From the evidence narrated above, there is no question that on night of March 9, 1966, between 11:00 and 12:00 o'clock, seven persons fired their guns at Anastacio de la Cruz and his family while ' these were crossing the bridge at Bardias, Villarosa, Licab in a tilburin and as a result Anastacio de la Cruz suffered gunshot wounds while his wife, Pilar Sebastian de la Cruz and his two children Cesario de la Cruz and Priscilla de la Cruz died on gunshot wounds. The question to be determined in view of the conflicting evidence presented by the promotion and the defense is who fired at Anastacio de la Cruz and his family.
While Pilar Sebastian de la Cruz was in the provincial hospital of Nueva Ecija after being brought there by Pat. Celso Santos of Licab Nueva Ecija, and while she was being treated Pat. Celso Santos took her affidavit, Exhibit B. In this affidavit, Pilar Sebastian made the following statement:
T- Sabihin mo nga at isalaysay ng boung linaw?
S- Ng kami ay pauwi na sa tulay Bardias, Villarosa ay mayruon pong bumaril sa amin.
T- Nakilala ba ninyo at ano ang pangalan?
S- Efren ang pangalan, at tagaruon sa amin.
T- Maliban kay Efren wala na ba kayong nakilala pa?
S- Wala na po at silay nagtakbuhan.
From this statement, Pilar Sebastian pointed out to Efren as one of those who fired at her and her family on the night of March 9, 1966. This Exhibit B partakes of the nature of a dying declaration for when she gave this statement she was in a serious condition and at the point of death. As a matter of fact two days after or on March 12, 1966 at 10:35 A.M., Pilar Sebastian died In this statement she positively Identified Efren as one of those suspects and this Efren is no other than Ceferino Pascual one of the accused, for according to her this Efren is living in her barrio.
Indeed, Ceferino Pascual admitted in cross-examination that of all Efrens mentioned by him, he is the only one living in Bardias, the barrio, which according to the evidence, is the mm barrio of Pilar Sebastian. This Exhibit B, being a dying declaration, constitutes a strong evidence pointing to Ceferino Pascual as one of those who fired at Pilar Sebastian and her family, which gunshots led to the death of Pilar Sebastian and her two children, namely, Cesario de la Cruz and Priscilla de la Cruz. When Pilar Sebastian made this statement, she was conscious that she was about to meet her Creator as to vanish from her and any attempts to tell lies and her only conforting consideration then to enjoy peace and serenity of conscience was to tell the whole truth, for a dying person tells no lies.
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This dying declaration Identifying Efren as one of the is corroborated by the statement of Anastacio de la Cruz. The evidence shows that upon receiving the report of this ambush, Mayor Tomas Villaroman of Licab, together with the chief of police, Paterno Esguerra and some policemen, proceed to the place of the incident. Here they saw Anastacio de la Cruz in pains. He was uttering groans condition and writhing and inquired from Anastacio de la Cruz what had been and this answered that they had been ambushed and shoot at by sons and stated that he recognized Efren Pascual, Adong and Gildo Pascual as among the seven who had fired at them. This statement was given between 1:00 o'clock and 1:30 o'clock on the morning of March 10, 1966, or barely one hour after de la Cruz and his family had been fired on. Such a statement given in evidence as part of the res gestae occurrence with to the of the incident can be given in evidence as part of the res gestae (Sec. 36, Rule 130, Rules of Court).
When Anastacio de la Cruz was brought to the municipal building, this statement given by him was confirmed in an affidavit, Exhibit A, which the then chief of police took from Anastacio de la Cruz. In this statement Anastacio de la Cruz stated in part as follows:
T- Nuong papauwi na kato galing sa panonood ng sine dito sa bayan may nangyari sainyo sa daan?
S- Mayruon po.
T- Ano ang nangyari sa inyo?
S- Kame po ay pinagbabaril ng pitong lalake at ang tatlo ay sina Efren Pascual, Gildo Pascual at Adong Cabigting.
T- Saan at kailan naganap ang pagkakabaril sainyo?
S- Sa pagbaba ng tulay ng Bardias, Villarosa, Licab, N. Ecija sa palagay ko ay bandang alas 12:00 ng hating gabe humigit kumulang iyan lang ang aking masasabe.
