EN BANC

[G.R. No. L-36461. June 29, 1984.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

HERNANDO DIO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Luis R. Feria for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; ROBBERY WITH HOMICIDE; ROBBERY NOT

CONSUMMATED IN CASE AT BAR. — The appellant claims that he should not
have been convicted of the special complex crime of robbery with homicide
because the robbery, was not consummated. He states that there was only
an attempted robbery. The Court agrees with the Solicitor General that the
evidence adduced show that the appellant and his companion were
unsuccessful in their criminal venture of divesting the victim of his wrist
watch so as to constitute the consummated crime of robbery. When the
victim expired, the 'Seiko' watch was still securely strapped to his wrist. The
killing, of Crispulo Alega may be considered as merely incidental to and an
offshoot of the plan to carry out the robbery, which however was not
consummated because of the resistance offered by the deceased.
Consequently, this case would properly come under the provision of Article
297 of the Revised Penal Code which states that by reason or on occasion of
an attempted robbery a homicide is committed, the person guilty of such
offenses shall be punished by reclusion temporal in its maximum period to
reclusion perpetua. unless the homicide committed shall deserve a higher
penalty under the provisions of this Code.
2. ID.; ID.; ID.; ID.; PENALTY ABSENT ATTENDANT MITIGATING OR
AGGRAVATING CIRCUMSTANCES. — The crime committed by the appellant is
attempted robbery with homicide and the penalty prescribed by law is
reclusion temporal in its maximum period to reclusion perpetua. Since there
was no mitigating or aggravating circumstance, the penalty should be
applied in its medium period. i.e. 18 years, 8 months and 1 day to 20 years.
The Indeterminate Sentence Law has also to be applied.

DECISION

ABAD SANTOS, J : p

Automatic review of a decision of the defunct Circuit Criminal Court,

7th Judicial District, which imposed the death penalty.
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 An information for robbery with homicide was filed on October 1, 1971,
against Danilo Tobias and a John Doe. The order to arrest Tobias was
returned unserved and he is still on the "Wanted Persons Files."
On December 7, 1971, the information was amended to name
Hernando Dio as the John Doe, the appellant herein. As amended, the
information reads:
"That on or about the 24th day of July 1971, in Pasay City,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused Danilo Tobias @ Danny Kulot and Hernando Dio
@ Way Kaon, conspiring and confederating together and mutually
helping one another, with intent to gain and without the knowledge
and consent of the owner, and with the use of a 'balisong', one of the
accused was provided with, and by means of force, threats and
intimidation employed upon the latter, did then and there wilfully,
unlawfully and feloniously take, steal and rob away from one Crispulo
P. Alega, one Seiko brand men's wrist watch (recovered); and the said
accused in accordance with and pursuant to their conspiracy, and in
order to carry out their avowed purpose, with intent to kill did then and
there wilfully, unlawfully and feloniously attack, assault and stab for
several times Crispulo P. Alega, and which 'balisong' was directly
aimed at the vital portions of the body of said Crispulo P. Alega, thus
performing all the acts of execution causing his instantaneous death."
(Expediente, p. 68.)

Accused Hernando Dio pleaded not guilty when he was arraigned and
after trial the court rendered the following judgment:
"WHEREFORE, finding the accused, Hernando Dio, Guilty, beyond
reasonable doubt, of the crime of Robbery with Homicide as defined
under Article 294 of the Revised Penal Code, as charged in the
Amended Information, the Court hereby sentences him to suffer the
penalty of DEATH; to indemnify the heirs of the victim, Crispulo Alega
the amount of P12,000.00; to pay moral damages in the amount of
P10,000.00 and another P10,000.00, as exemplary damages; and to
pay the costs. (Id., pp. 105-106.)

The People's version of the facts is as follows:

At about noontime on July 24, 1971, Crispulo Alega, a civil
engineer by profession working at the Sugar Construction Company,
with a salary of more than P500.00 a month, went to the Southeastern
College, Pasay City to fetch his girlfriend, Remedios Maniti, a third year
high school student thereat (pp. 55, 59, 63-64, tsn., January 11, 1973).
They proceeded to the Pasay City Public Market. As they were going up
the stairs leading to the Teresa and Sons Restaurant, Remedios, who
was walking about an arms-length ahead of Crispulo suddenly heard
the dropping of her folders and other things, being carried by Crispulo.
When she looked back, she saw a man — later identified as Danilo
Tobias but still at large — twisting the neck of Crispulo, while the
appellant was holding his (Crispulo's) two hands (pp. 56-57, 61, tsn.,
id.). The appellant and his companion tried to divest Crispulo of his
'Seiko' wrist watch, but Crispulo resisted their attempt and fought the
robbers. At this juncture, the man who was twisting the neck of
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 Crispulo stabbed the latter on the left side of his chest. Crispulo ran
down the stairs followed by Remedios who shouted for help. When he
reached the front of the Pasay Commercial Bank he fell down and
expired. At the time of his death, the 'Seiko' watch was still strapped to
his wrist. (pp. 57-61, tsn., id., pp. 7-9, tsn., Jan. 22, 1973)

