G.R. No. 20472. September 05, 1923

This appeal has been brought to reverse a judgment of the Court of First
Instance of the City of Manila, finding the appellants, Fausto Cha y Misal and
Policarpio Milagrosa y Pascual, guilty of the offence of double homicide, and
sentencing each of them to undergo imprisonment for eighteen years, reclusion
temporal, with the accessories prescribed by law; to indemnify jointly and
severally the heirs of the persons slain, in the amount of P500; and to pay each
one-half the costs.

It appears in evidence that on and prior to December 16, 1922, an aged Chino,
named Lim Siam, with his wife, Ki Chio, maintained a tienda at No. 525
Calle Sagat, in the district of Paco, Manila. The couple were accustomed to
sleep in the tienda; and in the loft they accommodated their employee, a
boy named Ing Si. At between 2 and 3 o’clock in the morning of the date stated,
two malefactors effected an entrance into this place by removing one or more
boards from the back of the house, after which the door was opened by one or the
other from the inside, in order of course to make possible a prompt escape in
case of emergency. Lim Siam was the first person to awake who lived to tell the
tale, and he was aroused by a shriek from his wife. The tienda at the
time was lighted by an electric light, and what was then occurring was clearly
visible to Lim Siam’s eyes. Looking in the direction of the cot where his wife
was sleeping, Lim Siam saw a little man, whom he afterwards identified as Fausto
Cha, stabbing his wife, and blood spurting from her body. Lim Siam attempted to
catch the assailant, who at once turned and cut Lim Siam on the foot, after
which he resumed the assault on the wife, striking her in the neck while on the
floor. He then turned again upon Lim Siam and, stabbing him in the side, fled
from the room.

While this scene was being enacted Policarpio Milagrosa stood at the bed-room
door on the lower floor of the store, observing what was being done inside; and
after Lim Siam had been wounded, as above stated, he emitted a cry for help.
Policarpio Milagrosa then fled from the house by the front door, followed by
Fausto Cha.

Meanwhile, Ing Si, the lodger above, had heard the noise and started down the
ladder leading to the lower floor. He got down just in time to see Fausto Cha
running away from the house. He found Ki Chfo stretched upon the floor, dead
from the many and fatal wounds which she had received, and Lim Siam badly
slashed in half a dozen places. From the effect of these wounds he died five
days later in the Philippine General Hospital in Manila.

The police force of the city arrested the two appellants as suspects and
carried them in company with a number of other persons into the presence of Lim
Siam, who immediately and without hesitation identified the two appellants as
the persons who had perpetrated the outrage. Upon this occasion Lim Siam made a
written ante mortem statement in which, after stating that he realized
that death was certain, described the scene of the tragedy substantially as
above given, and explained his reasons for recognizing Fausto Cha as the person
who had killed Ki Chio and inflicted mortal wounds upon the declarant.

In this connection he pointed out that Fausto Cha is a little man and owing
to the light that was burning in the tienda the declarant was able to see
his features plainly. He also stated that he recognized Policarpio Milagrosa as
being without doubt the individual who stood at the door, looking into the room
while Fausto Cha committed the homicides.

The identification of the two appellants as the persons concerned in this
deadly assault is in our opinion complete; and no one reading the ante
mortem statement of Lim Siam can entertain for a moment any doubt that the
two appellants are the guilty persons.

Fausto Cha is further identified by Ing Si, who saw the back of this
appellant as he ran away. Still another circumstance which, though not weighty,
is of some value as corroborating the case against Fausto Cha, is that when he
was arrested one of his slippers (chinelas) had blood stains such as
might have received at the time of the homicides, and which exhibited signs of
attempt at effacement.

As against Policarpio Milagrosa the identification rests exclusively upon the
ante mortem statement of Lim Siam, but when it is considered that a light
was burning and that this accused was looking directly into the little room
where the deadly assault was made, it will be seen that Lim Siam had perfect
opportunity to observe this appellant’s features. We are entirely satisfied that
he also was rightly apprehended.