That this statement given by Anastacio de la Cruz immediately subsequent to their being fired at and while he was in a serious condition uttering groans of pains and barely one hour after the incident can be given in evidence as part of the res gestae. Thus, in a murder case, the outcries of the deceased naming the assailant is co as part of the res gestae (5 Moran, Comments on the Rules of Court. p. 333, People vs. Cuevas, L-5844-45, May 30, 1855). These statements were made by Anastacio de la Cruz while his nervous excitement wasting working on his mind and there was no opportunity or time for him to devise or contrive anything contrary to the real facts that occurred.
In the present case, from the time that the incident occurred to the time that Anastacio de la Cruz made those annulments to the mayor, no lances had intervened winch might have removed from his mind the exciting influence of the s occurrence and consequently he had no opportunity to deliberate and fabricate (5 Moran, Comments on the Rules of Court, p. 337).
This statement of Anastacio de la Cruz as part of the res gestae has been reiterated by him in his testimony in open Court where he positively and clearly pointed to the accused Herminigildo Pascual Ceferino Pascual and Leonardo Cabigting as among the seven who at them on that fatal night.
From what has been said, the dying action of Pilar Sebastian Identifying Efren or Ceferino Pascual and the spontaneous statement of Anastacio de la Cruz but by his testimony in Court pointing to Ceferino Pascual Heminigildo Pascual and Leonardo Cabigting as three of the seven who fired at them on the night of March 9, 1966, constitutes strong evidence of the participation of these three accused in the criminal act and consequently, these three accused are among the seven who fired their guns that evening and, hence, are responsible for the death of Pilar Sebastian, Cesario de la Cruz and Priscilla de la Cruz.
Their denials are ineffective to overcome the evidence of the prosecution, particularly the positive testimony of Anastacio de In Cruz. Surprisingly, the conduct of these accused right after the shooting incident has been quite suspicious. The statement of the accused Ceferino Pascual and Leonardo Cabigting to the mayor of Licab that when they heard the gunshots they were about 200 meters from the pass has been contradicted by Herminia Gaspar and the wife of Ceferino Pascual who related to the mayor that when they heard the gunshots they were already at home. This contradiction is evidence that these accused were not telling the truth as to their whereabouts during the incident, for if they were really in the cart about 200 meters from the pass then their companions would say so. And according to Mayor Villaroman when Ceferino Pascual and Leonardo Cabigting were brought before him they showed nervousness and were acting suspiciously and refused to sign any statements on the pretext that they had their lawyers. The Court does not doubt the veracity of the testimony of the Mayor of Licab, who is a disinterested witness, and whose impartiality has not been placed in doubt.
On the other hand, the excuse of Herminigildo Pascual that on the night of March 9, 1966, he slept in the house of his brother Ceferino Pascual is unbelievable., for, in the first place, when Patrolman Rosendo de la Cruz of Licab went to the house of Ceferino Pascual it took him one-half hour calling for Ceferino before the latter would answer him. If Herminigildo Pascual were then in the house of Ceferino, Rosendo de la Cruz could not fail to notice his presence and would have reported this fact to the mayor. In the second place, it is strange why Herminigildo Pascual would not sleep in his house that night, leaving there alone his wife and his children without his company and protection from possible marauders. His excuse that he was then watching his carabaos is too flimsy, for he should have taken those animals to his own place of residence where he could guard them as well as his family.
In the face of these considerations, the Court holds and ,declares that the denials of the accused are not worthy of credit.
It has been contended that the dying declaration of Pilar Sebastian is a fabrication because from the time Pilar was stated to the hospital to the time of her death, she was unconscious and in support of this claim defense relies on the contents of Exhibit 5. In the first place, the contents of Exhibit 5 were prepared by another resident physician than Dr. Cesar Roxas. Consequently, Dr. Cesar Roxas is not competent to this on the contents of this Exhibit 5. In the second place, this Exhibit 5 does not contain any statement that Pilar Sebastian at the time of her admission was in a state of coma. If she were really in such a condition this document, which is a clinical history, would bear out such a statement.
