THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROSCOE DABAN Y GANZON, ACCUSED-APPELLANT.

Roscoe Daban appealed from the decision of the Court of First Instance
of Iloilo, finding him guilty of murder, sentencing him to death and ordering
him to pay the heirs of Conrado de la Cruz an indemnity of twelve thousand
pesos (Criminal Case No. 11863).

According to the prosecution’s evidence, at about four o’clock in
the afternoon of July 17, 1967 Roscoe Daban, Angel Bala­sote, Jr. and three
unidentified persons were riding in a 1965 Chev­rolet Malibu red car with white
top (Plate No. L-19604, Quezon City, 1967) which stopped beside a jeep parked
in front of the Philippine National Bank Building near Plaza Libertad in Iloilo
City.

Right after the car stopped, Daban, who was in the front seat of
the car, pulled his pistol and fired three or four times at Conrado de la Cruz
who was leaning against the jeep. After
the shooting, the driver drove the car in the direction of the Colegio del
Sagrado Corazon de Jesus. On reaching
the corner of P. Burgos and J. Rizal Streets, it abruptly turned to the right,
causing its tires to screech, and then it disappeared from view.

De la Cruz, on being shot, staggered and fell face down on the
pavement behind the parked jeep. Two
Constabulary soldiers arrived at the scene of the shooting, placed De la Cruz
in their jeep and took him to the Polyclinic Hospital where he died. Lieu­tenant Colonel Lauro T. Margate, the
Constabulary provincial commander, and his men started looking for Daban
sometime after the shooting. They could
not find him.

The autopsy disclosed that De la Cruz, 42, had an entrance
gunshot wound in the chest. The bullet
perforated his left lung and exited at the inner scapular region. He had also an entrance gun­shot wound in
the abdomen. The bullet perforated his
colon and two loops of the ilium and exited at the left lateral lumbar
region. Another bullet hit his left
forearm and exited below his left elbow (Exh. A). The victim was a forklift driver of former Congressman Pascual
Espinosa and later of the Negros Navigation Company.

Shortly after eight o’clock in the morning of the following day,
July 18, Lieutenant Colonel Margate received two telephone calls from
Congressman Espinosa apprising him that the car used by Daban (a nephew of
Senator Rodolfo Ganzon) was being hastily repainted in Mendoza’ s Auto Painting
Shop located near Senator Ganzon’s residence on Timawa Avenue, Molo.

Margate and his men went to the shop and found that the Chevrolet
Malibu car had just been repainted black and that the top still retained its
white color. The black paint was fresh
and the red paint was still discernible. Margate got the car plates with No. L-19604 from Jaime Mendoza, the
owner of the shop.

The peace officers were informed by Mendoza that the car was
brought to the shop before seven o’clock on that same morning by a certain
Burton, a factotum of Edwin Daban, the brother of accused Roscoe Daban, with
the request that the car be repainted black “right away”. The car was impounded and towed to the
Constabulary headquarters.

Found inside its glove compartment was a statement of account of
the Philippine Long Distance Telephone Company mailed to Roscoe Daban together
with the toll charges for the long distance phone calls made through Roscoe’s
phone number 62-11 (Exh. L to O-4).

Investigation disclosed that the car was shipped from Manila on
the M/S Elcano by D. L. Teruel Tobacco Co., Inc. arid was con­signed to
Roscoe Daban as shown in the bill of lading date July 8, 1967 (Exh. D). The bill of lading revealed that the plate
number of the car when it was shipped to Iloilo nine days before the killing
was L- 7914 ’66.

About a month after the shooting, Senator Rodolfo Ganzon
broadcasted over the radio that he was responsible for the arrest of the
accused in Manila in connection with the killing of De la Cruz.

Daban escaped from the national penitentiary on June 15, 1971
(See People vs. Daban, 43 SCRA 185; 189; 68 O. G. 2945). He was recaptured. But on June 13, 1976, while confined in the Philippine General
Hospital, he again escaped. Up to this
time, his whereabouts are unknown. (Note that while at large, Daban was charged with murder in Criminal
Case No. 5655 of the Court of First Instance of Rizal for having killed Antolin
Ferrer on April 25, 1972 in Makati, Rizal in conspiracy with two other
persons.)

In this case, an amended information for murder was filed against
Daban, Edgardo Alfonten, Angel Balasote, Jr., Rafael Velasco and an
unidentified person. Only Daban and
Balasote were brought to trial. Daban
did not testify. Three witnesses
declared that on the day of the shooting Daban was in Bacolod City.

His two other witnesses testified that the killer was tall, dark
and slender and has no mole on the left cheek. (Daban has a mole on the left cheek). As rhetorically asked by the trial court: how did they know that the killer was tall when he was       sitting at the time he shot De la Cruz?
The testimonies of the defense witnesses evoked disbelief instead of generating
credence.

