THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARCELINO PAGADUAN AND FELICIANO DE GRACIA, DEFENDANTS-APPELLANTS.

This case is before us owing to the death penalty meted out to Feliciano
de Gracia, for the crime of murder, of which he was
convicted by the Court of First Instance of Cagayan,
in the above-entitled case, and the appeal taken by defendant Marcelino Pagaduan, from the
decision therein, in which he was found guilty as an accomplice and sentenced
to an indeterminate penalty ranging from 12 years of prision
mayor to 20 years of reclusion temporal, with the
corresponding accessory penal­ties, and, jointly and severally with De Gracia, to indemnify the heirs of Nicomedes
Fernandez in the sum of P6, 000, without subsidiary im­prisonment in case of
insolvency, as well as to pay the costs propor­tionately.

In the evening of June 9,
1965, Nicomedes Fernandez and his fa­mily
were asleep in their house at the Barrio of Sidem, Municipality
of Gattaran,
Province of Cagayan. Between I0 and 11 p.m., he was awak­ened by the voice of
appellant Marcelino Pagaduan,
calling him from the yard, followed by a similar call of Federico Belen, who
bade Fernandez to come down. As Fernandez did so, he found Belen and Pagaduan standing near his house, together with Feliciano
de Gracia, Dante Brillantes
and Hermenegildo Urian.
Belen had a .22 rifle, whereas De Gracia carried a
grease gun. In addition to a small bolo tucked in his waist, Pagaduan had, according to the prosecution, a home-made gun
(paltik), whereas Brillantes
held a wooden club.  No sooner had
Fernandez emerged from his house than Belen bade him to raise his arms and lie
down on the ground, facing downward. Then Belen asked him where his gun was.
Fernandez replied that he had already returned it to the local Judge.
Thereupon, Belen ordered Fernandez to call the people in his house, which
Fernandez did. When his wife and children, and a couple of natives, who were
their househelp, came down, Belen, likewise, bade
them to lie down on their stomachs, beside Fernandez. Thereupon, De Gracia and Brillantes went up the
house, upon orders of Belen, to ascertain whether there were other people
therein, but they found none.  De Gracia proceeded to ransack the house, seemingly in search
for a gun, with negative result. Then, he took from the house a flashlight, a
razor, a pair of scissors and the sum of P20 in cash. As De Gracia
and Brillantes returned to the yard, Belen inquired
about the gun. Upon learning of their failure to find any, Belen scolded De Gracia. After bidding his (Belen’s) companions to watch
Fernandez and his family, Belen went up their house, to verify whether or not
there was a gun therein. Soon he emerged therefrom
carrying a bow and three (3) arrows. Then, picking up a piece of wood, he threw
it at Fernandez, hitting him on the head. Belen asked Fernandez, once more,
where his gun was hidden, but Fernandez reiterated his pre­vious answer.
Seemingly exasperated, Belen kicked him twice, called him a liar and shot him
with his (Belen’s) .22 rifle. And, making use of the
bow, Belen imbedded the three (3) arrows into the body of Fernandez.  Soon thereafter, the group, composed of
Belen, De Gracia, Pagaduan,
Brillantes and Urian, left;
but, before doing so, Belen warned the wife and children of Fernandez not to
report the matter to the PC because, otherwise, he would kill them.

After leaving the scene of the occurrence, the group passed by
the house of Pagaduan, who remained there, with instructions
not to report to the PC. Before departing, Belen got four (4) chicken from Pagaduan.  Next to drop from the group was Urian, followed by Bril­lantes,
both of whom were warned by Belen to keep their mouths shut. Thereafter, Belen
and De Gracia went to the forest, where they spent
the night.

