January 1961 - Philippine Supreme Court Decisions/Resolutions
Philippine Supreme Court Jurisprudence
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G.R. No. L-12080 January 28, 1961 - PEOPLE OF THE PHIL. v. MANUEL GALLARDO:
EN BANC
[G.R. No. L-12080. January 28, 1961.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MANUEL GALLARDO, Defendant-Appellant.
Solicitor General for Plaintiff-Appellee.
Liwag & Vino, for Defendant-Appellant.
D E C I S I O N
CONCEPCION, J.:
Manuel Gallardo and Pascual Gallardo were accused in the Court of First Instance of Nueva Ecija of the crime of murder. After due trial under a plea of not guilty, said court rendered a decision dated October 21, 1955, acquitting, Pascual Gallardo for insufficiency of the evidence, but convicting Manuel Gallardo of said offense and sentencing him to "reclusion temporal", to indemnify Fortunata Gisera, as "the only heir of Basilisa de Lota", in the sum of P6,000.00, and to pay one-half of the costs. By an order dated November 15, 1955, the dispositive part of said decision was amended so that the phrase "reclusion temporal" therein may read" reclusion perpetua." The case is before us on appeal taken by Manuel Gallardo.
The facts are accurately set forth in the decision of the lower court, from which we quote:jgc:chanrobles.com.ph
"The defendants are accused of the murder of Basilisa de Lota, allegedly committed on March 7, 1951, in the municipality of Jaen, Nueva Ecija. Basilisa de Lota and her daughter, Fortunata Gisera, arrived in Manila from Cebu in the year 1946. They had been recruited by an employment agency. After staying in the employment agency in Paco for less than one month, they were taken by defendants Pascual and Manuel Gallardo. Basilisa de Lota was hired as laundry woman of Magdalena Gallardo at 12 Kitanlad Street, Quezon City. Fortunata Gisera was employed as housemaid of Pascual Gallardo in his house in the municipality of Jaen, Nueva Ecija.
"Fortunata Gisera stayed for about one year in Jaen, and then lived with her mother in the house of Magdalena Gallardo at 12 Kitanlad Street, Quezon City. After staying for about two years with Magdalena Gallardo, Basilisa de Lota lived in a separate house at Santol, Quezon City, leaving Fortunata Gisera as housemaid in the house of Magdalena Gallardo. About 1949, Basilisa de Lota transferred to a house at Second Street, España Extension, where she stayed with her daughter, Fortunata Gisera, except for a short time when Fortunata lived with Lucio Gallardo. At this time, Basilisa de Lota was already pregnant. She used to be visited about three or more times a week by Manuel Gallardo, who stayed with her from about 1 o’clock in the afternoon to 10 o’clock in the evening. Sometimes, Manuel Gallardo slept with Basilisa de Lota. The two lived together as husband and wife, although Manuel Gallardo was not staying permanently in that house in Second Street, España Extension. Basilisa de Lota gave birth to two children, one a boy and the other a girl. These children are without doubt the children of Manuel Gallardo, because Manuel Gallardo used to visit Basilisa de Lota no less than three times a week in that house at Second Street, España Extension, and stayed there for a long time, even during the state of pregnancy of Basilisa de Lota. Manuel Gallardo, during this time, was shop superintendent in the transportation business owned by Magdalena Gallardo at Kitanlad, Quezon City. Manuel Gallardo declared that Basilisa de Lota used to go to the shop at Kitanlad, and asked him to go to the cine. But he refused to admit any relation with Basilisa de Lota.
