G.R. No. L-33030. August 25, 1983
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ABUNDIO DE LA CRUZ, ET AL., ACCUSED-APPELLANT.
GUTIERREZ, JR., J.:
The case before us on automatic review of a judgment sentencing
the appellant to death is an uncommon one.
The killing of a prominent lawyer which led to the murder charge
took place in 1944 during the Japanese occupation. The original information was
filed in 1947. The accused were arrested in 1950. During the preliminary
investigation of the three accused in 1951, the appellant and one co-accused
jumped bail and disappeared. The third co-accused was tried in 1959, almost
nine years later. He implicated his two missing co-accused, was found guilty,
and was sentenced to life imprisonment. He has since been released on parole.
Meanwhile in 1969 or eighteen (18) years after he jumped bail,
the appellant was arrested. He was charged in an amended
information, tried, and sentenced to DEATH.
After a thorough review of the evidence on record, we are
convinced that the accused-appellant was
at the scene of the crime during its commission and that, contrary to
his protestations, he had something to do with the killing. However, because of
unavoidable difficulties or unfortunate lapses on the part of the prosecution,
the only evidence directly incriminating the appellant – the confession of the
co-accused convicted earlier – happens to be inadmissible against him. We are,
therefore, constrained to acquit the accused-appellant and write finis to the
39-year old killing, not because the appellant had nothing to do with the crime
but because the evidence adduced subsequent to his recapture 25 years after the
crime, fails to overcome the consÂtitutional presumption of innocence that an
accused enjoys. The appellant is now more than 70 years old. If the letters to
the Court interceding for his reÂlease are to be believed, the appellant has
led an exemplary life during his incarceration in the national penitentiary.
The original information for murder was filed on January 25, 1947 against six (6)
accused persons. The information reads:
“The undersigned Provincial Fiscal hereby accuses Abundio de la Cruz, Ladislao Tayo, Tomas Tating, Francisco Tapar, Eriberto Cenon and Eufemia Litong of the crime of Murder, commited
as follows:
“That on or about April 10, 1944, in the municipality of Viga, province of Catanduanes,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, conspiring together and helpÂing each other, with evident
premeditation and with the decided purpose to kill, did then and there wilfully, unlawfully and feloniously, assault and attack
Pedro Sorreta by beating him to death with blunt
instruments, and by throwing afterwards his corpse into the sea.
“In the commission of
the crime there was present the aggravating cirÂcumstance of superior
strength.”
During the preliminary examination, no probable cause was found
against Eufemia Litong. This
led to the dismissal of the case against her. The case was also dismissed with
respect to Tomas Tating on the ground that his
testimony was absolutely necessary for the prosecution. With the finding that
Francisco Tapar had nothing to do with the commission
of the crime, the case was likewise dismissed as to
him.
The three remaining
accused, namely – Abundio de la Cruz, Ladislao Tayo and Eriberto Cenon 0were arrested on November 29, 1950. Of the three,
only Eriberto Cenon
remained in the custody of the authorÂities as the other two posted bail and
were subseÂquently released.
The preliminary investigation proper was set on February 2, 1951. Abundio
de la Cruz and Ladislao Tayo
failed to appear during the investigation. A motion for their arrest and the
confiscation of their bail bonds was filed and duly granted by the Justice of
the Peace.
The case was returned to the Court of First Instance for further
proceedings because Abundio de la Cruz and Ladislao Tayo could not be
apprehended while Eriberto Cenon
had waived his right to preliminary investigation proper and the Justice of the
Peace was of the opinion that the two other accused had also waived their right
by their continued failure to appear.
At the separate trial
conducted for Eriberto Cenon
in 1959 or almost 9 years later, he was found guilty and sentenced to life
imprisonment. No appeal having been filed, Cenon
commenced serving sentence and during the trial of the appellant was already
out.
Because of the failure to apprehend Abundio
de la Cruz and Ladislao Tayo,
the trial court directed that the case be sent to the files without prejudice
to its subsequent prosecution when the accused or either of them were apprehended.
On December 16, 1968 or almost 10 years after the case was archived
and 25 years after the killing, the trial court issued a new order of arrest
for both the accused on the information that they were seen somewhere in the
province of Quezon. Abundio
de la Cruz was subsequently arrested on
September, 1969. As to Ladislao Tayo,
he has remained at large.
