FIRST DIVISION

[G.R. No. 26708. September 29, 1927.]

THE PEOPLE OF THE PHILIPPINE ISLANDS , plaintiff-appellee, vs .

ALEJO RESABAL , defendant-appellant.

Melquiades G. Ilao and Vicente Sotto for appellant.

Attorney-General Jaranila for appellee.

SYLLABUS

1. CRIMINAL PROCEDURE; EVIDENCE; WITNESSES. — The mere fact that the

witness was an accused, excluded from the information in order to be used as a
witness for the prosecution, does not prevent him from telling the truth, especially in
the absence of proof showing his interest in testifying against the appellant.
2. ID.; ID.; ID.; CONTRADICTION IN TESTIMONY. — The apparent
contradiction between the testimony given by the witness in the Court of First Instance
and that given in the justice of the peace court, is not su cient to discredit it, if he was
not given ample opportunity to explain it in the Court of First Instance. The mere
presentation of the document containing said declaration made in the justice of the
peace court is not su cient; it must be read to him in order that he may explain the
discrepancies noted. (U. S. V8. Baluyot, 40 Phil., 386.)
3. ID.; ID.; ACCUSED'S CONDUCT. — The fact that the accused went to the
deceased's house and assisted in the preparations of his funeral, is not incompatible
with his guilt.

