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

This appeal was taken by the defendant Mariano Ducusin from the
judgment of the Court of First Instance of La Union, finding him guilty
of murder in accordance with the information, qualified by the
circumstance of evident premeditation, and with the aggravating
circumstances of treachery and the employment of means to weaken the
defense, without any extenuating circumstance to offset them, and
sentencing him to the death penalty, to indemnify the heirs of the
deceased in the sum of P1,000, and to pay the costs.

In support of his appeal, the appellant assigns the following
alleged errors as committed by the trial court in its judgment, to wit:

“1. The trial court erred in not giving; due credit
to the testimony of the defendant and appellant and the other witnesses
for the defense and in giving full faith and credit to the testimony of
the witnesses for the prosecution.

“2. The trial court erred in finding the defendant and appellant guilty of the crime of murder, beyond reasonable doubt.”

On the date of the crime and prior thereto, the deceased Cesareo
Tadefa lived with his wife Teodora Vergara in the village of San Jose,
municipality of Caba, Province of La Union. The defendant, who was
Teodora’s first cousin and Cesareo’s second cousin, lived in the same
village of which he was second lieutenant. The defendant Mariano
Ducusin had been making love to Teodora Vergara for about a month
before August 12, 1928, but she had rejected him saying: “I cannot
accept your love for I am a married woman.” The defendant then replied
that he would do everything in his power that her husband might die,
that she might be able to marry him. Teodora Vergara related to her
husband what the defendant had said and he became angry and said: “Why
does he do that, being a relative of ours?”

On the morning of August 12, 1928, Cesareo Tadefa went to the
defendant’s house to have his hair cut as usual, free of charge.
Cesareo Tadefa returned home after mid-day, and as it was time to
pasture his carabaos, he led them out to graze in Mariano Ducusin’s
land.

As Cesareo Tadefa failed to return home that night, his wife went to
the house of her brother-in-law, Eugenio Domondon, which was a few
meters away from her own, and told him that her husband had not
returned from pasturing his carabaos. That same night Eugenio Domondon
went in search of Cesareo Tadefa where Teodora Vergara had pointed out,
but failed to find him. Very early the next morning they informed
Cesareo Tadefa’s father of what had happened, and all of them, together
with Teodora’s mother, went to the field in search of him. They found
Cesareo’s dead body that same morning on a hillside covered with cogon
grass on the defendant’s land, a kilometer away from the deceased’s
house, lying face downwards under an adaan tree with a
severed piece of vine wound about his neck with a slipknot at the back.
When the vine was untied, it left a mark on the neck. From one of the
branches of the adaan tree, they found a piece of vine dangling,
apparently of the same kind as was found around the deceased’s neck,
one end of which was tied to this branch. No other marks of violence
were found upon the corpse, Ceferino Tadefa and his companions did not
want to touch the corpse and went back to the village to inform the
defendant, as second lieutenant of that barrio, that they had found the
deceased’s body. On hearing the news from Ceferino Tadefa, the
defendant said to him: “Let us not inform the authorities of this for
if we did so, they would not be able to take the body either today or
tomorrow, and as decomposition would set in, no one would be willing to
help us take it away.” On receiving this advice, Ceferino Tadefa went
to his son-in-law, Eugenio Domondon’s house. Later, the defendant also
went there and on arriving, said: “Now prepare something in which to
carry him and let us take him to town for burial. When the body arrives
prepare something in which to take it to town for burial, and I shall
advance the funeral expenses and defray the charges for the burial
rites of the Church; I shall pay this and secure the required license.”
Having said this, the relatives of the deceased gave the defendant some
money for those expenses.

Upon reaching the town, the defendant sought out the municipal
secretary and told him that Cesareo Tadefa had died of a headache and
fever, and the municipal secretary issued a death certificate stating
that the deceased had died of malaria. After the defendant had so
informed the authorities, he said to Ceferino Tadefa: “It is better
that we say that he died of headache.”

