1 - People V Babiera

8/21/2016 PHILIPPINEREPORTSANNOTATEDVOLUME52
[No. 28871. September 19, 1928]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff

and appellee, vs. CLEMENTE BABIERA, JUSTO
BABIERA and DOMINGA BORES, defendants and
appellants.
1. CRIMINAL LAW HOMICIDE "ANTEMORTEM"

DECLARATION OF DECEASED.A statement made
under circumstances which would not render it admissible
as a dying declaration becomes admissible as such if
approved and ratified by the declarant after he had
abandoned all hope of recovery.
2. ID. ID. SELFDEFENSE PROOF OF CHARACTER OF

DECEASED.While it is true that when the defense of
the accused is that he acted in selfdefense, he may prove
the deceased to have been of a quarrelsome, provoking,
and irascible disposition, yet the proof must be of his
general reputation in the community and not of isolated
and specific acts.
APPEAL from a judgment of the Court of First Instance of

Iloilo. Santamaria, J.
The facts are stated in the opinion of the court.
Zulueta ,& Cordova and Jesus Trinidad for appellants.
SolicitorGeneral Reyes for appellee.
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98 PHILIPPINE REPORTS ANNOTATED

People vs. Babiera
VILLAREAL, J.:
This is an appeal taken by Clemente Babiera, Justo

Babiera and Dominga Bores from the judgment of the
Court of First Instance of Iloilo finding them guilty of the
crime of murder, the first as principal, and the last two as
accomplices, sentencing the former to life imprisonment
with the accessories of article 54 of the Penal Code, and
http://www.central.com.ph/sfsreader/session/00000156ac85e94d483c0c87003600fb002c009e/t/?o=False 1/16
each of the latter to fourteen years, eight months and one

day cadena temporal, with the accessories of articles 54 and
59 of the Penal Code, respectively, and all three to
indemnify the family of the deceased Severino Haro in the
sum of P1,000 jointly and severally, and each of them to
pay onethird of the costs of the action in the justice of the
peace court and the Court of First Instance.
The six alleged errors assigned by the accused as
committed by the trial court in its judgment may be shifted
down to the following propositions:
1. That the evidence adduced at the trial by the

prosecution has not established the guilt of the
defendantsappellants beyond a reasonable doubt.
2. That Exhibit I of the prosecution is not an
antemortem declaration and is therefore
inadmissible as evidence.
3. That the offended party's quarrelsome disposition
can be proved in the trial to determine who began
the attack.
Before discussing the evidence adduced by both parties and

determining its weight and probatory value, it is well to
decide the questions raised by the appellants on the
admissibility of evidence.
The first question of this nature refers to the character
of the document Exhibit I, which is a statement made by
Severino Haro in Saint Paul's Hospital of Iloilo on the
morning after the crime was committed.
Although said statement in itself is inadmissible as an
antemortem declaration, inasmuch as there is nothing to
show that at the time he made it Severino Haro knew or
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VOL. 52, SEPTEMBER 19,1928 99

People vs. Babiera
firmly believed that he was at the point of death,

nevertheless, having ratified its contents a week later
when he was near death as a result of his wounds, said
declaration is admissible as a part of that which he made
antemortem "A statement made under circumstances
which would not render it admissible as a dying declaration
becomes admissible as such, it is held, if approved or
repeated by the declarant after he had abandoned all hope
of recovery." (30 Corpus Juris, 257.)
Passing now to a consideration of the evidence, the

prosecution tried to prove the following facts:
Justo Babiera was the owner of two parcels of land
situated in the municipality of Oton, Province of Iloilo,
Philippine Islands. On October 19, 1922, Justo Babiera
executed a contract of sale with the right of repurchase in
favor of Basilio Copreros whereby he sold the two parcels of
land to the latter ic or the sum of P124 with the condition
that if the vendor did not repurchase them on or before
August 1, 1923, the sale would become absolute and
irrevocable (Exhibit F). The period for repurchase having
expired, Basilio Copreros took possession of said two
parcels of land, and on March 24, 1927, made application to
the registrar of deeds for the Province of Iloilo for the
registration of the consolidation of his title to said parcels.
On the 26th of the said month, Basilio Copreros leased said
parcels to Severino Haro, municipal president of Oton
(Exhibits G. and G1). In view of this, on March 31, 1927,
Justo Babiera filed a complaint against Basilio Copreros in
the justice of the peace court of Oton for the recovery of the
possession of said two parcels of land. The complaint
having been dismissed on April 19, 1927 on the ground that
it did not allege facts sufficient to constitute a cause of
action, Justo Babiera appealed to the Court of First
Instance of Iloilo (Exhibit M). Later on, said Justo Babiera
asked for the dismissal of the complaint for unlawful
detainer and filed another one for the recovery of property
(Exhibit F). Inasmuch as Severino
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People vs. Babiera
Haro was already in possession of the aforesaid two parcels

