THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FRANCISCO EVARISTO, PEDRO CARDEÑO AND AGUSTIN MIANO, DEFENDANTS AND APPELLANTS.

Francisco Evaristo, Pedro Cardeño, Domingo
Balido, Pelagio Camposano, Diosdado Baguiz or Alejandro Baguiz, Restituto Romines, Leoncio Escareal, Eutiquio Dultra and Agustin Miano were charged with the murder of Pastor Moyot on November 4, 1947, in an information which alleges
evident premeditation and treachery, as qualifying circumstances and abuse of
superior strength and taking advantage of their public positions, as aggravating
circumstances. One Marcial Giray was not included in the information because he had
since died. Accused Diosdado Baguiz was discharged from the information and utilized as a
state witness. After due trial, the Court of First Instance of Samar rendered judgment finding accused Francisco Evaristo, Pedro Cardeño and
Agustin Miano guilty of the crime charged, beyond
reasonable doubt and imposed the penalty of reclusion perpetua, the accessories of the law, to
indemnify jointly and severally the heir of pastor Moyot in the sum of P6,000.00 and
to pay proportional costs; the other accused were acquitted. Hence, this appeal.

Culled from the testimony of the
state witnesses, Dr. Andres Corpus, Antonio Tingzon,
accused Diosdado Baguiz,
Marcelo Escalante, Jaime Ballista, Silvestra Balite, Eladio Devora and Roque Dato and other evidence of record, are the following
facts:

Accused Francisco Evaristo and Pedro Cardeño were the Mayor and Chief of Police, respectively, on or
before November 4,
1947, in
the town of Bobon, Samar, while their co-accused were
policemen thereof. In the morning of November 4,
1947, the
accused, led by accused Evaristo and Cardeño, constructed a roadblock across the provincial road
at the entrance to the town of Bobon, coming from Catarman and near the houses of Eleuterio Duran and Jose Orawa.
Between 2:00 and 3:00
o’clock
in the afternoon, same day, the accused gathered at the parking place for
passenger buses in Bobon, in front of the house of
Silvestre Balite, in order to intercept the passenger
buses coming from Catarman. Accused Evaristo harangued his co-accused, thus: “You policemen,
watch the buses from Catarman for Pastor Moyot might come; if you see him in the bus shoot him
immediately; don’t be afraid because I am responsible for you; the
administration is ours, up and down; if you will not shoot him, I will shoot
you; this Pastor Moyot is an obstacle to my
administration; he is a beast; it was yet in Carangian
that I wanted to liquidate him but I had no chance.” In similar vein, accused
Cardeño told his men that “Pastor Moyot deserves to be killed because he is an obstacle to the
administration.” The accused then deployed around the parking
place.

A passenger bus, on coming to the
roadblock, slowed down. Among the passengers of the bus were Pastor Moyot and state witness Antonio Tingzon. On entering the town and before reaching the
parking place, accused policeman Eutiquio Dultra boarded the bus at the rear and poked his Thompson on
the nape of driver Jaime Ballista, at whose right side and next to him was
Pastor Moyot. Pat. Dultra
ordered the driver to stop the bus; the driver slowed down and parked the
vehicle in front of Silvestre Balite’s house. While
the bus was parking, accused Cardeño pistol in hand,
with his index finger on the trigger, approached the bus from the rear and
inquired whether “Atoy was there” (referring to Pastor
Moyot). Pastor Moyot was
alighting from the bus and upon reaching the ground, threw his hands off in the
air, saying, “Diri aco ma’ato saiyo” (I will not fight
against you), addressing Cardeño at whose back were
accused policemen Agustin Miano and Marcial Giray. At this juncture,
Mayor Evaristo with a .45 cal. revolver in hand came
up to the bus running from the store of Chinaman Pablo opposite the store of
Mrs. Balite, shouting: “Fire, fire, it was yet before
that I ordered to you to fire immediately.” Accused Chief Cardeño, seconded the order to fire. Accused Martial Giray
fired his carbine hitting Pastor Moyot in the left
breast, causing him to spin and to drop slowly to the ground, broaning. While Moyot was thus
sprawled, Chief Cardeño again shouted fire and accused
Agustin Miano fired at Moyot
after making the remark that they had long wanted to get him. Miano’s shot hit Moyot on the left
shoulder. Pastor Moyot died on the
spot.

