People vs Babiera

5/19/2018 People vs Babiera

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G.R. No. 28871 September 19, 1928

THE PEOPLE OF THE PHILIPPINE ISLANDS,plaintiff-appellee,

vs.

CLEMENTE AIERA, !"STO AIERA #$% DOMINGA ORES,defendants-appellants.

Zulueta and Cordova and Jesus Trinidad for appellants.

Office of the Solicitor-General Reyes for appellee.

&ILLA'REAL, J.:

This is an appeal taken by Clemente Babiera, Justo Babiera and Dominga Bores from the judgment

of the Court of First nstan!e of loilo finding them guilty of the !rime of murder, the first as prin!ipal,

and the last t"o as a!!ompli!es, senten!ing the former to life imprisonment "ith the a!!essories of

arti!le #$ of the %enal Code, and ea!h of the latter to fourteen years, eight months and one

day cadena temporal, "ith the a!!essories of arti!le #$ and #& of the %enal Code, respe!tively, and

all three to indemnify the family of the de!eased 'everino (aro in the sum of %),*** jointly and

severally, and ea!h of them to pay one-third of the !osts of the a!tion in the justi!e of the pea!e!ourt and the Court of First nstan!e.

The si+ alleged errors assigned by the a!!used as !ommitted by the trial !ourt in its judgment may

be shifted do"n to the follo"ing propositions

). That the eviden!e addu!ed at the trial by the prose!ution has not established the guilt of the

defendants-appellants beyond a reasonable doubt.

. The +hibit of the prose!ution is not an ante-mortemde!laration and is therefore inadmissible as

eviden!e.

/. That the offended party0s 1uarrelsome disposition !an be proved in the trial to determine "ho

began the atta!k.

Before dis!ussing the eviden!e addu!ed by both parties and determining its "eight and probatory

value, it is "ell to de!ide the 1uestions raised by the appellants on the admissibility of eviden!e.

The first 1uestion of this nature refers to the !hara!ter of the do!ument +hibit , "hi!h is a

statement made by 'everino (aro in 'aint %aul0s (ospital of loilo on the morning after the !rime

"as !ommitted.

2lthough said statement in itself is inadmissible as an ante-mortemde!laration, inasmu!h as there is

nothing to sho" that at the time he made it 'everino (aro kne" or firmly believed that he "as at thepoint of death, nevertheless, having ratified its !ontents a "eek later "hen he "as near death as a

result of his "ounds, said de!laration is admissible as a part of that "hi!h he made ante-mortem32

statement made under !ir!umstan!es "hi!h "ould not render it admissible as a dying de!laration

be!omes admissible as su!h, it is held, if approved or repeated by the de!larant after he had

abandoned all hope of re!overy.3 4/* Corpus Juris, #5.6

%assing no" to a !onsideration of the eviden!e, the prose!ution tried to proved the follo"ing fa!ts


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Justo Babiera "as the o"ner of t"o par!els of land situated in the muni!ipality of 7ton, %rovin!e of

loilo, %hilippine slands. 7n 7!tober )&, )& Justo Babiera e+e!uted a !ontra!t of sale "ith the

right of repur!hase in favor of Basilio Copreros "hereby he sold the t"o par!els of land to the latter

for the sum of %)$ "ith the !ondition that if the vendor did not repur!hase them on or before 2ugust

), )&/, the sale "ould be!ome absolute and irrevo!able 4+hibit F6. The period for repur!hase

having e+pired, Basilio Copreros took possession of said t"o par!els of land, and on 8ar!h $,

)&5, made appli!ation to the registrar of deeds for the %rovin!e of loilo for the registration of the

!onsolidation of his title to said par!els. 7n the 9th of the said month, Basilio Copreros leased said

par!els to 'everino (aro, muni!ipal president of 7ton 4+hibit : and :-)6. n vie" of this, on 8ar!h

/), )&5, Justo Babiera filed a !omplaint against Basilio Copreros in the justi!e of the pea!e !ourt of

