Mrs. Cerna further testified that the headlights (with 12 volts) of the truck were on during the shooting and a long time thereafter and that she saw the malefactors retreating (lbid, 95-97 tsn). De los Reyes, the driver, gave the following testimony on the Identity of the male factors:
The truck showed down and swerved to the left. Immediately after the truck had halted in front of the roadblock, or while it was about to stop, volleys of gunfire were directed at its front and right side which was near the cliff. The shots came from the right side of the road. The fusillade lasted only for a brief interval. Jabido and Candida Comahig jumped out of the truck after the firing had started. Barrientos remained in the back of the truck.
De los Reyes, the driver (a resident of Barrio Tutay, whose house was about 400 meters away and who was familiar. with the place), on hearing the shots, turned his head and saw Rodrigo Baricuatro and Generalao at tile end of the roadblock. The driver jumped out of the truck and sought cover under the truck near the left rear tire which was about four arms length from the pile of lumber. After the firing had stopped, he stationed himself behind the right rear tire.
As testified by him from that coign of Advantage he saw and recognized Moreno, Generalao, Romeo Baricuatro, Rodrigo Baricuatro and Carlos Paslon still holding their firearms. He was acquainted with them because they were well-known residents of Pinamungajan Their figures were silhouetted by the headlights of his truck which were on during the shooting.
After the firing had ceased, Mrs. Cerna perceived that her husband was gravely wounded. She shouted for help. As there were no houses in the vicinity, no one answered her clamor for succor.
Sometime later, the truck ("Estela") of Jose Pena companions arrived. Penas companions removed the roadblock. At that juncture, De los Reyes showed up. He drove the mayor's truck and took him to the poblacion. (On the witness stand, Pena in answer to a leading question of whether he asked Mrs. Cerna and her companions who shot the mayor, replied that "they said they did not know" [269 tsn January 5, 19721. That answer of Pena has been capitalized upon by the defense to counteract Mrs. Cerna's testimony that she knew the assailants of Mayor Cerna.)
The mayor was brought to Toledo City fifteen kilometers away. On arriving at that place, he was placed in another car and taken to the Don Andres Soriano Memorial (Atlas Consolidated Mining Company) Hospital at Lutopan where he died.
Injuries inflicted and results of the investigation at the scene of the crime.The autopsy on the body of Mayor Cerna disclosed six entrance gunshot wounds, located in the mandibular region, right shoulder, anterior chest wall, right arm, and left leg, and four exit wounds, aside from abrasions and contusions (Exh. A to A-2).
A slug was recovered at the right side of the lower lip of Mayor Cerna. It was lodged between the lower lip and the teeth of the victim or at his gums. The injuries caused by that slug involved the blood vessels, tissues and nerves of the injured portion of the jaw. The defense argues that, because of the wound in his jaw, Mayor Cerna could not have made a dying declaration to Mrs. Cerna and the chief of police that he was shot by Moreno and Rodrigo Baricuatro and their companions.
Mrs. Cerna sustained fractures in the ring and middle fingers and metacarpal of her left hand. An operation was performed on her left hand. It was permanently deformed. She spent P2,000 for her hospitalization Exh D-12).
Jabido had a gunshot wounded on his right cheek. He was confined in the hospital for eleven days (Exh. F).
Candida Comahig suffered contusions on her right knee and thigh which were not caused by buffets but by some hard objects, Probably, the contusions were the consequence of her having jumped out of the truck and having fallen on the hard ground (Exh. J)
De los Reyes had abrasions on the chin and a lacerated wound on his right arm was extracted (Exh. E).
Recovered at the scene of the crime were a grease submachine gun caliber .45 (issued to Constabulary Sergeant Mamerto Generalao), twenty-five empty caliber.45 shells, two empty caliber .30 shells, five slugs and a magazine with 25 rounds of ammunition, caliber.45. (Exh. B, C and II-I )
On the right side of the truck, there were fifteen bullet holes from a .45 caliber submachine gun, two bullet holes on the right side of the front and windshield from a .30 caliber rifle and twenty-six other bullet holes. And at the scene of the ambuscade, there were bloodstains on the road and footprints on the swamp nearby. (See Exh. H-1-B and H-3-A )
On the high ground near the curve, the investigators found empty cans, a Pepsi-Cola bottle, human waste matter, the remains of food, and the wrappers for cooked rice known as "puso", indicating that certain persons ate their supper there before the ambuscade. In that place, the aroma of tuba could still be smelt at seven o'clock in the morning of the following day, January 22,1970 (67, 70 and 72 tsn November 15,1971).
Mrs. Cerna testified that, as a consequence of the death of her husband, who was the family's breadwinner, their ice candy business, from which they derived a considerable daily income, was stopped. She spent P4,000 for the metal casket, ?4,000 for the twelve days during which the mayor's remains lay in state, and P7,000 for his marble tomb with a canopy.
Mayor Cerna's physical condition after the ambuscade.The fact that Mayor Cerna was wounded in the jaw generated a controversy as to whether he could have made the antemortem declaration, attributed to him by Mrs. Cerna, Chief of Police Lesigues driver De los Reyes, Anacleto Barrientos and Candida Comahig, that Moreno, Rodrigo Balicuatro and their companions were his assailants. According to the medicolegal officer, Mayor Cerna retained his power of speech in spite of his wounds (180 tsn June 19,1972).