Meanwhile, Mrs. Fernandez
and her children had brought into their house the dead body of Nicomedes Fernandez, which had the fol­lowing injuries:

1.     
Lacerated wound at the right upper frontal
region.

2.     
Lacerated wound above the middle of the right
eye.

3.      Lacerated
wound above the inner cantus of the right eye.

4.     
Lacerated wound at the upper portion of the
right pina of the ear.

5.      Gunshot
wound between the clavicle and the first rib at the middle of the right
shoulder blade.

6.     
Gunshot wound at the epigastric
region left of the xyphoid process.

7.     
Stab wound at the right side, at the right mid-axillary line between the ninth and tenth ribs.

8.     
Stab wound at the posterior right axillary line between the tenth and eleventh ribs.

9.     
Stab wound at the right posterior axillary line one inch below stab wound No. 8.

According to the municipal health officer of Gattaran,
who examined said body, Fernandez had died owing to the injuries sustained by
him in the liver and the
thoracic organs.

Early the next morning, a son of Fernandez, reported the
occurrence to the authorities. Forthwith, Sgt. Pagawisan
of the PC organized a posse of members thereof and policemen, who went in
search of the culprits. It appears that Belen had been wanted for some time by
agents of the law.  On
June 11, at about 7:07 a. m., the posse caught up with him and De Gracia
proceeding southward towards the municipality of Alcala. The possee fired at the
fugitives and succeeded in killing Belen, whose grease gun was found slung on
his shoulder. De Gracia managed, however, to escape,
dropping his rifle behind; but his freedom was short-lived, for two (2) days
later, or, on June 13, Sgt. Pagawisan
apprehended him on board the ferry at Camalaniugan.  Brought to the PC Headquarters at Nassiping, Gattaran, De Gracia admitted his participation in the killing of
Fernandez and signed the affidavit, Exhibit D, before the Clerk of the Court of
First Instance of Cagayan. Prior thereto, Pagaduan had surrendered to the authorities, claiming that
he had acted at the point of the gun of Belen.

Thereafter, an information was filed
with said Court, accusing Pagaduan, Urian De Gracia and Brillantes, of robbery in band with homicide. Brillantes was, subsequently; discharged from said inform­ation,
to be a state witness.  Still later, the
case against Urian was dimissed
provisionally, on motion of the prosecution and with the con­formity of Mrs.
Fernandez. As a consequence, only Pagaduan and De Gracia stood trial, after which, the lower court rendered a
decision, finding De Gracia guilty as principal by
cooperation, of robbery with homicide, with the aggravating circumstances of
band, nocturnity and dwelling, and convicting Pagaduan of said crime, as accomplice, and imposing upon
them the penalties already adverted to.

It is not disputed that both Pagaduan
and De Gracia were with Belen, as well as Brillantes and Urian, when
Fernandez was killed by Belen under the circumstances above mentioned. The
lower court found De Gracia responsible for the acts
of Belen, upon the ground that there was conspiracy between them. The question
as regards De Gracia is whether the existence of such
conspiracy has been duly established.

In this connection, the record shows that Brillantes
was 17 years of age; that he lived with his sister Gloria, at the Barrio of Nagatutuan; that on June 9, 1965, at about 8 p.m., Belen
and De Gracia showed up thereat and bade Brillantes to come with them to Taligan;
that De Gracia then held a gun, which he pointed to Brillantes whereas Belen carried another gun with a
“long barrel”; that, upon arrival at Taligan,
Belen instructed Brillantes to take them to the house
of Urian; that, upon reaching this house, Belen ordered Urian to
come down; that as Urian obeyed, Belen inqui red about his (Urian’s)
firearm; that Urian said he had none, but added that Nicomedes Fernandez had a .38 caliber revolver; that Belen then directed Urian to come with them, which Urian
did; that the four of them then went Northward, until they reached the house of
Pagaduan, whom Belen, likewise, bade to join the
group, which, thereupon, proceeded Eastward; that, as the house of Fernandez –
about 100 meters away from that of Pagaduan – came
within their view, Belen told his companions to stand guard around it; that,
when they were near the house,
Belen bade Pagaduan to call Fernandez; and that, as Pagaduan did so, the events already narrated took place.

