THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. BUENAVENTURA ABAD, DEFENDANT AND APPELLANT.

PERFECTO, J.:

Seven persons, including appellant Buenaventura Abad, an attorney-at-law,
were prosecuted for the murder of Pascual Tante, Jr., committed in the sitio of
Tutubaon, barrio of San Antonio, Palauig, Zambales, on January 25, 1944.

For the purpose of using him as witness against his co-accused, the
information against Burgos Gamboa was dismissed. After trial, the lower court
acquitted accused Martin Abad, Pedro Abad, Federico Ponce and Jose Navarrosa,
but found Buenaventura Abad guilty and sentenced him to reclusion
perpetua to indemnify the heirs of the victim in the sum of P2,000, and to
pay costs.

Buenaventura Abad appealed. She Solicitor General recommends that we sentence
him with the penalty of death.

When the trial of the case began on April 26, 1944, the fiscal asked for the
dismissal of the information against Burgos Gamboa alleging, among other things,
that said accused would be used as one of the witnesses for the prosecution,
that his testimony “is of supreme necessity to prove prosecution’s case,” and
that “there is no other direct evidence in prosecution’s hands unless the
testimony of said Burgos Gamboa is used.”

Overruling strong opposition from the defense, the lower court ordered the
dismissal of the case against Gamboa to be effective as soon as the fiscal shall
have reiterated the motion in writing.

The oral evidence in this case comprises 884 pages of transcript of
stenographic notes. Both appellant and appellee filed briefs in which the
evidence is amply and ably discussed.

The following summary of the testimonies of the nine (9) witnesses who
testified for the prosecution is made to help us in explaining our conclusion as
to whether or not the prosecution was able to prove appellant’s guilt.

1. Julian Paguyo, 40 years of age, physician, testified that he had
   occasion to examine the dead body of Pascual Tante, jr., when he was called to
   see the case on the night of the 25th of January, 1944. He identified Exhibit A
   as the questionnaire put on him by the justice of the peace concerning his
   findings, and Exhibit B as the death, certificate he issued. He went to the
   house of Pascual Tante, jr., after 9 o’clock at night, and after an examination
   of the dead body of the deceased, he found two wounds, one in the abdomen and
   the other on the back, the former at the level of the umbilicus. One of the
   lumbar vertebrae was destroyed, the spinal cord ruptured, as was some branch of
   the abdominal aorta, the latter causing hemorrhage. In his opinion, the
   immediate cause of death was severe hemorrhage. The prounds had been caused by a
   firearm more powerful than an ordinary revolver. They could have been caused by
   a rifle bullet, caliber 30. The shot could not have been fired close to the
   body, because he found no powder burns on it.

2. Ramon S. Seville, 42 years of age, Mayor of Palauig, testified that
   on the night of January 25th a neighborhood leader reported to him that there
   was a shooting affray in Tutubaon. Accompanied by a police guard, physician
   Paguyo, the chief of police and two policemen, and the president of the district
   neighborhood association, at around 9 to 10 p.m., he rushed to the house of
   Salvador Tante where he found dead Pascual Tante, jr., 18 to 19 years old. The
   witness tried to question the deceased’s father, Salvador Tante, but the latter
   just answered: “Never mind me. I know them. They are only using their mask. I
   know the suspects.” The witness was able to talk that night with attorney Abad,
   who could not tell of any traces of the assailants. “I observed him that he was
   sorry.”

3. Burgos Gamboa, 23 years of age, single, farmer, detained in the
   provincial jail, testified that on Tuesday morning, January 25, 1944, he was in
   Danacbañgal. At 7 p. m. he went to Bañgan to carry some “baito” bamboos. On his
   way to barrio San Juan, seven persons Buenaventura, Abad, Federico Ponce, Jose
   Navarosa, Martin Abad, and Pedro Abad, besides two other unknown persons met
   him. Buenaventura Abad stopped him and told him to follow them. “Buenaventura
   Abad asked me ‘Are you going with us or not?” and thumping his right foot on the
   ground he said ‘Will you come or not?,’ and I, fearing that they might kill me,
   followed.” Martin Abad and Jose Navarosa were carrying rifles. Then all of them
   went to the house of Pascual Tante, jr., passing along the banks of the Tutubaon
   brook. On arriving at the house of Pascual, located eight nbrazasn from the
   provincial road, Buenaventura Abad bade “Good, evening.” Primitiva Araña peeped
   through the window, bringing a lamp. Buenaventura talked in Tagalog, saying
   “Magandang gabi po.” On seeing the lamp on the window, Buenaventura ordered in
   Tagalog, “Do not bring out that lamp. After that, Buenaventura went up the
   balcony, knocked at the door, and asked that it be opened. It was not opened.
   Federico Ponce and Martin Abad went to the door on the western side. She witness
   did not hear any voice from inside the house, but only the noise of chairs being
   pushed. Pascual asked: “Ano po ba ang gusto ninyo? Gusto ba ninyo ang palay,
   bigas, kuarta, o ana pa dian?” Buenaventura aswered: “We want nothing except
   that we want to get inside.” Federico Ponce tried to go up. Buenaventura counted
   “Isa, dalawa, tatlo,” and there came out the report of a gun from the place
   where Federico Ponce and Martin Abad were. “I saw a woman jumping through that
   opening where Federico Ponce and Martin Abad fired the shot.” Martin Abad was
   the one who fired. After the jumping of the woman, Buenaventura went down
   through the balcony. “I heard Martin Abad exclaiming ‘Tama!'” After the
   shooting, the witness heard somebody fell and the exclamation “Ay!” The rifle
   which was fired was being held by Martin Abad and Jose Navarosa. Buenaventura
   was wearing gray polo shirt and khaki pants. Immediately after, “We went home,
   each one following the other. I went to sitio Bañgan to bring the ‘baito’ which
   I had promised to bring to said place.” The witness went to the house of Rufino
   Amog. Then he went to the house of Vicente Arca to get the cigarette that he
   asked me to get.” Buenaventura was on the night in question talking in Tagalog
   and “disguising his voice, making it of big sound, but it could be recognized.”
   The faces of the assailants “were painted black.” After the incident,
   Buenaventura met the witness at the house of Juan Gamboa, aunt of witness, and
   said to him that for God’s sake, “don’t say anything about this matter;
   otherwise, you will be responsible.” The witness knew who was shot in the house
   of Pascual “because I heard the voice of a man, and I do not know of any other
   man in that house except Pascual Tante, jr.” Not one of the assailants was able
   to enter the house. The witness did not report to the authorities what happened.
   “How can I do it, sir; I was being shadowed. I see all their faces. They used to
   meet each other.”

