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EN BANC

G.R. No. L-52787 February 28, 1985

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JESUS HECTO, PEDRO HECTO and LORETO HECTO, accused, PEDRO HECTO and LORETO HECTO, Defendants-Appellants.

RELOVA, J.:

From the decision of the then Court of First Instance of Leyte, rendered after trial in Criminal Case No. 1093, finding accused Pedro Hecto and Loreto Hecto guilty beyond reasonable doubt of the crime of murder with direct assault upon a person in authority and sentencing "each of them to the death penalty to be executed at a date to be set and in the manner provided for by law and to jointly and severally indemnify the heirs of Barrio Captain Catalino Pedrosa (represented by Mrs. Caridad B. Pedrosa of San Isidro, Dulag, Leyte) in the amount of P12,000.00, without subsidiary imprisonment in case of insolvency and to pay 2/6 of the costs," (p. 22, Rollo) the aforementioned accused have appealed to this Court.chanroblesvirtualawlibrary chanrobles virtual law library

Following are the facts.chanroblesvirtualawlibrary chanrobles virtual law library

Sometime in January or February 1972, brothers Jesus Hecto and Pedro Hecto slaughtered a carabao in barrio San Isidro, municipality of Dulag, Province of Leyte. They did not pay the corresponding tumbada or slaughter fee and upon learning of this non-payment, Barangay Captain Catalino Pedrosa asked him (Jesus) to pay the same. Jesus replied that he could not yet pay the required slaughter fee because those who bought meat from him had not also paid him yet. Thereafter, Pedrosa met Municipal Treasurer Benedicto de la Paz who informed him that according to the Hecto brothers they had already paid the slaughter fee to him (Pedrosa). Pedrosa denied having received the fee mentioned.chanroblesvirtualawlibrary chanrobles virtual law library

On February 27, 1972, Catalino Pedrosa and his wife went to visit their farm and on their way home, about 3:00 in the afternoon, they met Jesus and Pedro Hecto. Pedrosa confronted the two about the false information they gave the municipal official concerning the alleged payment of the slaughter fee to him. A heated discussion ensued and the Hectos tried to attack Pedrosa. Mrs. Caridad Pedrosa pulled her husband away and the trouble was averted.chanroblesvirtualawlibrarychanrobles virtual law library

About 6:00 in the afternoon of March 24, 1972, Catalino Pedrosa left his house in barangay San Isidro to accompany a two-year old nephew to the house of the child's parents. On his way back, about 6:30 he was shot by Jesus Hecto and Pedro Hecto and thereafter stabbed by Marcial Hecto and Roberto Silvano.chanroblesvirtualawlibrary chanrobles virtual law library

Caridad Pedrosa at the time was in her house preparing supper. Upon hearing the sound of a gunfire, she immediately ran to the door. However, she was prevented from going down the house by Loreto Hecto and Faustino Silvano, son and nephew, respectively, of Jesus Hecto. They pointed their guns at her. Notwithstanding, Caridad, could see Jesus Hecto pointing a gun at her husband, Catalino Pedrosa, who was already lying on the ground face up. This was followed by Pedro Hecto who also fired his own gun at Pedrosa. Thereafter, Jesus Hecto, Pedro Hecto, Marcial Hecto and Roberto Silvano carried the victim to a nearby ditch where Roberto and Marcial took turns in stabbing him with their bolos. The four assailants then walked away. Loreto Hecto and Faustino Silvano who were at the door of the house of the Pedrosas guarding Caridad joined the four.chanroblesvirtualawlibrary chanrobles virtual law library

The police was informed of the incident. Acting Chief of Police Nerio dela Cruz, with several policemen, arrived at the scene of the incident at about 8:00 that evening. They found the dead Pedrosa with three gunshots and three stab wounds on his body.chanroblesvirtualawlibrary chanrobles virtual law library

During the trial of the case, the accused Jesus Hecto died shortly after he had testified. Accordingly, the case against him was dismissed by the court. Trial proceeded against Pedro and Loreto Hecto while their confederates: Roberto Silvano, Marcial Hecto and Faustino Silvano remained at large.chanroblesvirtualawlibrary chanrobles virtual law library

