THE PEOPLE OP THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. PILI (BAGOBO), DEFENDANT AND APPELLANT.

The accused denies that he is the one who killed a Bagobo named Mandakaoan, but the Court of First Instance of Davao found him guilty of murder and sentenced him to twelve years reclusion temporal, to indemnify the heirs of the deceased in the sum of P500 and to pay the costs, taking into consideration the provision of section 106 of the Administrative Code of Mindanao and Sulu.

His defense is an alibi. Two witnesses, however, the Bagobos Baon and Abe, state positively that they saw him attack the said Mandakaoan with a spear, as a result of which the latter died instantly. The record does not show sufficient evidence to discredit the testimony of these two eyewitnesses whom the trial judge believed, having seen and heard them testify. We find no reason to justify us in deviating from the conclusions reached in the judgment appealed from.

The alibi set up by the accused has not been satisfactorily established. The witness Ayan, presented to corroborate the accused, in view of the circumstances of the case appearing from the record, is not entirely free from suspicion. It does not appear that he distrusted the accused to the extent of deciding to accompany him on his trip of several days in order to be assured of the payment promised. The witness Akuas for the defense does not corroborate him in regard to having accompanied the accused on that trip. Said Akuas does not mention Ayang in his testimony, nor does he positively confirm the accused in that the latter presented himself to him upon his return from the place of the bilanes. Akuas said nothing on these points.

Bansilan would have been a good corroboration if he had been presented as a witness and had testified in harmony with what the accused alleged. But said party did not testify in this case and why no insistence was made on presenting him as a witness is not sufficiently explained.

Consequently, we find no merit in the last three assignments of error.

In regard to the first, it does not appear that the accused made any objection either in the justice of the peace court (of Santa Cruz) or in the Court of First Instance of Davao to the preliminary investigation made, which proceeding the accused may waive. Said question cannot be raised for the first time on appeal. (U. S. vs. Lete, 17 Phil., 79.) The first assignment of error is groundless.

The points of errors assigned not having been demonstrated, and finding the judgment appealed from in accordance with the facts and the law, it is hereby affirmed in all its parts, with the costs against the appellant.    So ordered

Avanceña, C. J., Street, Vtllamor, Ostrand, Johns, and Villa-Real, JJ., concur.