Case # 209
the house of Lucita and informed the latter that the policemen of Herbosa
SM: Art. 290. Betrayal of Trust by an Attorney orsolicitor –Revelation of
secrets-
PEOPLE OF THE PHILIPPINES
vs.
CHERRY BONDOC Y LIWANAG
G.R. No. 98400 May 23, 1994
FACTS
CHERRY BONDOC Y LIWANAG appeals from the judgment of the
court a quo finding her guilty of kidnapping and failure to return a minor
penalized under Art. 270 of The Revised Penal Code and imposing upon
her a prison term of reclusion perpetua.
The evidence for the government tends to establish that on 6 October
1989, at about four-thirty in the afternoon, complaining witness Lucita
Romero Corpuz went to the Manila City Jail to visit her husband, Antonio
Corpuz, who was detained therein. She brought along with her Carla
May, her daughter who was then only 1 year and 4 months old, because
no one could take care of her at home. In her previous visits, she was
able to bring her inside but this time she was not allowed to do so.
Appellant Cherry Bondoc who was then standing in front of the gate of
the jail approached her and volunteered to take care of Carla May while
she was visiting her husband. She asked appellant her name and why
she was offering to help as that was the first time they met. Appellant
explained that she just pitied her. To convince Lucita, appellant even
narrated that she was there accompanying a friend who was also visiting
someone, and in fact had already watched over some six (6) children that
morning whose parents had to leave them in her custody so they could
go inside the jail.
Apparently convinced that appellant had good intentions, Lucita entrusted
Carla May to her while she visited her husband. But when she came out
after fifteen minutes, her daughter and appellant were nowhere to be
found. A woman who was also waiting in front of the jail told her that
appellant had left with Carla May. Fearing that her daughter was
kidnapped, Lucita complained to the Warden of the Manila City Jail and
proceeded to the General Assignment Section of the Western Police
District (WPD) to report the kidnapping. Her complaint was accordingly
recorded in the police blotter and then published in the People's Journal.
On 13 October 1989, the Barangay Chairman of Herbosa, Tondo, went to
Detachment received a report that a woman had taken Carla May to
Dagat-dagatan, Navotas, and was now selling her in Herbosa, Tondo.
The Barangay Chairman also reported that the woman was in fact
arrested by
Pat. Flormata and Pat. Mauricio of the same detachment.
Accompanied by the Barangay Chairman, Lucita went to the Herbosa
Detachment and saw appellant. Then Pat. Willy Capati arrived with Carla
May who was then reunited with her mother.
On 15 October 1989, Lucita gave her sworn statement to Pat. Efraim
Tumaning of the General Assignment Section, WPD. Patrolman
Tumaning prepared and signed a Booking Sheet and Arrest Report which
was signed by appellant who was then placed under arrest for
kidnapping.
On 16 October 1989, Pat. Tumaning prepared and signed a Crime
Report concerning his investigation. On the same day, Capt. Crescencio
Cabasal endorsed the case to the City Prosecutor of Manila for
appropriate action.
On 19 January 1990, an information for kidnapping for the purpose of
selling minor Carla May Corpuz was filed against appellant Cherry
Bondoc y Liwanag.
Appellant denied the charge. She alleged that on 6 October 1989, her
aunt requested her to bring some things to a cousin, Rolando Bondoc,
who was detained at the Manila City Jail for vagrancy. Since she had no
identification card, she was not allowed to enter the jail. However, she
was able to hand over the things to her cousin when the latter was called
to the gate upon her request.
At around three o'clock in the afternoon, a certain Nerrie approached her
and asked her if she could take care of a young girl while she went inside
the jail to visit somebody. Appellant agreed but did not ask Nerrie about
the child's name. She waited for Nerrie outside but since the latter failed
to return, she went to a nearby store for a brief thirty-minute snack, after
which she went back to the gate to look for Nerrie.
After waiting up to five o'clock in the afternoon, appellant decided to leave
taking the child with her as the security guards refused to keep her, and
brought her to the house of appellant's sister, Melissa Bondoc, in Dagat-
dagatan and asked her to take care of the child in the meantime. While
appellant actually resided in Velasquez St., Tondo, she had not thought
of bringing Carla May to the police station in Herbosa.
On 7 October 1989, at about seven o'clock in the morning, appellant left
for Angeles City where she worked as a cook. Three or four days later
she read in the People's Journal that the child in her custody had been
kidnapped by a "dark-complexioned woman with short-cut hair."
Consequently, she went to Police Station No. 1, WPD, and reported that
the child was in her custody. She then accompanied the policemen to her
sister's house in Dagat-dagatan and after taking Carla May they all
returned to the police station where Lucita pointed to her as the woman
to whom she entrusted Carla May at the Manila City Jail. Her sister
Melissa, who was also present at the station when Carla May was
returned to her mother, did not give any statement or explanation to the
police authorities as to how and why Carla May happened to be in her
house in
Dagat-dagatan.
The trial court believed the story of the prosecution and convicted
appellant Cherry Bondoc of kidnapping defined and penalized under Art.
270 of The Revised Penal Code on the basis of the testimony of witness
Lucita Romero Corpuz, mother of Carla May, that she entrusted the
custody of her daughter
to appellant who took Carla May away without her (Lucita) consent and
deliberately failed to return her.
