G.R. No. L-29979. September 28, 1979
THE PEOPLE OF THE PHILIPPINES, PLAINTIFFS-APPELLEES, VS. MADA-I SANTALANI, TAMBUTSO PATUHIN, JAYRI JAMARI, TAMBUSONG MOHAMADSALI, SAMINDI COSING, ET AL., DEFENDANTS, TAMBUTSO PA…
MELENCIO-HERRERA, J.:
Automatic review of the judgment of the Court of First Instance
of Davao, dated September 18, 1968, in Criminal Case No. 10537, for Multiple
Murder with Direct Assault upon Agents of Persons in Authority which meted out
the penalty of death on Tambutso Patuhin, Jayri Jamari and Tambusong
Mohamadsali. Samindi Cosing,
who was sentenced to life imprisonment, has also appealed.
The dispositive portion of the trial Court’s judgment reads:
“The guilt of the following accused, namely, Tambutso
Patuhin, Jayri Jamari and Tambusong Mohamadsali have been
definitely established and for which reason, considering the nature of the
crime committed and the means of its commission as well as the presence of
aggravating circumstances proven with no mitigating circumstances it is the
painful duty of this Court to impose upon them the supreme penalty of DEATH.
“The guilt of Saminde Cosing has also been established beyond
doubt, considering however, that he is a minor which from observation of the
Court is only 17 years old, he is hereby sentenced to RECLUSION PERPETUA,
plus accessory penalties of the law
“Regarding accused Sapal Jabal as already shown he being an
accessory, he is hereby sentenced to SIX (6) YEARS and ONE (1) DAY of prision
mayor to TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal with
accessory penalties of the law and to pay the costs.
“Furthermore, the accused Tambutso Patuhin, Saminde Cosing, Jayri
Jamari, and Tambusong Mohamadsali are hereby ordered to indemnify the heirs of
the deceased, Sgt. Bonifacio Bonotan, Sgt. Salvador Geraldo and Felix Bildera
the sum of P10,000.00 for each of them with no subsidiary imprisonment in case
of insolvency by reason of the penalty imposed.
“Further, the banca used in the commission of this crime is
hereby declared confiscated in favor of the government.
“With respect of the accused, Madai Santalani, Pangalasa
Anodin, Montolgawi Tolawi, Talasan Sansiwa, Mastalgari Pawaki, Abubakar Aplasi
and Janay Apsari are hereby ACQUITTED on reasonable doubt.”
“SO ORDERED.”[1]
The Information against the original twelve accused reads as
follows:
“The undersigned accuses Madai Santalani, Pangalawan Anodin,
Mantolgawi Tulawi, Talasan Sansiwi alias Atalan, Sapal Jabal, Tambotso Atuhin,
Jayri Jamari, Janay Apsari, Mastalgari Pawaki, Abubakar Aplasi, Samindi Cosing
and Tambausong Mohamadsali of the crime of Multiple Murder with Direct Assault
Upon Agents of Persons in Authority, under Art. 48 of the Revised Penal Code,
committed as follows:
“That on or about April 7, 1967, in the municipality of
Peñaplata, Samal, Davao, Philippines, and within the jurisdiction of this
Court, the above-mentioned accused, conspiring and confederating together with
Jawali Badjao and Pabling (Bisaya) who are still at large and helping one
another, with treachery and evident premeditation and with the use of explosives
and with intent to kill, did then and there wilfully, unlawfully and
feloniously throw sticks of dynamite upon S/Sgt. Bonifacio Bonutan and Sgt.
Salvador Geraldo, who are agents upon persons in authority and while in the
performance of their official duties as peace officers together with Felix
Beldera, a civilian, while riding on an outboard motor in the sea between
Talicud Island and Samal Island, which exploded thereby causing instant death
to the afore-mentioned.
“The commission of the foregoing offense is attended by the
aggravating circumstance that the crime was committed in an uninhabited place
for the purpose of impunity.
