November 1962 - Philippine Supreme Court Decisions/Resolutions
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G.R. No. L-16491 November 29, 1962 - PEOPLE OF THE PHIL. v. SIMEON PAULIN, ET AL. :
EN BANC
[G.R. No. L-16491. November 29, 1962.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SIMEON PAULIN, MATIAS POROC, GREGORIO MAGABOYBOY and MANUEL YONGCO, Defendants-Appellants.
Solicitor General for Plaintiff-Appellee.
Francisco E. F. Remotigue, for Defendants-Appellants.
D E C I S I O N
PADILLA, J.:
Appeal from a judgment rendered by the Court of First Instance of Misamis Occidental in criminal case No. 3028 which the court of Appeals certified to t his Court (CA-G.R. No. 21800-R) for final determination under the section 17 (b) of the Judiciary Act of 1948, as amended. The dispositive part of the judgment appealed from is as follows:jgc:chanrobles.com.ph
"In view of the foregoing, the Court finds and so holds that the four accused above-mentioned, namely, Simeon Paulin, Gregorio Bagaboyboy, Matias Poroc and Manuel Yongco are all guilty of the crime of murder charged in the information defined and penalized in Article 248 and they are hereby sentenced to suffer each the penalty of TWENTY (20) YEARS of reclusion temporal, to indemnify the heirs of Apolinario Tapayan in the amount of P3,000.00, to the accessory penalties provided for by law and to pay each the proportional costs of proceeding."cralaw virtua1aw library
The evidence discloses that Apolinario Tapayan owned a homestead (Lot No. 2096) containing an area of twelve hectares adjoining Lot No. 2594, belonging to Ceferina Cabatingan or Kabiling, mother of Simeon Paulin. Since liberation, he and his family consisting of three children, his wife Felisa Quimbo and a mistress named Narcisa Mahilawan resided in Sitio Lower Usugon, Bonifacio, Misamis Occidental, and he was in possession of the homestead (Exhibit E) until 1948. In 1949, he failed to work on the homestead because Simeon Paulin, with the aid of his brother-in-law Gregorio Bagaboyboy or Bagalay and tenants Matias Poroc, younger brother of Gregorio, and Manuel Yongco, drove him away from the homestead. As a result of the strained relations between Apolinario Tapayan and Simeon Paulin, on 6 August 1949 in the Justice of the Peace Court of Bonifacio, Misamis Occidental, the former filed against the latter, Rafael Paulin and Gregorio Bagaboyboy a complaint for grave coercion (Exhibit D-1) and in the same court on 24 August 1949, the latter and Rafael Paulin filed against the former a complaint for the same crime of grave coercion (Exhibit C-1). In the morning or 16 December 1949, just after he had overheard Simeon Paulin say to Gregorio Bagaboyboy or Bagalay "Dorio, let us kill Apolinar to eliminate him" while he was in the porch of the granary where he and his family lived, Damian Baranela, tenant of Paulin’s mother Ceferina Cabatingan or Kabiling, went to the house of Apolinario Tapayan and warned him to be careful because of what he had heard from Simeon Paulin. After hearing the information from Damian Baranela, Tapayan remarked: "Don’t believe that Damian, I know they will not do that." The next day, 17 December, at about 7:00 p.m. in the market of Lower Usugan, Apolinario Tapayan asked Bernardo Alimorin to let him have his flashlight, a conversation heard by Alberto Megreño or Roberto Madriño and Matias Poroc who were just two meters away from them. Matias Poroc immediately disappeared from the place where he was after he saw Bernardo Alimorin hand his flashlight to Apolinario Tapayan. The latter arrived home from the market at about 7:30 that evening and when he was about to go out to return the flashlight to Bernardo Alimorin, Apolinario Tapayan told his mistress Narcisa Mahidlawan to prepare his dinner. While she was cooking, she heard gun reports (about 7 detonations) (Exhibit 1). She immediately went to the house of Bernardo Alimorin to inquire for Apolinario. At a distance of about seven meters from where she stood behind banana clumps, guava trees and bushes, she saw Simeon Pauli, Gregorio Bagaboyboy or Bagalay, Matias Poroc and Manuel Yongco walk hurriedly in single file from the house in the opposite direction. Simeon Paulin carrying an automatic shotgun (Exhibit A) headed the group followed by Manuel Yongco carrying a large flashlight, Gregorio Bagaboyboy or Bagalay armed with a carbine and Matias Poroc holding a rifle and a smaller flashlight. Upon being informed by the wife of Alimorin that Apolinario Tapayan was not in her house she rushed to the market where she asked Eugenio Tapayan if Apolinario was there. Hearing a negative answer she borrowed a lap from one Ariang and on her way home she passed again by the place of Bernardo Alimorin. Near the latter’s house and almost 90 meters from the market, at about 8:00 o’clock that evening, she found Apolinario Tapayan lying prone on his back already dead and riddled with bullets. She placed the lighted lamp near his head and hurriedly returned home to inform Felisa Quimbo of her husband’s death. The following morning, 18 December 1949, she went to town to report to the municipal authorities.