An autopsy conducted on the victim's body by Dr. Ricardo

Ibarola, medico legal officer of the NBI revealed that the cause of death
was a stab wound at the region below his left breast which penetrated
the heart. Said doctor opined that judging from the natural appearance
of the stab wound, it must have been caused by a single-bladed
pointed instrument (pp. 6, 13-14, tsn., Jan. 11, 1973; Exh. C and C-1, p.
87, rec.). The necropsy report (Exh. A, p. 85, rec.) stated that the
deceased sustained the following injuries:

'Abrasions: right zygomatic region, 0.6 x 0.4 cm. infralabial

region, right side 1.7 x 1.4 cm.; forearm right, upper third, postero-
lateral aspect, 0.6 x 0.4 cm. and left, lower third, posterior aspect, 0.4
x 0.2 cm.; right knee, 0.6 x 0.4 cm.; right leg, upper third, anterior
aspect, 1.4 x 0.8 cm.

'Incise wounds, neck, left supero-lateral aspect, two in number,

2.5 and 1.2 cm. in lengths, both superficial.

'Stab wound: left inframammary region, level of the 5th

intercostal space along the parasternal line, 6.0 cm. from the anterior
midline, 0.5 cm. below the left nipple, elliptical in shape, 3.0 cm. long
extended laterally by 3.0 cm, long rising slightly downwards, medially
edges, clean cut, sutured, medial extremity of which is blunt and
lateral extrimity, sharp; directed upwards, medially and backwards
involving, among others, the soft tissues, thru the 5th intercostal
muscles, grazing the 6th rib superiorly, perforating the left pleural
cavity only, into the middle mediastinum by penetrating the
pericardium antero-inferiorly, perforating the interventricular system
and penetrating the left ventricle of the heart at its apical portions,
approximate depth 11.0 cm."
"After the appellant's arrest on October 24, 1972, he was
investigated at the Detective Bureau of the Pasay City Police
Department and gave a statement (Exh. D, p. 90, rec.) in the presence
of Pat. Arturo Rimorin admitting that on the date and time of the
incident, he and his co-accused, Danilo Tobias alias Kardong Kaliwa
alias Danny Kulot, held up a man and a woman; that they did not get
the watch of the man; that he held the victim's hands but the latter
was able to free himself; that Danny Kulot stabbed the man, that when
the victim ran, they also ran away; and that he did not know what
happened to the victim (Exhs. D, D-1, D-2, D-3, D-4 and D-5, p. 90, rec.;
pp. 27-31, tsn., Jan. 11, 1973)." (Brief, pp. 2-5.)

Atty. Luis R. Feria, counsel de oficio of the appellant, states:

"After a careful, considered and conscientious examination of the
evidence adduced in the instant case, undersigned counsel is
constrained to conclude that the findings of fact of the trial court,
upholding the version of the prosecution as against that of the defense,
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 must have to be sustained. As against the sole and uncorroborated
testimony of appellant merely denying any participation in the
commission of the crime imputed to him (while admitting that he was
present at the scene of the crime), there is a formidable array of
evidence against him consisting of the clear and convincing testimony
of Remedios Maniti, who was in the company of the deceased at the
time he was killed and an eyewitness to the entire incident; the
extrajudicial written confession of defendant-appellant (Exhibit D)
admitting participation in the commission of the crime; the testimony
of Patrolman Arturo Rimorin who conducted the investigation of, and
before whom Exhibit D was executed and signed by, defendant-
appellant, as well as the testimony of Sgt. Geronimo de los Santos of
the Pasay Police to whom defendant-appellant orally admitted that he
held the victim's hands although he had no part in the actual stabbing
of the deceased.