7ton for the re!overy of the possession of said t"o par!els of land. The !omplaint having been

dismissed on 2pril )&, )&5 on the ground that it did not allege fa!ts suffi!ient to !onstitute a !ause

of a!tion, Justo Babiera appealed to the Court of First nstan!e of loilo 4+hibit 86. ;ater on, said

Justo Babiera asked for the dismissal of the !omplaint for unla"ful detainer and filed another one for

the re!overy of property 4+hibit F6. nasmu!h as 'everino (aro "as already in possession of the

aforesaid t"o par!els of land as lessee, he bore all the e+penses in the !ase of unla"ful detainer as

"ell as in that for re!overy of the property.

Fermin Bru!es "as 'everino (aro0s !opartner on shares in said lands. 2bout the month of 8ay,

)&5, Justo Babiera a!!ompanied by his !opartner on shares, 3 37f !ourse not,3 ans"ered Fermin Bru!es. 2fter this inter!hange of "ords Justo Babiera

told Fermin Bru!es to stop plo"ing and to tell his master, 'everino (aro, to !ome and plo" himself.

Fermin Bru!es informed 'everino (aro of the in!ident, and in ans"er the latter only told him not to

mind it, but to go on plo"ing.

7n another o!!asion "hile Fermin Bru!es "as transplanting ri!e on the same lands, Clemente

Babiera and


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7n 2ugust ), )&5, 'everino (aro, as usual, "ent to visit his land in the barrio of Bita,

a!!ompanied by :regorio Torrija, Benito Carreon and %edro Tauro. 7n arriving there Fermin Bru!es,

his !opartner on shares, told him that the day before he had found Clemente Babiera0s !o" gra@ing

on that land. t happened at that moment Clemente Babiera and Dominga Bores "ere passing by.

'everino (aro then informed Clemente Babiera of "hat his !o" had done on the former0s land and

told him to take better !are of his !o" in future and not to let it run loose. (e then ordered Fermin

Bru!es to take the animal to "here the Babiera family lived. 'everino (aro "as not able to return to

to"n until almost 5 o0!lo!k in the evening. 2s it "as already dark, he and his !ompanions had to

make use of a tor!h made out of split bamboo to light them on their "ay. 'everino (aro "ent ahead,

follo"ed by %edro Tauro, "ho !arried the tor!h, some A bra@as behind, "ith :regorio Torrija and

Benito Carreon follo"ing. 7n Coming to a pla!e in the road near


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mentioning the persons "ho "ere present. This s"orn statement "as ratified by him before the

same deputy fis!al on the 5th of the said month and year "hen he had given up all hope of

re!overy.

n this statement, +hibit , 'everino (aro, among other things, said the follo"ing

3=ithout "arning, re!eived a slash on the left shoulder. 7n turning ba!k my fa!e, sa" Clemente

Babiera, and he then gave me another slash on the forehead just above the right eyebro". 2t that

moment also re!eived a !ut on the right hand, be!ause on re!eiving the blo" on the forehead

defended myself "ith that hand. then grasped him be!ause !ould no longer support myself due to

my t"o "ounds. Then fell. =hen fell, Clemente Babiera0s father pla!ed himself upon my stoma!h,

"hile his 4Clemente0s6 "ife sat on my feet, "hile Justo Babiera, Clemente0s father, grasped my t"o

hands and said to me, 3There, no" dra" your revolver3 addressing me. shouted to my !ompanion

for help, for felt "ould die and "hile they approa!hed, Clemente Babiera turned upon them, and

said 3Do not approa!h for you have nothing to do "ith this. =hoever !omes near gets a slash from

this bolo.3 shammed death and "hen they left me, and upon seeing that neither Clemente, nor his

father, nor his "ife remained, my three !ompanions !ame up to me from their hiding pla!es. 7ne

2unario, !opartner on shares of Jose 2bada, "ho lived near there, also !ame up to me, and later,Fermin.3

n his ante-mortemde!laration made on the 5th of 2ugust, )&5 before the same deputy fis!al,

