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[No. L-2161.    May 26, 1949]

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs.
JAMES YOUNG (alias JIMMY YOUNG, alias TENG ENG YOUNG),
defendant and appellant.

1.CRIMINAL LAW; MURDER; TREACHERY.—There is treachery when the

attack is sudden and totally unexpected and the victim never had an
opportunity to defend himself.

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2.ID; ID.; EVIDENCE; GUILT OF ACCUSED HAS BEEN PROVED BEYOND DOUBT.—
The appellant's guilt has been proved beyond doubt. The degree of his
depravity is apparent from the record. He was the leader of a band of
gangsters who hired their services to kill for a price. In the present
case he travelled all the way from Manila to Davao, by boat, by plane,
and by automobile, in the pursuit of his nefarious trade, in which he
enlisted the aid of five other killers to whom he referred as his
"followers and henchmen." The only useful purpose which the life of
such a public enemy could serve to society would be for the latter to
make of it as a deterrent exemplarity through the application of
retributory justice as ordained by law.
3.STATUTES; JUDICIARY ACT AS PROCEDURAL, MAY HAVE RETROACTIVE EFFECT.
—Republic Act No. 296 is procedural and not substantive, and
applicable to cases pending in the courts at the time of the approval of
said Act and to crimes committed before that approval.

APPEAL from a judgment of the Court of First Instance of

Davao.    Fernandez, J.
The facts are stated in the opinion of the court.
Juan B. Espolong for appellant.
Solicitor General Bautista Angelo and Assistant Solicitor
General Guillermo E. Torres for appellee.

OZAETA, J.:
The above-named appellant, who claims to have been
born in Surigao, Philippines, of Chinese father and Filipina

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mother, was accused of murder in the Court of First

Instance of Davao in an information which reads as follows:

"The  undersigned   accuses  James   Young,  alias   Jimmy   Young,

alias Teng Eng Young, of the crime of murder under article 248 of the
Revised Penal Code committed as follows:
"That on or about April 15, 1946, in the City of Davao, Philippines,
and within the jurisdiction of this Court, the above-mentioned accused,
conspiring and cooperating together with Dy Too, alias Donato
Pomarala, and Chu Chi Beng, both accused and convicted for this same
offense in criminal case No. 131 of this Court, as well as with Carlos
Ching, Ang Chu Yeng and Uy Kuet Guan, who haye also been prosecuted
but are still at large, with deliberate intent and with intent to kill, with
treachery and evident premeditation, attacked, assaulted and shot with a
45-cal. pistol one Alfonso Ang

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Liongto, thereby inflicting upon the latter gunshot wounds which

directly caused the death of the said Alfonso Ang Liongto.
"The execution of the foregoing offense was also attended by the
aggravating circumstances of (1) nighttime and (2) reward or promise.  
 Contrary to law.
"Davao City, Philippines, December 18, 1947.
"(Sgd.)    Bernardo   Teves
"Provincial Fiscal and "
City Attorney Ex-officio"

Upon his plea of not guilty he was tried, convicted, and

sentenced by Judge Enrique A. Fernandez to suffer life
imprisonment with the accessories of the law, to indemnify
the heirs of the deceased Alfonso Ang Liongto in the sum of
P2,000, and to pay the costs. From that sentence he
appealed to this court.
During the trial of the cause seven witnesses testified
for the prosecution, and the accused alone testified in his
own behalf.
There can be no doubt as to the guilt of the accused,
since he himself, in his testimony before the trial court, ad-
mitted his participation in the murder of Alfonso Ang
Liongto in consideration of a promise of reward of P50,000,
of which he claimed to have received only P10,300 at the
time of the trial. The circumstances under which the crime

