[ G. R. No. 42884, September 28, 1936 ]
THE PEOPLE OF THE PHILIPPINE ISLANDS PLAINTIFF AND APPELLEE, VS. ARTEMIO CASTAÑEDA AND PEDRO FERNANDEZ (ALIAS PLRO), DEFENDANTS AND APPELLANTS.
D E C I S I O N
LAUREL, J.:
This is the third time that this case is under advisement in this court. Artemio Castañeda, Pedro Fernandez (alias Piro), Arsenio Nunag, Celestino Nunag and Hermogenes Capital were, on
September 16, 1931, charged before the justice of the peace court of La Paz, Tarlac, with the theft of a handbag belonging to Josefa Emas containing money and effects valued at P285, and a watch belonging to Tranquilino Yalo valued at P30. During the
preliminary investigation of the case Hermogenes Capital was, on motion of the provincial fiscal, excluded from the complaint so that he might be utilized as a state witness. The case having been bound over to the Court of First Instance of Tarlac,
the provincial fiscal filed the corresponding information accusing only Artemio Castañeda, Pedro Fernandez (alias Piro), Arsenio Nunag and Celestino Nunag of the crime charged. After trial, M. Rosauro, Auxiliary Judge of the Court of First Instance of Tarlac,
rendered a decision on July 15, 1932, acquitting Arsenio Nunag and Celestino Nunag, and convicting Artemio Castañeda and Pedro Fernandez (alias Piro) of the crime charged with the concurrence of the aggravating circumstances pf nocturnity and the
commission of the crime in the house of the offended party, sentencing them to three years of prision correctional and the accessory penalties of the law, to pay the proportionate costs of the action, and to
return to their respective owners the money in the sum of P218, and the fountain pen and watch or their value estimated respectively at P50 and P30, with subsidiary imprisonment in case of insolvency.
Artemio Castaneda and Pedro Fernandez (alias Piro) appealed from the decision Of the trial court on July 21, 1932. On July 28, 1932, counsel for the appellants moved for a new trial on the ground of newly discovered evidence, which motion was granted on August 4, 1932, by M. Buyson Lampa, Judge of the Court of First Instance of Tarlac. The provincial fiscal of Tarlac instituted certiorari proceedings before this court seeking to have the order of the Court of First Instance of Tarlac of August 4, 1932, granting the motion for new trial, declared null and void for want of jurisdiction. On November 15, 1933, this court granted the writ prayed for and annulled the aforesaid order of the Court of First Instance of Tarlac. (People vs. Buyson Lampa, 58 Phil., 757.)
The appeal took due course and the appellants reiterated their motion for new trial before this court. On May 24, 1934, this court set aside the judgment appealed from and remanded the case to the court below upon an express finding of irregularities committed by the presiding judge during the trial, and in order to allow the accused to present further evidence in accordance with their motion for new trial. (G. R. No. 41014, [60 Phil., 1011].)
Judge M. Rosauro, who presided over the first trial, heard the new evidence and again rendered a judgment of conviction on November 22, 1934, reiterating the penalty imposed in his original decision with the modification that instead of the fixed term of three years of prision correctional, an indeterminate sentence of from three months of arresto mayor to three years of prision correctional was imposed on the accused. Upon appeal, said judgment was affirmed by the majority of this court on January 31, 1936.
A motion for reconsideration was filed by the appellants on February 14, 1936, which was granted by resolution of this court of August 25, 1936. The rehearing was set for August 29, 1936. Counsel for both parties filed printed and typewritten memoranda.'
The acquittal of the accused is urged upon us on three grounds, namely: That the accused were convicted without due process of law, that they were not given an impartial trial, and that the evidence did not justify the judgment of conviction.
It is contended that there was not due process in view of the fact that Hermogenes Capital, the principal witness for the prosecution, himself particeps criminis, was excluded from the complaint and permitted to testify against the accused without following the requisites laid down by Act No. 2709. This was one of the irregularities specified in the order of this court of May 24, 1934, remanding the case to the court below for new trial. It has been held, however, that the only object of said Act No. 2709 is to prevent unnecessary or arbitrary exclusions from the complaint of persons guilty of the crime charged, and that it has nothing to do with the admissibility of their testimony or their competency as witnesses (U. S. vs. Abanzado, 37 Phi!., 658; U. S. vs. Enriquez, 40 Phil., 603; People vs. Badilla, 48 Phil., 718). There are, to be sure, cogent reasons for the contrary rule (Vide, dissenting opinion in U. S. vs. Enriquez, supra), but we do not think that the doctrine should be disturbed. In so far as the accused alone are concerned, therefore, the admission of the testimony of Capital, although the provisions of Act No. 2709 have not been followed in excluding him from the complaint, cannot be considered a violation of the due process of law clause of the Constitution. If any party is prejudiced at all, it is the witness erroneously excluded from the complaint, who is not relieved thereby from criminal prosecution (U. S. vs. Inductivo, 40 Phil., 84). Nevertheless, this places the testimony of said witness under the strongest suspicion, "this follows from the fact that it comes from a polluted source. Besides, the witness not being exempt from further prosecution, he can not be considered free from all influence that might induce him to pervert the truth.