Mrs, Cerna testified that after the fusillade Mayor Cerna bent forward, spat saliva mixed with blood and said that he saw Moreno, Rodrigo Baricuatro and the other persons to be arrested. Mayor Cerna allegedly told her not to leave him. She shouted for help and when nobody answered her, Mayor Cerna allowed her to leave the truck and go with Jabido to look for help. Even after Mrs. Cerna had gone down from the truck and failed to find Jabido, the wounded mayor allegedly told her not to leave the place. This was tearfully recounted on the witness stand by Mrs. Cerna. The session had to be suspended at that juncture (72-73 tsn September 2, 1970).
Then, when she informed Mayor Cerna that Penas truck had arrived, the mayor told her that Penas truck should be parked alongside their truck so that he could be transferred to Penas truck. But because the road was narrow, that maneuver could not be accomplished,
Anacleto Barrientos remained inside the mayor's truck when the ambuscade was being perpetrated. After the gunfire had ceased and when he heard Mrs. Cerna shouting, he thought that there was a Hold up. He left the truck and hid under the bridge. After about ten minutes, he emerged from his hiding place and saw Mrs. Cerna walking to and from front of tile truck. He wondered why the mayor had not left the Truck He went to the right side of the front seat to find out what had happened to the mayor.
He saw that here was blood on the mayor's white shirt. The mayor was leaning on the truck's steering wheel. The mayor saw him and asked him who he was. He Identified himself as a passenger who had boarded the truck in Cebu City.
The mayor directed to go after Moreno, Rodrigo Baricuatro and their companions who had fled to the elevated Portion near the scene of the ambuscade. He saw the cliff or elevated ground but he did not comply with the mayor's directive e went back to the bridge. While there, he heard the sound of the engine of a motor vehicle which was ahead of the cargo truck. lt seemed to him that the vehicle was in the of barrio schoolhouse. (The same sound was heard by Mrs.Cerna, Candida Comahig and Jabido.
Later, Pena truck arrived, the roadblock was removed, and De los Reyes, the driver of the mayor's truck appeared and started it. Barrientos seated himself on the right of the wounded mayor and placed his left arm around his left shoulder. The mayor told Barrientos to raise the mayor's right hand and to lift his left leg so that he (the mayor) could rest. Barrientosdemonstrated on the witness stand how he complied with the mayor's instruction (552-553 tsn September 1, 1971).
On the way to the poblacion, the mayor even asked Barrientos to take out something inside the back pocket of his pants since it caused him pain. Mrs. Cerna from time to time would call her husband "Do" and he would answer "Day".
When the truck reached the mayor's garage in the poblacion, the chief of police, who was on the lawn of the mayor's residence, was called by Mrs. Cerna and was informed that the mayor had been ambushed. The chief of police approached the mayor, who was being held by Barrientos, and asked him who had shot him. The mayor replied that he was shot by Dido Baricuatro and the other accused already known to the chief of police. The latter asked the mayor if he was referring to Moreno, Romeo Baricuatro, Carlos Paslon and Generalao. The mayor replied in the affirmative (10-14 tsn September 2, 1970; 241-2 tsn September 3, 1970).
According to De los Reyes, it was Mayor Cerna who suggested that the jeep of the priest be used in bringing him to the hospital because the cargo truck, which was old, might break down. After the priest said that it might not be good to transfer the mayor to the jeep, the mayor ordered that he be brought to the West Coast Hospital at Toledo City.
On the way to that place, Mayor Cerna asked the chief of police, who was sitting at his feet, if the place is still far. The chief of police cautioned him not to talk much because talking was not good for a wounded person. The mayor asked the same question of his wife when he was being brought to the hospital at Lutopan. When the mayor was being transferred from his truck to Barba's car, he cried Agoy Evidently, he was suffering much pain. He sat on the left thigh of Barrientos while he was in Barba's car. From time o time, the mayor would tell Barrientos to let him recline and then, he would tell the latter to let him "lay flat" on his back. He was restless and, obviously, subjected to paroxysms of pain.
Possibly, the transfer of Mayor Cerna from the truck to Mayor Barba's car in Toledo City and the trip from Toledo City to the hospital at Lutopan and the transfer to the stretcher of the hospital sapped his last reserved of resistance. He died seven minutes after his arrival at the hospital. As long as he was in the truck, his mental faculties appeared to be unimpaired in spite of the gunshot wounds. The mayor, a heavily built man, was endowed with a strong constitution. He weighed 198 pounds (102 tsn September 3,. 1970; 427 tsn September 1, 1970).
Appellants' contention that Mayor Cerna was already in a comatose condition alter he was shot and that lie could no longer talk is unfounded.
The credibility of Avelino Norteza on the complicity of the seven appellants, Crecencio F. Nemenzo et al.On January 26, 1970, a Constabulary officer filed in the municipal court against (1) Moreno (2) Generalao, (3) Rodrigo Baricuatro, (4) Romeo Baricuatro and (5) Carlos Paslon a single complaint for murder and multiple frustrated murder. The complaint was supported by the affidavits of Jose B. Lesigues the chief of police, Patrolman Eulogio B. Kyamko Jose de los Reyes (the driver) and Placido Mondejar. Lourdes Cerna and Jose R. Kyamko also executed affidavits dated January 28 and 30, 1970.
