THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. DIEGO COLMAN, ET AL., DEFENDANTS AND APPLELLANTS.

The facts of these three cases, as narrated by the prosecution, are as
follows: Buenaventttra Ganzon had a ricemill the Municipality of Pototan,
Iloilo, and from 1949 to around December 15 or 20, 1951, he employed his neighbor
Diego Colman as a watchman in the mill, their houses being only 7 meters Impart
on the same side of San Jose Street close to where it intersects the railroad
track. On or about December 15 or 20, 1951, Diego Colman, sensing that he would
be dismissed, told his employer that he wanted to resign and so he returned the
to the ricemill. Diego felt his impending dismissal because his relation with
Buenaventura had deteriorated to such extent that he believed Ganzon wanted to
get rid of him. ion was informed that Diego Colman was not only “back-biting
him, but even wanted to rape one of his daughters. Ganzon had misunderstanding
with the other accused, Alfredo Pilota, put he knew the latter to be in the same
gang of Diego Colman.

On January 7, 1952. Ganzon employed a new watchman in his ricemill in the
person of Alfredo Cardinales. At about 7 o’clock in the evening of that day,
Rogelio Colman knocked at the door lot Ganzon’s house saying that he wanted to
see Alfredo Cardinales who was then staying there, and as Rogelio Colman
appeared to be nervous, Ganzon advised Alfredo Cardinales not to go out. After
30 minutes, however, another man, Cornelio Parreño, came and said that on orders
of Diego Colman he wanted to tell Alfredo Cardinales to go to Diego’s house.
Buenaventura Ganzon again counselled Alfredo not to go and he told Cornelio
Parreño to tell Diego to come to his house if he had some important matters to
take up with his watchman.

At about 8 o’clock, Buenaventura heard somebody shouting in the dialect that
may be Cardinales was placing so much reliance on Buenaventura Ganzon. Hearing
his name mentioned thus, Buenaventura told his watchman to follow him, and as
they went down the house, Buenaventura saw Diego Colman and Domingo Mainar
walking back and forth near his house and also Rogelio Colman who was creeping
along at the side of a sari-sari store, armed with a long bolo. Ganzon wanted to
ask Diego Colman why he made the remark that Alfredo is placing too much
reliance upon him, but just then, Diego Colman went to the sari-sari store and
called for his two sons Rogelio and Reynaldo. When Buenaventura Ganzon heard no
more talking, he went home. On his way he met Lisondato.

At about 10:15 p.m. Ganzon was already lying down but left on the lights in
his room. His wife with their two daughters slept on a bed. Ganzon, however,
sensed that something might happen. His wife also felt nervous, but he advised
her not to worry. Suddenly, Ganzon heard a rapid firing of shots directed the
place where the watchman was staying in his house, and then towards the room
where he and his family were lying down. Ganzon immediately rolled over with his
baby boy on the floor. His wife shouted that she was hit. Ganzon told her to lie
flat on the floor. Another rapid firing followed. This time Ganzon heard his
children crying that they were hit. Ganzon then carried his baby boy to the
kitchen and after surrounding the child with some protective covering, he went
back to the room for his wife and two children. He lifted his two daughters,
took the mattresses and trunks, and told them to lie down and pray. He then took
his flashlight and pistol and went down from the kitchen and watched cautiously
around. He saw Rogelio Colman crouching just below the side of their house. He
went to the railway track and saw and heard somebody calling for Diego. Flashing
his flashlight, he recognized the man to be Damaso Ferraris. Ganzon immediately
engaged him in a gun duel and luckily he hit him. He took the pistol of his
adversary and ran towards the house of Dr. Silva to get medical aid. On the way
he saw Diego Colman, whom he recognized very well by the light of the moon, and
he tried to intercept him. As he was approaching Diego Colman, some policemen
were also approaching Diego Colman, and the policeman got his pistol. Ganzon
went back to the doctor’s house telling him that his children were dying. When
Ganzon returned to his house, he gave aid to his children who were hit. He then
went to the house of the Governor to borrow his car, and with it, he brought his
wife and two children to St. Paul’s Hospital in Iloilo City. At about 2:30 the
next afternoon, Elizabeth, who was 51/2 years old, died. At about 5:00 o’clock
that same afternoon, Thelma, who was 7-1/2 years old, also died.

