THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. EDUARD ABAUAG ET AL., DEFENDANTS. EDUARD ABAUAG, CLEMENTE GUMPAD AND BAYUDANG, APPELLANTS.

Four
Igorrots, Eduard Abauag, Clemente Gumpad, Bayudang and Ganungan, were
accused in criminal case No. 1017 of the Court of First Instance of
Bontoc of the crime of robbery in band with homicide, the information
alleging:

“That on or about the night of
September 23, 1923, in the municipal district of Pinukpuk, subprovince
of Kalinga, Mountain Province, Philippine Islands, the said accused;
conspiring together and assisting each other and forming a group of
four persons, all armed with bolos, voluntarily, unlawfully and
criminally, and with intent of gain, entered into the house of one
Sukian (Igorrot), and by means of force in the persons of the wife and
children of said Sukian, named Bangonan, Carja, Bayog and Domingo
(Igorrots), gave them several blows with bolos until they were
completely wounded, killing them instantly, and employing force in the
things, they broke open by means of blunt instruments and a piece of
wood three trunks, taking therefrom thirty pesos; ‘bungols’ or
‘manding’ (thick beads) of more than one ganta; twenty-five sheets;
fifteen skirts; one tapestry; three breech-clouts; seven chemise; four
handkerchiefs; one khaki coat; one pocket book; one cedula certificate
of Sukian; one ‘balbaleng’ (necklace with silver coins of ten and
twenty centavos); some ‘tinali’ (bracelets of beads in twisted form);
other nine ‘tinali’ (for the neck); three ‘panay’ (old plates), of the
property of said Sukian, the value of which amounts to P6,000,
approximately, equivalent to thirty thousand pesetas. That in
the commission of the crime, there were present the aggravating
circumstances of nocturnity, in the house of the offended parties,
premeditation, treachery, abuse of superiority and cruelty.”

In criminal case No. 1018 of the same court, Eduard Abauag and Ganungan
were accused of murder, it being alleged in the information that “on or
about the night of September 23, 1923, in the municipal district of
Pinukpuk, subprovince of Kalinga, Mountain Province, Philippine
Islands, the said accused, voluntarily, unlawfully and criminally, and
with malice aforethought, treachery, cruelty and in the house of the
offended parties, attacked with bolos Bangayon and Denna, of seven and
ten years respectively, (Igorrots), inflicting upon them several
serious and mortal wounds which caused the death of said children
Bangayon and Denna; the aggravating circumstance of nocturnity being
present in the commission of the crime”.

At the preliminary
investigation of the two cases, all of the accused pleaded guilty and
made written confessions, In the Court of First Instance the cases were
tried together. In case No. 1017 Abauag entered a plea of not guilty
but Gumpad, Bayudang and Ganungan pleaded guilty. In case No. 1018,
Abauag pleaded not guilty; Ganungan declared himself guilty on
condition that he be permitted to make an explanation, but in view of
this condition the court ordered the entry of a plea of not guilty.

Under their plea of guilty in case No. 1017, the court sentenced Gumpad
and Bayudang to death. Ganungan being less than 18 years of age, was in
the same case sentenced to suffer seventeen years, four months and one
day of reclusion temporal. After the rendition of the
sentence mentioned, both of the two cases were continued as to Abauag
and case No. 1018 as to Ganungan. At the subsequent trial, the court,
after receiving the evidence, found both Abauag and Ganungan guilty and
sentenced Abauag to suffer the death penalty in each of the two cases.
Ganungan was given a sentence of twelve years of presidio mayor
in case No. 1018. None of the defendants appealed, but the judgments
against Abauag, Gumpad and Bayudang are before this court for review in
accordance with section 50 of General Order No. 58.

