G.R. No. L-22187. March 28, 1969
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF?APPELLEE, VS. ANASTACIO MAISUG, ET AL., DEFENDANTS, HERMINIGILDO TADO, DEFENDANT-APPELLANT.
BARREDO, J.:
Appeal from a decision of the Court of First Instance of Cebu in its Criminal Case No. V-8884, convicting the
appellant Herminigildo Tado
of the crime of murder.
It appears that at about nine
o’clock in the evening of February
17, 1962, a card game known as “pares-pares” was held at
a certain gambling house in the barrio of Tungasan, municipality
of Mandawe,
Cebu. Among those present therein were the appellant
Herminigildo Tado, the
other accused, Anastacio Maisug,
who pleaded guilty, Regino Gala, Alberto Belle,
Rodolfo Bregente and Federico Alcuizar. Appellant who owned the cards being used in
the game, was the shuffler, banker and dealer.
At about 10:00 o’clock, several
players had already lost their money, among them Anastacio
Maisug and Regino Gala. In apparent disgust, Gala tore one of the
cards. This angered appellant who
immediately asked him why he did it.
Verbal altercations followed among appellant, Gala and the other
players. Alberto Belle suggested to
appellant the use of the joker in lieu of the torn card. At this juncture, Anastacio
Maisug suddenly stabbed Gala on the back from behind with
his knife. Commotion ensued. Later that
same evening, Gala was found already dead at a distance of about 15 meters from the gambling house.
The following day, February
18, 1962, Anastacio Maisug
surrendered to the police authorities of Mandawe, Cebu.
He executed a statement (Exhibit A) admitting having stabbed the
deceased Regina Gala in the back from behind
and implicating appellant thus: Earlier
that evening of the incident, appellant instructed him to stab anyone who would
take trouble during the card game, and so, when the deceased Gala tore one of
the cards and appellant signalled
him, he immediately drew his knife and drove it into the body of said
deceased. On the same day, Rodolfo Bregente and Alberto Balle
executed also affidavits narrating the incident
which led to the killing of the
deceased. Their narration, however, mentioned nothing about any signal
allegedly given by appellant to Maisug.
On March 12, 1962,
an information for the murder of Regino Gala was
filed against Anastacio Maisug
and appellant. It was alleged therein
that on February 17, 1962,
both accused “with deliberate intent to kill, evident premeditation and treachery, conspiring
and confabulating with each other”, stabbed from behind the deceased Regino Gala, “thereby inflicting upon the latter a stab wound at the left side of the
portion of his body which produced his death.” Upon arraignment, accused Maisug pleaded guilty to the charge and asked permission
to prove mitigating circumstances which he claimed attended the commission of
the offense or his liability. The
permission granted, he proved and the court considered three mitigating
circumstances, namely, voluntary surrender, plea of guilty and drunkenness. Accordingly, the lower court sentenced him on
April 16, 1962, to a penalty of four (4) years prision
correccional, as minimum, to eight (8) years prision mayor, as maximum, and to indemnify the heirs of the deceased in the
sum of P6,000 and to pay the costs.
Appellant, on the other hand, pleaded not guilty, hence trial was held
as to him.
After due trial, on June
28, 1963 the lower court rendered the appealed decision. Said the court:
“Based on what appears on record, the Court is convinced that
the criminal participation of the accused Herminigildo
Tado in the commission of the offense charged in the
information against him and his co-accused, Anastacio
Maisug, has been clearly and positively established. The evidence shows that it was the said accused,
Herminigildo Tado, who
owned the torn playing card; that the said accused was mad at the deceased Regino Gala when this tore the said card for no justifiable
reason known to said accused; and that due to the act of said deceased, the
game was stopped. The evidence further
shows that he (Herminigildo) was the dealer who
shuffled and distributed the gaming cards.