   On cross-examination, the witness testified that the five accused were
   watching him,, going around his house, for more than two weeks before he made
   the statement Exhibit C, although no one except Buenaventura told him anything.
   In the first investigation made by the authorities, he did not implicate any one
   of the accused. He did so only in the second investigation. It was during the
   first investigation made by the authorites when they confiscated 130 rounds of
   ammunition in Gamboa’s possession. Gamboa made the statement Exhibit C after the
   constabulary men had confiscated from him the 130 rounds of ammunition. The
   night of the crime was dark. When the lamp held by the woman was brought inside
   the house its light went off. The lamp was lighted again. Gamboa was wearing
   short pants of maong and white shirt. He was dirty, and he was carrying
   a bundle of “baito” bamboos. He is a bosom friend of Buenaventura. On going to
   the house of Paseual, Gamboa left the bundle of “baito” bamboos near the road.
   None of the assailants told Gamboa that they were proposing to do that night.
   They did not promise him any compensation for accompanying them nor for keeping
   silent as to the incident. Buenaventura ordered Martin Abad, “Martin Ibad,
   shoot,”

   At this juncture the defense protested against the fiscal’s moving his head
   while Gamboa was being cross-examined, and the court said: “It is probable that
   the fiscal has moved his head, but the court is not sure about his bad
   intention. The Court has observed that the fiscal has that bad habit, but he
   should try to avoid it. From now on, the witness must not look at the fiscal
   while he is testifying.”

   At the time Gamboa made the statement Exhibit C, he had been under
   investigation for four days by the constabulary. He signed Exhibit C only on the
   fourth day.

   “Q. Did the constabulary take four days to investigate you because you
   limited yourself to telling what you say in this affidavit until you signed it?
   A. Yes, sir.

   “Q. And your refusal to sign that affidavit lasted three days? A. Yes, sir.”
   (T.s.n., p. 99.)

   The witness has a brother named Espiritu Gamboa, who was engaged in smoking
   mango trees. The witness helped him in smoking the mango trees of Salvador
   Tante, and he was receiving his part of the product. Before the occurrence of
   the incident in question, the witness had been tending the five mango trees of
   Salvador located in the same yard where the house in which the crime was
   committed was built. He was very familiar with the deceased who was his intimate
   friend. He was also very familiar with Salvador. He was also familiar with the
   two dogs which were always tied in the balcony of the house. Both were very
   fierce and barked at any person appearing there. The spotted one was always tied
   to the balcony, but the red one was at times tied and at times loose. The
   witness went to the house sometimes daily and sometimes once every two days. He
   knew Salvador Tante very intimately in the same way as he knew the deceased.

   The witness knew what a rifle bullet is. When he had the 130 rounds of
   ammunition in Lagunao, he heard that anyone found holding or possessing a bullet
   would be killed by the Japanese; so that, for fear, he brought them to a hill in
   Babo, where they could not be found, the place being an isolated one. He had the
   ammunition in his possession for one year. He did not sign any statement or
   affidavit concerning the ammunition. He was not yet accused for the illegal
   possession of it. Federico Ponce was the only one who tried to climb the house,
   but the witness admitted having stated in Exhibit C that there were two
   assailants who tried to climb up, the witness explaining the discrepancy by
   alleging his lack of command of Tagalog, the language he used in testifying in
   court. The house has wooden flooring and walls. The windows were made of wood
   and shell. There were many houses at the place where the assailants forced the
   witness to follow them. No lights were seen in them. It was 7 p.m. The witness
   was able to deliver the “baito” bamboos to Rufino Amog between 8 and 9 o’clock
   p.m. A woman who jumped through the door after the shooting went to the west.
   But she stopped for a while to look at Martin Abad and Federico Ponce who were
   three meters away from her. On the occasion of his signing his statement Exhibit
   C, the fiscal showed to him the sketch of the house where the crime was
   committed.

   “Q. The question is this. This morning you said that the Fiscal showed to you
   a certain sketch of the house in questions: was that time after or before you
   signed Exhibit C, your affidavit, before the Fiscal? A. I have signed.

   “The court (addressing the witness):

   “Q. Which was first, the showing to you of the sketch or your signing the
   affidavit? A. I signed first.

   “Q. After you have signed that (affidavit), then the Fiscal showed you a
   sketch?

   “Fiscal: It is already answered.

   “The Court: You may answer.

   “(The witness starts to think.)

   “A. The sketch was shown to me first. (Then after thinking.) Ah, I am sure
   that I signed first before he showed to me the sketch.” (T.s.n., pp.
   139-140.)

   Asked to explain the discrepancy between his affidavit, wherein he says that
   once near Tante’s house, Attorney Abad called up “Tao po,” while in his
   testimony he said that the first words uttered by Attorney Abad were “Magandang
   gabi,” the witness said that Attorney Abad uttered “Tao po,” and he explained
   that he could not think well because he was dizzy. The assailants met the
   witness at dusk.

