THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NORBERTO QUINTO, ALIAS OBET, ROMEO IBIAZ, RENATO DIUSEN, ALIAS DAGOL, DEFENDANTS, NORBERTO QUINTO AND ROMEO IBIAZ, DEFENDA…

This is an appeal from the decision of the Circuit Criminal Court
in Pasig, Rizal, convicting Norberto Quinto and Romeo Ibiaz of the crime of
murder; sentencing them to suffer the penalty of death; and ordering them to
indemnify jointly and severally the heirs of Vicente Ballestamon in the amount
of P12,000.00, to pay the amount of P10,000.00 as
moral damages, and another P5,000.00 as exemplary damages; and to pay their
proportionate share of the costs.

Both appellants are represented by separate counsels, who
submitted their separate appellants’ brief.

The statement of facts in the brief filed by the People of the Philippines
is as follows:

“Appellants Norberto Quinto and Romeo Ibiaz at the time of the
incident were policemen of the municipality
of Rosario, Cavite.  At around 6:00
o’clock in the evening of June
16, 1971 at Barrio Sapa, Abdilla Street,
Rosario, Cavite,
appellants and another person by the name of Renato Diusen alias Dagul stopped
a tricycle (p. 14, t.s.n., March 10, 1972). 
The three men who were in fatigue uniform (p. 17, tsn., March 10, 1972) asked the passenger of the
tricycle, who was later on identified as Vicente Ballestamon, the deceased (p.
15, tsn., March 10, 1972), to alight from the tricycle (Ibid) and to raise his
hands (Ibid).  The appellants
policemen then fired successive shots at the deceased (Ibid).

“The mother of the deceased upon being informed that her son
had been shot ran to the place of the incident (pp. 16-27, tsn.,
April 17, 1972).  Upon her arrival at the place of the incident
she saw her son lying prostrate on the ground (p. 39, tsn., April 17, 1972) but
his feet were still moving (p. 140, tsn., April 17, 1972).  She also saw appellants Norberto Quinto and
Romeo Ibiaz and their companion Renato Diusen alias Dagul surrounding her son
(Ibid) and all of them were carrying long arms (p. 41, tsn., April 17,
1972).  Then she shouted ‘Bakit ninyo
ginanyan ang aking anak’ (p. 42, tsn., April 17, 1972) and appellants told her
‘Do not meddle here.  This is the command
of the mayor.  Utos ito ni mayor, huwag kang makialam dito.  Lumayo ka’ (p. 41, tsn.,
April 17, 1972).  When the mother
remonstrated that her son should be brought to the hospital as his feet were
still moving (p. 42, tsn., April 17, 1972), appellant Norberto Quinto shot
again her son (pp. 42-43, tsn., April 17, 1972).

“The apparent motive for the killing was that the deceased
witnessed the killing of one Lamberto Alcantara by Danny Enriquez, son of the
mayor, and his bodyguards.  He was going
to be a witness against them (pp. 44-47, tsn., April 17, 1972).

“The deceased suffered eight (8) gunshot wounds (p. 8, tsn.,
March 10, 1972).  Cause of death was
severe hemorrhage (p. 10, tsn., March 10, 1972).  Both hands of the victim were subjected to
paraffin test and were found negative for the presence of camphor residue
prints (p. 3, tsn., March 10, 1972).

“Appellant Norberto Quinto admitted in open court that he
killed the deceased (p. 6, tsn., November 27, 1972).

Both appellants went to the municipal building to surrender after
the incident.

On February 11, 1972,
Norberto Quinto alias “Obet”, Romeo Ibiaz and Renato Diusen alias
“Dagul” were charged before the Circuit Criminal Court in Pasig,
Rizal of the crime of murder by District State Prosecutor Cornelio M. Melendres
and Assistant City Fiscal Enrique A. Cube in an information
which reads:

“That on or about the 16th day of June 1971, in the
Municipality of Rosario, Province of Cavite, and within the jurisdiction of
this Honorable Court, the above-named accused NORBERTO QUINTO alias OBET, ROMEO
IBIAZ, and RENATO DIUSEN alias DAGOL, conspiring, confed­erating and mutually
aiding one another without justifiable cause, with deliberate intent to kill,
with treachery and evident premeditation, armed with firearms of different
calibers, taking advantage of their public position; that the wrong done in the
commission of the crime was deliberately augmented by other wrong not necessary
for its com­mission, did then and there willfully, unlawfully and feloniously
shoot one VICENTE BALLESTAMON y GERON in the different parts of his body
thereby inflicting upon the latter gunshot wounds which directly caused his
instan­taneous death.”

