THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. CELESTINO TAVERA ET AL., DEFENDANTS. CELESTINO TAVERA AND JUAN JABALLA, APPELLANTS.

Celestino
Tavera, Juan Jaballa and Feliciano Dalmacia were accused of the crime
of murder, the information alleging in substance that in or about the
evening of the 6th day of June, 1924, in the barrio of Potol,
municipality of Tayabas, Province of Tayabas, Philippine Islands,
Celestino Tavera, Juan Jaballa and Feliciano Dalmacia with treachery
and known premeditation and with the deliberate purpose of killing one
Hermenegildo Millar, and conspiring among themselves and mutually
aiding each other, and after having for several days waited for an
opportunity, surprised said Hermenegildo Millar in his house on an
occasion when he was alone in the house and fast asleep, attacked said
Hermenegildo Millar with bolos inflicting upon him a large number of
wounds, more particularly described in the information, and from the
effects of which he died instantly.

When the case was called
for trial and before a plea was entered by the defendants, the
prosecuting attorney presented a motion asking for the exclusion of
Feliciano Dalmacia from the information in order that he might be used
as a state witness. The motion was granted by the court and the case
dismissed as to the said defendant.

After trial the court
found the remaining defendants guilty of homicide and taking into
consideration the aggravating circumstance of nocturnity and that the
crime had been committed in the house of the deceased, sentenced each
of them to suffer seventeen years, four months and one day of reclusion temporal,
with the accessory penalties prescribed by law and to jointly and
severally indemnify the heirs of the deceased in the sum of P500 and
each to pay one-half of the costs. From this sentence said defendants
appeal.

In their first assignment of error the defendants
maintain that the court below erred in ordering the exclusion of
Feliciano Dalmacia from the complaint and using him as a witness for
the prosecution. The questions raised by counsel in this connection
have been sufficiently answered in the decisions of this court in the
cases of United States vs. Abanzado (37 Phil., 658) and People vs. Velazco (42 Phil., 75).

Under his second assignment of error counsel for the defendants argues
that the court erred in not definitely ruling on the admissibility of
the testimony of the witness Telesfora Lavitoria in regard to a
conversation she had with her son, the deceased, a week before the
latter’s death in which said deceased told the witness that he had been
threatened by the defendant Celestino Tavera. At the trial counsel
moved that this testimony be stricken out. The court in ruling upon the
motion said: “No ha lugar al descarte pedido, se considerara esta
peticion, despues en la decision de esta causa.” In our opinion, this
was, in effect, a definite denial of the motion and enabled the
defendant to take his exception and bring the question of the
admissibility of the evidence before this court on appeal. Moreover, in
view of the other evidence in the case, the testimony in question is of
no importance and does not affect the result of the case.

The third assignment of error is of the same character as the second
and relates to the provisional admission of certain exhibits objected
to by the defense. Inasmuch as no exception was taken to the ruling of
the court, this assignment need not be discussed.

In the
fifth assignment of error counsel for the defendants contends that the
court erred in not ordering an ocular inspection of the house of the
deceased in order to determine whether the conditions there were such
that the witness Feliciano Dalmacia could have seen what he in his
testimony claimed to have seen. As to this, it is sufficient to say
that the question as to whether or not ocular inspections should be had
lies entirely in the discretion of the trial court.

The
other four assignments of error relate only to questions of fact upon
which we see no reason to disturb the findings of the court below. A
careful examination of the record convinces us beyond a reasonable
doubt of the guilt of the defendants. It is, indeed, a serious question
whether the evidence does not show the defendants guilty of murder,
but, giving them the benefit of whatever doubt there may be, we have
decided to sustain the findings of the court below upon that point.

In addition to the two aggravating circumstances found by the trial
court, there is a third circumstance, namely, that in the commission of
the crime advantage was taken of superior strength. In view of the
existence of three aggravating circumstances the penalty should be
increased to the maximum of the maximum degree.

The judgment
appealed from is therefore affirmed with the sole modification that the
penalty imposed by the court below be increased to twenty years of reclusion temporal. Each of the defendants will pay one-half of the costs. So ordered.

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