THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. HUGO ZARA ET AL., DEFENDANTS AND APPELLANTS.

This appeal has been brought by Hugo Zara,
Policarpo Umali, and Faustino Borruel, to reverse a judgment of the
Court of First Instance of the Province of Batangas, finding them
guilty of the offense of robbery with homicide, committed upon the
person of a Chino named Singa (alias Tacua), and sentencing each of them to undergo the imprisonment of cadena perpetua with
accessories as prescribed by law; to indemnify jointly and severally
the heirs of the deceased in the amount of P1,000, and to pay each
one-third part of the costs.

It appears in evidence that the deceased in this case was a
Chinaman, resident of Lipa, in Batangas, bearing the name of Dy-Chinco,
alias Singa, alias Tacua, whose principal business
apparently was that of a dealer in hogs. On March 3, 1920, said
Chinaman left Lipa for the town of Taisan, in Batangas, taking with him
the sum of P530 in paper bills, to be used in payment of the hogs which
he intended to buy on this trip. On his way to Taisan he stopped in the
town of Rosario, where he collected the sum of P400 from Emeteria
Cabal, whose husband he also employed to help in taking the hogs back
to Lipa. The deceased then proceeded on his way to Taisan; and at about
5 o’clock in the afternoon, a conversation occurred at the municipal
building between the deceased and the accused Hugo Zara, in which the
latter, who was already indebted in the amount of P30 to the deceased,
was heard to ask the deceased to lend him money. The deceased replied
that he had no money to spare, as what he had with him would be needed
to pay for the hogs which he intended to buy.

When night came on the deceased put up at the house of Mauricio
Hag, situated in the barrio of Mahanadiong, Taisan; and inasmuch as
this date coincided with the celebration of the day of the local patron
saint, it resulted that the inmates of the house absented themselves
that evening to attend the celebration in Taisan. The deceased
therefore alone remained in the house of Mauricio Hag during the first
part of the night; and while he was stretched upon the floor apparently
asleep, some felonious intruder approached the spot where he lay and
killed him with a bob. Upon examining the corpse, the sanitary
inspector found several wounds, the most serious of which was one which
nearly severed the neck.

The body was found in a natural position on its back, with the head
on the pillow in such position as naturally gives rise to the inference
that the mortal blow had been given either while the victim was
actually asleep or before he had any chance to rise from his recumbent
position. Near the body were found two pocketbooks with a few small
coins. These books were identified by the widow as property of the
deceased which had been in his possession at the time of his departure
from home.

On the day succeeding the perpetration of this crime Hugo Zara was
arrested as its suspected author; and shortly thereafter, due to
revelations made by him, the other two accused were arrested on the
charge of being joint authors of the same offense.

Soon after being arrested, each of the three accused made separate
statements which have this feature in common, namely, that while each
declarant admits complicity in the offense, he nevertheless lays the
blame principally to some one other than himself. Thus, Hugo Zara,
according to Exhibit C, said that, after eating supper at his home in
the barrio of Mataasnalupa on the evening of March 3, 1920, he started
for the poblacion (Taisan) and on the way he met Policarpo
Umali and Faustino Borruel; that after going some distance he hid
himself at a coconut tree on the west side of the street, watching to
see what they would do; that Policarpo and Faustino then passed around
the house of Mauricio Hag, until they reached the kitchen porch of said
house, when they stopped. Shortly thereafter they went up into the
house, Policarpo leading the way, with Faustino following. At this time
the declarant was a short distance away to the north of the house.
Immediately after the two above-mentioned had penetrated into the house
of Mauricio, the declarant heard noise, accompanied or followed by a
shriek. Thereupon the declarant was seized with fright and fled.

Faustino Borruel stated (Exhibit D) that on the night in question
he was approached at the circus by Hugo Zara, whom he accompanied
northwards until they reached the tienda of one Arcadio
Viceral, where they were joined by Policarpo Umali; that the three
proceeded together towards the house of Mauricio, and that upon
arriving near thereto Zara posted the declarant Borruel at a certain
nanca tree to give information in case any one should approach, stating
that he and Policarpo were going up to kill the Chino.
Accordingly, while those two were in the house of Mauricio, the
declarant paced to and fro in front, and he presently heard noise and a
shriek. Immediately he heard two other noises, and at the same time saw
Hugo Zara make a stroke. Policarpo then put his head out of a window of
the house and called to Borruel to come up, which the latter did. Upon
coming up he saw the body of the deceased and Hugo Zara standing at its
head in the act of sheathing his bolo.

