THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROQUE MARIQUINA ET AL., DEFENDANTS. ROQUE MARIQUINA, dEFENDANT-APPELLANT.

Quirico Tobingan and Roque Mariquina were charged with murder
in the Court of First Instance of Iloilo, but the trial was held only as to the
latter the former not having as yet been apprehended. Roque Mariquina was found
guilty of the crime charged and sentenced to reclusion perpetua with the
accessories of the law, to indemnify the heirs of Jose Española in the amount of
P2,000, and to pay the costs. He appealed from this judgment.

The facts proven beyond reasonable doubt are as follows:

At about 5 o’clock in the morning of May 18, while Jose
Española was milling palay under his house at barrio Sambalodan, municipality of
Oton, Province of Iloilo, Roque Mariquina and Quirico Tobingan suddenly arrived
and the latter immediately pointed his .45 caliber automatic pistol to Jose
Española ordering him not to move. Roque Mariquina then tied Jose Española’s
hands at his back and started to strike him with a cane on the head and on
different parts of the body. Estefania Tubungbanua, wife of Jose Española, who
was upstairs with her children, saw the illtreatment through the slits in the
bamboo floor, and came down with her one-year old baby in her arms to intercede
for her husband, but Roque Mariquina pushed her away violently causing her to
fall and threatened to kill her and her baby. Thereupon, Quirico Tobingan and
Roque Mariquina proceeded to drag Jose Española towards a creek some distance
away, and Estefania in turn proceeded to run to the house of Geronimo Basco, the
barrio lieutenant, to ask for help. The barrio lieutenant came immediately and
tried to intercede for Jose Española, but he himself was warned not to intervene
if he wanted no trouble. Quirico Tobingan and Roque Mariquina took their victim
to the river bank and there Quirico Tobingan shot him to death wounding him in
different parts of his body, and Roque Mariquina extracted with the pointed end
of his cane the victim’s left eye from its socket, and stuffed the victim’s
mouth with mud. Jose Española died then and there of his wounds which, according
to Juan Ronquillo, assistant sanitary inspector for the guerrilla government at
the locality, are as follows:

“(a) One puncture wound found located at the left side
near his nipple the diameter of one centimeter penetrating to the heart.

“(b) One puncture wound found located at the cheek one
centimeter in diameter penetrating to the brain.

“(c) One lacerated wound found located at the forehead
five centimeters long and the opening of one centimeter from up ward to down
ward.

“(d) One lacerated wound located at the left side above
the ear.

“(e) The left eye was taken out.

“(f) Contusions were found on both hands as a sign that
both hands were tied.”

But before Jose Española was killed, his fatherin-law, Tomas
Tubungbanua who was on the other side of the creek grazing his carabao, was
advised of the punishment being inflicted upon his son-in-law, and he hurried to
the creek and there he saw his son-in-law held fast by Quirico Tobingan while
Roque Mariquina was beating him with a cane. Tomas Tubungbanua tried to
intervene, but Roque Mariquina sternly warned him to keep away if he still
wanted to live. Tomas Tubungbanua then withdrew and hid behind bamboo clumps
through which he saw Quirico Tobingan shoot at the victim, and Roque Mariquina
gouge out the dead man’s left eye with his sharp pointed stick and stuff mud
into the mouth of the dead man.

The motive of the crime seems to be a resentment. Way back in
February 1944 Quirico Tobingan and Roque Mariquina, who were members of the
guerrilla, commandeered a bicycle and they were about to sell it when Jose
Española intervened and succeeded in taking back the bicycle and restored it to
its owner.

The witnesses who testified to all these facts are Estefania
Tubungbanua, wife of the deceased; Tomas Tubungbanua, father-in-law of the
deceased; Geronimo Basco, barrio lieutenant; and Juan Ronquillo, assistant
sanitary inspector.

Counsel for appellant in a well written brief pointed out
supposed defects and deficiencies affecting the veracity of the prosecution’s
witnesses. All the points raised have been carefully examined by the court but
nothing was found to show that said witnesses have perjured. It is alleged for
instance, that there are discrepancies between the testimony of Tomas
Tubungbanua and his previous affidavit as to certain details of the occurrence.
But said discrepancies are due to imperfections of the affidavit as explained by
the witness himself. Generally, an affidavit is not prepared by the affiant
himself, but by another who uses his own language in writing the affiant’s
statements. Omissions and misunderstandings by the writer are not infrequent
particularly under circumstances of hurry or impatience. For this reason, the
infirmity of affidavits as a species of evidence is much a matter of judicial
experience.