After the arrest of Abundio de la Cruz,
an amended information was filed against him on May 12, 1970. The amended information
reads:
“The undersigned accuses ABUNDIO DE LA CRUZ and LADISLAO TAYO
of the crime of MURDER, committed as follows:
“That on or about April 10, 1944, in the Municipality of Viga, Province of Catanduanes,
Philippines and within the jurisdiction of this Honorable Court, the said accused conspiring together and mutually
aiding one another with treachery and evident premeditation and with deliberate
intent to take the life of Pedro Sorreta, did
then and there wilfully, unlawfully and feloniously
assault and attack the said Pedro Sorreta by beating
him to death with blunt insÂtruments, and by throwing afterwards his corpse
into the sea.
“That in the
commission of the crime the following aggravating circumsÂtances were present:
“1. Advantage was taken of superior strength or means were employed to weaken the defense;
“2. Committed at night time and in uninhabited
place to facilitate commission of the offense;
“3. Offense was deliberately augmented by
causing other wrong not necessary for its
commission.” (Record, p. 329).
On May 15,
1970, Abundio de la Cruz was arraigned and
pleaded not guilty.
The facts found by the trial court, which led to the court’s conviction of the accused Abundio de
la Cruz are as follows:
“The victim, Pedro Sorreta, was a practising attorney and formerly a member of the Provincial
Board of Albay. In 1944, during the Japanese
occupation, he lived with his family in the barrio of Tinago
of the Municipality of Viga, Catanduanes.
At the time of the incident his eldest son, Cenon Sorreta, now a practising
attorney, was barely eighteen
years old. His wife, Carmen, had just given birth to a child a few days before.
The case was actively prosecuted by Cenon Sorreta in collaboration with the Second Assistant
Provincial Fiscal.
“The substance of the testimony of mother and son shows that
in the afternoon of April 10, 1944,
they were in their house in Tinago, Viga, when Francisco Tapar came
up the house. He had come to consult Atty. Pedro Sorreta
about the wife of Ladislao Tayo.
It seemed that the wife had become unfaithful to her husband while he was out of
Catanduanes but the paramour had been killed recently
and Tapar was asking Atty. Sorreta’s
advise as to whether Ladislao
Tayo and his wife should be reconciled. Atty. Sorreta advised that
since they were husband and wife they should live together again. While they
were talking there were three men who could be seen through the window at
some distance from the house. Atty. Sorreta inquired
from Tapar who
they were and Tapar answered that they were
the men who killed the paramour of the wife of Ladislao
Tayo in the barrio of Guinsaanan.
Atty. Sorreta asked Tapar
about their names and Tapar identified them as Ladislao Tayo, Eriberto Cenon and Abundio de la Cruz. Then Tapar
casually asked Atty. Sorreta where he was going that
afternoon and Atty. Sorreta said that he was going to
the sea to fish. Tapar then asked permission to leave
and Atty. Sorreta prepared to go out on his fishing
trip. Mrs. Sorreta and Cenon
saw Tapar go with the three men when he left.
“According to Cenon, his father
loved to fish in Tinago
Bay in the afternoon on clear days
and usually came back at night. On April
10, 1944, after he saw him off at the seashore he never returned. They
waited for him until morning. At about nine to ten o’clock when he had not yet
returned he sent their houseboy to the sitio of Minaabat to look for him in the farm but he was not there. They
searched the beach and found the boat afloat about fifty meters from the beach of Lusadan near the opening of Tinago Bay.
They reported the matter to Barrio Lt. Ugalde and
Councilor Tomas Tating who promised to help. They
continued the search with Pio de Leon until April 12
but Atty. Sorreta could not be found. At about eight o’clock in the morning of April 13,
Ignacio Ted, a resident of Lusadan came to their
house and informed them that his father’s body was seen being dashed by the
waves to the beach in Lusadan. The inforÂmation was
relayed to the barrio lieutenant and they went to the place and found Atty. Sorreta dead. Cenon noted that
his nape was black. When his body was turned upward he saw his teeth shattered
and the chin swollen. There was hematoma on the right
forehead and breast. The body was in a state of decomposition. Because of his
condition Cenon agreed to have it brought to Tinago for speedy burial. It was taken to Tinago by a boat to the house of a relative, Pio de Leon, and was buried in the cemetery in the barrio. Cenon and his sister Elisa attended the burial. Their
mother could not attend because she had just delivered a child on the seventh. Because of the condiÂtion of the
times no death certificate was issued then.
“After the burial a novena was held in the house of the
deceased every night. On the third night the three men, Abundio
de la Cruz, Ladislao Tayo
and Eriberto Cenon barged
into the house. Eriberto Cenon
went directly to Cenon and poked a gun at his breast
and asked him to surrender his gun. Ladislao Tayo stood guard at the door while Abundio
de la Cruz went inside his mother’s room. Cenon
protested that there was no fireÂarm in the house. Abundio
de la Cruz ordered the house ransacked but found no weapon. He searched their
suit cases and clothes looking for a firearm and when he could not find any
they went away.
