentence of ten years and
one day of prision mayor to twenty
years of reclusion temporal, and the payment jointly and severally of
P12,000 indemnity to the heirs of Gandola (Criminal
Case No. 4826 Decision, p. 10; Record, pp. 106-115). Alfredo and Pastor Cotillas
did not appeal from said decision.
Angel Gandola, the victim’s father, who
was apparently convinced that Jusep was as guilty as
Alfredo and Pastor, initiated the taking of sworn statements of more
witnesses. The affidavits were forwarded
to the office of the provincial fiscal.
Consequently, the case was reopened and Fiscal Balisado
started the reinvestigation on August
24, 1970 (Record, p. 82).
Due to the delay in the
issuance of a resolution regarding the reinvestigation, Angel Gandola referred the case to the Department of Justice (Record, p. 53-54). Thereafter, on April 12, 1973, Fiscal Balisado
issued a resolution stating that there was no prima facie evidence
against Jusep to warrant his prosecution for murder,
and dismissed the case against him without prejudice to its reopening
“should new material evidence be discovered” (Record, pp. 80-97).
On May 7,
1973, the Chief
State Prosecutor directed Fiscal Balisado to transmit
to his office the record of the case and his resolution thereon. Five months later, then Undersecretary of
Justice Efren I. Plana,
through a letter dated October 4, 1973, found that there was a prima facie
case against Jusep, set aside Fiscal Balisado’s April 12, 1973 resolution and directed the Acting Provincial Fiscal to file with a competent court the corresponding information against Leoncio Jusep for murder (Record,
pp. 27-28).
On November
29, 1973, Third
Assistant Provincial Fiscal Rodolfo T. Mata filed before the trial court a
motion to admit an information charging Jusep as the
mastermind of the murder of Gandola with a prayer
that Jusep be arrested and that no bail be granted
for his provisional liberty (Record, p. 1).
Attached to the information was a certification issued by Fiscal Mata
which states that:
“I HEREBY CERTIFY that a proper preliminary investigation No.
1222 against respondent LEONCIO JUSEP has been conducted by Second Assistant
Provincial Fiscal Hermogenes S. Balisado
whose resolution to dismiss was appealed to the Secretary of Justice who reversed
said resolution of Preliminary Investigation No. 1222 and found out that there
exists a prima facie case or that respondent Leoncio Jusep is probably guilty of the offense of Murder.
“Dipolog
City, November 29, 1973.
(Sgd.)
RODOLFO T. MATA
Third
Assistant Provincial Fiscal
“SUBSCRIBED AND SWORN to before me this 29th day of November, 1973 at Dipolog City, Philippines.
(Sgd.)
RODABALLO Y. REALIZA
Acting Provincial Fiscal”
On December 12, 1973, Jusep filed a motion
to quash the information and to suspend the issuance of a warrant of
arrest on the grounds that Fiscal Mata had no authority to file the information
because he did not conduct the preliminary investigation pursuant to Republic
Act No. 5180 and Presidential Decree
No. 77; that the filing of the information was merely a revival of Criminal
Case No. 4826, and that pursuant to paragraph 6 of Department of Justice
Circular No. 74 dated July 26, 1967, where several persons commit a crime but
are charged or investigated separately, the head of the office “shall see
to it that the charges are investigated by the same investigating fiscal”
(Record, pp. 9-11). The prosecution
opposed said motion.
In its resolution of December 14, 1973, the lower court granted
the motion to quash “without prejudice to the right of the fiscal who
originally conducted the preliminary investigation to sign and file the
corresponding information” or should Fiscal Mata sign and file the
information and prosecute the case, he should conduct a “subsequent preliminary
investigation in conformance with law” (Record, pp. 14-17).
Five days later, the lower court amended said order,
reconsidering the quashal of the information, and
holding in abeyance the action on the
motion to admit the information until the provincial fiscal shall have signed
and filed the corresponding information” as the authority that was
delegated to him by the Department of Justice to do cannot be redelegated” (Record, p. 18).
