THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FELICISIMO CANOY AND FELICIANO ESTENDER, DEFENDANTS AND APPELLANTS.

This was a prosecution in the Court of First
Instance of Negros Occidental for two murders and one frustrated murder
charged in one information. The accused, now appellants, were, found
guilty of the three crimes and having been given the-benefit of the
mitigating circumstance of surrender, were each sentenced from 12 years
and one day to 17 years four months and one day of reclusion temporal for each of the crimes of murder, and from four years two months and one day of prision correcional to 10 years and one day of prision mayor for the crime of frustrated murder.

The facts in so far as they are not controverted are these: On the
morning of June 7, 1948, the judgment in a civil case for unlawful
detainer rendered by the Justice of the Peace of San Carlos, Negros
Occidental, against Loreta Rivera was executed through the Chief of
Police, accompanied or assisted by the herein accused who were special
policemen in the employ of the plaintiff, Emilio Broce. On the land
involved in the judgment and execution stood Loreta Rivera’s house, a
makeshift affair whose floor was about one meter from the ground, and a
fruit; bearing mango tree not far from that house. In the execution the
Chief of Police “gave” the possession of the land to the execution
creditor but did not then have the house removed or destroyed.

Between two and three o’clock in the afternoon Felicisimo Canoy and Feliciano Estender, armed with a Thompson submachine gun and a carbine,
respectively, came back and saw on the mango tree picking fruit,
Eusebio Dinglasa, 17, and Teodorico de Paz, 15, both relatives of
Loreta Rivera. In the house at the time was Perfecto Apurado, one of
the deceased, alone Rivera and her husband and children being out.

For reasons and under the circumstances about which the proofs are
in disagreement, Eusebio Dinglasa and Perfecto Apurado were shot and
killed and Teodorico de Paz wounded by the two accused, or by Canoy
alone.

When the Chief of Police, appraised of the shooting, came with the
District Health Officer, Dr. Arturo A.Cruz, to make an inquest,
Apurado’s cadaver was stretched on the ground at the foot of the stairs
of Loreta Rivera’s house, and Eusebio Dinglasa’s body under the mango
tree.

In Perfecto Apurado’s body the physician found—

“(1) A gunshot wound on the left arm with an
entrance on the interior side of left arm passing thru the biceps
muscle, with a compound fracture of the left humerus and with an exit
on the outer side of left arm.

“(2) Gunshot wound with an
entrance on the right posterior axillary region at level of the nipple
passing obliquely downward to the left and with an exit on the left
side of the abdomen just below last rib.

“(3) Gunshot wound
left thigh just above the left knee with an entrance on the external
thigh and an outlet on the posterior side.

“(4) Bruises, right thigh.

“(5) Superficial wounds on the left lumbar region,”

Examination of Eusebio Dinglasa’s body revealed these wounds:

“* * * gunshot wound with an inlet on the left
axillary line just at level of the intersection of a line drawn 4 inches
below the left nipple to the mid-axillary line going obliquely upward
to the right side passing out thru the right axillary region just at
level 2 inches above the right nipple and entering the right bicep
muscle and the bullet lead on the outer side of the right biceps; the
bullet when extracted was found to be a ,h5 caliber lead.

“(2) A clean superficial wound running horizontally just above the right nipple, to the left nipple.”

And Teodorico’s de Paz’s injuries were described to be—

“(1) Gunshot wound at the right outer leg just 3
inches below the right knee and about 1/2 centimeter in diameter
passing obliquely downward thru the flesh, with an exit at the interior
side of the leg just 5 inches below right knee and about 1 cm. in
diameter.

“(2) Gunshot wound left lower leg having an
entrance on the interior side of left leg just 3 inches below left knee
and about 1/2 inch in diameter passing out to the external side of left
leg just 5 inches below left knee and the wound 1 inch in length and 1
inch in width with partial fracture of tibial bone.”

