THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. NEMESIO LLANETA AND PEDRO MAGDUGO, DEFENDANTS AND APPELLANTS.

This is an appeal from a judgment of conviction finding Nemesio
Llaneta and Pedro Magdugo, appellants herein, guilty of murder. Pedro
Tagam was arrested by order of Pedro Magdugo, a leader of an irregular
force, and, the prosecution charges, was killed by Llaneta by order of,
and in accompany with, his fellow-accused. The appellants contend that
Tagam was slain not by them or either of them but by Frisco Balacuit.

The issue hinges on the relative credibility of the witnesses. As a
considerable part of the evidence for either party, as taken clown in
the record, is self-contradictory and confused, it will be easier to
set it out in detail than to digest or summarize it. Besides, the
former method, it is believed, will be more conducive to a clearer
understanding of the discussion and opinion that will follow.

Following are the names of the witnesses and detailed extracts from their respective testimony.

EVIDENCE FOR THE DEFENDANTS

Pedro Sabay, 40 years old. He has known Nemesio Llaneta for a long
time but Pedro Magdugo only since the guerrilla days. On November 5,
1942, in the municipality of Alubijid, province of Mis amis Oriental,
Llaneta shot Pedro Tagam because Magdugo ordered him to do so. He was
quite far, about 15 brazas away, from Llaneta and Tagam,
while the distance between the two accused was less than two meters.
Llaneta shot Tagam with a rifle. He thinks Pedro Tagam was hit. He says
he thinks because he was quite far. After the second shot, he saw Pedro
Tagam “roll down.” Immediately thereafter “I went home to the place
where I boarded.” Asked where he was boarding, if he was not a prisoner
or detained, he answered, “I was imprisoned after Tagam was killed by
them,” Before killing Tagam, they took him from the house where he
(witness) was imprisoned. He did not know the person who got Tagam from
the house where he (witness) was imprisoned because as soon as that
soldier arrived, he shouted, “Let the prisoners come down.” Upon this
order “we went down.” When he was still upstairs, Lofredo Galarrita
whispered to him that “they were going to shoot Tagam.” After that he
“went downstairs and followed them.” When he arrived at the plaza, he
stopped under Felix Roxas’ house from which he saw Magdugo and Llaneta,
the latter carrying a rifle. Then he heard a shot and Tagam exclaimed,
“What are you going to do with me? Why are you going to shoot me?” One
more shot was fired and he saw Tagam reel. Thereafter he went back to
the house where he was staying. He did not know where Tagam was buried.
He learned only afterward that Tagam was buried “at the curb along the
provincial road in the poblacion of Alubijid.”

CROSS-EXAMINATION BY ATTORNEY BORJA

Asked how it was that he saw Magdugo signal to Llaneta to shoot
Tagam when, as he said, it was already 6:30 o’clock in the evening,
Sabay replied that he saw Magdugo moving his left hand, pointing at
somebody, as if telling Llaneta to shoot. Told to demonstrate how
Magdugo signaled to his co-accused, he “swung his left hand forward and
downward several times.” He said that he testified at the preliminary
investigation but did not state that Magdugo ordered Llaneta to shoot
Tagam because he was not asked about it.

CROSS-EXAMINATION BY ATTY. C. VAMENTA

The witness said that he was arrested with Tagam on November 5,
1942. Tagam was shot after 6 o’clock in the evening. He and Tagam were
arrested at the same time and both of them were taken to the house
where they were investigated and after that Tagam was taken away and
shot. Asked what he meant by saying that he and Tagam were arrested,
after which Tagam was killed, he said, “When they arrived in that house
(guardhouse). we were made to sit down on a chair and Magdugo
investigated Tagam.” Magdugo, he said, asked Tagam if he still had some
“pistons” and Tagam said he had none. Magdugo asked Tagam if he was a
soldier (USAFFE) and Tagam said yes. Then Magdugo asked Tagam why he
did not report for duty if he was a soldier and Tagam answered that he
was going to do so in Imbatug, Bukidnon, because his wife’s parents
lived there. Tagam further said that if he should report for duty in
Alubijid, he would be far from his wife and nobody could inform her of
his whereabouts. He was present when Tagam was investigated. The time
of the investigation, he thinks, was a little half past 6 o’clock in
the evening. Tagara’s investigation by Magdugo did not last long. When
Tagam was killed, he (witness) was already under arrest. Asked how it
happened that he was in the plaza when, according to him, he had been
ordered to go back to the guardhouse, being a prisoner, he replied that
when he went back to the house where he was staying, he met Lofredo
Galarrita who whispered to him “that they were going to kill Tagam.”
So, afraid, he went down and “saw them” going towards the plaza, and
upon reaching the house of Felix Roxas, he stopped and saw Llaneta,
Magdugo and Tagam. When asked if he meant to say that when he was
lodged in the guardhouse as a prisoner he was not deprived of liberty
to go out, he said no, because he “was not yet imprisoned.” In the
house where he and Tagam were lodged there were soldiers guarding the
prisoners, one of whom was Lofredo Galarrita. He was surprised when he
was arrested because he did not know what he was arrested for.
Afterward he came to know the reason; it was “because they have already
killed Tagam and because we were together.” When asked if he was not
arrested for being a spy and not because he had been with Tagam, he
said,”At first, on November 5, 1942, Ireneo Sabellita went to Tubahon,
together with Leon Roslim. Ireneo Sabellita went up the house of Ramon
Pangca while Leon Roslim proceeded to the beach where Tagam was at that
time. As soon as Leon Roslim arrived at the beach, he told Tagam, ‘What
about the piston which I spoke to you about?’ and Tagam said, ‘I have no
more? because I have already sold them all.’ Consequently, Leon got
angry and said, ‘You do not know that is not I who needs the piston, it
is the order of Sergeant Magdugo and Loloy Roxas, to get the piston
from you?’ ”

RE-DIRECT EXAMINATION BY FISCAL COLOSO

Magdugo was the king (hari) in Alubljid and Llaneta was the executioner (verdugo).

