THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HERSON MAGHANOY, ACCUSED-APPELLANT.

The accused-appellant went on a drinking spree and into an orgy
of killing that left four lifeless bodies and
a dying man in his drunken trail. 
Now he asks us to exonerate him on the presumptuous ground that he is
innocent.  Impossible.

The evidence against him is clear and convincing.  The prosecution witnesses were consistent and
credible while his own defense was conjectural and
improbable.  He more than deserves the
penalties meted out to him which are in fact less than he deserves.

The killings took place in the evening of July 11, 1978, in San
Francisco, Agusan del Sur.  Accused-appellant Herson Maghanoy, who was then a constable second
class, had been drinking beer with PC trainee
Dominador Bartolome in a
store located in the public market, starting at three o’clock in the afternoon.  Maghanoy was
totally inebriated by seven o’clock, when he started throwing benches in the market.  PC Sgt. Carlos Martinez, who happened to be in the vicinity at that time,
identified himself as a peace officer and tried to pacify Maghanoy.  Maghanoy instead lunged
at him.  Martinez boxed the drunken soldier and forced him to withdraw, apparently subdued.

But as it turned out, the incident did not end there.  Maghanoy and Bartolome took a motorcab and proceeded to the PC barracks in Prosperidad, in the same province.  They got their armalite
rifles.  On the way back to the market in the same vehicle, they fired three rounds as if to announce
hostilities.  They fired another three shots upon their arrival shortly before 8 o’clock.

Bartolome went inside the store and then came out with Gavino
Montante. 
Meanwhile, Pat. Raul Montante, Pat. Modesto Gumimba, ICHDF, George
Gortifacion and ICHDF Pablo Arones, who were then on duty as security guards of the market and had heard the shots, approached the store to investigate.  As they faced Maghanoy,
the latter gave one of the two rifles he was carrying to Bartolome, who slung it on his shoulder.  Suddenly, Maghanoy
pointed his rifle at the four peace officers and
shouted “Do not move!” Bartolome tried to
deflect the rifle and Maghanoy fired, hitting both Bartolome and Pat. Montante.  Montante
died that same night with five bullet wounds^[1]
and Bartolome expired the following day with three
bullet wounds.^[2]

From the store, Maghanoy proceeded to
the national road leading to Barobo, Surigao del Sur,
where he met his other victims.  Reynante Sabelino, Daniel Baguio and Benito Pacañot were on
their way home and did not know the grisly fate that awaited them.  Maghanoy reloaded
his rifle and watched them come close. 
Without warning, he opened fire on them, felling all three.  As they moaned in pain, Baguio and Pacañot
were shot several more times until they died. 
By sheer luck, Sabelino was hit only in the
left thigh and was able to crawl to the
nearby ricefield where he hid until he was found by
the police.  He was taken to the Agusan del Sur Provincial Hospital,
together with his slain companions.  Post-mortem
examinations revealed six bullet wounds
in the body of Baguio^[3] and four in the body of Pacañot.^[4]

Maghanoy was in hiding for three days
until he was apprehended on July 14,
1978, on board a passenger jeep where he had identified himself to
a policeman as “Sgt. Fernandez.”^[5]
In due time, he was charged in three separate informations with
the murders of Raul Montante and Dominador
Bartolome,^[6] the murders of
Daniel Baguio and Benito Pacañot,^[7] and the frustrated
murder of Reynante Sabelino.^[8] He was convicted
on all counts in a decision penned by Judge Eutropio Migriño of the Court of First Instance of Agusan del Sur.^[9]

The events prior to the actual shooting and the actual killing of
Bartolome and Montante were
narrated by Gavino Montante,
George Gortifacion, Modesto Gumimba
and Carlos Martinez.^[10] The killing of Baguio and Pacañot
and the wounding of Sabelino were related by Julian Rotante.^[11]
The rest of the prosecution version was established by other witnesses, most of
them members of the same PC command and staying in the same barracks as the
accused-appellant.

