CRIMINAL LAW

G.R. Nos. L-21528 and L-21529 March 28, 1969 ROSAURO REYES, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. This case is before us on appeal by certiorari, from the decision of the Court of Appeals affirming that a the municipal court of Cavite City, convicting Rosauro Reyes of the crimes of grave threats and grave oral defamation, and sentencing him, in the first case (Criminal Case No. 2594), to four (4) months and ten (10) days of arresto mayor and to pay a fine of P300, with subsidiary imprisonment in case of insolvency; and in the second case (Criminal Case No. 2595), to an indeterminate penalty of from four (4) months of arresto mayor to one (1) year and eight (8) months of prison correccionaland to pay Agustin Hallare the sum of P800 as moral damages, with costs in both cases. The petitioner herein, Rosauro Reyes, was a former civilian employee of the Navy Exchange, Sangley Point, Cavite City, whose services were terminated on May 6, 1961. In the afternoon of June 6, 1961, he led a group of about 20 to 30 persons in a demonstration staged in front of the main gate of the United States Naval Station at Sangley Point. They carried placards bearing statements such as, "Agustin, mamatayka;" "To, alla boss con Nolan;" "Frank do not be a common funk;" "Agustin, mamamataykarin"; "Agustin, Nolan for you;" "Agustin allabos con Nolan;" "Agustin, dillega, el dia di quidarinbochiquiting;" and others. The base commander, Capt. McAllister, called up Col. Patricia Monzon, who as Philippine Military Liaison Officer at Sangley Point was in charge of preserving harmonious relations between personnel of the naval station and the civilian population of Cavite City. Capt. McAllister requested Col. Monzon to join him at the main gate of the base to meet the demonstrators. Col. Monzon went to the place and talked to Rosauro Reyes and one Luis Buenaventura upon learning that the demonstration was not directed against the naval station but against Agustin Hallare and a certain Frank Nolan for their having allegedly caused the dismissal of Rosauro Reyes from the Navy Exchange, Col. Monzon suggested to them to demonstrate in front of Hallare's residence, but they told him that they would like the people in the station to know how they felt about Hallare and Nolan. They assured him, however, that they did not intend to use violence, as "they just wanted to blow off steam." At that time Agustin Hallare was in his office inside the naval station. When he learned about the demonstration he became apprehensive about his safety, so he sought Col. Monzon's protection. The colonel thereupon escorted Hallare, his brother, and another person in going out of the station, using his (Monzon's) car for the purpose. Once outside, Col. Monzon purpose slowed down to accommodate the request of Reyes. He told Hallare to take a good look at the demonstrators and at the placards they were carrying. When the demonstrators saw Hallare they shouted, "Mabuhay si Agustin." Then they boarded their jeeps and followed the car. One jeep overtook passed the car while

the other to led behind. After Hallare and his companions had alighted in front of his residence at 967 Burgos St., Cavite City, Col. Monzon sped away. The three jeeps carrying the demonstrators parked in front of Hallare's residence after having gone by it twice Rosauro Reyes got off his jeep and posted himself at the gate, and with his right hand inside his pocket and his left holding the gate-door, he shouted repeatedly, "Agustin, putangina mo. Agustin, mawawalaka. Agustin lumabaska, papatayinkita." Thereafter, he boarded his jeep and the motorcade left the premises. Meanwhile, Hallare, frightened by the demeanor of Reyes and the other demonstrators, stayed inside the house.lâwphi1.ñet On the basis of the foregoing events Rosauro Reyes was charged on July 24 and 25, 1961 with grave threats and grave oral defamation, respectively (Criminal Cases Nos. 2594 and 2595, Municipal Court of Cavite City), as follows; The undersigned City Fiscal of the City of Cavite accuses Rosauro Reyes of the crime of Grave Threats, as defined by Article 282 of the Revised Penal Code and penalized by paragraph 2 of the same Article, committed as follows: That on or about June 6, 1961, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above named accused, did then and there, willfully, unlawfully and feloniously, orally threaten to kill, one Agustin Hallare. Contrary to law. Cavite City, July 24, 1961. DEOGRACIAS S. SOLIS City Fiscal BY: (SGD.) BUEN N. GUTIERREZ Special Counsel The undersigned complainant, after being duly sworn to an oath in accordance with law, accuses Rosauro Reyes of the crime of Grave Oral Defamation, as defined and penalized by Article 358 of the Revised Penal Code, committed as follows: That on or about June 6, 1961, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above named accused, without any justifiable motive but with the intention to cause dishonor, discredit and contempt to the undersigned complainant, in the presence of and within hearing of several persons, did then and there, willfully, unlawfully and feloniously

utter to the undersigned complainant the following insulting and serious defamatory remarks, to wit: "AGUSIN, PUTANG INA MO". which if translated into English are as follows: "Agustin, Your mother is a whore." Contrary to law. Cavite City, July 25, 1961. (SGD.) AGUSTIN HALLARE Complainant Subscribed and sworn to before me this. 25th day of July, 1961, in the City of Cavite, Philippines. (SGD.) BUEN N. GUTIERREZ Special Counsel Upon arraignment, the accused pleaded not guilty to both charges and the cases were set for joint trial. On the day of the hearing the prosecution moved to amend the information in Criminal Case No. 2594 for grave threats by deleting therefrom the word "orally". The defense counsel objected to the motion on the ground that the accused had already been arraigned on the original information and that the amendment "would affect materially the interest of the accused." Nevertheless, the amendment was allowed and the joint trial proceeded. From the judgment of conviction the accused appeal to the Court of Appeals, which returned a verdict of affirmance. A motion for reconsideration having been denied, the accused brought this appeal by certiorari. Petitioner avers that the Court of Appeals erred: (1) in affirming the proceedings in the lower court allowing the substantial amendment of the information for grave threats after petitioner had been arraigned on the original information; (2) in proceeding with the trial of the case of grave threats without first requiring petitioner to enter his plea on the amended information; (3) in convicting petitioner of both offenses when he could legally be convicted of only one offense, thereby putting him in jeopardy of being penalized twice for the same offense; (4) in convicting petitioner of grave threats when the evidence adduced and considered by the court tend to establish the offense of light threats only; and (5) in convicting petitioner of grave oral defamation when the evidence tend to establish that of simple slander only. On the first error assigned, the rule is that after the accused has pleaded the information may be amended as to all matters of form by leave and at the discretion of the court when the same can be done without prejudice to the rights of the defendant (Section 13,

Rule 110, New Rules of Court). Amendments that touch upon matters of substance cannot be permitted after the plea is entered. After a careful consideration of the original information, we find that all the elements of the crime of grave threats as defined in Article 282 1 of the Revised Penal Code and penalized by its paragraph 2 were alleged therein namely: (1) that the offender threatened another person with the infliction upon his person of a wrong; (2) that such wrong amounted to a crime; and (3) that the threat was not subject to a condition. Hence, petitioner could have been convicted thereunder. It is to be noted that under the aforementioned provision the particular manner in which the threat is made not a qualifying ingredient of the offense, such that the deletion of the word "orally" did not affect the nature and essence of the crime as charged originally. Neither did it change the basic theory of the prosecution that the accused threatened to kill Rosauro Reyes so as to require the petitioner to undergo any material change or modification in his defense. Contrary to his claim, made with the concurrence of the Solicitor General, petitioner was not exposed after the amendment to the danger of conviction under paragraph 1 of Article 282, which provides for a different penalty, since there was no allegation in the amended information that the threat was made subject to a condition. In our view the deletion of the word "orally" was effected in order to make the information conformable to the evidence to be presented during the trial. It was merely a formal amendment which in no way prejudiced petitioner's rights. Petitioner next contends that even assuming that the amendment was properly allowed, the trial court committed a reversible error in proceeding with the trial on the merits without first requiring him to enter his plea to the amended information. Considering, however, that the amendment was not substantial, no second plea was necessary at all. The third and fourth issues are related and will be discussed together. Petitioner avers that the appellate court erred in affirming the decision of the trial court erred in affirming him of grave threats and of grave oral defamation when he could legally be convicted of only one offense, and in convicting him of grave threats at all when the evidence adduced and considered by the court indicates the commission of light threats only. The demonstration led by petitioner Agustin Hallare in front of the main gate of the naval station; the fact that placards with threatening statements were carried by the demonstrators; their persistence in trailing Hallare in a motorcade up to his residence; and the demonstration conducted in front thereof, culminating in repeated threats flung by petitioner in a loud voice, give rise to only one conclusion: that the threats were made "with the deliberate purpose of creating in the mind of the person threatened the belief that the threat would be carried into effect." 2 Indeed, Hallare became so apprehensive of his safety that he sought the protection of Col. Monzon, who had to escort him home, wherein he stayed while the demonstration was going on. It cannot be denied that the threats were made deliberately and not merely in a temporary fit of anger, motivated as they were by the dismissal of petitioner one month before the incident. We, therefore,

hold that the appellate court was correct in upholding petitioner's conviction for the offense of grave threats. The charge of oral defamation stemmed from the utterance of the words, "Agustin, putanginamo". This is a common enough expression in the dialect that is often employed, not really to slander but rather to express anger or displeasure. It is seldom, if ever, taken in its literal sense by the hearer, that is, as a reflection on the virtues of a mother. In the instant case, it should be viewed as part of the threats voiced by appellant against Agustin Hallare, evidently to make the same more emphatic. In the case of Yebra, G.R. No. L-14348, Sept. 30, 1960, this Court said: The letter containing the allegedly libelous remarks is more threatening than libelous and the intent to threaten is the principal aim and object to the letter. The libelous remarks contained in the letter, if so they be considered, are merely preparatory remarks culminating in the final threat. In other words, the libelous remarks express the beat of passion which engulfs the writer of the letter, which heat of passion in the latter part of the letter culminates into a threat. This is the more important and serious offense committed by the accused. Under the circumstances the Court believes, after the study of the whole letter, that the offense committed therein is clearly and principally that of threats and that the statements therein derogatory to the person named do not constitute an independent crime of libel, for which the writer maybe prosecuted separately from the threats and which should be considered as part of the more important offense of threats.

WHEREFORE this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond reasonable doubt of the crime of Grave Coercion as penalized under Art. 286 in the Revised Penal Code, and hereby sentences the said accused pursuant to the provision of Rule 64, Par. 3, to suffer SIX MONTHS OF IMPRISONMENT OF ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00 and to pay the offended party in the amount of P5,000.00 as damages, without subsidiary liability in case of insolvency. The other accused SAMUEL MORENA and ERNESTO QUIBRAL are hereby ordered ACQUITTED. The salient facts are not disputed. At about 10:00 in the evening of December 13, 1971, petitioner, then Mayor of Daet, CamarinesNorte, accompanied by two uniformed policemen, Samuel Morena and Ernesto Quibral, and six laborers, arrived in front of the stalls along Maharlika highway, the main thoroughfare of the same town. Upon orders of petitioner, these laborers proceeded to nail together rough lumber slabs to fence off the stalls which protruded into the sidewalk of the Maharlika highway. Among the structures thus barricaded were the barbershop of PascualDayaon, the complaining witness and the store belonging to one Lourdes Pia-Rebustillos. These establishments had been recommended for closure by the Municipal Health Officer, Dra. Alegre, for noncompliance with certain health and sanitation requirements.

The foregoing ruling applies with equal force to the facts of the present case.

Thereafter, petitioner filed a complaint in the Court of First Instance of CamarinesNorte against Lourdes Pia-Rebustillos and others for judicial abatement of their stalls. The complaint, docketed as Civil Case No. 2257, alleged that these stalls constituted public nuisances as well as nuisances per se. Dayaon was never able to reopen his barbershop business.

WHEREFORE, the decision appealed from is hereby reversed and petitioner is acquitted, with costs de oficio, insofar as Criminal Case No. 2595 of the Court a quo (for oral defamation) is concerned; and affirmed with respect to Criminal Case No. 2594, for grave threats, with costs against petitioner.

Subsequently, petitioner and the two policemen, Morena and Quibral, were charged with the offense of grave coercion before the Municipal Court of Daet. As already noted, the said court exonerated the two policemen, but convicted petitioner of the crime charged as principal by inducement.

G.R. No. L-62050 November 25, 1983

On appeal, the Court of Appeals affirmed in full the judgment of the trial court. Hence, the present recourse.

JOSE "PEPITO" TIMONER, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, IV DIVISION, respondents.

Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement of a public nuisance and, therefore, under lawful authority.

Petition for review of the affirmance in totoby the Court of Appeals, now the Intermediate Appellate Court, of the judgment of conviction handed down by the then Municipal Court of Daet, CamarinesNorte, in Criminal Case No. 4281, entitled People of the Philippines vs. Jose Timoner, finding petitioner guilty of the crime of grave coercion, as follows: têñ. £îhqwâ£

We find merit in this contention. Unquestionably, the barbershop in question did constitute a public nuisance as defined under Article Nos. 694 and 695 of the Civil Code, to wit: têñ.£îhqw⣠ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which:

(1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or

... IN VIEW OF THE FOREGOING, the Court hereby declares that the structures subject of this complaint as well as those occupied by the impleaded defendants are nuisances per se and therefore orders the defendants to demolish the stall and vacate the premises immediately ... But even without this judicial pronouncement, petitioner could not have been faulted for having fenced off said barbershop. Paragraph 3, Article 699 of the Civil Code authorizes the abatement of a public nuisance without judicial proceedings. têñ.£îhqwâ£

(5) Hinders or impairs the use of property.

ART. 699. The remedies against a public nuisance are:

ART. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal A private nuisance is one that is not included in the foregoing definition.

[l] A prosecution under the Penal Code or any local ordinance; or

The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had been recommended for closure by the Municipal Health Officer. In fact, the Court of First Instance of CamarinesNorte, in its decision in Civil Case No. 2257, declared said barbershop as a nuisance per-se. Thus: têñ.£îhqw⣠Under the facts of the case, as well as the law in point, there is no semblance of any legality or right that exists in favor of the defendants to build a stall and conduct their business in a sidewalk, especially in a highway where it does not only constitute a menace to the health of the general public passing through the street and also of the unsanitary condition that is bred therein as well as the unsightly and ugly structures in the said place. Moreover, even if it is claimed and pretended that there was a license, permit or toleration of the defendants' makeshift store and living quarters for a number of years does not lend legality to an act which is a nuisance per se. Such nuisance affects the community or neighborhood or any considerable number of persons and the general public which posed a danger to the people in general passing and using that place, for in addition, this is an annoyance to the public by the invasion of its rights — the fact that it is in a public place and annoying to all who come within its sphere [Baltazar vs. Carolina Midland, Ry, Co., 54 S.C. 242, 32 SB 258, cited in 11 Tolentino's Civil Code of the Philippines, p. 375; KapisananLingkodng Bayan, Inc. vs. Lacson, CA-G.R. No. 27260R, March 25, 1964; 61 O.G. 2487]. xxx xxxxxx

[2] A civil action; or [3] Abatement, without judicial proceedings. In the case at bar, petitioner, as mayor of the town, merely implemented the aforesaid recommendation of the Municipal Health Officer. Having then acted in good faith in the performance of his duty, petitioner incurred no criminal liability. Grave coercion is committed when "a person who, without authority of law, shall by means of violence, prevent another from doing something not prohibited by law or compel to do something against his will, either it be right or wrong." 1 The three elements of grave coercion are: [1] that any person be prevented by another from doing something not prohibited by law, or compelled to do something against his will, be it right or wrong; [2] that the prevention or compulsion be effected by violence, either by material force or such display of it as would produce intimidation and control the will of the offended party, and [3] that the person who restrained the will and liberty of another had no right to do so, or, in other words, that the restraint was not made under authority of law or in the exercise of a lawful right. 2 The third element being absent in the case at bar, petitioner cannot be held guilty of grave coercion. WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 19534-CR, is hereby set aside and petitioner is acquitted of the crime charged. Costs de oficio. SO ORDERED.1äwphï1.ñët G.R. No. 90423 September 6, 1991

FRANCIS LEE, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES AND PELAGIA PANLINO DE CHIN, respondents. This is a petition for review on certiorari to set aside the decision of the Court of Appeals dated June 29, 1989 which reversed the decision of the Regional Trial Court (RTC), National Capital Judicial Region, Branch 129 at Caloocan City, Metro Manila, and reinstated as well as affirmed in toto the decision of the Metropolitan Trial Court (MTC), Branch 2, same city. The RTC decision found the petitioner guilty of the crime of light coercion, the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING, the judgment appealed from is hereby modified. The accused Francis Lee is hereby found guilty beyond reasonable doubt of the crime of light coercion, as penalized under paragraph 2 of Article 287 of the Revised Penal Code and he is hereby sentenced to suffer a penalty of TWENTY (20) DAYS of ARRESTO MENOR and to pay one-third (1/3) of the costs. (p. 40, Rollo) On the other hand, the MTC decision convicted the petitioner of the offense of grave coercion, the pertinent portion of the same is hereby quoted as follows: WHEREFORE, premises considered, the Court finds the accused Francis Lee, guilty beyond reasonable doubt of the offense of Grave Coercion, as charged, defined and penalized under Art. 286 of the Revised Penal Code, and is hereby sentenced to suffer an imprisonment of THREE (3) MONTHS, of arresto mayor, medium, and to pay a fine of P250.00, with cost. The accused is further ordered to indemnify the offended party, PelagiaPaulino de Chin, by way of civil liability the sum of P5,000.00 as moral damages and the sum of P2,000.00 as exemplary damages. ... (p. 33, Rollo) The facts as stated by the respondent Court of Appeals are undisputed, thus: At about 10:00 o'clock in the morning of June 20, 1984, the complainant Maria PelagiaPaulino de Chin, 23 years old, was fetched from her house at 112 BLISS Site, 8th Avenue, Caloocan City by AtanacioLumba, a bank employee, upon the instruction of the petitioner Branch Manager Francis Lee of Pacific Banking Corporation (hereinafter referred to as bank). Upon arriving at the office of Pacific Banking Corporation located at Caloocan City, petitioner Francis Lee did not attend to her immediately. After an hour later, the petitioner confronted the complainant about a forged

Midland National Bank Cashier Check No. 3526794, which the latter allegedly deposited in the account of HonorioCarpio. During the said confrontation, the petitioner Francis Lee was shouting at her with piercing looks and threatened to file charges against her unless and until she returned all the money equivalent of the subject cashier check. Accordingly, the complainant was caused to sign a prepared withdrawal slip, and later, an affidavit prepared by the bank's lawyer, where she was made to admit that she had swindled the bank and had return the money equivalent of the spurious check. During her stay at the said bank, the complainant, who was five (5) months in the family way, was watched by the bank's employees and security guards. It was about six o'clock in the afternoon of the same day when the complainant was able to leave the bank premises. Upon the other hand, the petitioner, 37 years old, presented his version, basically a denial of the charges, to wit: he was the Branch Bank Manager of Pacific Banking Corporation. After having been informed that Midland National Bank Cashier Check No. 3526794 was dishonored for being spurious, he examined the relevant bank records and discovered that complainant Maria PelagiaPaulino de Chin was instrumental in inducing their bank to accept the subject dollar check and was also the one who withdrew the proceeds thereof, by utilizing a withdrawal slip purportedly signed by HonorioCarpio. Petitioner, thru AtanacioLumba, invited the complainant to his office. Responding to his invitation, the complainant arrived at the bank before noon of June 20, 1984, but was not attended to immediately as the petitioner had to attend to other bank clients. The complainant was merely informed about the subject fake dollar check that was deposited with said bank upon her assurance that it was genuine. The complainant was not compelled into signing the withdrawal slip, but she acted freely and voluntarily in executing her affidavit and in returning the money equivalent of the subject check. There was nothing unusual during her lengthy stay in the bank. (pp. 44-45, Rollo) The sole issue posed in this petition is whether or not the acts of petitioner in simply "shouting at the complainant with piercing looks" and "threats to file charges against her" are sufficient to convict him of the crime of grave coercion (p. 6, Rollo). Article 286 of the Revised Penal Code provides: ART. 286. Grave coercions. — The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong.

If the coercion be committed for the purpose of compelling another to perform any religious act or to prevent him from so doing, the penalty next higher in degree shall be imposed. Considering that the present case does not involve violence but intimidation, the provisions of Article 1335 of the New Civil Code on intimidation are relevant. It states: Art. 1335. ... There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind. A threat to enforce once's claim through competent authority, if the claim is just or legal, does not vitiate consent. As a general rule, the findings of facts of the Court of Appeals command utmost respect. However, such findings are disregarded if there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted that, if considered, would affect the result of the case (see San Sebastian College v. Court of Appeals, et al., G.R. No. 84401, May 15, 1991). While the appellate court emphasized the pregnancy and feminine gender of the complainant, it overlooked other significant personal circumstances which are material in determining the presence of coercion in this case. The records show that complainant is a highly educated person who is familiar with banking procedures. She is a graduate of Business Administration major in Banking and Finance from NCBA. She also finished one semester of MA in graduate school. In 1983, complainant worked with the Insular Bank of Asia and America as a bank teller (TSN, November 20, 1984, pp. 5-7; Records, pp. 96-98). Likewise, it appears that complainant actively participated in the deposit and withdrawal of the proceeds of the controversial check. We find that she told HonorioCarpio (Carpio, for short), a relative and payee of the check; to open a savings account with the Pacific Banking Corporation (Bank, for short) and accompanied him; that subsequently, she presented a Midland National Bank Cashier's check payable to Carpio in the sum of $5,200.00 to Mr.Lamberto R. Cruz (Cruz, for short), PRO Manager, Foreign Department; that she claimed that she was requested by her uncle to deposit the check for collection; that she was a bank depositor and she "knew somebody downstairs"; that she assured

Cruz that the check would be honored between banks (TSN, April 15, 1985, pp. 89-92; Records, 180-183); that on June 11, 1984, the bank, after the usual clearing period, sent out a notice to Carpio that the proceeds of the check were already credited to his account but the same was returned to the bank because the address was false or not true; that the total amount of the check in pesos was P92,557.44; that the total deposit of Carpio was P92,607.44, his initial deposit of P50.00 being added to the amount of the check; that on the same day, complainant personally inquired from the bank whether the proceeds of the check have already been credited to Carpio's account (TSN, June 11, 1985, p. 163, records, p. 163); that upon an affirmative answer, the bank records show that on that day, the complainant withdrew the sum of P12,607.00 thru a withdrawal slip purportedly signed by Carpio; that in the interim, Carpio allegedly left abroad (Annex C, p. 17, Records); that on June 13, 1984, she withdrew the sum of P80,000.44 from Carpio's account by means of a withdrawal slip allegedly signed by Carpio and then, she closed his account; that out of the said amount, she redeposited the sum of P50,000.00 to her own savings account and received in cash the remaining balance of P30,000.44; and on June 15 and 18, 1984, complainant withdrew the amounts of P2,000.00 and P18,000.00, respectively from her savings account (Exh. "3", Records, p. 15, in relation to TSN, October 8, 1985, pp. 194-195, Records, pp. 286-287). In the light of the foregoing circumstances, petitioner's demand that the private respondent return the proceeds of the check accompanied by a threat to file criminal charges was not improper. There is nothing unlawful on the threat to sue. In the case of Berg v. National City Bank of New York (102 Phil. 309, 316), We ruled that: ... It is a practice followed not only by banks but even by individuals to demand payment of their accounts with the threat that upon failure to do so an action would be instituted in court. Such a threat is proper within the realm of the law as a means to enforce collection. Such a threat cannot constitute duress even if the claim proves to be unfounded so long as the creditor believes that it was his right to do so. The Solicitor General argues that the complainant was intimidated and compelled into disclosing her time deposit, signing the typewritten withdrawal slip and the affidavit by the petitioner's threat to detain her at the bank. At this point, there is a need to make a distinction between a case where a person gives his consent reluctantly and against his good sense and judgment and where he gives no consent at all, as where he acts against his will under a pressure he cannot resist. Thus, in Vales v. Villa (35 Phil. 769, 789), We ruled: ... It is clear that one acts as voluntarily and independently in the eye of the law when he acts reluctantly and with hesitation as when he acts spontaneously and joyously. Legally speaking he acts as voluntarily and freely when he acts wholly against his better sense and judgment as when he acts in conformity with them. Between the two acts there is no

difference in law. But when his sense, judgment, and his will rebel and he refuses absolutely to act as requested, but is nevertheless overcome by force or intimidation to such an extent that he becomes a mere automaton and acts mechanically only, a new element enters, namely, a disappearance of the personality of the actor. He ceases to exist as an independent entity with faculties and judgment, and in his place is substituted another — the one exercising the force or making use of the intimidation. While his hand signs, the will which moves it is another's. While a contract is made, it has, in reality and in law, only one party to it; and, there being only one party, the one using the force or the intimidation, it is unenforceable for lack of a second party.

The question has already been answered she said she cannot leave because she is being threatened.

From these considerations it is clear that every case of alleged intimidation must be examined to determine within which class it falls. If it is within the first class it is not duress in law, if it falls in the second, it is.

A When I was about to sign the withdrawal slip I inquired from him If I signed it I can leave already but he insisted that I should not leave, Sir.

Atty. Dizon: That was during the time when she first met Mr. Lee. Court: Witness may answer.

The circumstances of this case reveal that the complainant, despite her protestations, indeed voluntarily, albeit reluctantly, consented to do all the aforesaid acts.

Q When he told you that did it not occur to you to stand up and go out of the bank?

Bearing in mind her involvement in the deposit and encashment of the check, the complainant admitted to being nervous upon being informed that the check was spurious (TSN, November 20, 1984, p. 15; Record, p. 106)

A No, Sir.

We find that complainant's lengthy stay at the bank was not due to the petitioner's threat. It was rather due to her desire to prove her innocence. Her testimony on this point is a revelation:

A He was insisting that I return the amount I have withdrawn especially on June 18 when I withdrew P18,000.00, Sir.

Q Why?

Atty. Dizon: (counsel for petitioner)

COURT:

You are always talking of signing the withdrawal slip by force, is it not that earlier you admitted that no actual force was employed upon you in connection with the signing of this document and the force that you are claiming was the alleged shouting against you coupled with the statement that you could not leave?

The question is why did you not leave and disregarded him?

A Yes, sir. Q When Mr. Lee was requiring you to sign the withdrawal slip did it not occur to you to leave the bank? Atty. Pangilinan:

A Because I cannot just leave him that way, Your Honor. Atty. Dizon: Why? What was the reason that you cannot leave him? A Because he is insisting that the responsibility of one person be my responsibility and at that time I was feeling nervous and he did not tell me to stand up and leave, Sir. (ibid, pp. 18-20, Records, pp. 109-111) In her insistence to clear up her name, it is not farfetched for Us to think that the complainant voluntarily but grudgingly returned the money to show good faith. Thus, it

was she who informed the petitioner about the existence of the RCBC Time Deposit Certificate (Exh. "A", pp. 4-5, Records). The allegation that she did so because of petitioner's threats came from the complainant herself. She has not been able to present any other witness to buttress her claim. Further, We find that contrary to complainant's allegations in her affidavit (ibid, p. 5) it was not the petitioner who suggested the encashment of the RCBC Time Deposit Certificate but her sister; and that again, it was not the petitioner who agreed to the sister's suggestion but Cruz, the PRO Manager, Foreign Department of the bank (TSN, January 8, 1985, pp. 40-41, Records, pp. 131-132). Moreover, while complainant claimed that her freedom of movement was restrained, she, however, was able to move about freely unguarded from the office of the petitioner situated at the ground floor to the office of Cruz at the mezzanine floor where her sister found her (ibid, pp. 39- 40, Records, pp. 130-131). Undoubtedly, during that time, there were many bank clients who transacted business with the bank (TSN, November 20, 1984, p. 21; Records, p. 112). The bank security guards then were at their posts. Complainant herself admitted that they manifested no overt acts to prevent her from leaving despite the alleged loud threats of the petitioner (ibid, pp. 20- 21, Records, pp. 111-112) which could be heard considering that the door to petitioner's office was kept open (TSN, October 8, 1985, p. 184, Records, p. 276). Given such atmosphere, the complainant still did not leave the bank. The respondent court cited the prepared typewritten withdrawal slip and the nonpresentation of the complainant's passbook as indicators of her involuntary acts. We disagree. The petitioner testified that the general rule was that the bank requires the presentation of the passbook whenever withdrawals are made. However, there was an exception to this rule, i.e. when the depositor is a regular customer in depositing or withdrawing money in the bank (TSN, October 8, 1985, pp. 189-190, Records, pp. 281282). The prosecution failed to submit evidence to rebut his contentions. Besides, the trial court's conclusion that the withdrawal slip was typewritten was without basis considering that the complainant merely averred that the withdrawal slip was already prepared when she signed it (Exh. "A", Records, p. 4). We also take exception to the following ruling of the appellate court: It must be noted that the position of a bank manager is one of prestige and dignity and when the said bank was cheated or swindled it certainly reflects on the capability and efficiency of the manager and one can just imagine the kind of mental attitude and feeling of anger the latter would have towards the alleged swindler. Shouting, raising of voice and dagger looks are common characteristics of an angry man and that was what accused Lee exhibited to a fragile weaker sex and pregnant offended party. It would be natural to get angry with someone who had victimized

you. Naturalness, however is not always righteous. It is like taking the law into your hands and that was what the accused Lee did. (CA Decision, pp. 11-12, Rollo, pp. 52-53) This pronouncement creates an impression that the petitioner had made a personal case out of the situation. However, the evidence does not support this view. We find that at the time the check was deposited and encashed, the petitioner was then on leave (TSN, June 11, 1985, p. 156; Records, p. 248). Under this circumstance, it is not fair to consider the bank's mistake in accepting and paying the check as the petitioner's mistake which could militate against his efficiency. The petitioner attributed the mistake in the payment of the forged check to the usual risks in banking business. He stated: Atty. Pangilinan, Private prosecutor (authorized by the Fiscal to prosecute the case in the latter's stead) Q So you no longer consider him (Carpio) as entitled in (sic) the proceeds of the chek (sic) and therefore at that point of (sic) time you will now concede that the payment made by you to him was a big mistake? A When we were asking for the respondent and we were locating HonorioCarpio and we cannot locate him, I consider that a mistake, Sir. Q It was a big mistake as a matter of fact? A When it comes to the falling of the business considering the big amount I would say big mistake but only a mistake, it was a usual risk in banking business, Sir. Q But of course Mr. Lee, being a mistake that mistake will harm and tense your personality as a Bank Manager? A It is up to our Manager to decide but when it comes to other transactions I am handling Three Million plus and considering that check I don't think with all modesty it will affect me, Sir. Q But you are called upon to try to recover any money which was in your judgment was unlawfully taken from you by anybody

A When it comes to procedure I don't think it was unlawfully taken, as a matter of fact it was our bank who credited this account, Sir.

The complainant proferred excuses for her action. For one, she claimed that her sister's presence helped her recover her composure (TSN, November 20, 1984, p. 29, Records, p. 120).

Q So it is your bounded (sic) duty to recover money which was paid to someonelse (sic) which payment is not due to him, am I correct?

We are not persuaded. If indeed she had recovered her composure because of her sister's presence, she could have just left the premises in a huff without encashing the RCBC Time Deposit Certificate or if they (complainant and sister) were already at the RCBC, they could have desisted from encashing the check and then could have left for home notwithstanding the alleged presence of Mr.Lumba who was no longer in his own bank but among the RCBC clients or she could have refused to sign the affidavit which was handed to her first before the promissory note. Yet, she did neither of these logical possibilities.

A It is the duty of our lawyer to recover it, Sir. Q Is it not a fact that your lawyer is only your agent? Atty. Dizon: I think we are going too far, it has nothing to do with the particular incident subject matter of the criminal offense. Court: I see the point of the defense but the witness is very intelligent, I can see the point of counsel, because in order not to effect his integrity he resorted to this, for example in case of a bank employee who stole P500.00 and the other one is P200.00, it could have the same mistake which is supposed to be admonished by removal. You answer. A Yes that is the same case whether it is small or big but when it comes to the Manager the Head Office is very understanding when it comes to bogus checks and of course my work is a supervisory. Sir. (ibid, pp. 170-171; Records, pp. 263-264) The most telling proof of the absence of intimidation was the fact that the complainant refused to sign the promissory note in spite of the alleged threats of the petitioner (TSN, January 8, 1985, p. 48; Records, p. 139). American authorities have declared that "(t)he force which is claimed to have compelled criminal conduct against the will of the actor must be immediate and continuous and threaten grave danger to his person during all of the time the act is being committed. That is, it must be a dangerous force threatened 'in praesenti.' It must be a force threatening great bodily harm that remains constant in controlling the will of the unwilling participant while the act is being performed and from which he cannot then withdraw in safety." (State v. Hood, 165 NE 2d, 28, 31-32, Emphasis ours).

Secondly, she averred that she refused to sign the promissory note because she was able to read its contents unlike the affidavit and she realized that she would have a great responsibility to return the amount taken by Carpio (ibid, pp. 27-28, Records, pp. 118119). Such an excuse is flimsy and weak. It is strange that complainant's sister, who was with her, failed to corroborate her statement that she was denied the opportunity to read the affidavit. Her bare assertion simply confirms the voluntariness of her actions. All her disputed acts were geared towards proving her good faith. Complainant was willing to return the sum of P48,000.00 she took since it was only up to this amount where her involvement lies. However, as soon as she realized that she would have the enormous task of reimbursing the bank the balance of the proceeds of the forged check allegedly taken by Carpio, she refused to cooperate any further. Notwithstanding the alleged threats of petitioner, she did not budge. Thus, We find it as a logical consequence that she merely asked for the receipt of the P18,000.00 she deposited rather than the cancellation of her earlier withdrawal. On this point, complainant claimed that after her refusal to sign the document, she no longer insisted on the return of the money because she felt that it was the only way she could leave the bank premises (TSN, November 20, 1984, p. 31, Records, p. 120). This pretense, however, was belied by her subsequent actuations. We find that she and her sister left the bank unescorted to eat their snack; that they were required by the petitioner to come back; and that they decided not to eat but instead went home (TSN, November 20, 1984, pp. 31-32, Records, pp. 122-123 and January 8, 1965, pp. 49-50, Records, pp. 140-141). With such behavior, We are at a loss to understand how coercion could attach in this case. Obviously, the complainant has not been cowed into submission. Against this backdrop, We hold that coercion did not exist in this case. Consequently, the petitioner should be acquitted. ACCORDINGLY, the decision appealed from is hereby REVERSED and a new one hereby entered ACQUITTING the accused of the crime of grave coercion.

SO ORDERED. G.R. No. 102070 July 23, 1992 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DAVID A. ALFECHE, JR., Presiding Judge, Branch 15, REGIONAL TRIAL COURT, Capiz, respondent. Which court has jurisdiction over cases involving a violation of Article 312 of the Revised Penal Code where the intimidation employed by the accused consists of a threat to kill? This is the issue in this case. Upon a complaint for Grave Threats and Usurpation of Real Property filed against RupertoDimalata and Norberto Fuentes, and after the appropriate preliminary investigation wherein Dimalata presented evidence showing that he is a successor-ininterest of the alleged original owner of the land, and that the threat was established to have been directed against the complainants' tenant-encargado, Assistant Provincial Prosecutor Juliana C. Azarraga of the Office of the Provincial Prosecutor of Capiz handed down a Resolution, duly approved by the Provincial Prosecutor, finding prima facie evidence of guilt for the crime charged. 1The complainants are co-owners of the parcel of land allegedly usurped. On 5 July 1991, Assistant Provincial Prosecutor Azarraga filed the corresponding Information 2 for "Usurpation of Real Rights In Property defined and penalized under Article 312 in relation to Article 282 of the Revised Penal Code" with the Regional Trial Court of Capiz. It was docketed as Criminal Case No. 3386 and was raffled to Branch 15 thereof. The Information reads as follows: The undersigned, with the prior authority and approval of the Provincial Prosecutor, accuses RUPERTO DIMALATA and NORBERTO FUENTES of the crime of Usurpation of Real Rights in Property defined and penalized under Article 312 in relation to Article 282 of the Revised Penal Code, committed as follows: That sometime in the month of November, 1990, at Brgy. Cabugao, Municipality of Panitan, Province of Capiz, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, by means of violence against or intimidation of persons, did then and there wilfully, unlawfully and feloniously enter, possess and occupy a portion of Lot No. 3000, Panitan Cadastre,

belonging to and owned in common by Teresita Silva and the latter's brothers and sisters, after threatening to kill the tenant-encargado if the latter would resist their taking of the portion of the land, and thereafter, plowed, cultivated and planted palay on said portion of land to the exclusion of the above-named owners thereof who, therefore, were prevented from appropriating the property's produce or earning profits therefrom from the time of the said usurpation by accused up to the present to the damage and prejudice of the said Teresita Silva and her co-owners. CONTRARY TO LAW. On 17 July 1991, respondent Judge, as Presiding Judge of Branch 15 of the court below, dismissed the case motuproprioon the ground of lack of jurisdiction considering that "the crime committed by the accused falls under Article 312 of the Revised Penal Code and the violence or intimidation by the accused is (sic) a means to commit it or a mere incident in its commission, hence, the threat is absorbed by the crime charged," and considering that "the impossable (sic) fine as penalty is from P200.00 to P500.00" because the value of the gain cannot be ascertained. The order of dismissals 3 reads as follows: Upon personal examination and evaluation of the affidavit of the complainant, annexes and the resolution in support of the information, the crime committed by the accused falls under Article 312 of the Revised Penal Code and the violence or intimidation by the accused is (sic) a means to commit it or a mere incident in its commission, hence, the threat is absorbed by the crime charged. Under above (sic) facts, an (sic) act of the accused was not a means to commit the other or by their single act, it resulted to (sic) two or more offenses thereby making paragraph 1 of Article 282 the basis in imposing the penalty. In fine, the act of the accused as alleged could not be a complex crime under Article 312 in relation to Article 282. One is a distinct crime from the other with separate elements to prove in case of prosecution. On the basis of the allegations of the information the value of the gain incurred for the act of violence or intimidation executed by the accused cannot be ascertained, hence the impossable (sic) fine as penalty is from P200 to P500 which is below the jurisdiction of this court. For lack of jurisdiction over the case the herein information is dismissed.

Assistant Prosecutor Azarraga filed a motion to reconsider the above order 4 alleging therein that it is true that the crime charged is not a complex crime and if mention is made of Article 282, it is because "the penalty of the crime defined under Article 312 is dependent on Article 282. Article 312 'borrows' the pertinent provision on penalty from Article 282, because Article 312 does not provide a penalty" as "Article 312 expressly provides that the penalty for the violence shall likewise be imposed in addition to the fine." In the instant case, the intimidation consists of the threat to kill the encargado, penalized under Article 282 of the Revised Penal Code; considering that the accused attained their purpose, the penalty imposable thereunder is that which is one degree lower than that prescribed by law for the crime they had threatened to commit — homicide. In his Order of 24 July 1991, 5 respondent Judge denied the motion for reconsideration. The order reads: This refers to the motion for reconsideration on (sic) the order of this court dated July 17, 1991, dismissing the case for lack of jurisdiction over the case as charged in the information. The legal basis of the dismissal is founded on the fact that paragraph 1 of Article 282, and Article 312, of the Revised Penal Code, are separate and distinct offenses. They could not be made a complex crime. Both are simple crimes where only one juridical right or interest is violated. Neither is Article 312 a special complex crime. The mere circumstance that the two crimes may be so related does not make them a special complex crime or be treated (sic) like one for the purpose of imposing the penalty. Seemingly, the information charges two (2) separate and distinct crimes, one under paragraph 1, Article 282 and the other under Article 312, of the Revised Penal Code. Close examination reveals that the violence or intimidation by the accused as alleged therein is a means to commit the crime under Article 312 or a mere incident, in its commission. Under the premises, the test of jurisdiction of the court over the case is the impossable (sic) penalty under Article 312. Above premises considered, the motion for reconsideration is denied. SO ORDERED Hence, this petition was filed by Assistant Provincial Prosecutor Azarraga for and in behalf of the People of the Philippines against respondent Judge to whom is imputed the commission of grave abuse of discretion amounting to lack of jurisdiction for dismissing the criminal case. In support thereof, it is argued that: (a) respondent Judge erred in not considering the penalty prescribed under Article 282 of the Revised Penal Code as the basis for the imposable penalty in the crime defined in Article 312 thereof, and (b) the crime charged in the information is not complexed with Article 282 by the mere

allegation in the caption of the information that it is a prosecution under said Article 312 in relation to Article 282. Before acting on the petition, this Court required the Office of the Solicitor General to comment on the petition filed by the Assistant Provincial Prosecutor. 6 In its Comment 7filed on 13 November 1991, the Office of the Solicitor General, while observing that the Assistant Provincial Fiscal lacks the authority to file the instant petition as only the Solicitor General is authorized by law to represent the People of the Philippines in cases this nature, declares, nevertheless, that the petition is impressed with merit and, consequently, it ratifies the same and prays that it be admitted, given due course and the questioned orders of the respondent Judge be reversed. It, however, urges that the Assistant Provincial Prosecutor be advised to be more circumspect in filing cases of this nature with this Court without the intervention of, or prior authorization from, the Solicitor General. In sustaining the position of the Assistant Provincial Prosecutor, the Office of the Solicitor General argues that "in prosecution for Usurpation of Real Property as provided for in Art. 312 of the Revised Penal Code, the over-all penalty, imposable on the accused is determined not only by the penalty provided therein but also by the penalty incurred for the acts of violence executed by him . . . ." The accused in Crim. Case No. 3386 committed acts of violence an the complainant's tenant. The violent acts with which the accused were charged in attaining their wishes constituted threats to kill InocencioBorreros, if the latter prevented or prohibited both accused in (sic) taking possession of the lot in question. Hence, accused's threats on the life of Borreros may be considered as the 'violence or intimidation of persons' mentioned in Art. 312, supra, as the means by which accused took possession of the lot in question. And, under Art. 282, the imposable penalty for the threatening act of both accused — to kill Borreros — is one (1) degree lower than that prescribed by law for the crime accused threatened to commit — homicide; hence, that additional penalty imposable on both accused isprision mayor minimum toprision mayor maximum, which is well within the jurisdiction of (sic) Regional Trial Court. Acting on the Comment of the Office of the Solicitor General, this Court admitted the petition and required respondent Judge to file his Comment thereon, which he complied with on 9 December 1991. 8 Defending his challenged orders, respondent Judge argues that: (a) only the crime of usurpation of real property is charged in the information; the violence against or intimidation of persons alleged therein is an element of the crime charged; it cannot constitute a distinct crime of grave threats or give rise to the complex crime of usurpation of real property with gave threats as basis for determining the jurisdiction of the court; (b) the clause "in addition to the penalty incurred for the acts of violence executed by him" does not refer to Article 282 of the Revised Penal Code; both Articles 312 and 282 are distinct offenses where only one juridical interest is violated; if ever there are resultant offenses arising from the acts of violence of the accused in their occupation of the real property or usurpation of real rights over the same, they shall be

subject to other criminal prosecutions not necessarily under Article 282. He further claims that although not dwelt upon in his order of dismissal, there is another ground for the dismissal of the case; this ground is the failure to allege intent to gain in the information, an essential element of Article 312. On 29 January 1992, this Court required the Assistant Provincial Prosecutor to file a Reply to the respondent's Comment. Considering the appearance of the Office of the Solicitor General, she moved to be excused from complying with the sale. The Office of the Solicitor General subsequently filed the Reply. This Court thereafter resolved to give due course to the petition. Article 312 of the Revised Penal Code provides: Art. 312. Occupation of real property or usurpation of real rights in property. — Any person who, by means of violence against or intimidation of persons, shall take possession of any real property or shall usurp any real rights in property belonging to another, in addition to the penalty incurred for the acts of violence executed by him, shall be punished by a fine of from 50 to 100 per centum of the gain which he shall have obtained, but not less than 75 pesos. If the value of the gain cannot be ascertained, a fine of from 200 to 500 pesos shall be imposed. The Article is not as simple as it appears to be. What is meant by the phrase "by means of violence against or intimidation of persons" and the clause "in addition to the penalty incurred for the acts of violence executed by him"? What penalty should be made the basis for determining which court shall acquired jurisdiction over a case involving a violation of the said Article? An inquiry into the nature of the crime may yield the desired answers. The offense defined in this Article is one of the crimes against property found under Title Ten, Book Two of the Revised Penal Code, and is committed in the same manner as the crime of robbery with violence against or intimidation of persons defined and penalized in Article 294 of the same Code. The main difference between these two (2) crimes is that the former involves real property or real rights in property, while the latter involves personal property. 9In short, Article 312 would have been denominated as robbery if the object taken is personal property. Accordingly, the phrase "by means of violence against or intimidation of persons" in Article 312 must be construed to refer to the same phrase used in Article 294. There are five (5) classes of robbery under the latter, namely: (a) robbery with homicide (par. 1);

(b) robbery with rape, intentional mutilation, or the physical injuries penalized in subdivision 1 of Article 263 (par. 2); (c) robbery with the physical injuries penalized in subdivision 2 of Article 268 (par. 3); (d) robbery committed with unnecessary violence or with physical injuries covered by subdivisions 3 and 4 of Article 263 (par. 4); and (e) robbery in other cases, or simple robbery (par. 5), where the violence against or intimidation of persons cannot be subsumed by, or where it is not sufficiently specified so as to fall under, the first four paragraphs. 10 Paragraphs one to four of Article 294 indisputably involve the use of violence against persons. The actual physical force inflicted results in death, rape, mutilation or the physical injuries therein enumerated. The simple robbery under paragraph five may cover physical injuries not included in paragraphs two to four. Thus, when less serious physical injuries or slight physical injuries are inflicted upon the offended party on the occasion of a robbery, the accused may be prosecuted for and convicted of robbery under paragraph five. 11 It seems obvious that intimidation is not encompassed under paragraphs one to four since no actual physical violence is inflicted; evidence then, it can only fall under paragraph five. But what is meant by the word intimidation? It is defined in Black's Law Dictionary 12as "unlawful coercion; extortion; duress; putting in fear". To take, or attempt to take, by intimidation means "willfully to take, or attempt to take, by putting in fear of bodily harm". As shown in United States vs. Osorio, 13material violence is not indispensable for there to be intimidation; intense fear produced in the mind of the victim which restricts or hinders the exercise of the will is sufficient. In an appropriate case, the offender may be liable for either (a) robbery under paragraph 5 of Article 294 of the Revised Penal Code if the subject matter is personal property and there is intent to gain or animus furandi, or (b) grave coercion under Article 286 of said Code if such intent does not exist. 14

In the crime of grave coercion, violence through force or such display of force that would produce intimidation and control the will of the offended party is an essential ingredient. 15

In the crime of Grave Threats punished under Article 282 of the Revised Penal Code, intimidation is also present. However, this intimidation, as contra-distinguished from the intimidation in paragraph 5, Article 294 or Article 286 — which is actual, immediate and personal — is conditional and not necessarily personal because it may be caused by an intermediary. 16 Paragraphs one to five of Article 294 are single, special and indivisible felonies, not complex crimes as defined under Article 48 of the Revised Penal Code. 17 The penalties

imposed do not take into account the value of the personal property taken, but the gravity of the effect or consequence of the violence or intimidation. Article 312 may also be considered as defining and penalizing the single, special and indivisible crime of occupation of real property or usurpation of real rights in property by means of violence against or intimidation of persons. It is likewise not a complex crime as defined under Article 48. However, while Article 294 provides a single penalty for each class of crime therein defined, Article 312 provides a single, albeit two-tiered, penalty consisting of a principal penalty, which is that incurred for the acts of violence, and an additional penalty of fine based on the value of the gain obtained by the accused. This is clear from the clause "in addition to the penalty incurred for the acts of violence executed by him." For want of a better term, the additional penalty may be designated as an incremental penalty. What Article 312 means then is that when the occupation of real property is committed by means of violence against or intimidation of persons, the accused may be prosecuted under an information for the violation thereof, and not for a separate crime involving violence or intimidation. But, whenever, appropriate, he may be sentenced to suffer the penalty for the acts of violence and to pay a fine based on the value of the gain obtained. Thus, if by reason or on the occasion of such occupation or usurpation, the crime of homicide, or any of the physical injuries penalized in either subdivisions 1 or 2 of Article 263 is committed; or when the same shall have been accompanied by rape or intentional mutilation; or when, in the course of its execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by subdivisions 3 and 4 of Article 263; or when it is committed through intimidation or through the infliction of physical injuries not covered by subdivisions 1 to 4 of Article 263 of the Revised Penal Code, i.e., physical injuries penalized under Articles 265 and 266 of the Revised Penal Code, the accused may be convicted for the violation of Article 312. However, he shall be sentenced: (a) to suffer the penalty for homicide, rape, intentional mutilation and physical injuries provided under subdivisions 1 to 4 of Article 263, other physical injuries 18 or for the intimidation, which may fall under Article 282 (Grave Threats) or Article 286 (Grave Coercion) of the Revised Penal Code, as the case may be, and (b) to pay a fine based on the value of the gain obtained by him, which shall be an amount equivalent to 50 to 100 per centum of such gain, but in no case less than seventy-five (P75.000) pesos, provided, however, that if such value cannot be ascertained, the fine shall be from 200 to 500 (P200.00 to P500.00) pesos. Respondent Judge then was wrong in his two (2) inconsistent propositions. This Court cannot agree with the first which postulates that the threat was the means employed to occupy the land and is therefore absorbed in the crime defined and penalized in Article 312. If that were the case, the clause "in addition to the penalty incurred for the acts of violence executed by him "would be meaningless. As earlier explained, intimidation is a form of violence which may come in the guise of threats or coercion. Besides, the peculiar theory of absorption would result in an absurdity whereby

a grave or less grave felony defined in paragraph 1 of Article 282 and punished by an afflictive correctional penalty 19 consisting of the deprivation of liberty, would be absorbed by a crime (Article 312) penalized only by a fine. Neither can this Court accept his second proposition that Article 282 and Article 312 refer to two (2) separate crimes, both of which "are simple crimes where only one juridical right or interest is violated." As already stated, the crime of occupation of real right in property is a single, special and indivisible crime upon which is imposed a two-tiered penalty. Also, such a proposition obfuscates the first proposition and ignores the distinction between the two Articles. Article 286 is a crime against personal security while Article 312 is a crime against real property or real rights thereon. It does not, however, necessarily follow that just because the respondent Judge is wrong, the petitioner is correct. This Court finds the proposition of petitioner similarly erroneous and untenable. As earlier stated, the complainants in the case are the co-owners of the lot and not the tenant-encargado who was the person threatened. The latter was in actual physical possession of the property for, as found by the investigating prosecutor: . . . This lot was tenanted by InocencioBorreros after the latter was installed thereat by Teresita Silva herself. Lot No. 3000 is an agricultural land devoted to palay. 20 Accepting this to be a fact and without necessarily inquiring into the effects of P.D. No. 27 and R.A. No. 6657 on such tenancy, the tenant has, at the very least, a real right over the property — that of possession — which both accused were alleged to have usurped through the threat to kill. Borreros is, therefore, the offended party who was directly threatened by the accused; while the information expressly states this fact, Borreros is not, most unfortunately, made the offended party. The information does not even suggest that the accused threatened complainants or their families with the infliction upon their persons, honor or property of any wrong amounting to a crime so as to bring the former within the purview of Article 282 of the Revised Penal Code. At most, the liability of the accused to the complainants would only be civil in nature. Hence, to the extent that it limits the offended parties to just the co-owners of the property who were not even possession thereof, the information in question does not charge an offense. 21 It may, therefore, in dismissed in accordance with Section 3 (a), Rule 117 of the Rules of Court. Considering, however, that both accused have not yet been arraigned, the information may be accordingly amended to include the tenant as the offended party. This of course is on the assumption that the accused usurped the tenant's real right with intent to gain or with animus furandi; for without such intent, he could only be charged with coercion. 22In so holding, this Court does not preclude the owner of a piece of property from being the offended party in the crime of occupation of real property or usurpation of real rights in property by means of intimidation consisting of a threat, under Article 282, provided, however, that all the elements thereof are present. In such a case, the penalty imposable upon the accused would be the penalty prescribed therein

plus a fine based on the value of the gain obtained by the accused. As stated earlier, intimidation as found in Article 312 could result in either the crime of grave threats under Article 282 or grave coercion under Article 286 of the Revised Penal Code. Thus, if complainants were in fact the parties threatened and paragraph 1 of Article 282 is applicable, 23the Regional Trial Court would have exclusive original jurisdiction over the offense charged because the corresponding penalty for the crime would beprision mayor, which is the penalty next lower in degree to that prescribed for the offense threatened to be committed homicide — which is reclusion temporal, 24and a fine based on the value of the gain obtained by the accused. 25 WHEREFORE, the Orders of respondent Judge of 17 July 1991 and 24 July 1991 in Criminal Case No. 3386 are hereby SET ASIDE. The petitioner may amend the information as suggested above; otherwise, it should be dismissed not for the reason relied upon by the respondent Judge, but because it does not charge an offense. No pronouncement as to costs. SO ORDERED.

