PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. PONCIANO MITRA, ET AL., DEFENDANTS. PONCIANO MITRA, VIRGINIO ZURBITO, AND JESUS MITRA, DEFENDANTS AND APPELLANTS.

Ponciano Mitra, Jesus Mitra, Virginio Zurbito, Mario Ballesteros,
and Felizardo Cantuba were charged in the Court of First Instance of
Masbate with the crime of murder, for the killing of Manuel Brabante.
Upon arraignment, they pleaded not guilty and petitioned for and were
granted separate trials in the presentation of their defense. After the
prosecution had finished presenting its evidence, counsel for
Ballesteros and Cantuba filed a motion to quash on the ground that the
prosecution failed to establish a prima facie case against
them. Resolving said motion to quash, the court, then presided by Judge
Pascual Santos, issued an order on November 12, 1956 reading, in part,
as follows:

“* * * Both of these two witnesses frankly admitted
that while it was true that they saw the five accused pursuing the late
Manuel Brabante, nevertheless, they did not see whether the accused
Mario Ballesteros and Felizardo Cantuba really participated in the
stabbing of the victim which caused his instantaneous death. Moreover,
the prosecution, has miserably failed to establish the element of
conspiracy alleged in the information that all these accused have
planned to liquidate the deceased. In the absence of these essential
facts, the Court cannot do otherwise, but to accede to the motion to
quash conditioned, however, in the interest of good administration of
justice, that the dismissal of the case with respect to the accused
Mario Ballesteros and Felizardo Cantuba would be a provisional one so
that in case any of the rest of the accused may point any one of them
as the author or authors of the stabbing of the deceased, the
prosecution could revive the case against them, but if not, this
dismissal shall be considered absolute and definite.

“IN VIEW
HEREOF, let the case against the accused Mario Ballesteros and
Felizardo Cantuba be dismissed provisionally, with 2/5 costs de oficio.
* * *.”

At the continuation of the hearing on July 24, 1957, the defense
presented its evidence, the court this time being presided by Judge
Ambrosio Dollete, Judge Pascual Santos having resigned in the meantime.
The former decided the case on November 11, 1957, when he was already
in his station at the Court of First Instance of Bataan, In his
decision, the judge found the existence of a conspiracy among the
accused. Although there were no eyewitnesses to the stabbing of the
deceased, he was convinced that the five accused committed the crime.
Ballesteros and Cantuba were found “as much guilty as the other three
accused”, in spite of Judge Santos’ order of November 12, 1956,
dismissing the case provisionally as to them. In the same decision, the
provincial Fiscal was directed to take “such steps as are necessary to
bring Ballesteros and Cantuba within the pale of the law, or initiate
any collateral proceedings in the interests of the State.” Ponciano
Mitra, Jesus Mitra, and Zurbito were found guilty of the crime of
murder, and sentenced each to suffer the penalty of life imprisonment,
and to pay indemnity, solidarily, to the heirs of the deceased and
costs. From this judgment, they appealed to us.

The facts, as disclosed in the records are as follows: At about one
o’clock in the afternoon of April 24, 1955, Avelina, Maria, and Manuel
Brabante went to the house of their aunt, Juana Brabante, at sitio
Cawacawa, barrio Rizal, Batuan, Masbate, to visit her, as she was ill.
After having greeted her, the three went downstairs and seated
themselves on a bench in the yard. A few minutes later, the accused
Jesus Mitra, Zurbito, Ballesteros, and Cantuba, led by Ponciano Mitra,
came from behind the house. Upon seeing Manuel Brabante, Ponciano Mitra
said: “You are here”, and immediately unsheathed his bolo from its
scabbard and with it struck at Manuel. Luckily, the blow did not hit
Manuel but landed on the post of the ladder near which Manuel was
seated. The rest of the accused stood at a distance of one braza
from Ponciano, when the latter stabbed Manuel. Upon hearing Ponciano,
Avelina and Maria Brabante stood up, the latter placing herself between
her brother Manuel and Ponciano, and urging Manuel to run, which he
did. Seeing Manuel run, the five accused chased him. Too scared to do
anything, Avelina and Maria Brabante remained at Juana’s house for
about an hour. Later, they saw the five accused led by Ponciano, coming
from the direction whence they had pursued Manuel, pass by on their way
home.

