1. EVIDENCE; WITNESSES; TESTIMONY OF WITNESS WHO PARTICIPATED IN THE COMMISSION OF THE CRIME. — The fact that the witnesses for the prosecution have guilty knowledge and had participated in the commission of the crime charged, does not necessarily render their testimonies incredible and untrustworthy; nor the fact too that they had not been indicated along with the defendants in the case, makes their testimonies inadmissible.

2. CRIMINAL LAW; AMNESTY; APPELLANT NOT HUKBALAHAP AT THE TIME OF THE KILLING. — Where at the time of the killing the appellant was not a Hukbalahap, he was not entitled to the benefits of Amnesty Proclamation 76 issued in favor of the leaders and members of the Hukbalahap organization.

3. ID.; ID.; KILLING OF DECEASED PURELY FOR PERSONAL REASON. — Where the killing of the deceased was not done in furtherance of the dissident movement but for purely personal reason, namely, that appellant wanted to avenge the dishonor brought upon him and his family by the deceased, the appellant was not entitled to the benefits of Amnesty Proclamation 76 issued in favor of the leaders and members of the Hukbalahap organization.

4. CRIMINAL LIABILITY; ACCOMPLICES. — Where M, without motive of harming the deceased, joined C only out of friendship, and all his participation was his calling the deceased down from his house and then accompanying the group to the scene of the killing, M is liable as accomplice, although it was his springfield rifle that was used by C in shooting the deceased, the rifle not having been offered by M but it was grabbed from him by C.

5. CRIMINAL LAW; COMPLEX CRIMES; MURDER; KIDNAPPING; CRIME COMMITTED IS MURDER, NOT COMPLEX CRIME OF KIDNAPPING WITH MURDER. — Where the victim was taken from his home but it was solely for the purpose of killing him and not for detaining him illegally for any length of time or for the purpose of obtaining ransom for his release, the crime committed was simple murder, not complex crime of kidnapping with murder.

6. ID.; MURDER; AGGRAVATING CIRCUMSTANCE OF TREACHERY. — Where the deceased was shot at in the back and while his hands were tied, the killing was committed with treachery and the crime is therefore that of murder.

7. ID.; ID.; AGGRAVATING CIRCUMSTANCE OF EVIDENT PREMEDITATION. — Where about a month previous to the killing, appellant had been planning to kill the deceased and appellant could not carry out his plan earlier because the deceased sensing the reprisal and vengeance coming to him, purposely absented himself from his home, the killing was aggravated by the circumstance of evident premeditation.

For the death of Patricio Matundan, Eligio Camo and Buenaventura Manzanido were accused of the crime of murder with kidnapping, in the Court of First Instance of Tayabas (Quezon). After trial, they were both found guilty of simple murder, Camo as principal and Manzanido as accomplice, and they were sentenced to reclusion perpetua and an indeterminate penalty of from 8 years, 8 months and 1 day of prision mayor to 16 years, 8 months and 1 day of reclusion temporal, respectively; to jointly and severally indemnify the heirs of the deceased in the sum of P4,000, without subsidiary imprisonment in case of insolvency, and to pay the costs. Both appealed from that decision.

That Patricio Matundan was killed in the evening of May 17, 1946 by gunfire as he was being led from his home in the barrio of Conda to the barrio of Talaan, both of Sariaya, is not questioned. What is disputed is the manner, by whom, and why, he was shot.

