G.R. Nos. L-22130-L-22132. April 25, 1968
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF?APPELLEE, VS. PEDRITO (PIDDY) WONG, ET AL., DEFENDANTS?APPELLANTS.
ANGELES, J.:
On October 12, 1961,
a shooting incident occurred at the market place of Tubigon,
Bohol. Shortly after the
occurrence of said incident, five criminal informations
were filed in the Court of First Instance of that province.
In Criminal Case No. 3361, Pedrito (Piddy) Wong, Vicente Montoya, Julian (Ejac)
Binasbas, Crisostomo (Mongmong) Vedra and Rolando (Boy)
Montoya were charged with the crime of murder allegedly committed on the person
of Jacinto Carmona.
In Criminal Case No. 3372, Rolando Montoya was charged with
attempted homicide, committed according to the information on the person of Elpidio Anova.
In Criminal Case No. 3373, all the five defendants (in case No.
3361) were charged with the crime of frustrated murder, committed as alleged in
the information on the person of Teodula Lopez.
In Criminal Case No. 3374, Rolando Montoya was charged with
illegal possession of firearms.
And in Criminal Case No. 3375, Pedrito
Wong, Vicente Montoya and Crisostomo Vedra were accused of attempted murder with direct assault
upon an agent of a person in authority, with Policarpo
Elle as the victim according to the information.
Julian Binasbas and Crisostomo
Vedra, being at large, were neither arraigned nor
tried.
After presentation of the prosecution evidence in chief, the
court dismissed the case of illegal possession of firearms for failure of the
prosecution to prove the same. The trial of the four other cases having been
concluded, decision was rendered by the court disposing as follows:
“PREMISES CONSIDERED, the court renders judgment in criminal
case No. 3361 finding accused Pedrito (Piddy) Wong, Vicente Montoya and Rolando Montoya alias Boy
guilty of the crime of murder, punished by Article 248, par. 1 of the Revised
Penal Code, without the attendance of any aggravating or mitigating
circumstance, and each of them is hereby sentenced to suffer the penalty of reclusion
perpetua.
“The above mentioned accused are further sentenced to
indemnify jointly and severally the heirs of the deceased in the amount of six
thousand pesos (P6,000.00); but they shall not suffer
subsidiary imprisonment in case of insolvency.
They are finally sentenced to pay three-fifth (3/5) of the costs.
“THE COURT RENDERS JUDGMENT IN CRIMINAL CASE No. 3373 finding
accused Pedrito (Piddy)
Wong, Vicente Montoya and Rolando Montoya guilty of the crime of less serious
physical injuries, punished by Article 265 of the Revised Penal Code, with the
aggravating circumstance of treachery, and sentencing each of them to suffer
the penalty of six (6) months of arresto
mayor, and to pay three-fifths (3/5) of the costs.
“The court refrains from making any pronouncement as to the
civil liability of the three accused, since the offended party had reserved the
right to institute a separate civil action for damages.
“Pursuant to Article 70 of the Revised Penal Code, the court
orders that the three accused shall begin to serve the penalty imposed herein
after they have fully served the penalty imposed upon them in criminal case
No. 3361.
“THE COURT ALSO RENDERS JUDGMENT IN CRIMINAL CASE No. 3372
finding accused Rolando Montoya alias Boy guilty of the crime of slight
physical injuries, punished by Article 266 of the Revised Penal Code, and
sentencing him to suffer a penalty of ten (10) days of arresto
menor, and to pay the costs.
“The court refrains from making any pronouncement as regards
the civil liability of the accused, because the offended party had reserved
the right to institute a separate civil action for damages.
“Pursuant to Article 70 of the Revised Penal Code, accused
Rolando Montoya shall begin to serve the penalty imposed herein after he has
completed serving the penalty imposed in criminal case No. 3373.
“FINALLY, THE COURT RENDERS JUDGMENT IN CRIMINAL.
CASE No. 3375 acquitting accused from the crime charged in the information
with costs de oficio, and cancellation
of their bail bonds.”
Dissatisfied with the judgment, the three accused who stood
trial, appealed to this Court.
EVIDENCE OF THE PROSECUTION:
A number of witnesses were presented by the prosecution but only
two of them claim to have witnessed the incident.
Teodula Lopez testified that on October 12, 1961, at about 5:00 o’clock in the afternoon, while she was
conversing with Romeo Cosare and Gregoria
Andaman at the gate of the public market of Tubigon,
a jeep suddenly parked in front of Cosare store. As soon as the jeep stopped, Vicente
Montoya, Pedrito Wong, Mongmong
Vedra, Rolando (Boy) Montoya and Julian Binasbas fired their guns. (tsn p. 64, Oct.
25, 1961). The shots were
directed at the deceased Jacinto Carmona, who was 4
or 5 meters away from her. The deceased
was seated on a bamboo bench called “lantay“. The shots hit Jacinto Carmona
and herself. She was hit on the right jaw
and lower right cheek. (p. 65, Ibid.) After the shooting, the jeep sped away. But one of the men in the jeep, Boy Montoya,
jumped out. Another man grappled with
Boy for the possession of a pistol. She
did not come to know the result of the grappling because she was brought inside
a tailoring shop where she was given a first aid treatment. Later, she was taken to the clinic of Dr.