Immediately after Moyot’s death, Evaristo and Cardeño ordered the search of his body, for any weapon.
Accused policeman Pelagio Camposano made the search and found no weapon of any kind in
Moyot’s inert body. The cadaver was brought to the
municipal building upon order of Mayor Evaristo.
Driver of the bus, Jaime Ballista, after changing tires, resumed his trip to
Carangian, with Evaristo and
Miano, among his passengers.

Dr. Andres Corpus, performed the
autopsy on the cadaver and found four gunshot wounds caused by a .30 cal.
bullet, two entrance wounds and two exit wounds. One entrance wound was above
the left nipple, the bullet causing it, came out of the back, right side; the
second wound was at the left deltoid region, the bullet causing it, came out
also, at the back right side, but on a different spot from that of the first
exit wound. Both wounds were fatal because they both involved the heart and the
lungs.

The defense presented as
witnesses, Calixto Paredes,
Santiago Dogan, Agustin Miano, Valeriano Romines, Rufino de Asas, Ramon Paredes, Pedro Cardeño, Eutiquio Dultra, Pelagio Camposano and Francisco Evaristo.
Their story runs as follows:

At 9:00
o’clock
in the morning of November 4,
1947,
Marcial Giray (now deceased)
complained to Chief Cardeño that Moyot, carbine in hand, pursued him early that same morning.
Pat. Miano was instructed by Chief Cardeño to look for and disarm Moyot or to bring him to office. At about 4:00
p.m. that
day, Agustin armed with carbine went to the parking place in front of Mrs. Balite’s house. Sometime after, a passenger bus from Catarman came and Moyot was aboard
the same. Agustin asked Moyot to come down, telling
him that he had something to talk to him. Moyot
alighted and Agustin took him to some distance from the bus and informed him
that someone reported to the Police Chief that he had a pistol. Moyot denied, whereupon, and coming from behind him (Moyot) Marcial Giray searched the body of Moyot
and shouted: “No, don’t believe him; he has a revolver, here it is” (Giray feeling the waist of Moyot).
Thereupon, Moyot drew his pistol and tried to cock it,
but Giray held Moyot’s hand
that bore the pistol. While struggling for the possession of the pistol, Moyot kicked Giray and Giray was thrown off the front and Moyot immediately cocked his pistol and fired upon Giray but missed him. When Miano
saw Moyot drew his pistol, he warned: “Don’t do it; I
am an authority” and instantly retreated to a distance of 2 meters from Moyot, afraid that pistol would explode.” When Moyot was attempting to cock his
pistol for the second time, Pat. Miano drew his
carbine and fired upon Moyot, causing the latter to
twist his body towards him (Miano). In this position,
Miano fired a second shot, hitting Moyot on the left lower breast and Moyot dropped to the ground. Pat. Miano picked up Moyot’s pistol and
brought Giray in the direction of the municipal
building. Upon reaching the corner of Sto. Niño and San Ignacio
streets, near the warehouse of Chinaman Pablo, they met Chief of Police Cardeño who was on his way to the place of the gunfire,
after hearing them in his office. Cardeño inquired
from Pat. Miano what the shooting was all about. Pat.
Miano informed him: “Sir, I shot Pastor Moyot and here is his pistol and the man (Marcial Giray) with whom he
(Pastor) fought.” Miano then delivered the revolver to
Chief Cardeño, who locked the chamber thereof with the
safety lock, because the revolver was .cocked with one bullet in the chamber.
The three (Cardeño, Miano
and Giray) went back to the scene of the killing.
Chief Cardeño ordered policemen Pelagio Camposano and Pastor Cardeño to take the dead body to the municipal building.
Chief Cardeño investigated Miano and Giray, putting their
statements in writing but not sworn to, after which investigation, he (Cardeño) entered in the police blotter the following:
“Municipal policeman Agustin Miano shot to death
Pastor Moyot; according to my investigation policeman
Agustin is justified for according to my opinion he did it in the performance of
his duty”. Chief Cardeño, on November 5,
1947,
delivered to P.C. Sgt. Santiago Dogan, Moyot’s revolver, entering in the police blotter that fact
and P.C. Sgt. Dogan signed in the police blotter
acknowledging receipt thereof. Lieut. Trimio also
investigated policeman Miano, the day following the
incident and Chief Cardeño delivered to said
lieutenant the written declarations of Miano and Giray.