of land as lessee, he bore all the expenses in the case of
unlawful detainer as well as in that for recovery of the
property.
Fermin Bruces was Severino Haro's copartner on shares
in said lands. About the month of May, 1927, Justo Babiera
accompanied by his copartner on shares, Rosendo Paycol,
went to where Fermin Bruces was plowing and asked the
latter: "Who told you to plow here?" Fermin Bruces replied:
"Severino Haro." Then Justo Babiera asked him: "If this
Severino tells you to kill yourself, will you do it?" "Of course
not," answered Fermin Bruces. After this interchange of
words Justo Babiera told Fermin Bruces to stop plowing
and to tell his master, Severino Haro, to come and plow
himself. Fermin Bruces informed Severino Haro of the

incident, and in answer the latter only told him not to mind
it, but to go on plowing.
On another occasion while Fermin Bruces was
transplanting rice on the same lands, Clemente Babiera
and Rosendo Paycol arrived and told him that if he
continued working they would pull out someone's
intestines. Fermin Bruces also informed Severino Haro of
these threats, who as before, told him not to mind them,
but to go on sowing.
On July 23, 1927, Jose Haro, brother of Severino Haro,
visited his land in the barrio of Bita, which was under the
care of Victoriano Randoquile. He was told by the latter
that he lacked palay seeds. At that time, Rosendo Paycol
was in his field, Jose Haro and Victoriano Randoquile
approached him and asked him to give them some seeds.
Rosendo Paycol answered that he could not do so because
he needed what he had for his own farms. Haro and
Randoquile then asked him: "Which fields do you mean?"
"The fields over which Copreros and Babiera are in
litigation," answered Rosendo Paycol. Surprised at this
answer, Jose Haro told Rosendo Paycol that what he said
could not be, because the lot in dispute was leased to his
brother Severino Haro. Rosendo Paycol replied that attor
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People vs. Babiera
ney Buenaventura Cordova had told Clemente Babiera and

Justo Babiera that Severino Haro would never be able to
reap or enjoy the fruits of the land, because if they did not
win the suit by fair means they would win it by foul.
Ever since he had leased said land Severino Haro visited
it rather often, especially during the months of June and
July, which is the sowing season, trying always to return to
town early. To go to the land, which was in the barrio
called Bita, there was but a beaten path that passed by the
house of Rosendo Paycol, copartner on shares of Justo
Babiera, where the latter and his family lived.
On August 21, 1927, Severino Haro, as usual, went to
visit his land in the barrio of Bita, accompanied by
Gregorio Torrija, Benito Carreon and Pedro Tauro. On
arriving there Fermin Bruces, his copartner on shares, told
him that the day before he had found Clemente Babiera's
cow grazing on that land. It happened at that moment
Clemente Babiera and Dominga Bores were passing by.
Severino Haro then informed Clemente Babiera of what his