Falcon where she stayed for one night and a half day. Then, she was transferred to the Bohol Provincial
Hospital where she has been
confined for two weeks.
Elpidio Anova
testified that on October 12, 1961,
at about 5:00 o’clock in the
afternoon, he was in front of the Tubigon market,
seated on a tartanilla. He saw a jeep running towards the place where
the deceased Jacinto Carmona was seated, which was
about three brazas distant to the store of Cosare. The deceased
was seated on a bench called “lantay“,
about 2 feet high from the ground, drinking beer. Inside the jeep were the five
accused. Seeing that the occupants of
the jeep were armed
and knowing that Vicente Montoya and the deceased quarrelled the day
before, “I shouted at Jacinto (Carmona) to
be careful.” (tsn p.
187) The persons riding in the jeep fired their guns as soon as the jeep
stopped.
After the shooting, as the jeep started to run, Rolando Montoya
jumped off the vehicle and went after the deceased who was crawling towards a
store. Rolando fired again at the
deceased, although Anova cannot tell whether the
deceased was hit. He (witness) jumped
from the tartanilla and grappled with Rolando
for the possession of a .45 caliber pistol the latter was then holding. Before he could grab the pistol, Rolando hit
him on the head with the butt of the gun and he was wounded. After he had
grabbed the pistol, Rolando ran to the store of Sosing
Wong, father of appellant Pedrito Wong. Said store was about 15 brazas
distant to the place where the shooting incident happened. He pursued Rolando in the store, but the
latter threw a bottle at him, injuring him at the wrist. Wounded, he ran to the municipal building to
surrender the gun to the police. The
next day, he was treated of his injuries at the Bohol Provincial
Hospital.
Policemen of Tubigon claim to have seen
the accused with the exception of Rolando Montoya proceeding in a jeep to Tagbilaran after shots were heard near the market place at Tubigon. Pat. Policarpo Elle went
as far as to say that when he met the jeep of the accused, on his way to the Cosare store, Pedrito Wong and
Vicente Montoya fired at him with their rifles.
He sought shelter behind Bohol
transit Bus No. 104 and it was the mudguard of said bus that was hit. This claim, however, did not impress the
trial court. The court acquitted the
accused in criminal case No. 3375 upon the following considerations:
“With respect to the case of the alleged offended party Policarpo Elle in criminal case No. 3375, we seriously
entertain doubt regarding the facts established by the prosecution. In the first place, only Policarpo
Elle had declared about the fact that he was fired at by the accused. His testimony had been contradicted by the
accused and other witnesses for the defense.
“It is hinted that the hole on the front side of the truck, as
it appears on the pictures (Exhibits L and M) came from the bullet fired by
accused. Defense, however, offered the
testimony of the owner of the truck to the effect that such hole was caused by
a person who was drunk and who struck with a piece of iron that front part of
the truck. The prosecution failed to
prove that the bullet causing the alleged hole on the fender had also hit the
interior thereof, thus raising doubt as to whether or not the hole was in reality caused by a bullet coming from the jeep
used by accused.” (p. XLIX, appellants’ brief)
Dr. Godofredo Ganade,
junior resident physician at the Bohol
Provincial Hospital
testified that at around 7:00 p.m. on
October 12, 1961, the
deceased Jacinto Carmona was admitted at the
aforesaid hospital. An operation was
commenced, but when the surgeons were opening the abdomen, the patient vomitted blood which choked him. Death occurred one and a half hour after
admission.
Sgt. Pacomo Galve
of the Philippine Constabulary testified that at about 7:00 o’clock in the
evening of October 11, 1961, Vicente Montoya, accompanied by Atty. Zafra and three others, came to camp Dagohoy
at Tagbilaran to complain that he was mauled by the
deceased Ja cinto Carmona and the latter’s companions at about 1:00 o’clock
in the afternoon of that day at the market place in Tubigon. An affidavit of Vicente Montoya was prepared,
but the same was not signed.
“Q.- And
this Exh. B does not contain any signature, can you
explain why?
A.- That was not signed because when I made that,
Vicente Montoya promised that he would sign it at 8:00
O’clock in the morning in the following day when he would come back
or if not, he said, we will meet in the office of the clerk of court. The following day, he did not come, so I went
to the office of the clerk of court but he did not come also.” (p. 51, tsn. Oct. 25, 1961.)
However, Sgt. Zenon Sarmiento,
also of the PC, testified that in the morning of October 12, 1961, Pedrito
Wong, Vicente Montoya and Mongmong Vedra came to Camp
Dagohoy. Pedrito Wong
declared that he saw the mauling of Vicente Montoya the day before. He reduced the statement of Wong in writing,
Exhibit H, but the same was not signed.
EVIDENCE OF THE DEFENSE:
The evidence for the defense tended to establish that the
deceased Jacinto Carmona was of a violent character,
and that he was shot by Rolando Montoya in defense of his brother, Vicente
Montoya.
Vicente Montoya testified that in the elections of 1961, he sided
with congressional,candidate
Jose Zafra while Jacinto Carmona
supported Bartolome Cabangbang. In the afternoon of October 11, 1961, Carmona
asked Vicente to side with Cabangbang. When he refused, the deceased clubbed him on
the head with an empty bottle. Carmona’s companions, Diego, Francing
and Elpidio Anova were then
present. Vicente lost consciousness. Upon regaining consciousness, Vicente
noticed that he was surrounded by the deceased and his companions. The chief of police of Tubigon
took Vicente to the clinic of Dr. Falcon for treatment.
