PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE REPATO, ET AL., DEFENDANTS-APPELLANTS.

This is an appeal from the decision of April 30, 1964, by the Court of First Instance,
Branch II, at Rizal, in Criminal Case No. 9943, PP
vs. Jose Repato, alias Peping,
and Francisco de la Cruz, alias Pancit, also alias Francing.  At his
arraignment, the accused De la Cruz pleaded guilty and was sentenced
accordingly, leaving the other defendant, Repato, to
be tried.

After trial, Repato was convicted and
sentenced to death as follows:

In view of all the foregoing, the Court finds defendant JOSE REPATO
guilty beyond reasonable doubt of the offense charged against him.  Article 294 of the Revised Penal Code
provides that any person guilty of robbery with the use of violence against or
intimidating of any person shall suffer (sub-paragraph 1) the penalty of reclusion
perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed.  In the instant case, it was fully established
that defendants took advantage of nighttime in order to rob and that they
deliberately killed the deceased Francisco Bernal as shown by the fact that
they tied his hands and then shot him thereafter.  There are, therefore, two aggravating
circumstances in this case which should be considered in the imposition of the
penalty to the defendant.

WHEREFORE, the Court hereby imposes the DEATH PENALTY upon the
defendant.  Defendant is further ordered
to indemnify the heirs of the deceased Francisco Bernal in the sum of P822.00
as well as the value of the watch which had not been recovered in the amount of
P180.00.  The
defendant shall also pay for the proportionate part of the costs.  He is also hereby condemned to indemnify the
heirs of the deceased Francisco Bernal in the sum of P6,000.00.

After the decision in this case has become final, the Clerk of
Court will return the valise as well as the pair of binoculars to the heirs of
the deceased.

Repato escaped from the New Bilibid Prison on August
4, 1968, and is still at large. 
His escape does not affect this automatic review of the judgment of
conviction.  (People
vs. Cornelio, L-1289, June 7, 1971, 39 SCRA 435).

It appears that before the incident which gave rise to this case,
both the accused lived with one Clemente Hermogene.  All three
worked in a construction project at Balara, Quezon City, and they lived in a
bodega where the construction materials were stored.  In the evening of August 14, 1960, Hermogene
saw Repato and De la Cruz take a carbine from under
the box which all of them used as a bed. 
Repato cleaned the carbine, dismantled it, and
then wrapped the component pieces with a paper cement bag.  This bundle he inserted in another bundle
consisting of pieces of wood.  Then he
tied the last bundle and placed it in a buri
bag which was secured by De la Cruz. 
Both of the accused went out, although it was rainy and stormy; they
returned after midnight.  Upon their return, De la Cruz awakened Hermogene, who opened the door to admit them.  The two accused changed their clothes and laid down to sleep.  Hermogene did not see them bring back the bayong which they were carrying when they went
out.  Instead, Hermogene
saw that they had brought back with them a leather valise.

In the morning of the next day, August 15, 1960, the Marikina
Police Department received a report that one Francisco Bernal had been shot to
death and robbed the previous night at his residence in Mapunso,
Parang, Marikina,
Rizal.  Several
members of the police force, accompanied by the victim’s common-law wife,
proceeded to the scene of the crime.  It
was learned that the victim was an ex-Navy man and was a pensioner of the US
government.  The house was in an isolated
place, and inside they saw the victim lying face downward in the sala, with his hands tied behind his back with galvanized
wire.  The police­men sent the body to
the Funeraria Quiogue
morgue at Manila for examination by
NBI medico-legal officers.

The night of the killing, several articles belonging to the
victim had disappeared.  The missing
articles consisted of:  an
“Omega” wrist watch with the name “Francisco Bernal U.S.
Navy” engraved on the back, worth P180.00; a pair of binoculars costing
P100.00; two printed polo shirts worth P20.00; ten (10) pairs of trousers of
different kinds worth P450.00; one leather traveling trunk worth P150.00; one
traveling bag worth P45.00; one brief case worth P7.00; and cash money
amounting to P300.00.