“The next day, at about six
o’clock in the morning, the three came back. Abundio
de la Cruz asked Mrs. Sorreta to sign a stateÂment
that the family would not comÂplain about the death of Atty. Sorreta and if she would not sign they would be liquidated.
Mrs. Sorreta fainted and they left the house. At
about nine o’clock of the same day their houseboy came and told Cenon that the three men wanted to see him at the house of
his cousin-in-law, Teofilo Cipriano,
about a hundred meters from their house. Cenon had no
choice because they were armed and he went to the house of Teofilo.
When he arrived the three men were in the house with another man who turned out
to be Juan Tobtob. All of them were armed. Abundio de la Cruz asked Cenon to
sign a statement that he would not complain about the death of his father or he
and his family would be liquidated. Abundio de la Cruz, gave him a piece of paper and pencil and dictated the
statement in Bicol dialect. Cenon
signed it and gave it to the accused. After having signed the statement they
allowed him to leave the house and go home.
“According to Cenon, while he was
writing the statement in Teofilo Cipriano’s
house, Abundio de la Cruz kept on berating his father
that he was a land grabber. He was then barely eighteen years old.
“After the signing of the statement the family of Atty. Sorreta stayed in Tinago for
about two weeks. In the meantime, their relatives kept on informing Cenon that he would be the next victim. So, on a midnight, he rode on a sailboat with a certain
Joaquin Abundo and sailed to Baras
where he stayed with his grandmother. His mother and sister followed later.
“The testimony of Mrs. Carmen Sorreta
and Cenon Sorreta is
corroborated by Miguela de Leon, a niece of Atty. Sorreta, who is well acquainted with Abundio
de la Cruz. In the afternoon of April
10, 1944, Miguela went to Tinago to visit Mrs. Sorreta who
had just delivered. When she went up the house she passed by Abundio de la Cruz, Ladislao Tayo and Eriberto Cenon, who, according to Abundio,
was a Constabulary soldier. They were in front of Atty. Sorreta’s
house. It was about four o’clock in the afternoon. Inside the house was
Francisco Tapar who was talking with Atty. Sorreta. The whole family was in the house. Miguela did not stay long in the house and left while Tapar was still there. At about six o’clock on the same afternoon she went out to look for fish
and when she passed by the house of Eufemia Litong, she saw Abundio de la
Cruz, Ladislao Tayo and Eriberto Cenon in the house. They
were drinking tuba. On the following day, April 11, at about
four o’clock in the morning, while Eufemia and her
husband were making salt near their house the three accused passed by. Later
at around nine to ten o’clock Mrs. Sorreta sent word
that Atty. Sorreta had not returned from his fishing
trip and she and her husband went to Barrio Lt. Ugalde
and asked him to help in looking for the attorney. They did not find him. On
April 13, 1944, Ignacio Ted came and informed them that the body was seen in Lusadan being dashed to the shore by the waves. They went
to the barrio lieutenant and they sailed to Lusadan
and found the body. There was hematoma on the
forehead, on the chest and on the nape. Atty. Sorreta
had no more teeth. The body was taken to Tinago for
burial. Miguela saw the three accused again on the
16th day of April, the third day of the novena for the deceased in his house. On
that evening the three men barged into the house while they were saying their
prayers. Eriberto Cenon
poked a gun at Cenon Sorreta
and Ladislao Tayo stood
at the door blocking the way. Abundio de la Cruz
ransacked the house looking for a gun but found nothing and they left.
“The evidence also shows that at about six o’clock in the
afternoon of April 10, 1944, Isabelo Ugalde was going to the chapel in Tinago
to ring the bell for the angelus. On the way he met Francisco Tapar who invited him to go to the sitio
of Jolo to drink tuba. Ugalde
acceded and they went to Jolo to the house of Higino Litong. Tapar went up the house while he stayed on the ground. Abundio de la Cruz was in the house and he heard him asking
Tapar who his companion was and Tapar
said that it was he Ugalde. Abundio
de la Cruz said that he should come up and he went up the house. Ladislao Tayo and Eriberto Cenon were also in the
house. They drank tuba together. After drinking all of them went down the
house. Then Abundio said to Ugalde,
‘Belo, you are being dominated here in Tinago by a
great man.’ Ugalde asked De la Cruz who the great man
was and he answered. ‘Do not make any noise, we will finish him tonight.’ Ugalde prodded Abundio to tell
him who was the great man and Abundio said it was Sorreta. After a while Ugalde
left the group because the procession for the ‘Aurora’
would begin. Ugalde subsequently learned of the
disappearÂance of Atty. Sorreta and when he was
eventually found dead in the beach of
Lusadan. Ugalde never informed anybody of his conversation with Abundio de la Cruz because of fear and the condition of the
times. About two weeks later, however, he told Mrs. Sorreta
about it because Abundio de la Cruz was no longer in Tinago.