G.R. No. L-40577 August 23, 1934 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PROCOPIO REYES, POLICARPIO NACANA, FLORENTINO CLEMENTE, HERMOGENES MALLARI, MARCELINO MALLARI, CASTOR ALIPIO, and RUFINO MATIAS, defendants-appellants. Appellants were convicted in the Court of First Instance of Tarlac of a violation of article 133 of the Revised Penal Code, which reads: ART. 133. Offending the religious feelings.—The penalty of arresto mayor in its maximum period toprisioncorreccionalin its minimum period shall be imposed upon anyone who, in a place devoted to religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful. In the barrio of Macalong, municipality of La Paz, Province of Tarlac, there is a chapel where it is customary to hold what is known in local parlance as apabasa. As stated by the lower court, "the termpabasais applied to the act of the people, professing the Roman Catholic faith," of assembling, during Lent, "at a certain designated place, for the purpose of reading and the life, passion and death of Jesus Christ. A book known as the 'Vida, Pasion y Muerte de Jesucristo', which contains a fun account in verse of the life,

passion and death of Jesus Christ, is used in this celebration." Thepabasain Macalong used to begin on Palm Sunday and continue day and night, without any interruption whatsoever, until Good Friday. As usual, refreshment and food were served in the yard adjoining the chapel, and the expenses incidental thereto were defrayed by different persons. While thepabasa was going on the evening of April 10, 1933, between 11 and 12 o'clock, the defendants Procopio Reyes, PolicarpioNacana, Florentino Clemente, HermogenesMallari, MarcelinoMallari, Castor Alipio, and RufinoMatias arrived at the place, carrying bolos and crowbars, and started to construct a barbed wire fence in front of the chapel. Alfonso Castillo, who was chairman of the committee in charge of thepabasa, tried to persuade them to refrain from carrying out their plan, by reminding them of the fact that it was Holy Week and that it was highly improper to construct a fence at that time of the evening. A verbal altercation ensued. When the people attending thepabasa in the chapel and those who were eating in the yard thereof noticed what was happening, they became excited and left the place hurriedly and in such confusion that dishes and saucers were broken and benches toppled over. Thepabasa was discontinued and it was not resumed until after an investigation conducted by the chief of police on the following morning, which investigation led to the filing of the complaint appearing on pages 1 and 2 of the record. Many years ago the Clemente family by informal donation gave the land on which the old chapel was erected. When it was destroyed, the present chapel was erected, and there is now a dispute as to whether the new chapel is not now impinging on the land that belongs to the Clemente family. The appellants are partisans of he Clemente family. It is to be noted that article 133 of the Revises Penal Code punishes acts "notoriously offensive to the feelings of the faithful." The construction of a fence, even though irritating and vexatious under the circumstances to those present, is not such an act as can be designated as "notoriously offensive to the faithful", as normally such an act would be a matter of complete indifference to those not present, no matter how religious a turn of mind they might be. The disturbance or interruption of any ceremony of a religious character under the old Penal Code was denounced by article 571 and was punished by arrest from one to ten days and a fine of from 15 to 125 pesetas. But this article was omitted from the Revised Penal Code and the offense, if any was committed by the appellants, is denounced in article 287 as an "unjust vexation" and punished by arrestomenoror a fine ranging from 5 to 200 pesos or both. It is urged upon us that the act of building a fence was innocent and was simply to protect private property rights. The fact that this argument is a pretense only is clearly shown by the circumstances under which the fence was constructed, namely, late at night and in such a way as to vex and annoy the parties who had gathered to celebrate

thepabasa and is further shown by the fact that many of the appellants saw fit to introduce as their defense a false alibi. Appellants are therefore acquitted of a violation of article 133 of the Revised Penal Code but found guilty of a violation of article 287 of the Revised Penal Code and are sentenced each to a fine of P75 with subsidiary confinement in case of insolvency, together with the costs in both instances. So ordered. G.R. No. L-28865 February 28, 1972 NICANOR NAPOLIS, petitioner, vs. COURT OF APPEALS, and THE PEOPLE OF THE PHILIPPINES, respondents. Victor Arichea for petitioner. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Conrado T. Limcaoco for respondents.

CONCEPCION, C.J.:p Appeal taken by Nicanor Napolis from a decision of the Court of Appeals affirming that of the Court of First Instance of Bataan, the dispositive part of which reads as follows: IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby finds the accused Bonifacio Malana, Nicanor Napolis and Apolinario Satimbre guilty beyond reasonable doubt of the crime of robbery in band and sentences Bonifacio Malanaas an accessory after the fact to suffer imprisonment of from six (6) months, arresto mayor, as minimum to six (6) years, prision correccional, as maximum and to indemnify the offended party, Ignacio Peñaflor in the sum of P80.00 with subsidiary imprisonment in case of insolvency but not to exceed one-third (1/3)of the principal penalty and the accused Nicanor Napolis and Apolinario Satimbre to suffer imprisonment of from ten (10) years and one (1) day, prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day,reclusion temporal, as maximum, both to indemnify the spouses Ignacio Peñaflor and Casimira Lagman in the sum of Two Thousand Five Hundred Fifty-Seven Pesos (P2,557.00) without subsidiary imprisonment in case of insolvency and all three to pay the proportionate part of the costs. The main facts, on which there is no dispute, are set forth in the decision of the Court of Appeals, from which We quote:

At about 1:00 o'clock in the early morning of October 1, 1956, Mrs. Casimira Lagman Peñaflor , 47-year old wife of Ignacio Peñaflor , the owner of a store located at the new highway, Hermosa, Bataan, after answering a minor call of nature, heard the barkings of the dog nearby indicating the presence of strangers around the vicinity. Acting on instinct, she woke up husband Ignacio Peñaflor who, after getting his flashlight and .38 caliber revolver, went down the store to take a look. As he approached the door of the store, it suddenly gave way having been forcibly pushed and opened by 4 men, one of them holding and pointing a machinegun. Confronted by this peril, Ignacio Peñaflor fired his revolver but missed. Upon receiving from someone a stunning blow on the head, Ignacio fell down but he pretended to be dead. He was hogtied by the men. The fact, however, was that he did not lose consciousness (tsn. 5, I). The men then went up the house. One of the robbers asked Mrs. Casimira L. Peñaflor for money saying that they are people from the mountain. Mrs. Casimira L. Peñaflor , realizing the danger, took from under the mat the bag containing P2,000.00 in cash and two rings worth P350.00 and delivered them to the robber. Thereupon, that robber opened and ransacked the wardrobe. Then they tied the hands of Mrs. Casimira L. Peñaflor and those of her two sons. After telling them to lie down, the robbers covered them with blankets and left. The revolver of Ignacio, valued at P150.00, was taken by the robbers. The spouses thereafter called for help and Councilor Almario, a neighbor, came and untied Ignacio Peñaflor . The robbery was reported to the Chief of Police of Hermosa and to the Philippine Constabulary. Chief of Police Delfin Lapid testified that he went to the premises upon receiving the report of Councilor Almario and found owner Ignacio Peñaflor with a wound on the head (tsn. 23, I). The wardrobe was ransacked and things scattered around. It appears that the robbers bore a hole on the sidewall of the ground floor of the store and passed through it to gain entrance. According to Chief of Police Delfin Lapid, "they removed the adobe stone and that is the place where they passed through" (tsn. 24, I). In that same morning, policeman Melquiades Samaniego reported seeing suspicious characters passing through a nearby field and when the field was inspected, the authorities were able to locate a greasegun with 5 bullets and a pistol with 3 bullets (tsn. 24, I, testimony of Chief of Police)... It appears that, shortly after the occurrence, a criminal complaint for robbery in band was filed with the Justice of the Peace Court of Hermosa, Bataan. Named as defendants in the complaint, as subsequently amended, were Nicanor Napolis, Bonifacio Malana, Ben de la Cruz, Mauricio Anila, alias Mori, Jose Escabel, alias Pepe, Antonio Bededia, alias Toning, John Doe, alias Sommy Casimiro, Apolinario Satimbre, Paul Doe, et al. Napolis, Malana, Anila and Casimiro having waived their right to a preliminary investigation, the case, insofar as they are concerned, was forwarded to the Court of First Instance of

Bataan, where the corresponding information was filed. As subsequently amended, by the inclusion, as defendants therein, of Antonio Bededia alias Toning, Domingo Flores alias Eko, Ben de la Cruz, Jose Escabel alias Pepe, Apolinario Satimbre, Carlito Veloso and Paul Doe, it is alleged in said information: . That on or about 1:00 o'clock in the early morning of October 1, 1956, in the Municipality of Hermosa, Province of Bataan, Philippines, and within the jurisdiction of this Honorable Court, the herein accused Bonifacio Malana, Nicanor Napolis, Ben de la Cruz, Mauricio Anila, Alias Mori, Jose Escabel, Alias Pepe, Antonio Bededia, alias Toning, John Doe, Alias Sommy Casimiro, Apolinario Satimbre, Carlito Veloso, Domingo Flores, Alias Eko and Paul Doe, by conspiring, confederating and helping one another, with the intent to gain and armed with a Grease Gun, Three (3) caliber .45 pistols and two (2) revolvers, did then and there willfully, unlawfully and feloniously, entered the dwelling of the spouses IGNACIO PEÑAFLOR and CASIMIRA L. PEÑAFLOR by boring a hole under the sidewall of the ground floor of the house and once inside, attack, assault and hit Ignacio Peñaflor with the handle of the Grease Gun causing him to fall on the ground and rendering him unconscious, tied his hands and feet and then leave him; that the same accused approached Casimira L. Peñaflor , threatened her at gun point and demanded money; that the same accused while inside the said house searched and ransacked the place and take and carry away the following cash money and articles belonging to said spouses Ignacio Peñaflor and Casimira L. Peñaflor , to wit: P2,000.00 in cash, Philippine Currency, One (1) ring (Brillante) valued at P350.00, One (1) licensed Commando Colt Revolver, Serial No. 532132 and One (1) Flashlight, valued at P7.00, to the damage and prejudice of said spouses in the total sum of TWO THOUSAND FIVE HUNDRED FIFTY-SEVEN PESOS, (P2,557.00) Philippine Currency.". At the trial of Malana, Napolis, Satimbre, De la Cruz, Anila, Casimiro and Flores, 1 the evidence for the prosecution consisted of the testimony of the offended parties, Ignacio Peñaflor and his wife Casimira Lagman Peñaflor , Provincial Fiscal Eleno L. Kahayon, Clerk of Court Pedro Aldea, Deputy Clerk of Court Eulogio C. Mina, Delfin Lapid, the Chief of Police of Hermosa, Bataan, and Lt. Luis Sacramento of the Constabulary and the affidavits, Exhibits A, B and C of defendants Napolis, Satimbre and Malana, respectively, admitting their participation in the commission of the crime charged. Mr. and Mrs. Peñaflor testified mainly on the robbery involved in the charge, whereas Fiscal Kahayon narrated the circumstances under which the affidavit Exhibit A was subscribed and sworn to before him by appellant Napolis; Police Chief Lapid and Lt. Sacramento dwelt on the investigations conducted by them and the circumstances under which said defendants made their aforementioned affidavits; and Clerk of Court Pedro

Aldea and Deputy Clerk of Court Eulogio C. Mina explained how Exhibits B and C were subscribed and sworn to before them by defendants Satimbre and Malana, respectively. Upon the other hand, Napolis tried to establish an alibi. Testifying in his own defense, he would have Us believe that on October 1, 1956, he was in his house in Olongapo, Zambales, because of a tooth extracted from him by one Dr. Maginas. Defendant Satimbre, in turn, introduced his own testimony and that of his wife Engracia Mendoza. Satimbre claimed to be innocent of the crime charged and said that, although reluctant to sign Exhibit B, he eventually signed thereon, upon the advice of his wife Engracia Mendoza — who sought to corroborate him — and Mayor Guillermo Arcenas of Hermosa, in order that he may not be implicated in a robbery that took place in Balanga, Bataan, and that he could be sent back to his hometown, Hermosa, Bataan. Before the conclusion of the trial, the court of first instance of Bataan dismissed the case as against defendants Flores, Anila, Casimiro and De la Cruz. In due course, said court convicted Nicanor Napolis, Bonifacio Malana and Apolinario Satimbre, as above indicated. Said defendants appealed to the Court of Appeals which, however, dismissed Malana's appeal, and affirmed the decision of the Court of First Instance, insofar as Napolis and Satimbre are concerned. Satimbre did not appeal from said decision of the Court of Appeals, whereas Napolis alleges that said court has erred —. I. In affirming in toto the conviction of petitioner herein, of the crime charged based upon a lurking error of identity. II. In affirming the conviction of petitioner based upon an extra-judicial confession extracted through duress. III. In affirming the decision of the court a quo based upon the evidence on record adduced during the trial. IV. In deciding the case not in accordance with the provision of law and jurisprudence on the matter. Under the first assignment of error, it is urged that appellant has not been sufficiently identified as one of those who perpetrated the crime charged. In support of this contention, it is argued that the identification made by Mrs. Peñaflor was due to a picture of appellant taken by Lt. Sacramento from the files of the police in Olongapo, Zambales, and then shown to her, before he (appellant) was apprehended and then brought to her presence for identification. It is thus implied that Mrs. Peñaflor identified him in consequence of the suggestion resulting from the picture she had seen before he was taken to her for said purpose. The defense further alleges that she could not have

recognized appellant herein, in the evening of the occurrence, because the same was dark, and the flashlight used by the malefactors was then focused downward. Appellant's pretense is, however, devoid of factual basis. The record shows that the authorities were notified immediately after the occurrence; that, soon after, peace officers — Police Chief Lapid and PC Lt. Sacramento — repaired to the house of Mr. and Mrs. Peñaflor and investigated them; that based upon the description given by Mrs. Peñaflor , one individual was apprehended and then presented to Mrs. Peñaflor , who said that he was not one of the thieves; that another person subsequently arrested and taken to Mrs. Peñaflor was, similarly, exonerated by her; that in the course of the investigation conducted by the Philippine Constabulary, Lt. Sacramento later brought Mrs. Peñaflor to the offices of the police force in Olongapo and showed her the pictures of police characters on file therein; that among those pictures, she noticed that of appellant herein, who, she believed, was one of the culprits; and that appellant was, therefore, arrested and brought to Mrs. Peñaflor , who positively identified him as one of the malefactors. In other words, Lt. Sacramento did not suggest to Mrs. Peñaflor , through the aforementioned picture of appellant, that he was one of the thieves. It was she who told Lt. Sacramento that said picture was that of one of the thieves. Besides, the fact that Mrs. Peñaflor readily exonerated the first two suspects, arrested by the authorities, shows that appellant herein would not have been identified by her if she were not reasonably certain about it. Then, again, she had ample opportunity to recognize appellant herein because it was he who demanded money from her and to whom she delivered P2,000 in cash and two (2) rings worth P350; it was, also, he who opened and ransacked her wardrobe; and it was he who tied her hands and those of her two sons. These series of acts, performed in her presence, consumed sufficient time — from 10 to 20 minutes — to allow her eyesight to be adjusted to existing conditions, and, hence, to recognize some of the robbers. The night was dark; but, there were two flashlights switched on, namely, that of her husband, and the one used by the thieves. Although the latter was, at times, focused downward, it had to be aimed, sometimes, in another direction, particularly when the money and rings were delivered to appellant herein, and when he opened and ransacked the wardrobe of Mrs. Peñaflor . Lastly, her testimony was confirmed by other circumstances presently to be mentioned, in connection with the consideration of the other alleged errors pointed out by appellant herein. The second assignment of error is based upon a wrong premise — that appellant's conviction was based upon his extra-judicial confession and that the same had been made under duress. Said extra-judicial confession was merely one of the factors considered by His Honor, the trial Judge, and the Court of Appeals in concluding that the evidence for the defense cannot be relied upon and that the witnesses for the prosecution had told the truth.

Besides, appellant's confession was not tainted with duress. In this connection, the Court of Appeals had the following to say: . Apart from the reliability of Mrs. Casimira Lagman Peñaflor 's identification, we have the extra-judicial confession of appellant Nicanor Napolis, marked Exh. A, subscribed and sworn to by said accused on October 26, 1956, 25 days after the occurrence, before Provincial Fiscal Eleno L. Kahayon, the 64-year old prosecutor who, since July 18, 1946, was the Provincial Fiscal of Bataan up to the present. His testimony shows that he read the confession, Exh. A, to said accused in the Tagalog dialect; asked him whether he understood it to which appellant Napolis answered "yes"; inquired whether he was coerced to which he replied "No"; and then, required him to raise his hand in affirmation which he did (tsn. 14-15, I). Thereupon, appellant Napolis signed the confession in his (Fiscal's) presence. Provincial Fiscal Eleno L. Kahayon further testified that he saw no signs of physical violence on the person of the appellant who appeared normal in his appearance (tsn. 15, I). In this confession, Exh. A, appellant Napolis related that it was co-accused Antonio Bededia (still-at-large) who pointed the greasegun to husband Ignacio Peñaflor and who hit him (Peñaflor ) on the head and that it was co-accused Ben de la Cruz (whose case was dismissed) who wrested Peñaflor 's revolver. For his part, appellant Napolis admitted that it was he who talked to Mrs. Casimira L. Peñaflor and it was he who got the money bag. The loot, according to him, was split from which he received a share of P237.00 (Answer to Q. A, Exh. A). Among others, he mentioned appellant Bonifacio Malana as the owner of the greasegun and the one who got Peñaflor 's revolver from the hands of co-accused Ben de la Cruz. ... . It may not be amiss to advert to the fact that, on appeal from a decision of the Court of Appeals, the findings of fact made in said decision are final, except — . (1) When the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. 2 and that the case at bar does not fall under any of the foregoing exceptions. The third assignment of error is predicated upon the theory that the evidence for the prosecution is contradictory and, hence, unworthy of credence. Counsel for the defense alleges that, whereas Ignacio Peñaflor said that the thieves had entered his house by forcing its door open, Mrs. Peñaflor testified that their entry was effected through an

excavation by the side of the house, and the chief of police affirmed that the malefactors had removed a piece of wood and an adobe stone to get into said house. No such contradictions, however, exist. The house of Mr. and Mrs. Peñaflor consisted of two (2) parts, one of which was a store and the other the dwelling proper, adjoining the store, which had a door leading thereto (to the dwelling proper). Mrs. Peñaflor testified that the culprits had entered the store by removing an adobe stone from a wall thereof, and this was corroborated by the chief of police, although he added that the malefactors had, also, removed a piece of wood from said wall. Upon the other hand, the testimony of Mr. Peñaflor referred to a door, inside the store, leading to the dwelling proper, as distinguished from the store. In the light of the foregoing, and considering that the findings of fact made by the Court of Appeals are supported by those of His Honor, the trial Judge, who had observed the behaviour of the witnesses during the trial, it is clear to Us that the first three (3) assignments of error are untenable. The fourth assignment of error refers to the characterization of the crime committed and the proper penalty therefor. It should be noted that the Court of Appeals affirmed the decision of the trial court convicting Napolis, Malana and Satimbre of the crime of robbery committed by armed persons, in an inhabited house, entry therein having been made by breaking a wall, as provided in Article 299 (a) of the Revised Penal Code, and, accordingly, sentencing Napolis and Satimbre to an indeterminate penalty ranging from ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, which is in accordance with said legal provision. In addition, however, to performing said acts, the malefactors had, also, used violence against Ignacio Peñaflor , and intimidation against his wife, thereby infringing Article 294 of the same Code, under conditions falling under sub-paragraph (5) of said article, which prescribes the penalty of prision correccional in its maximum period to prision mayor in its medium period, which is lighter than that prescribed in said Article 299, although, factually, the crime committed is more serious than that covered by the latter provision. This Court had previously ruled — . ... that where robbery, though committed in an inhabited house, is characterized by intimidation, this factor "supplies the controlling qualification," so that the law to apply is article 294 and not article 299 of the Revised Penal Code. This is on the theory that "robbery which is characterized by violence or intimidation against the person is evidently graver than ordinary robbery committed by force upon things, because where violence or intimidation against the person is present there is greater disturbance of the order of society and the security of the individual." (U.S. vs. Turla, 38 Phil. 346; People vs. Baluyot, 40 Phil. 89.) And this view is followed even where, as in the present case, the penalty

to be applied under article 294 is lighter than that which would result from the application of article 299. ... . 3 Upon mature deliberation, We find ourselves unable to share the foregoing view. Indeed, one who, by breaking a wall, enters, with a deadly weapon, an inhabited house and steals therefrom valuable effects, without violence against or intimidation upon persons, is punishable under Art. 299 of the Revised Penal Code with reclusion temporal. 4 Pursuant to the above view, adhered to in previous decision, 5 if, aside from performing said acts, the thief lays hand upon any person, without committing any of the crimes or inflicting any of the injuries mentioned in subparagraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty -- under paragraph (5) thereof -- shall be much lighter. 6 To our mind, this result and the process of reasoning that has brought it about, defy logic and reason. The argument to the effect that the violence against or intimidation of a person supplies the "controlling qualification," is far from sufficient to justify said result. We agree with the proposition that robbery with "violence or intimidation against the person is evidently graver than ordinary robbery committed by force upon things," but,precisely, for this reason, We cannot accept the conclusion deduced therefrom in the cases above cited —reduction of the penalty for the latter offense owing to the concurrence of violence or intimidation which made it amore serious one. It is, to our mind, more plausible to believe that Art. 294 applies only where robbery with violence against or intimidation of person takes place without entering an inhabited house, under the conditions set forth in Art. 299 of the Revised Penal Code. We deem it more logical and reasonable to hold, as We do, when the elements of both provisions are present, that the crime is a complex one, calling for the imposition -- as provided in Art. 48 of said Code -- of the penalty for the most serious offense, in its maximum period, which, in the case at bar, is reclusion temporal in its maximum period. This penalty should, in turn, be imposed in its maximum period -- from nineteen (19) years, one (1) month and eleven (11) days to twenty (20) years of reclusion temporal — owing to the presence of the aggravating circumstances of nighttime. In short, the doctrine adopted in U.S. v. De los Santos 7 and applied in U.S. v. Manansala, 8 U.S. v. Turla, 9 People v. Baluyot, 10 Manahan v. People, 11 and People v. Sebastian, 12 is hereby abandoned and appellant herein should be sentenced to an indeterminate penalty ranging from ten (10) years, and one (1) day of prision mayor to nineteen (19) years, one (1) month and eleven (11) days of reclusion temporal. Thus modified as to the penalty, the decision of the Court of Appeals is hereby affirmed in all other respects, with costs against herein appellant, Nicanor Napolis. It is so ordered. Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Makasiar, J., took part. G.R. Nos. L-32202-04 July 25, 1984 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ONTING BIRUAR, EUGENE RUSLIN, ABRAHAM LIM alias Titing Lim, ANGEL DY alias Baba Isa, CEFERINO CATURAN alias Fred, EDGARDO SEÑERES alias Broke, ROMUALDO RABOY alias Romy, and SATURNINO GALLIANO, defendants, ABRAHAM LIM alias Titing Lim, CEFERINO CATURAN alias Fred, ROMUALDO RABOY alias Romy, and SATURNINO GALLIANO, defendants-appellants. The Solicitor General for plaintiff-appellee. Sycip, Salazar, Luna, Manalo & Feliciano for defendants-appellants.

armas "where is your firearm? Mosende denied having a firearm, but his wife was so frightened that she told the armed menn: "Do not kill my husband, if you want the arm, the shotgun is here," and raised the mosquito net covering their sleeping mat and pointed to the shotgun. The accused Edgardo Señeres took the gun and asked the couple for money. Fausta, in fear, opened their aparador which the accused Edgardo Señeres then ransacked, taking therefrom P170.00 in coins and paper bills. The two accused then left, taking with them the shotgun of Mosende valued at P550.00. Not long thereafter, Mosende heard gunshots coming from the direction of the house of George Kalitas, about 25 meters away. Mosende and his wife went down their house and sought cover behind a coconut tree. A few minutes later, Mosende saw a blaze start from the house of George Kalitas which spread rapidly until the entire house was engulfed in flames and completely burned down. 1 All the inmates of the house of George Kalitas were fast asleep when the firing started and were awakened by the gunfire. George Kalitas, a 70-year old paraplegic, was sleeping inside their bedroom with his wife, Sylvia Mingming, his grandchildren Jessie Renopal and "Bebot", and their maid's son, Fortunato "Ato" Malapong. 2Narciso Bauyot, a nephew of George Kalitas, slept in the dining room, while the maid Babbadon Odal slept in the kitchen. 3

CONCEPCION, JR., J.: REVIEW of the decision of the Court of First Instance of Davao finding the accused Abraham Lim, alias Titing Lim, Angel Dy, alias Baba Isa, Ceferino Caturan, alias Fred, Edgardo Señeres alias Broke, Romualdo Raboy, aliasRomy, and Saturnino Galliano guilty of the crimes of Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries, and sentencing each of them, in (1) Crim. Case No. 9987, for Robbery in Band, to suffer an indeterminate penalty ranging from TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum, with the accessory penalties of the law, and to indemnify, jointly and severally, Gorgonio Mosende in the amount of P720.00, without subsidiary imprisonment in case of insolvency, and to pay the costs; (2) Crim. Case No. 9988, for Arson, to suffer the penalty of reclusion perpetua, with the accessory penalties of the law, to pay, jointly and severally, the heirs of the deceased George Kalitas the amount of P20,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs; (3) Crim. Case No. 9989, for Robbery with Homicide and Physical Injuries, to suffer the death penalty, and to indemnify, jointly and severally, the heirs of the deceased George Kalitas in the amount of P12,000.00, without subsidiary imprisonment in case of insolvency. The inculpatory facts are as follows: At about 10:00 o'clock in the evening of July 2, 1966, while Gorgonio Mosende and his wife, Fausta, were preparing to go to sleep in their house in Sitio Suapit, Barrio Limot, Mati, Davao, several persons arrived and called: "Good evening, tiyo. " Thinking that they were relatives of his wife, Mosende invited the callers to come up. Two men, armed with .45 cal. pistols, later ientified as the accused Romualdo Raboy and Edgardo Señeres came up and demanded: "hain na ang iyong

Upon hearing the fusillade, Babbadon Odal rushed to the master's bedroom to get her son, "Ato." But, as she was about to raise the mosquito net covering her son, she was hit by a bullet on the left wrist and immediately lost consciousness, regaining the same only at the Mati Baptist Hospital, where she was brought for treatment of her injury. 4 Jessie Renopal, the 11-year old granddaughter of George Kalitas, was also grazed by a bullet in the head when she stood up upon hearing the volley. 5 She felt pain, but she did not lose consciousness, thus enabling her to see five robbers enter the house while two others remained by the door. 6 Narciso Bauyot who was sleeping in the dining room, ran to the kitchen upon hearing the gunfire and hid in anaparador. But, when the toilet of the main house of George Kalitas was set on fire, he left his hiding place and went out of the house, passing through a small window in the kitchen. He landed safely on the ground only to fall into the hands of the accused Romualdo Raboy who pointed a gun at his abdomen telling him: "you surrender, if you will not surrender, I will kill you." The accused Edgardo Señeres also told Narciso to surrender and raise his hands, which Narciso did. Señeres then continued firing at the house of George Kalitas. Another armed man, later Identified as the accused Saturnino Galliano, also approached Narciso and threatened to pour a can of kerosene on him. But, Narciso pleaded: "Don't pour it on me because I might be burned," and was spared. The accused Saturnino Galliano, instead, poured the can of kerosene on the walls of the kitchen of the house and ignited it with some dried fronds. 7 The robbers then started to break open the main door of the house with an axe. 8 After the robbers had broken the door and gained access to the sala, George Kalitas fired at

them with his "Stevens" 12-gauge shotgun, 9hitting one of them. 10 George Kalitas had crawled with his wife and grandchildren after Jessie Renopal and Babbadon Odal were hit by bullets. 11 The armed men fired back, hitting George Kalitas, who dropped his shotgun. His grandson, Bebot, picked up the shotgun, but, when the robbers shouted: "surrender, surrender, throw that gun to us; throw the gun below, by the stairs," he panicked and threw the shotgun to them. 12 Immediately, thereafter, four (4) armed men, later Identified as the accused Angel Dy, Romualdo Raboy, Saturnino Galliano, and Abraham Lim rushed them. Angel Dy held Mrs. Kalitas by the neck and kicked the wounded George Kalitas, while the others went inside the bedroom of George Kalitas and forcibly opened a trunk placed under the bed which contained the amount of P40,000.00, in cash, at the last counting two months before the incident. They also took some old coins which Mrs. Kalitas had kept in a container inside the trunk. Saturnino Galliano and Angel Dy also got the money of Jessie Renopal. 13

accused Angel Dy inside the car who, when asked who the owner of the car was, pointed to Onting Biruar at the Kingston Hotel. The policemen went to the hotel and found Onting Biruar together with Romualdo Raboy and Edgardo Señeres whom they brought to the police headquarters for investigation. Upon questioning, Angel Dy informed the police investigators that the car was driven by Abraham Lim on the night of July 2, 1966, and led a police posse to Barrios Obrero and Piapi, both in Davao City, in an effort to catch the said Abraham Lim. But, they failed to find him. Instead, they found the accused Ceferino Caturan in Barrio Piapi, who was nursing a bullet wound on his left upper leg. From Piapi, Angel Dy brought the police team to a house in Toril, Davao City, where they finally found Abraham Lim in the company of Eugene Ruslin. The policemen found a .45 cal. pistol, with seven rounds of ammunition under the pillow used by Abraham Lim. 18 Later, the police team arrested the accused Saturnino Galliano who was implicated in the crime. 19

After getting the money, the robbers left. 14 The inmates of the house also went out because of the fire and brought the wounded to the hospital. But, George Kalitas died before they could reach the hospital in Mati. 15

The Buick sedan was turned over to the PC detachment and PC Sgt. Diomedes Cagas, upon inspection of the said car, recovered a .45 cal. pistol, with seven rounds of ammunition, hidden under the floor mat, near the gas pedal of the said car. 20

Meanwhile, the fire continued to spread until the main house of George Kalitas and his bodega, including their contents, and a truck parked in between the buildings, all valued at P34,545.00. were completely destroyed. 16

As a consequence, Onting Biruar, Abraham Lim alias Titing Lim, Angel Dy alias Fred, Edgardo Señeres aliasBroke, Romualdo Raboy alias Romy, Eugene Ruslin, and Saturnino Galliano were charged with Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries before the Court of First Instance of Davao, in three (3) separate informations docketed therein as Crim. Case Nos. 9987, 9988, and 9989, respectively.

The crime was reported to the police authorities immediately thereafter and Sgt. Jose Biones of the 433rd PC Company stationed at Mati, Davao, conducted an investigation. He learned that a light green Buick Electra 225 Sedan, 1964 model, with Plate No. H6357-Manila-'65, had refueled at a Caltex gasoline station in the poblacion of Mati and then proceeded towards Barrio Limot at about 9:00 o'clock in the evening of July 2, 1966, and was seen again parked at some distance from the house of George Kalitas. PC Sgt. Blones also went to the still smouldering house of George Kalitas and recovered twentynine (29) spent cartridges of various calibers and a mutilatedqqq slug, which he turned over to the PC Company investigator. An alarm was, likewise, flashed to intercept the Buick car and apprehend its occupants. 17 At about 3:00 o'clock in the afternoon of July 3, 1966, Pat. Bonifacio Daño of the Davao City Police Department, received a telephone call from the Sasa Police Precinct that the wanted car was spotted going towards Davao City. Pat. Daño and two (2) companions boarded a jeep to intercept the car, and at Bajada, near the EMCOR, they saw the car stop and a man with a sack alighted therefrom. They gave chase, but the car sped away. They then tried to run after the man with the sack, but the man threw the sack away and disappeared in the tall cogon grasses. They recovered the abandoned sack and found it to contain a pistolized carbine, a .45 cal. pistol, with several rounds of ammunition, a barong tagalog, four (4) flashlights, and a pair of gloves. The next day, July 4, 1966, a police team saw the wanted car parked in the corner of Monteverde and Guerrero Streets, in front of the Cosmopolitan Funeral Parlor, in Davao City. They found the

All the accused denied the commission of the crimes charged and, except for the accused Abraham Lim, interposed the defense of alibi. The trial court summarized the evidence of the defendants, which they claim to be substantially correct, as follows: 1. TESTIMONY OF ACCUSED ONTING BIRUAR Defendant Onting Biruar testified that on June 28, 1966 he came to Davao City to renew the coastwise license of motor boat; that he rode on his Buick (Electra) car; that he registered in a room at Kingston Hotel, Davao City and did not go out until the following day; that on June 29, and 30, 1966, he went to the Customs office to renew his license, but he failed to obtain his purpose; that on July 1, 1966 Abraham Lim came to his hotel to borrow his car for the purpose of bringing his wife to a hospital to deliver; that he consented and gave his car; that as the car was not returned he became apprehensive and he began looking for it; that on the same day, he met Romualdo Raboy y aliasRomy and Edgardo Señeres alias Broke and one Sammy, driver of the Provincial Governor of Cotabato and asked them to help him find his car to which they acceded; that from that day they began the search and continued until the next day but in vain; that on July 3, he (Onting Biruar) was apprehended by the D.C.P.D. Commando

Unit in his hotel on a charge that his car was used in the commission of the crimes charged herein at Limot, Mati. Later, he corrected a mistake that it was on July 4 when he was arrested and not July 3. It was explained to him that his involvement with other accused lies solely in his being the owner of the car subject of the present inquiry; that he admitted that he was taken at the P.C. barracks where he was investigated by Sgt. Abalayan. 2. TESTIMONY OF BERNARDINO SAMSON: Bernardino Samson, driver of the Provincial Governor of Cotabato corroborated the statement of Onting Biruar referring to his having joined the party to search for Onting's car. 3. TESTIMONY OF ABRAHAM LIM: Accused Abraham Lim testified that he came from Cotabato City and arrived at Davao City in the afternoon of June 29, 1966 in response to a telegram that he received from accused, Angel Dy alias Baba Isa; that he took a Minrapo bus and he met his wife in the house of his uncle, Candido Ramos at Piapi, Davao City; that he brought her to San Pedro Hospital on the following day (June 30) where she delivered; that on July 1st morning at about 7:00 he was able to borrow the car of defendant, Onting Biruar after assuring the latter that he would use it only for service of his wife who delivered in the hospital; that from that time the car was under his exclusive control until July 2, 1966. On July 4, 1966 he was arrested by the Davao City Commando Unit at Toril, Davao City together with Eugene Ruslin, one of the accused herein. Abraham Lim admitted that he used the said car in going to Limot, Mati, Davao Oriental without the knowledge and permission of the owner; that on July 2, 1966, he left Davao City in company with Ceferino Caturan, Cesar Go and another unidentified man and arrived at Mati at about ten o'clock at night; that he proceeded to the house of George Kalitas with his men, but as no one was familiar with the road and the place, he needed a guide; that he passed at the house of Saturnino Galliano which was about 5 kilometers from the house of Kalitas and invited him to be his guide; that the latter accepted although that was the first time that Lim met him in Betty's store; that the purpose of accused Abraham Lim in going to Kalitas house is to collect accounts, an alleged indebtedness of George Kalitas in the amount of P15,000.00 which was advanced by him for the purchase of coprax; that on demand, Kalitas refused to pay; that Lim pressed him more and asked him to pay in kind particularly pointing to the coprax store in Kalitas bodega; that this must have irked Kalitas and he commanded his nephew, Narciso Bauyot to get his carbine from his bed, but he was

calmed down and promised to pay him on the first week of July; that as he insisted on his demand, Kalitas drew his pistol which was timely grabbed by him and at the same time he drew his own 22 caliber magnum pistol and pointed at the back of Kalitas head and dragged him towards the main door; that upon reaching the stairs they were fired upon by some people whom Lim suspected to be the neighbors of Kalitas; that the old man was hit in the upper part of his body and he (Lim) saw blood streaming down from his wound; that although wounded and under his (Lim) control, Kalitas shouted at his men to surrender which was heeded; that Aguedo, Mosende and four other neighbors came and surrendered their firearm to Lim which consists of one carbine and 5 pistols and were ientified by Lim. Aguedo surrendered his 45 cal. pistol, Mosende his 45 cal. pistol; confiscated from George Kalitas, is a nickel plated pistol marked Exh. "B", one carbine from Narciso Bauyot and another 45 caliber pistol (Exh. "C") from Mosende, one barong-tagalog, Exh. "BB" which is his own (Lim) dress; that after the surrender of these firearm they went back to Davao City; that he saw Saturnino Galliano grab the carbine from Narciso Bauyot which he fired at the latter in order to scare the men of Kalitas, but his intention was only to shoot Narciso's shirt; that Galliano was with him and Kalitas when they were seeking shelter in the pile of lumber near the kitchen of Kalitas' house while there was shooting directed at them, Accused Lim also admitted that he was investigated by the Davao City Police Commando and subsequently by the P.C. (Exhs. "O", "O-1" to "O4"); that he signed both affidavits taken by these investigators only under compulsion of force and duress; that he was kicked by his probers on his knees and pellets were inserted between his fingers and pressed so strong that it caused him pain, in order to make him confess. Lim also admitted that he was convicted by final judgment rendered by the City Court of Davao City for illegal possession of firearm filed against him in Crim. Case No. 2490-C; that he was arrested at Toril, Davao City on July 4, 1966; that he explained that his appearance there was due to his purpose to see his friend, Joselito Ambrosio from whom he would borrow money to defray the hospital expenses of his wife, but he failed; that before the incident in question, he (Lim) was engaged in the business of buying and selling coprax corn, rice and other agricultural products covering the coastal towns of Cotabato and the eastern old province of Davao; that he did not have license in his name, but he borrowed the license of his cousin, Felipe Uy; that pursuance to the operation of his business he came to know the deceased, George Kalitas since 1965; that they have a deal-Kalitas would be his agent to buy coprax and grains in his neighborhood; that on August 1965 he happened to meet Kalitas in a bus while on his way to Mati, that being an old man he could trust him; that he

advanced to him P15,000.00 as capital for their business; that this money was given to Kalitas in his house at Limot in the presence of Saturnino Galliano and Kalitas' family; that Kalitas signed a receipt for said amount but he lost it during that scuffle incident in Kalitas' house including a notebook containing an entry of their business transaction; that Kalitas delivered to him a truckload of coprax worth P5,000.00; that he does not know how much additional cash advances he gave Kalitas; that he was investigated by the municipal judge of Mati on July 12, 1966; that during the investigation he did not tell the truth that he was kicked and maltreated by the Davao City Police and by the P.C. agents for fear of revenge. 4. TESTIMONY OF ANGEL DY: Accused Angel Dy testified that he left Dadiangas, Cotabato on June 29, 1966 at about 7:00 AM together with the wife of accused Abraham Lim and a maid; that upon arrival in Davao City in the afternoon they proceeded to Piapi in the house of an uncle of Abraham Lim; that he met the latter in the CBC terminal on June 30, 1966 at about five o'clock in the afternoon; that on July 1, 1966 they went out to see accused Onting Biruar, to borrow his car for the purpose of bringing Lim's wife to the hospital; that Lim's wife was brought to the hospital only on July 2 in the afternoon on Onting's car escorted by him and Abraham Lim and a housemaid and Caturan (t.s.n., 674-675 Barlaan); that on July 1 they spotted the car of Onting parked in a gasoline station; that accused Abraham Lim borrowed it and had full control thereof from that day; that from that time he was taking care of the car, that while he was watching it in the premises of the Cosmopolitan Funeral Parlor the Davao City Police Commando came and seized the car, telling him (Dy) it was used in committing the crime of robbery and homicide in Mati, that he told them he did not go to Mati, however, he was brought to Agdao where he was maltreated, then he was transferred in the office of the Police Detective Division boxed and manhandled by the police; that on July 4, 1966 he guided the police to locate the accused, Abraham Lim at Toril, Davao City; that Abraham was found there and was arrested together with Eugene Ruslin; that they were brought to the P.C. barracks and were jailed there; that he did not sign any state judgment; that he admitted he is also known as Baba Isa and he is the uncle of Abraham Lim; that he rode in Onting's car together with Abraham and hi4 wife on July 1, 1966 in going to Talomo and back to Piapi. On cross examination this witness (Dy) incurred in self-contradiction. He declared that he went to meet accused Abraham Lim in the CBC terminal after lunch on June 29, 1966 and testifying further he said that he arrived in Davao City from Cotabato at about 4:00 same day; that on July 1 at 8:00

