US v. NIERRAG.R. No. L-32624, February 12, 1980

FACTS:

Juliana Gadugdug- Nierra, 52, and Paciano Nierra, 39, her brother-in-law, were competitors in the businesses of launch transportation and the sale of softrdrinks in Barrio Tinago, General Santos City. Juliana sold Coca Cola while Paciano sold Pepsi Cola. Juliana was the owner of two motor launches, Elsa I and II, while Paciano was the owner of two launches, Sylvania I and II.

In order to monopolize those businesses in the locality, Paciano Nierra conseived the idea of liquidating his competitor, Juliana. Felicisimo Doblen, a cousin-in-law of Paciano, accompanied to Paciano’s house in the afternoon of July 4, 1969, Gaspar Misa, 29, a convicted murderer, who in 1965, had escaped from davao Penal Colony. In the presence of Gaudencia Garrido- Nierra, the wife of Paaciano, agreed to kill Juliana in consideration of three thousand pesos. Paciano promised that in the morning after the killing, he would pay Misa four hundred pesos and that the balance would be paid on August 12, 1969. The arrangement was confirmed by Gaudencia. When Misa scheduled the assassination on July 8, 1969, Paciano said that it was up to Misa since he was the one who would kill Juliana. In the evening of July 6, 1969, Doblen delivered to Misa a package containing a calibre .38 pistol with five bullets. Misa contacted his friend, Vicente Rojas, and apprised him that he (Misa) had been hired to kill Juliana. Misa asked Rojas to act as lookout on the night of July 8, 1969, when the killing would be perpetrated. On the said night, Rojas posted himself at the Bernadette store near the creek or canal, Gaudencia was stationed near the house of Maning Desinorio and Paciano was near the house of Juanito Desinerio, all near the scene of the crime.

Between 7 and 8 o’clock that night, Juliana went to the beach where she was accustomed to void when she squatted, Misa unexpectedly appeared behind her. He inserted into her mouth the muzzle of the pistol and fired it. Paciano and Gaudencia, who were near the beach, witnessed the actual killing.

Misa, Doblen, Rojas and the Nierra spouses, as co-conspirators, were charged with murder aggravated by reward, treachery, evident premeditation, nocturnity, ignominy and abuse of superiority and, as to Misa, recidivism, since he had been sentenced to reclusion perpetua for the murder of Antonio Abad Tormis in Cebu City.

ISSUES:

1. Did the trial court fail to explain to Misa the gravity of the offense and the consequences of his plea of guilty?

2. Was Misa a credible witness?3. Was there no proof of conspiracy in the commission of the crime?4. Was Misa’s testimony as to the alleged conspiracy inadmissible in view of

the rule that “the act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the

co-conspirator after the conspiracy is shown by evidence other than such act or declaration”?

5. Were Doblen and Rojas co-conspirators in the said crime?

HELD:

1. No. Misa, as an escaped prisoner, had acquired some experience in criminal procedure. Not only that. He executed two extrajudicial confessions. He re-enacted the crime as the triggerman, testified at the preliminary investigation, and after he was sentenced to death, he was the prosecution star witness during the trial of his co-accused. His testimony against his co-accused fortified his plea of guilty and removed any scintilla of doubt as to his culpability and as to his understanding of the consequences of his mea culpa.

2. Yes. Misa testified against his own penal interest. The basic point in his confessions and testimony was that he was hired by the Nierra spouses, through Doblen, to kill Juliana for the price of three thousand pesos. That is sufficient for the conviction of the Nierra spouses as the inducers of the assassination of Juliana. And the fact that the Nierra spouses did not comply with their contractual commitment to pay Misa the balance of two thousand six hundred pesos must have impelled him to unmask them and to reveal the truth even if such a revelation spelled his own destruction.

3. No. Misa had no personal motive for killing Juliana Nierra. He was induced to do so because of the monetary consideration promised by the Nierra spouses. Doblen, married to Paciano’s cousin, introduced Misa to the Nierra spouses. Before Juliana’s assassination, Gaudencia had contracted Misa to kill Nene Amador, her former housemaid, who was allegedly Paciano’s mistress. However, that projected killing did not materialize.

4. No. The argument that before Misa’s testimony could be admitted as evidence against appellants Nierra, the alleged conspiracy must first be proven by evidence other than such testimony and that there is no such independent evidence, is wrong. It is not supported by Section 27 of Rule 130 which “applies to extrajudicial acts or declarations but not to testimony given on the stand at the trial where the defendant has the opportunity to cross-examine the declarant.”

5. No. The activities of Doblen and Rojas indubitably show that they had community of design with the Nierra spouses and Misa in the assassination of Juliana Nierra. While it is true that as co-conspirators, they should be punished as co-principals, however, since their participation was not absolutely indispensable to the consummation of the murder, the rule that the court should favour the milder form of liability may be applied to them. Doblen’s role was that of having introduced Misa to the Nierra spouses and delivering the murder weapon to Misa. He was not present at scene of the

crime. On the other hand, Rojas acted as lookout and received fifty pesos for his work.

In come exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character.

Wherefore, (1) the lower court’s judgement is affirmed with respect to Gaspar Misa and Paciano Nierra, (2) the death sentence imposed on Gaudencia is commuted to reclusion perpetua, and (3) Appellants Felicisimo Doblen and Vicente Rojas are convicted as accomplices. They are each sentenced to an indeterminate penalty of ten years of prision mayor medium as minimum to seventeen years of reclusion temporal medium as maximum and to pay solidarily with the principals an indemnity of six thousand pesos to the heirs of Juliana Nierra.