'everino (aro, among other things, said the follo"ing

3They repeatedly passed their fingers over my upper lip and at the same time see if still breathedE

they felt and opened my eyelids and then inserted a finger in my pupil, be!ause they believed that if

"as insensible, "as already dead. They knelt on my stoma!h and one knelt on my lo"er limbs, and

made a pass "ith something, "hi!h seems to me "as bamboo or a bolo, over the anterior surfa!e of

my !alf, and Dominga then took the revolver from me. got up be!ause "as afraid Dominga "ould

shoot me and "hen attempted to es!ape Clemente Babiera pursued me and gave me another !ut

on the left side of the "aist, and think the blo" stru!k the ammunition belt, and if it had not been for

the belt it "ould have severed my "aist.3

The defense tried to prove the follo"ing fa!ts

7n the afternoon of 2ugust ), )&5 Clemente Babiera "ent to a pla!e !alled Caboloan, passing by

the house of one 7per, lo!ated in the barrio of Bita, 7ton, loilo. =hile he "as in 7per0s house, his

father Justo Babiera arrived, and some moments later 'everino (aro also arrived, and at on!e said

to him 3Clemente, "hy do you leave your !o" loose>3 Clemente denied the imputation and said that

his !o" "as tied. 'everino (aro insisted, and added that said animal had damaged his sugar-!ane

plantation, and therefore, Fermin Bru!es, his !opartner on shares !aught and tied it, by his order, to

a mango tree. Clemente Babiera ans"ered that he left the !ase in his hands and that he !ould!harge him "hat he "ould, for the damages o!!asioned by his !o". 2s 'everino (aro !harged him

% for the damage, Clemente told him that at the moment he had no money, but that on the follo"ing

day he "ould get money from the to"n market and pay him. 'everino (aro a!!epted the promise

and left. Clemente Babiera in turn retired to his house, together "ith Dominga Bores and his father,

and upon rea!hing a !o!onut palm they met Fermin Bru!es, !opartner on shares "ith 'everino

(aro, "ho told them that he had already tied up the !o" as per his master0s order. 2t about 5 o0!lo!k

in the evening "hile Clemente Babiera "as in his house !onversing "ith his father about the land

"hi!h they had in Caboloan, "hi!h "as atta!hed by the :overnment, he suddenly heard a


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!ommotionE he "ent to the por!h of the house to see "hat had happened and sa" a number of

persons !oming one !arrying a light and another leading his !o" by rope. Clemente Babiera told his

father "hat he sa" and "ent out to meet said persons, and sa" Buenaventura Cabalfin leading his

!o" by the rope and 'everino (aro follo"ed by his !ompanions %edro Tauro, :regorio Torrija,

Benito Carreon, 8argarito 8ediavilla and Fermin Bru!es. Clemente Babiera then asked 'everino

(aro 3=hy are you taking my !o" a"ay> (aven0t promised to pay you tomorro" the loss !aused

by the animal> f you have no !onfiden!e in me, then prepare a re!eipt sho"ing that tomorro"

"ithout fail, "ill pay you.3 n reply, 'everino (aro only said to Buenaventura Cabalfin 3:et on,

pro!eed.3 Clemente Babiera took hold of the rope by "hi!h the !o" "as led, and said

3Buenaventura, stop3 'everino (aro then grasped Clemente Babiera by the hand and pulled him to

one side. Clemente Babiera disengaged himself from 'everino (aro0s grasp, but 8argarito

8ediavilla stru!k him "ith a bolo at the base of his little finger. Feeling himself "ounded, Clemente

Babiera tried to unsheathe his bolo intending to return the blo" to 8argarito 8ediavilla but failed to

do so, be!ause he heard someone say 3'hoot him3 mmediately thereafter he sa" 'everino (aro

