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 firing of a pistol by the accused at his victim, who was unarmed. As the latter attempted to flee 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, fired 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 final 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 office of the provincial governor where the latter was engaged in the exercise of his official 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 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 fiscal 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 specified, 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.

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 office 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 office, which served as a sort of anteroom to the office 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 office. 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 first, which the latter accordingly did. The governor and the accused remained alone in the former’s office 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 office 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 office the latter was sitting behind his desk in an ordinary office 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 office, 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 testified 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:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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 office until the first shot was fired, is wholly lacking in verisimilitude. What really occurred, as the lower court found, and as the testimony of the witnesses in the recorder’s office slows, is that the first shot was fired within a few seconds after Baluyot reentered the governor’s office and that the interval which elapsed was scarcely more than sufficient 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 office, 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 office 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 office 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 office. 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 fired. 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 first fired by Baluyot entered in the frontal region of the right shoulder blade of Governor Lerma and inflicted 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 office 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 floor. 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 office behind and on either side, since his table was in a corner of his office. 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 fired. 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 first shot. The firing of the second shot was seen by Antonino Aranjuez, whose attention had been attracted by the noise of the first shot. Being then seated at a desk in the recorder’s office near the door leading into the governor’s office, this witness immediately arose upon hearing the first shot, and having arrived at a point in the governor’s office 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 fired the second shot at his fleeing 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 fired, Aranjuez, instead of intervening to save the governor, as would have been becoming, turned and fled to obtain succor.

Bonifacio Mencias, the sanitary official, who examined the wounds of Governor Lerma, says that both of the first two wounds were made by bullets which entered from the front. This is obviously true as to the first, but as to the second there seems to be room for doubt. The inspection made by the doctor may have been superficial, 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 fleeing 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 flight, 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 fired at an unarmed man whose only purpose was to effect an escape to a place of safety Whether at the instant this shot was fired Governor Lerma may have had his body turned so as momentarily to confront his assailant, moving away sidewise, can have no bearing upon the qualification 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 fired, Governor Lerma continued his flight along the corridor and, instead of attempting to pass out to the right into the recorder’s office, 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, fired 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 floor. 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 v. Gil (13 Phil. Rep., 530); and the offense here committed was properly qualified 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 final 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 office 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 office upon the governor’s first 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 office. 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 fired, 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 fired while the victim was endeavoring to flee to a place of safety. The presence of alevosia in the firing 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 find this element present from the manner in which the crime was consummated. In United States v. Elicanal (3 Rep., 209) Justice Moreland said:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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 v. 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 briefly mentioned. It was testified 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, testified 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 fixed 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 gratification over the successful accomplishment of a, fixed 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 fixed resolution. The design to kill was probably entertained when the accused went in the early morning of August 3 to the governor’s office, 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 prefigured 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 sufficiently long to allow the actor time to reflect 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 benefit 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 qualified by two extenuating circumstances, namely, first, 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 first 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:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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 sufficient to constitute the mitigating circumstance defined 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 office and the time when the words addressed to the governor about the revolver were heard in the recorder’s office. From the testimony given by the witnesses Pedro Gonzales, Antonino Aranjuez and Gregorio de Guzman, we consider it to be irrefutably established that the first shot was, fired within nine or ten seconds after Baluyot reentered the governor’s office 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 first 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 suffices 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 office, 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 sufficient to dispose of so much of the appeal as is concerned with the commission of the offense and its legal qualification 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 first specification 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 fiscal filed 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 filed in the Court of First Instance, whereupon Manuel Banzon, a regularly admitted member of the bar, was appointed by the court as attorney de officio 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 notified 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 affidavit should ordinarily be filed 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 v. 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 qualification 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 disqualification 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 disqualified 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 v. Contreras (28 Phil. Rep., 538), and Joaquin v. 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 filed 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 sufficient, 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 specification is addressed to the supposed error of the court in refusing to compel the provincial fiscal 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 fiscal 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 testified, 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 unqualified 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 fiscal 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 fiscal under the authority of section 1687 of the Administrative Code. This section authorizes the fiscal, 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 fiscal 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 fiscal in the conduct of the prosecution. Such declarations therefore pertain to the official file in the office 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 fiscal 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 fiscal 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 benefit 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 fiscal 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 affidavit or otherwise, made it appear to the satisfaction of the court that the witnesses named had made statements in their declarations before the fiscal 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 findings 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 findings 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 certifications 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 findings of fact made therein. It is not necessary that the record should affirmatively 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 qualification of the crime and fixing 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 modified 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.