Appellant assails the trial court in this appeal (a) for giving credence to
incriminating evidence obtained while she was under custodial
interrogation without the benefit of counsel; and, (b) for convicting her of
the offense of kidnapping on the basis of insufficient evidence, thereby
denying her due process and equal protection of the law.
Appellant contends that the trial court gave weight to the theory of the
prosecution based on documentary and testimonial evidence obtained
from her while she was under custodial interrogation in violation of her
constitutional rights. She argues that while she was under custodial
investigation she
was asked questions designed to elicit incriminating evidence, i.e., the
Crime Report 2 and the Booking Sheet and Arrest Report, 3 "without
having been informed of her rights and without benefit of counsel." She
also argues that the documentary evidence presented by the prosecution
does not prove her guilt, and that there was no evidence of selling the
child which would have established criminal intent.
The police reports contain a statement that "when investigated after
being informed of her constitutional rights, she (appellant) verbally
admitted that she took herein victim but she refused to reduce her
statements into writing without the presence of her own counsel."
A person under custodial investigation is entitled to the following rights:
(a) right to remain silent; (b) right to counsel; and, (c) right to be informed
of these rights. 4 The accused should be assisted by counsel the moment
there is a move or even an urge of said investigators to elicit admissions
or confessions or even plain information which may appear innocent or
innocuous at the time. 5
We agree with appellant. The verbal admission she made without the
assistance of counsel is inadmissible in evidence. However, even without
her admission, the evidence for the prosecution is sufficient to support
the finding of guilt against her.
The rule is settled that the testimony of a single credible witness is
sufficient to convict. 6 Even in the absence of documentary evidence, the
clear and positive identification of the accused by a witness regarding the
former's active participation in the crime is enough to establish her guilt
beyond reasonable doubt.
Thus testified Lucita, mother of Carla May who was kidnapped by
appellant —
Q Madam witness, where were you on October 6, 1989 at around 4:30
o'clock in the afternoon?
A I was at the City Jail visiting my husband, sir . . . I was with my child, Carla
May, sir,
xxx xxx xxx
Q What did you do with your child when she was not allowed to see your
husband?
A I was told by Cherry Bondoc that she would take care of my child because
that day she had already took (sic) care of six children and Carla was the 7th
child, sir . . . I was asking who was she, (sic) and why she was interested in
taking care of my child, and she answered that she pitied me. sir . . . She told
me to trust her because according to her she had already took (sic) care of
many children and that those children did not get lost, sir.
Q What happened after telling you that?
A I had her watch over my child for a short time, sir . . . Only fifteen minutes,
sir.
Q After talking with your husband for fifteen minutes, what did you do next?
A I immediately went back (to) get my child but I was told by a woman that
my child was brought away by Cherry Bondoc, sir, together with Baby
Tipuz. 7
The trial court observed that Lucita, testifying before the court in a
spontaneous, straightforward and candid manner, pointed to and
identified appellant as the person to whom she entrusted Carla May and
who later absconded with her child; that prior to Lucita's identification in
court she had immediately pointed to the appellant as the kidnapper of
her child on the day she saw appellant at the Herbosa police station
when Carla May was presented.
We find no cogent reason to disturb the findings of the trial court. The
issue involved in this appeal is one of credibility, and this Court has
invariably ruled that the matter of assigning values to the testimony of
witnesses is best performed by the trial courts because they, unlike
appellate courts, can weigh the testimony of witnesses in the light of the
demeanor, conduct and attitude of the witnesses at the trial, except when
circumstances of weight or influence were ignored or disregarded by
them which does not obtain in the present case. 8
Unless there is a showing that the trial court had overlooked,
misunderstood or misapplied some fact or circumstance of weight that
would have affected the result of the case, this Court will not disturb
factual findings of the lower court. Having had the opportunity of
observing the demeanor and behavior of witnesses while testifying, the
trial court more than this Court is in a better position to gauge their
credibility and properly appreciate the relative weight of the often
conflicting evidence for both parties. 9 When the issue is one of credibility,
the trial court's findings are given great weight on appeal.
The bare denial of appellant that Lucita was not the one who entrusted
Carla May to her constitutes self-serving negative evidence which is not
sufficient to overcome the positive testimony of Lucita. As the denial of
appellant was weak, uncorroborated and inherently improbable, the clear
and straightforward testimony of the prosecution witnesses should
prevail. Even if there is no evidence to show appellant's intention to sell
the young girl for profit, the two elements of kidnapping and failure to
return a minor under Art. 270 of The Revised Penal Code are already
present, namely: (a) The offender has been entrusted with the custody of
a minor person, and (b) The offender deliberately fails to restore said
minor to his parents or guardian. 10
With the positive testimony of Lucita, the prosecution has proved the
presence of the above elements to establish the criminal liability of
appellant. Moreover, appellant has admitted the existence of the two
elements by testifying that after having been given custody of the child,
she kept the latter in her sister's house for three (3) or four (4) days
without seeking any assistance from the police authorities so that the
child could be immediately returned to her mother. This admission shows
the falsity of her claim of innocence. Instead, it affirms her deliberate
refusal to return the child to her mother.
We also take note of the failure of appellant to present as defense
witnesses the guards at the city jail whom she allegedly requested to take
Carla May in their custody when that Nerrie did not return to get the child.
If indeed this claim of appellant is true, its confirmation by those guards
could have probably helped establish her innocence. But there was not
even any effort to produce them.