"ith revolver unholstered, and "ithout any loss of time he "ent up to the latter and at that moment

shots "ere heard. Clemente Babiera then began to slash blindly right and left "ithout !onsidering

"hat he "as at, !at!hing 'everino (aro in the ba!k, as a result of "hi!h the latter fell to the ground

on his ba!k. Clemente Babiera thre" himself upon him, held him do"n so he !ould not get up, andasked him 3=here is your revolver>3 'everino (aro ans"ered that he did not have it. Then

Clemente Babiera raised 'everino (aro0s hands and felt his ba!k, but did not find the revolver. Justo

Babiera, Clemente0s father, then appeared, and "as told by his son 3%apa, hold him, "hile sear!h

for his revolver.3 =hen Clemente Babiera sa" Fermin Bru!es he thought that the latter meant to

atta!k him be!ause he had one hand behind, "here he !arried his bolo, so 'everino turned on him,

but his "ife, Dominga Bores, restrained him telling him not to approa!h. 7ne ario also "anted to

approa!h in order to defend 'everino (aro but dared not do so in vie" of Clemente Babiera0s

threats. 2fter having made fruitless sear!h for 'everino (aro0s revolver, Clemente Babiera, his

father, and his "ife "ent ba!k to their house.

2fter !harging


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There is no 1uestion that 'everino (aro had leased from Basilio Copreros t"o par!els of land the

o"nership of "hi!h had passed to him due to Justo Babiera0s failure to repur!hase them "ithin the

stipulated period. or is there any 1uestion that the latter tried to re!over them, first, by an accion

publiciana4a!tion for unla"ful detainer6, and then by an a!tion for the re!overy of possession. There

is like"ise no 1uestion that 'everino (aro paid the e+penses of the defendant Basilio Copreros for

the reason that he "as already in possession of said lands as lessee. There is also no 1uestion that

Clemente Babiera0s !o" damaged the plantings of Fermin Bru!e, for "hi!h reason the letter !aught

said !o", tied it, and notified his master of the matter "hen the latter "ent to visit the lands leased by

him. either is there any 1uestion that there "as an agreement bet"een Clemente Babiera and

'everino (aro "hereby the latter ordered his !opartner on shares Fermin Bru!es, to take the !o"

near Clemente Babiera0s house and tie it up there. n like manner there is no 1uestion that at about 5

o0!lo!k in the evening of 2ugust ), )&5, "hen 'everino (aro and his !ompanions "ere returning

to the to"n of 7ton, and upon their !oming near


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t has been !ontended by the defense that the defendant-appellant, Clemente Babiera, only a!ted in

defense of his life and property, having been obliged to resort to arms on seeing his life endangered,

!ontending that the provo!ation !onsisted in that after 'everino (aro had agreed to an indemnity of

% for the damage !aused, the latter "anted to take Clemente Babiera0s !o" to the to"n, and that

the atta!k !onsisted in that 8argarito 8ediavilla gave him a bolo blo" on the little finger of the right

hand, and that 'everino (aro threatened him "ith his revolver and fired several shots at him.

+amined in the light of the ordinary !ondu!t of men, 'everino (aro0s alleged attitude, in having tried

to take Clemente Babiera0s !o" after having agreed to a!!ept % for the damages, and having

ordered that the animal be returned to its o"ner, is highly illogi!al, and not a s!intilla of eviden!e has

been presented to e+plain this !hange of determination, as une+pe!ted as it is unreasonable.

=ith respe!t to the allegation that 8argarito 8ediavilla and 'everino (aro began the atta!k,

inasmu!h as it has not been proved that they "ere the instigators, it !annot be !on!eived that they

!ommitted said unla"ful aggression, for he "ho has no reason to provoke, has no reason to atta!k

unla"fully.

The defense also attempted to prove that 'everino (aro "as of a 1uarrelsome disposition,provoking, iras!ible, and fond of starting 1uarrels in the muni!ipality of 7ton, but the trial judge "ould

not permit it.