According to his own admission, he and the manager or owner of the game,
Emilio Mature, had the understanding that whatever tong was collected in the
game played that night would be divided between them equally; and that when
the game was stopped no more tong was collected. The Court, finds and declares that the
accused Herminigildo Tado
participated as principal by induction because he was the one who instructed
and signalled his co-accused Anastacio
to stab the deceased (Art. 248, par. 1, Revised, Penal Code).
“The allegation of conspiracy and confabulation made in the
information against both has been clearly shown and established by the
coordinated acts of both accused such as the fact that, in the early hour of
that evening of the incident, there was an understanding between both accused
that the accused Anastacio Maisug
would stab anyone making trouble in the course of the card game; and that after
the deceased Regino Gala tore the card belonging to
the dealer Herminigildo Tado,
the latter immediately gave the ‘go signal’ to the other accused to stab the
trouble maker who happened to be the said deceased, Regino
Gala. The act of stabbing the deceased was
characterized by treachery because it was done from behind when the victim was
unaware and not in a position to defend himself while the attacker was behind
without exposing himself to any risk arising from the defense that the victim
may put up. Hence the charge of the fiscal
against both accused is murder.
x x x x x
“WHEREFORE, based on all the foregoing considerations, the
Court finds and declares the accused Herminigildo Tado guilty, beyond reasonable doubt, as principal by
induction, of the offense of
murder charged in the information, and said offense is the same crime defined
and penalized under Article 248 of the Revised Penal Code and, considering the
absence of any modifying circumstance, the said accused is hereby sentenced to
serve the penalty of life imprisonment (reclusion perpetua)
to indemnify the heirs of the deceased Regino Gala in
the sum of P6,000.00; and to pay one-half of the costs. It appearing that said accused Herminigildo Tado has been
confined in jail since his arrest on February
18, 1962, up to the present time, he is entitled to be credited
with one-half of his total preventive confinement, and to pay the costs. The weapon, Exhibit C, and its scabbard,
Exhibit C-1 recovered from the accused are ordered confiscated and forfeited in
favor of the government.”
Against this judgment, counsel de officio assigns the following
errors:
“ASSIGNMENT OF ERRORS
I
THE LOWER COURT
ERRED IN NOT HOLDING THAT THERE WAS NO CONSPIRACY PROVED BETWEEN MAISUG AND
APPELLANT, AND, HENCE, THEY COULD BE HELD ONLY FOR THEIR INDIVIDUAL ACTS;
II
THE LOWER COURT
ERRED IN NOT HOLDING THAT THE ALLEGED CONFESSION OF MAISUG, IS NOT ADMISSIBLE
AS AGAINST APPELLANT TO PROVE THE ALLEGED CONSPIRACY BETWEEN THEM;
III
THE LOWER COURT
ERRED IN NOT HOLDING THAT IN TRUTH AND IN FACT MAISUG ALONE WAS RESPONSIBLE FOR
THE DEATH OF THE DECEASED;
IV
THE LOWER COURT
ERRED IN NOT HOLDING THAT GIVING THE EVIDENCE THE APPROPRIATE WEIGHT, THERE IS
NO PROOF OF GUILT BEYOND REASONABLE DOUBT AS AGAINST APPELLANT;
V
THE LOWER COURT
ERRED IN HOLDING APPELLANT AS GUILTY OF INDUCEMENT IN THE KILLING OF THE
DECEASED, AND ERRED IN NOT HOLDING THAT IN TRUTH AND IN FACT THERE IS NO PROOF
OF MURDER BY INDUCEMENT, BY APPELLANT, TO SATISFY THE REQUIREMENT OF LAW OF
PROOF BEYOND REASONABLE DOUBT.”
On the whole, the appeal
should be sustained and appellant given the benefit of reasonable doubt.
It is clear from a careful perusal of the record that the only inculpatory
evidence against appellant Tado are: (1) the statement of Anastacio
Maisug in his extrajudicial confession (Exhibit A)
that early that evening of February 17, 1962, appellant instructed him to stab
anyone who would make trouble during the card game; that when the deceased tore
one playing card, the appellant got angry and signalled
him to stab said deceased; and that in compliance with such signal, he
immediately drew his knife and drove it into the body of the said deceased; and
(2) the testimony of Alberto Balle to the effect that
after the deceased tore one of the cards, he saw the appellant give signal to Maisug to stab said deceased. The trial court considered these as
sufficient proof of conspiracy and/or inducement, and consequently, held
appellant liable for the confessed criminal act of Maisug.