The defense also alleged that
Giray alias Marcial Rosita
was not a policeman at or before the time of the shooting and accused Dultra was no longer a policeman on November 4, 1947, having
resigned in January or February, 1947; the police force of Bobon had only 1 carbine, 1 Thompson and 1 Thompson submachinegun, and the last two on November 4, 1947, could
not be used, as they were defective – could not fire – and that Chief Cardeño did not have any .45 caliber pistol, and he would
only borrow the colt-revolver of the municipal treasurer, everytime he needed firearm.

Accused Mayor Evaristo asserted that the first time he came to know of the
shooting was at about 3:00 o’clock in the afternoon of the day in question, when
he went down the municipal building from his office, because the people were
talking about it; that he ordered Chief Cardeño to
investigate policeman Miano and then went home to San
Jose. Accused Evaristo simply branded as false, all
the testimonies of the government witnesses in the case against
him.

In this instance, appellants
submit that the trial court committed error-

(1) In finding: appellant Agustin
Miano guilty of the crime charged, notwithstanding the
presence of all elements of self-defense and defense of stranger duly
established by the said appellants;

(2) In finding the appellants
Francisco Evaristo and Pedro Cardeño guilty of the crime charged, as co-principals, by
induction; notwithstanding the failure of the prosecution to prove their guilt
beyond reasonable doubt;

(3) In considering political
persecution as the motive of the killing and discarding the motive in the
persecution of defendants-appellants;

(4) In not believing that Moyot was armed with a .45 caliber pistol when he was shot
by Agustin Miano.

All of which boil down to the
question of credibility.

It is almost trite to be
repeating here, that as far as the credibility and veracity of witnesses are
concerned, the conclusions of the lower court command great weight and respect,
on the ground that the trustworthiness of witnesses and the merit of the
defenses by the accused, are within the peculiar province of the trial court. We
are of the firm belief that the incident in question, occurred in the manner as
narrated by the witnesses for the State and as found by the trial court.
Appellant Agustin Miano, having admitted to have fired
the two mortal shots upon the victim Pastor Moyot, it
is incumbent upon him to adduce by clear and positive proofs that he acted in
his own defense and in the defense of a stranger. (People vs. Ansoyon, 75 Phil. 772-777.) This, in our opinion, appellant
Miano has failed to do.

Two questions arise from Miano’s defense: (1) Whether or not Moyot had a pistol with which he allegedly used in shooting
Marcial Giray; and (2)
Granting in gratia argumenti,
that Moyot had a pistol, did he use it in shooting
Marcial Giray?

The learned trial court found a
paucity of convincing evidence that Moyot ever had a
pistol. We share this conclusion. Police Chief Cardeño
claims that he entered in his police blotter the fact that he delivered Moyot’s revolver to P.C. Sgt. Dogan at about 10:00
o’clock
in the morning of November 5,
1947. The
police blotter was, however, not presented, for according to the defense, the
same is now missing. Sgt. Dogan declared that at
10:00 a.m. of November 4 (not November 5),
he received a pistol (not a
revolver) from Chief Cardeño, giving him a receipt
therefor. The receipt was not also presented in court.
Sgt. Dogan further declared that he turned over this
pistol to Sgt. Julio Garcia, for delivery to the provincial headquarters at
Catbalogan, Sgt. Garcia giving him a receipt for that
pistol. Again, the alleged receipt of Sgt. Garcia was not produced, on the
explanation of Sgt. Dogan that he lost it. Sgt.
Garcia, subpoenaed by the defense to appear November 2,
1957,
showed up in court on said date, he was not placed on the witness stand, with
the explanation of counsel for the defense, Attys. Del Valle Robadulla,
that Sgt. Garcia could not remember whether Sgt. Dogan delivered any pistol to him. This creates the
unfavorable presumption that had Sgt. Dogan declared
his testimony would have been adverse to the defense. The manifestation of
defense attorneys to the trial court that they would produce the records in the
provincial headquarters showing the existence of Moyot’s firearm, did not pass
beyond a mere manifestation. The truth was that, according to Sgt. Garcia’s
admission to the Provincial Fiscal, he did not receive any pistol from Sgt.
Dogan, but that he (Sgt. Garcia) was not in Catarman, Samar, in those days but
in Leyte Province. The flimsy explanations of these
intelligent witnesses with respect to the vanishing receipts and documents, and
material discrepancies found in their testimonies, simply show that the alleged
pistol of Moyot did not exist. And, in the face of the
clear and positive testimony of the State witnesses Domingo Baguiz, Marcelo Escalante and Silvestra Balite that when Moyot was lying dead on the ground, his body was searched by
the policeman, but no weapon was found, the contrary testimony of the above
defense witnesses, fizzles into thin air.