The post-mortem examination conducted by Dr. Godofredo Ozarraga, then charity physician of Bonifacio, Misamis Occidental, on the cadaver of the deceased shows:chanrob1es virtual 1aw library
1. A circular wound, with a circumference of slightly bigger than a twenty-centavo piece, located at the upper-left side surface of the neck and just below and external to the angle of the lower jaw. This wound penetrated the skull and opened out the cranium making a longitudinal hole or opening of about five inches in length and three inches in diameter and destroying the frontal and parietal bones near its longitudinal sutures. The brain is spilled out of the cranium.
2. Mutilated wound of the upper-third of the left forearm, mutilating the muscles and bones and nearly amputating it.
3. Four penetrating wounds, all about one-half centimeter in diameter, located at the dorsal surface of the lower-third of the left arm.
4. Five penetrating wounds, all about one-half centimeter in diameter, located at the left lateral-lumbar region of the abdomen.
5. Two penetrating wounds, all about one-half centimeter in diameter, at the upper surface of the left thigh-interior surface.
6. One penetrating wound, about one centimeter in diameter, at the upper surface of the left buttocks.
7. Mutilated wound of the lower-third of the left leg, mutilating the muscles, fracturing the bones and nearly amputating it. (Exhibit F.)
On 27 December 1949, Catalina Largo found a shotgun, Browning, caliber 12 ga. SN-159394 (Exhibit A), in a pond in Balocot, Molave, Zamboanga del Norte, while draining water from it preparatory to catching mudfish. Her husband Hermogenes Gusto, who was dead at the time of the trial, also picked up a carbine, caliber .30 M1, Inland SN-946481, near the same place as she was bathing his carabao in the rice field. Both firearms were surrendered by the couple to Lt. Alfredo Caoili, PC detachment commander at Molave, Zamboanga del Norte, who turned them over to his immediate chief Captain Benjamin C. Berenguer, commanding officer, 73rd PC Company, Pagadian, Zamboanga del Norte.
Damian Baranela testifies that few minutes after hearing the gun shots he noticed that Simeon Paulin, Gregorio Bagaboyboy, Matias Poroc and Manuel Yongco arrived in the house of Paulin. After they had told the wife of Gregorio Bagaboyboy to put out the light in her house, they proceeded to the house of Baranela whom they also told: "Damian, put out the light of your lamp, Apolinario Tapayan is already dead." He at first refused to comply because of his sick child, but when he was threatened that he would be the second "Inar" (Apolinario Tapayan) to be killed if he refused, he (Damian Baranela) put out the light. He further testifies that while he was sitting in the porch of the granary he heard Simeon Paulin warn his companions: "Yong (Gregorio Bagaboyboy), do not go up, the relatives of Inar (Apolinario Tapayan) might come, we will just go to Torqui (Eutiquiano, elder brother of Simeon Paulin) in Tambulig and inform him," to which Bagaboyboy replied: "Morning, we just pass via Balocot because it is nearer to Tambulig." Baranela also confirms the testimony of Narcisa Mahidlawan to the effect that Simeon Paulin was carrying with him an automatic shotgun (Exhibit A), the same shotgun that he used to see Simeon Paulin carry wherever he went; that Gregorio Bagaboyboy or Bagalay was armed with a carbine while Matias Poroc was carrying a rifle. Manuel Yongco did not have firearm with him.