Thereafter, Avelina and Maria Brabante looked for Manuel Brabante.
They found him at a distance of around 150 meters from Juana Brabante’s
house, on the trail by a creek, already dead with face downwards.
Avelina hurried home to inform her parents about the incident, while
Maria remained at the place. Coming back, the former was accompanied by
her father and brother. At around five o’clock in the same afternoon,
Chief of Police Perocillo and policeman Canales having been informed of
the incident, arrived at the scene and conducted an investigation of
the crime.

An autopsy performed by Municipal Health Officer Lozano, disclosed the following wounds suffered by the victim:

“A. A punctured wound on the left face, an inch long, about half an inch wide, and about one and three fourths inches deep.

“B.
A gaping wound more to the right side of the neck and upper about two
and a half inches long, more than an inch wide and about one and a half
inches at the deepest part.

“C. A gaping wound at the back
of the neck more to the left side of the same, with the length of about
five and a half inches, about two and a half inches at its widest part,
and about three inches deep, cutting at almost halfway the thickness of
the neck.

“D. An open incised wound at the anterior right
arm, running almost parallel to same, with a length of about two
inches, an inch at the widest part and about two and a half inches deep.

“E.
An open incised spearshape wound due to the meeting of the two ends of
similar wounds at the upper left side of the back of the trunk, each
with about five and a half inches in length, two and a half inches at
its widest part and about an inch deep.

“F. An elongated
punctured wound at the right side of the upper back, about half an inch
in length, one fourth inch wide and about one and a half inches deep.

“G.
An open incised wound at the upper left side of the back about three
and a half inches long and about one and a half inches deep.

“H.
A perpendicular to the length of the body, a wound of about five and a
half inches long, two and a half inches at the widest part, and about
two inches deep.

“I. An open incised wound at the back of the
lower left arm about seven inches long, two inches wide and about two
and a half inches at its deepest part,

“J. An incised wound at the inner lower right leg about two and a half inches long, one inch wide and about an inch deep.

“K.
An elongated punctured wound at the right breast, about an inch long,
half an inch wide and with about an inch more or less in depth.” (Exh.
A.)

According to said Officer, wounds B, C, D, and F were fatal and must have been caused by a sharp-pointed bolo.

At around 4:30 o’clock of the same afternoon, Ponciano Mitra
surrendered to Policeman Canales at the Batuan Municipal Building. He
also surrendered to Canales a bolo (Exh. B), with its scabbard (Exh.
B-1), a machete (short bolo) (Exh. C), and a locally-made .45 caliber
pistol (Exh. D). Upon examining the pistol, Canales found an empty
shell (Exh. D-1) in its chamber. Ponciano confessed to Canales that he
stabbed the deceased with the bolo and machete, but stated that the
pistol belonged to said deceased.

The police blotter at Batuan, Masbate, states the following entry on April 24, 1955:

“At 4:30 P.M. a person of Ponciano Mitra reported to
the office of the Chief of Police that he stabbed to death Manuel
Brabante in sitio Cawacawa, Batuan, Masbate with one bolo; one machete
and one locally made pistol with an empty shell inside. During my
investigation he alleged that the pistol and one machete belongs to the
deceased. Same date at 10:20 P.M., Felizardo Cantuba was also arrested
by the Chief of Police with two policemen as alleged by the aggrieved
party in connivance with the killing of Manuel Brabante in the same
sitio this municipality.” (Exh. E and pp. 76-77, t.s.n.)

Other than his verbal confessions to Chief of Police Perocillo and
Patrolman Canales that he stabbed the deceased, Ponciano Mitra refused
to give any other statement, especially a written one, to the police.