Other irregularities committed by the presiding judge in the original trial pointed out in the decision of May 24, 1934, which are also made the bases of the contention of the defense that the accused were not given due process, was his improper conduct in virtually acting as the prosecuting officer in the examination of witnesses and in taking into consideration the information volunteered by Tranquilino Yalo during the ocular inspection of the premises where the crime took place, which declaration was not even made of record. This brings us to the second ground advanced by the defense: that the accused were not given an impartial trial. The force of the argument of counsel is strengthened by the fact that the same judge who betrayed his bias in favor of the prosecution and against the accused during the original trial, presided again over the re-hearing of the case in the court below. As a matter of fact, he incorporated in his second decision all his findings of fact in the first trial except such part which refers to the declaration of Tranquilino Yalo given out of court. Under such circumstances we can not reconcile ourselves to the idea that the accused really obtained a fair and impartial trial.
A strict regard for the constitutional rights of the accused would demand, therefore, that the case be remanded to the court below for new trial before an impartial judge. There are vital considerations, however, which in the opinion of this court render this step unnecessary. In the first place, the Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely Pedro Fernandez (alias Piro), had been confined in prison from July 20, 1932 to November 27, 1934, for inability to post the required bond of TB,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused come to an end and that they be immediately discharged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 650.)
In the second place,' upon a review of the evidence we find that it cannot upon the merits sustain a judgment of conviction. For a proper understanding of the case, a brief description of the premises where the crime took place is necessary. The house of Tranquilino Yalo where the offended party, Josefa Emas, was living, fronts Igualdad Street. The block on which it is situated is bounded on the right by a street without a name, on the left by Soliman Street, and at the back by Fraternidad Street. The house of Maria Mabasa where Josefa Emas was attending the wedding feast of her half-sister, Julita Emas, on the night of August 25, 1931, is located somewhere on Fraternidad Street beyond its junction with the street without a name. (Exhibit B.)
Termogenes Capital testified in detail that on his way to attend the wedding feast of Julita Emas on the night in question, he was accosted by the accused Artemio Castañeda and invited to join the latter and his companions in robbing the house where Josefa Emas was living. He refused at first but finally consented to join them. As previously arranged, when they arrived at the house of Tranquilino Yalo, the brothers Arsenio and Celestino Nunag stationed themselves in the street in front of the house, and Capital posted himself at the top o£ the main stairs at the right side of the house while the accused Artemio Castaneda and Pedro Fernandez went inside. Through the main door Capital saw Castaneda get a watch hanging on the wall of the living room. He saw the two accused get inside a small room and heard a noise as if somebody was calling "Dikong, Dikong" from the street and the calls becoming insistent he went down the stairs and around the house to the back thereof. Upon nearing the batalan he saw the two accused jump therefrom to the ground. He followed shortly afterwards and overtook them in front of the house of Servando Buan at the back. Castaneda there upon delivered to him a handbag after extracting therefrom some envelopes and fountain pen, with instructions to throw said handbag into the river. On his way to Cataguin creek where he disposed of the handbag, he passed Fraternidad Street.
Upon the other hand, the boys Policarpio Clemente and Fausto Ramos testified that while they were attending the wedding celebration they were invited by their playmate Jovito Bate to accompany him, said Jovito Bate having received orders from his aunt Beatriz Yalo to go to their house to see if everything was all right. They passed through the street without a name and thence to Igualdad Street. Upon arriving in front of the house of the Yalos they heard a noise and Jovito Bate called out "Dikong, Dikong". Hearing no answer they paused in front of the store which was just a meter away from the right side of the house, to watch what was going on in the house. Through the lower part of the house which was not fenced, they saw somebody jump from the batalan at the back of the house to the ground. Thereupon they ran around the house through Soliman and Fraternidad streets back to the house where the wedding was being celebrated to report the occurrence. They met Castañeda emerging from the canal bordering Fraternidad Street near the house of Buan. Castañeda even talked to Jovito Bate. Bate, however, was not called to the witness stand by the prosecution.