The municipal judge Conducted a preliminary examination and, having found probable, he issued a warrant for the arrest of the five accused, fixing the bail a t P50,000 each in his order of January 28, 1970
Moreno was arrested at Dumaguete City on January 28,1970 (Exh. 3-Moreno). Rodrigo Baricuatro was arrested on January 29, 1970 in Cebu City. Moreno and Baricuatro were released on bail on February 2 1970. Generalao, Romeo Baricuatro and Carlos Paslon went into hiding. The three were to be given a separate trial.
On February 4 1970 the municipal judge elevated the record to the Court of the Court of First Instance because of the nonappearance of the accused at the second stage of the preliminary investigation which they had presumably waived.
On February 24, 1970 the provincial fiscal filed in the Court of First Instance of Cebu at Toledo City five informants charging Moreno, Generalao, Rodrigo Baricuatro, Romeo Baricuatro, Carlos Paslon and three unknown persons with murder with atentado and four frustrated murders [Criminal Cases Nos. 10(T) to 14(T)].
On June 22, 1970 the fiscal filed amended informations charging attempted murder only in connection with the assaults against Candida Comahig and Jose de los Reyes [Criminal Cases Nos. 11(T) and 14(T)I.
The Court of First Instance transferred the five cases to the Circuit Criminal Court at Cebu City where they were docketed as Criminal Cases CCC-XIV-95, 129,130, 131, and 132. In case No. 95,warrants were issued for the arrest of Moreno and Rodrigo Baricuatro. No bail was recommended. The trial started on September 2, 1970.
About six months the trial had started, or on March 12, 1971, that is to say, after the witnesses, Jose B. Lesigues Lourdes Cerna and Jose de los Reyes, had testified at the trial, the fiscal filed amended informations against the five accused originally named and against eight new defendants, namely, (1) Crescencio F. Nemenzo (2) Rodulfo Umbay, (3) Salvador Pena (4) Roberto Paslon, (5) Victoriano Baraga, (6) Crispin Baraga, (7) Elpidio Baricuatro and (8) Ely Baricuatro.
The basis of the amended informations was the affidavit dated February 24, 1971 of Avelino Norteza who, as mentioned earlier, claimed to be privy to the conspiracy to ambush Mayor Cerna (Exh. 2-Romeo). On the basis of that affidavit, the fiscal conducted another preliminary investigation.
One important issue in this appeal is Norteza's credibility. The Solicitor General regards him as a perjured witness. At the trial, Norteza, a 37-year old mason and a high school undergraduate, testified that at about six o'clock in the evening of January 21, 1970 Crescencio Nemenzo Rodrigo Baricuatro, Rodulfo Umbay and Salvador Pena allegedly went to his house at Barrio Mangoto and invited him to go to Barrio Tutay for a drinking spree. They went to the cliff or the elevated portion in The barrio near the bridge, arriving there at about seven o'clock.
There, Norteza saw firearms (grease gun, Thompson, garand rifle) dumped under a tree. He also saw his friends, Roberto Paslon, Carlos Paslon, Victoriano Baraga, Crispin Baraga, Emilio Generalao, Elpidio Baricuatro, Romeo Baricuatro and Moreno. Using only one glass, they were drinking tuba mixed with Pepsi-Cola. Rodrigo Baricuatro allegedly disclosed to him that the group would kill Mayor Cerna. Norteza was given the option to select what firearm he would use.
The plan was for Ely Baricuatro to go to his house at Sitio Mohon Aloguinsan, and fire a shot as a signal announcing the approach of Mayor Cerna's truck. A piece of logs on the right side of the road near the bridge would be used as a barricade to block the truck. In accordance with that suggestion, Roberto Paslon, Carlos Paslon, Generalao, Crispin Baraga and Victoriano Baraga blocked the road with logs. The roadblock was removed when three trucks, none of which belonged to Mayor Cerna, passed by.
After the third truck had passed, a gunshot was heard. That meant that Mayor Cerna's truck was approaching. Some members of the group stationed themselves behind the roadblock. Others were stationed in the upper portion near the bridge. At that juncture, Norteza allegedly sneaked out of the place. He did not witness the ambush. On his home through the fields, he heard the gunshots coming from the place which he had left.
The foregoing testimony was the trial court's basis for convicting appellants Elpidio Baricuatro, Ely Baricuatro, Nemenzo Pena Umbay, Roberto Paslon and Victoriano Baraga. Can credence be given to Norteza's testimony? As already stated, the Solicitor General agrees with the appellants that Norteza is a perjured witness.
Norteza explained that he kept silent about the ambuscade for more than one year because he was fearful that he might be prosecuted and he was allegedly warned that if he squealed he and his family would be liquidated. He changed his mind because he realized that, eventually, it would be known that he had some knowledge of the conspiracy and because he surmised that if he disclosed what he knew about the killing of Mayor Cerna, other persons would follow his example and disclose what they knew about the unsolved killing of his brother, Miguel, on January 31, 1971.
