People of the Philippines vs. Cabasa and Ajos

A subordinate who kills a prisoner pursuant to his commander’s order is criminally liable for murder qualified by treachery, and the defense of uncontrollable fear under Article 12(6) of the Revised Penal Code must be alleged and proved by the accused and cannot be sustained where the accused had no imminent danger at the time of the killing.

Pedro Cabasa was a recognized guerrilla and detachment commander of a unit in Surup, Davao, and Ignacio Ajos was a first class private and soldier under him. Aurelio Saavedra was a civilian in barrio Tamban, Surup, Davao, whom the guerrillas suspected of pro-Japanese collaboration. The events occurred in October 1944, during guerrilla operations against Japanese forces and their alleged collaborators.

Pedro Cabasa was a recognized guerrilla and detachment commander of a unit in Surup, Davao, and Ignacio Ajos was a first class private and soldier under him. Gil Castillo and Luis Dugcoy were also members of the unit. Aurelio Saavedra lived in barrio Tamban, municipal district of Surup, Davao, with Irene Medel, his common-law wife, and her children.

On October 22, 1944, according to the prosecution, Cabasa told Ajos to go to Tamban with Gil Castillo and Luis Dugcoy to get Aurelio Saavedra and shoot him upon arrival at sitio Mugdog. Ajos carried a carbine lent by Cabasa; Dugcoy and Castillo carried rifles. Upon reaching Saavedra’s house, Ajos told Saavedra that Cabasa sent for him because he was taken to the east coast. Saavedra willingly followed. About 100 meters from the house, Ajos bound Saavedra’s hands behind his back with a rope while Dugcoy pointed his gun at him. They took Saavedra to Mugdog, about three kilometers away. There Ajos and Dugcoy led Saavedra to a bush against his protest. Ajos told Saavedra, “I am going to shoot you.” Saavedra begged Castillo for help, but Castillo said he could do nothing because he was only a private. Ajos shot Saavedra from a distance of four meters, and Saavedra dropped dead. As Ajos was about to fire another shot, Castillo prevailed upon him not to. The three covered the body with twigs, stones, and wood, returned to the barracks, and Ajos reported to Cabasa that the order had been accomplished; Cabasa warned them to keep quiet.

Ajos gave a different account. He testified that Cabasa ordered him, Castillo, and Dugcoy to arrest Saavedra and bring him to camp; Cabasa did not tell him to kill or tie Saavedra. Because Ajos did not know where Saavedra lived, Cabasa called Castillo, who was feeding the hogs downstairs, to guide them. They arrived at Saavedra’s house about 2:00 p.m. Ajos read the order of arrest to Saavedra, who expressed willingness to come along. They left about 3:50 p.m. walking in file, with Dugcoy ahead, Saavedra following Dugcoy, and Castillo behind because Saavedra was grabbing Dugcoy. Ajos fired twice in the air to warn Saavedra to stop trying to seize Dugcoy’s gun. Saavedra did not succeed because Dugcoy’s gun was slung on his shoulder and fell to the ground. As Saavedra fell to grab the gun, he started to flee, and Ajos fired at him, killing him; he was buried in the same place. Ajos also claimed Castillo had a gun but no ammunition because he was a prisoner arrested by Cabasa at Nangan.

Cabasa testified that he was a recognized guerrilla and detachment commander, and that Ajos and Dugcoy were his soldiers. He admitted ordering the apprehension of Saavedra for pro-Japanese activities but denied ordering Ajos to kill or tie him. He said Castillo was not present when he gave the order and called Castillo’s testimony about an order to shoot Saavedra false and a frame-up. He claimed Castillo and his two brothers had been caught in September 1944 in Nangan, where the brothers were under the command of Estrella, municipal chief of police of the puppet government in Surup, and that this was how Castillo became his prisoner. He admitted giving Castillo a gun but said it had no ammunition, as a military tactic to attract people to surrender to his camp. He also claimed Saavedra did not reach camp because, according to Ajos, at Lilisan Saavedra grabbed Dugcoy’s rifle, Castillo shouted for help, and Ajos fired into the air while Dugcoy and Saavedra grappled for the gun. Luis Dugcoy did not testify and was not prosecuted.

