Facts:
1.
This is an appeal by Tia Fong alias Ah Sam against a judgment finding the said Ah Sam, Maximo Alcantar,
Florencio Bahala and Rufino Palarca guilty of homicide
2.
the Municipal Mayor was informed that a dead body was lying in the
coconut plantation and they found the dead body of a Chinaman named Lian Kao,
28 years of age, son of Chinaman Wong Kiat.
3.
The body was found with a belt tied around the neck, and the president
of the sanitary division was of the opinion that death was caused by
suffocation or by strangulation after the victim had become unconscious.
4.
lieutenant of the Constabulary (Chavez)
conducted the investigation. He suspected Florencio Bahala, who was
living in the neighborhood, and subjected him to a rigid questioning. He
noticed that his statements did not agree with those of his common-law wife.
After some time Chavez succeeded in convincing him, through the help of the
wife, to own his part in the crime.
5.
Bahala made a confession. The confession of Maximo Alcantar and Rufino
Palarca were also secured. So an information was filed. This was amended and the
persons accused were the three above-mentioned who has confessed, and Heracleo
Limbaco and the Appellant Tia Fong alias Ah Sam.
6.
Both Limbaco and Ah Sam denied complicity in the crime. At the trial,
the other Defendants repudiated the confessions they had made. This
notwithstanding, the court found four of them guilty. Heracleo Limbaco was acquitted
of the charge. As only Ah Sam has appealed the decision, only such facts as are
relevant to the charge against him will be considered.
7.
Sometime before the incident, Ah Sam was in partnership with Wong Kiat
and other Chinamen. Ah Sam separated from Wong Kiat and the others and
established a store of his own.
8.
A compadre of his testified that at eight o’clock in the evening of
February 20, 1950, after he had closed the store and while he was outside, he
saw Tia Fong pass by and had occasion to converse with the latter. Ah Sam
complained that his business was dying because Wong Kiat, the father of the
deceased, and his companions would not sell him bread to sell in his store. Ah
Sam after a while said it is better that Wong Kiat and Lian Kaw be whipped.
9.
The evidence mainly relied upon for the conviction of Ah Sam is his silent
participation in the reenactment of the crime by his co- accused
Florencio Bahala, Maximo Alcantar and Rufino Palarca.
10.
With the confessions of these three accused on hand, Lt. Chavez and a
subordinate of his, Sgt. Fernandez, asked the accused to reenact the crime and
photography of the acts reenacted were caused to be taken. In all the most
important incidents and details of the commission of the crime. Ah Sam took
part, although silently, under the direction of the Constabulary and his three
co- accused.
a. In Exhibit “Q” Tia Fong reenacted
his position while waiting for his co-accused.
b. In Exhibit “R” he reenacted his
own position when he and his co-accused were talking together planning the
commission of the crime.
c. In Exhibit “S” Ah Sam also
reenacted his own position or participation while he and his co-accused were
waiting for Erak (Heracleo Limbaco), who had gone out to look for the intended
victim and present him to them.
d. In Exhibit “K” Ah Sam also
reenacted his own position in relation to the other accused when Erak
accompanied the victim and the other accused followed them - Erak and the
victim.
e. Exhibit “M” represents the
positions of all the accused, Ah Sam included, as the victim fell unconscious
after he had been assaulted. In this same exhibit, Ah Sam reenacted the part he
took in untying the belt of the victim.
f. In Exhibit “N” Ah Sam played his
own part, showing the method in which he strangled the victim.
g. Exhibit “U” is the photograph of
the manner in which Appellant tied the belt which he took from the victim’s
waist and with which the latter was strangled, while
h. Exhibit “W” reenacts the
distribution of the money by him to his co-accused.
11.
The witnesses for the prosecution especially Lt. Chavez, testified that
Ah Sam took part in the reenactment of the crime and without any opposition
on his (Ah Sam’s) part. He (Ah Sam) neither opposed nor denied to take
part. On one occasion Ah Sam himself, according to Lt. Chavez, corrected his
co-accused as they were reenacting their respective positions as Exhibit “K”
was being taken, as witness the following testimony — he said that he was not
supposed to be on the right side of the picture but on the extreme left of the
road or street.