It should be noted that
De Gracia accompanied Belen when the lat­ter went to
the house of Gloria Brillantes, on June 9,
1965, at 8 p.m.; that the first two,
armed with guns, awakened Brillantes; that De Gracia pointed his gun at Brillantes,
when Belen bade the latter to come with them to Taligan;
that De Gracia went up the house of Fernandez to find
out whether there were other people therein, after Fernandez, his wife and
children and other members of their household had gone down to the yard and
lain down on the ground, by order of Belen; that De Gracia
had his gun aimed at Brillantes when they entered the
house; that, alghough the only instruction given by
Belen, before De Gracia went up the house, was for
him to ascertain whether there were other people therein, De Gracia ransacked the place, in search of the fire­arm Belen
was looking for, thereby indicating that De Gracia was
posted beforehand on Belen’s objective; that De Gracia,
moreover, took and carried away a flashlight, a razor, a pair of scissors and
the sum of P20, before leaving the house; that it was De Gracia
to whom Belen entrusted the custody of Fernandez and the members of his family
lying down on the ground, as Belen personally went up the house of Fernandez;
that, subsequently to the commission of the crime charged, De Gracia was the only member of the group of Belen who stuck
to him, after leaving Pagaduan, Urian
and Brillantes in their respective places of abode;
that De Gracia even spent over 24 hours hiding in the
forests, together with Belen, until the agents of the law shot and killed the
latter; and that, even then, De Gracia kept on
eluding the authorities, until his apprehension on board a ferry boat, two (2)
days later. Thus, it is manifest that Belen and De Gracia
had unity, not only of purpose, but, also, in the execution thereof, thereby
evincing the existence of cons­piracy between them.

As regards Pagaduan, it appears that he was the last man to join the
group headed by Belen, before reaching the house of Fernandez; that the
purpose of Belen and De Gracia, when they picked up Brillantes, was to look for Urian,
who was believed to have a firearm; that the idea of going to the house of
Fernandez did not develope until Urian
denied that he had any gun and revealed that it was Fernandez who had one; and
that Pagaduan was not picked up by Belen and De Gracia, ac­companied by Brillantes
and Urian, until these four (4) were on the way to
the residence of Fernandez. In other words, the record suggests that Pagaduan did not know about the intent of Belen and De Gracia to get the gun they thought Urian
had, and could have had no previous know­ledge that their group, including Brillantes, would go to the place of Fernandez. Upon the other hand, the very
evidence for the prosecution shows that Pagaduan had
been ordered by Belen to join his group; that, although Pagaduan
called Fernandez as soon as the group reached the scene of the occurrence, Pagaduan did so by order of Belen; that Paga­duan
was the first member of the group to detach himself therefrom,
after the commission of the crime charged; and that, before leaving Pagaduan in his house, Belen bade him to refrain from
reporting the matter to the Philippine Constabulary. These circumstances
bolster up the theory of Pagaduan to the effect that
he had acted under compul­sion from Belen, who was known to be a police
character.

The prosecution argues that the failure of Pagaduan
to escape when Belen went up the house, in order to find out by himself whether there was any firearm therein, demonstrates
that the former was in conspiracy with the latter.  We should not overlook, however, the fact
that De Gracia was then in the yard, armed with a
gun, with which he could have shot Pagaduan, had he
tried to escape. In fact, Pagaduan surrendered to the
authorities shortly after Belen was killed. In short, Pagaduan’s
complicity has not been established beyond reasonable doubt, and the case
should be dismissed, insofar as he is concerned, with the proportionate part of
the costs de officio.

Considering that the crime of robbery with homicide was com­mitted
with several aggravating circumstances which are not compen­sated by any
mitigating circumstance, the extreme penalty imposed upon Feliciano de Gracia is in accordance with law, although the in­demnity
due from him should be increased to P12, 000.^[1]

Modified as above indicated, the decision of the lower court is
hereby affirmed, in all other respects, with the proportionate part of the
costs against Feliciano de Gracia.

IT IS SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Sanchez, Castro, Fernando, Capistrano, and Teehankee JJ., concur.

Reyes, J., on leave.

Barredo, J., did not take part, on official leave abroad.

^[1] People v. Pantoja, G.R. No.
L-18793, Oct. 11, 1968; People v.
Gut­ierrez, G.R. No. L-25372, Nov. 29, 1968; People v. Buenbrazo, G.R. No.
L-27852, Nov. 29, 1968; People v.
Mabaga, G.R. No. L-26337, July 25, 1969.