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[ GR No. 25267, Dec 24, 1926 ]



49 Phil. 793

[ G. R. No. 25267, December 24, 1926 ]




The judgment  appealed from sentences the  appellant, for the crime of murder  committed on the person  of Antonino Jacinto, to cadena perpetua,  with the accessories of the law, to indemnify the heirs of the deceased, other than his widow Juana Rosenda, and two daughters, Dorotea and Oliva Jacinto, in the sum of P1,000 and the costs.

About April 19, 1925, Antonino  Jacinto, his wife  and two daughters lived  in  Mario Pamintuan's house  in the municipality of Angeles, Pampanga.  The facts in this case as stated by the Attorney-General are:
"That at about 11 o'clock on the night of April 19, 1925, the deceased Antonino Jacinto, the  accused Mario Pamintuan and one Melecio Santos went upstairs to the house of one Juan Cortes, situated in the municipality of Angeles, Province of Pampanga.  When,  after a few moments, the three decided to leave the house,  the accused Mario Pamintuan was the  first to go downstairs while Melecio Santos remained on the  bamboo porch  of said house waiting for Antonino Jacinto who had stopped for a drink of water. After the accused had come down and while Antonino Jacinto, who,  had then gone ahead of  Melecio Santos, was rinsing  his  mouth and standing with one of his feet on the first step of the  stairway about to descend, a revolver shot was heard which wounded the  said Antonino Jacinto, who thereupon cried out  that the accused  Mario Pamintuan  had shot him  with his  revolver,  and,  calling to Melecio Santos, asked the latter not  to leave him and to call his family  because  he felt he  was  about to  die on  account of having been wounded by the said accused. Judging from  the flashes produced by the said shot which were  seen through the interstices  of the porch floor, it must have been fired from beneath the same.  Upon  hearing the shot Juan Cortes and Melecio Santos started to run towards the  inside of  the  house shouting  for  help and the police.  The  accused Mario  Pamintuan did not respond to the cries for help given by Juan Cortes and Melecio Santos."
*      *       *      *       *       *       *

Antonino  Jacinto  received two wounds produced  by a bullet from  a revolver which entered  the  posterior region of the left abdominal wall, almost level with the lower edge of the last lumbar vertebra, and passed  out through the upper antero lateral right wall of the abdominal region, the location of the wounds indicating that the shot must have been fired from below in  an upward direction while Antonino Jacinto was  standing with  his  back towards  the assailant.  At daybreak Antonino Jacinto was taken to the municipal  building and  from there .to  the  San Fernando Hospital, where he died at 7.45 the following morning as a result of his wounds.

Early the following morning Lieut. Fortus of the Constabulary made an examination of the house and found on the porch floor, which was about 5 meters from the ground and made of split bamboo, an empty cartridge the appearance  of which indicated that it had been recently fired. Upon examining the condition of the porch floor he found that the interstices in the bamboo were as wide as 2% inches in some instances.

Immediately after the incident the justice of the peace and some police officers went to the house, Antonino Jacinto  still lying on the porch where he was shot, and the said Antonino Jacinto then told  the justice of the peace that he had been wounded by a revolver shot fired by Mario Pamintuan, who possessed an automatic revolver and who harbored  illicit intentions towards one  of his daughters. Antonino  Jacinto repeated this statement in the municipal building  in the presence of the justice of the peace and then of Lieutenant Fortus, affirming that Mario Pamintuan, after shooting him, started to run away but he was able to recognize him.  Antonino  Jacinto made this statement in the belief that he was about to die, not only for the sake of making it, but because he must have had this  belief in, view of the seriousness of his wounds as was shown  by the fact that he died a few hours later.

While Antonino Jacinto was in the municipal  building Mario Pamintuan was seen downstairs and was  arrested at daybreak that  same morning.

The deceased's  family showed  the greatest indifference and lack of interest in the incident.