Conceding for a moment, that
Moyot had a pistol, did he use it in shooting Giray? Miano wanted the court to
believe that Moyot drew his pistol; attempted to cock
it, followed by the struggle between him (Moyot) and
Giray for the possession of the pistol; kicked off
Giray; then fired upon Giray; and then attempted to cock his pistol for the second
time. If this were true, We are really led to great
wonderment to find that Miano and Giray, the latter specially, had not received a single
scratch. If, as contended, Giray was not a policeman
at the time, then it was not his concern to embrace Moyot from behind, and tell Miano
to search him, with his aid. It would appear that the provocation started from
Giray and Miano. Knowing, as
alleged, that in the morning in question, Moyot had a
firearm, it is not explained why a search warrant was not carried by the
policeman, in order to effect Moyot’s arrest that afternoon. Defense witness Calixto Paredes claim that he saw
from his house when Moyot alighted from the bus and
Moyot’s alleged struggle with Giray. According to Roque Dato, however, he and Calixto
Paredes, from 11:00
a.m. of
November 4 to the following morning, November 5, were in barrio
Rosario, Bobon, to hold a political meeting in the evening of
November 4.

As to the motive of the killing,
it is worthwhile to reproduce hereunder what the learned trial judge has said
about the matter:-

The Court does not doubt that
Pastor Moyot was killed because of his political
activities. He was one of the strong supporters of the NP and he was outspoken
in his attack against the local administration which was then in the hands of
defendant Francisco Evaristo then mayor of Bobon with Pedro Cardeño as his
chief of police. As a matter of fact government witness Silvestre Balite heard defendants Francisco Evaristo and Pedro Cardeño in
front of her house say to their co-defendants that Pastor Moyot was the only obstacle to the administration. It is
true that government witnesses Antonio Tingzon,
Silvestre Balite are strong leaders of the Nacionalista Party but the Court cannot agree that for this
alone they would incriminate defendants Francisco Evaristo and chief Cardeño in such
a heinous offense as that charged against them in the case at bar, if really
these defendants were not particen criminis. If
these government witnesses were only politically inspired, they would have
incriminated too Eleuterio Duran who was already the
LP mayor of Bobon, Samar, and who defeated NP candidate
Roque Dato in the elections
of 1947. Defense would want to impeach witness Antonio Tingzon by presenting his affidavit Exh. 22 (translation, Exh. 22-a)
wherein Antonio allegedly made no mention of Agustin Miano, Pedro Cardeño and Restituto Homines in the
commission of the felony, but instead Mentioned Froilan Cenera, who was then in
Catbalogan. The Court however, believes that the
attempted impeachment did not prosper confrontation. And even if the Court were
to discard the testimonies of Silvestre Balite and
Antonio Tingzon, there remains still sufficient
evidence on record showing the participation of Pedro Cardeño and Francisco Evaristo in
the commission of the felony. The testimonies of Jaime Ballista, (the driver of
the Passenger bus which carried Pastor Moyot) Marcelo
Escalante and defendant Diosdado Baguiz (or Alejandro Baguiz)
clearly established the participation of Pedro Cardeño
and Francisco Evaristo in the commission of the
felony. Defense tried to impeach the credibility of Marcelo Escalante, a Bataan Veteran with alleged previous contradictory
statements made in his affidavit Exh. 2 but again the
attempted impeachment must fail for lack of confrontation. In addition the
alleged contradiction refers to a very minor detail. The Court finds no evidence
on record sufficient to discredit Jaime Ballista and Eladio Devora and the other
government’s witnesses and the Court cannot believe that they would incriminate
Francisco Evaristo and Pedro Cardeño in such a serious crime as murder if really they did
not see these two defendants take part in the commission of the felony. The
alibi of Francisco Evaristo and Pedro Cardeño must yield to the positive statements of the
government witnesses.