=hile it is true that "hen the defense of the a!!used is that he a!ted in self-defense, he may prove

the de!eased to have been of a 1uarrelsome, provoking and iras!ible disposition, the proof must be

of his general reputation in the !ommunity and not of isolated and spe!ifi! a!ts 4nderhill Criminal

viden!e, par. /#, p.#5*6, su!h as the a!!used Clemente Babiera tried to prove, and hen!e the

lo"er !ourt did not err in not admitting su!h proof. But even if it had been proved by !ompetent

eviden!e that the de!eased "as of su!h a disposition, nevertheless, it "ould not have been

suffi!ient to overthro" the !on!lusive proof that it "as the said a!!used "ho trea!herously atta!ked

the de!eased.

2nother !ir!umstan!e "hi!h sho"s the falsity of the theory of the defense is that of having made

Buenaventura Cabalfin take part as the person "hom 'everino (aro employed to lead Clemente

Babiera0s !o". f 'everino (aro0s !opartner, Fermin Bru!es, "hom he had told to return said !o" to

Clemente Babiera "as "ith his master on that night, together "ith other !ompanions, "hat need "as

there of said 'everino (aro0s employing the servi!es of another person and one not belonging to his

group> The plan of the defense ne!essitated a provo!ation and to that end they !on!eived the idea

of the brea!h of the supposed agreement on the return of the animal through the payment of an

indemnity of %, making use as an instrument of one on "hom the defense !ould depend to serve

as "itness, and there "as no one better suited for su!h a purpose than Buenaventura Cabalfin "ho

a!!ording to the "itnesses for the prose!ution, "as at the pla!e of the !rime "ith :regorio %ay!ol

threatening the de!eased0s friends if they offered to help him.

To rebut the eviden!e of the prose!ution that Dominga Bores "as the one "ho by order of Clemente

Babiera took 'everino (aro0s revolver from him on the night in 1uestion, the defense tried to prove

that on the follo"ing morning attorney Buenaventura Cordova, a relative of the Babieras, told

Dominga Bores to return to the pla!e of the in!ident and look for said "eapon, and that she found it

in a furro" near the pla!e and took it to the offi!e of the Constabulary in loilo bet"een & and )*

o0!lo!k in the morning. But the rebuttal eviden!e of the prose!ution disproved this !ontention and


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sho"ed that Dominga Bores did not have to look for the revolver in the field, sin!e at half past five in

the morning she "as already in the provin!ial building of loilo !arrying a pa!kage under her arm.

=ith regard to the small "ound at the base of the little finger of the right hand "hi!h Clemente

Babiera sho"ed to the Constabulary physi!ian as having been !aused by 8argarito 8ediavilla, "e

are !onvin!ed that the latter "as not in the !ompany of 'everino (aro on the night in 1uestion and

!ould not have infli!ted su!h a "ound. Bearing in mind the plan of the defense, it may safely be said

that in order to !ast an appearan!e of reality on the !on!o!ted plea of an unla"ful atta!k and self-

defense, Clemente Babiera infli!ted on himself the slight "oundE sin!e, if in order to es!ape military

servi!e there "ere men "ho mutilated themselves, "ho "ould not "ound himself slightly in order to

es!ape a life penalty>

The fa!ts related above have been proven beyond a reasonable doubt and !onstitute the !rime of

murder defined in arti!le $*/ of the %enal Code, there being present at the !ommission of the !rime,

the 1ualifying !ir!umstan!e of trea!hery, !onsisting in the a!!used Clemente Babiera having

atta!ked 'everino (aro suddenly "hile the latter had his ba!k turned, infli!ting various "ounds on

his body as a result of "hi!h he died a "eek later, said Clemente Babiera being !riminally liable as

prin!ipal by dire!t parti!ipation.