When Agapito  Cruz, who  had  gone to  visit Antonino Jacinto  in the municipal building,  was  leaving to return to his house, he  was  followed  by Patricio Pamintuan, Mario's brother, who  asked him on the road to get  Mario Pamintuan's revolver which  was buried underneath the latter's house.   Agapito did so and got the 45 automatic Colt revolver, still smelling of powder, loaded with five cartridges, and at Patricio's suggestion  took it to his house in order to sell it later.  The revolver was afterwards found by the authorities in Agapito Cruz's possession.

The attorney for Mario Pamintuan tried to establish that the latter  had  left the house  where  Melecio Santos  and Antonino had gone, twenty minutes before the latter, going to his own house where, being almost asleep, he was informed of the shooting.   The wife and one of the daughters of the deceased  corroborated this testimony.   The attitude of the deceased's wife and daughter in testifying as  witnesses for the  defense  in this case is explained by their favorable  attitude towards the appellant and their indifference and lack of interest in the  deceased from the  first moment of the incident.  This favorable attitude of these witnesses towards the appellant went so far that they testified that  in the interview had with  the deceased before the latter's  death and after the incident, he insinuated. to them that  they  testify that it  was Mario Pamintuan  who fired the shot at him, when such exceptional witnesses as the justice of the peace and the nurse, Petra C. Orencia, who were  present at this interview,  denied  that the deceased had made such insinuation.

The fact that the  appellant went  downstairs  from the house almost at the same time as  the deceased, going on ahead, and at  the moment when he  reached the  bottom while the deceased was still on  the porch at the edge of the stairway about to descend, the shot was fired from below, the appellant having disappeared,  and  the  fact that the deceased upon  receiving the shot saw the  appellant  run, together with the other  fact of having recovered the revolver,  with which the shot must have been fired,  buried beneath the appellant's house, leave no  doubt as to his guilt. It is not improbable that the deceased was able to recognize him, considering that the porch was lighted by an electric bulb which gave light  all around  below.  The fact  that the appellant left the house at the same time as the deceased and Melecio is proven by the testimony of the owner of the house, Juan Cortes, who is a disinterested witness.

The circumstance  of  the empty  cartridge having  been found on  the porch  floor,  while it  seems strange because the shot was fired from below,  is  easily explained.  The shot was  fired from an automatic Colt revolver at a distance of a meter, by putting the barrel through one of the interstices of the porch floor.  Considering the height of the porch and the angle which, under the circumstances, would be formed by the floor and the barrel of the revolver, the empty cartridge, in escaping, must have entered through one of the interstices of the split bamboo floor and  then dropped on it.

Undoubtedly, in committing the crime the appellant employed means, methods and forms which assured its  consummation without any risk to himself from any defense the deceased might make, a circumstance which qualifies the crime as murder.

The Attorney-General in this instance contends that the aggravating circumstance  of nocturnity must be taken into consideration in the  commission of the crime and, consequently, the penalty  provided by law must be imposed in its  maximum degree. We believe, however, that this circumstance is included in that of treachery, which, qualifies the crime as murder.

The judgment appealed from is affirmed, with the costs against  the appellant.   So ordered.

Johnson, Street, Malcolm, Villamor, and Romualdez, JJ., concur.
Ostrand, J., with whom concur Johns and Villa-Real, JJ.,    dissenting:

In my opinion there  is  no reliable  evidence justifying the conviction of the defendant.   The dying declaration of the deceased, the only evidence directly connecting the defendant with the commission of the crime was  no doubt made in good faith, but the sketches Exhibits E and 4, and the photographs Exhibits 1 and 2 taken in connection with the oral evidence, shows conclusively to my mind that the deceased could  not  have obtained a sufficiently clear view of his assailant to enable him to identify the latter and that the dying declaration is  based on mere suspicion.  The deceased was shot from behind while standing on the batalan of a  house occupied by Juan  Cortes, one of the witnesses for the prosecution.  The floor of the batalan was a little over 5 feet from the ground and was made  of split bamboo, which, judging from the  photographs, was laid quite closely, though there is evidence that there were places where the  openings or interstices  reached  a width of 21 inches.  There  was no lamp on  the  batalan itself,  but there was  an electric bulb  or  lamp in  the  adjoining kitchen, which threw some  light on the batalan through an open door of ordinary width; that the light could not have been very  strong is  indicated by the fact that the flash  from the firing of the pistol was clearly visible.