The defense tried to prove that Roque Mariquina had no
participation in the commission of the crime. On the date of the crime, he was
on leave of absence from the guerrilla unit of which he was a member, and he was
then in the house of his mother hear the house of Jose Española in the barrio of
Sambalodan. At about 5 o’clock in the morning of that day he saw Quirico
Toblngan arrive at the place where Jose Española was milling palay. Quirico
Tobingan pointed his .45 caliber pistol at Jose Española ordering him not to
move and immediately tied Española’s hands at the back. Once Jose Española was
thus tied, Quirico Tobingan started striking him with a cane. At this juncture,
according to Roque Mariquina, he approached Quirico Tobingan and tried to wrest
the cane from him entreating him at the same time not to punish Jose Española
for they were related to each other. Quirico Tobingan advised Mariquina to go
away because there were orders from headquarters to arrest and kill Jose
Española who was a Japanese spy. There were then many people who gathered around
the place attracted by the incident. Quirico Tobingan ordered those people to
keep out if they wanted not to be shot, and after the people had left Quirico
Tobingan took Jose Española to the creek and shot him there.

We cannot believe this story to be true. On the first hand,
there is nothing in the evidence to show that the witnesses for the prosecution,
including the barrio lieutenant, had any motive to manufacture facts against
Boque Mariquina. On the other hand, it is very unlikely that Quirico Tobingan
would come alone to accomplish such a heavy and risky task as the killing of a
supposed spy, at day time, with cruelty, and regardless of the people who may
happen to be present. If Quirico Tobingan had to accomplish his delicate purpose
by all means even without the aid of any one, he would have done so in a simple
manner by simply firing shots at the intended victim without the necessity of
elaborating a number of unnecessary acts of cruelty and outrage which may induce
part of the people present to intervene and give protection for the victim. Jose
Española was a bigger man than Quirico Tobingan, and even if the latter was
armed, it is hard to believe that he alone and in the presence of many people
could make Jose Española obey him without absolutely offering any resistance,
particularly, at the moment when Tobingan tied his hands and had to put back his
pistol at his waist to do the tying.

Appellant introduced two witnesses to corroborate his theory,
namely, Guillermo Tejida and Marcelo Ferrer, but as rightly observed by the
trial Judge, the testimony of these witnesses can not be accepted for a number
of reasons. “In the first place, they were not from barrio Sambalodan where the
crime was committed, and their presence there on that occasion seems to be
altogether too conveniently coincidental. Guillermo Tejida stated that he was
from barrio Napnapan, municipality of Tigbauan, and that on May 18, 1944, he was
in the house of his brother-in-law in Sambalodan, having gone there to get some
personal belongings which he had left at the place when he evacuated there. The
other witness, Marcelo Ferrer, was from barrio Botong, municipality of Oton, and
at five o’clock in the morning of May 18, 1944, merely chanced to go to barrio
Sambalodan looking for hogs to buy, at the exact hour and place when the events
which he testified to were unfolding. The accused Roque Mariquina himself was
also in that locality by coincidence, having gone there the previous day to
spend his leave of absence at his mother’s house. Also coincidental was his
waking up and going out of the house at five o’clock in the morning, the precise
moment when, according to him, Quirico Tobingan arrived at the house of Jose
Española. It is strange that nobody from the same barrio, from the same
immediate vicinity, among the twenty-five or so persons who witnessed the very
same events, were presented by the defense.”

We agree with the Solicitor General that the crime committed is
murder qualified with treachery. There is the aggravating circumstance of
cruelty, and therefore the capital punishment should be imposed. However, there
being no sufficient votes for that purpose, the penalty of reclusion
perpetua imposed by the trial court may be affirmed.

Judgment affirmed with costs against appellant.

Ozaeta, Paras, Feria, Perfecto, Bengzon, Tuason,
Montemayor, and Reyes, JJ., concur.

MORAN, C. J.:

Mr. Justice Pablo voted for affirmance of the judgment appealed
from.