“Contrary to law.”[2]
Following is a summary of the evidence presented by the
prosecution:
On April 7, 1967, Sgts. Bonifacio Bonotan and Salvador Geraldo,
both members of the 431st PC Company, were at Caputian Island to conduct an
investigation of the reported suicide of a Chinese named Pa Uy. At about 10:30 in the morning of the same
date, some fishermen reported that they had very little catch that morning
because there were Muslims who had been dynamite fishing. Responding to said report, the two PC
soldiers boarded a PC 40 HP motor boat with Felix Bildera, a civilian, as
motorman, and pulled out to sea. Some of
the accused, who were in two bancas, were caught with the dynamited fish. After their arrest, the two bancas were towed
with a rope, one behind the other, by the PC motorboat towards the direction of
the PC Barracks at Davao City. On board
the FIRST BANCA immediately behind the PC motorboat, were the accused Abubakar
Aplasi, Mastalgari Pawaki, Janay Apsari and Tambutso Patuhin. Aboard the SECOND BANCA, which was farther
from the PC motorboat, were the accused Samindi Cosing, Jayri Jamari
and Tambusong Mohamadsali. Before
long, another motorboat of 18 HP (the ATTACKING MOTORBOAT) carrying the accused
Pangalasan Anodin, Pabling (Bisaya), Jawali (Badjao), Madai Santalani,
Montalgawi Tolawi, Talasan Sansiwi, and Sapal Jabal, intercepted the PC
motorboat while still in the open sea between Talicud Island and Samal Island. Pabling (Bisaya), still at-large at the time
of the trial, acting as the leader of the group in the ATTACKING MOTORBOAT
together with Jawali (Badjao), also a fugitive from justice, tried to negotiate
with the apprehending PC Sergeants for the release of the arrested fishermen
and of the bancas which were being towed.
Failing in their efforts, Pabling (Bisaya) suddenly threw a stick of
dynamite at the PC motorboat but did not hit the PC soldiers.[3]
Thereafter, at least three shots were heard to have been fired by the PC
soldiers and Jawali (Badjao) was, in fact, hit and was bleeding.[4]
Pabling (Bisaya) and Jawali (Badjao) then each threw two more sticks of
dynamite at the PC motorboat. One PC
soldier was thrown out of the PC motorboat after one of the explosions. Appellants Tambutso Patuhin in the
FIRST BANCA, and Tambusong Mohamadsali and Samindi Cosing in the
SECOND BANCA also threw dynamite sticks at the PC motorboat. After the dynamiting was over, Pabling
(Bisaya) and Jawali (Badjao) picked up the dead bodies of the other PC soldier
and the civilian in the PC motorboat, tied a stone each to their feet and
dropped them into the sea.
A PC patrol was dispatched to the sea area to hunt for the
culprits and to recover the bodies of the victims but this proved
unsuccessful. Only pieces of the PC
motorboat as well as the outboard motor itself were recovered (Exhibits F and
G).
There was no eyewitness to the crime committed in the open
sea. The lead came when one of the
investigating officers, Captain Avelon, came upon the accused Sapal Jabal at
Piapi, Davao City, repainting a banca.
When about to be apprehended, Sapal Jabal ran but was chased and
apprehended. He admitted that he was
with the group who dynamited the PC motorboat and likewise mentioned as his
companions Talasan Sansiwi, Mantolgawi Tolawi, Pangalawan Anodin and Madai
Santalani. Apprehension of the eleven
other accused followed thereafter.
Investigation was conducted by the PC in the Tausog dialect, a dialect
understood by the accused, which was interpreted to them by Corporal
Espantaleon (Exhibits C, D, E, K, L, M, N, O, P, Q and R), wherein they
respectively admitted having been with the group and described their respective
participations in the dynamiting incident.
The Statements were sworn to, some before Assistant Provincial Fiscal
Matondo, Jr. and others before Special Counsel Escovilla.
Despite their confessions, the accused, testifying individually,
except for Talasan Sansiwi, who is dumb and did not take the witness stand,
denied having killed the victims and invoked the common defense of alibi,
claiming that they were not present at the scene of the crime during the
alleged time of its commission but were in their respective homes.