Late in the afternoon of that date, candidate Zafra
fetched Vicente from his house and took him to the PC barracks at Tagbilaran. He
failed to sign the affidavit because Zafra told him
not to sign until he (Zafra)
had returned, and Zafra did not come back the
following morning. The following
morning, Vicente and Piddy Wong returned to the PC
headquarters. The affidavit of Wong was
prepared. Lt. Lara of the PC told them
to come back in the afternoon, but Vicente answered that they could not come
back because Zafra instructed them to proceed that
afternoon to barrio Tugois in the town of Lila,
around 19 to 20 kilometers distant from Tagbilaran,
to campaign.
In the afternoon of October
12, 1961, Vicente, Pedrito Wong, Mongmong Vedra and Herminiano Salera went to Tigois, arriving thereat at 1:00
o’clock. When they arrived, Zafra had already left for the town of Butuan, leaving a note that
Vicente and his companions should not follow to Batuan
but must return to Tubigon. Hence, the group of Vicente went to Tubigon in the house of Atty. Salustiano
Baura, which served as the campaign headquarters of Zafra. After about
one-half hour, Pedrito Wong extended an invitation
for snacks at their store near the market place of Tubigon. Vicente Montoya and Mongmong
Vedra went with Wong, and they were joined by Rolando
Montoya, younger brother of Vicente, and Julian Binasbas
who were at the headquarters at the time.
Reaching the market of Tubigon, the
accused parked their jeep in front of one of the block tiendas,
the Panyang store.
Opposite the said store, was the store of Sosing
Wong, father of Pedrito Wong. Next to the Panyang
store on the same side of the street was the Cosare
store. As soon as the accused had all
alighted from the jeep, Vicente noticed the presence of Jacinto Carmona. The
deceased was standing with left foot on top of a bamboo bench outside the Cosare store. Aiming
a pistol at Vicente Montoya, the deceased remarked: “You are here again, ha? You are not
afraid of what happened yesterday?” (p. 148, tsn,
Oct. 18, 1962) Vicente Montoya answered:
“I even went to the PC headquarters to report the incident between
us.” (p. 149, tsn, Ibid)
“Q.- Again, in answer to the question of the Hon.
Fiscal, you said that even after Jacinto Carmona had
pointed his gunto you telling you that you still have
come back despite the incident of the day before, what was your purpose in
telling him that the day before you even went to the PC to complain about that
incident?
A.- I told him that fact so that he will not shoot
me.
x x x x x
Q.- What made
you believe that your telling him that you went to the PC the day before would
prevent him from shooting you?
A.- Because we would be investigated by the PC.
x x x x x
Q.- What do
you want us to understand by that statement that it will be investigated or
settled?
A.- With that word I mean to say that the PC
officers would call us and would ask each of us what were our gripes.” (tsn. pp. 174-177, Oct. 18, 1962)
But the answer of Vicente did not produce the desired
effect. Carmona
retorted: “So you went to the PC
because you want this case to be serious?” He cocked his pistol and
said: “It is better to finish you
now.” (tsn. p. 150
Ibid.)
Rolando Montoya testified that as they were leaving the house of
Salustiano Baura, Crisostomo Vedra, driver of the
jeep, handed a pistol to him saying:
“Boy, take hold of my pistol because it is bulging in my pocket.”
(tsn. p. 350, Oct. 19, 1962) As he received the
pistol, he was told: “You better
take good care of it because it is already loaded and it is ready to
fire.” (tsn. p. 351,
Ibid.) He held the gun in his right
hand. Sensing near the Cosare store that the life of his elder brother was in
peril, he fired at Jacinto Carmona with the pistol
entrusted to him by Vedra. The first shot found its mark at the left
thigh of the deceased. Carmona whirled to the left
but held his pistol still, so he fired a second shot at him hitting him on the
right side. The deceased held on to his gun, so he shot him again.
“Q.- When
you fired the third shot what was his position
A.- His back turned to me.
Q.- Why did
you still fire at him in that position?
A.- Because he was still holding his pistol.
Q.- So what if
he was still holding his pistol?
A.- Because I believe that while he was still alive
he would retaliate and he would kill us and that is why I killed him.”
(TSN, p. 359, Ibid)
After being hit by the third shot, the deceased fell on his head,
bumping against a pile of Pepsi-Cola bottles and then against the
pavement. Because the companions of Carmona were coming, he shouted to his brother: “Noy, you run
because they are many.” He ran
towards the store of Pedrito Wong, while the four
other accused drove off in the jeep to the direction of Tagbilaran. As Rolando Montoya was running to the store
of Wong, Elpidio Anova pursued
him with a long dagger in hand. He fired
at Anova but the pistol jammed. Anova overtook him
and stabbed him on the wrist. The pistol
he was holding dropped to the ground. Anova picked up the gun and chased Rolando to the
store. Inside the store, Rolando sought
shelter behind he ice-box where there was a pile of beer bottles. He threw bottles at Anova
hitting him on the forehead. Anova ran outside the store towards the body of Carmona. He picked
up the pistol of Carmona and went to the municipal
building.
