G .R. No. L-16595. February 28, 1962
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. PRIMITIVO PINGA ALIAS TIBOY, ET AL., DEFENDANTS, PRIMITIVO PINCA ALIAS TIBOY AND PASCUALITO ADORA ALIAS LITOY, DEFENDA…
PER CURIAM:
Peter, were charged with Robbery in Band with Multiple Homicide and
Serious Physical Injuries. They voluntarily pleaded guilty to the
following Amended Information:—
“The undersigned Assistant Provincial Fiscal of Samar, accuses Primitivo Pinca alias Tiboy, Pascualito Adora alias Litoy, Venerando Pinca alias Bandoy, Armando Cerbito alias Narciso, Nery and Valentin Crisologo alias Peter of the crime of Robbery in Band with Multiple Homicide and Serious Physical Injuries committed as follows:
That
on or about October 18, 1958, at about 1:00 o’clock in the morning, in
sitio Cadahonan, municipality of Gamay, province of Samar, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, fully armed with deadly weapons, conspiring, confederating and
mutually helping one another, with intent of gain and benefit, and by
means of violence and intimidation upon persons and force upon things,
with treachery and premeditation, did then and there wilfully,
unlawfully and feloniously, forcibly entered the house of one Ambrosio
Montallana by passing through a hole in the kitchen of the said house,
an opening not intended for entrance or egress; and while thus inside
the house, the above accused simultaneously attacked, assaulted, shot
and wounded the occupants in the house who were then in their sound
sleep, namely: Ambrosio Montallana, Donato Arceno, Gregorio Ortiz and
Teodoro Montallana, with the use of carbines, pistol cal. .45, Japanese
rifle and bolos which the said accused had then provided themselves for
the purpose, thereby inflicting upon the person of said Ambrosio
Montallana, Donato Arceno, Gregorio Ortiz and Teodoro Montallana
multiple grave wounds on the different parts of their bodies, which
injuries caused the instantaneous death of the first three (3) persons,
and seriously inflicting upon said Teodoro Montallana, a 10 year old
child, a grave wound on his left external ear involving the mastoid
process and internal squint of both eyes and loss of hearing of his
left ear, and further tied to one of the posts in the house the person
of Virginia Tan de Montallana, wife of the deceased Ambrosio
Montallana, and threatened her with death should she will not divulge
the hiding place of their money, and then and there, the aforesaid
accused, who, with intent of gain, wilfully, unlawfully and
feloniously, took, stole and carried away with them the following, to
wit:
| CASH in the total amount of …………………… | P5,000.00 |
| One (1) ring 14 Kt w/birthstone valued at .. |
35.00
|
| One (1) ring ordinary valued at……………….. |
6.00
|
| One (1) necklace 12 kt valued at……………….. |
17.00
|
| One (1) necklace, chinese gold valued at…….. |
28.00
|
| One (1) necklace, american gold, valued at…. |
60.00
|
| One (1) wrist-watch (Elgin) valued at…….. |
120.00
|
| One (1) flashlight (Eveready) valued at …. |
5.00
|
| One (1) flashlight (Hongkong) valued at …. |
3.50
|
| One (1) hatchet valued at………………………….. |
3.50
|
| One (1) shelter half (tent) valued at………… |
15.00
|
| One (1) iron-pot valued at………………………… |
2.00
|
| Two (2) gantas rice valued at…………………… |
_____2.00
|
|
P5,297.00
|
all belonging to the late Ambrosio Montallana and
his family, against the will and consent of the latters, to the damage
and prejudice of the owners hereof in the total losses of FIVE THOUSAND
TWO HUNDRED NINETY-SEVEN PESOS (P5,297.00), Philippine Currency.That
the aggravating circumstances in the commission of the crime were: By
taking advantage of night time to better commit the crime; the
deadliness of high-powered firearms used, which were all unlicensed
carbines, pistol cal. .45, Japanese-rifle, and bolos; the superiority
in strength; uninhabited place; by forcibly entering the dwelling of
the aforementioned offended parties thru a hole not intended for
entrance or egress.”
after which, Atty. de la Cruz, for the defense, was granted leave,
upon his petition, to prove some mitigating circumstances, such as:
lack of intention to commit so grave a wrong as that committed and
incomplete self-defense. After the reception of the evidence,
consisting of the testimony of several defense witnesses and
prosecution rebuttal witnesses, the Court rendered judgment, the
dispositive portion of which reads—
“PREMISES CONSIDER, this Court declares Primitivo Pinca alias Tiboy and Pascualito Adora alias
Litoy guilty of the crime of robbery with triple homicide and serious
physical injuries with three (3) aggravating circumstances and with
only one (1) mitigating circumstance to offset them and sentences them
to suffer DEATH PENALTY and the accessory penalty provided for in Art.
40 of the Revised Penal Code; to indemnify jointly and severally the
widow, Virginia Tan Vda. de Montallana, in the amount of P6,000.00 for
the death of Ambrosio Montallana and, the heirs of Gregorio Ortiz and
Donato Arceno at P6,000.00 each; to indemnify Teodoro Montallana in the
amount of P1,000.00. Defendants Venerando Pinca alias Bandoy, Valentin Crisologo alias Peter and Armando Cerbito alias
Narciso, Nery, the Court sentences them to suffer a penalty of
RECLUSION PERPETUA, with the accessory penalties provided for in Art.