It
appears from the evidence that the Igorrot Sukian was living in a place
called Camcamalog, in the municipality of Pinukpuk, Kalinga, Mountain
Province. The only other house in that vicinity was that of another
igorrot by name of Dangioan, whose wife Alibon appears to be a relation
of Sukian. About September 20, 1923, the four defendants came to
Sukian’s house and remained there for three days. On the third day,
Sukian left his home to, go to Guringed, in the municipality of Tuao,
Province of Cagayan, to buy some salt. Before going to Guringed, Sukian
asked the defendants how long they intended to stay in Camcamalog and
was told that they probably would stay there for some time, as they
were expecting some laborers who were to report on the results of a
locust campaign of which Abauag seems to have been in charge. Upon his
return two days later, Sukian found the mutilated bodies of his wife
and three children in his house, his trunks broken open, and his
personal property carried away. The defendants had disappeared.

Alibon, the wife of Dangioan, testifies that she and her husband went
to a place called Kalaccad, leaving their two children Denna and
Bangayon in their house, and stayed away for five days; that Denna was
from 8 to 10 years old and Bangayon about 6 or 7; that when she
returned from Kalaccad, she found the mutilated body of Denna in the
brush about 300 meters from her house. The body of Bangayon was found
in the house and had been partly eaten by dogs.

As to what
occurred during Sukian’s absence from Camcamalog, the confessions of
Abauag, made before Lieutenant Rosas of the Constabulary at the time of
his arrest and subsequently before the justice of the peace of Kalinga,
give perhaps the clearest description. In his confession before Rosas,
Abauag stated that he had planned the crime for about a month before
its commission; that three days before the crime was committed, he met
his coaccused Bayudang, Gumpad and Ganungan, and that they discussed
how they might best carry out his purpose; that they agreed that Abauag
and Gumpad should remain in Sukian’s house to kill the latter’s family,
while Ganungan and Abauag himself would go to the house of Dangioan to
kill Denna and Bangayon, and that they would do so upon hearing
outcries from Sukian’s house; that in the evening of September 23,
while he, Abauag and Ganungan were in the house of Dangioan, they heard
a shout from Sukian’s house and Ganungan thereupon killed Bangayon with
a bolo; that Denna then ran away and that Abauag ran after him and
overtook and killed him about 200 yards from the house; that upon
Abauag’s return to the house of Sukian to get his hat, he found that
Sukian’s child Domingo was still alive; and that he then killed
Domingo; that Bayudang and Gumpad carried Sukian’s trunks downstairs
and broke them open; that the contents of the trunks were divided among
the four defendants; that he, Abauag, buried his share of the loot in a
place called Magnao. It may be noted that after receiving the
confession, Lieutenant Rosas, accompanied by the accused Abauag and
some Constabulary soldiers, went to Magnao and there found the goods
received by Abauag in the place indicated by him.

Abauag’s statement before the justice of the peace is in writing and reads as follows in translation:

“Eduard
Abauag, 22 years, married according to his tribe, resident of Salegseg,
municipal district of Balbalan, Mountain Province, after his fetters
were taken, and being first duly sworn, declares as follows:

“I
know that I am in court, free to testify without fear. I know why the
court has ordered that my fetters be taken off before occupying the
witness stand; so that there would be no pressure on me.

“I was charged by order of Deputy Governor Blanco, to inspect the stations (puestos)
at Bagaogao, Camcamalog, Cobgob, Laya, Gal-lagdao and Calbayan; I was
then a corporal in the police corps of the subprovince of Kalinga.