As already stated, there was separate trial during the presentation
of the evidence for the defense. Nevertheless, Ponciano Mitra and Jesus
Mitra, represented by the same counsel, introduced evidence jointly
while appellant Virginio Zurbito presented his separate evidence. The
defense offered by Jesus Mitra is alibi. While he admitted that he was
in sitio Cawacawa (the place where the house of Juana Brabante was
situated) in the morning of the incident to see the cockfighting, he
claimed that he left the place at 11 o’clock in the same morning and
went home where he stayed the whole day without going out.

On his part, Ponciano Mitra admitted that he had an encounter with
the deceased Manuel Brabante at the time and place testified to by the
witnesses for the prosecution. However, his version is that it was the
deceased Manuel Brabante who, upon seeing him, said: “It is good that
you are here. You are so arrogant during the time when there was a
dance”, and then immediately gave him (Ponciano) a fist blow on the
chest. Thereupon, Ponciano ran away without retaliating because Manuel
was bigger. Manuel chased Ponciano while Virginio Zurbito and Mario
Ballesteros also ran after Ponciano. After running a distance of from
150 to 200 meters, he (Ponciano) heard a gunshot and as he turned his
head, he saw Virginio Zurbito and Mario Ballesteros hacking Manuel
Brabante with their bolo and machete. As Brabante fell to the ground,
the 2 beckoned at him and as he approached them, he saw Zurbito take a
pistol from the right hand of the prostrate Manuel. When he got near,
Mario Ballesteros and Virginio Zurbito told him to surrender with the
pistol and their bolo and machete, which he did allegedly “because of
the fact that they killed the deceased out of my sake, according to
them.”

Zurbito, on his part, admitted that he too was at the house of
Benjamin Hate (son of Juana Brabante) at about 1 o’clock on the day in
question, and that he saw Ponciano Mitra, Jesus Mitra, Mario
Ballesteros and Felizardo Cantuba, coming to the same place all armed
with boloes and machete, except Mario who had a pistol. He said that
upon the arrival of the four, Ponciano immediately stabbed Manuel
Brabante but did not hit him. Manuel thereupon ran away and was chased
by Ponciano, Jesus, Mario and Cantuba. He tried to stop them, but they
did not heed him. Later, he saw them help each other and gang up on
Manuel Brabante, using their weapons.

Appellants assign as error the finding of the trial court that they
committed the crime of murder. In addition, appellants Ponciano and
Jesus Mitra, raise the following legal issues: (1) Failure of the trial
court to dismiss the case against them as it did with respect to
Ballesteros and Cantuba; and (2) Lack of authority of Judge Dollete to
decide the case. These issues will be discussed first.

In their brief, Ponciano and Jesus Mitra take advantage of the
statement of Judge Dollete in his decision that “Virginio Zurbito and
Jesus Mitra . . . were in the same category as Ballesteros and Cantuba
after the prosecution has rested its case.” From this, it is argued
that since the case was dismissed provisionally as to Ballesteros and
Cantuba, Jesus Mitra should now be acquitted instead of being
convicted. The discrimination, according to him, denies him equal
protection and due process of law. He contends that the provisional
dismissal of the case as to Ballesteros and Cantuba, in effect,
terminated the case as to him. He, therefore urges that the case
against him be likewise dismissed so that he may be placed “in parity”
with Ballesteros and Cantuba. It will be noted, however, that unlike
said two accused, Jesus Mitra never filed a motion to quash. The trial
court, therefore, in disposing of the motion of Ballesteros and
Cantuba, had no opportunity to examine the evidence against Jesus
Mitra. The court (in the person of Judge Santos) passed solely upon the
evidence against movants Ballesteros and Cantuba, but not against
non-movants Ponciano Mitra, Jesus Mitra, and Zurbito. Later, however,
after the defense had closed its evidence and the court had the
opportunity of weighing everything before it, the trial court through
Judge Dollete, found and concluded that Ballesteros, Cantuba, Zurbito
and Jesus Mitra are all in the “same category”, that is, they are all
equally guilty. Consequently, he sentenced Mitra and Zurbito, but could
not do so with respect to Ballesteros and Cantuba because these two
have been previously discharged. Hence, Jesus Mitra’s claim that the
trial court should have also discharged him when it did discharge
Ballesteros and Cantuba, even if he did not file a motion to dismiss,
is without any basis. His contention that he has been denied equal
protection and due process of law is, therefore, untenable considering
that he is not similarly situated as Ballesteros and Cantuba, who had
filed a motion to quash.