Upon arraignment, Norberto Quinto and Romeo Ibiaz pleaded not
guilty.  The other co-accused Renato
Diusen has not been brought to trial.  As
aforesaid, the two:  Quinto and Ibiaz
were convicted and they appealed.

Norberto Quinto gave the
following assignment of errors, to wit:

“I. That the Circuit Criminal Court erred in giving credit and
weight to the false and fabricated testimonies of two prosecution witnesses,
Antonio Giron and Rosalina G. Ballestamon, who are uncle and mother of the
victim;

“II. That the Circuit Criminal Court erred in refusing to give
credit and belief to the legitimate self-defense presented by herein
defendant-appellant;

“III. That the Circuit Criminal Court erred in convicting herein
defendant-appellant in the absence of the proof of his guilt beyond reason­able
doubt.”

Romeo Ibiaz made a lone assignment of error, to wit:  “that the trial court erred in finding
him guilty of the crime charged.”

The appellants claim self-defense, stating that at about six o’clock in the late afternoon of June 16, 1971, Lt. Enrique Banzon
told them to go to barrio Sapa, Rosario,
Cavite and to apprehend Vicente
(Boyet) Ballestamon who was making trouble at the place.  Upon being informed that Ballestamon was
armed with a long gun and indis­criminately firing shots, Quinto brought with
him, aside from his caliber .38 service pistol, an
armalite.  Ibiaz had at the time his
caliber .45 service pistol.  As they
approached the place, they heard a shot followed by another.  Whereupon, Quinto jumped out of the tricycle
they were riding in going to barrio Sapa and turning his head saw the victim,
Boyet Ballestamon, pointing his gun at them.

On the other hand, Ibiaz, overcame with
fear, stayed in the tricycle and, looking at the direction where the shot came
from, saw Ballestamon with his gun pointed at them.

At this juncture, Quinto, without waiting for Ballestamon to
shoot, fired at the latter inflicting upon him multiple gunshot wounds which
caused his death.

Further, the defense contends that Ballestamon was known to be a
police character even before the advent of martial law.  They claim that considering his iras­cibility
in the use of guns Quinto immediately fired before he himself would be the
victim.

The killing of the deceased by appellant Norberto Quinto being
admitted by the latter, the burden of proving that the slaying was legally
justifiable lay upon him.  Our view of
the evidence discloses that this burden was not adequately met.  In the first place, both hands of the
deceased were examined by Major Crispin B. Garcia of the Philippine
Constabulary and they gave “negative results to the test for the presence
of gun powder residue.” (Exhibit A).  Thus, the claim that the deceased was armed
with a carbine and was firing the same shortly before he was shot is not
true.  Quinto’s explana­tion about this
consists mainly of speculation, like possible tampering of the specimen or
reference to the rare cases where a person fires a gun and yet his hand is
negative for gunpowder nitrate.

Secondly, Quinto’s claim that empty carbine shells were found in
the vicinity is denied by defense witness, PC Sgt. Mario Genuino, who
testified, thus:

“Q   What
did you do in the vicinity, where you found the victim, and took the carbine
and gave it to Lt. Banzon?

 A    I looked around if I could find any empty
shells.

 Q   Did you find any empty shells?

 A    I did not find.

COURT:

Was there any magazine
in the carbine?

 A    There was.

 Q   How many?

 A    Around twenty, but it was a banana type
magazine.

COURT:

Proceed.

ATTY. DOLORFINO:

 Q   Were you able to examine the carbine before
you gave that to Lt. Banzon?

 A    Yes, sir.

 Q   Were you able to see the contents of the
magazine in relation to the said carbine?