As Teodora Vergara suspected that the defendant was responsible for
her husband’s death, she went to San Fernando, La Union, with her
father after the funeral novena (novena finebre), that is,
about September 17, 1928, and informed the Constabulary of her
suspicion. In view thereof, several Constabulary soldiers, together
with, the chief of police of Caba and some policemen, went to the
village of San Jose on the afternoon of September 17, 1928, in order to
make an investigation. On arriving at San Jose, the chief of police and
his companions took the defendant Mariano Ducusin from his house to
that of Mariano Valdes, and there examined him but without getting any
positive results. After having inspected the place where Cesareo
Tadefa’s body was found, and as they suspected that Mariano Ducusin was
responsible for his death, they took him to the town of Caba on the
following Thursday, September 20, 1928, and confined him in the
municipal jail.

At about 4 o’clock that same afternoon the sergeant on guard sent a
policeman to call the chief of police because Mariano Ducusin had
confessed. At nightfall, the chief. of police went to the municipal
jail and was alarmed to find everything so quiet in the cell occupied
by the defendant. He then went in front of the window of said cell, and
called out: “Lieutenant Ano!” Receiving no reply, he called again and
again. As no one answered, he opened the little window and saw the
defendant on his knees facing southwards, who said to him: “Let me
finish my prayer first, chief, and we shall talk afterwards.” After
praying, he said: “What is this, chief? How serious are the things I
hear my enemies are saying about me.” The chief of police answered:
“Well, think it over. If you really did it, say so; if not, tell us you
should not be blamed for it.” While the chief of police and the
defendant were talking, they brought in the laser’s food and the chief
of police told him to eat it while he went home to get his supper.
Later on, the sergeant on guard again sent for the chief of police
because the defendant had made a confession. On arriving at the jail,
the chief of police said to the defendant: “Why, Lieutenant Ano ? Is it
true you have confessed that you killed Cesareo Tadefa?” The defendant
answered: “Yes, sir.” Upon being asked what his confession consisted
in, Mariano Ducusin related the following: “At about 5 o’clock in the
afternoon on Sunday, I saw Cesar eo Tadefa going to the pasture. So I
took the wine I had bought on purpose and followed him. When I saw him
on the north side of the hill grazing his beast, I called him and took
him near an adaan tree and there I said to him: ‘My brother,
I have brought this wine and want you to taste it; and that you may
have no misgivings, I shall drink it first,’ And I did so, drinking it
first. After taking a little I gave it to Cesareo, who drank it,
leaving a little. After we had spoken for some time, I again offered
him; the remaining wine and he drank it. When I saw that Cesareo Tadefa
was drunk and could hardly articulate, I got up and held him by the
neck and shook him, until he fell to the ground. When I saw that
Cesareo Tadefa was about to die I took a vine and bound it tightly
around his neck. When I saw that he was already dead, and that thirty
minutes had elapsed, I twisted the vine until it broke, tying the
severed portion to one of the branches of the adaan tree so
as to make it appear that the deceased had hanged himself, breaking the
vine and falling to the ground.” The defendant made this statement
before some Constabulary soldiers and policemen. The chief of police
had the statement reduced to writing in document Exhibit C, which
defendant signed the next day at about 9 o’clock in the morning in the
presence of the justice of the peace of Caba after the latter had read
it and asked him whether its contents were his own statement, to which
he answered in the affirmative, and whether he had been maltreated by
any policeman or received any promise of leniency to which he answered
in the negative.

As he had not prepared the defendant’s first affidavit, Exhibit C,
and as he wished to make sure that the confession was really voluntary,
and to ascertain the motive of the crime, the justice of the peace,
Ricardo Ordona, had the defendant called in and asked him whether he
wished to make any statement before the court. On receiving an
affirmative answer, said justice of the peace submitted him to an
examination in the presence of the municipal president, Constabulary
Lieutenant Bravo, Constabulary Sergeant Orpia, Pastor Dulay, and
several other persons, and the defendant answered repeating in greater
detail the statement he had made before the chief of police (Exhibit D).

During the preliminary investigation, when the information was read
to him and he was asked whether he pleaded guilty or not guilty, he
answered: “I admit that I caused the death, but I plead not guilty.”

