1. CRIMINAL LAW; MURDER AND SERIOUS PHYSICAL INJURIES; EVIDENCE; ACCUSED’S ADMISSION. — The conversation had among the accused immediately after the shooting, which was overheard in the rice field by the prosecuting witness is admissible as an admission and as part of the res gestae.

This is an appeal from a judgment of the Court of First Instance of Pampanga sentencing herein appellants to reclusion perpetua and indemnity for the murders of Benjamin Nery and Alfredo Laguitan and to a term of imprisonment and indemnity for the injuries they had inflicted upon Francisco Orsino.

These two appellants, together with Pedro Reyes, Eusebio Perez, Gervasio Due and Marcelo Due, were charged in two separate cases with the violent death of Benjamin Nery and Alfredo Laguitan. In another, they were accused of having caused physical injuries to Francisco Orsino. A joint trial was ordered. At the beginning thereof the fiscal filed a motion for the dismissal of the case against Eusebio Perez for insufficiency of evidence. This was granted. He also asked that the accused Pedro Reyes be discharged so that the latter may be used as prosecution witness. This was also granted.

Evidence for both sides was later submitted in open court; and after a careful consideration of the same the Honorable Antonio G. Lucero, Judge, found the accused Maximino Austria alias Severino Austria alias Big Boy and Vicente Gatchalian alias Magallanes guilty of the offenses set forth in the different informations. His Honor therefore sentenced them as follows:jgc:chanrobles.com.ph

". . . the court hereby finds the accused Maximino Austria alias Severino Austria alias Big Bog and Vicente Gatchalian alias Magallanes guilty, beyond reasonable doubt, of the crimes charged in the information and sentences them as follows: (a) in criminal case No. 367, to reclusion perpetua, with the accessories of the law, to indemnifty jointly and severally the heirs of Pvt. Benjamin Nery in the sum of P2,000, without subsidiary imprisonment in case of insolvency, and to pay the costs; (b) in criminal case No. 367-A, to reclusion perpetua, with the accessories of the law, to indemnify jointly and severally the heirs of Pvt. Alfredo Laguitan in the sum of P2,000 without subsidiary imprisonment in case of insolvency, and to pay the costs; and (c) in criminal case No. 367-B, to an indeterminate penalty of six (6) years of prision correccional, as the minimum, to twelve (12) years and one (1) day of reclusion temporal, as the maximum, to indemnify jointly and severally Pvt. Francisco Orsino in the sum of P1,000, without subsidiary imprisonment in case of insolvency and to pay the costs. In these three cases the accused are entitled to be credited with one-half of their preventive imprisonment."cralaw virtua1aw library

Gervasio Due alias Oliveros and Marcelo Due alias Pipit have not been arrested nor tried.

The transcript of the testimony taken before the Pampanga judge and the documentary evidence in connection therewith are all before us, and the Court, after examining the same, has voted to affirm the verdict of guilt of appellants Austria and Gatchalian, because from the evidence it appears beyond reasonable doubt that: In the night of Good Friday of 1946 (April 19) while religious celebrations were in full swing in the barrio of Cacutud, Arayat, Pampanga and the "pabasa" was being performed (reading and singing of the story of the Cricifixion) the herein appellants assisted by Marcelo Due alias Pipit, Gervasio Due alias Oliveros and one Peping, all armed with pistols, approached three members of the military police, Philippine Army, i. e. privated Benjamin Nery, Alfredo Laguitan and Francisco Orsino — hereafter to be designated MP’s for short — who were peacebly seated, entirely unarmed, in a store watching the affair. At the point of their guns they drove the latter to the road leading to Magalan and at a short distance (about ten meters from the "pabasa" or "cenaculo") shot them from the back and left them lying on the ground.

The attackers were Huks, and the motive of the killing was obviously the enmity existing between the outlaw organization and the forces of peace and order.

Nery and Laguitan died as a result of the shooting. Private Orsino suffered serious injuries. Hig leg, shot and fractured, need about six months to heal.

Pedro Reyes turned state evidence, but he did not confirm every statement he had previously made at the fiscal’s investigation. He testified, however, that at about seven o’clock that night he saw, among the people gathered at the "pabasa," "Pipit" (Marcelo Due) Piping, Gervasio Due alias Oliveros, Vicente Gatchalian and Maximino Austria alias Big Boy; that Pipit and Piping (Felipe Sese) called him and told him that Oliveros wanted to talk with him; that talking with Oliveros he was invited by the latter to speak to the MP’s (the members of the military police, Nery, Laguitan and Orsino); that he refused; that thereafter he heard several detonations; that he ran to the rice field and there he met Oliveros (Gervasio Due) and Gatchalian talking, the former declaring he was sure the MP he had shot will die and Gatchalian making the same assurance as to the MP he (Gatchalian) had shot in turn. Reyes had previously told the authorities in his affidavit Exhibit A, in addition to what he related in court, that Oliveros, Magallanes and Big Boy had approached the three MP’s and lined them up on the road, after which shots were heard. Enough, however, may be gathered from his testimony in open court to identify Gatchalian as one of the assailants, the conversation he overheard in the rice field being admissibile as an admission and as part of the res gest