Pedrito Wong corroborated the
testimonies of his brothers-in-law, the Montoya brothers, in their material
details. Cresencio
Ybañez testified to corroborate the claim that
Jacinto Carmona aimed a pistol at Vicente
Montoya. Guillermo Coscos
corroborated the claim that Anova pursued Rolando
Montoya to the store of Wong. Timoteo Pilagre tried to corroborate the account of the incident
made by Rolando and Vicente from the time Carmona
aimed a pistol at Vicente until the deceased was felled by the gun of Rolando.
The defense also tried to prove that Jacinto Carmona
was a heavy drinker of tuba and liquor.
Once, in the town of Clarin,
he asked for liquor money. He was given
P10.00, but in spite of this, he stabbed the giver when he became drunk. He was trigger-happy and a tough guy. On another occasion one from Calape was selling cooked meat in Tubigon. Carmona and his
gang ate all the meat. When the seller
demanded payment, Carmona struck him with a Coca-Cola
bottle on the head.
A decision of the Court of First Instance of Cebu
was presented by the defense wherein it was found that in the evening of March 10, 1959, or more than two
years before the incident at bar occurred, Jacinto Carmona
shot to death and with much ceremony, a 17-year old shine-boy in the vicinity
of Freedom Park,
Cebu City.
(Exhibit 2) Likewise presented is a certification by the clerk of court of the
City Court of Cebu showing that the deceased was
charged with offenses, such as less serious physical injuries, slight physical
injuries, malicious mischief, public disturbance, resistance and disobedience
to an agent of a person in authority, and estafa. (Exhibit 3)
Appellants raise the following errors in their brief:
1. The court below erred in holding that a
conspiracy existed among appellants to kill the deceased Jacinto Carmona.
2. The court erred in giving credence to the
testimonial evidence of the prosecution and accepting it over that of the
defense.
3. The court erred in not considering that the
entrance wounds indicated in Exhibits A and A-2 are actually the exit wounds in
view of testimonial and other evidence for the prosecution and of natural and
physical laws.
4. The court erred in holding that the crime of
murder was committed in the shooting of Jacinto Carmona.
5. The court erred in finding that the appellants
are guilty beyond reasonable doubt of murder for the death of Jacinto Carmona and in not acquitting the appellants.
6. The court erred in not acquitting Rolando
Montoya for the injury of Elpidio Anova
and all the appellant for the injuries of Teodula Lopez.
1. – The first vital question to be resolved is which of the two
opposing versions of the incident should merit credence. On the basis of the testimonies of the prosecution
witnesses Teodula Lopez and Elpidio
Anova, the court a quo held all the
three appellants guilty of murder for the death of Jacinto Carmona
and of physical injuries for the wounds sustained by Teodula
Lopez. At this instance, the appellants
assail the testimonies of said witnesses.
It being an established principle in criminal cases
that the prosecution must rely on the strength of its own evidence and not on
the weakness of the proof of the defense, it behooves – this Court to
re-examine the testimonies of the prosecution witnesses.
Teodula Lopez started with the
declaration that a single person fired his gun.
“Q.- When that jeep stopped, what did
you observe?
A.- Somebody
fired his gun. (TSN, p. 64, Oct. 25, 1961)
But when the promotor fiscal,
in the next question, asked her who “were the ones” who fired the
gun, the witness responded by naming all the five accused.
“Q.- Who were the ones who fired the
gum, do you know? Will you please mention their names?
A.- Vicente
Montoya, Pedrito Wong, Mongmong
Vedra, Rolando Montoya and Julian Binasbas.(TSN,
p. 64, Ibid)
After a few questions, Teodula Lopez
toned down her testimony by saying that all the accused were armed.
“Q.- Why did you say that they were
armed?
A.- Why should
I not say when the arms were pointed at us.
Q.- Who were
the ones who were pointing it then?
A.- All of
them. (TSN, p. 67-68,Ibid)
Before the start of the
cross-examination, the court propounded questions to the witness. She reverted to the former position that all
the five accused fired their guns.
“Q.- You said the five accused had
fired their guns?
A.- Yes.
Q.- Did you
actually see when they fired their guns?
A.- Yes,
because I was facing at them. (TSN, p. 71, Ibid)
The court was skeptical:
“Q.- Were you not telling a lie when
you said that the five of them had fired their guns?
A.- I am
telling the truth. (TSN, pp. 70-71,
Ibid)
Witness was reminded of her moral
responsibility as a witness, but she stucked to her
claim that all the five accused discharged their firearms.
“Q.- Are
you conscious of the fact that your testimony is very serious, and the crime
here is very serious that the accused might be sentenced to death once
convicted, therefore, you must be honest in your testimony?
COURT: (After translating
his warning into the Visayan dialect)
“Q.- After
hearing my warning, the warning that the court has translated to the Visayan dialect couching you of your responsibility before
God, do you insist that you actually saw the five accused discharge their
firearms?
A.- Yes, I
insist. (TSN. p. 71 (Ibid)
She then proceeded to describe the
participation of each of the accused, upon questions propounded by the court.
“Q. – Who was the first person who fired his
gun?
A.- I did not
notice which one was fired first but the firing was simultaneous.
Q.- What was
the gun used by Pedrito Wong?
A.- I did not
recognize the gun used but the length is as long as this (witness demonstrating
a length of about 14 inches)
Q.- Did you
actually see the gun?