It also appears from the record that at about 8 o’clock in the evening of
January 7, 1952, when Domingo Mainar and his wife went out to the railway track
near the bridge for some personal necessity, Domingo saw Diego Colman conversing
with Cornelio Parreño. Domingo and his wife took different ways, and he saw his
wife talking to Diego Colman. Domingo found out later in the house that Diego
told his wife that he will kill him for being “rebelde”, as well as Ganzon’s
family. Upon reaching home, they prepared to go to bed with their small
children. Their son Antonio Mainar also lay down to sleep. However, Domingo sat
by the window and looked outside for what he feared might happen. He saw Rogelio
Colman walking by their house. He saw also the small children of Diego Colman
being brought down to the other side. He later saw Reynaldo with a bolo going
towards the house of Ganzon, below the window, looking around. At around 10:00
o’clock that night, he heard some people conversing at the railway track and
recognized the voices of Diego and Reynaldo Colman. Later on, his wife also saw
Diego Colman and Damaso Ferraris conversing near their house when the wife got
up to urinate. Diego was telling Damaso to be the one to open fire, but the
latter told the former to do so. Presently, Reynaldo Colman arrived and joined
them. He (Reynaldo) posted himself below the house of Ganzon, near the stairs,
while Damaso Ferraris went to the railway. Domingo Mainar later saw Rogelio
Colman going up to their house and as Rogelio went up, Diego fired shots at
Ganzon’s house. Rogelio also fired from his house. Later on Diego went back
towards the house of Mainar and fired at it twice one of which hit Antonio
Mainar. Domingo Mainar then went down to the parking lot and whistled for
policemen. Diego was soon placed under arrest. Mainar brought his wounded son to
the Emergency Hospital of Pototan, thence to the Provincial Hospital at Iloilo
City where he expired at 4:00 o’clock the following morning.

It should also be stated that before the shooting, Francisco Pogon and Ireneo
Lisondato were watching a mahjong game at a sari-sari store near the market
place. When they went out of the store to buy cigarettes, they met Diego Colman
who inquired “for Alfredo Pilota. Pogon told him he knew where the house of
Pilota was, and so on Diego’s request, they went there on board a truck. Upon
arrival at Pilota’s house, Diego alighted and called for Pilota who thereupon
went down, carrying a revolver with him. He also had a carbine concealed in his
jacket. They proceeded to the parking place of the trucks. Diego went to the
market, while Pilota went to the coffee stand. When Diego came from the market,
his two sons, both armed, were with him, while Diego himself had a carbine. The
group passed for Pilota at the coffee stand, and they all headed towards the
house of Ganzon. Stopping first at the middle of the railway track, Diego gave
instructions to his companions where to place themselves to accomplish their
purpose which was, as Diego revealed, to “kill Ganzon including the watchman and
also his cats and dogs”. After taking their respective positions as assigned by
Diego Colman, shots were heard coming from the front of Ganzon1s house.

On the strength of the foregoing facts which were established at the
investigation conducted by the authorities, Diego Colman, Reynaldo Colman,
Rogelio Colman, Irineo Lisondato, Francisco Pogon and Alfredo Pilota were all
charged in four separate informations filed with the Court of First Instance of
Iloilo: Case No. 3165 for the murder of Antonio Mainar; Case No. 3166 for the
murder of Thelma Ganzon; Case No. 3167 for the murder of Elizabeth Ganzon; and
Case No. 3168 for the frustrated murder of the mother of said girls, Carolina L.
Ganzon. The aforementioned cases were tried jointly upon agreement of the
prosecution and the defense. Before the trial started, the Provincial Fiscal
moved for the discharge of the accused Francisco Pogon so that he could be
utilized as government witness, which motion was granted by the Court. After the
prosecution closed its evidence, the accused Alfredo Pilota changed his previous
plea of not guilty to one of guilty, and in a judgment rendered separately, he
was sentenced accordingly. The trial continued with respect to the remaining
defendants, namely, Diego Colman, his sons Rogelio and Reynaldo Colman and
Irineo Lisondato, after which judgment was rendered by the Court as follows:

(a) In Criminal Case No. 3165 (G. R. No. L-6652) the accused Diego
Colman, Rogelio Colman and Reynaldo Colman were found guilty as principals of
the murder of Antonio Mainar with the qualifying and aggravating circumstances
of treachery, in which is merged that of nocturnity, and dwelling, respectively,
and were sentenced as follows: Diego Colman to suffer the supreme penalty of
death; Rogelio and Reynaldo Colman to reclusion perpetua, with the
accessories of the law, and all of them to indemnify, jointly and severally the
heirs of the deceased Antonio Mainar in the sum of P5,000, and to pay the
costs.

(b) In Criminal Case No. 3166 (G. R. No. L-6653) the accused Diego
Colman, Rogelio Colman and Reynaldo Colman were found guilty as principals of
the murder of Thelma Ganzon with the same circumstances already stated and were
each sentenced as follows: Diego Colman and Rogelio Colman to suffer the supreme
penalty of death; Reynaldo Colman to reclusion perpetua, with the
accessories of the law, all of them to indemnify, jointly and severally the
heirs of the deceased Thelma Ganzon in the sum of P5,000, and to pay the
costs.

(c) In Criminal Case No. 3167 (G. R. No. L-6654) the accused Diego
Colman, Rogelio Colman and Reynaldo Colman were found guilty as principals of
the murder of Elizabeth Ganzon with the same circumstances already stated and
were each sentenced as follows: Diego Colman and Rogelio Colman to suffer the
supreme penalty of death; Reynaldo Colman to reclusion perpetua. with the
accessories of the law, all of them to indemnify jointly and severally the heirs
of the deceased Elizabeth Ganzon in the sum of P5,000, and to pay the costs.

(d) In Criminal Case No. 3168 the accused Diego Colman, Rogelio Colman
and Reynaldo Colman were found guilty as principals for frustrated murder of
Carolina L. Ganzon with the same circumstances already stated, and were each
sentenced to suffer an indeterminate penalty of from 10 years of prision
mayor to 17 years and h months of reclusion temporal with the accessories of
the law, and to pay the costs.

The accused Irineo Lisondato was acquitted in all of the four cases for lack
of evidence against him, with costs de oficio. The records do not show
that any of the convicted defendants filed a notice of appeal, but pursuant to
Rule 118, Section 9 of the Rules of Court the records of cases Nos. 3165, 3166
and 3167 were forwarded to this Court for review of the judgments rendered
therein against the defendants who had been sentenced to the capital punishment.
For this reason the review of these three cases by this Court is limited to the
question of whether the conviction of Diego Colman and Rogelio Colman and the
imposition on the first of the death penalty in all said three cases and on
Rogelio Colman in G. R. Nos. L-6653 and L-6654 are warranted by the law and the
evidence.

In this instance, counsel de oficio for these 2 defendants submits
that the trial court erred:

1. In holding that your “appellants” (?) were co-conspirators and,
   consequently, erred in holding them as principals to the crime they are charged
   with;
2. In rendering and promulgating a decision which is contrary to law and
   jurisprudence, by holding that the aggravating circumstances of treachery,
   evident premeditation and dwelling were present in the commission of the alleged
   crimes charged, and by only considering the evidence of the prosecution and not
   giving any weight to the evidence for your “appellants” (?); and
3. In not acquitting your “appellants” (?) of all the crimes they are charged
   when they are entitled to acquittal, as their rights under the due process of
   law, guaranteed by the Constitution of the Philippines, have been violated in
   that they were arraigned in the Justice of the Peace Court without their
   attorney accompanying them, and with the filing by the Provincial Fiscal of new
   informations against them in each of these cases, after they have pleaded “not
   guilty” before the Justice of the Peace Court on the complaint filed by the
   Chief of Police of Pototan, Iloilo, and for lack of arraignment on the new
   information filed by the Provincial Fiscal.