Hence, Fiscal Balisado took over the case (Record, p. 19). On December 27, 1973, the following amended information was
filed:
“The undersigned Acting Provincial Fiscal, with leave of court
and pursuant to its amendatory order dated December 19, 1973, hereby amends the
information on record and accuses LEONCIO JUSEP as Principal by induction of
the crime of MURDER, committed as follows:
“That in the evening on or about the 1st day of August, 1967,
in the municipality of Manukan, Zamboanga
del Norte, within the jurisdiction of this Honorable Court, the said accused LEONCIO
JUSEP being then the mastermind in the bizarre plot to liquidate one JESUS
GANDOLA alias Etot, conspiring, confederating and
working together with PASTOR COTILLAS (Principal) by indispensable cooperation
and ALFREDO COTILLAS (Principal by direct participation) who were already
convicted by final judgment in a decision promulgated by this Honorable Court
on August 28, 1969 for the same crime of Murder in Criminal Case No. 4826, and
are still presently serving their
respective sentence, did then and there induce, offer a price and reward to his
co-accused Pastor Cotillas and Alfredo Cotillas, the latter having acted as the triggerman, arming
them with revolver Cal. 32, and all with intent to kill by means of treachery
and evident premeditation and by taking advantage of the darkness of the night
to better accomplish their evil motives in pursuance to their conspiracy, did
then and there wilfully, unlawfully and feloniously attack, assault and
shoot said JESUS ‘Etot‘ GANDOLA while the latter was
eating his supper in his dwelling house thereby inflicting upon him gunshot
wounds on his left lower chest penetrating the abdominal and thoracic cavities,
perforating the stomach, liver, diaphragm and crushing his spleen, which
caused his death the following dawn despite the medical attendance rendered to
him; that as a result of the commission of the said crime, the
heirs of the victim suffered the following damages, viz:
|
1. |
|
|
|
2. |
|
|
|
3. |
|
|
|
4. |
|
|
“CONTRARY TO LAW, with the qualifying circumstances of
treachery and evident premeditation, and the aggravating circumstance of
nighttime, dwelling, and consideration of
price and reward.
“Dipolog
City (for Zambo.
del Norte), December 26, 1973.
(Sgd.) RODABALLO
Y. REALIZA
Acting
Provincial Fiscal”
The Acting Provincial Fiscal’s motion
to admit the amended information was opposed by the accused on the ground that it did not contain a
certification stating that a proper preliminary investigation had been conducted
before it was filed (Record, pp. 23-24).
In view of that development, the Acting Provincial Fiscal submitted to
the Court Undersecretary of Justice Plana’s
letter of October 4, 1973 (Record, pp. 27-28).
In its order of January
21, 1974, the lower court
resolved that the said letter would “suffice as the requisite
certification that forms part of the said amended information”, admitted
the said information, directed the issuance of a warrant for the arrest of the
accused and fixed the bail at P40,000 (Record, p. 38).
The prosecution moved for a reconsideration of that order insofar
as it granted the P40,000 bail (Record, pp. 45-49). On the other hand, the accused moved to quash
the amended information on the grounds that the officer who filed the information
had no authority to do so; that the
information did not conform substantially to the prescribed form for lack of a
certification that a preliminary examination or investigation had been
conducted; and that the accused was previously in jeopardy of being convicted or acquitted of the
offense charged because he had pleaded
not guilty in Criminal
Case No. 4826 when he was discharged as an accused therefrom
(Record, pp. 45-49).
The lower court resolved
both motions in its order denying the motion to quash. In his arraignment, Jusep
pleaded not guilty of the crime charged (Record, p. 125).
The prosecution offered its version of the crime as narrated
above. Thereafter, the defense presented
Pastor Cotillas as witness and he testified that
sometime before August, 1967, he visited Barrio Baliw,
Hilongos, Leyte
to look for “buseros” at the request of Leoncio Jusep. His cousin, Alfredo, went back with him to Manukan with the seven “buseros”
he had recruited for Jusep. On August
1, 1967, he and Alfredo went to Loquilos
to shoot Gandola.
They had decided to kill Gandola because the
latter chased him with a gun and boxed Alfredo.
Gandola was mad at him because he refused to
buy fish from him.
During the commission of the crime, he hid among the coconut trees
some twenty meters away and, after Alfredo shot Gandola
with his own gun, they went back to his (Pastor’s) house. They did not meet anyone along the way. A few days later, Alfredo returned to Leyte (TSN, July 18, 1975, pp. 31-34 &
37).
While he was a detention prisoner in the provincial jail of Zamboanga del Norte, Gandola’s
father and wife “Estelita” visited
him. Gandola’s
father told him that a case had already been filed against Jusep
and that should he agree to be a state witness in said case, Gandola’s father would give him P5,000 (TSN, supra,
p. 35).