Rodolfo Carretas, 24 years old. He knew the two accused and Pedro
Tagam. Tagam was shot by Nemesio Llaneta. He did not know the reason.
When he arrived at the place where Nemesio Llaneta and Pedro Tagam
were, from a patrol assignment, he saw Tagara already wounded in the
left shoulder, after he had been hit with a “backstroke.” Afterward
TagaM, supported by Llaneta, was taken to the house of Sixto Roxas
which was at that time used as officers’ quarters. A few minutes later,
Pedro Magdugo conducted an investigation, after which Llaneta together
with other soldiers and Tagam proceeded to a place near the house of
Fortunate Jamis where they dug a hole in the ground. As soon as the
hole was dug, Llaneta again hit Tagam with a. “backstroke” which caused
Tagam to fall into the hole. Then Magdugo ordered them to cover Tagam
with earth. Tagam was still alive, agonizing and moaning. Pedro Magdugo
did not help cover Tagam with earth; he merely ordered the soldiers to
do so. But Nemesio Llaneta did help the soldiers bury Tagam after he
had given Tagam a “backstroke.” The “backstroke” was delivered with
great force. The hole was about hipdeep. His distance from Tagam,
Llaneta and Magdugo when the killing occurred was about 5 meters.
Llaneta had a reputation of offering himself to kill persons condemned
to be executed, and it was Magdugo who ordered Llaneta to kill. After
the last statement was ordered striken out for being based on rumors,
the witness said he knew personally that Llaneta used to present
himself to kill people whom Magdugo ordered executed. He knew that no
one else cared to be appointed executioner. In. fact he himself,
although a guerrilla, was afraid of Llaneta. The guerrillas had not yet
been regularly organized at that time. He did not know? why Tagam was
killed by the accused.

CROSS-EXAMINATION BY ATTORNEY BORJA

His commanding officer was Pedro Magdugo although the latter was
only a sergeant. Among his companions in his detachment were Frisco
Galarrita, Ramon Pangca, Frisco Balacuit and others whom he did not
come to know because they were, from other places and because the
guerrillas at that time were not yet fully organized. Up to that time
the Japs had not used to come to Alubijid, and that was why there were
many civilians living in that town. Some stayed in, the town only in
the daytime and stayed out during the night. Tagam had a bullet wound
in the left shoulder. The missle entered, in front and came out at the
back. The point of exit was very big and blood was gushing out of the
wound.

CROSS-EXAMINATION BY ATTORNEY VAMENTA

He had not reported this killing up to the time he was testifying
because he was afraid that he might be implicated. Soldiers were
allowed to witness Tagam’s execution but civilians were not. There were
more than ten soldiers, but because it was getting dark he did not
count them. The one who caused the wound in Tagam’s shoulder was
Nemesio Llaneta; he says so because at that time the guerrilla members
were not yet. furnished with proper arms. There were only a few
home-made guns and the only Enfield rifle was given to Llaneta. He did
not actually see Llaneta inflict that wound because Tagam was already
wounded when he saw the latter but there was no soldier who had a rifle
except Llaneta, rifle which Magdugo had entrusted to Llaneta for his
use. It was half past six o’clock in the evening when he saw Tagam
being supported by Llaneta. Llaneta was aided by Frisco Balacuit when
Tagan, supported by Llaneta, was taken to the house of Sixto Roxas.
Frisco Balacuit was already a soldier but he had no arm with which he
could shoot Tagam. He does not think Balacuit shot Tagam because there
was no firearm other than that of Llaneta.

Frisco Balacuit, 27 years old. He had known the two accused since
before the war. He also knew Pedro Tagam, who is now dead, shot by
order of Pedro Magdugo. Nemesio Llaneta killed Tagam with an Eafield
rifle. He heard two shots. Llaneta was about one meter from Magdugo
when he heard the shots, while Pedro Tagara was about three meters from
the two accused. Tagam was ahead followed by Llaneta and Magdugo. He
did not see anything more after he heard the shots because he was not
near the placej he was in the headquarters being a member of the
military police. Llaneta was a private and Magdugo first sergeant of
the organization which was not yet fully organized, it the time this
incident took place; he had been guarding Pedro Tagam and Patricio
Sabay. While he was guarding these two men. Magdugo and Llaneta arrived
and ordered the prisoner to be brought out, so he led them out, “When
Tagaro was already outside, Magdugo ordered the prisoner to follow them
to the plaza. In going to the plaza Pedro Tagam was ahead and Magdugo
and Llaneta were behind him. He did not see anybody else follow.
Nemesio Llaneta was carrying an En.field rifle; Magdugo was not
carrying anything. As they were on their way towards the plaza all of a
sudden he heard a shot. He did not know who fired the shoto After
hearing the shot, he just remained in the place where he was a. guard.
After hearing the shot, he verified what it was and saw Fedro Magdugo.
He went to the scene of the crime and there he found Magdugo, Llaneta,
Rodolfo Carretas and Frisco Balacuit (Galarrita?). Tagam was sprawled
on the road in agony. He was buried at a curb on one side of the road;
he saw it. The soldier covered the grave by command of Pedro Magdugo.
Llaneta did not help cover the hole. Llaneta was carrying a rifle. He
(fitness) was about five meters from the grave. There were many persons
around but he did not know them. He only recognized Pedro Magdugo,
Nemesio Llaneta, Rodolfo Carretas and Frisco Galarrita. Tagam was
still agonizing when he was buried. Asked who killed Tagam, the witness
said he did not know. Asked again if despite what he had already said
he did not know who killed Tagam? the witness said, “I am going to tell
the truth, it was Nemesio Llaneta.” He did not know why Nemesio Llaneta
killed Tagam. Magdugo was there, about two meters from Llaneta. He was
only ordering his soldiers. Llaneta was one of the soldiers. He did not
know if Magdugo was able to order Llaneta to kill Tagam.