cow had done on the former's land and told him to take
better care of his cow in future and not to let it run loose.
He then ordered Fermin Bruces to take the animal to
where the Babiera family lived. Severino Haro was not able
to return to town until almost 7, o'clock in the evening. As
it was already dark, he and his companions had to make
use of a torch made out of split bamboo to light them on
their way. Severino Haro went ahead, followed by Pedro
Tauro, who carried the torch, some 8, brazas behind, with
Gregorio Torrija and Benito Carreon following. On coming
to a place in the road near Rosendo Paycol's house,
Clemente Babiera suddenly sprang from the cogon grass,
went after Severino Haro and struck him with his bolo in
the back. On turning his head to see who had attacked him
Severino Haro received another bolo blow in the forehead
near the right eyebrow. In trying to defend himself with his
hand he was wounded between the index finger and the
thumb. He then tried to grasp his assail
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People vs. Babiera
ant but did not succeed and he fell to the ground. Then
Justo Babiera appeared and placing himself upon Severino
Haro's stomach, held the latter's hands. Later, Dominga
Bores appeared on the scene and held both knees of the
wounded man. When Justo Babiera arrived, a voice was
heard saying: "Hold him, papa," and at the same time,
Severino Haro's voice was heard saying: "Help! help!" Pedro
Tauro wished to come near in order to help Severino Haro,
but Clemente Babiera raised his bolo in the air and kept on
brandishing it to warn everybody off. Pedro Tauro, in fear,
stepped back, dropping the torch he carried. Not far from
there were also Buenaventura Gabalfin and Gregorio
Paycol, who threatened to kill Severino Haro's companions
if they helped him. After the torch had been extinguished
they heard a voice which they recognized as Severino
Haro's saying: "Uncle Justo, have patience with me, for I,
have done no wrong." Then they heard another voice, that
of Dominga Bores, which said: "Here is the revolver let us
return." Before the assailants left two or three revolver
shots were heard. When Severino Haro's companions saw
that their assailants had already departed, they drew near
to where Severino lay stretched out to see what had
happened to him. Severino Haro told them not to fear for
he did not feel as if he were going to die, and calling his

copartner on shares, Fermin Bruces, directed him to bring
a cot and take him to town. Pedro Tauro and Gregorio
Torrija did as Severino Haro wished, and on arriving at the
barrio of Santa Monica, they by chance came upon a truck
in which were some policemen. They place the wounded
man in the same truck and took him to Saint Paul's
Hospital in the City of Iloilo. When Severino Haro was
taken to the town he did not have his revolver and the
cartridge belt, without the holster, was found by Gregorio
Torrija near where the incident took place.
When Severino Haro was already in Saint Paul's
Hospital he was examined by Dr. Mariano Arroyo, who
issued
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People vs. Babiera
a certificate stating that he found the following wounds:

Three on the right frontal region one on the right forehead
taking in the soft parts up to the auditory arch on the right
palmar arch another on the left arm a deep one reaching
down to the spinal column on the dorsal part another on
the middle of the left calf and four slight wounds on the
right thigh the ones on the forehead and the dorsal region
being mortal of necessity. All the wounds were caused, in
the doctor's opinion, by a sharpedged and pointed weapon,
and while the combatants were on the same plane, except
the wound on the middle of the calf which must have been
caused while the assaulted party was on a lower plane than
his assailant, and the wounds on the right thigh, which
must have been inflicted while the assailant was on a
horizontal plane.
On the same morning, August 22, 1927, and in the same
hospital, Severino Haro made a sworn statement before the
deputy fiscal, Edmundo S. Piccio (Exhibit I), relating the
occurrence and mentioning the persons who were present.
This sworn statement was ratified by him before the same
deputy fiscal on the 27th of the said month and year when
he had given up all hope of recovery.
In this statement, Exhibit I, Severino Haro, among other
things, said the following:
"Without warning, I, received a slash on the left shoulder. On

turning back my face, I, saw Clemente Babiera, and he then gave
me another slash on the forehead just above the right eyebrow. At
that moment I, also received a cut on the right hand, because on

receiving the blow on the forehead I, defended myself with that
hand. I, then grasped him because I, could no longer support
myself due to my two wounds. Then I, fell. When I, fell, Clemente
Babiera's father placed himself upon my stomach, while his
(Clemente's) wife sat on my feet, while Justo Babiera, Clemente's
father, grasped my two hands and said to me, 'There, now draw
your revolver' addressing me. I, shouted to my companion for
help, for I, felt I, would die
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People vs. Babiera
and while they approached, Clemente Babiera turned upon them,

and said: 'Do not approach for you have nothing to do with this.
Whoever comes near gets a slash from this bolo.' I, shammed
death and when they left me, and upon seeing that neither
Clemente, nor his father, nor his wife remained, my three
companions came up to me from their hiding places. One Aunario,
copartner on shares of Jose Abada, who lived near there, also
came up to me, and later, Fermin."
In his antemortem declaration made on the 27th of

