Plaintiff-Appellee Vs Vs Defendant-Appellant Filemon Sotto Attorney-General Paredes

FIRST DIVISION
[G.R. No. 14476. November 6, 1919.]
THE UNITED STATES , plaintiff-appellee, vs . JOSE I. BALUYOT ,

defendant-appellant.
Filemon Sotto for appellant.

Attorney-General Paredes for appellee.
SYLLABUS
1. CRIMINAL LAW; MURDER; "ALEVOSIA" [TREACHERY]. — The qualifying

circumstance of alevosia essential to the crime of murder was found to be present in
the case at bar not only because of the sudden and unexpected manner in which the
fatal assault with a deadly weapon was begun against the defenseless victim, but also
because of the peculiar conditions under which the offense was finally consummated.
2. ID.; ID.; "ALEVOSIA IN ACT OF CONSUMMATING CRIME. — Even though a
deadly attack may be begun under conditions not exhibiting the feature of alevosia, yet
if the assault is continued and the crime consummated with alevosia, such
circumstance may be taken into consideration as a qualifying factor in the offense of
murder.
3. ID.; ID.; ID.; CASE AT BAR. — An assault was begun suddenly and
unexpectedly by the ring of a pistol by the accused at his victim, who was unarmed. As
the latter attempted to ee he was pursued by the accused and driven to take refuge in
a closet, where he called aloud for help. The accused then tried to force open the door
but was unable to do so, owing to the resistance of the deceased from within. The
accused, however, judging the position of the deceased from the cries emitted, red his
pistol in the direction thus indicated. The bullet passed through the panel of the door
and, entering the head of the deceased, produced death. Held: That the nal attack was
characterized by alevosia and the crime perpetrated was murder even though the
attack had not been originally begun with alevosia.
4. CRIMINAL LAW; TWO CRIMES COMMITTED IN ONE ACT; ARTICLE 89 OF
THE PENAL CODE. — Where the accused entered the o ce of the provincial governor
where the latter was engaged in the exercise of his o cial functions and slew him
under conditions constituting murder, it is held that two crimes were committed,
namely, murder and assault upon a person in authority, and that the penalty prescribed
for murder should be imposed in its maximum degree, in accordance with section 89 of
the Penal Code.
5. CRIMINAL PROCEDURE; POSTPONEMENT OF TRIAL. — A trial court cannot
be put in error for refusing a continuance where there is nothing to indicate that the
accused was in fact prejudiced in the making of his defense by the action taken.
6. ID.; PERSONAL QUALIFICATION OF TRIAL JUDGE. — The fact that the
judge before whom the accused was tried on a charge of murder had attended the
funeral of the murdered man does not render the judge incompetent to sit.
7. ID.; WITHDRAWING PLEA OF NOT GUILTY; DEMURRER. — Permission to
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withdraw the plea of not guilty in order to interpose a demurrer to the complaint in a
prosecution for murder is properly denied where the complaint appears to be
sufficient.
8. ID.; PRODUCTION OF DOCUMENTS; STATEMENTS OF WITNESSES
BEFORE FISCAL. — Held: Under the circumstances stated in the opinion, that the trial
court committed no error in denying the motion of the accused to compel the
production in court of written statements made by witnesses for the accusation when
examined by the provincial scal under the authority of section 1687 of the
Administrative Code.
9. EVIDENCE; IMPEACHMENT OF WITNESS; PROOF OF CONTRADICTORY
STATEMENT. — Where an attorney desires to impeach a witness of the adversary by
proof of contradictory statements, he should, in the cross-examination of such witness,
lay a basis for the introduction of the contradictory proof by asking the witness if he did
not, at a time and place speci ed, make certain statements different from those
testified to by him.
10. CRIMINAL PROCEDURE; ASSESSORS; CONSULTATION OF JUDGE WITH
ASSESSORS. — Although the record in the case at bar did not show that the assessors
who took part in hearing the case had been consulted by the trial judge, it was
nevertheless held that the irregularity was immaterial. The statute does not require that
the opinions of the assessors shall be reduced to writing except where their
conclusions differ from those of the judge; and, where the record is silent, it is to be
presumed that the functions of the assessors were properly performed and that they
agreed with the findings of the court.
DECISION
STREET , J : p
This cause has been brought to the Supreme Court upon an appeal prosecuted
by Jose I. Baluyot from a judgment of the Court of First Instance of the Province of
Bataan, convicting him of the crime of murder, committed August 3, 1918, upon the
person of Conrado Lerma, governor of said province, and sentencing him to undergo
the penalty of death, to indemnify the heirs of the deceased in the sum of P1,000, and
to pay the costs.
At the general election which was held on June 6, 1916, Conrado Lerma was
elected governor of the Province of Bataan. One of his competitors upon this occasion
was the accused, Jose I. Baluyot, who came out third in the race. As a result of this
contest a feeling of personal rancor was developed in the mind of Baluyot against his
successful competitor, and during the two years which followed the accused became
fully imbued with the idea that Governor Lerma was persecuting him.
In the year 1918 Baluyot was prosecuted in the Court of First Instance of the city
of Manila for the offense of estafa in connection with a loan of money which had been
negotiated at the Philippine National Bank. This proceeding had been tried and in the
early days of August, 1918. was pending decision by the judge who tried the case.
Upon the organization of the National Guard, Baluyot had been commissioned as
captain in that body, and owing possibly to the pendency of the accusation for estafa
and its damaging effects upon his reputation, he had been asked to resign from the
position of captain in the National Guard and although he had not resigned when the act
which gave occasion to this prosecution occurred, he had apparently been temporarily
relieved from duty with that organization pending investigation.
The misfortunes above mentioned, as well as others of a minor character, were
attributed by Baluyot to the machinations of Governor Lerma, all of which served to
foment and increase his feeling of enmity towards the latter.
On August 2, 1918, the defendant left the city of Manila and went to the town of
Orion, in the Province of Bataan, taking with him a revolver. Early on the following day,
August 3, he shipped to Manila from Orion a piano belonging to his wife, and at 8 a. m.,
went to Balanga, the capital of the Province, arriving at the recorder's o ce in the
provincial building at about 9 o'clock a. m., where he inquired for Governor Lerma.
He was told that the governor had not arrived, but was expected later. The
accused accordingly determined to wait in the recorder's o ce, which served as a sort
of anteroom to the o ce of the governor. At about 11 o'clock a. m. the governor
arrived. He and the accused greeted each other in a friendly manner by shaking hands;
and the governor, upon being informed that Baluyot had called to confer with him,
invited Baluyot into his o ce. Baluyot hesitated, having noted the presence of another
caller and asked if the latter did not have a prior right to an interview. The governor said
that Baluyot should enter rst, which the latter accordingly did. The governor and the
accused remained alone in the former's o ce for 3 or 4 minutes, whereupon it
occurred to Governor Lerma that the interview might be more extended than he had
expected, and he accordingly requested that Baluyot should withdraw long enough for
the governor to confer with one Antonino Aranjuez, the other caller to whom reference
has already been made. Baluyot accordingly withdrew into the recorder's o ce and
told Aranjuez that the governor wanted to see or talk to him. Aranjuez then went in and
had a conference with the governor for a few minutes about the appointment of the
former as chief of police for the municipality of Limay. When Aranjuez came out Baluyot
said that it was now his turn and again entered the governor's office.
The evidence shows that at the time Baluyot reentered the governor's o ce the
latter was sitting behind his desk in an ordinary o ce chair. Baluyot approached the
desk and upon reaching a position directly in front of the governor spoke certain words
which were heard, though not distinctly, by persons in the recorder's o ce, Antonino
Aranjuez merely heard the accused call out "governor,' while Gregorio de Guzman
understood Baluyot to be asking the governor for his revolver. The accused himself
testi ed that his reference to the revolver was intended to admonish the governor to
prepare for a mortal combat and he says that the words spoken were these:
"BALUYOT. It appears to me that your revolver and mine have the
same calibre.
"GOVERNOR LERMA. No sir; mine is 32.
"BALUYOT. So is mine. Be prepared because one of us must die."
The accused gives a color to this conversation which seems to us somewhat
unnatural, and his statement as to what occurred, especially with reference to the
length of time that elapsed after he entered the governor's o ce until the rst shot was
red, is wholly lacking in verisimilitude. What really occurred, as the lower court found,
and as the testimony of the witnesses in the recorder's o ce slows, is that the rst
shot was red within a few seconds after Baluyot reentered the governor's o ce and
that the interval which elapsed was scarcely more than su cient to allow Baluyot to
reach the governor's desk The inference is conclusive that, immediately upon asking the
governor about his revolver, and discovering that he was unarmed, Baluyot drew his
own revolver and fired.
In the testimony given by Baluyot himself a circumstance is mentioned which
appears to us important in this connection. He says that while he was sitting in the
recorder's o ce, awaiting the arrival of Governor Lerma, Paulo Venegas, a guard
attached to the provincial jail, came up and after speaking in a low voice with the
recorder, entered the o ce of the governor and presently emerged, bringing a revolver
and some cartridges. Baluyot noticed that the revolver was discharged and remarked
to the person having it in hand that an unloaded revolver is less useful even that a cane.
The guard replied that he was not the person charged with loading it, but was going to
take it out to be cleaned, whereupon he disappeared carrying the revolver with him. This
act of carrying away of the revolver from Governor Lerma's o ce was especially
noticed by Baluyot and naturally from this he must have supposed that the revolver
seen by him was a weapon commonly kept in the governor's o ce. The still further
inference was obvious Baluyot that the governor upon arrival would be unarmed in his
office, unless he should- possibly bring a revolver upon his person
This circumstance shows ;that the words which Baluyot directed to Governor
Lerma immediately before the fatal attack were intended to discover whether Governor
Lerma was in fact unarmed. Upon discovering that Governor Lerma did not have his
revolver at hand, the accused at once drew his own weapon and red. Baluyot therefore
knew Governor Lerma to be unarmed and practically defenseless, and it is plain that the
attack was not begun until the assailant was fully assured upon this point.
The bullet rst red by Baluyot entered in the frontal region of the right shoulder
blade of Governor Lerma and in icted a wound of minor importance, passing through
the aforesaid part of the body and penetrating the back of the chair in which the
governor was sitting. Passing on from the chair, the ball entered the wall of the o ce
building, but was so far spent that it did not penetrate deeply. Instead it merely made a
circular hole in the wall of moderate depth and rebounded, falling on the oor. The line
of direction followed by the ball indicates that the accused directed the shot in
somewhat downward direction and that Governor Lerma was in all probability reclining
backwards in the chair at the instant the shot struck him.
The governor immediately arose. His free action was impeded by the table in
front, and by the walls of the o ce behind and on either side, since his table was in a
corner of his o ce. His exit was further obstructed by a small book stand on his
immediate right. His only convenient direction of escape was, therefore, in the direction
to his left by way of the space between the left corner of his desk and the wall nearby.
This direction the governor accordingly took, directing himself towards a passageway
in the wall a few feet from his desk leading into a corridor. When the governor had
cleared the desk so as to leave a free space between himself and his assailant, the
distance which separated them was only a few feet. Baluyot meanwhile turned
somewhat to his right and advanced slightly in the direction taken by Governor Lerma.
The latter desiring to make good his escape, started to run in the direction
aforesaid, and Baluyot, raising his revolver, again red. The ball struck Governor Lerma
in the region of the right shoulder blade and passed through the body an inch or two
from the wound made by the rst shot. The ring of the second shot was seen by
Antonino Aranjuez, whose attention had been attracted by the noise of the rst shot.
Being then seated at a desk in the recorder's o ce near the door leading into the
governor's o ce, this witness immediately arose upon hearing the rst shot, and
having arrived at a point in the governor's o ce wherestood a screen, occluding direct
vision from the door to the governor s desk, he placed himself at the side of the screen
and was thus able to see the scene then being transacted It was at this instant that
Baluyot, with his arm extended red the second shot at his eeing victim. The governor
at this moment had his right hand raised to his already wounded shoulder and was
running in a direction away from his assailant rather than towards him. Immediately
upon seeing this shot red, Aranjuez, instead of intervening to save the governor, as
would have been becoming, turned and fled to obtain succor.
Bonifacio Mencias, the sanitary o cial, who examined the wounds of Governor
Lerma, says that both of the rst two wounds were made by bullets which entered from
the front. This is obviously true as to the rst, but as to the second there seems to be
room for doubt. The inspection made by the doctor may have been super cial, and his
opinion may have been partly a matter of mere inference from his information as to the
general features of the tragedy. At any rate he does not state any particulars from
which it could clearly be discovered that the second shot entered from the front. The
witness Aranjuez makes it clear that as the matter presented itself to his eye, the
governor was eeing with his right side, rather than his front, exposed to Baluyot This
witness says that the governor's face was turned in the direction of his ight, though he
thinks the governor could have seen what Baluyot was doing. In this view the second
shot should apparently have entered from behind.
The point we consider of little importance, inasmuch as it is obvious that Baluyot
was the aggressor throughout and that the second shot was red at an unarmed man
whose only purpose was to effect an escape to a place of safety Whether at the instant
this shot was red Governor Lerma may have had his body turned so as momentarily to
confront his assailant, moving away sidewise, can have no bearing upon the
quali cation and character of the crime. The testimony of Baluyot to the effect that as
soon as Governor Lerma emerged from behind the table the two engaged in a hand to
hand struggle is preposterous in the extreme.
After the second shot was red, Governor Lerma continued his ight along the
corridor and, instead of attempting to pass out to the right into the recorder's o ce,
which would have exposed him to the danger of another shot while passing through the
open space, he took refuge in a closet at the end of the corridor. Once within, he shut
the door and placed himself in a position to obstruct the entrance of his pursuer, who
vainly attempted to open the door.
The governor then began to call aloud for help, and Baluyot, judging the position
of the governor's head from the direction of the sound thus emitted, red his revolver in
the direction indicated. The bullet passed through the panel of the door and struck
Governor Lerma in the forward part of the head near and above the right temple. It
passed downwards and came out through the left eye, loosening the eyeball in its
socket. This wound was necessarily fatal, though not instantly so; and the governor
evidently lost consciousness at once. Baluyot, feeling the movement of the body within
the closet, opened the door without resistance. As he did so the body of Governor
Lerma shot forward out of the closet, as if in an attitude to embrace the slayer, who
drew backwards, and the body fell prone on the oor. In this position it remained and
was found prostrate a few minutes later by persons who came upon the scene. Death
ensued in about two or three hours, without recovery of consciousness.
Baluyot, immediately after the tragedy, stepped over to a window of the room
overlooking the public square and, calling to a squad of Constabulary, who were
directing themselves to the provincial building, indicated that they should come up. At
the same time he threw his revolver to the ground, with three empty shells and others
that had not been discharged. Upon the arrival of the Constabulary he surrendered
without resistance.
The offense committed in this case exhibits features markedly similar to those
which characterized the crime which was the subject of prosecution in United States vs.
Gil (13 Phil. Rep., 530); and the offense here committed was properly quali ed by the
trial judge as murder, in which was present the qualifying circumstance of alevosia. The
presence. of this element is easily and in our opinion irrefutably indicated in the
conditions and manner both of the original attack and of the nal act by which the
offense was consummated.
With reference to the manner in which the attack was begun, the proof shows
that access was gained by Baluyot to the governor's o ce upon the pretext that he
desired a friendly interview; and although the strained relations existing between the
two, owing to their political antagonisms was appreciated by both, there was nothing in
the situation to warn the governor of impending trouble. The fact that Baluyot had
already been called into the o ce upon the governor's rst arrival and had withdrawn
for a few moments to permit another person to have an interview was also calculated
to put the governor off his guard at the moment Baluyot reentered the o ce. Being
seated in a reclining chair, and hemmed in by obstacles which prevented him from
reaching his assailant, it is plain that the unarmed governor could make no effectual
defense against a person armed with such a deadly weapon as a revolver. It is obvious
also that the means and methods thus deliberately selected by the assailant were
intended to insure the execution of the crime without any risk to himself arising from
the defense which the offended party could make.
We need not detain ourselves to analyze the conditions which existed when the
second shot was red, and we pass on to the third, with the single observation that the
entire assault from the beginning must be considered continuous and that the second
shot was red while the victim was endeavoring to ee to a place of safety. The
presence of alevosia in the ring of the third shot seems to be too patent to permit of
controversy. The victim in his effort to escape had been driven to take refuge in the
closet, and with the door shut, it was impossible for him to see what his assailant was
doing or to make any defense whatever against the shot directed through the panel of
the door. It was as i the victim had been bound or blindfolded, or had been
treacherously attacked from behind in a path obscured y the darkness of night.
Even supposing that alevosia had not been present in the beginning of the
assault, it would be necessary to nd this element present from the manner in which
the crime was consummated. In United States vs. Elicanal (3 Rep., 209) Justice
Moreland said:
"This court has held repeatedly that, even though the beginning of an
attack resulting in the death of the deceased is free from treachery of any sort,
nevertheless it will be found-present if, at the time the fatal blow is struck, the
deceased is helpless and unable to defend himself. While the writer of this
opinion formerly held the view that, where there is no treachery in the attack which
results in the death of the deceased, there can be no treachery which Will qualify
the crime as murder notwithstanding the fact that, at the time the fatal blow was
struck, the deceased was unarmed and defenseless, nevertheless, the court
having held so frequently the contrary, the writer accepts the doctrine so well
established."
There was present in the offense in question the generic aggravating
circumstance that said offense was committed in a place where public authority was
engaged in the discharge of duty. (Subsec. 19, art. 10, Penal Code.) There is no
discernible difference at this point between the present case and that of United States
vs. Gil (13 Phil. Rep., 530, 533), in which this aggravating circumstance was declared to
be present.
