G.R. No. L-35465. May 31, 1984
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. KARUNSIANG GUIAPAR AND SAPAL DADAS, DEFENDANTS, KARUNSIANG GUIAPAR, DEFENDANT-APPELLANT.
MAKASIAR, J.:
Honorable David P. Avila of the Court of First Instance (CFI) of
Cotabato City in Criminal Case No. 40, entitled “People of the
Philippines vs. Karunsiang Guiapar and Sapal Dadas,” sentencing to death
Karunsiang Guiapar for robbery with homicide qualified by treachery,
and aggravated by evident premeditation, abuse of superior strength, and
craft.
On August 26, 1970, an information (docketed as Criminal Case No. 40)
for robbery with homicide was filed in the CFI of Cotabato City as
follows:
“The undersigned First Assistant Provincial Fiscal accused
Karunsiang Guiapar and Sapal Dadas, of the crime of robbery with
homicide, committed as follows:“That on or about June 3, 1969, in the Municipality of Nuling,
Province of Cotabato, Philippines and within the jurisdiction of this
Honorable Court, the said accused, in company with Karim Abo who is
still at large conspiring, confederating together and helping one
another and with intent of gain, by means of force and violence against
person, did then and there willfully, unlawfully and feloniously take
and carry away one (1) revolver, caliber .38, with Serial No. LA-695,
valued at P400.00 and pocket money containing P70.00 cash, Philippine
currency, belonging to Demetrio Fernandez without the consent and
against the will of the latter to the damage and prejudice of said
Demetrio Fernandez in the aforesaid sum, and by reason or on the
occasion of such robbery, the said accused, armed with a hard wood and
hunting knife with intent to kill, conspiring, confederating together
and helping one another, did then and there willfully, unlawfully and
feloniously assault, hit, attack and stab said Demetrio Fernandez with
said hard wood and hunting knife, and as a result thereof, said Demetrio
Fernandez sustained several stab wounds which directly caused his
death.“Contrary to law” (p. 7, rec.).
Nuling and Sultan Kudarat are one and the same municipality.
Upon arraignment on October 26, 1970 (p. 20, CFI rec.), both accused pleaded not guilty.
On January 5, 1971, the prosecution presented its first two witnesses:
Dr. Rogelio Chua, attending physician to the deceased victim, and
Patrolman Rakman Tomas (p. 19, rec.).
On March 17, 1971, one of the accused, Sapal Dadas, through counsel,
manifested his intention to change his plea. After being appraised of
the consequences of his change of plea, Sapal Dadas was re-arraigned.
He pleaded guilty to the crime of robbery with homicide. After hearing
on the same day, he was sentenced to reclusion perpetua (p. 20,
rec.; TSN, March 17, 1971, pp. 4-12). With the consent of the trial
court, and the People, said Sepal Dadas was allowed to testify for the
defense. He exculpated his co-accused, Karunsiang Guiapar, from any
participation in the commission of the crime charged.
On March 24, 1971, the prosecution closed its evidence with the
testimonies of Kasan Lampak, an inmate in the municipal jail of Sultan
Kudarat at the time of the commission of the crime, and Patrolman
Marumpil Lilang (p. 21, rec.). Kasan Lampak was presented as an
eyewitness. The next day, March 25, 1971, the defense closed its
evidence with the testimony of the accused-appellant, Karunsiang Guiapar
(p. 22, rec.).
The facts as recapitulated by the Solicitor General are as follows:
“At about 5:00 a.m. on June 3, 1969, policeman Demetrio Fernandez
of Sultan Kudarat, Cotabato, opened the door of the municipal jail to
let out appellant Karunsiang Guiapar, Sapal Dadas, Karim Abo and Kasan
Lampak, all detainees, so that they may attend to their personal
necessities. As soon as the first three were out of the cell door,
appellant struck Pat. Fernandez with a piece of 3 x 3 wood in the left
occipital region. Pat. Fernandez fell to the floor. Sapal Dadas took
the hunting knife of Pat. Fernandez and stabbed him with it in the
abdomen. On his part, Karim Abo kicked the prostrate policeman. After
doing the above, the three prisoners took the service revolver and
wallet containing P70.00 of Pat. Fernandez and fled. Prisoner Kasan
Lampak remaining in the cell (pp. 3-7, TSN, March 24, 1971).“Patrolman Rakman Tomas was the companion of Pat. Fernandez as
guard in the municipal building of Sultan Kudarat from 2:00 to 6:00 a.m.
