G.R. No. 1855. January 22, 1905

The robbery with which the defendant is charged has been fully
proven. Three witnesses testify to the same facts, corroborating each
other, and testimony is of their own personal knowledge, since they
themselves were the victims of the robbery.

The crime was perpetrated on the afternoon of December 10, 1903, in
a deserted place called Mahabangtanao, within the jurisdiction of the
town of Majayjay, Laguna Province, by two persons who had their faces
blackened. One of the robbers was armed with a bolo and a revolver and
the other with a bolo; both of them exercised violence on the victims,
and, with intimidation of the same, took from them 5.80 pesos in cash,
a penknife, a package of cigarettes, and a small mirror.

The participation which the defendant had in the commission of the
offense is also proven by the testimony of the witnesses above referred
to. One of these witnesses positively affirms to have identified the
defendant at the time the robbery took place, in spite of having his
face blackened, since he knew him of old, and also on account of the
tattooing he had on his hands. One of the other witnesses states that,
although he did not identify the robbers by their faces on account of
the aforesaid disguise, he, however, saw that one of the robbers had
his hands tattooed and that his body and height were similar to that of
the defendant. The defendant was ordered by the judge to show his hands
upon the request of the prosecuting attorney, and when he did so,
without any objection or protest on his part, it was found that he
really had his hands tattooed and that the marks and designs of his
tattooings were identical, according to the witness, to those which he
saw at the time the robbery took place. The third witness affirms that
one of the two robbers was of the same size as the accused, Cofrada.

The defense in this instance alleges that the judge violated one of
the rights of the accused when he ordered him to show his hands so as
to obtain material proof of his guilt, and that such a violation
vitiates the proceedings in the case and makes the record null and
void. Assuming even that the accused had really the right to refuse to
show the tattooing on his hands, it is evident that he did not only
waive that right but relinquished it voluntarily when he showed the
said tattooing without protest or objection against such order. This
would, at all events, deprive him of his right to object to the
validity of those proceedings in this instance. This circumstance is
certainly not the only one which furnishes the evidence of the
defendant’s guilt, since, even without taking it into consideration,
the affirmation of one of the witnesses that the said accused had been
well identified by him at the time the robbery was committed would be
sufficient to prove his guilt; and this affirmation has been
furthermore corroborated by the other two witnesses, who stated that
one of the robbers was like the accused in his body and height.

The evidence introduced by the accused in order to establish an
alibi does not deserve serious consideration. One of his two sole
witnesses confined himself in his testimony to the fact that he saw the
defendant pass in front of his house at noon on that day, going toward
the office of the municipal president of the town; and the other, when
testifying—in fact without giving satisfactory explanation of his
statement—that he constantly saw the defendant doing police duty at the
president’s office in the town during all day and night on the date of
the occurrence with the exception of one of the early hours in the
morning, when the said accused returned to his house for breakfast, not
only contradicts the first witness, who states that he had seen the
accused out of the president’s office, but also contradicts the accused
himself, who, upon testifying on his behalf, said that on that day he
went twice to his house to take breakfast and dinner and that he was at
his house in the afternoon, leaving the same at 5 o’clock to go to town
for the purpose of buying some food..

The facts in the case fall within the provisions of section 5 of article 503 of the Penal Code, which punishes it with presidio correccional to presidio mayor.
The offense having been committed with the aggravating circumstances of
uninhabited place and use of a disguise by the accused, his face being
blackened in order to secure impunity, the punishment should be imposed
upon the accused in its maximum degree, within the limits of which the
judgment appealed from is confined.

The accused is furthermore sentenced by the said judgment to return
the money and property taken, and, if in default, to suffer subsidiary
imprisonment at the rate of one day for each 12 1/2 pesetas unpaid.
This latter part of the sentence does not conform with the law. Article
51 of the Penal Code provides that subsidiary imprisonment shall not be
imposed on the defendant when the penalty to which he has been
sentenced is higher in the general scale of penalties than that of residio correccional. The penalty of presidio mayor,
which is higher than the last-mentioned penalty, having been imposed
upon the accused, it is manifest that he can not legally be sentenced
to subsidiary imprisonment in case of insolvency.

The judgment thus modified is hereby affirmed with the costs of this instance against the accused. So ordered.

Arellano, C. J,, Torres, Johnson, and Carson, JJ., concur.