“The testimony of Heracleo Tatad, another prosecution witness also shows that at about
two o’clock in the afternoon of April 10, 1944, he was in his house
after having arrived from fishing in the sitio of Sabang. When he arrived he came upon Abundio
de la Cruz and Ladislao Tayo
and a third man unknown to him in the yard of his house. Later, Dorotea Tamillosa who was
popularly known as ‘Nana’ arrived. After Dorotea
arrived he noted a commotion and he observed her making the sign of the cross and mutÂtering ‘Jesus, Jesus.’ He asked
her what was the matter and Dorotea said that they
were going to kill Atty. Sorreta. He asked her who
were the people who were going to kill Atty. Sorreta
and she answered that they were Abundio de la Cruz,
and Ladislao Tayo. Tatad asked Dorotea to call them
and she called Abundio de la Cruz who went up the
house. Tatad advised Abundio
de la Cruz not to pursue his plan but the accused answered, ‘Don’t make noise,’
and Tatad did not say anything anymore.” (Rollo, pp. 14-21; Decision, pp. 11-18).
Another factor which the trial court considered as indicative of
the guilt of the accused was his having jumped bail in 1951. The lower court
said:
“There is one last detail that points
strongly to the guilt of the accused and that is flight. When he jumped
bail in 1951 with Ladislao Tayo,
in spite of so many orders of arrest and the search for him by the police
authorities Abundio de la Cruz was never apprehended.
It would be the height of naivete for the Court, to
believe even for a moment, that Abundio de la Cruz
was all the time in the places he claimed he was in his testimony bearing his
true name and yet was never apprehended by the police authorities who were in search
for him. And it is equally unthinkable and absurd to believe that he reported
regularly to his bondsmen when he left Libmanan after
he was bailed that they could have left him unmolested in spite of the
forfeiture and confisÂcation of the amount of his bond to the tune of P20,000.00 which was no mean sum in those days when the peso was the peso. His flight and
continued disappearance for a period of almost twenty years could only mean one
thing — he knew he was guilty of a heinous offense and was mortally afraid to
face trial. But somehow destiny finally caught up with him and the law must
take its course.”
Accused-appellant’s version of the facts places him in another
province when the crime was committed. According to the appellant:
“On the evening of April
10, 1944, or thereabout, Pedro Sorreta, a
resident of barrio Tinago, Municipality
of Viga, Catanduanes, met his death. He was out alone at sea fishing
that night. He never returned alive. On the morning of April 13, 1944, his body was found at Lusadan beach presumably having been dashed ashore by sea waves. No autopsy was taken.
“The barrio lieutenant, Catalino Ugalde, who examined the body, attested: ‘I did not find
anything in his body except that his body was already swelÂling and have a foul smell
already. He was faced down and with both arms extended sidewards
and his head was submerged. I examined
physically the body. First I took off the clothing and let him face upward,
took off the pants and found nothing’ (Pp. 195-196 t.s.n.).
“At the time of the incident, the accused-appellant, Abundio de la Cruz was in Malbogon,
Libmanan, Camarines Sur, with his family.
“The prosecution would want it believed, however, that his
death was due to a premeditated criminal act of the accused-appellant in
conspiracy with others.”
On November 24, 1970,
a decision was rendered convicting the accused of the crime of MURDER and
sentencing him to suffer the penalty of DEATH. The dispositive portion of the
decision reads:
“WHEREFORE, in view of the foreÂgoing considerations, the
Court hereby finds the accused, Abundio de la Cruz,
GUILTY beyond reasonable doubt of the crime of Murder under Article 248 of the
Revised Penal Code as charged in the amended information.
“Four aggravating circumstances are alleged in the amended
information, to wit:
“(1) Advantage was taken of superior strength or
means were employed to weaken the defense;
“(2) That the offense was committed during night
time;
“(3) That it was committed in an uninhabited place;
“(4) That the offense was deliÂberately augmented
by causing other wrong not necessary for its commission.
“The first three appear to be fully sustained by the evidence.
