THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. DIOSCORO PINUILA, ET AL., DEFENDANTS, ABSALON BIGNAY, DEFENDANT AND APPELLANT.

Defendant Absalon Bignay is appealing the decision of the Court of First
Instance of Negros Occidental, finding him guilty of murder for the death of
Buenaventura Dideroy, and sentencing him to reclusion perpetua, with the
accessories of the law, to indemnify the heirs of the deceased in the amount of
P6,000, without subsidiary imprisonment in case of insolvency, and to pay
one-third of the costs.

The following facts are not disputed. Early in the morning of October 20,
1948, the Barge No. 560 of the Visayan Stevedoring Company, loaded with
molasses, was anchored some distance from the mouth of the Victorias River,
Victorias, Negros Occidental. Bonifacio del Cano and Buenaventura Dideroy as
members of the crew of said barge, were sleeping inside its cabin, with a
lighted petroleum lamp hanging from the ceiling. Dideroy was suddenly and
violently attacked by men provided with stout wooden clubs, which were being
used as the capstan handle bars, resulting in a fracture of his skull and other
injuries to his body, which caused his death hours later. Del Cano went ashore
and reported the tragic incident to the person in charge of the barge, who in
turn notified the authorities, and the police and the president of the sanitary
division lost no time in going to the vessel and making the corresponding
investigation. On the basis of said investigation, appellant was arrested
together with Dioscoro Pinuila and Conrado Daiz, who were later charged with
murder.

At the trial, the Government presented its evidence and after it had rested
its case, counsel for the accused filed a motion for dismissal on the ground
that the jurisdiction of the Court of First Instance of Negros Occidental had
not been duly established. Although the information charged that the crime was
committed inside the barge and within the Municipality of Victorias, Negros
Occidental, the evidence for the Government tended to show that at the time, the
barge was not exactly docked at the bank of the Victorias River, but was some
distance from the mouth of said river, a precaution taken by the master of the
barge, so that at low tide, the barge would not be stranded. On the basis of
this finding, the trial court sustained the motion for dismissal and claiming
that its jurisdiction had not been duly established, it dismissed the case, but
provided in its order that the three accused should not be released until the
order shall have become final.

The order of dismissal was appealed by the Government to this Tribunal, over
the objection of the defense which invoked the principle of double jeopardy. But
this Court in a decision promulgated on March 28, 1952, found that the
jurisdiction of the trial court had been proven, and that the appeal did not
involve double jeopardy, and so remanded the case for further proceedings.

As already stated, the three accused continued to be under arrest. However,
while the order of dismissal was pending appeal in this Court, by virtue of an
order of the trial court in a petition for habeas corpus, the three defendants
were released. When criminal proceedings were resumed by the lower court, the
arrest of the three accused was sought, but only appellant Bignay could be
apprehended. His co-accused, Pinuila and Daiz, evaded arrest and until now are
still at large. For this reason, the trial was continued only against
Bignay.

The evidence shows that about three months before October 20, 1948, when
Dideroy was killed, the latter and Dioscoro Pinuila were in the aforementioned
Barge 560, anchored along the Pasig River in Manila, Dideroy as a plain sailor
and Pinuila as master or patron. It seems that Pinuila had misused or embezzled
the mess funds in his care, and the crew resented it, resulting in a violent
quarrel and fight between Pinuila and Dideroy. In the course of the fight, the
two men fell into the Pasig River and they continued the fight in the water.
Being a bigger and stronger man, Dideroy was winning the fight, and had it not
been for the intervention of his companions, Pinuila would have drowned. Pinuila
not only lost the fight, but also lost his job as master of the barge,
presumably because of his embezzlement of the mess funds. Because of all this,
he nursed a grudge against Dideroy and he found the opportunity of getting even
when he learned of the presence of Barge 560 with his enemy in it, anchored near
the mouth of the Victorias River.

