THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. LAZARO ALBAR, DEFENDANT AND APPELLANT.

Lazaro Albar was, In the Court of First Instance of Camarines Sur,
convicted of homicide with the aggravating circumstance of nocturnity
and was sentenced to an indeterminate penalty of not less than ten (10)
years and one day of prision mayor and not more than seventeen (17) years, four (4) months and one day of reclusion temporal
with the accessory penalties provided by law, to indemnify the heirs of
the deceased Juan Valenzuela in the sum of P2,000 and to pay one-half
of the costs, Lazaro appealed the case to the Court of Appeals which
court after reviewing the record was of the opinion that the crime
committed by the appellant was that of murder qualified by treachery
with the aggravating circumstance of night time, and because of the
penalty imposable on such a grave offense, said Court of Appeals found
itself without jurisdiction to take cognizance of the ease and
certified it to this Court.

After a careful review of the record we find the following facts to
have been fully established. In and prior to the month of August,
1943, Juan Valenzuela was living in his house in barrio Sto, Niño,
Iriga, Camarines Sur, with his wife Luciana de la Cruz, a daughter
named Alfreda Valenzuela, a son named Cipriano Valenzuela and the
latter’s wife Milagros Albar, daughter of appellant Lazaro Albar. About
9 o’clock in the evening of August 5th of that year 1943, about ten
men, three of whom were armed with guns, among them the appellant
Lazaro and one supposed guerrilla lieutenant Resendo Romero, arrived at
the yard of Juan Valenzuela, Lazaro and Rosendo Romero called out the
greetings “good evening” to the inmates of the house. One of the women
folk Alfreda Valenzuela returned the greetings and then went to the
window to see who were the night visitors. She recognized the appellant
and saw that some of his companions were armed. Cipriano also peeped
thru the window, recognized the appellant, and seeing that some of
Lazaro’s companions were armed he was possessed with fear, returned to
his room and lay down face downward, Lieutenant Romero, inquired from
Alfreda if her father Juan was in. Although he was inside the house,
Alfreda not liking the look of things, and fearful for the safety of
her father, especially because of the presence of armed men among the
group, answered that her father was not at home. Lt. Romero, however,
who it seems had previously been assured by someone of the presence of
Juan Valenzuela in his house, told Alfreda that her father was there
and he ordered the inmates of the house to let or make him go down
because someone had something to talk about with him. Because the men
below observed no measures or steps taken by the inmates to comply with
the order, Rosendo followed by appellant Lazaro went up the stairs of
the house and tried to force his way in. He was however, blocked in his
efforts because Alfreda and her father Juan leaned against or pushed
against the door to prevent it from being pushed open from without.
In trying to force open the door, the same was momentarily opened a
little and thru the opening Alfreda could see and recognize Lieutenant
Romero with appellant standing behind him, presumably because of a
lighted lamp inside the house. Foiled in their attempt to enter the
house and gels Juan, after a while appellant Lazaro was heard by
Alfreda and her brother Cipriano to say or order in a loud voice: “If
he does not come out, shoot him inside the house.”

Acting upon this suggestion or order Lieutenant Romero descended
the stairs, walked to a corner of the house and then inserted the
barrel of his gun through a siding or wall of the house and,
presumably, aiming in the direction of the door, he fired twice. At the
second shot Juan Valenzuela crumpled to the floor dead or in a dying
condition because of a bullet wound in the back, the bullet finding an
exit in the right chest. The members of the family of Juan burst into
cries of sorrow and affliction over the death of Juan. Lieutenant
Romero again ascended the stairs, entered the door which by then was no
longer guarded or blocked and threatened the inmates of the house with
death if they did not stop crying out and creating a scandal.
Thereafter, Romero, the appellant, and their companions left. Juan was
buried the day following.

Appellant Lazaro and Rosendo Romero were originally jointly charged
with murder before the Justice of the Peace Court. Inasmuch as Romero
was still at large, he was dropped from the complaint, and criminal
proceedings were continued only against Lazaro, resulting in his
conviction.

The appellant interposed the defense of alibi, claiming
that in the afternoon of August 5, 1943, he was working at the sugar
mill of Juan Berina located in the barrio of San Luis, Polangui, Albay,
about fifteen kilometers from the barrio of Sto. Niño where the house
of .Juan Valenzuela was situated; that that afternoon a group of
guerrillas came to the mill and ordered him (Lazaro) to accompany them
to the house of Juan Valenzuela but he refused to go with them, saying
that he was very busy with Ms work; that although the guerrillas
punched, slapped and kicked him, he refused to comply with their order;
that all that night he was peacefully sleeping in the place of his
employer Juan Berina,

The lower court rightly refused to seriously consider, much less,
accept this defense of the appellant for several reasons, among them
that the appellant was a well-to-do farmer and could not, as he
claimed, have been working as a common laborer at the sugar mill of
Berina. The trial court also found material contradictions in the
testimony of appellant and those whom he introduced to support his
theory of alibi, aside from the inability of appellant to remember
dates and Incidents more recent than August 5, 1943, and of more
interest to him, this, apart from the positive identification made by
witnesses for the prosecution of the appellant having been present at
or around the house of the deceased that night in question.