According to the testimony of Capital, while the two accused were ransacking the house of the Yalos on the night in question, the Nunag brothers were standing guard on Igualdad Street in front of the house and he was stationed on the topmost rung of the main stairs which was also visible from Igualdad Street. It was a moonlit night. Besides the inside of the house was lighted with a lamp. Yet when the boys arrived, they neither saw the Nunag brothers nor Capital. Neither did Capital see them although he testified having heard somebody call "Dikong, Dikong". Nor did the boys see Capital when he went down the stairs and all the way around the house after Bate had called out, in spite of the fact that the boys were then scarcely a meter away from the side of the house where the stairs were located. Yet the boys were able to see some body jump from the batalan at the back of the house which was farther away. According to the boys they saw the person or persons who jumped from the batalan because the lower part of the house was open, yet they did not see Capital who was alleged to have run after said persons shortly afterwards. Neither did the boys encounter hide or hair of Capital when he walked down Fraternidad Street on his way to Cataguin creek in spite of the fact that they immediately went around the house by way of Soliman Street through Fraternidad Street on their way to the house of Maria Mabasa.
It seems that Capital, on the one hand, and the boys presented to corroborate his testimony, on the other hand, were mutually invisible to each other during the entire occurrence, in spite of the fact that at one time or another they were nearer to each other than to the person or persons whom they all allege to have seen jump from the batalan at the back of the house.
There is no doubt but that Capital was an active participant in the commission of the crime in question. What remains to be determined is whether the accused Artemio Castañeda and Pedro Fernandez were really his co-principals therein. Resolved into a dilemma, either Capital was a truthful witness or he was giving false testimony with respect to the alleged participation of Castañeda and Fernandez in the commission of the crime.
If Capital was telling the truth, necessarily the testimony of the boys must have been fabricated in order to corroborate his confession for their testimony is so irreconcilably in conflict with his story as to negative their presence at the time of the occurrence. Discounting the testimony of the boys, therefore, the confession of Capital is bereft of corroboration. The finding of the handbag in Cataguin creek is no corroboration of the participation of the accused in the commission of the crime for the reason that it was Capital himself who planted it there. It is well settled that to sustain a conviction, the corroborative evidence must, independently of the confession, prove or tend to prove that a crime has been committed and that the accused committed it or was connected with it (Underhill on Criminal Evidence, 2d ed.f sec. 147, p. 280).
On the other hand, if Capital were testifying falsely in order to incriminate the accused, it does not follow that the boys were telling the truth either. It is to be observed that according to Policarpio Clemente, they saw only one person jump from the batalan on the night in question, and that they saw only one person emerge into Fraternidad Street in front of the house of Buan on their way back to the wedding feast; while Fausto Ramos was equally positive that they saw two persons jump from the batalan and that they saw also two persons step out of the canal bordering Fraternidad Street when they passed there on their way to the house where the wedding: was being celebrated. The trial judge tried to reconcile this conflicting testimony with the explanation that according to Fausto Ramos, Policarpio Clemente was about four meters behind him when they saw the unknown persons jump from the batalan, Fausto Ramos declared further, however, that the two persons jumped successively (segnidamente), both of them running in the direction of the house of Buan. Under the circumstances we cannot comprehend how Clemente could have seen only one of them. Neither does the fact that Clemente was trailing a few meters behind Ramos on their way back to the house of Maria Mabasa, explain his repeated failure to see the two persons on the open street in front of the house of Buan.
Even if the boys were testifying as to facts which they really saw and heard on the night in question, their testimony is insufficient to convict the accused. It should be noted that none of the boys recognized the person or persons who jumped from the batalan. According to Placido Valencia who was chief of police of the municipality of La Paz at the time, when he questioned Jovito Bate at the municipal building following the commission of the theft, the latter declared that he did not recognize the two men who jumped from the bataldn because he saw only their backs. Valencia then proceeded to investigate the premises where the crime took place. When he questioned Jovito Bate again, the latter identified Artemio Castañeda as one of the men who jumped from the batalan. As we have indicated already, Bate did not testify during the trial. True, Clemente and Ramos declared having recognized Castaneda at Fraternidad Street, but the mere fact standing alone that Castañeda was alleged to have been seen near the locus of the crime on or about the time of its commission is not sufficient to justify his conviction thereof. Upon the other hand, evidence was presented by the defense tending to show that Castañeda was all the time in the house of Maria Mabasa attending to the guests at the wedding during the entire occurrence. Much less could the conviction of Pedro Fernandez be justified for the reason that none of the boys recognized him as being in the company of Castañeda on the night in question.