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was committed, as narrated by the witnesses for the pros-

ecution and by the accused himself, are as follows:
Sometime before March 27, 1946, the appellant, who
was then in Manila, received a letter from a friend of his
named Go Tiong, of the City of Davao, "urging me to go to
Davao and bring along my followers and henchmen with
me because they needed us there." Upon receipt of that
letter the appellant took a boat bound for Leyte, bringing
along with him a former classmate of his named Ang Chiu
Eng. In Leyte, according to his own narration, he picked up
other friends of his named Carlos Ching, Chu Chi Beng,
and Uy Kuet Guan, and then proceeded to Cebu. There he
invited another henchman named Dy To, alias Donato
Pomarala, to join him, and from there the
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party, then composed of six persons headed by the accused,
took a plane for the City of Davao, where they arrived on
March 27, 1946. At the airport they were met by a
delegation of several local Chinese residents, among whom
the accused named the following: Go Tiong, Lim Chan, Lim
Peng, Go Cam, Te Chaye, Lo Bok, and Ang Tiong. From the
airport the local Chinese residents took the accused and his
companions in three jeeps to a hotel on Claveria Street,
Davao, where they stayed for four days, after which they
moved to a house on Magallanes Street. As to what
happened from the time the accused and his "followers and
henchmen" arrived in Davao on March 27, 1946, to April
16, 1946, we find the following statement of facts contained
in the printed brief filed in this court by Atty. Juan B.
Espolong, who defended the appellant in the trial court and
who continued to represent him in this court, to be
substantially correct:

"* * * Since March 27 to April 12, 1946, in the Hotel, in the

house at Calle Magallanes and in a certain house at Matina,
Davao City, Co Tiong, Chuchi Beng, Lim Chan, Lim Sui, Co Cam
and Lo Bok had conferences regarding the killing of Alfonso Ang
Liongto (t. s. n. pp. 105, 106, 107 and 108). Thus in the
conferences above mentioned those local Chinese offered the
accused-appellant and his companions the amount of P50,000 to
kill Alfonso Ang Liongto and further offered them help should
they engage in business in Davao, also assuring them immunity

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from arrest, because with the money which they had they could
bribe the authorities of Davao. And for the identification of the
victim they furnished them a picture of Alfonso Ang Liongto. They
also furnished them a list of the names of the Davao Chinese
community who were interested in the death of Ang Liongto. They
maintained and insisted that Ang Liongto ought to die for his pro-
Japanese activities during the occupation and because of the
competition in the business he offers them. In the month of April,
1946, they had fixed the date of the commission of the crime on
April 15, 1946, and in view of the fact that the accused and his
companions had not agreed as to who would work out or execute
the agreement they decided in drawing a lot, the one who draws
the No. 1 should be the killer and the one who draws the No. 2
will act as assistant. And the rest of his companions to act as
guards in the vicinity of the crime to be committed by one of the
companions of the accused-appellant. And in the drawing of the
lot they prepared six pieces of paper with their respective
numbers
28660—45

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from 1 to 6, rolled the same and placed them on the table. After the
drawing of the lot, Dy To got the paper with the No. 1 and Carlos Cheng
got the other one which bore No. 2 (t.s.n. pp. 19, 20 and 108). On the 15th
day of April, 1946, Lim Chan delivered two pistols to the accused to be
used in the commission of the crime and on the night of April 15, 1946,
[the accused] delivered the same to Dy To and Carlos Cheng about 6:00
o'clock in the evening (t.s.n. pp. 52 to 53). The accused-appellant, Ang
Chiu Eng, Chu Chi Beng, Uy Kuet Guan and some of the thirty-six
Chinese who were interested in the death of Ang Liongto, on seeing the
latter go out of his house clothed in undertrousers and take a walk in
front of his house, the accused-appellant upon instruction of the Chinese
from Davao went to the Aldoior Kestaurant to look for Dy To and Carlos
Cheng. After having been notified that Ang Liongto is in front of his
house they went to Santa Ana, in an unlighted automobile. When they
reached the place about 80 meters from the house of Ang Liongto where
some local Chinese were gathered, the local Chinese in Davao pointed to
Dy To and Carlos Cheng the place where Ang Liongto was standing,
advising them to work with caution and should approach the place one
after the other. Dy To on reaching the place about six meters from Ang
Liongto, and to be sure of the identity of the victim, called on him, 'Ang
Liongto' and when the victim looked to the rear, Dy To fired at the
deceased, hitting him at the back with the .45-caliber pistol which he was
then bringing, thus killing Alfonso Ang Liongto right on the spot (t.s.n. p.
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61). And on the same night several hours after the crime the accused-
appellant, Carlos Cheng, Chu Chi Beng and Uy Kuet Guan were arrested
by the police in the house at Magallanes Street, Davao City, while Dy To
was arrested the next day. The members of the Secret Service found in
the possession of the accused-appellant and his companions the letter of
Go Tiong written to the accused-appellant inviting him to come to Davao
to kill Ang Liongto and a list wherein appears the names of the Chinese
interested in killing Ang Liongto but the whereabouts of these docu-
ments are unknown.
"On the next day about 9:00 o'clock in the morning, that was on April
16, 1946, the accused-appellant, Ang Chiu Eng, Carlos Cheng and Uy
Kuet Guan were released. Chiu Chi Beng and Dy To were prosecuted and
subsequently convicted and sentenced to reclusion perpetua."    (Pages  5-
8,  brief  for  the  defendant-appellant.)