Alibi is the appellants’ defense. Simeon Paulin denied what Narcisa Mahidlawan, Damian Baranela and Alberto Megreño had testified. He testified that after shelling corn from the cobs the whole day of 17 December 1949 at 4:00 o’clock in the afternoon he went to Tambulig, a barrio of Molave, Zamboanga, and in the house of Rufino Ramos he played mahjong with him and Ceferino Tohoy and Leonardo Menoria from 6:00 o’clock in the afternoon until midnight and stopped playing at 8:00 o’clock for a while to take dinner. At 12:00 midnight he went to his brother’s (Eutiquiano’s) house 60 meters away from Ramos’ house to sleep. The following morning, 18 December, he proceeded to Ozamis City in time for Christmas season to visit with another brother and claimed that it was on his way to Li-loan where he heard from people that Apolinario Tapayan had been killed. Arrested in Ozamis City on 23 December 1949, he returned to Lower Usugan after posting a bond. Rufino Ramos, a childhood friend of Simeon Paulin and former councilor of Molave, Zamboanga, and Leonardo Menoria, a businessman of Pagadian, Zamboanga del Norte, who was accused of estafa, corroborated the testimony of Simeon Paulin and asserted that the latter, who was in Tambulig playing mahjong, could not have been in Lower usugan when the crime was committed on 17 December 1949.
Gregorio Bagaboyboy or Bagalay, brother-in-law of Simeon Paulin and half brother of Matias Poroc, testified that in 1949 he was living with his in-laws, the Paulins; that from 6:00 to 12:00 p.m. of 17 December 1949 he did not leave his house, because his wife who had just delivered was sick and profusely bleeding and that his mother did the errands for the family. He confirmed the testimony of his brother-in-law Simeon Paulin that the latter was in Tambulig, Molave, Zamboanga, while Manuel Yongco was not at home that day. He admitted, however, that Matias Poroc was in the market place in Usugan playing "hantac."cralaw virtua1aw library
In support of Matias Poroc’s alibi, Angeles Gongob, a farmer and neighbor of Poroc testified that he (Poroc) was at the market from 5:30 to 8:00 p.m. of 16 December 1949 playing "hantac" with Juan Gopoc and that he (Poroc) went home with Angeles Gongob and Pedro Gopoc immediately after hearing the gun shots in succession.
Supporting the alibi of Manuel Yongco, Capistrano Lacua, a barrio lieutenant of Burakan, Bonifacio, Misamis Occidental, testified that on 16 December 1949 Manuel Yongco was with him in the mangrove swamps of Burakan collecting nipa palms and that during the whole day of 17 December 1949 they were again together making nipa shingles at Lacua’s yard; that Yongco stayed late in his (Lacua’s) house until midnight where he drunk until midnight when he went to sleep in the house of Leonardo Lacua, his (Capistrano’s) brother.
The defense contends that that part of the testimony of Narcisa Mahidlawan pointing to the appellants as those who left the yard of Alimorin at 7:30 o’clock that evening immediately following the gun reports cannot be believed because of her poor eyesight; it was dark and their flashlights were focused forward or towards the ground. Upon petition the trial court ordered Dr. Jose Moreno to examine the eyes of Narcisa Mahidlawan to determine whether or not her eyesight was defective. Before submitting herself to an examination she admitted that the condition of her eyes in 1957 was the same as in 1949. The medical report on the examination of her eyesight was not submitted. It does not appear why it was not submitted. Her alleged defective eyesight was, however, disproved in open court by the presiding judge himself who asked her to describe a house about 170 or 200 meters away from the courthouse. At that distance she was able to see and distinguish that the painted house was made of cement.
The alibi of Simeon Paulin cannot prevail over the positive identification of him and his co-appellants by Mahidlawan and Baranela.
After testifying that his wife delivered on 19 October 1949, Gregorio Bagaboyboy or Bagalay tried to show that, a farmer that he was, he stayed home tending to his wife’s needs from 19 October to 17 December 1949. His wife Concepcion confirmed that she was treated by an herb doctor whose name and whereabouts she could not recall. If it were true that his wife was seriously ill on 17 December 1949 on account of hemorrhage as she herself so testified, why did his mother- in-law prolong her stay in Ozamis City for about two weeks more when according to them they sent her a note telling her to come home immediately. The fact that she did not go home to Usugan at once but instead returned home only after the arrest of her son and son-in-law belies his alibi. He did not tell the truth when he testified that he gave P0.50 financial help to the bereaved family of Apolinario Tapayan through Narcisa Mahidlawan. No such amount was ever given.
