G.R. No. 1996. March 06, 1905

In a complaint dated November 10, 1903, the assistant prosecuting
attorney of the city of Manila charged Espiridion Roque, Nicolas
Velasquez, Leon Lariosa, Tin Juan, and two others with the crime of
theft. The complaint stated that these defendants on or about June 30
of the same year did in the city of Manila, willfully and feloniously,
with the intention of profiting thereby and against the consent of the
owner thereof, take and carry away one hundred and seventy-one cases of
I. W. Harper whisky valued at $1,539 and sixteen cases of sardines
valued at $ 104, both United States currency, all of the total value of
$1,643, United States currency, equivalent to 18,894.05 pesetas; that
these goods were the property of the Pacific Oriental Trading Company,
a corporation existing and doing business under the laws of these
Islands; that the act was committed contrary to law.

The case having come on for trial, the court below sentenced these
four defendants to the penalty of five years’ imprisonment and the
costs. The defendants Sinforoso and Ignacio Galang had not been
apprehended and they are still absent. From this judgment the four
defendants appealed.

From the evidence adduced in the case it appears that in pursuance
of certain orders received from the Collector of Customs, the
storekeeper, John A. Ryan, started to make an inventory of the goods
stored in the warehouses Nos. 3 and 6 of the Pacific Oriental Trading
Company, which were under his charge. He noticed that in warehouse No.
6, situated near the river and close to the Quinta Market, one hundred
and seventy-one cases of whisky and sixteen cases of sardines were
missing, according to a memorandum which contained a list of the goods
stored in said warehouse. That for this reason the manager, W. H.
Anderson, a director of the company, an employee, Charles Snyder, and
the storekeeper proceeded to make a minute investigation as to how the
cases could have disappeared from the warehouse, because the building
was constructed of stone, having one entrance with two keys, one being
in the possession of the Collector of Customs and the other in the
possession of the storekeeper. From their investigation they found that
an opening had been made in the roof of the warehouse and that two
pieces of timber had been cut out and the hole covered by two boards so
as to conceal the traces of the theft. The acts took place between 10
and 12 o’clock on the evening of the 30th of June, 1903, favored by the
darkness and silence of night.In order to remove these cases, the two
absent defendants, Ignacio and Sinforoso Galang, entered the warehouse
through the roof, and in order to do this made aforesaid opening and
then passed the cases out through the hole and lowered them by means of
ropes into the yard attached to the warehouse; from here the cases were
taken to a banca with the assistance of Leon Lariosa and Nicolas
Velasquez, who were outside of the warehouse; that after putting the
cases in the banca Faustino Reyes and Espiridion Roque rowed over to
Quinta Market, where Tin Juan awaited them, the latter receiving said
cases and carrying them ashore with the assistance of some workmen whom
he employed for this purpose. These facts constitute the crime of
robbery committed in an uninhabited place, by means of force against
the thing, scaling a building and breaking the roof.The value of the
goods taken exceeds 1,250 pesetas. This crime is provided for and
punished by article 512 of the Penal Code with the penalty of presidio correccional
in its medium and maximum degrees. In order to remove the one hundred
and seventy-one cases of whisky and sixteen cases of sardines, the
property of the said company, the defendants had to make an opening in
the roof of the warehouse, which was uninhabited, and they then entered
said building by scaling the wall.

Taking into consideration that the complaint erroneously charged the
defendants with the crime of theft, we can not find them guilty of or
make them liable for the crime of robbery. We have examined the
judgment of the court below, which is in conformity with the complaint
and with the same point of view as established in the latter. The crime
must not be allowed to go unpunished, even though it has been qualified
as theft. As regards the participation of the defendants in the crime,
all the evidence adduced in the case produces on the mind a clear
conviction as to the guilt of the defendants Nicolas Velasquez,
Espiridion Roque, and Tin Juan, the first two as principals and the
latter as accessory.

It is a fact fully proven, indeed, that Velasquez, and Roque, with
two others who are absent, took a direct part in the removal of the
cases stored in warehouse No. 6 on Calle Isla de Romero, near the Pasig
River, and belonging to the said company, and that for this purpose
they broke in the roof of the warehouse and scaled the wall of same;
that in order to deliver the, cases to the Chinaman Tin Juan, as they
had agreed previously, Espiridion Roque took the cases in a banca to
the wharf at the Quinta Market and there the Chinaman received them;
that the Chinaman, without having any participation in the commission
of the crime as principal or accomplice, but with knowledge of the
criminal removal of the cases, profited by the crime and helped the
principals to dispose of the effects stolen. The Chinaman, therefore,
should be punished as an accessory after the fact.

In the commission of the crime we must take into consideration the
existence of the aggravating circumstance provided for in subsection 15
of article 10 of the Penal Code. These defendants committed the crime
taking advantage of the darkness and silence of the night. There is no
extenuating circumstance to offset the effects of the former, and
therefore the proper penalty provided for in article 518, paragraph 1,
of the Penal Code should be imposed upon the principals in its maximum
degree and on the accessory in the degree provided for in article 68 of
the Penal Code. As regards Leon Lariosa, the case does not contain
sufficient evidence to show that he took part in the commission of the
crime for which he is now prosecuted. The fact that there may be some
doubt as to his innocence is not sufficient reason for convicting him,
because the evidence is lacking. Therefore he should be acquitted.

By virtue, therefore, of the reasons above stated, we are of the
opinion that Nicolas Velasquez and Espiridion Roque should be sentenced
to five years of presidio correctional and the Chinaman Tin Juan to four months of arresto mayor,
the principals being also obligated, jointly and severally to restore
the effects stolen or the value thereof amounting to $1,643, United
States currency, and upon their default that the Chinaman Tin Juan be
subsidiarily liable for the return of the effects robbed or the value
thereof, and in case of insolvency of all of them to suffer subsidiary
imprisonment; provided, however, that this latter penalty shall not
exceed one year in the case of Roque and Velasquez or one-third of the
penalty imposed on the Chinaman. They are also each sentenced to pay
one-fourth of the costs in both instances. Leon Lariosa is hereby
acquitted, with the remaining costs de oficio; hereby affirming the judgment below in all other respects.

This case to be remanded to the court below with a certified copy of
this decision and of the judgment which shall be rendered in accordance
herewith. So ordered.

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