The trial court also found that the crime in question was characterized by the
further aggravating circumstance of evident premeditation. Certain items of proof
which tend strongly to show the presence of this element may be brie y mentioned. It
was testi ed by one Pedro Magajes, a friend of the accused, that on July 14, 1918,
Baluyot in the course of a conversation with Magajes exhibited ill-feeling against Lerma
and said that Lerma would pay for the misfortunes that were befalling him (Baluyot).
Domingo Lintag, compadre of the accused, testi ed that on the Friday in the month of
August, prior to the commission of the crime in question, he saw the defendant in Orion;
that when he and the defendant shook hands the latter squeezed his hand tightly and
said, "Parece ser que esta es la ultima vez que vamos a dar la mano" [may be that this
will be the last time we will shake hands]. This remark is especially noteworthy, since it
shows that the accused contemplated some occurrence which would have grave
consequences to him. On the morning of August 3, the day on which the crime was
committed, the accused asked more than one person if they thought. he was in Bilibid,
intimating that a false rumor to this effect had been maliciously circulated by his arch-
enemy, Governor Lerma. This shows clearly that the mind of the accused was xed
upon Lerma as the supposed author of his wrongs.
No very satisfactory explanation is given by the accused as to the reason for his
trip to Orion and especially to Balanga; and the conclusion is irresistible that he was
carried to the latter place by a thirst for vengeance. Furthermore, the conduct of the
accused in the next day or two succeeding the commission of the crime was that of a
person stimulated by a feeling of grati cation over the successful accomplishment of
a, xed purpose, not the conduct of one effected by grief over the fatal results of a
sudden and unexpected altercation. At no time did he exhibit any sign of regret for the
act committed. The conclusion reasonably to be drawn from the evidence as a whole is
that the accused, for several days prior to the perpetration of this murder, had
determined to seek an interview or encounter with Governor Lerma regardless of
consequences. It is impossible to say at what moment the determination to take life
became a xed resolution. The design to kill was probably entertained when the
accused went in the early morning of August 3 to the governor's o ce, and the putting
of this resolution into effect was at once determined upon when the accused found that
the governor was unarmed. In order to constitute the element of known premeditation
in the crime of murder it is not necessary that the slayer should have pre gured in his
mind all of the details of the crime or determined upon the exact moment when he
should carry his purpose into effect. It is enough that the determination to take life
should have been formed for a period su ciently long to allow the actor time to re ect
coolly upon the character and the consequences of the act, the accomplishment of the
crime being left to some suitable opportunity such as chance or design may present.
It is thus manifest that the conclusion of the trial court that the offense was
characterized by known premeditation is by no means without support in the evidence.
Nevertheless, as an express ruling on this point is unnecessary to the disposition of the
case, we concede to the accused the bene t of the possible doubt, and we accordingly
refrain from making any express findings as to the presence of said element.
It is contended in behalf of the accused that the crime in question was quali ed
by two extenuating circumstances, namely, rst, that it was committed under "an
impulse so powerful as naturally to have produced passion and obfuscation" (art. 9,
subsec. 7, Penal Code), and, secondly, that "the offender had no intention to commit so
great a wrong as that committed." (Art. 9, subsec. 3, Penal Code). This contention rests
upon certain statements found in the testimony of the accused and which, in our
opinion, are discredited by other evidence. Baluyot states that he began his rst
interview with Governor Lerma on August 3 by saying that he wished Diputado
[delegate] Reyes of Bataan could have been present as there were certain things which
he wanted to say in the presence of them both. Baluyot then stated that there was no
doubt that Governor Lerma had won in the political contest and that it was also
undeniable that in all his own misfortunes the governor had played an important and
direct part. The governor, according to Baluyot, thereupon replied: "viene usted con la
misma queja, Sr. Baluyot, pero no somos enemigos? Si fueramos amigos, menos mal; y
usted en nuestro lugar hubiera hecho lo mismo como usted ha hecho con mi compadre
Velez que acaba de ser separado de la Guardia Nacional." [You come with the same
complaint, Mr. Baluyot, but, are we not enemies. If we were friends, not quite so bad. If
you were in our place you would have done the same as you have done with my friend
(compadre) Velez who has just been discharged from the National Guard.] Baluyot says
that in reply to this he protested that he had nothing to do with the separation of
Captain Velez from the National Guard At this Juncture the governor suggested that the
interview was going to be somewhat lengthy and requested that Baluyot should yield
his turn for a few minutes until the governor could have a short interview with Aranjuez
Thereupon the interview was interrupted in the manner already stated, Baluyot
withdrawing for a few moments into the recorder's office.
Baluyot says that, when he was readmitted into the presence of the governor, he
seated himself in the same chair in front of the governor's desk where he had been
seated before, and the conversation was resumed. This conversation according to
Baluyot was of the following tenor:
"GOVERNOR LERMA. Where do you say you are going to, Mr. Baluyot.
"BALUYOT. I am thinking of going to Cebu and residing herefor some
time with my brother-in-law.
"The GOVERNOR. But you will not be able to do so very soon, perhaps
until after several months.
"BALUYOT. That is not true. On my return to Manila I'll prepare for my
trip and go to Cebu.
"The GOVERNOR. I believe you will not be able to carry that out,
because Judge Concepcion will detain you.
"BALUYOT. Why ?
"The GOVERNOR. Well, Judge Concepcion has sentenced you for
estafa to four months, and I don't know how many days; truly that is a good idea,
to change location, a location so full of people as Cebu where nobody knows you
perhaps you may be able to cheat better."
Baluyot says that, upon being informed by Governor Lerma that Judge
Concepcion had rendered judgment against him in the estafa case condemning him to
prison, he lost his head, as he was in high hopes of being acquitted in that prosecution.
He accordingly, at the close of the foregoing words imputed to Governor Lerma, rose
from his chair and used the words which we have quoted in a former part of this
opinion with reference to the calibre of Governor Lerma's revolver, at the same time
unbuttoning his coat and producing his own weapon.
Even supposing that the conversation between the accused and Governor Lerma
was exactly as stated by Baluyot, the language used by Governor Lerma was not such
as could have produced passion and obfuscation in Baluyot su cient to constitute the
mitigating circumstance de ned in subsection 7 of article 9 of the Penal Code. It is to
be noted, however, that no such conversation as that above transcribed could possibly
have taken place in the interval between the reentrance of Baluyot into the governor's
o ce and the time when the words addressed to the governor about the revolver were
heard in the recorder's o ce. From the testimony given by the witnesses Pedro
Gonzales, Antonino Aranjuez and Gregorio de Guzman, we consider it to be irrefutably
established that the rst shot was, red within nine or ten seconds after Baluyot
reentered the governor's o ce and that the interval which elapsed was scarcely more
than sufficient to allow Baluyot to reach the governor's desk.
The mind of an unbiased person must also be impressed with the inverisimilitude
of imputing to Governor Lerma knowledge of a judgment rendered by a court in the City
of Manila against Baluyot of which Baluyot was ignorant, for under section 41 of the
Code of Criminal Procedure sentence in such a proceeding as that then pending against
this accused must be pronounced in the presence of the condemned person, and if
Baluyot had in fact been convicted he himself would have been among the rst to learn
of it. It is highly improbable that Governor Lerma would have been guilty of conduct so
unbecoming as to have engaged in bantering a political enemy over a matter so
delicate, when Judgment had not in fact been pronounced. Our conclusion is that
Baluyot's account of the words which passed between him and Governor Lerma
immediately prior to the firing of the first shot must be rejected as false.
The contention that the accused had no intention to commit so great a wrong as
that committed rests upon the statement of Baluyot that the third shot was
accidentally discharged from his revolver while he was attempting to push open the
door of the closet in which the Governor had taken refuge. This pretension is hardly
deserving of serious notice, as it is refuted not only by the circumstantial evidence
bearing upon this phase of the tragedy but also by an admission made by Baluyot on
August 5 in conversation with Eusebio Reyes, reporter of a Manila newspaper. In this
conversation Baluyot stated that he pursued the deceased to the door of the closet
and, having observed from the cries emitted by Governor Lerma that the latter was
seated behind the door, he (Baluyot) discharged his pistol in the direction where he
divined the governor to be. We have no doubt as to the truth of this admission, and it is
a complete refutation of the suggestion that the discharge of the revolver was
accidental.
What we have thus far said su ces to demonstrate that in slaying Governor
Lerma, the accused was guilty of murder with at least one aggravating circumstance
and that the penalty for murder was properly imposed in its maximum degree. It is,
however, further insisted in the brief of the Attorney-General that in reality two crimes
were committed by the accused in the same act, namely, murder and assault upon a
person in authority. Under this conception of the case also the penalty for murder
should be imposed in its maximum degree under article 89 of the Penal Code.
We agree with the Attorney-General upon the proposition that the same act in
fact resulted in this case in the perpetration of two crimes. That the homicide is to be
characterized as murder we have already determined; and it is undeniable that, an
attack was in the same act made upon a person in authority while exercising the duties
of his o ce, as charged in the complaint, since the deceased was, as a provincial
governor, an authority within the meaning of article 249 of the Penal Code. These
considerations in our opinion supply an additional irrefutable basis for the imposition of
the death penalty by the trial Judge, though his decision did not discuss this aspect of
the case.
What has been said is su cient to dispose of so much of the appeal as is
concerned with the commission of the offense and its legal quali cation under the law.
Other questions, however, are raised relative to the conditions under which the case
was called to trial and the manner in which the prosecution was conducted in the Court
of First Instance. In this connection various errors of law are imputed, in separate
assignments, to the action of the Hon. Carlos Imperial, who acted as judge in the court
below.
In the rst speci cation of error the appellant alleges that "he was not given
ample opportunity to defend himself," because the court denied his attorney's last
request for a continuance. Upon this ground the appellant seeks to secure from this
court, if not a reversal of the judgment, at least an order for a new trial. The assignment
of error is in our opinion without merit. It appears in evidence that on August 3, 1918,
the provincial scal led an information in the court of the justice of the peace charging
the accused with the crime of murder. On the 5th, he appeared and waived the right to
be defended by an attorney and requested that the "expediente" be sent to the Court of
First Instance as soon as possible. On the 9th, an information was led in the Court of
First Instance, whereupon Manuel Banzon, a regularly admitted member of the bar, was
appointed by the court as attorney de o cio for the defendant upon the latter's
request, and he was duly arraigned, entering a plea of not guilty. On that date the
attorneys for the Government asked that the trial be set for the 12th, but the counsel
for the accused requested that it be set for the 15th, which petition was granted. After
the case was called for hearing on the 15th, the court received a telegram from Vicente
Sotto, then a member of the bar in Manila, stating that he had been employed by the
family of the accused and asking that the hearing be postponed until the following
Monday. The attorneys for the Government objected to this request but the court,
nevertheless, postponed the hearing until the following day, and Sotto was immediately
noti ed by telegram of that order. Sotto at once departed for Balanga and was present
in court when the case was called for trial the next morning Banzon was authorized by
the court to retire from the case only with the defendant's consent and after Sotto had
made his appearance and taken charge of the case.
From the foregoing statement it is seen that the accused was at all times
represented before the court by a competent attorney, and no fact is adduced which
would enable us to say that he was in any wise embarrassed in the making of his
defense by the action of the court in setting the case for trial on August the sixteenth
and proceeding with it on that day. It cannot be permitted that a trial court should be
put in error for refusing a continuance when there is nothing whatever to show that the
accused was in fact prejudiced by the action taken. Where a continuance is sought on
the ground of want of preparation, an a davit should ordinarily be led showing in
what respect the applicant is not ready and that he has made reasonable exertions to
prepare for trial without success, or some good reason for not making such exertions.
(13 Cor. Jur., 183.) Nothing of the kind was done in this case; and when Sotto actually
appeared in court and assumed the duties of attorney for the accused, no application
for a continuance of any sort was really made. On the contrary the attorney was content
merely to cause a note to be made in the record to the effect that he respectfully
protested against the telegram which the court had sent to him the day before notifying
that the cause was set for trial on the 16th. No statement whatever was made showing
why further delay was necessary. The action taken by the court was in our opinion in no
wise prejudicial and was therefore not erroneous.
In United States vs. Lao Chueco (37 Phil. Rep., was held that "when an accused is
obliged to come to trial without having the opportunity to cite his witnesses it cannot
be said that he is given the opportunity to be tried completely, fully and impartially as
the law prescribes, and a new trial will be ordered." But in that case the accused was
deprived of the opportunity to subpoena his witnesses, whereas in the case at bar
neither the accused nor his attorney informed the court that there was any witness that
they wanted to be cited. It does not appear even now that there was any essential
witness whom he could have presented had not the case been tried on August 16th.
When the accused was arraigned on August 9 the court told him that, if he had any
witness that he wanted the court to subpoena, he should so inform the court as soon
as possible in order that the trial of the case might not be delayed.
The second assignment of error raises a question which is addressed to the
personal quali cation of his Honor, Carlos A. Imperial, to preside at the hearing of this
case. The exception to the trial judge was based on the fact that the latter had attended
the funeral obsequies of Governor Lerma, which had been characterized by marked
manifestations of public grief and sympathy. This fact was relied upon as showing that
Judge Imperial was biased and could not be relied on to try the accused with rectitude,
justice, and impartiality. The judge, however, did not accede to this suggestion and
proceeded with the trial as already stated. There is in our opinion no merit in the
assignment. No prejudice on the part of the judge is in fact shown, and the record by no
means bears out the assumption that the judge was in fact in any wise biased.
Furthermore, the objection raised is not based upon any of the grounds of
disquali cation stated in section 8 of Act No. 190. This section expressly enumerates
without ambiguity the cases in which a judge or justice of the peace is disquali ed from
acting as such, and the express enumeration of these cases excludes others. Such is
the tenor of the decisions of this court in the cases of Perfecto vs. Contreras (28 Phil.
Rep., 538), and Joaquin vs. Barretto (25 Phil. Rep., 281). In the case last cited it was
held that extreme delicacy was no ground for disqualifying a judge from trying a case.
The decisions just cited are civil cases but in the absence of express provision in the
Code of Criminal Procedure, the analogy is of value.
In the third assignment it is imputed as error that the court at the hearing denied
a motion of the attorney of the accused to withdraw the plea of not guilty previously
entered by him in order to permit a demurrer to be led to the information. The attorney
did not disclose to the court the ground on which he proposed to base his demurrer,
and as the information appears to be su cient, it is evident that this motion was
merely dilatory, and the court committed no error in refusing to accede thereto. The
action of the trial court in passing upon an application of this character is largely
discretionary and is not subject to review except where the judicial discretion appears
to have been abused.
The fourth speci cation is addressed to the supposed error of the court in
refusing to compel the provincial scal to produce in court at the request of the
attorney for the accused certain written statements which had been made by the
witnesses Pedro Gonzales, Gregorio de Guzman, and Antonio Aranjuez in a preliminary
inquiry conducted by the scal preparatory to this prosecution. It appears that after the
witnesses above mentioned had been examined in court for the prosecution, they were
turned over to the attorney for the accused and were by him fully cross-examined. Later,
when the giving of testimony for the prosecution had been concluded, the defense
proceeded to introduce sundry witnesses who were examined in due course. After four
had thus testi ed, and immediately before the accused was placed upon the stand in
his own behalf, his attorney made the request that the declarations or statements
above referred to should be produced. The attorney for the prosecution objected on the
ground that one party cannot be compelled to produced evidence in favor of the other.
The court was of the opinion that the written declarations the production of which was
sought were of a privileged nature and accordingly overruled the motion. We are of the
opinion that the court was not in error in refusing to compel the production of the
documents in question. They were not original or independent evidence of such a
character as to give the accused an unquali ed right to compel their production, and no
proper basis was laid in the cross-examination of the witnesses who had made those
statements to justify their production with a view to the impeachment of the
declarants. The request was of course based upon the supposition or expectation that
if the statements of the witnesses before the scal were produced, they might be
found to contain something different from what was contained in their testimony given
in court.
We know of no rule of practice which sustains the contention of the appellant
The statements in question were not the sworn declarations of witnesses taken in
conformity with the requirements of section 13 of General Orders, No 58, and which are
commonly attached to the "expediente" transmitted by the committing magistrate to
the Court of First Instance. In the case at bar the preliminary examination before the
committing magistrate was waived by the accused, and the declarations of the
witnesses for the prosecution were therefore not taken before the magistrate. The
declarations referred to were, on the contrary, taken in an investigation conducted by
the scal under the authority of section 1687 of the Administrative Code. This section
authorizes the scal, if he deems it wise, to conduct an investigation into the matter of
any crime or misdemeanor for the purpose of instituting or carrying on a criminal
prosecution. It is expressly declared that this section shall not be construed to
authorize a provincial scal to act as a justice of the peace in any preliminary
investigation. The proceeding here contemplated is of an administrative character, and
the information thereby acquired is intended for the use of the scal in the conduct of
the prosecution. Such declarations therefore pertain to the o cial le in the o ce of
the public prosecutor and are not subject to production at the mere request of the
attorney for the accused where no ground therefor had been laid.
In order that we may not be misunderstood, as well as for the purpose of
clarifying the practice in such matters, a few words may here be properly said in
respect to the proper mode of proceeding in a case where a party wishes to get before
the court contradictory statements made by a witness who is testifying for the
adversary party. For instance, if the attorney for the accused had information that a
certain witness, say Pedro Gonzales, had made and signed a sworn statement before
the scal materially different from that given in his testimony before the court, it was
incumbent upon the attorney when cross-examining said witness to direct his attention
to the discrepancy and to ask him if he did not make such and such statement before
the scal or if he did not there make a statement different from that delivered in court.