The records do not also show any known motive why the prosecution
witnesses would testify against appellant. In the absence thereof, it is
hardly incredible that they would pervert the truth, testify to a falsehood
and cause the punishment of one who had neither brought them harm
nor injury. 11 In fact, upon discovery that her daughter was missing, Lucita
immediately reported the incident to the Warden of the Manila City Jail as
well as to the local police authorities. In the absence of delay in reporting
the crime to the authorities, the testimony of the complaining witness
should be credible. 12
For kidnapping and failure to return minor Carla May to her mother from
whom the former was taken by appellant, the trial court correctly
sentenced her to reclusion perpetua conformably with Art. 270 of The
Revised Penal Code. This Court also finds appropriate to award moral
damages to complaining witness Lucita Romero Corpuz and the amount
of P10,000.00 is considered reasonable as reparation for the mental
anguish and serious anxiety she suffered before Carla May was returned
to her.
G.R. No. L-18255           November 21, 1961
JOSE T. GONZALES, petitioner,  protestee Flores, the appellate court promulgated a minute resolution
vs.
THE COURT OF APPEALS and JAIME M. FLORES
FACTS
The petitioner, Jose T. Gonzales, applied to this Court for review
on certiorari of the order of the Court of Appeals, giving due course to the
appeal taken thereto by respondent Jaime M. Flores from the decision of
the Court of First Instance of Agusan in its Election Case No. 15.
It appears that Jose T. Gonzales and Jaime M. Flores were both
candidates, with two others, for the position of vice-mayor of the City of
Butuan in the November 10, 1959 elections. After votes were canvassed,
Flores was proclaimed elected by a plurality of 222 votes over Gonzales.
Within the statutory period, Gonzales filed with the Court of First Instance
of Agusan an election protest contesting Flores' proclamation, alleging
irregularity in the conduct of the election. After hearing, the court
rendered judgment, as follows:
WHEREFORE, the Court hereby declares the protestant Jose T.
Gonzales duly elected vice-mayor of the City of Butuan in the
election held in November 10, 1959, with costs and incidental
expenses against the protestee. Let a copy of this decision be
furnished the Commission on Elections.
From the decision, Flores appealed. The appellant's amended notice of
appeal reads:
Please be advised that the protestee herein gives amended
notice of his intention to appeal to the Court of Appeals from the
judgment entered in the above-entitled case on December 31,
1960, of which the protestee was notified on January 13, 1961,
on the questions of facts and of law, except on the findings on
tampering of ballots. (Emphasis supplied).
Gonzales filed with the Court of Appeals a motion to dismiss the appeal
on the ground that section 178 of the Revised Election Code does not
confer the right to appeal from a judgment of the Court of First Instance
upon the parties to an election contest for the position of vice-mayor and
municipal councilor. Acting on this motion and on the opposition of
denying the plea of dismissal. Gonzales resorted to this Court.
There is merit in this petition. The rule is that an appeal to a higher court,
being merely a statutory right and not ordinarily a necessary part of due
process, may only be taken when the law so provides (Aguilar &
Casapao vs. Navarro, 55 Phil. 898; Duarte vs. Dade, 32 Phil. 36). In this
case, the law applicable is section 178 of the Revised Election Code that
reads:
Appeal from the decision in election contests. — From any final
decision rendered by the Court of First Instance in protests
against the eligibility or the election of provincial governors,
members of the provincial board, city councilors, and mayors, the
aggrieved party may appeal to the Court of Appeals or to the
Supreme Court, as the case may be, within five days after being
notified of the decision, for its revision, correction, annulment or
confirmation, and the appeal shall proceed as a criminal case.
Such appeal shall be decided within three months after the filing
of the case in the office of the clerk of Court of which the appeal
has been taken. (Emphasis supplied)
Construing the foregoing provisions, this Court, in the case of Dominador
Lucena, et al. v. Hon. Bienvenido Tan, et al., 47 Off. Gaz., No. 3, 1121,
has held:
In Tajanlangit v. Peñaranda (1917), 27 Phil. 155, we declare that,
in view of the provisions of the Administrative Code, decisions of
the court of first instance in municipal election contests were final
and not appealable. The view was premised on the fact that the
law directed that all election contests shall be filed with the
corresponding court of first instance, which "shall have exclusive
and final jurisdiction except as hereinafter provided" ... and the
further fact that while expressly providing for an appeal in
 contests for provincial governors, the law contained no provision
permitting an appeal in contests involving municipal officers.
xxx           xxx           xxx
The present Election Code, unlike the law at the time the above-
mentioned cases were considered, does not contain a provision
giving "exclusive and final jurisdiction to courts of first instance."
But the difference should be immaterial, because this Court only
mentioned such final jurisdiction as one of the reasons for holding
that no appeal existed. There is the other reason which is still
good: the law does not provide for appeal in contests for vice-
mayor and councilor, although it expressly allows appeals in
contests for other positions.
xxx           xxx           xxx
We must, therefore, hold that no appeal to this Court lies from a
decision of the court of first instance in contests for vice-mayor or
municipal councilors. (Emphasis supplied).
The ruling was reiterated in Evangelista vs. Castillo, 48 Off. Gaz., No. 2,
633 (see also Calano vs. Cruz, G.R. No. L-6404, January 12, 1954).
