THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. DOMINGO OLFINDO ET AL., DEFENDANTS. DOMINGO OLFINDO, GREGORIO TONGO, AND MICAEL ODI, APPELLANTS.

OSTRAND, J.:

The defendants are accused of the crime of double murder, the information
alleging “that on or about July 10, 1923, in the municipality of Viga,
Catanduanes, Province of Albay, Philippine Islands, the said accused did
wilfully, unlawfully and feloniously, with evident premeditation and treachery,
kill Maria Magdalena and Aproniano de la Cruz by choking Maria Magdalena and
drowning her in the river, and tying a rope around the neck of Aproniano de la
Cruz and drowning him in the river afterwards.”

The trial court found the defendants Gregorio Tongo, Micael Odi and Domingo
Olfindo guilty as principals of the murder of Maria Magdalena and of the
homicide of Aproniano de la Cruz; and Domingo Olfindo was found guilty as an
accomplice in the murder of Maria Magdalena. The principals were sentenced to
suffer cadena perpetua and the accomplice to suffer fourteen years,
eight months and one day of cadena temporal, with the accessory
penalties and an indemnification to the heirs of the deceased in the sum of
P1,000.

After the judgment had been rendered the three persons convicted presented a
motion for a new trial on the ground that the principal witness for the
prosecution, Ignacio Ucero, had retracted the testimony given by him before the
court and had confessed that he knew nothing about the case. The court denied
the motion and the defendants appealed both from the judgment of conviction and
from the order denying the motion for a new trial.

It appears from the evidence that on the occasion of the death of a young
daughter of one Clemente Odi, a large number of persons, among them Domingo
Olfindo, Rafael Tulang, Ignacio Ucero, Gregorio Tongo and Micael Odi, a brother
of Clemente, gathered at the latter’s house, situated in the barrio of San
Isidro, municipality of Viga. While some of them were constructing a coffin in
the basement of an adjoining house belonging to the accused Gregorio Tongo,
others were reading the pasion in the house of the dead and still
others were passing to and fro between the house of Clemente and the basement
where the coffin was made.

As seems to be the custom in that locality on such occasions an abundance of
tuba was consumed, the accused Gregorio Tongo and Micael Odi partaking
very liberally and becoming more or less intoxicated.

In the evening of the same day Domingo Olfindo, Rafael Tulang, Ignacio Ucero,
Micael Odi, Julian Aldave and Gregorio Tongo were gathered together in the
latter’s house, and in conversation among them it was suggested that the
deceased girl probably had been bewitched by one Maria Magdalena, an elderly
woman, who pretended to have some knowledge of medicine and was generally
engaged in treating the people of the community for minor ills. Domingo Olfindo
then proposed that Maria be killed. In this Micael Odi agreed and proposed in
turn that Aproniano de la Cruz, a young boy, Maria’s son, be also put out of the
way inasmuch as he, too, undoubtedly was a wizard and no better than his mother.
Both propositions were accepted by the persons present and it was agreed that
two parties be formed, one composed of Domingo Olfindo, Rafael Tulang and
Ignacio Ucero for the purpose of killing Maria Magdalena and the other
consisting of Gregorio Tongo, Micael Odi and Julian Aldave to take the life of
Aproniano de la Cruz.

The party designated to kill Aproniano immediately went in search of him and
found him alone in his mother’s house in the sitio of Napo. The accused
Gregorio Tongo and Micael Odi entered the house and after a short struggle beat
the boy into submission, tied a rope around his neck and dragged him down to a
river where they held him under the water until he was dead. They thereupon
threw the body into a deep pit and covered it with earth.