Fausto Cha gave his age as twenty-three years, and Policarpio Milagrosa said
he was twenty-seven at the time of the trial. Notwithstanding their comparative
youthfulness, both are seasoned criminals; and it was admitted by them at the
trial that Fausto Cha had been previously convicted for theft and again for
estafa, while Policarpio Milagrosa admitted having been convicted once
for theft and twice for robbery. One Que Siong, a son of Lim Siam, said at the
trial that these two individuals had already once robbed his father’s
establishment in the year 1918, though he did not give any precise date upon
this point.

The external indications would seem to show that the two accused intended to
commit robbery; but in his dying declaration Lim Siam said that he did not know
whether they took anything or not. It appears in evidence that a number of
articles, such as milk, sardines, and cigarettes, were, after the incident,
found in the tienda in a sack, where they had possibly been put with a
view to being taken away; and a drawer which may have contained some money was
found open, and the place was otherwise in disorder. Notwithstanding these
indications of a design to rob, the trial judge was in our opinion right in
ignoring the charge of robbery, for the reason that the proof does not afford
any convincing demonstration of the fact that the crime of robbery, frustrated
robbery, or attempt to rob, was committed. It follows that in estimating the
character of the offense and fixing the penalty, or penalties, incident thereto,
account can be taken only of the two homicides.

The information in this case alleges that the crime was committed with
treachery (alevosia), in that the victims were attacked while asleep; but
this circumstance is alleged as a generic aggravating circumstance only and not
as a qualifying circumstance such as would raise the homicides to murder. It is
evident that the charge of treachery was put in this form in view of the fact
that the information proceeds on the idea that the complex offence of robbery
with homicide was committed. We are of the opinion, however, that the presence
of alevosia as a factor in any form is not demonstrated in this case
beyond a reasonable doubt. It is certain that Lim Siam was not asleep when
assaulted, he having intervened in order to save his wife. Furthermore, it is a
probable conjecture that Ki Chio herself was killed because she awoke from her
sleep, thereby interrupting the robbery which had been planned.

In the commission of each of the offenses of homicide two aggravating
circumstances were undoubtedly present, namely, nocturnity and that the
offenders had been previously punished for two or more crimes to which the law
attaches a lighter penalty than to homicide.

The trial judge, as we have seen, imposed the penalty appropriate to homicide
in its maximum degree, but failed to take account of the fact that two persons
were killed by separate acts. In this we think his Honor was in error. The case
is one that should be governed by the rule stated in United States vs.
Balaba (37 Phil., 260), and the penalty appropriate to each of the two homicides
should have been imposed, as was done in that case. It is undoubtedly true that
where the complex crime of robbery with homicide is committed, the circumstance
that more than one homicide may have been committed does not destroy the
essential nature of the crime, where otherwise there would be only one. In the
complex offence the number of victims is immaterial (People vs. Manuel,
44 Phil., 333). But when it occurs, as here, that the robbery, upon a charge of
the complex offence, is not proved, the offence is resolved into its constituent
elements; and if more than one homicide appears to have been committed, the
penalties appropriate to each should be accumulated, in conformity with the
provisions of article 87 of the Penal Code, in relation with No. 2 of article 88
of the same Code. This was done in United States vs. Lahoylahoy and
Madanlog (38 Phil., 330), where four homicides were committed in connection with
a robbery, but the conviction for the robbery could not be sustained.

In view of the aggravating circumstances present in this case the period of
imprisonment for each homicide must be fixed in the maximum degree of
reclusion temporal, and we think it will suffice to fix this period at
seventeen years four months and one day for each offence.

The judgment appealed from will therefore be modified by imposing upon each
of the appellants imprisonment for seventeen years four months and one day,
reclusion temporal, for the homicide committed upon the person of Ki
Chio, and the further period of seventeen years four months and one day, for the
homicide committed upon the person of Lim Siam, making in all thirty-four years
eight months and two days, reclusion temporal. In other respects the
judgment is affirmed, with proportionate costs against the appellants. So
ordered.

Araullo, C.J., Johnson, Malcolm, Avanceña, Villamor, Johns,
and Romualdez, JJ., concur.