"With respect to the testimony of the eyewitness Remedios

Maniti, there is absolutely nothing in the record (except perhaps that
she was the sweetheart of the deceased) to show, or even hint, that
she had any reasons to perjure herself by falsely incriminating
defendant-appellant in such a grievous crime, no bias, interest or
prejudice against the latter as would move or induce her to faithlessly
accuse him of a crime which he had not committed. More than ever,
the time-honored ruling of this Honorable Court, too elemental to
require citations, that the findings of the trial court on the question of
credibility of the witnesses, having had the advantage of observing
their demeanor and manner of testifying, should not be disturbed in
the absence of strong and cogent reasons therefor, applies fully to the
case at bar. No such reasons can be found herein.
"The same observations may be made with respect to the
testimonies of Patrolman Rimorin and Sgt. de los Santos. Moreover, as
has been held by this Honorable Court, where the prosecution
witnesses, being government employees who testified as to what
transpired in the performance of their duties, were neutral and
disinterested and had no reason to falsely testify against the accused,
and did not subject him to any violence, torture or bodily harm, their
testimonies should be given more weight than that of the accused (P.
v. Pereto, 21 SCRA 1469: P. v. Del Castillo, 25 SCRA 716.)
"Then there is the extrajudicial confession of defendant-
appellant, Exhibit D. True it is that, belatedly during the trial, appellant
claimed that his answers appearing in Exhibit D were given because be
was afraid as he was intimidated and struck on the buttock with a long
piece of wood (pp. 32-34, t.s.n. Ses. of January 22, 1973). It is
submitted that this last-minute, desperate and uncorroborated claim
falls flat in the face not only of the presumption of voluntariness in the
execution of confessions, but also of the testimony of Patrolman
Rimorin to the effect that Exhibit D was executed voluntarily and that
defendant-appellant was never maltreated (pp. 26, 31-32, t.s.n. Ses. of
January 11, 1973), and the latter's own admission that before he
signed Exhibit D, its contents were first read to him in Tagalog and that
he fully understood the same (pp. 24, t.s.n. Ses. of January 22, 1973),
and his further admission that he has not filed any case against those
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 who had allegedly maltreated him (p. 33, t.s.n. id.). Moreover, where
the alleged confession reveals spontaneity of the declarations belying
the claim that they were concocted or dictated by the police, the court
will reject the claim that the confession was involuntary (P. v. Castro,
11 SCRA 699)." (Brief, pp. 3-5.)

Notwithstanding the foregoing factual admission, Atty. Feria makes the

following assignment of errors:
1. THE TRIAL COURT ERRED IN CONVICTING DEFENDANT-
APPELLANT OF THE SPECIAL COMPLEX CRIME OF ROBBERY WITH
HOMICIDE AS DEFINED AND PENALIZED UNDER ART. 294, PAR. 1, OF
THE REVISED PENAL CODE.

2. EVEN ASSUMING THAT THE CRIME COMMITTED BY

DEFENDANT-APPELLANT IS ROBBERY WITH HOMICIDE, THE TRIAL
COURT ERRED IN SENTENCING HIM TO SUFFER THE DEATH PENALTY.

We have scrutinized the record, particularly the testimonial evidence,

and indeed there is no doubt that the appellant had a hand in the death of
Crispulo Alega. There remains to be considered, however, the claims of the
appellant which are made in the assignment of errors.
The appellant claims in his first assignment of error that he should not
have been convicted of the special complex crime of robbery with homicide
because the robbery was not consummated. He states that there was only
an attempted robbery.
The Solicitor General states:
". . . We are constrained to agree with defense' contention. The
evidence adduced show that the appellant and his companion were
unsuccessful in their criminal venture of divesting the victim of his wrist
watch so as to constitute the consummated crime of robbery. Indeed,
as adverted to earlier, when the victim expired, the 'Seiko' watch was
still securely strapped to his wrist (p. 59, t.s.n., Jan. 11, 1973). The
killing of Crispulo Alega may be considered as merely incidental to and
an offshoot of the plan to carry out the robbery, which however was not
consummated because of the resistance offered by the deceased.
Consequently, this case would properly come under the provision of
Art. 297 of the Revised Penal Code which states that —
'When by reason or on occasion of an attempted or frustrated
robbery a homicide is committed, the person guilty of such
offenses shall be punished by reclusion temporal in its maximum
period to reclusion perpetua, unless the homicide committed
shall deserve a higher penalty under the provisions of this
Code.'" (Brief, pp. 5-6.).

In his second assignment of error the appellant claims that the

information does not allege any aggravating circumstance nor was any
proved during the trial.
Again the Solicitor General states:
"We likewise agree with the contention of counsel in his second
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 assigned error that the evidence presented by the prosecution did not
show the attendance of any aggravating circumstance in the
commission of the crime and neither did the court a quo make any
finding in this respect (pp. 7-8, appellant's brief)." (Id., p. 6.)

The crime committed by the appellant is attempted robbery with

homicide and the penalty prescribed by law is reclusion temporal in its
maximum period to reclusion perpetua. Since there was no attendant
mitigating nor aggravating circumstance, the penalty should be applied in its
medium period, i.e. 18 years, 8 months and 1 day to 20 years. The
Indeterminate Sentence Law has also to be applied.
WHEREFORE, the judgment of the trial court is hereby modified; the
appellant is found guilty beyond reasonable doubt of the special complex
crime of attempted robbery with homicide and he is sentenced to suffer an
indeterminate penalty of 10 years and 1 day of prision mayoras minimum to
20 years of reclusion temporal as maximum, to indemnify the heirs of
Crispulo Alega in the amount of P30,000.00, and to pay one-half of the costs.
SO ORDERED.
Fernando, C .J ., Teehankee, Makasiar, Aquino, Concepcion, Jr .,
Guerrero, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr ., De la
Fuente and Cuevas, JJ ., concur.

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