If the witness admits the making of such contradictory statement, the accused has the
bene t of the admission, while the witness has the opportunity to explain the
discrepancy, if he can. On the other hand, if the witness denies making any such
contradictory statement, the accused has the right to prove that the witness did make
such statement; and if the scal should refuse upon due notice to produce the
document, secondary evidence of the contents thereof would be admissible. This
process of cross-examining a witness upon the point of prior contradictory statements
is called in the practice of the American courts "laying a predicate" for the introduction
of contradictory statements. It is almost universally accepted that unless a ground is
thus laid upon cross-examination, evidence of contradictory statements are not
admissible to impeach a witness; though undoubtedly the matter is to a large extent in
the discretion of the court.
We wish to add that in a case of this kind, if the accused had, by a davit or
otherwise, made it appear to the satisfaction of the court that the witnesses named
had made statements in their declarations before the scal materially at variance with
their statements in court and that the production of said declarations was necessary or
even desirable, in the interests of justice, the court would have had ample power to
order their production. No such showing, or intimation, was made in this case; and the
attorney who made the motion was merely angling at random to discover something
that might prove to be favorable to his client. To put a court in error for refusing to
entertain such a motion would encourage frivolous delays and tend to embarrass the
speedy and proper administration of justice.
The last assignment directed to supposed error of law in the action of the trial
court is to the effect that the judge made his decision without hearing the assessors
who acted at the trial. In this connection it appears that at the request of the accused
two assessors were appointed in accordance with the provisions of sections 153-161
of Act No. 190, which provisions were extended to criminal causes by Act No. 2369 of
the Philippine Legislature. The record does not show that the assessors in the case
before us were in fact consulted by the judge, and the decision of the court makes no
mention of them. We are of the opinion that, the irregularity, if such it be, is immaterial.
The functions of the assessor are purely advisory, and the responsibility for the
decision rests exclusively with the judge. The statute does not require that the opinions
of the assessors shall be recorded except where two or more assessors are of the
opinion that the court's ndings of fact are wrong. In the silence of the record it is to be
presumed not only that the functions of the assessors were properly performed but
that they agreed with the ndings of the court. This presumption is borne out in the
case before us by the circumstance that after the records of the case had been sent up
to this court, the clerk of court of Bataan forwarded as part of said records
certi cations signed by the assessors who had sat in the case, stating that they had
read the decision rendered by the court and that they concurred in the ndings of fact
made therein. It is not necessary that the record should a rmatively show that the
judge consulted the assessors before making his decision, as in the absence of a
showing to the contrary it is to be presumed that he did so.
From the preceding discussion it is apparent that, in the view sustained by the
majority of the members of this court, no material error was committed by the trial
judge either in the mode of conducting the trial or in the quali cation of the crime and
xing the penalty attendant thereupon. However, as one of the Justices of this court is
not in accord with the majority with regard to the propriety of the imposition of the
death penalty, the penalty imposed must, in conformity with the requirements of Act
No. 2726 of the Philippine Legislature, be reduced from death to cadena perpetua with
accessory penalties prescribed in article 54 of the Penal Code. As thus modi ed the
judgment appealed from is affirmed, with costs against the appellant. So ordered.
Arellano, C. J., Torres, Johnson and Avanceña, JJ., concur.
Malcolm, J., was not present at the argument, and did not take part in the
disposition of the case.
Moir, J., voted with the majority of the court for the absence at the time of the
promulgation of this opinion his name does not appear signed thereto. (Sgd.) C. S.
ARELLANO.
Separate Opinions
ARAULLO , J., dissenting :
I dissent from the foregoing opinion of the Justices in regard to the classification
of the crime committed by the accused Jose Baluyot and the penalty which ought to be
imposed upon him.
After a careful study of the case, in my opinion the death of Governor Conrado
Lerma of the Province of Bataan caused by Baluyot in the morning of August 3, 1918,
cannot be quali ed by alevosia (treachery), and consequently the crime committed by
said accused is that of homicide. Wherefore, the penalty corresponding to said crime
should have been imposed.
There is treachery (alevosia) when the offender commits any of the crimes
against the person, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution without risk to himself arising from
the defense the offended party might make. (Art. 10, par. 2, of the Penal Code.)
It is a doctrine upheld repeatedly by the courts that the circumstances which
qualify the homicide, converting same into murder, ought to be proven by the
prosecution like the homicide itself, to wit, beyond a reasonable doubt, before the same
may be quali ed as murder and the corresponding penalty imposed; that in order that
the crime of murder may be considered established, it is requisite that there appear
proved in a manner evident and undisputable one of the circumstances enumerated in
article 403 of the Penal Code; that mere presumptions and hypothetical deductions do
not su ce for their appraisal and justi cation. It has also been held repeatedly that
before treachery can be considered as a qualifying circumstance of the crime of
homicide, it is requisite that there appear as clearly proven that regarding it no doubt
whatever presents itself, arising from suppositions founded on facts which may have
been the subject matter of the evidence at the trial.
It was proven: First, that the accused Jose I. Baluyot, between 10 and 11 a.
m. of August 3, 1918, nding himself in the room or o ce of the provincial governor of
Bataan, Conrado Lerma, alone with the latter, with a revolver which he was carrying
red, rst, two shots at short intervals at said governor — the rst shot while the
governor was seated in front of his writing desk, the second while he, having stood up,
was in the act of betaking himself to a little passage-way leading to a corridor adjoining
the o ce, — and afterwards a third, the said Lerma then being behind the door of a
closet, wherein he took refuge, eeing from his pursuer who aimed said third shot
through said door; second, that the projectile of the rst shot entered the frontal region
of Lerma's right shoulder blade, that is to say (as Dr. Mencias, who examined him ve
minutes after the incident has stated), the region below the upper right clavicle, passing
through the said part of the body, the back of the chair in which Lerma was sitting and
lodging itself in the wall of the room behind the chair; third, that the projectile of the
second shot also entered the same part of Lerma's body but about one or two inches
from the rst, passed through the body and, like the rst, came out of the shoulder
blade on the same side — said wounds not being necessarily mortal except in case of
complications; and fourth, that the projectile of the third shot penetrated the panel of
the door behind which the decease had taken refuge, struck him in the right temporal
region, coming out of the left eye and destroying same, this wound being necessarily
mortal and serious for the cerebrum was penetrated, the result being that the wounded
Lerma, without being able to say a word and without recovering consciousness, died at
2.35 p. m. of that same day, or approximately three hours after having been wounded.
Governor Lerma and the accused Baluyot being alone in the governor's o ce
when Baluyot, making use of the revolver which he was carrying, began the attack; and
nobody having witnessed what occurred between them before the one began the
attack upon the other or during the same; and the one attacked having died without
being able to say a word, on account of the gravity of the wound caused by the last
shot; it is undeniable, that no one, with the exception of the accused himself, has been in
a position to relate what took place then between him and the deceased.
It is said in the majority decision that the accused, in the morning of the third day
of August aforesaid, was awaiting Governor Lerma in the recorder's o ce, a sort of
anteroom to the governor's o ce; that on the governor s arrival about 11 o'clock a. m.
after an exchange of friendly greeting and handshaking the accused was invited rst by
the governor into said o ce, in preference to another caller called Aranjuez who was
also waiting; that the accused entered and, the two remained alone in said o ce for 3
or 4 minutes, but as it appeared to the governor that the interview would be longer, he
requested the accused to go out a minute in order to confer with said Antonino
Aranjuez. The accused did so, Aranjuez entered the governor's o ce and had a few
minutes conference. As soon as this was over, the accused reentered the governor's
o ce and that was when the aforementioned three shots red successively by the
accused, were heard.
Referring to what took place then between him and Governor Lerma, the accused
said that he came that morning from Orion to Balanga where he had been during the
rst hours of the same morning occupied in shipping his wife's piano to Manila, his
purpose being to have an interview with the Representative of said province, Reyes, and
Governor Lerma, to talk over certain things with them and to bid them good-bye before
leaving for Cebu as he intended to do, but as Representative Reyes was not in town
then, his interview was only with the governor; that the rst time he met the governor in
his o ce telling him the object of his visit, Lerma said: "I can almost guess what you
want to say to me ;" that he answered: "So much the better. That will save me time.
There is not the least doubt but that you have defeated me, just as it is also almost
undeniable that in all of my misfortunes as these documents I have in my hands prove,
you have had very important and direct participation;" that the governor then replied:
"You come with the same complaint, Mr. Baluyot, but, are we not enemies? If we were
friends, not quite so bad. If you were in our place you would have done the same, as you
have done with my friend (compadre) Velez who has just been discharged from the
National Guard;" that after having denied that he had any thing to do with Captain
Velez's discharge the governor asked him if his interview would be long and if he be
willing to grant Aranjuez, who was waiting in the recorder's office, his turn with whom he
(governor) would have a short interview that in compliance with the governor's
suggestion he withdrew to the recorder's o ce and, Aranjuez's interview with the
governor being over, he reentered said o ce and resumed the previous conversation in
the following words:
GOVERNOR LERMA. Where do you say you are going, Mr. Baluyot.
"BALUYOT. I am thinking of going to Cebu and residing there for some
time with my brother-in-law.
"GOVERNOR. But you will not be able to do so very soon perhaps not
until after several months.
"BALUYOT. That's not true. On my return to Manila I'll prepare for my
trip and go to Cebu.
"GOVERNOR. I believe you will not be able to carry that out because
Judge Concepcion will detain you
"BALUYOT. Why ?
"GOVERNOR. Well, Judge Concepcion has sentenced you for estafa to
four months, and I don't know how many days;" that when he heard this he lost
his head, as he was in high hopes of winning the case or of being acquitted in the
prosecution, that the governor continued saying to him- "Truly that is a good idea,
to change residence in a place so full of people as Cebu, where nobody knows
you, perhaps you may be able to cheat (estafar) better; that then he got up from
his seat and addressed the governor in these words: "It appears to me that your
revolver and mine have the same calibre;" that the governor answered: "No, sir;
mine is 32; that to this he replied: "So is mine. Be prepared because one of us
must die ;" that upon saying this he opened his coat and drew his revolver; that
then the governor raised his right hand putting it right on the shelf where there
was a sword (cris), but on seeing the revolver out of its case he cried out: "Oh!
Mother! guard!;" that he (the accused) red the rst shot; that the governor having
fallen towards the East, he again pulled the trigger of the revolver, but having
missed his shot while he was xing the trigger, the governor got up grabbing him
in order to reach his right hand with which he was xing the trigger, and after this
struggle he (governor) ed starting to run towards the corridor; that he then
approached the door of the closet, wherein the governor had taken refuge, with
the trigger raised, and when he tried to push said door the revolver went off, the
accused not knowing whether it was the third or fourth shot; that after this shot
the door was half-opened; that on pushing it, the governor got up in an attitude to
embrace him, and he then believed that the governor was trying to struggle with
him, but the governor took one step backward and fell prostrated completely on
the oor; that he was immediately arrested afterwards by the constabulary to
whom he voluntarily surrendered; and that before this he threw from the window
his revolver with the cartridges remaining in order that the constabulary soldiers in
front of said window should take charge of them.
While the foregoing facts were taking place in the governor's o ce manner
stated by the accused, in the adjoining recorder's o ce were the recorder himself
(Pedro Gonzalez), Antonino Aranjuez who had a few moments before left the governor's
o ce, and Gregorio de Guzman, the provincial assessor, who were produced at the
hearing as witnesses for the prosecution.
Pedro Gonzalez testi ed that, while seated in his o ce chair, that is in front of
the table marked No. 9 in the prosecution's plan, Exhibit B, and shortly after the accused
entered the governor's o ce after Antonino Aranjuez s interview had come to an end,
he heard one pistol shot, that the time from the moment the accused entered the
aforesaid o ce until he (the witness) heard said rst shot was enough for the accused
to go from the witness' o ce to the governor's desk or about two seconds, calculating
the distance between his desk and the governor's to be only some ten steps; that
having left his o ce, going towards the engineer's o ce in order to ask for help and
being in front of said o ce, he heard a second shot; that the time which elapsed
between the rst and second shots was about 20 or 30 seconds, the distance between
his o ce and that of the engineer being about 15 or 20 meters; that having
immediately gone to the auditor s o ce, in the lower story of the building, he heard the
third shot, more than a minute after the second.
The second witness, Antonio Aranjuez, testi ed that after he had been some two
minutes only in the governor's o ce talking with the governor, who said he would be
appointed chief of police of the municipality of Limay, he left the governor in his chair,
went to the adjoining o ce of the recorder and there, to a question of the accused,
replied that his interview with the governor was now over; that then the accused
entered the governor's o ce; and he (witness) was not yet seated in a chair in the
recorder's o ce, in the place marked with the letter Y in the said Exhibit B, and was in
the act of picking up a penholder, when he heard the accused Baluyot say "governor"
and immediately afterwards a shot; that on hearing said shot, he ran towards the door
opening into the governor's o ce, e side of a screen next to said door, and from there
saw the accused fire a second shot with his revolver at the governor; that he then began
to run rst towards the warden s o ce, in the lower part of the building, in order to ask
for help and afterwards towards the Constabulary barracks; that just as he was about
to go out of the front door of said provincial building, he heard the third shot red from
the same place as the two other shots; that the time from the moment the accused
entered the governor's o ce until he heard the rst shot was 9 or 10 seconds; that
from the rst to the second shot was 5 or 6 seconds; and that from the second to the
third shot was 3 or 4 minutes, more or less.
The third witness, Gregorio de Guzman, the provincial assessor, testi ed in turn
that when the accused Baluyot entered the governor's o ce, he was very near the
recorder's desk and approximately one meter from the door which was between the
governor's o ce and that of the recorder; that at the moment he was saying good-bye
and leaving the recorder's desk to go to his own o ce, he heard the accused Baluyot
asking the governor for his revolver saying: I would like to see your revolver," that as he
was taking hold of the door to go out of the recorder's o ce, he could not understand
the other words of the accused, who was then talking in a natural tone without any
indication of a quarrel; that he heard the aforementioned words on going out towards
the corridor, and for this reason he could not say whether or not the governor
answered; that Baluyot spoke those words as soon as he (Baluyot) was in front of the
governor, because Baluyot entered the governor s o ce while the witness was in the
recorder's o ce; that the distance between the recorder's desk and that of the
governor was some 9 meters, more or less; that after leaving and while in front of the
engineer's o ce, he heard a pistol shot coming from the place where he had been; that
the time from the moment he heard Baluyot's words addressed to the governor until he
heard said shot was, according to his opinion, 9 or 11 seconds; that the distance
between the recorder's o ce and that of the engineer was 10 to 11 meters, more or
less, and he was then walking naturally; that upon returning to the recorder's o ce
because he had heard the shot coming from that place and supposed it was an
accidental one, he could not enter said office for, when he was about to enter he heard a
second shot, and he saw coming out, Antonino Aranjuez, who said that Baluyot had
red at the governor; that the time from the rst to the second shot was about 5 or 6
seconds; that after hearing the second shot and seeing Aranjuez, he went to the
provincial guard room, called the guards from the steps of the building, and then to the
warden to tell him what was going on ups airs, that after loading his revolver and after
asking the warden if he would go to help the governor, and while he was on the
stairway, he heard another shot; that nding nobody there, and having entered the
auditor s o ce, which was open, and in which were the provincial assessor and an
employee of the treasurer's o ce, he heard another pistol shot red from the
governor's o ce; and that the time from the second to the third shot was about 2 or 3
minutes.
And, nally, said three witnesses for the prosecution declared that they had not
noted nor heard any dispute, altercation, quarrel by words or blows between Governor
Lerma and the accused from the time the latter entered the governor's o ce and
before the first shot was heard.
Now then, if, according to the recorder, Pedro Gonzalez, only some two seconds
elapsed from the moment the accused entered the governor's o ce until he reached
the governor's desk and red the rst shot, said witness made it clearly understood
that the accused had no time enough to hold with the governor the dialogue related by
said accused in his testimony, but suddenly, unexpectedly and instantaneously red his
rst revolver shot at the governor as soon as he was near him. But it is not explained
nor is it comprehensible, unless said witness has not told the whole truth, why the
second witness, Antonino Aranjuez (who was going to take a seat at a table in the very
end of the same recorder's o ce which, according to plan Exhibit B, is 5 meters and 96
centimeters long and away from the recorder's table approximately this same distance,
as is shown in said plan) heard the accused, after having entered the governor's o ce,
say "governor" before hearing the rst shot, and a rmed also that the time that passed
from the moment the accused entered the governor's o ce until he heard said rst
shot was 9 to 10 seconds. Neither does one understand how the recorder, Gonzales,
heard the rst shot red by the accused two seconds after the latter entered the
governor s o ce and as soon as he had reached the governor's desk, without making
mention of having heard the accused say some word to the governor, when the third
witness Gregorio de Guzman, the provincial assessor, (who was precisely at the side of
the recorder and next to the door separating the o ce of the latter and that of the
governor; i. e., in the same place where the recorder was) heard the accused say, upon
entering the governor's o ce, "Governor, I would like to see your revolver." But, it is far
more incomprehensible that when the aforementioned witness Guzman heard the
accused utter the aforesaid words he was taking leave of the recorder, as he testi ed,
and leaving the table of the former bound for his own table (that belonging to the
provincial assessor) but that he heard the rst shot only when he was in front of the
door of the engineer's o ce which was about 10 or 11 meters from the recorder's
o ce and only after 9 or 11 seconds after having heard Baluyot ask the governor for
his revolver; i. e., the witness being already outside of the recorder's o ce and having
walked a distance of about 10 or 11 meters from this o ce to the engineer's, a
distance much greater than that intervening between the door of the recorder s o ce
and where the governor's table was, as may be seen in the plan Exhibit B.