"Sometime prior to March 7, 1951, when Gisera came from school, she found her mother crying. Her mother told her that the wife of Manuel Gallardo came and had quarreled with her. After this incident, Manuel Gallardo came about two or three times more to visit Basilisa de Lota. In March, 1951, Basilisa de Lota received a letter from Manuel Gallardo. That letter, however, had not been produced. Fortunata Gisera testified that she could not remember the contents of the letter. Be that as it may, the following morning, a bus of the Jaen Express, of which Manuel Gallardo was the shop superintendent, fetched Basilisa de Lota from her house at Second Street, España Extension. She told her daughter, Fortunata, that she was going to the province to get rice. The following morning, Manuel Gallardo came in a car to the house at Second Street and took his children, the boy and the girl, small brother and sister of Fortunata Gisera on her mothers’ side. Fortunata Gisera asked Manuel Gallardo where her mother was, and Manuel Gallardo told her that her mother was in Cabanatuan and that he gave her P100.00 so that she could engage in business. Fortunata Gisera wanted to go with Manuel Gallardo because of her small brother and sister, but Manuel Gallardo refused. Manuel Gallardo further said that he was taking the children to their mother. About two or three weeks later, Manuel Gallardo returned to the house at Second Street, España Extension, and brought Fortunata Gisera to the house of Amado Gallardo at 18 Galas Street, Quezon City. Fortunata Gisera asked Manuel Gallardo several times where her mother was, and every time Manuel Gallardo told her that her mother was in Cabanatuan. However, the last time that Fortunata Gisera asked Manuel Gallardo about her mother, Manuel Gallardo threatened her, and thereafter she did not ask Manuel Gallardo about the whereabouts of her mother.
"About the 25th of April, 1951, Fortunata Gisera escaped from the house of Amado Gallardo in Galas, and went to her aunt’s house at 71 Women’s Club Street, Quezon City. She then reported to the NBI and the PC the disappearance of her mother, Basilisa de Lota. After an investigation conducted by Sgt. Adan Fernando of the PC, the present information for murder was filed against the defendants Manuel Gallardo and Pascual Gallardo. In the course of the investigation made by Sgt. Fernando of the PC, several witnesses were interviewed by him who shed light on the disappearance of Basilisa de Lota. These witnesses, however, with the exception of Celestino Javier, had not been produced by the prosecution, probably because these witnesses refused to testify further for the prosecution after the long lapse of time. "Celestino Javier testified that he was a member of the temporary police; that he, Antonio Yambot, and Gavino Ramirez, both temporary police of the municipality of Jaen, saw a light flashed at a distance of about 600 meters from the TP barracks; that he, Gavino Ramirez, and Antonio Yambot proceeded cautiously to the place where the light came from, and they saw Manuel Gallardo and Pascual Gallardo standing, beside a woman who was prostrate; that the woman groaned and Manuel Gallardo hit her with a piece of wood on the head, and when the woman was already dead, they threw her into the well; that neither he nor his companions reported this matter to their superiors, because Manuel Gallardo and Pascual Gallardo threatened to implicate them if they would reveal what they had seen.
"On the 8th day of March 1951, a dead woman was found floating in a well in the barrio of Sapang, municipality of Jaen, Nueva Ecija. The dead woman was examined by Dr. Vicente Llado, president of the First Sanitary Division. According to this incident report, Exhibit C, he found that the cadaver had a fractured skull, with the brain substance coming out, and this was the immediate cause of death. The woman, according to Dr. Llado, was 28 years of age more or less, 4 feet 6 inches tall, with a scar on the left side of the neck. The woman was buried in the public cemetery of Jaen on that same afternoon. Nobody could identify the woman and unfortunately, either thru negligence or ignorance, no picture of the woman was taken.
"Pascual Gallardo declared that on the night of March 7, 1951, he did not leave his house in Jaen after dark because there was a curfew. He also declared that on that day, and for several days thereto, his brother Manuel Gallardo did not come to Jaen.
"Manuel Gallardo denied having killed Basilisa de Lota. He declared that he was in Manila on March 7, 1951. He admitted that the two children were taken by him and are now living with a relative of his in the municipality of Jaen."cralaw virtua1aw library
At the outset, appellant assails the action of the lower court in amending its decision, after the appellant had appealed therefrom, so as to sentence him to" reclusion perpetua" instead of "reclusion temporal", the penalty meted out in the original decision. The prosecution seeks to justify said amendment, upon the theory that it merely rectified an error which, in the light of the attending circumstances, was obviously a clerical one. This, however, is a moot question, for, in view of the appeal taken by Manuel Gallardo, this Court has plenary authority to impose such penalty as may be deemed proper, should he eventually be found guilty of any offense.