A.M. Lim brought his wife to a clinic at San Pedro Street riding in Onting's car; that he slept in the hospital until July 4, 1966; that on that day from the hospital he brought the car to the premises of the Cosmopolitan Funeral Parlor where it was taken by the police. 5. TESTIMONY OF ROMUALDO RABOY: Accused Raboy alias Romy testified that on June 22, 1966 he came for the first time from Cotabato City to take vacation in Davao City; that he was accompanied by his cousin, Nelly Agravante; that he lodged in her house at Talomo, Davao City, from June 22 to July 2, 1966; that he stayed in said house without going to any other place outside Davao City; that on July 2, 1966 he took permission from his cousin to go to CBC terminal to make arrangement for him to take the last trip to Cotabato; that on his way at Acacia at about 7:30 A.M. he saw accused, Onting Biruar in Kingston Hotel, Onting whistled and called him and asked him to help him find his car to which he agreed; that he desisted from continuing his plan to go to Cotabato; that they searched the car during the whole day of July 2, but in vain; that he slept with Onting Biruar in Kingston Hotel; that on the following day (July 3) they failed again to see the car; that on July 4, 1966 they were arrested in Kingston Hotel by the D.C.P.D. Commando, he, Onting Biruar and Edgardo Señeres that he was brought to the office of the Police Detective Division; that he denied that he was in the house of the latter George Kalitas on July 2 and 3, 1966; that he does not know, nor met Silvia Kalitas; neither Narciso Bauyot, nor Gorgonio Mosende. On cross examination he declared that his nickname is Romy, that he did not know Abraham Lim, Ceferino Caturan, Angel Dy and Eugene Ruslin; that he first met accused Onting Biruar for the first time at P.C. barracks at Davao City before he was brought to Mati by the P.C. that he did not register his name in Kingston Hotel; that he was arrested in said hotel together with Onting Biruar and Edgar do Señeres that from the Detective Division he was transferred to the PC barracks; that he was not investigated there; that the car finally arrived at 5:30 on July 3 according to what Onting Biruar informed him. 6. TESTIMONY OF NELLY AGRAVANTE: Nelly Agravante, cousin of accused Romualdo Raboy has corqqq roboratedqqq the statement of the latter covering that portion, from the time he arrived in Davao City on June 22, 1966 until he took permission from her to go back to Cotabato on July 2, 1966. 7. TESTIMONY OF SATURNINO GALLIANO:

Saturnino Galliano testified that he is 37 years old; that he is a resident of Waywayan, Mati, Davao Oriental; that since 1960 he cultivated a farm about four hectares with two cousins; that he was arrested on July 5, 1966, in the same place by the Mati Police; that he does not know the defendants Onting Biruar, Edgardo Señeres, Romualdo Raboy, Ceferino Caturan, Eugene Ruslin and Abraham Lim; that he met them only on July 12, 1966 at Mati when they were investigated; that he denied having robbed, the houses of Gorgonio Mosende and the late George Kalitas on July 2 late at night and in early morning of July 3, 1966; that he denied having poured petroleum and set on fire the house of the latter; that he just met for the first time Silvia Kalitas, Narciso Bauyot, Mosende and others on July 12, 1966 in the Municipal Court of Mati; that it is not true that he participated in the commission of robbery, killing and arson as charged in the information; that he resembled the accused Ceferino Caturan. 8. TESTIMON OF CEFERINO CATURAN: Ceferino Caturan declared that on the second week of June he was brought to Davao City by his employer, co-accused Abraham Lim to assist the latter's wife to deliver in the hospital- that they came in Davao City in a PU car together with the wife of Abraham Lim, a maid and himself; that upon arrival they proceeded to the house of his uncle at Piapi, Davao City; that for about six months he was employed as a checker of Lim in his motor launch; that before the incident in question his master, Abraham Lim was engaged in the business of buying and selling coprax corn and rice; that Lim returned to Cotabato and came back on June 29, 1966 and rejoined his wife at Piapi; that on June 30, he brought Lim's wife to the hospital: that they rode on a hired taxi because he was not able to borrow Onting Biruar's car; that Lim's wife delivered on June 30, 1966 at night; that on the following morning he, Abraham Lim and Angel Dy took their breakfast in a restaurant; that on the afternoon of July 2, 1966 at about one o'clock he was brought by Abraham Lim to Mati; that they have started from a restaurant with three (3) companions; that along the way they picked up six other persons at Bajada; that he cannot see any of them in the Courtroom; that at the start he did not know the purpose of Lim in going to Mati, now he knows that it is to rob a certain house in Mati; that upon reaching Mati they refueled in a gasoline station and went to eat in a restaurant; that they met one Angelo Montero there who invited Lim to go inside; that after eating they left with Montero guiding them until they reached a certain place where the car could no longer proceed due to bad road; that he received instruction to guard the car; that all the riders left and went towards certain direction, that after some time he heard successive shots coming from some distance; that at about two o'clock the following morning (July 3) two of his companions returned; that one of

them is wounded; that one of them shot him hitting his thigh; that halfhour later the bigger group with Abraham Lim arrived; that they started for Mati and from there they proceeded to Davao City passing at Kingking bridge where two or five of their companions got off the car; that they arrived at Davao City on July 3, 1966 at about 3:00 p.m.; that on July 4, 1966 he was apprehended by the Commando Police and brought to the P.C. barracks, Davao City where his affidavit (Exh. 'HH') was taken by Sgt. Almazar; that he did not sign it after it was typewritten but only on the following day after his wound was operated in the Davao General Hospital; that while he was confined in said hospital, Fiscal Angel Matondo arrived, but before he came he has already signed it; that he was weak and not feeling well when he signed his affidavit before it was explained to him. On cross examination he declared that one of those 6 men who joined them in the car brought a sack wrapped in Manila paper; that Abraham Lim is the one who drove the car going to Mati; that he did not talk with him during the trip in going to and on return. This witness (Caturan) was confronted with his answer to question 17 of his affidavit (Exh. "HH")wherein he stated that he saw six of his companions being armed with pistol of different calibers and one carrying carbine and Abraham Lim carried his own 45 caliber pistol. Caturan explained that it is true that he saw his companions carry firearms, but it was during that time when they returned to the car from the place where they went. (t.s.n., p. 735, Barlaan) This statement refers to that incident when the car stopped to a certain place when it could no longer proceed due to bad road, where all the riders except Caturan went off the car and came back later after 4 or 5 hours covering a period from July 2 at about 10:00 at night to 2 or 3 o'clock early morning of July 3, 1966. 9. TESTIMONY OF EDGARDO SERERES: Defendant Edgardo Señeres testified that he came from Cotabato City and arrived at Davao City on June 28, 1966 riding on a CBC bus; that he had no companion; that his purpose in coming to Davao City is to deliver shrimps for sale in a place near the public market at Bankerohan; that upon arriving he proceeded to his aunt's house at Washington Street and stayed there continuously for 5 or 6 days; that he knew accused Onting Biruar, but not Romualdo Raboy, Eugene Ruslin, Ceferino Caturan; Angel Dy and Saturnino Galliano; that on his way to CBC station on July 2, 1966, Onting Biruar saw him passing his hotel and called him; that he asked him to help in looking for his car which was borrowed by someone and was not returned; that he agreed; that they have started the search but they could

not find it on that day; that from that time he lodged in Kingston Hotel with Onting and Romualdo Raboy; that on July 4, 1966 in the morning he was apprehended by the Davao City Police together with Onting Biruar and Romualdo Raboy; that he did not know the cause of his arrest; that they were brought to Agdao, then transferred to the office of the detective division and finally to the P.C. barracks; that he was investigated there; that he was maltreated by the P.C. soldiers at the time he signed his affidavit; that he just met Ceferino Caturan; Angel Dy and Abraham Lim there; that he met Galliano at Mati; that he was detained together with others at the P.C. barracks at Mati on July 6, 7 and 8, 1966; that he did not go to Limot, Mati on July 2 or July 3, 1966; that he always was in Davao City during those days; that he denied statements of Narciso Bauyot; that he was seen in the house of Kalitas on the night of July 2, 1966, that he denied the statement of Mosende that he was one of the two men who robbed his house on the same day; that the first occasion he met Romualdo Raboy was in P.C. barracks, so also Ceferino Caturan, Angel Dy and Eugene Ruslin; that he is known as Broke; that he knows Onting Biruar for he used to deliver crabs to him; that he does not know Fiscal Matondo; that his affidavit taken by the P.C. (Exh. 'N') has been extracted by force and duress. The trial court, however, rejected the denials and excuses of the defendants and found that an of them, except Onting Biruar, the owner of the Buick car used in the commission of the crimes, and Eugene Ruslin, who was found sleeping with Abraham Lim in Toril, Davao City, when the said Lim was arrested by a police team, did, in fact, actively participate in the commission of the crimes complained of, and that their claims that they were elsewhere when the crimes were committed are unavailing against their positive Identification by the witnesses for the prosecution who testified in a natural and straightforward manner and had no motive or reason to pervert or suppress the truth or testify falsely against them. We have examined the record of the cases with great care and found no convincing reason to disturb the findings of the trial court that the accused were the perpetrators of the offenses charged. The claim of Abraham Lim that he went to the house of George Kalitas to collect what the latter allegedly owned him is improbable and not worthy of belief. The following observations of the trial judge is more logical and consistent with human conduct: (3) Referring to improbabilities and inconsistencies of the defendants' statements, Abraham Lim declared that his purpose in going to the late Kalitas' house that night in question was to collect accounts from the deceased. if this is true, why did he bring along no less than four armed men with him and made demand at about midnight in the dwelling of Kalitas? He admitted in cross examination that by chance he met Kalitas in a bus while he was on his way for Mati in 1965; that being an old man he

could trust Kalitas and he advanced to him P15,600.00 as capital for their business. If he could trust the late Kalitas with such big amount, why did he make that demand in the presence of armed men who made use of force and terror to attain their aim? Again he related that on demanding payment of the debts, Kalitas was irked and he drew his pistol and aimed at Abraham Lim but the latter in turn grabbed it and drew his own 22 caliber magnum pistol and grazed it at the back of Kalitas head and then dragged him outside. In the ensuing scuffle he lost the receipt of the said loan of P15,600.00 and also a notebook containing an entry of their transaction. This is another brand of Lim's statements which is not only improbable and unnatural but is outright incredible. Kalitas was an old, sickly man who was alone facing a menacing group of armed men who shot their way to his bedroom. Would he, in his senses dare to provoke them in that manner? At least two inmates of the house declared that he was already shot during the first burst of gunfire coming from outside the house and before the defendants came up. This seem to be true because he was carried by two of them towards the main door and Lim admitted that they dragged him outside. How could Kalitas drew his pistol when he was severely wounded and could not even talk. Abraham Lim continued his story by stating that when Kalitas was brought outside, he was shot at the upper part of his body by others whom he suspected to be Kalitas' neighbors and yet he was able to shout at his men calling them to surrender and in fact, Mosende, Aguedo and four others surrendered to Abraham their respective firearms consisting of one carbine and five pistols which he Identified in the courtroom. If his story is true, then no other logical conclusion can be drawn therefrom except that Abraham Lim and his men went to Kalitas' house on that night in question to fight, plunder and subdue Kalitas and his neighbors and in fact, according to him, they succeeded in forcing them to surrender thru Kalitas not only their persons but also their arms, but the Court would prefer to believe that a sham story of this nature is rather false, exaggerated and unbelievable because if Kalitas was really shot at a vital part of his body he could not have talked and moved, how then could he shout? Granting arguendo that Kalitas shouted at his men to surrender, the latter following the natural instinct of self-preservation would flee from the scene of the crime and would not give up their arms and persons to such ruthless and dangerous foe under that horrible circumstances of firing, killing and burning of a house. There is no evidence that they were cornered or

trapped in such a tight situation that no other remedy could be availed of except to surrender . . . If Lim's story is to be accepted the Court cannot find good reasons to justify him to capture Kalitas and his neighbors if his purpose is only to collect debts. Besides, the attack on the credibility of the witnesses for the prosecution is based upon trial matters. Thus, counsel for the accused claims that the testimony of the prosecution witness Alfredo Matiga is not credible since the said witness even failed to recall, during his cross-examination, the number of the house where he was living and his birthdate. It should be noted, however, that the said witness testified to only one detail, and that is, the fact that he saw the Buick car of Onting Biruar refueling at a gasoline station in the poblacion of Mati on the night of July 2, 1966, which fact is admitted by the accused Abraham Lim and Ceferino Caturan.

The contention is devoid of merit. It had been positively established that the late George Kalitas had kept money in a trunk placed under his bed which the accused took on the night in question. Martillana Kalitas categorically stated in court that her father, George Kalitas, had money, amounting to P65,000.00, which he kept in a trunk placed under his bed, because he had no trust in banks. 21 Jessie Renopal testified that the accused broke open the said trunk with an axe on the night of July 2, 1966 and took the money placed inside. 22 Her testimony is corroborated by Silvia Mingming Kalitas, the wife of George Kalitas. Silvia Mingming Kalitas declared, however, that the money kept by her husband amounted to only P40,560.00 at the last counting. 23 The testimony of Silvia Mingming Kalitas which was quoted by counsel for the accused, does not support his contention that no money was taken from George Kalitas on the night in question. The testimony, adverted to, reads, as follows:

The testimony of Narciso Bauyot is also assailed on the ground that he signed his sworn statement before the Municipal Judge during the preliminary investigation without reading its contents, or without having then read and explained to his. The conviction of the accused, however, was not based upon the sworn statement of the witness, but, on the collective testimony of Narciso Bauyot and the other prosecution witnesses who were subjected to a rigid cross-examination by the defense counsel during the trial of the case. Besides, counsel failed to point out how the failure of this witness to understand the substance of his affidavit could have cast serious doubt on the guilt of the defendants,

COURT:

The testimony of Gorgonio Mosende regarding the robbery in his house is also impugned as improbable because the said Mosende had testified that the accused Romualdo Raboy and Edgardo Señeres had announced their presence to Mosende before coming to the house, which they need not have done in order to rob the couple. While it may be true that the accused had made known their presence to Mosende and that the latter had invited them to come up his house, Mosende did so because he thought that the callers were relatives of his wife. It may have been unwise for Mosende to do so, but that does not render his story improbable considering that the incident happened in the rural areas where the people are generally more hospitable. Besides, Mosende is a poor man and he had no reason to expect that he would be robbed. At any rate, the accused failed to impeach the testimony of the said Gorgonio Mosende.

Q Was that trunk from which the money was taken burned?

Defense counsel also claims that no robbery was committed in the house of George Kalitas since there is no positive evidence presented to show the existence of the money allegedly taken from George Kalitas as well as the act of taking the same. To support his contention that no money was taken from George Kalitas, counsel quoted a portion of the testimony of Silvia Mingming Kalitas, the wife of George Kalitas, which shows that the trunk where the money was kept was burned without its being opened. Counsel further stated that the accused were apprehended within 48 hours after the commission of the crime and yet the money stolen or a part thereof was not traced to, nor recovered from the accused, much less presented in court.

Q Now, the Court wants to know whether that trunk which you have mentioned from which they got the P40,560.00 cash was taken before or after the house was set on fire. Which is which? A The fire was beginning, when it was advancing, that the time when the robbers came up.

A It was burned; nothing is left, including the clothes. Q Before it was burned, was it already opened? A Before it was burned, it was not yet opened. It was they themselves who opened it. 24 It is clear therefrom that the accused opened the trunk and took the money placed inside before it was burned. The argument of counsel that the amount stolen, or a portion thereof, should have been presented in evidence in order to make the transportation credible, is untenable. Where the property stolen was not recovered, it would be impossible to present it in evidence. Besides, there is no law nor jurisprudence which requires the presentation of the thing stolen in order to prove that it had been taken away. It appears of record that there were other persons who participated in the commission of the offenses, but have not been charged. Ceferino Caturan stated that there were 9 of them inside the car when they went to the house of George, Kalitas on the night in question, and Abraham Lim testified

that one of his companions in going to the house of George Kalitas on the said night was one Cesar Go. 25 However, only 8 persons have been Identified and charged and Cesar Go is not one of them. The money could be with him. Moreover, the accused were not apprehended immediately after the commission of the crimes, but a day later, or on July 4, 1966. The accused could have disposed of the money before their arrest. The failure of the prosecution to present in evidence the money stolen does not give rise to a reasonable doubt as to the guilt of the accused. It is also contended by the accused that only one offense was committed since the robbery in the houses of Gorgonio Mosende and George Kalitas is one continuing offense, committed at the same time and on one occasion, and arising out of one criminal resolution, and the burning of the house of George Kalitas was the means to commit the crime of robbery. Counsel cites the case of People vs. De Leon 26 in support of his contention. The contention is without merit. In the case cited by counsel the defendant entered the yard of a house where he found two fighting cocks belonging to different persons and took them. In this case, however, the accused, after committing the crime of robbery in band in the house of Gorgonio Mosende, went to the neighboring house of George Kalitas where they committed the crimes of Arson and Robbery with Homicide and Physical Injuries. Obviously, the rule enunciated in the cited case cannot be made applicable since the herein accused performed different acts with distinct purposes which resulted in juridically independent crimes. The Court also rejected the applicability of the cited case of People vs. De Leon in the case of People vs. Enguerro, 27 and found the accused therein guilty of three (3) separate crimes of Robbery in Band, where the said accused, after committing a robbery in band in a store, went to another house where they committed a second robbery, and after committing it proceeded to another house where they committed a third robbery, and in the same barrio during the period from 7:00 p.m. to 11:00 p.m. of the same day. The burning of the house of George Kalitas was not the means in committing the robbery. The evidence shows that the accused gained entry into the house of George Kalitas by breaking down the door with an axe and not by burning the same. 28 Finally, the accused Abraham Lim pleads that he had been denied the right to be present and defend in person and by attorney at every stage of the proceedings against him, that is, from the arraignment to the promulgation of the judgment. He claims that the trial court proceeded with the trial of the cases despite his absence therefrom although he was charged with a capital offense. The contention is devoid of merit. The provisions of the Rules of Court 29 Securing to an accused person the right to be present in all criminal prosecutions against him must be understood as securing to him merely the right to be present during every stage of his own trial and not at the trial of another. Since the accused Abraham Lim was present during his arraignment and jumped bail after giving his testimony in court and was

absent only when his co-accused were presenting their evidence, none of which are prejudicial to the interest of the accused Abraham Lim his attorney was present during this time, and also present when the sentence was read to him, there was no infringement of the said defendant's right to be present at every stage of the proceedings against him. The trial court, therefore, did not err in finding the defendants Abraham Lim alias Titing Lim, Ceferino Caturanalias Fred, Romualdo Raboy alias Romy, and Saturnino Galliano guilty of the crimes of Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries. The trial court found that the commission of the offenses charged was attended by the aggravating circumstances of nighttime, dwelling, use of motor vehicle, use of unlicensed firearm, and with the aid of armed men to ensure or afford impunity. The use of unlicensed firearm, however, cannot be appreciated as an aggravating circumstance in Crim. Case Nos. 9988 (Arson) and 9989 (Robbery with Homicide and Physical Injuries) since the special aggravating circumstance of use of unlicensed firearm is solely applicable to robbery in band under Art. 295 of the Revised Penal Code. 30 This, notwithstanding, the death penalty imposed upon the accused Abraham Lim alias Titing Lim, Ceferino Caturan alias Fred, Romualdo Raboy alias Romy, and Saturnino Galliano in Crim. Case No. 9989, for Robbery with Homicide and Physical Injuries, is within the range of the penalty provided for by law. However, for lack of the necessary affirmatory votes, the penalty imposed upon them by the trial court is hereby reduced to reclusion perpetua. We also find that the trial court had inadvertently ordered the defendants to indemnify, jointly and severally, the heirs of the deceased George Kalitas the amount of P20,000.00 for the money stolen from him and not recovered in Crime Case No. 9988, and the amount of P12,000.00 for the death of the said deceased in Crim. Case No. 9989. Crim. Case No. 9988, however, is a prosecution for Arson, for the illegal burning of the property of George Kalitas valued at P34,545.00, while Crim. Case No. 9989 is one for Robbery with Homicide and Physical injuries where the evidenced showed that the amount of P40,000.00 was taken from the house of George Kalitas. The Solicitor General recommends that the defendants be ordered to indemnify the heirs of the late George Kalitas the amount of P34,545.00 in Crim. Case No. 9988, and the amounts of P12,000.00, for the death of the said deceased and P40,000.00, for the money stolen from him. We further note that the penalty imposed upon the defendants in Crim. Case No. 9987 is less than what the law prescribes for the offense committed. In said case, the defendants were found guilty of Robbery in Band, attended, among others, by the aggravating circumstance of use of unlicensed firearms and sentenced to suffer an indeterminate penalty of from two (2) years and four (4) months of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. However, Article 295 of

the Revised Penal Code, as amended, provides that if the robbery mentioned in pars. 3, 4 and 5 is committed by a band, the offenders shall be punished by the maximum period of the proper penalties, and Article 296 of same Code, as amended, also states that when any of the arms used in the commission of the offense be an unlicensed firearm, the penalty to be imposed upon the malefactors shall be the maximum of the corresponding penalty provided for by law. Hence, the penalty to be imposed upon the defendants should be the maximum of the maximum period of the penalty, even without the concurrence of any other aggravating circumstance, 31 or an indeterminate penalty of from four (4) years and two (2) months of prision correccional as minimum, to ten (10) years of prision mayor, as maximum. WHEREFORE, the judgment appealed from should be, as it is hereby AFFIRMED, with the modification that the defendants Abraham Lim alias Titing Lim, Ceferino Caturan alias Fred, Romualdo Raboy alias Romy, and Saturnine Galliano are sentenced: (1) to suffer an indeterminate penalty of from four (4) years and two (2) months of prision correccional as minimum, to ten (10) years of prision mayor, as maximum in Crim. Case No. 9987; (2) to suffer the penalty of reclusion perpetua in Crim. Case No. 9989; and (3) to indemnify, jointly and severally, the heirs of the deceased George Kalitas the amount of P34,545.00 in Crim. Case No. 9988, and the amount of P40,000.00 in Crim. Case No. 9989, for the money stolen from the said deceased. The indemnity for the death of George Kalitas is hereby increased to P30,000.00. 32 With costs against the accused Abraham Lain alias Titing Lim, Ceferino Caturan alias Fred, Romualdo Raboy alias Romy, and Saturnino Galliano in this instance.

Separate Opinions AQUINO, J., concurring: Appellant Lim was tried properly because his absence at the trial was unjustified (Sec. 19, Art. II, Constitution). The minimum of the penalty in Case No. 9987 should be taken from prision mayor minimum. G.R. No. L-13899

September 29, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO BLAZA and FRANCISCO MANGULABNAN, defendants, FRANCISCO MANGULABNAN, defendant-appellant. Office of the Solicitor General for plaintiff-appellee. Manansala and Saturnino for defendant-appellant.

Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr. De la Fuente and Cuevas, JJ., concur. Fernando, C.J., concurs in th result. Teehankee, J., took no part.

Separate Opinions

AQUINO, J., concurring: Appellant Lim was tried properly because his absence at the trial was unjustified (Sec. 19, Art. II, Constitution). The minimum of the penalty in Case No. 9987 should be taken from prision mayor minimum.

PADILLA, J.: In an amended information subscribed by the Provincial Fiscal and filed in the Court of First Instance of Laguna, Pablo Blaza alias Fernandez and Francisco Mangulabnan alias Ellen were charged with the crime of kidnapping Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1953, for the purpose of extorting ransom from them, defined and penalized under the provisions of Article 267 of the Revised Penal Code, as amended by Republic Act No. 18 (crim. case No. SC-161). Their alleged confederates are those named defendants in crim. case No. SC-120 of the same Court, to wit: Lope Cunanan alias Perla, Ruperto Esquillo aliasesSergio and Alex, Raymundo Abesamis aliases Rading, Reddy, Mike, Manding, Uto, Ben, Pepe and North. 1 Upon arraignment the defendants Blaza and Mangulabnan, assisted by counsel de oficio, pleaded not guilty. On 5 November 1957 the defendant Mangulabnan by counsel de parte, Attorney Emilia C. Saturnino, filed a motion to quash the information against him, claiming that he is one of the defendants in crim. case No. 1940 of the Court of First Instance of Pampanga, People vs. Guillermo Paquinto, et al., for "the complex crime of Rebellion with Multiple Murders, Robberies, Arsons and Kidnapping," on 27 counts of atrocities allegedly

committed on different dates in the provinces of Pampanga, Pangasinan, Bulacan, Nueva Ecija, Tarlac and Laguna (Exhibits 1 & 1-A); that in criminal case No. 15909 of the Court of First Instance of Laguna, People vs. Apolinar Oracion, et al.,for rebellion complexed with multiple murder, robbery, arson, rape and kidnapping, the kidnapping of Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1957 (for which the defendant Mangulabnan was separately charged in crim. case No. SC-161) was for the purpose of raising funds for the HMB organization and a necessary means of committing the crime of rebellion (Annex B to motion to quash); that on 17 December 1956 the said court, rendering judgment in the latter case, held that "such act was in furtherance and a mere ingredient of the offense of rebellion" and "cannot be punished separately from the latter (rebellion) or complexed with it" (Annex C to motion to quash); and that the Supreme Court in the cases of People vs. Hernandez, 52 Off. Gaz. 5506; People vs. Geronimo, G.R. No. L-8936, 23 October 1956 and People vs. Togonon, G.R. No. L-8926, 29 June 1957, has held that "the crimes of murders, arsons, kidnappings, etc., when committed as a means to or in furtherance of the subversive ends, become absorbed in the crime of rebellion, and cannot be considered as giving rise to a separate crime;" and contending that the defendant Mangulabnan having been charged with the principal offense of rebellion in crim. case No. 1940 of the Court of First Instance of Pampanga is twice put in jeopardy of being punished for the same offense in crim. case No. SC-161 of the Court of First Instance of Laguna, prayed that the information in the latter case be quashed. After hearing, during which counsel de partefor the defendant Mangulabnan and the Provincial Fiscal appeared and orally argued in support of their motion and objection, on 5 November 1957 the Court denied the motion to quash and set the case for trial on 29 November 1957 at 9:00 o'clock in the morning. However, the Court cancelled the trial set for 29 November 1957 and reset it for trial on 12 December 1957 at the same time. On 11 December 1957 the defendant Mangulabnan filed a motion for reconsideration of the order denying his motion to quash and on 12 December 1957 the Provincial Fiscal, an objection thereto. On the same day, 12 December 1957, the Court denied the motion for reconsideration and set the case for trial on 27 January 1958 at 9:00 o'clock in the morning. On 16 January 1958 the defendant Mangulabnan by counsel de parte filed a petition praying that the case be reset for trial on 25 February 1958 on the ground that a petition for certiorari testing the legality of the denial of the defendant's motion to quash would be filed in the Supreme Court after the needed amount for filing and attorney's fees shall have been raised by the defendant. On 22 January 1958 the defendant Blaza filed a motion praying for separate trial in view of the delay in the trial of the case due to several postponements at the behest of his co-defendant. On 23 January 1958 the Court denied Blaza's motion and reset the case for trial on 25 February 1958.

On the day set for trial, 25 February 1958, the assistant provincial fiscal and counsel de parte for the defendant Blaza, Attorney Ariston Oblena, appeared but counsel de parte for the defendant Mangulabnan, Attorney Emilia C. Saturnino, did not appear despite previous notice. In view thereof the Court entered an order imposing upon the absent counsel a fine of P25, with subsidiary imprisonment in case of insolvency, appointing Attorney Tirso Caballero as counsel de oficio for the defendant Mangulabnan, who prayed that he be relieved from his appointment because he is related to the offended parties, setting the case for trial on 3, 4, 5, 6 and 7 March 1958 at 9:00 o'clock in the morning, and appointing Attorney Celso Cabalones, Leandro Rebong, Benjamin Agarao and Enrique Villanueva as counsel de oficio for the defendant Mangulabnan, should counsel de parte fail to appear on the first day of the trial. On 28 February 1958 counsel de parte for the defendant Mangulabnan filed a petition in the trial court explaining that her failure to attend the trial of the case on 25 February 1958 was due to a sudden indisposition that she felt of which there was no material time to notify the Court and prayed that she be excused for failure to attend the trial of the case on that date, and alleging that a petition for certiorari with preliminary injunction to be filed in the Supreme Court was being prepared to test the sufficiency and legality of the information filed against her client in criminal case No. SC-161 and that she had received subpoenas from the City Attorney of Quezon City, Courts of First Instance of San Pablo and Cabanatuan Cities and the City Fiscal of Manila to appear before them as counsel on 3, 4, 5 and 7 March 1958, prayed that the trial of the case be postponed indefinitely until the Supreme Court shall have decided her client's petition for certiorari with preliminary injunction. On 1 March 1958 the same counsel filed a motion for reconsideration of the order entered by the Court on 25 February 1958 imposing upon her a fine of P25, with subsidiary imprisonment in case of insolvency, reiterating the same reasons stated in her petition filed on 28 February 1958. On the date set for trial, 3 March 1958, counsel de parte for the defendant Mangulabnan did not appear. Whereupon the Court denied her motion for indefinite postponement of the trial of the case in behalf of her client and proceeded with the trial of the case, the defendants being assisted by their respective counsel de oficio. On the second day of the trial, 4 March 1958, counsel de parte for the defendant Mangulabnan appeared and prayed for indefinite suspension of the trial of the case against her client and reconsideration of the order imposing upon her a fine of P25. The Court denied the first part but granted the second part of her prayer and proceeded with the trial of the case. After hearing the testimony of the defendant Blaza and his witness Silverio Lintak, the Court entered an order setting the continuation of the trial of the case for 10 March 1958 at 9:00 o'clock in the morning. After trial, on 14 March 1958 the Court rendered judgment, which was promulgated on 26 March 1958, finding the defendants guilty of the crime charged and sentencing them to suffer the penalty of reclusion perpetua,the accessory penalties provided by law, and to pay the costs.

On 26 March 1958 the defendant Mangulabnan filed a notice of appeal. On 2 April the defendant Blaza filed a motion for reconsideration. On 8 April the Court denied his motion for reconsideration. On 10 April the defendant Blaza filed a notice of appeal. On 14 May his counsel de oficio filed a motion for withdrawal of his appeal. On 16 May 1958 the trial court approved the withdrawal of his appeal. This appeal is by the defendant Francisco Mangulabnan only. Dr. Zosimo Fernandez, his wife Dorotea, daughter Fe and cousin Buenaventura Fernandez, who was the chauffeur of the family, lived in the town of Pagsanjan, province of Laguna. At dinner time, about 7:00 o'clock in the evening of 23 April 1953, the Fernandez spouses heard a commotion and the barking of dogs in their yard and somebody knocking at the front door of the house. Dr. Fernandez asked Buenaventura to see what the commotion and barking of dogs were all about while Mrs. Fernandez peeped through an opening and saw people in army uniform. Buenaventura told the spouses that somebody who was trying to gain admission to the house wanted to see Dr. Fernandez at the behest of Captain Sebastian and that the house was surrounded by people in army uniform. Afterwards, they heard somebody knocking at the back door. Dr. Fernandez stood up, looked outside the window and asked what the man wanted. The latter answered that Captain Sebastian was sending for the doctor. The man's answer aroused Dr. Fernandez's suspicion that the visitor did not mean well because Captain Sebastian was residing in Cavinti. Dr. Fernandez slipped out of the house to ask aid and protection from the chief of police, who lived nearby, leaving behind his wife, daughter, cousin and maids. After Dr. Fernandez had left, the inmates of the house heard somebody persistently knocking at the door and trying to force it open. Mrs. Fernandez and her daughter Fe opened the kitchen door to escape but Lope Cunanan alias Captain Mendoza grabbed Fe by the hand. Cunanan went up the house and ordered Mrs. Fernandez, Fe and Buenaventura to go down with him. Downstairs, Mrs. Fernandez saw the companions of Lope Cunanan who were about 17 in number, armed with guns and revolvers, at the stairs of the house, in the backyard and surrounding area. The band forcibly took them along and made them wade through a knee-deep river and walk through coconut groves until they reached the outpost of the band in the mountains at about 3:00 o'clock the following morning. There the three victims were confined for two days guarded by the appellant, Pablo Blaza and their companions. After two days in the outpost of the band they were transferred to the inner part of the mountains where they stayed until they were released on 8 May 1953 after paying to their kidnappers a ransom of P40,000. Turning back to the night of the incident, 23 April 1953, when Dr. Fernandez returned to his house with some soldiers and policemen and found his wife, daughter and cousin gone, he went to the army headquarters but as he found nobody there, repaired to the old municipal building, to telephone and report on the incident to the army authorities in Camp Nazareth, Pila, Laguna, under the command of Coronel Friedlander. After searching the house, Dr. Fernandez's uncle found on a table inside the

doctor's room a letter signed by Captain Mendoza stating that his wife, daughter and cousin were taken for the purpose of asking ransom from him. Days after Dr. Fernandez received about five or six letters signed by the same person asking for P100,000 ransom, for the release of the three victims, which amount was reduced to P80,000, P60,000 and finally to P40,000 through negotiations with the kidnappers.1awphîl.nèt On 8 May 1953, after the ransom was finally reduced to P40,000, Dr. Fernandez asked Dionisio Almario, his son Dionisio, Jr., Juan Abaño, Conrado Velasco and one Ruperto to proceed to barrio Anibong. There, as agreed upon, Ceferino Llamas and Eliseo Zafra delivered the money to Dionisio Almario and his companions which they divided and strapped on their respective bodies. At that juncture Ruperto, whom Dionisio Almario had earlier dispatched together with Juan Abaño to the place where the kidnap victims had been confined, arrived and reported to him that he had been assured by the kidnappers that the victims were in safe hands. Ruperto led them to where the victims were. About half an hour after arrival in the mountains, the three victims were produced to Dionisio Almario and his companions by Lope Cunanan and his band numbering about twenty. Among those in the band was the appellant. Dionisio gave the money to Mrs. Fernandez which was counted by some of the members of the band of Lope Cunanan in his presence. After counting, Cunanan took P10,000, gave P6,000 each to Pablo Blaza and one Pepe and distributed P1,000 each to the remaining members of the band. The balance of P4,000 was set aside for expenses of the band. After waiting for 5:00 o'clock in the afternoon, Cunanan allowed them to leave. The victims and the rescue party arrived in town at about 6:30 o'clock in the evening. The appellant denies complicity in the commission of the crime imputed to him. He claims that he joined the Huk organization sometime in 1948 and was with Basilio Balbos alias Commander Maning now dead; that later on he joined the unit of Tomas Calma as his security guard; that from 1950 to 1951 Calma's unit operated in the Sierra Madre Mountains; that thereafter his unit was transferred to the mountains of Bulacan and Arayat; that during the entire year 1953 his unit operated in the vicinity of San Luis, Candaba and Arayat and never left the jurisdiction of Pampanga; that his unit never operated in the province of Laguna, particularly in Pagsanjan; that he was a member of the unit of Tomas Calma until 1954; that he knew Lope Cunanan alias Commander Perla even before he joined the Huk organization because they lived in the same barrio but that he was never associated with him; and that he came to know Apolinar Oracion only in 1956 when he was brought by the army authorities to Canlubang and confined in the stockade in connection with the Fernandez kidnapping case. The appellant's denial of complicity in the commission of the crime of kidnapping imputed to him and the members of the band of Lope Cunanan alias Captain Mendoza is ineffective in the face of the clear, direct and positive testimony of Mrs. Dorotea Fernandez, one of the victims, that he and his co-defendant Pablo Blaza were among those who stood guard over her, her daughter and cousin in-law; that she saw him with the band of kidnappers on the 23rd and 24th days of April 1953; and that he was present while the ransom money was being counted by the members of the band; and of Dionisio

Almario that he saw the appellant with the band of kidnappers when the three victims were being led out from the mountains by the band on 8 May 1953 and that he was present when the ransom money was being counted by the band. The appellant assails the act of the trial court in proceeding with the trial of the case in the absence of his counsel de parte after appointing a counsel de oficio to assist him. Reviewing the various motions filed by his counsel de parte and the orders entered by the trial court thereon, we find that the appellant has no valid reason to complain. The motions for indefinite postponement of the trial of the case filed by his counsel de parte, on the ground that a petition for certiorari to test the legality of the denial of his motion to quash would be filed in the Supreme Court, but which was never filed, were plainly to delay the trial and disposition of the case. Despite receipt of notice his counsel de parte failed to appear on the first day of the trial (3 March 1958). On the second day (4 March 1958) she appeared but all that she did for her client was to reiterate his plea for indefinite suspension of the trial of the case and state that she "will just corroborate for the defense." On the third and last day (10 March 1958) she actively took part in the defense of the appellant, she herself conducting the direct examination of the appellant. The defendant was under detention and it is his constitutional right and the duty of the Court to have a speedy trial and disposition of the case. Moreover, it cannot be said that counsel de oficio who assisted the appellant in the absence of counsel de parte on the first day of the trial was remiss in the performance of his duties. As shown in the transcript of stenographic notes, he had endeavored to safeguard the appellant's rights as a defendant on trial. As regards the appellant's complaint that he had no been afforded sufficient time to present other witnesses in his defense, it appears in the transcript of stenographic notes that after the appellant had finished testifying in his behalf, counsel de parte stated that she could not close the evidence for the defense because she wanted to secure the appearance of Apolinar Oracion as a witness. Asked by the Court what his testimony would be about, she answered "that (the) kidnapping for ransom was to secure funds for the functions of the organization." The Court denied the continuation of the trial of the case and ordered the trial closed because the testimony of Oracion would not be of any help to the appellant in view of his denial of complicity in the kidnapping of the victims. Hence, the appellant cannot validly complain and the Court did not err in its last mentioned order. Furthermore, the appellant claims to have known Apolinar Oracion only in 1956 or 1957 when he was brought to the stockade of the Second Military Area in Canlubang. The crime imputed to the appellant was committed on 23 April 1953. Therefore, whatever testimony Apolinar Oracion would give in evidence would not be of much value to the appellant's defense. The appellant raises the question of double jeopardy. He points out the fact that he had been charged with the complex crime of rebellion with multiple murder, robbery, arson and kidnapping in criminal case No. 1940 of the Court of First Instance of Pampanga (Annexes A and A-1, motion to quash); that on 8 January 1959, after pleading guilty to the crime of simple rebellion, the said Court sentenced him to suffer the penalty

of one year and five months of prision correccional and to pay his proportionate share of the costs (Annex B to petition to withdraw as counsel); in criminal case No. 15909 of the Court of First Instance of Laguna, People vs. Apolinar Oracion, et al., for rebellion complexed with multiple murder, robbery, arson, rape and kidnapping, the kidnapping of Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1957 was alleged to be for the purpose of raising funds for the HMB organization and a necessary means of committing the crime of rebellion (Annex B, motion to quash); and that on 17 December 1956, the said Court held that "such act was in furtherance and a mere ingredient of the offense of rebellion" and "cannot be punished separately from the latter (rebellion) or complexed with it" (Annex C, motion to quash). He now contends that the crime of kidnapping imputed to him being a necessary means of committing and in furtherance of the crime of rebellion, the said crime is absorbed by rebellion and that, having been convicted of simple rebellion, he is now put twice in jeopardy of punishment for the same offense. The appellant's contention is untenable. A reading of the information filed in criminal case No. 1940 of the Court of First Instance of Pampanga (Annexes A and A-1; motion to quash) shows that the kidnapping of Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez had never been mentioned as an overt act of rebellion and a scrutiny of the information filed in criminal case No. 15909 of the Court of First Instance of Laguna and the judgment rendered therein discloses no mention of the appellant as a defendant therein. The appellant, therefore, had never been put in jeopardy of punishment for the crime of rebellion and cannot maintain that he is being twice put in jeopardy of punishment for the same offense. In the instant case, the amended information filed in court against the appellant and his co-defendant was for "kidnapping with ransom" under the provisions of article 267 of the Revised Penal Code, as amended by Republic Act No. 18. The information filed in the Court of First Instance of Laguna against Lope Cunanan, et al. (SC No. 120) was also for the same offense. On appeal by Raymundo Abesamis, this Court found "that the kidnapping was made by Huks under the command of Capt. Mendoza, or Lope Cunanan, and Abesamis admittedly belonged to the Huk detachment under such command." Nevertheless, this court affirmed the judgment of the Court of First Instance finding Raymundo Abesamis guilty of the crime of kidnapping for the purpose of extorting ransom and sentencing him to suffer the penalty of reclusion perpetua. The herein appellant cannot be entitled to a penalty lighter than that imposed upon his confederates. The pronouncement of this Court in the case of People vs. Raymundo Abesamis, et al., G.R. No. L-13007, 23 December 1960, that the head of the band, Lope Cunanan, having been sentenced only to the penalty ofreclusion perpetua, the same penalty should be meted out to the appellant therein, despite the presence of the aggravating circumstances of nighttime, with the assistance of armed men, and band, is equally applicable to the herein appellant. The judgment appealed from is affirmed, with costs against the appellant.

Bengzon, C.J., Labrador, Concepcion, Reyes, J.B.L., Paredes and De Leon, JJ., concur. Barrera and Dizon, JJ., took no part.

consequence of which the complaining witness suffered actual, moral and consequential damages which could be estimated in the total sum of P100,000.00.

G.R. No. 92355 January 24, 1991 CONTRARY TO LAW. (p. 7, Rollo) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRING CALIXTRO, CELSO FERRER and LOUIE FERRER, accused, PEDRING CALIXTRO, accused-appellant. The Solicitor General for plaintiff-appellee. Eliseo A. Mendoza for accused-appellant.

