THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FLORENTINO PATERNO, ARADES LAGBAWAN, CERBESA MALIMBASAO, SARMIENTO PANGANAY, ENRIQUE LEMENTE AND MANGAPA TALBIN, DEFEN…

There is little or no dispute as to these facts. The appellants were members
of an underground organization called volunteer guards. On February 8, 1943,
while they and other volunteer guards were gathered at their camp in barrio
Tagabakid, municipality of Mati, province of Davao, they were attacked by a
Japanese patrol guided by Primo Jurolan and Demenciano Chavez. On the 12th, the
appellants, with Ignacio Vicente, Tranqui Manapos and other volunteer guards,
marched to Jurolan’s barrio, one or two kilometers distant from their camp, in
search of the men who had betrayed them. Finding Jurolan and his wife, Delfina
Gatillo, below their house, defendants Cerbesa Malimbasao, Arades Lagbawan and
Sarmiento Panganay tied Jurolan’s hands behind his back and led him upstairs.
Jurolan’s wife’s hands were similarly bound and she was taken into the house,
but the identity of the accused who did this is not disclosed by the record.
Inside the house, the couple were stabbed and killed with daggers, the husband
by Arades Lagbawan and the wife by Enrique Lemente. When the victims were
already dead, Mangapa Talbin set fire to the house with Jurolan’s three day-old
live infant, as well as its parents’ lifeless bodies, inside, as the result of
which the child perished in the fire. The accused took Jurolan’s two elder
children out of the house before burning the house.

The court below found the defendants guilty of murder for the death of
Delfina Gatillo and sentenced Florentino Paterno to reclusion perpetua
and his five co-defendants to an indeterminate penalty of 10 years and 1 day to
17 years, h months and 1 day of reclusion temporal, and to indemnify
the heirs of the deceased in the sum of P2,000. For the death of the child (no
reference to the burning of the house was made) the court sentenced all the
accused to reclusion perpetua and to pay an indemnity of P2,000 to its
heirs. The accused were also condemned to pay proportionate shares of the costs.
For the murder of Primo Jurolan, the defendants were pronounced entitled, to the
benefits of amnesty Proclamation No. 8 for the reason that Jurolan, as the court
found, was a Japanese spy.

The defendants’ plea on this appeal is that they acted in obedience to direct
orders and threats of one Anselmo Onofre. It is alleged that they committed the
crimes from fear of that man, fear of being themselves slain if they refused to
comply. It is said that Onofre was the recognized overall commander of the
defendants organization and that he was the only one who had a firearm, a .45
caliber pistol, the defendants being provided with no more weapons than
bolos.

The accused did not introduce any evidence on their behalf to substantiate
their plea. They rested their case on the testimony of Ignacio Vicente and
Tranqui Manapos, two of their companions who were used by the prosecution as
witnesses.

As the Solicitor General says in his brief, these witnesses turned hostile to
the prosecution and testified virtually in favor of the appellants. Ignacio
Vicente swore on direct examination that Paterno was the leader of the band and
was the man who had Primo Jurolan and his wife killed and their house burned
with their baby inside. But on cross-examination, in answer to very leading
questions, he declared that Anselmo Onofre it was who was their supreme
commander and who ordered the slaying of the Jurolan couple and the destruction
of their dwelling. The next witness for the prosecution, Tranqui Manapos, in his
examination-in-chief declared in the same vein as Vicente did on
cross-examination.

It is to be noted that in these two witnesses’ affidavits, sworn to before
the justice of the peace, and in their testimony before the provincial fiscal,
not even a hint was made of Anselmo Onofre. For this reason the trial judge
believes that what is contained in Vicente’s and Manapos’ affidavits is the
truth and that in deviating from their previous statements their motive was no
other than a desire to free Paterno from punishment. In this we concur.
Vicente’s and Manapos’ explanation for not naming Onofre to the justice of the
peace and the fiscal; that is, they were afraid of him, is unconvincing, since
Onofre was not around when they made their statements—in fact Onofre’s
whereabouts was unknown—and particularly since they were already in the custody
and under the protection of peace officers. Moreover, the affidavits were made
in June, 1946, when the war was over, complete peace and order had been restored
and civil government reestablished.

The defendants themselves made written and sworn confessions before the same
justice of the peace, and none of them, except Paterno and Lemente, implicated
Onofre. More, these confessions were produced by the accused before the Amnesty
Commission as the sole evidence on which they relied for their petition for
discharge under the amnesty. It is unthinkable that evidence of vital importance
to their defense, so vital as to be the sole point stressed by them in the court
below and in this instance, should have been forgotten or withheld by all the
accused, except two, for no other reason than fear of an absent, or dead,
man.

The defendants take exception to the admission of their confessions,
introduced in evidence as Exhibits D, E, F, G and I, on the theory that they
were mere copies. The objection is not well taken. The impugned exhibits are
certified true copies of carbon copies of the original, copies which were kept
at the office of the justice of the peace. The non-presentation of the copies
which contained the defendants’ signatures was explained by the fiscal, who
stated that the original had been destroyed by fire.

Exhibit D to I, independent of Vicente’s and Manapos’ testimony, are in
themselves conclusive proofs of appellants’ guilt. Their voluntary character has
not been challenged. Although Paterno’s affidavit (Exhibit D) incriminates
Onofre, yet it does not speak of compulsion or duress brought to bear on him or
any of his fellow-defendants. So even if we should assume, for the sake of
argument, that the crimes at bar were perpetrated by Onofre’s order, such order
would not serve to justify or excuse appellants’ deeds.

It was only Lemente, the accused who, besides Paterno, implicated Onofre,
that made a statement which, if true, might exempt him from criminal
responsibility with respect to the killing of Delfina Gatillo. Lemente stated in
his affidavit that Onofre commanded him at the point of a pistol to kill
Jurolan’s wife. But no credence can be given to this part of Lemente’s
statement. There was absolutely no need for Onofre, granting that he was
present, to force an unwilling tool to take the life of a defenseless woman when
to do the killing himself would require less effort on his part than to threaten
and intimidate a comrade.

From the facts set forth in this decision, the appellants have been correctly
found guilty of murder with reference to the slaying of Delfina Gatillo, but
they had the same degree of participation in the crime and all should be
sentenced to reclusion perpetua. For setting fire to the house with the
resulting death of the child, they are guilty of arson, not murder, under
Article 321, paragraph 1, of the Revised Penal Code. Murder or homicide is
absorbed in arson as defined in this article. Murder or homicide in a juridical
sense would exist if the killing were the objective of the malefactor and the
burning of a building were resorted to only as the means of accomplishing his
purpose. The rule is otherwise when arson, as in this case, is itself the end
and death is a mere consequences. However, the punishment imposed by the trial
court is correct in view of all the circumstances. The indemnity for Delfina
Gatillo’s and her baby’s death should be raised to P6,000.00 each. With these
modifications, the appealed decision is affirmed, with costs of the appeal
charged against the appellants in equal share.

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