Contradicting the evidence presented by the prosecution to
establish the voluntariness of the extrajudicial confessions they had executed,
they countered that they suffered different forms of maltreatment inflicted
upon their persons by the PC soldiers during the investigation to force them to
affix their thumbmarks in their respective Affidavits and to admit complicity
in the killing of the two PC soldiers and one civilian.
After trial, the lower Court held that “the following
namely: Pabling (Bisaya) and Jawali
(Badjao), who are still at large, Tambutso Patuhin, Samindi Cosing and Jayri
Jamari and Tambusong Mohamadsali were all responsible for the act of throwing
dynamites which blasted the two (2) PC soldiers and one (1) civilian.”[5]
Although, according to the trial Court, the accused Tambutso Patuhin, Samindi
Cosing and Jayri Jamari mentioned in their respective statements
that they did not hit the PC motorboat, the trial Court opined that “there
was concert of action with the leader of the group who blasted the said PC
soldiers and thereby proved the existence of conspiracy among them.”[6]
Sentence was meted out accordingly, as heretofore quoted. Accused-appellants, through their counsel de
officio, attribute to the trial Court the following errors:
FIRST ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN CONVICTING THE
ACCUSED-APPELLANTS WHEN THE EVIDENCE DOES NOT SHOW THAT THEY PARTICIPATED IN
THE MATERIAL EXECUTION OF THE ACTS THAT CAUSED THE DEATH OF THE TWO PC
SOLDIERS, NAMELY, BONIFACIO BONUTAN AND SALVADOR GERALDO AND OF THEIR CIVILIAN
COMPANION NAMED FELIX BILDERA.
SECOND ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN CONVICTING THE
ACCUSED-APPELLANTS WHEN, EVEN ASSUMING THAT THEIR ALLEGED EXTRAJUDICIAL
CONFESSIONS ARE VALID AND ADMISSIBLE IN EVIDENCE, THE PROSECUTION DID NOT
ESTABLISH THAT THERE WAS A CRIMINAL CONSPIRACY AMONG THEM AND THE PERSONS WHO
ACTUALLY KILLED THE ALLEGED VICTIMS.
THIRD ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN CONVICTING SAPAL
JABAL AS AN ACCESSORY TO THE CRIME CHARGED IN THE INFORMATION, THERE BEING NO
EVIDENCE TO SHOW THAT THE ACTS IMPUTED TO HIM FALL WITHIN THE PURVIEW OF
ARTICLE 19 OF THE REVISED PENAL CODE.
FOURTH ASSIGNMENT OF ERROR
THE LOWER COURT ERRED WHEN IT ADMITTED IN
EVIDENCE THE ALLEGED EXTRAJUDICIAL CONFESSIONS OF THE ACCUSED APPELLANTS AND
THOSE OF THEIR CO-ACCUSED AND WHEN IT CONVICTED THEM ON THE BASIS THEREOF.[7]
The third assigned error relative to Sapal Jabal need not be
considered. He was not an appellant,[8]
and he has passed away, according to a Manifestation, dated May 26, 1969,
submitted by counsel de officio.[9]
1. It is a fact that, in its
judgment, the trial Court relied heavily on the extra-judicial confessions
executed by the accused. The latter
would have us believe that duress and violence were used in procuring those
affidavits from them. We are not
persuaded. Corporal Felipe T. Tuvilla,
who took the statements of Madai Santalani, Jany Apsari, Sapal Jabal, Tambutso
Patuhin, and Abubakar Aplasi (Exhibits K to R) declared that the statements
were given freely and voluntarily.[10]
Sgt. Carbonnel, who obtained the statements of Samindi Cosing and Tambusong
Mohamadsali (Exhibits C and E) also made a similar declaration. Assistant Provincial Fiscal Matondo; before whom
Madai Santalani, Mantolgawi Tolawi, Jany Apsari, Sapal Jabal, Tambutso Patuhin,
Pangalawan Anodin, Mastalgari Pawaki, Abubakar Aplasi subscribed their
statements, declared that he interrogated the accused and each one of them
voluntarily admitted the contents thereof.
In fact, he added that relative to the Statement of Sapal Jabal
(Exhibit O), this accused repudiated a particular portion of his statement and
denied participation in the killing so that he crossed it out (Q. & A. No.