At the start We have to declare that in these three cases the facts narrated
at the beginning of the decision have been duly established by the evidence of
the prosecution. At the hearing Diego Colman denied having taken part in the
indiscriminate shooting at the houses of the Ganzons and the Mainars on the
night in question, or having conspired in the perpetration of the cold-blooded
slaughter of innocent victims. On the other hand, Rogelio Colman, the other
defendant, alleged that throughout the night he never left his house because he
had headache.

In the light of the evidence of the prosecution these defenses cannot be
taken seriously. The mere denial by the defendants of acts attributed to them by
the witnesses for the State who had no reason to distort the facts upon which
they testified, is of no consequence because in such situation the question
turns into one of credibility of witnesses and

“The trial Judge that saw the witnesses testify and had opportunity to
observe the demeanor and manner of testifying of the witnesses, is in a most
preeminent position to gauge their credibility and, consequently, his findings
of fact must not be disturbed unless the record shall show that some facts or
circumstances of weight or influence have been overlooked, or the significance
of which has been misinterpreted by the lower court, or some conclusion
established from the facts is inconsistent with those findings, or there is some
inherent weakness in the evidence upon which the trial judge based his
conclusion” —Baltazar vs. Alberto, 33 Phil. 336; People vs. Borbano, 76 Phil.
702, citing many other cases). “Nor will the appellate court reverse any
findings of fact by the trial court made upon conflicting testimony and
dependent solely upon the credibility of witnesses, unless the court below
failed to take into consideration some material fact or circumstance presented
to it for consideration” (U.S. vs. Ambrosio, 17 Phil. 295; U.S. vs. Melad, 27
Phil. 488; Melliza vs. Towle, 33 Phil., U.S. vs. Remigio, 37 Phil. 599; People
vs.’Cabrera, V3 Phil. 64; Carazay vs. Arquiza, 53 Phil. 72; Garcia vs. Garcia,
63 Phil. 419)

Counsel for the accused invokes the defense of alibi, but:

This Court has already held in numerous cases that the defense of alibi
is the weakest defense that an accused can avail of, and cannot prosper
where the accused has been positively and properly identified by the offended
party. An alibi should be proved by probable evidence which reasonably satisfied
the Court of the truth of said defense ( U.S. vs. Oxiles, 29 Phil. 587). Oral
proof of alibi must be clearly and satisfactorily established because it is so
easily manufactured and usually so unreliable that it can rarely be given credit
(People vs. Padilla, M3 Phil. 710—See also People vs. Jose Villaroya et al., G.
R. Nos. L-5781-82, promulgated August 30, 1957).

We have, therefore, no reason to disturb the findings of the lower Court in
the cases at bar. Coming now to the point of conspiracy involved the first
assignment of error and to the contention that the decision is contrary to law
and jurisprudence by only considering the evidence of the prosecution and in not
giving any weight to the evidence for the defense, which is raised in the second
assignment of error, We may say, as held already by this Court, that:

“Conspiracies need not be established by direct evidence of the acts charged,
but may and generally must be proved by a number of indefinite acts, conditions
and circumstances which vary according to the purposes to be accomplished. The
very existence of a conspiracy is generally a matter of inference deduced from
certain acts of the persons accused, done in pursuance of an apparently criminal
or unlawful purpose in common between them. The existence of the agreement or
joint assent of the minds need not be proved directly. It may be inferred by the
jury from other facts proved. It is not necessary to prove that the defendants
came together and actually agreed in terms to have the unlawful purpose, and to
pursue it by common means. If it be proved that the defendants pursued by
their acts the same object, often by the same means, one performing one part and
another part of the same so as to complete it with a view to the attainment of
the same object the jury will be justified in the conclusion that they were
engaged in a conspiracy to effect that object. If, therefore, one concurs in
a conspiracy, no proof of agreement to concur is necessary in order to make him
guilty. His participation in the conspiracy may be established without showing
his name or giving his description—5 R.C.L., par. 37, p. 1088 (People vs. Cu
Unjieng et al., 61 Phil. 236, 301).”

