THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MORO ALI, ET AL., DEFENDANTS; MORO ALI, JAWAD AND AUSALIN, DEFENDANTS-APPELLANTS.

Moros Ali and others were charged in the Court of First Instance of Zamboanga
with the crime of robbery in band with physical injuries. The only accused
apprehended were Moros Ali, Jawad and Ausalin who, after trial, were found
guilty and sentenced to reclusion perpetua and to return the articles stolen and
not recovered in the amount of P8,341.00, with legal accessory penalties. The
three accused have appealed. The appeal of Moros Ali was dismissed by this Court
because he had escaped from the provincial jail, while the appeal of Moro
Ausalin had been withdrawn. We have thus before us only the appeal of Moro
Jawad.

While the commission of the crime charged is not in effect questioned,
appellant Jawad contends that the evidence identifying him as one of the
offenders merits no consideration for the following reasons; (1) If witness
Maria Tobel had really known him as a customer of the store in question, why did
she not immediately reveal his identification when the crime was investigated in
the morning after its commission, and why did she have to wait until another
crime was committed and investigated? (2) Witness Florita Cabiligno did not have
a clear mind at the time she allegedly saw the appellant, and she was in a state
of confusion because of the gunshot wound. (3) Witness Lim Ih Eng could not have
seen the appellant because at the very first opportunity when the house was
ransacked, he escaped away; and if he had really seen the appellant because the
latter used to buy from the aforesaid store, why did he not point to the
appellant during the investigation of the crime? It is also argued that his
defense of alibi is corroborated and strengthened by evidence which was not
rebutted; that Jaji Mora, a tenant in a coconut plantation, and Rogelio la Chica
both testified that the appellant was with them on the night of the crime in
another place, unshelling coconuts; that even appellant’s co-accused testified
not only that they did not know him but that he was not with them on the night
of the robbery.

The issue thus refers to the sufficiency of the evidence identifying
appellant Jawad as one of the offenders. The records reveal that Lim Ih Eng and
Maria Tobel knew the appellant because the latter used to buy cigarettes and
sugar from them; that in the evening in question they saw him in a room lighted
not only by a lamp but also by the flashlights the robbers used in ransacking
the nooks and corners of the house; that the malefactors were not masked. We
have carefully examined and studied the entire evidence and are convinced that
the appellant had been sufficiently identified.

The delay in incriminating the appellant should not militate against the
validity or competency of the supporting proof. It is reasonable to suppose that
said delay was due to the fact that it was only on March 28, 1953, that Maria
Tobel again saw the appellant since the date of the crime, considering that a
person may know another without being able to fully describe him. The witnesses
in this case had to see and be confronted with the person of the appellant in
order to identify him. Thus, when Maria Tobel saw the appellant pass by with a
police officer for investigation for another crime, she readily recognized him
as one of the participants in the crime committed in the store in question. It
is noteworthy that the witnesses have not been shown to harbor any grudge or
prejudice against the appellant.

We find, however, that the penalty imposed by the lower court is erroneous.
The leg injury inflicted on Florita Cabiligno required hospitalization for more
than 30 days. Said physical injury is covered by paragraph 4 of Article 363 of
the Revised Penal Code. Accordingly, the robbery committed should be punished in
accordance with paragraph 4 of Article 394. The proper penalty is prision mayor
in the maximum period to reclusion temporal in its medium period, which must be
imposed in the maximum degree, because there are three aggravating
circumstances, namely, nightime, dwelling, and abuse of superior force, without
any mitigating circumstance.

Wherefore, it being understood that appellant Moro Jawad is sentenced to
undergo imprisonment for an indeterminate period of not less than 8 years and 1
day, prision mayor, and not more than 14 years, 10 months and 21 days, reclusion
temporal, the judgment appealed from is in all other respects affirmed with
costs against said appellant. So ordered.

Bengzon,
Montemayor, Reyes, A., Baustista Angelo, Labrador, Concepcion, Reyes, J.B.L.,
Endencia, and Felix, JJ., concur.