Abundio de la Cruz, Ladislao
Tayo and Eriberto Cenon ganged up upon the attorney who was alone and
overwhelmed him by sheer strength of numbers. He was ambushed in the open sea
and the conspirators sought the cover of darkness to perpeÂtrate the crime with
impunity. Upon the other hand, the injuries suffered by the deceased are merely
the natural result of the aggression upon his person and it does not appear
that any of them was inflicted in order to deliÂberately augment his suffering
or that it was not necessary in order
to consummate the offense. With three aggraÂvating circumstances and no
mitigating, the mandatory penalty is DEATH.
“Accordingly, the Court hereby sentences the accused, Abundio de la Cruz, to suffer the supreme penalty of DEATH.
“The accused is further condemned to indemnify the heirs of
the deceased in the sum of TWENTY THOUSAND (P20,000.00)
PESOS and the costs.”
The defendant-appellant assigned the following alleged errors of
the lower court in his brief:
First Assignment of Error
THE LOWER COURT
ERRED IN FINDING THE ACCUSED APPELLANT GUILTY OF MURDER BEYOND A REASONABLE
DOUBT ON THE BASIS OF THE EVIDENCE PRESENTED BY THE PROSECUTION.
Second Assignment of Error
THE LOWER COURT
ERRED IN CONCLUDING THAT CONSPIRACY HAD BEEN ESTABLISHED AND IN CONSIDERING THE
CONFESSION EXH. ‘C’ EXECUTED BY ONE ERIBERTO CENON WHO WAS NOT PUT TO THE
WITNESS STAND.
Third Assignment of Error
THE LOWER
COURT ERRED IN FINDING THAT THE LATE PEDRO
SORRETA’S DEATH WAS DUE TO FOUL PLAY.
Fourth Assignment of Error
THE LOWER
COURT ERRED IN FINDING THAT MOTIVE WAS
SUFFICIENTLY ESTABLISHED.
Fifth Assignment of Error
THE LOWER
COURT ERRED IN IMPOSING THE DEATH PENALTY.
Analyzing the assigned
errors and the correspondÂing arguments in support thereof, the common ground
of error refers to the admissibility and the weight of the evidence presented
by the prosecution as well as the defense.
We agree with the trial
court that the appellant’s defense of alibi deserves scant consideration.
According to the
appellant, his parents left Barrio Tinago in Viga, Catanduanes in 1936 or 1937
for Libmanan Camarines Sur, and he went with them. He claimed that he never
returned to Catanduanes until he became an accused
and was tried for the case. The appellant’s evidence showed that he was called
to army duty during the 1940 general mobilization, that
he served in Bataan
and returned to Libmanan sometime after its fall in
1942. He was in barrio Malbogon in 1943 and 1944. The
appellant alleges that he could not have been in Catanduanes
in April 10, 1944
when Atty. Pedro Sorreta was killed because he was in
Camarines Sur. He could not leave Malbogon
as the Japanese had zoned the place.
The evidence clearly
shows that the appellant was in Tinago, Viga, Catanduanes
in the period before and after April 10, 1944 walking around with an armed group and
threatening people. To use the words of the lower court, Abundio de la Cruz and his group of armed men were flushed
with the arrogance of power which was common among roving guerrilla bands
during the Japanese time.
The testimonies given by Heracleo
Tatad, Isabelo Ugalde, Cenon Sorreta,
and Mrs. Carmen Vda. de Sorreta
show that Abundio de la Cruz was clearly and
positively identified, not only as having been in Tinago,
Viga, Catanduanes at the
time but also as being associated with the killing.
According to the testimony of Heracleo Tatad, on April
10, 1944 at 2:00 o’clock
in the afterÂnoon, he came across the persons of Abundio
de la Cruz, Ladislao
Tayo and an unidentified person infront
of his house. When Dorotea Tamilloso
arrived, Tatad observed that she was frantic about
something. Tatad, asked Tamilloso what happened
and the latter told him that Abundio de la Cruz and
his companions were planning to kill Attorney Sorreta.
Upon hearing this, Tatad summoned Abundio
de la Cruz to advise the latter not to pursue his criminal design against the
lawyer. The reply of Abundio de la Cruz was
“Don’t make noise.” (T.S.N., pp. 48-51).