According to the appellant's own testimony, the Davao

Chinese who hired him and his companions gave two
reasons why they wanted to have Ang Liongto killed. He
said: "The first reason was that Ang Liongto was their
enemy because he was with the Japanese, he was a

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collaborator; the second reason was that Ang Liongto was their great
business competitor." (Page 107, t.s.n.) On cross-examination the
appellant testified in part as follows:
"Q. And whereas here you admitted your participation in the killing
of Ang Liongto, why is it that when [the] information was read to you you
did not interpose a plea of guilty and rather take chances of your life and
liberty? A. I really admit my guilt or participation in the killing of Ang
Liongto but I am sorry that those people hera in Davao who were
instrumental in the killing of Ang Liongto are not being punished. I
admit that I am also at fault but I believe that their guilt is heavier than
mine and before I came here to Davao I signed 2 affidavits and I presume
that they are also in jail already,, but when I arrived here I found out
that these people are not in jail.'”(Page 126, t.s.n.)

 Anent the foregoing observation of the appellant, it may

not be amiss to state here that the records of this court
show that since the filing of this case a separate criminal
actiori has been instituted against several other persons
involved in the murder of Ang Liongto.
In this court the appellant makes the following
assignments of error:

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"1. The lower court erred in admitting the testimony of Dy To,

the trigger man in this murder case, as a witness for the
prosecution and against his coaccused.
"2. The lower court erred in admitting nighttime as an
aggravating circumstance in the case at bar.
"3. The lower court erred in imposing the penalty of reclusion
perpetua to the accused and failed to apply to him the
Indeterminate Sentence Law.
"4. The lower court erred in not ordering the fiseaPs office to
drop the case against the accused-appellant with the end in view
of utilizing said accused-appellant as government witness in order
to bring before the bar of justice all the responsible parties in the
murder of Alfonso Ang Liongto."

 
The first assignment of error deserves no serious con-
sideration, first, because counsel for the appellant did not
interpose any objection to the testimony of Dy To during
the trial in the court below; and, second, because when the
appellant himself testified in his own behalf he not only
confirmed the testimony of Dy To but elaborated upon it

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with more details. When Dy To testified in this case he had
been convicted and sentenced in criminal case No. 131 of
the Court of First Instance of Davao for his participation in
the murder of Ang Liongto. His testimony, therefore, could
not have been given under a promise of leniency. Of what
avail would it be to the appellant to attack the
admissibility of a testimony to which he did not object in
the lower court but which on the contrary he himself con-
firmed when he testified in his own behalf?
We sustain the second assignment of error in the sense
that nighttime as an aggravating circumstance in this case
is absorbed in that of treachery, which is the proper ag-
gravating circumstance to consider. (People vs. Chan Lin
Wat, 50 Phil., 191.) There was treachery in this case
because the attack was sudden and totally unexpected and,
furthermore, the victim never had an opportunity to defend
himself. (U. S. vs. Cabiling, 7 Phil., 469; People vs.
Pengzon, 44 Phil., 224.)
In support of his third assignment of error counsel for
the appellant presents the startling argument that his
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client was a poor man who had never owned a thousand

pesos and that "a cold fifty thousand bucks in exchange of a
man's life'' was too great a temptation for him to resist. We
quote counsel's own words just to show to what extent one's
moral sense seems to have atrophied:

"The accused since birth was a poor man and a son of a poor
farmer, that since his boyhood he has never owned a thousand
pesos in his own name. Now, here comes a chance for him. A cold
fifty thousand bucks in exchange of a man's life. A simple job.
Perhaps a question of seconds' work and that would transform
him into a new man. Once in a small nipa shack, now in a palatial
mansion! This poor ignorant man blinded by the promise of
wealth, protection and stability was given to do the forbidden
deed."