that day of June 3, 1969. At about 5:10 a.m., he heard the opening of
the steel door of the prison cell. Almost simultaneously, he also heard
a call for help. He rushed to the cell. He saw Pat. Fernandez
sprawled near the cell door bathed in blood. He asked Kasan Lampak who
assaulted Pat. Fernandez. Kasan Lampak informed him that the three
prisoners, appellant, Sapal Dadas and Karim Abo were the ones who did
it. He also asked Pat. Fernandez who was still strong and able to talk
who assaulted him. He received the same information. He immediately
went out the municipal building to capture the escaping prisoners, but
he was unsuccessful. He returned to the municipal building. He noticed
that the service revolver and wallet of Pat. Fernandez which he knew
contained P70.00 were missing (pp. 9-13. 16-17, TSN, January 5, 1971).“Pat. Marumpil Lilang was one of the policemen assigned to relieve
Pat. Fernandez and Pat. Tomas at 6:00 a.m. on June 3, 1969. At about
5:00 a.m., he was awakened by a commotion at the prison cell. He
proceeded to the place and found Pat. Fernandez sprawled on the floor
near the cell door bathed in blood. His revolver was missing. Prisoner
Kasan Lampak was inside the cell. He brought Pat. Fernandez to the
hospital (pp. 20-Â24, TSN, March 24, 1971).“At the hospital, Pat. Fernandez was examined and operated on. He
was found suffering from the following injuries: (a) stab wound in the
abdomen, caused by bladed weapon; and (b) contusion and abrasion in the
left occipital region, caused by a blunt instrument. The wound was
fatal. After the operation, Pat. Fernandez died (Exhibit A; pp. 3-6,
TSN, January 5, 1971).“According to Kasan Lampak, the night before the killing of Pat.
Fernandez, appellant brought inside the cell the piece of 3 x 3 wood
identified as Exhibit B and kept it under his bed. The act of appellant
was not unusual because the prisoners were allowed to cook inside the
cell. That night, appellant told Kasan LamÂpak that Sepal Dadas, Karim
Abo and he planned to escape. Appellant tried to induce Kasan Lampak to
join. Kasan Lampak declined because his case for which he was in jail
was nearing settlement (pp. 5-6, 14-16, TSN, March 24, 1971).“Appellant was recaptured only after about ten (10) months from
his escape. He was apprehended in Carmen, Cotabato (p. 47, TSN, March
25, 1971). Following his recapture, he was immediately charged before
the trial court for robbery with homicide” (pp. 4-7, Brief for the
Appellee; p. 113, rec.).
On March 31, 1971, the trial court rendered its decision, the dispositive portion of which reads as follows:
“WHEREFORE, the Court finds the accused, Karunsiang Guiapar, in
conspiracy with Sapal Dadas and Karim Abo, guilty beyond reasonable
doubt as co-principal by direct participation, of the crime of robbery
with homicide, defined and penalized under paragraph No. 1 of Art. 294
of the Revised Penal Code, with the qualifying circumstance of treachery
and with the aggravating circumstances of evident premeditation, abuse
of superior strength, and craft by beffiending the victim policeman,
without any mitigating circumstance to offset the same, and hereby
imposes upon said accused the capital punishment of death; to indemnify
the heirs of Pat. Demetrio Fernandez the sum of P4,000.00, to pay the
Municipal Government of Sultan Kudarat, Cotabato, the value of the
service revolver in the sum of P450.00; to pay the sum of P70.00 to the
heirs of Pat. Demetrio Fernandez representing the sum of money taken by
the accused; to indemnify the heirs of said Demetrio Fernandez the sum
of P4,000.00 and to pay the one third of the costs.“In view of the youthfulness of the accused who claims to be
Twenty-five (25) years old and his susceptibility to reform, it is
respectfully recommended that the death penalty be commuted to life
imprisonment.“The piece of wood, Exhibit B, is hereby confiscated in favor of the state. SO ORDERED” (p. 18, rec.).
Thus, this appeal.
Appellant interposes this single assignment of error —
“The trial court erred in convicting the accused Karunsiang
Guiapar after having rendered the decision convicting his co-accused on
the strength of the latter’s testimony that he committed the offense
alone” (p. 79, rec.).
The assigned error is without merit.