The gist of the testimony of Isabelo Ugalde was to the effect that on April 10, 1944 he drank tuba with Abundio de la Cruz, Ladislao Tayo, Eriberto Cenon and Francisco Tapar. During
their conversations, Abundio de la Cruz revealed to Isabelo Ugalde his plan to
eliminate Attorney Sorreta. (T.S.N., pp. 10-12)
The
testimonies of Cenon Sorrreta
and Mrs. Carmen Vda. de Sorreta narrate
that Abundio de la Cruz, Ladislao
Tayo, and Eriberto Cenon were with Francisco Tapar
when the latter went to the house of Attorney Sorreta
on the afternoon of April 10, 1944 to seek advice regarding the marital problem
between Ladislao Tayo and
his wife who had a paramour. During the conversation, Attorney Sorreta asked Francisco Tapar for
the identity of his conpanions. Tapar
named them as Abundio de la Cruz, Ladislao
Tayo, and Eriberto Cenon and identified them as the killers of the paramour of
Ladislao Tayo’s wife. After
hearing the advice of Attorney Sorreta, Tapar asked the lawyer where he was going that afterÂnoon. Attorney
Sorreta replied that he will go fishing. True to his
word, Attorney Sorreta went fishing that afternoon of
April 10, 1944 but he never
returned alive. A search was conducted but the lawyer could not be found. On April 13, 1944 at about 8:00 o’clock in the morning, Cenon
Sorreta was informed that Attorney Sorreta’s dead body was found in the beach
of Lusadan.
Inspecting the cadaver, Cenon Sorreta
saw that it had a black nape, swollen chin, shattered teeth and hematoma on the right forehead and breast. Due to the
condition of the body, it was buried speedily. On the third night of the novena
held for the repose of the soul of the deceased lawyer, Abundio
de la Cruz, Ladislao Tayo
and Eriberto Cenon forced
their way into the house of the deceased allegedly looking for a gun. The house
was ransacked and suitcases turned upside down to find one, while a gun was
poked on the breast of Cenon Sorreta.
At about 6:00 o’clock the following
morning, they came back demanding that Mrs. Carmen Vda.
de Sorreta sign a statement
that she would not report the matter to the authorities or else they would be
killed. The widow was not able to sign because she fainted out of fear. On the
same day at about 9:00 o’clock in the
morning, Cenon Sorreta was
ordered by Abundio de la Cruz, Ladislao
Tayo and Eriberto Cenon to come and see them at the house of a certain Teofilo Cipriano. For fear of his
life, Cenon Sorreta obeyed
and was forced to sign a statement in Bicol to the
effect that he will not report the death of his father to the authorities
otherwise he will be killed together with his family. Almost everyday afterwards,
the family of Cenon Sorreta
received messages that they were going to be killed next thereby prompting them
to leave Tinago, Viga, Catanduanes. (T.S.N., pp. 111-115;
T.S.N., pp. 65-69)
The testimony introduced
by the prosecution is not the kind of clear, positive, and conÂvincing evidence
required by the serious nature of the capital offense charged.
Heracleo Tatad was told by Dorotea Tamilloso of the plan to
kill Atty. Sorreta. Later, Tatad
asked Abundio de la Cruz not to pursue the planned
killing. The response of Abundio de la Cruz was
“Don’t make noise.” The prosecution failed to show who Tatad was, for him to
fearlessly counsel the leader of an armed group who had just killed a paramour
of a married woman and who were planning to kill a big man in their
barrio.
The testimony of Ugalde shows Abundio de la
Cruz confiding to him that the great man Sorreta would be killed that night. After hearing
this information, Ugalde went home for a procession.
The testimonies of Ceno Sorreta and his mother are more convincing but the inculpatory portions refer to the acts of Abundio de la Cruz after the killing. The crime was
committed on a dark night while both the victim and the culprits were out at
sea. Not one of those who testified witnessed the commission of the crime. And
yet one of the eyewitnesses, himself a participant could have been put on the
witness stand had the necessary efforts been taken.
The only evidence directly showing how Sorreta
was killed and which narrates the participation of the appellant in the crime
is the December 4, 1950
confession of a co-accused Eriberto Cenon, subscribed and sworn to before the Justice of the
Peace of Virac, Catanduanes.
The statement has 17 paragraphs but paragraphs 6 to 10 are sufficient for
purposes of this decision.’ They are:
xxx xxx xxx
“6. That around 10:00 o’clock in the evening of
April 9, 1944 we were served by Eufemia Litong of our supper having good chow with chicken soup. After
our meal I went down because I was perspiring and Abundio
de la Cruz and Francisco Tapar were talking of a
certain boat which Abundio de Ia Cruz requested. After three minutes Francisco Tapar went down and left the house of Eufemia
Litong. After ten minutes had passed Francisco Tapar went back and approached Abundio
de la Cruz, and Abundio de la Cruz told us that we
will be going home to Sicmil, Viga,
Catanduanes. I answered him
how we could go home when it is very dark and he answered in return that we
will go on sailing. Then we proceeded to the seashore where we found the boat
ready with two (2) paddles and we boarded the boat.