A.- Yes.
Q.- Did you
see the bullet coming the muscle (sic) of the gun?
A.- I did not
see but I heard only the gun report and at that moment I was hit here (witness
pointing at her cheek (sic) and jaw.
Q.- Where was Pedrito Wong when he discharged the gun at the front, in
the front or at the back seat?
A.- In the
front seat.
Q.- Did you
see Vicente Montoya actually fired (sic) his gun?
A.- Yes.
Q.- What kind
of gun was he using?
A.- The same
as with the one Piddy Wong was using.
Q.- Did you
actual see the gun?
A.- Vas.
Q.- How about
Julian Binasbas, did you see the gun used?
A.- No.
Q.- Why did
you say that he fired his gun?
A.- The five
of them fired their guns but I did not see the kind of gun Julian was using.
Q.- Did you
see Mongmong Vedra fired
(sic) a gun?
A.- Yes.
Q.- What kind
of a gun?
A.- A short
gun.
Q.- How short
was it?
A.- It was
like a revolver.
Q.- Did you
see Rolando Montoya fired (sic) a gun?
A.- Yes.
Q.- What kind
of gun?
A.- The same
as a revolver.” (pp. 71-73, Ibid)
After the series of questions by the
court, the session was adjourned. At the
resumption of the hearing the next day, the fiscal asked leave to propound
additional questions. The witness
switched to the claim that only Vicente Montoya and Pedrito
Wong aimed their firearms.
“Q.- Yesterday when you were testifying you testified that the
persons who were in the jeep, as well as about the person who fired at you, who
aimed their rifles or firearms at you, inasmuch as your testimony in as far as
this representation is concerned, seems to be somehow vague on that point. Will
you please illustrate to the Hon. Court
exactly who actually you saw the persons aiming the firearms at you in that
afternoon?
A.- Vicente
and Pidding Wong.
x x x x
Q.- How about
the other persons that you have mentioned who were inside the Jeep, what were
they doing at the precise time that they were aiming their firearms at you?
A.- They were
also holding their firearms.
Q.- Who were
holding their firearms, will you please mention them?
A.- Julian Binasbas, Mongmong Vedra and Boy Montoya.
(TSN, p. 81, Oct. 26, 1961)
Q.- Did you
actually see the persons who actually aimed their firearms at Jacinto Carmona?
A.- Yes, sir,
Vicente and Pidding Wong.
x
x
x x
Q.- Do you mean
to say that they pointed also differently their firearms at you or they pointed
at another occasion their firearms at Jacinto Carmona?
A.- Only
Jacinto Carmona was pointed to but the guns seems
to be pointed toward me.
Q.- What did
(you mean), therefore, by your testimony yesterday, when you said all the five
persons fired at you, will you please explain to the Court?
A.- When Pidding Wong and Vicente Montoya fired their guns, the
other three persons were holding their guns so that it seems that all of them fired their guns. (TSN. pp. 82-83, Ibid)
On cross-examination, the witness declared that as soon as the
jeep stopped, she heard gun reports and saw Vicente Montoya and Pedrito Wong pointing their guns at Jacinto Carmona and herself.
“Q.- When you saw the jeep parked at
point 3 of Exhibit D the five persons, according to you inside the jeep,
immediately fired their guns, is that true?
A.- When the
jeep stopped, I heard several gun reports and at that moment, I saw Piddy Wong and Vicente Montoya pointing their guns to us.
x x x x
Q.- When you
heard the shots and you saw Vicente Montoya and Piddy
Wong firing their guns they were still in the jeep, is that true?
A.- Yes, sir.
Q.- You did
not see Julian Binasbas, Mongmong
Vedra and Boy Montoya firing their guns?
A.- I did not
see them pointing their guns to us. (pp.
93-94, Ibid)
Q.- When you
saw, according to you, Vicente Montoya and Piddy Wong
fired their guns, were they in standing position?
A.-
They were about to stand when they fired their guns. It seems they were not exactly seated, they
were standing and in the action of firing.”
(p. 111, Ibid)
On re-direct examination, Teodula Lopez
declared that Vicente Montoya held the gun with both hands and the color
of the gun was tan, darker than the table in the courtroom.
“Q.- How many hands of Vicente Montoya
were holding the firearm when you saw that he was aiming?
A.- Two hands.
(p. 115, Ibid)
Q.- As
compared to this piece of wood here in front of you, which was darker, the
firearm held by Vicente Montoya or this?
(Fiscal pointing the top of the table in front of the witness)
A.- The gun of
Vicente Montoya is darker.
Q.- Slightly
darker or very much darker compared to this?
A.- I cannot
define clearly but it is not the same color of this piece of wood (witness
pointing the table of the Court).