The presence of Matias Poroc at the market place, as testified to by Angeles Gongob, a witness for him, corroborates and supports the theory of the prosecution that upon seeing Apolinario Tapayan take the flashlight from Bernardo Alimorin, he (Poroc) disappeared and went to his landlord, Simeon Paulin, to inform him of Apolinario Tapayan’s movement and thus insure the killing to follow.
The alibi of Manuel Yongco cannot be given credence. As he had known Capistrano Lacua two days before, it is difficult to believe that the latter would entrust a canoe to him (Yongco) and help him gather nipa and make shingles.
The defense also contends that the testimony of Damian Baranela should not be believed, because he was driven away from the Paulins’ barn and the land he was working on, and was a confirmed gambler and seasoned thief who had every reason for hating the Paulins. The contention is without merit, for the reason that as early as 18 December 1949, before Simeon Paulin’s arrest, he was approached in his house (barn) by the former to ask him to be his witness and to testify that he (Simeon Paulin) was not in Lower Usugan but was in Tambulig on 17 December 1949. Baranela refused the request. He testified in court despite an attempt against his life by Paulin and threat of the loss of the land he worked on and of the barn where he and his family lived.
It is apparent that Damian Baranela was driven away from the barn because he refused to testify for Simeon Paulin and not because he stole chicken, eggs and corn of the Paulins. If it were for being a thief that he was driven away from the barn, he should have been prosecuted therefor or driven away by Simeon Paulin long before December 1949. Simeon Paulin testified that Baranela had been stealing for sometime already, as denounced by a tenant of his who informed him that before December 1949, he (tenant) bought corn from Baranela that had been stolen by the latter from the barn where he lived. Hence, it is safe to concluded that when Baranela refused to testify for Simeon Paulin, he was driven away from the barn by the Paulins after the latter learned that Baranela was listed as a prosecution witness.
Another point urged by the defense in their brief is that the accused Simeon Paulin could not have committed the crime of murder because it was not proven that he ever possessed or owned any shotgun or rifle. The evidence license but the fact does not disprove that he had and in possession of a shotgun. Reliable witnesses who had long resided in Lower Usugan testified that before 17 December 1949 Simeon Paulin owned a shotgun that was identified by them to his. Narcisa Mahidlawan testified that on one occasion Simeon Paulin fired a shotgun in the air to intimidate them while she and Francisco Tapayan, a brother of Apolinario, were harvesting palay in the land planted by the latter. Alberto Megreño confirmed the incident testified to by Narcisa Mahidlawan, and further testified that he knew very well all the accused and the deceased long before liberation. He and Damian Baranela identified the rusty shotgun during the trial to be that of Simeon Paulin which he carried wherever he went, and used to intimidate persons involved in disputes affecting his family’s lands. As a matter of fact, Megreño testified that he was with Simeon Paulin several times, like Damian Baranela who had also been with him twice before, when they went shooting monkeys in the forest near Lower Usugan. Megreño confirmed the fact that after 7:00 p.m. of 17 December 1949 while taking his supper he heard detonations from a shotgun and rifle and that after the said incident Simeon Paulin was never seen bringing with him that shotgun everytime he passed by his house.
Moreover, Mr. Manzanares, the NBI expert who made the ballistic examination of the firearms and used empty shells (cartridges) testified that, of the five empty shells (Exhibits L-1 to L-5) recovered by the Chief of Police of Bonifacio in the vicinity where the cadaver of the deceased Apolinario Tapayan was found, two empty cartridges (Exhibits L-2 and L-3) were ballistically found to have been fired from the same shotgun (Exhibit A). At any rate, corroborating on the post-mortem findings of Dr. Ozarraga, the charity physician who declared that the wounds on the cadaver of the deceased were caused by bullets fired from different guns (Exhibits F, G & H), Major Abenir C. Bornales, PC provincial commander of Misamis Occidental, an authority on musketry, gunshot wounds and firearms, testified that he is inclined to believe that the wounds described in paragraph 1 of the post-mortem report (Exhibit F) inflicted on the head of the deceased which has an entry of the size of a 20-centavo coin and with an exit of about five by three inches in diameter, very much larger than a 20-centavo coin, must have been caused by a gun of caliber 30 such as a rifle. The Chief of Police of Bonifacio had the same opinion when he testified that when he examined the cadaver on the spot where it was found, he noticed that there were two kinds of gunshot wounds — one smaller and the other larger. There is, therefore, no doubt that the wounds inflicted on the deceased were caused by the shotgun and a carbine for which the appellants are to be held responsible.