Pinuila enlisted the aid of appellant Bignay and one Conrado Daiz, ostensibly
to help him get his equipment, including a table, from the said barge, and for
this he paid each of them two pesos. There is no proof that Bignay and Daiz were
informed by him or came to know before hand that they were going to attack
Dideroy inside the barge. The truth is that at about 2:30 in the morning of
October 20, 1948, the three took a small sailboat and boarded the barge, and the
three of them, each provided with a capstan wooden handle bar, attacked Dideroy
while he was sleeping. Del Cano, his companion, was rudely awakened by the
noise, and seeing the assault and realizing the danger to himself, he jumped out
of the cabin through its window, hid under it, but through a large hole he
looked inside the cabin and witnessed the progress of the attack. By the light
of the petroleum lamp, he could easily identify Pinuila and saw the faces of his
two companions, noting that one of them was limping, as though he were lame.
After the attack, and possibly believing that Dideroy was dead, Daiz said,
“Where is the other man, companion of this man Dideroy? Let us finish him also.”
But Pinuila interceded, saying that Del Cano had no fault at all and deserved no
punishment, and he (Pinuila) proceeded to call out to Del Cano, telling him not
to be afraid because he would not be harmed. Relying on this assurance, Del Cano
came out of his hiding place and approached the group. Pinuila said that they
were leaving, and that he (Del Cano) should take care of everything, at the same
time, giving1 the hint or Warning that Vaey had a rifle in their boat,
presumably meaning that if he informed the authorities of the identity of
appellants, his life would be in danger.

In the course of the investigation by the police, Manuel Ligada, police desk
sergeant of Victorias, went to the barrio within which the crime was committed,
and informed the residents that he was looking for Pinuila, Daiz, and Bignay,
not to arrest them for any killing, because according to him, Dideroy was alive,
but rather for them to enter into negotiations with the victim of their attack
who wanted an amicable settlement. The news spread in the community and the
three accused fell into the trap set for them. They appeared before Sergeant
Ligada, Pinuila readily admitting that they made the attack in order for him to
get even with Dideroy for what he had done to him in Manila three months before.
Bignay impliedly admitted participating in the attack because he told the
sergeant that he had to help Pinuila in the assault because Dideroy was a big
man.

During the trial, Del Cano readily identified not only Pinuila but also
Bignay and Daiz as the assailants of Dideroy. There is, therefore, no room for
doubt that said three men were responsible for the death of Dideroy, with
Pinuila as the mastermind.

The trial court found the crime committed to be murder, qualified by evident
premeditation, with the concurrence of the aggravating circumstances of
nighttime and treachery, compensated by the mitigating circumstance of voluntary
surrender, and imposed the penalty in its medium degree. Of course, the
aggravating circumstance of treachery absorbs that of nighttime.

We are
inclined to be lenient with appellant Bignay. Of the three accused, he is
clearly the least guilty. Moreover, he has been in jail since 1952 when
re-arrested, because by order of this Court, the criminal proceedings were
resumed. This, aside from the fact that he had also been under arrest since
1948, up to the time he and his co-accused were released after instituting
habeas corpus proceedings in 1949. In other words, he has been in jail for about
seven years. We are ready to believe and to find that the aggravating
circumstance of evident premeditation found by the lower court to qualify the
murder, does ‘not apply to him. For two pesos, it is hard to believe that
appellant would agree to kill Dideroy. It is more likely, even more probable,
that he only agreed to accompany Pinuila to get the latter’s equipment from
Barge 560, and only learned and realized that their trip to the barge was for a
sinister purpose, when they were already aboard the barge and shortly before the
actual attack. In the absence of evident premeditation, the aggravating
circumstance of alevosia should be used as the qualifying circumstance of the
crime of murder, thereby leaving no aggravating circumstance. With the presence
of the mitigating circumstance of voluntary surrender, Bignay is entitled to the
penalty for the crime being imposed in its minimum degree, namely, reclusion
temporal in its maximum degree. Applying the law on indeterminate sentence,
appellant Absalon Bignay should be sentenced to not less than twelve years of
prision mayor and not more than seventeen years, four months and one day of
reclusion temporal.