PARAS, J.:p This is an appeal from the decision of the Regional Trial Court, Branch 33, Guimba, Nueva Ecija, in Criminal Case No. 536-G1 entitled "People of the Philippines v. Pedring Calixtro, Celso Ferrer and Louie Ferrer", convicting the accused-appellant, Pedring Calixtro, of the crime of rape (Rollo, pp. 22-26). The accused Pedring Calixtro, Celso Ferrer and Louie Ferrer were charged with the crime of Robbery with Rape under the following information: That on or about the 24th day of April, 1989 in Barangay Faigal, Municipality of Guimba, Province of Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then armed with sharp-pointed instrument (patalim), conspiring, confederating and helping one another, and with intent to gain and by means of force and violence and intimidation upon person, did then and there willfully, unlawfully and feloniously take, steal and carry away one (1) gold ring with three (3) stones of diamond and one (1) pair of earrings with one stone diamond with a total value of TEN THOUSAND PESOS (P10,000.00) Philippine Currency, more or less, belonging to EDELIZA ASTELERO to the damage and prejudice of the latter in the said amount; and that during or on the occasion of the robbery, the said three (3) accused conspiring, confederating and helping one another did then and there willfully, unlawfully and feloniously have sexual intercourse one after the other with said EDELIZA ASTELERO against her will. That the crime was committed with the aggravating circumstance of nighttime which was taken advantage of by the said accused and as a

The pertinent facts of the case as gathered from the records are as follows: Edeliza Astelero, her husband Gonzalo Astelero, and an 11 year old son are residents of Barangay Faigal, Guimba, Nueva Ecija. Pedring Calixtro had been a resident of the same barangay for a year before the incident occurred. At about 10:00 o'clock in the night of April 24, 1989, while the Astelero family were peacefully resting in their abode, Edeliza heard the barking of dogs; she peeped thru the hole of their window and she saw three male persons. She went to her husband on the bed and awakened him. Both peeped through the hole of the window where they saw three men calling from outside, "Manang, Manang, buksan mo ang pintuan." She went near the door of their hut. One of the three persons threatened her that if she would not open the door, they would blast the house with a hand grenade. She was about to open the door but they continued kicking the door to open the same (p. 8, TSN, Oct. 10, 1989). Then they hacked the wall of their house and the same fell down. She was afraid that her family would be killed, so she decided to open the door. As she was opening the door, Celso Ferrer pulled her outside of the house and threatened her not to ask for help. Then they dragged her out to the middle of the fields (pp. 9-10, TSN, Ibid.). In the middle of the field, Celso Ferrer and Louie Ferrer took hold of her arms and pointed a bladed weapon at her neck. At that very moment, accused Pedring Calixtro told her that if she would not give her womanhood she would be killed. She pleaded for mercy but accused Pedring Calixtro succeeded in removing her duster and short pants. She struggled but the accused started hurting her thighs (p. 11, TSN, Ibid.). Pedring Calixtro succeeded in having sexual intercourse with the victim, while Celso Ferrer took off her ring and earrings. Celso Ferrer and Louie Ferrer took turns in abusing her. After the heinous acts, the three accused debated whether to kill Edeliza Astelero or not. Edeliza took the opportunity to flee while the three were discussing. She ran as fast as she could until she saw a jeep, which she later found to be carrying her husband. Thereafter, she was brought to the hacienda of Bebang Adriano (pp. 12-14, TSN, Ibid.). The testimony of complainant witness is corroborated by Rogelio de la Cruz, a barangay tanod and neighbor of the Asteleros. He testified that in the evening of April 24, 1989 at around 10:00 o'clock, more or less, the accused Pedring Calixtro, Celso Ferrer and Louie Ferrer arrived in his house, and asked him for chicken, which they told him to cook and prepare as "pulutan" but he refused. The three consumed a bottle of wine in his house. When the three left, he followed them secretly towards the house of complainant. He saw them kicking the house and ordering the occupants to open the door. Moments

later, he saw them dragging the complainant away from her house towards the field. He reported the incident to the Barangay Captain (pp. 3-8, TSN, Nov. 14, 1989). Police Corporal Juanito Villaba testified that in the evening of April 24, 1989, while in the office of the Integrated National Police, Guimba, Nueva Ecija, Barangay Captain Marina Quitallas and companions arrived and reported that a certain Edeliza Astelero had forcibly been taken from her house by three male persons. Officer-in-charge, Lt. Soriano, dispatched Sgt. Mendoza and other policemen to respond to the call (pp. 5-6, TSN, Nov. 21, 1989). Dr. Diosdado Barawid testified that the victim was brought to him for examination sometime on April 25, 1989 and he made the following observation: "light blackish discoloration right hip lower portion, inner aspect; several abrasion upper portion and inner aspect, and laboratory examination of vaginal smear-positive (+) for sperm cell, 3 counted." He further testified that the abrasions or injuries sustained by Edeliza Astelero were caused by a blow and there were signs of struggle (pp. 3-7, TSN, Nov. 27,1989). Pedro Calixtro testified on his behald that at 5:00 p.m. on April 24, 1989 he was tendering water in his ricefield. And about 5:30 of the same afternoon he was invited by Celso Ferrer and Louie Ferrer to the house of Rogelio de la Cruz to buy chicken. He proceeded back to the ranch after 30 minutes and attended to the water pump. That during the hours of 10:00 and 11:00 p.m. of the same night he heard shouts. He proceeded to the direction of the shouts and saw a naked woman being forced and brought away by Celso Ferrer and Louie Ferrer. Then he heard from Celso Ferrer the words "papatayin kita", being addressed to Edeliza. Witness gave to Edeliza the dress which he noticed behind her. A fist fight ensued between him and Celso. After the fight, he noticed that Edeliza ran away, whereas, he went to the watering pump. At about 6:00 o'clock the following morning, he was apprehended by Sgt. Soriano (pp. 311, TSN, November 28, 1989; pp. 7-9, Brief for the Accused-Appellant; Rollo, pp. 43-45). Of the three accused, only Pedring Calixtro was apprehended. Pedring Calixtro pleaded "not guilty" to the crime charged, thereafter, trial on the merits ensued. After trial, the court a quo rendered a decision, the dispositive portion of which reads as follows: WHEREFORE, the Court finds the accused Pedring Calixtro guilty beyond reasonable doubt of the crime of Rape as described under Art. 335 of the Revised Penal Code, as amended, and hereby sentences him to suffer the penalty of reclusion perpetua and to indemnify the complainant in the amount of P30,000.00, without subsidiary imprisonment in case of insolvency. SO ORDERED. (pp. 26, Rollo)

Dissatisfied, Pedring Calixtro appealed and assigned the following errors, to wit: I THE LOWER COURT ERRED IN CATEGORICALLY PRONOUNCING THAT THE TESTIMONIES OF THE COMPLAINANT EDELIZA ASTELERO DURING THE TRIAL OF THE CASE CLEARLY ESTABLISHED THE GUILT OF ACCUSEDAPPELLANT BEYOND REASONABLE DOUBT, AS NARRATED BY SAID COURT IN THE THIRD AND LONGEST PARAGRAPH OF PAGE 2 OF THE DECISION IN QUESTION. II THE LOWER COURT ERRED IN: STATING THAT THE ACCUSED-APPELLANT'S DEFENSE CONSISTED OF MERE DENIALS OF THE CRIME CHARGED AND ALIBI; AND IN RE-STATING THE TESTIMONIES OF SAID ACCUSEDAPPELLANT IN SHORT FIRST PARAGRAPH OF PAGE 4 OF SAID DECISION. III THE LOWER COURT ERRED IN FINDING THAT THE COMPLAINANT HAD POSITIVELY IDENTIFIED ACCUSED-APPELLANT AS ONE OF THE PERSONS WHO SEXUALLY MOLESTED HER. IV THE LOWER COURT ERRED IN DISCREDITING THE TESTIMONIES OF THE ACCUSED-APPELLANT AS THE SAME WERE NOT CORROBORATED BY OTHER EVIDENCE. V THE LOWER COURT ERRED IN NOT FINDING COGENT REASON WHY THE COMPLAINANT SHOULD FALSELY CHARGE THE ACCUSED-APPELLANT OF THE SERIOUS CRIME OR ROBBERY WITH RAPE. VI THE LOWER COURT ERRED IN NOT DISCREDITING THE TESTIMONIES OF ROGELIO DE LA CRUZ. VII

THE LOWER COURT ERRED IN ALLOWING THE COMPLAINANT TO TESTIFY IN STORY-TELLING MANNER OVER THE OBJECTION OF THE UNDERSIGNED COUNSEL; and VIII THE LOWER COURT ERRED IN NOT TAKING INTO CONSIDERATION IN MAKING ITS DECISION, THE ACCUSED-APPELLANT'S MEMORANDUM FILED ON JANUARY 2,1990, PURSUANT TO THE VERBAL ORDER DATED DECEMBER 11, 1989 AND IN NOT INCLUDING SAID MEMORANDUM AND THE NOTICE OF APPEAL IN THE RECORDS OF THE CASE REMANDED TO THIS HONORABLE SUPREME COURT. (pp. 37-38, Rollo) Under Article 335 of the Revised Penal Code, rape is committed if the accused had carnal knowledge of a woman and such act is accomplished under the following circumstances: (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs is present. There are three settled principles to guide an appellate court in reviewing the evidence in rape cases: (1) an accusation for rape can be made with facility; it is difficult to prove it but more difficult for the person accused, though innocent, to disprove it (People v. Aldana, G.R. No. 81817, July 27, 1989); (2) in view of the intrinsic nature of the crime of rape where two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense (People v. Villapana, 161 SCRA 72). What is decisive in the rape charged is complainant's positive identification of the accused-appellant as the malefactor (People v. Mustacisa, 159 SCRA 227; People v. Ramilo, 146 SCRA 258). In the case at bar, the defense depended heavily on supposed inconsistencies pervading complainant's testimony at the trial court below. Appellant pointed out alleged inconsistencies and improbabilities in the testimony of the rape victim Edeliza Astelero which allegedly cast reasonable doubt on his guilt. The most notable of these were: (a) although she testified on direct that she was alone when she peeped through the hole of their window and saw three (3) male persons, on cross, she claimed that it was she and her husband who peeped through the hole of their window (b) while, on direct, she testified that she heard the barking of the dogs at around 10:00 p.m., on cross, she stated that she heard the barking of the dogs at around 7:00 p.m.; (c) on direct, she did not state that her assailants wore masks and that she herself was blindfolded which she mentioned only on cross; (d) she could not have recognized her assaillants because they wore masks and she was blindfolded. We find the alleged inconsistencies as too trivial, insignificant and inconsequential to merit the reversal of the trial court's decision. The inconsistencies pointed out by

appellant can hardly affect the complainant's credibility. They refer to minor details or to the precise sequence of events that do not detract from the central fact of rape, on which complainant had consistently and candidly testified. A witness who is in a state of flight cannot be expected to recall with accuracy or uniformity matters connected with the main overt act (People v. Ramilo, supra). The testimonial discrepancies could have also been caused by the natural fickleness of memory, which tend to strengthen, rather than weaken, credibility as they erase any suspicion of rehearsed testimony (People v. Cayago; 158 SCRA 586). These discrepancies on minor details serve to add credence and veracity to her categorical, straightforward, and spontaneous testimony (People v. Ramilo, supra). Minor discrepancies indicate that the witness was not previously rehearsed, and consequently strengthen her credibility. It would, perhaps, have been more suspicious if complainant had been able to pinpoint with clarity or described with precision the exact sequence of events (People v. Cayago, supra; People v. Alfonso, 153 SCRA 487). The rape victim should not be expected to keep an accurate account of the traumatic and horrifying experience she went through. Needless to say, when the issue is one of credibility of witnesses, the findings of the trial court are generally accorded a high degree of respect, the court having observed the demeanor and deportment of witness. We find no compelling reason to deviate from this settled rule. Appellant alleged that it was improbable for Edeliza to have recognized him when she herself was blindfolded and her assaillants wore masks. Such contention is devoid of merit. Although Edeliza was blindfolded and her assaillants wore masks, she was positive in her testimony that she recognized the appellant as one of her attackers through the latter's voice. Edeliza could recognize appellant through his voice inasmuch as they are barriomates. In fact, appellant even admitted that they were friends, thus: Q Mr. Witness, how long have you been in Faigal, Guimba, Nueva Ecija, in the ranch of Mrs. Bebang Adriano prior to April 24,1989? A About one (1) year, sir, that I had been staying there. Q And during that length of time you came to know Edeliza Astelero and her husband who are also from Faigal, Guimba, Nueva Ecija, is it not? A Yes, sir.

Q And they used to go to that ranch. In fact considering the length of time that you have known Edeliza Astelero and her husband you alleged that you are their friend and the same way that they also were your friends? A Yes, sir. (p. 16, TSN, Nov. 18,1989) In People vs. Inot, 150 SCRA 322 (1987), We ruled: . . . complainant's identification of the appellant was not based solely on the latter's physical defect, but by his voice as well, when he warned complainant, "Flor, keep quiet." Although complainant did not see appellant's face during the sexual act because the house was dark, nevertheless, no error could have been committed by the complainant in identifying the voice of the accused, inasmuch as complainant and appellant were neighbors. . . . This is corroborated by the testimony of Rogelio de la Cruz who saw Pedring Calixtro, Celso Ferrer and Louie Ferrer dragged Edeliza Astelero out of her house. Appellant put up the defense of alibi that he was looking after his irrigation task when he heard shouts, and went back after having a fist fight with Celso Ferrer. Defense of alibi is inherently weak and cannot prevail over the positive identification of the accused (People v. Cayago, 158 SCRA 586). For the defense of alibi to succeed, the accused must establish physical impossibility and improper motive of the prosecution witnesses, which matters the accused failed to prove (People v. Alfonso, 153 SCRA 487). Edeliza Astelero had positively identified the accused Pedring Calixtro as one of the persons who had raped her in the middle of the fields. His alibi, that he was at the ranch during the hours of 10:00 and 11:00 p.m. of April 24, 1989 and while he was looking after his farm he heard shouts, and he was the one who saved and rescued Edeliza Astelero, can only be taken with a grain of salt. Such a statement could easily be fabricated, more so when it is not corroborated by testimonies of other impartial witnesses. The accused was the lone witness for his defense. The accused could have had his testimony corroborated by presenting other persons who could well testify on what he had been doing in the evening of April 24, 1989. Mere denial of the commission of a crime cannot prevail over the positive identification made by the complaining witness. Appellant stresses the prosecution's failure to present the husband and son of Edeliza. The expected testimony of husband and son had already been dealt upon by Edeliza Astelero and Rogelio de la Cruz. There is no cogent reason for them to corroborate what

had been testified on. Besides it is the prerogative of the prosecution to choose its witnesses (People v. Quebral, 134 SCRA 425; People v. Martinez, 127 SCRA 260). In rape, the prosecution need not, present testimonies of people other than the offended party herself if the same is accurate and credible (People v. Robles, G.R. No. 53569, February 23, 1989). Appellant questions the credibility of Rogelio de la Cruz as a witness. The former argues that being a barangay tanod, de la Cruz should have apprehended the malefactors and should have prevented the heinous crime. De la Cruz reasoned out that he was afraid that they might kill him; the malefactors were, then, armed with deadly bladed weapons. His only weapon was a stick, which was not a match against bladed weapons. He feared for his life, such is not contrary to human nature. Thus, de la Cruz should not foolhardily attempt to stop the malefactors in his state of physical disavantage and stake his life in the process. The allegation that Pedring Calixtro was implicated because the real perpetrators were not arrested defies human reason. It is hard to believe that a woman, a simple housewife and mother, would fabricate a rape charge and subject herself and family to shame, humiliation and embarrassment of a public trial. We have oftentimes ruled that a woman would not undergo the expense, trouble and inconvenience of a public trial, not to mention the scandal, embarrassment and humiliation such action inevitably invites, as well as allow an examination of her private parts, if her motive is not to bring to justice the persons who had abused her (People v. Muñoz, 163 SCRA 730; People v. Cayago, 158 SCRA 586; People v. Viray 164 SCRA 135; People v. Magdaraog, 160 SCRA 153; People v. Bulosan, 160 SCRA 492; People v. Hacbang, 164 SCRA 441). Appellant further contends that the trial court erred in allowing the complainant-witness to testify in narrative form. This contention is likewise devoid of merit. Usually in criminal cases, the material facts within the knowledge of a witness are elicited by questions put to him by the counsel calling him. By this means, the evidence is readily limited and confined within the issue for the reason that the relevancy of the answer can in most cases be ascertained from the character of the question (Underhill's Criminal Evidence, Sec. 387, p. 742). While this is the general rule, it still rests within the sound discretion of the trial judge to determine whether a witness will be required to testify by question and answer, or will be permitted to testify in a narrative form (98 C.J.S., Sec. 325, p. 26). There is no legal principle which prevents a witness from giving his testimony in a narrative form if he is requested to do so by counsel. A witness may be allowed to testify by narration if it would be the best way of getting at what he knew or

could state concerning the matter at issue. It would expedite the trial and would perhaps furnish the court a clearer understanding of the matters related as they occurred. Moreover, narrative testimony may be allowed if material parts of his evidence cannot be easily obtained through piecemeal testimonies. But if, in giving such testimony, the witness states matters irrelevant or immaterial or incompetent, it is the right and duty of counsel objecting to such testimony to interpose and arrest the narration by calling the attention of the court particularly to the objectionable matter and, by a motion to strike it out, obtain a ruling of the court excluding such testimony from the case (98 C.J.S., Ibid.). While a witness may be permitted in the discretion of the court to narrate his knowledge of material facts bearing upon the case without specifically being interrogated in detail, it is also within the discretion of the court to prohibit a witness from volunteering unsought information in connection with the case (5 Jones on Evidence, Sec. 2312). Appellant takes notice of the fact that the trial court did not consider his memorandum. We find that the contents of the memorandum were passed upon in the judgment of the trial court. The arguments therein were discussed by it. The arguments presented did not raise new issues; hence, the memorandum deserves scant consideration. We find, as the trial court found, that appellant successively raped the offended party while the other two accused held down the victim, showing that conspiracy existed. Said other two also took turns in raping. In a conspiracy, the act of one is the act of all. There are three (3) crimes of rape, appellant, having conspired with the two others, should be convicted on three counts of rape. Thus, Pedring Calixtro is also responsible for the acts of Celso Ferrer and Louie Ferrer. The case of People v. Cayago, (158 SCRA 586) is applicable in the case at bar: The trial court found as a fact that appellant and others, having conspired with each other, successively raped the offended party while the other held down the victim. This is adequate basis for convicting appellant Cayago of three (3) crimes of rape. The judgment of the trial court does not purport to convict Macaraeg and Capitle and would not, of course, bind them should they ever be arrested and brought to trial; they may plead any defense to which they might feel entitled, such as insanity or mistaken identity, etc. We find the accused's guilt to have been proved beyond reasonable doubt. ACCORDINGLY, the judgment of conviction is hereby AFFIRMED, INCREASING the penalty imposed on the appellant to three (3) penalties of RECLUSION PERPETUA, and for him to indemnify the offended party in the sum of P30,000.00 in each case for a total of P90,000.00 and to pay the costs. G.R. No. L-41008 June 18, 1987

PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. ARTURO PECATO, ET AL., accused. FELIX PECATO AND ERENEO PERUDA, accused-appellants.

SARMIENTO, J: Before us on automatic review is a decision 1 of the then Court of First Instance of Surigao del Norte, 15th Judicial District, Branch II, Surigao City, in Criminal Case No. 185, finding the accused Felix Pecato and Ereneo Peruda guilty beyond reasonable doubt of the crime of robbery with violence against or intimidation of persons as defined and penalized under Article 294 of the Revised Penal Code, sentencing them to suffer the supreme penalty of death by electrocution together with all the accessory penalties prescribed by law, to indemnify the heirs of Felix Larong in the sum of twelve thousand pesos, and to pay their proportionate share of the costs. In an Information 2 dated February 16, 1972, the lst Assistant Provincial Fiscal of Surigao del Norte accused Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo Peruda of the crime of robbery with homicide committed as follows: xxx xxx xxx That on or about the lst day of November, 1971 in the municipality of Gigaquit, province of Surigao del Norte, Philippines and within the jurisdiction of this Honorable Court, the herein accused, Arturo Pecato, Felix Pecato, Victoriano Leyros and Ereneo Peruda, conspiring, confederating and helping one another, and armed with the following deadly weapons to wit: One revolver Cal. 22; two sharp pointed instruments; two shotguns, with intent of gain and by means of violence and intimidation on persons that is shooting Felix Larong and manhandling Uldarica Larong, his daughter, the latter sustained injuries in the different parts of her body, did then and there willfully, unlawfully, and feloniously take, from Felix Larong and Luciana Larong, husband and wife respectively, the amount of Three Hundred Fifty (P350.00) Pesos, Philippine Currency, belonging to Felix Larong, to the damage and prejudice of the latter in the amount aforestated. That on the occasion of said robbery and for the purpose of enabling them to take, steal and carry the amount of Three Hundred and Fifty (P350.00) Pesos, the herein accused in pursuance of their conspiracy, with intent to kill did then and there willfully, unlawfully and feloniously, with evident premeditation, taking advantage of superior strength, disregard of rank on account of age; in band, nighttime and treachery, attack, assault

and shoot Felix Larong, with the use of firearms, thereby inflicting upon the latter, the following injuries, to wit: 1. Shotgun wounds —

the case whatever he may have, was extinguished." 4 However, the case proceeded and was decided against Felix Pecato and Ereneo Peruda. The dispositive portion of the 109-page decision dated February 4, 1975, now under review, states:

a — exists (sic) — irregular in shape 1.5 left iliac region.

xxx xxx xxx

2.1. — umbilicus b — entrance — circular in shape located at the spinal column between the iliac crests. Internal examination: a — Penetrated wounds small intestine, — large intestine, mesenteries.

WHEREFORE, in view of all the foregoing considerations, this Court hereby finds the accused FELIX PECATO and ERENEO PERUDA guilty beyond reasonable doubt of the crime of Robbery with Violence Against or Intimidation of Persons, defined and penalized under Article 294 of the Revised Penal Code, with the aggravating circumstances of treachery, disregard of rank, in band and abuse of superior strength and nighttime, with no mitigating circumstance to offset the same, and invoking the provisions of Article 294 of the same Code with respect to the aspect that the crime was committed in band, the Court hereby sentences the said two accused to suffer the supreme penalty of DEATH by electrocution together with all the accessories prescribed by law.

b — severed spinal column c — extracted pellets. 1.2. from the abdominal wall 2.1. from the spinal column. and as a consequence thereof cause the death of Felix Larong thereby causing moral damages to the heirs of the victim. Contrary to Art. 294 paragraph 1 of the Revised Penal Code with the generic aggravating circumstance of treachery and the aggravating circumstance of insult or disregard of rank, in band, use of superior strength and night time. xxx xxx xxx Of the four accused, only three, Arturo Pecato, Felix Pecato, and Ereneo Peruda, were arrested. Victoriano Leyros went into hiding, evaded arrest, and has remained at large. Upon their arraignment on February 18, 1974 3 the three accused, Arturo Pecato, Felix Pecato, and Ereneo Peruda, pleaded not guilty. Whereupon, the trial court proceeded with the trial of the case. However, before the actual trial in the court below, specifically on June 23, 1974, the accused Arturo Pecato died, hence, "his criminal responsibility in

The same accused are hereby ordered to indemnify, jointly and severally, the heirs of Felix Larong in the sum of P12,000.00 and to pay their proportionate share of the costs. The home-made shotgun, Exhibit "D," being one of the instruments of the crime, the same is hereby ordered forfeited in favor of the Government. Let this case, insofar as the accused Victoriano Leyros who is at large be archived without prejudice to its reinstatement as soon as said accused shall have been apprehended and brought to the jurisdiction of this Court. IT IS SO ORDERED.

5

xxx xxx xxx The records of the case establish the following facts: At about nine o'clock in the evening of November 1, 1971, 6 in Lahi, Gigaquit, Surigao del Norte, while Felix Larong, about 70 years old, 7 and his family, consisting of his wife Luciana Larong, about 85 years of age, 8 and his 31-year old unmarried daughter, 9 Uldarica Larong, were preparing to sleep, 10 several men called from outside their small house, a one-room affair, 4 1/2 by 5 meters (3 by 2 fathoms) in dimensions. 11 The said men after bidding the house occupants "good evening," requested that they be allowed to enter the Larongs' house.12Hearing these, Felix

Larong opened the door of their house 13 and thereupon, four men, each carrying a gun, entered. 14 Having thus gained entrance to and once inside the house, the four heavily armed men again greeted the house occupants 15 and with the use of flashlights they carried, illuminated the inside of the house. 16 This they did notwithstanding the presence of a lighted kerosene lamp inside the house. 17 The intruders then ordered the Larongs to he face down on the floor 18 and demanded money from Felix Larong.19 When the old man replied that he had no money, he was ordered to produce his pistol to which he answered that he had none. 20 At this point, Felix Larong was asked by one of the intruders whether he recognized them. 21 When he answered in the positive since he said they were still his relatives, and even while he was lying face down on the floor, one of the men, Arturo Pecato, shot him. 22 He died as a result of the shotgun wounds he sustained. After shooting Felix Larong, the intruders next turned their attention on Uldarica Larong and demanded money from her. 23 When she refused, she was manhandled and hit with gun butt on different parts of her body. 24 One even struck the side of her face. 25 Luciana Larong, seeing what the malefactors were doing to her daughter, ordered the latter to give them money. 26 Uldarica Larong first gave the men P300.00, but when they still demanded for more, she gave an additional P50.00. 27 After a while, the intruders left. Fearful that the robbers-killers would come back, Uldarica Larong and Luciana Larong went out of their house and hid themselves among the bushes nearby. 28 True enough, the robbers later returned but finding no one around, they did not tarry long. 29 After staying for only about an hour, they left. 30 On the following morning, November 2, 1971, the robbery killing was reported to the Police Department of Gigaquit . 31 The Chief of Police upon learning of the incident dispatched several policemen to the scene of the crime to conduct an investigation. 32 The policemen on reaching Lahi went to the house of the Larongs and there asked Luciana Larong and her daughter Uldarica Larong who perpetrated the crime. The two women positively Identified and pointed to Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo Peruda as the criminals who robbed them and killed Felix Larong. 33 Based on the Identification made by the two Larong women, the policemen arrested on that same day Arturo Pecato and Felix Pecato at their separate residences which were also located at Lahi. 34 Ereneto Peruda was apprehended the following day, November 3, 1971, in the Poblacion of Gigaquit. 35 Victoriano Leyros was nowhere to be found and thus was never arrested. 36 At the trial of the case, the prosecution presented five (5) witnesses, namely: Dominador Paray, one of the policemen who conducted the investigation on November 2, 1971;

Judge Capistrano C. Navallo, the municipal judge of Gigaquit who conducted the preliminary examination of the accused; Nicasio Erazo, the Chief of Police of Gigaquit at the time the crime was committed; Dr. Bernardo Moran, who interpreted and explained the medical findings contained in the autopsy report on the victim Felix Larong submitted by Dr. Celso Valmores; 37 and Uldarica Larong. Incidentally, the widow of the victim, Mrs. Luciana Vda. de Larong, was not presented at the trial. However, her deposition dated January 16, 1973, which was taken with the express permission of the trial court, 38was presented in evidence by the prosecution as Exhibit "C". 39 The defense on its part presented as witnesses Felicidario Bayla, Daniel Latorre, Encarnacion Peruda, Vicenta Pelajes Pecato, Francisco Gonzales, and the two remaining accused themselves, Felix Pecato and Ereneo Peruda. Against the positive Identification made by prosecution witnesses Uldarica Larong and the widow, the accused interposed alibi for their defense. Accused Felix Pecato claimed that he did not commit the crime as he was at his house on that night of November 1, 1971 and never at any instance went out. 40 He stated that on the date of the incident he was sick, suffering from fever and chilling, 41 and was very weak. 42 He swore that with him that night of November 1, 1971 were his wife, their child, and his mother , 43 who massaged him, 44 and spent the night with him and his family. 45 This alibi of appellant Felix Pecato was corroborated by his mother, Vicente Pelajes Pecato, who testified that she spent the night of November 1, 1971 in the house of her son, Felix Pecato. 46 She asserted that she was there to take care of her sick son and even massaged him. 47 She further testified that her son Felix never left the house that night 48 as he was then very weak and still recuperating from fever and chills. 49 Appellant Ereneo Peruda, on the other hand, averred that he spent the whole night of November 1, 1971 at home with his family and several other guests. 50 He recounted that early on that night there was a small feast held in their house as it was then his younger sister's birthday. 51 According to him, he retired to sleep at about eleven o'clock that night 52 and even shared his bed with one of their guests who stayed and spent the night at their house. 53 From that time and until eight o'clock in the morning of the next day, November 2, 1971, when he woke up, he never went out of his house. 54 The narration made by the appellant Ereneo Peruda as to his whereabouts on the night of November 1, 1971 was supported by the testimonies of two of the defense witnesses, Felicidario Bayla and Daniel Latorre. Bayla testified that he met accused Ereneo Peruda late in the afternoon of that All Saints' Day after a cockfight, 55 and together they proceeded to the latter's house as there was a small party being held then at that place. 56 He further said that he stayed at the Peruda's place for three more hours after his arrival at about seven o'clock in the evening 57and Ereneo never left the house all the while that he was there. 58

Daniel Latorre testified that he also met the accused after the cockfight held that afternoon of November 1, 1971.59 Afterwards, Daniel Latorre declared that along with several others, he went to the house of Ereneo Peruda as there was a small feast there. 60 He narrated how he was with Ereneo Peruda the whole night of November 1, 1971. He added that he even spent that night in the Perudas' place and slept side by side with the accused, sharing a bed. 61 He stated hat he never noticed the accused leave the house at any single moment the whole night of November 1, 1971. 62 Encarnacion Peruda, an older sister of accused Ereneo Peruda's father 63 and a witness for the defense, stated that she immediately went to the house of the Larongs on November 2, 1971 after hearing of the death of Felix Larong. 64 According to her, upon reaching the place, she inquired from Uldarica Larong what happened and who did it. 65 Uldarica Larong allegedly told her (witness) that they, the Larongs, were not able to recognize the malefactors as their faces were covered or masked and they were wearing hats. 66 Francisco Gonzales, the Municipal Mayor of Gigaquit at the time the crime was committed, 67 was presented by the accused obviously to support their accusation that they were subjected to physical maltreatment by the policemen of Gigaquit while they were under detention. However, this witness only testified that he was approached by the mother of Arturo and Felix Pecato for help regarding her sons who were then already under police custody as she was afraid that they might be mauled by the policemen. 68 Responding to the entreaty, the mayor-witness said that he summoned the Chief of Police and ordered the latter to see to it that the detainees were taken good care of. 69 The crux of this review is the determination as to which prevails between the positive Identification of the two appellants and their alibi. As already mentioned, the trial court found that herein two accused, Felix Pecato and Ereneo Peruda, guilty beyond reasonable doubt of the crime of robbery with violence against or intimidation of persons, as defined and penalized in Article 294 of the Revised Penal Code, and sentenced them to death. After a thorough review of all the evidence on record, we are constrained to affirm, as we hereby affirm, the judgment of the trial court. While indeed, "(T)he prosecution has the onus probandi of establishing the guilt of the accused beyond reasonable doubt and the weakness of the defense does not relieve it of its duty ...," 70 in the case at bar, we are fully satisfied that the prosecution has established a clear and positive Identification of the accused. Luciana Larong and Uldarica Larong, the two prosecution witnesses who were themselves victims of the crime complaint of and subject of this criminal case, and who Identified the two accused as among the perpetrators of the crime, never in the main, wavered in their testimonies. From as early as right after the incident, during the police investigation. in the lengthy and thorough preliminary investigation conducted by Municipal Judge Capistrano C. Navallo, and at the trial of the case, these two witnesses-victims readily, positively, and unequivocally Identified Arturo Pecato, Felix Pecato, Victoriano Leyros, and Ereneo

Peruda as the four persons who entered their home, robbed them of P350.00, killed Felix Larong, and manhandled and pistol-whipped Uldarica Larong on that fateful night of November 1, 1971. They recognized these malefactors as there was a lighted kerosene lamp inside their house that night. The two women were certain of the Identity of the four men because the latter were not wearing masks, hats, or anything to hide their Identities. 71 Moreover, these witnesses and the appellants are close relatives. 72 On the other hand, the defense tried to attribute the inculpatory testimonies and hostility of the Larongs against the appellants to the "bad blood" that allegedly exists between them. This "bad blood," which is now being foisted by the defense as the motive of the Larongs in falsely accusing the appellants and testifying against them, purportedly arose when one of the accused, Arturo Pecato, now deceased, brother of appellant Felix Pecato and a friend of appellant Ereneo Peruda, testified in a stabbing incident against Jose Escudo, a grandson of the victim Felix Larong. 73 Appellant Ereneo Peruda, on the other hand, claimed that his father was, at one time, hacked by Jose Escudo. 74 The proffered motive has not been proven satisfactorily. Indeed, considering that the two witnesses-victims, are closely related by blood to the appellants, it would take much more than just "bad blood," engendered in the way revealed by the defense, to constrain close blood relatives to impute falsely the commission of a capital offense to other relatives which would mean the imposition of the extreme penalty of death. The Filipino psyche abhors such an irreverent and false imputation, This abomination is especially true among rural and simple folks like the Larongs. It is more likely that the Larongs had been impelled to testify against their relatives as a concomitant of their quest for justice. We agree with the trial court that the so-called "bad blood" that allegedly exists between the accused and the Larongs appears as mere illusions, concocted by them in a desperate but vain effort to be extricated from the crushing wheels of justice. Even defense witness Vicenta Pelajes Pecato in her testimony admitted that if there was indeed an ill-will between them and the Larongs, the victim, Felix Larong, endeavored to patch things up by admonishing his grandson, who was allegedly the source of the rift. 75 Thus it is shown that the claim of the defense on this score is, at best, flimsy. It is a rule well-settled in this jurisdiction that alibi cannot prevail over the positive Identification by the prosecution's witnesses of the accused as the perpetrators of the crime especially when there was no physical impossibility for the accused to be at the scene of the crime at the time of its commission. 76 The rule holds more true where the accused is positively Identified by one who has no reason to charge falsely the accused with an offense that is punishable with death. 77 The alibi presented by accused Felix Pecato is even more dubious and weak because it was attempted to be established mainly by the appellant himself and his mother, Vicente Pelajes Pecato, and not by third persons "who would, in the natural order of things, be best to support the tendered alibi. 78 In People v. Romero, 79 we ruled that the testimony of a mother corroborating her son's alibi scarcely merits any probative value. It is undeniably tainted with bias for it springs from the natural desire of a mother to

exculpate her son from criminal liability. 80 Further, "alibi" is at best a weak defense and easy of fabrication especially between parents and children, relatives, and even those not so related. 81 More importantly, however, from the testimonies of the witnesses, both for the prosecution as well as for the defense, it has been proven that the two appellants, Felix Pecato and Ereneo Peruda, reside in places very near the scene of the crime. 82 In fact, it would only take them less than a two- hour trek from either place to the house of the victims. 83 Thus, there was no physical impossibility for the appellants to be at the scene of the crime on the night of November 1, 1971. But above all, the defense was not able to rebut the positive Identification by Luciana Larong and Uldarica Larong of the two appellants as among the four heavily armed men who shot and killed Felix Larong, robbed them of P350.00, and mauled Uldarica, inflicting physical injuries in the different parts of her body. The crime committed by the accused is Robbery with Homicide as defined and penalized under Article 294 (1), of the Revised Penal Code. Felix Larong was shot to death during the robbery. We have repeatedly held that: (A)s long as homicide resulted during or because of, the robbery, even if the killing is by mere accident robbery with homicide is committed,- it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime that has to be taken into consideration 84Further, whenever a homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the commission of the crime are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide. 85 In this instance, the evidence on record is bereft of any showing that any of the accused tried to prevent the killing of Felix Larong. What is shown instead is that they merely stood watching and did nothing when one of their companions shot the victim. 86 Additionally, the term "homicide" in robbery with homicide should be understood as a generic term and includes murder. 87 To determine the propriety of the penalty imposed by the trial court on the accused for the crime they committed, the circumstances attendant to the commission of the crime must be considered. While the Information alleges the presence of the aggravating circumstances of treachery, insult or disregard of rank, in band, abuse of superior strength, and nighttime, the decision under review found the attendance of treachery, disregard of rank, in band, abuse of superior strength, and nighttime. The trial court is correct in ruling that there was treachery in the commission of the crime. Felix Larong was shot to death while he was lying face down on the floor, 88 without any warning and thus was not able to defend himself at all. The aggravating circumstances of in band, abuse of superior strength, and nighttime were likewise present in the commission of the crime. The robbers, numbering four were

all armed. 89 Felix Larong, who was already 70 years old on November 1, 1971, was shot and killed by one of the robbers all of whom were younger and physically stronger. The robbers likewise especially sought nocturnally in committing the crime. This is shown by their act of providing themselves with flashlights 90 which they used in illuminating the interior of the Larong's home after they had gained entrance therein. Additionally, the aggravating circumstance of dwelling is also present in this case inasmuch as the crime took place and was committed by the accused in the house of the victims. We have held that dwelling is an aggravating circumstance in the crime of robbery with homicide 91 as the authors thereof could have very well committed the crime without the need of violating the domicile of the victims. 92 The aggravating circumstance of disregard of rank cannot, however, be appreciated in this case. Disregard of rank finds no application in robbery with homicide, a crime primarily against property and not against persons. 93 The crime of robbery with homicide is punishable by reclusion perpetua to death. This case being attended by the generic aggravating circumstances of treachery, in band, abuse of superior strength, nocturnally, and dwelling, without any mitigating circumstance to offset the same, and observing the provisions of Article 63, second paragraph, of the Revised Penal Code, the penalty that must be imposed on the two appellants, Felix Pecato and Ereneo Peruda, should be, as correctly meted out by the trial court, death. However, pursuant to Section 19(l), Article III, Bill of Rights, of the 1987 Constitution, the death penalty has already been abolished. Thus, the penalty imposable on the accused is only reclusion perpetua. Parenthetically, the observation by the People in its Brief for the Appellee, 94 that the trial court should not have mentioned Article 296 of the Revised Penal Code in its decision, is well taken. As early as in the case of People vs. Apduhan 95 this Court had the occasion to state that the special aggravating circumstance of "use of unlicensed firearm" mentioned in Article 296, Revised Penal Code, is applicable only to cases of robbery committed by a band therein defined, which fall within the scope of and are punishable under Article 295 in relation to subdivisions (3), (4), and (5) of Article 294. 96 WHEREFORE, with the above MODIFICATIONS and the increase of the indemnity that must be paid to the heirs of the late Felix Larong to Thirty Thousand Pesos (P30,000.00), 97 the decision of the trial court is hereby AFFIRMED. With costs against the accused-appellants. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

G.R. No. L-35281 September 10, 1979 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESSIE TAPALES y VARGAS and PEDRO CORANEZ y TATUALLA, defendantsappellants. Vicente A. Torres for appellants. Solicitor General E. P. Mendoza, Assistant Solicitor General C. T. Limcaoco and Solicitor P. O. Guerrero for appellee.

PER CURIAM: This is an automatic review of the judgment of the Circuit Criminal Court of Manila, dated April 21, 1972, finding accused-appellants, Jessie Tapales y Vargas and Pedro Coranez y Tatualla, guilty of the crime of Robbery with Homicide, with the mitigating circumstance of plea of guilty offset by the aggravating stances of multiple Rape, use of motor vehicle and nighttime, and sentencing both said accused to the extreme penalty of death. The Information filed against the accused charged them with the crime of Robbery with Homicide and Rape as follows: That on or about October 28, 1971, at nighttime y sought to better accomplish their ends, in the City of Manila, Philippines, the said accused, conspiring and confederating together with another, whose Identity and whereabouts are still unknown and helping one another did then and there wilfully, unlawfully and feloniously, with intent to gain and by means of force, violence and intimidation to wit: by boarding the taxi being then occupied by Eugenie Calaykay y Baldonado and Diana Ang y Navales while mud vehicle was at a ship position at Jones Bridge, in said City and pointing a knife at Diana Ang y Navales and a gun at Eugenio Calaykay y Baldonado, take, steal and carry away against their will and consent, one (1) men's wrist watch, "Rado" brand gold plated and one (1) brown wallet with cash money of undetermined amount belonging to said Eugenie Calaykay y Baldonado, and Mexican money worth P2.00 and one (1) Parker ball pen valued at P10.00 or a total value of P12.00 belonging to said Diana Ang y Navales to the damage and prejudice of said owners in the aforesaid respective amounts that by reason of and on the occasion of the said robbery, the said accused, in furtherance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon the person of Eugenio

Calaykay y Baldonado by then and there shooting him twice with the gun and stabbing him with the balisong knife on the chest, thereby inflicting upon him mortal wounds which were the direct cause of his death thereafter; that by reason of and on the occasion also of the said robbery, the said accused, in furtherance of their conspiracy, did then and there , unlawfully and feloniously and by means of force, violence and intimidation, to wit.- by threatening to stab and kill the said Diana Ang y Navales with said balisong knife and firearm, which they were holding then at the time, succeed in having sexual intercourse with her, one after the other all -against her win and consent. Contrary to law and with the generic aggravating circumstances of the use of motor vehicle and employment of craft in the commission of said offense. Upon arraignment, appellants, through their counsel de officio, manifested their desire to enter a plea of guilty. The trial Court duly informed them of the gravity of the offense and the imposable penalty therefor of life imprisonment or death. When asked by the Court whether they understood the full consequences of a plea of guilty, both answered affirmatively. They admitted to the Court that they robbed Eugenie Calaykay and Diana Ang and that they killed the former when he shouted, "hold-up". However, both of them denied having raped Diana Ang contending that she had consented to have carnal knowledge with them. The Court below, citing the case ofPeople vs. Mongado, 1 where Rape was considered a generic aggravating circumstance to the crime of Robbery with Homicide, considered appellants to have entered an unconditional plea of guilty to the offense of Robbery with Homicide, 2 and proceeded to receive evidence to ascertain not only the existence of rape but also of attendant modifying circumstances that could affect criminal liability. Diana Ang narrated the incident as follows: On October 27, 1971 at around 11:00 o'clock in the evening, Diana Ang, 20 years old, married but estranged from her husband, Valentin Katigdas, was in the company of her boyfriend of six months, Eugenio Calaykay, 32 years old, single, at the Jai Alai Bamboo Room, Taft Avenue, Manila. After some betting, Eugenio invited Diana for a snack at the International House at Ongpin, Binondo. They left the Jai Alai at around 11:45 P.M. They then hailed a taxicab parked in front of the Keg Room of Jai Alai. Both sat at the rear of the taxi, Diana sitting at the left side and Eugenio sitting at the right side. When they were at the middle of Jones Bridge, the driver stopped and said "Pare, just a while, the right door of the taxi is open. " He opened and closed the right front door four times. At this juncture, two men alighted from a taxicab immediately behind. One armed with a knife, Identified by Diana as Pedro Coranez approached the taxi from the left and the other, armed with a gun, Identified by Diana as Jessie Tapales, approached the taxicab from the right. As they entered the taxicab they said "This is a holdup, we only need money." Inside the taxicab, Jessie Tapales divested Eugenio of his "Rado" wrist watch, while Pedro Coranez ransacked Diana's bag and took her "Parker" ball pen worth P10.00 and Mexican money worth

P2.00. While Diana and Eugenio were being robbed, the taxicab driver continued driving down to the foot of Jones badge where he made a "U" turn, proceeded up the bridge, made a right turn on Bonifacio Drive, went straight ahead until they reached the Fire Department at Intramuros. At this point, Eugenie shouted, "hold-up, hold- up". Instantly, Eugenio was stabbed by Coranez and shot by Tapales A commotion ensued inside the taxicab prompting the driver to tell Eugenia "pare, tumalon ka na lamang. " Diana then grappled with Coranez for the possession of the knife while Eugenia already wounded, squeezed himself out of the right window. Eugenie fell in the middle of Del Pan bridge. With Diana still inside the taxicab, Tapales ordered the driver to proceed to Quezon City. Tapales then pulled down Diana's pants and panty, mashed her breast and inserted his fingers into her private parts. While Tapales was abusing Diana, Coranez was also her, his right hand around Diana's shoulders and his left hand poking a knife at her left side. Scared and tremble Diana pleaded that she be spared as she was pregnant but said pleas were in vain. On the way to Quezon City, Diana noticed that they took the Tondo, Balintawak and Highway route. Tapales introduced himself as "Fernando" and Coranez as "Johnny". Before reaching Quezon City, Coranez suggested to Tapales" that they proceed to the place of Tapales "kapatid" at Kamuning which, however, was objected to by Tapales. Tapales opted to look for a vacant lot in Quezon City. When they found one, they ordered the driver to stop. Diana was ordered to alight, followed by Coranez. After apparently taking instructions from Tapales, the driver left the place. About six meters from where they alighted, Coranez forced Diana to lie on the wet cogon grass. Tapales then placed his jacket on the grass where Diana was made to lie down. There and then Coranez and Tapales took turns in raping her. Although Diana admitted that Tapales and Coranez did not make use of their weapons when they reached the vacant lot, she claimed that she submitted to their bestial acts as she was too weak and terribly scared to resist the appellants. After that, Diana asked appellants to get another taxicab but Tapales told her that the taxi they took would return, as in fact, it did. The three of them boarded the taxi and they cruised around the other street. Diana was finally dropped off behind the Carbungco restaurant. Before alighting from the taxi, appellants gave Diana 118.00 and threatened to kill her if she reported the matter to the police. Despite the threats, Diana told the people around of her dreadful experience. One took pity on her and took her to a policeman in a restaurant near the Center Theatre. The policeman instructed them to proceed to Precinct 8 where she reported the incident to Pat. Libao. An Advance Information or Alarm Report 3 was forthrightly issued. While in the precinct, Diana saw the shoes of Eugenie. Later, Diana was taken by the police to the morgue where she Identified the dead body of Eugenie. The next morning Diana was physically examined by one Dr. Lucero at Precinct 2. 4 After some sleuthing, the police apprehended appellants, but the two taxicab drivers remained at large. Appellants admitted culpability in their sworn statements. 5 In open Court, Jessie Tapales declared that he was invited by Pedro Coranez to commit Robbery and admitted the commission of that crime as well as Homicide and Rape. 6 For his part, Pedro Coranez while admitting the commission of Robbery with Homicide, denied having raped Diana Ang content ding that it was she who suggested that they

look for a vacant lot. Pedro Coranez even testified that he was constrianed to have carnal knowledge with Diana Ang despite the fact that the place was a with human excreta. On cross examination, Pedro Coranez admitted that he and Jessie Tapales conspired with two taxi drivers known as Pintong (driver of the taxi taken by the victims), and Bruno Borja (driver of the taxi used by appellants in following the taxi of the victims) in the commission of robbery. 7 The trial Court gave full credence to the spontaneous and straight- forward testimony of Diana Ang, and held: The Court cannot subscribe to the claim of the accused that Diana Ang voluntarily agreed to have carnal knowledge with them and was even the one who invited them. It is indeed highly inconceivable how Diana Ang, who was already robbed and who, by reason or on the occasion of the robbery her boyfriend died would still have the sexual urge. ... On April 21, 1972, the trial Court handed down its Decision, the decretal portion of which reads: WHEREFORE, both accused are hereby found guilty beyond reasonable doubt as principals of the crime of robbery with homicide and there being proved the aggravating circumstances of multiple rapes, the use of motor vehicle and nighttime offset only by the mitigating circumstance of their plea of guilty, the court sentences each one of them to DEATH; to jointly and severally the heirs of the victim Eugenie Calaykay the sum of P12,000.00 for the death of the latter, the sum of P10,000.00 for moral damages; the sum of P10,000.00 for exemplary damages; and to return to the heirs of victim Calaykay the Rado watch and the black wallet with cash taken from Calaykay. The Court further orders the said accused to jointly and y in the victim Diana Ang, the sum of P12,000.00 for moral damages, the sum of P10,000.00 for exemplary damages and to return to her the cash and article taken from her or to jointly and severally indemnify her in the amount of P12.00 value therefor if they fail to do so and to pay the costs. Hence, this mandatory review. Appellants, through counsel de officio ascribe the following errors to the trial Court, to wit: I. THE TRIAL COURT ERRED IN CONSIDERING RAPE AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE;

II. THE TRIAL COURT ERRED IN CONSIDERING NIGHTTIME AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE; III. THE TRIAL COURT ERRED IN SENTENCING APPELLANTS TO DEATH. We find the errors assigned bereft of merit.

...Rapes, wanton robbery for personal gain, and other forms of cruelties are condemned and their perpetration will be regarded as aggravating circumstances of ignominy and of deliberately augmenting unnecessary wrongs to the main criminal objective, under paragraphs 17 and 21 of Article 14 of the Revised Penal Code. ... Said paragraphs read thus:

1. This Court has consistently held that the legal definition of the crime committed herein is Robbery with Homicide, with Rape being considered an aggravating circumstance. It is the uniform jurisprudence of the Supreme Court that where the crime charged is robbery with homicide and rape, the legal definition of the crane is robbery with homicide punishable under paragraph 1, Article 294 of the Penal Code; and the rape committed on the occasion of that crime is considered an aggravating circumstance (People vs. Ganal,, 85 Phil. 743, 751; People vs. Bacsa, 104 Phil. 136, 142; and People vs. Tarrayo, 27 SCRA 953 (1969). See also: People vs. Carillo, 85 Phil. 611, 635). Instead of ignominy, therefore, it is the rape itself that aggravates (People vs. Mongado, 28 SCRA 642,651-652, (1969). The defense argues, however, that the foregoing doctrine should be re-examined and abandoned considering that there is no law that makes Rape an aggravating circumstance nor one that classifies it as a generic aggravating circumstance. 8 Article 294 of the Revised Penal Code provides: Art. 294. Robbery with violence against or intimidation of persons — Penalties.—Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crane of homicide shall have been committed. xxx xxx xxx Indeed, the special complex crime contemplated in the foregoing provision does not include Rape. However, there can be no question, and this appellant admits in Ms Brief, that Rape committed on the occasion of Robbery with Homicide increases the moral evil of the crime. Moreover, it is incorrect to state that there is no law which considers Rape as an aggravating circumstance simply because it is not specifically enumerated in Article 14 of the Revised Penal Code as an aggravating circumstance. As enunciated in the case of People vs. Racaza, 82 Phil. 623,(1949),

Art. 14. Aggravating circumstances. — The following are aggravating circumstances: xxx xxx xxx 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act. xxx xxx xxx 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission. This Court's consistent ruling, therefore, which holds that when Rape and Homicide coexist in the commission of Robbery, it is paragraph 1 of Article 294 which applies, the Rape to be considered as an aggravating circumstance (People vs. Ganal, et al., 85 Phil. 743 (1950); People vs. Carillo, 85 Phil. 611 (1950); People vs. Bacsa, 104 Phil. 136 (1958); People vs. Tarrayo, 27 SCRA 953 (1969); People Mongado, 28 SCRA 643 (1969), should be upheld, for a settled judicial construction put upon a statute has almost the same authority as the statute itself, and this Court win not disregard or overrule it except for the most cogent reasons. 9 Alternatively, appellants contend that even if the ruling that Rape is an aggravating circumstance in Robbery with Homicide be upheld, the crime of Rape herein should be considered, by time and distance, as a separate and distinct offense from that of Robbery with Homicide because while the Robbery was committed at Jones Bridge, the Homicide in Intramuros, both in Manila, the Rape was committed in Quezon city. 10 While there may have been an appreciable interval of time between the robbery and the killing, on the one hand, and the rape, on the other, there can be no question but that there was a direct relation, an intimate connection between them such that it can be stated, without fear of contradiction, that it was by reason or on occasion of the robbery that Homicide and Rape were committed. 11 2. Appellants contention that the trial Court erred in considering nighttime as an aggravating circumstance is neither well taken. The crime was committed between the

hours of 11:45 P.M., and 1:00 A.M. As early as 6:00 P.M. of October 27, 1971, both accused had already planned the robbery. It is evident that they purposely sought nighttime and took advantage of it to facilitate the commission of the offense and to avoid discovery. 12 In fact, when the victim Eugenio Calaykay shouted "hold-up, hold-up," no one responded to his can because of the lateness of the night. When he forced himself out of the taxi and fell on Del Pan Bridge, no one saw or noticed it. Again, because of the wee hours of the morning, appellants were able to cruise around leisurely from Manila to Quezon City looking for a vacant lot. In the meantime, both appellants, taking advantage of the darkness of night inside the taxi-cab, were able, with impunity, to take liberties with the person of Diana Ang. In itself nighttime is not an aggravating circumstance, and becomes one only where it is specially sought by the offender or taken advantage of by him to facilitate the commission of the crime or to avoid discovery and thus minimize the risk of capture. 13 3. Considering, therefore, that the commission of Robbery with Homicide was attended by the circumstances of multiple rape , use of motor vehicle, and nighttime, in aggravation, which overwhelmingly offset the lone circumstance of plea of guilty, in litigation the accused-appellants, by the law, must be meted out the extreme penalty of death. 14 WHEREFORE, finding no error in the judgement automatically elevated to this Court for review, the same is hereby affirmed. Costs against accused-appellants, Jessie Tapales y Vargas and Pedro Coranez y Tatualla. SO ORDERED. G.R. No. 80042 March 28, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADOLFO QUIÑONES, RONILO CANABA, AMADO CONDA, JR., ZALDY CIVICO and ALFREDO ABAN,accused-appellants. The Office of the Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellants.