Leoncio Jusep
interposed alibi as his defense. He
testified that on July 24, 1967,
he left Manukan for Dapitan City
and from there, took a boat bound for Dumaguete City, arriving therein the following day. He proceeded to the house of his younger
brother, Tranquilino Jusep. Later, he went to Tanjay,
Negros Oriental to buy “sinamay”
or “bulsahon” to be used as a fish
net. In Tanjay,
where there was a town fiesta, he stayed with Jose Tabanda
until the 27th of July. He gave P250 to Tabanda so that the latter could buy the “bulsahon” before his return to Tanjay
from Dumaguete City on the 29th of July. He had to go back to Dumaguete City because
he had a fever. He was treated by one
Doctor Bueno who ordered the laboratory examination
of his urine, blood and stool. He
obtained the result of the laboratory tests the following morning and gave them
to Doctor Bueno.
For his cough and fever, Doctor Bueno gave him
injections twice a day. He reported to
Doctor Bueno’s clinic until August 2,
1967.
He left Dumaguete
City around midnight
of August 2, 1967 and
arrived at Dapitan
City in the early morning of August
3. Then he boarded a jeep bound for Dipolog City
and from there he proceeded to Manukan, arriving
there at around ten o’clock in the
morning (TSN, January 29, 1976, pp. 51-56).
Jose Tabanda and Tranquilino
Jusep corroborated Jusep’s
alibi. Ricardo Binondo
testified that he heard the news that Gandola was
shot at around 7″00 o’clock in the evening of August 1 and and that, while waiting for the fishermen at the beach in Manukan, he saw prosecution witnesses Gundes
and Villarin alighting from a boat at around 8:00
o’clock that same evening (TSN, October 17, 1975, pp. 31-37).
The trial court did not give credence to the defense
version. On December 23, 1976, it rendered the
aforementioned decision imposing the death penalty on Jusep. He filed a motion for its reconsideration but
the lower court denied it. Hence, the
instant automatic review of the lower court’s decision.
In his brief,
appellant avers that the lower court erred in:
(a) admitting the information against him without the proper
preliminary investigation; thus, infringing his right to due process of law; (b) giving credence to the testimonies
of Alfredo Cotillas, Arcelita
Gandola, Angel Gandola and
the other prosecution witnesses; (c) finding that he conspired with Alfredo and
Pastor Cotillas; thus, totally ignoring the affidavit
executed by Alfredo stating that he acted alone in shooting Gandola;
(d) considering the statement of Gandola that it was
he who looked for Gandola’s killer; (e) finding that
he was positively identified by Villarin and Gundes; (f)
discrediting his alibi and the oral and documentary evidence in support thereof;
(g) completely discrediting the testimonies of defense witnesses Pastor Cotillas, Jose Tabanda, Ricardo Binondo and Tranquilino Jusep; and (h) finding him guilty as charged and imposing
on him the death penalty.
Appellant’s allegation of deprivation of due process of law
resulting from the filing of the information without a proper preliminary
investigation is baseless.
Contrary to his allegation, the record shows that Fiscal Balisado did in fact conduct a preliminary
investigation. Although on the basis of
said preliminary investigation, he
recommended the dismissal of the charge against appellant, his dismissal
resolution was reversed by the Department of Justice.
Strictly speaking, no appeal
was interposed from said dismissal resolution as the case was referred to the
Department of Justice even before said
resolution was issued. However, when the
Secretary of Justice later reversed the dismissal resolution, he exercised his
power “to alter, modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and substitute the judgment of the
former for that of the latter” (Vda. de Jacob vs. Puno, G.
R. No. 61554-55, July 31, 1984, 131 SCRA 144, 148 quoting Noblejas vs. Salas, L-31788 & 31792, September 15,
1975, 67 SCRA 47). Another preliminary
investigation would have been superfluous because the Secretary of Justice
based his order to file the information on his review of the evidence presented
during the preliminary investigation
conducted by Fiscal Balisado.
Parenthetically, it should be noted that under the 1985 Rules on
Criminal Procedure, in cases where the Minister (now Secretary) of Justice
reverses the resolution of the provincial or city fiscal or chief state prosecutor,
“he shall direct the fiscal concerned to file the corresponding
information without conducting another preliminary investigation
or to dismiss or move for dismissal of the complaint or information”
(Section 4, Rule 112).