“If it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their
acts, though apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiment, a
conspiracy may be inferred though no actual meeting among them to concert means
is proved. * * *The details of the conspiracy need not be proved. If a
community of purpose among the parties to do some criminal act or acts is shown,
it is not necessary that the acts which are charged or of which evidence has
been given, were specifically contemplated by them or included in the original
design. * * * Underhill’s Criminal Evidence, p. 795, par. 491 (People vs.
Carbonel et al., 48 Phil. 868).

“The act of a co-conspirator is attributable to each and every one of his
co-conspirators.” (People vs. Caringan, 61 Phil. 416; People vs. Cu Unjieng, 61
Phil. 236).

We entertain no doubt that both Diego Colman and Rogelio Colman conspired
together with the other defendants for the commission of the crime they are
charged in each of these three cases now before Us.

Anent the alleged error committed by the trial Judge in holding that the
aggravating circumstance of treachery, evident premeditation and dwelling were
present in the commission of the alleged crimes charged (also included in the
second assignment), We can cite the following jurisprudence of this Court:

Evident premeditation involves cool thought and reflection upon the
resolution to carry out the criminal intent during a space of time sufficient
to arrive at some judgment (People vs. Durante, 53 Phil. 363).

The aggravating circumstance of known premeditation cannot be appreciated
against 0, the active agent of the murder, because it does not appear at what
time prior to the murder this accused yielded to the inducement held out to him
by his co-accused and finally resolved to commit the deed (People vs.
Orenciada, 47 Phil. 970).

In order to show deliberate premeditation as defined in subsection 7, Art. 10
of the Penal Code (Art. 14, par. 13. RPC), it must affirmatively appear that
a sufficient time elapsed between the conception and the perpetration of the
crime, for that calm and deliberate reflection upon the nature and consequences
of the contemplated act, as a result of which it might fairly be expected that
an aroused conscience would induce a reasonable man to relent, and to turn from
the actual commission of the deed, in the absence of a fixed and resolute
purpose of mind to accomplish his designs at all costs (U.S. vs. Gil, 13
Phil. 530; U.S. vs. Blanco. 18 Phil. 206: U.S. vs. Nalua, 23 Phil. 1; U.S. vs.
Buncad, 25 Phil. 530).

It is not necessary that any definite time shall have elapsed between the
formation of intention and execution of the crime to show premeditation; it
is sufficient if there has been such opportunity for reflection that the
conscience might have conquered the determination of the will. Evident means
based upon external acts and not presumed from mere lapse of time ( U.S. vs.
Ricafor, 1 Phil. 173).

In order to support the qualifying or aggravating circumstance of
premeditation as present in the commission of a crime, the evidence must show
that there were meditation and reflection by the accused resulting in a
deliberate determination to commit the crime; and where it appears that the
conception of the crime was close in point of time to the execution thereof: and
the evidence fails to show that he meditated and reflected on his purpose to
permit the formation of a deliberate determination, the element of premeditation
has not been established beyond a reasonable doubt (U.S. vs. Bahatan, 3k
Phil. 695).

