G.R. No. 2063. February 24, 1905

The fact that the defendant and appellant, together with his other
two codefendants, who did not appeal, took possession, with the
intention of profiting thereby, of the amount of 250 pesos while the
owner thereof was tied to the wall in his home, together with three
other persons, the latter having been tied by the appellant, a corporal
in the Constabulary, and his companions, a few hours prior thereto on
the supposition that they had concealed and aided a band of robbers
whom the Constabulary were endeavoring to capture, does not constitute
the crime of robbery, but only that of theft, provided for and punished
by article 517 of the Penal Code, as stated by the court below in its
judgment.

All the following facts have been clearly proven in the case: That
the defendant, as a corporal in the Constabulary, and his companions
had captured and tied, in the manner above set forth, the owner of the
money taken and his companions, because the latter were suspected of
aiding and concealing a band of brigands which the Constabulary were
trying to capture; that the taking of the money was carried out without
the use of violence toward the thing, since the money was kept in an
open drawer and therefore it was not necessary to break the same; that
they did not exercise intimidation or violence toward the person. The
fact that the owner of the money and his companions were tied at the
time can not be considered as violence, because they had been tied for
some hours previously for a reason entirely foreign to the fact of the
taking of the money. The idea of taking the money grew, evidently, in
the minds of the appellant and his codefendants after the former were
captured, as appears from all the evidence adduced in the case.

The penalty of two years of presidio correccional imposed
by the court below is in accordance with the law. The money taken
exceeds the amount of 250 pesetas and is less than 1,250 pesetas and
the crime was accompanied by the aggravating circumstances provided for
in paragraphs 11 and 20 of article 10 of the Penal Code (par. 3, art.
518, of the code).

As regards the other fact alleged in the complaint, that appellant
did, on the day following the commission of the theft, ask from the
owner of the money taken the sum of 50 pesos in order to prevent being
taken bound to the cuartel of the Constabulary where appellant was
detailed, the prosecution should charge same in a separate complaint.
This fact constitutes another crime, different from that of the theft
of 250 pesos. The commission of the latter crime was already
consummated when the 50 pesos were asked by the defendant from the
owner of the money. The crime of theft is included, necessarily, in
that of robbery and, therefore, the appellant can be sentenced for the
former, notwithstanding having been charged with the latter, under the
provisions of section 29 of General Orders, No. 58. We therefore affirm
the judgment below in all respects, with the costs in this instance
against the appellant. So ordered.

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