August, 1927 before the same deputy fiscal, Severino Haro,
among other things, said the following:
"They repeatedly passed their fingers over my upper lip and at

the same time to see if I, still breathed they felt and opened my
eyelids and then inserted a finger in my pupil, because they
believed that if I, was insensible, I, was already dead. They knelt
on my stomach and one knelt on my lower limbs, and made a pass
with something, which seems to me was bamboo or a bolo, over
the anterior surface of my calf, and Dominga then took the
revolver from me. I, got up because I, was afraid Dominga would
shoot me and when I, attempted to escape Clemente Babiera
pursued me and gave me another cut on the left side of the waist,
and I, think the blow struck the ammunition belt, and if it had
not been for the belt it would have severed my waist."
The defense tried to prove the following facts:

On the afternoon of August 21, 1927 Clemente Babiera
went to a place called Caboloan, passing by the house of
one Oper, located in the barrio of Bita, Oton, Iloilo. While
he was in Oper's house, his father Justo Babiera arrived,
and some moments later Severino Haro also arrived, and at
once said to him: "Clemente, why do you leave your cow
loose?" Clemente denied the imputation and said that his
cow was tied. Severino Haro insisted, and added that said
animal had damaged his sugarcane plantation, and
therefore, Fermin Bruces, his copartner on shares caught
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People vs. Babiera
and tied it, by his order, to a mango tree. Clemente Babiera

answered that he left the case in his hands and that he
could charge him what he would, for the damages
occasioned by his cow. As Severino Haro charged him P2 ic
or the damage, Clemente told him that at the moment he
had no money, but that on the following day he would get
money from the town market and pay him. Severino Haro
accepted the promise and left. Clemente Babiera in turn
retired to his house, together with Dominga Bores and his
father, and upon reaching a coconut palm they met Fermin
Bruces, copartner on shares with Severino Haro, who told
them that he had already tied up the cow as per his
master's order. At about 7, o'clock in the evening, while
Clemente Babiera was in his house conversing with his
father about the land which they had in Caboloan, which
was attached by the Government, he suddenly heard a
commotion he went to the porch of the house to see what
had happened and saw a number of persons coming one
carrying a light and another leading his cow by a rope.
Clemente Babiera told his father what he saw and went out
to meet said persons, and saw Buenaventura Cabalfin
leading his cow by the rope and Severino Haro followed by
his companions Pedro Tauro, Gregorio Torrija, Benito
Carreon, Margarito Mediavilla and Fermin Bruces.
Clemente Babiera then asked Severino Haro: "Why are you
taking my cow away? Haven't I, promised to pay you
tomorrow the loss caused by the animal? If you have no
confidence in me, then prepare a receipt showing that
tomorrow without fail, I, will pay you." In reply, Severino
Haro only said to Buenaventura Cabalfin: "Get on,
proceed." Clemente Babiera took hold of the rope by which
the cow was led, and said:' "Buenaventura, stop!" Severino
Haro then grasped Clemente Babiera by the hand and
pulled him to one side. Clemente Babiera disengaged
himself from Severino Haro's grasp, but Margarito
Mediavilla struck him with a bolo at the base of his little
finger. Feeling himself wounded, Clemente Babiera tried to
unsheathe his bolo intending to
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People vs. Babiera
return the blow to Margarito Mediavilla but failed to do so,