This Court sees appellant’s case differently.
As the record stands, Maisug’s
confession which was relied upon by the trial court cannot be considered as sufficiently
dependable evidence to convict appellant, as the trial court did, of such a
grave offense as murder and deprive him of liberty for life. To begin with, Maisug
himself repudiated in open court the portions of his confession incriminating
appellant. And We are satisfied that his
testimony in open court when he declared at the separate hearing for the
presentation of his evidence to prove mitigating circumstances, after pleading
guilty,[1]
was more candid and natural than his confession. He straightforwardly owned the killing of
the deceased and denied having been signalled by
appellant to do it. “I killed him
by my own volition. x x x It was my own volition to
kill him”, he told the court. To
quote further from the transcript of his testimony:
“Q.- Did he make any provocation on you?
A.- Yes,
sir.
Q.- What was the provocation?
A.- As
he tore the cards, he uttered these words:
‘Who among you here is brave enough to challenge me?’
Q.- Because
of that provocation, you immediately stabbed him?
A.- Yes, sir.” (TSN, p. 4, Sabarre)
x x
x
“Q.- So when you said that when the deceased Regino Gala tore the cards, it was Herminigildo
Tado who was angered of the act of the deceased, is
that correct?
A.- Yes,
sir.
Q.- Because
Herminigildo Tado was
angered, you were signalled by him to stab the
deceased according to your affidavit?
A.- He did not, instead I killed him by my own
volition.” (TSN, p. 6 Sabarre)
x x x
“Q.- Having
already seen the owner, Mr. Herminigildo Tado, who was angered of the tearing of the cards, what brought
or what motivated you to stab the
deceased when there is the owner of the card who was already angered?
ATTY. DAKAY:
It was already answered by the witness
in the direct examination that he was provoked by the deceased.
COURT:
Witness may answer.
A.- I killed him because I did not like his
attitude in tearing the cards.” (TSN, p. 7, Sabarre)
Besides, the alleged signalling of
appellant to Maisug for him to stab the deceased does
not appear to be clearly proven in the prosecution’s evidence. Nowhere in the confession of Maisug is this fact satisfactorily clarified. All that appears therein relative to this
point is the following:
“Q.- Will you state if there was any unusual
happening during the time you were at the game of paris-paris?
A.- While I was there many people were playing the
game of cards commonly known as paris-paris. I also made some bets and I lost Fifty
Centavos (P.50). Another person named Regino Gala also lost in the betting and the latter tore
out one playing card. The owner of the
cards who is Hildo a very close friend of mine was
angered by this incident and he signalled to me to
stab Regino Gala.
Q.- Did
this Hildo know that you had a dagger at that time?
A.- Yes, sir, as we were close friend he knew
that I carry my dagger all the time.
Q.- Did
you then comply with the signal made by your friend Hildo
to strike at Regino Gala with your dagger?
A.- Yes, sir, as I had taken in a certain amount
of liquor, I did not need much coaxing, I draw my dagger and with both hands, I
drove my dagger into the body of Regino Gala from
behind, hitting him on the left side of his back.
Q.- What
did Regino Gala do after hitting him on the back with
your dagger?
A.- He
ran towards the lower ground.
Q.- Do
you know this person which you call Regino Gala?
A.- No,
sir, I saw him for the first time only last night.
Q.- Did
you have any quarrel with this fellow Regino Gala?
A.- No,
sir, I did not have any quarrel with him.
Q.- Did
you have previous instruction or understanding with Hildo,
to stab Regino Gala?