When Tongo and Micael Odi, after having buried Aproniano, returned to San
Isidro, found that Domingo Olfindo, Rafael Tulang and Ignacio Ucero, had,
through fear of Maria’s supposed witchcraft, desisted from their purpose of
killing her, Gregorio Tongo then said that he would kill Maria if no one else
would do it and inquired of Domingo Olfindo where she might be found. Domingo
replied that she was in the house of his father Segundo Olfindo whom she was
treating for some illness, but that she would soon arrive. He thereupon
instructed his son Gaudencio to go to the house of Segundo and ask Maria to come
over to his, Domingo’s house, because he was sick and needed treatment.
Gaudencio did so and returned immediately stating that Maria would arrive in a
few moments. Upon learning this, Gregorio Tongo and Micael Odi secreted
themselves downstairs in Domingo’s house where there was no light. Shortly
afterwards Maria arrived, but as she began to ascend the stairs of the house
Gregorio Tongo, without any warning, seized her by the feet and dragged her to
the nearby river where he and Micael Odi held her under the water until life was
extinct. With the assistance of Ignacio Ucero, Rafael Tulang and Domingo Olfindo
the body was taken to a place some six hundred meters distant and was there
buried in a grave so shallow that the remains came to the surface about two
weeks later, which led to the detection of the crime and the apprehension of the
defendants.

The facts stated are conclusively proven by the repeated confessions of all
of the accused and by the testimony of the witnesses. The principal witness for
the prosecution, Ignacio Ucero, has, however, signed an affidavit to the effect
that his testimony before the court was false, and that he was not in the barrio
of San Isidro on the date of the commission of the crime and knew nothing about
it. The court below denied the motion for a new trial based on this affidavit
and the appellants make this ruling their only assignment of error.

We do not think that the court erred in denying the motion; leaving out the
testimony of Ucero, there is still sufficient evidence in the record to sustain
the conviction. Moreover, a reading of the testimony convinces us that Ucero
told the truth on the witness-stand and that he does not tell the truth in his
affidavit. His story that he was not present in San Isidro at the time of the
planning of the crime is entirely out of harmony with the rest of the evidence.
In view of the fact that he is a brother-in-law of Domingo Olfindo and that
popular opinion in the locality undoubtedly is in favor of the defendants,
Ucero’s retraction may be readily understood. We may say further that ordinarily
but little weight can be placed on retractions of testimony. In the case of
United States vs. Dacir (26 Phil., 503), this court said:

” * * * Manifestly, loose statements or even sworn statements of witnesses,
made after the trial has closed, varying or contradicting their testimony given
at the trial, will rarely be sufficient in the absence of special circumstances,
to raise such a doubt as to the truth of their testimony given at the trial and
accepted as true by the trial judge, as to justify the granting of a new
trial.”

Though the appellants’ assignment of error only goes to the denial by the
court below of the motion for a new trial, the defendants appealed against the
judgment as a whole and under the settled doctrine of this court such an appeal
throws the whole case open to review, and it becomes the duty of the appellate
court to correct such errors as may be found in the judgment appealed from
whether they are made the subject of assignments of error or not. (U. S. vs.
Abijan, 1 Phil., 83.) In examining the present case, we find that the trial
court treated the offenses alleged in the information as one single crime and
imposed the penalty accordingly. Under the rule laid down in United States
vs. Balaba (37 Phil., 260), this was error. There were two separate and
distinct crimes committed, namely, the homicide of Aproniano de la Cruz and the
murder of Maria Magdalena.

Gregorio Tongo and Micael Odi are guilty as principals of both crimes. Taking
into consideration the aggravating circumstance of nocturnity and the
extenuating circumstance of intoxication, they should be sentenced to cadena
perpetua for the murder of Maria Magdalena and to twelve years and one day
of reclusion temporal for the homicide of Aproniano de la Cruz.

The judgment appealed from is therefore modified as to the defendants
Gregorio Tongo and Micael Odi and each of them is.sentenced to suffer cadena
perpetua, with the accessory penalties, for the murder of Maria Magdalena,
and jointly and severally with Domingo Olfindo to indemnify the heirs of the
deceased in the sum of P1,000. The same defendants are each of them sentenced to
suffer twelve years and one day of reclusion temporal, with the
accessory penalties, for the homicide of Aproniano de la Cruz and jointly and
severally to indemnify the heirs of the deceased in the sum of P1,000. In
serving the respective penalties the provisions of paragraph 1 of article 88 of
the Penal Code shall be observed. The judgment appealed from is affirmed as to
the defendant Domingo Olfindo. Each of the appellants will pay one-third of the
costs of this instance. So ordered.

Johnson, Street, Malcolm, Avancena, Villamor, Johns, and
Romualdez, JJ., concur.