because he heard someone say: "Shoot him!" Immediately
thereafter he saw Severino Haro with revolver unholstered,
and without any loss of time he went up to the latter and at
that moment shots were heard. Clemente Babiera then
began to slash blindly right and left without considering
what he was at, catching Severino Haro in the back, as a
result of which the latter fell to the ground on his back.
Clemente Babiera threw himself upon him, held him down
so he could not get up, and asked him: "Where is your
revolver?" Severino Haro answered that he did not have it.
Then Clemente Babiera raised Severino Haro's hands and
felt his back, but did not find the revolver. Justo Babiera,
Clemente's father, then appeared, and was told by his son:
"Papa, hold him, while I, search for his revolver." When
Clemente Babiera saw Fermin Bruces he thought that the
latter meant to attack him because he had one hand
behind, where he carried his bolo, so Severino turned on
him, but his wife, Dominga Bores, restrained him telling
him not to approach. One Nario also wanted to approach in
order to defend Severino Haro but dared not do so in view
of Clemente Babiera's threats. After having made a
fruitless search for Severino Haro's revolver, Clemente
Babiera, his father, and his wife went back to their house.
After charging Rosendo Paycol with the care of the
children, the three went to town and passed the night in
Florencio Mayordomo's house. On the following morning
Dominga Bores went to Attorney Buenaventura Cordova's
house and informed him of what had happened.
Buenaventura Cordova then went to Florencio
Mayordomo's house and told Dominga Bores to return to
the place of the incident in order to look for the revolver
and deliver it to the Constabulary if she found it. Then he
accompanied Clemente Babiera to the office of Captain
Gatuslao of the Constabulary at Fort San Pedro, to whom
they delivered the holster of the revolver and the three
shells they
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People vs. Babiera
had picked up on the night of the incident. Dominga Bores

having ic ound the revolver in a furrow near the place of
the crime took it to Iloilo and delivered it to Captain
Gatuslao of the Constabulary between (9 and 10 o'clock in
the morning.
Dr. Jose Gonzales Roxas, Constabulary physician,
treated Clemente Babiera's wound and certified that the
same was 2. centimeters long and half a centimeter deep
and was situated at the base of the little finger of the right
hand, taking in the cellular tissue of the skin and the
exterior ligament of the wrist.
In rebuttal, the prosecution tried to prove that at about
half past five in the morning of August 22, 1927, Dominga
Bores was seen in the ground floor of the provincial
government building of Iloilo, carrying a package under her
arm and from there she went to the public market of Iloilo.
There is no question that Severino Haro had leased from
Basilio Copreros two parcels of land the ownership of which
had passed to him due to Justo Babiera's failure to
repurchase them within the stipulated period. Nor is there
any question that the latter tried to recover them, first, by
an accin publiciana (action for unlawful detainer), and
then by an action for the recovery of possession. There is
likewise no question that Severino Haro paid the expenses
of the defendant Basilio Copreros for the reason that he
was already in possession of said lands as lessee. There is
also no question that Clemente Babiera's cow damaged the
plantings of Fermin Bruces, for which reason the latter
caught said cow, tied it, and notified his master of the
matter when the latter went to visit the lands leased by
him. Neither is there any question that there was an
agreement between Clemente Babiera and Severino Haro
whereby the latter ordered his copartner on shares, Fermin
Bruces, to take the cow near Clemente Babiera's house and
tie it up there. In like manner there is no question that at
about 7, o'clock in the evening of August 21, 1927,
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People vs. Babiera
when Severino Haro and his companions were returning to

the town of Oton, and upon their coming near Rosendo
Paycol's house, in which were Clemente Babiera, his father
Justo Babiera, and his mistress Dominga Bores, said
Severino Haro had an encounter with Clemente Babiera in
which Severino Haro received several wounds in

consequence of which he died a week later in Saint Paul's
Hospital of Iloilo.
The only question to determine in the present appeal is
whether, as the prosecution contends, Severino Haro was
suddenly and treacherously attacked by Clemente Babiera,
aided by his father and his mistress Dominga Bores or, as
the defense contends, Severino Haro notwithstanding the
agreement between himself and Clemente Babiera by
which the latter was to indemnify him for the damages
caused by his cow, wanted to take the animal to town that
in trying to prevent it, Clemente Babiera was grasped by
the hand by Severino Haro and pulled to one side that in
disengaging himself Clemente Babiera received a bolo cut
from Margarito Mediavilla that wounded the little finger of
his right hand and that Severino Haro then unsheathed
his revolver and fired several shots, in view of which
Clemente Babiera struck right and left with his bolo, thus
causing the former's wounds.
In order to decide the question thus raised, it is
necessary to take into account all the circumstances,
previous, coetaneous and subsequent to the incident in
question, and to determine who had, or could have had,
motives to assault the other.
We have seen that Justo Babiera sold two parcels of
land to Basilio Copreros with the right of repurchase, and
that, having failed to repurchase them within the period
stipulated, the title thereto was consolidated, in the
purchaser, who leased them to Severino Haro, the latter
taking possession of them. Justo Babiera resorted to every
lawful means to regain possession of said two parcels of
land, first by an accin publiciana, which failed, and then
by
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People vs. Babiera
an action for the recovery of possession. Severino Haro paid