In the course of the discussion of this case and before it was actually
submitted to a vote, Chief Justice Paras raised the question of double jeopardy,
and without questioning the guilt of the appellant on the basis of the evidence
of record, claimed that said appellant has once been placed in jeopardy and,
therefore, he should now be acquitted. It is argued that the decision of this
Court on the appeal prosecuted by the Government from the order of dismissal of
the trial court on the ground of lack of jurisdiction, (G.R. No. L-3217) was
based on the case of People vs. Salico, ^*47
Off. Gaz., 1765, which held that an appeal by the Government from an order of
dismissal for lack of jurisdiction, when such jurisdiction really existed, which
order of dismissal was based on and prompted by a motion to dismiss filed by the
accused himself, did not place him in jeopardy, and that the doctrine laid down
in said case of Salico has recently been overruled by this same Tribunal in more
than one case. The argument is valid and correct. As a matter of fact, the
writer of the present opinion, together with Mr. Justice Bengzon, concurred in
the dissenting opinion of the Chief Justice, holding that the doctrine laid down
in the case of Salico was incorrect, not being in accordance with the law on
double jeopardy, and therefore, it should not be applied in the determination of
the former appeal by the Government (G.R. No. L-3217) from the order of
dismissal, consequently, said appeal should be dismissed. And it is really a
fact that the principle enunciated in the Salico case has already been abandoned
by this Tribunal.

However, the writer of the present opinion cannot in conscience and under the
law agree to, much less recommend that the new doctrine overruling that
enunciated in the Salico case should and could be applied to the present case.
The decision of this Court on that appeal by the Government from the order of
dismissal, holding that said appeal ? did not place the appellants, including
Absalon Bignay, in double jeopardy, signed and ‘concurred in by six Justices as
against three dissenters headed by the Chief Justice, promulgated way back in
the year 1952, has long become final and conclusive and has become the laiv of
the case. It may be erroneous, judged by the law on double jeopardy as recently
interpreted by this same Tribunal. Even so, it may not be disturbed and
modified. Our recent interpretation of the law may be applied to new cases, but
certainly not to an old one finally and conclusively determined. As already
stated, tbVmajority opinion in that appeal is now the law of the case.

“‘Law of the case has been defined as the opinion delivered on a former
appeal. More specifically, it means that whatever is once irrevocably
established as the controlling legal rule of decision between the same parties
in the same case continues to be the law of the case, ivhether correct on
general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court.” (21 C. J. S.
330) (Italics supplied.)

“It may be stated as a rule of general application that, where the evidence
on a second or succeeding appeal is substantially the same as that on the first
or preceding appeal, all matters, questions, points, or issues adjudicated on
the prior appeal are the law of the case on all subsequent appeals and will not
be considered or re-adjudicated therein.” (5 C. J. S. 1267) (Italics
supplied.)

“In accordance with the general rule stated in Section 1821, where, after a
definite determination, the court has remanded the cause for further action
below, it will refuse to examine question other than those arising subsequently
to such determination and remand, or other than the propriety of the compliance
with its mandate; and if the court below has proceeded in substantial conformity
to the directions of the appellate court, its action will not be questioned on a
second appeal. * * *

“As a general rule a decision on a prior appeal of the same case is held to
be the law of the case whether that decision is right or wrong, the remedy of
the party deeming himself aggrieved being to seek a rehearing.” (5 C. J. S.
1276-77). (Italics supplied.)

“Questions necessarily involved in the decision on a former appeal will be
regarded as the law of the case on a subsequent appeal, although the questions
are not. expressly treated in the opinion of the court, as the presumption is
that all the facts in the case bearing on the point decided have deceived due
consideration whether all or none of them are mentioned in the opinion.” 5 C. J.
S. 1286-87). (Italics supplied.)

