[ G.R. No. 14476. November 06, 1919 ] 40 Phil. 385
[ G.R. No. 14476. November 06, 1919 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS, JOSE I. BALUYOT, DEFENDANT AND APPELLANT. D E C I S I O N
STREET, J.:
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. Thjs 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 8, 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:
“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.”
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 shows, 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 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. 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 to 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 drose. 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 where stood 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 £aluyot, 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 upbn seeing this shot fired, Aranjuez, instead of intervening to $ave 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 tha 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 vs. 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 janalyze 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 if the victim had been bound or blindfolded, or had been treacherously attacked from behind in a path obscured by 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 vs. Elicanal (35 Phil. Rep., 209) Justice Moreland said:
“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.”
There was present in the offense in question the generic aggravating circumstance that said offense was committed in a place where public authority wasengaged 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 vs. 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 archenemy, 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 enemigss? Si fueramos amigos, menos mal; y usted en nuestro lugar hubiera hecho lo mismo como usted ha hecho con mi compadre Velez qua 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:
“GOVERNOR Lerma. Where do you say you are going to, Mr. Baluyot? “BALUYOT. I am thinking of going to Cebu and residing therefor 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.”
Baluyot says that, upon being informed by Governor Lerma that Judge Concepcion had rendered judgment against him in fhe 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 Baluyo,t, 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 vs. Lao Chueco (37 Phil. Rep., 53), it 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 gases 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 vs. Contreras (28 Phil. Rep., 538), and Joaquin vs. 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 ma/e 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 consuited the assessors before making his decision, as in the ab • sence 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 ^erpetua with the 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 affirmance of the judgment, but on account of his absence at the time of .the promulgation of this opinion his name does not appear signed thereto. (Sgd.) C.S. ARELLANO.