Policarpo Umali gave, in the statement, Exhibit E, substantially
the same account of his relation to the crime as is contained in the
statement of Borruel. In addition he admits that the homicide was
committed for the purposes of robbery. He says further that as Hugo
Zara unsheathed his bolo at the door preparatory to entering, he
cautioned the declarant to watch for any people who might be
approaching; and the declarant accordingly stood on watch at the door,
observing what Hugo Zara was doing. He says that he saw the Chino
within, asleep, and that Zara crept up and gave him a slash on the left
arm, which caused him to shriek and to attempt to get up. Zara
thereupon gave him a cut on the throat which rendered the victim
incapable of emitting any sound with the voice. The declarant himself
then entered the room, opened the window and called to Faustino
Borruel, while Hugo Zara searched the body and took therefrom a large
roll of paper money. This money Zara pocketed, at the same time taking
his station at the head of the Chino, where he stood, sheathing his
bolo, at the moment Faustino entered.

Among additional items of proof in the case is the fact that when
the room where the murder was committed was inspected a footprint
showing the toes and ball of a human foot were seen stamped upon the
floor in blood. After Zara had been arrested he was taken to the house
and notwithstanding an exhibition of unwillingness on his part, his
left foot was placed over this spot and it was found to fit precisely.

Also, after Faustino Borruel and Policarpo Umali had been arrested,
they were taken by Lieutenant Garcia, of the Constabulary, and the
chief of police of Taisan, to the house where the crime was committed,
and each there voluntarily described to said officers the details of
the tragedy in a way that showed complete familiarity both with the
scene and incidents of the crime.

The proof set forth above is in our opinion conclusive as to the
guilt of each of the accused as to the offense of homicide; and in this
connection we bear in mind that what is set forth in the three
respective statements of the accused (Exhibits C, D, and E) is
competent only as against the actual declarant. As against Hugo Zara,
the case is made out by proof of his conversation with the deceased on
the afternoon preceding the tragedy; by his own statement, indicating
his complicity in the crime—but assigning to himself the role of
watcher instead of chief actor;— and finally by the coincidence of the
ball of his foot with the mark in blood left on the floor of Mauricio
Hag’s house. As against the other two the case is satisfactorily made
out from the admissions of guilt contained in their respective
statements, in connection with admissions made at the time of the
ocular inspection of the premises in their presence.

That the crime of robbery was committed in connection with this
homicide, and as a result thereof, is proved, as against Policarpo
Umali, by his own admissions, and as against all three of the accused
by the fact that the deceased had money in his possession at the time
of his death and that after the commission of the deed his two purses
were found near his body, stripped of their paper contents. In this
connection it may be observed that the conversation which Hugo Zara had
with the deceased on the afternoon immediately preceding the
perpetration of the crime is important as showing that this accused
needed money at that time and that he learned in this conversation that
the deceased then had upon his person money which he intended to use
for the purchase of hogs.

The main efforts of the defense in this case appear to have been
directed to the neutralization of the effects of the documents,
Exhibits C, D, and E, containing the statements of the three accused,
as severally approved by them in placing their marks upon, or signing
the same before Benito Africa, justice of the peace, in Lipa, Batangas,
soon after the crime had been committed; and to this end a considerable
mass of testimony was presented for the defense at the trial in the
Court of First Instance, tending to show that these statements were
extorted from the accused by mistreatment, menaces, and even torture,
inflicted upon them by members of the Constabulary after they had been
arrested. A careful perusal of the transcript shows the false and
artificial character of these pretenses, and the trial judge in our
opinion showed proper discernment in declaring the same to be baseless.
We may add that certain proof submitted on behalf of Policarpo Umali
and Faustino Borruel, tending to show an alibi on their part, is
unconvincing, since the alleged presence of Faustino at the circus and
of Policarpo at a restaurant on the night of the commission of the
crime, even if credited, is not necessarily inconsistent with the
possibility of their participation on the same night in the robbery and
murder which is the subject of this prosecution.

Error is assigned to the action of the lower court in admitting
oral evidence with reference to the experiment performed by placing the
left foot of Hugo Zara over the bloody footprint left on the floor at
the scene of the crime; and in this connection it seems to be supposed
that it was necessary to present in court either a photographic
reproduction of the footprint or the very board upon which the footmark
appeared. This assignment is not in our opinion well taken; and the
testimony showing the coincidence of the foot of the accused with the
footprint in question, which lacked the print of the heel, must be
considered admissible and competent evidence. It is needless to say
that we are not unmindful of the possibility of error in an experiment
of this kind, and if this had been the only proof against Hugo Zara, it
may be assumed that he would not have been convicted. As corroborative
of his guilt the circumstance mentioned is entitled to some weight in
connection with other incriminatory facts.