The trial court found there was no reason to question their
reliability, considering their lack of motive in testifying against Maghanoy and the intrinsic credibility of their
testimonies.  We affirm.  The rule is that the factual findings of the
trial court, including the assessment of the testimony of each witness, whom it
is able to observe on the stand, is entitled to acceptance on appeal in the absence of a showing that they
are arbitrary and without basis.^[12] There is no such showing here.

The Court also notes that the accused-appellant disappeared after the
killing and was obviously trying to escape under an assumed name.  It is curious that when asked why he did not
return the same night to the PC barracks, he said he did not know the way, improbably expecting
the trial judge
to believe him.^[13]

The rejection of the evidence for the defense by the trial court
must also be sustained by this Court. 
Such evidence is unacceptable because it is palpably false, especially
when considered in the light of the acts of the accused-appellant before and after the killings.

Briefly stated, the
contention of the defense is
that Maghanoy did not shoot any of the five victims
and had merely been “framed” by the police.  The accused-appellant says it was Bartolome who killed Montante and
Montante who killed Bartolome;
and furthermore, he himself would not have shot Bartolome
who was his friend.  Baguio and Pacañot
were also shot to death not by him but by the peace officers who were pursuing
him after the earlier shooting of Bartolome and Montante, and it was the same pursuers who shot Sabelino.

The trial court correctly observed that the accused-appellant was
lying when he said that Montante killed Bartolome with a single shot fired at the latter as he alighted from the motorcab
and that Montante had succumbed from three shots
fired at him by Bartolome.  The autopsy showed that Bartolome
had sustained three bullet wounds^[14] and that there were five bullet wounds in Montante’s
body.^[15] As for Baguio and Pacañot, the
post-mortem report showed that they had also been shot when already lying on
their backs after the initial volley. 
This would show that they were killed deliberately when they were
helpless on the ground.^[16]

The defense makes much of the failure of the prosecution to
present in evidence the armalite rifle carried by Bartolome and says it would have proved that it was Bartolome who killed Montante.  The prosecution was under no obligation to
submit that exhibit.  If the defense
thought that the rifle could serve its cause, there was nothing to prevent it
from requiring its production in court so the accused-appellant could offer it
as his own evidence. 
No such effort was taken.

The same observation is made regarding the pedicab
driver, Tito Cena, who, the defense maintains, could
have testified that he did not see who shot Bartolome
and Montante. 
If that were really so, what it should have done was insist on this
person’s attendance at the trial so he could testify as a witness for Maghanoy.  The record
shows that Cena
was so required but did not appear at the scheduled hearing and the defense did
not pursue the matter further.^[17]

The alleged lack of a preliminary investigation is another matter
that demonstrates the weakness of the defense. 
The record shows that the accused-appellant was twice advised by the fiscal’s office to submit counter-affidavits against the
complaints filed against him but he twice failed or refused to do so.  He never thereafter objected to the lack of a
preliminary investigation and did not allege it as a ground in his demurrer to the evidence, nor was it even
mentioned in the petition for certiorari he filed with this Court to ask for a
rehearing of the case.^[18] (The petition was dismissed for lack
of merit.) His right to a preliminary investigation had been forfeited by
inaction and can no longer be invoked at this late hour.^[19]

The other arguments of the defense are plainly insubstantial and
do not deserve discussion in this opinion.

The trial court ruled that the accused-appellant should be held
guilty only of homicide for the killing of Bartolome and
Montante as no treachery attended the act.  The victims had, indeed, been previously
warned by Maghanoy and were not, or should not have been, taken by surprise.  Besides the said warning, there was Maghanoy’s drunken and belligerent condition plus the fact
that he had minutes before fired shots in the air to signal his hostility.  All these should have alerted both Bartolome and Montante,
particularly because of their calling and experience as peace officers, to any
sudden dangerous moves from the accused-appellant.