Respondent Flores argues, however, that since section 178 of Republic
Act 380, as amended, expressly allows the taking of an appeal in
protests against the election of city councilors, it is apparent that the
legislature did not intend to deny the same remedy when the contest
involves the position of a higher official, like the city vice-mayor. But the
question is not whether Congress intended to deprive the parties in the
latter case from taking an appeal, but whether or not it conferred that
right. The very argument of the respondent to the effect that when
Republic Act No. 380 was enacted, the position of city vice-mayor was
either non-existing or appointive, shows that the now evident hiatus in the
law was not the result of a mere legislative oversight at the time the
Election Code was passed, but a legislative inaction from the time city
vice-mayors become elective. The defect, it is clear, can be cured not by
judicial pronouncement but only legislative enactment.
Neither is there merit in the contention that because the city vice-mayors
preside over the city councils and perform the same functions as the city
councilors, they should be considered embraced within the term "city
councilors" under section 178. It should be noted that besides his
functions in the city council, the city vice-mayor has other duties and
prerogatives not imposed on, or enjoyed by, the city councilors (see
Republic Act No. 2259).
This Court has noted the possibility of a direct appeal to this Supreme
Court even in election protests for the offices of vice-mayor and city
councilor if the only issues involved are questions of law (Sec. 2, Art. VIII,
Constitution of the Philippines; Marques vs. Prodigalidad, 46 Off. Gaz.,
Supp., No. 11, 264; Calano vs. Cruz, G.R. No. L-6404, January 12,
1954). In this contest, however, it is undisputed that the issues are mixed
questions of law and fact; indeed, respondent-appellant has so stated in
his amended notice of appeal. Furthermore, if the findings of fact of the
Court of First Instance of Agusan regarding the existence of fraud and
irregularity in the conduct of the elections in sitioMaguinda of the city are
correct, and we have no appellate power to review said findings, then we
should concede that there was legal propriety in the annulment decreed
by the trial court of the votes cast therein (see 18 Am. Jur. 333-336).
Recourse to this Court, under the circumstances, would have been futile.
Finally, respondent Flores brings up the procedural question whether or
not certiorari lies, considering that the petitioner failed to file a motion for
reconsideration with the Court of Appeals from the denial of his motion to
dismiss. In Pajo, etc., et al. vs. Ago, et al., G.R. No. L-15414, June 30,
1960, we held that it is only when questions are raised for the first time
before the high court in a certiorari case that the writ shall not issue,
unless the lower court had first been given an opportunity to pass upon
the same. The records of this petition clearly disclose that the issues
herein raised have already been presented to and passed upon by the
court a quo. Moreover, when the respondent court entertained the appeal
of Flores, it did so beyond its appellate jurisdiction, since the right of
appeal did not exist by statutory authority, and not even the express
agreement of the parties could have cured that jurisdictional defect (see
Moran, Comments on the Rules of Court, Vol. 1, 1957 Ed., pp. lxii-lxiii).
WHEREFORE, the resolution of the Court of Appeals of March 17, 1961,
denying petitioner's motion to dismiss the appeal in CA-G.R. No. 28966-
R, is hereby set aside, and another one entered dismissing said appeal.
Costs against respondent Jaime M. Flores.
G.R. No. L-1271 December 4, 1903
THE UNITED STATES, complainant-appellee,  Shortly after 8 o'clock on the evening of August 13, 1902, the
vs.
TELESFORO DASAL, ET AL
FACTS
On September 11, 1902, an information was filed in the Court of First
Instance by the assistant prosecuting attorney of the city of Manila,
charging the thirty-five persons mentioned in the record with the crime of
murder. The information alleged that on or about the 13th day of August,
1902, while the defendants were on board theDos Hermanos, an
American steamer duly registered in the Philippine Islands, said steamer
being at that time within the navigable waters of this Archipelago and at a
distance of less than 1 mile from the beach of the town of Virac,
Catanduanes Islands, Albay, they willfully, feloniously, treacherously, and
with deliberate premeditation, assaulted, killed, and murdered one
Antonio Agudo, striking and wounding him with daggers, iron bars, and
other deadly weapons; and that afterwards, to wit, on or about the 2d of
September of the same year, the said steamerDos Hermanos entered
the port of Manila.
The information above mentioned refers to a crime committed on board a
merchant steamer, registered as a coasting vessel in these Islands and
at anchor in a port of one of the islands, therefore, under the provisions of
section 1 of Act No. 400, passed by the Civil Commission on May 16,
1902, by which the organic law of the courts, Act No. 136, passed June
11, 1901, was modified and extended. The steamer Dos
Hermanos having, after the commission of the crime, put into this city, it
is incontrovertible that the Court of First Instance thereof has sole
jurisdiction, to the exclusive of all other courts of the Archipelago, for the
trial of the case.
The information having been admitted and the defendants arraigned, the
plea of not guilty was entered. Before the trial commenced Isidro del
Valle and Tiburcio Soriano died; and with respect to the defendants
Damaso Sopgang and Carlos Septimo the case was dismissed, the
prosecuting attorney having entered a nolle prosequi.