Justo Babiera and Dominga Bores are also liable but as a!!ompli!es, be!ause, "hile they did not

take a dire!t part in the infli!tion of the "ounds that !aused 'everino (aro0s death, or !ooperated by

a!ts "ithout "hi!h they !ould not have been infli!ted, or indu!ed Clemente Babiera to infli!t them,

yet they took part in the !ommission of the !rime by simultaneous a!ts !onsisting in the former

having mounted 'everino (aro0s body and held do"n his hands, "hile the latter sat on his knees

"hile he lay stret!hed out on the ground in order to allo" Clemente Babiera to sear!h the body for

his revolver, Justo Babiera and Dominga Bores !annot be held as a!!ompli!es of the !rime of

murder, inasmu!h as it does not appear to have been proven that they kne" the manner in "hi!h

Clemente Babiera "as going to assault 'everino (aro, in a!!ordan!e "ith the provision of arti!le 5&

of the %enal Code, to the effe!t that the !ir!umstan!es "hi!h !onsist in the material e+e!ution of the

a!t, or in the means employed to a!!omplish it, shall serve to aggravate or mitigate the liability ofthose persons only "ho had kno"ledge of them at the time of the a!t or their !ooperation therein.

2lthough in the instant !ase the trea!hery is not !onsidered a generi! aggravating, but a 1ualifying

!ir!umstan!e, nevertheless, it does not fail to produ!e a spe!ial aggravation.

To graduate the penalty, "e are not to !onsider any modifying !ir!umstan!e of the !riminal liability,

for "hile it is true that Clemente Babiera took advantage of the darkness of nighttime, this

!ir!umstan!e is in!luded in trea!hery, inasmu!h as, !onsidering the fa!t that 'everino (aro "as

follo"ed by several !ompanions, the a!!used "ould not have been able to !on!eal himself in the

!ogon grass nor atta!k the de!eased from behind "ithout being seen in time and prevented from

e+e!uting his !riminal purpose had not been for the darkness of the night.

The penalty provided by la" for the !rime of murder namely, that of cadena temporalin its ma+imum

degree to death must therefore be imposed upon Clemente Babiera in its medium degree, that is,

life imprisonment.

The penalty provided for in arti!le $*$ of the %enal Code for the !rime of homi!ide is reclusion

temporalin its full e+tent, and the one ne+t lo"er isprision mayorin its full e+tent, "hi!h is the

penalty that must be imposed on Justo Babiera and Dominga Bores as a!!ompli!es in the !rime of

homi!ide 4art. 95, %enal Code6. n graduating the penalty, the aggravating !ir!umstan!es of


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no!turnity must be taken into !onsideration, "ithout any e+tenuating !ir!umstan!es to offset it, and

therefore said penalty ofprision mayormust be imposed in its ma+imum degree, that is, ten years

and ) day.

2s there are three persons !ivilly liable, one as prin!ipal in the !rime of murder and t"o as

a!!ompli!es in that of homi!ide, "e must fi+ the share, for "hi!h ea!h must ans"er, of the %),***

fi+ed by the trial !ourt, in a!!ordan!e "ith the provision of arti!le )$ of the %enal Code, that is,

%9** for Clemente Babiera and %$** for Justo Babiera and Dominga Bores, ea!h of the latter being

liable solidarily bet"een themselves for their share, and subsidiarily liable for the share of the former

and the former for the share of the latter, a!!ording to the provision of arti!le )# of the same Code.

By virtue "hereof, the appealed judgment is hereby modified, and it is held that Justo Babiera and

Dominga Bores are guilty of the !rime of homi!ide as a!!ompli!es and ea!h senten!ed to ten years

and ) day prision mayor, and to pay the sum of %$** jointly and severally, and Clemente Babiera to

pay the sum of %9**, the former to be subsidiarily liable for the latter0s share, and the latter for the

former0s share, payment to be made to the heirs of the de!eased 'everino (aro, the appealed

judgment being affirmed in all other respe!ts "ith the proportional !osts against ea!h. 'o ordered.

Avancena C.J. Johnson Street !alcolm "illamor Ostrand and Romualde# JJ.!on!ur.

Documents

People vs Babiera