It is next urged that the lower court erred in assuming jurisdiction to decide this case, there being allegedly no evidence that Basilisa de Lota had been killed within the province of Nueva Ecija. The foregoing statement of fact belies this pretense. There is direct and positive evidence that a woman was killed in Jaen, Nueva Ecija, in the evening of March 7, 1951, although appellant is entitled to contest the credibility of the testimony given to this effect and the sufficiency of the evidence to establish the identity of said woman as the aforementioned Basilisa de Lota, a well as the alleged guilty participation of the appellant in her death. In this connection, His Honor, the trial Judge, had the following to say:jgc:chanrobles.com.ph
". . . . It is clear from the evidence, and this had not been seriously controverted by the defense, that Manuel Gallardo and Basilisa de Lota had lived together as husband and wife, or at the very least, that Basilisa de Lota was the mistress of Manuel Gallardo. As a result of that illicit relation, Basilisa de Lota had two children with Manuel Gallardo, one a boy of about two years and the other a girl of about 5 months, at the time of Basilisa’s disappearance on March 7, 1951. Manuel Gallardo was the shop superintendent of the Jaen Express. The day before March 7, Basilisa de Lota received a letter from Manuel Gallardo. Even if some doubt be cast upon the receipt of such a letter, still the fact remains that the following morning, March 7, between 10 and 11 o’clock, a bus of the Jaen Express, of which Manuel Gallardo was the shop superintendent, came to the house where Basilisa de Lota was living at Second Street, España Extension. Basilisa de Lota boarded the bus for Nueva Ecija. Since then, she has not been seen. The following day, a dead woman of the height and age of Basilisa de Lota was found floating in a well in Jaen, Nueva Ecija, the hometown of Manuel Gallardo. The morning also following the departure of Basilisa de Lota, or on March 8, 1951, Manuel Gallardo came in a car to the house at Second Street, and took his two children with Basilisa de Lota, leaving Fortunata Gisera alone. Manuel Gallardo told Fortunata Gisera that Basilisa de Lota was in Cabanatuan, and that she was engaged in a small business, and that he had given her a capital of P100.00. A few days thereafter, Manuel Gallardo returned to the house at Second Street, and brought Fortunata Gisera to the house of Amado Gallardo. To the inquiries of Fortunata Gisera as to the whereabouts of her mother, Manuel Gallardo always replied that she was in Nueva Ecija, and was engaged in business. The pleas of Fortunata Gisera to go to her mother in Cabanatuan were adamantly refused and rejected by Manuel Gallardo. Notwithstanding the relationship between Manuel Gallardo and Basilisa de Lota, and the fact that he had two children with her and that he had taken the two children and brought Fortunata Gisera to another house, and notwithstanding the apparent disappearance of Basilisa de Lota, Manuel Gallardo had not made any inquiries as to her whereabouts, and no report made by him to the constituted authorities. The acts of Manuel Gallardo show beyond a reasonable doubt, not only that he knew of the disappearance of Basilisa de Lota but of her death. If Basilisa de Lota had merely disappeared, and if Manuel Gallardo had neither participation nor knowledge in her disappearance, he would have made some inquiries as to her whereabouts. The guilty knowledge of Manual Gallardo can be clearly deduced from his acts.
"It is true that there is no positive identification that the woman who was found in the well and buried in the public cemetery of Jaen on March 8, 1951, was Basilisa de Lota; but the circumstances and some identification prove beyond reasonable doubt that this woman was Basilisa de Lota. The body was found on the morning of March 8, the day after Basilisa de Lota boarded the bus for Nueva Ecija. She could not be identified by a person in Jaen, proving she was utterly a stranger in that municipality. According to the report of Dr. Llado, the woman had a scar on the left side of the neck. Fortunata Gisera testified that her mother had a scar on the neck. According to the incident report of Dr. Llado, the woman was about 4 feet, 6 inches, aged 28. The picture of Basilisa de Lota, Exhibit A, shows that Basilisa de Lota was a small woman, less than 5 feet, and according to Fortunata she was 28 years old at the time of her disappearance. It must be admitted that these facts, standing alone, may not be sufficient to prove the identity of the dead woman who was found floating in the well at Sapang, Jaen, but taken together with the other facts and circumstances and with the fact that Basilisa de Lota came to Nueva Ecija on March 7, and that she had not been found thereafter, are sufficient to prove that the woman who was found in the well in Jaen was Basilisa de Lota, the mistress of Manuel Gallardo.
