THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DEMETRIO DE LA CRUZ, DEFENDANT-APPELLANT.

Direct appeal from a sentence of life imprison­ment meted out by the
Court of First Instance of Pangasinan in its Criminal Case No. 23149-I.

Appellant Demetrio de la Cruz was charged together with his
brother, Alberto de la Cruz, and his nephew, Eulogio de la Cruz, with the
murder of Leonardo Sanchez, by shooting the latter to death with a .22 caliber
rifle on 1 June 1964 in Rosales, Pangasinan. 
Alberto and Eulogio were first arrested, tried and sentenced to life
imprisonment, but appellant Demetrio managed to avoid arrest and went into
hiding for four (4) years.  He finally
surrendered to the authorities on 17 July 1968; was tried on the original
charge, and, despite his protestations of innocence, convicted of murder
qualified by alevosia, and sentenced to the same penalty as his
co-accused (reclusion perpetua), to pay an indemnity of P12,000.00 to
the heirs of the deceased and the costs.

It is uncontested
that in the morning of the fatal day, 1 June 1964, Alberto de la Cruz had an
altercation with one Victoriano Noveloso, a security guard of Hacienda Guiling
in the municipality of Rosales,
Pangasinan, owned by the brothers Cojuangco.  In the encounter, Alberto was boxed by Noveloso, and departed saying:  “Wait for me, and expect what is to be
expected”.  Noveloso proceeded to
the house of the hacienda
overseer, Leonardo Sanchez, whom he informed
of the previous occurrence. 
According to the prosecution wit­nesses,
sometime later, Sanchez and Noveloso, accompanied, by another guard,
Laureano Sabado, while on the
way to Barrio Camangaan, Rosales, met the appellant, with his brother Alberto,
who bore a .22 caliber rifle,
and a nephew of theirs, Eulogio de la Cruz. 
Sanchez advised his companions
to stay behind and said he would talk with the trio.  Approaching the De la Cruzes, Sanchez raised his left hand and asked them to be calm and
settle things; but appellant
Demetrio de la Cruz snatched the rifle held by his brother Alberto, and repeatedly fired at Sanchez, hitting him
in the chest.  Sanchez was able to advise
his companions to run away, which they did. 
Later, Sanchez died.

Testifying in his
own behalf, Demetrio averred that on the morning of 1 June his brother Alberto
arrived at his house, told him about his being boxed by guard Noveloso, and
took his rifle from the trunk where it was kept.  Demetrio attempted to pacify his brother, but
Alberto ran away with the gun.  Demetrio
followed, to keep his brother from trouble, but on the way met Sanchez, and
Alberto shot the latter, as he tried to wrest away the rifle.  Demetrio snatched the gun from his brother
and led him home.  This version was
supported by Alberto and Eulogio de la Cruz, who were taken from the penitentiary to testify; and both
asserted it was Alberto who shot Sanchez.

We find the defense version not credible, being seriously
infirmed by several circumstances.  First, by the admitted flight of
Demetrio, who avowed having fled to
Isabela and gone into hiding there for about four years.  His explanation
of having done so for fear of injury at the hands of the security guards is not convincing; for
if appellant’s version is true,
the guards who were with the late
Sanchez must have seen that it was Alberto, and not Demetrio, who shot and killed the hacienda overseer; and there
would be then no reason for Demetrio
to be afraid of retaliation.  Secondly,
right at the start, the state
witnesses, in their affidavits in support of the complaint, laid the blame on Demetrio.  Yet neither Alberto nor Eulogio had
previously asserted the innocence of Demetrio, not even after the first trial,
when both were convicted of the killing as conspirators.  Finally, it is easy to see that Alberto,
after his own conviction, ran no
risk of additional, punishment by
avowing having been the one who shot the late Sanchez; and We have repeatedly
held such belated assumptions of guilt by persons pre­viously convicted as
unworthy of credence.^[1]

While We find appellant’s guilt proved beyond reasonable doubt,
We agree with the Solicitor General that the crime committed is not murder, but
homicide Merely, there being no adequate showing of alevosia, since
the shooting was preceded by a parley between the accused and the deceased, and
there is testimony that the latter had attempted to wrest from Alberto de la
Cruz the rifle used to slay him (t.s.n., Estrada, pages 6 and 26; Appeal Brief
for the prosecution, page 7).  The
penalty of reclusion temporal
for homicide should, there­fore, be applied in the medium degree, and the
appealed judgment must be accordingly modified. 
We do not believe this appellant is further entitled to the mitigating
circumstance of voluntary surrender, the search for appellant having already
lasted four (4) years, which belies the spontaneity of the surrender.^[2]

WHEREFORE, applying the indeterminate sentence law, the
appellant is sentenced to a minimum of eight (8) years of prision mayor
and a maximum of fifteen (15) years of reclusion
temporal.  In all other respects, the
judgment under appeal is affirmed.

Dizon, J., on leave, took no
part.

Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo,
Villamor, and Makasiar, JJ., concur.

Concepcion, C.J., did not take
part.

^[1]
People vs. Bayubay, G.R. No. L-13901, 19 September 1961, 3
SCRA 24, and cases cited therein.

^[2]
Cf. People vs. Sakam, 61 Phil. 33-34;
People vs. Laurel (CA) 59-OG, No. 44, page 7623.