CROSS-EXAMINATION BY ATTORNEY VAMENTA

Tagam was tied when he was taken to the plaza. They were heading
toward the plaza when he saw Tagam’s hands tied and while he remained
in the guardhouse. About ten minutes elapsed from the time he saw
Tagam, Magdugo and Llaneta march in the direction of the plaza until he
saw Tagam lying on the road. Tagam was already wounded and agonizing
when he saw him on the road. Queried how he could tell it was Llaneta
who killed Tagara when, as he had stated, Tagam was already luring on
the road wounded and agonizing when he arrived, the witness answered
that he learned from Magdugo himself that it was he who had ordered
Llaneta to shoot Tagam.

“Q But have you actually seen Llaneta shoot Tagam, or not?—

A I was there.

“Q In what particular place or spot were you then?—

A I was following them when they killed Tagam.

“Q In what place did you see the actual shooting of Tagam?—

A I was behind them.

“Q Is it not true that you testified in your direct examination that
first you heard two shots and that you did not actually see the
shooting of Tagam?—

A I am confused.”

CROSS-EXAMINATION BY ATTORNEY BORJA

Between the witness and the graves when the grave was being filled
up, were Pedro Magdugo, Nemesio Llaneta, Rodolfo Carretas and Frisco
Galarrita. There were other persons standing around. It was about 6
o’clock in, the evening, already dark. Pedro Tagam’s feet were still
moving as if kicking, when he was being covered with earth. Witness was
from Alubijid. He was formerly one of the accused in this case. When he
heard Pedro Magdugo say, as Tagam was being buried, that he had ordered
Llaneta to shoot the deceased, Magdugo was not speaking to him
(witness) but to sergeant Nicasio Lusterio. Those who heard the remark
were only the men in the headquarters where it was made. Besides him
and Llaneta nobody else heard Magdugo’s remark. Nicasio Lusterio was a
sergeant and lived in Aluubijid at the time of the trial.”Ours was the
guardhouse while theirs was the headquarters.” At the time Magdugo and
Llaneta came to the guardhouse to take the prisoner, Patricia Sabay was
there. Sabay was not brought to the guardhouse.

Palermo Jaramillos 29 years old. On November 5, 1942, he arrested
Pedro Tagam and Patricio Sabay by order of Pedro Magdugo. The order was
given at the headquarters. He brought Tagam and Sabay to Pedro Magdugo
after they were arrested. Magdugo was acting first sergeant and he
(witness) was a corporal, although he acted sometimes as sergeant.
Magdugo told him that Tagam had blasting caps, and that was the reason
why he was arrested. It was about three o’clock in the afternoon when
Tagam was arrested, and he was turned over to Magdugo at about six
o’clock.

CROSS-EXAMINATION BY ATTORNEY BORJA

Melecio Roxas was the mayor of Alubijid at that time. It was
already dark when he delivered the prisoners to Magdugo. He was not
there anymore when Magdugo investigated Sabay and Tagam, having gone
home immediately after the prisoners were delivered to Magdugo.

CROSS-EXAMINATION BY ATTORNEY VAMENTA

It was a written order which he received but it had been lost. He
received it at two o’clock in the afternoon. Tagam lived about five
kilometers from the headquarters. He had two companions when he
arrested Tagam and Sabay, Jose Labis and another whose name he could
not remember.

EVIDENCE FOR THE ACCUSED NEMESIO LLANETA

Marciano Elarmo, 36 years old. He was a soldier in Alubijid during
the guerrilla days. On November 5, 1942, he saw Tagam at the municipal
police headquarters brought by soldiers. From there he was taken to the
guardhouse of the army about 100 brazas from the police headquarters.
Pedro Magdugo ordered him to accompany Nemesio Llaneta take Tagam from
the municipal police headquartes to the army guardhouse, but before
reaching the army guardhouse, Pedro Tagam ran away. It was about half
past six o’clock in the evening. When Pedro Tagam ran away, Llaneta
fired his gun in the air twice. Then Llaneta chased Tagam while he
(witness) went home. Llaneta knew that he went home; he told Llaneta he
wanted to go home because the Japs were expected. He did not know
whether Llaneta overtook Tagam. He learned that Tagam had been killed
only the following day.

CROSS-EXAMINATION BY THE FISCAL

Llaneta, Tagam and he did not reach the guardhouse because Llaneta
ran. away. He saw no other person at that time. He is sure of it.
Patricio Sabay was not there. He saw Tagam on the second floor of the
municipal police building. There were many people there, some of them
soldiers. The headquarters of the municipal police were about 100
meters away from the guardhouse of the army. The place between the two
places was clear of bushes. There were no obstructions except acacia
trees which x^ere high. But there was a corner to be turned before the
guardhouse of the army was reached. He did not see Sabay in the police
headquarters, neither did he see Frisco Balacuit or Rodolfo Carretas.
He did not belong to the group of Pedro Magdugo because the bolo
battalion of which he was a member was under the command of the army.

