This is an  appeal  from  a judgment of the  Court of First Instance of Nueva Ecija, finding Epifanio  Manabat, guilty of  robbery in  band  in  G.  R. No.  L-8904  and of murder in G.  R. No.  L-8905, sentencing him in the first case to 12 years, 5 months and 1 day of reclusion temporal, to indemnify Mayor Villaroman in the sum of P17,500, and to pay  the costs, and in the second case, to reclusion perpetua,  to indemnify the heirs of Teofila Puno in the sum of P6,000, and to pay the costs.  The above cases were heard in a joint trial and upon two separate informations. Only one brief was filed  by counsel for accused-appellant in both  cases.

The incidents giving rise to the two criminal actions above-mentioned occurred in  the town of Licab,  province of Nueva Ecija,  soon after  liberation,  on the 13th day of  November,  1945,  when a period of  confusion  and chaos still reigned in the provinces, of  Central  Luzon. According to two witnesses for  the prosecution,  Alfredo Marquez and Buenaventura Liwag,  both members of the Pambansang Kaisahan ng mga  Magbubukid  (PKM), an association  of  peasants  in Central  Luzon allied  to the Hukbalahaps, in  the afternoon of November 12,  1945, a gathering of members was held  in Barrio Villarosa, near an  irrigation dam about  half a kilometer  away from the poblacion  of Licab. Among  the persons  who appeared at the meeting were accused-appellant Epifanio Manabat, known  as Malvar, chief of  the organization,  Faustino de la Cruz, alias Magpayo, Ismael Mafigiduyos alias Monte-negro, another minor leader known as Balagtas, and many others.  It was agreed in that meeting that Mayor Ernesto Villaroman  of Licab would be robbed as he is an enemy of  the  PKM and did not like  to  support Juan Feleo's government. The  following  evening  (November   13, 1945), at about 10:00 o'clock, around 200  persons headed by  the said Malvar, Magpayo, Balagtas and Montenegro, many of whom carried firearms, surrounded the house of Mayor Villaroman. The house is a two-story edifice and is built beside  a road.   From this road the Mayor was called  to  come down.   Villaroman  peeped through  the window and recognized  the  leaders  of  the band, among whom was the accused-appellant Malvar  and Magpayo.

He did not, however,  heed their call and  so various shots were fired at the house.  Villaroman  took his fire-arm and  fired back.  Then he  ran downstairs  to  the ground floor of the house and from a hole near a door under the house he watched the door of the ground floor then being forcibly opened.  As  the door  was opened,  he recognized three who entered  the house, namely, the appellant Epifanio Manabat alias Malvar,  and Faustino de la Cruz, alias Magpayo and Balagtas.  Villaroman  hid himself in the hole and then  escaped through an undisclosed door at the back of the house where there was an engine. From there he heard  those who had gone up,  ransacking the house.  He also heard  the shouts  of his wife, protesting her being brought down.

The house was ransacked, jewelries were taken.  Clothes being sold by Villaroman's wife were also taken, and so were the shoes and clothes of Villaroman, as well as cash that he had in  the house,  amounting  to  about P4,000. The jewelries were worth P10,000; his shoes, P200, and the clothes, P300.   The booty was put in sacks and carried down and afterwards put inside  a carretela and carried away.

The  band that  carried down  Villaroman's wife conducted her to  the  fields, with Malvar and others  behind her. When they reached the house of one Valdez accused-appellant  suddenly gave the  order  to shoot her, and his men shot  her  and she fell down dead.   That was when MPs were coming, so Malvar ordered his men to run away.

Upon examination of the dead body of Mrs. Villaroman it  was found that there were  ten wounds  in her chest and in the lower part of the  abdomen.  The bullet wounds had powdered burns around, which indicate that  the shots had been fired at close range.