As we have indicated beforehand, the testimony of Capital should be received with extreme caution. Considering all the evidence presented we cannot accept as true the allegation of Capital as to the participation of the accused in the commission of the crime in question. There is evidence to show that the companions of Capital on the night in question were Agapito Aguilar and Lucas Marcos. Cornelio Lugtu and Marciano Pacat, testifying for the defense at the new trial, declared that on their way to the house of Maria Mabasa on the night in question they saw Hemogenes Capital, Agapito Aguilar and Lucas Marcos hurriedly walking from the lot of Bernardo Buan into the street and thence to a ricefield near the creek. Procopio Reyes, also testifying at the new trial, declared that he was catching frogs behind the lot of Beatriz Yalo between eight and nine o'clock on the night in question. He testified that he heard a noise coming from the fence behind the house of Beatriz Yalo and saw three men hurriedly leaving the place, taking the direction of Fraternidad Street. As they passed him, he raised his lantern and recognized Hermogenes Capital, Agapito Aguilar and Lucas Marcos. It is interesting to note that when the Philippine Constabulary intervened in the case in view of the failure of the chief of police of La Paz to file the necessary complaint for lack of evidence, Lt. Vargas arrested Agapito Aguilar and Lucas Marcos on August 30, 1931 at the suggestion of Josefa Emas herself, and brought them to San Miguel for investigation. Lt. Simon Garcia, station commander at San Miguel, who questioned the suspects, declared that they ad- mitted having been invited by Castañeda to rob the house of Josefa Emas on the night in question. He stated, however, that when he questioned Aguilar as to who were his companions when he was invited by Castañeda, the latter answered that he was alone; whereas when he questioned Marcos, the latter answered that both he and his companion Aguilar were invited by Castañeda.
The motive which might have induced Capital to give false testimony against the accused is not far to seek. There is evidence to show that Capital had a grudge of long standing against Castaneda. He admitted that three years before the occurrence of the crime in question he had a fistfight with Castaneda as a result of which there was ill-feeling between them. Capital tried to mitigate the effect of his admission by declaring that they already had a reconciliation which happened upon Castaneda's return to La Paz from Cabanatuan, Nueva Ecija, where the Castanedas moved following the quarrel. Upon cross-examination, however, it was shown that Castaneda returned to La Paz from Cabanatuan some six years before the occurrence of the crime. Castaneda on his part denied such reconciliation. It is easier to believe, therefore, how Capital could have conceived the incrimination of the accused as a means of revenge, than that Castañeda, assuming that he really intended to rob Josefa Emas, should confide his criminal designs to an enemy.
It strikes this court as incredible that a person intent on the commission of the'crime of simple theft should go about inviting so many persons to assist him. It is alleged that Castaneda was already accompanied by Pedro Fernandez, Arsenio Nunag and Celestino Nunag on the night in question. Yet he is further alleged to have invited his personal enemy, Capital, to join him in his criminal enterprise. But this is not all. He is also alleged to have approached Agapito Aguilar and Lucas Marcos for the same purpose. Castañeda appears to be an intelligent person; at the time of occurrence of the crime he had already graduated from high school. He also appears to be related to Josefa Emas on his father's side. It is absurd to think that in order to steal something from the house of a relative he should solicit the assistance of such a motley crowd.
Given this background, we do not need to go farther into the evidence presented by the defense tending to show that this criminal proceeding is the result of the combined machinations of Pacifico Pascual, municipal,president of La Paz and arch political enemy of Castaneda's father, and of the offended party, Josefa Emas, niece of Pascual, who had her own axe to grind against the Castañedas because Artemio Castañeda had been living with her half-sister, Honorata Emas, without the benefit of clergy and previous to the filing of the complaint had openly refused to marry her.
In view of the foregoing, we hereby set aside the decision promulgated in this case on January 31,1936, and hold that the accused should be, as they are hereby, acquitted, with costs de oficio. So ordered.
Avanceña, C. J., Villa-Real, Abad Santos, Diaz, and Recto1, JJ., concur.
1 The foregoing decision is fundamentally in accordance with the dissenting opinion penned by Justice Abad Santos from a major- ity opinion penned by the then Justice Vickers, finding the accused guilty of the crime charged. I subscribed said dissenting opinion and, therefore, it is but an act of consistency on my part to subscribe the new decision acquitting the accused. (Sgd.) Claeo M. Recto.
DISSENTING
IMPERIAL, J.:
This cause was decided by the former court. Nine justices took part in the consideration of the case. The comprehensive decision, carefully penned by Justice Vickers, was signed by 7 justices, while 2 justices dissented in a separate opinion and 2 others took no part.