the expenses of Basilio Copreros in order to carry on the
suits. Such interested intervention on Severino Haro's part
without doubt must have vexed Justo Babiera, for in the
month of May 1927, he went with his copartner on shares,
Rosendo Paycol, to where Fermin Bruces, Severino Haro's
copartner, was plowing, and asked him who had ordered
him there, and when Fermin Bruces answered that it was
Severino Haro, Justo asked him whether he would commit
suicide if told to do so by said Severino Haro, and then told

him to tell his master to go and plow himself. Later on,
Clemente Babiera, Justo Babiera's son, accompanied by his
copartner Rosendo Paycol, seeing that Fermin Bruces went
on working the land, told him that if he continued plowing,
Clemente would pull out someone's intestines. If all these
threats are true, as we believe they are, then Justo Babiera
and Clemente Babiera must have borne Severino Haro
deep resentment, doubtless believing that it was due to him
that they could not recover their two parcels of land, and
this was sufficient and adequate to move them, upon the ic
ailure of lawful means, to resort to violence.
It has been contended by the defense that the
defendantappellant, Clemente Babiera, only acted in
defense of his life and property, having been obliged to
resort to arms on seeing his life endangered, contending
that the provocation consisted in that after Severino Haro
had agreed to an indemnity of P2 for the damage caused,
the latter wanted to take Clemente Babiera's cow to the
town, and that the attack consisted in that Margarito
Mediavilla gave him a bolo blow on the little finger of the
right hand, and that Severino Haro threatened him with
his revolver and fired several shots at him.
Examined in the light of the ordinary conduct of men,
Severino Haro's alleged attitude, in having tried to take
Clemente Babiera's cow after having agreed to accept P2
for the damages, and having ordered that the animal be
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People vs. Babiera
returned to its owner, is highly illogical, and not a scintilla

of evidence has been presented to explain this change of
determination, as unexpected as it is unreasonable.
With respect to the allegation that Margarito Mediavilla
and Severino Haro began the attack, inasmuch as it has
not been proved that they were the instigators, it cannot be
conceived that they committed said unlawful aggression,
for he who has no reason to provoke, has no reason to
attack unlawfully.
The defense also attempted to prove that Severino Haro
was of a quarrelsome disposition, provoking, irascible, and
fond of starting quarrels in the municipality of Oton, but
the trial judge would not permit it.
While it is true that when the defense of the accused is
that he acted in selfdefense, he may prove the deceased to
have been of a quarrelsome, provoking and irascible

disposition, the proof must be of his general reputation in
the community and not of isolated and specific acts (Under
hill Criminal Evidence, par. 325, p. 570), such as the
accused Clemente Babiera tried to prove, and hence the
lower court did not err in not admitting such proof. But
even if it had been proved by competent evidence that the
deceased was of such a disposition, nevertheless, it would
not have been sufficient to overthrow the conclusive proof
that it was the said accused who treacherously attacked
the deceased.
Another circumstance which shows the falsity of the
theory of the def ense is that of having made Buenaventura
Cabalfin take part as the person whom Severino Haro
employed to lead Clemente Babiera's cow. If Severino
Haro's copartner, Fermin Bruces, whom he had told to
return said cow to Clemente Babiera was with his master
on that night, together with other companions, what need
was there of said Severino Haro's employing the services of
another person and one not belonging to his group? The
plan of the defense necessitated a provocation and to that
end they conceived the idea of the breach of the supposed
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People vs. Babiera
agreement on the return of the animal through the