Three witnesses gave evidence for the prosecution. Teodorico de Paz
testified that when Canoy and Estender arrived, Canoy told them to come
down from the tree but that before they could obey, Canoy fired upon
them and Dinglasa fell to the ground mortally wounded from a height of
about 12 feet. Paz5 the latter declared, although wounded in both legs
did not drop and stayed on the tree until Canoy went off. When Canoy
opened fire Estender had gone elsewhere and was not seen by the
witness. Gabriel Apurado substantially testified. After cleaning his
yard at about 12 o’clock and taken his noon meal, he took his siesta in
Conrada Coloyacoy’s house. He was awakened from his nap by the reports
of guns and, looking out the window, saw Imoc (Felicisimo Canoy) with a
Thompson in his hands near the mango tree. From the mango tree Canoy
went to Loreta Rivera’s house and climbed the batalan from which he
fired into the house. After firing, Canoy jumped down and stood in
front of the stairway where Canoy took some object from his trouser’s
left pocket. Afterwards Estender and Canoy shouted “retreat” one after
the other and scampered off. Estender had a carbine and had fired in
the direction of Loreta Rivera’s house. When Canoy joined him.

The appellants in their brief, summarized and elucidation their version of the occurrence as follows:

“As special policemen it was the defendants1 duty to maintain peace and order in the places assigned to them.

* * * * * * *

“Altho not a party in the ejectment case (Civil Case No. 733),
Pertfecto Apurado, who claimed an interest on the land in question as
one of the heirs of the Apurado family, was present when the Chief of
Police turned over to Emilio Broce the possession of the land in
question. Perfecto Apurado appeared very excited and angry and in an
aggressive attitude told the Chief of Police that he was not preventing
him from delivering tfce possession of the property to Emilio Broce
‘because you are a person in authority’ but aggressively and
gesticulatingly he promised to get hack the possession when the Chief
of Police will be away * * *.”

“In the afternoon of that
day, at about 2:00 p.m., the accused Feliciano Estender and Felicisimo
Canoy complying with a regular duty returned to Tiboco to watch the
place and * * * noticed the presence of two persons gathering mango
fruits from up the mango tree. Feliciano Estender shouted at them ‘get
down, why do you steal mangoes?1 But they did not get down, so Estender
repeated his order, to which they answered: ‘we are not going down,
manong pitoy (Perfecto Apurado) ordered us’ Estender told them: ‘if you
do not come down, I will should you1, and shot twice in the air to
scare them. As he was under the mango tree, some branches were broken
and the two fellows were scared, so they went down. The boys, of
course, were not hit. “When they were already down, Feliciano Estender
was satisfied, and he thought that the whole incident was over, so he
left Canoy to watch near the mango tree, and he went to a nearby field
which was being plowed. In the meanwhile, and Just as Estender went
away, Teodorico de Paz sensing something or probably knowing that his
companions were apt to do something, he went in the direction of some
banana trees and bushes and remained there in hiding, Eusebio Dinglasa
however, remained near the mango tree, as if waiting for something.
Felicisimo Canoy then began to lecture Dinglasa and was advising him
not to steal mangoes again, and suddenly he heard the voice of Perfecto
Apurado who came from Loreta Rivera’s house (10 meters from him) and
rushed toward him saying; ‘I ordered them, police.! Felicisimo Canoy
finding himself in that predicament, and when Apurado was about six
meters from him, made a sign with his hand and gun and told him ‘Tio
Pitong, I am armed, do not approach me,1 Apurado stopped at a distance
of six meters from Canoy and retreated about one meter; then he swerved
his body as if to hide something and started getting an object from his
left pocket; evidently it was not so easy to pull it out from the left
pocket of his pant, so, he used his right hand to hold the pocket while
his left hand was pulling the thing out. Felicisimo Canoy watched him
very closely and when he recognized that Apurado was getting a
hand-grenade from his left pocket and was bringing it to his mouth to
remove or to pull the pin, he fired at him with his Thompson, hitting
him on the right posterior axillary region. At that time, Felicisimo
Canoy was on a higher level than Perfecto Apurado, so the bullets had a
downward direction.”

“When a Thompson sub-machine gun is
fired, unlike ordinary pistols, a batch of bullets are discharged;
hence, when Canoy fired, a bullet hit Apurado’s right posterior
axillary region passing obliquely downward to the left side of the
body; another bullet hit his left arm, which undoubtedly was exposed
when he pulled out the hand-grenade from the left pocket; and a third
bullet hit the left thigh of Apurado,”

“Upon being hit,
Perfeeto Apurado reeled in the direction of the stairs of Loreta’s
house, which was only three (3) meters away; undoubtedly the man
thought of returning to the house, and tried to scale its low stairs
(it had only 3 steps and the third step was resting on the door), but
as he was about to reach the door, he staggered and fell dead in front
of the stairs, and the hand-grenade too fell and rolled down,”

“Felicisimo Canoy saw how the hand-grenade fell to the ground, and
fearing an explosion, he threw himself to the ground for safety, face
downward. He was then near the mango tree.”

