THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. MATARAM, DEFENDANT AND APPELLANT.

“That on or about the 27th of November, 1927 in the sitio
of Baroon, municipality of Iligan, Province of Lanao, Philippine
Islands, and within the jurisdiction of this court, the aforesaid
accused, together with Moros Maito A. Mama, Pedro and Agpa, still at
large, conspiring and acting together, in a band of more than three
persons all armed with daggers and lances, did,willfully, unlawfully,
and feloniously, with intent to gain, and through force and violence,
open Mr. Hansen’s store, and rifle it of all money and effects therein
contained; and by treachery, evident premeditation, abuse of superior
strength, nocturnity and dwelling, assaulted Mr. Hansen and his wife
with the weapons they carried, inflicting several fatal wounds on their
bodies, as a result of which the said spouses died instantly. Contrary
to law.”

The information was read to the defendant assisted by his counsel,
and the accused pleaded not guilty. And after the hearing at ‘which
several witnesses testified for the prosecution and the defendant
himself for the defense, the Court of First Instance of Lanao found the
defendant guilty of the crime charged as one of the principals thereof,
with the circumstance of treachery qualifying the crime as murder, and
with the aggravating circumstances of evident premeditation, band,
abuse of superior strength, and uninhabited place, and imposing the
death penalty on him plus an indemnity to the heirs of the deceased
Hansen and those of his deceased wife, and the payment of the costs.

In view of the penalty imposed the case was brought to this court
for review, and counsel for the defense now contends that the trial
court committed the following alleged errors: (1) In making
pronouncement as to facts neither alleged in the information nor proved
at the hearing; (2) in giving credit to witness Mosiur Omama, who
contradicted himself and failed to explain-or clarify the doubts that
arose from his own contradictions; and (3) in imposing the death
penalty based solely upon presumptions and not upon real proven facts.

It is true that the fact set forth in the decision to the effect
that while the accused was detained in the municipal jail of Iligan he
tried to kill the guard, striking, him with a stick, does not appear
from the evidence adduced in the case; but we do not think such an
error on the part of the trial court is a ground for reversing the
definite conclusions in the case inasmuch as it does not affect the
result according to the evidence.

Mosiur Omama, a witness for the prosecution, testified that while he
was in a small canoe going towards Ilaya and near the deceased Hansen’s
house, the accused Mataram and Maito Amama, Apog and Pedro came along;
that when those four saw him, Mataram said to Maito Amama: “Let us go
after that man or catch him, so that he may not turn informer or give
us away;” that thereupon they pursued him and he hid himself behind
certain mounds, and thus they left him and did not see him; that from
where he lay hidden he saw them go to the American’s store (doubtless
referring to the deceased) and saw them attack the American cutting and
stabbing him; that he then heard the woman cry out “agtiy” and at the
same time, the noise of a box being smashed and after this, witness
retired.

The witness added that he was near them when they were slashing
Hansen; that defendant Mataram carried some empty sacks and his
“malong”; that the American Hansen’s house was situated on the side of
the river; that the occurrence he related took place in the American’s
store at sunset; that besides those four people Hansen and his wife
were in the store; that the store was already lighted; that previous to
that incident he already knew those four, because they used to pass by
there selling mats and other things; that the two people who were in
the store expired and he saw their dead bodies; £hat he touched the
American Hansen on the body, though he did not know in what part
because the deceased’s coat was drenched in blood.

On cross-examination said witness testified that he first knew the
defendant Mataram when the latter sold sleeping mats and later on when
he slept in the house, or on the ground floor of the house of Salongan,
and then on the day of the incident; that from where he was looking on
at the affair, to the house of the deceased Hansen was a distance of
about 50 or 60 brazas; that he was at the river-side of the
coconut grove of Macarampat, and Hansen’s house was on the other side
of the river; that Mataram told Maito Amama that they should pursue the
witness; they did not do so for long, and the witness hid himself; that
when he met the four they had evil intentions because they carried
weapons, lances and daggers; that when he met them the sun was setting
but it still shone; that at that moment he was some seven brazas away from them; that the defendant Mataram carried some empty sacks and also a lance on his back covered by sacks.