payment of an indemnity of P2, making use as an
instrument of one on whom the defense could depend to
serve as witness, and there was no one better suited for
such a purpose than Buenaventura Gabalfin who according
to the witnesses for the prosecution, was at the place of the
crime with Gregorio Paycol threatening the deceased's
friends if they offered to help him.
To rebut the evidence of the prosecution that Dominga
Bores was the one who by order of Clemente Babiera took
Severino Haro's revolver from him on the night in question,
the defense tried to prove that on the following morning
attorney Buenaventura Cordova, a relative of the Babieras,
told Dominga Bores to return to the place of the incident
and look ic or said weapon, and that she found it in a ic
urrow near the place and took it to the office of the
Constabulary in Iloilo between (9 and 10 o'clock in the
morning. But the rebuttal evidence of the prosecution
disproved this contention and showed that Dominga Bores
did not have to look for the revolver in the field, since at
half past five in the morning she was already in the

provincial building of Iloilo carrying a package under her
arm.
With regard to the small wound at the base of the little
finger of the right hand which Clemente Babiera showed to
the Constabulary physician as having been caused by
Margarito Mediavilla, we are convinced that the latter was
not in the company of Severino Haro on the night in
question and could not have inflicted such a wound.
Bearing in mind the plan of the defense, it may safely be
said that in order to cast an appearance of reality on the
concocted plea of an unlawful attack and selfdefense,
Clemente Babiera inflicted on himself the slight wound
since, if in order to escape military service there were men
who mutilated themselves, who would not wound himself
slightly in order to escape a life penalty?
The facts related above have been proven beyond a
reasonable doubt and constitute the crime of murder
defined
112

People vs. Babiera
in article 403 of the Penal Code, there being present at the

commission of the crime, the qualifying circumstance of
treachery, consisting in the accused Clemente Babiera
having attacked Severino Haro suddenly while the latter
had his back turned, inflicting various wounds on his body
as a result of which he died a week later, said Clemente
Babiera being criminally liable as principal by direct
participation.
Justo Babiera and Dominga Bores are also liable but as
accomplices, because, while they did not take a direct part
in the infliction of the wounds that caused Severino Haro's
death, or cooperated by acts without which they could not
have been inflicted, or induced Clemente Babiera to inflict
them, yet they took part in the commission of the crime by
simultaneous acts consisting in the former having mounted
Severino Haro's body and held down his hands, while the
latter sat on his knees while he lay stretched out on the
ground in order to allow Clemente Babiera to search the
body for his revolver, Justo Babiera and Dominga Bores
cannot be held as accomplices of the crime of murder,
inasmuch as it does not appear to have been proven that
they knew the manner in which Clemente Babiera was
going to assault Severino Haro, in accordance with the
provision of article 79 of the Penal Code, to the effect that

the circumstances which consist in the material execution
of the act, or in the means employed to accomplish it, shall
serve to aggravate or mitigate the liability of those persons
only who had knowledge of them at the time of the act or
their cooperation therein. Although in the instant case the
treachery is not considered a generic aggravating, but a
qualifying circumstance, nevertheless, it does not fail to
produce a special aggravation.
To graduate the penalty, we are not to consider any
modifying circumstance of the criminal liability, for while it
is true that Clemente Babiera took advantage of the
darkness of nighttime, this circumstance is included in
treachery, inasmuch as, considering the fact that Severino
113
VOL. 52, SEPTEMBER 19, 1928 113

People vs. Babiera
Haro was followed by several companions, the accused

would not have been able to conceal himself in the cogon
grass nor attack the deceased from behind without being
seen in time and prevented from executing his criminal
purpose had it not been ic or the darkness of the night.
The penalty provided by law for the crime of murder
namely, that of cadena temporal in its maximum degree to
death must theref ore be imposed upon Clemente Babiera
in its medium degree, that is, life imprisonment.
The penalty provided for in article 404 of the Penal Code
for the crime of homicide is reclusin temporal in its full
extent, and the one next lower is prisin mayor in its ic ull
extent, which is the penalty that must be /imposed on Justo
Babiera and Dominga Bores as accomplices in the crime of
homicide (art. 67, Penal Code). In graduating the penalty,
the aggravating circumstance of nocturnity must be taken
into consideration, without any extenuating circumstance
to offset it, and therefore said penalty of prisin mayor
must be imposed in its maximum degree, that is, ten years
and 1. day.
As there are three persons civilly liable, one as principal
in the crime of murder and two as accomplices in that of
homicide, we must fix the share, for which each must
answer, of the ?1,000 fixed by the trial court, in accordance
with the provision of article 124 of the Penal Code, that is,
P600 for Clemente Babiera and P400 for Justo Babiera and
Dominga Bores, each of the latter being liable solidarily
between themselves for their share, and subsidiarily liable
for the share of the former and the former for the share of
the latter, according to the provision of article 125 of the
same Code.
By virtue whereof, the appealed judgment is hereby
modified, and it is held that Justo Babiera and Dominga
Bores are guilty of the crime of homicide as accomplices
and each sentenced to ten years and 1. day prisin mayor,
and to pay the sum of ic 400 jointly and severally, and
Clemente
114