In the cases at bar, the evidence points to the fact that it was only on
January 7, 1952. when Ganzon employed his new watchman Alfredo Cardinales
in lieu of Diego Colman who had resigned on December 15 or 20 of the preceding
year, and that it was at about 7 o’clock of that same day of January when
indications appeared that something was brewing in the minds of the defendants
toward the commission of the crimes herein prosecuted, which were perpetrated at
10:00 o’clock on the night of that day. Under such circumstances, we do not
think that sufficient time elapsed to give the offenders “an opportunity for
reflection that the conscience might have conquered the determination of the
will”, and thus qualify the premeditation as evident. We are, therefore,
inclined to disregard, as We do, said aggravating circumstance. This, however,
does not affect the penalty imposed by the trial Judge upon the culprits,
because treachery as qualifying circumstance and dwelling as aggravating are
sufficient to sustain the penalty thus imposed f upon them. It is to be noted
that the attack of the defendants I was sudden, unexpected and when the victims,
minor children, were resting in bed in the seclusion of their abode.

Counsel for the defense further contends that Diego and Rogelio Colman have
not been accorded the rights under the due process of law of the Constitution
because they were arraigned in. the Justice of the Peace Court without the
company of their attorney, and that before the Court of First Instance there was
no arraignment whatsoever. Answering this contention the Solicitor General, with
whom We agree, says the following:

“As far as the arraignment in the Justice of the Peace is concerned, it is
not required by law that they should be accompanied by counsel for in the first
place, the law does not require arraignment before the Justice of the Peace
Court conducting merely the preliminary investigation. In the second place, in
the arraignment before the Justice of the Peace Court, the accused entered a
plea of not guilty, and such a plea could not have prejudiced them at all.
Lastly, through their counsel, the herein appellants waived their right to
preliminary investigation.

As to whether the appellants were not arraigned in the Court of First
Instance, the records do not show any irregularity in the proceedings with
respect thereto. On the other hand, the decision contains a statement that in
the case of accused Alfredo Pilota, he changed his previous plea of not guilty
to one of guilty after the presentation of the evidence of the prosecution. From
this statement, it could be deduced that there has been an arraignment in this
case in the manner prescribed by law not only with Pilota but the rest of the
accused. Indeed, it could hardly be imagined that the presiding judge, now a
Justice of the Court of Appeals, could have committed so grave an error as not
arraigning the accused properly in cases in which they are charged with capital
offenses. With the foregoing facts, considered (in conjunction) with the
presumption of regularity in the performance of official duties, defendants’
contention that they have not been arraigned in the Court of First Instance
falls on its face.

As to the plea of double jeopardy, it seems clear from the provision of
section 10, Rule 113, of the Rules of Court that such a plea can be entertained
only at any time before judgment is rendered, and judgment is meant here
not the final judgment as rendered by the Court of last resort in case of
appeal, but the judgment of the trial court. The defense of double jeopardy
cannot be raised for the first time on appeal (People vs. Mangcal et al., 47 O.
G., No. 12 Supp. p. 228; Quintos vs. Director of Prisons, 55 Phil. 304)
Furthermore, even if it were legally possible to entertain a plea of double
jeopardy at this stage, there is clearly no double jeopardy at all as counsel
contends. The four informations under which the accused were charged were
properly filed separately instead of just one information as counsel would have
it. From the undeniable physical facts regarding the manner the crime was
committed, it cannot be seriously contended that the three killings of three
separate victims were committed by one single act on the part of the accused as
to call for the filing of just one information. If the three victims died of
bullet wounds, it is because those wounds were inflicted not by a single act but
by as many acts as there are victims. The filing of separate informations was
therefore in order.”

Wherefore and on the strength of the foregoing consideration, We have no
other recourse than to affirm the imposition of the death penalty on Diego
Colman in Criminal Case No. 3165 (G.R. No. L-6652); upon Diego Colman and
Rogelio Colman in Criminal Case No. 3166 (G.R. No. L-6653); and upon these same
two defendants in Criminal Case No. 3167 (G.R. No L-6654). Consequently, the
decision of the lower Court insofar as these two defendants are sentenced to the
supreme penalty, is hereby affirmed with costs against them. In the execution of
this sentence the provisions of Articles 81, 82 and 84 of the Revised Penal Code
shall be strictly applied. It is so ordered.

Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J.B.L., Endencia and Felix, JJ., concur.