On August 16, 1960,
Repato went to the house of his cousin, Artemio Damio, at Bo. Calsib, Aguilar, Pangasinan.  Repato had with him
a valise, a traveling bag, several pairs of pants, a pair of binoculars, a
newspaper, a jacket, and a gun.  Damio, later testifying for the prosecution, identified the
valise, the binoculars, and the carbine as articles which Repato
had brought to Damio’s house.  Damio testified
that Repato said he and others had robbed and killed
a man at Marikina,
Rizal.  Repato showed him the Manila Chronicle of August 16, 1960, which carried a
picture of the man who was killed.  Repato admitted that he and De la Cruz were the ones who
killed the Navy man and that the carbine was the instrument used.

After about two hours, Repato left Damio’s house, carrying with him the gun and a watch at the
back of which was engraved the name “Francisco Bernal.” After four
days, Repato returned to Damio’s
house and tried to pawn the watch, but Damio refused
him because the watch was stolen.  A few
days later, Damio learned that Repato
had killed someone in Bo. Bucaclio.

Damio further testified that
subsequently, he received the letter of October
3, 1960 written to him in the Pangasinan
dialect by Repato who was then detained at the
provincial jail of Lingayen, Pangasinan.  The letter spoke of “an understanding
with respect to the articles that I had left in your place . . .” Damio later surrendered to the P.C. detachment at Lingayen this letter, a traveling trunk, and binoculars.

Damio identified the carbine as the one
which Repato had shown him.  He was previously interviewed by Victorino Santiago, an investigator of the PC detachment
assigned to Rizal. 
Santiago testified that Damio told the investigators that he had jotted down the
serial number of the carbine on a torn bus ticket.  Damio took from the
wall of his house Ticket No. 45-R issued by the Pangasinan
Transportation Company, on the back of which was written 1755533, the serial
number of the firearm.

At the trial, Major Jose G. Fernandez, the chief of the
Ballistics Section of the PC, gave the opinion that evidence bullet which he
designated as “N” had been fired from the carbine rifle, Exhibit
“A”.  Dr. Jesus Crisostomo of the NBI medico-legal staff testified that he
conducted an autopsy on the body of the deceased Bernal.  He said that the cause of death was
hemorrhage, severe, secondary to multiple gunshot wounds.

Deputy Provincial Sheriff Amado C. Poquiz of Pangasinan brought to
the court the carbine after having obtained it from the Clerk of Court of the
Court of First Instance at Lingayen, Pangasinan.  It
appears that the carbine was used as an exhibit in Criminal Case No. 41732, PP
vs. Repato, et al., where Repato
was found guilty of murder for having killed one Prudencio
Vaelo at Barrio Bucaclio,
Aguilar, Pangasinan, sometime before September 1, 1960.  It appears that the carbine was the
instrument used to kill Vaelo.

Both the accused testified at the trial.  De la Cruz repudiated his sworn statement
given to the Marikina Police Department on April 6, 1961.  In that statement he mentioned Repato as his companion in killing Bernal.  But in his testimony, he claimed that he
signed the statement without understanding the contents because he hardly
understood the Tagalog dialect.  He also claimed that he was threatened with
maltreatment unless he mentioned Repato as his
companion.  The trial judge was not
convinced.  The court found that Damio’s answers contained in his statement, Exhibit
“I”, were true; and that his claim -that his companions in killing
the deceased Bernal were Damio and Hermogene – is incredible and contrary to the evidence
submitted by the prosecution.

The other accused, Repato, denied
having committed the crime with which he is charged.  He claimed that on August 14, 1960, he was employed at the Census
Bureau and that he reported for work on August
15, 1960.  He denied having
written the letter to Damio.  Like De la Cruz, Repato
failed to convince the trial court.

The trial court, summarizing its findings of fact, found that
“defendants Repato and Francisco de la Cruz, the
latter already convicted because he had pleaded guilty, had really gone into
the house of the deceased Francisco Bernal in the night of August 14, 1960 and
then after they had tied his wrist behind his back with a piece of wire
(Exhibit D-1) they shot him to death with the carbine, Exhibit “A”,
and thereafter they took and carried away with intent to gain several articles
belonging to the deceased, namely, one Omega watch on which the name Francisco
Bernal was engraved; one pair of binoculars with its leather case; some polo
shirts; and a jacket; and several pairs of pants.”