“On
September 15, I went to Calbayan; on the 16th, to Camcamalog; the
following day, in company with Bayudang, we went to Duludol and
Masabsalblag to hunt grasshoppers. On the night of the 17th, Bayudang
and I slept in Sukian’s house; the following day we went to Magaogao
and in the evening we returned to Camcamalog. On the 19th, we again
stayed in Camcamalog and again on the 20th, but on this day Gumpad and
Ganungan and President Gunayon and his laborers were with us. On the
21st, we continued to stay in Camcamalog together, with the said
president and his laborers; on the 22d, the president and his laborers
went away because it was impossible to hunt grasshoppers due to the
rain, and we, Bayudang, Ganungan, Gumpad and I, were left; on the 23d,
we stayed in Camcamalog and at night we four went to Sukian’s house who
was then absent for he had set out for Guringed at 8 o’clock in the
morning of the said day; there we ordered rice to be cooked because we
had none; Bangonan, the wife of Sukian, cooked the rice; while she was
thus cooking, I looked for my money, consisting of P0.50, in my shirt
and found that it had disappeared; I then ordered Ganungan to go and
look for it in the camp; after a while Ganungan called saying to me
that he could not find it; I followed him and we two tried to find it;
failing to find it we returned to the house of Dangioan; I put my bolo
over a box in the house; I then began to prepare cigars on the
uncovered porch of the house (azotea); suddenly Ganungan heard
a cry; he took my bolo and went to strike the boy who was cooking in
the kitchen, who was the son of Daway, named Bangayon; I did not see
the position of Bangayon when he was struck by Ganungan because I was
then on the uncovered porch of the house; I went out of the house and
heard the cries of the boys in the other house (Sukian’s); I took my
bolo from Ganungan and wiped off the blood stains; I went out of the
house again and stood under the shadow of a mango tree which was in the
yard of the house; while I was thus standing I again heard the cries of
the boys in Sukian’s house; then the thought to kill came to me, to
revenge Buguioan and his wife who were killed by the Pinukpuk people;
hence I pursued Denna who ran from the house and when I overtook him on
the road, about 100 yards (50 yards only) from the camp I gave him a
blow; I do not know what part of his body I struck because it was night
and he fell to the ground; I do not know, if I gave him many blows for
I did not count them; the body was still moving when I left it in the
thicket, on the side of the road. I went to Sukian’s house where Gumpad
and Bayudang were; upon my arrival there I found Ganungan; I went up
the said house to get my hat which I had left there; I saw that
Sukian’s wife and children were already dead because they did not move;
comirig downstair I saw two trunks at the foot of the stairs which had
been taken down by Gumpad and Bayudang. One of them had already been
opened and they took and wrapped up its contents; once downstairs
Gumpad opened the other, by means of a pestle (a piece of wood used for
grinding palay). When it was opened we took possession of its
contents, wrapped them up and went away; I did not see the third trunk,
I saw only two. We all carried the contents of the said trunks but as
for me I carried but two skirts and a small bag of beads (bunglos,
a mixture of fine and coarse beads), and a sash for women. On that
night I was dressed in that sweater (pointing to the one which was
mixed up in bundle No. 2), khaki pants, our uniform, although the pants
had not yet the black edging. We went to Masabsablang and when we
reached the river, we found that it had overflown; we did not cross it,
and we followed the river on this side; we walked during the night and
reached Talac at 4 o’clock in the morning, and divided the articles by
moonlight; at the day break we separated, Bayudang and I went together
to Cacaaligan, Gumpad and Ganungan to Duludol. Bayudang was left in
Cacaaligan and I went to Liang where I passed the night in Liao’s
house; the next day I set out and slept in our house at Magnao; the
next day I set out again and slept in Pasil and the following day I was
at Lubuagan. Of the stolen articles four blankets, one sash for a man (tapis),
two sashes for women, one big bracelet, two ‘balbaleng’ (a collar from
which silver coins are hung) two shirts for women, one skirt and a
small sack of beads which I did not count, belonged to me, I do not
know what Bayudang received because it was night. Ganungan and I
divided the beads while Bayudang and Gumpad divided the ‘tinali’ (fine
beads for women twisted and used as a bracelet). I received two pesos;
Bayudang showed us a five-peso bill and two silver pesos; said
five-peso bill belonged to Gumpad and Ganungan. Those are my share
(pointing to bundles Nos. 2 and 4). All the articles which belonged to
me on that night, when we divided them, are those except the two pesos
which I have already spent. That bolo (pointing C) is the one which I
used in killing Denna and Ganungan also killed Bangayon with it. I do
not know who was the instigator of the robbery because when I arrived,
the trunks had already been opened and as to the killing, it was
Bayudang because he told us he intended to do it when we were in the
camp, the day before the night of the crime. I only knew that Gumpad
and Bayudang had killed some one in Sukian’s house the night of the
crime when I heard the cries of the children. While we were in
Dangioan’s house on the night of the crime, I did not know that
Ganungan intended to kill Bangayon. It is true that I followed Sukian
when he set out from Camcamalog, the day before the night of the crime
but my purpose was to request him to tell the policeman at Magaogao to
raise the galvanized iron where we used to kill the grasshoppers. I
believe that Sukian was already on the Magaogao river when I went to
follow him. When I went to follow Sukian, I met Gatan on my way who
assured me that the galvanized iron had already been taken up so I did
not follow Sukian any more. It is not true that I was the instigator of
this crime. I have served three years in the Constabulary (2d Mountain
Company) and I was made a corporal. I had been with the National Guard
five months. I have already served one year in the police corps for the
subprovince of Kalinga.