The motive for the killing is clearly shown by the evidence. It
appears that long before August 5, 1943, Juan Valenzuela and the
appellant were not on speaking terms, this in spite of the fact that
Juan’s son, Cipriano was married to Lazaro’s daughter Milagros. Juan
and appellant Lazaro had previously bought a parcel of land jointly but
because of the refusal of one of them to divide the land, there
developed a serious trouble between them as to the joint cultivation
thereof and the partition of the products, the disagreement becoming so
grave that it almost ended in a mortal combat—the two men fighting each
other with bolos.

Another reason behind the misunderstanding or trouble between the
two men was that after the marriage of his daughter Milagros, appellant
Lazaro wanted the couple to live in his house and help him cultivate
his extensive landed properties but because Cipriano Valenzuela was an
only son and a minor at that, his father insisted that Cipriano and his
wife Milagros live with him (Juan), which they did. This further
aroused the ire of the appellant. Then, about the year 1942, appellant
Lazaro who seems to have been in the good graces of the guerrillas,
principally those headed by Felix Sabinorio called as the “Sabinorio
Group,” because he had been giving money for their support, accompanied
some guerrillas to the house of Juan and had the latter and his son
Cipriano arrested and tied up, taken to his house and there tied to a
post while the guerrillas ate their meal. From there, father and son
were taken to the guerrilla camp at Maligbog mountain where they were
kept for about six days and were released only after the wife and
daughter of Juan Valenzuela had paid P50 to Sabinorio, At one time
appellant was heard to have made the remark or threat: “that he would
not stop in his efforts to take revenge on Juan until the latter was
dead.”

To show the spirit of revenge or persecution that animated the
appellant where the family of the deceased was concerned, it was also
established by the testimony of Alfreda Valenzuela that not long after
the killing, he the defendant had Alfreda arrested by the guerrillas
and taken to their camp where he tried to convince Guerrilla Captain
Asuc that her father was a Japanese spy, and he wanted her to subscribe
an affidavit to that effect. After due Investigation, Captain Asuc
found the charge baseless and untrue, released Alfreda and in turn
sternly reprehended the appellant and warned him not to make any more
false charges.

We entertain no doubt whatsoever about the presence of the
appellant at or near the house of the deceased that night of August 5,
1943. He was clearly identified by Alfreda and Cipriano who upon
hearing the evening greetings when the group arrived at their yard,
went to the window and looked down to see. Alfreda again saw him
through the door as it was forced partly open by Lieutenant Romero, and
when Lazaro gave the order to Lt. Romero to shoot Juan Valenzuela in
his house if he did not come out, his voice was recognized by Alfreda
and by Cipriano, his son-in-law. Finally, Ciriaco Praxedes who was with
the group that evening, identified the appellant. According to this
witness, about 9 o1clock that evening Lieutenant Romero and the
appellant and several other men passed by the road where he (Ciriaco),
Melecio Valenzuela, and Jose Aguila were chatting; that Romero took
Jose Aguila to one side and conversed with him, and that thereafter
Romero ordered Ciriaco, Melecio and Jose Aguila to follow them which
they did; that once in the yard of Juan Valenzuela, Ciriaco Praxedes
saw the appellant go up the stairs of the house behind Lieutenant
Romero and later heard him give the order to shoot Juan Valenzuela if
he did not come out.

The appellant is clearly guilty as principal. Whether we consider
him as having conspired with Lt, Romero to apprehend or kill Juan
Valenzuela that night as shown by their act of going together to the
house of the deceased and ordering him to come down and upon his
refusal their trying to force their way in and when prevented, the
shooting of the victim following the order of the appellant, or whether
the appellant be regarded as principal by induction because he induced
and ordered the actual killer to shoot the victim, the responsibility
of the appellant for the death of Juan Valenzuela is clear.

We are convinced that the qualifying circumstance of treachery
attended the killing. At the time he was shot the deceased was leaning
or pushing against his door to prevent Romero and the appellant from
entering the house. He evidently did not know or expect that Romero
would stealthily go down the stairs and fire at him from behind. This
case is similar to the shooting in the case of U. S. vs.
Baluyot, (40 Phil. 385), where the victim after being fired at twice,
fled and took refuge in a closet whose door he closed and leaned
against in order to prevent the entrance of his assailant and pursuer
who tried to open said door. In the meantime, he shouted for help. The
assailant judging the position of his victim’s head from the direction
of the voice and shout for help, fired his revolver in said direction
and hit the victim in the head, killing him. This Court declared in
that case that the attack was treacherous. (See also People vs. Bautiista, 45 Off. Gaz., 2084.)^[1]

We cannot agree with the trial court and the Court of Appeals that
the aggravating circumstance of accturnity should be considered in this
case for the reason that said circumstance is generally included in and
absorbed by treachery (alevosia). There is however, the aggravating
circumstance of dwelling. Although the attack was made not from inside
the house but from below It, nevertheless, this aggravating
circumstance may be considered as attending the shooting. (People vs. Bautista, supra.)

The penalty for murder is reclusion temporal to death. Because of
the presence of the aggravating circumstance of dwelling, the penalty
may well be imposed in its maximum degree, namely death. However, for
lack of votes necessary to impose said penalty, the same is hereby
commuted to reclusion perpetua. Furthermore, the amount of
indemnity to be paid to the heirs of the deceased is hereby increased
to six thousand pesos (P6,000). With these modifications, the decision
of the trial court is affirmed, with costs.

Moran, C. J., Ozaeta, Pablo, Bengzon, Padilla, Tuason, Reyes, and Torres, JJ., concur.

Paras and Feria, JJ., no part.

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^[1] 79 Phil., p. 842.