THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. PEDRO CABASA AND IGNACIO AJOS, DEFENDANTS AND APPELLANTS.

On October 22, 1944, Aurelio Saavedra was hauled away from his house,
situated at barrio Tamban, municipal district of Surup, province of Davao, by
appellant Ignacio Ajos, Gil Castillo and one Luis Dugcoy, each armed with, a
rifle or carbine. A few kilometers from Saavedra’s house, Saavedra was shot and
killed by Ajos. Ajos was a member of a guerrilla unit under the command of his
co-defendant Pedro Cabasa, also an appellant, who was a first class private in
the organization.

The theory of the prosecution is that Ajos, the leader of the trio, received
an order from Cabasa to kill Gaavedra at sitio Mugdog. The theory of the defense
is that Cabasa’s order was only to arrest Saavedra and bring him to Cabasa for
investigation in connection with his alleged collaboration with the Japanese;
that on the way back to the guerrilla camp or headquarters, Saavedra tried to
wrest his captors’ weapons and failing in his attempt, started to flee; that it
was while Saavedra was running away that Ajos fired at and killed him. The
accused denied Castillo was a guerrilla. They said he was a prisoner and was
sent to go along with Ajos and Dugcoy only because neither of these knew the
place.

Around the issues thus joined revolves the evidence for both sides. As these
issues involve the relative credibility of the witnesses we deem it convenient
to extract the pertinent parts of their testimony.

Gil Castillo testified substantially as follows: He was a guerrilla under
Pedro Cabasa. On October 22, 1944, Cabasa told Ajos to go to Tamban with the
witness and Dugcoy, to get Aurelio Saavedra and shoot hm upon arrival at sitio
Mugdog. Thereupon Ajos with Luis Dugcoy and witness made for Saavedra’s barrio.
Ajos was armed with a carbine, Dugcoy and the witness with rifles. Ajos’ carbine
was lent him by Cabasa, who told Ajos to use that weapon instead of Ajos’ rifle.
Upon reaching Saavsdra’s place, Ajos told Saavedra that Cabasa sent for him
because he was to be taken to the east coast. Irene, Medel, Saavedra ‘s
connon-law wife, and her children were in the house besides Saavedra. Saavedra
willingly followed Ajos and his companions and at a distance of about 100 meters
from Saavedra’s house, Ajos bound Saavedra’s hands behind his back with a rope
while Dugcoy pointed his gun at him. Once thus tied, Saavedra was taken to
Mugdog, about three kilometers distant from Saavedra’s house, and there Ajos and
Dugcoy led Saavedra to a bush against Saavedra’s protest. In the bush, Ajos told
Saavedra, “I am going to shoot you.” As Saavedra and the witness knew each
other, the former begged Castillo to help him, but he replied that he could not
do anything since he was only a private. Saavedra was immediately shot by Ajos
from a distance of four meters and dropped dead. As Ajos was going to fire
another shot the witness prevailed upon him not to do so. Ajos and his two
companions covered Saavedra’s dead body with small twigs, stones and woods.
Afterward the trio returned to the barracks where Ajos reported to the
detachment commander, Cabasa, that his order had been accomplished. Cabasa
warned them to keep quiet.

Against Gil Castillo’s testimony, Ignacio Ajos in substance stated as
follows: He was under Pedro Cabasa. On October 22, 1944, he, Gil Castillo and
Luis Dugcoy were commanded at the camp by Pedro Cabasa to arrest Saavedra. When
Cabasa gave the order, Gil Castillo was downstairs, only Luis Dugcoy being
present besides himself. As he told Cabasa that he did not know the place where
Saavedra lived, Cabasa called for Gil Castillo who was then feeding the hogs
downstairs. Cabasa told Castillo to go with the witness and Luis Dugcoy and show
them Saavedra’s house. The order of Cabasa was for Ajos to bring Saavedra to the
camp. Cabasa did not tell him to kill Saavedra or to tie Saavedra’s hands. They
arrived at Saavedra’s house at about 2 o’clock p.m. Saavedra upon being
appraised of the order of arrest which Ajos read to him expressed his
willingness to come along, which he did. It was about 3:50 o’clock p.m. when
they left Saavedra’s place. They were walking in a file, Dugcoy going ahead,
Aurelio following Dugcoy, then Gil Castillo and then Ajos, who was suffering
from a sore foot. All of a sudden Ajos heard a call for help from Castillo
“because Luis was being grabbed by Aurelio.” Ajos fired twice in the air in
order to warn Saavedra to stop from his attempt to seize Dugcoy1s gun. Saavedra
did not succeed in his attempt because Luis’ gun was slung on his shoulder and
fell to the ground. Failing to grab Dugcoy’s gun, Saavedra started to flee and
Ajos fired at him. The shot found its mark, Saavedra was killed and buried in
the same place. Gil Castillo had a gun but no ammunition because he was a
prisoner. He had been arrested by Pedro Cabasa at Nangan. He was at the camp as
prisoner. At the camp Hie witness reported what happened to Cabasa.