It is evident that the three witnesses having referred to the same act, having been
placed under similar condition so as to have been advised of what the accused may
have said to the governor before ring the rst shot, and having heard the rst shot, no
one of them ought to have failed to have perceived that which the others heard from the
accused when the latter talked to the governor. If the object of the prosecution in
presenting these witnesses was to prove that Governor Lerma was unsuspectedly and
suddenly assaulted by the accused immediately on having placed himself in front of the
former, ring at him the rst shot which caused a wound in his right shoulder blade, and
immediately thereafter the second shot which struck exactly the same part of his body,
one or two inches from the rst, and to prove also that between the accused and the
governor no words were exchanged nor did the said dialogue ever take place, it is
evident that said object has not been obtained. The discrepancy and contradiction in
the testimony of the two witnesses, Antonino Aranjuez and Gregorio de Guzman, on the
one hand, and that of the other witness, Pedro Gonzalez, on the other hand, is so evident
that one is unable to infer from their respective testimony what took place between
Governor Lerma and the accused while the two were alone in the o ce of the former,
before the accused assaulted the governor, and at the time the rst shot was red
followed immediately by the second is a positive and proven fact.
However, in the foregoing decision the majority say that, from the testimony
given by the aforementioned three witnesses, they consider irrefutably established that
the rst shot was red within 9 or 10 seconds after Baluyot reentered the governor's
o ce, and that the interval which intervened was scarcely more than su cient to allow
Baluyot to reach the governor's desk.
I do not believe that the evidence warrants such a conclusion. Aside from the fact
that for the reasons already set forth absolute credit cannot be conceded said three
witnesses in all that each has stated regarding the particulars already mentioned, it is
indisputable that, if it be accepted as an established fact that the rst shot was red
within 9 or 10 seconds, it cannot be accepted at the same time as certain that the
interval which intervened after the accused reentered the governor's o ce or, better
said, went to this o ce from the recorder's was hardly more than su cient to allow the
accused to reach the governor's desk, for the simple reason that what is deduced from
the testimony of Antonino Aranjuez and Gregorio de Guzman regarding the rst point is
an evident contradiction of what the recorder, Gonzalez, said regarding the second or
last point. The recorder said that the distance between his desk and that of the
governor was only some 10 paces and that the time intervening from the moment the
accused entered the governor's o ce until he (the witness) heard the rst shot was
some two seconds or the time su cient, according to said witness, to reach the
governor's desk from that o ce. But according to the a rmations of Aranjuez the rst
shot was red within the 9 or 10 seconds after the accused had reentered the
governor's o ce, and according to De Guzman from 9 to 11 seconds elapsed after
Baluyot was heard saying to the governor that he would like to see his (the governor's)
revolver (words that Baluyot uttered upon arriving in front of the governor) until the rst
shot was heard, said witness being then in front of the engineer's o ce. Wherefore it
cannot be a rmed that what the recorder Gonzalez told about the particulars in
question is not true, because, as anybody, watch in hand, can prove it, the distance of 10
steps between two points cannot be covered walking at natural pace and not hurriedly,
in 2 seconds only; but from 8 to 9 seconds. Regarding the other two witnesses, one
cannot deny that the basis for their computation of the time intervening from one
moment to another was only reliable in a small degree and easily fallible when before-
hand (i. e., from the rst moment) there had been no intention to determine it, and, even
so, any calculation is not able always to come out exact. These two witnesses could
have just as well said that the time intervening from the moment stated by each
respectively in this a rmation until they heard the rst shot was from 20, 30, 50,
seconds or one minute more, without anybody contradicting them and without their
giving any reason justi cative of said computation, as they have said that it was from 9
to 10 or 11 seconds. It is to be noted also that said Aranjuez and De Guzman have
come to agree in-their computations regarding the rst shot, the rst saying it was
from 9 to 10 seconds the second from 9 to 11; and also regarding the time which
transpired from the rst shot to the second, the two saying it was some 5 or 6 seconds
— coincidence which is rather strange as far as it reveals complete identity in the
computation made by the two, and rather unnatural and unexpected, especially if there
is taken into consideration the circumstances in which are unrolled the events to which
said computation refers. And so much the more strange as the other witness, Gonzalez,
has not coincided with the other witnesses in the computation which concerns the rst
shot as much as the second, for according to said witness between the rst and the
second shot passed not 5 or 6 seconds, but 20 or 30 seconds.
Therefore, in my judgment, the aforementioned conclusion cannot be reached by
means of the testimony of the witnesses who were in the secretary's o ce, i. e., of the
three witnesses above named; nor can it be conclusively deduced from same, as is also
stated in the same decision, that, immediately upon asking the governor about his
revolver, and discovering that he was defenseless, Baluyot drew his own revolver and
fired.
However, in order to arrive at said conclusion, the majority has had under
consideration various facts and circumstances which are related in the same decision
indicative of the purpose then conceived, according to the majority, by the accused to
kill treacherously Governor Lerma.
In fact it is said in the majority decision that the governor, upon being informed
that Baluyot had gone there to have an interview with him, invited Baluyot to pass into
his o ce; but Baluyot hesitated, having noted the presence of another caller, and asked
if the latter did not have a prior right to an interview with the governor.
What follows from the evidence regarding this particular is that: First, according
to the recorder, Pedro Gonzalez who was then in his o ce, when Governor Lerma
arrived and saw Baluyot he greeted the latter and invited him to pass into his o ce and
that Baluyot went in; second, according to Antonino Aranjuez, when the governor arrived
in the recorder s o ce, he greeted everybody, saying "good morning," that they, in turn,
greeted him, that Baluyot shook hands with the governor who then invited Baluyot to
enter his o ce saying: "Come here, friend, pass in," and then Baluyot asked: "Which of
us two, Mr. Aranjuez or myself, is the one who ought to enter rst?" and the governor
answered: "You ought to enter rst," and, in fact, the governor and Baluyot entered into
the former's o ce; and third according to the same accused, Baluyot, in that morning
he was in the recorder's o ce where he found an employee typewriting; that the
recorder Gonzalez and Aranjuez arrived after he did; that when the governor arrived all
greeted each other as usual; that the governor having invited him, saying: "Come in," he
(the accused), before entering the governor's o ce, asked the recorder who of those
waiting for the governor had the prior right to enter, that the recorder said: "He who had
arrived rst ought to enter rst," then he (the accused) entered the governor's o ce;
the accused added furthermore, in his testimony (rec., 236) that the provincial
assessor, Gregorio de Guzman, having entered the recorder's o ce while Aranjuez was
in the governor's o ce, he (the accused) said to the recorder the following: "Mr.
Gonzalez, I give you notice that the next turn is mine and not Mr. Gregorio de Guzman,
who has just come," and De Guzman answered: "Yes, I give my turn to you," and that
after Antonino Aranjuez had come out of the same he (the accused) then entered the
governor's office.
As it appears from the foregoing facts, the accused did not hesitate to enter into
the governor's o ce because he had noted the presence of another caller. The truth is
that, upon having been invited by the governor into his o ce, the accused went in but
before entering, he showed himself disposed to enter after Aranjuez if his turn was not
prior, having rst asked the recorder whose turn it was of those who were waiting for
the governor. Certainly, it cannot be said from this that the accused should have shown
hesitation then because he should want to be alone with the governor in his o ce, as it
seems to be given to infer in the majority decision. And it is so much the more certain
that the accused did not hesitate to enter the governors o ce inasmuch as when
Gregorio de Guzman was also in the o ce, he reminded the recorder, that he had a
prior right to-enter the governor's office than De Guzman, who had only recently arrived.
In my judgment, the conclusion in the majority decision that "The fact that
Baluyot had already been called into the o ce upon the governor's rst arrival and had
withdrawn for a few moments to permit another person to have an interview was also
calculated to put the governor off his guard at the moment Baluyot reentered the
o ce" must also be recti ed. From the evidence, it does not appear that the initiative or
the idea of withdrawing from Governor Lerma's o ce at that moment had come from
Baluyot but, on the contrary, it was the governor himself, as the majority decision says
verbatim, who "requested Baluyot to withdraw long enough for the governor to confer
with Antonino Aranjuez, the other caller to whom reference has been made," in view of
its having occurred to the governor that the interview which he was then having with the
accused might be more extended than he had expected. Moreover, in his testimony
(rec. 215) relative to this incident, the accused said that, in his rst interview with the
governor after having protested that he had nothing to do with Captain Velez'
separation from the National Guard, the governor asked him: "Is our interview going to
be very long, Mr. Baluyot ? Do you wish to give your turn to Mr. Aranjuez who has a short
interview?" and he answered he had no objection to this; that in view of the governor's
suggestion, he went out of the office to say so to Aranjuez almost at the same time that
the governor was calling him; and that he passed into the recorder's office.
Baluyot did not then of his own free will withdraw from the governor's o ce in
order that in the meanwhile Antonino Aranjuez should enter in said o ce and have a
short interview with the governor. Nor can it be inferred that the governor was off his
guard the moment the accused reentered his office from the fact that said accused had
withdrawn from the same office for a few moment. The inference is exactly the contrary
because, the governor knowing the accused was waiting in the recorder's o ce so that
Aranjuez should nish his interview, he must have been aware that the accused was
going to return in his o ce as soon as Aranjuez should go out. In a word, the governor
must have been waiting for Baluyot in his o ce, immediately after Aranjuez departed
therefrom.
In the same decision it is said that in the testimony given by Baluyot, mention is
made of a circumstance seemingly to the majority of importance regarding Governor
Lerma's defenselessness when Baluyot, after asking him for his revolver, drew his own
and red. According to the decision, Baluyot said, "That while he was sitting in the
recorder's o ce, awaiting the arrival of Governor Lerma, Paulo Venegas, a guard
attached to the provincial jail, came up and after speaking in a low voice with the
recorder, entered the governor's o ce and presently emerged bringing a revolver and
some cartridges. Baluyot noticed that the revolver was discharged and remarked to the
person having it in hand that an unloaded revolver is less useful even than a cane. The
guard replied that he was not the person charged with loading it, but was going to take
it out to be cleaned, whereupon he disappeared carrying the revolver with him." And the
majority infer that, naturally, from the foregoing fact Baluyot must have supposed that
the revolver seen by him was a weapon commonly kept in the governor's o ce and that
the latter upon arrival would be unarmed in his o ce, unless he should possibly bring a
revolver upon his person, and they concluded that this circumstance showed that the
word directed to Governor Lerma immediately before the fatal attack against him were
intended to discover whether Governor Lerma was in fact unarmed, and that, upon
discovering that Governor Lerma did not have his weapon at hand, the accused at once
drew his own weapon and red, and that Baluyot therefore knew Governor Lerma to be
unarmed and practically defenseless, and it is plain that attack was not begun until the
assailant was fully assured upon this point.
In fact, it appears in evidence, from the testimony of the accused, that after
narrating the conversation which took place between him, the recorder, and the other
people in the office of the latter and what he saw and observed at that moment while he
was in said o ce and before Governor Lerma's arrival, he said that Paulo Venegas, the
warden of the provincial jail, entered the aforesaid o ce where they were, and after
whispering some words to the recorder, the latter went into the governor's o ce
returning therefrom with a revolver and some cartridges which he delivered to said
warden; that as the latter stayed for a while near them pulling the trigger of the revolver
which was discharged, he remarked to the warden that an unloaded revolver is less
useful even than a cane, and the warden replied that he was going to take out said
weapon to be cleaned. But in his testimony as witness for the prosecution, and before
the accused had testi ed in these terms in his own behalf, (for he testi ed when the
defense offered their evidence) the recorder Gonzalez himself said (rec., 83) that in that
morning the warden of the jail took from him a revolver, before the accused rst met or
interviewed the governor; and that the accused was present when he delivered the
revolver to the warden; and (in answer to a question propounded upon him by the court)
that said revolver belonged to the warden because when the latter and the governor
returned from Manila, it was left in his care.
It follows, therefore, that, if the accused saw or believed to have seen the
recorder taking the revolver from the governor s o ce before delivering it to the
warden, the truth was that the recorder had in his care the revolver which did not belong
to the governor but to the warden, who took it with him upon leaving the recorder's
o ce to have it cleaned, as the warden himself has testi ed. From the fact that the
warden, upon leaving the recorder's o ce, took with him said revolver, which he had
received from the former (as said warden testi ed that it was given to him) even if the
accused must have supposed that said revolver was a weapon commonly kept in the
governor's o ce, it cannot be said that same accused might have also supposed that
the governor upon arrival would be unarmed in his o ce; because, as the same
decision says the governor could have possibly brought a revolver upon his Person. and
Baluyot could have very well believed this since he was also carrying his. Moreover,
what must be inferred from the very fact that the accused had mentioned in his
testimony this circumstance (that he had seen a revolver given by the recorder to the
warden which, according to the accused himself, the recorder took from the governor's
o ce) without having been questioned upon this fact but which he spontaneously gave
when he referred, among other things, to the conversation which took place between
him and the people in the recorder's o ce and to the things he saw therein while
waiting for the governor, appears to be that the accused did not take advantage nor
tried to take advantage of what he had seen; i. e., that the revolver, which the warden
took out with him was not in the governor's o ce at the time he attacked the latter;
because, if it had been so, he would not have made mention of said revolver in his
testimony, nor that the recorder took it from the governor's o ce and gave it to the
warden, as he was not examined upon this point when he was testifying. Said statement
was spontaneously and voluntarily made by him, and it is natural and even common
sense that, if he wanted to take advantage of what he had seen and he was sure that
said revolver was no longer in the governor s o ce, he would not have asked the
governor any more of his revolver (as the witness Gregorio de Guzman has said) before
ring his own revolver at him. This shows that he had not been aware of that fact,
otherwise he would have hidden and denied it in his testimony even if he had been
examined about it, instead of referring to it spontaneously and voluntarily as he did.
In narrating the facts which took place between the governor and the accused
while they were alone in the o ce of the former when said accused red his revolver at
said governor, already mentioned, the majority decision says that the second shot
should apparently have entered from behind the victim. And although same decision
goes on to say that this point is of little importance, inasmuch as it is obvious that
Baluyot was the aggressor throughout and that the second shot was red at an
unarmed man whose only purpose was to effect an escape to a place of safety, the
consideration of such a circumstance has undoubtedly in uenced the mind of the
majority (as the other circumstances mentioned in said decision) in determining that
the means and methods employed by the accused in attacking and killing Governor
Lerma were treacherous. It is beyond all doubt that Governor Lerma was sitting in the
chair which was in front of his desk (marked with the number 2 in the plan Exhibit B)
somewhat reclining backwards in said chair, and that when the accused red the rst
shot he was in front of the governor who must have also immediately stood up from his
seat, directing himself towards the corridor which was on the left side of the seat or
chair where he was sitting. The rst shot struck the superclavicular region or the frontal
region of the right shoulder blade of the victim, passing through the aforesaid part of
the body (as the majority decision says), and penetrating the back of the chair in which
the governor was sitting.
According to Antonino Aranjuez who, upon hearing the rst shot, entered the
governor's o ce, placing himself at the side of a screen which was before the door of
said o ce, (marked with the letter " m" in the plan Exhibit B) from said place he saw the
accused re the second shot with his revolver at the governor who was at this moment
eeing towards the corridor, and was at the point marked with the letter " n" in said plan,
with his right hand raised to his right shoulder, the accused being then at the point
marked with the letter "ñ" in same plan, and the governor's face was turned in the
direction of his ight, towards the corridor or the southeastern part of the building, just
by and towards the right side of the accused who was in front of the governor, and he
(Aranjuez) thought that the governor could have seen what Baluyot was doing. The
majority decision says, regarding this particular, that the witness Aranjuez makes it
clear that as the matter presented itself to his eye, the governor was eeing with his
right side, rather than his front, exposed to Baluyot.
Dr. Bonifacio Mencias, the sanitary o cial of Bataan, who examined the
governor's wounds ve minutes after they were in icted and while the victim was yet
living, says, in the medical certi cate which he gave on that same day, August 3, that he
found in Governor Lerma's body the following wound: "Two wounds in icted with a
rearm in the region of the upper-right clavicle coming out of the region of the right
shoulder-blade a wound coming out (?) in the region of the right temple. The rst two
wounds are not mortal, but the third was mortal, it having penetrated the cerebrum." At
the hearing same Doctor Mencias, testifying for the prosecution, said that Conrado
Lerma had three perforating wounds and were located: one in the head entering the
right temple and coming out of the left side, and the other in the right shoulder coming
out of the shoulder-blade of the same side. In this same testimony he went on to say
that Governor Lerma's two wounds in the right shoulder had entered from in front and
had come out from the region of the shoulder-blade (rec., 19); that in his judgment the
shots which the governor received in his right shoulder were red in front of him (rec.,
27); that one of said wounds must have been received by the governor while he was
sitting; that one of said wounds was one and one-half inches from the other (rec., 28) .
In explaining why there was but one hole at the back of the chair (c) of the plan Exhibit
B, where the governor was sitting in spite of the fact that near the governor's right
shoulder there were two wounds with four holes (two exit wounds and two entrance
wounds), the same Doctor Mencias said that he believed that one of the wounds in the
right shoulder must have been inflicted upon the governor when he arose from his chair.
And when he was asked by the court "You testi ed that those two wounds in the right
shoulder could have been in icted from the governor's front, what do you mean in using
the word front?" he answered: "I mean to say that he received the wounds while he was
in front of the assailant" (rec., 29).