Little need be added to the above
illuminating exposition, except to state that the same is fully supported by the
evidence of record. Motive or no motive, the stubborn fact
remains that reliable eye-witnesses testified to the circumstances of the
killing. They saw the actual killing. The defense admitted the killing,
only that it imputes the same upon one only, (Miano)
who, like the biblical and good Simon of the Cyrene, offered to shoulder the cross
alone, in an endeavor to save the skin, so to say, of the other accused. Truth
to tell, these days, there is such a decay in civic and moral virtues, that even
in broad daylight, people shoot and kill others, as if they are shooting wild
duck in the swamps, just for the fun or sake of killing.

Anent the conclusion and
inference that the delay in the prosecution of the crime is unreasonable and
reflects insincerity of the witnesses against appellants, it was explained that
the affidavit of Antonio Tingzon was taken in 1949
only, because he was afraid of the threat to him that if one would tell the
truth, he would get hurt; that in the preliminary investigation of the case,
first instituted in 1949, appellant Evaristo entered
the court room and issued a threat that: “Anyone who will make foolishness,
shoot him, don’t be afraid”, which threat cowed and imposed silence upon the
government witnesses; that Marcelo Escalante who is a Bataan veteran did not testify until 2 years after the
incident, because of the prevailing intimidation against anyone who would expose
the appellants; that Jaime Ballista who was investigated on the following day of
the incident and witness Eladio Devora who was only 14 years at the time of the incident,
did not come out in the open because they were also afraid of the threats of
Evaristo and Cardeño who
during those days in said town were according to them, the owners of the
administration “up and down”; the most powerful and the factotum, in their tiny bailiwick.
“These witnesses shove off their fear only when President Magsaysay became the President of the
Philippines and under whose administration
protection could be availed of speedily by those who wanted to serve justice.”
These circumstances satisfactorily explain the delay in the prosecution of the
instant case. (People vs. Belendrez, et al., 47 Off. Gaz., 5134; People vs. Alupay, 85 Phil., 688; 47 Off. Gaz.,
4574.)

Of course, after the rendition of
the sentence, the appellants filed an amended motion for new trial dated
July 28,
1958
which was denied by the trial court because the appeal was already perfected.
Another petition for new trial was presented in this Court on March 9,
1961,
which was ordered to be taken up when the case is decided on the merits. The
alleged newly discovered and material evidence consists of (1) Affidavits of
Nicolasa Baylon, widow of
Pastor Moyot (Annexes A and A-1, motion for new trial
dated March 8, 1961); (2) Letter of Eladio Halite
(Annex B); (3) Affidavit of Eleuterio Celespara (Annex C); (4) Letter of Pascual Samoray (Annex D); (5)
Ante-Mortem Statement of Pastor Moyot (Annex E); and
(6) Police Blotter (Annex F).