Said decision was rendered after a new trial was granted the accused, the same having been promulgated on January 31, 1936. The next day Commonwealth Act No. 3 took effect and this court was accordingly reorganized and 7 members were duly appointed in lieu of the old court composed of 11 justices. On February 14, 1936, a motion for reconsideration was filed by the attorneys for defendants-appellants and on August 26, 1936, the motion was granted, the former judgment was set aside and a rehearing on the merits was had. These facts show how defendants-appellants speculated on the case and succeeded in their effort to defeat the judgment of conviction which was concurred in by 7 affirmative votes.
The majority decision, as it now stands, does not cover any question of fact or of law which has not been duly and exhaustively considered and passed upon in the former decision. In fact, all the arguments in support of the motion for reconsideration were predicated on points which were already settled in the former decision. In my opinion the real facts proved beyond reasonable doubt set out in the decision of the old court still hold true. For this reason and adhering to the former conclusions of fact and of law, I dissent from the majority decision.
Artemio Castaneda and Pedro Fernandez (alias Piro) appealed from the decision Of the trial court on July 21, 1932. On July 28, 1932, counsel for the appellants moved for a new trial on the ground of newly discovered evidence, which motion was granted on August 4, 1932, by M. Buyson Lampa, Judge of the Court of First Instance of Tarlac. The provincial fiscal of Tarlac instituted certiorari proceedings before this court seeking to have the order of the Court of First Instance of Tarlac of August 4, 1932, granting the motion for new trial, declared null and void for want of jurisdiction. On November 15, 1933, this court granted the writ prayed for and annulled the aforesaid order of the Court of First Instance of Tarlac. (People vs. Buyson Lampa, 58 Phil., 757.)
The appeal took due course and the appellants reiterated their motion for new trial before this court. On May 24, 1934, this court set aside the judgment appealed from and remanded the case to the court below upon an express finding of irregularities committed by the presiding judge during the trial, and in order to allow the accused to present further evidence in accordance with their motion for new trial. (G. R. No. 41014, [60 Phil., 1011].)
Judge M. Rosauro, who presided over the first trial, heard the new evidence and again rendered a judgment of conviction on November 22, 1934, reiterating the penalty imposed in his original decision with the modification that instead of the fixed term of three years of prision correctional, an indeterminate sentence of from three months of arresto mayor to three years of prision correctional was imposed on the accused. Upon appeal, said judgment was affirmed by the majority of this court on January 31, 1936.
A motion for reconsideration was filed by the appellants on February 14, 1936, which was granted by resolution of this court of August 25, 1936. The rehearing was set for August 29, 1936. Counsel for both parties filed printed and typewritten memoranda.'
The acquittal of the accused is urged upon us on three grounds, namely: That the accused were convicted without due process of law, that they were not given an impartial trial, and that the evidence did not justify the judgment of conviction.
It is contended that there was not due process in view of the fact that Hermogenes Capital, the principal witness for the prosecution, himself particeps criminis, was excluded from the complaint and permitted to testify against the accused without following the requisites laid down by Act No. 2709. This was one of the irregularities specified in the order of this court of May 24, 1934, remanding the case to the court below for new trial. It has been held, however, that the only object of said Act No. 2709 is to prevent unnecessary or arbitrary exclusions from the complaint of persons guilty of the crime charged, and that it has nothing to do with the admissibility of their testimony or their competency as witnesses (U. S. vs. Abanzado, 37 Phi!., 658; U. S. vs. Enriquez, 40 Phil., 603; People vs. Badilla, 48 Phil., 718). There are, to be sure, cogent reasons for the contrary rule (Vide, dissenting opinion in U. S. vs. Enriquez, supra), but we do not think that the doctrine should be disturbed. In so far as the accused alone are concerned, therefore, the admission of the testimony of Capital, although the provisions of Act No. 2709 have not been followed in excluding him from the complaint, cannot be considered a violation of the due process of law clause of the Constitution. If any party is prejudiced at all, it is the witness erroneously excluded from the complaint, who is not relieved thereby from criminal prosecution (U. S. vs. Inductivo, 40 Phil., 84). Nevertheless, this places the testimony of said witness under the strongest suspicion, "this follows from the fact that it comes from a polluted source. Besides, the witness not being exempt from further prosecution, he can not be considered free from all influence that might induce him to pervert the truth.