41 of the Revised Penal Code and to indemnify the heirs of the deceased
as stated above, the widow of the deceased Ambrosio Montallana, the
heirs of Donato Arceno and Gregorio Ortiz and to the boy, Teodoro
Montallana, as stated above. Defendants are further sentenced to pay
jointly and severally Mrs. Virginia Tan Vda. de Montallana the amount
of P5,297.00 for the cash and jewelries and personal effects taken by
the herein defendants from the house of the victims. Exh. “5” (Exh. “E”
for the prosecution) a carbine; Exhs. “7” and “7-a”, both are carbines
(Exhs. “G” and “G-1” for the prosecution); Japanese Rifle Exh. “6”
(Exh. “F” for the prosecution); Pistol Exh. “8” (Exh. “H” for the
prosecution) and bayonet Exh. “10” are ordered confiscated in favor of
the government. Exh. “B”, a gold ring with birthstone; Exh. “C”, a gold
wedding ring, Exh. “D”, gold chain with a cross; Each. “D-1”, gold
chain with a cross; Exh. “D-2”, cash in the amount of P37.00 and Exh.
“I”, hatchet belonging to the deceased Ambrosio Montallana are hereby
ordered returned to the widow, Mrs. Virginia Tan Vda. de Montallana.”
The case is now before Us on automatic review in view of the penalty imposed upon Primitivo Pinca alias Tiboy and Pascualito Adora alias Litoy. The other accused did not appeal.
The circumstances upon which the two appellants base their claim for mitigating circumstances, may be summarized as follows:—
Appellant Primitivo Pinca alias Tiboy, declared that
between 5:00 and 6:00 o’clock in the morning of October 18, 1958, he
and his co-accused, one of whom was his brother Venerando Pinca,
started for a journey from barrio Calomotan to Mapanas, Gamay, Samar,
taking with them some clothing and a circular saw for sale and one
carbine. Upon reaching Mapanas, Pascualito Adora, alias
Litoy, mentioned to him the house of the deceased Ambrosio Montallana,
who had plenty of cash, which place he knew, having once worked in the
coconut plantation of said Montallana; that between him and Adora, but
without the knowledge of the other accused, they planned to rob the
place; that their group arrived in the vicinity at about 5:00 o’clock
in the afternoon, but they bided their time under the coconut trees in
the plantation. When it was quite dark, Adora left alone to ascertain
whether the occupants were already asleep; upon Adora’s return, the
group proceeded to the house, but they found the household still awake.
While waiting for the inmates to retire, several policemen arrived at
the house of Montallana, who left at about 10:00 o’clock at night. When
silence prevailed in the house, Pinca and Adora passing thru a hole in
the kitchen, used for urinating, entered the house. The two proceeded
towards the living room, in the process of which Adora stepped on
something which produced noise and awakened Ambrosio Montallana, who
started to get up. This was seen by Pinca, because of the light coming
from a kerosene lamp on the table. Pinca fired four successive shots at
Montallana with the carbine (Exh. 5), felling him; that after firing
the shots, Pinca also saw two men (Donato Arceno and Gregorio Ortiz)
trying to get a bayonet from one of the posts of the house, causing him
to fire at them, a shot each, Adora thereafter hacked them with a bolo.
Pinca asserted that when he fired his carbine, the victims were not
asleep; Mrs. Montallana was curled up and covered with a blanket, and
when the accused uncovered her and made her to stand, she voluntarily
handed a bundle, saying: “Do not kill me, here is the money”; and that
Mrs. Montallana was tied by them to a post and gagged in order to
prevent her from screaming. This appellant also told the trial court
that it was not his intention to kill the victims; that two (2)
carbines, two (2) Japanese rifles, a .45 caliber pistol, a bayonet and
200 rounds of ammunition were found inside the house of the Montallanas
and seized by them. After committing the above acts, they left for
their home barrio, and there Pascualito Adora distributed the money in
the bag among themselves. They also agreed to contribute P5.00 each to
be spent for a requiem mass for the victims; that he repented
for his sins and while in jail, he received Holy Communion. He further
informed the Court that he squandered his share in the loot, before his
arrest; that while he thought of surrendering, he waited until he was
arrested; that he voluntarily confessed and admitted the crime to the
arresting officers and even re-enacted the same; and that he pointed to
the PC soldiers the place where the firearms and ammunitions were
hidden.
Appellant Pascualito Adora alias Litoy, confirmed the
testimony of appellant Pinca as to what had taken place the moment they
entered the house of the Montallana; that it was Pinca who fired at
Montallana and the two other deceased and he (Adora) hacked the other
two, after Pinca had shot them, because they were shouting for help and
were armed with bayonets; that it was Pinca who tied Mrs. Montallana;
that they found firearms and ammunitions in the house of the victim;
that they divided the loot and contributed P5.00 each for a requiem
mass; that he was arrested in Manila by the P.C.; that he became
familiar with the layout of the place where the crime was committed,
thru his cousin Arturo de la Cruz, whose father was a tenant of the
deceased Montallana; that he (Adora) told Pinca of Montallana’s wealth;
and that the three (3) other accused remained outside the house.