From the evidence introduced at the trial, and especially from the
testimony of Miguel Morales, captain of the steamer Dos Hermanos,
together with that of First Mate Juan Zabala, Second Engineer Fabian
Rendon, and the other witnesses examined, the following facts
established:
steamer Dos Hermanos, a vessel bearing license No. 72, dated January
11, 1900, authorizing her employment in the coastwise trade, was lying at
anchor in the harbor of Virac, Catanduanes Islands, at a distance of
some 40 yards from the beach, with the bow toward the shore and the
stern seaward. The bow anchor was dropped and the stern made fast to
the beach with a cable. Supper was just over, and Captain Morales,
Zabala, the first mate, and five passengers, three of whom were men and
two women, together with Don Joaquin Romero, a guest on the vessel,
were sitting around the big table on the poop deck engaged in
conversation. The first and second engineers were amidships on the port
side, engaged in conversation just outside the officers' staterooms.
Suddenly the sound of the voices of many men rushing from the bow of
the ship was heard. Upon this Captain Morales and the mate, Zabala,
jumped up and went down toward the place where the tumult was in
progress. Just at this moment the first engineer's voice was heard
shouting, "Quartermaster," and at the same moment they saw the second
engineer, Rendon, coming toward them on the run, pursued by the
quartermaster, Pantaleon Cajilig, and several members of the crew,
armed with knives, daggers, and iron bars. One of them attacked Rendon
and wounded him in the back with a dagger or a knife, while the
quartermaster, in turn, attacked Captain Morales, inflicting upon him a
stab in the groin. Morales tried to get into the pantry. Some ten or
fourteen men endeavored to prevent him and one of them, in the course
of the struggle, cut him on the head with a knife. In the meantime First
Mate Zabala, believing that the noise was due to a fight forward, went
down the other side toward the scene of the disturbance. Upon seeing a
number of the crew, armed and evidently in mutiny, approaching him, he
retreated. He was, however, overtaken and Calker Elpidio Andrade
attacked him with a knife. In the struggle another member of the crew
approached him and endeavored to throw him into the sea, and
immediately after another seaman, Rufino de Jesus, struck him on the
head with an iron bar. Zabala, however, finally succeeded in shaking off
his assailants and made his escape into the pantry, where the captain
and the second engineer, Rendon, had taken refuge. They closed the
door and five of the mutineers, who unsuccessfully endeavored to force
an entrance, locked it with a key from the outside and remained on guard
there. Some of them endeavored to stab the inmates of the stateroom
with daggers and knives through the portholes. About the same time one
of the passengers, Faustino Tremoya, was wounded on the arm, and,
upon retreating, was pursued until he also took refuge in the pantry. He
was unable to recognize his assailant. Chief Engineer Antonio Agudo
was the officer first attacked when the mutiny broke out. He was assailed
by several of the mutineers and was wounded in ten places with different
weapons. The body of this officer was subsequently found in his
stateroom. The steward, Vicente Amellategui, was also attacked, and,
upon being struck with an iron hook, jumped overboard and disappeared.
His body was never recovered. The Chinese carpenter, Tan Chuen, also
disappeared and was not seen again after that night. While the attacked
was in progress the mutineers lowered the side awnings, which up to the
time of the commencement of the mutiny had been pulled up, the lights
on the steamer were extinguished, three of the boats which had been in
the water were raised, the cable by which the stern of the vessel was
fastened to the shore was cut, the accommodation ladder was hauled up,
the anchor raised with the donkey engine, the ship's engine were started,
and the steamer was put in motion, unquestionably with the intention of
leaving the port of Virac for parts unknown, and thereby escaping the
legal consequences of their acts. The record does not disclose the
motive which led to the commission of the crime.
First Lieutenant Fletcher, of the Constabulary, who was on shore that
night in the barracks near the beach, heard the shouting on board the
steamer, and, believing a fight was in progress, got into a boat with two of
his soldiers and headed for the steamer. This was at about 8.30 on the
night in question. After covering half the distance to the steamer he found
a man swimming. The latter was picked up, and, being barely able to
breathe, could gasp only the word "fight." This man proved to be Damaso
Sopgang. In the meantime the anchor was raised and the steamer
commenced to move. The boat containing the Constabulary officers ran
along the port side of the ship, and Fletcher shouted to the men on board
to drop the anchor, whereupon a man on the bridge threw a lump of coal
at him. Fletcher replied by firing at the man, who fell from the starboard
side of the bridge. Lieutenant Fletcher then commenced firing at several
men who were running the donkey engine near the anchor and ran his
boat around to the starboard accommodation ladder, but found this
raised. However, finding a hanging stage at the stern, he managed to
climb on board the ship, which was at that time in motion. When he got
on deck the captain, who was near his stateroom, shouted to him to
hurry. Lieutenant Fletcher ran to the engine room and fired a couple of
shots into it from his revolver, ordering the men below to stop the engine,
which order was immediately obeyed. He then ran down to the stern and
fired several shots at some men he saw there, all of whom fled excepting
three, who captured. Three or four others jumped into the water. A sailor
shot and wounded one of the Constabulary men and was, in turn, fired at
by Lieutenant Fletcher. During all this confusion the steamer ran aground
near the mouth of the harbor, about 150 yards from the place where it
had been anchored when the mutiny broke out. The first mate, Zabala,
and the second engineer, Rendon, jumped overboard and swam ashore.