From an examination of the plan Exhibit B, it appears that if the accused was at
the point marked with the letter (ñ) and Governor Lerma was going towards the
corridor being at the point marked with the letter (n) when the former red the second
shot at the latter, (as it has been said AranJuez had seen it), the projectile of the second
shot could not have entered in the region of the upper-right clavicle or the region in
front of the right shoulder-blade and coming out of the region of the shoulder-blade
(scapula) or the victim's back of the same side, but just the reverse for according to the
position in which the governor was at that moment (facing the corridor towards which
he was going, as it was stated by Aranjuez), a straight line drawn from the point (ñ),
where the accused was, (according to AranJuez himself) to the point (n) where the
governor was (according to same witness), must terminate, not in front or in the front
part of the victim, but precisely in the right side of his back or the back part, and
therefore the bullet of the rst shot must have entered here and must have come out of
the region of the upper-right clavicle or the front part of the body of said victim.
Moreover each of the holes where the projectiles entered, according to an express
testimony of Doctor Mencias, was in the region of the upper-right clavicle or the region
in front of the right shoulder-blade, near the right shoulder, in front of the victim; and
each one of the holes where said projectiles passed out was in the rear part of same
shoulder or the region of the right shoulder-blade, with the circumstance furthermore,
that between the two wounds in said region of the upper-right clavicle, or the region in
front of the right shoulder-blade, there was a distance of one or two inches (according
to the majority decision, when it mentioned the wound produced by the second shot).
These are very evident proofs that the rst two shots were red by the accused when
Governor Lerma was in front of him.
However, the majority decision says that the inspection made by this doctor may
have been super cial, and his opinion may have been partly a matter of mere inference
from his information as to the general features of the tragedy, and that at any rate he
does not state any particular from which it could clearly be discovered that the second
shot entered the front. I do not believe that more details are necessary:, nor that there
are clearer details than those given by Doctor Mencias in this inspection (rec., 2) and in
his statements found and can be seen in the cited pages of his testimony. It is also
evident that the inspection of the doctor aforesaid has not been super cial; nor is there
any reason to believe that it has been so; nor is there any evidence to support such a
supposition; and it cannot be supposed that his opinion may have been partly a matter
of mere inference from his information as to the general features ,of the tragedy,
because, as has already been said, said opinion has been the result of a material
inspection of the victim's body and the wounds themselves conducted by said doctor; i.
e., what his eyes have seen. This inference or supposition could have better been
applied to Aranjuez' testimony because same was in open contradiction with the reality
and referred to an instance when said person was not in possession of a serene spirit
su cient to understand that which his eyes saw. In ne, the following is the testimony
of Aranjuez in answer to the questions of the Court respecting the particular in point, as
it appears in the stenographic notes (rec., 126):
"COURT. But, at the moment the second shot was fired, what part of
the body of the accused was facing towards Governor Lerma and what part of the
body of the latter was facing towards the accused?
"WITNESS. I saw Governor Lerma running towards the corridor in this
position. (The witness arises from his seat, looks towards the southeastern part
of the building or the court room :and continues saying) When the accused fired
the second shot at the governor he was looking at him, so that the accused was
facing the governor.
"COURT. What the court wants to say and wants to know is: when the
accused fired the second shot at the governor, in what position was the latter in
relation with the former — was he in front, sideways or at the back?
"WITNESS. He was almost sideways and he was on Captain Baluyot's
right side which was facing the governor."
So Antonino Aranjuez rst said that when the accused red the second shot, he
was facing and looking at the governor, but afterwards, when the court asked him the
second question in a very clear and precise term, as it appears, he answered what has
already been said, namely that the governor was almost sideways and over the right
side of the accused which was facing the governor. These contradictory answers give
the measure of credit which such a witness for the prosecution deserves. And it is very
clear that from his testimony it cannot be inferred that the second shot must have
manifestly entered from the governor's back, as it is stated in the majority decision, but
that it must have entered in accordance with the result of the examination conducted by
Doctor Mencias and what the latter had clearly and explicitly testi ed to at the hearing
namely, that the second shot entered from the front of the victim about one or two
inches from the wound inflicted by the first.
Expressing himself why he wanted to have an interview in the morning of the
aforementioned day, August 3, with Representative Reyes and Governor Lerma, the
accused said that he wanted to take leave with them and to tell them that he has given
up the ght between them and to pray them that, if possible, they should leave him in
peace and stop persecuting him when he shall have settled in Cebu. According to the
accused when he rst met Governor Lerma that morning, the rst question he asked
the latter was whether Representative Reyes was in Bataan, to which the governor
answered that he did not think so; that he wanted to avail himself of the presence of
Representative Reyes in order to take leave from them at the same time; that the
governor asked him why he intended to leave and he answered that he was planning to
have a trip but that above all he wanted to tell them some words, and then the governor
said that which has already been mentioned before, "I can almost guess what you want
to say to me," and the dialogue continued between the two until at the request of the
governor, who thought that the conference between them would continue longer than
what he has expected, he (the accused) retired back to the recorder's o ce in order
that Antonino Aranjuez could confer with the governor, and to resume the conversation
between them after Aranjuez should have finished.
The wife of the accused as well as the accused himself must have knowledge of
the projects of the latter touching upon what was convenient for the common interest
and for the particular interest of each of them. In No. 152 of the daily newspaper, La
Vanguardia, dated August 7th, 1918, which was presented at the hearing as Exhibit 2
for the defense, one of the reporters of said paper, Eusebio Reyes (the same man, who
having been in the jail at Balanga at the rst hours of August 5, published in Nos. 150
and 151 of said paper, corresponding to Monday, the 5th, and Tuesday, the 6th, of the
aforementioned month, which have been presented as evidence for the defense, a
report of the different details of the crime of which Governor Lerma was the victim)
amplifying said report, mentioned the conversation he had with the wife of the accused
Baluyot in the house where she was living in this capital concerning the incident and,
among other things, according to said report, said wife told him, as it appears on the
4th page of said paper, the following:
"His trip (Baluyot's) to Bataan would have been the last at present until
after a long time, for we had been planning to reside in Cebu with my brother."
When Baluyot's wife expressed herself in these terms to the reporter Reyes, she
has not seen her husband after the lamentable incident happened and the accused has
been arrested and imprisoned in the provincial jail at Bataan, for according to her own
statement to the reporter aforementioned she had only known what happened between
her husband and Governor Lerma thru the report published before in the same
newspaper La Vanguardia and she wanted (while she was talking with the reporter) to
be at the side of her husband so that she could give him a bed, food, and whatever he
needed to the end that the lonesome hours of his imprisonment might not be very bitter
to him especially when she heard that her husband's hands and feet were chained as if
he were a common felon and that he was not allowed to talk to anybody. This is an
evident proof of the truth of the statement of the accused regarding his proposed trip
to Cebu, which impelled his desire to have an interview with Representative Reyes and
Governor Lerma in the morning of August 3, because when the wife of the accused
made that statement to the reporter Reyes, she has not yet been in communication with
the accused, nor has she talked with him. And if the report (given in Nos. 150 and 151
of the newspaper La Vanguardia by the reporter Eusebio Reyes, as a result of his
interview with the accused in the jail at Balanga and with the recorder Gonzalez and
others who were afterwards called as witness for the prosecution) has been presented
by the latter in evidence, it is not reasonable nor just to disregard what appears in the
statement made by the wife of said accused to the same reporter, Reyes (and which
appears in No. 152 of the aforesaid paper, presented as evidence for the defense),
concerning their proposed trip to Cebu — a fact which, on the other hand has not been
contradicted at the hearing.
It cannot, therefore, be a rmed, as the majority decision does, that no very
satisfactory explanation has been given by the accused as to the reason for his trip to
Orion and especially to Balanga that morning. And even supposing it as true that the
accused must have been entertaining a thirst for vengeance and resentment towards
the governor for the motives mentioned in the majority decision, and for which the
accused has given a su cient idea when he referred to the dialogue which took place
between him and the governor at the time he rst entered the o ce of the latter
nevertheless from said motives it cannot be inferred that the conclusion is irresistible
that he was carried to Balanga by a thirst for vengeance or that he has determined to
kill the governor, (as is stated in the majority decision), when he went into said o ce in
that morning.
In order to arrive at such a conclusion the majority have also taken into
consideration the fact that on July 14, 1918, being, says the majority decision, fully
imbued with the idea that Governor Lerma was persecuting him and attributing to the
machinations of said governor his prosecution for the crime of estafa in the Court of
First Instance of the city of Manila and his having been requested to resign from the
position of captain in the National Guard, the accused in the course of a conversation
with one Pedro Magajes, a friend of his, had said to the latter that Governor Lerma
would pay for the misfortunes that were befalling him (Baluyot); and that also, on a
Friday in the month of August, prior to the commission of the crime, the accused met
h i s compadre, called Domingo Lintag, and upon shaking hands he (the accused)
squeezed his hand tightly and said: "May be this iS the last time that we would shake
hands."
Upon testifying, Pedro Magajes in fact said that, when he met the accused on the
aforementioned day, July 14, in the railroad car which was bound from Manila to
Guagua with the object of afterwards going to Balanga, he asked the accused what had
become of the charge of the National Bank against him for the crime of estafa, and the
accused told him that it was going on well and that he admired the conduct of Lerma,
Sr., (or of the governor s father), and that he detested the conduct of Lerma, Jr., (or of
said governor); that the governor did not know that he (the accused) was still worth
something in Bataan, and that some day said governor would pay for the things that
have befallen. upon him. Moreover, when the scal examined said witness he answered
the following:
"Q. Who is still worth something in Bataan? — A. Sr. Baluyot.
"Q. And who will pay some day? — A. According to my belief, it is Mr.
Conrado Lerma.
"Q. And why would Mr. Conrado Lerma pay ? — A thought it was a
political question and that the accused would work against Governor Lerma,
because said accused said, 'Governor Lerma does not know how much I am still
worth in Bataan and for the things that he is doing against me he will pay some
day:' and afterwards I changed the conversation because Mr. Baluyot was
somewhat grieved.
"Thats all." (Rec., p. 169)
In his testimony, Domingo Lintag also said that on a Friday, the 2nd of said month
of August, he met the accused in Orion, and that when they shook hands the accused
said, "May be this is the last time that we would shake hands," squeezing his hand
tightly. Moreover, after the witness had been cross-examined by counsel for the
defense in order to impugne his credibility, said counsel asked that e made a part of the
record that said witness, upon leaving the witness stand, had approached him on
passing by his side, and had said in a loud voice these words, "In fact I don t know
anything." The judge immediately replied that he had not heard the witness say these
words and denied counsel's petition, adding, however, that the witness could be
recalled and asked new questions if counsel for the defense so desired. When Domingo
Lintag was recalled, he answered in the following terms the cross-questions asked then
by the same counsel and the new question of the Fiscal.
"ADDITIONAL CROSS-QUESTIONS BY ATTORNEY SOTTO
"Q. I'll talk to you slowly so that you may understand well. Tell us
whether it is true or not that when you went down from the witness stand upon
passing by my side you told me in a loud voice 'Wala po akong talagang
nalalaman,' which in English is, 'In fact I don't know any thing.' — A. Yes, Sir.
"That's all."
"NEW QUESTIONS BY FISCAL TUASON.
"Q. What do you mean by that? — A. That I don't know all the questions
propounded to me.
"Q. To what questions do you refer? — A. That I don't know anything
more than what I have said.
"That's all." (Rec., p. 182).
From the foregoing, the accused, in his conversation with Pedro Magajes on the
occasion referred to by the latter in his testimony, did not utter any threat of death nor
of any personal injury upon Governor Lerma, but that, when he said that some day
Governor Lerma would have to pay for the things that have been befallen upon him, he
meant, as said witness understood it, that there were political questions between him
(the accused) and said governor and that he (the accused) would work against the
latter because he was still worth something in Bataan. Certainly, what accused then
said in connection with the governor can not be given other interpretation or different
meaning than that given by the witness aforementioned. Concerning the other witness,
Domingo Lintag, he has been very explicit an de nite upon answering the additional
cross-question of the counsel for the accused and the new questions of the scal
propounded on him at the end of his testimony and inserted above. First, he answered
in the a rmative to the question whether or not it is true that when he went down from
the witness stand he told said counsel upon passing by his side in tagalog, "In fact I
don't know anything. n afterwards when the scal tried to make clear said answer, he
said that he did not know all the questions propounded on him, that it is almost
unnecessary to deal with, nor to give any importance of, what he himself has testi ed
to, to the effect that the accused told him that perhaps (referring to the date when he
met the accused in Orion) it was the last time that they would shake hands. From the
testimony of this witness, nothing in reality can be inferred which may be useful for the
object of the prosecution and for the object he has been presented, because the scal
himself did not secure from said witness an answer other than that he did not know
anything more than what he had said, in spite of the effort on his ( scal's) part to
neutralize the effect of the answer given to the last cross-question of the counsel for
the accused and to the last-mentioned question of the scal, wherein said witness
showed ignorance of everything.
But even admitting that in fact the accused, squeezing tightly his hand, said to the
aforesaid Domingo Lintag, on the occasion mentioned by the latter, that perhaps that
was the last time that they would shake hands, and that, according to the majority, it
showed that the accused contemplated some occurrence which would have grave
consequences to him, nevertheless it is clear that it can also be interpreted with greater
reason in the sense that having proposed to go to Cebu and because in that same
morning he was going to take leave from Governor Lerma and Representative Reyes,
the accused was also taking leave with his compadre, Domingo Lintag. In conclusion,
from what has been stated by said witness nothing de nite and conclusive can be
inferred for the purpose of considering as proven that in that morning the accused had
conceived the idea of killing Governor Lerma when he went into the latter's o ce There
is not a single evidence to show that the accused (as the majority decision says), for
several days prior to the perpetration of this murder, had determined to seek an
interview or encounter with Governor Lerma regardless of consequences. This
conclusion has no other basis than mere inferences from the testimonies before
mentioned and from the fact, also mentioned in the majority decision, that the accused
asked more than one person with whom he had met that morning and several days
before if they thought he was in Bilibid intimating also that such a rumor had been
circulated by Governor Lerma. May be the mind of the accused, as the majority say, was
xed upon Governor Lerma as the supposed author of his wrongs. But the fact is that
before August 3 the accused had not told anybody that he wanted or had decided to
have an interview with the governor, and only on said day did he communicate such idea
to the people who were in the recorder's o ce that morning. If several days before he
had intended to meet the governor, the accused did not show any exterior sign of that
intention, much less was he determined to seek that interview regardless of
consequences. On the contrary, according to the recorder, while he (the accused) was
waiting for Governor Lerma in the recorder's o ce, he was in good humor, and
according to same recorder and Antonino Aranjuez, who were also in said o ce while
the accused was with them, he continued to be in good humor before his rst interview
with the governor as well as after it, when he retired to allow Aranjuez to enter and have
a short interview with said governor and before he reentered said o ce. Upon the
governor's arrival in the recorder's o ce that morning he and the accused greeted each
other in a friendly manner by shaking hands. No one noted any change nor alteration in
the face or attitude of the accused then ù and during the two hours, approximately, that
he was in the recorder's o ce, from his arrival until he reentered Governor Lerma's
o ce, the accused showed no impatience either because he wanted to stay with the
governor in his o ce or because he wanted to have with the latter the interview he
desired; for, as has been said before, he agreed to yield his turn for a moment to
Antonino Aranjuez at the request of the governor himself.
In ne, there is nothing in the record to show or to point out that the accused
(even admitting that his mind was xed upon the governor as the supposed author of
his wrongs, as it is stated in the majority decision) was intending at those moments to
execute any aggressive act against said governor.
After dealing with the assertions and conclusions which has already been
mentioned, the majority decision says that the conclusion of the trial court that the
offense was characterized by known premeditation is by no means without support in
the evidence. However, same decision states that, as an express ruling on this point is
unnecessary to the disposition of the case, the Justices subscribing said decision
concede to the accused the bene t of the -possible doubt, and accordingly they refrain
from making any express nding as to the presence of said element. Supported by the
evidence in the case, it can be a rmed in this dissenting opinion, for the reasons
already mentioned, that the offense is not characterized by known premeditation and,
to the writer's regret, the absence of an express nding as to the presence of said
element in the crime and the majority's concession to the accused of the bene t of the
possible doubt as to the presence of said element, in spite of the assertions and
conclusions assigned in said decision relative to this particular, constitutes another
reason for not considering that in the commission of the crime there has been present
the qualifying circumstance of alevosia (treachery). And the reason is obvious. If the
accused has been entertaining a rooted rancor and resentment in his mind against
Governor Lerma, and for several days prior to the perpetration of this murder, has been
determined, according to the majority to seek an interview or encounter with him
regardless of consequences, upon his interview in the morning of August 3 when he
then killed said governor, the natural and logical thing was or should be that he would
have employed means, methods, or forms that were intended to insure the execution of
said object without any risk to himself arising from the defense which Governor Lerma
could make in that interview. If the preconceived, deliberate, and premeditated design
for the perpetration of this murder at said interview is not considered as proven, or, at
least, if the bene t of a possible doubt as to the presence of said design is conceded
to the accused, necessarily it has to be recognized that it is also doubtful that the
accused had intended to insure by any means the execution of his criminal design
without any risk to himself arising from the defense which the offended party could
make. In the estimation of the existence of the aggravating circumstances of known
premeditation and alevosia (treachery) in the instant case, there is such a relation in the
facts adduced in evidence at the hearing for the determination whether or not said
circumstances were present in the commission of the crime imputed upon the
accused, and it is so clearly gathered from all that has been said and argued in the
majority decision upon dealing with said facts, that it is di cult, if not impossible, to
conceive that the accused had acted treacherously in killing Governor Lerma, without
having premeditated, deliberated and re ected upon said act before its execution. If
there was then no known premeditation, there could not be alevosia. This does not
mean that in all cases where the rst of said circumstances is not present in the
commission of the crime, the second should not or cannot be considered as present;
but it is undeniable that there are cases where, the former not being present, the latter
cannot be considered as present. Such has been recognized by this court in its decision
in the case of United States vs. Balagtas and Jaime (19 Phil. Rep., 164), holding the
following:
"MURDER; ESSENTIAL ELEMENTS OF 'ALEVOSIA.' — When the record
contains no evidence showing that the accused had, prior to the moment of the
killing, resolved to commit the crime, or any proof that the death of the victim was
the result of meditation, calculation or reflection, the alleged qualifying
circumstance of alevosia can not be considered."
