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[ GR No. L-13025, Dec 29, 1959 ]



106 Phil. 816

[ G. R. No. L-13025, December 29, 1959 ]




On September  25,  1956,  Teodulo Rogado, alias Commander Sulit, Isaac Orenia, alias Commander Lawin,  Domingo Golfo, alias  Eser,  Cresencio Arsenal, alias Sako, Pedro Merin, alias Nestor,  Maximo Cerebo, alias Maneng, Pio  Mercurio,  alias Abling, Francisco Racoma, alias  Rolando, Nemesio Arsolacia, alias Noli, and Conrado Devesa, alias Donato, were charged with murder before the Court of First Instance of Laguna for the killing of one Salvador Areza.  They all pleaded not guilty.

During the  trial and  after several witnesses  for the prosecution have testified, Francisco Racoma and  Conrado Devesa  were excluded from the information upon motion of the fiscal to be utilized as government witnesses.  Later, upon motion also of the  fiscal, the charge was dismissed for insufficiency  of  evidence  with respect  to  accused  Nemesio Arsolacia,  Maximo Cerebo and Pedro Merin.  Then counsel  for the remaining  accused filed a motion to  dismiss  on the ground that the killing of the "deceased was accomplished  by them in furtherance  of the huk movement, but the motion  was denied.

Upon  resumption of the trial, counsel for  Teodulo  Rogado and Pio Mercurio moved for separate  trial on  the ground that their defense is incompatible with the defense of their  co-accused,  which motion was granted by  the trial  court.  And when both  parties have submitted  the case for decision, the trial court found the accused Rogado, Orenia, Golfeo and Arsenal guilty as principals of the crime charged and sentenced them to suffer the supreme penalty of death, while it  found Pio  Mercurio guilty  merely as accomplice  and  sentenced him to the penalty of from  8 years and 21 days of prision mayor as minimum to 14 years 19 months and 21 days of reclusion temporal as maximum, with the corresponding accessory penalties provided for by law.  Each of the four principals  was  also ordered to  indemnify the heirs of the  deceased in  the  sum of P6,000.00 and the accomplice  in  the amount of  P2;000.00, and all to pay their proportionate share of the costs.

Pio Mercurio having failed to file his brief, this  case is before this Court only for  the  review of  the decision rendered  against the accused  Rogado, Orenia, Golfeo  and Arsenal which imposes upon them the penalty  of death.

On July  12, 1956,  Salvador Areza, a  farmer residing in Lilio, Laguna, left his house carrying  with him a  bolo on its scabbard to gather firewood in his farm in barrio Bubukal.  When he failed to  return home that day,  his wife  Lydia  Nudal went out to search for him.   She was accompanied by some  armed men, the mayor, and a sanitary  health officer,  and after  a  brief search, they found the decapitated  body  of her  husband in  an  uninhabited place in Bubukal about half kilometer away from the road. The gruesome find revealed that Areza's  head was totally severed from his body with his hands tied together.  The health officer, Dr. Dominador  L. Gomez, found the body to be in a state of decomposition,  which led  him to conclude that the deceased must have  died three  to five days prior to his discovery.  Areza's bolo and his scabbard were also found near his body.

It appears that on July 12,  1956, Teodulo Rogado, alias Commander Sulit,  Isaac Orenia, alias Commander Lawin, Domingo Golfeo, alias Eser Cresensio Arsenal, alias Sako, Pedro Merin, alias Nestor, Maximo Cerebo, alias Maneng, Pio Mercurio, alias Abling, Nemesid Arsolacia,  alias Noli, Francisco Racoma, alias Rolando, and Conrado Devesa, alias Donato, were on their way from barrio  Sta. Lucia, Nagcarlan,  to the  municipality  of Lilio, Laguna.  They lost their way, and as  they were looking for someone  from whom they should get information as to their whereabouts they met Salvador  Areza whom  Racoma and Deveza approached.  Upon their inquiry, Areza informed them, that they were in barrio Bubukal, municipality of Lilio; that there was an army camp stationed  nearby; and  that the soldiers occasionally go on patrol to the  barrios.

The information was reported to Commander Sulit (Rogado) who in turn ordered that Areza be brought to him. After talking with  him, Rogado  asked Areza to  lead the way for them, but Areza refused  saying that he had much work to do, and besides he had a carabao  with him.  After a brief talk  with Orenia, alias Commander Lawin, Rogado told Racoma that they were taking along Areza and that if he should refuse, he should be tied, which instruction Racoma relayed to his two companions. Merin and  Arsenal, telling them to be prepared in  case Areza would give them a fight.   Thereupon, Racoma approached  Areza and asked if he could borrow from him his  bolo.  Areza  obliged. When Areza refused to go with them, Pio Mercurio dragged him along, and as he refused, Golfeo struck him with the butt of  his gun.

After walking a  short distance, Mercurio  tied Areza's hands behind him.  Areza protested telling Mercurio that he had not done anything wrong, whereupon Golfeo gave him a fist blow on his stomach.   After walking some distance, a command to stop was heard and so they  stopped. Racoma then approached Rogado and told him that they should release Areza at  night but  Rogado told  him that Areza should be killed and when Racoma returned to the group he found that Areza was being assaulted by Orenia and Golfeo.  At this moment, Racoma heard Rogado saying in the vernacular,  "Kill him now so we can  proceed."