“Eusebio
Dinglasa was also there, waiting for his chance, and when he show that
Canoy was lying down on the ground, he thought that that was his only
chance and rushed at him with a knife; unfortunately for him, before he
was able to strike, Canoy noticed him and in a split second he fired
his Thompson and Dinglasa staggered and reeled toward the mango tree
and died a few minutes later. He was fatally hit below the nipple.”

“Teodorico de Paz who was hiding behind the banana trees and bushes was
reached by some of the astray bullets discharged by the Thompson and
was wounded on his two legs, one of which suffered a fracture of the
bone; * * *.”

“Mariano Sabagala and Loreta Rivera were the
first to arrive at the scene of the tragedy; when they arrived, the two
accused Felicisimo Canoy and Feliciano Estender were no longer there.
Sabagala and Loreta Rivera saw Perfecto Apurado already dead near the
stairs of Loreta’s house; they saw also a hand-grenade near the head of
Apurado. After seeing Apurado’s dead body, they proceeded to the mango
tree and there they saw Eusebio Dinglasa’s dead body, under the mango
tree. Eboy as they knew him was lying ‘de costado’ and near his body
they am a knife, Exhibit K. Soon thereafter, they heard the moan of a
person, not far from them, and they immediately went in the direction
of the moan; they found Teodorico de Paz, Loreta’s step son, behind the
bushes and banana trees, and could not walk due to the grave wounds he
had received on both legs. So they carried him and brought him to the Casa Comite. Teodorico then told Loreta that Perfecto Apurado had ordered them to gather mango fruits.”

“At that time many people had arrived, * * *. Dinglasa’s brother named
NENE, was seen near the cadaver of Eusebio Dinglasa touching his
brother’s dead body. When the Chief of Police and the Doctor arrived,
the crowd retired and gave way to the public officials. The body of
Dinglasa was already lying “face upward” and the knife was returned to
the scabbard. The witness Mariano Sabagala testified that probably
‘Nene’ the brother of Dinglasa performed the change.”

The testimonial and circumstantial evidence for the prosecution is
overwhelming, as we see it, leaving aside the defendants’ confessions-.
It should not take long to dispose of the case were it not for the
great vehemence with which counsel pleads for his clients1 acquittal.

Dinglasa’s wound which.was described as having an upward direction
and from which a .45 lead was extracted, makes it certain that the
deceased was at a point higher than the assailant when the former was
hit. The trajectory of the missile that caused this wound fits in with Paz’s testimony that Dinglasa was on the tree, about 12 feet above the
ground. But Canoy, to counteract this inference, said that Dinglasa was
on his feet on the ground and he (Canoy) was flat on his stomach when
he fired. This testimony is belied by these factss

Dinglasa’s knife was in its scabbard which was fastened to his
waist at the back and was under the dead body, as witnesses swore.
Mariano Tabagada’s assertion that Nene, Dinglasa’s brother,
touched that knife, insinuating that Nene very likely put it back in
its sheath, was, in the opinion of the trial court, a falsehood. Said
the court, with whom we fully agrees

“En las circunstancias en que se hallaba el cadaver tendido
boca-arriba y con la vaina hacia la espalda, era improbable que el
paiiente de marras del occiso haya tenido el humor de buscar donde
estaba la vaina y al encontrarlo haya vuelto a poner en ella el
cuchillo. Por otro lado, consta de las pruebas que este testigo,
Mariano Tabagad, que era cabo de Emilio Broce y que tenia frecuente
contacto casi a diario con este, si fuera cierto que habia presenciado
la tragedia, no lo hubiera guardado en silencio hasta dos semanas,
despues de las cuales fue cuando se lo comunic6 a su amo. Bajo estas
circunstancias, y habiendo observado la conducta y manera de declarar
de este testigo Mariano Tabagad durante el tiernpo de su testimonio, el
Jtaagado no le da absoluto credito.”