Appellant hinges his appeal on the testimony of co-accused Sapal Dadas
given on March 17, 1971 (p. 82, rec.). This testimony consists of two
parts: (a) that pertinent to Sapal Dadas’ own participation in the
crime (TSN, March 17, 1971, pp. 7-12); and (b) that pertinent to the
appellant’s involvement in the crime (ibid., pp. 17-28).
WE note that the first part of Sapal Dadas’ testimony was given only to
provide the said Sapal Dadas, having already pleaded guilty as charged, a
chance to testify and clarify on his participation in the crime. The
trial court stated that said testimony was “just for that purpose”
(ibid., p. 7). It is therefore insufficient to exonerate a co-accused
from any fault or participation in the commission of the crime charged.
The lower court acquiesced in the testimony of Sapal Dadas that it was
Karim Abo, and not KarunÂsiang Guiapar, as the prosecution argues, who
hit deceased Demetrio Fernandez in the base of his head with a piece of
wood (ibid., p. 11). Appellant herein now proposes that the lower
court, by such acquiescence erred in subsequently finding Karunsiang
Guiapar guilty of the offense charged (pp. 88-89, rec.).
The proposition is untenable. WE reiterate that the testimony on which
the above statement is based was made only to determine the
participation of Sapal Dadas in the commission of an offense to which
said Sapal Dadas had already admitted guilt. WE note further that the
tenor of the statement saying that Karim Abo hit Demetrio Fernandez with
a piece of wood is only descriptive of the circus stances of the
commission of the crime as testified to by Sapal Dadas. The pertinent excerpt from the transcript reads:
”COURT:
xx xx For purposes of ascertaining his participation in the crime
charged, the Court allowed the defense to place said accused on the
stand and testify as to his participation in the commission of the
crime. As a result, said accused admitted having directly participated
in the killing of Pat. Fernandez, using his knife to stab the victim.
After he had fallen to the floor, having been hit by Karim Abu with a piece of wood in the base of his head, he was stabbed by the accused xx x” (TSN, March 17, 1971, p. 11; Italics Ours).
The trial court merely reiterated Sapal Dadas’ testimony without affording it credence.
And yet, assuming that the statement underscored did import a judgment
by the trial court that Karim Abo inflicted the injury to the base of
the deceased’s head, still We rule that the same cannot preclude a
subsequent ostensibly inconsistent finding of the same court that it was
Karunsiang Guiapar, not Karim Abo, who hit the deceased with a piece of
wood. Criminal Case No. 40 named only Karunsiang Guiapar and Sapal
Dadas as accused. Karim Abo was not joined as party-defendant therein.
A judgment rendered against Karim Abo in said case therefore would be
null and void. To hold otherwise would run counter to the
constitutionally guaranteed rights of the accused to be heard by himself
or counsel, to defend himself in court, to have counsel, to be informed
of the accusations against him, to be present at the trial, and to
confront and cross-examine the witnesses against him. The judgment
rendered against Karim Abo, if one may concede it to be, can be no more
than a mere error of the court, which the said lower court may rectify
in the course of the trial. The judgment rendered against Karunsiang
Guiapar effected the correction.
Finally, appellant hoped to cast suspicion on the witness Kasan Lampak. He states:
“In its decision, the lower court took into account the testimony
of Kasan Lampak who according to the lower court is the ‘star witness.’
We submit that Kasan Lampak is not a star witness, but a last-minute
witness of the prosecution. This finds basis in the categorical
statement of the prosecution, after presenting Dr. Rogelio Chua and Pat.
Rakman Tomas, that it had no other witnesses aside from he two. xx xxxx xx xx
“Indeed, where did the so-called ‘star witness’ come from if
according to the prosecution, it had no other witnesses? Kasan Lampak
was all the time available to the prosecution. He was one of those
detained in the jail together with his co-accused. If he was an
eyewitness to the crime, why did the prosecution not present him before
the other two witnesses were presented?” (pp. 89-90, rec.).
However, WE agree with the People.