There being no mitigating nor aggravating circumstance, the penalty to be imposed upon each of the appellants, pursuant to article 248 of the Revised Penal Code, is the medium period or reclusion perpetua.
With the modification as to the principal penalty only which is reclusion perpetua, the rest of the judgment appealed from is affirmed, with the proportional costs in both instances against the appellants.
Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
"In view of the foregoing, the Court finds and so holds that the four accused above-mentioned, namely, Simeon Paulin, Gregorio Bagaboyboy, Matias Poroc and Manuel Yongco are all guilty of the crime of murder charged in the information defined and penalized in Article 248 and they are hereby sentenced to suffer each the penalty of TWENTY (20) YEARS of reclusion temporal, to indemnify the heirs of Apolinario Tapayan in the amount of P3,000.00, to the accessory penalties provided for by law and to pay each the proportional costs of proceeding."cralaw virtua1aw library
The evidence discloses that Apolinario Tapayan owned a homestead (Lot No. 2096) containing an area of twelve hectares adjoining Lot No. 2594, belonging to Ceferina Cabatingan or Kabiling, mother of Simeon Paulin. Since liberation, he and his family consisting of three children, his wife Felisa Quimbo and a mistress named Narcisa Mahilawan resided in Sitio Lower Usugon, Bonifacio, Misamis Occidental, and he was in possession of the homestead (Exhibit E) until 1948. In 1949, he failed to work on the homestead because Simeon Paulin, with the aid of his brother-in-law Gregorio Bagaboyboy or Bagalay and tenants Matias Poroc, younger brother of Gregorio, and Manuel Yongco, drove him away from the homestead. As a result of the strained relations between Apolinario Tapayan and Simeon Paulin, on 6 August 1949 in the Justice of the Peace Court of Bonifacio, Misamis Occidental, the former filed against the latter, Rafael Paulin and Gregorio Bagaboyboy a complaint for grave coercion (Exhibit D-1) and in the same court on 24 August 1949, the latter and Rafael Paulin filed against the former a complaint for the same crime of grave coercion (Exhibit C-1). In the morning or 16 December 1949, just after he had overheard Simeon Paulin say to Gregorio Bagaboyboy or Bagalay "Dorio, let us kill Apolinar to eliminate him" while he was in the porch of the granary where he and his family lived, Damian Baranela, tenant of Paulin’s mother Ceferina Cabatingan or Kabiling, went to the house of Apolinario Tapayan and warned him to be careful because of what he had heard from Simeon Paulin. After hearing the information from Damian Baranela, Tapayan remarked: "Don’t believe that Damian, I know they will not do that." The next day, 17 December, at about 7:00 p.m. in the market of Lower Usugan, Apolinario Tapayan asked Bernardo Alimorin to let him have his flashlight, a conversation heard by Alberto Megreño or Roberto Madriño and Matias Poroc who were just two meters away from them. Matias Poroc immediately disappeared from the place where he was after he saw Bernardo Alimorin hand his flashlight to Apolinario Tapayan. The latter arrived home from the market at about 7:30 that evening and when he was about to go out to return the flashlight to Bernardo Alimorin, Apolinario Tapayan told his mistress Narcisa Mahidlawan to prepare his dinner. While she was cooking, she heard gun reports (about 7 detonations) (Exhibit 1). She immediately went to the house of Bernardo Alimorin to inquire for Apolinario. At a distance of about seven meters from where she stood behind banana clumps, guava trees and bushes, she saw Simeon Pauli, Gregorio Bagaboyboy or Bagalay, Matias Poroc and Manuel Yongco walk hurriedly in single file from the house in the opposite direction. Simeon Paulin carrying an automatic shotgun (Exhibit A) headed the group followed by Manuel Yongco carrying a large flashlight, Gregorio Bagaboyboy or Bagalay armed with a carbine and Matias Poroc holding a rifle and a smaller flashlight. Upon being informed by the wife of Alimorin that Apolinario Tapayan was not in her house she rushed to the market where she asked Eugenio Tapayan if Apolinario was there. Hearing a negative answer she borrowed a lap from one Ariang and on her way home she passed again by the place of Bernardo Alimorin. Near the latter’s house and almost 90 meters from the market, at about 8:00 o’clock that evening, she found Apolinario Tapayan lying prone on his back already dead and riddled with bullets. She placed the lighted lamp near his head and hurriedly returned home to inform Felisa Quimbo of her husband’s death. The following morning, 18 December 1949, she went to town to report to the municipal authorities.