CRUZ, J.:

On June 30, 1986, the bodies of three men were found in a wooded area in barangay Tuaco, Basud, Camarines Norte. The corpses were in a state of decomposition and bore various contusions, stab and bullet wounds, and other injuries indicating foul play. The victims were later positively identified as Alexander Sy, Augusto Gabo and Frisco Marcellana.

In due time, an information for robbery with multiple homicide was filed against Adolfo Quiñones, Alfredo Aban, Zaldy Civico, Ronilo Canaba, Amado Conda, Jr., Santiago Solarte, Armando Buitre and one John Doe. 1 On their arraignment on November 13, 1986, Quiñones, Canaba, Aban, Civico and Conda pleaded not guilty. On November 20, 1986, Conda, Canaba, and Quiñones withdrew their plea of not guilty and entered a plea of guilty. 2 On April 1, 1986, Conda was allowed to withdraw his former plea of guilty and substitute the same With not guilty. 3 Solarte escaped and is presently at large while Buitre was killed in an encounter with the Manila police. 4 Judge Luis D. Dictado of the Regional Trial Court of Daet, Camarines Norte directed the prosecution to present evidence also against Quiñones and Canaba despite their plea of guilty, which they maintained even after being informed of its possible consequences, including the death penalty. After trial, judgment was rendered convicting all the accused (except Solarte, who had not yet been arrested, and Buitre). 5 The evidence for the prosecution established that the three victims were riding in a dark blue Mitsubishi car at about seven o'clock in the evening of June 27 or 28, 1986, when they were intercepted along the Maharlika Highway in the above-named barangay by the accused, who had placed sacks on the road to block the way. The three were taken to the nearby woods where they were killed. 6 According to his brother, Napoleon, Alexander Sy was at that time carrying P300,000.00, representing the weekly collections of his business, a necklace with pendant worth P20,000.00, a P10,000.00 diamond ring, and a licensed .22 caliber handgun. 7 All this, together with the other articles belonging to the victims, were taken by the accused, who also used the car in fleeing to Sapang Palay, where it was recovered without the stereo and the spare tire. 8 The first to be picked up for questioning was Conda, who implicated the other accused and led a police team to the house of Sonny Tabalan, where Solarte was hiding, Inexplicably, Conda and Solarte both escaped. However, the police found in Tabalan's house one live grenade, one .38 caliber pistol, a defective air rifle with magazine, and a wooden rifle which he said had been brought there by Solarte and Quiñones. In separate extra-judicial statements, 9 both

Quiñones and Canaba identified these weapons as the ones used in the commission of the crime. 10 Testifying for the prosecution, Francisco Bariuan declared that on July 7, 1986, Solarte came to his house and asked him to pawn a watch for P300.00. Solarte returned the following day with Canaba and Conda. They were carrying guns and a grenade. Solarte informed him that they were the ones who, together with Buitre, Quiñones and Aban, had killed Sy and his companions. He and Solarte left later to hire jeep and Canaba and Conda stayed behind, warning him that they would blow up his house if he squealed on them. 11 But the case for the prosecution really depended on the statements of the accused themselves, principally Quiñones and Canaba. Both were informed of their constitutional rights before their investigation and were actually assisted by Atty. Santiago Ceneta when they gave their separate confessions. 12 Both confessed to the crime charged and narrated in detail their participation in its commission. Quiñones later testified that he had been subjected to torture to force him to admit the killing and robbery, 13 but as the trial judge noted, no proof of such coercion was ever presented in court. Moreover, the witness' narration of the commission of the offense substantially jibed with the testimony of the other accused, thus negating the suspicion that it had been merely concocted. Understandably, Quiñones sought to minimize his participation in this crime by claiming that he stayed in the car when the three victims were forcibly taken to the woods where they were robbed and slain.14 This is another indication that the had not been manhandled into signing the confession. lt is important to note that when asked at the trial if he was affirming his extra-judicial statement, he categorically said he was, 15 thus in effect reiterating his detailed account of the conduct of the several accused, including their escape to Manila in the stolen car and their distribution of the loot among themselves. This was now a judicial confession. Interestingly, Quiñones also admitted to two other hold-ups and his membership in another gang of robbers headed by one Kapitan Mitra, an unnecessary embellishment that lent further credence to his confession. 16 Canaba's own statement corroborated Quiñones' confession and provided more elaboration. Like Quiñones, he admitted that they had placed sacks on the load and forced the three victims to go with them to the parke where they were unclothed and killed, two by Buitre and the third by Solarte. Quiñones remained in the car. Afterwards, the accused distributed the cash among themselves, each receiving P10,000.00, with Solarte and Buitre getting the weapons also. Using Sy's car, they proceeded to Sapang Palay after leaving the weapons with Sonny Tabalan in his house in Tigbinan. 17

Conda also gave an extra-judicial confession, but this was not made with the assistance of counsel and so must be rejected. It is totally worthless and inadmissible against him. Such a confession is anathema in a free society. It was not recognized even during the era of martial law under the 1973 Constitution as interpreted by the Court in People v. Galit. 18 And it is also scorned under the present Constitution, which is more deeply committed to the protection of the rights of the accused. Civico also gave an extra-judicial confession, likewise without the assistance of counsel. 19 But testifying on his behalf, he purged it of invalidity when he freely affirmed it on the stand in the presence of the judge himself and with the assistance of defense counsel. 20 By so testifying, he in effect reiterated but validly this time — his earlier narration, replete with all the damming details, of the commission of the crime. The Court is satisfied that the evidence against the accused is sufficient to justify their conviction. The declarations of the prosecution witnesses — and more so of defendants Quiñones and Canaba, both of whom had pleaded guilty — are telling enough to toll their guilt. The seized weapons and the other exhibits offer strong corroboration that has not been refuted. The state of the cadavers — of the swollen scrotums and the protruding tongues — tell a tale of their own of the defendants' perverted ruthlessness. By contrast, the defense was practically one of mere denial. Even the claimed maltreatment of Quiñones has not been established. It is clear from the evidence on record that there was a conspiracy among the perpetrators of the crime to rob and slay. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. This need not be established by direct evidence but may be proven through the series of acts done by each of the accused in pursuance of the common unlawful purpose. 21 Proof of conspiracy in the case at bar was supplied, paradoxically enough, mainly by defendants Quiñones and Canaba themselves. From the time they blocked the road to waylay their prey to the killing and robbing in the woods, to the distribution of the loot and their escape in the stolen car, all the accused were acting in concert and in accordance with their common plan. It is argued that Civico and Aban were not part of the conspiracy and that Quiñones himself categorically said so in answer to a question from the prosecution. Interpreting this merely as a gesture of loyalty or perhaps goodwill or charity toward his fellow criminals, we dismiss it as a falsity. On the other hand, Civico himself admitted his own participation in the offense, and in his sworn confession (which he affirmed in court) also implicated Aban.

And there is also Bariuan's testimony that Aban was one of the armed group, including the other accused, that went to his house on July 8, 1986, and talked of their commission of the crime. These declarations are enough to place the two defendants within the conspiracy together with the other defendants. In a conspiracy, the act of one is the act of all and every one of the conspirators is guilty with the others in equal degree. Hence, every member of the group that perpetrated the killing and robbery of the three victims must suffer the same penalty prescribed by law even if they had different modes of participation in the commission of the crime. 22 The trial judge found all the accused guilty as charged and sentenced each of them to serve the triplepenalty of reclusion perpetua and to pay actual and compensatory damages in the amount of P380,000.00 to the heirs of Alexander Sy, P50,000.00 to the heirs of Augusta Gabo, and P50,000.00 to the heirs of Frisco Marcellana. The firearms were also confiscated in favor of the State. The Court finds that the accused were incorrectly charged with robbery with multiple homicide and so were also incorrectly sentenced by the trial court. The reason is that there is no crime of robbery with multiple homicide under the Revised Penal Code. The charge should have been for robbery with homicide only regardless of the fact that three persons were killed in the commission of the robbery. In this special complex crime, the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294 of the said Code. As held in People v. Cabuena: 23 But it was error to sentence the appellants to three life imprisonments each as if 3 separate crimes had been committed. The complex crime of robbery with homicide is not to be multiplied with the number of persons killed. As was said by this Court in People vs. Madrid (88 Phil. 1), "the general concept of this crime does not limit the taking of human life to one single victim making the slaying of human being in excess of that number punishable as separate individual offense or offenses. All the homicides or murders are merged in the composite, integrated whole that is robbery with homicide so long as the killings were perpetrated by reason or on the occasion of the robbery. The penalty prescribed for the crime of robbery with homicide is reclusion perpetua, to be imposed only once even if multiple killings accompanied the robbery. Furthermore, the discussion by the trial court of the attendant circumstances was unnecessary because Article 63 of the Code provides that when the law prescribes a single indivisible penalty, it shall be

applied without regard to the mitigating or aggravating circumstances that may have attended the commission of the crime. The civil indemnity for each of the three victims is reduced to P30,000.00, to be paid to their respective heirs. The heirs of Alexander Sy are also awarded the additional sum P330,000.00, representing the value of the articles taken from him by the accused. WHEREFORE, the conviction of all the accused-appellants is AFFIRMED, but each of them is sentenced to only one term of reclusion perpetua for the crime of robbery with homicide. The monetary awards are also modified in accordance with the preceding paragraph. It is so ordered. Narvasa (Chairman), Gancayco, Griño-Aquino and Medialdea JJ., concur. G.R. No. L-41265 February 27, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELICIANO PATOLA and EUNILLO SANGAYON, accused whose death sentence is under review. The Solicitor General for plaintiff-appellee. Juan Luces Luna (counsel de oficio) for accused.

AQUINO, C.J: This is a review of the death penalty imposed upon Feliciano Patola and Eunillo Sangayon by the Court of First Instance of Davao, Tagum Branch 8. They were convicted of robbery with rape with the use of deadly weapons and ordered to pay Roman Cohado P4,500 as value of the stolen goods, Patola was ordered to pay Mila Amoguis, his rape victim, P10,000 as moral damages while Sangayon was ordered to pay the same amount to his rape victim Elena Odal. Patola appealed from the said decision. Accused Sangayon executed an extrajudicial confession (Exh. B). The prosecution's evidence shows that at about eight o'clock in the evening of September 7, 1973 in the store of Roman Conado located at Barrio Switch, Maco, Davao del Norte, Mila Amoguis and Elena Odal, salesgirls, were piling up the goods as it was closing time. Feliciano

Patola, Eunillo Sangayon, 22, and two unidentified persons were still in the store drinking beer.

concluded that in any event the positive identification made by the rape victims and the store-owner, Zosima Conado, should prevail over the alibis of the accused.

Unexpectedly, Sangayon closed the door of the store, Patola, with a gun in his hand, approached Mila and told her not to shout if she did not want to die. Patola and Sangayon herded Mila, Elena, the Cohado couple and their son William to an adjoining room and told them to lie down on the floor face down. They were hogtied with nylon ropes. Their mouths were stuffed with pieces of cloth torn from the curtains.

Even if Sangayon's confession is not given any weight under section 20, Article IV of the Constitution, the oral evidence against him is sufficient to prove his guilt beyond reasonable doubt.

Patola, Sangayon and their two companions ransacked the store and took away P1,700 in cash, appliances, a wrist watch and other things with a total value of P4,500. (The fact of the robbery is shown in the five photographs of the rooms in Cohado's house taken the next day, Exhibits F to I.) Then, Sangayon untied the feet of Elena and brought her to a room and abused her. After Sangayon was through, his companion entered the room and in turn abused Elena. The second robber brought Elena to the sala, hogtied her again and covered her with a blanket. Mila was untied by Patola and brought to another room where he ravished her. The next day the rural physician examined Mila. There were contusions in her labia majora and labia minora. Her fourchette was bleeding. Her hymen was ruptured. There were fresh lacerations at the three o'clock and seven o'clock positions. Sperm cells were found in her vagina. The physician concluded that she had been deflowered. Her virginity was recently lost (Exh. D). The same physician found that the labia minora of Elena had a contusion. Her fourchette was lacerated. Her hymen was ruptured at the three o'clock and nine o'clock positions. There were sperm cells in the vagina. As in Mila's case, the physician concluded that she had been deflowered and her virginity was recently lost (Exh. E). Patola and Sangayon were arrested six days after the commission of the robbery. They were Identified by Mila, Elena and Zosima Conado. The revolvers used in the robbery with rape were seized from them (Exh. L and M with bullets, Exh. N and 0). Patola, Sangayon, Jesus Montecino and Alfredo Dalogdog were charged with robbery with rape. They waived the preliminary investigation. They pleaded not guilty at their arraignment. Upon motion of the fiscal, the case against Dalogdog was dismissed. Montecino was acquitted by the trial court. Patola's defense was that at the time the robbery with rape was committed he was in Barrio Tuganay, Carmen, Davao del Norte. Sangayon's alibi was that he was in Panabo, Davao. The trial court reasoned out that the distances of Panabo and Carmen to Maco, the scene of the crime, did not preclude the accused from committing the offense. It

Mila remembered that Patola was wearing a pink shirt with long sleeves (10 tsn July 3, 1974). Elena declared that she struggled when Sangayon was trying to have sexual congress with her. She saw his face (18-19 tsn August 29,1974). Zosima Conado recognized Patola and Sangayon by their faces (32 tsn August 29, 1974). The store was lighted by a flourescent lamp (9 tsn July 3, 1974). Counsel de oficio contends in this appeal that the trial court erred in disregarding the alibi of the accused, in convicting them of rape in the absence of proof beyond reasonable doubt that the accused had carnal intercourse with Mila and Elena against their will and in relying on Sangayon's confession and on Dalogdog's testimony. These contentions are devoid of merit. As this is a case involving credibility of the witnesses, the findings of the trial court are entitled to great weight. Even if Dalogdog's testimony is disregarded because he was not present during the robbery, the testimonies of the offended parties are adequate to prove the special complex crime charged. The trial court found that nocturnity, dwelling and abuse of superiority were aggravating. It imposed the death penalty because it applied article 335 of the Revised Penal Cade on rape rather than its article 294[2] on robbery with rape. The accused were charged with a crime against property, not a crime against chastity. There was no complaint of the offended parties in this case. Robbery with rape is punishable with reclusion temporal medium to reclusion perpetua before article 294[2] was amended by Presidential Decree No. 767 which took effect on August 15, 1975 and which raised the penalty from reclusion perpetua to death when the rape is qualified. There used to be a controversy as to whether robbery with qualified rape should be penalized under article 294[2] or under article 335 which imposes a penalty of reclusion perpetua to death. That controversy was set at rest in People vs. Cabural, L34105, February 4, 1983, 120 SCRA 528 and People vs. Porcare, L-37235, February 5, 1983, 120 SCRA 546, where it was held that robbery with qualified rape should be punished under article 294[2]. (See People vs. Mendez, L-35491, May 27, 1983, 122 SCRA 415). It should be stressed that in the case the accused were not charged with qualified rape alone, a crime against chastity, but with robbery with rape, a crime against property.

The trial court applied in this case article 335. It regarded article 294[2] as having been "amended" by article 335.That is why it imposed the death penalty. If article 294121, before it was amended, is to be applied, the penalty is only reclusion perpetua. At any rate, for lack of the necessary ten votes, the death penalty cannot be imposed. WHEREFORE, the judgment of the trial court is affirmed with the modification that the penalty imposed on the accused is reclusion perpetua. The indemnity for the qualified rape should be raised to P20,000 in both cases. Costs de oficio. SO ORDERED. Concepcion, Jr., Abad Santos, Melencio-Herrera, Plana, Escolin, De la Fuente, Cuevas, Alampay and Patajo, JJ., concur.

the occasion thereof, the said accused, by the use of force upon the same Marilyn Caldosa, and with intent to gain, did then and there wilfully and feloniously take and carry away the wrist watch of Marilyn Caldosa, to her damage and prejudice in the amount of P300.00, the money value of the watch. Contrary to law. [Rollo, p. 8.] Upon arraignment, the accused pleaded "not guilty" [Rollo, p. 10]. After trial, the court a quo rendered judgment finding the accused guilty beyond reasonable doubt of the crime of robbery with rape and accordingly sentenced him to suffer the penalty of reclusion perpetua, to indemnify the victim in the amount of twelve thousand pesos (P12,000.00) and to pay the costs [Rollo, pp. 11-12]. From the judgment of conviction, the accused filed the present appeal assigning the following as errors:

Teehankee and Gutierrez, Jr., JJ., took no part.

G.R. No. L-54567 March 22, 1990

1. THE TRIAL COURT ERRED IN NOT CONSIDERING THE IMPROBABILITIES IN THE TESTIMONY OF COMPLAINANT MARILYN CALDOSA.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMETERIO DINOLA, accused-appellant.

2. THE TRIAL COURT ERRED IN PLACING THE BURDEN UPON THE ACCUSED-APPELLANT TO PROVE HIS INNOCENCE AND IN NOT ANALYZING THE STATE'S EVIDENCE TO ARRIVE AT A CONCLUSION BEYOND REASONABLE DOUBT. [Rollo, p. 65.]

The Office of the Solicitor General for plaintiff-appellee.

The evidence for the prosecution consisted primarily of a medico-legal certificate and the testimonies of complainant Marilyn Caldosa and Dr. Sherlito Siao, the doctor who conducted the physical examination on Caldosa after the incident allegedly occurred.

Citizens Legal Assistance Office for accused-appellant.

The medicolegal certificate of the complainant stated the following findings: Findings:

CORTES, J.: Upon complaint by Marilyn Caldosa, the appellant-accused Emeterio Dinola was charged before the Circuit Criminal Court, 13th Judicial District, Palo, Leyte with the crime of robbery with rape under the following information: xxx xxx xxx That on or about the 21st day of October, 1977 in the Municipality of Alangalang, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a deadly weapon, and by means of force and intimidation, did then and there wilfully and feloniously have a carnal knowledge with one Marilyn Caldosa, and that on

No external sign of physical injuries INTERNAL EXAM: Introitus: Admits 2 examining fingers with slight pain. — There is an incomplete laceration of the hymen at 6 o'clock position — There is a contusion 0.5 cm. at the 1 o'clock position of the hymen

Cervix: Negative Sperm Exam: Negative for spermatozoa Uterus: Not Enlarged Discharges: None xxx xxx xxx [Exh. "A"; Rollo, p. 5.] Dr. Sherlito Siao, a resident physician of the Daniel T. Romualdez Memorial Hospital testified to the following: xxx xxx xxx . . . [T]hat on October 21, 1977, at about 4:00 o'clock in the afternoon, he conducted a physical examination of Marilyn Caldosa in connection with an alleged rape case; that his findings were reduced to writing Exhibit "A" which witness identified; that there were no signs of external physical injuries; that there was incomplete laceration [of the hymen] which did not extend to the base and it is possible that there was sexual contact; that there was injury to the hymen caused by a blunt instrument, perhaps a male organ, and could have been caused by forcible insertion; that no spermatozoa was found as there was perhaps no ejaculation, recent washing or there was no penetration of the male organ, and that the victim was possibly raped. xxx xxx xxx [Trial Court Decision, p. 2; Rollo, p. 23.] The testimony of complainant Marilyn Caldosa was summarized by the trial court as follows: xxx xxx xxx . . . That she knows the accused, . . . and that she has known him for more than a year as the accused resides in front of their house and had previously worked for them and they would oftentimes converse as they are friends; that on October 21, 1977, at about 3:00 o'clock in the morning, she was at home sleeping [alone] in the house of her aunt, Gertrudes Vda. de Barraza, who was then in Tacloban . . .; that she was

awakened by a voice saying: "Do not make a noise or I will kill you. If you will not accede to a carnal knowledge I will count from one to three and I will kill you."; that she noticed a small bolo pointed towards her breast and she [was] frightened . . .; that the person then placed himself on top of her and placed his penis inside her vagina by push and pull; that the first push was not successful and the person tried many times to put his penis inside [her] vagina until he was able to do so and [she] felt pain; that while the person was on top of her, she did not resist as he was (sic) big while she is small and she cannot overcome him; that after having carnal knowledge [with] her, the person lighted a candle and when he saw her "Citizen" watch valued at P300.00 he grabbed it from her; that after the candle was lighted, she saw that the person was "Eme" whose full name is Emeterio Dinola . . .; that the accused left after grabbing her watch while she stayed in bed as she was afraid and at about 4:00 o'clock in the morning she went to the bathroom and washed her vagina as she felt dirty; that at about 5:00 or 6:00 o'clock in the morning, she went to the house of the son of her aunt in Barrio Binongtuan and they went to the Provincial Hospital in Tacloban City to have her painful vagina treated, arriving there at about 8:00 o'clock in the morning; that she was not treated that morning as the doctor on duty was not there and they were requested to return in the afternoon; that they were given a prescription for the medicine which the son of her aunt bought while she went to school; that she went back to the hospital in the afternoon and she was physically examined by Dr. Sherlito Siao. xxx xxx xxx [Trial Court Decision, pp. 2-4; Rollo, pp. 23-25.] The accused denied the complainant's allegations and offered the following counterstatement of facts: xxx xxx xxx . . . That on October 21, 1977, at about 3:00 o'clock in the morning, he was at home in their farm at Barrio Caiguihan, Alangalang, Leyte, about 1 kilometer from the Poblacion of Alangalang; that the house belongs to his father Inocentes Dinola and living with them were his step-mother and a half-brother; that he does not know Marilyn Caldosa and her statement that he raped her and stole her watch is not true as he knows nothing about it; that it is not true that he lives infront (sic) of the house of the victim in the poblacion as he lives in the farm; that he does not know Gertrudes Vda. de Barraza; that he was fetched from the house of Filemon Ramos at Calle Retana, Alangalang, Leyte on October 21, 1977 by Patrolman Augusto Salvatierra who told him that the Chief of Police

wanted to see him; that he went with Patrolman Salvatierra to the Municipal Building but the Station Commander was not there; that it was only "Cocoy" Caples who was there and who immediately maltreated him; that he was never informed why he was summoned; that he was boxed, kicked, and maltreated in many other ways by "Cocoy" Caples, including being thrust at or jabbed with a pistol; that "Cocoy" Caples boxed his ears with his (Caples) palms and blood came out and he lost consciousness; that he was maltreated in the office of the Chief of Police; that while he was in the Municipal Building on October 21 1977, he did not meet Marilyn Caldosa and he did not see her the next day; that on October 22, 1977 he was inside the jail and during the whole time that he was in jail in Alangalang he never saw Marilyn Caldosa; that the charge against him is a mere fabrication. xxx xxx xxx [Trial Court Decision, pp. 7-8; Rollo, pp. 28-19.] The testimony of the accused was corroborated by the only other defense witness Diosdado Dinola, the accused's half brother. As in most rape cases where the complainant is the main prosecution witness, the issue boils down to her credibility. The accused assails the credibility of complainant Marilyn Caldosa by pointing to the following factors which, according to the accused, negate the complainant's allegation of the use of force on her: (1) there were no external signs of injuries on her body; (2) the complainant did not make any resistance as in fact her hands were just on her sides during the time the forced intercourse allegedly occurred; and (3) she did not say anything to stop her assailant from consummating the act. In the medico-legal certificate prepared by Dr. Sherlito T. Siao, it was stated that Marilyn Caldosa sustained "[n]o external sign of physical injuries" [Exh. "A"; Rollo, p. 5]. This statement was confirmed by the doctor when he took the witness stand [TSN, August 1, 1978, p. 3]. But from this medical finding alone, it can not be concluded that there is no truth in the complainant's allegation of rape. The Court has already ruled that the absence of external signs of physical injuries on the complainant does not necessarily negate the commission of the crime of rape [People v. Malabad, G.R. No. 63219, November 28, 1984, 133 SCRA 392; People v. Monteverde, G.R. No. 60962, July 11, 1986, 142 SCRA 668; People v. Mendoza, G.R. No. 74653, July 26, 1988, 163 SCRA 568]. But the accused, in order to impugn further the credibility of the complainant, relies on the latter's admission that during the time the accused was on top of her, her hands were on her sides and that she did not say anything to stop the accused.

It is true that when asked if the complainant resisted the accused while he was on top of her, she said that she did not [TSN August 1, 1978, p. 10]. She also admitted that during all the time that the accused was on top of her, her hands were just on her sides [TSN, September 20, 1978, p. 19]. However, it must be remembered that according to the complainant, when she was roused from sleep by the accused, the latter held a bolo to her chest and threatened to kill her if she made any noise [TSN, August 31, 1978, p. 9]. Moreover, when asked to explain why she offered no resistance, she consistently stated both on direct and cross-examination the following: "I cannot resist him because he is bigger and I am small" [TSN, August 1, 1978, p. 10; "I did not anymore [resist] because he was (sic) big and I was (sic) small" [TSN, September 20, 1978, p. 19]. The Court has already ruled that rape may be committed even if no force was used, intimidation being sufficient. Intimidation includes the moral kind such as fear caused by threatening the girl with a knife [People v. Garcines, G.R. No. L-32321, June 28, 1974, 57 SCRA 653]. The Court has likewise held that the admission of the victim that her hands were on her sides while the accused was on top of her does not mean that she consented to the act [People v. Modelo, G.R. No. L-29144, October 30, 1970, 35 SCRA 639]. The complainant in this case, is a seventeen (17) year old lass while the accused is a thirty four (34) year old laborer. In complainant's words: "he is bigger and I am small." Considering, the size, age and strength of the accused, coupled by his use of a bolo to threaten the complainant, the Court rules that the complainant's failure to resist the accused does not detract from the fact that the latter employed intimidation in order to have sexual intercourse with the latter. The law does not impose a burden on the rape victim to prove resistance. What needs only to be proved by the prosecution is the use of force or intimidation by the accused in having sexual intercourse with the victim. The accused next takes issue with the statement of the complainant that after he allegedly raped her, he lighted a candle, enabling the complainant to see his face and recognize him. The accused finds it incredible for a perpetrator of a crime to give the victim the chance to identify him. Thus, it is concluded by the accused that the complainant has fabricated a tall tale of rape involving the two of them. But in this day and age, it is not uncommon for criminals to be careless about or to even intentionally reveal their identities to their victims. The failure by a criminal to conceal his identity would not make the commission of the crime any less credible. Bragadoccio among criminals is not uncommon. Very often too, they are secure in the thought that they have instilled sufficient fear in their victims that the latter will not give them away to the authorities. The complainant in this case was able to identify her assailant with certainty. When asked on the witness stand who had assaulted her, she replied that it was the accused, Emeterio Dinola [TSN, August 31, 1978, p. 7]. On being told to identify her rapist and with the permission of the trial court, she stepped down from the witness stand and tapped the accused on the shoulder [Id.] The trial court found the complainant to be a credible witness, and with good reason. A careful reading of the record of the case shows

the complainant's testimony regarding the circumstances of the rape and the identity of the rapist to be direct, lucid forthright and, being totally untainted by contradictions in any of the material points, deserves credence. Lending further credence to the testimony of the complainant is the oft-repeated observation of the Court that no young Filipina of decent repute would publicly admit that she had been criminally abused and ravished unless that is the truth. It is her natural instinct to protect her honor [People v. Itano, 109 Phil. 912 (1960); People v. Reyes, G.R. No. 62387, June 19,,1985, 137 SCRA 99; People v. Ramilo, G.R. No. 52230, December 15, 1986, 146 SCRA 258; People v. Magdaraog, G.R. No. L-40988, April 15, 1988, 160 SCRA 153]. As the trial Court noted: xxx xxx xxx . . . [A]t the time of the incident the complaining witness was only 17 years old, single, and a college student. She was then at the stage of life when an individual prepares for the future. This Court cannot conceive that such a person would seemingly jeopardize her future by the filing of the instant case with its resultant adverse social effects unless the charges were true. She would not willingly go through the rigors of a public trial wherein she would have to relate, in detail, the atrocity committed upon her person unless she was sure that it was the accused who committed such an atrocity. Further, aside from the allegation that the instant case is a mere fabrication, no evidence has been adduced by the defense as to why the complaining witness would fabricate a case against the accused. [Trial Court Decision, p. 11; Rollo, p. 32.] Finally, the Court finds significance in the fact that the complainant sought medical examination immediately after the incident [TSN, August 31, 1978, p. 12]. This fact, taken together with the other circumstances of the case, indicates that the fresh laceration found by the doctor on her hymen [Exh. "A"; Rollo, p. 5] was inflicted against her will. In fine, the Court, after a thorough examination of the entire record of the case, finds no substantial reason to depart from the established rule that the Supreme Court regards with respect and will generally not disturb the findings of the trial court on the credibility of witnesses, unless certain facts of substance and value have been overlooked which if considered, might affect the result of the case [People v. Sinaon, G.R. No. L-15631, May 27, 1966, 17 SCRA 260; People v. Abonada, G.R. No. 50041, January 27, 1989; People v. Pedrosa, G.R. No. 56457, January 27, 1989].

Having sustained the findings of the trial court on the credibility of the complainant, the defense put up by the accused, alibi, must necessarily fall. The Court has consistently held that the alibi of the accused that he was not at the rape scene cannot stand against the positive identification made by the complainant [People v. Soriano, G.R. No. L-32244, June 24, 1983, 122 SCRA 740; People v. Deus, G.R. No. 63729, May 31, 1985, 136 SCRA 660; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569]. Alibi is inherently a weak defense [People v. Datahan, G.R. Nos. 77107-08, January 21, 1988, 157 SCRA 215] especially, where as in this case, the same was corroborated only by a relative of the accused [People v. Manuel, G.R. No. L-44461, April 15, 1988, 160 SCRA 248; People v. Macabenta, G.R. No. 72476, February 14, 1989]. The accused, in this case, was not satisfied in abusing the complainant. After satisfying his criminal lust and upon seeing the watch on the girl's wrist, he again threatened to kill the complainant if she did not hand over the watch. The complainant refused to give it but he forcibly grabbed it from her. [Sworn Statement of Marilyn Caldosa dated October 22, 1977, p. 1; Rollo, p. 3]. The accused was charged and convicted of the special complex crime of robbery with rape. However, it does not appear from the record of the case that when the accused entered the house of the complainant, he already had the intention to rob the complainant. In fact, the complainant testified that after she was raped by the accused, the latter lit a candle, saw the watch on her wrist, threatened to kill her if she did not give it to him and forcibly took it from her [TSN, August 31, 1977, pp. 10-11]. Hence, the taking of the watch by the accused was more of an afterthought, even accidental. If the intention of the accused was to commit robbery but rape was also committed even before the robbery, the crime of robbery with rape is committed [See People v. Canastre, 82 Phil. 480 (1948)]. However, if the original design was to commit rape but the accused after committing rape also committed robbery because the opportunity presented itself, the criminal acts should be viewed as two distinct offenses. ACCORDINGLY, the Court hereby MODIFIES the judgment of the court a quo by finding the accused guilty of two independent crimes of rape and robbery. The accused is hereby sentenced to suffer the indeterminate penalty of not less than two (2) years, four (4) months and one (1) day of prision correccional, to not more than eight (8) years of prision mayor [Art. 294, par. 5, RPC in relation to Act No. 4103, as amended] for the crime of robbery and to restore to the victim the watch which was taken or to pay its value in the amount of three hundred pesos (P300.00). As for the crime of rape, since it was committed with the use of a deadly weapon, the accused must suffer the penalty of reclusion perpetua [Art. 335, Revised Penal Code in relation to Art. III, Sec. 9 (1) of the 1987 Constitution] and indemnify the victim the amount of thirty thousand pesos (P30,000.00) [People v. Viray, G.R. No L-41085, August 8, 1988, 164 SCRA 135]. With costs against the accused. SO ORDERED.

G.R. No. 92049 March 22, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN MORENO y ULTRA, and PAULINO DELORIA, accused, REYNALDO MANIQUEZ, accused-appellant. The Solicitor General for plaintiff-appellee. Gonzales, Batiller, Bilog & Associates for accused-appellant.

CAMPOS, JR., J.: Accused Juan Moreno, Paulino Deloria and lone appellant Reynaldo Maniquez were charged with the Crime of "Robbery with rape" in an information quoted as follows: That on or about May 31, 1985, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, with intent of gain, and by means of force, violence and intimidation and by means of force upon things, to wit: by forcibly destroying with the use of cutter and screw driver the window of the ground floor of House No. 1291 Paz St., Paco, this City, an inhabited house being used as a dwelling place of RAJ MOHNANI and his family, and entering the said window, an opening not intended for entrance or egress, did then and there wilfully, unlawfully and feloniously break into and enter inside the said house and once inside, poked their respective bladed/pointed weapons to said Raj Mohnani and his wife, Sundri Mohnani, telling to call their maids, and ordering them including their three (3) children to lie face down, took, stole and carried away the following, to wit: One (1) SONY TV 21" colored valued at P10,000.00 One (1) Betamax valued at 11,000.00 One (1) ROLEX wristwatch gold 10,000.00 One (1) PEGOT wristwatch blue w/ gold 10,000.00 One (1) Citizen quartz w. watch, gold 2,000.00 One (1) Computer Sharp Model 1500 10,000.00 One (1) Seiko wristwatch, silver 1,200.00 One (1) Citizen quarts, gold 1,500.00 One (1) Casio wristwatch 500.00 One (1) Cartier black 500.00 Six (6) assorted wristwatches 3,000.00

One (1) gold ring with initial "R" 5,000.00 Two (2) Gold bracelets 15,000.00 One (1) pair of gold earrings 2,000.00 Three (3) wallets with cash money 3,000.00 and US $134.00 Two (2) pairs of Bally shoes 5,000.00 One (1) bicycle 850.00 One (1) bottle Black Label whisky 500.00 One (1) Dunhill cig. lighter 7,000.00 One (1) Win electro lighter 500.00 One (1) Sony TV 16" One (1) Headphone radio Four (4) betamax tapes One (1) Bally shoes One (1) bag of assorted slippers One (1) Yasaki rubber shoes One (1) ROTA AIRE SUNBEAM all valued at P98,550.00, Philippine Currency and US$134.00 or its equivalent to P2,412.00, or all valued at P100,962.00 more or less, belonging to said RAJ MOHNANI against his will and consent, to the damage and prejudice of said owner in the aforesaid amount of P100,962.00, more or less, Philippine Currency; that on this occasion, the robbery was immediately accompanied by rape, the said accused, did then and there wilfully, unlawfully and feloniously, and by means of force, violence and intimidation, to wit: by using and poking their respective bladed weapons on the person of Marry Ann Galedo y Caledo and Narcisa Sumayo y de Alagdon, succeed in having sexual intercourse with them against their will and consent. Contrary to law. 1 Upon arraignment, all the accused pleaded not guilty. During the trial, all three accused jumped bail. Accused-appellant Reynaldo Maniquez was, however, reapprehended. The other tow, Juan Moreno and Paulino Deloria, could not be found, although Juan Moreno has been reported dead. On the other hand, the victims of the alleged rape, Mary Ann Galedo and Narcisa Sumayo, left their employer's house shortly after the alleged robbery and rape for an unknown province, and thus neither of them could testify at the trial. On September 11, 1987, after trial on the merits, the lower court rendered judgment of conviction, the dispositive portion of which reads as follows:

WHEREFORE, the Court hereby renders judgment against all the Accused, as follows: 1. The Court finds the Accused Juan Moreno y Ultra, guilty beyond reasonable doubt, as principal, for the crime of robbery as defined in and penalized by Article 294, paragraph 5 of the Revised Penal Code, as amended and hereby sentences him to suffer imprisonment for an indeterminate period of from four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years ofprision mayor, as maximum, with the accessory penalties of the law; 2. The Court finds the Accused Reynaldo Maniquez y de la Merced and Paulino Deloria y Ramilla, guilty beyond reasonable doubt, as principal, for the crime of robbery with rape and hereby sentences each of them to suffer the penalty of reclusion perpetua with all the accessory penalties of the law and hereby orders the Accused Reynaldo Maniquez to pay Mary Ann Galedo and the Accused Paulino Deloria to pay Narcisa Sumayo, the amount of P10,000.00, Philippine Currency, by way of damages, without subsidiary imprisonment in case of insolvency; 3. Ordering all the Accused to return to the Spouses Mohnani Raj and Sundri Mohnani all the goods and appliances stolen by them as listed in the aforementioned Information and if they failed and/or refused to do so, to pay, jointly and severally, to said Spouses the value of said goods, in the amount of P98,550.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

As can be synthesized from the evidence in the record, it appears that between 4:00 and 4:30 o'clock in the early morning of May 31, 1985, the Spouses Mohnani Raj and Sundri Mohnani, both Indian nationals, but residing in the Philippines, were sleeping in their house at No. 1291 Paz Street, Paco, Manila, with their three (3) children. The couple had two maids, namely, Mary Ann Galedo and Narcisa Sumayo, who were sleeping in another room near the sala of the house. The three (3) Accused agreed to rob the house of Mohnani Raj and Sundri Mohnani. At first, the Accused Juan Moreno had, in mind, robbing a house in Makati but when he saw that there were policemen in the vicinity, the house of the Indian couple became their prime target. Seemingly, aside from the three Accused, they had another confederate, a jeepney driver, who agreed to use his jeepney on which to load the loot taken by the Accused from the house of the couple. When the Accused reached the vicinity of the house of the couple, the jeepney was parked nearby about four (4) meters away from the house of the couple. The Accused Juan Moreno entered the house first by cutting the iron grills of the window of the house. In the meanwhile, the Accused Paulino Deloria patrolled the street nearby for any persons or tanod in the vicinity. The Accused Reynaldo Maniquez, on the other hand, acted as the look-out. After a while, Juan Moreno emerged from the house, with a pair of scissors. The Accused Juan Moreno handed over to the Accused Reynaldo Maniquez the pair of scissors and ordered the latter to look for Paulino Deloria. Thereafter, the trio entered the house together, using a flashlight.

SO ORDERED.

2

Since the decision involved the penalty of reclusion perpetua, the records of the case were transmitted to this Court for review. Notice was sent to counsel of the accused to file Appellants' brief but such notice was returned unclaimed. However, Reynaldo Maniquez, who was detained at the New Bilibid Prison in Muntinlupa, signified his intention to plead his case, at the same time requesting this Court to appoint a counsel de oficio since his previous counsel had allegedly abandoned him. His request was granted, and counsel de oficio filed his brief, raising only one assignment of error: that "the lower court gravely erred when it convicted the appellant with the crime of rape on the basis of the affidavit of the alleged offended party, without hearing her testimony in open court." 3 Accused-appellant is contesting, not his conviction for robbery, but only his conviction for rape of Mary Ann Galedo, who was not presented as a witness during the trial. The following facts as found by the trial court are undisputed:

It was at that point in time that the son of the couple, Pran, was going out of the bedroom of the couple to urinate. The spouses were awakened when the three Accused Juan Moreno, Reynaldo Maniquez and Paulino Deloria entered their bedroom. The Accused Paulino Deloria, who was armed with a gun covered with a towel, switched on the lights inside the bedroom of the couple and stood by the door. The Accused Reynaldo Maniquez, on the other hand, sat on the stomach of Mohnani Raj, at the same time, warning the latter not to shout, while poking the pair of scissors on him. The Accused Juan Moreno posted himself beside where Sundri Mohnani Raj was lying down, while poking his knife at her. The Accused Juan Moreno told Sundri Mohnani to remove all her belongings and her handbag and warned her not to shout. The said Accused was able to take from her a watch, two (2) Indian bangles, two (2) rings and P1,000.00 cash. The Accused Paulino Deloria also told Sundri Mohnani to remove her watch and other personal belongings and asked her if she had money. Sundri Mohnani gave the said Accused her money.

The Accused Reynaldo Maniquez asked Sundri Mohnani for the wallet and the latter told the Accused that the wallet was on top of the airconditioning unit. The Accused Paulino Deloria asked her where her maids were and Sundri Mohnani told the Accused where their maids were sleeping. Sundri Mohnani, thereupon, accompanied Paulino Deloria and Reynaldo Maniquez to the room of their maids, near the sala. When Sundri Mohnani and the two (2) Accused entered the room of the maids, Sundri Mohnani instructed her maids not to shout and to go to the room of the Spouses. However, the Accused Paulino Deloria and Reynaldo Maniquez told the maids to go with them stead. Reynaldo Maniquez brought Mary Ann Galedo to the bathroom of the house while Paulino Deloria brought Narcisa Sumayo to the sala. Sundri Mohnani was afraid to go out of the bedroom. However, she peeped through the door of the bedroom which was then open. Although she could see the bathroom, the door to the bathroom was closed. She could not, moreover, see the sala from where she was. After about five (5) minutes, Paulino Deloria and Reynaldo Maniquez and the two (2) maids returned to the room of the couple. Sundri Mohnani saw that the zipper of the pants of Reynaldo Maniquez was still open. Narcisa Sumayo was crying while Mary Ann Galedo was lying in bed, quiet. The two (2) maids were told to lie down. Sundri Mohnani asked Narcisa Sumayo why she was crying, but the latter did not respond. The Accused Paulino Deloria told Narcisa Sumayo to stop crying. After two or three minutes, Reynaldo Maniquez closed the zipper of his pants and went out of the bedroom and took the wallet of Mohnani Raj on his way out. Thereupon, the Accused left the room and ransacked the house. The Accused Juan Moreno took the television and Betamax set from the room of the couple while the Accused Reynaldo Maniquez took a Betamax and the wallet of Sundri Mohnani Raj.

The couple called up the police who later responded and arrived in their house. There were also about twenty or so people who offered succor to the couple. The police officers were told of the circumstances of the robbery-rape perpetrated by the Accused. The couple were able to recover, from across the street from their house, some of their belongings stolen by the Accused, namely, one (1) rota air, one (1) Sony television, head phone, four (4) Betamax tapes, one (1) pair Bally shoes and one (1) pair of rubber shoes. One bag of assorted slippers was found near the gate of their house. Mohnani Raj, his brother-in-law and his son later proceeded to the police station at about 5:45 o'clock that morning to make a formal report of the robbery. The police investigators were furnished with a list of the belongings stolen by the Accused. Forthwith, Pat. Rodolfo Soriano, of the Theft & Robbery Unit of the Crimes Against Property Section of the Western Police District prepared and signed, on May 31, 1985, an Alarm Report, based on the investigation of the police officers wherein is listed the properties stolen by the Accused, and the values thereof, thus: xxx xxx xxx It is alleged in said Report that after the accused ransacked the house of the couple and took their appliances and belongings, the two maids were dragged to the sala and bedroom and were sexually abused, and that the two (2) maids will be furnished with the request for a medico legal examination of said maids (Exhibit "J-1"). xxx xxx xxx

The three Accused forthwith carted from the house the belongings and things they took from the house. They waited for the jeepney to arrive. After a while, the jeepney parked nearby came along. The three Accused thereupon loaded their loot inside the jeepney. Juan Moreno rode in the jeepney while the Accused Reynaldo Maniquez walked home.

Further investigation of the case was turned over to Pat. Cecilio Banzagales, Jr. the next day, June 1, 1985. On June 12, 1985, the police investigators received information that the Accused Juan Moreno could be found at Union Street, Paco, Manila. The police thereupon arrested the Accused Juan Moreno. At 12:00 noon of the same day, the Accused Reynaldo Maniquez was apprehended by the police officers. The said Accused informed the police officers of the whereabouts of the Accused Paulino Deloria at Taguig, Metro Manila. The latter Accused was arrested at about 3:00 o'clock that day in said place. 4

After the Accused left the residence of the couple, Sundri Mohnani locked their door while Mohnani Raj shouted "Nakaw, nakaw". When the couple went out of their room, they saw their door to the house opened and the iron bars on the window were destroyed.

On June 14, 1985, at 8:30 o'clock in the afternoon, Mary Ann Galedo and Narcisa Sumayo had themselves examined by Dr. Marcial Ceñido of the Medico Legal Section of the Western Police District. On his physical examination of Mary Ann Galedo, the doctor made the following findings:

1. Breasts are fairly developed, conical in shape, pendulous and soft and with dark brown prominent nipples and arcelae;

OPINION: The above findings is consistent with a woman who is a virgin.

2. Abdomen is flat, soft and with striae of pregnancy; 3. Multiple old healed lacerations at 3, 6 and 9 o'clock positions extending to the base, while hymen as a whole is thick; 4. Introitus vagina admits two (2) examining fingers with moderate resistance; 5. Vaginal wall is lax and with flattering of rugosities; and 6. Last menstrual period — June 11, 1985 for 4 days. OPINION: The above findings is consistent with a woman who has already given birth. — Exhibit "M". which findings are "consistent with a woman who has already given birth (Exhibit "M"). On his examination of Narcisa Sumayo, the doctor made the following findings: 1. Breasts are fully developed, firm, hemispherical in shape and with small brownish nipples and areolae; 2. Abdomen is flat, firm and without striae of pregnancy; 3. Hymen is relatively thick, circular in shape and intact; 4. Introitus vagina admits one (1) examining finger with moderate resistance and would not admit the tip of two (2) examining fingers; 5. Vaginal wall is firm and with prominent rugosities; and 6. Last menstrual period — May 25, 1985 for 4 days.