4. Primitiva Araña, 26 years old, single, testified that, as she used
   to do, on Tuesday, January 25, 1944, she went to the house of Salvador Tante at
   Tutubaon. On the night of that day she was in the house with Genoveva Tante,
   Pascual Tante and a child. “We were taking our supper. After supper, I began
   frying fish. Pascual Tante, jr., went down and then went up the house where we
   were sleeping. When he was already upstairs, while I was cooking fish, Pasoual
   Tante, jr., called, ‘Mama, come because there is a centipede in my bed.’
   Genoveva Tante answered, ‘Wait because your aunt Primitiva has not finished
   cooking the fish.’ I stored the fish. We went down, Genoveva Tanta and myself.
   We went up to the dormitory, myself carrying a lamp. Then someone gave a
   greeting, saying, ‘Tao po.’ It was between 9 and 10 o’clock p.m. I peeped out of
   the window with the lamp and Pascual Tante asked, ‘Who are you and what do you
   want?’ One voice said, ‘Open the door.’ And Pascual Tante answered, ‘I can not
   open.’ I can not open if you do not tell me your names.’ Again, the voice said,
   ‘Take out the light!’ I took out the lamp. Pascual Tante, jr., closed the
   window. In closing it he touched my hand and the light was put off.” Through the
   window the witness saw two persons: Buenaventura Abad and Burgos Gamboa.
   Genoveva Tante ordered the witness to pick up a match. Upon delivering it to
   Genoveva, the witness told her, “Kaka, don’t you recognize them? Don’t you
   recognize the voice? That is Bueno,” referring to Buenaventura Abad. They were
   knocking at the door saying, “Buksan ninyo ang pinto.” Pascual Tante, jr., said,
   “I can not open the door. Do you want palay, rice, money or any other thing?”
   The visitors answered that they did not want them. They insisted that the door
   be opened. One of them said, “If you do not open the door, you will die!”
   Genoveva Tante went to the west of the house near the door where she hid herself
   to watch and see those persons who were trying to climb up the house. Pascual
   Tante, jr., was at her back. Then Pascual Tante, jr., saids: “Get away, mama, I
   will take care. I will stay there.” Genoveva Tante said: “Leave me alone, son,
   because I would not allow them.” Paseual insisted in taking the place of
   Genoveva, pulling a ohair and pushing another with his feet. “It was heard,
   ‘Isa, dalawa, tatlo!'” One said: “A rifle is needed here.” Then came a gun
   report. Pascual Tante, jr., was hit and he fell down, addressing his mother
   Genoveva Tante: “Ay, mama, I will die!” Genoveva put a pillow under his head.
   Genoveva jumped out through the door at the west. Pascual called, “Come here,
   mama” referring to witness “to massage me.” The witness began massaging
   Pascual’s back. Paseual exclaimed: “Nanay, why did Kaka Bueno do this to me,
   when I did not cause him any harm! Nanay, please tell papa and nana Babit to
   sell the property that belongs to me from the participation of Cristita Tante to
   compensate for my lost life.” Then Salvador Tante, father of the deceased, and
   Genoveva arrived. Pascual said: “Papa, I have been shot.” Salvador said: “Why,
   son, what is your fault?” Pascual said: “Nothing, Papa. I have no fault Papa, if
   you really love me, give me a kiss.” After he was given the kiss, Pascual said:
   “Really, Papa, you love me much.” Salvador said: “Whom else should I love when
   you are my only son?” The witness did not reveal to Salvador what she discovered
   that night nor her conversation with the deceased because she was afraid that
   Salvador night begin killing.”

   “Q. Do you know if Buenaventura Abad went to the house of your sister
   (Miquias Araña) sometime after the commission of the crime? A. No, sir.

   “The Court (addressing the witness):

   “Q. Don’t you know, or what? A. Yes, sir, he went.”

   Genoveva Tante did not tell Salvador what Primitiva said to her as to the
   identity of Buenaventura Abad and Burgos Gamboa, and Pascual did not tell his
   father that he was shot by said two persons. Salvador was not apprised that
   night of the names of the assassins. Mayor Sevilla went that night to the house.
   He did not question the witness. He questioned Salvador and Genoveva. “He said
   that she did not come to know” the persons responsible for the death of Pascual.
   When Genoveva jumped out of the house, the malefactors had not yet left the
   place. The assailants repeated many times; “Open the door because otherwise you
   will die!”

   Requested to repeat the very words uttered by one of the assailants,
   Primitiva Araña said the following words in Zambal: “Abrian mo yoy polta. No cay
   mo yo abrian ay matica mo.” (Open the door because if you don’t, you will die.)
   Requested to reproduce what Pascual answered, she uttered in Zambal: “Cayco
   maari abrian no caymoyo ibalita a ñgalan mo yo” (I will not open until you tell
   me your names).

   The witness admitted that she was not called to testify in the investigation
   of the case in Palauig. The only one who appeared to testify was Genoveva Tante.
   The witness was present when Genoveva testified before the justice of the peace
   that she had not been able to recognize anyone of the accused and that she did
   not know anything as to who the authors of the crime were. But the witness did
   not offer herself to testify before the justice of the peade what she testified
   at the trial in this case, notwithstanding the fact that she knew that the
   authorities were working to discover the authors of the crime and that she loved
   her deceased nephew much. The witness knew Martin Abad since childhood, but she
   cannot recognize his voice; whereas she knew the voice of Buenaventura Abad and
   could recognize it even if disguised.