"The motive for his murder may also be deduced from the evidence. Manuel Gallardo is a married man, and had maintained illicit relations with Basilisa de Lota. He had two children with her, and had to maintain her at a house in Second Street, España Extension. His wife came to know of this relationship and had quarreled with Basilisa de Lota. Basilisa de Lota, on the other hand, used to go to the shop of the Jaen Express at Kitanlad Street and asked for Manuel Gallardo. Manuel Gallardo, to avoid further trouble with his wife and from being troubled by Basilisa de Lota, and probably having gotten tired of her, decided to dispose of her, and he conceived the idea of sending for her. Basilisa de Lota was fetched by a bus of the Jaen Express, was taken to Jaen, Nueva Ecija, and the same night was killed at Sapang, Jaen, Nueva Ecija."cralaw virtua1aw library
Indeed, if the dead body found in Jaen on March 8, 1951, were not that of Basilisa de Lota and appellant had nothing to do with her death, why did he pick up their children from her house in Quezon City, on that same date, saying that he would take them to their mother, although in fact he placed them under the custody of his brother-in-law? Why did he advise Fortunata Gisera, in reply to her inquiries as to the whereabouts of her mother, that she was in Nueva Ecija, engaged in business? Why did he refuse to allow Fortunata Gisera to visit her mother in Nueva Ecija? And why did he become so enraged at Fortunata as to threaten her with bodily harm, when she persisted in ascertaining the whereabouts of her mother?
We agree, therefore, with the lower court, that appellant is guilty of murder, qualified by evident premeditation, without any circumstance modifying the responsibility arising therefrom, and find no error in the decision appealed from, except insofar as it directs payment of the indemnity to Fortunata Gisera as "the only heir of Basilisa de Lota," for the record shows that she has, also, been survived by two illegitimate children, those she begot in consequence of her extramarital relations with appellant Manuel Gallardo.
Modified in the sense that said indemnity shall be paid to the heirs of the deceased, the aforementioned decision is, accordingly, affirmed in all other respects, with costs against Manuel Gallardo. It is so ordered.
Bengzon, Padilla, Bautista Angelo, Barrera, Gutierrez David, Paredes and Dizon, JJ., concur.
Labrador and Reyes, J.B.L., JJ., reserve their votes.
The facts are accurately set forth in the decision of the lower court, from which we quote:jgc:chanrobles.com.ph
"The defendants are accused of the murder of Basilisa de Lota, allegedly committed on March 7, 1951, in the municipality of Jaen, Nueva Ecija. Basilisa de Lota and her daughter, Fortunata Gisera, arrived in Manila from Cebu in the year 1946. They had been recruited by an employment agency. After staying in the employment agency in Paco for less than one month, they were taken by defendants Pascual and Manuel Gallardo. Basilisa de Lota was hired as laundry woman of Magdalena Gallardo at 12 Kitanlad Street, Quezon City. Fortunata Gisera was employed as housemaid of Pascual Gallardo in his house in the municipality of Jaen, Nueva Ecija.