We have conscientiously evaluated Norteza's uncorroborated and contradicted testimony. Our conclusion is that it cannot be accorded any credence. Consequently, the guilt of the seven appellants implicated by him was not established beyond reasonable doubt.
It is not merely the long delay in the giving of his testimony that impairs its veracity and engenders the notion that it might be fabricated. What strongly militates against his credibility is the undeniable fact that he was a follower of Mayor Cerna and, therefore, it is not believable that he would have been invited by the appellants (some of whom were confirmed political enemies of Mayor Cerna to join the conspiracy to kill the mayor. (1846 tsn January 11, 1972). And because he was a follower of Mayor Cerna, it is not surprising that he was used as a production witness in this case.
Norteza, as a tough guy, was well-known in the small town of Pinamungajan and its environs where, as in the case of small communities, political affiliations are noted-secret. The appellants could not be ignorant of the fact that Norteza and his father belonged to Mayor Cerna's faction The mayor was one of Norteza's three bondsmen in criminal Case No. 47'6-RP of the municipal court, a 1968 case, wherein he was charged with serious physical injuries for having assaulted Teodoro Alpas (Exh. 7 to 7-F Moreno. )Norteza voted for Mayor Cerna in 1967 election and for Mayor Cerna's son in the 1971 election. His father was leader of Mayor Cerna. (147,150 tsn November 17,1971).
In July, 1971, or after Norteza surfaced as a procecution witness, he was appointed a municipal caminero (1249 tsn November 16, 1971).
Nortezas version as to the conspiracy contains improbabilities. He made it appear that although the conspirators or the appellants had already decided on killing the and - I had foregathered ill the upper portion of Barrio Tutay to wait for he mayor's truck, they had not yet agreed On the specific measures to be employed in accomplishing their diabolical purpose. From Norteza's story, It appears that the conspirators had to converse aloud in his presence and agree on the blocking of the road and the giving of the signal announcing the approach of the mayor's truck and that they had to invite him to implement their plan.
He did not explain why his presence was still indispensable for the execution of the scheme to kill the mayor, considering that (according to Norteza's version) there were already thirteen armed persons present who were ready to perform their nefarious task. He did not mention any special qualifications on his part, which induced the conspirators to invite him to join them. These facts of his story appear to be incredible.
The fact that he did not join in the conversation; that he did not make any suggestions; that he was a mere listener; that he did not even participate in placing the roadblock and in removing it when certain trucks passed, and that he played a passive role or was a mere spectator makes it hard to believe that the conspirators would have taken him into their confidence.
It is within the realm of possibility that the seven appellants had some participation in the ambuscade and that someone, who had actual knowledge thereof but who was not indicted, had informed Norteza of what had transpired. But it is certain from the record that Norteza's uncorroborated testimony is not sufficient to prove the complicity of the seven appellants in the assassination.
Norteza's testimony contains details that convey the impression that he was a co-conspirator. Such details as the giving of the signal and the placing of the roadblock, and the passing of three trucks before Mayor Cerna's truck passed, might have convinced the trial court that Norteza was present when the preparations for the ambuscade were made.
But the record also reveals that other details were not mentioned by Norteza and that such omission casts doubt on the veracity of his testimony. For example, Norteza did not mention that the conspirators were provided with food which they ate while on the cliff, as shown in the telltale wrappers of "puso" rice and the empty tins of canned food (59 tsn July 24, 1972). Norteza could not tell the kind of firearms carried by the conspirators. He merely said that something was bulging at their waists. If he was a co-conspirator trusted by the appellants and was present on the cliff, he could have easily ascertained the kind of weapons carried by his companions.
Norteza's explanation as to his long silence is not convincing and satisfactory, It cannot erase the impression that he was a rehearsed witness whose testimony was concocted in order to strengthen the prosecution's case. The fact that he did not confide to his wife and parents his knowledge of the ambuscade (1239 tsn November 16, 1971) is quite unusual and may signify that he was not privy to the conspiracy.
In a grave case, like the instant case, the guilt of the accused cannot be predicated on delayed testimony, like that of Norteza's, which exhibits earmarks of fabrication. It would be highly injudicious to relay on such testimony because blanket acceptance thereof might result in the conviction of an innocent person. With the rejection of Norteza's testimony, the seven appellants, already name, should be acquitted.
Having disposed of the appeal of the additional seven defendants, we now address ourselves to the appeal of the original five defendants against whom criminal actions were filed in the municipal court of Pinamungajan in four of which cases Mayor Cerna conducted the preliminary examination and issued the warrants of arrest.
Case of appellant Moreno.He relied on an alibi the details of which his counsel did not bother to discuss in his brief. He testified that when the ambuscade was perpetrated, or in the evening of January 21, 1970, he was in the house of his sweetheart, Maria Milan, at Barrio Bakit Pinamungajan Maria Milan, Juan Dejito and Casiano Flores corroborated Moreno's alibi. Dejito and Flores are the brothers-in-law of appellant Nemenzo who in turn is a first cousin of the brothers, appellants Rodrigo and Elpidio Baricuatro.
However, Romula Gleocam the mother of Maria Milan, who lived with her, contradicted her and testified that Moreno called at their house at around nine o'clock in the evening of that day or after the ambuscade had been perpetrated. Maria Portes corroborated Romula's testimony.