The first engineer was found in his stateroom, dead, and covered with
wounds. On the following morning, after the Constabulary had the
situation under control, there were found scattered about the deck
daggers, knives, hatchets, and iron bars, some of them spattered with
blood, several piles of coal prepared for use as missiles, the captain's
swordstick, and later, hidden in a grease box in the engine room, one of
his revolvers. Vicente Gallardo, Circiaco Silva, Gregorio Almondia, Pedro
Rodriguez, Mamerto Avelilla, Rufino de Jesus, Marcelo Bertos, Pio
Tionson, Felipe Almendras, Emilio Lebiga, Manuel Raon, Juan Briguela,
Mariano Gunao, Antonio Villagracia, Pablo Concepcion, Dionisio de la
Cruz, Luis Dialao, Estanislao de Castro, Damian Oseson, Macario
Arevalo, Eugenio Olores, Severino Damagat, Cipriano Rizado, Luis
Taunson, Exequiel Perez, and Antonio Villamor were arrested and taken
ashore. Benigno Parra was apprehended on shore the next day, and
several days later Telesforo Dasal, one of the men who escaped, was
captured. Lieutenant Fletcher in his testimony stated that he could not
remember where Victorino Villacarlos and Tranquilino Aga were
apprehended; nor could he state whether the men arrested on board the
ship and those who were identified by him took part in the mutiny and the
assault upon the officers. He stated it was his belief that the purpose of
the uprising was to steal the money on board the vessel and to carry off
the vessel itself. He further testified that Pablo Concepcion and Benigno
Parra were wounded, the former in the hand and the latter in the side, by
shots fired by the Constabulary men. He stated that Telesforo Dasal was
wounded in the leg by a policeman at the time of his arrest on shore, and
that the quartermaster, Cajilig, who was seen with Dasal several days
after the occurrence, managed to make his escape. With respect to the
defendant Juan Briguela, Lieutenant Fletcher testified that after Briguela
was told that unless be obeyed every order given him he would be killed
he was asked why he had started the engines during the mutiny, and he
thereupon replied that at about 7 o'clock on the night of the occurrence
the quartermaster, revolver in hand, came to the engine room and told
him he was to start the engines whenever the signal was given and that if
he did not do so he would be killed. Other members of the crew who
were interrogated concerning the occurrence replied evasively and said
that they had not done anything. The Calker, Andrade, and the seamam
who attacked the mate Zabala and tried to throw him into the sea were
killed by the Constabulary in the course of the mutiny.
From the facts stated, it clearly appears that a number of men belonging
to the crew of the steamer Dos Hermanos conspired together to
overcome the rest of the crew and kill the captain and officers of the
steamer, with the intention of seizing the vessel and its contents and with
it leaving for parts unknown. This outbreak resulted in the death of the
first engineer, Antonio Agudo, the steward, Vicente Amellategui, and the
Chinese carpenter, Tan Chuen, and in the wounding of Captain Morales,
First Mate Zabala, Second Engineer Rendon, and the passenger
Faustino Tremoya.
The killing of the first engineer, Antonio Agudo, must be classified as
murder. He was put to death by several of the mutineers on the night of
August 13, 1902, they acting with evident premeditation and after
reflection concerning the perpetration of the crime, which they had
conspired together to commit. This circumstance determines the nature
of the crime and brings it within the provisions of article 403 of the penal
Code. The circumstance of evident premeditation is present in a marked
degree, for, without careful planning beforehand, the crime above related
would not have been committed.
The court below, in its judgment of February 11, 1903, condemned
Rufino de Jesus, Juan Briguela, and Telesforo Dasal to the penalty of
death and the other defendants to the penalty of life imprisonment at hard
labor, as authors of the crime of murder.
Although we agree with the judge below as to the classification of the
crime and as to the guilt of some of the defendants, we can not agree
with him as to that of others. With respect to some of the accused, the
record contains no evidence whatever that they took part in the crime
herein prosecuted. It is unquestionable that a portion of the crew of the
steamer Dos Hermanos participated in the mutiny and in the attack upon
the captain and other officers, and more especially upon the first
engineer, whose body was subsequently found wounded in ten places.
The presumption that some 10 or 14 men took part in that attack is based
upon the fact that in order to effect in so short a time the various acts
performed, many men must have acted together, although not
necessarily the 41 who composed the crew. It can not be denied that a
large portion of the crew did not take any part in the mutiny and had
nothing to do with the crime committed by the mutineers. Consequently it
was error to hold that all of the members of the steamer's crew should be
regarded as coprincipals of the crime in question. The record does not
disclose evidence of the guilt of all of the defendants, but only of some of
them, and the degree of guilt of these varies.
Carlos Septimo, Damaso Sopgang, and Jorge Orlano were also
members of the crew of the steamer, but nevertheless took no part in the
commission of the crime. The evidence also shows that there were
several other men who unquestionably were not implicated in the mutiny,
but who had not sufficient courage to follow Sopgang's example and
jump overboard. These simply concealed themselves on board the
steamer and waited for the termination of the mutiny, without attempting
to escape, as did the ringleaders, the quartermaster, Pantaleon Cajilig,
who has not been apprehended, and the helmsman, Telesforo Dasal,
who was arrested on shore several days after the occurrence.
Although Telesforo Dasal, Rufino de Jesus, Pablo Concepcion, Gregorio
Almondia, Emilio Lebiga, Benigno Parra, and Pedro Rodriguez pleaded
not guilty, the evidence as to the guilt of these seven defendants, the first
as co-principal with the quartermaster, Cajilig, and the two men who were
killed by the Constabulary, and the other defendants as accomplices, is
convincing.