In answer to some questions put by the court the witness testified
that there was a store on the ground floor of the deceased’s house;
that that store had cloth and various articles for sale; that when the
defendant and his companions went to the store they found it open, and
before they went in the American was in there, and his wife was in the
room also on the ground floor of the house; that the deceased and. his
wife were in the store downstairs; that he only saw the defendant and
his companions slashing away, and the witness left while they were
within the store.

Another witness, Manandu, testified as follows: That at the time of
the death of Hansen and his wife, the witness was in his house at
Baroon; that he did not know whether there was a distance of some 300 brazas
between his said house and that of the American Hansen; that at about
that time, i. e., when the American Hansen died the witness left his
house at sunset; that on that afternoon of the Sunday on which said
American died, the witness was away from his house, and in the woods;
later he went home and visited some nephews; that while he was in his
house and after resting he went down towards the ford of the River Agos
and went across to the other side in a banca; that there,
near the river he saw the defendant Mataram, Maito Amama, Pedro and
Apog, and later as night came on, the witness retired to his home, and
that on the following morning he learned of the incident.

Upon being examined by the trial court said witness testified that
he saw the defendant and his companions near the river, Maito Amama
standing near the shore preparing to respond to a call of nature, and
Mataram and Pedro Were seated; that the witness was at that time more
than 3 brazas away from them; that at that time he knew the
defendant Mataram only by face, but not by name; that he knew Maito
Amama better; that the first tiree he saw Mataram wasi in Baroon; that
the place where he saw the four was far from the house of the American
Hansen; that when the witness saw the defendant and his companions it
was between 2 and 4 o’clock in the afternoon of Sun- day; that they
carried some bundles and he did not know whether there were any weapons
inside; that there were two large bundles and another one tied to the
belt; that in that bundle, lances without a handle might have been
concealed ; that that bundle had a covering of coarse wool; that each
bundle was rather bulky and he could not tell if it had the same
diameter as a man.

Luis Villanueva, Constabulary lieutenant, also a witness for the
prosecution, testified that having received a telephone call from the
councilor of Baroon, he went to the place of the incident with some
soldiers and observed that the two deceased had been attacked at the
moment of kindling the lights; that on the table there were a piece of
candy, bread, some sugar and a centavo; that from the nature of the
injuries he believed the deceased had been attacked by Moros; that the
wounds showed that they were caused by daggers and lances.

The remainder of the direct testimony of this witness is literally as follows:

“There was no clue as to who the wrongdoers were
except the foot-prints, so I began to examine the strange individuals
of that place, one by one, but none of the criminals were there; when I
examined Mosiur Omama, he testified that he had been there for one
week, and when I questioned him as to the cause of his being there, he
answered me that it was only to help Hansen carry the goods which he
had to buy in Iligan, to his store, and I found that this man was there
without Hansen’s knowledge; and when I went on to inquire as to the
reason why he went there without Hansen’s knowledge he replied that he
used to go there every month to help Hansen. I then asked him if there
were other strangers with him, but he did not say so until five days
afterwards, saying that there were four men, or it was only four or
five days since he said that there were four strangers in that place,
and that he brought those four men because he had a disagreement with
Hansen, and he testified also that he brought those four men to the
house of Salongan. Later on, he confessed that he was an eyewitness of
the crime in question, and that the assault took place in the afternoon
just before nightfall, while he pushed his banea towards the river at a
distance of about three or four meters from Hansen’s house, and he saw
those four men assault Hansen and that Mataram ran after him and
therefore he left the place and hid himself.”

Upon being questioned by the court this witness, Lieutenant
Villanueva, testified that he could not say exactly whether the
wrongdoers had carried away or stolen some goods from the store, but
that there was quite a lot of goods in the store strewn around; that
Mataram, in one’ of his investigations, told him that among the four
individuals who arrived at his house in Tamparan, 2:00 and two
flashlights were distributed; that Mataram told him that he had not
been there; that Maito Amama, Apog and Pedro were not yet arrested.

This is the evidence adduced by the prosecution which we have
reproduced almost entirely in order the better to discuss the questions
of facts raised by the defense in this instance.

