THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. TEODORO ABLOG, DEFENDANT AND APPELLANT.

Upon information filed on July 8, 1958, the Court of First Instance
of Ilocos Sur, after trial, found Santos Ablog and Teodoro Ablog guilty
as principal and as accomplice, respectively, in the crime of murder,
qualified by treachery. After considering the aggravating circumstance
of dwelling and the mitigating circumstance of voluntary surrender the
court sentenced Santos to suffer the penalty of reclusion perpetua,
with the accessory penalties provided by law, to indemnify the heirs of
the deceased in the sum of P4,000.00 and to pay one half of the costs;
and Teodoro to suffer an indeterminate penalty ranging from 4 years, 2
months and 1 day of prision correctional to 12 years and 1 day of reclusion temporal,
with the accessory penalties provided by law, to indemnify the heirs of
the deceased in the sum of P2,000.00 and to pay one half of the costs,
each to be subsidiarily liable for the other’s quota of the indemnity.
From that judgment both accused appealed, but Santos Ablog later
withdrew his appeal.

At about 8:00 o’clock on the night of June 13, 1958 the Abiganias
were in their house in Mindoro, Vigan, Ilocos Sur. The house, made of
light materials, was still in the process of construction. There were
no walls on the west and south sides and the floor, made of bamboo
slats 1 to 1 1/2 centimeters apart, was about 4 feet and 10 inches from
the ground. The lower part of the house had no enclosure. There was one
main room with four windows, two on the northern side and two on the
eastern side. Luis Abigania, his sisters Corazon and Rosita and their
mother Faustina Rabe were asleep in that room, while Eugenio Abigania
and his son Cornelio were still awake. Light was supplied by two small
kerosene lamps, All of a sudden three shots rang out from below, at one
second intervals, killing Luis Abigania even as he lay asleep.

The following morning Dr. Francisco Viloria, health officer of
Vigan, examined the victim and found three bullet wounds on his back,
two of which were 1 inch apart and the third about 1 1/2 centimeters
from the one nearest to it. The slugs followed an upward trajectory,
passing clear through the body and coming out in front. All the wounds
were fatal, but the doctor could not express an opinion on whether or
not they were caused by only one firearm.

Captain Crispin B. Garcia, Chief of the Criminal Laboratory Branch,
CIS, Philippine Constabulary, after making a laboratory examination of
paraffin casts taken of the hands of Santos and Teodoro, found them
negative for gunpowder residue. He admitted, however, that the
indication was not conclusive, as the appearance of gunpowder residue
may be avoided by the use of gloves while firing a gun or by the
subsequent washing of hands with hot water, salt or sea water, or with
vinegar.

The witnesses presented by the prosecution who identified the
brothers Santos and Teodoro Ablog as the assailants were Cornelio and
Eugenio Abigania, both of whom had known the accused since the latter
were children. Cornelio testified that he was weaving a fishing net
when he heard a shot very close to him; that he immediately picked up
his flashlight, beamed it downward under the house, and saw Santos and
Teodoro with their guns trained at Luis. Santos was in a semi-squatting
position, the heel of his right foot raised and the right part of his
buttock resting on it. He was holding a long gun with both hands the
left being about 45 degrees higher than the right. Teodoro’s position,
the witness said, was similar to that of Santos. Cornelio further
testified that after the shooting the accused left immediately, taking
a northerly course. He then went down and ran to the barrio
lieutenant’s house about 400 meters away, and was also fired upon but
was able to reach his destination unhurt. The barrio lieutenant
accompanied him to the municipal building, where he signed a sworn
statement before the chief of police.

Eugenio Abigania, the father of Cornelio and of the deceased Luis,
testified that he was lying on the floor after reading the “Banawag”, a
publication in the dialect; that he heard a gun report and asked
Cornelio what was happening; that after he heard two other shots he
peeped out of the window and saw Santos and Teodoro Ablog coming out
from under the house, each of them holding a long gun and that sometime
after Cornelio left he himself went to the municipal building and there
executed an affidavit. The motive for the crime committed by the Ablog
brothers, he said, was that on December 26, 1957 his other son Domingo
was killed, by reason of which Santos Ablog was accused of homicide
(Criminal Case No. 3142, CFI of Ilocos Sur); that three or five days
before June 13, 1958 Emileno Ablog, a relative of Santos, was twice
sent by the latter to his house to propose an amicable settlement of
the criminal case, but that each time Luis objected, saying that a
man’s life could not be bought and that he wanted justice to take its
course. In connection with that case it appears that on July 9, 1958,
Santos withdrew his previous plea of not guilty and entered one of
guilty, and was accordingly sentenced by the court.