Carlos Septimo testified that while he was going ashore in a boat on the
afternoon of the day the crime was committed, accompanied by Andrade,
the quartermaster, Cajilig, and the helmsman, Telesforo Dasal, he saw
these three men conversing together and heard Cajilig say to the other
two in Spanish, "Where shall we kill him?" although without stating who
was to be killed. This conversation shows that the mutiny and the killing
of the engineer Agudo and the other crimes committed had been planned
beforehand by these three men, one of whom was the defendant Dasal,
and that they were the ringleaders of the mutiny. While the mutiny was in
progress, Dasal, armed with a knife, aided the other mutineers in the
attack on the first engineer, Agudo, and also assisted the party led by the
quartermaster and the Calker in their attack upon the second engineer,
Rendon. This is the testimony of the latter and of the witness Jorge
Orlano. Furthermore, he was one of the men who pulled up the
accommodation ladder, directed that one of the boats be raised, and
accompanied the quartermaster to the engine room to order Juan
Briguela to get up steam. Consequently, it is unquestionable that he is
guilty as principal by direct participation in the murder committed.
This evidence given by the first officer, Juan Zabala, witness for the
prosecution, and by the defendants Benigno Parra, Juan Briguela, Pablo
Concepcion, and Emilio Lebiga has not been overcome by the assertion
of the defendant Dasal, who denies that he had anything to do with the
mutiny or the murder of Agudo.
The cooperation in the commission of a crime which results in fixing upon
the guilty agent the responsibility of an accomplice requires acts either
prior to or simultaneous with the commission of the crime which
constitute an aid and protection to the person guilty of the actual
commission of the crime; that is, perpetration of acts of moral or physical
aid given immediately by indirect means in such a way as to make it
clearly appear that the principal and the accomplices acted upon a
common agreement for the purpose of effecting some criminal act,
although the means employed by each may have been distinct and
separate. (Penal Code, art. 14; judgments of the supreme court of Spain
of April 25, 1877, January 22, 1884, April 2, 1886, and June 7, 1886.)
The case contains sufficient circumstantial evidence to warrant the
conviction of the other defendants Rufino de Jesus, Benigno Parra, Pablo
Concepcion, Gregorio Almondia, Pedro Rodriguez, and Emilio Lebiga as
accomplices in said murder. These six defendants were seen moving
about the deck of the ship during the mutiny, which they would not have
done had they not been implicated in the conspiracy. Some of them, as
Lebiga, Rodriguez, and Parra, were seen hauling up a boat and the
accommodation ladder, thereby making it impossible for Fletcher to
board the ship by means of the latter. These facts are shown by the
testimony of the witness Jorge Orlano. The acts referred to were
performed in obedience to orders given by the quartermaster, Cajilig.
Rufino de Jesus was one of the assailants of First Mate Zabala, although
the assault upon him was not the object of this prosecution. The evidence
during the prosecution does not show that Rufino de Jesus took a direct
part in the murder; nevertheless, the acts committed by him during the
mutiny must be regarded as acts of complicity or of aid or protection to
the murderers of First Engineer Agudo. It is worthy of note that both
Captain Morales and First Mate Zabala testified that the mutineers were
from ten to fourteen in number, and to their number must be added as
presumably guilty the quartermaster, Cajilig, who was not arrested, the
two men killed on board, and Isidro del Valle and Exequiel Perez, who
died after the trial commenced.
The defendant Parra was likewise ordered by the captain, who saw him
go by the front of the stateroom where he had taken refuge with the other
officers, to fetch him his revolver from his stateroom. Parra, although he
obtained the revolver, did not deliver it as commanded, and it was
subsequently found in his possession by one of the Constabulary. lawphil.net
The witness Concepcion testified that he was on watch at the stern of the
vessel when the mutiny broke out; that he saw the quartermaster, the
Calker, and the helmsman, Dasal, and one of the seamen run after the
first engineer, and that thereupon the witness immediately concealed
himself in one of the boats at the bow. This statement was incompatible
with the proven fact that during the mutiny Concepcion was seen walking
about the deck in front of the stateroom in which the captain and officers
had taken refuge.
Apart from the testimony of First Officer Zabala to the effect that he saw
Gregorio Almondia with the mutineers, Captain Morales affirms that on
leaving the pantry he found on the deck near the bow a black hat, which
turned out to be the property of the said Almondia. The latter, also,
according to the statement of Mamerto Avelilla, was the one who woke
him up when the mutiny broke out, he having been asleep in the
forecastle at the time.
The six men took no direct part in the murder of the first engineer, nor did
they induce the commission of the crime or cooperate in its commission
by acts without which the crime could not have been perpetrated.
Consequently, under article 13 of the Penal Code, they can not be
regarded as principals. They did indeed perform acts of aid and
assistance mediately and indirectly tending to the realization of the crime
and in conformity with the intention and purpose of the principals; and
therefore the responsibility of these six defendants with respect to the
murder is that of accomplices, under the provisions of article 14 of the
Penal Code.
The details of the attack upon the first engineer, Agudo, were not
determined at the trial, and the evidence does not disclose how the
attack commenced or what the position of the deceased was at the time.