“It is respectfully manifested that the manifestation of the
Fiscal was lifted out of context. The following circumstances show that
what the Fiscal meant by his manifestation was that he had no more
witnesses insofar as Sapal Dadas was concerned inasmuch as he had
already admitted his guilt:“1. Even before the manifestation was made, Pat. Tomas had
testified that he was told by Kasan Lampak that he saw the commission of
the crime (p. 12, TSN, January 5, 1971). This negates the claim that
the presentation of Kasan Lampak as a witness was an afterthought and
that he was trained or coached to testify against appellant.“2. Right after Sapal Dadas was sentenced, counsel for
appellant filed a motion to defer the transfer of said accused to the
National Penitentiary so that he may be utilized as witness for
appellant. The trial court pointed out that the provincial jail was
congested. To accommodate appellant, the Fiscal manifested that he will
try to expedite the presentation of his witnesses, but that one of his
witnesses, ‘a prisoner who was in jail at that time,’ an obvious
reference to Kasan Lampak, was not available on that day. xxxx xx xx
“It is clear from the foregoing that since the beginning the
existence of Kasan Lampak as a witness and the intention of the Fiscal
to present him on the witness stand was made manifest to the court and
to appellant. Appellant should not, therefore, say that Kasan Lampak is
a ‘last-minute witness” (pp. 13-14, 15-16, Appellee’s Brief; p. 113,
rec.).
In addition, We note that a counsel presenting his party’s witnesses has
the discretion, at a given stage of the trial as to the sequence of
presenting his witnesses. This discretion emanates from his duty of
safeguarding the interests of his client (53 Am. Jur. 359-360, cited in
Revised Rules of Court of the Philippines, Vol. II, Vicente J.
Francisco, 1966, p. 324). Finally, whether or not Kasan Lampak is a
“last-minute witness” is of no moment, because what is significant is
the credibility of his testimony.
WE now determine the question of credibility.
WE recall that the defense presented only two witnesses: Sapal Dadas,
appellant’s co-accused, convicted upon his own plea of guilty, and
KarunÂsiang Guiapar, the appellant himself.
Appellee reiterates the lower, court’s proposition that Sapal Dadas’
testimony, being one of a co-accused, is polluted and undeserving of
credence. WE modify this proposition. What is clear from Our past
decisions is that the testimony of a co-accused is subject to grave
suspicion insofar as it may benefit such co-accused/witness (People vs.
Cañete, No. 30491, 43 SCRA 14 [Jan. 21, 1972]; People vs. Orzame,
L-17773, 17 SCRA 161 [May 19, 1966]; U.S. vs. Manabat, No. 16717, 42
Phil. 569 [Dec. 22, 1921]). Where no such benefit is expected, such
testimony may be afforded credence. In this latter case, what matters
is the cogency or inherent probability of the testimony (People vs.
Orzame, supra) viewed with other competent corroborating
testimonies (U.S. vs. Remegio, No. 12822, 37 Phil. 599 [Feb. 11, 1918]).
Sapal Dadas’ testimony is wanting in these letter aspects.
The corroborating testimony of Karunsiang Guiapar, needless to say, is
self-serving. Necessarily, it is subject to suspicion. And as shown
next, said testimony, together with that of Dadas’, is not credible.
The defense’s version is that Karunsiang Guiapar did not participate in
any manner in inflicting injury to the deceased, nor did he participate
in any manner to perpetrate the crime; that it was Karim Abo, a
co-escapee, and presently still at large, who hit Demetrio Fernandez
with a piece of wood; that it was the same Karim Abo who forced
Karunsiang Guiapar at gunpoint to escape with him and Sapal Dadas; and
that Karunsiang Guiapar escaped with the two others for fear that Karim
Abo might kill him if he did not.
The testimonies of the defense witnesses do not support the version.
Appellant herein testified that there were four of them in jail at the
time of the commission of the crime: Karim Abo, Sepal Dadas,
KaÂrunsiang Guiapar and Kasan Lampak (TSN, p. 31, March 25, 1971). If
it were true that Karunsiang Guiapar escaped with Karim Abo and Sapal
Dadas because Karim Abo threatened to kill him if he did not (TSN,
ibid., pp. 34-35; March 17, 1971, p. 21), WE wonder why Kasan Lampak was
not equally threatened.
Both witnesses also testified that it was Karim Abo who fled first from
jail; he was followed 40 meters behind by Sapal Dadas. Karunsiang
Guiapar followed Sapal Dadas 20 to 30 meters behind (TSN, March 25,
1971, pp. 42-44; March 17, 1971, pp. 23-24). At a distance of 60 to 70
meters, We wonder how Karim Abo could have effectively threatened herein
appellant during an escape.
Karunsiang Guiapar further testified that at a certain junction of the
National Highway, the escapees parted ways (TSN, March 25, 1971, p. 44);
and that he proceeded alone from there to the municipality of Carmen
where he was apprehended by enforcement agencies ten months after
(ibid., p. 46). Assuming that there was in fact a threat on the life of
Karunsiang Guiapar at the time of escape, upon the circumstances
described by the accused himself, said threat did not persist after the
escape.