In his Brief, Repato submitted
“that a narration of the evidence presented by the prosecution and the
defense in this case would only be unnecessary.” He assigned three
errors.  Firstly, Repato contended that the lower court erred in giving full
faith and credit to the testimonies of the prosecution wit­nesses Clemente Hermogene and Artemio Damio.  He said that their testimonies “are such
as would evoke suspicion that they are merely the results of their own
concoctions, contrary to the ordinary course of human conduct, bereft of any
semblance of truth, and tainted with improper and unlawful motives as would
make them inadmissible, as competent evidence in a court of justice.” We
do not agree.  Hermogene
testified that he and the accused Repato were
co-workers in a construction project.  Repato belied this, claiming that he could not possibly be
a laborer like Hermogene because he “is a
clean-cut person, neat in appearance during the trial.” We perceive no
incongruity between a clean-cut appearance and working in a construction
project.

Hermogene also testified that after Repato had cleaned the carbine, he dismantled it and placed
it with pieces of wood inside a buri bag.  Repato claims that
it is contrary to the ordinary course of human conduct for a person to
dismantle a gun which he intends to use only a few hours later.  But it was necessary to dismantle the
carbine, in order that it would fit in the buri
bag, and in order that it would be inconspicuous among the pieces of wood in
the same bag.  Hence, there is nothing
extraordinary about Hermogene’s testimony on this
point, which indicates that Repato took precautionary
measures to avoid suspicion.

Repato also assailed Damio’s testimony as incredible.  Damio testified
that Repato went to his house in Pangasinan
on August 16, 1960 and that
Repato confessed that, together with others, he had
robbed and killed Bernal.  That a man
makes a clean breast of an act of crime to another is not unusual, if both are
related by ties of consanguinity.  Repato himself admitted that Damio
is his cousin.  Damio
also testified that he wrote the serial number of the carbine on the back of a
bus ticket.  Repato
characterizes Damio’s act as an “unusual display
of interest.” It is only a deep-seated sense of cynicism which would view
as unusual the civic-spirited act of a citizen in preserving evidence which he
suspects as pointing to a crime.  Such an
act, instead of being viewed as eyebrow-raising, should instead be commended
and en­couraged in order to assuage claims that ours is a society grown too
impersonal and uncaring.

Furthermore, the first assignment of errors banks on the improper
motive of revenge which allegedly impelled Hermogene
and Damio to testify against Repato.  It is said that in another case where Repato was accused, Hermogene is
related to the deceased, while Damio is related to
the wife of the deceased.  This
contention does not hold water, for the general rule is that the relationship
of a witness to a victim does not render the clear and positive testimony of
witnesses less worthy of full faith and credit. 
(People vs. Ricaplaza,
L-25856, April 29, 1968, 23 SCRA 374). 
Moreover, the appellant failed to prove his contention that these two
witnesses were motivated by revenge, for at the time they testified, Repato had already been convicted in the other case.  Where there is no credible evidence showing
that the witnesses are prejudiced against the accused, it is presumed that the
witnesses would not have imputed to the accused the commission of such a grave
offense if it was not true that he was really guilty thereof.  (People v. Ali, L-18519,
October 30, 1969, 29 SCRA 756).

Secondly, Repato claims that the
lower court erred in refusing to give full faith and credit to the testimonies
of the accused Repato and his witness co-accused De
la Cruz.  We perceive no such error.  De la Cruz tried to absolve Repato, and to pinpoint Hermogene
and Damio as his comrades in crime.  But De la Cruz offered no proof to
substantiate his scenario.  His testimony
controverts his sworn statement which he later sought to recant.  We find no proof that De la Cruz was
intimidated or coerced into executing and signing the statement.  He allegedly said that he was “ordered
to sign it”; whereas, Lt. Romeo Vergara, who
took the statement, testified as to the regularity of his investigation.  We grant the presumption of regularity to the
law-enforcement officer, and discount the claim to the contrary sought to be
foisted by the accused De la Cruz. 
Moreover, De la Cruz asserted that the carbine marked as “Exhibit
A” is not the one used in the robbery-killing.  But ballistic examination showed that at
least one evidence bullet recovered came from the
carbine introduced as Exhibit “A”. 
This proof, buttressed by the positive testimony of the other
prosecution witnesses, serves to demolish the posture of the accused.