   After the crime, Buenaventura Abad came to the house. He was seen there by
   Mayor Seville. The witness did not pay attention whether Buenaventura Ibad had
   his face painted in black or had shown marks that it was painted black.
   Buenaventura was the first person to appear at the scene of the crime. She
   witness could not say who arrived after him. She stated that she was
   investigated about the crime the next day by Lieutenant Dimain of the
   Constabulary, but she did not say anything about what she knew regarding the
   crime. At the investigation conducted by Lieutenant Dimain, which was held in
   the house of the deceased, many persons were present. When she saw Burgos Gamboa
   on the occasion of the crime, Gamboa was wearing a hat and his face was not
   painted; but she was not able to pay attention whether Buenaventura Abad was
   wearing a hat or not, or whether or not he had his face painted. She recognized
   him by the height and size of his body. She did not see his face. She was unable
   to pay attention to his clothes. When, after the crime, Buenaventura Abad
   arrived at the house with Celestino Abad, Pascual Tante, jr., was still alive
   and able to talk. The witness and Salvador Tante were near Pascual. Buenaventura
   went near the feet of Pascual. When Pascual died, he was washed with hot water
   by, among others, Celestino Abad. The witness could not remember if Buenaventura
   helped, Buenaventura helped in stuffing the wound of the deceased with an
   athlete’s cap and an old shirt and bandaged it with a cloth known as “pototan.”
   Buenaventura stayed in the house for the remainder of the night. The witness was
   afraid to reveal to Salvador the names of the assailants, because Salvador was
   “hotheaded and is of aggressive temperament.”

5. Genoveva, Tante, 44 years of age, single, testified that she is a
   sister of the father of Paseual Tante, jr., and of the mother of Buenaventura
   Abad. In the night of January 25, 1944, she was in their house at Tutubaon with
   Primitiva Araña, Pascual Tante, Jr., and the three-year old child named Filomeno
   Tante, son of her nephew Hipolito Tante. “We were in the house where we were
   eating. Primitiva was cooking fish. After cooking that fish, she kept them. We
   went down and proceeded to the house where we were sleeping. While we were thus
   going out, somebody on the ground called, ‘Tao po.’ I did not mind that but I
   proceeded on my way. I sat on top of a trunk, unmindful of that one calling
   downstairs. I could hear the calling from downstairs, but I did not mind it
   beoause I did not think that there was anything wrong. Then the lamp was put
   out. When the lamp was put out, somebody was trying to pound at the door, for
   which Pascual Tante, jr., asked who they were. I then ordered Primitiva Araña to
   get the match. I lighted the lamp and placed it on top of the chairs and went
   out. At the moment when I went to get the match from Primitiva Araña, she
   whispered to me, ‘That is Bueno.’ I told her, ‘Never mind. Let it go.’ Then I
   got two bolos from the bed, but the words ‘Buksan ang pinto.” las continuous,
   accompanied by potoadings at the door. I was holding one bolo and Pascual Tante,
   jr., was holding another bolo; and then he asked them what was it that they
   wanted, whether they wanted palay, rice, money or anything else. When he asked
   those questions, he told me also, ‘Go and get money.’ While I was thus holding
   the money, Pascual Tante, jr., again asked: ‘Sabihin na ninyo kung gusto ninyo
   nang palay, kuarta, bigas o anuman at ibibigay ko sa inyo.’ Then somebody
   answered, ‘We don’t need rice or any of those things. What we want is that you
   open the door!’ And then Pascual Tante, jr., answered, ‘I cannot open the door
   if you don’t give me your names.’ I placed myself beside the open door, Pascual
   Tante, jr., followed me to where I was, saying: ‘Get out mama.’ When he was at
   my side one voice said: ‘Give me that revolver,’ and Pascual Tante, jr.,
   answered, I don’t have revolver,’ twisting his hand which was carrying
   something, a long bolo. One of them tried to climb. But Pascual Tante pushed one
   of the chairs and kicked another. At that moment I heard a sound similar to the
   trigger click of a rifle, but I did not hear the report; but a while later,
   there was a report and Pasoual Tante fell down on the floor, exclaiming, ‘Ay,
   nanay!’ I went to his succor. I rested his head on a pillow. Then I called
   Primitiva Araña to watch Pascual Tante. I went out through the door to ask help
   and see the leader of the neighborhood for his help. I was afraid that they
   would shoot all of us for which reason I escaped. I was not able to get help.
   Upon arriving at the provincial road to the west, I saw a person whom I called.
   Without knowing him, I called him ‘Salvador!’ Upon hearing me, he answered,
   ‘What is it, what happened?’ I told him, ‘Hurry up, your son has been shot! And
   it is possible that you will not reach him still alive.’ We went home,
   running.”

   The witness had made her will instituting Pascual Tante, jr., as her
   universal heir. Her brother Salvador and sisters Rita and Ines knew about the
   will, so did Buenaventura Abad. “One day Buenaventura Abad came to my house. His
   mother requested me a portion of those lands to cultivate. I answered them that
   1 could not give them lands in the name of my father but all those which are
   under my care. Then Buenaventura said: ‘What then do you want? Do you want to be
   the only heir of the lands left to us by our grandfather?’ I answered that my
   father did not leave those properties for me alone but for all of us. How, as my
   brother Salvador Tante has a hot temperament, I requested Attorney Ortega to
   take care of our participation in our properties. And when my brother and myself
   had arrived at an agreement, Buenaventura Abad and Attorney Ortega came to our
   house. Buenaventura Abad gave me time until the last day of January to vacate
   the place. The place referred to is the house at Tutubaon. On January 22 I
   ordered the house to be taken from Tutubaon in view of the order of Abad. And on
   Tuesday, January 25, Pascual Tante was shot.”

   The witness testified before justice of the peace Arbizo concerning this
   case. She did not reveal to the justice of the peace that Primitiva Araña, when
   delivering the match, told her: “Don’t you know? That is Bueno,” and that she
   answered her, “Let them.” Her explanation was: “Why should I reveal it when my
   brother wanted to inter his son that same night? My brother wanted to inter his
   son that same night and then look for the killers.” She did not even reveal to
   her brother Salvador that Primitiva told her that Bueno was among the assailants
   “because after all Totoy was shot and died. It was possible that my brother
   would begin, to get hot and kill other persons, and that I do not want to
   happen.”