WE clearly perceive in the actuations of the appellant herein a
deliberate intent to escape. And as correctly observed by the People,
such flight is evidence of guilt.
The prosecution presented four (4) witnesses. Three of them, Dr.
Rogelio Chua, Patrolmen Rakman Tomas and Marumpil Lilang testified on
the circumstances prior to or after the commission of the crime. The
other witness, Kasan Lampak, testified as an eyeÂwitness to the actual
commission of the crime.
Kasan Lampak testified, among others, that on or about June 3, 1969, the
three prisoners, Karunsiang Guiapar, Sapal Dadas and Karim Abo called
the attention of the jail guard on duty, Patrolman Demetrio Fernandez,
to open the jail gate to allow them to answer the call of nature (TSN,
March 24, 1971, p. 7). Since this was a normal procedure in jail, the
patrolman obliged. While the guard was closing the jail door after the
three inÂmates had gone out, Karunsiang Guiapar struck the guard at the
base of the back of his head with a piece of wood (TSN, March 24, 1971,
p. 5). As the said guard was falling down, Sapal Dadas grabbed the
hunting knife from the guard’s waist and stabbed the latter with it in
the abdomen. As this was going on, Karim Abo kicked the falling guard
(ibid., p. 6). Thereafter, the three fled.
According to Kasan Lampak, the night before the escape Karunsiang
Guiapar invited him to escape with them. He refused said invitation
accordingly because his own case was about to be settled (ibid., p. 5).
In addition, he testified that the piece of wood which Karunsiang
Guiapar used in the assault was brought inside the cell by
accused-appellant the night before the offense (ibid., p. 14).
WE take the testimony of witness Kasan Lampak as credible. WE reiterate
the lower court’s declaraÂtion that there is no reason to doubt said
testimony (pp. 14, 16, rec.). WE concede that at the time of the
commission of the crime, Kasan Lampak was himself detained for homicide
(TSN, March 24, 1971, p. 9). But that does not militate against the
credibility of his narration inasmuch as he does not stand to gain
anything by his testimony. Prior to the time he gave said testimony, he
was already in fact a free man. Karunsiang Guiapar hit the deceased on
the base of the back of his head with a piece of wood.
Nonetheless, granting arguendo, that he was not the perpetrator of the
assault on the guard’s head, such fact does not militate, nay even
mitigate his liability for the crime charged.
The declaration of the deceased, as testified to by Patrolman Rakman
Tomas (TSN, Jan. 5, 1971, p. 16) as to the circumstances of the assault
against said deceased, corroborates Kasan Lampak’s testimony that the
three escapees (including herein appellant) were the perpetrators of the
assault. WE agree with the State that the deceased’s declaration
qualify either as a “dying declaration” or a part of the res gestae admissible in evidence in court.
Meanwhile, the testimony of Kasan Lampak on how the assault was
consummated — Karunsiang Guiapar hitting the deceased with a piece of
wood, Sepal Dadas stabbing the deceased with a knife, and Karim Abo
kickÂing said deceased as the latter was falling — reveals a concert of
action towards a single objective. There was conspiracy. Perforce,
Karunsiang Guiapar would still be guilty of the crime charged as a
co-conspirator and a principal by direct participation.
Upon the testimonies of the witnesses and the foregoing discussions, We
cull the following facts of the case: On or about June 3, 1969, at
about 5:00 o’clock in the morning, three prisoners, Karunsiang Guiapar,
Sapal Dadas and Karim Abo, got out of the prison cell of the
municipality of Sultan Kudarat on the pretext or having to answer the
call of nature. Upon being allowed out, one of them hit the guard on
the base of the back of his head with a piece of wood; the other stabbed
the said guard in the abdomen with the latter’s own knife; the third
kicked the guard even after the wound has already been inÂflicted. One
of the three took the gun of the guard as they fled the scene of the
crime; the other brought the guard’s knife with him in the escape. The
guard died not long after.
WE determine the intention of the offenders by their acts, prior to,
contemporaneous with and subsequent to the commission of the crime.
There is no doubt that escape was intended by the offenders. But if
escape were the sole objective, then the same could have been attained
after the first assault (hitting the guard on the head with a piece of
wood). The kicking and the stabbing of the guard were unnecesÂsary to
effect the escape. Equally unnecessary was the taking of the guard’s
gun and knife. These subsequent acts would merely delay the escape.