Pedro Cabasa testified that he was a recognized guerrilla. On or about
October 22, 1944, his camp was located in Luzon, Surup, Davao. He was the
detachment commander of that unit. Luis Dugcoy and Ignacio Ajos were his
soldiers. On the date above mentioned, he gave an order to Ignacio Ajos and
Luis Dugcoy for the apprehension of Saavedra in Tamban. Gil Castillo was not
present when he gave the order; Castillo was downstairs feeding the hogs. He
ordered the arrest of Saavedra for his pro-Japanese activities’. Because,
according to Dugcoy, he did not know the place where Saavedra lived, he got Gil
Castillo to guide Ajos and Dugcoy. He called the testimony of Castillo about his
alleged order to shoot Saavedra “as false and frame-tip.” He said Castillo and
two brothers had been caught in September, 1944, in where the brothers were
under the command of Estrella, municipal chief of police of the puppet
government in Surup. That was how Gil Castillo became his prisoner. He also
denied that he ordered Ajos to tie Aurelio Saavedra. He admitted having given
Castillo a gun but said there was no ammunition. He said he did this “as a
military tactics, to give attraction to certain people to surrender to my camp.”
Saavedra, he said, did not reach the camp because, according to Ajos, at Lilisan
Saavedra grabbed the rifle Dugcoy, and Castillo shouted for help, upon which
Ajos shot into the air while Luis and Saavedra were grappling the possession of
the gun.

Luis Dugcoy did not testify. Neither was he prosecuted.

It is clear in our mind that Aurelio Saavedra was killed by Ajos in the
manner and under the circumstances related by Gil Castillo. That Saavedra’s
hands or arms were securely bound was affirmed not only by Castillo but also by
Irene Medel, Saavedra’s mistress. That was in fact the most natural step for
Ajos and his companions to take as a simple matter of precaution. With his hands
shackled and with three armed men to contend with, it was unthinkable that
Saavedra would dare escape or snatch the guns of his captors. We are also
convinced that Gil Castillo himself was a guerrilla and was provided with
ammunition as well as Ajos and Dugcoy. That he was armed with a rifle seems to
be a conclusive refutation of the assertion that he was a prisoner. Cabasa’s and
Ajos’ explanations for Castillo’s possession of a gun sound foolish.

What was Cabasa’s role in the slaying of Saavedra? It has been seen that
Cabasa, although admitting that he ordered Saavedra’s arrest denied that he told
Ajos to kill the now deceased. But we are inclined to give credence to
Castillo’s testimony, and so is Ajos, counsel in this Instance. Gil Castillo was
direct and positive in his statement that an order to do away with Saavedra was
given by Cabasa. The very fact that Saavedra was killed on the way to the camp
is a good corroboration of Castillo’s testimony. For it is hard to conceive that
Ajos would have slain his prisoner if his instruction had been to take Saavedra
for investigation, unless we should accept the discredited version that Saavedra
made a dash for freedom. A mere private, obedient and meek, Ajos had no reason
of his own to kill the deceased. According to the court, Ajos was of humble
disposition, lacking education but inclined to obey blindly the orders of his
superiors.

Unlike Ajos, Cabasa had a motive to liquidate Saavedra. Cabasa had been
jilted by Irene Medel, Saavedra’s common-law wife. According to the latter, a
Spanish mestiza married to another man but cohabiting with Saavedra, about one
week before October 22, 1944, Pedro Cabasa ¦while walking past her house on
patrol with men of his unit, saw her, came up, embraced her, and tried to kiss
her. At that time she was alone with her children, Saavedra being away. She
screamed for help and only then did Cabasa release her and get off the house.
She said he made love to her but she protested that she was married.

The theory that Cabasa should have Saavedra killed for his rebuff by Irene
Medel might sound unreasonable and appear out of proportion to Irene’s
“impudence.” But Saavedra’s assassination could have been conceived with a
triple objective: to inflict moral suffering on the woman herself and deprive
her of material support, and, in possible expectation of a new approach to win
her, to put Saavedra out of the way and to warn the woman of his power of
retribution. Cabasa was a man who, it would seem, would stop at nothing to
attain his end. Supreme within his territory, it appeared that this accused was
arrogant, vindictive, brutal, intolerant of any opposition or disobedience. In
Exhibit D, Castillo’s affidavit which was admitted in evidence without objection
and which Ajos’ counsel quoted in his brief, the affiant thus described this
appellant:

“He was a little king in our place, and I don’t know of any person who could
dare oppose him or disobey him while he was herein our place. How many cows and
pigs were killed or ordered killed by him? The owners could not oppose him
because they were afraid of him. If these big people were afraid of him, with
more reasons that I should be afraid because I am only a poor man. * * * Daring
Cabasa’s time here he could do what he pleased. Do you not know, sir, that
Cabasa also killed three persons in the house of the Hussian in Mugdog? After
killing these three men in Mugdog, nothing happened to him; he could still
return here with his carbine, and all the people were afraid. * * * One Venancio
(Monobo) of Malipugi, Tibinwan, Surup, for wasting only one bullet, he was tied
to a coconut tree in the heat of the sun, by Cabasa; he was also butt-struck by
Cabasa while tied; Julio Antolin, barrio lieutenant of Langa, Surup, was also
tied in the heat of the sun to a tree and butt-struck by him because the former
did not give the latter chickens and eggs; and because he was not given chickens
and eggs, he was accused by Cabasa of being a pro-Japanese; all other persons
who would refuse him rice, clothing, chickens and other foodstuffs he would say
to them that they were Japanese spies or pro-Japanese; one Catalino Sajulla of
Sigaboy, who was only explaining to Cabasa as to what would happen to the houses
if burned after evacuating them, Cabasa harshly and at once pointed his gun at
Sajulla, telling him he was a spy of the Japanese; and lastly his soldier,
Martin Malintad for failung to bring him foodstuffs which he ordered the former
to commandeer, was also butt-struck by him, and threatened him to shoot him
should he again fail to comply with his orders.”

That Cabasa did not molest the woman after her husband had been slain does
not destroy the validity of our surmise; his desistance may well have been due
to change of mind or other causes arising after the murder.

Counsel for Ajos concluded from Cabasa’s character that Ajos feared and
blindly obeyed his chief and that when Cabasa gave him his carbine to murder
Saavedra he must have obeyed under the impression that if he did not he himself
would be shot. Ajos thus acted, it is argued, under the impulse of
uncontrollable fear and should be freed from penal responsibility under Section
6 of Article 12 of the Revised Penal Code.

The trouble with this plea is that it is not founded on any claim by Ajos
himself. Ajos made absolutely no reference to the fact that he acted under
duress or under the impulse of an uncontrollable fear for his life or safety.
Fear, being entirely personal and a matter of defense, lying within the peculiar
knowledge of the subject, should be alleged and proved to the satisfaction of
the court by the accused. For the rest, Ajos killed Saavedra without the
presence of Cabasa and could very well.have disregarded Cabasa’s order without
imminent danger of being subjected to punishment for his disobedience. He was
not under physical or moral compulsion to return to the camp.

The defendants undertook to establish that Aurelio Saavedra was a Japanese
spy and that his arrest was motivated by his collaboration with the enemy.
Cabasa testified that on November 20, 1943, he and his men were attacked in the
schoolhouse in barrio Luzon by fifty constabulary soldiers armed with rifles and
guided by Saavedra. Pedro Fabian was sworn to declare that in compliance with an
order of the guerrilla commander he hunted pigs north of Mugdog the first week
of November, 1943, that as it rained, he took shelter and spent the night in the
house of one Alejandra Palma Gil; that early the next day he was arrested in
that house by the constabulary .and saw Saavedra leaning against a tree, a short
distance from the constabulary soldiers. Cabasa added that in September, 1944,
two members of the constabulary were captured by the guerrillas and in the
course of the investigation admitted that Saavedra had been the guide of the
constabulary when they assaulted the guerrillas in November, 1943.

The lower court did not give credence to Cabasa’s and Fabian’s testimony. It
observed that Fabian was Irene Medel’s lawful husband and naturally disliked
Saavedra. The court also observed that for one year nothing was done against
Saavedra and that it was only shortly after Irene Medel had rejected Cabasa1s
advances that Saavedra was apprehended and killed. Moreover Fabian’s .testimony
was contradicted by Nicolas Gloshenkho who, testifying in rebuttal, stated
positively that it was the son of his servant who led the constabulary to the
house of Alexandra Palma Gil where Fabian was arrested.

The trial court found both accused of murder and sentenced Cabasa to an
indeterminate penalty of from 6 years and 1 day of prision mayor to 12 years and
one day of reclusion temporal, and Ignacio Ajos to an indeterminate
penalty of from h years, 2 months and 1 day of prision correccional to
10 years and 1 day of prision major (sic), both to indemnify jointly
and severally the heirs of Aurelio Saavedra in the sum of P2,000, with
subsidiary imprisonment in case of insolvency, and to pay proportionate shares
of the costs.

The crime committed is murder qualified by treachery. Neither mitigating nor
aggravating circumstances attended the commission of the offense with respect to
Gabasa, but the extenuating circumstance of lack of instruction is to be
appreciated in favor of Ajos with no aggravating circumstance to compensate it.
Cabasa will therefore be sentenced to reclusion perpetua with the
corresponding accessories and Ajos to an indeterminate penalty of from 12 years
and 1 day to 20 years of prision correccional, also with accessories of
law, both to pay the heirs of the deceased, jointly and severally, P6,000 as
indemnity, and each to pay one-half of the costs of both instances. It is so
ordered.

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