G.R. No. L-6371. September 28, 1955
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE VS. FILEMON NOTARTE, NICANOR PAJAC AND JULIO PAJAC, DEFENDANTS. FILEMON NOTARTE, DEFENDANT AND APPELLANT.
PADILLA, J.:
Luisa Yaranon and his mother Preciosa Alburan took dinner in their house at
Bahian, barrio of Anongo, municipality of Catubig, province of Samar, the floor
of the house being less than one meter from the ground. After taking their
repast Benjamin Giray sat on a hammock. His wife and mother sat near him and the
former began to peel gabe root. No sooner had they been in that
position then a gun report was heard and Benjamin Giray moaned uttering these
word: “Aroy, I was hit. I shall die.” He staggered and fell down near the door
of the kitchen and his wife ducked facing the door towards the road. In that
position she saw a flash outside. She called Emiliano Robion, a brother-in-law,
and heard the tramp of persons outside the house making their way toward the
trail. Then she crawled toward Benjamin and found him dead with wounds in the
right arm and on the back and near him three pellets and round pieces of
cardboard (Exhibit C). Emiliano Robion, whose house was about four meters from
that of Benjamin Giray, and who had just taken his dinner and was sitting at the
door of his house, upon hearing the gun report, leaped to the yard of his house
with a bolo and a flashlight, focused it on the trail near the house of his
sister-in-law and saw Nicanor Pajac, Julio Pajac and Filemon Notarte, the latter
in a stooped position carrying a home-made shotgun called bardog in the
locality, who stood up and ran away preceded by his two companions Nicanor Pajac
and Julio Pajac. The spot where he saw them and the nearest corner of the house
of Benjamin was less than three meters. Then he posted himself under a coconut
tree and not long after went to the house of Benjamin where he found him dead.
As a result of the gunshot, which hit Benjamin Giray in the right arm and back
he died almost instantaneously of syncope from acute internal hemorrhage, as
testified to by Dr. Sixto Goborne who performed the necropsy. Five other lead
pellets were extracted from the body of the deceased (Exhibits A and B).
An information for murder was filed against the defendants. Upon arraignment
they entered a plea of not guilty.
The evidence for the prosecution establishes the facts just narrated. After
the prosecution had rested its case counsel for the defendants moved for the
dismissal of the information on the ground that the evidence is insufficient to
prove their guilt. The Court dismissed the information as to Nicanor Pajac and
Julio Pajac on the ground that the evidence failed to show conspiracy between
the three defendants with the proportionate costs de oficio, but denied
the motion to dismiss as against Filemon Notarte. After hearing the defendant’s
evidence the trial court found him guilty of murder and sentenced him to suffer
reclusion perpetua, the accessories of the law, to indemnify the heirs
of the deceased in the sum of P2,000 and to pay the proportionate costs. From
this judgment he has appealed.
The defense of the appellant is alibi. According to him, at about
5:00 o’clock p.m. of 18 January 1952, he went to the store of one Constancio de
la Cruz in Hiboboliao, Catubig, Samar, to buy cigarettes but, as he was told
that he had none to sell, he proceeded to the store of Alfredo Iramia where he
was also informed that there were no cigarettes for sale. He was given, however,
a stick of cigarette and he lighted it. While he was thus smoking inside the’
store a laborer arrived bringing a sack of rice and he helped unload it. Then he
was requested by Alfredo Iramia to measure fifteen gantas of rice for
Victoriano Orteza and after measuring that amount of rice he poured it into a
jute sack, but discovering that the sack had a hole he asked for a needle and
stitched it. At about 7:00 o’clock the wife of Iramia informed her husband that
the table was set, so Iramia invited Notarte to take his dinner with them which
invitation he gladly accepted after mending the hole in the sack. While they
were eating their dinner he heard Iramia say that he would send to town some of
his men to sell hemp. He thought it was an opportunity for him to go to town so
he asked Iramia to allow him to go with his men to which request Iramia acceded.
After dinner they returned to the store and he helped Iramia open boxes of
canned goods for display in the shelves and after finishing the work he bade
Iramia goodbye to go home but the latter told him to stay and sleep there,
because it was already late, so that he could wake up early in the morning and
go to town with the laborers. When he woked up early the following morning and
was set to go to town with the laborers, his nephew arrived and told him that
his mother was not feeling well, so he returned home.
The testimony of Victoriano Orteza is unreliable for although he is a
brother-in-law of the victim, his wife being the tatter’s sister, yet he had a
grudge against the deceased for not giving her share in the estate of their
deceased mother; and because Victoriano Orteza considered Alfredo Iramia as his
“boss” who was interested in freeing the appellant for services the latter had
been rendering to him in his store. Apart from this, there was no impossibility
for the appellant to have absented himself unnoticed from the store of Alfredo
Iramia and after shooting Benjamin Giray returned thereto, the distance from the
store to the house of the victim being only three kilometers.