QUESTION BY THE COURT

When Tagam ran away Nemesio Llaneta fired two shots in the air,
after which he chased Tagam. That was the time he separated from
Llaneta, notifying Llaneta that he was going home.

Severino Galarrita, 41years old. He was a municipal policeman on
November 5, 1942, and was at the headquarters of the municipal police
of ilubijid. He saw Pedro Tagam while Tagam was wrestling with Frisco
Balacuit. Balacuit thrust his bayonet on Pedro Tagam and hit the latter
in the left side of the stomach. Tagam fell to the ground after which
Balacuit just stared at him. He asked Balacuit why he stabbed Tagam and
Balacuit answered that it was becatise Tagam ran a.way. Florencio
Madredano was present when he asked Balacuit why he stabbed Tagam.
Madredaño was just looking at the witness and Balacuit. After that he
saw Llaneta about five brazas away from him. He told Llaneta to take
charge of the matter and to report it to the headquarters because he
(witness) was going home and had something to do. When he told Llaneta
this, Tagam was already lying on the ground.

CROSS-EXAMINATION BY THE FISCAL

He was a municipal policeman under the guerrilla government. There
was already a guerrilla organization, Tagam died in January, 1942. He
is sure of it.

When he saw two persons grappling at seven o’clock in the evenings
he was on his way home. Balacuit and Tagam were the only persons he
saw. Tagam was being held by Balacuit by the arm. Tagam tried to push
Frisco away with his hand and succeeded. Then Frisco drew his bayonet
and sank it on Tagam. According to his estimate the struggle lasted
about three minutes. He watched the struggle for a while. He asked
Frisco Balacuit why he struck Tagam with his bayonet. After asking that
question he saw Llaneta and told Llaneta to take charge of reporting
the matter to the headquarters. It was his duty to report the matter
himself but he was in a hurry to go home because he had something to
do. He had to gather foodstuffs because he was in charge of those
things for the police force. The thrust was sudden so that Tagam did
not see it coming. When he left, Tagam. was still bleeding.

QUESTIONS BY THE FISCAL

He related this incident to Pedro Magdugo; aside from that he did not tell it to anybody.

Hemesio Llaneta, 28 years oldy corporalj Philippine Constabulary.
After Pedro Magdugo had. finished investigating Pedro Tagam, Magdugo
ordered him to escort Tagam to the guardhouse. On the way to the
guardhouse, when they were about 50 meters from it, Tagam ran away. He
shouted for him to stop and fired two shots in the air but Tagam did
not stop. After a few minutes, he heard someone near the edge of the
provincial road shout, “He is here,” so he approached, the place from
which the voice came. There he found Frisco Balacuit, Florencio
Madredano, and Tagam who was lying on the ground. He had a
conversation with Severino Galarrita. Galarrita told him to report the
matter to the authorities, so he did. He reported it to Sgt. Magdugo
because his officer was not there at that time. When he took Tagam to
the guardhouse, Marciano Elarmo was with him. He fired two shots in
the air to make Tagam stop running but he did not stop. He chased Tagam
but his companions did not. do the same. His companions went home
instead. Shortly after he arrived at the place, he saw them (Balacuit
and Florencio Madredaño) and Florencio Madredaño lifted Tagam and he
noticed that Tagam had already a wound in the left side of the stomach.
While Tagam was in that position, Balacuit struck him again with a
bayonet which pierced his stomach. After that thrust, in the stomach,
Tagam died. He reported the matter to Pedro Magdugo upon seeing Tagam
dead. He saw Florencio Madredaño unbutton the white shirt of Tagam and
remove it. Madredaño also removed Tagam’s pants and wore them. Frisco
Balacuit took the shirt, and wore it himself. He is sure that Tagam was
already dead. Pedro Magdugo told him that he was going to take care of
the matter himself. Asked if the dead body of Pedro Tagam was ever
buried, he said he learned of it two days after the incident took place
because the Japs had come to Gitagum at that time. He did not
participate in the burial of Tagam. He denies that he ordered a grave
to be dug or that he “backstroked” Tagam. He denies that while Tagam
was still alive he covered him with earth by order of Pedro Magdugo.

CROSS-EXAMINATION

He did not report the killing to anybody except Magdugo because
Magdugo told Mm that he would take care of reporting it himself. He
knew, at the time, that Fiscal Fernandez was investigating this case
but he did not tell Fernandez that Frisco Balacuit had killed the
deceased; neither did he tell Fiscal Lagrosas, Coloso and Tengco who
had killed Pedro Tagam. After Florencio Madredaño removed Tagam’s pants
and put them on, Frisco Balacuit also removed the shirt and put it on.
Afterward, they left Tagam with nothing but drawers and undershirt on.
He actually saw Balacuit stab Tagam. He was only one meter away. When
he arrived at the scene of the killing, Tagam was already lying face
down. Then Balacuit turned, hira up on his back. When Tagam was in this
position. Frisco Balacuit again stabbed him with his bayonet in the
stomach. After stabbing Tagam in the stomach, Frisco Balacuit kicked
him and gave hint another thrust in the back for the third time. Tagam
was already dead when Balacuit stabbed him in the back. He found out
that Tagara was buried only after the Japanese left Alubijid. The Japs
were in. Alubijid on the 8th of September, 1942. In answer to a
question by the court, this accused says that ha did not take part in
the burial of Tagam; that when Tagam was killed by Frisco Balacuit,
Tagam was not under anybody’s care; that it is true Tagam was under his
care after his chief ordered him to escort Tagam to the guardhouse, but
when Tagara was killed he reported the killing to Magdugo. After Tagam
was killed, he just left the dead body to Balacuit and Madredaño; he
left Tagam at the hands of his killers because he was afraid, since
Tagam died while he was escorting him. He does not know what Magdugo
did after he reported to Magdugo the killing because Magdugo simply
told him that he was going to see the cadaver. He did not accompany
Magdugo to see the cadaver, remaining at the headquarters. In answer to
further questions by,the fiscal, Llaneta says; Tagam received only two
wounds, both in front of his body, not three wounds in the side, in the
back and in the stomach. When he arrived, Balacuit and Madredaño were
already beside Tagam and he clearly saw that Tagam had a wound in the
left side of his stomach, and after his body was turned, up it was
again stabbed in the middle of the stomach. Tagam ran, fast when he
escaped from his custody; that was the reason why he did not overtake
him.