Irene Medel testified that about one week before October 22, 1944, Cabasa, while on patrol with his men, saw her alone with her children, came up to her house, embraced her, and tried to kiss her; she screamed for help, and he released her and got off the house. She said he made love to her, but she protested that she was married. The trial court did not give credence to Cabasa’s and Pedro Fabian’s testimony that Saavedra was a Japanese spy. It observed that Fabian was Irene Medel’s lawful husband and naturally disliked Saavedra; that for one year nothing was done against Saavedra and only shortly after Irene rejected Cabasa’s advances was Saavedra apprehended and killed; and that Fabian’s testimony was contradicted by Nicholas Gloshenko, who testified in rebuttal that it was the son of his servant who led the constabulary to the house of Alejandra Palma Gil where Fabian was arrested. The Supreme Court found that Saavedra was killed by Ajos in the manner and under the circumstances related by Castillo. It found that Saavedra’s hands or arms were securely bound, as affirmed by Castillo and Irene Medel; that this was a natural precaution; and that with his hands shackled and three armed men guarding him, it was unthinkable that Saavedra would dare escape or snatch the guns of his captors. It also found that Castillo was a guerrilla with ammunition, not a prisoner, because his possession of a rifle refuted the claim that he was a prisoner, and Cabasa’s and Ajos’s explanations for Castillo’s gun were foolish. It credited Castillo’s direct and positive testimony that Cabasa ordered Saavedra killed, corroborated by the fact that Saavedra was killed on the way to camp, and found that Cabasa had a motive because he had been rebuffed by Irene Medel, Saavedra’s common-law wife. It also noted Cabasa’s character as described in Castillo’s affidavit, Exhibit D, admitted without objection.

• Order Was Only to Arrest: Appellants Cabasa and Ajos maintained that Cabasa’s order was only to arrest Saavedra and bring him to camp for investigation of alleged collaboration with the Japanese; Cabasa denied ordering Ajos to kill or tie Saavedra.
• Saavedra Attempted Escape: Ajos argued that while returning to camp, Saavedra tried to wrest Dugcoy’s weapon, failed, and fled, and that Ajos fired at him only while he was running away.
• Uncontrollable Fear: Counsel for Ajos argued that because Cabasa was a feared and brutal commander whom Ajos blindly obeyed, Ajos acted under the impulse of uncontrollable fear when he obeyed Cabasa’s order to kill Saavedra and should be freed under section 6 of article 12 of the Revised Penal Code.
• Castillo Not Credible / Frame-up: Cabasa called Castillo’s testimony about the alleged order to shoot Saavedra false and a frame-up, and claimed Castillo was a prisoner, not a guerrilla, and had no ammunition.
• Saavedra Was Japanese Spy: Cabasa and Pedro Fabian attempted to establish that Saavedra was a Japanese spy and that his arrest was motivated by collaboration with the enemy.

• Order to Kill: The prosecution’s theory was that Ajos, the leader of the trio, received an order from Cabasa to kill Saavedra at sitio Mugdog.

• Order to Kill vs. Order to Arrest: Whether Cabasa ordered Ajos to kill Saavedra or merely to arrest him for investigation.
• Uncontrollable Fear: Whether Ajos is exempt from criminal liability under section 6 of article 12 of the Revised Penal Code because he allegedly acted under the impulse of uncontrollable fear of his superior, Cabasa.
• Murder and Treachery: Whether the killing of Saavedra constitutes murder qualified by treachery.
• Penalties: Whether the penalties imposed by the trial court are proper, including whether mitigating or extenuating circumstances favor Ajos.

• Order to Kill vs. Order to Arrest: Yes. The Court credited Gil Castillo’s direct and positive testimony that Cabasa ordered Ajos to shoot Saavedra, corroborated by the killing en route to camp and Cabasa’s motive.
• Uncontrollable Fear: No. The defense was not alleged or proved by Ajos, and he killed Saavedra without Cabasa present and could have disobeyed without imminent danger.
• Murder and Treachery: Yes. The killing was murder qualified by treachery because Saavedra’s hands were bound and he was shot by armed captors.
• Penalties: Modified. Cabasa was sentenced to reclusion perpetua; Ajos to an indeterminate penalty of 12 years and 1 day to 20 years of prision correctional, with accessories, P6,000 indemnity, and costs.