On the merits of the
case, We are convinced that the prosecution has proven beyond reasonable doubt
that appellant is guilty of masterminding the murder of Jesus Gandola.
Ironically, the sworn
statements of appellant’s trusted friend Pastor Cotillas
helped in sealing the case against him. Pastor’s declaration in court that he
executed those statements because he was afraid that the NBI agents would
manhandle him is entirely untrue as he himself admitted that physical
forced was never inflicted on
him. It seems, however, that Pastor was more apprehensive of the consequences of his revelations than anything
else. He was heavily indebted to Jusep and therefore, to his mind, telling the truth to the
authorities would be an act of betrayal.
In fact, he tried to correct the damage his sworn statements had done
to his avowed friend, Jusep, by presenting the story that he was
Alfredo’s co-author of the crime and that it was he who accompanied Alfredo when the latter performed
the dastardly act, forgetting all the while that in two of his sworn
statements, he had stated that he was in the market selling fish when Gandola was murdered.
We hold that the
testimony of Alfredo Cotillas alone is sufficient to
prove appellant’s direct involvement in the crime. The testimonies of Arcelita
and Angel Gandola merely fortify the fact that it was
appellant’s idea to liquidate Gandola, and the
testimonies of the other witnesses, especially those regarding appellant’s
presence at the scene of crime
prove beyond reasonable doubt that appellant is as guilty as the convicted Cotillas cousins for the murder of Gandola.
The credibility of
triggerman Alfredo Cotillas as a witness has remained intact notwithstanding
the attempts of the defense to demolish it.
Concededly, the testimony of a co-conspirator or a co-accused should be
treated with caution. However, the same
may be admitted and considered should there be no convincing proof that his
credibility is impaired.
In this case, the defense
failed to show any reason why Alfredo’s testimony should not be given weight
and credence. What it considered as a
taint to his credibility is the fact that it took him more than two years to
reveal the complicity of appellant in the murder. But the delay is not without an explanation.
During the trial of
Criminal Case No. 4826, Alfredo and Pastor were both defended by a counsel
provided by appellant (TSN, August 15, 1974, pp. 37-38). It
was but natural that said
counsel would not present them in court for there was the risk that during cross-examination, they might implicate their benefactor,
appellant herein. Moreover, until the information for murder was filed against Jusep, there was
no occasion for Alfredo to appear in court to tell the truth. Coupled with that
is the fact that even after his conviction, Alfredo was still entertaining the
hope that Jusep would make good his promise to give
him P2,000. That hope dissuaded him from
implicating Jusep in his sworn statement before the
NBI agents (TSN, supra, pp. 49-50, 63).
In said sworn statement, Alfredo allegedly admitted that he was alone
when he shot Gandola.
Appellant now contends that said sworn statement was
“suppressed” by the prosecution.
This contention is unfounded.
Said sworn statement was an exhibit in Criminal Case No. 4826 the record
of which had been lost (TSN, supra, pp. 5-6; Record, pp. 16 &
116). If the appellant was really
convinced that it was vital to his defense, then he should have exerted extra
efforts in procuring it so that it could be presented in court.
Appellant’s professed non-involvement in the crime is belied by his frequent visits to the Cotillas cousins while they were detained in the provincial
jail. According to the warden, appellant
was particularly interested in the actual date of the Cotillas’
transfer to the San Ramon Penal Colony as he wanted to give them money or
“pabalon” (TSN, November 14, 1974, p.
24). Hence, it is not far-fetched to assume that he was behind Pastor’s return
to said colony four days after
his release on parole on July 17, 1974. Although Pastor claimed that he returned there
to visit Alfredo and to give him P150, We are convinced
that the purpose of his trip was
actually to make Alfredo sign an
affidavit claiming sole authorship of the murder and ownership of the fatal
weapon (TSN, August 15, 1974, pp. 40-41; July 18, 1975, pp. 48-49; September 4,
1975, pp. 3-4).