The argument that it is dangerous procedure “to leave the life and
liberty of a man hanging on the individual opinions of two judges
acting separately and independently of each other,” assumes that the
guilt of Jesus Mitra was not proved” “in the opinion of Judge Santos”,
but appreciated otherwise by Judge Dollete. The fact, however, is that,
Judge Santos never passed upon the question of Jesus Mitra’s guilt. To
conclude that there was a reappraisal of the same evidence by another
judge of equal rank, is to consider as a fact that which never took
place. The only judge who was given the opportunity to weigh all
evidence submitted to the trial court was Judge Dollete, and the latter
found evidence sufficient to sustain a conviction of all the accused,
notwithstanding the provisional dismissal of the case made by Judge
Santos as to Ballesteros and Cantuba. It was not, therefore, possible
for him to dismiss the case as to Jesus Mitra as alleged in the first
assigned error.

The next issue raised is the lack of authority of Judge Dollete to
decide the case. It is contended that Judge Dollete was without any
authority to decide the case on November 11, 1957, as he was already in
his station at the Court of First Instance of Bataan.

The contention is without merit. Judge Dollete heard and decided
this case, among others, pursuant to the authority granted by the
Supreme Court, upon petition of the Secretary of Justice, by reason of
the vacancy in the Court of First Instance of Masbate created by the
resignation of Judge Santos. Thus, his decision is valid as expressly
authorized under Section 9, Rule 124 of the Rules of Court and Section
51 of the Judiciary^[1] which, respectively, provide that—

“SEC. 9. Signing judgments out of province.—Whenever
a judge of a Court of First Instance shall hold a session, special or
regular, in any province, and shall thereafter leave the province
without having decided a case heard at such session, it shall be lawful for him, if the case was duly argued or an opportunity given for argument to the parties or their counsel in the proper province, to prepare and sign his decision anywhere within the Philippines
and send the same to the clerk of the court by registered mail, to be
filed in the court as of the day when the same was received by the
clerk, in the same manner as if the judge had been present in court to
direct the filing of the judgment.” (Italics supplied.)

“SEC. 51. Detail of judge to another district or province.—
* * * Whenever a judge appointed or assigned in any province by
transfer or assignment to another court of equal jurisdiction without
having decided a case totally heard by him and which was duly argued or
opportunity given for argument to the parties or their counsel, it
shall be lawful for him to prepare and sign his decision in said case
anywhere within the Philippines and send the same by registered mail to
the clerk of the Court to be filed in the court as of the date when the
same was received by the clerk, in the same manner as if the judge had
been present in the court to direct the filing of the judgment: Provided, however,
That if a case has been heard only in part, the Supreme Court, upon
petition of any of the parties to the case and the recommendation of
the respective district judge, may also authorize the judge who
has partly heard the case to continue hearing and to decide said case
notwithstanding his transfer or appointment to another court of equal
jurisdiction.” (Italics supplied.)

On the factual findings of the trial court, all three appellants
assail the credibility of the Brabante sisters. We have examined the
records and we are satisfied that the incident occurred as testified to
by ithe prosecution witnesses. Their testimony is corroborated by the
admissions of Ponciano Mitra as well as those of Zurbito. For instance
Ponciano admitted that he was accompanied by Ballesteros and Zurbino
who were both armed. Zurbito, on the other hand testified that Ponciano
arrived at the place with Jesus Mitra, Cantuba, and Ballesteros, all
armed with boloes and machete, except the latter who had a revolver,
and that the two Brabante sisters were really with their brother
Manuel. Both appellants admit the chasing, although Ponciano claims he
was the one chased.