Such a plea is a disgrace to the bar and an affront to the

court.
The fourth and last assignment of error hardly needs
any comment. Suffice it to say that under section 9 of Rule
115 the court may discharge a codefendant so that he
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may be a witness for the Government only under certain
conditions therein specified, among which are (1) that there
is absolute necessity for the testimony of the defendant
whose discharge is requested and (2) that said defendant
does not appear to be the most guilty—which conditions did
not obtain in this case. As a matter of fact no one ever
requested the trial court to discharge the appellant for that
purpose.
The appellant's guilt has been proved beyond doubt. The
degree of his depravity is apparent from the record. He was
the leader of a band of gangsters who hired their services to
kill for a price. In the present case he traveled all the way
from Manila to Davao, by boat, by plane, and by
automobile, in the pursuit of his nefarious trade, in which
he enlisted the aid of five other killers to whom he referred
as his "followers and henchmen." The only useful purpose
which the life of such a public enemy could serve to society
would be for the latter to make of it a deterrent exem-
plarity through the application of retributory justice as
ordained by law.

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The killing in question was attended by evident premed-

itation, which qualified the crime as murder. The crime
was aggravated by two proven circumstances: (1) It was
committed in consideration of a price, reward, or promise
and (2) with treachery. (Nos. 11 and 16, article 14, Revised
Penal Code.)
The trial court erred in conceding to appellant the miti-
gating circumstance of lack of instruction. We agree with
the Solicitor General that there is no evidence to show that.
On the other hand, his affidavits Exhibits E and G, on
every page of which he wrote his John Hancocklike
signature and from one of which (Exhibit E) it may be
inferred that he had gone to school, betray a fair degree of
instruction and a high degree of intelligence on the part of
this appellant.
In view of the presence of two aggravating
circumstances and the absence of any mitigating
circumstance, we should impose the death penalty upon the
appellant in
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accordance with article 248, in relation to No. 3 of article
64, of the Revised Penal Code.
Before the approval on June 17, 1948, of Republic Act
No. 296, the concurrence of all the Justices of the Supreme
Court was necessary for the pronouncement of a judgment
imposing the death penalty. (Section 133, Revised Ad-
ministrative Code.) Evidently to remedy the notorious
difficulty, if not virtual impossibility, of obtaining such
unanimity, and in view of the alarming rise of criminality,
and particularly of the rampancy of the crime of murder,
that for some years had prevailed (and is still prevailing) in
this country, the Congress by said Republic Act No. 296
(section 9) changed the former law by requiring only the
concurrence of at least eight Justices in the imposition of
the death penalty. After a long deliberation, the Court by a
majority vote reached the conclusion that Republic Act No.
296 is procedural and not substantive, and that it is
applicable to cases pending in the courts at the time of the
approval of said Act and to crimes committed before that
approval.
In the present case only seven Justices voted to impose
the death penalty. Mr. Justice Perfecto dissented and voted
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to impose life imprisonment only. Mr. Justice Paras and

Mr. Justice Reyes agreed with the majority that on the
merits of the case the appellant deserves the death penalty,
but, being of the opinion that Republic Act No. 296 is not
applicable to crimes committed before the approval of said
Act, they believed the death penalty cannot be imposed in
this case in view of the dissenting vote of Mr. Justice
Perfecto. Hence they were constrained to vote for the
imposition of life imprisonment only.
Therefore, for lack of the necessary number of votes to
impose the death penalty, the sentence appealed from is
affirmed, with costs.    So ordered.

Paras, Feria, Pablo, Perfecto, Tuason, Montemayor,

and Reyes, J J., concur.
Bengzon, J., concurs in the result.

OZAETA, J.:
I certify that the Chief Justice voted with the majority to
impose the death penalty.

Judgment affirmed.

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