Appellant’s alibi cannot
save him either. Although he presented
evidence that he was in Dumaguete City late in July, 1967, the possibility that
appellant could have returned to Manukan to oversee
the execution of his devious plan to kill Gandola, is
not remote. As observed by the trial
court, considering that the distance between Manukan
and Dipolog City is only 38 kilometers and that
between the Zamboanga peninsula and Dumaguete City it takes only three to four hours ride on a pumpboat, it is not impossible for appellant to have left Manukan after the
commission of the crime and to be in the same place in the morning of August 2,
1967. Moreover, his defense of alibi
totally crumbles in the face of his trusted friend Pastor’s sworn statement
that at 6:00 o’clock
in the morning of August 2, appellant himself informed Pastor that Gandola was not
killed instantaneously (Exh. P).
Alibi being the weakest
of all defenses, it cannot
prevail over direct positive
evidence on the presence of the appellant at the scene of the crime
(People vs. Reyes, L-18892, May 30, 1966, 17 SCRA 309; People vs. Venezuela,
L-48057, August 19, 1982, 115 SCRA 865).
Appellant’s presence therein proves his complicity and evinces culpable association with the triggerman
(People vs. Riveral, L-14077, March 31, 1964, 10 SCRA
462). It is worth noting that Villarin and Gundes were not the
only ones who saw appellant near Gandola’s
house. Felipe Santander,
in his sworn statement, stated that before 8:00
o’clock in the evening of August
1, 1967, he met Alfredo and the appellant along the seashore of Manukan (Exh. A). His refusal on the witness stand to identify
the person he saw running on the seashore with Pidong
Cotillas is explained by his own admission that
appellant was his friend (TSN,
August 22, 1974, pp. 19 & 21).
As it was the appellant
who conceived the perpetration of the crime, met with the Cotillas
cousins to deliberate on its execution and was present at the time of its
consummation, he is a principal by direct inducement (U. S. vs. Bundal, 3 Phil. 89).
His promise of P2,000 to Alfredo is equivalent to moral coercion as it was the moving cause which
impelled Alfredo to kill Gandola, (U. S. vs. Mijares, 3 Phil.
447).
Conspiracy has also been proven by the prosecution. Appellant and the Cotillas
cousins came to an agreement concerning the killing of Gandola
and decided to go through with it. All
three of them are therefore liable as co-principals and the act of each conspirator is the act of all (Art. 8, par. 2, Revised Penal Code; People
vs. Timbang, 74 Phil. 295).
Treachery qualified the killing which was done in such a manner
as to completely surprise the victim and make
him a defenseless target. Nocturnity is absorbed by treachery. Evident premeditation, which was alleged as
a qualifying circumstance in the information, should be considered only as a
generic aggravating circumstance as treachery is sufficient to qualify the
killing as murder (People vs. Diaz, L-24002, January 21, 1974, 55 SCRA
178). The crime was attended by evident
premeditation because after appellant and the Cotillas
cousins had planned the manner by which they would kill Gandola,
they allowed a sufficient interval of time to elapse wherein they could have
dispassionately considered the consequences of their act.
Although Alfredo did not actually receive the P2,000 promised him
by the appellant, the price, promise or reward is a generic aggravating circumstance because it impelled Alfredo
to shoot Gandola.
Dwelling should also be considered as a generic aggravating circumstance
with regard to appellant even if it was Alfredo who went under Gandola’s house, because of the proven conspiracy in the
commission of the crime.
Under Article 248 of the Revised Penal Code, murder is punishable
by reclusion temporal maximum to death. There being three generic aggravating
circumstances and no mitigating circumstances to offset them, the lower court
correctly imposed the death penalty (Article 64, (3) & (6), Revised Penal
Code). However, pursuant to Section 19,
Article III of the 1987 Constitution, the death penalty imposed by the lower
court should be reduced to reclusion perpetua (People vs. Laguardia,
G. R. No. 63243, February 27, 1987).
WHEREFORE, the decision of the lower court is hereby affirmed with the modification
that appellant is hereby meted the penalty of reclusion perpetua and ordered to pay the heirs of Jesus Gandola an
indemnity in the amount of thirty thousand pesos. Costs against the appellant.
SO ORDERED.
Teehankee, C.J., Yap, Narvasa, Melencio-Herrera,
Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, and
Cortes, JJ., concur.
* Judge Dimalanes B. Buissan,
presiding.
* The record of Criminal Case No.
4826 for murder with Alfredo and Pastor Cotillas as
defendants, was lost in the files of the lower court’s clerk of court (Record,
pp. 66 & 116).
* This sworn statement was not presented in court. It must have
been part of the lost record of Criminal
Case No. 4826.