Areza was then taken to a secluded place quite  far from the road,  which was thick forest about  20 or 30 meters away from the group, and there Golfeo ordered Areza to lie down.   With Areza's bolo and  ignoring the  plea for mercy of  their victim, Golfeo  gave him a blow on the neck  as he  lay face down and  with his  hands  still tied behind.  With the same  bolo, Arsenal also gave the victim another blow  on the neck which completely severed the head from the body.

On September  20, 1956, Pedro  Merin, a  member  of the group  who  surrendered  to the authorities,  made  a sworn statement before the Justice of the Peace of Nagcarlan,  Laguna,  stating therein that  Salvador Areza was killed by  Ezer and  Sako upon order of Commander Sulit.  Domingo Golfeo also made a sworn statement before the justice of the Peace of Sta Cruz, Laguna, admitting his participation in the killing of Areza upon order of Commander Sulit.  On  September 21,  1956, Cresencio Arsenal also made a written statement before the Mayor of Sta. Cruz,  Laguna, admitting that he was  one of those who killed Areza.  Both  Domingo Golfeo and  Cresencio Arsenal, while admitting their participation in the killing of the deceased, claimed in exculpation that  they acted under the pressure of an irresistible force in  that  they merely obeyed the order of their Commander, Rogado alias Commander Sulit, who would  have killed them  if  they disobeyed his order.  The other appellants merely contended that the killing  was  done in  furtherance  of  the huk rebellion.

There is no doubt that the unfortunate victim met his death in the hands  of the accused  who decided to take his life because of his stubborn1 refusal to obey their command that he lead their  way to the place they wanted to go in order that they may not be exposed and caught by the agents of  the law who were stationed  in a nearby municipality.  The  only  question to be determined  is whether the defense they have set up is sufficient to exonerate them from liability.

As regards accused  Domingo  Golfeo,  the evidence  is clear that it was he who first struck Areza with the butt of his gun hitting him  on  the side of  his body, then gave him a fist blow on his stomach,  and  after he had been taken to a secluded place, it was he who ordered Areza to lie  down in the fashion adopted by the Kempetai  during the gloomy days of Japanese occupation and in that position gave him a blow on the  back of the neck which  almost severed his head from the body.   His  participation  in the killing of Areza cannot therefore be  doubted.   His only defense is that he did so  in obedience to the order  of his commander, and because he acted under the influence of uncontrollable fear, he should be exempt  from criminal responsibility.

This defense  of  Golfeo  is clearly  untenable  not only because of the well-settled rule that obedience to an order of  a superior will only justify ah act which otherwise would be  criminal  when  the  order is for  a lawful purpose, but also  because the  circumstances  under  which Golfeo participated in the torture  and  liquidation of Areza cannot in any way justify his claim  that he acted  under an  uncontrollable fear of being punished  by his superiors if he  disobeyed their  order.  In the  first  place,  at the time  of  the  killing,  Golfeo  was  armed with  automatic carbine such that he could have  protected  himself  from any retaliation on the part of his  superiors if they should threaten  to punish  him  if he disobeyed their  order to kill Areza.  In the second place, the evidence  shows that Areza was brought to a secluded place quite far from that where his superiors were  at the time and in such a predicament, he and his companion Arsenal could have escaped with Areza to avoid the ire of their superiors.  The fact that he  carried  out their order although  his  superiors were  at  some  distance from him  and that  without pity and  compunction  he  struck his victim  in a  Kempetai fashion show that he acted on the matter not involuntarily or under the pressure of fear or force, as he claims, but out of his own free will and with the desire to collaborate with  the criminal design of  his superiors. In the circumstances,  we find that  the trial court did not err in finding him responsible for the death of Areza as co-principal by  direct participation.

The same situation obtains with regard  to  Cresencio Arsenal.   It appears that he was one of those ordered by Rogado to kill Areza  and in obedience to such order he had a direct participation in the killing.  It was he and Golfeo who brought Areza to a secluded place  and once there he helped Golfeo in  killing him with the same bolo which was  taken from  the  victim himself.   Thus,  it appears that after Golfeo had  given the first blow on the back of  the neck  of Areza  as he lay face down on the ground, Arsenal took the bolo himself and gave the fatal blow  which  completely severed the head of Areza  from his body.  There is  therefore  no  doubt  that Arsenal directly cooperated with Golfeo  in  carrying out the concerted plan of killing Areza because of the hostile attitude he adopted in denying them the help they demanded from him.  Since Arsenal took part in the killing under circumstances similar to those  existing in the  case of  Golfeo, his claim of obedience and fear of retaliation  if  he disobeyed his superiors' order cannot  also be entertained.

The other defense of  appellants refers to their theory that they killed  Areza not  for  personal motive  but in furtherance of the huk  rebellion and so, if any liability they have, it is only for  rebellion and for murder as they are charged.  And having already been  prosecuted and convicted of the crime of  rebellion  in Criminal  Case No. SP-137 of the Court of First Instance of  Laguna, their prosecution  in the instant case would constitute  double jeopardy.