   When the witness made her will, no partition of the properties left by her
   father Pascual Tante, sr., has as yet been made. Said partition, as appears in
   Exhibit 2, was made in March, 1944. In said partition, the witness would only
   receive two parcels of land, consisting of an orchard and a piece of two
   balitas. She has the following nephews: Buenaventura Abad, Estelita
   Abad, Melquiades Abad, Asuncion Abad, Ludovino Abad, Bonifacio Abad, Pascual
   Tante, jr., Hipolito Tante, Eugenio Tante, Loreto Tante, Ricardo Tante, and
   Hermogenes Tante. Her brothers and sisters are Salvador, Severo, Ines and Rita
   Tante. Buenaventura did not talk with her about her will. After making her will
   Exhibit 3, Buenaventura Abad used to visit her house very often and had not
   shown anger. He even lived with them from January to April, 1943. At the time of
   the crime, the witness did not recognize Buenaventura because she did not peep
   out of the window, in the night in question Mayor Sevilla went to the house.

   “Q. Mayor Sevilla had talked with the persons therein one by one concerning
   the shooting of Pascual Tante? A. I did not pay attention whether he asked them
   one by one, but he asked me.

   “Q. I note, Miss Witness, that when you testify about things concerning other
   persons in the house in question you say ‘I do not know’ or ‘I did not pay
   attention’ because you do not want to assume any obligation or entangle with
   anyone, is that true? A. Yes, sir.

   “Q. But the truth is that Mayor Sevilla talked with the father of the
   deceased, that is, Salvador Tante that night? A. I can not say because I did not
   pay attention to it.

   “Q. Therefore, you know nothing of what Salvador Tante did, of what he said
   and of what your companion in the house did and said except what you yourself
   said and did? A. Yes, sir.

   “Q. Is it not true that Pascual Tante, Jr., said to you “Why did Bueno do
   this to me when I did not do any evil to him? A. I was not already there when he
   might have said those words.”

   She saw Mayor Sevilla talking with Salvador Tante, but she did not hear what
   they had talked about. Salvador Tante did not ask her how the tragedy began,
   happened, and ended. Salvador neither asked Primitiva what happened in the house
   from the beginning up to the end. The witness admitted having stated in her
   affidavit Exhibit 4 the following words. “I did not attempt to show my head
   outside of our house because we were busy watching our doors, hence our failure
   to recognize any of them.” Asked about the identity of Buenaventura, she
   answered: “That discovery did not come from us but it was told to us by another
   person. We did not mention his name because we never thought that he could be
   the one who would do it.” (P. 262, t.s.n.)

   “Q. Until the discovery came from the testimony of Burgos Gamboa? A. Yes,
   sir. (P. 263, t.s.n.)

   Upon relighting the lamp, she placed it on top of a trunk. The reason why she
   did not recognize the persons who were outside was because they were not lighted
   by the lamp. The witness never told Lieutenant Dimain who the author of the
   crime was, nor did she tell it in the preliminary investigation before the
   justice of the peace of Palauig.

6. Salvador Tante, 42 years of age, married, farmer, testified that
   when he returned to his residence coming from Iba, between 9 and 10 o’clock in
   the night of January 25, 1944, he heard the sound of a gun. “I remembered to
   have met my sister, Genoveva Tante, at that time when I was going down a hill.
   She told me, ‘Hurry up!’ because my son was shot. I hurried walking. I arrived
   home. I saw my son fallen, bathed in blood. I approached him. When I arrived, my
   son asked me if I loved him. I told him, ‘Yes, son, I love you.’ He said, ‘if
   you really love me, papa, then kiss me!’ I kissed him on both cheeks. And I
   asked him, ‘What happened?’ And he told me he was shot. ‘asked him if he
   resisted, and he said, ‘Yes.’ When he said that, I admired him. I told him in
   English: ‘I honor you, my dear son, because you have done your duty towards your
   father.’ (Witness weeps.) And I asked him, ‘Do you know them?’ He told me that
   he recognized Bueno, but in a low voice. (Witness weeps.) After telling me that,
   I told him, ‘My son, I will leave you because I will look for them.’ But my son
   said, ‘Papa, please don’t leave me. I am dying. Never mind, I do not know of
   anything wrong that I have done to them.’ Then I kept calm. My son even told me
   that he offered them palay, rice, money or anything if they would only spare
   them, that is, they would not hurt them, that is why I supposed they were only
   after the life of my son. He told me that he had fifteen pesos in his pillow and
   that a certain Altares was owing him five pesos, and that he borrowed rattan
   from somebody and he told me to return them. And my son had P192, and this money
   I showed to the people at that time when I delivered the funeral oration in
   which I said, ‘Gentlemen, this is the money my son was offering to those bad
   people who came at home, but they did not like to receive this money.’ And in
   that funeral oration I said that those who killed my son I challenge them to
   take off their masks and face me personally because I was ready to face them,
   because after all I knew them.” After conversing with his son, his
   brother-in-law Celestino Abad and his nephew Buenaventura Abad arrived.

   “When they came, my son asked me who were they that had just arrived. I told
   him it was his tatang Celestino whom he called tatang. When he
   learned that it was his tatang Celestino, he wanted to turn on his
   side, but when he saw that Bueno was there, he buried his head in the pillow and
   he died. (Long pause.) When his tatang Celestino wanted to see him and
   having his face turned as if he wanted to see him (Celestino) but when he saw
   Bueno, his turned his face downward into the pillow and then he died.”
   Buenaventura did nothing. “He never asked anything from his cousin. He was just
   there standing. He was doing nothing and he was still near the tip of the feet
   of my son.” She witness did not know of any effort made or of any interest shown
   by Buenaventura in the investigation as to who were the perpetrators of the
   crime, adding, “I was banking on him, but my nephew has taken no interest in
   this investigation, knowing, as I do, that he has the necessary capacity.” The
   next morning when the deceased was lying in state, Ines Tante was trying to
   eulogize him, but Salvador stopped her saying, “Please stop that! Because you
   have been the cause of the death of my son.”