The mere fact that no such statement that Pilar Sebastian was in the state of coma appears in said document belies the statement of Dr. Cesar Roxas that from the nine of her n to her death, Pilar Sebastian was in such a state of coma. On the contrary, the evidence shows that even at 1:00 o'clock on the morning of March 10, 1966, Pilar Sebastian while alive was still with Hermogenes Felipe and Labrador in going to the municipal building of Licab. This is the testimony of Paterna Esquerra, the chief of police of Licab. Exhibit E shows that Pilar Sebastian died on March 12, 1966 at 10:35 o'clock in the morning or three (3) days after she had been shot. These circumstances show that Pilar Sebastian, far from being unconscious at the time of her admission to the hospital down to her death, could possibly have given a statement as she did to Pat. Santos and which statement appears in Exhibit B. The Court, therefore, rejects the testimony of Dr. Cesar Roxas that Pilar Sebastian from the nine of her admission to her death two days thereafter was in the state of coma or unconscious, as not worthy of credit.
The defense also claims that it would not be possible for Anastacio de la Cruz to Identify the accused as the persons who fired at him and his family on the night in question because the moon then was partly covered with clouds and 'm support of this statement the defense relied on the testimony of meteorologist Eugenie Manalo, who stated among other things, that at about 11:00 o'clock on the evening of March 9, 1966, 9/10 of the whole sky was covered with clouds, and, as such, the visibility of the moon was then reduced to about 10%.
This statement was based only on mere conjectures on the part of the meteorologist because he was not then on the very place of the incident at Bardias, Villarosa Licab, Nueva Ecija, while on the contrary the persons who were in that place, aside from Anastacio de la Cruz, such as the chief of police, Paterno Esguerra, decision that the night was then very clear because of the bright moonlight. Moreover, this testimony of Eugenie Manalo is contradicted and rendered ineffective by the certification of the Director of the Weather Bureau, Ramon Kintanar, who stated in Exhibit 2- Kabigting, that 'at 12:00 o'clock midnight, March 9, 1966, the moon was 90 per cent illuminated, Full Moon having occurred on March 7, 1966.
Such being the condition of the moon on the night of March 9, 1966, clear and radiant and 90 per cent illuminated, it was really possible for Anastacio de la Cruz and Pilar Sebastian to recognize the persons who ambushed them on that evening.
It is likewise contended that in view of the negative findings of the paraffin tests taken on the accused, these accused could not be the ones who fired guns on the night in question. The Court notes, however, that the one who applied the casts on the accused was not presented in Court so as to indicate whether in the application of the casts he committed mistake or not. The promotion consequently was deprived of the opportunity to cross-examine him. The possibility, therefore, that the one who administered the casts might have committed mistake cannot be excluded, as admitted by the forensic chemist Teresita Festejo.
Moreover, the fact that no gunpowder residue or nitrates were found on the hands of the accused is not conclusive evidence that they did not fire the guns on the night of March 9, 1966, for, according to the forensic chemist, if the hands of the one who fired a gun are covered with gloves or clothes, no nitrate can be found on them She also declared that if the suspect washes his hands with nitrate solution, nitrate will disappear and wear off, that weather conditions, use of gloves on the mechanism of the arms, wrong technique in the taking of the casts will not show the presence of nitrate powder, and that if there were strong winds which could carry away the powder, no traces of powder can be found on the hands of the one who fired the arm, or if the bolt mechanism of the firearm is tied, powder will not come out and the result will be negative of nitrate.
In the present case, the probability that the accused might have made use of gloves or might have covered their hands with clothes so as to prevent the presence of gunpowder on their arms can not be discounted because these accused from the observation of the Court, while they were on the witness stand, are capable of resorting to such ingenuity as they are highly intelligent. In fact, in not giving statements to the mayor after their apprehension, Ceferino P and Leonardo Cabigting gave as reason that they had their lawyers while Herminigildo Pascual was on his way to am his lawyer when he was taken by the police on the morning of March 10, 1966.
From these considerations, the Court has come to the conclusion that the paraffin tests conducted on the a are not so reliable and do not exclude the probability that the accused really fired guns on the receiving of March 9, 1966.
It has been urged by the defense that as the wounds of de la Cruz and Cesario de la Cruz are directed upwards, the testimony of Anastacio de la Cruz that when the three accused and the four others fired they were standing on the road and raised their guns to their shoulders is false, for in such a case the bullets would not assume an upward trajectory as indicated by the wounds but a horizontal direction and the point of entry of the wounds would be along the level of the point of exit. This contention of the defense is not supported by evidence, for Anastacio de la Cruz demonstrated in Court that when the accused fired they raised their guns to the line of their waists. He did not declare that they raised the guns to their shoulders.