To begin with, it should be stated that while this Court ruled in People vs. Hernandez, 99 Phil., 515, 52 Off. Gaz., No. 11, p.  5506, that there is no complex crime of rebellion with murder because the latter offense is absorbed by the former, however, a distinction was  made in the case of People  vs. Geronimo, 100 Phil., 90, 53, Off.  Gaz., No. 1, p. 68, where we held that if the killing is inspired by personal motive  such killing is not absorbed by the rebellion but may be the subject of separate prosecution.  In the second place, we find that the acts with which appellants now  charged do not appear included in the information for rebellion in Criminal Case No. SP-137, for in  that case  they were merely accused of having risen and taken up arms against the Philippine constabulary, Armed Forces of the Philippines, police forces and other  military detachments  of the government, without specifying the particular acts committed against private persons  or civilians which may be said to have been undertaken in furtherance of  the huk rebellion.  It is not, therefore,  correct  to  say,  as  appellants now claim, that the act in question is already  included or absorbed in the rebellion charge filed against them in said criminal case.

On the other hand, the pretense that the killing of Areza by appellants was done in furtherance of the huk rebellion is preposterous considering the fact that Areza was a mere farmer who had no connection whatsoever  with any  lawenforcement  agency of  the government.   The  pertinent question  that arises  is:  Why  was  he  then  killed  and brutally beheaded  by  appellant?

The  answer is well  given in  the  following interesting observation of the trial court:
"According to the testimony of the prosecution witness, Francisco Racoma, Salvador  Areza was maltreated, tied and killed because the latter refused to lead and guide the  group  of Rogado to the road when he was asked by the latter to do so.  Rogado's men were lost in  the mountains of Lilio and they needed somebody to help  them find the way out of  the place.  They  came upon Areza working in his  farm.  Rogado  asked him to  lead the way  and Areza refused saying that he had much work to do and he could not  leave  his  carabao.  Angered and irked by such stubborn refusal, Rogado after conferring with  his  co-defendant Orenia  gave the  order to  take  Areza along and to kill him. The killing of Areza  was done solely to satisfy  the anger of the leader, Rogado, who being used  to  the blind obedience  of his men could not  tolerate the refusal of Areza  to carry out his wishes and  desires.  The  rebellious  movement of  the group had nothing to  gain  by  Atienza's death. On the contrary, Rogado and his group needed Areza alive in order  that they could  utilize him as their guide  while  they were in the  mountains of  Lilio. There is no question that  they could have  easily at  the  point of  their thompsons, carbines and garands,  forced Areza to lead the way.  But they did not do so, because at that time Rogado was not so much interested in finding the  path  to the road; what  concerned him most was to teach a lesson and a hard one at that, to  Salvador Areza for having  the temerity  of  saying "no" to his wish and request.  Surely, to kill  a person  under those circumstances  is  obviously outside of the political intent of the Hukbalahap movement.  The huks rise  up  in arms because they mistakenly believe that  by  doing so  they can have  desired changes in the political, social, and economic  life  of this country. But to accomplish such a purpose, the death of innocent civilians like Salvador Areza  is  unquestionably  unnecessary.  When the killing is done  solely for  the purpose of   answering  the  lust  to kill or of satisfying  angered  feelings, thwarted desires of leaders and followers  of the Hukbalahap movement,  such a killing must receive its due punishment  at  the hands of our  courts which are called  upon to do justice  not  only to the living but just as  well to the dead."
An attempt was made by appellants to show that Areza was  killed because he  threatened to inform the Army of their presence in  the  neighborhood where  he  met them. Such  attempt,  however, is rediculous,  for Areza, being then  alone and  confronted with a  group of armed  men, could not have hurled such a  threat  without  catering immediate death.   As the trial court aptly observed:  "This Court cannot  believe that  Areza would  have been such a fool to tell  that band  of armed Huks that he would give them away to the  Army.   It  is  reasonable  to  presume that  any sane person  would  have seen  the danger  of making such a statement under the circumstances, for that would have been sure death."

The trial  court  found that the  crime was committed with the qualifying circumstances of treachery, aggravated by abuse of superior strength and the fact that it happened in an uninhabited place,  for which  reason it imposed upon appellants the supreme  penalty  of death.  While  some members  of the Court agree to  the existence of the above aggravating circumstances, others  however doubt if  they could be  entertained  in  the case  of appellants  who,  as members  of  the Hukbalahap  organization,  rightly  or wrongly,  were of the belief that  they were  justified  in doing what they had done because  Areza committed something inimical  to the purposes of  their organization.  At any rate,  the requisite number of votes for  the application of the supreme penalty not  having  been obtained, the only alternative is to impose upon them  the penalty of reclusion perpetua.

With this modification, we affirm the decision appealed from in all other  respects,  with costs  against  appellants.

Paras,  C. J., Bengzon, Padilla,  Montemayor, Labrador, Endencia, Barrera  and Gutierrez David,  JJ., concur.