This holding is exactly applicable to the instant case.
The rst meeting between the governor and the accused having been suspended,
not by the latter's will but by the request of the former to whom it occurred that the
interview between them might be more extended than he had expected, it is natural
that, upon seeing each other again in the o ce, they would have resumed the
conversation which was interrupted moments before. Therefore, it is probable that the
governor might have begun asking Baluyot where he said he would go, and that the
dialogue mentioned by the accused in his testimony might have taken place between
them, a dialogue which, as it can be tested with a watch on hand, could not have lasted
one minute or more. On the contrary, it is improbable that when the accused reentered
the governor's o ce and as soon as he reached the governor s desk (coming from the
recorder's o ce, covering in two seconds the distance of 10 paces of between said
o ces, as the recorder Gonzalez has said) and without saying any word to said
governor, he red the rst shot at him, a fact which has been contradicted by Antonino
Aranjuez and Gregorio de Guzman, who were then with said Gonzalez in his o ce and
heard Baluyot call out to the governor before the rst shot — one of them heard Baluyot
call out "governor," and other "governor, may I see your revolver?". The testimony of
these two witnesses, especially that of the last, is another reason or believing with
some foundation that the governor and the accused then talked of something, or, what
is amount to the same thing, that there might have been between them a short dialogue,
and that in view or as a consequence of it that sad and unfortunate event took place.
That Aranjuez De Guzman and Gonzalez, who were in the latter's o ce had not heard
said dialogue, or had not heard what the governor and the accused were talking about,
is no proof that same had not taken place, because as it can be seen on the p an Exhibit
B, from the door of the recorder's o ce to the place where Governor Lerma and the
accused were, there was a distance of 8 meters and 30 centimeters, or all the length of
the governor's office; from the place where Antonino AranJuez was, or that marked with
the letter Y in the plan, to the place where Governor Lerma and the accused were, there
was distance equal to the length of the governor s o ce, 8 meters and 30 centimeters
plus the length of the recorder's o ce, 5 meters and 96 centimeters, according to
same plan, which, to be sure, has been traced by the provincial assessor himself,
Gregorio de Guzman, making a total of 14 meters and 26 centimeters. And that,
according to this same witness, when he heard the accused call out to the governor
"May I see your revolver?" he was taking leave with the recorder and was leaving the
latter's desk bound for is o ce, and as he was going towards the door to leave the
o ce, he did not understand the other words of the accused who was then speaking in
a natural voice, which showed no sign of alteration, adding that he heard those words
when he was going out towards the corridor and for this reason he could not tell
whether the governor answered the accused or not. With all these it should be added
that (from what has been said by the recorder in his testimony, rec., p. 86) when he
heard the rst shot, the door between his o ce and that of the governor "was almost
closed, because one-half of it was closed, a circumstance which should be taken into
consideration in determining whether or not those who were at that moment in the
recorder's o ce (the recorder, Aranjuez, and De Guzman) were in such a condition as to
have been able to hear what the governor and the accused were talking about. The one
who was in a better condition for said purpose was precisely the recorder Gonzales,
because he was sitting by the desk in his o ce near the door of the governor's o ce,
and from there he did not move until he heard, as he said, the rst shot. Nevertheless,
unlike Aranjuez and De Guzman, who said that they have heard the accused utter the
words already mentioned, Gonzales did not make any mention about this, stating, on
the contrary, that the only two seconds elapsed from the moment that the accused
reached the governor's desk coming from his o ce until he heard the rst shot. So
that, according to s aid witness, there was no su cient time whereby there could have
been an exchange of words between the governor and the accused. Necessarily, the
recorder, Gonzalez, has no o the truth. His other two friends have contradicted him and
there are su cient reasons to believe that the former in turn being able to tell, have not
said all that they knew, or that, because of the distance of the place where they were
from that where the governor and the accused were talking, and because one-half of
the door of the governor's o ce was closed, they could not hear other words than
what, according to them, was uttered by t e accused. In any way it cannot be denied
that when the accused, being near Governor Lerma, called out governor, as Antonino
Aranjuez heard it, and called out governor, may I see your revolver," according to De
Guzman, the governor and said accused must have been talking about something
related to what they have been talking about moments before, or at the rst interview.
The word governor, spoken by the accused in a high and dry tone, may mean, or could
have been, an exclamation of the accused, as well as a call of the attention upon the
governor to tell him something It appears that the words "governor, may I see your
revolver," which De Guzman heard, must not; have been spoken by the accused
immediately after he has approached the governor's desk and prior to an exchange of
words between them before, because the conversation which they must have then was
a continuation of the former one which have been interrupted after the accused had
protested that he had nothing to do with the separation of Captain Velez from the
National Guard, which was attributed to him by the governor. Those words could have
also been spoken by the accused as a result or by reason of what he and the governor
continued to talk about, namely, the governor's intervention upon the misfortunes of the
accused as alleged by him and something connected thereto. For it is inconceivable
why the accused would have been willing to see the governor's revolver, unless it is
because he (the accused) wanted to challenge the governor, believing that the latter
has offended him. According to the accused, when he rose from his chair as soon as he
was offended by the governor, who said that he could cheat better in Cebu, he told the
governor: "May be your revolver and mine have the same calibre." These words are, in
some respects, similar to those which the witness De Guzman understood or heard
spoken by the accused expressing his desire to see the governor's revolver. But, in any
manner, what is certain and positive is that the accused, before ring the rst shot at
the governor, gave the latter a hint that he intended to do something which might have
caused him (governor) some personal harm, and the governor must have also
understood it in this manner, for he knew that they, the two, were enemies, as he himself
had said to the accused moments before and that he had before him one whom he
considered his enemy and With whom he had also behaved as an enemy. Therefore, the
situation in which they were found at that moment was very clear to the governor as
well as to the accused. If the accused was entertaining an ill feeling towards Conrado
Lerma because the latter had been one of his competitors for governorship at the 1916
general elections and because he was then defeated by said Lerma, as well as because
he thought that said Lerma was instigator of the criminal proceedings for estafa
against him Lerma in turn would not forget that the accused was one of his
competitors in said election and, having been defeated by him, was a person
dissatis ed to him in the province under his control, and as such could have some day
planned to discredit or to cause him some damage. As a matter of fact he (Lerma) was
attributing to the accused the separation of his compadre Velez from the National
Guard, for which reason he believed, as he made it appear to the accused, that every-
thing he could have done against the latter was justi able. Two enemies were face to
face on that occasion, although socially they treated each other as friends — one, the
vanquished, the humiliated Baluyot, and the other, the victor, Governor Lerma, the chief
of the province, exercising authority in the place where they were and to whom, like
Representative Reyes, the accused had come to implore that, if possible, they should
leave him in peace and should not persecute him — which is certainly probable — and to
bid them farewell for he was going to Cebu. From those circumstances, it is perfectly
conceivable that a gesture, a look, any action whatever of Governor Lerma which the
accused would have considered depreciatory and humiliating to him, would have been
su cient to provoke the anger of said accused and to impel him to attack the former,
because it should not be overlooked that the accused in his testimony (rec., 225) has
said the following: "When I warned him to prepare, he was sitting, speaking in that
manner of his and laughing at me." There is nothing strange in that the accused,
considering himself offended and humiliated by Governor Lerma upon seeing the
attitude of the latter, his manner of speaking and that he was being laughed at, would
endeavor to avenge on that same moment an offense which was being committed
upon him. When the accused, upon entering for the rst time Governor Lerma's o ce,
told the latter that he was going to take leave from him and Representative Reyes for he
was going to Cebu and to implore them that, if possible, they should leave him in peace
and should not persecute him in said province, Governor Lerma has expressed himself
in the sense that, they being enemies, he (Lerma) was justi ed in his conduct towards
him, thereby showing that the accused could not hope for the peace and tranquility
which he was desiring. This expression shows that the governor was not accepting the
request of the accused with benevolence, but that, on the contrary, he was refusing to
make peace with the accused. And what has been said by the accused on this particular
is verosimil. No one has contradicted it at the hearing, there being, instead, su cient
grounds for believing that it was true, because it was the cause of the interruption of
the rst interview between the governor and the accused at the request of the former,
to be resumed afterwards, as in fact it was resumed, and it was a beginning of what
must have taken place between them at the second interview.
The terms used by Governor Lerma in his conversation with the accused, even
admitting that it was not true that he said to the latter that he could cheat better in
Cebu, may be considered not of such a character as to justify that the accused has
acted upon an impulse so powerful as naturally to have produced passion and
obfuscation. But it is indisputable that they might have been such as to provoke the
accused to execute an offensive act or an act of personal aggression against the
governor. The two were on that occasion, commonly speaking, playing with re (
jugando con fuego), and a spark coming from any one of them was su cient to cause
a con agration. Of this con agration not only the accused must be blamed. His
testimony, given at the hearing under oath when testifying as a witness, has as much
value as that of any witness, and same must be taken into consideration in connection
with the other evidence adduced at said hearing. The only persons who have testi ed to
what took place between the accused and the governor at the time when the two were
alone in the o ce of the latter, are the recorder Gonzalez, Antonino Aranjuez, and the
provincial assessor, Gregorio de Guzman. We are already acquainted with their
testimonies limited, as has been seen, to the time, according to them, that elapsed
between the moment the accused entered into the governor's o ce and that when they
heard the rst shot — testimonies in which two of them said that they have heard the
accused call out to the governor and in which Aranjuez said that he has seen them
(accused and governor) when he peeped into the governor's office after the first shot.
In reality, the testimonies of the said three individuals have not been useful in any
manner whatever, as has been already shown, to prove that before the rst shot was
red by the accused the conversation mentioned by the latter did not take place
between him and the governor. All that said witnesses testi ed to, concerning this
particular, has been based only upon a computation, as has already been said, made by
each of them of the time intervening between one moment and another, a computation
which is inconceivable to serve as a basis for establishing the conclusion that the
accused unexpectedly, suddenly, and instantaneously attacked Governor Lerma as
soon as he approached him in his o ce, asked for his revolver and saw that he was
defenseless, ring at him the rst shot, i. e., that the accused made the attack
treacherously.
The majority decision says that the offense committed in this case exhibits
features markedly similar to those which characterized the crime which was the subject
of prosecution in United States vs. Gil (13 Phil. Rep., 530) and, in the following lines, that
the offense here committed was properly qualified by the trial judge as murder, in which
was present the qualifying circumstance of alevosia. With this statement said decision
has made it understood that what has been said and held by this High Court in that
case is applicable to the present case on account of their similarity. The similarity
between these two cases lies in that in one and the other the victim had been a
provincial governor and the crime had been committed in a provincial building or in the
place where said provincial authorities were exercising their functions. But in the case,
U. S. vs. Gil, the latter, or the accused, alleged in his defense that, without the least
provocation on his part, Governor Lopez, whom he asked for the favor of a license for
the revolver he was carrying with him, answered him in an insulting manner, upbraiding
him for his temerity in seeking a favor of a man who he had denounced to higher
authority and that the governor having reached for the revolver, a struggle between
them ensued during which the shots that wounded the governor were red. Not having
immediately died as a consequence of said wounds but after 24 days, Governor Lopez
had the opportunity to contradict and did atly contradict the accused, denying that he
provoked and insulted the latter. This statement was made by the governor when about
to breathe his last. And this dying declaration of the wounded man was taken into
account by this High Court, in connection with the other evidence adduced in the case,
in order not to give credit to whatever the accused had to say for his exoneration of all
that happened between him and the governor when they were alone in the o ce of the
latter and when said governor was attacked by said accused, Gil. In the decision of this
High Court in the aforementioned case, the following is said:
"If the account of what occurred in the office of the deceased governor on
the morning of the 27th of December, 1907, as told by the accused when
testifying in his own behalf, be accepted as true, this testimony, taken together
with the other evidence of record not in conflict therewith, would leave no room
for doubt of his guilt of the crime of unlawfully taking the life of Benito Lopez,
deceased, the commission of the crime being marked with certain extenuating
circumstances, but unmarked either by 'treachery' (alevosia) or 'deliberate
premeditation' (premeditacion conocida) as charged in the information; and as
the slayer was alone with his victim when the fatal shots were fired no eyewitness
could be called to the stand to contradict the testimony of the accused as to what
occurred in the office from the time he entered until the explosion of the pistol
shots attracted the attention of the other occupants of the building. In our opinion,
however, the ante-mortem statement of the deceased, taken together with the
other evidence of record, conclusively establishes not only the falsity in all its
essential details of the account of the tragedy given by the accused, but also the
fact that the crime was committed with treachery (alevosia) and deliberate
premeditation (premeditacion conocida) ." (Page 533.)
Now then, in the instant case Governor Lerma died approximately three hours
after he has been wounded by the third shot red by the accused, without having been
able to regain consciousness before his death nor to articulate any word; i. e., he (the
governor) did not contradict the accused Baluyot nor did he contradict the latter's
account of what occurred between them in that morning during the short period of time
that they were alone together in the o ce of said governor. There being then in this
case no. ante-mortem statement of the deceased Governor Lerma, which may be taken
together with the other evidence of record, and if the testimony of the accused in his
own behalf, taken together with said evidence, be accepted (if in the present case we
apply, as it should be, the ruling mentioned by this High Court in the case U. S. vs. Gil),
accepting at the same time, as we should, the account of what occurred in the o ce of
Governor Lerma in the morning of the 3d of August, 1918, as told by the accused
Baluyot, the guilt of the latter, as author of the crime of unlawfully taking the life of
Conrado Lerma, deceased, leaves no room for doubt, but unmarked either by treachery
(alevosia) or premeditation (premeditacion) as charged in the information. Therefore,
beside the fact that there is no complete similarity between the case of U. S. vs. Gil and
the present case, and applying in this case the doctrine laid down by this court
concerning the question of evidence in that case, it cannot be accepted as proved that
the accused Baluyot acted treacherously and with deliberate premeditation in taking
away Governor Lerma's life.
However, the accused Baluyot has been charged with some admissions alleged
to have been made to the reporter of La Vanguardia, Eusebio Reyes, when the latter had
an interview with the former in the provincial jail of Bataan in the morning of August 5th
(an information which was published in the corresponding issues of said newspaper,
marked Exhibits D and E of the prosecution) and to the lieutenant of the Constabulary,
the commanding o cer of Bataan Province, Angel Labayan, in the afternoon of the
same day, August 3d, in order to prove that said accused attacked Governor Lerma
knowing the latter to be disarmed and defenseless. The reporter, Reyes, a rmed that
he has published in said newspaper, La Vanguardia, the information or news appearing
in said two issues, after he had a conversation with the accused in the morning of the
5th of August; and that, among other things (as it can be seen in the issue of the 6th of
August), the accused told him the following: "I asked Conrado about his revolver, but it
is not true that he was reading when I red at him, no And that cannot be true because I
told him: 'Governor defend yourself as you may. I come to kill you.' And I red the rst
shot, then the second, one after the other." Lieutenant Labayan, in turn, testi ed that in a
conversation he had with the accused in the provincial jail, in the afternoon of August
3d, the latter related to him all that occurred, and, among other things, that after the
accused told the governor "You are taking advantage of all the opportunities to render
me completely useless," to which the governor answered, "Were you, yourself, in our
place, you would take advantage of all the opportunities to render an enemy useless,"
the accused, upon hearing this phrase, got mad and asked the governor: "What calibre
has your revolver?" to which the governor answered that he did not bring his revolver,
and then the accused, who was in an attitude of drawing out his revolver, said to the
governor, "I will kill you now;" that the governor cried out calling the guard and for the
scream (so says) the accused fired his revolver at the governor.