(Sgd.) “EDUARD ABAUAG”

Ganungan also made several confessions. Immediately after the
commission of the crime, he went to the house of Nicasio Balinag,
treasurer of the municipal district of Tabuk, and finding him asleep,
awakened him and told him that he wanted to surrender because he feared
that Sukian’s relations would kill him, because he was one of several
persons who had killed Sukian’s family; that the motive for the killing
was vengeance, because years ago some of the relations of the accused
had been killed by people from Sukian’s town, Pinukpuk.

Ganungan’s statement before the justice of the peace at the preliminary investigation reads as follows:

“Ganungan,
about 17 years, single, resident of Magao, municipal district of Tabuk,
Kalinga, Mountain Province, after his fetters were taken out, and being
first duly sworn to, declares as follows:

“I know why my fetters were ordered to be taken off, so that I would not be afraid to tell the truth.

“I
was one of those who killed in the house of Dangioan in Camcamalog. I
killed Bangayon while he was sitting near the fire on the night of the
crime; I was behind him when I gave the first blow which hit his right
shoulder; I did not count the number of .blows which I gave; Abauag was
outside then. I do not know whether or not he saw me when I killed
Bangayon. After killing Bangayon I left the bolo because it belonged to
Abauag and Abauag took it, cleansed it and pursued Denna; I did not
follow him, instead I went to the house of Sukian where Gumpad and
Bayudang were. When I arrived there the wounded were still weeping; I
did not go up the house but stayed downstairs. Upon the death of the
persons there Gumpad carried one trunk and asked me to help him; I
received it on the stairs but I did not go up. The other trunk was
carried by Bayudang and when he put it down, Abauag came and said
nothing. Bayudang and I opened one of the said trunks, which was not
locked; the other was opened by Gumpad by means of a pestle (a piece of
wood which is used to grind rice). Abauag was present when we opened
these trunks. When Abauag went up the house to take his hat which he
left there, the trunks were already opened. Bayudang was the instigator
of the crime. He said that he had committed many crimes but was never
caught. He also said that it would be better for us to kill those
persons (referring to the dead) because they had no companions; he said
this while we were in the camp on the evening before th6 night of the
crime. I agreed because I then remembered my grandfather Galawen who
was sold by Sukian’s father; Abauag also agreed because he had
something to revenge. With Gumpad, it was the same. I used Abauag’s
bolo to kill Bangayon. Abauag put it above a box and I took it without
his knowledge. We all carried away the articles when we left Sukian’s
house. We divided the said articles in Talac by moonlight. My share is
in that bundle (pointing No. 3). I received six silver pesos for Gumpad
and me. I have already lost the five pesos. I have finished the fourth
grade in school.

(Sgd.) “GANUNGAN”

Ganungan also confessed his participation in the crime to Lieutenant
Rosas and indicated the place where he had concealed his share of the
property carried away from Sukian’s house. The effects were found in
the place indicated and were identified as property of Sukian.

Abauag testifying in his own behalf at the trial in the Court of First
Instance denied that he took part in the commission of the crime and
asserted that he was sick with malaria at the time and remained in a
camp about one kilometer from Sukian’s house; that he had never been in
Sukian’s house and did not know him; that Gumpad and Ganungan told him
that they together with Bayudang had committed the crime; that he would
then have arrested them but could not do so because he had only his
policeman’s club for a weapon and had no handcuffs or leg irons; that
Gumpad gave him a bundle of effects taken from Sukian’s house and that
he was afraid to decline. He further stated that he was illtreated by
the Constabulary and he was forced to make the confessions above
mentioned in order to avoid further illtreatment.