— Exhibit "M". which findings are consistent with a woman who is a virgin (Exhibit "M"). 5 The trial court in convicting appellant and accused Deloria of the crime of rape stated as follows: . . . While concededly, there is no direct evidence to prove the crime of rape considering that Mary Ann Galedo and Narcisa Sumayo, after they executed their respective statements before the police investigators, left for their respective provinces and that their whereabouts were unknown to the Prosecution, nevertheless, there is sufficient, ample and convincing circumstantial evidence in the record proving the guilt of the Accused beyond peradventure of doubt for the crime of rape. The testimony of Sundri Mohnani is vital. Thus, she positively and spontaneously testified that he saw the Accused Reynaldo Maniquez bring Mary Ann Galedo from her room to the bathroom. The two of them, the Accused Reynaldo Maniquez and Mary Ann Galedo staying inside the bathroom for about five (5) minutes. After the lapse of said time, Mary Ann Galedo and the Accused Reynaldo Maniquez went out of the bathroom. Mary Ann Galedo proceeded to the bathroom of the couple. Sundri Mohnani saw the zipper to the pants of the Accused Reynaldo Maniquez still open. It was only after two (2) minutes that the Accused Reynaldo Maniquez bothered to close the zipper of his pants. The Accused Paulino Deloria and Narcisa Sumayo likewise stayed in the sala of the house for about said period of time of five (5) minutes after said Accused brought her from her room. When Narcisa Sumayo returned to the bedroom of the couple, she was crying profusely, most possibly because of the emotional shock and traumatic experience she went through in the sala. Mary Ann Galedo, on the other hand, sat on the bed quiet. Because of her persistent cries, Narcisa Sumayo had to be ordered by the Accused Paulino Deloria to stop crying. While it may be true that when Sundri Mohnani asked Narcisa Sumayo why she was crying, the latter did not respond, and that Mary Ann Galedo was lying in bed, quiet, however, the failure of Narcisa Sumayo to respond and

the silence of Mary Ann Galedo is understandable. It is to be noted that the Accused Reynaldo Maniquez and Paulino Deloria were still inside the bedroom standing guard and holding their weapons. The two Accused had threatened the two maids that they would be killed. There was thus the ever-present possibility that if the two maids talked about what happened to them, the two Accused might kill them. When the police investigators responded to the calls for succor from the couple and proceeded to the house of the latter immediately after they received said calls that early morning, the police officers were forthwith informed of the sexual abuse the two maids suffered at the hands of the two Accused and this is reflected in the Alarm Report prepared by Pat. Rodolfo C. Soriano Exhibit "J-1", on May 31, 1985, . . . : xxx xxx xxx The testimony of Sundri Mohnani was partially corroborated by no less than the Accused Reynaldo Maniquez himself when he affirmed and confirmed on the witness stand the allegation of Sundri Mohnani that the Accused brought Mary Ann Galedo to the bathroom and stayed with her inside the bathroom, although the Accused averred that they did so only for less than two (2) minutes. 6 Although Mary Ann Galedo and Narcisa Sumayo were not presented by the Prosecution as its witnesses, however, when the Prosecution offered the aforementioned written statements of the two (2) maids, the counsel of the accused did not object to the admission of said evidence: xxx xxx xxx Consequently, the Accused thereby waived their right to cross-examine the said affiants and such statements are admissible in evidence and the Accused became bound to any favorable or unfavorable effects resulting from said evidence: xxx xxx xxx Moreover, the contents of the Alarm Report, Exhibit (sic) "J" and "J-1" anent the rapes of the two maids, prepared by the police in the performance of his duties as such police officer and investigator are prima facie of the facts contained therein: Sec. 38. Entries in official records. — Entries in official records made in the performance of his duty by a public

officer of the Philippines, or by a person in the performance of a duty especially enjoined by law, are prima facie evidence of the facts therein stated. — Section 38, Rule 130, Rules of Court. Considered from another angle, the Alarm Report, Exhibit "J" was prepared on the very day when the two maids were raped. The informations about the rapes of the maids were relayed to the police officers shortly after the rapes were committed and the same reported to the police investigators. Patently, therefore, the declarations of the two maids who forthwith informed the police officers of the rapes are admissible in evidence as part of the "res gestae" and as an exception to the hearsay rule: 7 In effect, there are two issues raised in this appeal: (1) Whether the affidavit executed by Mary Ann Galedo narrating the circumstances of her rape was properly considered as evidence without her testimony in open court, and (2) Whether, without such affidavit, there was sufficient circumstantial evidence to prove beyond a reasonable doubt that the alleged rape was committed by the accused-appellant, Reynaldo Maniquez. Counsel for appellant claims that in the absence of Galedo's testimony in court, her affidavit is hearsay evidence and was thus inadmissible for the purpose of proving the allegation of rape. Admittedly, Galedo's affidavit would be hearsay evidence if she did not testify as to its contents at the trial. The accused was not given the opportunity to face and crossexamine her on her accusations, a right guaranteed to him by the Constitution. However, there are exceptions to the rule on inadmissibility of hearsay evidence, and one of these is when it is part of the res gestae. Section 42 of Rule 130, Rules of Court, provides: Sec. 42. Part of the res gestae. — Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as a part of the res gestae. . . . . This exception is based on the belief that such statements are trustworthy because made instinctively, "while the declarant's mental powers for deliberation are controlled and stilled by the shocking influence of a startling occurrence, so that all his utterances at the time are the reflex products of immediate sensual impressions, unaided by

retrospective mental action". 8 Said natural and spontaneous utterances are perceived to be more convincing than the testimony of the same person on the witness stand. 9 Immediately after the three accused left the house where the crime was committed, and the threatening presence of the accused was gone, both Mary Ann Galedo and Narcisa Sumayo told their employers, the Mohnani spouses, that they were raped. The latter later testified in court as to these statements. These were thus part of the res gestae since they were spontaneously made after their harrowing experience, as soon as the victims had the opportunity to make them without fear for or threat to their lives. More important even is the straightforward and clear testimony of Sundri Mohnani, wife of Raj Mohnani, their employer. She testified in court that she saw appellant enter their bathroom with Galedo. She saw him close the door and later come out after about five minutes, with the zipper of his pants still unzipped. She saw him zip it up some minutes later. This testimony was partly corroborated by appellant himself who admitted on the witness stand that he went inside the bathroom with Galedo, but denied having raped her. Aside from the testimony of the victim herself, it is not often that direct evidence of rape is available. The act of rape itself is rarely witnessed by a third party. More often than not, only circumstantial evidence can be given. And such evidence can be the basis of conviction, provided certain requisites are present. Section 4 of Rule 133, Rules of Court, provides: Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. Although the medical examination of Galedo was inconclusive as to whether she was raped, there are several other circumstances tending to prove that she was, namely: the act of appellant in taking her to the bathroom, closing the door and leaving it only after about five minutes; the fact that his fly was open when he left the bathroom; and the spontaneous statement of Galedo to her employers that she was raped. These facts were all part of the testimonies of witnesses who were given credence by the trial court and must thus be considered as proven. We find no reason to question the latter's judgment as to the truth of these testimonies. Finally, taking all these facts together, We are convinced beyond a reasonable doubt that appellant is guilty of having raped Mary Ann Galedo.

With respect to Paulino Deloria who was also found guilty by the trial court of the crime of Robbery with rape against Narcisa Sumayo, the circumstantial evidence presented against him consists of Sumayo's statement to Raj Mohnani that Deloria raped her, and the testimony of Sundri Mohnani to the effect that Deloria took Sumayo to thesala. Although Sundri did not see what happened in the sala as it was out of everybody's sight, she stated that when Deloria and Sumayo came back after about five minutes, Sumayo was crying profusely. Raj Mohnani also testified that Sumayo was crying for some time and could not stop until she was threatened by Deloria. It is true that the medical examination of Sumayo showed that her hymen was intact. However, this fact alone does not necessarily signify that Sumayo was still a virgin, and does not preclude the fact that she may have had sexual intercourse. A well-known authority on Legal Medicine has this to say on the subject: Although unruptured hymen is commonly mentioned as a distinguishing feature of virginity, it is not always a sure indication of preservation of virginity. A woman might have had previous sexual intercourse and yet the hymen remains unruptured, while others might have experienced sexual relations, but with laceration of the hymen. 10 This Court has previously held that an intact hymen does not preclude rape. The ruling of the court below as regard Pastores must be affirmed. It must be remembered that the fact that a woman's hymen has no sign of laceration does not preclude a finding of rape. For the rupture of the hymen or laceration of any part of the woman's genitalia is not indispensable to a conviction for rape; it is enough that there is proof of entrance of the male organ within the labia of the pudendum. 11 Thus, despite the fact that the medical examination of Sumayo showed that the hymen was still intact, it is not inconsistent with a finding that Deloria raped her. Why did he bring her to a place where no one could see what he intended to do? Why did Sumayo cry so violently that she could not stop until her tormentor Deloria threatened her and ordered her to stop crying? Why did she tell her employer as soon as the three accused left, that she was raped? We are convinced that there is only one answer to these queries: because she was indeed violated by Deloria. With respect to the charge of robbery, appellant does not question his conviction by the lower court. The records show strong and ample evidence more than sufficient to support the conviction of all three accused of the crime of robbery. They all conspired to rob the victim's house; they cut the iron grills of the window for the purpose of gaining entry into the house; Moreno was armed with a .38 paltik gun and appellant with a pair of scissors; they hogtied and intimidated Raj and Sundri Mohnani; and they carted away in a waiting jeep everything they could get from the Mohnani household — from big appliances like 21" TV set, to several kinds of watches and jewelry, to shoes and slippers.

Appellant, who was the only one of the three accused who testified in court, practically admitted all these facts, although he tried to minimize his share of the loot. Therefore, accused Juan Moreno, who took no part in the rape, is guilty of robbery only under Article 294, No. 5 of the Revised Penal Code but as to appellant Reynaldo Maniquez, who is herein found to have raped Mary Ann Galedo, he should be guilty of the special complex crime of robbery with rape, under Article 294, No. 2 of the Revised Penal Code, as correctly found by the lower court. However, the trial court in fixing the penalty imposed on the accused failed to take into consideration the aggravating circumstances of dwelling, nocturnity and the use of a motor vehicle. The aggravating circumstance of dwelling is considered because the crime was committed in the place of abode of the victims. It is obvious that the accused used the cover of the night to facilitate the commission of the crime, and intentionally contracted for and used a motor vehicle to insure the success of their criminal plot. But since it was only accused Reynaldo Maniquez who appealed the lower court's decisions, the corresponding increase in the penalty brought about by the appreciation of the mentioned aggravating circumstances will not affect the sentences imposed upon the two other accused — Deloria and Moreno — who did not appeal. In view of the foregoing, the judgment of the trial court finding the accused-appellant Reynaldo Maniquez guilty of the crime of robbery with rape, and sentencing him to suffer the penalty of RECLUSION PERPETUA with all the accessory penalties of the law, is hereby AFFIRMED. We furthermore order the accused-appellant Reynaldo Maniquez to pay Mary Ann Galedo, the sum of P30,000.00 by way of damages without subsidiary imprisonment in case of insolvency.

DECISION CARPIO-MORALES, J.: On June 24, 1990, fifteen (15) armed men stormed the house of the spouses Manuel and Estelita Calata in barrio Casingsingan Norte, Amulung, Cagayan. Two days after the incident or on June 26, 1990, Estelita executed a sworn statement charging Eriberto Batuelo, Elpidio Gangan, Roberto Salvador, Martin Soriano and Roberto Balacanao of robbery with rape, along with five other persons. The following day, June 27, 1990, Manuel also executed a sworn statement particularly identifying Soriano as one of the reprobates. Thereafter or on July 2, 1990, a criminal complaint for robbery with multiple rapes1 was filed by Police Investigator Cuntapay against Balacanao, Batuelo, Gangan, Salvador, Soriano and five John Does. After a preliminary examination conducted by Judge Rafael P. Carag of the Fifth Municipal Circuit Trial Court of Iguig, Cagayan, an appropriate information was recommended to be filed on August 22, 1990. The station commander of the Amulung Police Station later received an anonymous letter2 dated "10-22-90" divulging that a certain Damaso Cabana was one of the "architects" of the June 24, 1990 incident.

SO ORDERED. Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur. G.R. No. 118133

PAGULAYAN, TACIO ACORDA y BISALDE, and RUBEN ACORDA y LAYUGAN, accused-appellants.

February 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO BALACANAO y QUINES, ROBERTO SALVADOR y AGCAOILI, MARTIN SORIANO, y NARAG, ERIBERTO BATUELO y BALACANAO, ELPIDIO GANGAN, y BALISI, ABRAHAM CAMAYANG y PAGULAYAN, TACIO ACORDA y BISALDE, RUBEN ACORDA y LAYUGAN, LORENZO CARONAN y CANAPI, ELVIS BANGAYAN, GIL TAMBIAO, VILLAMOR AGANA, JESSIE ACORDA, HERMINIO ACORDA y MABUTI and DAMASO CABANA, accused. ROBERTO SALVADOR y AGCAOILI, MARTIN SORIANO y NARAG, ERIBERTO BATUELO y BALACANAO, ELPIDIO GANGAN y BALlSI, ABRAHAM CAMAYANG y

Cabana was thus taken into police custody on November 5, 1990 following which he executed a sworn statement3dated November 6, 1990 admitting his participation in the incident and identifying his associates as Jessie Acorda, Minio Acorda, Ruben Acorda, Tacio Acorda, Villamor Agana, Amoy Balacanao, Elvis Bangayan, Abraham Camayang, Ensu Caronan, Gil Tambiao, and four (4) other unnamed persons who turned out later to be Batuelo, Gangan, Salvador and Soriano. A reinvestigation of the case was thus conducted.1a\^/phi1.net After the reinvestigation, Cabana and the fourteen he implicated were charged, by Information4 dated August 29, 1991, before the Regional Trial Court Branch 1 of Tuguegarao, Cagayan for Robbery with Rape allegedly committed as follows: That on or about June 24, 1990, in the municipality of Amulung, Province of Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused, armed with guns, conspiring together and helping one another with intent to gain and by the

use of force, violence and intimidation of persons entered the house of the complainant[s], Mr. and Mrs. Manuel A. Calata, and once inside the house did then and there willfully, unlawfully and feloniously take, steal and carry away against the will of the owner, the following items:

One (1) Karaoke sing-along valued at

P4,500.0 0

One (1) Wall clock valued at

300.00

Assorted jewelries all valued at

3,000.00

Assorted merchandize all valued at

2,500.00

One (1) Samurai valued at

550.00

Cash money in the amount of

300.00

PNB and LAND BANK Bank Books, a wallet containing pertinent papers, assorted keys and other items TOTAL VALUE

P11,150. 00

all valued at P 11,150.00 and all belonging to the complainant[s] Mr. and Mrs. Manuel A. Calata, to the damage and prejudice of the aforesaid owner[s] Mr. and Mrs. Manuel A. Calata in the aforesaid amount of ELEVEN THOUSAND ONE HUNDRED FIFTY (P11,150.00) PESOS, Philippine Currency; that on the same occasion of the robbery, the above-named accused likewise armed with their aforesaid firearms, with lewd designs and by the use of force, violence against and intimidation of persons did then and there willfully, unlawfully and feloniously have sexual intercourse one after the other with the offended party, Estrella (sic) Calata against her will. Contrary to law. Five of those charged, namely: Jessie Acorda, Herminio Acorda, Villamor Agana, Elvis Bangayan and Gil Tambiao, eluded arrest. Balacanao, Caronan, Batuelo, Camayang, Gangan, Salvador, Soriano and Tacio Acorda pleaded not guilty upon arraignment. On motion of the prosecution, Damaso Cabana was discharged to become a state witness.1a\^/phi1.net From its evidence, the prosecution established the following version:

Between 5:30 and 6:00 p.m. of June 24, 1990, Abraham Camayang, leader of a group of notorious characters from Solana, Cagayan (Solana group), and his henchman Villamor Agana went to the house of state witness Cabana in Casingsingan Norte, Solana, Cagayan and invited Cabana to join them for an unspecified purpose. Acceding, Cabana joined the two who were later joined by seven Solana group members, namely: Gil Tambiao, Elvis Bangayan, Lorenzo Caronan, Jessie Acorda, Herminio Acorda, Tacio Acorda and Ruben Acorda. The Solana group, along with Cabana, then repaired to the house of the spouses Calata where another group of notorious characters from Amulung, Cagayan (Amulung group) composed of its leader Roberto Balacanao, Elpidio Gangan, Martin Soriano, Eriberto Batuelo and Roberto Salvador were already waiting in the vicinity. Solana group leader Camayang thereupon gave directions to the two groups, he posting Cabana, Hermino Acorda and Tacio Acorda as look outs along the road south of the Calata house. Camayang, with four others, then entered the backdoor into the kitchen of the Calata house, catching by surprise Estelita and her minor children 11 years old Claudette and Carlos who screamed. Estelita’s husband Manuel, who was in the sala, immediately dashed into the kitchen where he was met by Balacanao who pushed him back into the sala and made him lie face down. His hands were at once tied behind his back. The second wave of malefactors soon entered the same backdoor of the Calata house, after which Camayang and Batuelo held Estelita and her two young children at bay. They then demanded money from the Calatas. In particular, Soriano made it appear that they are subversives who needed money for the treatment of their comrade who was injured in an encounter. In the meantime, the Calatas’ neighbors Concepcion Lumboy, Celso Gorospe and Renato Corpuz passed by chance by the Calata house. Attracted by the noise and commotion inside the house, they proceeded thereto and once inside, they were pounced upon and shoved into the sala where they were ordered to lie flat in a prone position. Their hands were tied too behind their backs. Caronan, to further instill terror, ordered one of his men to get a can of gasoline and when a can of gasoline was brought, he told his cohorts to pour gasoline on the victims and burn them. As the crime wore on, Camayang dragged Estelita and her daughter Claudette into a room beside the sala, the entrance of which room was covered only by a curtain. Once inside the room, Camayang tore off the clothes of Estelita and Claudette. As Claudette was crying, Camayang and his companions spared her and the naked girl immediately ran to her bound father in the sala. Estelita was then raped by Camayang, followed by Tacio Acorda, then by Caronan, and finally by Balacanao.

The bound hands of Manuel and his three neighbors were later untied by the malefactors and they were ordered to remove their clothes. Caronan thereupon ordered Celso Gorospe to dance naked amidst the rhythmic clappings and jeers of the malefactors. The four were later ordered to put on their clothes but they were again tied and ordered to lie flat on the floor. Herminio Acorda later shouted "get out now, people are coming," prompting the malefactors to hurriedly flee with their loot consisting of cash, pieces of jewelry, assorted goods, appliances, a samurai sword, bank books, a wallet, keys, a wall clock and other items all valued at about P11,150.00. Thus, when the people referred to by Herminio Acorda - a group of thirty men from the adjacent barangay of Calintaan headed by their barangay captain Cesar Lacuesta - arrived at the Calata house, the malefactors were gone. On June 26, 1990, upon instruction of the police, Estelita submitted herself to a medical examination. Dr. Dulce Baculi, the Municipal Health Officer of Amulung, came out with her findings embodied in her Certification (Exhibit "E")5 which reads:

Abraham Camayang y Pagulayan, Lorenzo Caronan y Canapi, Tacio Acorda y Bisalde and Ruben Acorda y Layugan guilty beyond reasonable doubt of the special complex crime of Robbery with Rape aggravated by abuse of superior strength and ignominyand hereby imposes upon each and everyone of them the penalty of Reclusion Perpetua with all the accessory penalties provided for by law and to pay in solidum Manuel and Estelita Calata the stolen properties in the amount of P11,150.00 and moral damages in the amount of P500,000.00 and cost. SO ORDERED. (emphasis supplied) The Decision has, with respect to Balacanao who did not appeal, become final and executory. Caronan and Camayang jointly filed a notice of appeal on May 12, 1994. Caronan, however, later filed an undated letter, which this Court treated as a Motion, praying for the withdrawal6 of his appeal in view of the extension to him of executive clemency. This Court granted said Motion and accordingly dismissed the case against Caronan by a Resolution of April 7, 1999.7

"I. External Examination: a. 1. Contusion at left jaw. 2. Slight swelling of upper lip.

Salvador, Gangan, Soriano, Batuelo and Ruben Acorda (Salvador et al.) also jointly filed a notice of appeal while Tacio Acorda and Camayang separately filed theirs. Accused-appellant Tacio Acorda assigned as lone error of the trial court its finding that he is guilty beyond reasonable doubt.

b. No other external physical injuries noted on the victim. Accused-appellant Camayang challenges the trial court for having erred: "II. Internal Examination: a. Vulva on internal examination shows slight tenderness and smeared with blood. Note: Victim is having her menstrual period." For the defense, all the accused, disclaiming being acquainted with state witness Damaso Cabana on or before the incident, proffered alibi. After trial, the trial court found the accused Balacanao, Caronan, Batuelo, Camayang, Gangan, Salvador, Soriano, Ruben L. Acorda and Tacio B. Acorda guilty beyond reasonable doubt of Robbery with Rape, by Decision of May 3, 1994 the dispositive portion of which reads: WHEREFORE, the Court finds the accused Roberto Balacanao y Quines, Roberto Salvador y Agcaoili, Martin Soriano y Narag, Eriberto Batuelo y Balacanao, Elpidio Gangan y Balisi,

I. IN BASING ITS DECISION OF CONVICTION OF APPELLANT (CAMAYANG) SOLELY ON THE CONFESSIONAL TESTIMONY OF DAMASO CABANS [sic] PARTICULARY IN THE IDENTIFICATION OF ACCUSED ABRAHAM CAMAYANG AS ONE OF THE CULPRITS; II. IN NOT BELIEVING THE COUNTER-AFFIDAVIT OF ACCUSED-APPELLANT ABRAHAM AS CORROBORATED BY WITNESSES; Ill. IN RELYING ON THE TESTIMONY OF WITNESSES FOR THE PROSECUTION INSTEAD OF WEIGHING THE EVIDENCES ADDUCED DURING THE TRIAL, THERE BEING ABSENT THE INTENT OF ACCUSED ABRAHAM CAMAYANG’S PARTICIPATION (sic) IN THE COMMISSION OF THE OFFENSE; and IV. IN CONVICTING ACCUSED-APPELLANT ABRAHAM CAMAYANG WHO AT THE TIME OF THE ALLEGED OFFENSE WAS COMMITTED WAS NOT AT THE SCENE [OF THE CRIME AND WAS] MERELY IMPLICATED BY [CABANA DUE TO] INTIMIDATION AND COERCION DURING THE CUSTODIAL INVESTIGATION.

And as to accused-appellants Salvador, et al., they fault the trial court in: I. . . . FINDING THE ACCUSED-APPELLANTS ROBERTO A. SALVADOR, ELPIDIO GANGAN, MARTIN N. SORIANO, ERIBERTO B. BATUELO AND RUBEN L. ACORDA GUILTY BEYOND REASONABLE DOUBT OF THE COMPLEX CRIME OF ROBBERY WITH RAPE. II. . . . ORDERING THE ACCUSED-APPELLANT ROBERTO A. SALVADOR, ELPIDIO GANGAN, MARTIN N. SORIANO, ERIBERTO B. BATUELO AND RUBEN L. ACORDA TO PAY IN SOLIDUM THE SPOUSES MANUEL AND ESTELITA CALATA, THE AMOUNT OF P11,150.00 REPRESENTING THE AMOUNT OF THE STOLEN PROPERTY AND MORAL DAMAGES IN THE AMOUNT OF P500,000.00 AND COST.

From the following extracts of the testimony of state witness Cabana, and his identification9 in court of accused-appellants, there can be no mistaking their participation in the crime: (Atty. Maramag) Q: When this case was filed before the Honorable Court you were one of the original accused in this case, is it not? (Cabana) A: Yes, sir.

Accused-appellants’ respective appeals lack merit.

Q: Tell the Court why you were one of the accused in this case?

Robbery with rape is a special complex crime8 punished under the second paragraph of Art. 294 of the Revised Penal Code which reads:

A: I was one of the accused because I was then in their company at that time [June 24, 1990].

ART. 294. Robbery with violence against or intimidation of persons- Penalties.- Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:

Q: You said you were one in their company kindly mention your companions at that time?

xxx 2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have been accompanied by rape or intentional mutilation, or if by reason or on occasion of such robbery, any of the physical injuries penalized in subdivision 1 of Article 263 shall have been inflicted: Provided, however, That when the robbery accompanied with rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death; (As amended by P.D. No. 767, August 15, 1975) xxx That the crime was committed is undisputed. The issue in the main is the identity of the malefactors. Accused-appellants contend that the prosecution failed to establish their identity as participants in the crime, hence, it was error for the trial court not to have appreciated their alibi. Accused-appellants’ contention does not persuade.

A: Villamor Agana, Abraham Camayang, Elvis Bangayan, Gil Tambiao, Lorenzo Caronan, Ruben Acorda, Tacio Acorda, Jessie Acorda, Minio Acorda, Amoy Balacanao, Pidio Gangan, Martin Soriano, Eriberto Batuelo, Berto Salvador and I am the 15th.10 (Emphasis supplied) xxx Q: At or about between the hour of 5:30 to 6:00 o’clock in the evening of June 24, 1990 where were you? A: I was in our house in Casingsingan, sir. Q: What were you doing at that time in your house? A: At that time I am (sic) going purposely to fetch water but here comes (sic) the arrival of Villamor Agana and Abraham Camayang. Q: Why did these two Abraham Camayang and Villamor Agana come to you? A: At that time this Villamor Agana told me to come [sic] with them because we are going somewhere else.11(Emphasis supplied)

xxx (Court) Q: When Villamor Agana and Abraham Camayang went to you and you went with them you mean to say that it was only the three of you who proceeded from your house up to the place where you were going?

Q: Will you please name those five who were on the eastern portion of the house of Mr. Calata? A: Amoy Balacanao, Elpidio Gangan and the other three I only came to know their names while we were already at the PNP station at Amulung but I already knew their faces at that time. Q: You now name the three others whom you came later to know their names?

xxx A: When we started from our house we were only three but at the downgrade portion of our house located at the southern part the other companions were already there and we went together, sir. Q: How many of them were already there at the southern portion of your house?

A: Martin Soriano, Eriberto (sic) Salvador, Berto Batuelo.13 (Emphasis supplied) Estelita and Manuel positively identified too accused-appellants and described their respective acts. Estelita thus testified in court: (Fiscal Saquing)

A: They are seven in all, sir. Q: Who were these ten persons who entered your house if you know? Q: Name them.

(Estelita)

A: Gil Tambiao, Elvis Bangayan, Lorenzo Caronan, Jessie Acorda, Minio Acorda, Tacio Acorda, Ruben Acorda.12 (Emphasis supplied) xxx

A: I know them, sir. They were: Abraham Camayang, Ruben Acorda, Anastacio Acorda, Ensu Caronan, Amoy Balacanao, Pedro [sic] Batuelo, Gangan, Agana.14 (Emphasis supplied) xxx

(Court) Q: According to you [you] were ten in all who left your premises going towards the house of Mr. Calata were you able to reach the house of Mr. Calata?

(Court) Q: You name those who allegedly entered your house one by one.

A: Yes, sir. Q: The Court understands that only the ten of you reached Calata’s house?

A: Abraham Camayang, Ensu Caronan, Ruben Acorda, Atanacio Acorda, Damaso Cabana, Agana, Martin Soriano, Pedro (sic) Batuelo, Amoy Balacanao, Roberto [sic] Gangan, sir.15 (Emphasis supplied)

A: Upon reaching near the house of Mr. Calata, the five others were already at the eastern portion of the house of Mr. Calata then they joined us. xxx (Atty. Maramag)

xxx (Fiscal Saquing) Q: Who ransact (sic) your cabinets? A: The accused, Tacio Acorda, Ruben Acorda, Ensu Caronan, Batuelo, Gangan, Amoy Balacanao,sir.16 (Emphasis supplied)

xxx And she also positively identified accused Balacanao and Caronan and accusedappellants Camayang and Tacio Acorda as the four men who sexually abused her.17 Manuel’s identification of accused-appellants as participants is shown in his following testimony:

A: I was brought to the sala and made me laid [sic] face downward by this certain fellow in [sic] the name of Lorenzo Caronan.20 (Emphasis supplied) xxx (Atty. Cipriano) Q: Who among them asked for money?

(Court)

A: The companions of Abraham Camayang, sir. Q: When you said in answer to the question of Atty. Reyes that it was Damaso Cabana and his group that went up your house and molest[ed] your wife, who were the members of this group that you are referring [to] if you know [their names]?

Q: Do you know their names? A: Martin Soriano and Ruben Acorda, sir.21 (Emphasis supplied)

(Manuel)

xxx

A: Abraham Camayang, Roberto Balacanao, Lorenzo Caronan, Ruben Acorda, and Tacio Acorda, and members from Amulung are Martin Soriano, Eriberto Batuelo and Roberto Salvador.18(Emphasis supplied) xxx (Atty. Maramag)

(Atty. Cipriano) Q: Could you tell us what did this Eriberto Batuelo, what was the participation? A: He held one of my children and demanded money at that time, sir. Q: What is the name of your child?

Q: And this person who poked his gun at your face is Roberto Balacanao alias Amoy Balacanao?

A: Claudette, sir.

A: Yes, sir.

Q: How about this Elpidio Gangan?

Q: At the time when this Amoy Balacanao poked his gun and ordered you "dapa, dapa", where was your wife and two children at that time?

A: The same, they are at the back of my wife and my two children, sir.22 (Emphasis supplied)

A: They were still at the kitchen and I saw Abraham Camayang h[o]ld the hands of my wife and so with my two children, and also in (sic) the person[s] of Roberto Salvador and Martin Soriano at the same time demanding money.19 (Emphasis supplied) xxx Q: How about when you were ordered by Amoy Balacanao to lay face downward on the floor, what did you do?

xxx And Manuel and Estelita identified in court five of the seven accused-appellants, with Estelita positively identifying accused-appellants Soriano, Gangan and Batuelo23 while Manuel identified accused-appellants Camayang, Salvador and Soriano.24 In another vein, accused-appellants assail the credibility of the prosecution witnesses, particularly drawing attention to Cabana’s statement that there were five who sexually abused Estelita which contradicts the latter’s testimony that there were four, thus

rendering his testimony unworthy of belief.25 Accused-appellant Tacio Acorda adds that Cabana was just used by Police Investigator Rodrigo Cuntapay to entangle him in this case. Accused-appellants also capitalize on the failure of Estelita to correctly identify her sexual abusers during thepreliminary investigation.26 Accused-appellants’ assault at the credibility of the prosecution witnesses fails. Cabana’s failure to point out the exact number of Estelita’s sexual tormentors is of no consequence, accused-appellants themselves having noted27 that the testimony of Cabana as regards this point is hearsay and inadmissible. With respect to the claim that Cabana was merely used by Police Investigator Cuntapay to implicate accused-appellant Tacio Acorda in the crime, the same finds no support from the records and cannot accordingly defeat the presumption that official duty has been regularly performed.28 As for the questioned identification by Estelita during the preliminary investigation of her sexual abusers, this did not escape the attention of the trial court when it noted as follows:29 Estelita testified that the men whom she identified in court were the real rapists. She explained that she committedthe error during the previous identification (preliminary investigation) due to nervousness and confusion on the names of the rapists in their number and in the order or sequence of the sexual assaults upon her. (Emphasis and underscoring supplied). xxx But Estelita’s explanation behind her error in the identification of her rapists during the preliminary investigation merited the understanding and credence by the trial court in this wise:

Indeed, Estelita’s confusion should not militate against her given the number of malefactors and the ordeal she went through. What counts is that she was firm at the witness stand that her rapists, and the order in which they raped her, were what she mentioned thereat. Thus, on direct examination, she declared: (Fiscal Saquing) Q: After pulling you and stripping you off [sic] your dress, what did Abraham Camayang do next? (Estelita) A: He pulled me down inside our room and tore my dress and pulled me down on the floor and raped me, sir. xxx Q: After Abraham Camayang raped you, what happened next? A: This Atanacio Acorda raped me again, he poked a gun and pulled me down and because I am afraid to die I just submitted myself, sir. Q: When Atanacio Acorda finished raping you, what transpired next if there was? A: Another came sir, and this Ensu Caronan again raped me. xxx Q: After this Ensu Caronan finished raping you what happened if there was? A: This Amoy Balacanao raped me, again, sir. x x x.

Estelita suffered what very few women in this world had gone through. She underwent a most traumatic and nerve-shocking ordeal - a hideous, ghastly and outrageous blow upon her feminine possession. To expect her to narratein court and in public her most horrible and excruciating experience in a perfect sequence of events and accurateidentification of the reprobates whom, in the first place, she did not personally know, is to be unreasonable....30(Underscoring supplied). xxx

And on cross-examination31 she declared: (Atty. Cipriano) Q: When you testified here in Court you said that it was Abraham Camayang who first raped you but during the preliminary investigation you testified that it was Roberto Salvador who first raped you. Now, which iscorrect, your statement during the preliminary investigation or your statement now?

A: My testimony now before this Court, sir. Q: You also testified during the preliminary investigation that [the] second person who raped you was Martin Soriano but in your testimony now the second person was [sic] Atanacio Acorda, which is correct? A: Atanacio Acorda, sir. Q: Your statement now before the Court? A: Yes, sir. Q: You were then lying when you gave your statement during the preliminary investigation?

Thus, accused-appellant Tacio Acorda merely claimed that he was at the time in Barangay Santiago, Municipality of Iguig the same province of Cagayan. Accused-appellants Gangan, Salvador and Soriano’s evidence claimed that they were all in the same municipality of Amulung at about the time the crime was perpetrated. But accused-appellant Gangan’s alibi is uncorroborated. And so is accused-appellant Salvador’s that he was at the house of Arsenio Agcaoili in Anquiray, Amulung.35 In fact, accused-appellant Salvador’s testimony on other points is mired in inconsistencies. Thus he first testified that he slept at the house of Agcaoli in Anquiray because he (Salvador) had visitors at home that night.36 He later retracted and said they were visitors of his brother.37 And while he initially stated that his brother told him not to go or leave their house because they had visitors, he later said that it was presumably the same brother who told him to leave.38 As for accused-appellant Soriano, he gave inconsistent statements with regard the date he was allegedly assigned to act as guard at the dancehall in Pacac Grande, Amulung, he initially stating that it was on June 25, 1990, but he later claiming that it was on June 24, 1990.

A: I was confused only in their names but the truth is what I am testifying now. Q: You have also statement during the preliminary investigation that it was Elpidio Gangan who was the third person who raped you but before this Court you said it was Ensu Caronan?

In accused-appellant Camayang’s case, while he and accused Caronan testified that they were at Pudtol, Kalinga-Apayao at about the time the offense was committed, at work in the construction of presumably the same hospital, they surprisingly failed to state that they saw each other on that day.

A: Ensu Caronan, sir.

As for the other arguments of accused-appellants, they are bereft of merit.

Q: Not Elpidio Gangan?

Accused-appellant Camayang’s claim that the trial court laid undue stress on the sworn statement of Cabana39and that his guilt cannot be predicated thereon is belied by the trial court’s disquisition which shows that Cabana’s sworn statement was only one of the documentary bases for its decision.

A: Yes, sir. (Underscoring supplied) Why would Estelita, a married woman and mother of four,32 raped successively by four men on one occasion, devise a sick narrative and expose herself to the unbearable stigma and humiliation attendant to a trial for rape if she were not determined to punish her malefactors? In any event, Estelita’s incorrect identification during the preliminary investigation of her sexual abusers is inconsequential with respect to the criminal liability of accusedappellants. For at the trial court and during the preliminary investigation, she identified Balacanao as one of those who sexually abused her. As conspiracy was proven and rape was committed as a consequence, or on the occasion of the robbery, all the conspirators-participants are liable as principals of the crime of robbery with rape.33 As for the brushing aside of accused-appellants’ alibis since they failed to prove that it was physically impossible for them to be at the scene of the crime34 on the date and time it occurred, the trial court did not err thereby.

The argument that Cabana’s testimony was given under the compulsion of irresistible force and insuperable fear40is purely speculative. As for the argument that since Cabana is an unschooled farmer, the question-andanswer method of eliciting testimony cannot become the basis for accused-appellant Camayang’s conviction41 deserves scant consideration. Accused-appellant Tacio Acorda’s contention that his guilt was not proven beyond reasonable doubt because his name was never mentioned by the spouses Calata during the preliminary investigation42 fails. He was identified by Cabana during the reinvestigation. More importantly, he was positively identified by Cabana and the spouses Calata during the trial. The lack of merit of the appeal notwithstanding, it being settled that an appeal throws the entire criminal case open for review, it becomes the duty of appellate courts to

correct errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.43 In the present case, the appreciation by the trial court of the aggravating circumstances of abuse of superior strength and ignominy is erroneous. The 2000 Revised Rules of Criminal Procedure requires that every complaint or information should state not only the qualifying but also the aggravating circumstances.44 This provision may be given retroactive effect in light of the well-settled rule that "statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage, [hence] [p]rocedural laws are retroactive in that sense and to that extent."45 The aggravating circumstance "that advantage be taken of superior strength" and ignominy not having been alleged in the information in this case, the same could not be appreciated. With respect to the award of P11,150.00 to the spouses Calata as actual damages for the claimed stolen personal properties: Ordinary witnesses such as private complainants cannot establish the value of jewelry.46 Neither can the same be taken judicial notice of.47 The valuations made by Manuel and Estelita cannot thus become the basis for reparation in the absence of receipts or any other competent evidence. Neither can reparation for the Karaoke sing-along appliance be ordered, absent proof as to its description, kind/model and competent evidence of its value.48 The same holds true with respect to the assorted merchandise, the samurai, the wallet, the PNB and Land Bank bankbooks and assorted keys. The wall clock having been admittedly recovered,49 only the amount of P10,000.00 cash stolen50 established by the prosecution which, though not the amount alleged in the information, was not objected to and rebutted by the defense,51 should be awarded. It was also error for the trial court to award P500,000.00 as moral damages without citing the basis therefor. Estelita is thus entitled to only an award of P50,000.00 for each count of rape as civil indemnity and P50,000.00 for each count as moral damages.52 Furthermore, an award to Manuel of P50,000.00 as moral damages is in order. WHEREFORE, the May 3, 1994 Decision of the Regional Trial Court of Cagayan, Branch 1 at Tuguegarao, finding accused-appellants Roberto A. Salvador, Elpidio B. Gangan, Martin N. Soriano, Eriberto B. Batuelo, Abraham P. Camayang, Ruben L. Acorda and Tacio B. Acorda guilty beyond reasonable doubt of the special complex crime of Robbery with Rape and sentencing them to each suffer the penalty of reclusion perpetua is hereby AFFIRMED. They are ordered to pay jointly and severally the amount of P10,000.00 to private complainants Manuel Calata and Estelita Calata as actual damages; the amount of P50,000.00 to Estelita Calata for each count of rape as civil indemnity, and another P50,000.00 for each count as moral damages; and the amount of P50,000.00 to Manuel Calata as moral damages.

SO ORDERED. G.R. No. 86163 April 26, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendant-appellant. The Solicitor General for plaintiff-appellee. Resurreccion S. Salvilla for defendant-appellant.

MELENCIO-HERRERA, J.: Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28, Iloilo City, *dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable doubt of the crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" and sentencing them to suffer the penalty of reclusion perpetua. The Information filed against them reads: The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated and places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction with Article 267 of the Revised Penal Code), committed as follows: That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, conspiring and confederating among themselves, working together and helping one another, armed with guns and handgrenade and with the use of violence or intimidation employed on the person of Severino Choco, Mary Choco, Mimie Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take and carry away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and assorted jewelries, all valued at P50,000.00; that on the occasion and by reason of said robbery, Mary Choco suffered serious physical injuries

under paragraph 2 of Article 263, Bienvenido Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also suffered physical injuries; that the said accused also illegally detained, at the compound of the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor of said Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age, and Rodita Hablero, who is a salesgirl at said Company; that likewise on the occasion of the robbery, the accused also asked and were given a ransom money of P50,000.00; that the said crime was attended by aggravating circumstances of band, and illegal possession of firearms and explosives; that the amount of P20,000.00, the ransom money of P50,000.00, two (2) Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and one (1) live grenade were recovered from the accused; to the damage and prejudice of the New Iloilo Lumber Company in the amount of P120,000.00. The evidence for the prosecution may be re-stated as follows: On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about noon time. The plan was hatched about two days before. The accused were armed with homemade guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an employee thereat who was on her way out for her meal break and announced to her that it was a hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of age, and told the former that all they needed was money. Hearing this, Severino told his daughter, Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense) and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the premises as they already had the money but they paid no heed. Instead, accused Simplicio Canasares took the wallet and wristwatch of Severino after which the latter, his two daughters, and Rodita, were herded to the office and kept there as hostages. At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so he and the other hostages could be released. Severino answered that he could not do so because it was a Saturday and the banks were closed. In the meantime, police and military authorities had surrounded the premises of the lumber yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the accused using a loud speaker and appealed to them to surrender with the assurance that no harm would befall them as he would accompany them personally to the police station. The accused refused to surrender or to release the hostages.

Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead, explaining the difficulty of raising more as it was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be accompanied by Mary Choco in going out of the office. When they were out of the door, one of the accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita was later set free but Mary was herded back to the office. Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the accused to surrender peacefully but they refused. UItimatums were given but the accused did not budge. Finally, the police and military authorities decided to launch an offensive and assault the place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so that her right leg had to be amputated. The medical certificate described her condition as "in a state of hemorrhagic shock when she was brought in to the hospital and had to undergo several major operations during the course of her confinement from April 13, 1986 to May 30, 1986." For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-accused entered the lumber yard and demanded money from the owner Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and Rodita inside the office. He maintained, however, that he stopped his co-accused from getting the wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were never touched by them. He claimed further that they had never fired on the military because they intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not prevent her. Appellant also admitted the appeals directed to them to surrender but that they gave themselves up only much later. After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused "to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law and to pay the costs." Appellant Salvilla's present appeal is predicated on the following Assignments of Error: 1. The lower court erred in holding that the crime charged was consummated and in not holding that the same was merely attempted. 2. The lower court erred in not appreciating the mitigating circumstance of voluntary surrender."

Upon the facts and the evidence, we affirm. The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an attempt requires asportation or carrying away, in addition to the taking, In other words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or asportation And without asportation the crime committed is only attempted" (Memorandum for Appellant Salvilla, Records, p. 317). There is no question that in robbery, it is required that there be a taking of personal property belonging to another. This is known as the element of asportation the essence of which is the taking of a thing out of the possession of the owner without his privity and consent and without the animus revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking, there can be no robbery. Unlawful taking of personal property of another is an essential part of the crime of robbery. Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because neither he nor his three co-accused touched the P5,000.00 given by Severino nor the latter's wallet or watch during the entire incident; proof of which is that none of those items were recovered from their persons. Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee, testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch were within the dominion and control of the Appellant and his co-accused and completed the taking. The State established a "taking" sufficient to support a conviction of robbery even though the perpetrators were interrupted by police and so did not pick up the money offered by the victim, where the defendant and an accomplice, armed with a knife and a club respectively, had demanded the money from the female clerk of a convenience store, and the clerk had complied with their instructions and placed money from the register in a paper bag and then placed the bag on the counter in front of the two men; these actions brought the money within the dominion and control of defendant and completed the taking. (Johnson vs. State, 432 So 2d 758). "Severance of the goods from the possession of the owner and absolute control of the property by the taker, even for an instant, constitutes asportation (Adams vs. Commonwealth, 154 SW 381; State vs. Murray,

280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [Emphasis supplied]. It is no defense either that Appellant and his co-accused had no opportunity to dispose of the personalities taken. That fact does not affect the nature of the crime, From the moment the offender gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594). The crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of the lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553). Contrary to Appellant's submission, therefore, a conviction for consummated and not merely attempted Robbery is in order. It is the contention of Appellant that Rodita could not have seen the taking because the place was dark since the doors were closed and there were no windows. It will be recalled, however, that Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to mention the taking in her sworn statement would not militate against her credibility, it being settled that an affidavit is almost always incomplete and inaccurate and does not disclose the complete facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]). The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense has not proven that she was actuated by any improper motive in testifying against the accused. In the last analysis, the basic consideration centers around the credibility of witnesses in respect of which the findings of the Trial Court are entitled to great weight as it was in a superior position to assess the same in the course of the trial (see People vs. Ornoza G.R. No. L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326). Anent the second assignment of error, the "surrender" of the Appellant and his coaccused cannot be considered in their favor to mitigate their liability. To be mitigating, a surrender must have the following requisites: (a) that the offender had not been actually arrested; (b) that the offender surrendered himself to a person in authority or to his

agent; and (c) that the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141). The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were, indeed, asked to surrender by the police and military authorities but they refused until only much later when they could no longer do otherwise by force of circumstances when they knew they were completely surrounded and there was no chance of escape. The surrender of the accused was held not to be mitigating as when he gave up only after he was surrounded by the constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that they intended to surrender, the fact is that they did not despite several opportunities to do so. There is no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]). All told, the assigned errors remain unsubstantiated and we find the guilt of the accusedappellant, Bienvenido Salvilla, established beyond reasonable doubt. Although unassigned as an error, we deem it necessary to turn now to the nature of the linked offenses involved and the penalty imposed by the Trial Court. Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article 48 of the Revised Penal Code has been committed such that the penalty for the more serious offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death," is to be imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal. Under Article 48, a complex crime arises "when an offense is a necessary means for committing the other." The term "necessary means" does not connote indispensable means for if it did then the offense as a "necessary means" to commit another would be an indispensable element of the latter and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant and his co-accused to facilitate and carry out more effectively their evil design to stage a robbery. The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for Serious Illegal Detention and where it was held that "the

detention is absorbed in the crime of robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and another for Serious Illegal Detention. In the present case, only one Information was filed charging the complex offense. For another, in Astor, the robbery had already been consummated and the detention was merely to forestall the capture of the robbers by the police. Not so in this case, where the detention was availed of as a means of insuring the consummation of the robbery. Further, inAstor, the detention was only incidental to the main crime of robbery so that it was held therein: . . . were appellants themselves not trapped by the early arrival of the police at the scene of the crime, they would have not anymore detained the people inside since they have already completed their job. Obviously, appellants were left with no choice but to resort to detention of these people as security, until arrangements for their safe passage were made. This is not the crime of illegal detention punishable under the penal laws but an act of restraint in order to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a robbery case were detained in the course of robbery, the detention is absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention was only incidental to the main crime of robbery, and although in the course thereof women and children were also held, that threats to kill were made, the act should not be considered as a separate offense. Appellants should only be held guilty of robbery. In contract, the detention in the case at bar was not only incidental to the robbery but was a necessary means to commit the same. After the amount of P20,000.00 was handed to Appellant, the latter and his co-accused still refused to leave. The victims were then taken as hostages and the demand to produce an additional P100,000.00 was made as a prerequisite for their release. The detention was not because the accused were trapped by the police nor were the victims held as security against the latter. The detention was not merely a matter of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an additional amount. The police and other authorities arrived only much later after several hours of detention had already passed. And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the amount of P100,000.00 they demanded could be turned over to them. They even considered P50,000.00, the amount being handed to them, as inadequate. The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where the restraint was for no other purpose than to prevent the victims from reporting the crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in Astor and

where the victims were only incidentally detained so that the detention was deemed absorbed in robbery. In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention are present in this case. The victims were illegally deprived of their liberty. Two females (Mary and Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those detained. The continuing detention was also for the purpose of extorting ransom, another listed circumstance in Article 267 (last parag.) not only from the detained persons themselves but even from the authorities who arrived to rescue them. It follows then that as the detention in this case was not merely incidental to the robbery but a necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper. WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs.