It may be recalled that Mrs. Cerna, Barrientos and Candida Comahig testified that, after the gunfire had ceased, they heard the sound of the engine of a vehicle. They imagined that it was an concurring truck. Actually, it was leaving the scene of the crime. That sound came from that part of the highway near the schoolhouse or near Moreno's house at Barrio Tutay (69 tsn, Exh, 2-Moreno).
At around eight-thirty of that night, as Jose Kyamko, the brother-in- law of Mrs. Cerna, was crossing the highway, a jeep without any light passed by him. lt came from Barrio Tutay and was driven to the poblacion. Kyamko recognized it as the passenger jeepney which Leon Moreno, the father of Vedasto, had converted into a private vehicle. When the jeep passed Kyamko. he noticed that it was driven by Moreno. Beside him was Rodrigo Baricuatro. (See p. 37, Records of Crim. Case No. 95-Cebu.)
As already stated, according to Romula Gleocam at around nine o'clock on. that same night,, Moreno, riding in a jeep, went to the house of her daughter, Maria Milan, at barrio Bakit which was near the poblacion (Exh, T). Romula noticed that Moreno spoke in a quevering voice and that he look untidy f e I ed and attempt on prior occasions, he had a well-groomed appearance, After talking with Maria for about an hour, Moreno (Vidi) departed in his jeep.
Shortly thereafter Romula heard again the drone of the jeep. Moreno called and asked Rufina Milan (Romula's sister) that he be allowed to pass the night in her house because no one was allowed to pass Barrio Tutay. On that night Moreno slept at Rufina's house. When Moreno was already inside the use, Romula heard a man's voice outside calling Moreno and saying: "Boss, he is already dead". Moreno did not make any reply.
On the following morning, Moreno requested Luz, a daughter of Romula, to buy read in the market and to listen to the rumors being Spread around. After Luz had returned, she told Moreno that some persons in the street comer were saying that Moreno had killed Mayor Cerna. While Romula was preparing breakfast, she observed that Moreno was always looking out of the window. After taking breakfast, he left the house together with Maria Milan.
They rode in the jeep. They passed by the store of Maria Portes where Moreno bought cigarettes. When she handed the cigarettes to him, she noticed that he looked pale and that his hands were trembling In fact, he dropped the cigarettes on the ground. Se asked Moreno what was wrong with m He answered that he was being implicated in the killing of Mayor Cerna. She said that if he had not done anything wrong, he had no reason to be afraid.
Moreno testified that after bringing Maria Milan to the high school he went to his residence at Barrio Tutay and took his lunch there. Then, he went to Barrio Pandacan and supervised the gathering of the coconuts, the cutting of the bamboos and the plowing of the family lands. He went to the house of his aunt and passed the night there.
On the following day, January 23, his uncle, Francisco Gabante, arrived from San Carlos City. He went with his uncle to Trozo, San Carlos City, arriving there by boat in the early morning of January 24, 1970. He visited his aunt, Victoria Gabon. on the following day, January 25, he went to Bais City to visit his uncle, Felix Moreno. Then, the next day, he went to the residence of a lawyer at Dumaguete City in order to seek legal advice.
On January 28, 1970, he was arrested in that city by three Constabulary sergeants of the Cebu City Constabulary detachment. Moreno went to the Constabulary headquarters at Dumaguete City and slept there (Exh. 3, Moreno). He and the Constabulary sergeants took a boat on the following day and arrived at Cebu City on January 30 (Exh. 5-Moreno).
Maria Portes declared that after Moreno was arrested, he went to see her and requested her to testify that she saw him at the house of Rufina Milan at six o'clock in the evening of January 21, 1970. He offered her money. She refused to testify in his favor.
We are convinced that Moreno's complicity in the perpetration of the ambuscade was proven beyond reasonable doubt by the testimonies of Mrs. Cerna and the driver, De los Reyes, and the declaration of Mayor Cerna to his wife, the chief of police and Barrientos. The motive for the killing was sufficiently established. Moreno felt aggrieved by Mayor Cerna's issuance of the warrant for his arrest and by his incarceration and posting of four bail bonds which entailed the payment of a substantial amount as premiums.
Moreno's alibi, instead of showing his innocence, to confirm his guilt because, if he had no participation in the ambuscade, there was no reason for him to sleep in his sweetheart's house, three kilometers away from his residence in Barrio Tutay where the ambuscade was committed His flight to San Carlos City clearly signified that he had guilty conscience.
Case of Rodrigo Baricuatro.This appellant was 44 years old when he testified in 1972. He was a Constabulary sergeant connected with the reserve officers training corps (ROTC) unit of the University of the Visayas at Cebu City, with training and experience in perpetrating ambuscades. He testified that in the afternoon of January 21, 1970, he was given by his commandant a three-day pass so that he could go to Pinamungajan and transfer to a new residence on the lot of his parents. He arrived at Pinamungajan at past five o'clock. He and his wife took supper at six o'clock. Then he allegedly went to the house of Tonying Batitay to play mahjong. He was accompanied by appellant Umbay, his brother-in-law.
He stayed at Batitay's place until nine o'clock when the brother Eleazar and Jose Pena came with the information that Mayor Cerna had been ambushed at Barrio Tutay. Rodrigo Baricuatro, accompanied by Umbay and Loreto Quesido, left Batitay's place, and went home.