FISCAL JESUS N. BORROMEO:
“I wish to make of record that the table in front of this
witness is painted tan.” (pp. 116-117, Ibid)
The foregoing shows up Teodula Lopez as
a vacillating witness, who would change her testimony as a chameleon would
vary its hues. Her tendency to
exaggerate is patent, and she has very little respect for her oath as a
witness. Thus, from the claim that a
single person fired a gun, her testimony soon metamorphosed into the pretense
that all the five accused discharged their firearms. No sooner had she made this pretense then she
switched to the claim that the five accused were only “armed”. After a few questions, however, she reverted
to the claim that all the five accused fired their guns, only to change her
stand the next day by saying that only Vicente Montoya and Pedrito
Wong fired their guns. Even as to the
participation of the two accused, she is not certain whether they fired their
guns or merely aimed them. To Teodula Lopez, mere impressions are facts. Simply because gun reports were heard, and
the accused, according to her, were armed, she
concluded that all the five accused fired their guns. The witness! propensity
for falsehood is also evident. At one
time, she admitted that she did not see Julian Binasbas
holding a gun; in a later stage of her testimony, she contradicted herself and
said that Julian had a gun. She pretends
to know the color of the gun of Vicente Montoya, but more noticeable objects
that would immediately arrest the attention of even a casual observer, such as
the windshield of the jeep, escaped her notice.
“Q.- Did you notice that the jeep had
windshield?
A.- I do not
remember.
Q.- At the
side of the jeep, aside from the windshield, near the windshield, was there
glass or were there glasses on both side?
A.- I do not
remember.” (p. 111, Ibid)
The truth is that, at the first burst of gunfire, Teodula Lopez was hit as she herself admitted. (pp. 71-72, tsn. supra.)
And she was brought up by her companions to the nearby Esquire
Tailoring Shop where she was employed. (pp. 74-75, tsn. Ibid) Under the
circumstances, the opportunity for a detailed observation did not present
itself to the witness as borne out by her mercurial testimonies, and when she
claimed, as she did at the trial, that she observed even the minutest of
details, Lopez only exposed herself as an unreliable witness.
Elpidio Anova
began with the claim that all the riders in the jeep fired at Jacinto Carmona.
“Q.- Did you recognize the faces of
the persons who were inside that jeep?
A.- Yes, sir.
Q.- Will you
please point to them if they are here in Court?
A.- That one Piddy Wong Vicente Montoya, Boy Montoya, x x x.
Q.- Were they
the only persons there in that jeep?
A.- They were
five.
Q.- What did
these persons do when the jeep stopped or went near Jacinto Carmona?
A.- They fired
their guns toward Jacinto Carmona.” (pp. 174-175, tsn. Oct. 26, 1961)
Asked to specify, he could name only
three:
“Q.- Who of them specifically did you
see pointing firearms at Jacinto Carmona?
A.- Piddy Wong, Vicente Montoya and Boy Montoya.” (p. 175,
Ibid)
But he maintained that all five were
armed, thus –
“Q.- With respect to those persons on
the jeep, whom did you see with firearms clearly?
A.- The five
of them.
Q.- How was Mongmpng Vedra, for example, the driver, where did you see the
firearm of Mong?mong Vedra?
A.- In his
right hand.
Q.- What
firearm?
A.- A .45
caliber pistol.
Q.- How about
this Piddy Wong, what firearm was he carrying?
A.- He had a
Thompson gun.
Q.- How about
the other persons sitting on the front seat.
How about Vicente Montoya, what was he carrying?
A.- A pistol,
.45 caliber.
Q.- How about
that Eyac, what was he carrying?
A.- Carbine.
Q.- How about
Boy Montoya?
A.- .45
caliber pistol.” (pp. 183-184, Ibid)
Then, he was confronted with his
affidavit, Exh. G, wherein he
stated that “Vicente Montoya, holding a .45 caliber revolver, aimed at Cinto Carmona.” And
he was asked in court to point to the person of Vicente Montoya. The accused he fingered, however, was
Rolando Montoya.
“Q.- At the time when you executed
this statement in the hospital, will you please point to the person if he is in
Court, whom you refer to as Vicente Montoya, or whom did you mean by Vicente
Montoya?
A.- I refer to
that person (witness pointing to accused Rolando Montoya alias Boy.” (p.
118 Ibid)
In his affidavit, he also stated that
“Mongmong with a .45 caliber who was the one
driving, did not fire and one whom I do not know, was also holding a .45
caliber but did not also fire.” Asked in Court to point
to the other person who did not fire, Anova pointed
to Vicente Montoya.
“Q.- The person mentioned in your
affidavit whom you said there was someone whom you do not know who was holding
a .45 caliber who did not fire whom did you refer? If he is in Court, will you please point
where he is?
A.- That
Vicente Montoya (witness pointing to accused Vicente Montoya) [p. 189 Ibid]
The foregoing reveals that the same defects which taint the
testimony of Teodula Lopez vitiates
the testimony of Elpidio Anova. In the beginning, this witness tried to
impress the Court that all the accused fired their guns at the deceased. Later, he reduced the number of the
assailants to three, but he was careful to include appellant Vicente
Montoya. Confronted with a contradictory
statement in his affidavit, the witness relented and excluded Vicente Montoya
from amongst those who discharged their firearms. He tried to disguise the contradiction by
mistaking Rolando Montoya for Vicente Montoya.
But this appears to us as a mere pretext considering that this witness
knew the Montoyas and he could pinpoint Rolando
Montoya as the one who jumped from the jeep and with whom he grappled for the possession
of the .45 caliber pistol. The defense
has reason to complain in their brief that Elpidio Anova has an axe to grind against the appellants because he
was a henchman of the deceased Jacinto Carmona, not
to speak of the fact that in the encounter on October 12, 1961, he sustained injuries. It is patent that the purpose of the witness
in claiming that Vicente Montoya was the principal and moving spirit in the
slaying of the deceased, is to give some semblance of
truth to the theory of the prosecution that the shooting on October 12 was done
in retaliation of the maltreatment of Vicente Montoya, the day before. A rigid cross-examination exposed Elpidio Anova as an untrusthworthy witness, and we are not prepared to base the
factual setting of this case upon his narration of this incident.