It is true that there is no evidence on record about the actual
slaying of the deceased other than that given by appellants Ponciano
Mitra and Zurbito against each other and against the other accused. It
is, likewise, true that because of the separate trials for the accused,
the aforementioned evidence can not be used against any of the accused.
Nevertheless, said absence of evidence about the actual slaying does
not preclude the conviction of herein appellants. The facts which the
trial court considered as establishing conspiracy, in our opinion,
carry sufficient weight to sustain conviction, considering that the
declaration of prosecution witnesses Maria and Avelina Brabante,
partially corroborated as noted above by admissions of the appellants,
tally with their statements given to the police on the very spot where
the deceased was found (pp. 24-25, t.s.n. in relation to pp. 4-5, rec.)
These statements were given at a time when fabrication was farthest
from the minds of said witnesses. On the basis of their testimonies,
the trial court correctly found the existence of conspiracy from the
following facts: (1) arrival of the five accused all armed, in the yard
of Juana Brabante’s house, where the deceased and his two sisters were;
(2) the immediate hacking by Ponciano Mitra; (3) the chase made by the
five accused when the deceased ran away; (4) the return of the five
accused to their homes, passing by the house of Juana Brabante, shortly
thereafter; (5) the finding of the deceased’s body in the place where
he was chased; (6) the presence of several wounds on the deceased’s
body; and (7) the surrender of Ponciano Mitra to the authorities of
Batuan, Masbate. In addition, mention may also be made of the fact that
the four accused, posted themselves one braza from their
companion Ponciano Mitra while the latter stabbed the deceased. That
the details of a common plan do not appear in evidence, is immaterial.
It is enough that each accused pursued the same object and achieved it
through their collective acts. Direct proof is not essential to show
conspiracy. If it is proved that two or more persons aimed by their
acts towards the accomplishment of the same unlawful object, each doing
a part so that their acts, though apparently independent, were in fact
connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiment, a conspiracy may be
inferred though no actual meeting among them to concert means is
proved. (People vs. Carbonel, 48 Phil., 868; People vs. Cu Unjieng, 61 Phil., 236; People vs. Racid Lucman, 97 Phil., 575; 52 Off. Gaz. [4] 2010.) ^[2] There being conspiracy, all the accused are liable for the crime committed.

We do not agree with the finding of the trial court that there was
treachery in the killing of the, deceased Manuel Brabante. Although the
act of Ponciano Mitra in stabbing the deceased from behind while the
latter was seated on the bench may be considered treacherous, there is
no competent evidence that after he was chased by the five accused, the
deceased was stabbed in a treacherous manner at the actual place where
he was found dead. Except for the testimony of the appellants
themselves against each other, which is inadmissible because of the
separate trial, there was no eyewitness to the stabbing which resulted
in the death of the deceased. Neither do we find the circumstance of
evident premeditation attendant in the commission of the crime, because
there is also absent the slightest evidence on record that the five
accused had, prior to the moment of the killing, resolved to commit the
crime, nor is there any proof that the deceased’s death was the result
of meditation, calculation, reflection on the part of the accused.
(U.S. vs. Donoso, 3 Phil., 234; U.S. vs. Balagtas,
19 Phil., 164.) The crime committed, however, is qualified by abuse of
superior strength, it appearing that the accused were all armed and
decidedly superior in number than the deceased who was unarmed. (People
vs. Caroz, et al, 68 Phil., 521.) Hence, the trial court is
correct in finding appellants guilty of the crime of murder. Ponciano
Mitra is entitled to the mitigating circumstance of voluntary
surrender, as he surrendered voluntarily to the police immediately
after the commission of the crime. His sentence should, therefore, be
reduced to reclusion temporal in its maximum period. However,
in accordance with the Indeterminate Sentence Law, we impose upon him
the in determinate penalty of from 10 years and 1 day of prision mayor, as minimum, to 17 years, 4 months, and 1 day of reclusion temporal, as maximum.

Modified as above indicated, the judgment of the trial court is affirmed, with costs against the appellants. So ordered.

Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., and Gutierrez David, JJ., concur.

Montemayor, J., took no part.

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^[1] Rep. Act 296, as amended.

^[2] People vs. Calucer, 95 Phil., 192, People vs. Alfiler, 104 Phil., 410; 56 Off. Gaz. (5) 936; People vs. Moises, L-10876, September 23, 1958.