12, Exhibit O).[11] Fiscal
Mantilla also testified that he was with the PC patrol dispatched to the crime
scene and he knew for a fact that the accused Tambusong Mohamadsali and
Pangalawan Anodin volunteered to point to the exact spot where the blasting
took place. Special Counsel Escovilla,
before whom Tambusong Mohamadsali and Samindi Cosing subscribed
their affidavits, also declared that those two accused gave their statements
freely and voluntarily.[12]
The fact that the accused-appellants were not informed of their
right to remain silent and to counsel will not render their extra-judicial
confessions inadmissible as the confessions were obtained in 1967, or prior to
the effectivity of the new Charter on January 17, 1973.[13]
For its part, the defense has not presented any evidence of
compulsion or duress nor violence on their persons. They failed to complain to the swearing
officers (t.s.n., April 4, 1968, p. 48);[14]
they did not institute any criminal or administrative action against their
alleged torturers for maltreatment (t.s.n., May 13, 1968, p. 349);14 they
showed no mark of violence in their bodies (t.s.n., July 31, 1968, p. 109);[15]
neither did they have themselves examined by a reputable physician to buttress
their claims.[16]
Additionally, the fact that the accused, in their respective Statements,
tended to exculpate themselves and instead pointed to Pabling (Bisaya) and
Jawali (Badjao) as their leaders but who are still at large, as the real
culprits (Exhibits K, N, P and R), is another factor indicating voluntariness.
“Where the narration of the declarant tends to explain his conduct
or shift the blame to others, this is a circumstance that may be considered as
demonstrative of voluntariness rather than of compulsion.”[17]
In fine, the extrajudicial confessions of the accused, having
been voluntarily given, are admissible in evidence. The commission of the crime is corroborated
by evidence of the corpus delicti, particularly, the debris of
the PC patrol boat which were recovered, (Exhs. F and G), and by the statement
of Fiscal Montilla that Tambusong Mohamadsali and Pangalawan Anodin
could point to the exact spot where the felony was committed. The element of death in the corpus delicti
and the criminal agency causing it have been established, besides the fact
that it may be proven circumstantially or presumptively.[18]
2. The respective Statements
of the accused (Exhibits C, D, E, K to R) are unanimous in that Pabling
(Bisaya) and Jawali (Badjao) were the leaders of the group and the actual
perpetrators of the criminal act.
Typical of such a declaration is that of Pangalawan Anodin, one of their
companions in the same motorboat, who stated:
Q. 18
– What happened, after this?
A. – We
intercepted the PC sea patrol who was towing the 2 pump-boats and when we were
already near them, Pabling (Visaya) talked to the members of the PC sea
patrol. Shortly thereafter, Pabling
(Visaya) lighted a dynamite that he was holding, then stood up and threw it to
the PC Outboard Motor hitting the rear portion of same resulting to the death
of a civilian who was operating and one (1) soldier near him and destroying the
said portion of the Out-Board Motor.
That the throwing of dynamite by Pabling (Visaya) was immediately followed
by the two throws of Jawali (Badjao) of 2 dynamites wherein I did not see
anymore whether it hit the PC Out-Board Motor or not as I was already taking
cover inside our Out-Board Motor. Then,
I again saw Pabling (Visaya) threw 2 dynamites and after this, I stood up and saw
the already blasted PC Out-Board Motor.
That we went near and there I saw two (2) dead bodies, that of a civilian
and that of a soldier. Then Pabling
(Visaya) and Jawali (Badjao) tied a stone of a head size respectively to one
of the legs of each dead body and dumped them into the sea. After this, we left for Piapi, Davao
City.” (Exhibit L)
Further, that Pabling (Bisaya) and Jawali (Badjao) were actually
the ones who disposed of the bodies of the victims is corroborated by Tambusong
Mohamadsali in his Statement (Exh. C), when he stated:
Q.
13 – After
killing the two PC soldiers and their civilian companion, what did you do to
them?