The trial court did not believe Daban’ s alibi. It gave cre­dence to the testimony of
Vicente Felisario, 38, a bystander who claimed to be an eyewitness to the
shooting. He surfaced as a witness more
than six months after the shooting or on February 3, 1968 when he gave his
statement to the constabulary investigator (Exh. GG). The trial court regarded Felisario’ s testimony as sufficient for
the conviction of Daban. It acquitted
Balasote.

Appellant Daban, in order to show that Felisario was mistaken and
that the trial court erred in assuming that the repainted car was the one used
in the killing, tried to prove that the said car was a red and black car
because its white top was covered by a detachable black vinyl
material (Exh. 2).

Edwin Daban, 29 (the elder brother of the accused), who allegedly
got the car from the M/S Elcano when it arrived in Iloilo City,
testified that the black vinyl material concealed the white top of the
car. Men­doza declared that after
placing black paint on the red body of the car, it took him about ninety
minutes to remove the black vinyl cover of the top, thus exposing its original
white color. At that juncture, the
Constabulary men arrived in his shop and informed him that the car was used in
shooting De la Cruz. So, Mendoza was
not able to complete the repainting of the car.

We hold that even if it were assumed that Felisario was mis­taken
in testifying that the car had a white top, that error would not be sufficient
to cast doubt as to Roscoe Daban’s guilt. Felisario correctly identified the car as having a red body and two
antennas at the rear and as bearing the plate number which is the number found
in the two plates surrendered by Mendoza to the Constabulary officers (Exh.
HH).

That car was consigned to Roscoe Daban nine days before the
shooting (Exh. D) and its glove compartment contained the telephone bills sent
to Roscoe by the PLDT (Exh. L to O-4).

Appellant’ s counsel contends that the trial court erred in
finding that Roscoe shot De la Cruz. That finding was based mainly on the eyewitness-testimony of Felisario,
a Korean war veteran familiar with firearms, who after his discharge from the
army became a taxicab driver. He
testified that he was only about six or seven meters from the Chevrolet car
when Roscoe at a distance of about two to two and a half meters fired at De la
Cruz.

He even testified that immediately after the shooting, when
Balasote, who was in the back seat, saw Felisario looking at him, Balasote or
Dagol instinctively sought cover by sinking on his seat.

Felisario recognized Roscoe as the assailant because the latter
is well-known in Iloilo City, having been linked to the killing of a man nicknamed
“Sweetheart” and a lawyer named Garin. Felisario had seen Roscoe on several occasions and had heard
Roscoe’ s companions call him by that name (No. 6, Exh. GG).

In spite of a rigorous cross-examination, Felisario did not waver
in his identification of Roscoe as the gunwielder.

Appellant’s last contention is that the trial court erred in
using his failure to testify in his behalf as an indication of guilt. The trial court conceded that the neglect or
refusal of the accused to be a witness should not in any manner prejudice or be
used against him (Sec. 1[d], Rule 115, Rules of Court). At the same time, it ob­served that Roscoe
could not escape the unfavorable inferences arising from his failure to deny
incriminating facts (p. 838, Record).

The trial court erred if it based the judgment of conviction on
Roscoe’s failure to testify, a negative fact which cannot be conclusive as to
his guilt. The truth is that it
convicted Roscoe on the basis of the evidence of the prosecution which points
to him as the killer who use a Chevrolet car as his shield and coign of vantage
for consummating the killing with impunity and as a means for making a fast
getaway. (See People vs. Upao Moro, 101
Phil. 1226 unpublished and Pendleton vs. U.S., 216 U.S. 305, 54 L. ed. 491, 40
Phil. 1033).

The record does not show the motive for the killing. Notwithstanding that deficiency in the
prosecution’s evidence, the guilt of the accused was proven beyond reasonable
doubt. He was positively identified by
Felisario as the killer. Any lingering
doubt as to his guilt was dissipated by his becoming a fugitive from justice
and by the overtures for amicable settlement of the case for P3, 000 made in
his behalf by his father, Victor Daban, Gerson Espinosa and Pascual Espinosa and
the assistant provincial warden (391-394 tsn April 10, 1969).

The killing was correctly characterized by the fiscal and the
trial court as murder, a cold-blooded assassination perpetrated in a public
place in daytime in the view of several persons. The manner of its perpetration reveals the high degree of
perversity and dangerous­ness of the culprit.

The killing is qualified by treachery and aggravated by the use
of a motor vehicle. The means employed
by the accused were intended to surprise the victim and prevent him from making
any retaliation and at the same time to facilitate the malefactor’s escape from
the scene of the crime. Evident
premeditation cannot be considered aggravating.

There being no mitigating circumstances, the capital punish­ment has
to be imposed on the accused (Art. 64[3] and 248, Revised Penal Code).

WHEREFORE, the trial court’s judgment is affirmed. Costs de oficio.

SO ORDERED.

Teehankee, Makasiar, Aquino, Fernandez, Guerrero, Abad Santos,
De Castro, Melencio-Herrera, Ericta, Plana, and
Escolin, JJ., concur.

Barredo, and Concepcion,
Jr., JJ., on leave.

Fernando, C.J., no part.