   “I know well that Buenaventura Abad was the one who killed my son but nobody
   only could tell me for sure that he was the one.”

   On cross-examination the witness stated that he is a high school graduate, is
   a politician, having been elected mayor of Palauig; that he used to preach
   before protestant congregations. He has been a preacher for two years. He made a
   dramatic funeral oration at the funeral of the deceased. The witness was told by
   his son that he heard from the assailants a twang of speech resembling a
   Pangasinan. “The twang resembled that of a Pangasinense mixed with Ilocano; a
   Pangasinan talking in Ilocano.” When the deceased told him that Buenaventura was
   among the assailants, Primitive Araña was very near the witness, but he never
   informed the justice of the peace, at the inquest or investigation, that the
   deceased revealed to him that Buenaventura was among the assailants. Asked
   whether he revealed the fact to Lieutenant Dimain or to Mayor Sevilla, Salvador
   testified that said authorities did not make any inquiry nor investigation.
   Regarding the statement of the deceased as to the identity of Buenaventura among
   the assailants, the witness said: “I have kept that for myself as a secret. I
   have never told it to anybody.” It was only in the court that he was telling for
   the first time, “now that there are testimonies and occurrences to corroborate
   what my son has said.” He did not mention the fact to the fiscal. When
   Buenaventura was already arrested, “it was then that my cousin Primitiva
   confided to me that she saw Bueno that night with Burgos.” He only learned about
   it when he came to see the fiscal. On that occasion, “we went to see the fiscal.
   They told me everything.” He was present when she testified before the fiscal,
   notwithstanding the revelation made by Primitiva to the fiscal, the witness
   insisted in keeping it a secret until the very moment of his testifying in
   court, “because I am ashamed.”

   Before the death of his son, the witness knew that Buenaventura Abad was able
   to file a complaint against him. Buenaventura wanted his house removed from the
   place, and on the night in question part of said house was already removed. The
   witness has grown in the place which has become dear to him; but he declared
   that he did not resent Buenaventura’s asking the removal of the house from the
   place. He did not hate Buenaventura “because he is my carnal nephew.” Referring
   to Buenaventura Abad, the witness said: “It would have been better if he came to
   me. As a matter of fact, even before the presentation of this case if he only
   came, I was ready for an arrangement.” The witness said that he went to
   different barrios to find out who the companions of Buenaventura were, but he
   did not make any inquiry from the persons in his house. He employed many days in
   said inquiry in the barrios, in fact, until arrest was made; of the many persons
   from whom he tried to obtain information, he only could mention Paulino Mora and
   Pascual Mora. The witness was sure that when Buenaventura arrived at the house,
   he was seen by his dying son. Upon seeing Buenaventura, Pascual did not say
   anything.

7. Felicisimo Ammay, 26 years of age, married, patrolman of the
   Constabulary, testified that on March 14, 1944, he went to the barrio of Sto.
   Niño, Palauig, to the house of Buenaventura Abad, accompanied by Lieutenant
   Bitanga, Corporal Peter, Patrolman Iglesias, and one policeman from Palauig,
   Apostol. Lieutenant Bitanga, asked permission to search the house which was
   granted by Attorney Abad. She witness stayed in the surroundings of the house.
   While he was at the back of the granary, he tried to dig at the three posts of
   the same. At the last post to the east, he found four bullets, two of which were
   intact and two with empty shells. One of the empty shells was Cal. 32, and the
   three remaining others were Cal. 30. “When I found those bullets, sir, I covered
   them, because it arose in my mind that the civilians might see those bullets.
   Then I called the policeman and asked for Lieutenant Bitanga * * * Then Corporal
   Peter was the one who dug the post and brought out those bullets.” Lieutenant
   Bitanga asked Attorney Abad why there wers bullets there. Abad answered, “May be
   those are new.” The granary had from 8 to 10 posts. Aside from the 3 above
   mentioned, the witness did not make any digging at the remaining others. North
   of the yard, there were bamboos and bushes, almost impassable without creeping,
   live cavans of rice were found under the grove of bamboos. In the yard there
   were pineapple plants. The place where the four bullets were found was sandy,
   and the witness dug it by his “bare hands because it is very soft.” To make the
   excavation he made only about five motions of his hands. The bullets were found
   at a depth of four inches from the surface of the soil. When the witness and his
   companions went to Salasa in an army truck armed with rifles, they brought with
   them cal. 30 bullets, which were not as dirty as those found at the post of the
   granary. When they made the search, they brought with them their rifles and
   bullets cal. 30.

8. Quintin Bitanga, 26 years of age, 3rd Lieutenant of the Bureau of
   Constabulary, testified that in March, 1944, he received instructions from his
   company commander Lieutenant Dimain, to go to Palauig and investigate the
   persons whose names appear in the list given to him. They were Bueno Abad, Pedro
   Abad, Martin Abad, Jose Navarosa and Federico Ponce. It was in the house of
   Celestino Abad where he requested permission from Attorney Abad, who was then in
   the house, to make a casual inspection for arms and ammunition. Attorney Abad
   gave the permission. “Patrolman Ammay met me at the stairs and told me to come
   with him to the camarin. I instructed Peter to see the ground and at the third
   post he found some bullets. There were three bullets, one empty shell like that
   and one empty shell, caliber 32, pistol.”

   Asked as to the relation between those found with bullets Exhibit E-1 and
   E-4, and another empty shell of a smaller caliber, which was formerly identified
   by Ammay as the one found by him, Lieutenant Bitanga answered: “if these were
   the ammunition brought by Patrolman Iglesias, because I gave instruction to
   Patrolman Iglesias to deliver to the Provincial Fiscal the ammunition, this must
   be the same ammunition which we found in the ground of the camarin. They are of
   the same caliber, the same empty shell, the same green coloring on this copper
   metal top.” The witness used to see bullets like them being used by the
   Constabulary. The witness asked Attorney Abad about the bullets, and the latter
   “told me the marks are quite fresh.” The witness stated that they arrived at the
   house of Celestino Abad around 9:30 to 10, and left around 11 o’clock, having
   stayed for about one hour; while Ammay testified that they arrived at the place
   at 11 o’clock and left at 2 o’clock, having stayed for more than two hours.