A point is suggested by the ninth assignment of error which
requires a few words of explanation, inasmuch as it relates to a matter
about which some confusion apparently exists in the minds of legal
practitioners. The question raised has reference to the conditions
under which the confession of an accused person, admitting complicity
in the perpetration of a crime, may be introduced as evidence against
him in a criminal prosecution.

In this connection it may be premised that judicial experience
concurs with common sense in the conviction that, in order to be worthy
of credit, a confession must be freely given, and not be induced either
by fear or the promise of leniency. Hence, it is a universally
recognized rule that where a confession appears for any reason not to
have been voluntarily made—as where it is extorted by threats,
violence, or intimidation, or has been obtained by promises of reward
or leniency—it should be rejected.

In common-law countries the question of the admissibility, or
competency, of confessions, as apart from the weight to be attached to
them, has given rise to a special problem, owing to the fact that
criminal causes in Courts of First Instance are there usually tried
before a jury; and in order to avoid the prejudicial effects upon the
minds of the jurors that might be produced by the unrestricted
admission of confessions, the practice is usually followed in those
countries of requiring the judge, and not the jury, to determine
primarily whether or not a confession offered in evidence was
voluntarily given; and this is done when evidence of the confession is
offered. If the court decides that the confession was voluntary, it is
admitted and allowed to go before the jury, with instructions of course
to the jury, in case of a conflict of the proof, to attach no weight to
it, unless they believe that it was voluntarily given. And of course
where the court decides that the confession was not voluntary, it is
withheld altogether from the jury. (See 1 R. C. L., pp. 577-579.)

With the introduction of the American criminal procedure into these
Islands—minus, of course, the system of trial by jury—it was deemed
advisable to give emphatic expression to the rule excluding evidence of
confessions, unless they are shown to have been voluntarily given; and
to this end the Philippine Commission adopted the provision contained
in section 4 of Act No. 619, to the effect that no confession of any
person charged with crime shall be received as evidence against him by
any court of justice unless it be first shown to the satisfaction of
the court that it was freely and voluntarily made and not the result of
violence, intimidation, threat, menace, or of promises or offers of
reward or leniency. In obedience to this very explicit and mandatory
provision, this court held in United States vs. Pascual (2
Phil., 457), that the failure of an accused person to object to the
introduction of evidence of a confession made by him, without
compliance with the prerequisites stated in that section, did not
operate as a waiver of the irregularity, and that an objection thereto
might be raised at any stage of the proceedings, even in the Supreme
Court.

That the rule thus introduced in these Islands was somewhat more
strict than that prevailing in other jurisdictions is evident from the
cases collated under the appropriate topic of the title Criminal Law in
the encyclopædic treatise Corpus Juris, from which it appears that the
general rule on this point is that if no timely objection is
interposed, a confession may be admitted without preliminary proof
showing that it was voluntarily made. (16 C. J., 733.)

Now, the entire Act No. 619 was repealed by the Administrative
Code, as will be seen from the schedule of repealed statutes inserted
at the end of the Code; and it will be found that section 4 of Act No.
619 has not been reproduced therein. It results that said section has
not been in force in these Islands since July 1, 1916, when the
Administrative Code first went into effect.

Of course the repeal of section 4 of Act No. 619 in no wise impairs
the general rule of jurisprudence to the effect that a confession
improperly obtained by the means or under the conditions stated in that
section is not competent evidence against an accused person, but the
repeal of that provision does undoubtedly change the burden of proof,
for under that provision it was incumbent on the prosecution to prove
that the conditions necessary to the effectiveness of the confession
were complied with, while in the state of law now existing, it will
suffice for the admission of the confession that it was given under
conditions which accredit prima facie its admissibility,
leaving the accused at liberty to show that the confession was not
voluntarily given or was obtained by some undue means, thus destroying
its weight.

In the case now before us it appears that the fiscal, as
preparatory to the introduction in evidence of the three documents,
Exhibits C, D, and E, which are the confessions of the three accused,
offered proof sufficient to accredit prima facie that those
confessions had been made under such conditions as would make them
admissible against the accused; and said documents were accordingly
admitted in evidence by the court. When the turn came for the defense
to submit its proof, testimony was introduced in their behalf tending
to show that these confessions had been obtained by improper methods
and that they were not freely and voluntarily given. The defense having
then concluded the submission of its proof, the court allowed the
prosecution to introduce additional testimony on the point whether the
confessions were voluntarily made, in order to refute the proof to the
contrary already submitted in behalf of the accused. The action thus
taken constitutes the basis of the ninth assignment of error, it being
claimed by the defense that the testimony thus introduced was, properly
speaking, proof in chief and not admissible as evidence in rebuttal.