After the preliminary investigation, in the afternoon of September
21, 1928, Lieutenant Bravo of the Constabulary took the defendant to
the provincial jail of San Fernando, La Union, in the Constabulary
wagon, and on the way, the defendant said that he had three times tried
to kill Cesar eo Tadefa, but that the opportunity did not arrive until
the day of the crime; that he had gone to Aringay to buy a bottle of
cognac, and when he saw Cesareo Tadefa go to the field between 5 and 6
in the afternoon, he followed him and invited him to drink the wine;
that in order to stir up some courage, he first drank it himself, and
then offered it to the deceased, who finished it; that his purpose in
offering the wine to the deceased was to weaken the latter, so he could
easily overpower him; that he tied a vine about the deceased’s neck to
cause it to appear that the latter had committed suicide; that he had
twice had intercourse with the deceased’s wife before killing the
deceased, but not afterwards.

The defendant, testifying as a witness in his own behalf, said that
for the purpose of extorting a confession from him, the Constabulary
soldiers tortured him for three days and three nights in the village of
San Jose, kicking and punching him in the stomach and the chest; that
three times Valdes, a soldier, tortured him by introducing into his
urethra a twig of the herb called “amor seco;” and in
desperation he told his inquisitors that he had killed Cesareo Tadefa,
and the soldiers took note of his statements, which later served as the
basis for Exhibit C; that on coming to town he signed Exhibits C and D,
which had been prepared beforehand, for fear of being tortured again by
the Constabularymen, who had told him they would take him from Caba to
San Fernando, La Union.

As to the motive which induced the deceased’s wife, Teodora Vergara,
to accuse the defendant, the latter says that she hated him because on
one occasion he gave her some brotherly advice because he had heard
that she had illicit relations with Felipe Tadefa and Eugenio Domondon.

The defendant explained why he had given false information to the
municipal secretary as to the death of Cesareo Tadefa saying that the
latter’s relatives had requested it. He also said that it was very
probable that the deceased had committed suicide, because during his
lifetime he had been subject to fits of insanity, roaming alone through
the fields.

For its evidence in rebuttal, the prosecution submitted some persons
as witnesses who had been present when the Constabulary had
investigated the defendant, and who testified that they did not see the
soldiers committing any act of violence on the defendant, the latter
being free to go home.

We have carefully examined the evidence adduced both by the
prosecution and by the defence, and have arrived at the conclusion that
the facts stated by the witnesses for the prosecution are correct, and
corroborated by the defendant’s own admissions. There can be no doubt
that the defendant’s admission that he killed Cesareo Tadefa was made
freely, for though he contends that his statements to the Constabulary
soldiers during their investigation were extorted from him by torture,
the soldiers and the other persons who were present deny it. The
defendant does not pretend that when he signed Exhibit C, when he
answered the questions contained in Exhibit D, and when he made the
declaration to Lieutenant Bravo of the Constabulary when the latter
took him from the municipality of Caba to the provincial jail of San
Fernando, La Union, he had been tortured; but he does allege that when
he was guarded by Constabularymen, the same fear which had made him
admit his guilt before them when they tortured him in San Jose,
impelled him to make the same statements before the chief of police,
the justice of the peace of Caba, and Lieutenant Bravo of the
Constabulary. The said defendant admits that he has no ill feeling
towards said agents of authority and there was no reason for any. As
barrio lieutenant and as an agent of authority, charged with the
preservation of peace and order, he knew he could count on the
protection of the justice of the peace, who had nothing to do with the
inquiry into the crime. If he had really been tortured, he would have
denounced the fact to said authority. Besides, the justice of the peace
of Caba, not having drawn up the sworn statement Exhibit C, wherein the
defendant made statements incriminating himself, and desiring to assure
himself personally of their truth, addressed some questions to the
defendant which were reduced to writing in Exhibit D, and which
defendant signed under oath, after being, informed of the contents.

Furthermore, if the defendant had really been tortured as he claims,
such tortures would have left some marks upon his person, which he
could have shown to the justice of the peace during the preliminary
investigation, and to the chief municipal and provincial health officer
while confined in jail at Caba, and in San Fernando, La Union;
especially, on his virile member, for considering the extreme
sensitiveness of the urethra, the introduction of a twig of the herb
“amorseco” should have produced an irritation that would have caused
him great pain in passing urine.

The statements of the defendant contained in Exhibits C and D, and
those made by Lieutenant Bravo of the Constabulary as to the place and
manner of Cesareo Tadefa’s death, being corroborated by the place where
the body was found, by the manner in which his death appears to have
been caused, and by the means employed to bring it about,— leave no
room for doubt that the herein defendant and appellant committed the
murder in question.