Other irregularities committed by the presiding judge in the original trial pointed out in the decision of May 24, 1934, which are also made the bases of the contention of the defense that the accused were not given due process, was his improper conduct in virtually acting as the prosecuting officer in the examination of witnesses and in taking into consideration the information volunteered by Tranquilino Yalo during the ocular inspection of the premises where the crime took place, which declaration was not even made of record. This brings us to the second ground advanced by the defense: that the accused were not given an impartial trial. The force of the argument of counsel is strengthened by the fact that the same judge who betrayed his bias in favor of the prosecution and against the accused during the original trial, presided again over the re-hearing of the case in the court below. As a matter of fact, he incorporated in his second decision all his findings of fact in the first trial except such part which refers to the declaration of Tranquilino Yalo given out of court. Under such circumstances we can not reconcile ourselves to the idea that the accused really obtained a fair and impartial trial.
A strict regard for the constitutional rights of the accused would demand, therefore, that the case be remanded to the court below for new trial before an impartial judge. There are vital considerations, however, which in the opinion of this court render this step unnecessary. In the first place, the Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely Pedro Fernandez (alias Piro), had been confined in prison from July 20, 1932 to November 27, 1934, for inability to post the required bond of TB,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused come to an end and that they be immediately discharged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 650.)
In the second place,' upon a review of the evidence we find that it cannot upon the merits sustain a judgment of conviction. For a proper understanding of the case, a brief description of the premises where the crime took place is necessary. The house of Tranquilino Yalo where the offended party, Josefa Emas, was living, fronts Igualdad Street. The block on which it is situated is bounded on the right by a street without a name, on the left by Soliman Street, and at the back by Fraternidad Street. The house of Maria Mabasa where Josefa Emas was attending the wedding feast of her half-sister, Julita Emas, on the night of August 25, 1931, is located somewhere on Fraternidad Street beyond its junction with the street without a name. (Exhibit B.)
Termogenes Capital testified in detail that on his way to attend the wedding feast of Julita Emas on the night in question, he was accosted by the accused Artemio Castañeda and invited to join the latter and his companions in robbing the house where Josefa Emas was living. He refused at first but finally consented to join them. As previously arranged, when they arrived at the house of Tranquilino Yalo, the brothers Arsenio and Celestino Nunag stationed themselves in the street in front of the house, and Capital posted himself at the top o£ the main stairs at the right side of the house while the accused Artemio Castaneda and Pedro Fernandez went inside. Through the main door Capital saw Castaneda get a watch hanging on the wall of the living room. He saw the two accused get inside a small room and heard a noise as if somebody was calling "Dikong, Dikong" from the street and the calls becoming insistent he went down the stairs and around the house to the back thereof. Upon nearing the batalan he saw the two accused jump therefrom to the ground. He followed shortly afterwards and overtook them in front of the house of Servando Buan at the back. Castaneda there upon delivered to him a handbag after extracting therefrom some envelopes and fountain pen, with instructions to throw said handbag into the river. On his way to Cataguin creek where he disposed of the handbag, he passed Fraternidad Street.
Upon the other hand, the boys Policarpio Clemente and Fausto Ramos testified that while they were attending the wedding celebration they were invited by their playmate Jovito Bate to accompany him, said Jovito Bate having received orders from his aunt Beatriz Yalo to go to their house to see if everything was all right. They passed through the street without a name and thence to Igualdad Street. Upon arriving in front of the house of the Yalos they heard a noise and Jovito Bate called out "Dikong, Dikong". Hearing no answer they paused in front of the store which was just a meter away from the right side of the house, to watch what was going on in the house. Through the lower part of the house which was not fenced, they saw somebody jump from the batalan at the back of the house to the ground. Thereupon they ran around the house through Soliman and Fraternidad streets back to the house where the wedding was being celebrated to report the occurrence. They met Castañeda emerging from the canal bordering Fraternidad Street near the house of Buan. Castañeda even talked to Jovito Bate. Bate, however, was not called to the witness stand by the prosecution.
According to the testimony of Capital, while the two accused were ransacking the house of the Yalos on the night in question, the Nunag brothers were standing guard on Igualdad Street in front of the house and he was stationed on the topmost rung of the main stairs which was also visible from Igualdad Street. It was a moonlit night. Besides the inside of the house was lighted with a lamp. Yet when the boys arrived, they neither saw the Nunag brothers nor Capital. Neither did Capital see them although he testified having heard somebody call "Dikong, Dikong". Nor did the boys see Capital when he went down the stairs and all the way around the house after Bate had called out, in spite of the fact that the boys were then scarcely a meter away from the side of the house where the stairs were located. Yet the boys were able to see some body jump from the batalan at the back of the house which was farther away. According to the boys they saw the person or persons who jumped from the batalan because the lower part of the house was open, yet they did not see Capital who was alleged to have run after said persons shortly afterwards. Neither did the boys encounter hide or hair of Capital when he walked down Fraternidad Street on his way to Cataguin creek in spite of the fact that they immediately went around the house by way of Soliman Street through Fraternidad Street on their way to the house of Maria Mabasa.