For another thing, it would have been foolhardy for Dinglasa to
conceive and carry into execution the Idea of attacking with a short
knife policeman who was watching him closely with a sub-machine gun
poised to shoot, and who had a companion also armed with a powerful
weapon*

The reason given why Canoy, as he declared, was in a prone position
on the earth, was that Apurado had tried to throw a hand grenade and
that Canoy lay low to get out of the way of its charge. The great
weight of probabilities tends to show that the hand grenade belonged to
Canoy himself and was planted by him. The court noted that Canoy had
been a guerrilla and was a special policeman which strenghtens the
probabilities mentioned.

The reverse of the trajectory of the bullet that caused Dinglasa’s
wound, the bullet which pierced through Apurado»s body ran downward
reckoned in relation to man’s standing position. Canoy’s^explanation
that he fired from a point higher than Apurado does not jibe with his
own evidence, that he and Apurado were on their feet in the yard few
feet apart. From the sketch of the place introduced in evidence and
from all other indications, it does not appear that the earth was
unlevel.

That Apurado made an attempt to attack Canoy with a hand grenade
was utterly improbable. With a younger man a few feet away holding a
deadly weapon, and with nothing to shield him from Canoy’s fire,
Apurado must have known it would be suicidal to go through the slow
motion of extracting a hand grenade from his hip pocket and pulling out
its pin with his teeth in plain sight of his adversary. The most
convenient place from which to toss such weapon was inside the house
whence Apurado is alleged to have come out and where he could have set
the contrivance to explode with comparative safety to himself.

Drops of blood were found on the steps and at the portal of
Loreta Rivera’s house. This is mute testimony that Apurado received his
wounds inside the shack. If there were no blood stains inside the
house, the absence could easily be accounted for by the fact that the
cot on which Apurado was lying, or sleeping, was only one foot from the
stairs, and that bullet wounds do not bleed profusely and not always
immediately. This is especially true of old’ and sickly people, and
Apurado was 59 years of age and was not in good health. Extended on a
cot with his feet close to the door, and abruptly shaken by the bullets
that struck him, it is fairly safe to assume that Apurado by instinct jumped up upon being awaken and walked down the stairs or tumbled into
the yard. In the split-second between the instant he was hit and the
instant he reached the doorway, the trickle of blood, if any, that
oozed from his injuries could have been absorbed by his clothes.

The presence of blood on the house steps from the doorway down is
as inconsistent with Canoy’s story as it is decisive of the
Government’s case. It is said that after being wounded Apurado ran up
the stairs but fell upon reaching the top rung. We are unconvinced.
Old, sickly and fatally injured, Apurado would have escaped, if he
still could run, to a place demanding less physical efforts to reach.

No less damaging to the defendants’ case is the circumstance that
two of the empty shells introduced in evidence had been picked up by
the Chief of Police behind the batalan, which was on the side almost
opposite to where the house steps (at the foot of which Apurado dropped
dead) were located. Aside from these shells, the galvanized iron side
wall of the house bore four new bullet holes, two from a Thompson and
two from a carbine, judged by their sizes. They were easily
distinguishable as to newness from the rest of the holes in that their
edges were shiny and clean while those of the others were rusty,
according to the Chief of Police. These holes are incontrovertible
demonstration of the untruth of the defendant’s evidence that Apurado
was shot down in the act of assaulting Canoy in the yard.

It is well to keep in mind that Paz’s, Gabriel Apurado!s and
Rivera’s testimony is the basic evidence for the prosecution. The
circumstances hereinbefore referred to are only corroborative. With
these corroborations, there is little or no room for doubt as to those
witnesses’ veracity. Without them, we still would not hesitate to
accept their testimony as founded on fact. Their accounts of the
shooting as written into the record have the ring of truth
straightforward and simple, free of any signs of fabrication,
exaggeration or affectation.. Of the defendants1 narratives, it can be
said they appear extremely unnatural. The appellants made a laborious
effort to explain why Dinglasa’s wound extended upward and Apurado’s
downward, and how blood happened to drop on the house steps and the
doorway, but they did not and could not account for the empty shells
below the batalan and the new bullet holes in the house wall.