 A    The magazine was tucked in the carbine and
the bullets were jammed in the muzzle of the gun.” (tsn.
pp. 15-17, Oct. 13, 1972
hearing).

Further, Sgt. Genuino declared that when
he arrived at the crime scene there was nobody there except the appellants, Lt.
Banzon and a photographer.  The People’s
theory that the carbine was placed by the police after the incident could be
true.  The photographer was fetched after
the shooting incident and he arrived at the crime scene about 7:15 in the evening.  As found by the trial court, “the
accused did not allow the people to go near the body of Boyet for almost thirty
minutes, which time was more than enough opportunity for them to place the
carbine beside the body of Boyet.”

In the third place, the claim of Quinto that prosecution
witnesses Antonio Giron and Rosalina Ballestamon, uncle and mother,
respectively of the deceased, were biased to the point of falsifying and
fabricating evidence against them, is untenable.  As aptly stated by the Solicitor General in
his brief:

“The rule on evidence provides that a party or any other
person interested in the outcome of a case may testify (Sec. 18, Rule 130, Rules of Court). 
Hence, the testimony of an interested witness can not be rejected on the
ground of his apparent interest alone, but must be judged on its own merits,
and if the testimony is clear and convincing and not destroyed by other
evidence on record, it may be believed (Carandang vs. Cabatuando, L-25384,
October 26, 1973 citing the case of U.S. vs. Mante, 27 Phil. 134 (1914).  Other than their relationship to the deceased
there is no other reason why their testimony should be rejected.”

To prove justification, the accused must rely on the strength of
his own evidence and not on the weakness of that of the prosecution, for even
if it were weak, it could not be disbelieved after the accused had admitted the
killing (People vs. Ansoyon, 75 Phil. 772). 
The first requisite of self-defense is that there should be unlawful aggression on the part of the person
injured or killed by the accused.  There
can be no self-defense in the absence of unlawful aggression (People vs.
Apolinario, 58 Phil. 586).  Without it,
the second requisite would not apply since there would be nothing to prevent or
repel.  There is nothing to defend from
or against and there will be no occasion to require that the means of defense
employed be reasonable.  In the case at
bar, the appellants failed to sustain this first requisite of
self-defense.  The victim did not have
any firearm at the time he was fired at, slain and killed.

We now come to the claim
of appellant Ibiaz that he is not a principal by direct participation or a co­conspirator.  He argues that he had no motive to kill
Ballestamon and that the only evidence against him was his passive presence at
the scene of the crime.  Other­wise
stated, it is his contention that he did not use his gun against the deceased.

This contention of Ibiaz
is contradicted by NBI Dr. Dario Nalagan who testified that from the nature and
extent of the injuries inflicted upon the deceased, at least two (2)
malefactors participated in the killing.

Hereunder is the
testimony of Dr. Nalagan on this point:

“Fiscal Melendres –

Q    Where
is this third gunshot wound?

A     The third gunshot wound is shown in the left
lower chest pointed by a white arrow.

Fiscal Melendres –

I request that the same be encircled and marked as Exhibit C-9-A.

COURT –

Mark it.

(So marked.)

Fiscal Melendres –

Q    What
was the trajectory?

A     Directed from left to right, backwards and
slightly downwards making wound of exit on the right lumbar region.

Q    Do you have the picture of that exit wound?

A     Yes,
sir.  (pp. 18-19, tsn, April 14, 1972 hearing)

x x x                      x x x                 x x x

Q    Considering the numerous gunshot wounds,
would you say that there are two persons involved in the shooting or more than
one person?

Atty.
Buenviaje –

The witness is incompetent to testify on that.

Court
–

Witness may answer.

Witness
–

A     Based on the different directions of the
bullet in the body of the victim, one going upwards and laterally which means
that the victim was in the lying position, and the other going downwards, so I
would say there are two (2), unless the victim was lying first and then
transferred to another place.” (tsn. pp. 30-31, April
14, 1972 hearing)

x x x                      x x x     x x x

Atty.
Buenviaje?

Q    You also testified that the wounds inflicted
upon the body of the victim could have been inflicted by at least two persons?

A     Yes,
sir.”