ARAULLO, J., dissenting:chanrob1es virtual 1aw library

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 qualified 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 qualified 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 suffice for their appraisal and justification. 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, finding himself in the room or office of the provincial governor of Bataan, Conrado Lerma, alone with the latter, with a revolver which he was carrying fired, first, two shots at short intervals at said governor — the first 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 office, — and afterwards a third, the said Lerma then being behind the door of a closet, wherein he took refuge, fleeing from his pursuer who aimed said third shot through said door; second, that the projectile of the first shot entered the frontal region of Lerma’s right shoulder blade, that is to say (as Dr. Mencias, who examined him five 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 first, passed through the body and, like the first, 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 office 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 office, a sort of anteroom to the governor’s office; that on the governor s arrival about 11 o’clock a. m. after an exchange of friendly greeting and handshaking the accused was invited first by the governor into said office, in preference to another caller called Aranjuez who was also waiting; that the accused entered and, the two remained alone in said office 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 office and had a few minutes conference. As soon as this was over, the accused reentered the governor’s office and that was when the aforementioned three shots fired 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 first 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 first time he met the governor in his office 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 office and, Aranjuez’s interview with the governor being over, he reentered said office and resumed the previous conversation in the following words:chanrob1es virtual 1aw library

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) fired the first 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 fixing the trigger, the governor got up grabbing him in order to reach his right hand with which he was fixing the trigger, and after this struggle he (governor) fled 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 floor; 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 office manner stated by the accused, in the adjoining recorder’s office were the recorder himself (Pedro Gonzalez), Antonino Aranjuez who had a few moments before left the governor’s office, and Gregorio de Guzman, the provincial assessor, who were produced at the hearing as witnesses for the prosecution.

Pedro Gonzalez testified that, while seated in his office 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 office 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 office until he (the witness) heard said first shot was enough for the accused to go from the witness’ office 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 office, going towards the engineer’s office in order to ask for help and being in front of said office, he heard a second shot; that the time which elapsed between the first and second shots was about 20 or 30 seconds, the distance between his office and that of the engineer being about 15 or 20 meters; that having immediately gone to the auditor s office, in the lower story of the building, he heard the third shot, more than a minute after the second.

The second witness, Antonio Aranjuez, testified that after he had been some two minutes only in the governor’s office 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 office 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 office; and he (witness) was not yet seated in a chair in the recorder’s office, 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 office, 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 first towards the warden s office, 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 fired from the same place as the two other shots; that the time from the moment the accused entered the governor’s office until he heard the first shot was 9 or 10 seconds; that from the first 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, testified in turn that when the accused Baluyot entered the governor’s office, he was very near the recorder’s desk and approximately one meter from the door which was between the governor’s office 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 office, 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 office, 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 office while the witness was in the recorder’s office; 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 office, 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 office 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 office 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 fired at the governor; that the time from the first 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 finding nobody there, and having entered the auditor s office, which was open, and in which were the provincial assessor and an employee of the treasurer’s office, he heard another pistol shot fired from the governor’s office; and that the time from the second to the third shot was about 2 or 3 minutes.