A. – After
killing them with dynamite blasts, Pabling (Visaya) picked up the dead bodies
of one PC and the civilian from the PC motor boat with the help of his
companions in their group. The body of
the other PC soldier was thrown out after the blasts. Pabling (Visaya) tied a big stone in the feet
of the PC soldier whose body was found on board and also the civilian companion
with big stone tied in his feet and dropped them to the sea and both were
sunk.” (Exh. C)
The statements of Jayri Jamari, Madai Santalani, Pangalawan
Anodin, Mantolgawi Tolawi and Sapal Jabal are to the same effect (Exhs. D, K,
L, M and O).
The crucial question to determine is whether, on the part of the
accused-appellants, as found by the trial Court, there was “concert of
action with the leaders of the group who blasted the said PC soldiers and
thereby proved the existence of conspiracy among them.”
We rule affirmatively. Although
no previous agreement to commit the crime was evidently proven, the existence
of a conspiracy may be inferred from the acts of appellants tending to show a
community of criminal purpose or design.
“The agreement of which the law speaks is not limited to one
which is written or otherwise expressly or directly made prior to the
commission of the crime. It is not
necessary that the malefactors, for an appreciable time prior to the commission
of the crime, had actually come together and agreed in terms to pursue a common
design. For conspiracy to exist, it is
enough that the participants had the same purpose and were united in its
execution, as may be inferred from the attendant circumstances. To establish conspiracy, it is not necessary
to prove previous agreement to commit a crime if there be proof that the
malefactors have acted in concert and in pursuance of the objectives.
Conspiracy may be inferred from the acts of the accused themselves when such
point to a joint purpose and design.
Their action must be judged not by what they say, for what men do is the
best index of their intention.”20
That the accused-appellants were animated by the same purpose and
were united in the execution of the criminal act may be deduced from their own
Statements. By their respective admissions,
accused-appellants stated in their Affidavits that they actually participated
in the throwing of dynamite at the PC motorboat. To quote Tambutso Patuhin:
“Q. 7 – What
is your participation in this killing incident?
“A. – That
I have thrown (1) dynamite to the already blasted PC Outboard Motor per
order of Pabling (Visaya) but it did not hit the said Outboard Motor.”
(Exh. P-1)
Tambusong Mohamadsali’s Affidavit reads in part:
“Q. 11 – Will you please relate how the incident took place?
“A. – x
x x After throwing their dynamites, the men in the third banca shouted at us
riding in the two bancas being towed that we must also throw our dynamites at
the PC motorboat or else they would blast us also with dynamites and so we
also threw dynamites at the PC motorboat.” (Exh. C)
Similarly, Samindi Cosing admitted his participation in
the dynamite throwing in his Affidavit, partly quoted as follows:
“Q.
20 – Who threw dynamites at them?
“A. – I
threw dynamite but it did not hit the PC.” (Exh. E)
In so far as Jayri Jamari is concerned, the incriminating
evidence is clear from the answer he gave to the following question.
“Q.
8 – Samindi
Cosing and Tambusong Mohamadsali declared that you with the rest of your companions
in another banca that was also apprehended by the same PC patrol to include
that other banca which intercepted the PC while you were being towed killed
the PC soldiers by blasting them with dynamites, is this also true?
“A. – That
is true, sir.” (Exh. D) (Underscoring supplied)
The fact that accused-appellants directly participated in
dynamiting the PC motorboat was corroborated by Sapal Jabal who was in the same
ATTACKING BOAT as the leaders, Pabling (Bis ya) and Jawali (Badjao), thus:
“Q.
26 – Aside
from your group of seven men, do you recall if any on board the two Pump-Boat
had also thrown dynamites to the PC OutBoard Motor?
“A. – Yes,
sir. In the first Pump-Boat I saw Tambutso
Patuhin throw the dynamite once but it did not reach the PC Outboard Motor
and in the other Pump-Boat I saw Samindi Cosing throw one but it did not
also hit the PC Outboard Motor.” (Exh. O) (Underscoring supplied)
Mastalbari Pawaki corroborated that fact when he said in his
Affidavit:
“Q.
21 – While you were already towed by
the PC sea-patrol towards the direction of Davao City, what happened, if any?