12.
Ah Sam testified that before the reenactment of the crime he was told
before hand to obey whatever instructions Sgt. Fernandez would give, and that
he tried his best to obey said instructions.
a. According to him, Sgt. Fernandez
would first read the paper (confession of his co- accused), then direct the
accused to assume the positions, and lastly ordered pictures to be taken. Ah
Sam further declared that he just followed the directions given by Sgt.
Fernandez because he had already been maltreated. The supposed maltreatment
consisted in having been boxed in the solar plexus as a result of which he
involuntarily urinated.
13.
The trial judge held that the guilt of Ah Sam was proved by his participation
in the reenactment of the crime.
14.
His counsel, on this appeal, argues that it was error for the trial
court to consider said participation as an evidence against him, because all
that the Appellant did during the entire period of the reenactment was to
remain silent and do what he was told and directed to do.
15.
Against this contention the Solicitor General argues that the Appellant
himself voluntarily took part in the reenactment and in one instance corrected
the position which he was directed to take.
Issue: WON his participation in the reenactment is can
be used as an evidence against him.
Held:YES
We have carefully reviewed the evidence, especially
the testimony of the Appellant on the circumstances leading to his
participation in the reenactment, and we find no evidence to sustain the
claim that he was forced against his will to participate therein. It is
true that Ah Sam stated that he was boxed on the solar plexus, and was later
brought to a toilet where he was compelled to put his face in the bowl, but these
supposed instances of maltreatment relate to attempts to extract a confession
from him, not to compel him to take part in the reenactment of the crime.
He stated that
Sgt. Fernandez had warned him to obey his orders in the reenactment otherwise
he would again be subject to maltreatment, but we find nothing to
corroborate the making of the supposed threat and Appellant’s willing conduct
throughout the reenactment does not evince the supposed threat. We have
searched the record in vain for any act or word of protest from Appellant,
either before the reenactment or during the entire period thereof, against his
taking part therein. Appellant’s counsel himself admits that the Appellant
was silent, doing what he was told to do.
But counsel for the Appellant contends that as the
Appellant was under arrest at the time of the reenactment, his taking part
therein should not be considered as evidence against him.
“SEC. 8. Admission by silence. — Any act or declaration
made in the presence and within the observation of a party who does or says
nothing when the act or declaration is such as naturally to call for action or
comment if not true, may be given in evidence against him.”
In one case decided by us, U. S. vs. Bay, 27 Phil.,
495, the Defendant was accused before the councilman of a barrio with having
criminally assaulted the offended party. The Defendant kept silent as the
latter explained the assault, neither admitting nor denying the imputation. At
the trial he allege that the imputation was false, but we held that if it were
so, he would have instantly and indignantly denied the imputation when made
before the councilman.
But in another case, we also said that if a Defendant
remains silent during an official investigation by a Fiscal, such silence is no
evidence of his guilt, as said official investigation was no occasion for
denying the imputation then being made against him (U. S. vs. De la Cruz, 12
Phil., 87).
There are other related principles, in connection with
the silence of an accused in criminal cases, namely, that his failure or
refusal to testify may not be taken as evidence against him (Rule 111, section
1 [c], and that he may refuse to answer an incriminating question E Rule 123,
section 79). It has also been held that while an accused is under custody his
silence may not be taken as evidence against him as he has a right to remain
silent his silence when in custody may not be used as evidence against him,
otherwise his right of silence would be illusory.
“Section 1259 (d) Silence under Arrest. Some of the
courts have held that the fact that one is under arrest and in the custody of
an officer, when he is silent under accusation, prevents his silence or the
statements themselves from being admissible against him, on the ground that
under such circumstances he is not called upon to speak. Other courts have held
that this circumstance alone does not render the evidence inadmissible, and
that an accusation of crime calls for reply even from a person under arrest or
in the custody of an officer, where the circumstances surrounding him indicate
that he is free to answer if he chooses so to do .”, (16 C.J. 633.)
