G.R No. L-5732. March 12, 1954

This is an appeal from the judgment of the Court of First Instance
of Ilocos Norte, finding the defendant-appellant, Federico Fader alias
Fernandico Fader, guilty of frustrated robbery with double homicide and
sentencing him to reclusion perpetua and its legal
accessories, to indemnify the heirs of the deceased in the sum of
P5,000, and to pay the costs. Fausto Fedalizo alias Ustong Fedalizo was
originally included in the information but, upon motion of the
provincial fiscal, the court dismissed the case as to him for
insufficiency of evidence.

According to the prosecution, on the night of April 13, 1951, at
about ten o’clock, after the appellant and an unidentified companion
had gained entrance to the house located in the barrio of Tigui,
municipality of Curimao-Ilocos Norte, owned and occupied by Marcos
Fernandez, his wife, and his six children named Dionicio, Maria,
Juanita, Fernandico, Jose and Gervasia, the appellant directed
everybody to lie with face downward. After putting out the oil lamp,
the appellant approached Juanita and, pressing his gun against her
breast, asked for the key to the family trunk. Juanita answered that
the trunk could just be opened as it was unlocked. Whereupon the
appellant demanded money from Juanita and, noticing that Dionicio (who
was in another part of the house beside his brother Fernandico) was
still awake, fired at the latter. Fernandico was thereby awakened and
was warned by the appellant not to move. Defying this threat, however,
Fernandico stood up and proceeded to resist, and the appellant
thereupon started to make his exit, pursued by Fernandico. In the
meantime, Maria (who was sleeping near Juanita) was likewise awakened,
and appellant’s unidentified companion dragged her by the head towards
the stairway. Following, however, appellant’s conduct, this unknown
companion jumped to the ground obviously also to flee away. No sooner
had the appellant and” his companion started on their flight than the
former fired a few more shots at the house hitting Maria at the
stairway where she was dragged by appellant’s companion. Marcos, also
awakened by the noise of appellant’s first shot, was so frightened that
he slipped out of the house and, hiding behind a post near the gate of
his yard, saw the male-factors as they passed out to the road, and
recognized the appellant by the moonlight. The assailants gone, Marcos
rushed to his house only to find that his son Dionicio and daughter
Maria were already dead. That same night he reported the occurrence to
the chief of police, specifying the appellant as one of the intruders.
The police officer hastily went to the house of Marcos where he found
the dead bodies of Dionicio and Maria, some empty carbine shells by the
roadside nearby, a slug embedded in the post near the stairway where
Maria was lying dead, and some live ammunition’s inside the house. The
chief of police was also informed by a daughter of Marcos that the
appellant was one of the assailants. According to Dr. Estanislao
Resurrection, charity clinic physician of the municipality who
performed the autopsy, the two victims died from severe profuse
hemorrhage and shock.

The evidence for the defense tends to show that on April 13, 1951,
the appellant was in his house in the poblacion of Paoay, Ilocos Norte,
about five kilometers away from the scene of the crime; that some
visitors (who came in the afternoon of that day to congratulate him on
his graduation as an elementary school teacher) stayed in his house up
to three o’clock in the morning, of the following day, playing mahjong;
that appellant served arroz caldo to his visitors between 10
and 11 o’clock; that at about five o’clock of the following morning he
and Constancio Diaz went out to measure a piece of land belonging to
the latter’s wife and her brothers which appellant’s father intended to
buy, the appellant returning home already at about eight o’clock in the
morning; that appellant was incriminated because he dismissed Marcos as
a tenant in March, 1951.

After a careful study of the record, we are convinced of appellant’s
guilt beyond reasonable doubt. Appellant’s alibi cannot prevail over
the positive testimony of Marcos and his two children, Fernandico and
Juanita, who were inmates in the same house where Dionicio and Maria
were shot by the appellant. These witnesses could not have made a
mistake in appellant’s identity, because the latter was known to the
former, Marcos admittedly being appellant’s tenant, apart from the
circumstance that the assailants were not disguised. It is significant
that, at the time the malefactors entered the house of their victims,
there was an oil lamp, and Juanita had the occasion to recognize
appellant within close range because he pressed his gun against
Juanita’s breast. Indeed, it was also from Juanita that the appellant
demanded the key as well as money.

Appellant contends that the testimony of Marcos to the effect that
he was able to identify the appellant because of the moonlight is
untrue, because it is alleged that on the date in question, the moon
rose at 10:25 o’clock in the evening and set about two hours later, or
thirteen minutes past midnight. This observation cannot negative the
probative value of said testimony, since Marcos and Juanita both
declared that the incident occurred between ten o’clock and midnight

Appellant capitalizes certain discrepancies between the affidavits
of the prosecution witnesses and their testimony in court, in that
while in the first it was claimed that appellant’s companion was Fausto
Fedalizo alias Ustong Fedalizo, in their testimony during the trial
said witnesses declared that they did not recognize said companion. The
point is of no moment, inasmuch as Fausto Fedalizo, though originally
included in the information, was subsequently discharged for
insufficiency of evidence after a reinvestigation of the case, and upon
motion of the provincial fiscal; and the Government witnesses had made
a consistent statement regarding appellant’s identity and main
participation. Another discrepancy pointed out by the appellant refers
to the fact that, while Juanita claimed that it was the appellant who
dragged Maria to the stairway, Fernandico testified that it was
appellant’s companion who did it The detail, in our opinion, is not of
such importance as to destroy the testimony both of Juanita and
Fernandico in relation to the fatal acts committed by the appellant,
preceded by his demand from Juanita for the key of the family trunk and
for money.

It is argued that Marcos harbored some resentment towards the
appellant growing out from his dismissal as appellant’s tenant in
March, 1951. Aside from the assurance of Marcos that he was never
dismissed, appellant’s imputation is rather inconsistent with his
statement that, on the alleged date of dismissal, the appellant bought
a cow from Marcos. Neither is there weight in appellant’s argument that
it is improbable that he would rob his own tenants. In the first place,
it is admitted that the appellant had previously been imprisoned for
theft. In the second place, he must have believed and known that the
Fernandez family had money, because appellant himself stated that he
bought from them a cow on March 25, 1951 for P160.

Lastly, it is noteworthy that the commission of the crime was
reported to the authorities immediately, thereby showing spontaneity on
the part of the informant (Marcos) and preventing the latter from
having sufficient time to fabricate an untrue story.

The crime committed is, as charged in the information and found in
the appealed decision, attempted robbery with double homicide,
penalized under Article 297 of the Revised Penal Code with reclusion temporal to reclusion perpetua.
The trial court ruled that there were present in the commission of the
crime the aggravating circumstances of dwelling, nighttime and
treachery, without any mitigating circumstance. While nighttime cannot
be considered separate from and independent of treachery, there are
still two aggravating circumstances which justify the penalty imposed
by the trial court

Wherefore, the appealed judgment is affirmed with costs. So ordered.

Pablo, Bengzon, Padilla, Montemayor, Jugo, Reyes, Bautista Angelo, Labrador, Concepcion, and Diokno, JJ., concur.