Gumpad and
Ganungan testifying for the defense corroborated Abauag’s testimony in
regard to his sickness and that he took no part in the crime. Ganungan
further stated that he killed Bangayon and Denna, but alleged he did so
in self-defense.

As already stated, Ganungan did not appeal
and Gumpad and Bayudang pleaded guilty. The only question for
determination is therefore Abauag’s guilt and the propriety of the
penalty imposed by the court below.

The evidence leaves no
doubt whatever that Abauag is guilty in both cases and it seems quite
clear that he was the leader of the band. His confessions corroborated
by the testimony of Sukian and Alibon and by the confession of his
coconspirator Ganungan seem conclusive on that point. That Gumpad and
Ganungan testified in his favor in the Court of First Instance is
easily explained when it is taken into consideration that Abauag as
corporal of the police was their superior and must have had great
influence over them; that the three of them had been together in the
provincial jail for over thirteen months before the trial and had ample
time and opportunity to concoct the stories told by them on the witness
stand. The testimony as to the alleged illtreatment by the Constabulary
is very convincingly contradicted by Lieutenant Rosas and the justice
of the peace and by the fact that the confessions go into minute
details which would hardly have been brought out if said confessions
had been made under duress. Moreover, Abauag admits that he knew who
committed the crime the morning after its commission and he was not
arrested until four days later. Why did not he as a police officer
report the matter to the authorities? And why did he bury his portion
of the effects taken from Sukian’s house alleged to have been handed
him by Gumpad? His actions were entirely inconsistent with innocence,
and in our opinion the court below did not err in finding him guilty
beyond a reasonable doubt both in criminal case No. 1017 and in case
No. 1018 of the Court of First Instance of Bontoc.

As to the
penalty imposed upon the three defendants whose cases are under review,
it may be observed that in case No. 1017 the following aggravating
circumstances were present: The crime was committed with (1) treachery (alevosia); (2) evident premeditation; (3) abuse of superior strength (U. S. vs.
Lasada and Lasada, 21 Phil., 287); (4) abuse of confidence; (5) the act
was committed in the night time; and (6) in the dwelling of the
offended party. To these may perhaps be added a seventh circumstance,
namely, that the crime was committed with unnecessary cruelty. The same
circumstances, except treachery and abuse of confidence, also existed
in case No. 1018.

In view of the aggravating circumstances
enumerated, the court below did not, in the opinion of the majority of
this court, err in imposing the death penalty on the three defendants
who were over 18 years of age. But one of our members takes the view
that the tribal customs of said defendants should be taken into
consideration, and that the penalty imposed by the court below should
be reduced to cadena perpetua. As the death penalty can only
be inflicted by the unanimous vote of the court, the sentence under
review must therefore be modified.

The death sentence
imposed on the three defendants is therefore reversed and in the
aforesaid case No. 1017, each of the defendants Eduard Abauag, Clemente
Gumpad and Bayudang is hereby sentenced to suffer cadena perpetua,
with the accessory penalties prescribed by section 54 of the Penal
Code, to jointly and severally with his codefendants indemnify the
heirs in the amount of P1,000, with an additional indemnity to Sukian
of P3,000, the value of the articles robbed and not yet recovered, and
to pay his proportional share of the costs.

In criminal case No. 1018, the defendant Eduard Abauag is hereby sentenced to suffer cadena perpetua,
with the accessory penalties prescribed by section 54 of the Penal
Code, to jointly and severally with his codefendant, Ganungan,
indemnify the heirs of the deceased Bangayon and Denna in the amount of
Pl,000, and to pay his proportional share of the costs in said case No.
1018. The said defendant Abauag shall begin to serve this sentence
immediately after the extinction of the penalty imposed upon him in
case No. 1017. So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Villamor, Johns, and Romualdez, JJ., concur.