“A. – x
x x I also saw Jawali (Badjao), Tambutso Patuhin and Samindi Cosing
throw dynamite to the banca where the two (2) soldiers and one (1) civilian
rode on.” (Exh. Q) (Underscoring supplied)
Abubakar Aplasi’s declaration was in the same vein:
“Q.
7 – Aside
from Pabling and Jawali, who else of your companions you also saw threw
dynamites to the PC Outboard Motor?
“A. – Tambutso
Patuhin and Samindi Cosing.” (Exh. R)
The Affidavits of Pangalawan Anodin and Madai Santalani were to
the same effect (Exhs. L-3 and K-3, respectively).
Although they admittedly hurled dynamite, the accused-appellants
tried to exculpate themselves from criminal liability by interposing the
defense that they did so only in obedience to the command of their leaders and
under “compulsion of an irresistible force or under the impulse of an
uncontrollable fear of an equal or greater injury,” that of being dynamited
themselves. We do not find such defense
a valid one. In some early cases, it has
been held:
“A threat, in order to induce insuperable fear, must promise
such grave results, and such results must be so imminent, that the common run
of men would succumb. The crime
threatened must be greater than, or at least equal to, that which we are
compelled to commit.
“x x x before a force can be considered to be an irresistible
one, it must produce such an effect upon the individual that, in spite of all
resistance, it reduces him to a mere instrument and, as such, it compels his
members to act and his mind to obey.”21
“Duress as a valid defense should be based on reasonable fear
of a real and imminent danger to one’s life or limb. It should not consist of speculative, fanciful,
or remote fear.”22
Assuming that the command was, in fact, given, and the threat
made, the fear engendered thereby was more fanciful and remote rather than
real. For one thing, it is doubtful that
the leaders Pabling (Bisaya) and Jawali (Badjao) would have made good their
threat considering that they themselves were negotiating for the release of
the entire group. For another, they all
had a common cause against the PC, then a common enemy. It is more logical to conclude, therefore,
that accused-appellants hurled dynamite because they were motivated by a common
sentiment, that of escaping the clutches of the law. The contention that when they did so the PC
motorboat had already been blasted and the victims dead so that the situation
would not have been altered, is hardly plausible under the circumstances
surrounding the incident and has not been sufficiently established. Besides, for conspiracy to exist,
participation in every detail of execution is not indispensable. Where there is “a closeness of personal
association and a concurrence of sentiments,” as in this case,
“conspiracy may be inferred.”
“Conspiracy implies concert of design and not participation in
every detail of execution. If it is proved
that two or more persons aimed, by their acts, at the accomplishment of some
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 sentiments, conspiracy may be
inferred although no actual meeting between them to conspire is proved, for the
prosecution need not establish that all the parties thereto agreed to every
detail in the execution of the crime or that they were actually together at all
stages of the conspiracy.”23
Conspiracy having been established, the act of one is the act of
all.
“Everyone of the conspirators who took active part in its
execution, is therefore responsible for all of the acts of the others in
furtherance of the common design.”24
3. The nature of the crime
committed is Murder because of the presence of the qualifying circumstance of
having been committed by means of explosion (Art. 248(3), Revised Penal Code).
“A person who threw a hand grenade at his victim who was
killed as a result of the explosion is guilty of murder.”25
It is complexed with the crime of Direct Assault upon Agents of
Persons in Authority as it has been proven that the two PC enlisted men were
engaged in the performance of their official duties at the time they were
attacked by the accused.
Under Article 48 of the Revised Penal Code, when a single act
constitutes two or more grave or less grave felonies, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period. The penalty prescribed for
Murder under Article 248 of the Revised Penal Code is reclusion temporal
in its maximum period to death. The
imposable penalty therefore, is death.
Being a single indivisible penalty, it has to be applied regardless of
any mitigating or aggravating circumstances that may have attended the
commission of the deed.26 However, in view of the dissent of
Justice Ramon C. Aquino, concurred in by Justice Antonio P. Barredo, the
required number of votes for the imposition of the capital punishment has not
been obtained and, therefore, the penalty to be imposed is the next lower in
degree, or reclusion perpetua.