And, finally, 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 office 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 office until he reached the governor’s desk and fired the first 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 fired his first 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 office 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 office, say "governor" before hearing the first shot, and affirmed also that the time that passed from the moment the accused entered the governor’s office until he heard said first shot was 9 to 10 seconds. Neither does one understand how the recorder, Gonzales, heard the first shot fired by the accused two seconds after the latter entered the governor s office 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 office 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 office, "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 testified, and leaving the table of the former bound for his own table (that belonging to the provincial assessor) but that he heard the first shot only when he was in front of the door of the engineer’s office which was about 10 or 11 meters from the recorder’s office 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 office and having walked a distance of about 10 or 11 meters from this office to the engineer’s, a distance much greater than that intervening between the door of the recorder s office 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 firing the first shot, and having heard the first 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, firing at him the first 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 first, 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 office of the former, before the accused assaulted the governor, and at the time the first shot was fired 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 first shot was fired within 9 or 10 seconds after Baluyot reentered the governor’s office, and that the interval which intervened was scarcely more than sufficient 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 first shot was fired 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 office or, better said, went to this office from the recorder’s was hardly more than sufficient 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 first 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 office until he (the witness) heard the first shot was some two seconds or the time sufficient, according to said witness, to reach the governor’s desk from that office. But according to the affirmations of Aranjuez the first shot was fired within the 9 or 10 seconds after the accused had reentered the governor’s office, 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 first shot was heard, said witness being then in front of the engineer’s office. Wherefore it cannot be affirmed 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 first 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 affirmation until they heard the first shot was from 20, 30, 50, seconds or one minute more, without anybody contradicting them and without their giving any reason justificative 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 first shot, the first saying it was from 9 to 10 seconds the second from 9 to 11; and also regarding the time which transpired from the first 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 first shot as much as the second, for according to said witness between the first 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 office, 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 office; 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 office, when Governor Lerma arrived and saw Baluyot he greeted the latter and invited him to pass into his office and that Baluyot went in; second, according to Antonino Aranjuez, when the governor arrived in the recorder s office, 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 office 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 first?" and the governor answered: "You ought to enter first," and, in fact, the governor and Baluyot entered into the former’s office; and third according to the same accused, Baluyot, in that morning he was in the recorder’s office 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 office, asked the recorder who of those waiting for the governor had the prior right to enter, that the recorder said: "He who had arrived first ought to enter first," then he (the accused) entered the governor’s office; the accused added furthermore, in his testimony (rec., 236) that the provincial assessor, Gregorio de Guzman, having entered the recorder’s office while Aranjuez was in the governor’s office, 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 office because he had noted the presence of another caller. The truth is that, upon having been invited by the governor into his office, the accused went in but before entering, he showed himself disposed to enter after Aranjuez if his turn was not prior, having first 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 office, 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 office inasmuch as when Gregorio de Guzman was also in the office, 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 office upon the governor’s first 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 office" must also be rectified. From the evidence, it does not appear that the initiative or the idea of withdrawing from Governor Lerma’s office 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 first 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 office in order that in the meanwhile Antonino Aranjuez should enter in said office 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 office so that Aranjuez should finish his interview, he must have been aware that the accused was going to return in his office as soon as Aranjuez should go out. In a word, the governor must have been waiting for Baluyot in his office, 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 fired. According to the decision, Baluyot said, "That while he was sitting in the recorder’s office, 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 office 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 office and that the latter upon arrival would be unarmed in his office, 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 fired, 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 office and before Governor Lerma’s arrival, he said that Paulo Venegas, the warden of the provincial jail, entered the aforesaid office where they were, and after whispering some words to the recorder, the latter went into the governor’s office 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 testified in these terms in his own behalf, (for he testified 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 first 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 office 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 office to have it cleaned, as the warden himself has testified. From the fact that the warden, upon leaving the recorder’s office, took with him said revolver, which he had received from the former (as said warden testified 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 office, it cannot be said that same accused might have also supposed that the governor upon arrival would be unarmed in his office; 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 office) 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 office 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 office 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 office 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 office, he would not have asked the governor any more of his revolver (as the witness Gregorio de Guzman has said) before firing 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 office of the former when said accused fired 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 fired 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 influenced 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 fired the first 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 first 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 first shot, entered the governor’s office, placing himself at the side of a screen which was before the door of said office, (marked with the letter "m" in the plan Exhibit B) from said place he saw the accused fire the second shot with his revolver at the governor who was at this moment fleeing 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 flight, 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 fleeing with his right side, rather than his front, exposed to Baluyot.

Dr. Bonifacio Mencias, the sanitary official of Bataan, who examined the governor’s wounds five minutes after they were inflicted and while the victim was yet living, says, in the medical certificate which he gave on that same day, August 3, that he found in Governor Lerma’s body the following wound: "Two wounds inflicted with a firearm 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 first 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 fired 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 testified that those two wounds in the right shoulder could have been inflicted 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 fired 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 first 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 first two shots were fired 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 superficial, 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 superficial; 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 sufficient to understand that which his eyes saw. In fine, 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):jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

So Antonino Aranjuez first said that when the accused fired 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 testified 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 fight 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 first met Governor Lerma that morning, the first 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 office 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 first 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:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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 affirmed, 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 sufficient idea when he referred to the dialogue which took place between him and the governor at the time he first entered the office 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 office 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 his 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."cralaw virtua1aw library

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 fiscal examined said witness he answered the following:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

"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 definite upon answering the additional cross-question of the counsel for the accused and the new questions of the fiscal propounded on him at the end of his testimony and inserted above. First, he answered in the affirmative 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 fiscal 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 testified 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 fiscal 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 (fiscal’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 fiscal, 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 definite 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 office 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 fixed 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 office 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 office, he was in good humor, and according to same recorder and Antonino Aranjuez, who were also in said office while the accused was with them, he continued to be in good humor before his first 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 office. Upon the governor’s arrival in the recorder’s office 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