Melecio Roxas, 29 years old. On November 5, 1942, he was connected
with the guerrilla organization stationed in Alubijid and so was Pedro
Magdugo. Between 6:30 and 7 o’clock p.inu he was near the church. He
remembers that Pedro Magdugo came to his house on that date for the
main purpose of notifying him of the results of his errand to procure
dynamite. He had no rank in the guerrilla organization, but he was
given the assignment of procurement agent. Pedro Magdugo was a
sergeant. While Magdugo was in his house, he heard the report of a gun
and he asked Magdugo what it xtfas. Magdugo said he did not know but
went out right away. Subsequently, Magdugo came back and told him that
somebody had been killed and buried. On cross-examination, he says
Pedro Tagara was the man that had been killed, according to Magdugo.
Not more than half an hour elapsed from the time Magdugo left till he
came back. He himself did not go out to see what the matter was. In
answer to the question who buried Tagam, he says Magdugo told, him he
had seen Frisco Balacuit and Nemesio Llaneta also. Magdugo mentioned no
other persons; neither did he ask him. According to Magdugo’s reports
the cause of Tagam’s death was bullet wounds; two wounds, according to
Magdugo, in the front part of the body. Frisco Balacuits Nemeslo
Llaneta and Florencio Madredaño were the ones who buried Tagam,
according to Magdugo. He did not bother to ask who shot Tagam because
Tagam was already buried. His house tras about 300 meters, more or
less, from the place where Tagam was killed. According to Magdugo, the
two wounds Tagam received were caused by gunshots. He asked Magdugo who
killed Tagam but Magdugo could not tell him. According to Magdugo,
Llaneta was holding a gun; no other person had a gun.

Pedro Magdugo, 37 years of age, first lieutenant, Philippine
Constabulary. What Rodolfo Carretas declared is not true, that in the
evening of November 5, 1942, he, Magdugo, was near the grave intended
for Pedro Tagam and that he ordered the men there to bury Tagam
notwithstanding the fact that Tagam was still alive. At that time,
Rodolfo Carretas was not a member of the organized guerrilla because he
was a mere civilian. He denies what Frisco Balacuit stated, that he,
Magdugo, told Nicasio Lusterio that he had ordered Llaneta to shoot
Pedro Tagam. He says it was not true, as Patricio Sabay stated, that he
and Nemesio Llaneta took Tagam to the plaza or that he motioned to
Llaneta with his left hand, to shoot Tagam. He says he ordered the
arrest of Pedro Tagam because there were reports to the effect that
Tagam had dynamite in his possession. Sergeant Palermo Jaramillo of the
guerrilla was the man whom he sent out to arrest Tagam. He needed
dynamite to prevent the Japs from penetrating into their area. Pedro
Tagam and Patricio Sabay were arrested in compliance with his order at
about six o’clock in the afternoon. His investigation of these men did
not last more than half an hour. After the investigation, he told
Llaneta to take Tagam to the guardhouse for further investigation and
he immediately went out to see and inform. Lt. Roxas that Tagam,
according to Tagam’s affidavit, had already disposed of his dynamite.
While in the house of Roxas, he heard a gunshot and Roxas told him to
go out and ascertain what it was. On his way he met Nemesio Llaneta who
told him that Tagam had been killed. Pie proceeded to the place of the
shooting and there he found several persons around the dead body of
Tagam. Tagam’s wounds were bayonet wounds. He questioned Llaneta and
Llaneta told him that it was Frisco Balacuit who had inflicted the
wounds. He ordered the burial of Tagam after he had reported the
killing to Lt. Roxas. Besides reporting the killing to Roxas, he
submitted a report to his Sector commander and another to the
Regiraental commander, Limena. The Sector Commander was Othelo
Caballero. Contrary to Rodolfo Carretas’ testimony, he was not the one
who ordered the killing of people in Alubijid. There was no such order
from him. On November 6, the Japanese invaded Alubijid. When he
reported Tagam’s death to Roxas, he did not tell the latter who killed
Tagam because he had only been told that Frisco Balacuit stabbed Tagam;
he did not actually see it. What he told Roxas was that Tagam had been
killed but not by gunshots. Tagam’s wounds were in the left side and in
the center of the body« According to Llaneta, it was Frisco Balacuit
who killed Tagam and that was what he told Roxas. Asked by the court if
he informed Roxas that Ealacuit had killed Tagam, he answers Roxas did
not ask him. Queried again whether he reported to Roxas that it was
Balacuit who killed Tagam, he says he reported to him that. In answer
to further questions by the fiscals, he says he, could not explain why
Roxas testified that he, Magdugo, told Roxas who killed Tagam. When he
sent Llaneta to escort Tagam to the guardhouse, Llaneta was carrying a
gun. He had not seen any bayonet on that occasion. Among the persons
who buried Tagam he did not see any holding a bayonet. Asked who,
buried Tagam, he says he remembers Florencio Madredaño, Frisco
Balacuit, Sgt. Cristobal, Sgt. Meliton Cruz and others. Llaneta was
also there helping to bury Tagam. He, Magdugo, was about 50 meters from
the crowd. There were many soldiers. It was about ten minutes after he
heard the two shots that he went out of the house to find out what the
shots were about. The grave in which Tagam was buried had a depth about
the height of a man, dug already, when he arrived, by the soldiers he
has mentioned. He saw Tagam in that grave. They used bamboos and sticks
to dig the grave. Llaneta was accompanied by Marciano Elarmo when Tagam
was conducted to the guardhouse. Elarmo was a soldier but had no arm.
When Tagam was conducted to the guardhouse Patricio Sabay was at the
municipal building from which the guardhouse was about 150 meters
distant. He did not know who the guard was in the guardhouse, whether
it. was Frisco Balacuit. In answer to the next question, he says
Balacuit was not the guard that time; that the guard was Godofredo
Galarrita. He was not the highest in command of the guerrilla
organization at that time. It was one Lt. Othelo Caballero who is now
in Camp Keithley, Lanao. On November 5, 1942, Melecio Roxas was still a
civilian and had no rank except that of procurement officer. He did not
see Tagam buried. The witness’ attention being called to his previous
statement that he had seen Tagam buried, he says he had not actually
seen him buried because the grave was far from where he was, 15 meter;
but.from the place where Tagam was killed the distance of the grave was
about three meters. He saw them carry Tagam’s body to the grave. Tagam
had only drawers and undershirt on. He.had neither shirt nor trousers.
In answer to questions by the court, he says he was at the
headquarters, which was different from the municipal police
headquarters, when he gave the order for Tagam’s arrest. When Tagam was
brought to the police headquarters, he was not there. When Tagam and
Sabay arrived at Alubijid, they were brought immediately to the
municipal police headquarters while he “was still at our headquarters.”
He was informed by someone that Tagam and Sabay had already arrived and
he immediately vent to the police headquarters. When he reached the
latter place, he began the investigation as to whether they still had
dynamite; and they said no. He sent Tagam to the guardhouse for further
investigation because he was told by Lt. Caballero that Tagam had still
a box of dynamite.