Two days later, or on January 23, 1970; Coronel Jose Nazareno, the Constabulary zone commander who was in Pinamungajan took him into custody because of the suspicion that the firearms used in the ambuscade might have come from the armory of the University of the Visayas. Rodrigo was in charge of the armory.
Upon his arrival at Cebu City, an inventory of the arms at the armory was made. He was later detained at the enlisted men's quarters and then at the guardhouse after a criminal charge was filed against hint He denied any complicity in the ambuscade. he refuted Norteza's statements implicating him in the assassination of Mayor Cerna.
However, and this is a decisive point, Antonio Batitay, the owner of the house where Rodrigo Baricuatro and Umbay y played mahjong from seven o'clock in the evening of January 21, 1970 (the night of the ambuscade), testified that and Umbay did not play mahjong in his house at that time. They arrived in the mahjong den shortly before nine o'clock or after the ambuscade was committed. The mahjong game was stopped after nine o'clock when news of the ambuscade was relayed to the mahjong players (156-7, tsn March 6,1972).
Batitay's testimony nullified Rodrigo Baricuatro's alibi and cancelled the testimonies of Eleazar Pena Loreto Quesido, and Beato Pefia and Sergeant Norberto Alvarado, supporting that alibi. The falsity of his alibi removes any doubt as to his guilt.
Like Moreno, Rodrigo Baricuatro was identified by the eyewitnesses, Mrs. Cerna and De los Reyes, as being present at the scene of the crime, and by Mayor Cerna himself in his declaration to them, to s and to the chief of police. Rodrigo had reason to surmise to Mayor Cerna instigated the criminal action for grave threats filed against him. Being a potential candidate of the Liberal Party for mayor in the 1971 election, he could believe that the elimination of Mayor Cerna would insure his election.
Four prosecution witnesses, namely, Placido Mondejar, Angela Yanong, Lazaro Deroy and Sergio Perito testified to certain incidents which reveal that Rodrigo Baricuatro had nursed the design to kill Mayor Cerna before the 1971 elections and had recklessly made an open avowal of that intention. -Rodrigo made a blanket denial of that imputation.
It would seem that before the ambuscade Rodrigo Baricuatro and Moreno had already prepared their alibis. Rodrigo would be in the mahjong den while Moreno would be in his girl friend's residence. What they did not foresee was that, immediately after the ambuscade, the finger of suspicion would be pointed at them by their fellow townsmen as individuals implicated in that iniquitous and dastardly deed.
Thus, Candida Comahig stopped her narrative about the ambuscade when she noticed that Rodrigo was among those listening to her. And Fiscal Alfredo S. Pancho testified that on the day following the ambuscade a group of around fifteen persons, some of whom were armed and drunked, stopped the Moreno bus at the public market of Pinamungajan and wanted to be brought to Sitio Tubod where Rodrigo Baricuatro was residing. The group harassed the bus driver and the conductor, the employees of Vedasto Moreno's family.
That circumstance led Fiscal Pancho, a bus passenger bound for Aloguinsan, to conclude that it was dangerous for Moreno to remain in Pinamungajan Because of that incident, the bus could not proceed to Barrio Tutay. It had to take a roundabout route via Carcar to Aloguinsan Fiscal Pancho rejected the offer that Moreno himself would drive the bus to Aloguinsan by way of Barrio Tutay.
Case of Romeo Baricuatro.This appellant, the nephew of Rodrigo Baricuatro, was thirty-three years old in 1970. He is married with five children. He was a student of criminology at the University of the Visayas in Cebu City. He declared in support of his alibi that in the afternoon of January 20, 1970 his wife came from Pinamungajan to inform him at his boarding house in Cebu City of the warrant of arrest issued against him in the four criminal cases pending in the municipal court. She also apprised him that Moreno had already been arrested, He testified that at around noontime, he took his wife to the bus station for her return trip to Pinamungajan At the station, he saw Avelino Norteza who was working as a mason in Cebu City.
Romeo denied Norteza's testimony that he was in Barrio Tutay in the evening of January 21, 1970. Romeo's alibi is that he was in the house of Atty. Rodolfo Acido in Cebu City at the time when the ambuscade was perpetrated. Romeo conferred with Atty. Acido whom he had hired as his counsel in the four criminal cases. His landlord, Mario Saromines, was with him when he conferred with Atty. Acido whom he had hired as his counsel in the four criminal cases. His landlord, Mario Saromines, was with him when he conferred with Acido. Romeo returned to his boarding house after nine o'clock in the evening. He was already in the boarding house when the whistle announcing the curfew for minors was sounded at ten o'clock.
Romeo explained that Norteza testified against him because the Cerna family had helped Norteza in a certain case and that Mrs. Cerna implicated him because she hated his uncle, Rodrigo.
Mario Saromines, a thirty-nine year old barber, corroborated Romeo's alibi. But Acido (Moreno's counsel in the preliminary investigation), whose, corroboration would be vital in establishing the truth of Romeo's alibi, did not testify in court. Hence, Romeo's alibi cannot prevail against tile testimonies of Mrs. Cerna and De los Reyes that he was among those who ambushed Mayor Cerna.