(a) Baylon would have testified that she was instructed to file
a complaint against Evaristo, Cardeño, and Baguiz by Atty. Eladio T. Balite, but she was not
interested because she knew that Evaristo and Cardeño had nothing to do with the killing of her husband.
Her testimony can not alter the decision because she would be merely giving her
own conclusion or opinion. How could she know that Evaristo and Cardeño had nothing
to do with the killing, when she was not present during the incident? (b) The
letter of Atty. Balite addressed to Cardeño seems to imply that Balite
had instructed Cardeño to go to Catubig at a political rally and work for his (Balite’s) candidacy, otherwise, he would request the P.C. to
file any frivolous charge
against him (Cardeño), including Evaristo. One should not stretch his imagination, far and
wide, to visualize that the letter is in itself “frivolous” and unbelievable,
for, normally, no lawyer, like Balite, would write
such a letter and incriminate himself, so flagrantly. It is addressed to one
“Edring” and signed by “Elad“. Who these persons are, or whether Atty. Balite had ever written this letter, one is really left to
conjecture. At any rate, the letter, if true, can not alter the conclusions
already reached by this court. (c) The affidavit of Eleuterio Celespara was offered to
show that Atty. Balite was bent on prosecuting the
appellants, so much so that Balite had sent affiant to
fetch Ireneo Rodriguez, then Chief of Police, whom
Balite reprimanded for not having filed immediately
the complaint against the appellants; that Rodriguez was hesitant in filing the
complaint because he believed the killing was justified; and that the P.C. Sgt.
Dogan had acknowledged receipt of the pistol, as shown
by a police blotter in his office, which said Rodriguez delivered to Balite who brought it to Catarman.
This is not a newly discovered evidence; it is merely a
forgotten or Corroborative evidence, if at all, and could not serve as a factor
to change the result of the case. (d) It is stated that Celespara Voluntary
to testify after the sentence was promulgated. Celespara is one of those heroes, when the war is over. And
one can easily see that his propose testimony, if true, is tailored to rebut the
vital issue: existence or not of a pistol allegedly belonging to Moyot. It is an impeaching evidence, (e) This is addressed to “My dear Asang” signed by “Pascual Samoray.” Appellants want to show that Nicolasa Baylon, wife of Moyot was instructed by Samoray,
by orders of Atty. Balite, to see the latter at Catarman, for the purpose of filing “the frivolous charge”
against the appellants. Who is Asang and who is Samoray and whether or not Samoray had written this letter, only appellants can know.
One thing is evident, however, and that is: this letter falls under the same
pattern as letters Annexes A and A-1. (f) Appellants want to show that in this
supposed ante-mortem statement, Moyot resisted the
arrest made by Miano; because Moyot believed that it was Domingo Miano together with Agustin Miano
(appellant) and Roberto Miano who shot him in the
night of September 18,
1946 at
about 7:00 p.m. If this so-called ante-mortem statement of Moyot ever existed and it was taken before the Chief of
Police then, (appellant Cardeño), it was not explained
why the same was not presented by the appellants at the trial. This is again
a forgotten evidence. Moreover, there is no showing of
the circumstances under which the statement was made and signed; who were
present; who took it; who witnessed it; whether it was marked or signed. And if
We should, as We do, take into account, that immediately after he received the
shots, Moyot, fell to the ground, lifeless and
speechless, it is indeed extending Our credulity to the breaking point, if this
belated move of the appellant to introduce this so-called ante mortem statement of Moyot should be allowed. (g) It appears from the police
blotter that Agustin Miano had admitted the shooting
of Moyot by him, thus corroborating Miano’s testimony that he was the one who shot Moyot, without receiving an order from anyone, and that
Moyot was armed with a .45 cal. pistol. Come now the
appellants and claim that after the rendition of the sentence-“a third party
contacted the accused appellants and their counsel to offer this important piece
of evidence”. Who is this party? It is not shown. Who signed the blotter is not
also indicated. And knowing, as they did, that this important piece of evidence
existed, appellants should have left no stone unturned, to locate it. They only
exercised diligence after the conviction, after gambling with the evidence for
the prosecution. At any rate, the existence or not of this blotter, has already
been fully treated in the early part of this opinion; and even if the same is
presented now, it would not alter the conclusion reached by Us, on the matter.

In view hereof, the motion for
new trial, is denied.

Newly discovered
evidence.-In
order that a new trial may be granted on the ground of newly discovered
evidence, the following requisites must be present: (a) that the evidence was
discovered after the trial; (b) that such evidence could not have been
discovered and produced at the trial even with the exercise of reasonable
diligence, and (c) that it is material, not merely cumulative, corroborative or
impeaching, and is of such weight that, if admitted, it will probably change the
judgment. Accordingly, where the evidence was known to the movant and was obtainable at the trial, or if not known, it
is not satisfactorily shown why it was not available at the trial, or that due
diligence was not employed in securing it, the motion for new trial should be
denied. So, also, where the evidence consists merely in improbable or
unreasonable testimonies of witnesses, or is merely cumulative or corroborative,
and will not thus alter the results, the motion will be denied. Forgotten
evidence is not a ground for new trial, pp.
297-298.)

IN VIEW
HEREOF, We
hold that the appellants are guilty to that effect, the appellants Francisco
Evaristo and Pedro Cerdeno,
who are now in the national penitentiary, have asked to withdraw the appeal
interposed by them; while appellant Agustin Miano had
since gone to the Great Beyond. Considering these circumstances, therefore, this
Court has decided to affirm, as it does hereby, affirm the sentence appealed
from, with respect to Francisco Evaristo and Pedro
Cardeño, with proportional costs; and dismiss the
case, with cost de officio,
with respect to Agustin Miano.

Bengzon, C. J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon,
J.P. and Zaldivar, JJ., concur.