The reason behind this well settled principle of law of the case is wholesome
and salutary.

“The reason for the rule of the finality of the appellate decision is
sometimes alleged, without direct reference to either stare decisis or res
judicata, to be found in the want of power in an appellate court to modify its
own judgment otherwise than on a rehearing, and in that the issuance of a
mandate for a retrial takes the case out of its jurisdiction. Again the rule has
been said to be founded on the policy of ending litigation, and to be necessary
to enable an appellate court to perform its duties satisfactorily and
efficiently, which would be impossible if a question, once considered and
decided by it, were to be litigated anew in the same case upon any and every
subsequent appeal. If a different rule were admitted, it is said, every change
in the personnel of the bench would produce confusion.” (5 C. J. S.
1274).

Furthermore, in his appeal brief, appellant’s counsel does not raise this
question of double jeopardy, confining himself as he does, to the discussion of
the evidence in the record, contending that the guilt of the appellant has not
been proven beyond reasonable doubt. One aspect of this case as regards double
jeopardy is that said defense may be waived, and that failure to urge it in the
appeal may be regarded as a waiver of said defense of double jeopardy.

“While the rule is not inflexible, and its application lies within the
discretion of the court, except in cases where the error assigned is
fundamental, or is so plain that it reveals itself by a casual inspection of the
record, or unless the point is expressly reserved by the report of the lower
court for the appellate court’s consideration, questions assigned as error are
generally considered to be waived by implication where they are not urged or
brought forward on appeal. * * *

“Subject to the exceptions stated in the preceding section, questions
assigned as error by an appellant are generally deemed to have been abandoned or
waived where they are not urged or discussed on appeal.-” (5 C. J.
1218-19).

In truth, counsel for the appellant may not be blamed for failing or
declining to raise said question of double jeopardy, knowing as he did that it
had already been formally and conclusively determined and adversely decided by
this Tribunal in a decision long final and conclusive.

In view of the foregoing, and with the modifications above-stated, the
decision of the trial court is hereby affirmed. With costs.

Appellant will be credited with any preventive imprisonment already
served.

Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and
Endencia, JJ., concur.

CONCURRING

REYES, A., J.,

I concur in the result.

It is beyond doubt that the appellant in this case is guilty. The only
question is whether he can still be convicted despite the dismissal of the case
when it was first tried in the lower court. That question was already answered
by this Court when, as a result of the Government’s appeal from the order of
dismissal, the said order was revoked and the case remanded below for further
proceedings. This Court then ruled that the appeal did not violate the
prohibition against double jeopardy. That ruling having long become final, it
should be the law of the case, specially because, as the majority opinion points
out, counsel for appellant does not now raise the question of double jeopardy
and failure to urge it in this instance may be regarded as a waiver of that
defense. The Chief Justice observes that the application of “the law of the
case” rule is subject to judicial discretion. But even then, that discretion
should be exercised wisely and its objective should be to help justice and not
to thwart it, that is to say, to punish a proven guilt and not to let the
wrongdoer go scotfree.

DISSENTING

PARAS, C. J.,

The appellant was charged in the Court of First Instance of Negros Occidental
with the crime of murder. In the course of the trial, after the defense had
raised the point of jurisdiction, the court dismissed the case. Upon appeal by
the Government, this Court, following the doctrine in People vs. Salico, ^*47 Off. Gaz., 1765, resolved to remand the case
for further proceedings. The Court of First Instance of Negros Occidental
thereafter convicted the appellant who has now appealed to this Court.