“7. That while we were in the boat Abundio de la Cruz was the so-called pilot of the boat and
I took the other paddle and sat in the middle of the boat, so that Ladislao Tayo was in front. From Tinago we dropped in the house of Cipriano
Belda at sitio Bayangan, Viga that was about 11:00 o’clock in the evening of April 9, 1944 and we prepared local cigarette for
our smoke. After that we proceeded on our way home. In the course of our
sailing when we reached the
point of Bayangan, we saw someone sailing, and Abundio de la Cruz went direct to the one sailing. When we
reached that man sailing, Abundio de la Cruz told us
to stop the boat and we did as he alleged that he will talk with that man. We
went ahead of the other boat to block it. Abundio de
la Cruz immediately pinned down the right balance of the said boat causing
tilting (sic) it. At that instance Atty. Sorreta
asked why they are doing that way, and he asked further ‘If I have done
anything wrong we can talk that over’ and Abundio de
la Cruz replied ‘What more talking and this is our time now.’ The boat of Atty.
Sorreta was caught by the wave and he was thrown on
the sea and Abundio de la Cruz strike Atty. Sorreta with his paddle hitting the latter on the head and
at the second time he was hit on the neck and the boat was filled with water. After
the two blows given by Abundio de la Cruz to Atty. Sorreta he told us what we are doing more, if we want to be
the next, holding his pistol on the right hand and the paddle on the left hand.
After that Ladislao Tayo
and myself jumped on the sea, then Abundio
de la Cruz returned his pistol on his belt and took hold of the paddle again. While
we were still on the sea swimming he gave another blow to Atty. Sorreta hitting the latter somewhere on the arm and the
breast. Then Ladislao Tayo
and myself proceeded swimming to the boat of Atty. Sorreta with the order of Abundio
de la Cruz to help kill Atty. Sorreta. When we
reached Atty. Sorreta I found out that he was already
dead, and I told Abundio de la Cruz that he was
already dead. Then Abundio de la Cruz ordered us to
board on his boat and proceeded home. In the boat, Abundio
de la Cruz said these words (NAGBAYAD KA MAN GUIRARAY RAN DINAYA MONG DAGA,
ASIN MAKI HAPON). (You have at last paid for the land you grabbed,
pro-Japanese.) [English translation supplied.] Then Abundio
de la Cruz turned the boat bound for Tinago, and I
asked him why we will go back to Tinago, and he
answered that he has forgotten someÂthing which is very important. When we were
near the shore I asked him who was that man whom he killed
and he answered me that he is Atty. Sorreta. Abundio de la Cruz further states that we will not be
included in that inciÂdent as he will take all the risk on what had happened. Then
we reached the shore of Tinago, having two small fish
which I took from the boat of Atty. Sorreta which was
floating on the sea.
“8. That at about 1:00 o’clock in the morning of 10 April 1944 we went to the house of
Eufemia Litong together
with Abundio de la Cruz and Ladislao
Tayo and Abundio de la Cruz
requested Eufemia Litong to
give us light as we will change our clothes we being wet. Then we went up the
house and Abundio de la Cruz were
conversing in English with Eufemia Litong and I proceeded to the kitchen to change my wet
clothes. After I changed my clothes I passed by Eufemia
Litong and Abundio de la
Cruz conversing each other, Eufemia Litong gave smile to Abundio de
la Cruz. Then she served food for us that morning. After that I made local
cigarette and lighted it and go to sleep.
“9. In the morning after eating our breakfast
at about 7:00 o’clock of April 10, 1944, Francisco Tapar came to the house near the yard of Eufemia Litong and talked with Ladislao Tayo, and at last Tayo requested Tapar to fetch his
wife in Mayngaway, Calolbon,
Catanduanes. Then Abundio de la Cruz and Eufemia Litong shaked hands, and Ladislao Tayo also shaked hands with Francisco
Tapar, and I shaked hands
with Francisco Tapar. After that Abundio
de la Cruz, Ladislao Tayo
and myself proceeded to Sicmil
by walking arriving thereat at about 1:00
o’clock in the afternoon, April
10, 1944 and we stopped at the house of Mauricio Tud (father-in-law of Abundio de
la Cruz). At the same time we were served of our dinner that house. After the
dinner I told Ladislao Tayo
to proceed with me to Gigmoto, Baras, Catanduanes. With the information
received by Ladislao Tayo
that his wife was already in Bayangan, Viga, Catanduanes, he refused to
go with me to Gigmoto. Then I proceeded along leaving
Abundio de la Cruz and Ladislao
Tayo in Sicmil.