The testimony of the witness Mosiur Omama is- in question, whose
credibility, according to the defense, Lieutenant Villanueva himself
impeached, said testimony having inspired but scant confidence in the
trial court. It is noted that, after a long examination of the
testimony of this witness Omama at the trial of the case, as well as
what he testified to Lieutenant Villanueva, the lack of credibility
that might be imputed to said witness is not due exactly to his having
gone beyond the bounds of the truth charging innocent persons with the
commission of the crime, but perhaps because he has not told the whole
truth, everything he saw and possibly did. This is why the lower court,
influenced by the atmosphere created by the trial, stated in its
decision that this witness Mosiur Omama must be no stranger to the
crime in question and was probably a companion of those who committed
it.

The fact that this witness stated in the direct examination that,
besides some empty sacks, the defendant carried his “malong,” and that
upon being cross-examined he said that in addition to the empty sacks
he carried a lance, does not necessarily imply contradiction. It does
not appear of record that a “malong” is something incompatibly
different from a lance; it might be the name for lance in the dialect
of that locality, and it must be presumed to be so, considering the
testimony of this witness, while the contrary does not appear. The rest
of the congruences mentioned in the brief of the defence do not, in
our opinion, discredit thi$ witness’s testimony, considering the amount
of education that might be expected from persons of his station.

As to this witness not having declared everything all at once to
Lieutenant Villanueva, this, as we have already pointed out, does not
necessarily mean that he did not tell the truth, the impression left by
his testimony, viewed in the light of the other evidence of the case,
including the defendant’s statements, is that witness Omama, if he told
the truth in his testimony did not tell all he knows about the,
incident.

With respect to the presence of the defendant and his companions on
the afternoon in question in the surroundings of the house of the two
deceased, said witness Omama’s testimony is amply corroborated by that
of the witness Mamandu, whose veracity there is not sufficient reason
to doubt.

Considering the importance of the case, we deem it necessary to
quote the defendant’s testimony in full, it being the only proof he
presented, which is as follows according to the transcript of the
stenographic notes:

“Moro Mataram, after being duly sworn, stated that he was 26 years
of age, married, a farmer, residing in the municipal district of
Tamparan, Province of Lanao, and through an interpreter testified as
follows:

“DIRECT EXAMINATION BY THE DEFENSE

“Mr. OBACH:

“COURT’S QUESTIONS

As we have seen, the defendant admits that he left his place,
Tigtacos, and went to Dansalan on the day of the crime in company with
Maito Amama, Apog, and Pedro, the very persons mentioned by the
witnesses for the prosecution, Mosiur Omama and Menandu; he admits that
together with them he went towards the house of the American; he admits
that the American and his wife were attacked and killed upon that
occasion; he admits that goods were carried away from the shop
consisting of two flashlights, buttons and a gold watch, two bolts of
cloth wrapped in eight bundles. What he does not admit is that he went
into that shop and personally took an active part in the slaying and
the robbery of the goods; but it happens, that notwithstanding the
fact, as he says, that his companions left him near a stone in the
immediate vicinity of the store in question, about 10 brazas
away, the defendant knew that it was Apog who began the attack with a
dagger on the American; he knew also that the woman was killed by Maito
Amama who stabbed her in the neck, and that when the American was
assaulted the woman ran upstairs and that she was pursued by Pedro.
These facts having occurred within the
house, and considering the other evidence and circumstances of the
case, we deem the conclusion to be justified that the defendant was not
outside the house, as he Would assure us, but was inside; the store, at
least witnessing said facts narrated by him; otherwise he should not be
able to relate them in such detail.

Nor do we think the defendant worthy of belief when he states that
after slaying the American, Apog told Pedro to make the defendant go
into the shop and if he was unwilling, to kill him; and that when he
heard it he ran away to the river, and as he could not swim because it
was night and he was afraid, he awaited his companions who arrived not
long afterwards. If they meant to kill him because he would not go into
the store and he was afraid and so ran away, why is it he did not obey
and go into the store? If he was afraid and therefore ran away why did
he wait for his companions on the bank of the river? Such points
testified to by the defendant demonstrate nothing more than his own
efforts to appear, not as a participant in the crime in question, but
as a mere companion, which certainly is beyond understanding, because,
if he was not going to take part in the crime why is it that he went
with them ? Why accompany them until near the place of the crime? If he
did not take part in the act, if he was not one of those malefactors,
why did he remain in their company despite the alleged threats of death
which they repeatedly made to him? Why be with them in the banco, and
there share-sweetmeats with them? Why did he dare to ask them for a part
of the stolen articles? The admission made by the defendant before
Lieutenant Villanueva that P200 and two flashlights were distributed
among the four individuals who arrived at his house in Tamparan is
corroborated by the testimony of the defendant himself given at the
trial of the case to the effect that when, after the crime, they were
already in the banco, his companions each had P50 in cash. And since,
according to himself, his companions were Maito Amama, Apog and Pedro,
that is, three persons, the defendant, according to all the evidence in
the case, must have been one of those four to whom he referred in the
presence of Lieutenant Villanueva, among whom the aforesaid sum of two
hundred pesos was divided.