"Fortunata Gisera stayed for about one year in Jaen, and then lived with her mother in the house of Magdalena Gallardo at 12 Kitanlad Street, Quezon City. After staying for about two years with Magdalena Gallardo, Basilisa de Lota lived in a separate house at Santol, Quezon City, leaving Fortunata Gisera as housemaid in the house of Magdalena Gallardo. About 1949, Basilisa de Lota transferred to a house at Second Street, España Extension, where she stayed with her daughter, Fortunata Gisera, except for a short time when Fortunata lived with Lucio Gallardo. At this time, Basilisa de Lota was already pregnant. She used to be visited about three or more times a week by Manuel Gallardo, who stayed with her from about 1 o’clock in the afternoon to 10 o’clock in the evening. Sometimes, Manuel Gallardo slept with Basilisa de Lota. The two lived together as husband and wife, although Manuel Gallardo was not staying permanently in that house in Second Street, España Extension. Basilisa de Lota gave birth to two children, one a boy and the other a girl. These children are without doubt the children of Manuel Gallardo, because Manuel Gallardo used to visit Basilisa de Lota no less than three times a week in that house at Second Street, España Extension, and stayed there for a long time, even during the state of pregnancy of Basilisa de Lota. Manuel Gallardo, during this time, was shop superintendent in the transportation business owned by Magdalena Gallardo at Kitanlad, Quezon City. Manuel Gallardo declared that Basilisa de Lota used to go to the shop at Kitanlad, and asked him to go to the cine. But he refused to admit any relation with Basilisa de Lota.
"Sometime prior to March 7, 1951, when Gisera came from school, she found her mother crying. Her mother told her that the wife of Manuel Gallardo came and had quarreled with her. After this incident, Manuel Gallardo came about two or three times more to visit Basilisa de Lota. In March, 1951, Basilisa de Lota received a letter from Manuel Gallardo. That letter, however, had not been produced. Fortunata Gisera testified that she could not remember the contents of the letter. Be that as it may, the following morning, a bus of the Jaen Express, of which Manuel Gallardo was the shop superintendent, fetched Basilisa de Lota from her house at Second Street, España Extension. She told her daughter, Fortunata, that she was going to the province to get rice. The following morning, Manuel Gallardo came in a car to the house at Second Street and took his children, the boy and the girl, small brother and sister of Fortunata Gisera on her mothers’ side. Fortunata Gisera asked Manuel Gallardo where her mother was, and Manuel Gallardo told her that her mother was in Cabanatuan and that he gave her P100.00 so that she could engage in business. Fortunata Gisera wanted to go with Manuel Gallardo because of her small brother and sister, but Manuel Gallardo refused. Manuel Gallardo further said that he was taking the children to their mother. About two or three weeks later, Manuel Gallardo returned to the house at Second Street, España Extension, and brought Fortunata Gisera to the house of Amado Gallardo at 18 Galas Street, Quezon City. Fortunata Gisera asked Manuel Gallardo several times where her mother was, and every time Manuel Gallardo told her that her mother was in Cabanatuan. However, the last time that Fortunata Gisera asked Manuel Gallardo about her mother, Manuel Gallardo threatened her, and thereafter she did not ask Manuel Gallardo about the whereabouts of her mother.
"About the 25th of April, 1951, Fortunata Gisera escaped from the house of Amado Gallardo in Galas, and went to her aunt’s house at 71 Women’s Club Street, Quezon City. She then reported to the NBI and the PC the disappearance of her mother, Basilisa de Lota. After an investigation conducted by Sgt. Adan Fernando of the PC, the present information for murder was filed against the defendants Manuel Gallardo and Pascual Gallardo. In the course of the investigation made by Sgt. Fernando of the PC, several witnesses were interviewed by him who shed light on the disappearance of Basilisa de Lota. These witnesses, however, with the exception of Celestino Javier, had not been produced by the prosecution, probably because these witnesses refused to testify further for the prosecution after the long lapse of time. "Celestino Javier testified that he was a member of the temporary police; that he, Antonio Yambot, and Gavino Ramirez, both temporary police of the municipality of Jaen, saw a light flashed at a distance of about 600 meters from the TP barracks; that he, Gavino Ramirez, and Antonio Yambot proceeded cautiously to the place where the light came from, and they saw Manuel Gallardo and Pascual Gallardo standing, beside a woman who was prostrate; that the woman groaned and Manuel Gallardo hit her with a piece of wood on the head, and when the woman was already dead, they threw her into the well; that neither he nor his companions reported this matter to their superiors, because Manuel Gallardo and Pascual Gallardo threatened to implicate them if they would reveal what they had seen.