The post-mortem examination conducted by Dr. Godofredo Ozarraga, then charity physician of Bonifacio, Misamis Occidental, on the cadaver of the deceased shows:chanrob1es virtual 1aw library
1. A circular wound, with a circumference of slightly bigger than a twenty-centavo piece, located at the upper-left side surface of the neck and just below and external to the angle of the lower jaw. This wound penetrated the skull and opened out the cranium making a longitudinal hole or opening of about five inches in length and three inches in diameter and destroying the frontal and parietal bones near its longitudinal sutures. The brain is spilled out of the cranium.
2. Mutilated wound of the upper-third of the left forearm, mutilating the muscles and bones and nearly amputating it.
3. Four penetrating wounds, all about one-half centimeter in diameter, located at the dorsal surface of the lower-third of the left arm.
4. Five penetrating wounds, all about one-half centimeter in diameter, located at the left lateral-lumbar region of the abdomen.
5. Two penetrating wounds, all about one-half centimeter in diameter, at the upper surface of the left thigh-interior surface.
6. One penetrating wound, about one centimeter in diameter, at the upper surface of the left buttocks.
7. Mutilated wound of the lower-third of the left leg, mutilating the muscles, fracturing the bones and nearly amputating it. (Exhibit F.)
On 27 December 1949, Catalina Largo found a shotgun, Browning, caliber 12 ga. SN-159394 (Exhibit A), in a pond in Balocot, Molave, Zamboanga del Norte, while draining water from it preparatory to catching mudfish. Her husband Hermogenes Gusto, who was dead at the time of the trial, also picked up a carbine, caliber .30 M1, Inland SN-946481, near the same place as she was bathing his carabao in the rice field. Both firearms were surrendered by the couple to Lt. Alfredo Caoili, PC detachment commander at Molave, Zamboanga del Norte, who turned them over to his immediate chief Captain Benjamin C. Berenguer, commanding officer, 73rd PC Company, Pagadian, Zamboanga del Norte.
Damian Baranela testifies that few minutes after hearing the gun shots he noticed that Simeon Paulin, Gregorio Bagaboyboy, Matias Poroc and Manuel Yongco arrived in the house of Paulin. After they had told the wife of Gregorio Bagaboyboy to put out the light in her house, they proceeded to the house of Baranela whom they also told: "Damian, put out the light of your lamp, Apolinario Tapayan is already dead." He at first refused to comply because of his sick child, but when he was threatened that he would be the second "Inar" (Apolinario Tapayan) to be killed if he refused, he (Damian Baranela) put out the light. He further testifies that while he was sitting in the porch of the granary he heard Simeon Paulin warn his companions: "Yong (Gregorio Bagaboyboy), do not go up, the relatives of Inar (Apolinario Tapayan) might come, we will just go to Torqui (Eutiquiano, elder brother of Simeon Paulin) in Tambulig and inform him," to which Bagaboyboy replied: "Morning, we just pass via Balocot because it is nearer to Tambulig." Baranela also confirms the testimony of Narcisa Mahidlawan to the effect that Simeon Paulin was carrying with him an automatic shotgun (Exhibit A), the same shotgun that he used to see Simeon Paulin carry wherever he went; that Gregorio Bagaboyboy or Bagalay was armed with a carbine while Matias Poroc was carrying a rifle. Manuel Yongco did not have firearm with him.
Alibi is the appellants’ defense. Simeon Paulin denied what Narcisa Mahidlawan, Damian Baranela and Alberto Megreño had testified. He testified that after shelling corn from the cobs the whole day of 17 December 1949 at 4:00 o’clock in the afternoon he went to Tambulig, a barrio of Molave, Zamboanga, and in the house of Rufino Ramos he played mahjong with him and Ceferino Tohoy and Leonardo Menoria from 6:00 o’clock in the afternoon until midnight and stopped playing at 8:00 o’clock for a while to take dinner. At 12:00 midnight he went to his brother’s (Eutiquiano’s) house 60 meters away from Ramos’ house to sleep. The following morning, 18 December, he proceeded to Ozamis City in time for Christmas season to visit with another brother and claimed that it was on his way to Li-loan where he heard from people that Apolinario Tapayan had been killed. Arrested in Ozamis City on 23 December 1949, he returned to Lower Usugan after posting a bond. Rufino Ramos, a childhood friend of Simeon Paulin and former councilor of Molave, Zamboanga, and Leonardo Menoria, a businessman of Pagadian, Zamboanga del Norte, who was accused of estafa, corroborated the testimony of Simeon Paulin and asserted that the latter, who was in Tambulig playing mahjong, could not have been in Lower usugan when the crime was committed on 17 December 1949.