Third, we seriously doubt if Elpidio Anova had not distorted the truefacts,
for pretending to have observed the incident even before the firing at Jacinto Carmona, yet there is in the record a categorical admission
of Anova that when he jumped from the tartanilla and approached Carmona,”the
shooting was finished already.” (tsn.
p. 196)
Vital contradictions are found in the testimonies of the two
prosecution witnesses who allegedly witnessed the occurrences. Upon an examination of their declarations,
independently of each other, substantial discrepancies are also revealed by a
comparison of their respective testimonies.
Thus, while the net result of the testimony of Teodula
Lopez is to the effect that Pedrito Wong and Vicente
Montoya were the only ones who fired at the deceased, Elpidio
Anova on the other hand, finally admitted that
Vicente Montoya did not discharge his firearm.
This leaves only one accused, Pedrito Wong, as
the supposed triggerman. But we are not
persuaded to believe that this accused is responsible for the death of the deceased. From the record, he has absolutely no reason
to lay his hands on the deceased. The
most logical assailant would either be Vicente Montoya or Rolando Montoya, who
are brothers, if we are to concede momentarily and for arguments sake that the
slaying was done in a spirit of vengeance for what Jacinto Carmona
had done to Vicente Montoya on October
11, 1961. Inasmuch as
prosecution witness Elpidio Anova,
however, admitted that Vicente Montoya did not fire his gun, only Rolando
Montoya remains as the triggerman. And
this is precisely the version of the defense, to wit: that only Rolando
Montoya fired at the deceased Jacinto Carmona.
Two vital facts weaken the theory of the prosecution that the
deceased was gunned down by the accused.
First, the incident was unexpected, as the evidence reveals. In the
words of the lower court which deserve our approval:
“If we took into account that accused were using a jeep of Jose
Zafra, candidate for Congressman, because their
mission was to make a campaign for the candidacy of the latter; if we took
further into account that the incident was rather unexpected, there would be
reason to say that the evident premeditation alleged in the information has not
been proved beyond reasonable doubt.” (p. XLV, Brief of Appellants)
Second, even the lower court doubted that all the accused were
armed. As stated in the decision
appealed from:
“There is also doubt as to whether or not the five accused,
who were riding on the jeep, were armed because while Teodula
Lopez asserted that the five accused pointed their guns at Jacinto Carmona, witness Elpidio Anova said that only accused Vicente Montoya, Pedrito (Piddy) Wong and Rolando
Montoya had pointed their guns at the deceased.
Moreover, it is beyond human comprehension why accused Crisostomo (Mongmong) Vedra should be using firearm, when his mission in the jeep
was to drive it. There is, therefore,
doubt as regard the fact that more than three persons were armed with unlicensed
firearms, although this might be possible.” (p. XLVI, Ibid)
Indeed, the mind inquires why, if the accused were really all
armed, supposedly with high-powered guns at that, they scampered towards the
jeep and sped away, leaving Rolando Montoya behind, at the mere warning that
the companions of Jacinto Carmona were coming. The more probable is that only Rolando
Montoya tarried behind because he alone was armed.
The claim of the defense that only Rolando Montoya fired the shots, is corroborated by the fact that the deceased
sustained no more than three gunshot wounds, as appears in the medical
certificate, Exhibit A.
It could well be that the gunshot wound sustained by Teodula Lopez, also came from the gun of Rolando Montoya,
for as this prosecution witness admitted, she was hit and wounded at the first
burst of gunfire.
2.- The next question that confronts the
Court is whether or not conspiracy among the accused existed. In holding the affirmative, the lower court
took into consideration three factors, namely:
that the accused, Vicente Montoya and Rolando Montoya are brothers and
the other accused, Pedrito Wong is their
brother-in-law; these accused made a common cause in retaliating against the
late Jacinto Carmona in consequence of the bloody
incident that have taken place on October 11, 1961, whence the victim was
Vicente Montoya; and that after Jacinto Carmona had
been hit by the bullets, accused Rolando Montoya still had the temerity of
approaching the victim and causing additional injuries on the head of the
latter, indicating that all the accused had the absolute determination of
snuffing out the life of the victim (p. XXXIX, Brief of the Appellants). We are unable to agree with the first and
second factors cited by the lower court in support of its finding of a
conspiracy. The finding of the lower
court itself that the incident was rather unexpected, which is borne out by the
evidence, immediately precludes the idea that the brothers Montoya and their
brother-in-law Wong, agreed or made a common cause to retaliate against the
deceased, Jacinto Carmona. As regards the third factor, we cannot see
our way clear through the reasoning that the act of one of the alleged
co-conspirators, after all his companions had left the scene of the crime,
could be considered as the act of said companions. Not even the presence of the appellants
Vicente Montoya and Pedrito Wong, while Rolando
Montoya was shooting the deceased, could be taken as evidence against the two appellants, that they conspired with their co-appellant in
committing the crime. There being no
evidence of a prior agreement to assault the deceased, those who were present
but who did not actually inflict injuries, cannot be considered as
co-conspirators.