Clearly, robbery was equally intended and, in fact, consummated. The
death of the guard resulting from the injury he sustained during the
robbery qualiÂfies the offense to robbery with homicide. As long as
homicide resulted during, or because of, the robbery, even if the
killing is by mere accident, robbery with homicide is committed (People
vs. Mangulabnan, et al., L-8919, 52 O.G. 6532 [Sept. 28, 1956]); it is
only the result obtained, without reference or distinction as to the
circumstances, causes, modes or persons interÂvening in the commission
of the crime that has to be taken into consideration (People vs.
Saliling, L-27974, 69 SCRA 427 [Feb. 27, 1976]; People vs. Arpa, et al.,
L-26789, 27 SCRA 1037 [April 25., 1964]).
Further, whenever a homicide has been committed as a consequence of or
on the occasion of a robbery, all those who took part as principals in
the commission of the crime are also guilty as principals in the special
complex crime of robbery with homicide although they did not actually
take part in the homicide unless it clearly appeared that they
endeavored to prevent the homicide (People vs. Bautista, L-25095, 49
Phil. 389 [Sept. 18, 1926]; U.S. vs. Macalalad, L-2558, 9 Phil. 1, [Oct.
8, 1907]). There is no showing that Karunsiang Guiapar endeavored to
prevent the injury to the deceased. It is of no consequence whether or
not said Karunsiang Guiapar hit the deceased on the base of the latter’s
head; nor does it matter whether or not he took the guard’s gun at the
time of the commission of the crime. Robbery with homicide was
committed, and Karunsiang Guiapar is guilty thereof together with his
co-accused.
Finally, We consider the circumstances appreÂciated by the lower court
in the imposition of the proper penalty. The lower court found
Karunsiang Guiapar guilty of the crime of robbery with homicide “with
the qualifying circumstance of treachery and with the aggravating
circumstances of evident preÂmeditation, abuse of superior strength, and
craft by befriending the victim policeman, without any mitiÂgating
circumstance to offset the same x x x” (p. 18, rec.).
Appelee concedes that the aggravating circumÂstance of craft is not shown by the evidence of this case. WE agree.
“A careful examination of the evidence does not show any support
for this finding of the trial court. There is no proof that the three
assailants gained the confidence of Pat. Fernandez by pretending to be
his friends. Besides, craft involves intellecÂtual trickery and cunning
on the part of the accused (Reyes, The Revised Penal Code, 1969 ed.,
Book I, p. 349). The mere act of befriending the victim cannot be said
to be trickery or cunning” (p. 16, Appellee’s Brief).
The opening of the jail by the deceased guard was normal at about 5:00
o’clock in the morning each day to permit the prisoners to attend to
their personal necessities (TSN, March 25, 1971, p. 39).
To properly appreciate evident premeditation, it is necessary to
establish with proof, as clear as the evidence of the crime itself, (1)
the time when the offender determined to commit the crime; (2) an act
manifestly indicating that the culprit had clung to his determination;
and (3) a sufficient lapse of time between the determination and the
execution to allow him to reflect upon the consequences of his act
(People vs. Jardiniano, L-37191, 103 SCRA 530 [March 30, 1981]; People
vs. Lim, L-34397-99, 71 SCRA 249 [June 10, 1976]; People vs. Tiongson,
et al., L-31228, 47 SCRA 243 [Oct. 24, 1972]). Evident premeditation is inherent in crimes against property (People vs. Daos, No. 40331, 60 Phil. 143 [April 27, 1934]); but it may be considered in robbery with homicide it there is evident premeditation to kill besides stealing (People
vs. Pagal, et al., L-32040, 79 SCRA 570 [Oct. 25, 1977]; People vs.
Nabual, et al., L-27758, 28 SCRA 747 [July 14, 1969]). Evident
premeditation must be duly proved (People vs. Lacson, L-46338, 102 SCRA
457 [Jan. 27, 1981]) and clearly established (People vs. Rizal,
L-43487-89, 103 SCRA 282 [Feb. 26, 1981]; People vs. Gida, L-41419, 102
SCRA 70 [Jan. 19, 1981]; People vs. Roncal, L-26857-58, 79 SCRA 509
[Oct. 21, 1977]).