Gregorio Bagaboyboy or Bagalay, brother-in-law of Simeon Paulin and half brother of Matias Poroc, testified that in 1949 he was living with his in-laws, the Paulins; that from 6:00 to 12:00 p.m. of 17 December 1949 he did not leave his house, because his wife who had just delivered was sick and profusely bleeding and that his mother did the errands for the family. He confirmed the testimony of his brother-in-law Simeon Paulin that the latter was in Tambulig, Molave, Zamboanga, while Manuel Yongco was not at home that day. He admitted, however, that Matias Poroc was in the market place in Usugan playing "hantac."cralaw virtua1aw library
In support of Matias Poroc’s alibi, Angeles Gongob, a farmer and neighbor of Poroc testified that he (Poroc) was at the market from 5:30 to 8:00 p.m. of 16 December 1949 playing "hantac" with Juan Gopoc and that he (Poroc) went home with Angeles Gongob and Pedro Gopoc immediately after hearing the gun shots in succession.
Supporting the alibi of Manuel Yongco, Capistrano Lacua, a barrio lieutenant of Burakan, Bonifacio, Misamis Occidental, testified that on 16 December 1949 Manuel Yongco was with him in the mangrove swamps of Burakan collecting nipa palms and that during the whole day of 17 December 1949 they were again together making nipa shingles at Lacua’s yard; that Yongco stayed late in his (Lacua’s) house until midnight where he drunk until midnight when he went to sleep in the house of Leonardo Lacua, his (Capistrano’s) brother.
The defense contends that that part of the testimony of Narcisa Mahidlawan pointing to the appellants as those who left the yard of Alimorin at 7:30 o’clock that evening immediately following the gun reports cannot be believed because of her poor eyesight; it was dark and their flashlights were focused forward or towards the ground. Upon petition the trial court ordered Dr. Jose Moreno to examine the eyes of Narcisa Mahidlawan to determine whether or not her eyesight was defective. Before submitting herself to an examination she admitted that the condition of her eyes in 1957 was the same as in 1949. The medical report on the examination of her eyesight was not submitted. It does not appear why it was not submitted. Her alleged defective eyesight was, however, disproved in open court by the presiding judge himself who asked her to describe a house about 170 or 200 meters away from the courthouse. At that distance she was able to see and distinguish that the painted house was made of cement.
The alibi of Simeon Paulin cannot prevail over the positive identification of him and his co-appellants by Mahidlawan and Baranela.
After testifying that his wife delivered on 19 October 1949, Gregorio Bagaboyboy or Bagalay tried to show that, a farmer that he was, he stayed home tending to his wife’s needs from 19 October to 17 December 1949. His wife Concepcion confirmed that she was treated by an herb doctor whose name and whereabouts she could not recall. If it were true that his wife was seriously ill on 17 December 1949 on account of hemorrhage as she herself so testified, why did his mother- in-law prolong her stay in Ozamis City for about two weeks more when according to them they sent her a note telling her to come home immediately. The fact that she did not go home to Usugan at once but instead returned home only after the arrest of her son and son-in-law belies his alibi. He did not tell the truth when he testified that he gave P0.50 financial help to the bereaved family of Apolinario Tapayan through Narcisa Mahidlawan. No such amount was ever given.
The presence of Matias Poroc at the market place, as testified to by Angeles Gongob, a witness for him, corroborates and supports the theory of the prosecution that upon seeing Apolinario Tapayan take the flashlight from Bernardo Alimorin, he (Poroc) disappeared and went to his landlord, Simeon Paulin, to inform him of Apolinario Tapayan’s movement and thus insure the killing to follow.
The alibi of Manuel Yongco cannot be given credence. As he had known Capistrano Lacua two days before, it is difficult to believe that the latter would entrust a canoe to him (Yongco) and help him gather nipa and make shingles.