After eluding arrest for more than twenty-two months, Romeo was arrested by Sergeant Servando in his house at Sta. Cruz, Pinamungajan on November 20, 1971.
Cases of Emilio Generalao and Carlos Paslon.Generalao, a resident of Barrio Tutay, was thirty-eight years old when he testified in 1972. He reached the first year of high school. His alibi was that from January 6, I970 to May 3, 1971, or for about one year and five months, lie was doing farm work in Barrio Calibasan Toledo City which was fifteen kilometers away from the provincial road at Matab and to go to that place, one had to walk from Matab- ang. Filomeno Cantutay, a resident, of Calibasan Cantutay corraborated his alibi.
Generalao testified that in May, 1970, his white went to Calibasan to inform him that he was Implicated in the killing of Cerna. He returned to Barrio Tutay on May 3, 1971 in order to confer with his brother and his white regarding his surrender. lie denied shall lie was with Norteza in Barrio Tutay in evening on January 21, 1970. His theory was Chat Norteza was angry with him because he refused to help Norteza and his Brother in gathering the coconuts of Clemente Yanong.
He was arrested in his father's house on November 25, 1971 by certain Constabulary men named Aldaba Nebres and Carding and other whose names he did not know He said that he was brought to the Constabulary station at Pinamungajan where he was mauled by the Constabularymen and by Jesus Cerna and Jose Kyamko in the presence of several persons. Then, he was taken to the Constabulary headquarters at Salonga where he was again maltreated. 'There, he signed an affidavit which he did hot read.
The affidavit, Exhibit B-Generalao, was taken by Sergeant Benjamin Solante in the presence of Sergeants Nicanor E. Bancog and Edmundo Panistante and sworn to before Fiscal Benicio Arzadon who prosecuted this case. Generalao, on cross-examination by Fiscal Arzadon, denied that he signed freely that affidavit.
In that affidavit, Generalao admitted that on January 2, 1970, he killed Juanita Gabonada; that, because of that killing, he went into hiding at Sitio Calibasan and Barrio Guingkamote, Toledo City, staying with his brother-in-law Cantutay, his friend Marcelo Tante and his mother's cousin, Felicisimo Maturan; that he returned to his fathers house at Sitio Santa Cruz, Barrio Sacsac Pinamungajan on May 3, 1971 in order to surrender but he was not able to do so because he feared that he might be killed, so he just laid low and talked from time to time with Carlos Paslon and Romeo Baricuatro; that in November, 1971, in the course of an encounter with Constabulary soldiers, he threw away his Garand rifle and it was recovered by the Constabularymen and that his companions in that encounter were Carlos Paslon and Gavino Layar (Translation.)
Carlos Paslon, married, with seven children, was thirty six years old in 1972. He finished the fifth grade. His alibi was that from November, 1969 to February, 1970 he stayed in the house of his elder brother, Doming, in Barrio Lawaan, Talisay, Cebu. He was working as driver at six pesos a day with the Cebu United Enterprises. Afterwards, he lived in Duljo, Cebu City where his wife established a dress shop. He left Duljo in Ap 1971 and returned to Pinamungajan.
Paslon testified that in the evening of January 21, 1970 he attended a party in the house of Eutiquio Cabuenas in Barrio Lawaan. According to Paslon, the occasion was a "yearly devotion". According to Cabuenas, it was the birthday of his wife. Paslon could not remember the birthdays of his children.
Cabuenas corroborated his alibi However, on cross examination, Cabuenas declared when he testified on August 26, 1972 that the current month was July. Cabuenas admitted that he was requested by the wife of Carlos Paslon to testify that Carlos was in the house of Cabuenas in the evening of January 21, 1970. Carlos Paslon denied the imputation of Norteza that he was in Barrio Tutay on that date. Norteza was angry with him because he refused to sell a pig to him.
He was arrested on November 24, 1971 in the house of Sabina Intong at Barrio Sambagon, Pinamungajan by certain Constabularymen named Aldaba, Alpon and Carding who maltreated him. They stopped maltreating him when Sergeant Nebres told them that according to Mrs. Cerna, Carlos Paslon would be a State witness. He was brought to Sibonga where he signed an affidavit after having been mauled.
The alibis of Generalao and Carlos Paslon cannot be accorded any credence because they were positively Identified by Mrs. Cerna. And the fact that, like Romeo Baricuatro, they were fugitives from justice for around twenty-two months, hiding in the mountain barrios of Pinamungajan conveys the impression that they had a guilty conscience.
Appellants' criminal liability.As to Mayor Cerna, the offense committed was correctly categorized as the complex crime of murder with direct assault upon a person in authority (Arts, 48, 148 and 248, Revised Penal Code). The killing of Mayor Cerna was indisputably treacherous. The ambuscade exhibited the characteristic features of alevosia (Art. 14[161, Revised Penal Code), Nocturnity is aggravating because the appellants took advantage of the night for the consummation of their nefarious enterprise.
The killing constituted a direct assault against a person in authority (Art. 152, Revilla Penal Code- U. S. vs. Gumban 39 Phil. 76), as charged in the information, because the rule is that the person in authority or his agent should have been assaulted "while engaged in the performance of official duties, or on occasion on such performance".