9. Constancio M. Leuterio, 38 years of age, Provincial Fiscal of
   Zambales, testified that bullets Exhibit E-l, E-2, E-3 and E-4 are the ones
   delivered to him by Pat. Iglesias as found in the premises of Attorney
   Buenaventura.

   The above synthesizes the testimonies of the nine witnesses
   for the prosecution.

As the burden of proof as to the guilt of the accused must be borne by the
prosecution, we must, before considering the evidence for the defense, determine
first if the evidence of the prosecution has, at least, shown prima
facie the guilt of the accused. If not, it is futile to waste time in
considering the evidence presented by the defense. It is only when the
prosecution has been able to present a prima facie case that it becomes
necessary to examine the evidence of the defense to determine whether it can
successfully neutralize the damaging effects of the evidence for the prosecution
or prove exculpatory facts and circumstances that may exempt or justify the
accused without which he is liable to suffer the penalty imposed by law.

The whole problem to be solved in this appeal is one of fact. It all boils
down as to whether appellant, Attorney Buenaventura Abad, was one among the
group of assailants who killed Pascual Tante, jr. The theory of the prosecution
is that he was. The truth of that theory is now under test.

The theory of the prosecution is mainly based on the testimonies of the four
star witnesses Burgos Gamboa, the co-accused who was blessed with an umerited
absolution by the fiscal and by the lower court; Primitiva Araña and Genoveva
Tante, aunts of the deceased; and Salvador Tante, the father.

Concerning the testimony of Burgos Gamboa, there are striking circumstances
upon which our attention is focused with irrepressible intensity:

1. The unravelled mystery as to the reasons and motives of the assailants in
   coercing and intimidating him to follow them to the house where they intended to
   commit, as in fact they did, the heinous crime of murder. According to Gamboa,
   all the assailants had their faces painted black, the evident purpose being to
   avoid detection and identification. With their faces painted black and in the
   darkness of the dusk, the assailants would have known with certainty that they
   could not have been recognized by Gamboa at the moment they met him, if they had
   allowed him to continue his way and bring the “baito” bamboos to its destination
   that night. If darkness makes the identification of undisguished persons
   difficult or even impossible, it is more so in the case of disguised persons.
   Painting the face black is undoubtedly one of the most effective means of
   disguise. If we have to believe Gamboa, the assailants, in compelling him to
   accompany them, had made of him an unwilling witness who, by closeness of
   association, by personal contact, by conversation and other means of
   information, by his accompanying them to the house of the crime, could penetrate
   the shield of their disguise and identify them personally, all and each one of
   them. By making Gamboa a witness as to their identify, the assailants knowingly
   challenged or invited disaster. They painted their faces black for safety, as a
   protection against prosecution and punishment. By compelling Gamboa to join
   them, the assailants made the plunge into the abyss of suicide. The enigma of
   the two simultaneous and concomitant self-contradicting attitudes is
   distressingly beyond comprehension.

2. Gamboa declared that he accompanied the assailants without his face being
   painted black, without using any disguise. All the assailants, without
   exception, had their faces painted black evidently for the purpose of avoiding
   recognition. In allowing Gamboa to accompany them undisguised, without his face
   being painted black, they themselves offered a strong clue by which they might
   be caught, a vital link of the chain which would finally bind them until their
   conviction and punishment. Although human conduct is not always consistent or
   logical, the opposing attitudes attributed to the assailants, if we have to
   accept the testimony of Gamboa, are not only inconsistent and illogical, but
   show a complete disruption of mental processes which are found only in paranoiac
   individuals.

3. The apparent purposelessness of the company of Gamboa. The assailants had
   assembled with the object of committing murder. For that purpose, they armed
   themselves with rifles and disguised themselves by painting their faces black.
   All of them were acquainted with the enterprise to be accomplished. But Gamboa
   appeared to be more of an obstacle rather than a help to the effective
   accomplishment of the criminal plan. He was not informed, according to him, of
   what the assailants were intending to do. He did not carry any weapon with
   which, even knowing the plan of the assailants, he could help in carrying it
   out. His face was not painted black and he did not use any disguise to conceal
   his identity so as to evade detection and capture by the agents of the law.
   Being an unwilling companion and compelled by duress to accompany the
   assailants, should the latter encounter serious opposition in the execution of
   their plan, it was natural “to expect that Gamboa would align himself with the
   opposition to help defeat the assailants. If he is not courageous enough, he
   might, at least, keep himself neutral by going away from the scene of the
   struggle, and just make himself available as a witness against the
   male-factors.

4. The long silence observed by Gamboa concerning the commission of the crime
   becomes more inexplainable when we consider the fact that, if his testimony were
   to be believed, he would have nothing to fear by denouncing the criminals to the
   authorities because, then, he would not be prosecuted with them, as he was
   intimidated and forced to follow the assailants in their criminal
   enterprise.

5. The prosecution itself, in including Gamboa among those accused in the
   information as authors of the murder in question, appears not to put much
   reliance on his credibility as to his complete blamelessness for having followed
   and accompanied the assailants to the house where Pascual Tante, jr., was
   murdered.