A.- I was instructed by Hildo
early that evening to stab anyone who make trouble in his card games and as it
was Regino Gala who made trouble by tearing into
pieces a playing card and as Hildo made the signal I
immediately complied and drove my dagger into the body of Regino
Gala.” (Exhibit A)
It can thus be noted that Maisug gave
no indications whatsoever as to what was the particular signal to be given to
him by appellant as well as the one which was actually given later. Much less did he do this during his
testimony, because, as already stated, he categorically denied having been
given any signal by appellant.
In an obvious attempt to have a corroboration of Maisug’s confession on this point, the prosecution presented
the witness Alberto Balle who testified thereon as
follows:
“Q.- Why do you say he agreed with an angry mood?
A.- He
agreed with a nodding sign, but with a signal to Anastacio
Maisug.
Q.- What
signal?
A.- With a sign doing this. (INTERPRETER: Witness holding his right, standing, with
fist closed and making a stabbing motion, thrusting forward.)” (TSN, p. 4, Perez)
only to admit in the next breath that:
“Q.- You mentioned Anastacio
Maisug being signalled by Herminigildo Tado with a stabbing
motion. What did you understand by that?
A.- I do
not know the meaning of it.” (TSN,
pp. 4-5, Perez)
Further, during the cross-examination, this witness admitted that
when his statement was first taken by the police after the incident, he made no
reference to the alleged signalling by appellant to Maisug although he explained that this was because he was
not asked about it. Indeed, there is
nothing in said statement which in anyway implicated appellant, as there was
not even any mention of him therein. As
a matter of fact, Balle did not even say in said
statement that Maisug was the one who stabbed the deceased. The only reference to Maisug
therein was as follows:
“That I asked my companions to go with me home, and when I
stood up to go, I saw Rodolfo Bregente run and
stumbled, then I saw one man now known to me to be Anastacio
Maisug brandishing his dagger.” (par. 6,
Affidavit of Alberto Balle, p. 3, Trial Court’s
Record)
Adding weakness to his evidence, was his admission that it was
only in court that he first told anyone about such fact. If this were true, how come that the fiscal presented him as witness against appellant? A witness who denies having revealed to the
counsel presenting him at the trial the matter he would testify on is not worthy
of credence, for such testimony is unnatural and contrary to ordinary experience.
Lawyers do not usually present witnesses without informing
themselves regarding the facts that they would prove in the testimonies they
would give in court. This is specially
true in this case because, without that detail about the signal in question, Balle’s testimony was of no particular consequence in the government’s
case and if the fiscal did not know about said signal, it is difficult to
understand why he would still present said witness as, in fact, he did present
him.
Moreover, later in the same cross-examination, Belle reiterated
that he did not understand the signal and gave the following vague explanation:
“Q.- When you said Mr. Tado made a forward
motion of his hand you did not know what that meant. Is that not right?
A.- You are right.
Q.- As a matter of fact, you did
not even know that that was a signal?
A.- When he made a sign in this manner (INTERPRETER: Witness made a thrust) immediately Rodolfo Bregente
ran away.
Q.- But you did not know for a fact that that was a signal? (Later) Please answer my question.
A.- I do
not know. In that sense.
Q.- And the next thing that you
saw was Mr. Rodolfo Bregente running in this direction as indicated by you in
this Exhibit “D”. Is that
right?
A.- Right.
Q.- And, of course, you were surprised why Rodolfo Bregente
was running in that direction?
A.- That is why I turned to one side.
Q.- And when you turned your head you saw Mr. Anastacio
Maisug standing on the spot indicated by you in this
Exhibit “D” holding his knife?
A.- Yes, sir. That is right.
Q.- In other words, you did not actually see Mr. Anastacio
Maisug stab Regino Gala?
A.- I did not see. You are
right.
Q.- As a matter of fact, you do not know for a fact that Anastacio Maisug stabbed Regino Gala in response to the supposed signal of Mr. Herminigildo Tado?
A.- What I know for a fact is that when the signal was made there was a
commotion at once and that means there must be a stabbing.
Q.- But you did not actually see the exact moment when Anastacio Maisug stabbed Regino Gala?