G.R. No. L-19491

August 30, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. APOLONIO APDUHAN, JR. alias JUNIOR, ET AL., defendants, APOLONIO APDUHAN, JR. alias JUNIOR, defendant-appellant. Office of the Solicitor General for plaintiff-appellee. Alberto M. Meer for defendant-appellant. CASTRO, J.: This is an automatic review of the judgment rendered on August 30, 1961 by the Court of First Instance of Bohol (Judge Hipolito Alo presiding) convicting Apolonio Apduhan, Jr. of robbery with homicide and sentencing him to death and "to idemnify the heirs of the deceased Geronimo Miano in the amount of P6,000.00, to indemnify the heirs of the other deceased Norberto Aton in the same amount of P6,000.00 ..." On August 2, 1961 the accused Apduhan, then represented by Atty. David Ocangas, together with his co-accused Rodulfo Huiso and Felipe Quimson, both represented by Atty. David Tirol, pleaded not guilty to a second amended information which recites:. The undersigned Provincial Fiscal accuses Apolonio Apduhan, Jr., alias Junior, Rodulfo Huiso and Felipe Quimson of the crime of Robbery with Homicide, committed as follows:

That on or about the 23rd day of May, 1961, at about 7:00 o'clock in the evening, in the Municipality of Mabini, Province of Bohol, Philippines, the above-named accused and five (5) other persons whose true names are not yet known (they are presently known only with their aliases of Bernabe Miano, Rudy, Angel-Angi, Romeo and Tony) and who are still at large (they will be charged in separate information or informations as soon as they are arrested and preliminary proceedings in Crim. Case No. 176 completed before the Justice of the Peace Court), all of them armed with different unlicensed firearms, daggers, and other deadly weapons, conspiring, confederating and helping one another, with intent of gain, did then and there willfully, unlawfully and feloniously enter, by means of violence, the dwelling house of the spouses Honorato Miano and Antonia Miano, which was also the dwelling house of their children, the spouses Geronimo Miano and Herminigilda de Miano; and, once inside the said dwelling house, the abovenamed accused with their five (5) other companions, did attack, hack and shoot Geronimo Miano and another person by the name of Norberto Aton, who happened to be also in the said dwelling house, thereby inflicting upon the said two (2) persons physical injuries which caused their death; and thereafter the same accused and their five (5) other companions, did take and carry way from said dwelling house cash money amounting to Three Hundred Twenty-two Pesos (P322.00), Philippine Currency, belonging to Honorato Miano and Geronimo Miano, to the damage and prejudice of the said Honorato Miano and the heirs of the deceased Geronimo Miano in the sum of Three Hundred Twenty-two Pesos (P322.00) with respect to the amount robbed, and also to the damage and prejudice of the heirs of deceased Geronimo Miano and Norberto Aton by reason of the death of these two persons. Act committed contrary to the provisions of Art. 294, par. 1, of the Revised Penal Code with the special aggravating circumstance that the crime was committed by a band with the use of unlicensed firearms (Art. 296, Rev. Penal Code), and other aggravating circumstances, as follows: 1. That the crime was committed in the dwelling of the offended parties without any provocation from the latter; 2. That nighttime was purposely sought to facilitate the commission of the crime; and. 3. That advantage was taken of superior strength, accused and their companions, who were fully armed, being numerically superior to the offended parties who were unarmed and defenseless. When the case was called for trial on August 9, 1961, Atty. Tirol informed the court a quo that he was appearing also for Apduhan, but only as counsel de oficio. In view of this manifestation, the trial court appointed Atty. Tirol as counsel de oficio for the said accused. Forthwith, Atty. Tirol manifested that Apduhan would change his former plea of

not guilty to a plea of guilty. The record discloses that after the trial, judge had repeatedly apprised Apduhan of the severity of the offense for which he was indicted and the strong possibility that the capital penalty might be imposed upon him despite a plea of guilty, Apduhan persisted in his intention to plead guilty with the request, however, that the death penalty be not imposed. Then after hearing the arguments of Provincial Fiscal Jesus N. Borromeo and Atty. Tirol on the effect of articles 295 and 296 of the Revised Penal Code on the case at bar, the trial judge advised the herein accused anew that he could be sentenced to death notwithstanding his projected plea of guilty, but the latter reiterated his desire to confess his guilt on the specific condition that he be sentenced to life imprisonment. Eventually, however, Apduhan desisted from pleading guilty and let his previous plea stand on record after further warnings that he faced the grave danger of being sentenced to death in view of the circumstances of his case. But the aforesaid desistance was merely momentary as it did not end the accused's equivocation on the matter of his plea. After a five-minute recess requested by Atty. Tirol in order to confer with the accused, the former informed the court a quo that his client would insist on entering a plea of guilty. The following appears on record: Atty. D. TIROL: Your Honor, please, I had a conference with the accused and I apprised him with the situation of the case and after hearing our apprisal he manifested that he will insist on his entering a plea of guilty, Your Honor. I made it clear to him that we are not forcing him to enter the plea of guilty. COURT (To accused Apolonio Apduhan, Jr.) Q. Is it true that you are withdrawing your plea of not guilty? A. I will just enter the plea of guilty.

Q. Even with all those dangers mentioned by the Court to you? . A. Yes, Sir. (t.s.n. pp. 23-25). Subsequently the prosecuting fiscal and the counsel de oficio resumed their oral arguments regarding the effect on the instant case of articles 295 and 296, particularly the use of unlicensed firearm as a special aggravating circumstance under the latter article. Also discuss were the existence and effect of the alleged mitigating and aggravating circumstances. All of these points will be later analyzed. When the lower court subsequently reviewed the proceedings, it found that the accused's plea of guilty was ambiguous. Hence, on August 30, 1961, the case was reopened with respect to Apduhan, and on said date the latter entered a categorical plea of guilty, as evidenced by the record: COURT (To Accused Apduhan, Jr.): The Court reopened this case because after a review of the proceedings it found that your plea was not definite. In answer to a question of the Court you simply said "I will just enter the plea of guilty". The Court wants to know whether you enter the plea of guilty of the crime charged in the second amended information. ACCUSED APDUHAN:. I enter the plea of guilty. COURT (To same accused Apduhan):

Q. Have you been forced to enter the plea of guilty by your lawyer?.

Q. Therefore, you admit that you have committed the crime charged in the second information?

A. No, Sir.

A. Yes, Your Honor.

Q. And why do you said "I will JUST enter the plea of not guilty"?

Q. Is it necessary for you that the second amended information be read again?

A. I have proposed to enter the plea of guilty even before.

A. No more; it is not necessary.

Q. Now the Court warns you again. Are you conscious of the fact that notwithstanding your plea of guilty the Court may impose upon you the penalty of death?

Q. Do you want that the second amended information be read to you again?

A. I will just enter the plea of guilty, at the discretion of the Court.

A. No more, Your Honor. (t.s.n. pp. 50-51). On the same day, the court a quo rendered its decision, the pertinent dispositive portion of which reads:.

PREMISES CONSIDERED, the Court renders judgment finding accused Apolonio Apduhan, Jr., alias Junior guilty of the complex crime of robbery with homicide, punished by Article 294 of the Revised Penal Code, in relation to Article 296 of the game Code, as amended, and sentences him to suffer the penalty of death. Considering that Apduhan had voluntarily confessed his guilt in open court, then the only aspect of the case properly subject to review is the correctness of the penalty imposed by the court a quo. In this respect, the appreciation of the use of unlicensed firearm as a special aggravating circumstance (art. 296) in fixing the appropriate penalty for robbery with homicide (Art, 294 [1]) committed by a band with the use of unlicensed firearms, and the interplay and counter-balancing of the attendant mitigating and aggravating circumstances, would determine the severity of the penalty imposable. The disposition of the question at hand necessitates a discussion of the interrelation among articles 294, 295 and 296 of the Revised Penal Code. For this purpose the said articles are hereunder quoted: ART. 294. Robbery with violence against or intimidation of persons — Penalties. — Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed. 2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have been accompanied by rape or intentional mutilation, or if by reason or on occasion of such robbery, any of the physical injuries penalized in subdivision 1 of article 263 shall have been inflicted. 3. The penalty of reclusion temporal, when by reason or on occasion of the robbery, any of the physical injuries penalized in subdivision 2 of the article mentioned in the next preceding paragraph, shall have been inflicted. 4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium period, if the violence or intimidation employed in the commission of the robbery shall have been carried to a degree clearly unnecessary for the commission of the crime, or when in the course of the execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by subdivisions 3 and 4 of said article 263.

5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. (As amended by Rep. Act 18.). ART 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley. — If the offenses mentioned in subdivisions three, four, and five of the next preceding article shall have been committed in an uninhabited place or by a band, or by attacking a moving train, street car, motor vehicle or airship, or by entering the passengers' compartments in a train or, in any manner, taking the passengers thereof by surprise in the respective conveyances, or on a street, road highway, or alley, and the intimidation is made with the use of a firearm, the offender shall be punished by the maximum period of the proper penalties. (As amended by Rep. Acts Nos. 12 and 373.) (Emphasis supplied) . ART. 296. Definition of a band and penalty incurred by the members thereof.— When more than three armed malefactors take part in the commission of a robbery, it shall be deemed to have been committed by a band. When any of the arms used in the commission of the offense be an unlicensed firearm the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by law,without prejudice to the criminal liability for illegal possession of such unlicensed firearm. Any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. (As amended by Rep. Act No. 12). (Emphasis supplied). The afore-quoted art. 294 enumerates five classes of robbery with violence against or intimidation of persons and prescribes the corresponding penalties. The case at bar falls under art. 294(1) which defines robbery with homicide and fixes the penalty from reclusion perpetua to death. Article 295 provides, inter alia, that when the offenses described in subdivisions 3, 4 and 5 of art. 294 are committed by a band, the proper penalties must be imposed in the maximum periods. The circumstance of band is therefore qualifying only in robbery punished by subdivisions 3, 4, and 5 of art. 294. Consequently, art. 295 is inapplicable to robbery with homicide, rape, intentional mutilation, and lesiones graves resulting in insanity, imbecility, impotency or blindness. If the foregoing classes of robbery which are described in art. 294(1) and (2) are perpetrated by a band, they would not be punishable under art. 295, but then cuadrilla would be a generic aggravating under Art. 14 of the Code.1 Hence, with the present wording of art. 2952 there is no crime as "robbery with homicide in band." If robbery with homicide is committed by a band, the indictable offense would still be denominated as "robbery with homicide" under art. 294(1), but the element of band, as stated above, would be appreciated as an ordinary aggravating circumstance.

Article 296, as quoted above, defines "band", creates the special aggravating circumstance of use of unlicensed firearm, and provides the criminal liability incurred by the members of the band. The ascertainment of the definite function and range of applicability of this article in relation to articles 294 and 295 is essential in the disposition of the case at bar. In imposing the death penalty, the trial court appears to have accorded validity to the Provincial Fiscal's contention that in robbery with homicide committed by a band, the use of unlicensed firearm must be appreciated as a special aggravating circumstance pursuant to art. 296. Thus convinced, the trial judge stressed in his decision that "under the express mandate of the law, we cannot escape the arduous task of imposing the death penalty." Subscribing to the said position, the Solicitor General adds that the "penalty for robbery under the circumstances mentioned in Articles 294, paragraph 1, and 296 of the Code is the maximum of reclusion perpetua to death, or the supreme penalty of death. This is mandatory." . On the other hand, Atty. Alberto M. Meer, the accused's counsel de oficio in the present review, contends that the use of unlicensed firearm, if ever appreciated in the case at bar, must be considered a generic aggravating factor which "may be off-set by the existence of mitigating circumstances so that the penalty to be imposed should be the penalty of reclusion perpetua." . Both the foregoing contentions are untenable. After a perceptive analysis of the provisions of art. 296, we reach the considered opinion that the said article is exclusively linked and singularly applicable to the immediately antecedent provision of art. 295 on robbery in band, as the latter article, in turn, is explicitly limited in scope to subdivisions 3, 4, and 5 of art. 294. Consequently, although the use of unlicensed firearm is a special aggravating circumstance under art. 296, as amended by Rep. Act 12, 3 it cannot be appreciated as such in relation to robbery with homicide, described and penalized under paragraph 1 of art. 294. As previously stated, art. 295 provides that if any of the classes of robbery described in subdivisions 3, 4, and 5 of art. 294 is committed by a band, the offender shall be punished by the maximum period of the proper penalty. Correspondingly, the immediately following provisions of art. 296 define the term "band", prescribe the collective liability of the members of the band, and state that "when any of the arms used in the commission of the offense be in unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by law." Viewed from the contextual relation of articles 295 and 296, the word "offense" mentioned in the above-quoted portion of the latter article logically means the crime of robbery committed by a band, as the phrase "all the malefactors" indubitably refers to the members of the band and the phrase "the corresponding penalty provided by law" relates to the offenses of robbery described in the last three subdivisions of art. 294 which are all encompassed within the ambit of art. 295. Evidently, therefore, art.

296 in its entirety is designed to amplify and modify the provision on robbery in band which is nowhere to be found but in art. 295 in relation to subdivisions 3, 4, and 5 of art. 294. Verily, in order that the aforesaid special aggravating circumstance of use of unlicensed firearm may be appreciated to justify the imposition of the maximum period of the proper penalty it is a condition sine qua non that the offense charged be robbery committed by a band within the contemplation of art. 295. To reiterate, since art. 295, does not apply to subdivision 1 and 2 of art. 294, then the special aggravating factor in question, which is solely applicable to robbery in band under art. 295, cannot be considered in fixing the penalty imposable for robbery with homicide under art. 294(1), even if the said crime was committed by a band with the use of unlicensed firearms. The legislative intent of making art. 296 corollary to art. 295 with respect to robbery in band was unmistakably articulated by Congressman Albano in his sponsorship speech on H. B. No. 124 (subsequently enacted as Rep. Act No. 12, amending, among others, articles 295 and 296 of the Revised Penal Code). Said Congressman Albano: "Article 296 as a corollary of Article 295 would change the definition heretofore known of the term "band" under the law. The purpose of this amendment is to inject therein the element of aggravation, when any member of the band carries an unlicensed firearm . ." 4. The special aggravating circumstance of use of unlicensed firearm, however, was initially applicable to all the subdivisions of art. 294 since the said Rep. Act No. 12 also amended art. 295 to include within its scope all the classes of robbery described in art. 294. With the then enlarged coverage of art. 295, art. 296, being corollary to the former, was perforce made applicable to robbery with homicide (art. 294[1]). Thus, in People vs. Bersamin, 5 this Court, in passing, opined: "The use of unlicensed firearm is a special aggravating circumstanceapplicable only in cases of robbery in band (Art. 296, Revised Penal Code, as amended by Section 3, Republic Act No. 12)." . In the said case, this Court declared in effect that in robo con homicidio the use of unlicensed firearm is not a special aggravating circumstance when the said offense is not committed by a band. Inferentially, had the robbery with homicide in Bersamin been perpetrated by a band, the use of unlicensed firearm would have been appreciated. This implied pronouncement would have been justified under art. 296 in relation to art. 295, as amended by Rep. Act 12. But the aforesaid inference lost all legal moorings in 1949 with the enactment of Rep. Act 373 which excluded subdivisions 1 and 2 of art. 294 from the coverage of art. 295. Since art. 296, as repeatedly emphasized above, is corollary to art. 295, the diminution of the latter's scope correspondingly reduced the former's extent of applicability. In other words, the passage of the foregoing amendment did not only jettison the first two subdivisions of art. 294 from the periphery of art. 295 but also removed the said subdivisions (which pertain, inter alia, to the offense of robbery with homicide) from the effective range of art. 296. Notwithstanding that the special aggravating circumstance of use of unlicensed firearm cannot be appreciated in the instant case, we are constrained, in the final analysis, to observe that the imposition of the death penalty on the accused Apduhan would appear

to be a logical legal consequence, because as against the attendant mitigating circumstances the aggravating circumstances numerically and qualitatively preponderate. After Apduhan had pleaded guilty, the defense counsel offered for consideration three mitigating circumstances, namely, plea of guilty, intoxication, and lack of intent to commit so grave a wrong. Subsequently, however, the defense withdrew the last mentioned mitigating circumstance after the prosecution had withdrawn the aggravating circumstance of abuse of superior strength. The following manifestations appear on record: .

However, apropos the alternative circumstance of intoxication, we find no evidence on record to support the defense's claim that it should be considered as a mitigating factor. This absence of proof can be attributed to the defense's erroneous belief that it was not anymore its burden to establish the state of intoxication of the accused when he committed the offense charged since anyway the prosecution had already admitted the attendance of the said mitigating circumstance on the ground that the State did not have strong evidence to overthrow the accused's claim of non-habituality to drinking. The record discloses the following pertinent discussion: . "COURT (To Fiscal Borromeo):.

"FISCAL BORROMEO: . "In fairness to the accused, because the crime charged is robbery in band (the case at bar is actually robbery with homicide), it is natural that in robbery in band there is already abuse of superior strength, so we will just withdraw that superior strength. "COURT (To Atty. D. Tirol): . "What do you say now? . "ATTY. D. TIROL: .

"Do you agree, Mr. Fiscal, that the non-habitual intoxication of the accused be also taken into account in his favor as a mitigating circumstance? "FISCAL BORROMEO: . "We have no evidence exactly to know at this time that the accused was intoxicated, but his affidavit states that before the commission of the crime they took young coconuts and there is no mention about the taking of any liquor, so that, as it is now, we are constrained to object. "COURT (To the Fiscal): . "But do you have evidence to counteract that allegation? .

"Such being the case, we will not insist on presenting evidence in support of our contention that the accused did not intend to commit so grave a wrong.

"FISCAL BORROMEO: .

"COURT: .

"We do not have any evidence to counteract that.

"Moreover by the mere use of firearm the accused cannot claim that he did not intend to commit so grave a wrong as that committed. So now you withdraw your petition that you be allowed to present evidence to that effect? .

"COURT (To the Fiscal): .

"ATTY. D. TIROL: .

"FISCAL BORROMEO: With that manifestation we submit because actually we do not have evidence to counteract that he was a habitual drinker. "COURT (To the Fiscal): .

"Yes, Your Honor." (t.s.n. pp. 47-48). Thus, only two alleged mitigating circumstances remain for consideration. Anent the plea of guilty, we believe that under art. 13 (7) its appreciation in the case at bar is beyond controversion.

"But do you not admit the attendance of that circumstance? .

"But do you prefer to admit that mitigating circumstance or you need that evidence be presented to that effect? "FISCAL BORROMEO: . "Inasmuch as we do not have strong evidence to contradict that circumstance in fairness to the accused, we would rather submit.

"COURT (To the Fiscal): . "The attendance of the mitigating circumstance of non-habitual intoxication? . "FISCAL BORROMEO: . "Yes, Your Honor." (t.s.n. pp. 7-9) (Emphasis supplied) . From the above proceedings in the trial court, it would appear that what the prosecution actually intended to admit was the non-habituality of the accused to drinking liquor, not as a matter of fact, but due to the State's inability to disprove the same. The prosecution apparently did not concede the actual intoxication of the accused. We are of the firm conviction that, under the environmental circumstances, the defense was not relieved of its burden to prove the accused's actual state of intoxication. Otherwise, to appreciate the attendance of a mitigating factor on the mere allegation of the accused, coupled with the dubious acquiescence of the prosecution, would open wide the avenue for unscrupulous and deceitful collusion between defense and prosecution in order to unduly and unjustly minimize the penalty imposable upon the accused. The last paragraph of art. 15 of the Code provides:. "The intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony but when the intoxication is habitual or intentional it shall be considered as an aggravating circumstance. (Emphasis supplied). Under the foregoing provision, intoxication is mitigating when it is not habitual or intentional, that is, not subsequent to the plan to commit the crime. However, to be mitigating the accused's state of intoxication must be proved. 6 Once intoxication is established by satisfactory evidence, 7 then in the absence of proof to the contrary" it is presumed to be non-habitual or unintentional. 8 . In People vs. Noble 9 the defendant testified that before the murder he took a bottle of wine and drank little by little until he got drunk. The policeman who arrested the accused testified that the latter smelled wine and vomited. The Court held that the evidence presented was not satisfactory to warrant a mitigation of the penalty. Intoxication was likewise not competently proved in a case 10 where the only evidence was that the defendant had a gallon of tuba with him at the time he committed the crime. In the case at bar the accused merely alleged that when he committed the offense charged he was intoxicated although he was "not used to be drunk," 11This self-serving statement stands uncorroborated. Obviously, it is devoid of any probative value.

To recapitulate, the accused has in his favor only one mitigating circumstance: plea of guilty. As aforementioned, the defense withdrew its claim of "lack of intent to commit so grave a wrong" and failed to substantiate its contention that intoxication should be considered mitigating. While an unqualified plea of guilty is mitigating, it at the same time constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances therein recited. 12 The four aggravating circumstances are (1) band; (2) dwelling; (3) nighttime; and (4) abuse of superior strength. The circumstance of abuse of superiority was, however, withdrawn by the prosecution on the ground that since the offense of robbery with homicide was committed by a band, the element of cuadrilla necessarily absorbs the circumstance of abuse of superior strength. We believe that said withdrawal was ill-advised since the circumstances of band and abuse of superiority are separate and distinct legal concepts. The element of band is appreciated when the offense is committed by more than three armed malefactors regardless of the comparative strength of the victim or victims. Hence, the indispensable components of cuadrilla are (1) at least four malefactors and (2) all of the four malefactors are armed. On the other hand, the gravamen of abuse of superiority is the taking advantage by the culprits of their collective strength to overpower their relatively weaker victim or victims. Hence, in the latter aggravating factor, what is taken into account is not the number of aggressors nor the fact that they are armed, but their relative physical might vis-a-vis the offended party. Granting, however, that the said withdrawal was valid, there still remain three aggravating circumstances which render inutile the solitary extenuating circumstance of plea of guilty. The prosecution does not need to prove the said three circumstances (all alleged in the second amended information) since the accused by his plea of guilty, has supplied the requisite proof. 13 Hence, we will not belabor our discussion of the attendance aggravating circumstances. The settled rule is that dwelling is aggravating in robbery with violence or intimidation of persons, 14 like the offense at bar. The rationale behind this pronouncement is that this class of robbery could be committed without the necessity of transgressing the sanctity of the home. Morada is inherent only in crimes which could be committed in no other place than in the house of another, such as trespass and robbery in an inhabited house. 15 This Court in People vs. Pinca, 16 citing People vs. Valdez, 17 ruled that the "circumstances (of dwelling and scaling) were certainly not inherent in the crime committed, because, the crime being robbery with violence or intimidation against persons (specifically, robbery with homicide) the authors thereof could have committed it without the necessity of violating or scaling the domicile of their victim." Cuello Calon opines that the commission of the crime in another's dwelling shows greater perversity in the accused and produces greater alarm. 18. Nocturnity is aggravating when it is purposely and deliberately sought by the accused to facilitate the commission of the crime 19 or to prevent their being recognized or to

insure unmolested escape. 20 Nocturnidad must concur with the intent and design of the offender to capitalize on the intrinsic impunity afforded by the darkness of night. 21 In the case at bar, the affidavit (exh. I-1) of the accused Apduhan shows that he and his comalefactors took advantage of the nighttime in the perpetration of the offense as they waited until it was dark before they came out of their hiding place to consummate their criminal designs. In his decision, the trial judge recommends to, the President of the Republic the commutation of the death sentence which he imposed on the accused to life imprisonment. The Solicitor General supports this recommendation for executive clemency. We find no compelling reason to justify such recommendation. Contrary to the trial judge's observation, the accused's plea of guilty was far from "spontaneous" and "insistent". It will be recalled that his initial plea was one of not guilty. Later, he changed his plea but with the persistent condition that he be sentenced to life imprisonment, not death. It was only after much equivocation that he finally decided to "just" plead guilty. Because his plea was still ambiguous, the court a quo had to reopen the case to ascertain its real nature. Conceding, however, that his plea was "spontaneous" and "insistent," such manifestation of sincere repentance cannot serve to obliterate the attendant aggravating circumstances which patently reveal the accused's criminal perversity. It appears from a cursory reading of the decision under review that the trial judge also anchored his recommendation on the ground that there is "the possibility that the firearm was used in order to counteract the resistance of the deceased." This is no justification at all for executive clemency. Firstly, the above observation is a mere conjecture - in the language of the presiding judge, a "possibility." Secondly, even granting that the said observation relates to the actual happening, to employ a firearm in subduing the lawful resistance of innocent persons is a criminal act by any standard. Even as we purge the decision under review of its errors, we must hasten to commend the trial judge, the Hon. Hipolito Alo, for his earnest and patient efforts to forestall the entry of an improvident plea of guilty by the accused Apduhan, notwithstanding that the latter was already represented by a counsel de oficio and hence presumed to have been advised properly. Judge Alo made sure that the accused clearly and fully understood the seriousness of the offense charged and the severity of the penalty attached to it. When the accused proposed to confess his guilt, Judge Alo repeatedly warned him that the death penalty might be imposed despite his plea of guilty. As aforementioned, when it appeared that Apduhan's plea of guilty was ambiguous, Judge Alo reopened the case to determine with definitiveness the nature of his plea. The virtue of Judge Alo's efforts in ascertaining whether Apduhan pleaded guilty with full knowledge of the significance and consequences of his act, recommends itself to all trial judges who must refrain from accepting with alacrity an accused's plea of guilty, for

while justice demands a speedy administration, judges are duty bound to be extra solicitous in seeing to it that when an accused pleads guilty he understands fully the meaning of his plea and the import of an inevitable conviction. As a final commentary on the criminal conduct of the accused herein, it must be emphasized that the instant review was delayed for several years because he escaped from the New Bilibid Prisons on June 17, 1963, less than six months after he was committed to the said penitentiary. He was recommitted on July 10, 1964 with a new mittimus from the Court of First Instance of Leyte for robbery in band in criminal case 10099, for which he was sentenced to serve a prison term of from 8 years and 1 day to 12 years and 1 day commencing on October 31, 1963. 22 His recommitment was reported to this Court only on July 5, 1966. Notwithstanding the foregoing disquisition, for failure to secure the required number of votes, the penalty of death cannot be legally imposed. The penalty next lower in degree - reclusion perpetua - should consequently be imposed on the accused. ACCORDINGLY, with the modification that the death sentence imposed upon Apolonio Apduhan, Jr. by the court a quo is reduced to reclusion perpetua, the judgment a quo is affirmed in all other respects, without pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ., concur. G.R. No. L-28547 February 22, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA, accused. ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES, defendants-appellants. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-appellee. Sixto P. Dimaisip for defendants-appellants.

AQUINO, J.:p This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision of the Court of First Instance of Iloilo, which convicted them of robbery with homicide, sentenced each of them to reclusion perpetua and ordered them to pay

solidarily the sum of six thousand pesos to the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value of fighting cocks (Criminal Case No. 11082). The evidence for the prosecution shows that at around eleven o'clock in the evening of January 9, 1966, Gorriceta, who had just come from Fort San Pedro in Iloilo City, was driving a Ford pickup truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde Building on J. M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed Gorriceta who stopped the truck. Jaranilla requested to bring them to Mandurriao, a district in another part of the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his way home. Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had to get something from his uncle's place. So, Jaranilla, Brillantes and Suyo boarded the pickup truck which Gorriceta drove to Mandurriao. Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy meters from the provincial hospital. Jaranilla, Suyo and Brillantes alighted from the vehicle. Jaranilla instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After an interval of about ten to twenty minutes, they reappeared. Each of them was carrying two fighting cocks. They ran to the truck. Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove the truck to Jaro (another district of the city) on the same route that they had taken in going to Mandurriao. It is important to note the positions of Gorriceta and his three companions on the front seat of the track. Gorriceta the driver, was on the extreme left. Next to him on his right was Suyo. Next to Suyo was Brillantes. On the extreme right was Jaranilla. While the truck was traversing the detour road near the Mandurriao airport, then under construction, Gorriceta saw in the middle of the road Patrolmen Ramonito Jabatan and Benjamin Castro running towards them. Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning shot and was signalling with his flashlight that the truck should stop. Gorriceta stopped the truck near the policeman. Jabatan approached the right side of the truck near Jaranilla and ordered all the occupants of the truck to go down. They did not heed the injunction of the policeman. Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot Patrolman Jabatan. The shooting frightened Gorriceta. He immediately started the motor of the truck and drove straight home to La Paz, another district of the city. Jaranilla kept on firing towards Jabatan.

Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck inside the garage. Jaranilla warned Gorriceta not to tell anybody about the incident. Gorriceta went up to his room. After a while, he heard policemen shouting his name and asking him to come down. Instead of doing so, he hid in the ceiling. It was only at about eight o'clock in the morning of the following day that he decided to come down. His uncle had counselled him to surrender to the police. The policemen took Gorriceta to their headquarters. He recounted the incident to a police investigator. Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft Street in Mandurriao, testified that before midnight of January 9, 1966, he conducted a friend in his car to the housing project in the vicinity of the provincial hospital at Mandurriao. As he neared his residence, he saw three men emerging from the canal on Taft Street in front of Baylon's house. He noticed a red Ford pickup truck parked about fifty yards from the place where he saw the three men. Shortly thereafter, he espied the three men carrying roosters. He immediately repaired to the police station at Mandurriao. He reported to Patrolmen Jabatan and Castro what he had just witnessed. The two policemen requested him to take them in his car to the place where he saw the three suspicious-looking men. Upon arrival thereat, the men and the truck were not there anymore. Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour road leading to the airport, the policemen left the car and crossed the runway which was a shortcut. Their objective was to intercept the truck. Trespeces turned his car around in order to return to Mandurriao. At that moment he heard gunshots. He stopped and again turned his car in the direction where shots had emanated. A few moments later, Patrolman Castro came into view. He was running. He asked Trespeces for help because Jabatan, his comrade, was wounded. Patrolman Castro and Trespeces lifted Jabatan into the car and brought him to the hospital. Trespeces learned later that Jabatan was dead. Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department, conducted an autopsy on the remains of Patrolman Jabatan. He found: (1) Contusion on left eyebrow. (2) Bullet wound one centimeter in diameter, penetrating left anterior axilla, directed diagonally downward to the right, perforating the left upper lobe of the lungs through and through, bitting the left pulmonary artery and was recovered at the right thoracic cavity; both thoracic cavity was full of blood. Cause of death: Shock, hemorrhage, secondary to bullet wound.

Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the morning of January 10, 1966. He discovered that the door of one of his cock pens or chicken coops (Exhs. A and A-1) was broken. The feeding vessels were scattered on the ground. Upon investigation he found that six of his fighting cocks were missing. Each coop contained six cocks. The coop was made of bamboo and wood with nipa roofing. Each coop had a door which was locked by means of nails. The coops were located at the side of his house, about two meters therefrom. Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives came to his house together with the police photographer who took pictures of the chicken coops. The six roosters were valued at one hundred pesos each. Two days later, he was summoned to the police station at Mandurriao to identify a rooster which was recovered somewhere at the airport. He readily identified it as one of the six roosters which was stolen from his chicken coop (Exh. B). Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the aggravating circumstances of use of a motor vehicle, nocturnity, band, contempt of or with insult to the public authorities and recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was dismissed as to him. On February 2, 1967, after the prosecution had rested its case and before the defense had commenced the presentation of its evidence, Jaranilla escaped from the provincial jail. The record does not show that he has been apprehended. The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October 19, 1967 when it was read to them in court. They signed at the bottom of the last page of the decision. There was no promulgation of the judgment as to Jaranilla, who, as already stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court). However, the notice of appeal filed by defendants' counsel de oficio erroneously included Jaranilla. Inasmuch as the judgment has not been promulgated as to Jaranilla, he could not have appealed. His appeal through counsel cannot be entertained. Only the appeals of defendants Suyo and Brillantes will be considered. In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court assumed that the taking of the six fighting cocks was robbery and that Patrolman Jabatan was killed "by reason or on the occasion of the robbery" within the purview of article 294 of the Revised Penal Code. In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was the one who shot the policeman and that Jaranilla was driving the Ford truck because Gorriceta was allegedly drunk. Through their counsel de oficio, they

further contend that the taking of roosters was theft and, alternatively, that, if it was robbery, the crime could not be robbery with homicide because the robbery was already consummated when Jabatan was killed. After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and who shot policeman, this Court finds that the trial court did not err in giving credence to Gorriceta's declaration that he was driving the truck at the time that Jaranilla shot Jabatan. The improbability of appellants' theory is manifest. The truck belonged to Gorriceta's sister. He was responsible for its preservation. He had the obligation to return it to his sister in the same condition when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and when he allegedly invited them for a paseo. There is no indubitable proof that Jaranilla knows how to drive a truck. The theory of the defense may be viewed from another angle. If, according to the appellants, Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was drunk then that circumstance would be inconsistent with their theory that Gorriceta shot Jabatan. Being supposedly intoxicated, Gorriceta would have been dozing when Jabatan signalled the driver to stop the truck and he could not have thought of killing Jabatan in his inebriated state. He would not have been able to shoot accurately at Jabatan. But the fact is that the first shot hit Jabatan. So, the one who shot him must have been a sober person like Jaranilla. Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it was Jaranilla, not Gorriceta, who would have the motive for shooting Jabatan. Consequently, the theory that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be plausible. Was the taking of the roosters robbery or theft? There is no evidence that in taking the six roosters from their coop or cages in the yard of Baylon's house violence against or intimidation of persons was employed. Hence, article 294 of the Revised Penal Code cannot be invoked. Neither could such taking fall under article 299 of the Revised Penal Code which penalizes robbery in an inhabited house (casa habitada), public building or edifice devoted to worship. The coop was not inside Baylon's house. Nor was it a dependency thereof within the meaning of article 301 of the Revised Penal Code. Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether the taking of the six roosters is covered by article 302 of the Revised Penal Code which reads:

ART. 302. Robbery in an uninhabited place or in private building.—Any robbery committed in an uninhabited place or in a building other than those mentioned in the first paragraph of article 299, if the value of the property exceeds 250 pesos, shall be punished by prision correccional in its medium and maximum periods provided that any of the following circumstances is present: 1. If the entrance has been effected through any opening not intended for entrance or egress. 2. If any wall, roof, floor or outside door or window has been broken. 3. If the entrance has been effected through the use of false keys, picklocks or other similar tools. 4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has been broken. 5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed, even if the same be broken open elsewhere. xxx xxx xxx In this connection, it is relevant to note that there is an inaccuracy in the English translation of article 302. The controlling Spanish original reads: ART. 302. Robo en lugar no habitado o edificio particular.—El robo cometido en un lugar no habitado o en un edificio que no sea de los comprendidos en el parrafo primero del articulo 299, ... . (Tomo 26, Leyes Publicas 479). The term "lugar no habitado" is erroneously translated. as "uninhabited place", a term which may be confounded with the expression "uninhabited place" in articles 295 and 300 of the Revised Penal Code, which is the translation of despoblado and which is different from the term lugar no habitado in article 302. The term lugar no habitado is the antonym of casa habitada (inhabited house) in article 299. One essential requisite of robbery with force upon things under Articles 299 and 302 is that the malefactor should enter the building or dependency, where the object to be taken is found. Articles 299 and 302 clearly contemplate that the malefactor should enter the building (casa habitada o lugar no habitado o edificio). If the culprit did not enter the building, there would be no robbery with force upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688).

Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue, Manila and removed forty watches therefrom, the crime was theft and not robbery because he did not enter the building. The show-window was outside the store. (People vs. Adorno, CA 40 O. G. 567, per Montemayor, J., who later became a member of this Court). * In the instant case, the chicken coop where the six roosters were taken cannot be considered a building within the meaning of article 302. Not being a building, it cannot be said that the accused entered the same in order to commit the robbery by means of any of the five circumstances enumerated in article 302. The term "building" in article 302, formerly 512 of the old Penal Code, was construed as embracing any structure not mentioned in article 299 (meaning not an "inhabited house or public building or edifice devoted to worship" or any dependency thereof) used for storage and safekeeping of personal property. As thus construed, a freight car used for the shipment of sugar was considered a private building. The unnailing of a strip of cloth nailed over the door, the customary manner of sealing a freight car, was held to constitute breaking by force within the meaning of article 512, now article 302. (U.S. vs. Magsino, 2 Phil. 710). The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that a railroad employee who, by force, opens a sealed or locked receptacle deposited in a freight car, does not commit robbery. He is guilty of theft because a railroad car is neither a house nor a building within the meaning of article 302 which corresponds to article 525 of the 1870 Spanish Penal Code. Article 302 refers to houses or buildings which, while not actually inhabited, are habitable. Thus, a pig sty is not a building within the meaning of article 302. The stealing of hogs from a pig sty is theft and not robbery, although the culprit breaks into it. Article 302 refers to habitable buildings. (Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal 636-7, 642, which in turn cites the decisions of the Spanish Supreme Court dated March 2, 1886 and April 25, 1887). ** As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the dialect as tangkal orkulungan, is about five yards long, one yard wide and one yard high. It has wooden stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of average height like Baylon. It is divided into six compartments or cages. A compartment has an area of less than one cubic yard. A person cannot be accommodated inside the cage or compartment. It was not intended that a person should go inside that compartment. The taking was effected by forcibly opening the cage and putting the hands inside it to get the roosters. Therefore, the taking of the six roosters from their coop should be characterized as theft and not robbery. The assumption is that the accused were animated by single criminal impulse. The conduct of the accused reveals that they conspired to steal the roosters. The taking is punishable as a single offense of theft. Thus, it was held that the taking of

two roosters in the same place and on the same occasion cannot give rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing decision of Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320; People vs. Villanueva, 49 O.G. 5448, L-10239, August 7, 1953). Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the commission of the theft. The accused intentionally sought the cover of night and used a motor vehicle so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs. Gardon, 104 Phil. 372). Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of recidivism which was alleged in the information. They admitted their previous convictions for theft (130, 132 tsn; Exhs. I and J; Art. 14[9], Revised Penal Code). The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its minimum and medium periods (Art. 309[3], Revised Penal Code). That penalty should be imposed in its maximum period because only aggravating circumstances are present (Art. 64[3], Revised Penal Code). Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act No. 4103). With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for the prosecution points to Jaranilla as the malefactor who shot that unfortunate peace officer. The killing was homicide because it was made on the spur of the moment. The treacherous mode of attack was not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771). The twenty-four year old Jabatan was an agent of authority on night duty at the time of the shooting. He was wearing his uniform. The killing should be characterized as a direct assault (atentado) upon an agent of authority (Art. 148, Revised Penal Code) complexed with homicide. The two offenses resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People vs. Lojo, Jr., 52 Phil. 390). The evidence for the prosecution does not prove any conspiracy on the part of appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to steal the fighting cocks. The conspiracy is shown by the manner in which they perpetrated the theft. They went to the scene of the crime together. They left the yard of Baylon's residence, each carrying two roosters. They all boarded the getaway truck driven by Gorriceta. The theft was consummated when the culprits were able to take possession of the roosters. It is not an indispenable element of theft that the thief carry, more or less far

away, the thing taken by him from its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil. 754). It is not reasonable to assume that the killing of any peace officer, who would forestall the theft or frustrate appellants' desire to enjoy the fruits of the crime, was part of their plan. There is no evidence to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance that they were with Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that Suyo did not do anything when Jabatan approached the right side of the truck and came in close proximity to Jaranilla who was on the extreme right. Brillantes pulled his revolver which he did not fire (47, 53-55 tsn). Mere presence at the scene of the crime does not necessarily make a person a coprincipal thereof. Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the witness stand to refute the testimony of Gorriceta, Jaranilla escaped from jail. That circumstance is an admission of guilt. The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim was killed on the occasion when the accused took his chickens under the house. It is distinguishable from the People vs. Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by the Solicitor General) where the robbery was clearly proven and the homicide was perpetrated on the occasion of the robbery. As already noted, theft, not robbery, was committed in this case. The situation in this case bears some analogy to that found in the People vs. Basisten, 47 Phil. 493 where the homicide committed by a member of the band was not a part of the common plan to commit robbery. Hence, only the person who perpetrated the killing was liable for robbery with homicide. The others were convicted of robbery only. There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes in the killing of Jabatan by Jaranilla. As already stated, no robbery with homicide was committed. Therefore, it cannot be concluded that those two appellants have any responsibility for Jabatan's death. Their complicity in the homicide committed by Jaranilla has not been established. WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco Brillantes of robbery with homicide is reversed. They are acquitted of homicide on the ground of reasonable doubt. As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each sentenced to an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two (2) months ofprision correccional as maximum and (b) ordered to indemnify solidarily the complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each appellant should pay one-third of the costs.

As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of authority, trial court should render a new judgment consistent with this opinion (See Sec. 19, Art. IV, Constitution). So ordered. Zaldivar (Chairman), Fernando, Antonio and Fernandez, JJ., concur.

Separate Opinions

The "uninhabited place" mentioned in Article 302 is a building, because paragraphs Nos. 1 and 3 speak of "entrance," which necessarily refers to a building. (The Revised Penal Code by Luis B. Reyes, Vol. II, 1968, p. 617.) In that way, I believe the true and correct meaning of the provision is clarified without attributing any possible misconstruction to faulty literal translation, which I am convinced does not exist. I reiterate, the error in translation noted in the main opinion is inevitable — for while the literal translation is indubitably accurate, on the other hand, as a matter of construction, the correct interpretation is different. Evidently, the Spanish text uses "lugar" for house, building or structure, and, to my mind, that is not the sense that word is usually understood in Spanish. But I agree that what is contemplated in Article 302 is not "despoblado" but simply an unoccupied or uninhabited house, building or structure. In other words, it appears that the correct expression that should be in Article 302 is "uninhabited house," disregarding, consequently, the inaccurate reference to "lugar" in the Spanish text and sticking, by way of construction, to the correct concept of the thing really contemplated.

BARREDO, J., concurring: I concur.

Separate Opinions

I am in full accord with the findings of fact and the legal rationalization and conclusions in the main opinion very ably written for the Court by Mr. Justice Aquino.

BARREDO, J., concurring: I concur.

I would like to make the observation, however, that I cannot find any error in the literal translation of the term "lugar no habitado" used in the controlling Spanish text Article 302 into "uninhabited place" appearing in the English version. The correct concept of the said term as used in Article 302 is indeed different from the "uninhabited place" contemplated in Articles 295 and 300, which means "despoblado" or open country — referring to a "lugar", meaning place, site or space where nobody lives or is usually found. And, of course, it is also clear to me that Article 302 refers to as an "uninhabited place" is really an unoccupied or uninhabited house, the antonym of the "casa habitada" referred to in Article 299. But I cannot bring self to the thought that the word "lugar" in Article 302 may literally be translated to anything else than "place, site space". I simply cannot see in it the specific connotation of house or building. Maybe it is the wording of the Spanish text that is somewhat inaccurate, unless it can be shown, which I am afraid cannot be done, that colloquially or somewhere in the Spanish speaking world, said word means house or building or any structure wherein personal properties may be deposited, stored or kept. I would prefer to footnote Article 302 the same way Justice Luis B. Reyes of the Court of Appeals does, thus:

I am in full accord with the findings of fact and the legal rationalization and conclusions in the main opinion very ably written for the Court by Mr. Justice Aquino. I would like to make the observation, however, that I cannot find any error in the literal translation of the term "lugar no habitado" used in the controlling Spanish text Article 302 into "uninhabited place" appearing in the English version. The correct concept of the said term as used in Article 302 is indeed different from the "uninhabited place" contemplated in Articles 295 and 300, which means "despoblado" or open country — referring to a "lugar", meaning place, site or space where nobody lives or is usually found. And, of course, it is also clear to me that Article 302 refers to as an "uninhabited place" is really an unoccupied or uninhabited house, the antonym of the "casa habitada" referred to in Article 299. But I cannot bring self to the thought that the word "lugar" in Article 302 may literally be translated to anything else than "place, site space". I simply cannot see in it the specific connotation of house or building. Maybe it is the wording of the Spanish text that is somewhat inaccurate, unless it can be shown, which I am afraid cannot be done, that colloquially or somewhere in the Spanish speaking world, said word

means house or building or any structure wherein personal properties may be deposited, stored or kept. I would prefer to footnote Article 302 the same way Justice Luis B. Reyes of the Court of Appeals does, thus: The "uninhabited place" mentioned in Article 302 is a building, because paragraphs Nos. 1 and 3 speak of "entrance," which necessarily refers to a building. (The Revised Penal Code by Luis B. Reyes, Vol. II, 1968, p. 617.) In that way, I believe the true and correct meaning of the provision is clarified without attributing any possible misconstruction to faulty literal translation, which I am convinced does not exist. I reiterate, the error in translation noted in the main opinion is inevitable — for while the literal translation is indubitably accurate, on the other hand, as a matter of construction, the correct interpretation is different. Evidently, the Spanish text uses "lugar" for house, building or structure, and, to my mind, that is not the sense that word is usually understood in Spanish. But I agree that what is contemplated in Article 302 is not "despoblado" but simply an unoccupied or uninhabited house, building or structure. In other words, it appears that the correct expression that should be in Article 302 is "uninhabited house," disregarding, consequently, the inaccurate reference to "lugar" in the Spanish text and sticking, by way of construction, to the correct concept of the thing really contemplated. Footnotes * "Criminal Law; Qualifications of the crime; Theft; Breaking showwindows; Entrance is necessary in the crime of robbery.—The offense committed by the accused is merely that of theft and not of robbery, or the reason that although the show-window was broken open, the accused did not enter the same but merely introduced his hand thru the broken glass in order to remove the watches from the show-window, and for the further reason that the show-window in question was outside the store. There is robbery with force upon things only when doors or wind are broken in order to enter a building to steal or when doors or wardrobes are broken, inside a building. Here there had been no entrance." (Syllabus, People vs. Adorno, CA 40 O.G. 567. See People vs. Ingay, II ACR 275, per Albert, J. and U. S. vs. Callotes, 2 Phil. 16, where the manner of entrance was not proven). ** "El guardafreno de un ferrocarril que iba solo en el furgon de cola, abrio el baul de un viajero fracturando la cerradura y extrajo algunos efectos. Condenado como autor del delito de robo, interpuso recurso de casacion alegando que era estafa y el Ministerio fiscal de adherio por conceptuar que el delito era hurto.