REBUTTAL EVIDENCE

Frisco Balacuit says it was not true that he. stabbed Tagam with a
bayonet and wrestled with him. He says Severino Galarrita was not
present at the time. He denies that he removed and used Tagam1s shirt.
He declares he was present when Tagam died.

Floreneio Madredaño, 36 years of age. He did not remove the pants
of Pedro Tagam? that is a lie. He denies that Frisco Balacuit stabbed
Tagam. What he saw, he says, on that occasion was that Nemesio Llaneta
shot Tagam. That is all. It was not possible for Tagam to run because
he was already hit. He was hit once in the back near the shoulder and
the bullet went through his shoulder. The second shot also hit Tagam
and that was almost a close call for him (witness). On
cross-examination by Attorney Borja, the witness says Frisco Balacuit
did not stab Ta.ga.rn with a bayonet; it was Nemeslo Llaneta who did
with his bayonet. He did not know why Llaneta stabbed Tagam; perhaps
Llaneta thought it was necessary to finish Tagam. At that time, he
could noi ask Llaneta why he stabbed Tagam because he was a mere
civilian. He knew Llaneta had a bayonet because the accused drew it
from its scabbard.

It is vigorously asserted by the counsel for Magdugo and the
counsel for Llaneta that the testimony of Patricio Sabay and Frisco
Balacuit is sharply conflicting. In their exhaustive and able briefs}
they show from a conscientious analysis of the evidence that Sabay was
inconsistent as to the time and place of his imprisonment, as to the
time of his arrest, and as to the slaying.

Frisco Balacuit’s testimony also has deserved severe stricture.
This witness started by saying that Llaneta shot Tagam by Magdugo’s
order. Later, he stated he did not know whether Magdugo actually
ordered Llaneta to shoot the deceased. On cross-examination, he said he
knew Tagam had been shot by Magdugo’s order because Magdugo said so at
the scene of the crime. But in answer to a new question he shifted to
another position, stating that it was not at the scene of the crime
where Magdugo revealed having given the order but at the guerrilla
headquarters; he said Magdugo made the remark, not to him, as he
implied in his previous testimony, but to Nicasio Lusterio, within his
hearing or in his presence. Regarding his whereabouts at the time Lagam
was murdered, Balacuit declared that he remained on guard duty at the
guerrilla headquarters and that it was there where he heard reports of
a gun; yet afterward, he said he was at the place of the crime,
insinuating, without saying so, that he saw Heroesio Llaneta fire at
Pedro Tagam. Still later, he said he was following Magdugo, Llaneta and
Tagam when the shot that killed Tagam was discharged.

It can hardly be denied that Frisco Balacuit was not a forthright
witness, to say the least. He clearly gave the impression that he was
withholding material, information, not only by his varying answers but
by his own implied admission. Once, when he was reminded that his
statement was at war with a previous one, he said, “I am going to tell
the truth,” thus giving to understand that he had not been telling all
he knew. It is possible, however, that Balacuit’s reticence and
seeretiveness was meant to protect the accused, one of whom was his
former chief and the other his fellow-soldier in the guerrilla. He was
admittedly not a fake witness but one who actually saw the crime, if
indeed he was not an active participant therein. Consciousness of his
own guilt as well as consideration for the defendant’s interest may
have been responsible for his vacilating and changing attitude.