In so far as Samindi Cosing is concerned, considering his
minority, the penalty one degree lower, or reclusion perpetua, has been
correctly imposed (Art. 68(2) in relation to Art. 61(1), Revised Penal Code).
WHEREFORE, the judgment of the trial Court is hereby
modified in that Tambutso Patuhin, Jayri Jamari and Tambusong Mohamadsali shall suffer the penalty of reclusion
perpetua, and the amount of indemnity to be paid to the heirs of each of
the deceased is hereby raised from P10,000.00 to P12,000.00. In other respects, the judgment is affirmed.
With proportionate costs against the accused-appellants.
SO ORDERED.
Teehankee, Acting C.J., Concepcion, Jr., Fernandez, Guerrero,
Abad Santos, and De Castro, JJ., concur.
Barredo, J., concur in the
opinion of J. Aquino.
Makasiar, Antonio, and
Santos, JJ., took no part.
[1]
pp. 129-130, Original Records.
[2]
pp. 18-19, ibid.
[3]
Answer to Q. 14, Exhibit C, Sworn Statement of Tambusong Mohamadsali.
[4]
Answer to Q. 20, Exhibit L, Sworn Statement of Pangalawan Anodin.
[5]
p. 17, Decision.
[6]
p. 22, ibid.
[7]
p. 89, Rollo.
[8]
Resolution dated August 11, 1969, p. 171, Rollo.
[9]
p. 149, Rollo.
[10]
T.s.n., March 14, 1968, p. 162.
[11]
T.s.n., March 25, 1968, p. 244.
[12]
T.s.n., April 2, 1968, p. 312.
[13]
Magtoto vs. Manguera, 63 SCRA 4 (1975); People vs. Dumdum, Jr.,
et al., G.R. No. L-35279, promulgated July 30, 1979.
[14]
People vs. Pulido, 85 Phil. 705 (1950); People vs. Libre, 93
Phil. 5 (1953); People vs. Tuazon, 6 SCRA 249 (1962).
[15]
People vs. Dela Cruz, 88 Phil. 29 (1951); People vs. Francisco,
93 Phil. 28 (1953).
[16]
People vs. Lastimoso, 83 Phil. 714 (1949).
[17]
People vs . Palencia, 71 SCRA 679 (1976).
[18]
People vs. Palencia, supra.
19 People vs. Sasota, et al., 91 Phil. 111 (1952).
20 People vs. Largo, 46 SCRA 597, 598 (1972);
People vs. Cariño, 55 SCRA 517 (1974).
21 U.S. vs. Elicanal, 35 Phil. 209, 212 (1916).
22 People vs. Jesus, 88 Phil. 53 (1951).
23 People vs. Cabiling, 74 SCRA 285 (1976).
24 People vs. Cabiling, supra.
25 People vs. Guillen, 85 Phil. 307 (1950).
26 Article 63, Revised Penal Code; People vs.
Guillen, supra.
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CONCURRING AND DISSENTING OPINION
AQUINO, J.:
I concur in the holding that the four accused-appellants are
criminally liable. But they should be
convicted of three separate offenses because there were three victims who were
killed by means of separate acts and not by a single act.
They are guilty of two separate complex crimes of murder
with atentado as to the two Constabulary sergeants and of simple murder
as to the dead civilian.
I dissent as to the imposition of the death penalty on the three
accused because they were not the leaders of the assault. The two leaders, Pabling Bisaya and Jawali
Badjao, are at large. (See People vs.
Cabrera, 43 Phil. 64 and 82; People vs. Sakam, 61 Phil. 27, 35; People vs.
Moreno, L-37801-05, October 23, 1978, 85 SCRA 649; People vs. John Doe, L-2463,
March 31, 1950.)
Moreover, the fact that the accused are non-Christians should be
taken into account (Sec. 106, Administrative Code of Mindanao and Sulu; People
vs. Main, 51 Phil. 933; People vs. Mori, L-23511 and L-23512, January 31, 1974,
55 SCRA 382, 404).
Hence, the three accused, who were sentenced to death, should
each be sentenced to three reclusion perpetuas, subject to the
forty-year limit.