The defense of appellants Loreto Hecto and Pedro Hecto was denial. Loreto testified that at the date and time of the incident he was in his house two kilometers away from barangay San Isidro drinking tuba with his hired farm laborers, Pablo Lirios and Felicito Bico. In the morning of that day, March 24, 1972, his farm laborers plowed his cornfield until about 4:00 in the afternoon. He then offered them tuba which they drank together in his house. About 6:00, his sister Lolita arrived telling them that their father Jesus fought with Catalino Pedrosa. He then left for barrio San Isidro to see his parents and, as a precautionary measure, he brought his mother Maria Ganaron to his house.chanroblesvirtualawlibrary chanrobles virtual law library

Appellant Pedro Hecto declared that on March 23 and 24, 1972 he stayed in his house because the palay which was harvested on March 21 was being threshed by Beato Andrade and Victor Isyo. The threshing was finished about 11:00 in the evening of March 24. About 9:00 some members of the police force of Dulag went to his house looking for his brother Jesus Hecto. They left upon finding that he was not there. About an hour later, Jesus arrived and said that he had killed somebody and that he was going to town to surrender. After a few days, he (Pedro Hecto) left for Tacloban City where he worked as carpenter until he was arrested on June 17, 1972.chanroblesvirtualawlibrary chanrobles virtual law library

Appellants claim that the trial court erred (1) in relying on inadmissible evidence in making a finding of facts relevant to the judgment of conviction; (2) in rendering a judgment of conviction even if their respective guilts were not proven beyond reasonable doubt; and (3) in finding that the crime of murder was committed with assault upon a person in authority.chanroblesvirtualawlibrarychanrobles virtual law library

With respect to the first assigned error, We agree with appellants that the sworn statement of Constancio Bollena who did not testify at the hearing should not have been admitted and considered by the trial court. In said affidavit, Bollena said that he was talking with Pedrosa when Jesus Hecto, Pedro Hecto, Loreto Hecto, Marcial Hecto, Roberto Silvano and Faustino Silvano arrived; that after Loreto Hecto and Faustino Silvano proceeded to Pedrosas house, Jesus Hecto immediately drew and fired his gun twice at Pedrosa; that Jesus then turned his attention to Bollena who ran away and succeeded in evading the shot fired at him by Jesus. As aptly stated by the Solicitor General in his brief, the affidavit of Bollena should not be considered in passing judgment upon the guilt or innocence of herein appellants. "Such statement is hearsay evidence for the reason that Bollena never testified in court. Appellants did not have the opportunity to cross examine him and test his credibility. " (p. 167, Rollo) chanrobles virtual law library

However, the conviction of appellants Pedro Hecto and Loreto Hecto by the trial court was not entirely based on the affidavit of Bollena. There were the testimonies of Caridad Pedrosa and Mario Cadayong. Hereunder are the said testimonies of Caridad Pedrosa, wife of the victim-

Q You said that you were inside your house. Immediately after you heard the first gunshot, what did you do? chanrobles virtual law library

ATTY. SANTOS: chanrobles virtual law library

Answered already, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: chanrobles virtual law library

Let her answer because her testimony on this point is not very clear.chanroblesvirtualawlibrary chanrobles virtual law library

FISCAL CABLITAS: chanrobles virtual law library

A I ran towards the door of the house.chanroblesvirtualawlibrary chanrobles virtual law library

Q And you said you were threatened by Loreto and Faustino with guns. Where were you threatened by them?chanrobles virtual law library

A I was threatened by the door of our house because I was not able to go down. When I opened the door they threatened me with guns.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q Did you know what was that gun report-the fourth gunshot report about?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What was it about?chanrobles virtual law library

A The gunshot was fired by Pedro Hecto. I could see him still holding the gun.chanroblesvirtualawlibrarychanrobles virtual law library

Q To whom was it aimed when you saw that gun which he fired?chanrobles virtual law library

A Towards my husband.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q When this fourth gunfire was made, were Loreto and Faustino still pointing their guns at you?chanrobles virtual law library

A Yes, they were still pointing their guns at me.chanroblesvirtualawlibrarychanrobles virtual law library

Q How did you manage to see what was happening to your husband?chanrobles virtual law library

A Because I looked at the two (2) persons pointing their guns to me and at the same time I looked also at the place where my husband has fallen?chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q After your husband was fired upon by Pedro Hecto what happened after that?chanrobles virtual law library

A They lifted my husband to the culvert.chanroblesvirtualawlibrarychanrobles virtual law library

Q Who lifted your husband?chanrobles virtual law library

A The four (4) of them.chanroblesvirtualawlibrarychanrobles virtual law library

Q Who?chanrobles virtual law library

A Jesus Hecto, Pedro Hecto, Marcial Hecto and Roberto Silvano.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