From what has been said it is evident that this assignment is
untenable; for, in the present state of the law, upon the presentation
of a confession in evidence, the burden of proof is on the accused to
show that the confession was given under circumstances which destroy
its probative force, and the prosecution is in turn entitled to
rehabilitate a confession thus impeached by submitting any relevant
proof to the contrary.

In what has been said we do not wish to be understood as intending
to discourage the practice of fiscals, and other prosecuting attorneys,
of fully developing as part of the original case for the prosecution
the proof with reference to the circumstances under which a confession
is made, with a view to showing that it was voluntarily given. This
practice we consider proper because such proof is not only relevant,
but of the greatest moment, as reflecting upon the weight which should
attach to the confession. What we mean to indicate is merely this, that
after the prosecution has made a prima facie case for the
introduction of the confession in evidence, the technical burden of
proof is on the defendant to impeach it; and if the fiscal, upon
offering a confession in evidence, fully develops the proof then
available to the prosecution on this point, this circumstance does not
have the effect of restricting the range of the proof which he may
submit on the same point after the defense has rested.

Other questions raised in the assignments of error do not in our
opinion call for extended discussion, as they relate to matters which
would not constitute reversible error even if the assignments,
abstractly speaking, should be conceded to have been well taken. Of
this character are the assignments directed to supposed errors in
estimating particular features of the proof, as well as that directed
to the action of the trial court in refusing to make ocular inspection
of the quarters where the accused had been incarcerated.

Upon the point of the qualification of the crime it is evident that
the offense in fact committed constitutes the complex crime of robbery
with homicide, in the perpetration of which alevosia could be
estimated as an aggravating circumstance. We find, however, that the
complaint is defective, in respect of charging the complex crime of
robbery with homicide, in that it does not charge that robbery was in
fact committed, but only that the accused assaulted and killed the
deceased with the intention to rob, as will be seen from the following
language taken from the complaint itself:

“That the said Hugo Zara and two others, the
accused above-mentioned, on or about March 3, 1920, in the municipality
of Taisan, Province of Batangas, Philippine Islands, with the intent to
rob the Chinaman Singa, alias Tacua, of the P900 which he
then had about him, with premeditation and treachery, voluntarily,
illegally, and criminally attacked with their respective cutting
weapons, said Singa, alias Tacua, who was at the time in deep
sleep, inflicting upon him several wounds in different parts of the
body which caused the instantaneous death of said Singa, alias Tacua.”

It is evident that under this complaint the accused cannot be
convicted of robbery with homicide, under subsection 1 of article 503
of the Penal Code, which provision was apparently applied by the trial
judge, since robbery is not alleged to have been committed. The offense
must therefore be dealt within the aspect of an homicide qualified by alevosia,
that is to say, as murder; for it cannot be denied that the complaint
above set out contains in itself a distinct and sufficient charge of
murder.

That alevosia was present in the commission of the offense
is to be deduced from the fact that the deadly assault upon the
deceased was characterized by surprise, having been made during the
nighttime, and while the deceased, if not actually asleep, as was
probably the case, was in a recumbent position on his pallet, entirely
unprepared to meet aggression. From the several statements made by each
of the accused, it appears that the first noise made after the assassin
entered the house was accompanied, or immediately followed, by a
shriek. This shows that there could not have been any struggle prior to
the fatal blow, an inference corroborated by the position in which the
body was found.

In the light of what has been said it is evident that the three
accused should be, and they hereby are, declared to be guilty of murder
under No. 1 of article 403 of the Penal Code; and there being no
mitigating or aggravating circumstance to be appreciated, the proper
penalty to be assigned to each of them under the second paragraph of
the article mentioned is cadena perpetua. It results that
although the trial judge erroneously applied No. 1 of article 503,
instead of No. 1 of article 403 of the Penal Code, and so doing found
the three accused guilty of robbery with homicide, instead of murder,
the sentence actually imposed was in all respects in conformity with
the law and the facts.

The judgment will therefore be affirmed; and it is so ordered with
costs against the appellants, it being understood that they are
sentenced for murder. So ordered.

Johnson, Araullo, Avancena and Villamor, JJ., concur.