"On the 8th day of March 1951, a dead woman was found floating in a well in the barrio of Sapang, municipality of Jaen, Nueva Ecija. The dead woman was examined by Dr. Vicente Llado, president of the First Sanitary Division. According to this incident report, Exhibit C, he found that the cadaver had a fractured skull, with the brain substance coming out, and this was the immediate cause of death. The woman, according to Dr. Llado, was 28 years of age more or less, 4 feet 6 inches tall, with a scar on the left side of the neck. The woman was buried in the public cemetery of Jaen on that same afternoon. Nobody could identify the woman and unfortunately, either thru negligence or ignorance, no picture of the woman was taken.
"Pascual Gallardo declared that on the night of March 7, 1951, he did not leave his house in Jaen after dark because there was a curfew. He also declared that on that day, and for several days thereto, his brother Manuel Gallardo did not come to Jaen.
"Manuel Gallardo denied having killed Basilisa de Lota. He declared that he was in Manila on March 7, 1951. He admitted that the two children were taken by him and are now living with a relative of his in the municipality of Jaen."cralaw virtua1aw library
At the outset, appellant assails the action of the lower court in amending its decision, after the appellant had appealed therefrom, so as to sentence him to" reclusion perpetua" instead of "reclusion temporal", the penalty meted out in the original decision. The prosecution seeks to justify said amendment, upon the theory that it merely rectified an error which, in the light of the attending circumstances, was obviously a clerical one. This, however, is a moot question, for, in view of the appeal taken by Manuel Gallardo, this Court has plenary authority to impose such penalty as may be deemed proper, should he eventually be found guilty of any offense.
It is next urged that the lower court erred in assuming jurisdiction to decide this case, there being allegedly no evidence that Basilisa de Lota had been killed within the province of Nueva Ecija. The foregoing statement of fact belies this pretense. There is direct and positive evidence that a woman was killed in Jaen, Nueva Ecija, in the evening of March 7, 1951, although appellant is entitled to contest the credibility of the testimony given to this effect and the sufficiency of the evidence to establish the identity of said woman as the aforementioned Basilisa de Lota, a well as the alleged guilty participation of the appellant in her death. In this connection, His Honor, the trial Judge, had the following to say:jgc:chanrobles.com.ph
". . . . It is clear from the evidence, and this had not been seriously controverted by the defense, that Manuel Gallardo and Basilisa de Lota had lived together as husband and wife, or at the very least, that Basilisa de Lota was the mistress of Manuel Gallardo. As a result of that illicit relation, Basilisa de Lota had two children with Manuel Gallardo, one a boy of about two years and the other a girl of about 5 months, at the time of Basilisa’s disappearance on March 7, 1951. Manuel Gallardo was the shop superintendent of the Jaen Express. The day before March 7, Basilisa de Lota received a letter from Manuel Gallardo. Even if some doubt be cast upon the receipt of such a letter, still the fact remains that the following morning, March 7, between 10 and 11 o’clock, a bus of the Jaen Express, of which Manuel Gallardo was the shop superintendent, came to the house where Basilisa de Lota was living at Second Street, España Extension. Basilisa de Lota boarded the bus for Nueva Ecija. Since then, she has not been seen. The following day, a dead woman of the height and age of Basilisa de Lota was found floating in a well in Jaen, Nueva Ecija, the hometown of Manuel Gallardo. The morning also following the departure of Basilisa de Lota, or on March 8, 1951, Manuel Gallardo came in a car to the house at Second Street, and took his two children with Basilisa de Lota, leaving Fortunata Gisera alone. Manuel Gallardo told Fortunata Gisera that Basilisa de Lota was in Cabanatuan, and that she was engaged in a small business, and that he had given her a capital of P100.00. A few days thereafter, Manuel Gallardo returned to the house at Second Street, and brought Fortunata Gisera to the house of Amado Gallardo. To the inquiries of Fortunata Gisera as to the whereabouts of her mother, Manuel Gallardo always replied that she was in Nueva Ecija, and was engaged in business. The pleas of Fortunata Gisera to go to her mother in Cabanatuan were adamantly refused and rejected by Manuel Gallardo. Notwithstanding the relationship between Manuel Gallardo and Basilisa de Lota, and the fact that he had two children with her and that he had taken the two children and brought Fortunata Gisera to another house, and notwithstanding the apparent disappearance of Basilisa de Lota, Manuel Gallardo had not made any inquiries as to her whereabouts, and no report made by him to the constituted authorities. The acts of Manuel Gallardo show beyond a reasonable doubt, not only that he knew of the disappearance of Basilisa de Lota but of her death. If Basilisa de Lota had merely disappeared, and if Manuel Gallardo had neither participation nor knowledge in her disappearance, he would have made some inquiries as to her whereabouts. The guilty knowledge of Manual Gallardo can be clearly deduced from his acts.
