THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FRANCISCO ABALOS, DEFENDANT AND APPELLANT.

Review of a judgment of conviction for murder. Judge Fidel
Fernandez of Samar found appellant Francisco Abalos guilty of haying shot and
killed Maximo Cabueños, upon the testimony of one eye-witness, and upon proof of
admissions made by the accused. The defense was alibi.

The transcript of the stenographic notes taken during the trial
and the medical certificate Exhibit A authorize the following account of the
killing:

During the Japanese occupation Francisco Abalos was a
constabulary soldier stationed at Catbalogan, Samar. On May 13, 1944 a
constabulary detachment consisting of the accused and others (including Artemio
Merida), under the command of Lieutenant Ramento proceeded to Gandara, Samar, on
patrol duty. About 2 o’clock the next morning, the company reached a place near
barrio Peñaplata and went to the house of Maximo Cabueños, a guerrilla. Cabueños
was not there, but the party found therein one Vicente Cipriano whose services
they enlisted as guide to the barrio. Hearing their destination, the soldiers
deployed so as to encircle the place. The appellant and Artemio Merida,
accompanied by Vicente Cipriano, walked to the right until they arrived at the
house of one Jesus Rama. It was then about 5:00 a. m. Even as appellant and his
companions were entering Rama’s dwelling, Maximo Cabueños jumped through the
window and scurried to a ricefield. Appellant pursued him, and shooting with his
rifle, hit the runaway in the stomach. Cabueños fell. Helped later by Jesus
Rama, the wounded man returned to the house; but he died that very
afternoon.

Artemio Merida was beside Abalos at the moment the latter fired
his gun, and he saw the victim drop to the ground. Vicente Cipriano heard the
detonation, and having been told by Abalos to go “where that man was shot”,
found the victim in serious condition, his intestines coming out of the
abdomen.

Both these persons (Merida and Cipriano) were the People’s
witnesses at the trial of this case.

The accused-appellant admitted in court that he was present
with the soldiers at Rawis near Peñaplata. But he denied having shot the
unfortunate man, saying he was detailed to watch the bancas used by the
party in going to the locality, and that watching the bancas was all he
did during that evening. Defended by two attorneys, he elected to submit his
case without corroborating testimony. His counsel made this announcement before
presenting his evidence:

“Inasmuch as the effort to bring Serafin Ramento in this court
has failed, this representation would like to request this court the
continuation of the trial of this case and the presentation of the defense even
without the testimony of Serafin Ramento.”

The Serafin Ramento mentioned in the above statement evidently
referred to Lt. Ramento under whose command the police officers went the rounds
of the barrio on that occasion.

Now then, considering that under the law the accused had a
right to compel the presence of said officer, and considering that according to
the prosecution, Lt. Ramento investigating the affair at the place and time of
the shooting, was informed by Abalos that he had shot Maximo because the latter
had run, the inference is logical that Ramento’s testimony, if presented, would
not favor the defendant. Wherefore, under the circumstances the alibi must be
deemed insufficient to overcome the direct evidence for the People.

“Oral evidence of alibi is so easily manufactured and usually
so unreliable that it can rarely be given credence. People vs. Badilla. 48
Phil., 718.”

“Defense of alibi rejected in a case of homicide, there being
no legal reason for discrediting the witnesses for the prosecution, who were
present at the time of the fight and saw accused inflict the wound on the side
of deceased. People vs. Cabantug, 49 Phil., 482.”

“The defense of alibi is not satisfactorily established where
the testimony is not free from suspicion, was not corroborated by another
witness, and no insistence was made to secure the attendance of another witness
who could have appeared and testified to the facts, and this circumstance was
(not) explained. People vs. Pili, 51 Phil., 965.”

The herein appellant has, no doubt, liquidated Maximo Cabueños.
However, we do not believe that the killing was accomplished with treachery. It
does not appear that the shooting was premeditated nor that the accused had
consciously chosen that method of attack directly and specially to facilitate
the perpetration of the homicide without risk to himself. His decision to shoot
Cabueños seemed to be sudden, in view of the latter’s flight, and the position
of both the victim and the killer was entirely accidental. Therefore treachery
may not be imputed to him.^[1]

Appellant is guilty of homicide for which the law prescribes
the punishment of reclusion temporal. (Art. 249, Rev. Penal Code). In the
absence of mitigating and aggravating circumstances the appellant must be made
to serve imprisonment for not less than 6 years and 1 day of prision
mayor nor more than 14 years 8 months and 1 day of reclusion
temporal. Modified as to the term of imprisonment, the appealed decision is
affirmed, with costs. So ordered.

Moran, C.J., Ozaeta, Paras, Feria, Padilla, Tuason,
Montemayor, Reyes, and Torres, JJ., concur.

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[1] See People vs. Tumaob, 83 Phil., 732, People vs.
Calinawan, 83 Phil., 642.