In the meantime, in at least three instances (People vs. Bangalao, 94 Phil.,
354; 50 Off. Gaz., [10], 4760; People vs. Ferrer, 100 Phil.. 124, 55 Off. Gaz.,
[4], 620, and People vs. Cabarles, 102 Phil., 926, 54 Off. Gaz., [20], 7051) by
implication if not expressly, we already revoked the doctrine enunciated in
People vs. Salico by unanimous vote. The decision of the majority upholding
appellant’s conviction is premised on the proposition that, although the rule in
People vs. Salico has been abandoned, the resolution of this Court remanding the
case at bar for further proceeding’s was issued while the rule in People vs.
Salico was in force or, in other words, the law of the case.

Without
discussing the judgment of conviction on the merits, I am of the firm opinion
that the position of the majority is patently untenable, and that the appellant
should be acquitted on the ground of double jeopardy. In the first place, the
“law of the case” rule is subject to exceptions we need not enumerate. It would
suffice to refer to the following authorities :

“The rule is qualified, however, in a number of jurisdiction which held that,
although the court will not review or reconsider questions decided on a formal
appeal except in most unusual circumstances or in a very clear case of error,
the court is not precluded from doing1 so, and the formal decision may be
reconsidered and reversed under exceptional circumstances and when cogent
reasons therefor exist.” (5 C. J. S., pp. 1277-78; Italics supplied.)

“Whether the appellate court will again consider questions decided as former
appeal is within its discretion! controlled by the circumstances of the case.”
(Community Natural Gas Co. vs. Northern Utilities Co. 13 S. W. [2d]; Houston Oil
Co. vs. Davis, 181 S. W. 851.)

“The appellate court should not hesitate to correct its erroneous ruling on
a former appeal in the same case construing1 a statute involving public
policy.”(McGovern vs. Kraus, 227 N. W, 300.)

“The courts are not in accord as to the conclusiveness of a decision on a
prior appeal in the same case where the principle enunciated therein conflicts
with rulings in other cases- In some jurisdictions it Is held that the decision
continues to be law of that case as between the parties and those claiming under
them although sub-sequently it is overruled in another case or there is a change
in the rule of law in that jurisdiction, but there is other authority that the
decision will not be followed on a subsequent aippeai if it has been overruled
by another case in the meantime, at least if no property or contract rights have
been acquired under the former decision.” (5 C. J. S., pp. 1277-78.)

In
the second place, although our resolution remanding this case for further
proceedings had become final, the appellant has not as yet been finally
convicted and, as a matter of fact, this Court is still called upon to decide
his present appeal from all angles. We still have the judicial discretion, nay
duty, to rehear and resolve any question decided under an erroneous prior
doctrine; and to the credit of this Court, it has abandoned erroneous earlier
decisions.

In the third place, this being a criminal case, the subsequent ruling in the
cases of People vs. Bangalao, People vs. Ferrer and People vs. Cabarles, should
be applied retroactively in favor of the appellant.

It is immaterial whether the appellant has not raised the issue of double
jeopardy in his brief, because in criminal cases, regardless of the assignment
of error, we have ample power to consider and correct palpable errors.

CONCURRING

FELIX, J.,

I concur in the dissenting opinion of the Chief Justice and make mine his
reasons in support of his contention. I wish, however, to add another reason
which, I know, may be more realistic than juridical.

There is no dispute among the members of the Court that the decision We
rendered in this case when it was first brought up to Us, was erroneous because
by that time, the defendant had already been placed in double jeopardy.
Nonetheless, this Tribunal ruled that the lower Court had jurisdiction over the
case and remanded the same to the lower Court for further proceedings. Needless
to say that when this case was elevated to Us for the second time and despite
our previous ruling aforementioned, the defendant had not ceased to be in double
jeopardy, and it is my considered opinion that We cannot sanction or approve our
said ruling under the theory that it was then the law of the case. Once
Aristotle said that he was “amicus Plato sed ruagis arnica veritas“, and in
paraphrasing this statement that history passed on to Us and sanctioned with its
approval, I may say that although I am prone to follow the principle of stare
decisis and maintain the law of the ease, as already stated, yet I am always
more determined to uphold the truth and recognize an error that this Court may
have previously committed.