Counsel for the appellant discourses on the reaction of Emiliano Robion who
hearing a gunshot and fearing he might be killed could not have done and seen
what he testified to, to wit, jumped from his house with a bolo and flashlight,
focused it and saw three persons in the yard of the house, and concludes that
Emiliano Robion did not testify to the truth. There was nothing unusual and
abnormal in the reaction of Emiliano Robion who upon hearing the gun report and
call of Luisa Yaranon, his sister-in-law, jumped from his house to see who had
discharged the firearm and after seeing Filemon Notarte with a home-made shotgun
to hide under a coconut tree and after losing sight of the three malefactors to
repair to the house of his brother-in-law where he found him dead.
There was a motive imputable to Filemon Notarte. Five days before the tragic
death of Benjamin Giray, in the house of Alfredo Iramia, Bienvenido, brother of
Filemon, had an altercation with Benjamin, who said “I am already here now that
you are propagating that you are going to kill me, tell him that I am here
waiting for him,” and Bienvenido retorted saying “If it is Filemon who has a
grudge against you, you try to meet him and talk to him.” Not long after that
exchange of hot words between Bienvenido and Benjamin, Filemon arrived at the
place but fortunately Benjamin had left. Informed by Nicanor Pajac about
Benjamin’s angry words, Filemon said “You wear skirts because you are like
women. . . If I were here during the fight you will see my ability … It will
not take long. . .” This incident is testified to by Cresente Ribo, corroborated
by Luisa Yaranon de Giray and Filomeno Rodriguez, the vice-mayor of Catubig.
Appellant contends that the testimony of Emiliano Robion, Cresente Ribo and
vice-mayor Filomeno Rodriguez should not be given credence, because Robion was
denounced by him to the mayor of Catubig for registering as voter in two
precincts in the elections of 1951. Cresente Ribo, who testified to the incident
of 13 January 1952 in the house of Iramia, had an unpleasant incident with the
appellant who took his bolo and slapped his face, because he shouted causing
disturbance in one of the meetings of the Liberal Party. Vice-mayor Filomeno
Rodriguez testified against him because of political rivalry, the said
vice-mayor belonging to the Nacionalista Party, and he to the Liberal Party, in
Catubig. He also claims that Emiliano Robion’s testimony cannot be relied upon
because some witnesses for the defense testified that on different occasions
they had heard him say that as the S night was dark he had not recognized the
killers of Benjamin. The testimony of the witnesses just referred to was denied
by Emiliano Robion and Antonio Alburan. The next day after Benjamin Giray was
shot to death, patrolman Jose de Asis went to the scene of the crime to
investigate. Emiliano Robion told him that he saw the appellant and his two
companions the previous night in the yard of Benjamin’s house when the latter
was shot. And the same was repeated in his statement sworn to before the justice
of the peace of Catubig, Samar, on 20 January 1952.
The fact that Benjamin Giray was killed by a gunshot on the night of 18
January 1952 while sitting on a hammock in his house after taking his dinner and
that he died as a result of that gunshot which hit him in his right arm and on
the back perforating his body and causing his death as a result of syncope from
internal hemorrhage is not disputed. The only point discussed and argued by the
appellant is whether Emiliano Robion really saw him on the night in question in
the yard of the deceased’s house, which is only four meters from that of Robion,
in a stooped position carrying a home-made shotgun called bardog in the
locality, who after Robion had focused the flashlight on the trail and
recognized him stood up and ran away to the rice-field toward Hibobolia.
Emiliano Robion testified that he knew the appellant since boyhood. The
ill-feeling Robion might have harbored toward the appellant for the latter’s
report on the former’s registration in two precincts in the elections of 1951
for which after all he was not prosecuted,[1] could not have been enough motive or
reason to impute to the appellant the commission of a serious crime. And there
being a motive on appellant’s part to do away with Benjamin Giray because of the
incident that took place five days before the latter’s tragic death, the finding
of the trial court that the appellant shot Benjamin Giray to death is amply
supported by the evidence. The crime was committed with treachery because the
shot was fired from behind.
The judgment appealed from is affirmed, with costs against the appellant.
Bengzon, Acting C.J., Montemayor, Reyes, A., Jugo, Bautista Angelo,
Labrador, Concepcion, and Reyes, J.B.L., JJ., concur.
Judgment affirmed.
[1] P. 119, t.s.n.