El Tribunal Supreme estima la adhesion por considerar: que los hechos declarados probados no constituyen el delito de robo en lugar inhabitado calificado por la Sala sentenciadora, por no referirse los articulos 521 y 525 del Codigo Penal en las expresiones de lugar habitado e inhabitado al material movil de ferrocarriles, y si tan solo a lugares y casa que puedan servir de alber gue o habitacion para las personas, distinguiendolas unicamente por el objeto a que se dedican."Sentencia de 25 de Abril de 1887. Varios sujetos saltando la cerea de una zahurda, penetraron en esta y sustrajeron cuatro cerdos. Condenados como autores del delito de robo, el Tribunal Supremo casa y anula la sentencia, por considerar: Que si bien es cierto que el delito de robo se caracteriza por la fuerza en las cosas o violencia sobre las personas con que realiza el delicuente la sustraccion de cosa ajena con animo de lucro, es menester ademas que el hecho se encuentre comprendido en alguno de los casos especificades en el capitulo del Codigo que trata de los robos, porque no hay ningun articulo que pene genericamente el robo tal cual se define en el articulo 515: Que la sustraccion de cerdos imputada a los recurrentes no se halla comprendida en el articulo 525, como erroneamente supone el Tribunal sentenciador, porque al hablarse en dicho articulo de lugar no habitado, es en contraposicion a lugar o casa habitada de que trata el articulo 521, y porque, en uno y otro caso, el Codigo se refiere a lugares o cases que puedan servir de albergue o habitacion para las personas, distinguiendolos, solamente por el objeto a que estos lugares se dedican, y no a los demas abiertos o meramente cerrados, cual es la zahurda de cerdos donde los recurrentes realizaron la sustraccion, pues el hecho criminal no reviste, en este ultimo caso, la importancia y transcendencia que en aquellos: Que la Audiencia sentenciadora ha incurrido en error de derecho al calificar de delito de robo un hecho que solo puede serlo como hurto por no hallarse comprendido en ninguno de los casos especificados en el capitulo sobre los robos." Sentencia de 2 de Marzo de 1886. G.R. No. 97471 February 17, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants. The Solicitor General for plaintiff-appellee. Edward C. Castañeda for accused-appellants.

REGALADO, J.: The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential Decree No. 532 (Anti-Piracy and AntiHighway Robbery Law of 1974), as contended by the Solicitor General and found by the trial court; or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense. In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in the following manner: That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said accused, being then private individuals, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the damage and prejudice of the said offended party in such amount as may be awarded to her under the provisions of the Civil Code. 1 On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a judgment promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof: ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed on a highway and, in accordance with P.D. 532, they are both sentenced to a jail term of reclusion perpetua. The two accused are likewise ordered to pay jointly and severally the offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages. 3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not the offense proved and cannot rightly be used as the offense proved which is necessarily included in the offense charged. 4 For the material antecedents of this case, we quote with approval the following counterstatement of facts in the People's brief 5 which adopted the established findings of the court a quo, documenting the same with page references to the transcripts of the proceedings, and which we note are without any substantial divergence in the version proffered by the defense. This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7). Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6). At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local election there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go to Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9). Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-10). Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10). Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get money from you." She said she has money inside her bag and they may get it just so they will let her go. The bag contained P7,000.00 and was taken (Id., pp. 11-14). Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but would they drop her at her gas station in

Kamagong St., Makati where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened her (Id., p.15). The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23). Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side of the superhighway and, after some vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground and was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26). On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27). Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6 As observed by the court below, the defense does not dispute said narrative of complainant, except that, according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of the car. He even slowed the car down as he drove away, until he saw that his employer had gotten a ride, and he claimed that she fell down when she stubbed her toe while running across the highway. 7 Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot. 8 Much later, when he took the stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers. 9 On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to what crime was committed by appellants. The trial court cohered with the submission of the defense that the crime could not be kidnapping for ransom as charged in the information. We likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which the accused should be held liable in those instances where his acts partake of the nature of variant offenses, and the same holds true with regard to the modifying or qualifying circumstances thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in arriving at a correct appreciation and accurate conclusion thereon. Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific nature of the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which case the latter absorbs the former, or whether the accused had his own personal motives for committing the murder independent of his membership in the rebellious movement in which case rebellion and murder would constitute separate offenses. 10 Also, where injuries were inflicted on a person in authority who was not then in the actual performance of his official duties, the motive of the offender assumes importance because if the attack was by reason of the previous performance of official duties by the person in authority, the crime would be direct assault; otherwise, it would only be physical injuries. 11 In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time they committed the wrongful acts against complainant, other than the extortion of money from her under the compulsion of threats or intimidation. This much is admitted by both appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as already stated, candidly laid the blame for his predicament on his need for funds for, in his own testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic) advances from our office but they refused to give me any bale (sic). . . ." 12 With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such restraint of her freedom of action was merely an incident in the commission of another offense primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention. That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:

Q At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew? A Santo Domingo Exit. Q And how about the checks, where were you already when the checks was (sic) being handed to you? A Also at the Sto. Domingo exit when she signed the checks. Q If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto. Domingo, after all you already received the money and the checks? A Because we had an agreement with her that when she signed the checks we will take her to her house at Villa (sic) Verde. Q And why did you not bring her back to her house at Valle Verde when she is (sic) already given you the checks? A Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or some other place along the way we might be apprehended by the police. So when we reached Santa Rita exit I told her "Mam (sic) we will already stop and allow you to get out of the car." 16 Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks demanded from her at gun point, what she gave under the circumstances of this case can be equated with or was in the concept of ransom in the law of kidnapping. These were merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532. The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in the information that the victim was carried away and extorted for more money. The accused admitted that the robbery was carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the way they intimidated Ma. Socorro to produce more money that she had with her at the time for which reason Ma. Socorro, not having more cash, drew out three checks. . . . In view of the foregoing the court is of the opinion that the crimes committed is that punishable under P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974) under which where robbery on the highway is accompanied by extortion the penalty is reclusion perpetua. 18 The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been made. Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is but in line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. 20 Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the proper context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the American occupation of our country, roving bands were organized for robbery and pillage and since the then existing law against robbery was inadequate to cope with such moving bands of outlaws, the Brigandage Law was passed. 21 The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity: The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It

would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied). In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circumstances under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law. 24 Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit: WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation andstunting the economic and social progress of the people: WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries; WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people. (Emphasis supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place to another," and which single act of depredation would be capable of "stunting the economic and social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people, " such that said isolated act would constitute the highway robbery or brigandage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous. True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not require that there be at least four armed persons forming a band of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whosoever they may potentially be, is the same as the concept of brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25 Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside from what has already been stressed regarding the absence of the requisite elements which thereby necessarily puts the offense charged outside the purview and intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any unlawful taking of property committed on our highways would be covered thereby. It is an elementary rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers merely the letter of an instrument goes but skin deep into its meaning, 26 and the fundamental rule that criminal justice inclines in favor of the milder form of liability in case of doubt. If the mere fact that the offense charged was committed on a highway would be the determinant for the application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at the

time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the categorical provisions of the AntiCarnapping Act of 1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large cattle which are incidentally being herded along and traversing the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28 We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was committed inside a car which, in the natural course of things, was casually operating on a highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision precisely defines "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery conceived and committed by appellants in this case does not constitute highway robbery or brigandage. Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy as shown by their concerted acts evidentiary of a unity of thought and community of purpose. In the determination of their respective liabilities, the aggravating circumstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence shall be further applied against appellant Puno, with no mitigating circumstance in favor of either of them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall be imposed in the maximum period as decreed by Article 295 of the Code. We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery upon an information charging them with kidnapping for ransom, since the former offense which has been proved is necessarily included in the latter offense with which they are charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery. 31 These foregoing elements are necessarily included in the information filed against appellants which, as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly convey that the taking of complainant's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not include but could negate the presence of any of the elements of robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages and P20,000.00 as moral damages, with costs. SO ORDERED.

[G.R. No. 110037. May 21, 1998]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. EDUARDO PULUSAN y ANICETA, ROLANDO RODRIGUEZ y MACALINO, ROLANDO TAYAG and JOHN DOE Alias Ramon/Efren, accused. EDUARDO PULUSAN y ANICETA and ROLANDO RODRIGUEZ y MACALINO, accused-appellants. DECISION KAPUNAN, J.: Four men held a robbery of a passenger jeepney along Bulacan-Pampanga highway, divesting all passenger of their valuables. Four of the jeepney's passengers were killed by the robbers and the only female passenger raped repeatedly. Three victims, however, lived to tell the story - the jeepney driver, a fifty-year old and the ravaged girl . The Solicitor General summarized the prosecution evidence as follows: On January 20, 1986 at about 9:00 o'clock in the evening, Constancio Gomez was then plying his route from Balagtas, Bulacan along the MacArthur Highway going towards Malolos, Bulacan on board a passenger jeepney with six (6) passenger (pp. 5-6, TSN, June 10, 1986). They included Marilyn Martinez a seventeen (17) year old student and Cresenciano Pagtalunan (p. 2, TSN, March 10, 1987; pp. 2-3, TSN, June 10, 1986). The four (4) other male passenger were later identified to be Rodolfo Cruz, Magno Surio, Constancio Dionisio and Armando Cundangan (pp. 2-3, TSN, Dec. 16, 1986; pp. 5-14, TSN, Aug. 5, 1987; pp. 3-5, TSN, April 8, 1987; Exhibits "Z", "AA', "BB", "CC"). Upon reaching Bry. Tikay, Malolos, Bulacan, a group of four (4) male passengers boarded the jeepney (pp. 5-6, TSN, June 10, 1986). Two of them sat at the

rearmost portion of the jeepney fronting each other; the third sat behind the driver's seat while the fourth man sat in the middle of the other passengers (pp. 6-7, TSN, June 10, 1986; pp. 3-4, TSN, July 22, 1986; pp. 3-5, TSN, March 10, 1987). Sudenly, the man who was later identified to be appellant Eduardo Pulusan, who sat behind the driver, poked a knife at Constancio Gomez and announced: "Hold-up ito, huwag kayong kikilos (pp. 5-6, TSN, June 10, 1986; pp. 5-6, 9, TSN, March 10, 1987; pp 4-6, TSN, June 10, 1986; pp. 5-6, 9, TSN, March 10, 1987; pp. 4-6, TSN, March 18, 1987). Thereafter, appellant Pulusan's three (3) companions followed suit, poked their knife and "sumpak" (homemade shotgun) at the passengers and divested them of their valuables (p. 6, TSN, June 10, 1986; pp. 3-5, TSN, July 22, 1986; pp. 5-9, March 10, 1997). Gomez was divested of his P100 cash money, a lighter valued at P50.00 and a fancy ring of unknown value (pp.7-8, TSN, June 10, 1986). Cresenciano Pagtalunan, one of the passengers was similarly divested of P110.00 in cash and a diver's watch worh P1,000.00 (TSN, pp.3-4, July 22, 1986). Marilyn Martinez, another passenger was divested of a wristwatch worth P350.00 together with her books, notebooks and handbag (pp. 5-7, TSN, March 10, 1987). Rodolfo Cruz was likewise divested of a watch valued at P700.00, a wedding ring worth P500.00 and P750.00 in cash (pp.3-8, TSN, Jan. 27, 1987). Magno Surio's watch worth P400.00, camera with flash bulb and batteries inside and cash of more than P2,000.00 were also taken during the incident (pp. 3-7, 9-10, TSN, Feb. 17, 1987; Exhs. "A", "B", "C" to "C-3"). Thereafter, appellant Pulusan took over the wheels from driver Gomez and drove towards Pampanga. He later stopped at Quezon Road, Bgy. San Pablo, San Simon, Pampanga (pp. 7 - 8, TSN, June 10, 1987). He parked the jeepney in a "talahiban" where there were no people around except for the occupants of the passenger jeepney (pp. 7 - 8, TSN, June 10, 1986; pp. 7 - 8, TSN, March 10, 1987). Afterwards, appellant Rolando Rodriguez (Rodriguez) dragged Marilyn Martinez to the "talahiban" a few meters away from the parked jeepney where his three (3) companions, including appellant Pulusan, were left guarding Gomez and his other passengers (pp. 7-8, TSN, June 10, 1986; pp. 10-11, TSN March 10, 1987; pp. 1-13, TSN, March 18, 1987). Once at the "talahiban," appellant Rodriguez, then armed with a kitchen knife, through force and intimidation, succeeded in having carnal knowledge of Marilyn Martinez who was then still virgin (Exhibit "W"; pp. 10-13, TSN, March 10, 1987). Subsequently, appellant Pulusan followed appellant Rodriguez and Marilyn Martinez at the "talahiban and likewise sexually abused her (pp. 14-15, TSN, March 10, 1987; Exh. "W"). Later, appellants two other companions similarly took turns in having carnal knowledge of Marilyn Martinez at the "talahiban" (pp. 15-16, TSN, March 10, 1987). After the fourth man had succeeded in having carnal knowledge of her , he held Marilyn Martinez's wrist and they both proceeded towards the jeepney (pp. 16-17, TSN, March 10, 1987). Meanwhile, at the place where the jeepney was parked Gomez and one of his passengers who were then inside the vehicle were called outside by one of appellant's companions and asked Gomez " pare, gusto mo bang mamatay?" (p. 10, TSN, June 10, 1986). Gomez pleaded with them that he be spared because

his wife recently gave birth and he was the only breadwinner for his family (ibid). Thereafter, he was boxed at the right jaw and told to board the jeepney while said man, together with appellants Pulusan and Rodriguez, clubbed and stabbed the passenger who was called with him (pp. 10-11, TSN, June 10, 1986). Subsequently, the four called three other passengers inside the jeepney one by one. When the three (3) passengers managed to run towards the "talahiban" but his captors pursued and eventually killed him (pp. 10-11, TSN, June 10, 1986). Subsequently, Cresenciono Pagtaluan was hit with pipe and clubbed by appellant and their companions but one of them uttered: Pare, huwag na yan, matanda na yan, hindi na papalag" (pp. 12-13, TSN, ibid' p. 7, TSN, July 22, 1986). Thereafter, Gomez was ordered to start the jeepney while a shotgun was aimed at his temple and threatened not to report the incident (ibid.) Eventually, their captors boarded Marilyn Martinez in the jeepney and threatened her not to report the incident and sent them home. Appellants and his companions then dispersed to different directions (pp. 12-13, TSN, June 10, 1986). Accordingly, Gomez and his two surviving passengers Marilyn Martinez and Cresenciano Pagtalunan, left their four (4) co-passengers who had been killed by their captors and proceeded to the Municipal Building of Apalit, Pampanga to report the incident to the Apalit police (p. 14, TSN, June 20, 1986; pp. 8-9, TSN, July 22, 1986; p. 19, TSN, March 10, 1987). Accompanied by the Apalit police (p. 14, TSN, June 20, 1986; pp. 8-9, TSN, July 22, 1986; p. 19, TSN, March 10, 1987). Gomez and Crescenciano Pagtalunan, were immediately interviewed by Pat. Maniago, Investigator of the San Simon (pp. 2-3, TSN, Dec. 16, 1986). Later, Pagtalunan stayed at the municipal building of San Simon where he remained for more than a day (p. 10, TSN where he remained for more than a day (p. 10, TSN, July 22, 1986). Thereafter, the joint team of the San Simon and Apalit police, including Pat. Maniago, Pfc. Nicolas Yambao and Umali was accompanied by Gomez to the crime scene at Quezon Road, Bgy. San Pablo, San Simon where the bodies of his four (4) male passengers were found and which were later brought to the Funeraria Punzalan for autopsy (p. 14, June 10, 1996; pp. 3-5, TSN, Dec. 2, 1986). Pat. Emerito Maniago prepared a sketch of the crime scene (Exh. "S", p. 4, TSsN, Dec 2, 1986). Eventually, Pat. Maniago, Pfc, Nicolas Yambao and Lino Umali returned to the station and interviews Gomez and Pagtalunan about the description of the suspects and conducted follow-up investigation of the case (pp. 3-4, TSN, Dec. 2, 1986; Exh. "P", "P-1"; pp. 3-6, TSN, Dec. 16, 1986; pp. 2-9, TSN, Jan. 6, 1987). They also proceeded to Malolos, Bulacan to coordinate with the Malolos INP for the identification of the victims' cadavers (pp. 3-4, TSN, Dec. 2, 1986). Thereafter, Pat. Maniago prepared an "Initial Investigation Report" addressed to Corporal Santiago Rodriguez, Station Commander of the San Simon Police Station at San Simon, Pampanga concerning the "Robbery In Band, Rape, Multiple Homicide and Illegal Possession of Firearms/Deadly Weapons" committed on or about 9:30 to 10:30 P.M. of January 20, 1986 at Quezon Road, San Pablo Propio, San Simon, Pampanga (Exh.

"P", "P-1"; pp. 2-5, TSN, Dec 16, 1986; pp. 2-16, TSN, Jan. 6, 1987; pp. 2-3, TSN, Nov. 18, 1986). On January 21, 1986, Cpl. Santiago Rodriguez was informed of the aforesaid incident (pp. 2-3, TSN, Nov. 18, 1986). He then instructed his men to continue investigation on the case considering that preliminary investigation threon had been made by Pat. Maniago (pp. 3-4, TSN, ibid.; pp. 3-6, TSN, Nov. 25, 1986). On the same day, Marilyn Martinez, one of the surviving victims, was brought by her relatives to the Cemtral Luzon General Hospital in San Fernando, Pampanga where she underwent physical examination by Dr. Evelyn Macabulos, resident of the Hospital's Obstetrics and Gynecology Department (pp. 19-20, TSN, March 10, 1987; pp. 6-15, TSN, May 27, 1987; Exh. "W", "W1"). Dr. Macabulos found that the patient was conscious, coherent , slightly incooperative, distraught, untidy with soiled clothes and underwear" and that her blood pressure was 130/80 while her pulse rate was 105 per minute (pp 7-9, TSN, May 27, 1987). She noted that "her eyes were swollen but without contusions; her heart was slightly tachycardic, regular rate rhythm with no murmur (pp. 9-10, TSN, ibid) She also observed that she had clear breath sounds; her breast are conical, well-developed, symmetrical with light brown nipple and areola, no contusions noted" (ibid.). She also noted that he trunk has linear hematoma at the back which looked like finger marks while in her extremities, there were 2 x 1.5 cm. Round hematoma at posterior upper part of the left thigh (pp. 9-10, TSN, ibid). Dr. Macabulos further osserved that in her external genitalia there was "scanty pubic hair, well coaptated but moderately swollen labia minora, labia mahora also confested (sic)". She noted that the hymen had fresh lacerations at 12 o'clock, 6 o'clock, 5 and 7 o'clock; scantly bleeding from the laceration; there was a .3 x .3 cm. Hematoma (sic) at 12 o'clock; the patient cried and was hysterical in the examination of her genitalia and complained of pain when application was inserted for smear; the patient's panty was stained with blood and when smear for spermatozoa was done, none was found (pp. 1011, TSN, May 27, 1987; Exh. "w"). Later that day, Marilyn was confined at the Rosary Hospital in Bulacan for 2 1/2 days so that she can recover her strength (p. 11, TSN, March 25, 1987). Meanwhile, the widows of the passengers who were killed during the January 20, 1986 incident at Bgy. San Pablo, San Simon, Pampanga, including Susana Bautista Vda. De Surio, Lucila Cruz and Corazon Dionisio, were informed that their respective husbands were among the four (4) passengers of jeepney who were killed in San Simon, Pampanga and were invited to go to the funeral parlor in Pampanga to make the necessary identification of the cadavers (pp. 305, TSN, April 8, 1987; pp. 3-4, TSN, January 27, 1987; pp. 3-5, TSN, Feb. 17, 1987). Lucila Cruz confirmed her husband's death when she went to San Simon, Pampanga on January 23, 1986 at 2:00 o'clock p.m. (pp. 3-4, TSN, January 23, 1987; Exh. "Z", pp. 8-9, TSN, Aug. 5, 1987). The death of her husband Constancio Dionisio was confirmed by his widow Corazon when she went to the funeral parlor in San Simon on January 25, 1986 (pp. 3-5, TSN, April 8,

1987). The death of Magno Surio was also confirmed by his widow Susana Bautista Surio when she went to the funeral parlor in San Simon accompanied by a policeman from malolos (pp.3-5, TSN, Feb. 17, 1987; Exh. "AA"; pp. 10-11, TSN, Aug. 5, 1987). Dr. Maria Teresa F. Santos, Rural Health Physician of San Simon, Pampanga, who conducted autopsy of the four (4) cadavers recovered at Bgy. San Pablo, San Simon, Pampanga, issued Certificates of Death of Rodolfo C. Cruz, Magno Surio, Constancio Dionisio and Armando Cundangan (pp. 3-4, TSN, Aug. 5, 1987; Exhs. "Z", "AA", "BB" and "CC"). The cause of death of Rodolfo C. Cruz was "Cardiorespiratory arrest, shock hemorrhage, multiple stab wounds" (Exh. "ZZ, pp. 8-9, TSN. Aug. 5, 1987). The cause of death of Magno dela Cruz y Surio is the same as that of Rodolfo C. Cruz (Exh. "AA", pp. 10-11 TSN, Aug. 5, 1987). The stated cause of death of Constancio Dionisio and Armando Cundangan was also the same as those indicated in the certificates of death of the other victims (Exhs. "BB", "CC"; pp. 12-14, TSN, Aug. 5, 1987). Meanwhile, in the early morning of January 23, 1986, Cpl. Rodriguez received a tip from a civilian informer that the description of one of the four (4) suspects given by Marilyn Martinez tallied with that of appellant Eduardo Pulusan who previously had a record in their file (pp. 6-8, TSN, Nov. 25, 1986; pp. 4-6, TSN, Sept. 7, 1987). In the afternoon of January 23, 1986, Cpl. Rodriguez, Pat. Maniago and several policemen of San Simon, Pampanga, together with the Pampanga P.C. Command, including Sgt. Mario Dulin, proceeded to the residence of appellant Pulusan at Bgy. San Pablo, San Simon., Pampanga (pp. 10-11, TSN, Nov. 25, 1986). When their group reached San Pablo, San Simon, Pampanga, they found Honwario Pulusan, appellant Eduardo Pulusan's brother there (pp. 10-11, Nov. 25, 1986; p. 6, TSN, Sept. 9, 1987). After interviewing him, the team learned from Honwario that appellant Pulusan was with Rolando Rodriguez, Rolando Tayag and one Efren alias Ramon at Bgy. Moras dela Paz, Sto Tomas, Pampanga, where Rolando Rodriguez resided (pp.2-5, TSN, Nov. 18, 1986; pp. 10-11, TSN, Jan. 6, 1987; pp. 5-7, TSN, Dec. 2, 1986). Immediately thereafter, the joint San Simon police and Pampanga PC Team coordinated with the Station Commander of Sto. Tomas and proceeded to Moras dela Paz together with Honwario Pulusan (pp. 3-5, TSN, Nov. 18, 1986). Upon reaching Bgy. Moras dela Paz, the team parked their vehicle a few meters away from the residence of appellant Rolando Rodriguez (pp. 5-6, TSN, Oct. 7, 1997). As the members of the joint PC and police team approached the residence of appellant Rodriguez about 20 or 30 meters therefrom, they noticed four (4) persons, including appellants Rodriguez and Pulusan, jumping and scampering away from the house (pp. 7-8, TSN, Dec. 2, 1986; pp. 7-8, TSN, Nov. 18, 1986). Honwario Pulusan pointed to the police team appellants Rodriguez and Pulusan and also and "Kuya, sumuko na kayo" (p. 8, TSN, Dec. 2, 1986). The joint police and PC team pursued them and eventually apprehended appellants Rodriguez and Pulusan (pp. 7-8, TSN, September 9, 1987; pp. 4-6, TSN, Nov. 11, 1986).

Thereafter, Pat. Maniago, Sgt. Dulin and the Barangay Captain, returned to the house of appellant Rodriguez, conducted a search thereon in the presence of one Gloria Bautista, siste-in-law of Rolando and eventually confiscated several items, to wit: "one (1) camera, nikon type with cover (Exh. "A"); one (1) pair of men's shoes, colored brown (Exh. "E"); one pair Grosby men's shoes (while) (Exh. "G"); one (1) pair ladies shoes colored black (Melvin Trade Mark (Exh. "H"); one (1) KNIFE 12 inches long (Exh. "J"); one (1) knife 10 inches long (Exh. "K"); one (1) sunglass (Unisex) (Exh. "I"); one (1) ladies wrist watch (Urika) (Exh. "M"); four (4) pcs. of batteries (Exh. "C" to "C-3"); two (2) pieces of steel pipes which turned out to be an improvised 12 gauge shotgun "paltik-sumpak" (Exh. "L", "L1"); one (1) pants Haruta (Exh. "F"); one (1) jacket colored green (Exh "D"); one (1) camera flasher (Exh. "B"); two (2) pieces (live) 12 gauge shotgun ammos (Exh. "N"); and one (1) piece empty shell for 12 gauge shotgun" (Exh. "N") (pp. 8-10, TSN, Dec. 2, 1986; pp. 8-9, TSN, Sept 9, 1987; pp. 3-9, TSN, Dec. 9, 1986; pp. 6-10, TSN, Nov. 18, 1986). Afterwards, Sgt. Dulin prepared an inventory of the recovered items (Exh. "R", "R-1", "R-2"; pp. 8-11, Sept. 9, 1987). Subsequently, appellants Pulusan and Rodriguez, together with recovered items, were brought to the Station of the Pampanga P.C. Command at St. Nino, San Fernando, Pampanga, for further investigation (p.15, TSN, Sept. 9, 1987). A "Progress Report" relative to the arrest of appellants Pulusan and Rodriguez and the recovery of the items from their possession was also made by Cpl. Rodriguez (Exh. "Q", "A-1"). In the afternoon of January 23, 1986, the joint police and PC team informed the three (3) surviving victims Gomez, Pagtalunan and Martinez that the suspects had been arrested and invited them and the wives of the victims who were killed, including Lucila Cruz, Susanaa Surio and Mrs. Cundangan, to go to the PC Headquaters in the morning of January 24, 1986 (pp. 15-16, TSN, Sept. 9, 1987; pp. 10-11 TSN, Nov. 11, 1986; pp. 23-24, TSN, Nov. 25, 1986; pp. 4-11 , TSN, Nov. 11, 1986). In the early morning of January 24, 1986, Gomez, Marilyn Martinez and Pagtalunan, together with the wives of those who were killed, proceeded to the PC Headquarters in San Fernando Pampanga (pp. 15-16, TSN, June 10, 1986; pp. 5-6, TSN, July 29, 1986). Three persons, including appellants Pulusan and Rodriguez, were presented to Gomez, Martinez and Pagtalunan and they were asked if they knew them (pp. 2-3, TSN, Oct. 14, 1986) Pagtalunan pinpointed only two of them, appellants Pulusan and Rodriguez as the persons who held them up in Malolos on January 20, 1986 (ibid.; pp. 15-17, TSN, July 22, 1986). Gomez and Martinez also positively identified appellants to be among the four (4) persons who committed the robbery, killing and rape in the evening of January 20, 1986 (pp. 10-11, kTSN, Dec. 2, 1986; pp. 20-21, TSN, March 19, 1987; Exh. "O", "O-1" to "O-3"). Pictures of the identification of appellants Pulusan and Rodriguez by the three (3) surviving victims were taken by a commercial photographer under the supervision of the police authorities (pp. 16-17, TSN, June 10, 1986; pp. 5-6, TSN, July 29, 1986; pp. 10-11, TSN, July 22, 1986; Exhs. "O", "O-1", "O-2" and "O-3").

Susana Bautista Surio, widow of the victim Magno Surio, in her "Sworn Statement: identified the camera, flash and batteries, among the items confiscated by the police at the house of appellant Rodriguez, to be the property of her husband who used them in his work as commercial photographer (pp. 411, TSN, Feb. 17, 1987; Exh. "U", "U-1"; Exhs. "A", "B", "C" to "C-3"). An information charging Pulusan and Rodriguez with the crime of highway robbery attended with multiple homicide and multiple rape was filed in the Regional Trial Court of Bulacan in Malolos.[1] The information was later amended to include Rolando Tayag and one John Doe alias Ramon or Efren. The amended information reads: That on or about the 20th day of January, 1986, along the Mac Arthur highway in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Eduardo Pulusan y Anicete and Rolando Rodriguez y Macalino, Rolando Tayag and one John doe alias Ramon/Efren, conspiring and confederating together and helping one another, armed with an improvised firearm and bladed instruments, with intent of gain and by means of violence against and intimidation persons (sic), did then and there wilfully, unlawfully and feloniously take, rob and carry away with them the following articles from the driver and the passengers of a passenger jeepney bound for the said municipality, to wit: From Constancio Gomez, driver: Cash ------------------------------------------------------------------- P100.00 Lighter (Zippo brand) -----------------------------------------------

100.00

2 fancy rings ----------------------------------------------------------

60.00

From Cresenciano Pagtalumam, passenger: Cash --------------------------------------------------------------------- P 110.00 Wrist watch ------------------------------------------------------------

1,500.00

From Magno Surio, passenger: Wrist watch, Seiko brand -------------------------------------------- P 800.00 Camera, Nikon brand -----------------------------------------------From Armando Cundangan, passenger:

8,000.00

Wrist watch, Seiko brand ------------------------------------------- P 700.00 Cash -------------------------------------------------------------------

80.00

From Rodolfo Cruz, passenger: Cash ---------------------------------------------------------------- P 700.00 Wrist watch, Seiko brand -----------------------------------------

700.00

From Constancion Dionisio, passenger: Cash ----------------------------------------------------------------- P 200.00 From Constancio Dionisio, passenger: Cash --------------------------------------------------------------- P 200.00 From Marilyn Martinez, passenger: Wrist watch Urika brand ---------------------------------- ----- P 350.00 To the damage and prejudice of the above-enumerated persons in the amounts above-mentioned; and that by reason or on the occasion of the said highway robbery and in pursuance of their conspiracy, the said Eduardo Pulusan y Aniceta, Rolando Rodriguez y Macalinao and Rolando Tayag and one John Doe alias Ramon/Efren, did then and there wilfully, unlawfully and feloniously, with lewd designs and by means of force, violence and intimidation, have carnal knowledge of said Marilyn Martinez one after the other, and with intent to kill, abuse of superior strength, cruelty, treachery and evidence premeditation, further assault, attack strike and hack/stab with the weapons they were then provided the said Magno Surio, Armando Cundagan, Rodolfo Cruz and Constancio Dionisio, inflicting on the said persons serious physical injuries which directly caused their instantaneous death. Contrary to law.[2] Rolando Tayag and John Does alias Ramon or Efren remain at large. Pulusan and Rodriguez pleaded not guilty to the crime charged. In his defense, Rodriguez testified that he was a nephew of co-accused Eduardo Pulusan. He denied knowledge of the crime charged against him. He asserts that he had not committed any crime, and that in fact, he was able to get an NBI clearance as a requirement for his work as a driver in Iraq.[3]

As a kabo ng jueteng, he would collect bets three times a day, the last jueteng draw being at 9:30 in the evening. He would thus be home only between 11:30 and twelve midnight, as on the night of January 20, 1986. Rodriguez presented in court to corroborate his alibi fellow kaboOscar Nocum, a jueteng collector named Sara Lee, and a jueteng bettor Marilou Garcia. Oscar Nocum testified that Rodriguez was with him from about 9:30 in the evening of January 20, 1986, which was the time of the lastjueteng draw, until midnight:[4] Sara lee, who lived nine houses from Rodriguez, testified that on the night of January 20, 1986 she saw Rodriguez at around eight o'clock to remit her collection. Rodriguez then came back to her house between 10:30 and eleven o'clock because she had invited him to her daughter's birthday celebration and because they expected to hear from him the results of the jueteng draw.[5] Marilou Garcia, also a neighbor of Rodriguez who lived six houses away, testified that she placed a bet with Rodriguez at his house at around eight o'clock to 8:45 in the evening of January 20, 1986, afterwhich Rodriguez left. She next saw him later that evening at around 10:30 to eleven o'clock when he passed by Garcia's house where a bingo game was in progress.[6] When arrested at his house in Moras, Sto. Tomas, Pampanga, Rodriguez was with his two children, his uncle Eduardo Pulusan and juetengcollectors, one of which was Rolando Tayag, one of those charged with Pulusan and Rodriguez in the amended information. Pulusan was in Rodriguez's house to invite the latter to their town fiesta.[7] Eduardo Pulusan testifying in his defense asserted that on January 20, 1986, he was repairing his house in preparation for the coming fiesta. His helper then was a certain Tony. The following day, he also stayed at home because he helped his father in their fishpond. He did not leave his house until around 1:30 p.m. on January 23, 1986 when he went to the house of his nephew, Rolando Rodriguez, to invite him to the fiesta. Pulusan presented in court his mother, Agapita, and Antonio Libid, the carpenter who allegedly repaired his house, to corroborate his alibi. Both testified that Pulusan did not leave the house on the night of January 20, 1986.[8] He professed innocence because he had never been implicated in a crime, not even vagrancy. He denied the testimony of prosecution witness Sgt. Dulin that he once had a rape case against him.[9] On June 5, 1990, the Regional Trial Court of Bulucan, Branch 12 at Malolos, rendered a Decision in Criminal Case No. 9217-M as follows: WHEREFORE, the prosecution having established the guilt of the accused EDUARDO PULUSAN y ANICETA and ROLANDO RODRIGUEZ y MACALINO beyond reasonable doubt, this Court finds them guilty of the offense of Robbery with Homicide penalized under Article 294, paragraph 1, Revised Penal Code, and hereby sentences each of them to suffer and undergo imprisonment for life or RECLUSION PERPETUA, with cost against said accused.

Both accused Pulusan and Roriguez are hereby ordered, jointly and severally, to indemnify the heirs of the late Rodolfo Cruz, Magno Surio, Constancio Dinisio and Armando Cundangan the amount of THIRTY THOUSAND PESOS (P30,000.00) for each dead victim as civil indemnification for their death. Both accused Pulusan and Rodriguez are also hereby ordered to pay, jointly and severally, as indemnification to the rape victim Marilyn Martinez, the amount of SIXTY THOUSAND PESOS (P60,000.00). Both accused Pulusan and Rodriguez are hereby further ordered, jointly and severally, to pay moral damages to the respective heirs of the deceased Magno Surio, Rodolfo Cruz, Constancio Dionisio and Armando Cundangan, the amount of TWENTY THOUSAND PESOS (P20,000.00). Both accused Pulusan and Rodriguez are hereby further ordered, jointly and severally, to pay moral damages to the respective heirs of the deceased Magno Surio, Rodolfo Cruz, Constancio Dionisio and Armando Cundangan, the amount of TWENTY THOUSAND PESOS (P20,000.00) to each victim and to rape victim Marilyn Martinez the amount of FORTY THOUSAND PESOS (P40,000.00). Both accused Pulusan and Rodriguez are hereby furthermore ordered, jointly and severally, to reimburse the heirs of the dead victims for the funeral expenses by them as follows: TWENTY ONE THOUSAND EIGHT HUNDRED THIRTY PESOS (P21,830.00) for deceased Rodolfo Cruz; TEN THOUSAND ONE HUNDRED SEVENTY PESOS (P10,170.00) for deceased Magno Surio; ELEVEN THOUSAND PESOS (P11,000.00) for deceased Constancio Dionisio. Finally, both accused Pulusan and Rodriguez are hereby ordered, jointly and severally, to return to the victims or their heirs the items they have taken during the robbery or to reimburse the value thereof as follows:

As regards accused ROLANDO TAYAG and a John Doe alias 'Ramon/Efren', let the record of this case be committed to the Archives to await their arrest and for this purpose, let an alias warrant of arrest be issued against accused Rolando Tayag. SO ORDERED.[10] Pulusan contends before this Court that the trial court erred in giving credence to his identification by prosecution witnesses as one of the perpetrators of the crime; in giving evidentiary weight to the "incredible, unreliable and inconsistent if not conflicting testimonies of the prosecution witnesses;" in failing to give "exculpatory weight" to his alibi which was supported by witnesses, and in convicting him even if his guilt was not proven beyond reasonable doubt.[11] Rodriguez asserts that the trial court erred in convicting him and imposing on him the penalty of reclusion perpetua and in giving credence to the evidence presented by the prosecution.[12] The arguments of Pulusan and Rodriguez are anchored mainly on the issue of credibility. The matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge, who, unlike appellate magistrates, can weigh such testimony in the light of the declarant's demeanor, conduct and attitude at the trial and is hereby placed in a more competent position to discriminate between the true and the false.[13] Thus, the trial court's findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal absent any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could have affected the result of the case.[14] There is no showing in the instant case of an oversight, misundertanding or misapplication of facts on the part of the trial court that may warrant reversal of that court" findings and conclusions. Pulusan avers that the prosecution witnesses' identification of him as one of the robbers was not enough to hurdle the test of certainty.[15]Pulusan quotes the following portions of the testimony of Constancio Gomez:[16]

Constancio Gomez - a lighter worth P50.00 and cash of P100.00;

Q

Cresenciano Pagtalunan - a driver's watch Worth P1,100.00 and cash of P110.00.

Mr. Witness before the wheel of your jeep was taken from you and (you were) told to sit at the back, you did not recognize the faces of those persons?

A

No, sir.

Q

Because you did not give a glance at their faces, correct?

A

When something was poked at me, I have not yet recognized them. But when I was sitted (sic) at the back, once in awhile I glanced at them, sir.

Q

Mr. Witness when one of the persons you mentioned who boarded your jeep at Tikay, Malolos, Bulacan poked a knife at your back and announced a hold-up, you became greatly afraid Mr. Witness, correct?

Marilyn Martinez - a wrist watch worth P350.00; Rodolfo Cruz - a watch worth P700.00, a wedding ring worth P500 and cash of P750.00.

A

Of course, sir.

Q

You were even terrified of being killed harmed by such happening, Mr. Witness?

A

Yes, sir.

Q

And you were very much afraid of these four men who announced the hold-up, correct?

A

Yes, sir, of course, I am afraid. xxx

Q

xxx

xxx

In fact Mr. Witness when these persons announced the hold-up, specifically when one of them was poking a knife at your back and you were terribly afraid of these four persons, you were afraid much more to look at their faces, correct?

A

Yes, sir, I am not looking at their faces because something was poked at me.

Q

Now even if you were ordered to go inside the jeepney, together with the passengers and even after one of the four men took the wheels of the jeep, you were still very afraid to look at them, correct?

Q

While you were there, you were not able to recognize the faces of the four men, correct?

A

No more because it was dark, sir.[17] (Underlining supplied)

The quoted portion, rather than support Pulusan’s contention, show that Gomez, although gripped by fear, was able to look at and see the malefactors. While it may be true that Gomez had only occasional glances at the men, this does not mean that he could not have been able to recognize them. The most natural reaction of victims of violence is to strive to see the appearance of the perpetrators of the crime and observe the manner in which the crime was being committed.[18] We also consider the following testimony of Cresenciano Pagtalunan, thus: Q

When these four passengers boarded the jeepney, was the jeepney inside lighted or not?

A

The jeepney was lighted, sir.

Q

Did you look at the faces of these four persons who boarded the jeepney?

A

I came to know their faces when they passed by me and announced that it was a hold-up, I happened to look at them, sir.

A

Even if I am so afraid, sir, once in a while I glanced at them and tried to recognize them.

Q

Q

Is it not a fact Mr. Witness that when you were ordered to go inside the jeep to sit with your passengers, they ordered the light of the jeep to be put off?

In fact you looked at their faces and you have only a glimpse of their faces, correct?

A

Yes, sir.

A

When that was said, we were already far and all the valuables were already taken from us, sir.

Q

Did you have glimpses of these four persons who boarded at Malolos or only one of them?

Q

The light were (sic) ordered to go inside the jeep to sit with your passengers, they ordered the light of the jeep to be put off?

A

I saw their faces because there was still light inside the jeep, sir.[19]

A

They were the ones who put off the light, sir.

Q

When you said that you take a look at their faces, it means to say that you take only a passing glance at their faces, correct?

A

Yes, sir.

Q

When you were just taking a passing glance of the faces of those four men, you did not actually describe (sic) their faces, is that correct?

A

Some of them I can describe but the others I cannot, sir.

Q

When you arrived at the place where the jeep stopped, is it not a fact that the place was dark?

A

Darked (sir), sir.

This testimony was corroborated by Marilyn Martinez who affirmed that when the four men boarded the jeep, the light inside the jeep was still on. She was able to recognize the men because they entered the jeep one by one. Moreover, Marilyn testified that even though the light inside the jeep was off, because they travelled quite a long distance, lights from the vehicles following them provided enough illumination. [20] When they arrived at the isolated talahiban in Sto. Tomas, one of the robbers switched on the headlights of the jeep. After the repeated rape of Marilyn, the light inside the jeep was already on.[21] Furthermore, appellant Rodriguez, who was the first to rape Marilyn, dragged her to the talahiban by passing in from to the jeep with its headlights on. She was looking at him, pleading for mercy.[22] This Court has time and again held that the relative weight and significance of evidence on visibility depend largely on the attending circumstances and the discretion of the trial court. The Court has considered as sufficient for identification illumination from a kerosene lamp[23]from a flashlight,[24] in the same way that the Court considered as enough lighting for identification purposes the “medium” light inside a jeepney which was passing through a dark place.[25] In the instant case, the factor of visibility was in

favor of the eyewitnesses. Such identification by all of the three prosecution eyewitnesses, not only by one, could not have been coincidental or contrived. In an attempt to discredit the eyewitnesses and their testimonies, Pulusan points out these “conflicting testimonies:” (1) Gomez and Marilyn testified he poked a knife at Gomez while Pagtalunan said that he was holding a sumpak; (2) Gomez testified that it was Pulusan who brought Marilyn to the talahiban while according to Marilyn, it was Rodriguez who brought her first to that place; (3) Gomez testified that they went to the PC headquarters the day following January 20, 1986 while Pagtalunan testified that they did so four days later; and (4) Gomez contradicted his testimony on direct examination that the crime transpired on January 20, 1986 by his testimony on cross-examination that the incident happened on February 20, 1986. We find these alleged contradictions too trivial to affect the prosecution’s case. Far from eroding the effectiveness of the testimonies of these eyewitnesses, such trivial differences are in fact indicative of veracity.[26] Witnesses testifying on the same event do not have to be consistent in every detail considering the inevitability of differences in their recollection, viewpoint or impression. Total recall or perfect symmetry is not required as long as the witnesses concur on material points.[27] The prosecution, contrary to appellant’s contention has also proven beyond reasonable doubt that the four men, Pulusan and Rodriguez included, conspired in the commission of the crime. In conspiracy, direct proof of a previous agreement to commit a crime is not necessary. It may be deducted from the mode and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such points to a joint purpose and design, concerted action and community of interest.[28] Pulusan and Rodriguez boarded the jeep together with two companions at the same time in Barangay Tikay. When Pulusan announced the hold-up, Rodriguez and their companions simultaneously brandished knives and the sumpak and divested the passengers of their money and valuables. When the jeepney reached an isolated place, the men took turns in raping Marilyn, inflicting physical harm on four male passengers who all succumbed to repeated clubbing and stabbing. After the carnage, the four malefactors walked towards the same northerly direction. Apparent then is the unity of purpose and design in the execution of the unlawful act. [29] And where the conspiracy is shown, the precise extent of participation of each accused in the crime is secondary and the act of one may be imputed to all the conspirators.[30] Pulusan and Rodriguez’s respective alibis cannot prosper. Apart from the fact that they situated themselves in places not too far from the crime scene, there was no proof that it was physically impossible for them to have been at the locus criminis during its commission.[31] Most of all, their respective alibis collapse in the face of the positive identification of them as the perpetrators of the crime.[32] The crime of charged in the information was “highway robbery attended with multiple homicide with multiple rape.” Highway robbery or brigandage is defined in Sec. (2) of Presidential Decree No. 532, otherwise known as the “Anti-Piracy and Anti-Highway Robbery Law of 1974,” as:

(t)he seizure of any person of ransom, extortion or other unlawful purposes, or the taking away of property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine Highway. As manifest in its preamble, the object of the decree is to deter and punish lawless elements who commit acts of depredation upon persons and properties of innocent and defenseless inhabitants who travel from one place to another thereby disturbing the peace and tranquility of the nation and stunning the economic and social progress of the people. A conviction for highway robbery requires proof that the accused were organized for the purpose of committing robbery indiscriminately. There is no such proof in this case. Neither is there proof that the four men previously attempted to commit similar robberies indiscriminately.[33] The trial court thus correctly found Pulusan and Rodriguez guilty of the crime of robbery with homicide aggravated by rape under Article 294(1) of Revised Penal Code. In the interpretation of an information, controlling is not the designation but the description of the offense charged. Under the allegations in the information, Pulusan and Rodriguez are liable under the aforesaid article of the penal code.[34] We must state that regardless of the number of homicides committed on the occasion of a robbery, the crime of still robbery with homicide. In this special complex crime, the number of persons killed is immaterial and does not increase the penalty prescribed in Art. 294 of the Revised Penal Code.[35] There is no crime of robbery with multiple homicide under the said Code.[36] The same crime is committed even if rape and physical injuries are also committed on the occasion of said crime. Moreover, whenever the special complex crime of robbery with homicide is proven to have been committed, all those who took part in the robbery are liable as principals therein although they did not actually take part in the homicide.[37] Rape had not been proven to be original intention of the appellants, the crime having been committed simply because there was a female passenger in the jeep. Hence, rape can only be considered as an aggravating circumstance and not a principal offense.[38] Under Art. 294(1) of the Revised Penal Code, robbery with homicide is punishable by reclusion perpetua to death. Considering the attendance of rape as a generic aggravating circumstance, the maximum penalty of death should be imposed. However, by reason of Section 19(1), Art. III of the 1987 Philippine Constitution which proscribes the imposition of the death penalty and considering further that at the time the crime was committed, Republic Act No. 7659 entitled “An Act to Impose the Death Penalty on Certain Heinous Crimes” reimposing the death penalty had not yet been enacted, the imposable penalty is reclusion perpetua. Because reclusion perpetua is a single indivisible penalty for the special complex crime of robbery with homicide, the same shall be imposed regardless of the attending aggravating or mitigating circumstances.[39]

The Court gives credence to the findings of the trial court as to the items to be returned or equivalent amount to be reimbursed to the victims of robbery, as well as the actual damages claimed and proven by the windows of the slain, victims. However, the civil indemnity for the heirs of the deceased victims should be increased to P50,000.00 in conformity with jurisprudence.[40] As to the moral damages awarded to Marilyn Martinez, the same should be increased pursuant to this Court's ruling that the offended party in the crime of rape is entitled to moral damages in the amount of at least P50,000.00; but in casses where multiple rapes are committed against one victim, as in this case where the victim suffered four rapes by four men, the victim should be awarded no less than the amount of P200,000.00 as moral damages.[41] WHEREFORE, the Decision dated June 5, 1990 of the Regional Trial Court, Malolos, Bulacan, Branch 12 convicting appellants Eduardo Pulusan and Rolando Rodriguez of the crime of robbery with homicide is hereby AFFIRMED subject to the modifications that the heirs of the four (4) slain victims shall each be entitled to an indemnity of P50,000.00 and the rape victim, Marilyn Martinez, shall be awarded moral damages in the amount of P200,000.00. Appellants shall be liable jointly and severally for the monetary awards.