We are fully satisfied that the crimes at bar were committed
substantially in the forms related by the witnesses for the Government.
This conclusion is further strengthened by defendants’ signed
confessions to the Chief of Police. Although these confessions disagree
with the Government’s version of the killing in details, that of
Estender coincides with the above version in the important particular
that Dinglasa and Paz were on the tree and Apurado was in the house
when they were killed or wounded. Canoy, too, admitted in his
confession that the “smaller child” was hit while on the tree and fell
therefrom to the ground. These confessions are impugned on the theory
that they were not sworn to before any officer authorized to administer
oath» This deficiency does not render the statements inadmissible or of
no probative value. Even oral declarations if voluntarily made are
competent evidence and admissible.

On the appellant’s responsibility, much depends on the existence of
conspiracy. The trial court saw concert of action between the
defendants in the perpetration of the three crimes. Prom the
defendants’ actions, from the bitter relations between Apurado and
Broce, and specially from the incident that occurred during the
execution of the justice of the peace’s judgment, there is warrant for
the belief that the accused did conspire together to do away with
Apurado, and returned to the land in dispute for that purpose.

It will be recalled that when the Chief of Police delivered the
possession of that land to Broce in the presence and with the
assistance of the accused, Apurado was excited and told the officer
that he would ignore the court’s decision and reoccupy the house and
lot when^he left. Aside from this litigation, there was a pending one
between the Apurado and the Broce families over the same or other
property. Apurado’s open defiance could well have infuriated the
accused or their employer. When, close on the heels of that defiance,
the two accused came back and Estender went directly to where Apurado
was supposed to be and fired into the house without the slightest
immediate provocation, this appellant betrayed by his act a
preconceived intention to slay Apurado. And from the fact that Canoy
scurried to join his companion and also shot into the house, apparently
from the same spot, the conclusion seems clear that he shared the plan
to kill Apurado, The flight of the two defendants at the same time and
in the same direction and their unison in shouting “retreat,” completes
the chain of evidence of a community of interest and objectives,

For Apurada’s murder, then, the two defendants are equally
criminally liable, regardless of whose shots inflicted the mortal wound
or wounds.

But evidence of conspiracy with respect to the shooting of Dinglasa
and Paz is found wanting. Indications are that the defendants came upon
these boys casually, not expecting to find them on the tree. At least
Estender did not seem to mind them much, much less do them harm. He did
not stop to bother with them further than—perhaps—to ask what they were
doing on the tree. Except for that possible brief pause, he walked
straight to the house yard and was not around when Canoy fired at
Dinglasa and Paz. Canoy alone therefore is answerable for the Slaying
of Dinglasa and the wounding of Paz.

The court, in our opinion, erred in applying the mitigating
circumstance of surrender. Canoy did not surrender himself within the
meaning of Article 13, paragraph 7, of the Revised Penal Code. The
Chief of Police placed Canoy under arrest in his employer’s home to
which that officer was summoned and brought in Broce’s jeep upon
Juvencio Broce’s initiative or request. It does not appeaf that it was
Canoy’s idea to send for the police for the purpose of giving himself
up.

Estender can not, within the contemplation of law, be said to have
surrendered, either, by accompanying the Chief of Police to the scene
of the crimes. He was not yet charged with, or suspected of having
taken any part in, said crimes. The authorities were not looking for
him, and would not have looked for him if he had not been present at
the investigation by the Chief of Police. The most that can be claimed
for this defendant is that he did not escape or go into hiding to evade
a forseable arrest. This is not an extenuating circumstance.

In conclusion this is our decision: Canoy alone is guilty of murder
and frustrated murder for the killing of Dinglasa and wounding of Paz,
and both defendants are guilty of murder as co-principals for the death
of Apurado. There being no mitigating or aggravating circumstances, and
subject to the provision of Article 70 of the Revised Penal Code, Canoy
is sentenced to reclusion perpetua for Dinglasa’s murder and from 10 years of prision mayor to 10 of years and eight months of reclusion temporal for the frustrated murder of Paz; and Canoy and Estender will suffer reclusion perpetua
for the murder of Apurado. Canoy will pay Dinglasa’s heirs an indemnity
of P6,000, and the two defendants will pay jointly and severally
Apurado1 s heirs the same amount. Both defendants and appellants will
also pay the costs. So ordered.

Paras, C.J., Pablo, Bengzon, Padilla, Reyes and Jugo, JJ., concur.