But Sabay had no axe to grind, no reason to temporize for or
against the accused and nothing to conceal. We rather incline to
attribute his apparent contradictions to causes other than wilfull
prevarication. The confusion, regarding the time and place of his
imprisonment may have in large measure arisen from the existence of
three houses in which he was questioned or detained—the municipal
police headquarters, the guerrilla officers’ headquarters, and the
guardhouse. It would seem that this witness was loosely guarded or
restrained, and it was possible that he was able to slip out of his
place of detention when Tagam was taken out to be executed, but was
rearrested afterward. Hence the appearance of more than one place of
his confinement and of his having been arrested more than, once-,
Contributing to the confusion may have been faulty interpretation, the
length of time that had elapseds the low intelligence of the witness,
and the omission to transcribe portions of his testimony. The last
anomaly appears in relation to the testimony of other witnesses,. There
are to be found in the record several questions making reference to
statements previously made but which are not in the transcript. On top
of all this, the case for the prosecution was not competently
presented. No effort seems to have been made to seek clarification from
the witnesses of ambiguous terms and statements and seemingly
conflicting answers.

However the case may be, the contradictions noted in the
prosecution’s proofs do not destroy the broad outline of the picture
painted by the witnesses. Over and above the muddled evidence regarding
the time of Sabay’s arrest, the time of Sabay’s imprisonment, the
manner in which Tagam was slain and buried, the precise moment and how
Balacuit saw or learned of the killing, etc.j, the following facts
stand out in bold relief, undeniable or undenied: Magdugo was the
leader of a guerrilla organization which was being formed in Alubijid,
and Llaneta was his right-hand man; Tagam and Sabay were apprehended at
the same time or one soon after the other, to force them to hand in
dynamite which they were supposed to have; they were brought to town at
dusk, about six o’clock p.m», and asked by Magdugo in the police or
guerrilla headquarters where they kept the explosives; as Tagam
answered that he had disposed of all the blasting caps he had, Magdugo
ordered Llaneta, who was armed with a rifle, to take the prisoners to
the guardhouse for further questioning, according to the defendants and
their witnesses; and not more than one hour thereafter, between six and
seven, Tagam was killed and buried at a curb near or beside the town
plaza.

If we forget for a moment the inconsistencies stressed by the
appellants and confine our attention to the salient facts which are not
in serious controversy, the question of who killed Tagam and of whether
or not Magdugo had a direct hand in the murder is greatly simplified.

From the above circumstances, even if no other evidence were
available, the natural inference would be that the two defendants were
the authors of the crime, Llaneta by direct participation and Magdugo
by induction – just as the sum total of the prosecution’s direct
evidence would have it. With these circumstances fixed in mind, the
accounts of the killing by the accused rather than Sabay’s and
Balacuit’s contradictory evidence largely on collateral details become
all-important. These circumstances place a large degree of burden on
the defendants to show that matters turned out differently from what
was to be expected, in the usual course of events, from their
undisputed conduct.

Now then, the defendants’ and their witnesses’ testimony is not
much more satisfactory than that of Sabay and Balacuit. Their
testimonies are also highly self-contradictory and contradict each
other. Quite apart from the contradictions, we do not think the
appellants1 version of the slaying is plausible. We do not believe that
Tagam ran away, or if he did, that he could have gotten far. There is
assurance by Rodolfo Carretas as well as by Balacuit that Tagam’s hands
were bound, on account of which it was futile if not impossible for him
to escape with success, tod there is testimony supplied by Madredano
and Rodolfo Carretas, besides Sabay, that Tagam was already wounded in
the shoulder at the time Llaneta says Tagam made a dash for freedom.
Both Madredaño and Carretas are, we think, truthful witnesses, and no
serious flaws are discernible in their testimony.

Llaneta’s story on the alleged escape is highly incredible on other
grounds. It is incredible that he chased Tagam but did not overtake
him. It is incredible that it was not until after “a few minutes” that
he heard someone shout, “He is here,” and found Tagam, thanks to that
shout, stretched on the ground already wounded and being stabbed by
Balacuit. Llaneta perjured himself when he affirmed that his companions
when he conducted Tagam did not help him in the chase and went home
instead. That in the last statement Llaneta was seconded by Marciano
Elarino only makes it evident that the falsehood was deliberate and
planned. It has been seen that Elarmo, who claims to have accompanied
Llaneta to take Tagam to the guardhouse, swore that after the prisoner
ran off, Llaneta fired his gun twice in the air and Llaneta pursued
hinij that while Llaneta was running after Tagam he, Elarmo, went home
not without telling Llaneta that he was not going vritb him in the
chase; that he decided, to go home because the Japanese were coming;
that he did not “know whether Llaneta caught up with Tagam, having
learned that Tagam had been killed only the following day. No comment
is needed to show the falsity of each and every one.of these
assertions. They are contrary to human reactions and behavior.

Granting that Tagam fled or attempted to flee, Llaneta could not
have lost sight of him; certainly not for as long as a few minutes,
unable to locate him save for someone’s cry. From the point where Tagam
is alleged to have started in his flight to the place where Llaneta
said he came upon the escapee being beaten by Balacuit, there was only
a short distance. And the latter place was part of or very close to the
plaza, and there was no brush or other obstruction to hide Tagam from
Llaneta’s view, as far as can be gathered from the record. There is .no
allegation that Tagam deviated from the short stretch between the two
points, nor is there any explanation how Balacuit happened to be where
he allegedly caught Tagam and how he could catch Tagam without Llaneta
at least seeing him take hold of the prisoner.