It seems that Capital, on the one hand, and the boys presented to corroborate his testimony, on the other hand, were mutually invisible to each other during the entire occurrence, in spite of the fact that at one time or another they were nearer to each other than to the person or persons whom they all allege to have seen jump from the batalan at the back of the house.
There is no doubt but that Capital was an active participant in the commission of the crime in question. What remains to be determined is whether the accused Artemio Castañeda and Pedro Fernandez were really his co-principals therein. Resolved into a dilemma, either Capital was a truthful witness or he was giving false testimony with respect to the alleged participation of Castañeda and Fernandez in the commission of the crime.
If Capital was telling the truth, necessarily the testimony of the boys must have been fabricated in order to corroborate his confession for their testimony is so irreconcilably in conflict with his story as to negative their presence at the time of the occurrence. Discounting the testimony of the boys, therefore, the confession of Capital is bereft of corroboration. The finding of the handbag in Cataguin creek is no corroboration of the participation of the accused in the commission of the crime for the reason that it was Capital himself who planted it there. It is well settled that to sustain a conviction, the corroborative evidence must, independently of the confession, prove or tend to prove that a crime has been committed and that the accused committed it or was connected with it (Underhill on Criminal Evidence, 2d ed.f sec. 147, p. 280).
On the other hand, if Capital were testifying falsely in order to incriminate the accused, it does not follow that the boys were telling the truth either. It is to be observed that according to Policarpio Clemente, they saw only one person jump from the batalan on the night in question, and that they saw only one person emerge into Fraternidad Street in front of the house of Buan on their way back to the wedding feast; while Fausto Ramos was equally positive that they saw two persons jump from the batalan and that they saw also two persons step out of the canal bordering Fraternidad Street when they passed there on their way to the house where the wedding: was being celebrated. The trial judge tried to reconcile this conflicting testimony with the explanation that according to Fausto Ramos, Policarpio Clemente was about four meters behind him when they saw the unknown persons jump from the batalan, Fausto Ramos declared further, however, that the two persons jumped successively (segnidamente), both of them running in the direction of the house of Buan. Under the circumstances we cannot comprehend how Clemente could have seen only one of them. Neither does the fact that Clemente was trailing a few meters behind Ramos on their way back to the house of Maria Mabasa, explain his repeated failure to see the two persons on the open street in front of the house of Buan.
Even if the boys were testifying as to facts which they really saw and heard on the night in question, their testimony is insufficient to convict the accused. It should be noted that none of the boys recognized the person or persons who jumped from the batalan. According to Placido Valencia who was chief of police of the municipality of La Paz at the time, when he questioned Jovito Bate at the municipal building following the commission of the theft, the latter declared that he did not recognize the two men who jumped from the bataldn because he saw only their backs. Valencia then proceeded to investigate the premises where the crime took place. When he questioned Jovito Bate again, the latter identified Artemio Castañeda as one of the men who jumped from the batalan. As we have indicated already, Bate did not testify during the trial. True, Clemente and Ramos declared having recognized Castaneda at Fraternidad Street, but the mere fact standing alone that Castañeda was alleged to have been seen near the locus of the crime on or about the time of its commission is not sufficient to justify his conviction thereof. Upon the other hand, evidence was presented by the defense tending to show that Castañeda was all the time in the house of Maria Mabasa attending to the guests at the wedding during the entire occurrence. Much less could the conviction of Pedro Fernandez be justified for the reason that none of the boys recognized him as being in the company of Castañeda on the night in question.
As we have indicated beforehand, the testimony of Capital should be received with extreme caution. Considering all the evidence presented we cannot accept as true the allegation of Capital as to the participation of the accused in the commission of the crime in question. There is evidence to show that the companions of Capital on the night in question were Agapito Aguilar and Lucas Marcos. Cornelio Lugtu and Marciano Pacat, testifying for the defense at the new trial, declared that on their way to the house of Maria Mabasa on the night in question they saw Hemogenes Capital, Agapito Aguilar and Lucas Marcos hurriedly walking from the lot of Bernardo Buan into the street and thence to a ricefield near the creek. Procopio Reyes, also testifying at the new trial, declared that he was catching frogs behind the lot of Beatriz Yalo between eight and nine o'clock on the night in question. He testified that he heard a noise coming from the fence behind the house of Beatriz Yalo and saw three men hurriedly leaving the place, taking the direction of Fraternidad Street. As they passed him, he raised his lantern and recognized Hermogenes Capital, Agapito Aguilar and Lucas Marcos. It is interesting to note that when the Philippine Constabulary intervened in the case in view of the failure of the chief of police of La Paz to file the necessary complaint for lack of evidence, Lt. Vargas arrested Agapito Aguilar and Lucas Marcos on August 30, 1931 at the suggestion of Josefa Emas herself, and brought them to San Miguel for investigation. Lt. Simon Garcia, station commander at San Miguel, who questioned the suspects, declared that they ad- mitted having been invited by Castañeda to rob the house of Josefa Emas on the night in question. He stated, however, that when he questioned Aguilar as to who were his companions when he was invited by Castañeda, the latter answered that he was alone; whereas when he questioned Marcos, the latter answered that both he and his companion Aguilar were invited by Castañeda.