With respect to Repato’s testimony, we
reject his claims of credibility for reasons already discussed in our
exposition on the first assignment of error. 
Moreover, we uphold the reliance by the lower court on the authenticity
of the letter which the witness Damio identified as
having been written by Repato.  Well settled is the rule that where the issue
is one of credibility of witnesses, the appellate court will generally not
disturb the findings of the trial court, considering that it is in a better
position to decide the question, having heard the witnesses themselves and
observed their treatment and manner of testifying during the trial, unless it
has plainly overlooked certain facts of substance and value that, if
considered, might affect the result of the case.  (People vs. Espejo, et al., L-27708, December 19, 1970, 36 SCRA 401).

Thirdly, Repato contends that
the lower court erred in convicting him of robbery with homicide and
consequently imposing upon him the extreme penalty of death.  His theory is that the three principals – De
la Cruz, Hermogene, and Damio
– committed the killing for a fee, and they committed robbery as an
after-thought.  We have given short
shrift to Repato’s effort to unload his burden of
guilt on the innocent shoulders of Hermogene and Damio.  Moreover, the
evidence shows that the accused from the very start intended to commit robbery,
and committed the killing to insure the absence of any witness.  After the incident, Hermogene
confronted De la Cruz, who admitted what he and Repato
had done.  When pressed for the source of
the articles they bore, De la Cruz admitted that: “It was from a Navy
man.  After we got the things Repato shot him.” (T. s. n. January
23, 1962 at p. 11).  Repato’s account of the incident also bears out the proper
sequence of events, for he told Damio that he and De
la Cruz had “robbed and killed the Navy man in Marikina.” (T.s.n. February 26, 1963 at p. 31, 32, 34).

The trial court found two aggravating circumstances: “that
defendants took advantage of nighttime in order to rob and that they
deliberately killed the deceased Francisco Bernal.” It appears, however,
that the prosecution failed to produce any evidence to show that the
conspirators purposely sought the cover of nighttime, or that it facilitated
the commission of the crime.  Hence, we
are unable to appreciate nocturnity as an aggravating
circumstance.  But we take note that,
according to the court a quo, the accused “deliberately
killed the deceased Francisco Bernal as shown by the fact that they tied his hands
and they shot him thereafter.” We take this passage to mean that the crime
was attended by treachery i.e., by “employing means, methods or forms in
the execution thereof which tend directly and specifically to insure its
execution, without risk to himself arising from the defense which the offended
party might make.”

In robbery with homicide, treachery is only a generic aggravating
circumstance and is not qualifying.  It
does not change the qualification of homicide to murder.  Treachery was appreciated in robbery with
quadruple homicide where the two victims were killed while bound in such a way
as to be deprived of opportunity to repel the attack or escape with any
possibility of success.  (PP vs. Madrid, L-3023, Jan. 3, 1951, 88 Phil. 1).

There is treachery when the victim was first bound before being
killed because such means tended directly and particularly to insure the
consummation of the crime without risk to the aggressors, inasmuch as thus
bound and disarmed, the victim could not defend himself in any manner against
his assailants.  (PP
vs. Ancheta No. 422, March 14, 1902; 1 Phil. 165).  A line of cases holds uniformly that the
killing of a person while bound is treacherous. 
(These rulings are exemplified by the later cases of PP vs. Saquing, L-27903, Dec. 26, 1969, 30 SCRA 934; and PP vs. Manansala, L-23514, Feb. 17, 1970, 31 SCRA 401).

We find the crime to be attended by the aggravating circumstance
of treachery.  The
Revised Penal Code, Art. 294 (1) imposes the penalty of reclusion
perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed.  Since the law prescribes a penalty composed
of two indivisible penalties, and there is present one aggravating
circumstance, the greater penalty shall be applied.

WHEREFORE, the judgment of the court a quo
is hereby affirmed by imposing upon the accused the penalty of death, with the
modification that the indemnity to be paid to the heirs of the deceased shall
be in the sum of P12,000.00.  The defendant is also ordered to indemnify
the heirs of the deceased in the sum of P822.00, as well as the value of the
watch which was not recovered, in the amount of P180.00.  The defendant shall also pay a proportionate
part of the costs.

SO ORDERED.

Teehankee, Makasiar,
Antonio, Aquino, Concepcion,
Jr., Fernandez, Guerrero, Abad Santos, De Castro, and
Melencio-Herrera, JJ., concur.

Barredo, J., agrees to impose death because appellant has escaped and is not
settled to any reduction by reason of long detention.

Fernando, C.J., and Santos,
JJ., no part.