Without entering now upon the consideration (inasmuch as the majority does not
say anything about it in their decision) of the question whether the information
published in the press about an event subject of a suit or a prosecution before the
courts of justice may be utilized as an evidence at the hearing, (which is what in reality
has been done by the prosecution in presenting the reporter Reyes and in examining
him about the information aforesaid) and admitting the testimony of said reporter as
that made by any other witness, what in reality is inferred therefrom is that Governor
Lerma was not reading when the accused, red at him the rst shot and that the
accused, before ring said shot, warned the governor to defend himself as much as he
could, because he was going to kill him. From Lieutenant Labayan's testimony, it
appears that the accused asked the governor about the calibre of his revolver and that
the governor having answered that he did not bring his revolver, the accused, who was
in an attitude of drawing out his revolver, told the governor that he would kill him and,
when the governor cried out calling for the guard, red his revolver. Above all it is rather
strange that to the reporter Reyes, who was his friend (as they treated each other with
familiarity) and who was interested in giving in the newspaper, La Vanguardia, the most
complete information possible about that sad event, the accused would not tell that
when he asked governor Lerma about his revolver he answered that he was not bringing
it (as Reyes did not mention this particular in his testimony ), while to Lieutenant
Labayan, who did not know the accused prior to August 3d, (for he happened to know
him only on that day and when he had with him a conversation in the afternoon of same
day in the provincial jail of Bataan, conversation referred to by him in his testimony ) the
accused would have made a revelation which is so compromising against him as that
he knew before he red the rst shot at the governor that the latter was not bringing
with him his revolver. It should also be taken into consideration that when the reporter
Reyes had an interview with the accused in the morning of August 5th, there were
present then, according to him, the Lieutenant of the Constabulary, Pedro Navarro, the
provincial warden and one constabulary soldier; and that when said Lieutenant Navarro
was called to testify for the prosecution, he was not produced, as well as the other two
individuals who witnessed the aforesaid conversation between the accused and the
aforementioned reporter, and who could have testi ed to what they have then heard. In
referring to that incident the accused said, as it will be remembered, that he told the
governor, "It appears to me that your revolver and mine have the same calibre," and the
governor answered, "No Sir, mine is 32," and that to this he replied, "It is the same and
prepare yourself because one of us will have to die." The accused did not say that the
governor answered him then that he was not bringing with him his revolver. And it
appears more proper that when the accused asked the governor about the calibre of
his revolver, as Lieutenant Labayan has said referring to the accused himself, the
governor should have answered what the calibre of his revolver was, namely that it was
32 calibre, for the question of the accused referred to this. The answer that the
governor was not bringing with him his revolver would have been more appropriate to
the question which, according to the reporter Reyes, referring to the accused, the latter
asked to the governor, because it was referring only to the governor's revolver. In spite
of this fact, the reporter Reyes did not say that the accused had stated to him that the
governor had given any answer to said question nor that the governor had said that he
was not bringing his revolver. Lieutenant Labayan is then the only witness who testi ed
(referring himself to the conversation between him and the accused in the provincial jail
in the afternoon of the 3d of August), that the governor told the accused that he was
not then bringing his revolver. By this testimony, said witness made it understood that
the accused, before ring the rst shot at the governor, knew that at that moment the
latter was without said weapon with which to defend himself. However, taken together
with that of the other witnesses who testi ed to said particular, his testimony is not
su cient to prove, beyond any doubt, that Governor Lerma answered the accused that
he was not then bringing with him his revolver. But, taking due consideration to the
testimony of the reporter Reyes as well as that of Lieutenant Labayan and that of the
provincial assessor, Gregorio de Guzman, in connection with what the accused testi ed
to about the revolver, it is indisputable that what in reality can be inferred and
considered proven therefrom is that having asked the governor about his revolver and
having then told him his desire to know the calibre of his revolver, the accused warned
said governor, before ring the rst shot, to prepare and defend himself as much as he
could because one of them will have to die. In a word, before receiving the rst shot
red at him by the accused, Governor Lerma was able to look for his defense, had the
opportunity to make good his defense from the danger that was threatening him
because the accused himself had warned him.
But, moreover, according to the testimony of the accused (rec., 219), while
Governor Lerma was talking with him during the second interview, the former had his
left hand on the table and with it he was playing a brass knuckle (llave inglesa). This
brass knuckle was seen on the governor's table by Lieutenant Navarro of the
Constabulary (who was then in charge of said force in the absence of the provincial
commander) when, immediately after the accused was arrested and imprisoned (whom
he found between the door of the o ce of the recorder and that of the governor), he
returned upstairs in order to learn something of the incident and to see what happened
to the governor. Said brass knuckle was kept by Lieutenant Navarro and presented at
the hearing when he testi ed to the particular aforesaid, and marked as Exhibit 1 of the
defense. Although the recorder, Pedro Gonzalez, did not give a satisfactory explanation
of the existence of said brass knuckle on the governor's table, having said, moreover,
that he had never seen the governor use it, and it is said in the Attorney-General's brief
that said weapon might have been placed on the governor's table by the accused
himself as part of his plan for defense, the fact is that there is no proof about this
allegation of the Attorney-General and that the brass knuckle was on the governor's
table when Lieutenant Navarro (who arrested the accused bringing him to the prison
and whose veracity there is no reason to doubt) immediately returned to the governor's
office in order to see the latter and to learn what happened then (rec., 193-194).
It also appears from the evidence that when the tragedy occurred there was a
long "cris" (dagger) on the top of the bookcase which was on the right side of the
governor's table and of the chair in which the latter was sitting, a bookcase marked with
the No. 3 in the plan Exhibit B Lieutenant Navarro of the Constabulary so testi ed as
well as the recorder Gonzalez, who said, moreover, (rec., 252) that said "cris" (which
was presented by the defense at the hearing as Exhibit 4 ) belonged to Governor Lerma;
that he (the witness) knew it and recognized it very well because it was placed on the
governor's bookcase at the time he took possession of his o ce. The accused said in
his testimony (rec., 219) that upon seeing him unbottoning his coat and taking out his
revolver after he told the governor (as has been mentioned already) to prepare because
one of them will have to die, said governor raised up his right hand placing it on the
bookcase where the "cris" was, but that when he saw that the case of his (the accused)
revolver was opened, he cried out "ina ko po" (my mother) guardia (guard) and then he
(the accused) red the rst shot. Upon being asked whether in that morning, when he
saw the cris ' on top of the governor's bookcase, said cris was within the reach of the
latter, Lieutenant Navarro, in turn, answered, "I believe that the court has been there and
can tell by sitting in the chair whether it was within his reach or not," an answer with
which the witness tried to show that he had no interest in expressing his own opinion
about the question propounded upon him. More- over, upon being asked again . . . "But
as you found the 'cris' in that morning, same was within the governor s reach, if the
governor were sitting in his chair," Navarro answered, "It seems so." And, nally, upon
being asked "If Governor Lerma were in his chair where he used to sit, could he reach
the "cris"? the recorder Gonzalez answered, "Sitting, he could not reach it, but standing,
he could, adding, furthermore, that he did not know Governor Lerma's object in having
said "cris" in his o ce on top o his bookcase, but that he knew that he had it there at
the time he took possession of his o ce and that he never saw the governor use said
weapon; and that, lastly, the governor had a revolver which he (the witness) had seen,
but he did not know where this weapon was on that date, or when the incident took
place, and that he (governor) seldom used it, bringing it with him only when making
some inspection in some municipalities.
Now then, it being not proven, beyond all doubt that there is present in the
commission of the crime in question the aggravating circumstance of known
premeditation, for concerning this the majority themselves concede to the accused the
bene t of a doubt and they have refrained from making any bolding about it; it being
not also proven beyond all doubt that the accused had made up his mind to kill
Governor Lerma when he went into the o ce of the latter in the morning in question; on
the other hand, it being proven, without the shadow of a doubt, (for such is the result of
the testimony not only of the accused but also of the reporter Reyes, a witness for the
prosecution) that before ring the rst shot with his revolver followed immediately by
the second shot, the accused warned the governor to be prepared, to defend himself as
much as he could because he (the accused) was going to kill him; and, nally, the
governor having means and opportunity to defend himself in any manner or to resist the
attack (for on the bookcase by his side there was a "cris," which can not be considered
as an object for mere ostentation on that bookcase, because, if it was so, it should have
been placed in the panoply in said o ce), and having been able to take said weapon,
even if he were stooping a little or standing by his seat, and for which he had also
enough time inasmuch as the accused unbottoned his coat, took out his revolver from
his . belt and from the case where it was before ring the rst shot it is evident that it
cannot be a rmed that the accused employed means, methods or forms in the
execution of the crime which had tended directly to insure its execution without risk to
himself arising from the defense which the offended party could have made. On the
contrary, all of the acts executed by the accused (before ring the rst two shots with
his revolver at the governor while the latter was in front of him, taken together with the
strained relation between them mentioned in the majority decision, or their enmity, and
with their conversation in the rst as well as in the second interview) are incompatible
with the lawful existence of the circumstance of alevosia (treachery).
But even admitting that Governor Lerma was defenseless and that he did not
suspect that he was going to be attacked by the accused in the manner that he was
attacked, nevertheless it cannot be said that the crime was committed with alevosia as
a qualifying circumstance, because, beside the fact that said circumstance is of a
subjective character, or that it is exclusively related to the accused and not to the
condition of the offended party, there having been, in the rst as well as in the second
interview between the governor and the accused, an exchange of words which showed
that there was an ill feeling between the two such that would have given rise to a
personal attack by anyone of them against the other, it is not impossible that the one
who is attacked would have to defend himself by some means The supreme court of
Spain has held so in its decision of January 19, 1907 (Vol. 78, Criminal Jurisprudence),
in a case in which an individual red a shot gun at two other individuals who were
defenseless and who had no means to suspect that they would have been attacked by
the assailant in the manner they were attacked, thereby killing them instantaneously.
The court based its decision in that (1) alevosia being a circumstance of a subjective
character, in order to consider its existence, it must be shown whether not the accused
employed means, methods, or forms in the execution of the crime which tended directly
and specially to insure its execution without risk to himself arising from the defense
which the offended party might make; and that (2) admitting that the deceased was
defenseless and that they did not suspect that they would have been attacked by the
accused in the manner they were attacked, this fact is not su cient to show that the
act was committed with alevosia which quali es the crime as murder, inasmuch as the
personal acts of the accused constituting the treacherous means employed are not
speci ed, as well as it appears from the verdict that the shots were preceded by words
and gestures indicative of the initial stage of a quarrel and exclusory, unless there
appears facts to the contrary, of the impossibility that at any stage of the attack the
offended party could have defended themselves, much more in dealing with an attack
which, although not foreseen, was committed by a man who, on appearing at the place
of the incident to recriminate upon the deceased, was carrying a shotgun with which he
afterwards fired at them.
Moreover, in its double aspect as aggravating and qualifying circumstance in the
crime against persons, alevosia requires for its juridical integration that, even if same
arises at the moments of the execution of the crime, the election of the means tending
to insure the accomplishment of the act without risk to the assailant arising from the
possible defense of the offended party, be the product of the sound mind of the guilty
person; for it is only when, says the Supreme Court of Spain in a decision of July 6, 1910
(Vol. 85, supra), by an act exclusive of the aggressor, the offended party is deprived of
all the natural means of defense, that the special aggravating circumstance,
aforementioned, exists.
The foregoing doctrine was applied by the Supreme Court aforementioned, in the
decision (supra) of a case in which the accused, suddenly, unexpectedly and from
behind, struck an individual with a club in the head from which he died, without risk to
his person and knowledge on the part of the victim, who had challenged the accused
before the attack. The supreme court held that this fact (that the offended party had
challenged the accused before the attack) altered and destroyed the element of
alevosia and showed, strictly interpreting the verdict, that from the provocation and
challenge of the one, the attack of the other followed without interruption, and that the
external form of said attack only meant an accident peculiar to their reciprocal
impetuosity at the moment.
In the instant case it is not proven that, when he went to see the governor in that
morning, the accused Baluyot carried with him the revolver expressly and precisely to
make use of said weapon against the former, in the same way that it is not proven that
he then had deliberately and re exively premeditated and resolved to kill the governor
On the other hand, from the testimony of the accused him self, who was an o cer of
the National Guard, it appears that he was accustomed to carrying with him said
revolver whenever he used to leave the house to go from one place to another. Nor did
the accused try to avoid all personal risks arising from the defense which the governor
could have made. But, on the contrary, with the warning he made to the latter to be
prepared, to defend himself as much as he could because he was going to kill him, he
(the accused) ran the risk that the governor might have suddenly made use for his
defense of the "cris" which he had by his side although, as has been already said, he
could dispose of a short time. And it is not doubtful that on that occasion the governor
was not deprived, by an act exclusive of the accused, of all the natural means for a
defense. It is true that between the governor and the accused there was no quarrel,
altercation, or dispute but there was an exchange of words of such meaning and sense
as could have provoked, as has been already said, the anger of said accused. And
certainly it is not necessary that said words should have been spoken in a loud voice or
in an angry tone in order that same could have produced said effect, for it is well known
that words gently spoken without any alteration can produce, according to the
circumstances, same effect as if spoken in a loud voice and in an aggressive tone. It is
undeniable that all of the foregoing circumstances exclude the idea that the accused
treacherously red the rst two shots at the governor, and (as in the case decided by
the supreme court of Spain in the decision aforementioned), the external form of the
attack was only an accident peculiar to the reciprocal impetuosity of the governor and
the accused at the moment. If Governor Lerma was strongly frightened (as it is natural)
when he saw the revolver in the hands of the accused and heared the warning or the
challenge of this, and had no su cient will power to remain cool before the danger that
was threatening him nor su cient strength to defend himself from the attack of which
he was going to be the object (to repel, or to resist it, making use of the means of
defense which he had in hand or of the "cris," which was on the top of the bookcase by
his side, or of a chair or of any other furniture which was near him, whereby the accused,
by means of the rst two shots, caused him two wounds, before the same governor
could take refuge in the closet toward which he suddenly ed, pursued by the accused)
it cannot be inferred therefrom that the latter acted treacherously in making said
attack; for, as has already been said, alevosia (treachery) is a circumstance of a
subjective character and in order to determine its existence in a case, the condition of
the person attacked and what this would have done or left to have done should not be
taken into consideration, but the acts of the accused himself.
There having been, then, no alevosia when the accused attacked the governor by
firing the first two shots, we now pass on to the third.
This shot was red by the accused when Governor Lerma, eeing through the
corridor after the second shot; took refuge in the closet which, as has been said, was at
the end of said corridor. Once in the closet, the governor shut the door and placed
himself, as the majority decision says, in a position to obstruct the entrance of his
pursuer, who vainly attempted to open the door. In the same decision it is further said
that the accused, judging the position of the governor's head from the direction of the
sound emitted when same began to call aloud for help, red his revolver in the direction
indicated, the bullet passing through the panel of the door, struck the governor in the
forward part of his head near and above the right temple. The wound was necessarily
fatal and caused the governor's death two or three hours after.
From the evidence it appears: (1) according to the reporter Reyes (rec., 39), that,
referring to him what happened in connection with the third shot, the accused told him
that he (the accused) pursued the governor because he thought that the rst two shots
missed him, that the governor was able to reach the door of the closet and to sit behind
it and, once within, called aloud, and from the sound thus emitted, he (the accused) was
able to judge where the governor was and he then red and observed a movement at
the door, that he opened it and as he did so the body of the governor shot towards him
as if in an attitude to embrace him, and he ran away from the body and it fell; (2)
according to Lieutenant Labayan (rec., 152) that in an interview had between them in
the afternoon of the same day of August 3d, the accused told him that the governor
ed through the corridor and was able to enter in it and close the door of the closet,
that then there was a struggle between the two in order to open the door and as the
governor was calling aloud for a guard, he (the accused) knew from the governor's
voice that the latter was sitting and judging from said voice, he red again, and after
this shot the door was opened and the governor fell towards the window of the
corridor.
Perhaps, it has been inferred from these two testimonies that before discharging
the third shot, the accused had Judged the position of the governor's head, as stated in
the majority decision. But, in reality, what the accused meant by said testimonies was
that he knew the governor's position behind the door. Whatever it may be, it is evident
that when the accused red the third shot, his object was to in ict a wound upon and
consequently kill the governor. It is also true, as same decision says, that the victim in
his effort to escape had been driven to take refuge in the closet, and with the door
closed it was impossible for him to see what his assailant was doing, or to make any
defense whatever against the shot directed through the panel of the door. But, in spite
of all these and of the fact that, according to the majority opinion, the presence of
alevosia in ring the third shot seems to be too patent of controversy that it requires no
discussion whatever, in my judgment, dissenting from such a respectable opinion, the
presence of said qualifying circumstance should not be taken into account in the acts
aforesaid.
And the reason is very clear. The accused did not take advantage of the fact that
the governor was behind the door of the closet and he was in front of it, or outside of
said door; nor did he select this situation in order to prevent said governor from
defending himself, so that without risk to his person arising from said defense, he
might insure the execution of his criminal object. On the contrary, said situation was an
obstacle against the realization of the object of the accused; was a means employed by
the governor, under the desperate and sorrowful condition in which he was found, for
his defense against the attack of which he was the object; was a di culty encountered
by the accused from continuing his attack upon the governor and making sure his aim
at him with his revolver. The accused, after all, did not avail himself of these means or
situation (that the door of the closet being closed) in order to make his victim a better
and more accurate target, as is shown by the fact that only by judging the governor's
position behind the door was he able to hit him with the third shot. And it is hereby
convenient to rectify what appears in the decision of the lower court, namely, that one
of the admissions made by the accused to the reporter Reyes and Lieutenant Labayan
(at the interview they had in the jail with him relative to the third shot) was that when the
accused knew the governor's position from the sound emitted when the latter called for
help, he red the third shot, placing the muzzle of his revolver against the door and at
the place where he thought the governor's head was. This is absolutely inaccurate.