The motive which might have induced Capital to give false testimony against the accused is not far to seek. There is evidence to show that Capital had a grudge of long standing against Castaneda. He admitted that three years before the occurrence of the crime in question he had a fistfight with Castaneda as a result of which there was ill-feeling between them. Capital tried to mitigate the effect of his admission by declaring that they already had a reconciliation which happened upon Castaneda's return to La Paz from Cabanatuan, Nueva Ecija, where the Castanedas moved following the quarrel. Upon cross-examination, however, it was shown that Castaneda returned to La Paz from Cabanatuan some six years before the occurrence of the crime. Castaneda on his part denied such reconciliation. It is easier to believe, therefore, how Capital could have conceived the incrimination of the accused as a means of revenge, than that Castañeda, assuming that he really intended to rob Josefa Emas, should confide his criminal designs to an enemy.
It strikes this court as incredible that a person intent on the commission of the'crime of simple theft should go about inviting so many persons to assist him. It is alleged that Castaneda was already accompanied by Pedro Fernandez, Arsenio Nunag and Celestino Nunag on the night in question. Yet he is further alleged to have invited his personal enemy, Capital, to join him in his criminal enterprise. But this is not all. He is also alleged to have approached Agapito Aguilar and Lucas Marcos for the same purpose. Castañeda appears to be an intelligent person; at the time of occurrence of the crime he had already graduated from high school. He also appears to be related to Josefa Emas on his father's side. It is absurd to think that in order to steal something from the house of a relative he should solicit the assistance of such a motley crowd.
Given this background, we do not need to go farther into the evidence presented by the defense tending to show that this criminal proceeding is the result of the combined machinations of Pacifico Pascual, municipal,president of La Paz and arch political enemy of Castaneda's father, and of the offended party, Josefa Emas, niece of Pascual, who had her own axe to grind against the Castañedas because Artemio Castañeda had been living with her half-sister, Honorata Emas, without the benefit of clergy and previous to the filing of the complaint had openly refused to marry her.
In view of the foregoing, we hereby set aside the decision promulgated in this case on January 31,1936, and hold that the accused should be, as they are hereby, acquitted, with costs de oficio. So ordered.
Avanceña, C. J., Villa-Real, Abad Santos, Diaz, and Recto1, JJ., concur.
1 The foregoing decision is fundamentally in accordance with the dissenting opinion penned by Justice Abad Santos from a major- ity opinion penned by the then Justice Vickers, finding the accused guilty of the crime charged. I subscribed said dissenting opinion and, therefore, it is but an act of consistency on my part to subscribe the new decision acquitting the accused. (Sgd.) Claeo M. Recto.
This cause was decided by the former court. Nine justices took part in the consideration of the case. The comprehensive decision, carefully penned by Justice Vickers, was signed by 7 justices, while 2 justices dissented in a separate opinion and 2 others took no part.
Said decision was rendered after a new trial was granted the accused, the same having been promulgated on January 31, 1936. The next day Commonwealth Act No. 3 took effect and this court was accordingly reorganized and 7 members were duly appointed in lieu of the old court composed of 11 justices. On February 14, 1936, a motion for reconsideration was filed by the attorneys for defendants-appellants and on August 26, 1936, the motion was granted, the former judgment was set aside and a rehearing on the merits was had. These facts show how defendants-appellants speculated on the case and succeeded in their effort to defeat the judgment of conviction which was concurred in by 7 affirmative votes.
The majority decision, as it now stands, does not cover any question of fact or of law which has not been duly and exhaustively considered and passed upon in the former decision. In fact, all the arguments in support of the motion for reconsideration were predicated on points which were already settled in the former decision. In my opinion the real facts proved beyond reasonable doubt set out in the decision of the old court still hold true. For this reason and adhering to the former conclusions of fact and of law, I dissent from the majority decision.