DECISION

VILLAMOR , J : p

The evidence shows, as an indisputable fact, that in the early morning of April 25,
1926, one Primo Ordiz died at his own home in the barrio of Bogo, municipality of
Maasin, Leyte, from the effects of an internal hemorrhage caused by a sharp wound in
the left lung, as appears from the death certificate, marked Exhibit A.
As a consequence of this, an information was led with the Court of First
Instance of Leyte in Maasin, reading as follows:
"That on or about April 25, 1926, in the municipality of Maasin, Province of
Leyte, Philippine Islands, the said accused, willfully, unlawfully and criminally,
with treachery and evident premeditation, conspiring amongst themselves and
acting in common agreement and taking advantage of nocturnity, mutually aiding
each other, opened the window and killed Primo Ordiz by means of a shot from a
'Smith' 38 caliber revolver, in icting a wound in the upper part of the left nipple,
which produced the instant death of said Primo Ordiz.
"Contrary to law."
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 The judge who tried the case, after having carefully analyzed the evidence,
reached the conclusion that the crime committed by the accused Alejo Resabal is that
of murder, provided for and penalized in article 403 of the Penal Code, with the
aggravating circumstances of evident premeditation, nocturnity and dwelling, and
imposed on the accused the death penalty, with the accessories of article 53 in case of
pardon, and to pay the deceased's heirs the sum of P1,000 by way of indemnity with the
costs of the action. He also ordered that the present case be brought to this court for
review, as provided for in section 50 of General Orders No. 58.
Counsel for the defense alleges that the trial court erred in not ignoring Glicerio
Orit's testimony, and in not acquitting the accused Alejo Resabal on the ground of
reasonable doubt.
The Attorney-General in turn asks that the judgment rendered, being in
accordance with the evidence and the law, be a rmed with the costs against the
appellant.
Glicerio Orit testi ed that on the morning of April 25, 1926, the accused, armed
with a revolver, invited him to Primo Ordiz's house in order to kill the latter, and on
arriving at said house, the accused went into the grounds, approached one of the
windows of the house less than a meter and a half in height, opened it and looked in. At
that moment the witness left the place, and at a distance of 15 brazas heard an
explosion. Glicerio Orit's testimony as to the explosion is corroborated by the
declaration of the boy Jose Ordiz, who slept with his uncle Primo Ordiz, to the effect
that early in the morning of that day he was awakened by the noise of an explosion and
saw his uncle Primo Ordiz vomiting blood and unable to speak.
It is unquestionable, from the testimony of these two witnesses and the result of
the autopsy, and above all from the nding of the revolver Exhibit B, that the weapon
used by the accused to commit the crime, is the revolver exhibited at the trial of the
case. This revolver was hidden by the accused on the land cultivated by the witness
Carmelo Ordiz, to whom the accused revealed it, and who, through fear of the police,
transferred it to the neighboring lot, burying it at the foot of a tree called "mabago." By
following the directions of this witness, Carmelo Ordiz, the chief of police, who
investigated the case, found the revolver wrapped in two pieces of cloth Exhibits C and
C-1. The revolver was loaded with two bullets and an empty shell, and had a rusty barrel.
It must be noted that Exhibit C-1 appears to be a piece of cloth from a pair of drawers,
and the chief of police who searched the house where the accused lived, found a piece
of a pair of drawers in a trunk that was in the kitchen. Upon examination of said Exhibits
F and C-1 by this court, it was found that these two pieces of cloth Exhibits F and C-1
made a complete pair of drawers, all of which shows that the accused tore the piece of
cloth Exhibit C-1 from an old pair of drawers in order to wrap up the revolver before
putting it in the place indicated by the witness Carmelo Ordiz.
This witness testi ed, furthermore, that on the night of April 24, 1926, the
accused believing him to be still an enemy of the deceased Primo Ordiz, and showing
him the revolver Exhibit B, invited him to accompany him to do away with Primo Ordiz.
On the other hand, the witness Vicente Ambalong corroborates Glicerio Orit's
testimony to the effect that early in the morning of April 25, 1926, the accused went to
the house where the latter was sleeping to awaken him, and that he then saw the
accused on the staircase, calling to said Glicerio Orit.
And what is the motive of the crime? According to the evidence presented by the
prosecution, some twenty days before the incident the accused had a disagreement
with the deceased because of a carabao that destroyed some coconut trees belonging
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 to the deceased Primo Ordiz. The accused requested the deceased to return the
carabao that was under his care, but the deceased refused to do so before he was paid
the value of the trees destroyed. This naturally produced resentment, which, among
country people, is su cient cause for the commission of the act charged in the
information.
The defense of alibi set up by the accused is not, in our opinion, su cient to
overthrow the evidence of the prosecution; for, taking into consideration the short
distance between the deceased's house and that in which the accused slept on the
night of the incident, the accused could easily have gone out of his house and returned
later, without having been noticed by his companions in the house, namely, his wife, his
mother-in-law, and his sister-in-law, aside from the natural interest these have in
testifying in the accused's favor.
The defense argues that Glicerio Orit is not a credible witness, because of his
having been excluded from the information to be used as a witness for the prosecution;
and, because, moreover, of the contradictions in his testimony at the preliminary
investigation and during the trial. We are of the opinion that the mere fact of having
been excluded from the information to be used as a witness for the Government, does
not prevent this witness from telling the truth in this case, especially in the absence of
proof showing the interest he might possibly have in testifying against the accused.
Neither is the apparent contradiction which may be noted in his declarations before the
court of the justice of the peace, and before the court of rst instance su cient to
discredit his testimony, for the simple reason that this witness was not given ample
opportunity, by a reading to him of his declarations before the court of the justice of the
peace. to explain the discrepancies noted by counsel for the accused. The mere
presentation of Exhibit 1, without said declaration having been read to the witness while
he testi ed in the Court of First Instance, is no ground for impeaching his testimony. (U.
S. vs. Baluyot, 40 Phil., 385, 406.)
The defense also impeaches Carmelo Ordiz's testimony considering the
invitation which the accused extended to him as improbable, knowing that he was a
cousin of the deceased Primo Ordiz. Under ordinary circumstances, such an attitude
would appear improbable, but not so if it is considered that the accused invited the
witness in the belief that the latter was still an enemy of the deceased, on account of
certain disagreements they had over some land.
The defense also contends that the conduct of the accused in going with his
family to the deceased's house on the morning of April 25, 1926, helping in the
preparations for the burial, is incompatible with his being a criminal. It is, indeed, an old
belief that the fear of the suspected party to touch the corpse was a sign of guilt. But
experience has shown that some criminals have gone to the extreme that the accused
did, to avoid all suspicion of guilt.
The evidence in the record shows the guilt of the accused beyond a reasonable
doubt, and he deserves the penalty provided for in article 403 of the Penal Code. The
crime committed is murder, quali ed by treachery for, in the commission of the crime,
the accused employed ways, means, and forms that tended directly and especially to
assure it, without risk to his person from any defense the assaulted party might make.
The trial court imposed the death penalty on the accused, by reason of the
aggravating circumstances of evident premeditation, nocturnity, and dwelling, without
any mitigating circumstances to offset them. On this point the opinion of the court is
divided, with the result that we cannot impose on the accused the maximum penalty, or
death, in accordance with Act No. 3104, because the vote of the members of the court
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 who took part in the discussion of the case, as to the justice of the imposition of the
death penalty was not unanimous. And, it being so, it is unnecessary to discuss in detail
the presence of the said aggravating circumstances.
In virtue whereof, we are of the opinion, and so hold, that the accused is guilty of
the crime of murder, committed with treachery, on the person of Primo Ordiz, and with
the modi cation of the judgment on review, the penalty of cadena perpetua is imposed
on the accused, with the accessories of article 54 of the Penal Code, the judgment of
the trial court being a rmed in all other respects, with the costs against the appellant.
So ordered.
Avanceña, C. J., Johnson, Street, Malcolm, Romualdez, Johns, and Villa-Real, JJ.,
concur.

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