The defense also contends that the testimony of Damian Baranela should not be believed, because he was driven away from the Paulins’ barn and the land he was working on, and was a confirmed gambler and seasoned thief who had every reason for hating the Paulins. The contention is without merit, for the reason that as early as 18 December 1949, before Simeon Paulin’s arrest, he was approached in his house (barn) by the former to ask him to be his witness and to testify that he (Simeon Paulin) was not in Lower Usugan but was in Tambulig on 17 December 1949. Baranela refused the request. He testified in court despite an attempt against his life by Paulin and threat of the loss of the land he worked on and of the barn where he and his family lived.
It is apparent that Damian Baranela was driven away from the barn because he refused to testify for Simeon Paulin and not because he stole chicken, eggs and corn of the Paulins. If it were for being a thief that he was driven away from the barn, he should have been prosecuted therefor or driven away by Simeon Paulin long before December 1949. Simeon Paulin testified that Baranela had been stealing for sometime already, as denounced by a tenant of his who informed him that before December 1949, he (tenant) bought corn from Baranela that had been stolen by the latter from the barn where he lived. Hence, it is safe to concluded that when Baranela refused to testify for Simeon Paulin, he was driven away from the barn by the Paulins after the latter learned that Baranela was listed as a prosecution witness.
Another point urged by the defense in their brief is that the accused Simeon Paulin could not have committed the crime of murder because it was not proven that he ever possessed or owned any shotgun or rifle. The evidence license but the fact does not disprove that he had and in possession of a shotgun. Reliable witnesses who had long resided in Lower Usugan testified that before 17 December 1949 Simeon Paulin owned a shotgun that was identified by them to his. Narcisa Mahidlawan testified that on one occasion Simeon Paulin fired a shotgun in the air to intimidate them while she and Francisco Tapayan, a brother of Apolinario, were harvesting palay in the land planted by the latter. Alberto Megreño confirmed the incident testified to by Narcisa Mahidlawan, and further testified that he knew very well all the accused and the deceased long before liberation. He and Damian Baranela identified the rusty shotgun during the trial to be that of Simeon Paulin which he carried wherever he went, and used to intimidate persons involved in disputes affecting his family’s lands. As a matter of fact, Megreño testified that he was with Simeon Paulin several times, like Damian Baranela who had also been with him twice before, when they went shooting monkeys in the forest near Lower Usugan. Megreño confirmed the fact that after 7:00 p.m. of 17 December 1949 while taking his supper he heard detonations from a shotgun and rifle and that after the said incident Simeon Paulin was never seen bringing with him that shotgun everytime he passed by his house.
Moreover, Mr. Manzanares, the NBI expert who made the ballistic examination of the firearms and used empty shells (cartridges) testified that, of the five empty shells (Exhibits L-1 to L-5) recovered by the Chief of Police of Bonifacio in the vicinity where the cadaver of the deceased Apolinario Tapayan was found, two empty cartridges (Exhibits L-2 and L-3) were ballistically found to have been fired from the same shotgun (Exhibit A). At any rate, corroborating on the post-mortem findings of Dr. Ozarraga, the charity physician who declared that the wounds on the cadaver of the deceased were caused by bullets fired from different guns (Exhibits F, G & H), Major Abenir C. Bornales, PC provincial commander of Misamis Occidental, an authority on musketry, gunshot wounds and firearms, testified that he is inclined to believe that the wounds described in paragraph 1 of the post-mortem report (Exhibit F) inflicted on the head of the deceased which has an entry of the size of a 20-centavo coin and with an exit of about five by three inches in diameter, very much larger than a 20-centavo coin, must have been caused by a gun of caliber 30 such as a rifle. The Chief of Police of Bonifacio had the same opinion when he testified that when he examined the cadaver on the spot where it was found, he noticed that there were two kinds of gunshot wounds — one smaller and the other larger. There is, therefore, no doubt that the wounds inflicted on the deceased were caused by the shotgun and a carbine for which the appellants are to be held responsible.
There being no mitigating nor aggravating circumstance, the penalty to be imposed upon each of the appellants, pursuant to article 248 of the Revised Penal Code, is the medium period or reclusion perpetua.
With the modification as to the principal penalty only which is reclusion perpetua, the rest of the judgment appealed from is affirmed, with the proportional costs in both instances against the appellants.
Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