In the commission of the crime, the circumstance of evident
premeditation, qualifying the crime as murder, must be considered,
because, according to his own confession, the defendant three times
attempted to take the life of Cesareo Tadefa in order to be able to
marry his widow, with whom he was in love, purchasing cognac in order
to facilitate the commission of the crime. The aggravating circumstance
defined in article 10, No. 9, of the Penal Code, that is, the
employment of means to weaken the defense, consisting in this case, in
having made the deceased intoxicated, must be taken into account. This
act cannot be juridically considered to give rise to the aggravating
circumstance of treachery, because, in order that this circumstance may
legally exist, it is necessary that the means employed should,tend
directly and especially to insure the execution of a crime against
persons, without risk to the perpetrator arising from the defense which
the offended party might make. The defendant’s confession does not
furnish sufficient data as to the state of intoxication of the deceased
at the moment of strangulation, and the fact that he could not
articulate is not sufficient to determine whether, in his intoxicated
state at that time, it was impossible for him to put up any sort of
resistance.

The aggravating circumstance of uninhabited place is likewise to be
taken into account, inasmuch as the crime was committed in an isolated
and unfrequented place overgrown with weeds.

There is no extenuating circumstance that can be taken into account in favor of the criminal.

Wherefore, we are of opinion and so hold, that the defendant and
appellant is guilty of the crime of murder defined and penalized in
article 403 of the Penal Code, the penalty fixed by law ranging from
cadena temporal in its maximum degree to death. Considering the
aggravating circumstances that were present in the commission of the
crime, with no extenuating circumstance to offset them, the death
penalty should legally be imposed upon the defendant; but for lack of
unanimity in the vote as to the propriety of imposing the death
penalty, in accordance with section 1, paragraph 2, of Act No. 3104
said penalty cannot be imposed, and the one next lower in degree, that
is, life imprisonment, must be imposed in conformity with the
provisions of section 2 of Act No. 2726. By virtue whereof, and with
the sole modification that the defendant is sentenced to life
imprisonment instead of death, the sentence appealed from is affirmed
in all other respects, with costs against the appellant. So ordered.

Avanceña, C. J., Villamor, and Romualdez, JJ., concur.

Johnson, J., dissents.

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CONCURRING

STREET, J.:

I concur, and as it is my vote that stands between this accused and
the electrical chair, I wish to point out that the conviction could not
have been obtained without the aid of the voluntary confession of the
accused. As a matter of public policy, this entitles him, in my
opinion, to some consideration. Where several persons are concerned in
the perpetration of a crime, the law permits the Government to drop the
prosecution against one and use him as a witness to convict the others,
and where a voluntary confession is used to convict the person making
the confession, the situation is in some degree analogous. It is true
that subsection 8 of article 9 of the Penal Code, which permits the
court to give the accused the benefit of attenuating circumstances analogous to those enumerated in said article, is not literally
applicable; but under the law, as it now stands, relative to the
infliction of the death penalty, dissenting members in this court have
not held themselves bound to the strictest letter of the law. According
to the opinion of the court in this case, the death penalty only
attaches to the offense by reason of the aggravating circumstance
specified in No. 9 of article 10 of the Penal Code, namely, that means
were employed to weaken the defense. Under the circumstances I permit
myself to entertain a doubt as to whether the debilitation resulting
from the taking of a drink of wine by the deceased in this case was
such as materially to weaken his resisting powers.

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DISSENTING

JOHNS, J.:

The detailed evidence in the majority opinion is conclusive that the
defendant is guilty of one of the most cruel, cowardly murders ever
committed in the Philippine Islands; that it was long premeditated; and
that the motive was to rob the deceased of his wife and home. The
defendant made not one but three voluntary confessions, all of which
are fully corroborated in every detail and particular, and by the
physical facts. It also appears that after the crime was discovered,
the defendant used his official position to obtain a false certificate
as to the cause of the death of the deceased, and advised a hasty
burial, so as to conceal the commission of the crime. For such reasons,
the lower court rightly and very justly imposed the death penalty, and
its judgment should have been affirmed by this court, and in so far as
it is modified, I dissent.