The two defendants made other statements that are
self-contradictory, unbelievable, and contradicted by their own
witnesses, statements which have no mark of being due to errors of
transcription or translation, or misunderstanding. The logical effect
of these falsehoods is not merely negative. Deliberate and studied
perjury on. the part of accused, even on nonvital particulars, can
mean, as it does mean in this case, troubled and uneasy conscience and
an endeavor to cover up incriminating facts. Subterfuge is not a resort
of defendants who have nothing to hide.

At any rate, there is direct and positive evidence from
unimpeachable sources which, we think, clinches the case for the
prosecution. Madredano stated that Llaneta shot Tagam and gave the now
deceased a thrust with his bayonet. Madredano was not made to elaborate
on his testimony, the reason being perhaps that he was only a witness
in rebuttal. Carretas corroborated Madredano saying that although he
did not see Llaneta shoot Tagam, no one else could have done so as this
accused alone had a gun. Madredaño at least had no motive to commit
perjury against the defendants. Indeed it appears that Madredaño was
not introduced before the prosecution rested because the provincial
fiscal discovered him as a material witness only through the
defendants’ and their witnesses’ reference to him in the course of
their examination in chief.

The above direct testimony is corroborated by circumstantial
evidence which has already been mentioned. It is a fact admitted by the
accused and affirmed by the witnesses for the prosecution that there
were two gunshots. It is also admitted on all sides that Llaneta v/as
the only man who had a firearm.. We have said that we do not believe
Tagam ran away or that the shots were intended merely to make him stop.
The possibility of the shots having been fired in the air eliminated,
the conclusion is inevitable that they were aimed at Tagam. It can not
be successfully denied that Tagam had bullet wounds, at least one in
the shoulder. He probably had bayonet wounds, too, which may have been
inflicted by Balacuit or Llaneta, or both. Any of these theories is
tenable. But it is undoubted that Llaneta alone could have caused the
victim’s bullet wound or wounds.

If we discard, as we should, the theory that Tagam ran away from
the custody of Llaneta; if the killing was not unforeseen, contrary to
what the defendants would have the court believe; and if, as admitted,
Magdugo was at the scene of the crime when Tagam was buried, we have to
accept as correct Patricio Sabay’s testimony, confirmed by Madredaño
and Carretas, that Magdugo was with Llaneta when Tagam was slain, and
we have to conclude from this that the two accused were in conspiracy.
It is immaterial whether or not we believe Sabay regarding the form in
which Magdugo ordered Llaneta to kill Tagam. As a matter of fact, it is
quite possible that no express order was given at the place of or
immediately before the killing. Sabay’s testimony in this connection
may have been the product of auto-suggestion. But from the
circumstances of the case, we think we are justified in finding that
there was a specific order by Magdugo for Llaneta. to slay Tagam before
the latter was brought out from the guardhouse. It is significant that
Tagam was put in the hands of Llaneta, the only guerrilla who had a
rifle and who was reputed to be the executioners instead of the men who
had arrested the victim. There could have been no other purpose of
Tagam being marched to the plaza than to liquidate him, and the
execution could not have been other than Magdugo’s idea and the result
of his decision. It was Magdugo alone who had Tagam apprehended, who
had investigated him, who was bent on getting from him the dynamite
which he was believed to possess, and it was Magdugo alone who could
have disposed of the prisoner’s life and fate. A mere private acting
under Magdugo1s orders, Llaneta would not have dared finish Tagam
except upon Magdugo’s direction.

We are of the opinion, that the trial court committed no error in
finding the appellants guilty of murder qualified by treachery.

This case was referred to the amnesty commission but that body
refused to take cognizance of it on the ground that the accused denied
having any participation in the crime. Moreover, the defendants
disclaimed, rightly, any intention to invoke the amnesty proclamation.
Counsel for Magdugo, however5 now insist that t:iie benefit of the
amnesty should be applied to the defendants.

The writer of this decision maintained in previous decisions,
contrary to the view of the majority of the Court, that it is rank
inconsistency for one to justify an act, or seek forgiveness for an
act, which, according to him, he has not committed; that amnesty
presupposes the commission of a crime and that when an accused says he
has not committed a crime he cannot have any use for amnesty; that
where an amnesty proclamation imposes certain conditions, as in this
case, it is incumbent upon the accused to prove the existence of such
conditions; that a petition for amnest3r is in the nature of a plea of
confession and avoidance, under which principle the pleader has to
confess the allegations against him before he can be allowed to set out
matters which, if true, would defeat the action.

At any rate, the facts established do not bring this case within
the terras of the proclamation pleaded. The proclamation extends its.,
provisions to “all persons who committed any act penalized under the
Revised Penal Code in furtherance of the resistance to the enemy, or
against persons aiding in the war efforts of the enemy.” There is no
claim that Tagam was in any way aiding in the war efforts of the
Japanese. And the killing was not in furtherance of the resistance to
the enemy. It was not reasonably calculated to produce the needed
explosives to blast bridges. As far as Tagam1s dynamite was concerned,
whether or not he had the stuff, his death put an end to the search for
this war material.

The defendants have hean sentenced to reclusion perpetua,
jointly and severally to indemnify the heirs of the deceased in the sum
of P2,000, and to pay proportionate shares of the costs. The Solicitor
General agrees with the court’s sentence except as to the Indemnity
which, he says, should be raised to P6,000.

With the modification, that the appellants shall pay P6,000 as
indemnity instead, of P2,000, the judgment of the lower court is
affirmed. They shall also pay one-half of the costs of appeal each.

Moran, C.J., Ozaeta, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.