There is one circumstance, however, that the trial court has not
taken into consideration.  The
accused-appellant, after having been boxed by Martinez,
went to the PC barracks to get his rifle and returned to the public market,
firing shots on the way and upon arrival. 
This clearly shows that Maghanoy was bent on
revenge and that he had sufficient time to plan how to carry it out, as well as
to ponder its consequences.  That was
evident premeditation and qualified the killings to murder.  In Criminal Case No. 1113, therefore, the
imposable penalty for each of the two murders, there being no generic
aggravating or mitigating circumstances, is reclusion
perpetua.

In Criminal Case No. 965 and Criminal Case No. 1112, the Court
approves the ruling of the trial judge that the shooting of the other three
victims should have been prosecuted under one information
pursuant to Article 48 of the Revised Penal Code defining the complex crime as
follows:

ART. 48.  Penalty for
complex crimes.  – When a single act
constitutes two or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its
maximum period.  (As
amended by Act No. 4000.)

As the deaths of Baguio
and Pacañot and the wounding of Sabelino
were the result of one single act of the accused-appellant, the applicable
penalty is the penalty imposed for the more serious offense.  The more serious offense is murder, the killing having been attended by treachery because the
victims were completely taken by surprise and had no means of defending
themselves against Maghanoy’s sudden attack.  The penalty is imposable in its maximum degree but as the death
penalty is no longer permitted, the same is hereby reduced to reclusion perpetua.

The civil awards are all
affirmed except for the indemnity for the death of the four victims, which is increased to P30,000.00 for each of them.

The Court cannot express too
strongly its grave concern over the alarming
number of our men-at-arms who, while under the influence of liquor, have
disturbed the very peace and order of the community they are required and expected to preserve.  Using their weapons and position to abuse
and terrorize, and even to wound and kill, many
irresponsible law-enforcement officers have drunkenly attacked innocent and
defenseless persons who had in fact the
right to look to them for protection. 
It is time these so-called agents of the law realized that guns and
alcohol do not mix, as the
accused-appellant has found, albeit too late to spare his victims.  It is not yet too late for the others.

WHEREFORE, the
appealed decision is AFFIRMED as above modified.  Accordingly, the accused-appellant shall
suffer the following penalties:

(1) In Criminal Case No. 1113, reclusion perpetua and payment of P30,000.00
civil indemnity for each of the two murders;

(2) In Criminal Case No. 965 and Criminal Case No. 1112, reclusion
perpetua for the complex crime of double
murder and frustrated murder and payment of P30,000.00 civil indemnity for each
of the two murders; and

(3) All the other monetary awards, which are hereby also
AFFIRMED.

SO ORDERED.

Narvasa, (Chairman), Gancayco, Griño-Aquino, and Medialdea, JJ., concur.

^[1]
Decision, p. 5; Records, p. 494.

^[2]
Ibid.

^[3]
Exhibit “Q.”

^[4]
Exhibit “R.”

^[5]
TSN, February 27, 1981, p. 14.

^[6]
Criminal Case No.
1113.

^[7]
Criminal Case No.
965.

^[8]
Criminal Case No.
1112.

^[9]
Decision, pp. 12-13; Records, pp.
501-502.

^[10]
TSN, November
26, 1980, pp. 3-4; TSN, November 27, 1980, pp. 3-6 and 36-37, TSN, December 2,
1980, pp. 10-13.

^[11]
TSN, November 26, 1980, pp. 17-21.

^[12]
People vs. Budol, 143 SCRA 241; People vs. Adones,
144 SCRA 364; People vs. Madarang, 147 SCRA
123; People vs. Alcantara, 151 SCRA 326.

^[13]
TSN, April 5, 1982, pp. 25-26.

^[14]
Exhibit “N.”

^[15]
Exhibit “M.”

^[16]
Exhibits
“Q” and “R,” supra.

^[17]
TSN, April 5, 1982, p. 1.

^[18]
G.R. No. 65038-40, Dec. 14, 1983.

^[19]
Brief for Appellee, pp. 10-12.