In view of said testimonies, the trial court made the following observations:—
“The mitigating circumstances invoked by the
defendants namely (1) lack of intention to commit so grave a wrong as
that committed can not be taken into consideration in the present case
because any one firing several shots to somebody and striking several
blows with bolo at a person, can not claim that his intention was not
to commit so grave a wrong as that committed; neither the defense of
incomplete self-defense can be taken into consideration because as the
prosecution aptly alleges that our Supreme Court in the case of People vs.
Buenafe, 34 Off. Gaz. page 2504, said: ‘There must be an unlawful
aggression otherwise this defense cannot be invoked.’ Even admitting
that Ambrosio Montallana and his two tenants, Danato Arceno and
Gregorio Ortiz, tried to defend themselves against the herein
defendants, said acts can not be construed as an unlawful aggression. *
* *”.
The above findings and conclusions are borne out by the evidence
produced by the appellants themselves, bringing to the fore, the fact
that the only mitigating circumstance which would favor the appellants
is the plea of guilty.
Counsel alleges that the trial court erred (1) in considering the
aggravating circumstance of uninhabited place, as a separate and
distinct aggravating circumstance from nocturnity; (2) In not
considering that treachery absorbed the circumstance of nocturnity, and
(3) In imposing the death penalty upon the appellants. In other words,
it is maintained that the three aggravating circumstances should have
been taken only as one, because they absorb each other, and there being
a plea of guilty, the proper penalty should be life imprisonment.
The aggravating circumstance of uninhabited place (despoblado) does
not exist; the aggravating circumstance of dwelling, however, is
present. It is held that the aggravating circumstances of the dwelling
and scaling were present in the commission of the crime of robbery with
homicide, “* * * because the store where it was committed is a
dwelling, the deceased Cua Loc having lived therein, and because there
is scaling when entrance is effected through an opening not intended
for said purpose. * * *. The two foregoing circumstances were certainly
not inherent in the crime committed, because, the crime being robbery
with violence or intimidation against persons, the authors thereof
could have committed it without the necessity of violating or scaling
the domicile of their victim” (People vs. Valdez, 64 Phil.,
860). In the case at bar, Montallana and the other victims were killed
by the appellants with firearm and bolo, inside the house of the
former, after having gained entrance therein, thru an opening not
intended for entrance or egress.
Except in special cases, nighttime and treachery always go together and are absorbed in the same offense (People vs. Magsiling, 82 Phil., 271; People vs.
Young, 83 Phil., 702). Nighttime cannot be considered as an aggravating
circumstance and independent of that of treachery and abuse of superior
strength (People vs. Balagtas, 68 Phil., 675). Abuse of superior strength is not treachery, although it might be absorbed by the latter (U. S. vs.
Estopia, 28 Phil., 97). Superiority of strength may be derived from the
number of assailants and the simultaneousness of the attack (U. S. vs. Lozada, 21 Phil., 287). If treachery is present, it may absorb superior strength (People vs.
Mobe, 81 Phil., 58). In the present case, the element of treachery
cannot also be successfully disputed. The position of the wounds
clearly reveals that the victims were shot in their sleep. While the
appellants deny that they were asleep; the bullet holes on the floor of
the house, however, are mute but eloquent proofs that the said victims
were at least lying down and not standing, when shot. In a case,
treachery had been taken as an aggravating circumstance when the
accused took advantage of the position of the victims who were lying
down on the sacks of the mail, unable to offer any resistance or escape
(People vs. Galang, 73 Phil., 184). Of course, the appellants
claim that the victims were prepared for the occassion, stating that
firearms were seized by the accused from the Montallana house. There
could be no truth in this allegation, for if the Montallanas were
really prepared or were anticipating the robbery, they could have
guarded against the possible infiltration of the appellants. Moreover,
the widow of Montallana denied this claim.
The crime was committed with the aid of armed men (par. 8, Art. 14, Rev. Penal Code; People vs.
Villapa, et al., 91 Phil., 189). At least, two of the accused, the
appellants herein, were armed with carbine and bolo, when the five
accused perpetrated the crime. From which We may deduce that as far as
the evidence in the case at bar is concerned, there exist three
aggravating circumstances, to wit: dwelling, treachery and the crime
was committed with the aid of armed men.
It results, therefore, that the three aggravating circumstances is
offset by one mitigating circumstance, thereby justifying the painful
imposition of the capital punishment upon the appellants. It should be
stated in this connection that the whole record shows a criminal
perversity, which entitles the State to demand the forfeiture of the
appellants’ right to live, in the name of peace, order and retributory
justice.
Wherefore, the sentence imposed in the decision, subject matter of
this automatic review, is affirmed, with costs against appellants.
Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon and De Leon, JJ., concur.