FISCAL CABLITAS:chanrobles virtual law library

Q Your husband, as you said, was the barrio captain of your place at the time when he was gunned down by the accused and by the other persons charged in the information who are simply residents of the place who are supposed to be under him. Will you please ten the Court the reason why your husband was killed?chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

A It was in the month of January or February when Jesus Hecto slaughtered their carabao.chanroblesvirtualawlibrary chanrobles virtual law library

Q What year? chanrobles virtual law library

A 1972.chanroblesvirtualawlibrary chanrobles virtual law library

Q And then? chanrobles virtual law library

A My husband asked for the permit of slaughtering the carabao.chanroblesvirtualawlibrary chanrobles virtual law library

Q What is this "tumbada" in your local parlance?chanrobles virtual law library

A Whenever somebody slaughter a carabao, a certain amount is asked from them.chanroblesvirtualawlibrary chanrobles virtual law library

Q For what is this amount-where does this go?chanrobles virtual law library

A For the municipal treasurer.chanroblesvirtualawlibrary chanrobles virtual law library

Q Municipal treasurer or barrio treasurer?chanrobles virtual law library

A Municipal treasurer.chanroblesvirtualawlibrarychanrobles virtual law library

Q And then, was Jesus Hecto able to pay the 'tumbada' to the barrio captain, your husband? chanrobles virtual law library

A Jesus Hecto did not give the amount to my husband because according to Jesus Hecto, the persons who partook of the carabao did not pay him yet.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

FISCAL CABLITAS:chanrobles virtual law library

I am asking for the motive, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library

COURT:chanrobles virtual law library

Witness is being asked on what she knows about the motive.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL CABLITAS: chanrobles virtual law library

A Benedicto de la Paz asked my husband about the amount as payment for the slaughter of the carabao as according to his information, the amount was already given to him.chanroblesvirtualawlibrary chanrobles virtual law library

Q As a result of this, do you know what happened on February 27, 1972, as a result of this 'tumbada' in questions?chanrobles virtual law library

A We were from our farm when we passed by Pedro and Jesus Hecto at the waiting shed.chanroblesvirtualawlibrary chanrobles virtual law library

Q And then?chanrobles virtual law library

A My husband confronted Jesus Hector by saying 'You have told there that you have already given the amount as payment for the slaughter of the carabao; but why did you tell them when you have not given me this amount yet?'chanrobles virtual law library

Q What happened after this?chanrobles virtual law library

A There was an exchange of words between my husband and Jesus Hecto.chanroblesvirtualawlibrarychanrobles virtual law library

Q And then?chanrobles virtual law library

A I held my husband because they were about to harm my husband.chanroblesvirtualawlibrarychanrobles virtual law library

Q Who were about to harm your husband?chanrobles virtual law library

A Pedro Hecto and Jesus Hecto.chanroblesvirtualawlibrarychanrobles virtual law library

Q What did you do?chanrobles virtual law library

A I held my husband and we went home.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what did Jesus Hecto and Perdo Hecto do when you held your husband and you went home?chanrobles virtual law library

A He said 'Ikaw, Captain, ka nga estrikto, magkikita kita ha iba nga adlaw' Meaning, 'You, Bo. Captain, you are very strict. We will see each other some day.' (pp. 310, 311, 314, 315, 323, 324, 325, and 326, tsn., Hearing on January 28, 1975)

and of Mario Cadayong:

Q You said Catalino Pedrosa was killed, do you know how he was killed? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q How? chanrobles virtual law library

A He was shot.chanroblesvirtualawlibrarychanrobles virtual law library

Q By whom? chanrobles virtual law library

A He was shot by Jesus Hecto and Pedro Hecto.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now you are talking about shots, you mean to say that there were guns during the incidentchanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q How many guns have you seen? chanrobles virtual law library

A Pedro and Jesus Hecto were having one gun each.chanroblesvirtualawlibrary chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q And when while you were running towards the coconut tree to take cover, you heard a second shot? chanrobles virtual law library

A I did not run because the coconut tree was very near. While I was going to that tree to hide I saw Jesus Hecto holding the gun and firing the second fire.chanroblesvirtualawlibrary chanrobles virtual law library

x x x x x x x x x chanrobles virtual law library

COURT: chanrobles virtual law library

Just answer the question whether Catalino Pedrosa died after quivering.chanroblesvirtualawlibrarychanrobles virtual law library