There was a military police  (MP) detachment  in the town of Licab on that occasion, but it  was composed  of only 15 members.  They were closely hidden  in their barracks  and did not dare to go out.  Villaroman,  pretending to be one of the members of the  band that surrounded his  house, was able  to  pass unidentified among them, and he succeeded in joining the MPs in their barracks. The identity of accused-appellant Epifanio Manabat as the leader of the band was testified to by Alfredo Marquez and  Buenaventura Liwag.  He  was  also identified  by Mayor Villaroman as the latter peeped through the window,  and as Manabat entered the  door  of the  ground floor of the house.

It is interesting to note  that  the  first  complaint  was filed by the Chief of  Police on November  14, 1945.   The complaint was for robbery with homicide.   Subsequently, on November 20, 1945, two  informations were filed in substitution  of  the first, one  for robbery in  band  and another for  murder.   The information for murder contains no allegation as to the commission of the crime of robbery in band, just as the  information  for robbery in band contains nothing about the murder which was perpetrated on one of the inmates of the house which was robbed.  The trial  started  in February,  1946, but the same was suspended  with respect to  appellant Manabat because he and some of his co-accused were able to escape from prison,  and appellant was not apprehended again until the month of July, 1951, when the hearing was resumed. Separate and independent trials  were held with respect to other accused, but  as to appellant  trial  was continued in 1951 and  decision  rendered on January 13, 1954.

The  defense presented by  the defendant-appellant is an alibi.   He also sought to discredit the testimony of prosecution witness Liwag, who was introduced by the defense to testify that the testimony  given by him for the prosecution and against the appellant was false.  He declared that his testimony against the appellant was induced by the promise of Mayor Villaroman to give him one sack of rice and P30 in cash.   He further stated that on November 13, 1945, a political meeting was held at the "glorietta" of  Quezon, Nueva  Ecija,  on  which  occasion appellant Manabat  was  present.  Atty.  Jose Cando also testified for the defense and declared that the defendant-appellant attended the political meeting of~his in the municipality of  Quezon, province of Nueva  Ecija,  on November 13, 1945; that witness arrived  at the place of the meeting at about 6:00 o'clock in the afternoon, and that upon ascending the grandstand he saw accused Manabat  among the members  of the band; that witness began delivering his speech  at about  8:00 o'clock  in  the  evening and was through at about  9:00 o'clock, and at this time he  heard shots from a  nearby municipality,  and  while he  heard these shots he  still saw appellant Manabat at the grandstand; and that Manabat did not leave the grandstand till 9:00 o'clock that evening.

As to the recanting of the testimony by witness Liwag, we  can do nothing  better  than cite  Our decision,  per  curiam, in G. R.  No. L-6939, People vs. Ubina, promulgated on August 31, 1955, where we stated that:

"* * * it  would be a dangerous rule for courts to reject testimonies solemnly taken before the courts  of justice simply because the  witnesses who had given them  later on change their mind  for  one  reason or another, for such a  rule would  make  solemn trials a mockery  and place the investigation of truth at the mercy of unscrupulous witnesses. * * *"

Even disregarding the testimony of Liwag, we still have the  testimonies of  Marquez and  Villaroman  as to  the identity of the accused-appellant as the  leader of  those who attacked the  house of  Villaroman on the  evening in question and thereafter  entered it.  As to the testimony of Atty. Jose Cando, which might be  believable in view of his  position as a  lawyer and a political leader in the  community, to  the effect that  appellant  was  present at 9:00 o'clock in the evening of November 13,  1945, at  a  political meeting in Quezon, a neighboring town, the mere presence of appellant at said meeting does not preclude  the possibility  and probability of his having joined,  after said meeting,  the attack on the house  of Villaroman, as the attack must  have taken  place  later  in  the night. Liwag testified that the members  of the band were deployed around the house of Mayor  Villaroman between 10:00 o'clock and 11:00 o'clock in the evening, on the day in question.  For  his part,  Mayor Villaroman  stated that he  first  heard the  defendant-appellant calling  for him at about 8:00 or 9:00 o'clock in the evening.  In another part of his testimony, he stated that the Huks went away between  10:00 o'clock and  11:00 o'clock in the evening. In view of the attack on the house of Mayor Villaroman, the members of the band could not have stayed in Licab for a  long time,  in view  of  the  possibility  of  soldiers coming to the rescue of the beleaguered mayor.   According to Mayor Villaroman  the MPs  of Guimba in  fact arrived at around  11:00 o'clock  in the  evening when the Huks had gone.  The attack must, therefore,  have taken place after 9:00 in the evening.  The mere fact, therefore, that the appellant attended a political meeting in Quezon up  to  9:00 o'clock  in the  evening did not preclude his presence in Licab after  9:00  o'clock, because  Licab is only five kilometers from  Quezon and is connected thereto by  a  road.  In view of these  circumstances, the defense of alibi presented can not be given any weight, especially in view of the positive identification of appellant by two witnesses.