Esler vs. Ledesma
Babiera to pay the sum of P600, the former to be

subsidiarily liable for the latter's share, and the latter for
the former's share, payment to be made to the heirs of the
deceased Severino Haro, the appealed judgment being
affirmed in all other respects with the proportional costs
against each. So ordered.
Avancea, C. J., Johnson, Street, Malcolm, Villamor,

Ostrand, and Romualdez, JJ., concur.
Judgment modified.
___________
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8/21/2016 PHILIPPINEREPORTSANNOTATEDVOLUME52

[No. 28871. September 19, 1928]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff

1. CRIMINAL LAW HOMICIDE "ANTEMORTEM"

2. ID. ID. SELFDEFENSE PROOF OF CHARACTER OF

APPEAL from a judgment of the Court of First Instance of

98 PHILIPPINE REPORTS ANNOTATED

This is an appeal taken by Clemente Babiera, Justo

each of the latter to fourteen years, eight months and one

1. That the evidence adduced at the trial by the

Before discussing the evidence adduced by both parties and

VOL. 52, SEPTEMBER 19,1928 99

firmly believed that he was at the point of death,

Passing now to a consideration of the evidence, the

100 PHILIPPINE REPORTS ANNOTATED

Haro was already in possession of the aforesaid two parcels

himself. Fermin Bruces informed Severino Haro of the

VOL. 52, SEPTEMBER 19,1928 101

ney Buenaventura Cordova had told Clemente Babiera and

Severino Haro then informed Clemente Babiera of what his

102 PHILIPPINE REPORTS ANNOTATED

he did not feel as if he were going to die, and calling his

VOL. 52, SEPTEMBER 19,1928 103

a certificate stating that he found the following wounds:

"Without warning, I, received a slash on the left shoulder. On

that moment I, also received a cut on the right hand, because on

104 PHILIPPINE REPORTS ANNOTATED

and while they approached, Clemente Babiera turned upon them,

In his antemortem declaration made on the 27th of

"They repeatedly passed their fingers over my upper lip and at

The defense tried to prove the following facts:

VOL. 52, SEPTEMBER 19,1928 105

and tied it, by his order, to a mango tree. Clemente Babiera

106 PHILIPPINE REPORTS ANNOTATED

return the blow to Margarito Mediavilla but failed to do so,

VOL. 52, SEPTEMBER 19, 1928 107

had picked up on the night of the incident. Dominga Bores

108 PHILIPPINE REPORTS ANNOTATED

when Severino Haro and his companions were returning to

which Severino Haro received several wounds in

VOL. 52, SEPTEMBER 19, 1928 109

an action for the recovery of possession. Severino Haro paid

suicide if told to do so by said Severino Haro, and then told

110 PHILIPPINE REPORTS ANNOTATED

returned to its owner, is highly illogical, and not a scintilla

have been of a quarrelsome, provoking and irascible

VOL. 52, SEPTEMBER 19, 1928 111

agreement on the return of the animal through the

half past five in the morning she was already in the

112 PHILIPPINE REPORTS ANNOTATED

in article 403 of the Penal Code, there being present at the

provision of article 79 of the Penal Code, to the effect that

VOL. 52, SEPTEMBER 19, 1928 113

Haro was followed by several companions, the accused

114 PHILIPPINE REPORTS ANNOTATED

Babiera to pay the sum of P600, the former to be

Avancea, C. J., Johnson, Street, Malcolm, Villamor,

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