The theory of the defense is that appellant Camo since the year 1945, was a member of the Hukbalahap organization in Sariaya, being in charge of the department of supplies; that Patricio Matundan had all along been discrediting this organization, calling its members "common cattle thieves and bandits", as a result of which adverse propaganda the Hukbalahap organization was embarrassed and found it difficult to recruit and enlist new members as well as get supplies not only in the barrio of Conda, but also in the other barrios of Sariaya, and so, finally, to remove this thorn in the side of the Hukbalahap organization, it was decided to arrest Patricio; that in the evening of May 17, 1946, appellant Camo accompanied by his superior officers, Major Julie and Lt. Filemon de las Alas, and Antonio Once and Filemon Ambat, all members of the organization and all armed with rifles, passed by the house of defendant Manzanido and ordered him to join them which he did under compulsion; that the group then proceeded to the house of Patricio Matundan, called him down and then took him toward the mountains; but on the way he tried to escape and on order of Major Julie the group fired at him and he was killed; Camo obeying the order to shoot also wanted to shoot, but because of his being clumsy with his gun, he failed to fire.

The story of the prosecution naturally differs, and radically, from the preceding version. According to the government evidence, about a month prior to the night of the killing, appellant Camo surprised his wife, Fortunata Rabano, in the lap of Patricio Matundan, the two kissing and otherwise caressing each other; that he chased both to chastize them, but Patricio was able to escape and Camo upon overtaking his wife in the house, beat her up; that since that day Camo had decided to kill Patricio at the first opportunity in order to avenge the wrong done to him, but Patricio fearing reprisal, absented himself from his home for two weeks; that thereafter he returned home, still feeling insecure and in fact he told his son, Pedro Matundan, that Camo planned to kill him because he suspected him of maintaining illicit relations with Fortunata; that on the day of the killing, Camo requested his friend and co-appellant Manzanido to join and help him in going after Patricio, a request which Manzanido because of friendship could not well refuse; that in the evening of that day the two appellants passed by the houses of Antonio Once and Filemon Ambat both of whom they compelled by threats to join them; that the four then went to the house of Patricio, and upon arrival there, at the suggestion of Camo and to avoid suspicion, Manzanido called Patricio and asked him to come down which the latter did upon which the group tied his hand and took him toward the barrio of Talaan; that on the way Camo made himself known to Patricio by saying to him "Do you know me, now you will pay to me" ; that upon reaching a place near mangroves the group stopped and Camo ordered Patricio to turn around and then seizing the Springfield rifle of Manzanido, Camo shot Patricio in the back killing him; that thereafter, he untied the hands of the dead man and then warned his companions under penalty of death not to tell anyone of what had happened that night. This story is based not only on the testimony of the witness for the prosecution, but also on the affidavits, Exhibits C and D which Camo and Manzanido, respectively swore to and ratified before the Clerk of Court. According to the Constabulary officers and men in charge, the contents of said affidavits were based on the statements made and given by the two appellants freely and voluntarily.

The decision in this case depends in great measure upon the credibility of witnesses, — which set of witnesses told the truth and which version should be given credit. The trial court presided by Judge Antonio Cañizares has analyzed the testimony of the witnesses and carefully observed their demeanor on the witness stand and is of the opinion that the witnesses for the prosecution are more worthy of credit. We quote with favor the pertinent portion of the decision of the trial court:red:chanrobles.com.ph

"There is no dispute as to the death of Patricio Matundan, a fact which the defendants themselves admit.

"The question now for resolution is whether or not the defendants are criminally liable for the death of Patricio Matundan. The testimonies of the two witnesses for the prosecution, namely, Antonio Once and Filemon Ambat, are assailed by the defense as being incredible and not trustworthy for the reason that they are co- participants in the commission of the crime charged. Counsel for the defense stresses the point that being co-participants in the commission of the offense charged, their testimonies came from a polluted source and, therefore, should be subjected to the most painstaking scrutiny and should be received with the greatest caution on the part of the Court. It is for this reason that the Court has taken pains in carefully scrutinizing the testimonies of the said witnesses, and taking into account their interest and motive in so testifying against the defendants.