(tsn., p. 40, April 14, 1972 hearing)

Besides, according to
Rosalina Ballestamon, as early as four o’clock in the afternoon, or two (2) hours before
the shooting incident, appellant Ibiaz, together with Quinto and Diusen was
already at the scene of the crime going back and forth.  They were in fatigue uniform, apparently
waiting for the deceased who was eventually slain because he was a witness
against the son of the mayor for killing one Lamberto Alcantara.  And, consider the testimony of Antonio Giron,
as follows:

“Q   On June 16, 1971 at around 6:00
P.M. where were you?

 A    At the waiting shed of a
resting place in Rosario, Cavite.

 Q   Were you alone at that time?

 A    Yes.

 Q   Was there anything unusual that happened at
the hour and date mentioned?

 A    Yes, I saw 3 policemen stop a tricycle,
asking the passenger to alight.

 Q   Were they all in uniform and did you
recognize the three?

 A    Yes, (Witness identifies Norberto Quinto and
Romeo Ibiaz who are inside the courtroom).

 Q   About the third one?

 A    He is not here; his name is Renato Diusen
alias Dagul.

 Q   How far away were you from the 3 policemen?

 A    Twelve meters.

 Q   How did they ask the passenger to alight?

 A    I saw Dagul pull out the passenger, saying:  ‘Bumaba ka diyan.’

 Q   Who was the passenger?

 A    Vicente Ballestamon.

 Q   What happened then?

 A    The companions of
Dagul poked their guns at Ballestamon asking him to raise up both hands.

 Q   What firearms were they using?

 A    Long firearms.

 Q   Where was Ballestamon facing when ordered to
raise his hands?

 A    Facing the aplaya with his back turned
towards the policemen.

 Q   What happened afterward?

 A    Ballestamon was ordered to walk; after
making 3 steps the 3 police­men fired successive shots at him.  He turned around and fell to the ground.

 Q   What did the 3 policemen do after shooting
their victim?

 A    They lay themselves prostrate on the ground,
in firing position and I heard the words: 
‘Darating ang kanyang ama; mapapalaban tayo diyan.’

 Q   What did you do then?

 A    After observing the policemen on the ground
for 3 minutes, I left the place.

 Q   Where there people in the vicinity of the
shooting at that time?

 A    Many, but they ran away.

 Q   Where did you go then?

 A    To our place where I saw the
mother of the victim.  I informed
her that her son had been shot.

 Q   What is the name of the mother?

 A    Rosalina
Ballestamon.” (tsn. pp. 14­-15, March 10, 1972 hearing)

To establish a conspiracy, it is not essential that there be
proof as to a previous agreement to commit a crime.  It is sufficient that the malefactors acted
in concert to attain the same objective (People vs. San Luis, 86 Phil. 485, 497). 
The concurrence of wills, which is the essence of conspiracy, may be
deduced from the evidence of facts and circumstances, which taken together,
indicate that the parties cooperated and labored to the same end (People vs.
Macul, 86 Phil. 423, 426; People vs. Carbonel, 48 Phil. 868, 875).

In the case at bar, it is quite clear that appellants, by their acts,
aimed towards the accomplishment of the same unlawful object.  They arrived together at the scene of the
crime, in fatigue uniform, as early as 4:00
in the afternoon.  Upon seeing the
victim, they stopped the tricycle he was riding and, thereafter, fired at
him.  Applying the foregoing rules to
this case, We hold that the assault by the assailants
and their companion against Vicente Ballestamon, as declared by Antonio Giron,
reveals a conspiracy and a tacit understanding to put him out of the way.

Considering the presence of the aggravating circumstance of
evident premeditation and the mitigating cir­cumstance of voluntary surrender,
the penalty that should be imposed on appellants is reclusion perpetua.

WHEREFORE, the judgment appealed from is modified
in the sense that appellants are hereby sentenced to reclusion perpetua.  In all other respects, the judgment is
affirmed.

SO ORDERED.

Makasiar, Acting C.J., Aquino, Concepcion, Jr., Guerrero, Abad
Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, and Gutierrez, Jr., JJ.,
concur.

Fernando, C.J., and
Teehankee, J., on official trip abroad.