Objection is made oh this appeal to the procedure of the trial  court  in  not having  witness  ^Ifredo Marquez included in the information as required by the Rules.  This is not error; witnesses  not included in  the information may be called to  testify.    (U.  S. vs. Avansado, 37  Phil. 658.)  It is further argued that the  testimony, of said Marquez must have been  biased,  prejudiced and given with  promise of  reward.   We  cannot  assume that such partiality has attended the testimony of  this  witness for the sole reason  that he  is not included as  one of the accused in the case. If such was the claim or contention of appellant, this matter  should have been brought out in the cross-examination to impeach the credibility of witness. In the absence of such impeachment, his testimony  must be taken as any other testimony, with the presumption of truthfulness as it was given under oath.

Another objection against the decision is that the judge who  rendered it could not  possibly have  read all the transcripts  of the stenographic notes taken  during the  hearing, especially those  of the testimonies  of  Alfredo Marquez and  Buenaventura  Liwag.   But contrary to this contention we find that Marquez' testimony  was transcribed on March 20, 1947.   As  to the  testimony of Liwag,  the date when the notes were transcribed does not appear  in the records, but if it was not filed before the  decision was rendered it could not have influenced the mind of the court.  If the judge who rendered  the decision  did not read  it,  at  least his subsequent  testimony  was heard by him,  so  no  objection can be had against the late  filing of the said  testimony.

Claim is  made in appellant's brief that there  was no evidence as  to the property  which had been taken away. We believe  that  these properties were sufficiently identified by the Mayor who  testified as to their disappearance after that day.

The testimony of  Liwag that when the wife of Mayor Villaroman and the band led by appellant reached a certain place near  the  house  of  Candida Valdez,  the appellant gave  an  order to his men to shoot  her, which they did, sufficiently proves the charge of murder.   That  it  must have  been the accused-appellant who gave  the order  is inferred  from the  fact that he was the leader of the assaulting band.  The presence of the many wounds also indicates that many persons must have fired at her, and this shows that the order for the shooting must have come from the leader  of  the group, who was  then appellant Manabat.  This  corroborates Liwag's testimony that appellant gave the order to shoot Mrs. Villaroman.

For the foregoing considerations, we find that the guilt of the accused-appellant  in each  of  the cases presented against him has been  proved beyond reasonable doubt. Finding that the penalty imposed in the murder case is within the range prescribed by law, the same is hereby affirmed.

In criminal case No.  173, for robbery in band, the  appellant is hereby found guilty of robbery  under Article 294, paragraph 5, of the Revised Penal Code, prior to its amendment by Republic Act No.  18, and not robbery in band, as found by the trial court.   As the commission of the offense  was attended by the  aggravating circumstances of nighttime and  by a band, the maximum of  the penalty should be imposed.upon the  defendant-appellant, and as he  escaped from jail during the pendency of  the proceedings, he is not entitled to the benefits of the  Indeterminate Sentence Law. The penalty imposed by  the trial court  is beyond the range provided  by law.  The sentence  is  hereby modified and the same  is  reduced to ten (10) years of prision mayor.   With the above modification, the sentence is hereby affirmed  in all other  respects.  Costs  shall  be  against the  defendent-appellant.

Paras, C. J,  Bengzon, Padilla, Bautista Angelo, Concepcion, and Reyes, J. B. L., JJ., concur.

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^[*] 97 Phil,. 515