The defense set up by both accused is alibi. Their testimonies,
corroborated by their mother Marciana Retuerne, Catalino Fernando and
Cristeto Azores, are as follows: On the morning of June 13, 1958
appellant was cutting grass in the premises of the Provincial
Governor’s residence some 500 meters from the Abigania’s house, while
Santos was also inside the compound working in a fishpond. After lunch
and a short nap the Ablog brothers continued with their respective
tasks until about 5:00 o’clock in the afternoon. At about 7:00 o’clock
that evening appellant and several others had supper in one of the
houses inside the compound. While they were eating Cristeto Azores
arrived, later followed by Santos, who upon being invited to eat
replied that he already had his supper. Santos Ablog said he was sleepy
and, together with Azores, went to another house of the Governor inside
the compound. Catalino Fernando and appellant went to sleep in a
guardhouse. While sleeping they were awakened by three gun reports.
They went out to make inquiries from one of the guards, who told them
to go back to sleep because the shots were outside the compound.
Because they were scared, Fernando and appellant joined Santos and
Azores and after telling them what they had heard, slept in one of the
rooms of the house. A little later appellant’s mother, whose husband
was overseer of the Governor’s premises, came to check on her sons and,
assured of their presence, returned to her house which was also within
the compound, some 30 to 40 meters from the Governor’s residence. About
half an hour later a jeepload of peace officers arrived, some of whom
called for the Ablog brothers and told them, after the officers had
identified themselves, that they were suspects in the killing of Luis
Abigania. They were not, however, arrested after they denied the charge
and signed written promises that they would not leave the compound. In
the meantime their parents had followed the jeep to the residence of
the Governor and pleaded with the soldiers not to take their sons
because they were asleep at the time of the shooting. After a while the
soldiers came back and told the two brothers to go with them to the PC
headquarters upon orders of the commanding officer.

The defense of alibi cannot prevail over the positive identification
of the two assailants. Appellant’s claim that he had to stay that night
at the Governors residence so he could open the gate when the Governor
arrived is unbelievable, considering that several guards were present
inside the compound; so much so that when the officers’ jeep came it
was not he but a guard who allowed the vehicle to pass. Likewise
difficult to believe is appellant’s statement that with the presence of
a number of armed guards he and his companion, Catalino Fernando,
himself a provincial guard, would be so scared after hearing the shots
outside the compound as to transfer to another house and sleep with
Santos Ablog and Cristeto Azores. The facts that appellant, as well as
his brother Santos, were found within the Governor’s compound after the
shooting; that they were there to spend the night although their own
house was only about 40 or 50 meters away; that when their names were
called by the constabulary soldiers they did not answer immediately,
and did so only after the soldiers had identified themselves; that
their mother, after hearing the shots, went to the place where her sons
were supposed to be sleeping; and that she and her husband later on
followed the constabulary soldiers inside the Governor’s compound, are
all indicative of a consciousness of guilt rather than of innocence.

We have scrutinized the testimonies of Cornelio and Eugenio Abigania
in search for possible motive on their part to wrongly implicate
appellant. We have found none. To be sure, appellant is the brother of
Santos Ablog, who pleaded guilty on July 9, 1958 to the killing of
Domingo Abigania. But the very fact that appellant was in no way
connected with that case and that Santos Ablog had already owned his
guilt therein when the instant case was being tried would, if anything,
rule out such improper motive on the part of the Abiganias.

Immediately after his brother was shot Cornelio executed a sworn
statement identifying Santos and appellant as the persons he saw when
he peeped thru the window. On the witness stand he said that after
hearing the first shot he saw them under the house when he beamed his
flashlight downward, and after two other shots were fired he peeped out
of the window and again saw Santos and appellant running away. Eugenio
Abigania said in his sworn statement that Cornelio jumped thru the
window after the shots were fired, but declared in court that Cornelio
went down by the stairway. And while he said that he was lying down
when he heard the shots, Cornelio was positive that his father was
reading at that time. These discrepancies are pointed out by the
defense in assailing the credibility of the said witnesses. They
relate, however, to minor details as to which their perception and
recollection might differ, especially considering the shock, excitement
and haste under which they were laboring when they executed their sworn
statements on the very night of the occurence.

The presence of Santos and appellant at the scene and time of the
commission of the crime is sufficiently proven. Cornelio’s testimony
that he saw them, each holding a gun, run away from the house
immediately after the shooting, is corroborated by Eugenio. However,
Cornelio’s declaration that both Santos and appellant fired at the
deceased stands alone and unsupported, and the possibility that he may
have erred on this point is strong. While he was able to describe
Santos’ position in minute detail in the act of shooting, he simply
said, when questioned as to appellant’s position, that it was the same
as that of Santos. Whether or not the three bullets were fired from one
gun alone is not definitely known, but as reasoned out by the trial
court, considering that the wounds were very close together and that
all the three shots were fired in succession from a carbine, it is hard
to believe that the shots had come from two firearms. Moreover, while
Santos had a motive in killing Luis Abigania and in fact has impliedly
admitted his guilt by withdrawing his appeal, the same motive cannot be
fairly attributed to appellant.

On the other hand, appellant’s presence at the Abiganias’ premises
when the crime was committed could not be for an innocent purpose,
armed as he was and in the company of the assailant. These
circumstances show his knowledge of the criminal intent of his brother
Santos. But since no conspiracy has been shown to exist and since his
acts do not clearly appear to be either directly or absolutely
necessary for the commission of the offense, or that they constituted
an inducement thereof, and considering the principle that when doubt
exists as to whether a person acted as principal or accomplice the
court should favor the milder liability, the judgment finding appellant
guilty only as an accomplice should be upheld. People vs. Ubina, et al. 97 Phil., 515.

The proper penalty to be imposed on appellant is from six (6) years and one (1) day of prision mayor to twelve (12) years and one (1) day of reclusion temporal People vs. Escarro, 89 Phil., 520.

Wherefore, with the modification above indicated, the judgment
appealed from is affirmed, with one half of the costs against appellant.

Bengzon, C. J., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon and Regala, JJ., concur.