Concededly, there are badges of premeditation in the case at bar: (a)
the conspiracy earlier disÂcussed; (b) the admission by Sapal Dadas that
he and Karim Abo planned to kill Fernandez days before the date of
escape; (c) one of the escapees bringing a piece of wood inside the
prison cell the night before the assault; and (d) the alleged invitation
to escape extended by Karunsiang Guiapar to Kasan Lampak the night
before the escape.
WE note however that with reference to the appellant, these badges clearly do not indicate evident premeditation to kill
the guard on duty. What is clear from the conspiracy is the intention
to rob and to disable. Even the stabbing by Sapal Dadas of the deceased
in the latter’s abdomen does not in itself manifest an intention to
kill as the wound on the abdomen was not per se fatal. MeanÂwhile, the
admission of Sapal Dadas to a plot to kill Fernandez extended only as
between said Sapal Dadas and Karim Abo. Also, the bringing of the piece
of wood inside the prison cell by one of the prisoners the night before
the assault, does not insinuate any premeditation to kill; because
accordÂing to undisputed testimony, the same was normal practice since
the prisoners sometimes cooked food inside their cell. Finally, the
alleged invitation to escape made by Karunsiang Guiapar to Kasan Lampak
cannot be interpreted to cover an invitation to kill the guard.
Perforce, We cannot affirm the trial court’s appreciation of the
aggravating circumstance of evident premeditation in the case at bar.
WE recognize earmarks of treachery in the commission of the crime herein.
“The assault on the deceased was sudden and unÂexpected to the
point of incapacitating the deceased to repel or escape from it.
Appellants adopted a method which tended directly to insure the
accomplishment of their objective with no risk to themselves from any
defense that the deceased might have been able to make” (People vs.
Araja, L-24780, 105 SCRA 133, 149).
The stabbing of the victim as he was falling from the blow on the base
of the back of his head is a positive evidence of treachery (People vs.
Garcia, L-32071, 105 SCRA 325 [July 9, 1981]).
Meanwhile, We cannot affirm the trial court’s finding that abuse of
superior strength attended the commission of the crime. Superiority in
number does not necessarily mean superiority in strength (People vs.
Eliazaga, et al., L-2487, 86 Phil. 364 [May 18, 1950]). There is no
marked difference in physical strength here to warrant the appreciation
of the attending circumstance of abuse of superior strength (People vs.
Capillas, et al., L-27177, 108 SCRA 173, [Oct. 23, 1981]; People vs.
Gatch, L-27251, 103 SCRA 207 [Feb. 26, 1981]) notwithstanding that one
of the assailants was armed with a piece of wood. The deceased had a
gun and a knife. The fact that he did not have the opportunity to use
them does not justify the appreciation of abuse of superior strength in
this case. Properly, that fact serves to bolster further the finding of
treachery. In any case, assumÂing there was abuse of superior
strength, the same would be subsumed in treachery (People vs. Santiago,
et al., L-12860-61, 110 Phil. 385 [Dec. 29, 1960]).
Finally, We recall the testimony of Patrolman Tomas that prior to the
incident, Patrolman Fernandez counted the money in his wallet in the
presence of the former; and that therefore said Patrolman. Tomas knew
that the deceased had P70.00 in his wallet at the time of the assault.
Immediately after the assault, Patrolman Tomas discovered that the
wallet with its contents were missing. Evidently, the escapees effected
their conspiracy to rob the victim of said wallet and its contents.
WHEREFORE, FOR LACK OF NECESSARY VOTES, DEFENDANT-APPELLANT IS HEREBY SENTENCED TO RECLUSION PERPETUA. THE INDEMNITY IN FAVOR OF THE HEIRS FOR THE DEATH OF THE VICTIM IS HEREBY INCREASED TO THIRTY THOUSAND (P30,000.00) PESOS.
IN ALL OTHER RESPECTS, THE JUDGMENT APPEALED FROM IS HEREBY AFFIRMED.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion, Jr., Guerrero, Abad Santos,
De Castro, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.
Aquino, J., see concurrence.
CONCURRING OPINION
AQUINO, J.:
As Karunsiang Guiapar is a Non-Christian, reclusion perpetua
may be imposed upon him pursuant to section 106 of the Administrative
Code of Mindanao and Sulu which is apparently still in force (People vs.
Mori, L-23511-2, January 31, 1974, 55 SCRA 382; People vs. Bakang,
L-20908, January 31, 1969, 26 SCRA 840).