COURT:
Already answered. He did not see.
Q.- What happened? You said there was a commotion? What was the commotion about?
A.- I did not know the cause of the commotion. When I noted somebody running I ran after
Rodolfo Bregente.
ATTY.
FERNANDEZ:
Q.- Do you wish
this Court to understand that the moment you became aware of the commotion was
when you saw Rodolfo Bregente running away already
in the direction you indicated in this Exhibit “D”?
A.- According to Rodolfo Bregente,
he was the one who actually saw the stabbing, that is why he ran away. Upon his running away I ran after him on my
belief that he was the one stabbed.
Q.- When you ran after Mr. Rodolfo Bregente you did not know for a fact that there was already somebody stabbed. Is that right?
A.- You are right.” (TSN, pp. 16-17, Perez)
The ambiguity and inconclusiveness of the proof as to the alleged
signalling by appellant to Maisug
is pivotal. Such evidence, without more,
except the repudiated confession of Maisug, cannot
make proof beyond reasonable doubt. The
case would have been otherwise, had there been clear proof that the
corroborating witness Balle knew what exactly the
signal was and this coincided with the signal confessed by Maisug. To convict appellant on mere vague testimony
about a signal, allegedly to kill the deceased, when (1) such supposed signal
does not appear to be even intimated in the circumstances related in the
extrajudicial statement of the government witness; (2) the fiscal was never
made aware of it; and (3) where said witness himself admitted at the trial
thus:
“Q.- When you said Mr. Tado
made a forward motion of his hand you did not know what that meant. Is that not right?
A.- You
are right.
Q.- As a
matter of fact, you did not even know that that was a signal?
A.- When
he made a sign in this manner (INTERPRETER:
witness made a thrust) immediately Rodolfo Bregente
ran away.
Q.- But
you did not know for a fact that
that was a signal? (Later) Please answer
my question.
A.- I do
not know. In that sense.” (TSN, p.16, Perez)
would be basing conviction on mere
inference which can hardly be said to be reasonable, much less in capable.
Neither is the proof that Maisug fully
understood every part of his so-called extrajudicial confession convincing. To be borne in mind is the important
consideration that since Maisug is an unschooled
farmer who does not know how to read and can write only his name because he was
taught to do so by his mother,
his said confession which is in English had to be read and translated to him
allegedly by the Chief of Police of Mandawe, Cebu, Priscillano S. Lumapas. Such a
multiple process of reading and translating
the questions and translating and typing the answers and reading and
translating again the said answers is naturally pregnant with possibilities of
human, if unintentional, inadequacies and incompleteness which render the said
confession unsafe as basis of conviction for a capital offense, unless sufficiently corroborated. It is notable that in this case, the fiscal
dispensed with the presentation of the justice of the peace before whom Maisug allegedly swore his confession, since it is not even
definite from the testimony of the chief of police whether Maisug signed the same before
him alone, or before the justice of the
peace in his presence.
By and large, the evidence
on record does not engender enough faith that appellant is guilty of the charge. If somehow it is discernible that it is more
the inadequacy of details in the
state’s evidence that makes it difficult for Us to arrive at definite
conclusions rather than, perhaps, the actual facts themselves, still We cannot pin responsibility on
appellant. The moral conviction that
may serve as basis of a finding
of guilt in criminal cases is only that which is the logical and inevitable
result of the evidence on record, exclusive of any other consideration. Short of this, it is not only the right of the
accused to be freed, it is, even more, our constitutional duty to acquit him.
WHEREFORE, the judgment of this Court is that the guilt of
appellant Herminigildo Tado
of the crime charged in this case has not been proven beyond reasonable doubt; he is hereby acquitted; and it is ordered that he be set immediately
at liberty unless he is held for
another legal cause with costs de officio.
Concepcion, C.J., Reyes, JBL, Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Fernando, Capistrano, and Teehankee, JJ., concur.
[1]
This testimony was expressly adopted by appellant’s as part of the defense evidence.
(TSN, p. 51 Perez)