"It is true that there is no positive identification that the woman who was found in the well and buried in the public cemetery of Jaen on March 8, 1951, was Basilisa de Lota; but the circumstances and some identification prove beyond reasonable doubt that this woman was Basilisa de Lota. The body was found on the morning of March 8, the day after Basilisa de Lota boarded the bus for Nueva Ecija. She could not be identified by a person in Jaen, proving she was utterly a stranger in that municipality. According to the report of Dr. Llado, the woman had a scar on the left side of the neck. Fortunata Gisera testified that her mother had a scar on the neck. According to the incident report of Dr. Llado, the woman was about 4 feet, 6 inches, aged 28. The picture of Basilisa de Lota, Exhibit A, shows that Basilisa de Lota was a small woman, less than 5 feet, and according to Fortunata she was 28 years old at the time of her disappearance. It must be admitted that these facts, standing alone, may not be sufficient to prove the identity of the dead woman who was found floating in the well at Sapang, Jaen, but taken together with the other facts and circumstances and with the fact that Basilisa de Lota came to Nueva Ecija on March 7, and that she had not been found thereafter, are sufficient to prove that the woman who was found in the well in Jaen was Basilisa de Lota, the mistress of Manuel Gallardo.
"The motive for his murder may also be deduced from the evidence. Manuel Gallardo is a married man, and had maintained illicit relations with Basilisa de Lota. He had two children with her, and had to maintain her at a house in Second Street, España Extension. His wife came to know of this relationship and had quarreled with Basilisa de Lota. Basilisa de Lota, on the other hand, used to go to the shop of the Jaen Express at Kitanlad Street and asked for Manuel Gallardo. Manuel Gallardo, to avoid further trouble with his wife and from being troubled by Basilisa de Lota, and probably having gotten tired of her, decided to dispose of her, and he conceived the idea of sending for her. Basilisa de Lota was fetched by a bus of the Jaen Express, was taken to Jaen, Nueva Ecija, and the same night was killed at Sapang, Jaen, Nueva Ecija."cralaw virtua1aw library
Indeed, if the dead body found in Jaen on March 8, 1951, were not that of Basilisa de Lota and appellant had nothing to do with her death, why did he pick up their children from her house in Quezon City, on that same date, saying that he would take them to their mother, although in fact he placed them under the custody of his brother-in-law? Why did he advise Fortunata Gisera, in reply to her inquiries as to the whereabouts of her mother, that she was in Nueva Ecija, engaged in business? Why did he refuse to allow Fortunata Gisera to visit her mother in Nueva Ecija? And why did he become so enraged at Fortunata as to threaten her with bodily harm, when she persisted in ascertaining the whereabouts of her mother?
We agree, therefore, with the lower court, that appellant is guilty of murder, qualified by evident premeditation, without any circumstance modifying the responsibility arising therefrom, and find no error in the decision appealed from, except insofar as it directs payment of the indemnity to Fortunata Gisera as "the only heir of Basilisa de Lota," for the record shows that she has, also, been survived by two illegitimate children, those she begot in consequence of her extramarital relations with appellant Manuel Gallardo.
Modified in the sense that said indemnity shall be paid to the heirs of the deceased, the aforementioned decision is, accordingly, affirmed in all other respects, with costs against Manuel Gallardo. It is so ordered.
Bengzon, Padilla, Bautista Angelo, Barrera, Gutierrez David, Paredes and Dizon, JJ., concur.
Labrador and Reyes, J.B.L., JJ., reserve their votes.