WITNESS: chanrobles virtual law library

A Not yet because he was still shot.chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. TAN: chanrobles virtual law library

Q He was shot by whom?chanrobles virtual law library

A Pedro Hecto. (pp. 432, 433, 435 & 445, tsn., June 3, 1976 hearing)chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

COURT: chanrobles virtual law library

Will you describe to us in proper sequence what you saw from the time Jesus Hecto pointed his gun to Catalino Pedrosa who was already fallen on the ground shaking? chanrobles virtual law library

A Catalino was shot again by Pedro. Catalino Pedrosa was carried by Pedro Hecto, Jesus Hecto and Roberto Silvano to the ditch. After that, Catalino was stabbed by Roberto and after that he was again stabbed by Marcial. We were stepping backwards as we saw Man Caring pointed to with a gun by someone.chanroblesvirtualawlibrary chanrobles virtual law library

Q Who is Man Caring?chanrobles virtual law library

A Caridad Pedrosa.chanroblesvirtualawlibrarychanrobles virtual law library

Q Who was pointing a gun at Caridad Pedrosa? chanrobles virtual law library

A Loreto and Faustino.chanroblesvirtualawlibrarychanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q How about Roberto? You said he stabbed Catalino. What weapon did he use in stabbing at your uncle?chanrobles virtual law library

A He used a pisaw, a small bolo. Maybe it was pisaw. (Witness indicating a length of one-third of a meter.) chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q Did you see Pedro Hecto actually fire upon Catalino Pedrosa? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Was Catalino hit? chanrobles virtual law library

A Maybe, he was hit because Catalino was just in front of Pedro and whose position was lying face upwards.chanroblesvirtualawlibrarychanrobles virtual law library

Q When Jesus Hecto fired upon Catalino Pedrosa, referring to the second shot you saw, was Pedro around? chanrobles virtual law library

A Yes, sir. He was around. (pp. 243, 244, 245, 247, tsn., September 9, 1975 hearing) chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q When for the first time did you see Pedro Hecto in the scene of the incident?chanrobles virtual law library

A I saw them when they were going to the waiting shed. I saw Jesus Hecto, Pedro Hecto, Marcial Hecto, Roberto Silvano going to the waiting shed. (p. 450, tsn., June 3, 1976 hearing)

Thus, it is clear that Mrs. Caridad Pedrosa and Mario Cadayong saw the killing of the victim, Catalino Pedrosa Considering the concerted action of Jesus Hecto, appellants Pedro and Loreto Hecto, Marcial Hecto, Roberto and Faustino Silvano, conspiracy among them has been successfully established by the prosecution. While their companions were slaying the deceased, appellant Loreto Hecto and Faustino Silvano were by the stairs of the house of Catalino to prevent any assistance which could come therefrom. After they had accomplished their criminal or unlawful purpose, they left together. Time and again We have ruled that concert of action at the time of consummating a crime and the form and manner in which assistance is rendered to the person or persons inflicting the fatal wounds on their victim determine complicity where it would not be otherwise evident. In a conspiracy, all are liable for the acts of one.chanroblesvirtualawlibrary chanrobles virtual law library

The fact that appellants went into hiding after the incident is evidence of guilt. Pedro Hecto was arrested two months later in Tacloban City, while Loreto Hecto presented himself before the authorities in March 1974 or after two years. Their three companions have not yet been arrested up to now.chanroblesvirtualawlibrary chanrobles virtual law library

Against the testimony of the People's witnesses, appellants Loreto and Pedro Hecto claim that they were elsewhere when the killing took place. Well established is the rule that where the accused have been positively Identified by witnesses as perpetrators of the offense, the defense of alibi is futile and unavailing.chanroblesvirtualawlibrary chanrobles virtual law library

We now come to the contention of the defense that the trial court erred in convicting them of the complex crime of murder with assault upon a person in authority. They pointed out that when the barangay captain was killed he was not in actual performance of his official duties. Be that as it may, the fact is, the attack on the deceased was occasioned by the official duties done by him. As the barangay captain, it was his duty to enforce the laws and ordinances within the barangay. If in the enforcement thereof he incurs the enmity of his people who thereafter treacherously slew him, the crime committed is murder with assault upon a person in authority.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the appealed judgment is hereby AFFIRMED with the modification that for lack of necessary votes the sentence is reduced to reclusion perpetua and the indemnity increased to P30,000.00. With costs.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.