We deem the testimony of the eyewitness Mosiur Omama to be true
inasmuch as it is corroborated not only by the witnesses for the
prosecution Manandu and Lieutenant Villanueva but also by the defendant
himself.

We find it to be proven beyond a reasonable doubt that the defendant
took part in the crime alleged in the information, as one of the
principals thereof. And there having been conspiracy between him and
his companions to commit the crime, he, the same as the others, must
answer for the acts of all. (U. S. vs. Ipil, 27 Phil., 530; U. S. vs. Remigio, 37 Phil., 599; People vs.
Cabrera, 43 Phil., 64.) And we hold that there was conspiracy for it is
so proven by the circumstances deduced from the established facts. That
the defendant went to Dansalan in company with those three, Maito
Amama, Apog and Pedro, and thence to the store of the deceased; that
they all concealed their real object in going to that store from the
victims, pretending that they wanted to buy rice; the almost
simultaneous attack on the victims; the taking of the goods from the
store; that all returned in one another’s company; and the division
among them of the stolen money, are all circumstances, which, without
leaving room for any supposition incompatible with the conspiracy,
established it, indirectly, it is true, but sufficiently and beyond a
reasonable doubt.

While the information enumerates as aggravating circumstances of the
crime, treachery, evident premeditation, abuse of superior strength,
nocturnity and dwelling, the decision of the court below takes into
consideration the treachery, evident premeditation, abuse of superior
strength, and, in addition, those of being, in band and of uninhabited
place.

Nevertheless, the Attorney-General finds in the crime in question
the aggravating circumstances of treachery, band, and dwelling, without
being offset by any extenuating circumstance.

According to the evidence there was treachery, and as the crime
alleged and proven is the complex crime of robbery with double
homicide, the treachery is not to be considered as a qualifying, but
only an aggravating circumstance. Also, according to the evidence,
there was the circumstance of the crime having been committed in the
dwelling of the offended parties. The evidence is not definite enough
for us to consider the presence of the other aggravating circumstances
found by the lower court or by the Attorney-General, and in regard to
the uninhabited place, we understand that it was not so, for, at least
witness Manandu’s house was about 300 brazas from the place of the crime.

The majority of the members of this court are of opinion that no
extenuating circumstance may be considered in favor of the defendant
and that the appealed judgment, inso far as it imposes the death
penalty, should be affirmed.

The writer of this opinion is convinced that the defendant was a
member of the gang of malefactors who committed the crime herein
involved, and that he is guilty of the crime charged; nevertheless, in
view of the fact that the evidence is not clear upon the point of
whether or not this defendant was one of those who, with their own
hands, killed the deceased, it being justly inferrible from the record
that another or others of the members of said gang of malefactors are,
in a way, more guilty than the herein accused, and taking into account
the letter’s grade of education, the undersigned, believes that, in
view of the circumstances of the case, the most adequate penalty to be
imposed on the accused is that of life imprisonment.

Due to the lack of unanimity in the imposition of the death penalty
it follows that, pursuant to the provisions of law, the proper penalty
to be imposed on the accused is life imprisonment.

Therefore, the judgment under review is hereby, modified, the
defendant being sentenced to the penalty of life imprisonment, and to
pay P1,000 to the heirs of the deceased Hansen, and P1,000 to the heirs
of the said Hansen’s deceased wife, plus the costs of both instances.
So ordered,

Avancena, C. J., Johnson, Street, Villamor, Ostrand, and Villa-Real, JJ., concur.

DISSENTING

MALCOLM, J.:

I am convinced that the evidence justifies the imposition of the
capital penalty and accordingly vote to affirm the appealed judgment.