"After carefully studying the testimonies of the said witnesses in connection with the extra-judicial confessions, Exhibits C and D, of the defendants, and their demeanor and manner of testifying, the Court is convinced as to the truthfulness of the testimonies of the said witnesses, because their testimonies find sufficient corroboration not only from the testimony of Pedro Matundan, the son of the deceased, but also from the contents of the extra-judicial confessions of the defendants themselves. The fact that the said witnesses for the prosecution have guilty knowledge and had participated in the commission of the crime charged, does not necessarily render their testimonies incredible and untrustworthy. Nor the fact too that they had not been indicted along with the defendants in this case, makes their testimonies inadmissible. (See 16 C. J., Sec. 1928, p. 654.)"

And, if there is any further doubt as to the guilt of the appellants and as to which version, that of the prosecution or that of the defense, is to be accepted by the court, there is the fact that at the preliminary investigation when the two appellants were arraigned, they both pleaded guilty.

Realizing that they (two appellants) had practically convicted themselves by the statements and admissions contained in their affidavits, Exhibits C and D, particularly Camo who had a motive for the killing, namely, his consuming desire to take revenge upon Patricio for alienating the affections of his wife and maintaining illicit relations with her, both appellants repudiated their affidavits, claiming that they were involuntary and were obtained through intimidation and torture. These claims were flatly and successfully denied and refuted by the Constabulary authorities.

In a last ditch defense, appellant Camo invokes the benefits of Amnesty Proclamation 76 issued in favor of the leaders and members of the Hukbalahap organization.

The trial court correctly found that he was not entitled to the benefits of said Amnesty Proclamation for the simple reason that at the time of the killing, he was not a Hukbalahap. According to the evidence, the Hukbalahap association or branch in Sariaya where Camo resided, was organized only in 1948, and at that time Camo was already in jail for he had been captured in a raid conducted by the Constabulary in 1947. He and Manzanido were captured as common bandits operating in and around Sariaya. But even supposing for a moment that this claim that he was a member of the Hukbalahap organization were true, it has been satisfactorily proven that the killing of Patricio Matundan was not done in furtherance of the dissident movement but for purely personal reason, namely, that Camo wanted to avenge the dishonor brought upon him and his family by the deceased.

The Solicitor-General contends that Manzanido should be held liable as principal and not a mere accomplice as found by the trial court. Considering the role played by Manzanido in the tragedy, from a liberal point of view, we are inclined to agree with the trial court. He had no motive in harming Patricio. According to his affidavit he joined Camo only out of friendship, and all his participation was his calling Patricio down from his house and then accompanying the group to the scene of the killing. It is true that it was his Springfield rifle that was used by Camo in shooting Patricio to death but according to the very evidence for the prosecution, he did not offer this rifle but it was grabbed from him by Camo.

The Solicitor-General next contends that the offense committed was the complex crime of kidnapping with murder. Again, we are inclined to agree with the trial court that the crime committed was simple murder. It is true that Patricio was taken from his home but it was solely for the purpose of killing him not for detaining him illegally for any length of time or for the purpose of obtaining ransom for his release. In quite a number of cases decided by this Court where the victim was taken directly from his home to the place where he was killed, kidnapping was not considered to raise the offense to the category of a complex crime.

That the killing was committed with treachery under which may be included night time and the fact that Patricio was shot in the back and while his hands were tied, is clear. The crime is therefore that of murder. The trial court found that the killing was aggravated by the circumstance of evident premeditation. This finding is correct. For about a month previous to the killing, appellant Camo had been planning to kill Patricio. If he could not carry out his plan earlier, it was because Patricio sensing the reprisal and vengeance coming to him, purposely absented himself from his home. To offset this aggravating circumstance as regards Camo, we may consider in his favor the mitigating circumstance of outraged feeling or passion behind the tragedy. The penalty as to Camo should therefore be imposed in the medium degree, namely, reclusion perpetua. As a mere accomplice, Manzanido is entitled to a penalty one degree lower.

The indemnity of P4,000 fixed by the trial court should be raised to P6,000. With this modification, the decision appealed from is hereby affirmed, with costs against appellants. So ordered.

Paras, C.J., Feria, Pablo, Bengzon, Tuason, Bautista Angelo and Labrador, JJ., concur.