“Although four persons were present when a fatal assault was
made upon another and each of the four contributed somewhat to the unlawful
aggression, nevertheless, in view of the fact that no prior conspiracy was
shown and the acts done did not clearly show community of purpose, it was held
that the individual who inflicted the fatal blow was alone responsible in the
character of principal.” (People v. Tumayao, et
al., 56, Phil. 587)
The principal element of every punishable
complicity in any crime consists in the concurrence of the will of the
co-conspirators with the direct author of the crime, pre-supposing the mediate
or immediate agreement of all to carry out the commission of an offense. Where such concurrence is lacking, as in the
case at bar, conspiracy cannot be said to have existed.
3.- It is agreed on behalf of the
appellants that even Rolando Montoya should be acquitted because in slaying the
deceased, he acted in defense of his brother. Settled is the rule that an
accused invoking self-defense or for that matter, defense of a relative, must
prove his case clearly and convincingly otherwise, conviction would follow from
his admission that he killed the victim.
We are not impressed by the claim that Rolando Montoya happened
to have a pistol on that fateful afternoon because Crisostomo
Vedra temporarily entrusted a gun to him. Assuming that Vedra
would be inconvenienced in his driving with a gun tucked in his waist, there
was the seat of the jeep beside him, if not a compartment in the vehicle, where
he could place his revolver. Our
disbelief is heightened by the claim that the gun entrusted to Rolando Montoya
was cocked and ready to fire.
Neither is it credible that the deceased although he had a gun, as
testified to by the witness for the defense, cocked his pistol before Rolando
Montoya started shooting. Considering,
according to the defense, that the deceased was trigger-happy and a man of
violence, Rolando Montoya would not emerge from the encounter unscatched, if the deceased and Rolando Montoya confronted
each other, face to face, and the former cocked his pistol. The fact is that the number and nature of
the injuries sustained by the deceased completely negates the claim of defense
of a relative.
Counsel for the appellants countered, however, that Rolando
Montoya did not act treacherously when he shot Jacinto Carmona. On this point, the evidence show that when
the jeep where the accused were riding, passed by the side of Elpidio Anova, the latter shouted
at Jacinto Carmona and warned of the presence of the
accused. There is evidence that for a short time, the deceased and Rolando
Montoya were face to face before the shooting occurred, as shown by the
testimony of Rolando Montoya that the first shot found its mark on the thigh of
the deceased, and when the latter turned to the left, presumably due to the
force of the impact of the bullet, the assailant fired the second shot hitting
the victim on the other side, which clearly show that the attack was not
treacherous because it gave the victim a chance to defend himself. The evidence
does not clearly show the presence of treachery in the commission of the
crime. In the process of the shooting of
Jacinto Carmona, Rolando Montoya inflicted injuries
on Teodula Lopez, albeit without the least
intent of killing. For all these
considerations, We find Rolando Montoya responsible
for the death of Jacinto Carmona, qualified as
homicide without the presence of any modifying circumstance, and for the physical
injuries suffered by Teodula Lopez.
4.- The case involving complainant Elpidio Anova, however, is
different. Said complainant claims that
before he succeeded in wresting the gun from Rolando Montoya, the latter shot
him three times without hitting him because he dodged. We reject this as incredibble .
The fact is that Elpidio Anova,
as soon as he noticed that his leader, Jacinto Carmona,
was felled by the bullets of Rolando Montoya, pursued the latter and wrestled
his gun. This was testified to by Rolando
Montoya, which testimony is corroborated by the declaration of Teodula Lopez. Anova was not content with wresting the gun from Rolando
Montoya, He pursued the latter to the store of Sosing
Wong, determined to kill him. Thus, he
declared:
“Q.- You followed Vicente Montoya
(actually he meant Rolando) to the house of Sosing
because you were determined to kill him is it not?
A.- Yes,
sir.” (pp. 201, 202, Oct. 26, 1961)
Under the circumstances, the infliction
of injuries upon him by Rolando Montoya was clearly done in self-defense.
WHEREFORE, the appealed judgment is modified as follows:
1. In Criminal Case No.
3361, accused Rolando Montoya is hereby found guilty of the crime of homicide
and sentenced to ten (10) years and one (1) day of prision
mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, to indemnify the heirs of the deceased in the sum of six thousand
pesos (P6,000. 00), without subsidiary imprisonment in case of insolvency, and
to pay one-fifth (1/5) of the costs.
Appellants Vicente Montoya and Pedrito Wong
are acquitted of the crime charged in this criminal case with costs de oficio.
2. In Criminal Case No.
3373, the accused Rolando Montoya is found guilty of the crime of less serious
physical injuries, without any modifying circumstance, and sentenced to four
(4)months of arresto mayor, and to pay
three-fifths (3/5) of the costs.
Appellants Vicente Montoya and Pedrito Woag are acquitted of the crime charged in this criminal
case.
3.- In
Criminal Case No. 3372, accused Rolando Montoya is acquitted of the crime
charged with costs de oficio.
As thus modified, the appealed judgment is affirmed in
other respects.
Reyes, J.B.L., (Acting C.J.), Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Ruiz Castro, and Fernando, JJ., concur.
Concepcion, C.J., on leave.