6. According to his testimony, he volunteered information to the authorities
   regarding his knowledge of the authors of the crime and how it was committed
   months after it was perpetrated, when he was arrested for illegal possession of
   150 rounds of ammunition and while he was in detention. It was not shown,
   however, why he should volunteer such information when said crime had nothing to
   do with the finding of the 130 rounds of ammunition in his possession possession
   for which he was not finally indicted. His volunteering the information appears
   to be more surprising and suspicious if we have to believe his allegation that
   the reason for his silence regarding the murder of Pasoual Tante, jr., is the
   assailants’ admonition to him not to talk about it, and for about two weeks
   before he volunteered the statement regarding the murder and its authors, he had
   been constantly shadowed by the assailants.

7. The fact is that, considering all the circumstances narrated by Gamboa, he
   rather appears to be a planted witness, purposely made to meet the assailants
   and to accompany them until the murder was consummated in order that he may be
   used as a personal and ocular witness against the accused.

A further analysis of Gamboa’s testimony will undoubtedly reveal additional
circumstances analogous to those above-mentioned, all tending to cast serious
doubts upon his credibility. Indeed, with those already mentioned, we hare more
than enough to sustain the conclusion that Gamboa’s testimony is a dangerous
ground for jeopardizing the life or liberty of an accused person. Said testimony
can not serve as a basis to convict an accused beyond all reasonable doubt.

Primitiva Araña is the next witness whose testimony we are going to test in
the crucible of credibility.

She pretended having identified accused Buenaventura Abad among the
assailants without seeing his face, which, according to Gamboa, was painted
black, but only by a fleeting glimpse at the height and size of the person she
saw in a dark night, lighted by a lamp she was holding, the flame of which was
so weak as to be put out by the more touch of her hand by Pascual Tante, jr.

The inverisimilitude of her pretension appears to us self-evident, and her
conduct after the crime was committed, on the basis of her own testimony, makes
the same completely unreliable. If she was able, under the circumstances stated
by her, to identify Buenaventura Abad as one of the assailants, and she loved
much her nephew, the deceased Pascual Tante, jr., it is strange that she was
unable to give a satisfactory explanation of her repeated omissions in revealing
the fact (a) to Salvador Tante, when the latter arrived at the house after the
shooting of his son; (b) to Mayor Sevilla, who came to the house on the very
night of the crime, for purposes of investigation; (c) to the chief of police
and other peace officers, who came in the company of Mayor Sevilla; (d) to
Lieutenant Dimain, when he arrived at the house to look for the authors of the
crimes and (e) to the justice of the peace of Palauig, during the preliminary
investigation in which Genoveva Tante, as the lone witness, testified that she
was not able to recognize any one of the accused and did not know anything as to
who the authors of the crime were. She testified that after the crime was
committed, Buenaventura Abad came to the house with Celestino Abad, that
Buenaventura even went near the feet of Pascual while the latter was still
alive, and that the appellant was seen there by Mayor Sevilla. Why did she not
denounce Buenaventura Abad right then and there to Mayor Sevilla or to any of
the law officers accompanying him as among the authors of the crime? Primitiva
Araña did not even attempt to offer any explanation for such omission. No other
alternative is open to us but to discard her testimony.

Genoveva Tante, with her testimony, fared no better. Like Primitiva, she also
incurred many omissions which believe her testimony against appellant. She
informed neither her brother Salvador Tante, nor Mayor Sevilla, nor the peace
officers accompanying said mayor, nor Lieutenant Dimain, nor justice of the
peace Arbiso, that Buenaventura was among the assailants, or that Primitiva
Araña told her that, “that is Bueno,” referring to one of the assailants.

The testimony given by Salvador Tante about the ante mortem
statement of Pascual is incredible. Salvador said that when his deceased son
told him that Buenaventura was among the assailants, Primitiva Araña was very
near; but Primitiva who, by reason of her alleged nearness, should have heard
what Pascual said, failed to corroborate Salvador. This man, described by his
sister Genoveva as one of “hot temperament” and by Primitiva as “hotheaded and
is of aggressive temperament,” failed to perform what naturally must be expected
of him, when, after Pascual’s revelation, the very Buenaventura Abad arrived at
the house and placed himself at the feet of Pascual and remained therein until
the next morning, during which time several competent authorities arrived at the
house for the purpose of investigating the crime and knowing who the authors
thereof were. Primitiva Araña and Genoveva Tante tried to make us believe that
Salvador, because of his temperament, would, upon learning who the authors of
the murder were, start a spree of “killings.” But Salvador did not kill
Buenaventura, did not do him any him, did not scold him, did not make any
remonstrance, did not denounce him to the several authorities who came to the
house to investigate the crime and who had seen Buenaventura therein.

An analysis of the testimonies of Primitiva Araña, Genoveva Tante and
Salvador Tante only confirms the statement, given by Genoveva in an unguarded
moment during her cross-examination, to the effect that the discovery of the
identity of Buenaventura “did not come from us but it was told to us by another
person,” and that the discovery “came from the testimony of Burgos Gamboa,”
adding that “she never thought that he could be the one who would do it.”

Upon the conclusions we have arrived at, it is unnecessary to discuss the
testimonies of the remaining witnesses for the prosecution or the evidence
presented by the defense, much less if we take into consideration that, besides
failing to prove appellant’s guilt or to shake down his defense of
alibi, the evidence of the prosecution itself has shown, after the
crime was committed, a conduct on the part of Buenaventura Abad incompatible
with his guilt but rather fits in the pattern of the theory of his innocence. If
not the first, he was among the first ones who arrived at the house where the
murder was committed, placed himself at the feet of the victim, who was still
alive, and, according to Mayor Sevilla, appeared to be sorry. He even helped in
bandaging the wounds of the cadaver, and remained in the house until the next
morning, facing nonchalantly all the other relatives of the deceased and not
evading any of the authorities and law officers who came to investigate the
crime and the authors of the same.

The accused is acquitted of all criminal responsibility, with costs de
oficio, and it is ordered that he be immediately released from
confinement.

Moran, C. J., Paras, Feria, Pablo, Hilado, Bengzon, Briones,
Padilla, and Tuason, JJ., concur.