Neither Lieutenant Labayan nor reporter Reyes has said this. And it is not strange that
(such an admission being found in the judgment of the trial court, which was
reproduced by the Attorney-General in his brief, copying the whole of the respective
paragraph of the judgment appealed from) the Attorney-General has invoked in his
brief, as applicable in the instant case. the decision of the Supreme Court of Spain of
December 10 1884, cited in I Viada's commentaries 260, in order to maintain that the
qualifying circumstance of alevosia was present when the third shot was red. As it
appears in the decision of the Supreme Court of Spain aforementioned, the case
decided therein was: that a ght took place between the accused and the inmates of a
horse; that after the accused had been ejected from said house and its door closed by
those within, said accused red his pistol, which he was carrying, through the crevice of
the door; and that one of the persons inside the house was thereby killed. If in the
present case ( as has been inaccurately asserted in the Judgment appealed from,
referring to what has been testi ed by the reporter Reyes, an assertion accepted by the
Attorney-General in his brief ) Baluyot had placed the muzzle of his revolver against the
door behind which was Governor Lerma and at the place or spot where he thought the
governor's head was, or had, upon ring the third shot previously placed said revolver
against the wall of the door (as is also inaccurately mentioned in said judgment
referring to Lieutenant Labayan), then the holding of the Supreme Court of Spain in its
decision aforementioned would be in some way applicable, although not closely; for in
the case aforementioned the agent or aggressor red his revolver through the crevice
of the door, i. e. he could easily aim at same of the persons behind the door, one of
whom he wounded. But in the present case the accused Baluyot red the third shot at
the spot where the head of the deceased must have been merely according to his
judgment of the victim's position, or his being seated, and of the sound emitted by him
when he called out for help. As a consequence of said shot, he in icted the mortal
wound he had intended. Therefore, the difference between this case and the other one
is very clear. Moreover, it must be also taken into consideration that the third shot was
red by the accused after the rst two shots as a mere continuation of his attack upon
the governor, and when he, being already excited and in the heat of anger, could not,
naturally, be in a position to stop to aim his revolver with the necessary accuracy at
exactly the head of the deceased — much more less because, from the testimony of the
accused himself, the governor was calling out for Venegas, Aranjuez and a guard.
It is true, according to the majority decision, that the victim in his effort to escape
had been driven to take refuge in the closet, and with the door closed it was impossible
for him to see what his aggressor was doing, or to make any defense whatever against
the shot directed through the panel of the door — the case being the same, according
to the majority, as if the victim had been bound or blindfolded, or had been
treacherously attacked from behind in a path obscured by the darkness of the night. It
is indisputable that Governor Lerma was completely defenseless while taking refuge in
the closet even if the door could have very well served to him, in any manner, as a
means of defense (and he must have so understood when he pushed or held it from
within to prevent the accused from entering said closet.) But in order to determine
whether the means employed by the accused when he red the third shot were
treacherous or not, the condition and situation in which the victim was found must not
be taken alone. Great consideration must also be had of the acts executed by the
accused as constituting his unlawful aggression, because the qualifying circumstance
o f alevosia is subjective in character as has been repeatedly said, or is specially
connected with the aggressor. And it is evident that if Governor Lerma could be
compared to a person bound and in defenseless conditions aforementioned, for the
reason that the door being closed he could not see what his aggressor was doing, or
make any defense whatever against the shot directed through the panel of the door, it
was not due to any act of the accused because the latter was not the one who closed
the door, or prevented it to be opened. On the contrary it was the accused who tried to
open it by pushing it persistently in order to continue his assault upon the unfortunate
governor. And if Baluyot red the third shot through the door, it is also indisputable that
he did not take advantage of the door being closed, nor did he choose to re said shot
while it was thus closed in order to insure himself against any defense of resistance
which could be made by the person attacked, or to insure the consummation of the
criminal act he was executing, for the same reason that from his own actions he
preferred to have the door opened before firing the third shot at his victim.
However, supposing, but not admitting as true, that the third shot, which caused
Governor Lerma's death, was red by the accused under such circumstances as would
justify the holding that the procedure then employed by said accused was treacherous,
it cannot also be considered that the commission of the crime was attended by the
qualifying circumstance of alevosia which raises it to the degree of murder. It is a fact
recognized in the majority decision that the entire assault upon Governor Lerma from
the beginning must be considered continuous, i. e., there was no break of continuity in
each of the three shots red by the accused at the governor. So that said three shots
constituted, in reality, one single attack or one single act. Since it cannot be considered
as duly proven, beyond reasonable doubt or in any manner whatever (as it is not in the
judgment of the undersigned, as has already been said), that the accused acted
treacherously when he red the rst two shots at the governor (which caused the two
wounds in the region of the right supra-clavicle) or when he commenced to execute the
criminal act, there is no legal terminology whereby the qualifying circumstance of
alevosia can be considered present after the assault has been commenced; because
alevosia must necessarily embrace the entire assault constituting the crime. Such has
been the holding of the Supreme Court of Spain in its decision of September 9, 1901,
(Vol. 67, Jurisprudencia Criminal), in a case in which the accused red two gun shots at
his victim, who thereby received four wounds, and when said victim was already lying on
the ground the accused again delivered several blows with the butt of his gun on the
victim's head, thereby in icting upon the latter several other wounds of which he died
shortly afterwards. It appears from the verdict that the rst two shots were not red by
the assailant from behind his victim in order to insure in that manner the execution of
the crime without any risk to himself arising from the defense which the deceased
could have made, but that, in delivering the several blows with the butt of his gun in the
head of the deceased while Lying on the ground, the assailant employed means,
methods or forms especially and directly tending to insure the victim's death without
any risk to his person arising from any defense the deceased could have made; i. e., the
assailant did not employ treacherous means at the beginning of the assault but only
towards its end when he killed the victim. In reversing the decision of the Audiencia
Provincial de Gerona qualifying the crime as murder and condemning the accused to
death penalty, the Supreme Court aforementioned held the following:
"That treachery necessarily embraces the entire assault constituting the
crime, so that treachery cannot be considered present when it was not present at
the beginning of the unlawful assault, notwithstanding that said assault was
consummated on account of the victim's inability to repel it; that, therefore, the
Jury having found out that there was no treachery when the accused fired the two
shots at the victim, and that, when the latter fell on the ground as a consequence
of said shots, said accused delivered several blows with the butt of his gun in his
head, treachery cannot be considered present, even if the act of delivering said
blows were treacherous, as the victim was killed with the butt of the gun when he
was already lying helpless on the ground."
The case decided in the foregoing decision, as it appears is identical to the
instant case, and the fundamental reason adduced therein by the Supreme Court
aforementioned, consists in that, the assault being considered as indivisible and only
one criminal act punishable by law, even if it was executed at different and successive
stages, it cannot be considered that in the execution of said act there are present
separate and distinct circumstances in connection with each of the facts embracing
said act which constitute but one crime.
However, the majority decision maintains, by citing the decision of this court in
the case of U. S. vs. Elicanal (35 Phil. Rep., 209), that even supposing that treachery
(alevosia) had not been presented at the beginning of the assault, it would be necessary
to nd this element present from the manner and surrounding circumstances under
which the crime was consummated. The foregoing decision of this court contains this
syllabus:
"It is the doctrine of this court that where the person killed was in a helpless
and defenseless condition at the time the fatal blow was given, the homicide was
committed with alevosia notwithstanding that in the attack, which was
Continuous, and which finally resulted in the death there was no alevosia."
The facts in the foregoing case were: That while the sailboat Cataluña under the
command of her captain Juan Nomo, was on her trip along the coast of Iloilo, the chief
mate of said sailboat named Guillermo Guiloresa told Eduardo Elicanal, the accused,
and one of the members of the crew, that he was going to kill the captain because he
was very angry with him and asked him to assist him. But Elicanal paid no attention to
this proposal because he thought that it was a joke; that the following day while the
crew were engaged in their daily occupation, the same chief mate (Guillermo), nding
the captain in his cabin, assaulted him attempting to seize and hold his hands and at the
same time calling the crew to come forward and help him. The crew, with the exception
of the accused, hastened to the spot where Guillermo was engaged in a hand to hand
ght with the captain. At the request of Guillermo the crew seized the captain and tied
him with rope. After he had been rendered helpless, Guillermo struck the deceased
captain in the back of his neck with an iron bar, and then delivering the weapon to the
accused, ordered him to come forward and assist in disposing of his victim. The
accused thereupon seized the bar and, while the captain was still 'struggling for his life,
struck him the fatal blow in the head, which caused his death.
After a thorough consideration of the qualifying circumstances that should be
taken into account in the commission of the crime, among which is that of alevosia,
which the court took into consideration in qualifying the offense as murder and in
sentencing the accused Elicanal to death penalty, in order to hold that in the case then
at bar the qualifying circumstance of alevosia was present, the writer of the majority
opinion, Justice Moreland, said:
"This court has held repeatedly that, even though the beginning of an
attack resulting in the death of the deceased is free from treachery of any sort,
nevertheless it will be found present if, at the time the fatal blow is struck, the
deceased is helpless and unable to defend himself. While the writer of this
opinion hold the view that, where there is not treachery in the attack which results
in the death of the deceased, there can be no treachery which will qualify the
crime as murder notwithstanding the fact that, at the time the fatal blow was
struck, the deceased was unarmed and defenseless, but, the court having held so
frequently the contrary, the writer accepts the doctrine so well established."
In acknowledging in the foregoing decision that the doctrine established in the
case, U. S. vs. Balagtas and Jaime (19 Phil. Rep., 174 invoked by counsel for the
defense to maintain that the qualifying circumstance of alevosia could not be taken into
account in the commission of the crime inasmuch as it was not present at the
beginning of the assault upon the captain of the vessel) was quite different from, if not
directly opposed to, that already stated as, therefore, the uniform holding of this court
in former cases, the writer of said decision, Justice Moreland, again said that, inasmuch
as the majority of the court being of the opinion that it was not the intention of the court
in the case U. S. vs. Balagas and Jaime to reverse the previous decision of this court
and to set down a new doctrine, he accepted that view particularly in the face of the
almost unbroken line of decisions on the subject now to be referred to. Then in the
following lines Justice Moreland cited various cases decided by this court holding, as
has been already stated, a uniform doctrine quite different from, if not opposed to, that
established in the Balagtas and Jaime case aforementioned. The rst of said cases
was that of U. S. vs. De Leon (1 Phil. Rep., 163) wherein "it appeared," says same
decision, "that the accused entered the house of the deceased, drew their bolos and
compelled him to follow him. On arriving at a place called Bulutong, the deceased was
bound and in that condition murdered. It was held that the fact that the deceased was
bound at the time he was killed although there was no treachery at the beginning of the
assault resulting in his death, the qualifying circumstance was present. The court said:
"From the evidence there appears the qualifying circumstance of treachery.

To show this it is only necessary to mention the fact that the deceased was
bound.
" 'The head note to that case says:
" 'The fact that the deceased was bound while killed constitute the
qualificative circumstance of alevosia and raises the crime to the degree of
murder, . . .' "
The various cases, fteen in number, mentioned by Justice Moreland in the
aforesaid decision, beside that of U. S. vs. De Leon, aforementioned, are cited in same
decision (35 Phil. Rep., 218), followed by, "For these reasons we are of the opinion that
the crime was committed with treachery and that it was properly denominated murder
instead of homicide."
Now then, as it appeared in the De Leon case, the accused began the attack by
entering the house of the deceased, drawing their bolos and compelling him to follow
them, and, on arriving at a certain place, the deceased was bound and in that condition
murdered. Upon an examination of the fteen cases cited in the same decision, it
appears that the facts, leading to the prosecution of the respective accused and the
classi cation of the crime as murder because of the presence of the qualifying
circumstance of alevosia, were identical to those in the De Leon case, or, what amounts
to the same thing, were, with some alterations, that after the offended parties had been
kidnapped from their respective homes or sequestered and carried to another place
and there bound by their aggressors, they were put to death while absolutely
defenseless. The facts in one of the cases cited in the aforementioned decision, that of
U. S. vs. Nalua and Cadayum (23 Phil. Rep., 1), were: two persons suddenly and
unexpectedly leaped upon a third, and while one of them holds the victim's hands the
other stabs him to death.
What was then mainly taken into account by this court in holding, in the case U. S.
vs. Elicanal, that in the commission of the crime there is present the qualifying
circumstance of alevosia, was that the captain of the sailboat Cataluña was tied with
rope when the accused, by order of the chief mate, took the iron bar and with it struck a
blow in the head of the deceased resulting in his death. The special circumstance that,
when the deceased captain was killed by Elicanal, he was tied with rope and was
consequently helpless and defenseless is what, comparing said case with that of De
Leon and the other cases cited therein, was taken into consideration by this Court in the
aforementioned decision in holding that treachery was present when Elicanal killed the
captain even though there was no treachery at the beginning of the struggle. Such was
duly and thoroughly shown by the arguments in the same decision holding clearly that
where the person killed is bound hand and foot when the aggressor killed him, the
crime was committed with alevosia, even though the acts of the aggressor prior to the
killing were not treacherous, or that in such a case any other consideration related to
the former acts of the offender must be excluded and the act of said offender in killing
the deceased must be considered treacherous. If in holding what it did in the Elicanal
case the purpose of this court had been otherwise, useless would have been all that has
been said by Justice Moreland in the decision of said case, citing as the ground for his
concurrence with the majority (notwithstanding his holding a different opinion and the
doctrine established in the Balagtas and Jaime case) the cases already mentioned (the
De Leon case and the other 15 cases cited in same decision) and nally accepting the
view of the majority in the sense that it was not the intention of the court in the Balagtas
and Jaime case to reverse the previous decisions of this court and to set down a new
doctrine in view of the uniform holding of this court upon the subject in question; i. e.,
those holdings in the aforementioned case of De Leon and the other fifteen.
The case at bar, as it clearly appears, has no analogy or similarity whatever with
the cases cited above nor with the Elicanal case. In all these cases the acts complained
of were that the victims had been tied by their respective murderers before they were
killed. In the Elicanal case there was at the beginning of the attack a hand to hand ght
in the course of which the chief mate Guillermo with an iron bar dealt a blow in the back
of the neck of the deceased captain while the latter was tied with rope, before another
blow was delivered by the accused Elicanal at the request of said Guillermo. Treachery
was, therefore, present when Guillermo dealt the rst blow and before Elicanal
delivered the fatal one on captain Nomo, deceased. In the De Leon case and the other
fteen cases cited in the decision against Elicanal, the purpose, the principal object, of
the offenders being to put to death the victims by them sequestered or kidnapped from
their homes, their acts of tying said victims were simply preliminaries or preparatory to
the principal act committed by them at the time the offended parties were already
bound and rendered completely defenseless. Treachery, therefore, cannot be present in
the said preliminary acts, it being present only when the accused executed their
principal object, or their intended purpose at the time they sequestered the offended
parties. On the other hand, the case at bar (which is rather unnecessary to repeat) was
that the accused Baluyot began attacking Governor Lerma by ring two pistol shots
while said governor was in front of him thereby causing him two wounds; and that the
deceased having taken refuge into the closet next to the corridor adjoining his o ce,
the accused continued his attempt by ring another pistol shot which caused the death
of the victim.
It is, therefore, evident that the case at bar has no application to the doctrine
established in the Elicanal case and in those cases cited in the body of same case by
the writer, Justice Moreland, and invoked in the opinion of the majority in order to hold
that, even supposing that at the beginning of the assault upon Governor Lerma
treachery was not present, it would be necessary to consider its presence in view of the
form by which the crime was committed. On the contrary, the present case has an exact
application to the doctrine established by the Supreme Court of Spain in its decision of
September 9, 1901, already mentioned above, and expressive of the fact that "treachery
must necessarily be present thru out the assault constituting the crime," because the
present case is identical to that decided by said Supreme Court in the aforementioned
decision where the foregoing doctrine was established. The case at bar has also an
exact application to the doctrine established in the Balagtas and Jaime case supra), to
wit:
''In order that alevosia may be considered as a qualifying circumstance to
raise the classi cation of the crime, or as an aggravating circumstance to
augment the penalty, it must be shown that the treacherous acts were present and
preceded the commencement of the attack which cause the injury complained of.
After the commencement of such an attack, and before its termination, an
accused may have employed means or methods which are of a treacherous
character, and yet such means and methods would not constitute the
circumstance of alevosia. One continuous attack cannot be broken up into two or
more parts and made to constitute separate, distinct, and independent attacks so
that treachery may be injected therein and considered as a qualifying or
aggravating circumstance." (19 Phil. Rep., 164.)
The foregoing doctrine must be considered subsisting, and it is, in my own
judgment, subsisting notwithstanding what has been said by this court in the cases
already cited; to wit, U. S. vs. De Leon, U. S. vs. Elicanal, and the fteen cases mentioned
in the last one.
For the foregoing reasons and with due respect to the opinion of the majority of
this court, I hereby dissent from same and am of the opinion that the crime committed
by the accused, according to the evidence adduced at the hearing and their merits, is
not murder but homicide, de ned and punished under article 404 of the Penal Code;
and that the fact that it was committed at the place where the deceased Conrado
Lerma, Governor of Bataan, was exercising the proper functions of his o ce as such
governor, a generic circumstance modifying the criminal responsibility incurred by the
accused in the sense of aggravating same without the presence of any extenuating
circumstance to compensate it, the accused must be sentenced to suffer the medium
of the maximum degree of the corresponding penalty, i. e., 18 years, 2 months and 21
days of reclusion temporal with the accessories of article 59 of the same Code; but
that if it be considered, as it was understood by the majority in their decision, that same
criminal act executed by the accused in fact resulted in the perpetration of two crimes,
one of them being the assault upon persons in authority de ned in article 249 No. 2 of
said Code, the accused must therefore be sentenced to suffer the penalty
corresponding to the more serious crime, i. e., that of homicide in its maximum degree,
as provided for in article 89, or 20 years of reclusion temporal and the same
accessories of article 59.

Plaintiff-Appellee Vs Vs Defendant-Appellant Filemon Sotto Attorney-General Paredes

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Plaintiff-Appellee Vs Vs Defendant-Appellant Filemon Sotto Attorney-General Paredes

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FIRST DIVISION

[G.R. No. 14476. November 6, 1919.]

THE UNITED STATES , plaintiff-appellee, vs . JOSE I. BALUYOT ,

Filemon Sotto for appellant.

1. CRIMINAL LAW; MURDER; "ALEVOSIA" [TREACHERY]. — The qualifying

"From the evidence there appears the qualifying circumstance of treachery.

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