At the time Mayor Cerna was ambushed, he was returning from Cebu City where he had transacted official business with the governor. The impelling motive for the direct assault was Mayor Cerna's performance of his official duty in conducting the preliminary examination of the four criminal cases against appellants Moreno, Generalao, Romeo Baricuatro and Carlos Paslon and the issuance of warrants of arrest which resulted in the incarceration of Moreno and constrained him to pay P1,000 as premiums on his bail bonds. Undoubtedly, that caused resentment. (Justo vs. Court of Appeals, 99 Phil 453; U. S. vs. Garcia, 20 Phil. 358).
As the crime is complex, the penalty of reclusion temporal maximum to death for murder, the more serious offense, should be imposed in the maximum period. Hence, the death penalty should be imposed on the principals. The trial court correctly imposed the death penalty upon Moreno and Rodrigo Baricuatro, whose guilt as co-principals in the assassination of Mayor Cerna, was established to a moral certainty.
For lack of the requisite votes, the death penalty cannot be imposed on appellants Generalao, Carlos Paslon and Romeo Baricuatro. They should be sentenced to reclusion perpetua.
In this connection, it may be noted that in People vs. Ubina, 97 Phil. 515, where Aureliano Carag, the mayor of Solano, Cagayan, was killed by eight persons led by Tomas Ubina, his political enemy only Ubina was sentenced to death because he was the one who conceived the plan and utilized his influence to perpetrate the killing. "For him justice cannot be tempered with mercy; the law must be applied to its full force and to its full extent." His four companions, who were indebted to him for personal favors, were sentenced only to reclusion perpetua. Three others, who were present at the killing but did not conspire with Ubina, were considered accomplices. (See People vs. Sakam 61 Phil. 27; People vs. Cabrera, 43 Phil 82; People va. Chua Huy 87 Phil. 258, and People vs. Ging Sam 94 Phil 139, capital cases, wherein not all those convicted as principals were sentenced to death.)
In the other four cases, the trial court convicted the appellant of frustrated murder. This is a glaring error. The trial court overlooked that there were only two informations for demonstrated murder. These refer to the cases where the victims were Lourdes Cerna and Jose de los Reyes. The other two informations charged attempted murder only in the cases where the victims were Candida Comahig and Francisco Jabido. In these four cases, the crime committed is attempted murder only because the injuries suffered by the victims could not have caused their death. Band (cuadrilla) is aggravating in addition to nocturnity
Only the five appellants originally charged should be held responsible for the attempted murders. We have already ruled that the seven additional appellants implicated by Norteza should be acquitted.
However, Generalao, Romeo Baricuatro and Carlos Paslon cannot be held responsible for the attempted murder committed against Jabido and De los Reyes because these two offended parties did not testify at their separate trial. Neither did Doctors Florante Batucan and Ramon Arcenas who examined the injuries of Jabido and De los Reyes and issued the corresponding medical certificates (Exh. E and F testify at the separate trial of Generalao, et al.
WHEREFORE, the trial court's decision is modified and the following judgment is rendered in these five cases:
1. In Criminal Case No. 95-Cebu, L-37801, appellants Vedasto Moreno Rodrigo Baricuatro, Romeo Baricuatro, Carlos Paslon and Emilio Generalao are convicted as co-principals in the crime of murder with assault upon a person in authority.
Moreno and Rodrigo Baricuatro are each sentenced to death, while Romeo Baricuatro, Paslon and Generalao are each sentenced to reclusion perpetua. The five appellants are ordered to pay solidarity to the heirs of Mayor Samson Cerna an indemnity of P50,000.
2. In the other four cases, Criminal Cases Nos. 129-Cebu, L- 37802; 130-Cebu, L-37803; 131-Cebu, L-37804, and 132 Cebu, L-37805, appellants Moreno and Rodrigo Baricuatro are convicted of four attempted murders and are each sentenced to four indeterminate penalties each consisting of four (4) years of prision correccional medium as minimum, to seven (7) years of prision mayor, minimum, as maximum, and to pay solidarity an indemnity of two thousand pesos (P2,000) to each of the three victims, Candida Comahig, Francisco Jabido and Jose de los Reyes. The same two appellants are further ordered to pay solidarity to Lourdes Cerna an indemnity of ten thousand (P10,000).
The penalty and civil liability in Criminal Cases No. 129, 37802 and 130, L-37803, involving Candida Comahig and Lourdes Cerna, are imposed upon appellants Generalao, Romeo Baricuatro and Carlos Paslon These three appellants have no liability in Cal Cases Nos. 131 and 132, L-37804 and L-37805, involving Francisco Jabido and Jose de los Reyes.
3. The other seven appellants, Crescencio F. Nemenzo Elpidio Baricuatro, Ely Baricuatro, Salvador Pefia Rodulfo Umbay, Roberto Paslon, and Victoriano Baraga, are acquitted in the five cases on the ground of reasonable doubt. The convicted appellants will pay the costs.
SO ORDERED.
Teehankee, Barredo, Makasiar, Antonio, Munoz Palma, Aquino, Concepcion Jr., Santos Fernandez and Guerrero, JJ., concur.
Castro, C. J., took no part.
Fernando, J., took no part.
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