THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. DOMINGO MOBE (ALIAS DOMING) ET AL., DEFENDANTS. DOMINGO MOBE (ALIAS DOMING), APPELLANTS.

This is an appeal by Domingo Mobe from a sentence of “imprisonment for life”
for murder. The appellant was also sentenced to pay the heirs of the deceased
P2,000. as indemnity, jointly and severally with Leonardo Camoro, and the costs.
With the appellant, Camoro was prosecuted for the same crime but was found
guilty only as an accomplice and given a lesser penalty. He did not appeal.

Wenceslao Robles, a policeman, testified that on the night of June 10, at
about 12 o’clock, he and Catalino Tibon, another policeman, heard reports of
firearms. As it was raining hard they did not move from where they sought
shelter from the rain. At about 2 o’clock, when the rain had subsided, someone
told them that there was a wounded man behind the drug store of Dr. Alonso
crying for help. They rushed to that place and found Emilio Deiparine dead and
Juan Saldo lying on the ground and groaning in a small alley behind the said
drug store. When they asked Juan Saldo, after the latter bad given his name,
what was the matter, Saldo said he was wounded. Saldo went oh to say that he and
four others had intended to rob the drug store; that when he saw the watchman
(Deiparine) with a carbine he grasped him to wrest his gun; that Domingo Mobe
then shot the watchman hitting him in the abdomen. (Saldo was wounded by another
shot unintentionally and died three days later in a hospital.)

Simplicio Samson testified that in June 1946 he was a member of the secret
service of Cebu City. At about 1:00 o’clock a. m. of June 11, while on patrol
duty with four other detectives, and after investigating another shooting, he
met Robles and Tibon who told him and his companions that there was a wounded
man on T. Padilla street. When they reached that place, Juan Saldo was already
inside the store of Dr. Alonso and the watchman lay dead behind the store. At
about 2:40 or 3 o’clock, he questioned Saldo because he was willing to make an
ante-mortem confession, Saldo’s condition was then very serious. Saldo related
that his companions were Domingo Mobe, Camoro, Tantoy and longing. When he asked
Saldo were his companions were he said they could be found in the house of
Candido Caliso and Crispin, which was 700 or 800 meters away. Proceeding to the
house indicated, Samson and his fellow officers saw Domingo Mobe in the act of
jumping from the rear window of the house, with his feet muddy, and arrested
him. Samson asked Mobe the whereabouts of his companions and Mobe pointed the
place where they might find Leonardo Camoro. They caught the latter defendant at
the corner of P. del Rosario and D. Pedro Cui streets spattered with mud and
gasping.

When, after Domingo Mobe and Leonardo Camoro were arrested, they questioned
them,the two defendants said that Domingo Mobe and Longing, (who was still at
large at the time of the trial), were the ones who had killed the watchman.

Camoro made a written statement which he later subscribed and swore before
the municipal judge. He declared that he was taken along by his four companions
to rob a house on T. Padilla street; that Longing, Owat and Doming carried a
pistol each and Tantoy a hunting knife; that he (Camoro) was unarmed; that upon
arrival at the house which they were to rob they were spied by the watchman who
followed them; that they took cover and forthwith Owat (Juan Saldo) grasped
Deiparine; that Longing and Mobe opened fire wounding Owat as well as the
watchman; that frightened he fled to the house of Crispin where he lived.

The appellant’s evidence consists of a brief testimony of his own. He said he
was asleep in the house of , Crispin at the time the killing was said to have
occurred, having gone to bed at about 9 o’clock. He denied he knew Leonardo
Camoro before they were thrown together in the city jail. He said he did not
know why he was arrested. “I was just sleeping and they just asked my name”, he
said. He also denied he admitted to the police that he had a gun and hid it
among banana trees at Calle Jonquera, as one of the witnesses for the
prosecution testified.