• Order to Kill vs. Order to Arrest: The Court found that Aurelio Saavedra was killed by Ajos in the manner and under the circumstances related by Gil Castillo. Castillo was direct and positive that Cabasa gave an order to do away with Saavedra. The very fact that Saavedra was killed on the way to the camp corroborated Castillo’s testimony, because it was hard to conceive that Ajos would have slain his prisoner if his instruction had been merely to take Saavedra for investigation, unless the discredited escape version were accepted. A mere private, obedient and meek, Ajos had no reason of his own to kill the deceased. Cabasa, unlike Ajos, had a motive to liquidate Saavedra: Cabasa had been jilted by Irene Medel, Saavedra’s common-law wife, and had been rebuffed by her about one week before the killing. The Court also considered Cabasa’s character as described in Castillo’s affidavit, Exhibit D, admitted without objection, which portrayed him as a feared and brutal commander. The defense’s claim that Saavedra was a Japanese spy was not credited by the lower court, which observed that Fabian was Irene Medel’s lawful husband and naturally disliked Saavedra, that for one year nothing was done against Saavedra and only shortly after Irene rejected Cabasa’s advances was Saavedra apprehended and killed, and that Fabian’s testimony was contradicted by Nicholas Gloshenko.
• Uncontrollable Fear: The plea of uncontrollable fear was rejected because it was not founded on any claim by Ajos himself. Ajos made no reference to acting under duress or under the impulse of uncontrollable fear for his life or safety. Fear is entirely personal and a matter of defense, lying within the peculiar knowledge of the accused, and should be alleged and proved to the satisfaction of the court by the accused. Moreover, Ajos killed Saavedra without the presence of Cabasa and could very well have disregarded Cabasa’s order without imminent danger of being subjected to punishment for disobedience. He was not under physical or moral compulsion to return to the camp.
• Murder and Treachery: The crime committed was murder qualified by treachery. Saavedra’s hands or arms were securely bound, as affirmed by Castillo and Irene Medel. With his hands shackled and three armed men to contend with, it was unthinkable that Saavedra would dare escape or snatch the guns of his captors. Ajos shot Saavedra from a distance of four meters after telling him, “I am going to shoot you,” while Saavedra was helpless and guarded.
• Penalties: Neither mitigating nor aggravating circumstances attended the commission of the offense with respect to Cabasa, but there was an extenuating circumstance in favor of Ajos with no aggravating circumstance to compensate. Cabasa was therefore sentenced to reclusion perpetua with the corresponding accessories, and Ajos to an indeterminate penalty from 12 years and 1 day to 20 years of prision correctional, also with accessories. Both were ordered to pay the heirs of the deceased, jointly and severally, P6,000 as indemnity, and each to pay one-half of the costs of both instances.

• Uncontrollable Fear under Article 12(6) of the Revised Penal Code — The defense is personal and must be alleged and proved by the accused, because fear lies within the accused’s peculiar knowledge. It cannot be based on counsel’s speculation or on the character of an alleged superior. In this case, Ajos never claimed duress; he killed Saavedra without Cabasa present and could have disregarded the order without imminent danger, so he was not under physical or moral compulsion.
• Murder Qualified by Treachery — The killing was murder qualified by treachery where the victim’s hands or arms were securely bound, he was guarded by three armed men, and he was shot from a distance of four meters after being told he would be shot. These circumstances ensured that the victim had no opportunity to defend himself and posed no risk to the assailant.
• Credibility of Witnesses and Motive — The Court gave credence to Gil Castillo’s direct and positive testimony, corroborated by the fact that Saavedra was killed on the way to camp and by Cabasa’s motive arising from his rebuff by Irene Medel. It rejected the claim that Castillo was a prisoner because he was armed with a rifle and had ammunition, and found Cabasa’s and Ajos’s explanations for Castillo’s gun foolish.
• Liability of One Who Orders a Killing — One who gives the order to kill is criminally responsible for the killing. The fact that Saavedra was killed en route to camp corroborated that Cabasa’s order was to kill, not merely to arrest, and Ajos’s blind obedience as a subordinate did not absolve him of liability.

• “It is clear in our mind that Aurelio Saavedra was killed by Ajos in the manner and under the circumstances related by Gil Castillo.” — This states the Court’s central credibility finding, accepting Castillo’s account of how Saavedra was bound and shot.
• “The very fact that Saavedra was killed on the way to the camp is a good corroboration of Castillo’s testimony.” — This explains why the Court believed Castillo’s testimony that Cabasa ordered the killing rather than a mere arrest.
• “Fear being entirely personal and matter of defense, lying within the peculiar knowledge of the subject, should be alleged and proved to the satisfaction of the court by the accused.” — This is the Court’s controlling formulation for rejecting Ajos’s uncontrollable-fear defense.
• “The crime committed is murder qualified by treachery.” — This is the Court’s ratio on the nature of the offense and the basis for the penalties imposed.

• Section 6, Article 12, Revised Penal Code — Ajos’s counsel invoked this provision to claim exemption from criminal liability for acting under the impulse of uncontrollable fear. The Court rejected the defense because Ajos did not allege or prove it, and because he killed Saavedra without Cabasa present and could have disobeyed without imminent danger.

Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Montemayor, Reyes and Torres, JJ., concur.