If he was sitting with the second engineer, Rendon, by the side of the
table at which they had eaten, he must have noticed the approach of the
assailants, as did Rendon, who was able to seize a bar of iron to defend
himself. Consequently, as it does not appear that the deceased was
attacked treacherously and under circumstances which gave him no
opportunity to make a defense, it is improper to consider the qualifying
circumstance of alevosia present. The facts constituting this
circumstance must be proven with the same degree of certainty as the
crime itself and can not be inferred or presumed.
Mutiny on board a vessel is, of itself, a crime severely punished by
special maritime laws of the former sovereignty. However, this crime, as
well as other punishable acts, such as that of piracy, which the record
shows to have been committed, have not been the object of the
prosecution, and this decision must be limited solely to the crime of the
murder of Antonio Agudo.
In the commission of this crime it is proper to consider present the
aggravating circumstances of abuse of superior power, nocturnity, and,
with respect to the defendant Telesforo Dasal, abuse of confidence. As to
the first of these, owing to the great number of wounds inflicted on the
deceased, Agudo, it is to be presumed that he was simultaneously
attacked by several persons, and that the number of his assailants
prevented him from making a defense. With respect to the circumstance
of nocturnity, there can be no doubt that the mutineers availed
themselves of the darkness of the night, at a time when the officers and
the rest of the crew were off their guard, for the purpose of committing
the crime above related, and, with reference to Dasal, it is
unquestionable that, as he held the position of helmsman on board the
vessel, in placing himself, in company with the quartermaster, at the head
of the mutineers, and thereby using the influence he possessed over the
seamen and other members of the crew as a result of his position, he
abused the confidence reposed in him by the captain and officers of the
ship and committed an act of treachery with respect to them. On the
other hand, no mitigating circumstances were present, and consequently
the adequate penalty must be imposed in the maximum grade.
Against the other defendants, Estanislao de Castro, Circiaco Silva,
Mamerto Avelilla, Manuel Raon, Luis Taunson, Mariano Gunao, Vicente
Gallardo, Marcelo Bertos, Severino Damagat, Pio Tionson, Victorino
Villacarlos, Antonio Villamor, Dionisio de la Cruz, Cipriano Rizado,
Francisco Mendoza, Felipe Almendras, Macario Arevalo, Luis Dialao,
Eugenio Olores, Damian Oseson, Antonio Villagracia, and Tranquilino
Aga, the record contains no evidence, not even circumstantial, that they
took any part whatever in the mutiny or in the crimes committed on the
night of August 13, 1902, and more especially in the murder of Antonio
Agudo. Consequently they must be acquitted.
The majority of the court are of the opinion that the same is true with
respect to the assistant engineer, Juan Briguela, who they think should
also be acquitted of the charge. It is believed that he started the engine
under compulsion, the quartermaster having, revolver in hand, ordered
him to do so, and having threatened him with death if he failed to obey,
and, on the other hand, there is no evidence that he took part in the
murder of the first engineer.
I do not concur in the opinion of the majority in this particular. I believe
that, as the exculpatory allegation of the defendant Briguela has not been
proved, and in consideration of the evidence against him, it having been
proved that he performed acts of aid and protection to the principals of
the crime both prior to and simultaneous with its commission, he should
be convicted as an accomplice.
For the reasons stated, we are of the opinion that the judgment of the
court below should be reversed. Telesforo Dasal should be convicted as
coprincipal of the crime of murder and condemned to the penalty of
death, to be executed in the interior of the prison and in the manner
prescribed by article 101 of the Penal Code, the crime having been
committed prior to the passage of Act No. 451 of the Civil Commission. In
case defendant Dasal should be pardoned, he should be condemned to
the accessory penalties of absolute perpetual disqualification and
subjection to the vigilance of the authorities during his lifetime, unless
these accessory penalties should be remitted in the pardon of the
principal penalty. The other defendants found guilty as accomplices,
Benigno Parra, Pablo Concepcion, Gregorio Almondia, Pedro Rodriguez,
Emilio Lebiga, and Rufino de Jesus, should each be condemned to the
penalty of seventeen years of cadena temporal, to the accessories of civil
interdiction during the period of the principal penalty and to absolute
perpetual disqualification and subjection to the vigilance of the authorities
during their respective lives. The said defendants, including the said
Dasal, are further condemned to the payment, pro rata or in solidum, of
1,000 Insular pesos to the heirs of the deceased, Antonio Agudo, without
subsidiary imprisonment in case of insolvency, owing to the gravity of the
principal penalty, and to the payment each of one thirty-fifth part of the
costs of both instances. The defendants Ciriaco Silva, Mamerto Avelilla,
Manuel Raon, Luis Taunson, Mariano Gunao, Vicente Gallardo, Marcelo
Bertos, Severino Damagat, Pio Tionson, Victorino Villacarlos, Antonio
Villamor, Dionisio de la Cruz, Cipriano Rizado, Francisco Mendoza,
Felipe Almendras, Estanislao de Castro, Macario Arevalo, Luis Dialao,
Eugenio Olores, Damian Oseson, Antonio Villagracia, Tranquilino Aga,
and Juan Briguela are acquitted. The case is finally dismissed with
respect to Isidro del Valle, Tiburcio Soriano, and Exequiel Perez,
deceased, with the remaining costs of both instances de oficio, including
the share thereof pertaining to Carlos Septimo and Damaso Sopgang, as
to whom the case was dismissed during the trial. At the expiration of the
usual period the cause will be remanded to the court below,
accompanied by a certified copy of this decision for the execution of the
judgment. So ordered.