The parties have discussed with commendable ability and earnestness of the
admissibility and competence against the appellant of Saldo’s and Camoro’s
declarations. There is no need, however, on our part to decide the nice points
of law and fact so ably argued. For outside of the controversial confessions
there is enough evidence to satisfy us beyond rational doubt that the appellant
was one of the authors of the crime.

It has heretofore been seen that when the police authorities closed in upon
the house indicated by Saldo at the wee hours of the morning, Mobe made an
attempt to flee, his feet still covered with mud. It was through his indication
that Camoro, who is now serving his sentence, was apprehended at an unusual hour
and where he had no legitimate business to be. The two defendants lived or had
been staying in the same house. And after both were safely in the hands of the
police they confessed their participation in the crime, although only Camoro’s
statement was reduced to writing. It has also been seen that by their admission
Mobe and Longing fired the fatal shots. Mobe further admitted to the police that
he had concealed his pistol or revolver, so he was accompanied by one of the
detectives to the place he mentioned, although the arm was no longer there when
Bacus and Mote arrived. Surely these details were no fabrication.

Charged with a capital offense, the accused made a perfunctuory denial of
policeman Roble’s and detective Samson’s testimony. His evidence on his alibi is
very weak end is likewise conspicuous for its brevity. He did not present any
witness, which he could have done very easily if his defense were good, to
corroborate his testimony that he went to bed early and was asleep until awaken
by the police. His statement that he did not know Saldo and only knew Camoro
after their arrest is manifestly false and only serves to bring into relief his
disregard for truth.

The crime committed was properly held by the trial court to be murder. It is
qualified by treachery. Even though at the inception of the aggression the
deceased carried a carbine and was at liberty to defend himself against the
possible attacks by the malefactors, it is a fact that at the time the fatal
wounds were inflicted he was defenseless. His freedom of movement was being
restrained by one of the culprits when the appellant and one of his other
companions fired at the victim. (See U. S. vs. Baluyot, 40
Phil., 385.) The fact that one of the accused held fast the deceased from behind
and the other assaulted him while in this position constitutes a form of
aggression tending to insure its execution without any risk to the aggressors
arising from any defense which the deceased might make. In other words, this
assault is treacherous as defined by this paragraph. (U. S. vs. Valdez,
40 Phil., 876.)

The trial court appreciated the aggravating circumstance of nocturnity, that
of the crime having been committed by a band of more than three armed people,
and that “of (accused) taking advantage in employing means to weaken the
defense.” But in spite of these findings and the lack of any mitigating
circumstances to upset the aggravating circumstanced said to have been proven,
Mobe was sentenced only to “imprisonment for life”. Yet the judgment is correct.
We believe with the Solicitor General that the aggravating circumstance of band
has not been clearly established, as only three of the malefactors have been
shown positively to have been armed. As for nocturnity, this circumstance is
embraced in treachery and can not be considered separately from the latter. (U.
S. vs. Salgado, 11 Phil., 56; People vs. Bumanglag, 56 Phil.,
10; People vs. Madrid, G. R. No. 41976, Nov. 4, 1934.) Like nighttime,
the circumstance of taking advantage of superior strength is inherent in, and
comprehended by, the circumstance of treachery. When treachery is taken into
account as a qualifying circumstance in murder, it is improper again to consider
in addition to that circumstance the generic aggravating circumtance of abuse of
superior strength, since the latter is necessarily included in the former. (U.S. vs. Estopia, 28 Phil., 97; U. S. vs. Oro, 19 Phil., 548, U.
S. vs. Vitug, 17 Phil., 1.)

There being neither aggravating nor mitigating circumstances present, the
judgment of the court below is correct in its result, except that the
“imprisonment for life” should be changed to reclusíon perpetua. It is
best to employ the legal terminology in the imposition of a penalty for the
different kinds of incarceration — reclusíon prisión, imprisonment,
etc. — have their corresponding legal accessories and effects.

With this modification, the appealed decision is affirmed with costs of the
appeal against the appellant.

Parás, Feria, Perfecto, and
Bengzon, JJ., concur.