The shot was fired through the floor from the  space beneath the batalan at a point between the kitchen  light and the place where the deceased was  standing.  There could therefore have been no light falling on the face of the person firing the shot, and taking into consideration the distance from the eyes of the deceased to the point where the bullet penetrated the  floor, it  seems obvious that it was practically a physical impossibility for the deceased  to have definitely identified his assailant.   One has  only to make the experiment of looking obliquely from a standing position  through an ordinary bamboo floor into  a dark  or only partially lighted space beneath to  realize the extreme improbability of the theory of the prosecution.

The deceased knew that the defendant possessed an automatic army pistol and this, in connection with the fact that the defendant was unwilling to go out with him on the evening in question and probably showed some resentment at being urged to do so,  undoubtedly led the deceased in his half-drunken condition to  believe that the defendant was the perpetrator of the crime.  But the town of Angeles  is situated close to the Stotsenburg Military Reservation and there is evidence to the effect that other residents of the town possessed automatic pistols purchased from the soldiers and held without licenses.   The evidence also indicates that the deceased had various enemies by reason of the facts that he was of a quarrelsome disposition and as a gambler often refused to pay  his  losses or debts.  In these circumstances, he might  well have been mistaken in his suspicion of  the accused, and it is  quite probable that the crime was committed by some other person.

The testimony of the witness Agapito Cruz is wholly incredible.  It is not denied that the defendant on a certain occasion slapped the face of Agapito in the presence of a number of other persons, an insult not very readily forgotten, and there can  be  no doubt that Agapito harbored enmity against  the defendant.   He testifies that  on the morning after the commission of the crime and as he came out from  the municipal building after a call on  the deceased, he met the  defendant's brother, Patricio  Pamintuan, who told him that there was a revolver concealed in the house of the defendant and requested him, Agapito, to go to the house and get the revolver  and thereafter  take care of it.  This story does not seem reasonable; if Patricio desired to conceal the fact that his brother possessed the gun, he would not have informed  a friend of  the deceased who also was his brother's enemy of that fact, but would have taken  care of the gun  himself.   There are other features about Agapito's testimony which render  it incredible, but which  I shall not take the time and  space to discuss.

The witness Cortes  in whose  house  the crime was committed is  supposed  to  be a disinterested witness, but he  is not a truthful one.  Though it clearly appears from the evidence that his house was a house of prostitution, he vigorously denies that fact and says that he does not know why the deceased, the defendant, and Melecio Santos came to the house about half past eleven, stayed there a few moments,  and again returned to the house sometime after midnight; that he  knew the  defendant slightly,  but did not  know  the other two,  and that he  conversed  with them, but did not try to ascertain why they came to the house. That  does  not seem  reasonable.   The testimony of Melecio Santos  that  the deceased was looking for  a prostitute by the name of Mameng with whom he desired to have intercourse and  whom he finally found in Cortes' house on his return there after midnight seems  much more probable.

The testimony  of the widow and of the elder daughter of the deceased rings true and if  they told the truth, the defendant  could  not have  committed  the crime.  It is argued that the fact that they showed but little emotion over the death of  the husband and father  casts  doubts upon their veracity,  but when it is considered that the deceased  was  a convict  in  Bilibid from  1907  until  1923 during which  time his wife and children  had to shift for themselves; that on his release from Bilibid he devoted himself to gambling as well as to sexual immorality, and that he received the fatal wound  while visiting a house of prostitution,  the  apparent indifference of  his family is easily understood.   It appears, however, from the  testimony of the justice of the peace that  the  widow  did her  best to alleviate the pain of her husband  while he was suffering from the  wound.

The testimony  of Melecio  Santos as to his and his  companions'  movements  during the  evening and night in question is probably in  the main true; he was severely cross-examined and testified consistently to a wealth of details without becoming involved incontradictions, something which would hardly have been possible  if his testimony had been without foundation in fact.

As  I have already  stated, there is no reliable evidence showing the defendant's guilt.  On the contrary, the weight of the evidence proves  him  innocent  of  the crime with which  he  is charged and he should have been acquitted.