“SEC. 574. Accused under Arrest or in custody. — The
authorities are divided as to the effect on the admissibility of an incriminating
statement made in the presence of an accused, and not denied by him, of the
fact that he was under arrest or in custody under a criminal charge at the time
the statement was made. According to some decisions, the mere fact of arrest,
alone, is not sufficient to render the testimony inadmissible, but such fact
deserves consideration only as one of the circumstances under which the
accusation was made, in determining whether the accused was afforded an
opportunity to deny and whether he was naturally called to do so. Another view
supported by many authorities is that the mere fact that an accused was under
arrest is sufficient to render inadmissible the fact of the failure of the
accused to deny accusatory statements made in his presence and bearing.
According to this view, it is common knowledge and belief of men in general
that silence while under arrest is most conducive to the welfare of an accused,
whether he is guilty or innocent .” (20 Am. Jur. 486.)
But the better rule is to consider the circumstances in
each case and decide the admissibility of the silence accordingly.
“(4) Certain situations in particular may furnish a
positive motive for silence without regard to the truth or falsity of the
statement. Whether the fact that the party is at the time under arrest creates
such a situation has been the subject of opposing opinions; a few Courts (for
the most part in acceptance of an early Massachusetts precedent), by a rule of
thumb exclude the statement invariably; but the better rule is to allow some
flexibility according to circumstances:
The reenactment of the crime was not a part of a
formal official investigation like one conducted by a justice of the peace or a
provincial fiscal. The reenactment was a police contrivance, designed to test the
truthfulness of the statements of the witnesses who had confessed the
commission of the offense. If the Appellant herein had not really taken part
in the commission of the crime, his immediate reaction when he became aware
that the crime was to be reenacted, he should have been to protest against the
implication of the reenactment or to refuse his indicated participation
therein.
One of the accused, Heracleo Limbaco, did not admit
participation in the crime. Like the Appellant, he did not confess yet he was
not asked to participate in the reenactment. On the other hand the Appellant
readily took part therein. If he did own participation in the offense he
should have refused, at least in the beginning, to participate in the
reenactment or to follow the directions indicated. Far from doing so, he
acquiesced and willingly took part in the reenactment as directed. If the
Appellant had the courage to refuse to own his guilt when he was boxed on the
solar plexus, or when he was forced to put his face in the toilet bowl, why did
he not have the courage to protest his participation in the reenactment before
or while it was being conducted?
It is to be noted that the implication of guilt in the
case at bar is not derived from mere silence; It is inferred from Appellant’s
silent acquiescence in participating in the reenactment of the crime. More than
mere silence, Appellant committed positive acts without protest or denial
when he was free to refuse. Had he not actually participated in the commission
of the offense for which he is charged, he would have protested being made to
take part in the reenactment thereof; he would have informed the public
officials at the time of the reenactment, or immediately prior thereto, that he
did not actually take part in the commission of the offense. We, therefore,
find that the trial court committed no error in taking into account Appellant’s
participation in the reenactment as voluntary and in considering it as evidence
against him.
The circumstances or evidence submitted against the
Appellant in this case are as follows: he was the only one among the accused
who had a motive for causing the death of Lian Kaw; had he not actually
participated in the commission of the offense he would have been able to
introduced positive evidence that he was either not present or was somewhere
else and, therefore, could not have taken part in the said crime; the
confession of his co-accused as to the reason for the killing and as to the
manner in which the offense was committed corroborates or indicates the
probability of the Appellant having participated therein; and his silent acquiescence in taking part in
the reenactment and his voluntary and ready participation therein produce
conviction as to his actual participation in the commission of the offense.
The above circumstances convince us that the Appellant
Ah Sam participated in the commission of the crime, inducing his co- accused to
help him perpetrate it, he himself actually taking direct part therein. We
find, therefore, that the trial court committed no error in finding him guilty
as charged.
The Solicitor General calls attention to the fact that
the crime committed is not mere homicide, but murder. The information charges
murder, and the facts found show that the killing of the deceased is attended
by one qualifying circumstance, that of evident premeditation.