With the guns placed along the waist of the accused, necessarily their nuzzles would be directed upward in order to hit the occupants of the tillburin, who must be at an elevation higher than the waist of the accused. Even a slight deflectio upward of the muzzle of a gun will cause the bullet ejected therefrom to rake an upward trajectory as to cause the entry of a wound produced thereby to be lower than the exist.
Moreover, Cesario de la Cruz was not seated but was standing in front of Anastacio de la Cruz, thus he was indeed higher in elevation to the muzzles of the guns of the assailants, he being them aboard a tillburin. And if the gunwielders were really behind the talahib grasses and in a much lower position in the canal when they fired the guns, then the grandchild of Anastacio de la Cruz, who was then on the floor of the tilburin, would have received the volleys of bullets but she was spared and was not hit by any bullet. This fact shows that the bullets came from the direction of the accused and their companions while on the side of the road as testified to by Anastacio de la Cruz.
To bolster its theory that the assailants might have been in the canal, concealed by the talahib grass, the defense rhetorically asks why the spent shells were not found on the side of the road itself but behind the takahib grasses. This assumption of fact of the defense is belied by the evidence in the records, for the very exhibit of the defense, Exhibit 8-Kabigting, show that two (2) spent shells were found on the road (Exhibit 8-A Kabigting) while three (3), behind the talahib growth. This has been testified to by the defense witness Patrolman Victor Espiritu of Licab.
This defense further contends that Anastacio de la Cruz in pointing at Ceferino Pascual and Herminigildo Pascual was moved by revenge because these two brothers incurred the ire and jealousy of Anastacio de la Cruz is the overseer showed more predilection to these two brothers instead of Anastacio de la Cruz for, according to them, Mrs. Rosario Gatmaitan, instead of passing by Anastacio de la Cruz in going to her hacienda, passed by them and this conduct or show of preference by Mrs. Rosario Gatmaitan in favor of these two brothers aroused the hatred of Anastacio de la Cruz to these two accused. And, in addition, that Anastacio de la Cruz entertained hatred toward herminigildo Pascual because this acted as witness in a case of robbery in band against Anastacio de la Cruz and others in criminal case No. 156 of the Justice of the Peace of Licab, Nueva Ecija, Exhibit 7-H Pascual.
If this pretension were to be accepted that Anastacio de la Cruz simply was moved by the impulse of hatred in pointing at herminigildo Pacual as among those who had fired at him, because this had acted as witness against him in a certain criminal case, then Anastacio de la Cruz, with more reasons, would have pointed also as one of the suspects, Antero Vicente, the very complainant in said criminal case No. 156, for Antero Vicente was the very instigator of the complaint charging him with others with the crime of robbery in band. If he really had the intention to fabricate and falsity that very evening, there was nothing that could prevent Anastacio de la Cruz from mentioning as one of the suspects Antero Vicente. That he did not do this shows that he was really relating the true facts that transpired that evening and that herminigildo Pacual and the other accused were the ones responsible for the shooting.
If the contest between Antastacio de la Cruz, on one hand, and the brothers Herminigildo Pacual and Ceferino Pascual, on the other, for the overseership of the estate of Mrs. Rosario Gatmaitan could be considered motive at all in this incident, such motive would have been more powerful on the part of the accused Herminigildo Pascual and Ceferino Pascual to do away with Anastacio de la Cruz. Indeed Anastacio de la Cruz declared that on the evening of January 10, 1966, Ceferino Pascual approached him while he was supervising the threshing of palay at the hacienda of Mrs. Gatmaitan and warned him not to continue as overseer his life would be in danger.
Ceferino Pascual in his testimony admitted that if he would become the overseer in place of Anastacio de la Cruz, he would earn 100 cavans of palay every year more or less. This statement is quite revealing of the motive of the accused. In order to earn this boon of 100 cavans of palay every year as overseer of a great estate it is not improbable for these two brothers to stake their lives. And to achieve this goal, the overseership of the hacienda of Mrs. Rosario Gatmaitan, they might have contrived of eliminating Anastacio de la Cruz by killing him, as they did in the night in question.
The motive alleged by Leonardo Cabigting that Anastacio de la Cruz implicated him in this case because this got mad at him after the former had killed the pig of the latter is so flimsy as not to merit any serious attention, for so light a pretex, it is inconceivable that a man would go to the extent of implicating Leonardo Cabigting in the serious offense of triple murder. Furthermore, Anastacio de la Cruz declared that he did not resent the shooting of his pig by Leonardo Cabigting as his son and Leonardo spoke to each other.