“10. That after four or
five days had elapsed Abundio de la Cruz and Ladislao Tayo went to Gigmoto, Batas, Catanduanes at
about 5:00 o’clock in the afternoon
14 or 15 April 1944. While
they were there they held a dance in the house of Cefirino
Santillan. In the course of the dance Abundio de la Cruz intervened in a certain trouble of the
youngsters on the bailarinas and settled it amicably.
At the same time he gave a short talk to the invited guests of the dance
stating the following: ‘I AM AN AUTHORITY OF THE BARRIO, AND FURTHER STATES
THAT EVEN BIGWIGS LIKE ATTORNEY SORRETA CAN BE CONTROLLED BY ME, HOW MUCH MORE
FOR YOU PEOPLE OF THIS BARRIO.’ Of course the barrio folks gave respect to Abundio de la Cruz having the knowledge that he is really
an authority.”
xxxx xxxx xxxx
If the above confession were merely corroboraÂtive of other facts
which tend to establish the guilt of the appellant, then it could be admitted
against him. (People v. Puesca, 87 SCRA 130). It
could also be allowed as circumstantial evidene to
show the probability that the appellant actually participated in the commission
of the crime. (People v. Lumahang, 94 Phil. 1048).
The confession of Eriberto Cenon, however, is not simply corroborative but is the
principal evidence against Abundio de la Cruz. It was
not utilized by the lower court merely as circumstantial evidence.
Consequently, we apply the rule that extra-judicial statements of
an accused implicating a co-accused cannot be used against the latter unless
repeated in open court. (People v. Izon, 104 Phil 690; People v. Serrano, 105 Phil. 531; and People v. Frage, 109 Phil. 241.)
The right to confrontation of witnesses
found in Section 19, Article IV,
Constitution is
violated.
We stated in People v. Valerio
(112 SCRA 308, 230):
“x x x A written extrajudicial statement of a person who was not
presented as a witness to be cross-examined on his supÂposed statement is not
admissible in evidence (People vs. Clores, 100 SCRA
227, 1980 under the principle of ‘res inter
alios alteri nocere non debet‘. (People
vs. Alegre, 94 SCRA 109, 1979) As this Court, speaking through Chief
Justice Fernando, held in People vs. Lavarias, 23
SCRA 1301 (1968).
“‘The decision appealed from would thus predicate a conviction
on affidavits executed by two alleged eyewitnesses who thereafter repudiated
the same. Independently of the motives,
that must have occasioned such a change of heart, the conviction of appelÂlant
cannot be sustained. The constitutional rights guaranteed the accused stands in
the way of the affirmance of the appealed decision. It
is elementary that in all crimiÂnal prosecutions, there is a presumption of
innocence in his favor and he has the right to the confrontation of witnesses.'”
As far as the
appellant is concerned, the confession
which helped send Eriberto Cenon to jail for life is hearsay. (People v. Peruelo,
105 SCRA 226; People v. Obedoza, 105 SCRA
694.)
If the prosecution exerted enough efforts it could probably
have brought Eriberto
Cenon to the trial to be examined. Upon
the information that Cenon was serving sentence in
the Davao Penal Colony, a continuance of the hearing was granted to
allow him to be fetched. It was later ascertained that
during the trial of the
accused-appellant, Eriberto Cenon was already
released on parole. Still this
would not have prevented his whereabouts from being ascertained
through the parole officer. As it is, the Court in a 1970 trial chose to rely
on a confession taken twenty (20) years earlier in 1950 without giving the accused an opportunity to question
the author about its contents. We, therefore, find the extrajudicial statement
inadmissible. With this finding of inadmissibility, the other evidence linking
the accused-appellant to the killing becomes inadequate to establish his guilt.
WHEREFORE, the judgment of the lower court finding
Abundio de la Cruz guilty of murder and sentencing
him to suffer the supreme penalty of DEATH is hereby REVERSED and SET ASIDE. The accused-appellant is ACQUITTED for
insufficiency of the evidence to establish his guilt beyond reasonable doubt. He
is ordered immediately released from detention, unless otherwise held for some
other lawful cause.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion, Jr., Guerrero, Melencio-Herrera,
Plana, Escolin, Vasquez, and Relova, JJ., concur.
Makasiar and Aquino, JJ.,
no part.
Abad Santos and De Castro, JJ., on leave.