THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FELINO SIMON Y CUILAO, ET AL., DEFENDANTS. FELINO SIMON Y CUILAO AND REMIGIO DE VERA Y SEBRANO, DEFENDANTS AND APPELLA…

The above-named accused were charged, together with Felix Sarmiento
and Romulo Ranin, in the Court of First Instance of Manila with the
crime of attempted robbery in an inhabited .house with homicide and
frustrated homicide.

After trial, the court a quo (Judge Conrado M. Vasquez;
presiding) absolved Sarmiento and Ranin on insufficiency of evidence to
establish guilt beyond reasonable doubt, but found the accused Felino
Simon and Remigio de Vera guilty of the crimes of murder and frustrated
murder, and imposed upon them the corresponding penalties for those
crimes.

However, on motion of accused de Vera, the court (Judge Felix Q.
Antonio presiding) modified its judgment, with respect to de Vera only,
as follows:

“WHEREFORE, in view of the foregoing, the judgment
of this Court of November 29, 1960, is hereby modified with respect to
the accused Ticmxgio do Vera only, as follows:

“WHEREFORE,
the Court finds the accused  Remigio do Vera guilty beyond reasonable
doubt. as principal of the crime of homicide and frustrated homicide,
aggravated by the circumstance of treachery, and hereby sentences him
for the crime of homicide with respect to the killing of Coo Too, to
suffer an indeterminate penalty from 12 years of prision mayor, as the minimum, to 20 years of reclusion temporal,
as the maximum, with the accessories of the law, to indemnify the heirs
of the deceased, Coo Too, jointly and severally, with his co-accused,
Felino Simon, in the sum of P6,000.00 without subsidiary imprisonment
in case of insolvency, and for the crime of frustrated homicide for the
shooting of Chua Sam, to suffer an indeterminate penalty from 6 years
of prision correccional as the minimum, to 12 years of prision mayor, as the maximum, with the accessories of the law, and to pay 1/4 of the costs.”

Both Felino Simon and Remigio de Vera interposed the instant appeal.

We agree substantially with the findings of fact of the trial court,
insofar as these appellants are concerned, which are as follows:

Chua Sam is a Chinaman engaged in selling “puto” (native cakes). In
one of his early morning rounds, at about four o’clock on 4 October
1958, he went to deliver his, goods to a sari-sari store at
2450 San Anton Street, Sampaloc, Manila. Arriving in a tricycle, he
knocked at the door. The door was opened and a hand reached for him,
held him by the front of his shirt, and pulled him inside the store.
Once inside the store, Chua was told to squat, and he did. He saw
Benito Co, alias Co Too, a Chinese helper. in the store, lying on the
floor, face down and hands tied. He saw also a man holding a gun, and
this man was shorter than the one who pulled Chua inside the store.

While Chua was in squatting position, the smaller man shot him and
then shot Co Too. Immediately thereafter, the taller man—the man who
pulled Chua inside—and the man with the gun scampered away. Chua and Co
Too also managed to flee in different directions, with Chua hailing a
taxi and telling the driver to bring him to the hospital; but the
driver, seeing his passenger wounded, brought him instead to Precinct 2
of the, Manila police where a policeman accompanied Chua to the North
General Hospital. Co Too (who apparently managed to untie his hands)
was, later found by policemen sprawled on the street some distance from
the store and was taken to the same hospital, where he died of shock
and hemorrhage due to gunshot wound at the right molar region,
fracturing the molar bone and cricoid cartilage, lacerating the tongue
and the left carotid artery.

Chua Sam was treated for: “1. Wound, gunshot, thru and thru, point
of entrance, neck lateral right, POX chest, postero-lateral, level of
4th rib, along the post axillary line, left; 2. Intra-thoracic injury;
3. Shock, secondary”, which could have produced death but for the
timely and skillful treatment at the hospital.

Police investigators, who rushed to the scene of the crime that same
morning of 4 October 1958 and took pictures inside the store, were
unable to discover any fingerprints; however, they found empty shells
and slug of a .38 caliber pistol. No sign of a struggle was seen, and
money in a box and the goods in the store were found intact.

The main factual issue in this case is the identification of the two
men whom Chua Sam encountered inside the store standing over the
helpless Co Too. The prosecution rested its case on this issue on the
sole testimony of Chua Sam; on the other hand, the defense insinuates
that Chua Sam identified those two men to be the accused-appellants
Felino Simon and Eemigio de Vera as a result of police inducement.

Although uncorroborated, we find nothing incredible in the testimony
of the witness Chua Sam. When he was pulled inside the store, he came
face to face with the assailants. The place, which the pictures (Exhs.
“L”, “L-3” & “L-4”) show not to be a large establishment, was
lighted with four long fluorescent lamps set in a row. Proof of motive
for the otherwise senseless killing is not essential; but it could well
be that the assailants realized that they were known to their victims,
and, for this reason, wanted them liquidated.

Chua Sam testified that he knew the appellants before the incident,
and that he had seen them loitering in San Anton Street. When the
original four defendants (Simon, Vera, Sarmiento and Ranin) were lined
up before him by the police, at the time Chua was confined at the
hospital but after he regained consciousness, the witness pointed to
appellants Felino Simon and Remigio de Vera.

The trial court has remarked Chua’s “sincerity and straightforward
manner of giving his testimony”. And while the police exceeded their
authority in maltreating Sarmiento and Ranin, until they confessed, as
it was found by the court a quo in acquitting this pair, Chua
Sam never incriminated these defendants, a fact which strengthens his
credibility and at the same time belies the insinuation that the police
merely put the words into his mouth to clinch their case. If they had
instructed Chua Sam on what to say, they would have seen to it that his
testimony dovetailed with the confessions extorted r r from Ranin and
Sarmiento.

The defense of both the accused-appellants is difficult to believe.
Felino Simon testified that he slept in his house at 2327-H San Anton,
Sampaloc, Manila, from 9 o’clock in the evening of 3 October 1958 until
his wife awakened him at 7 o’clock the following morning to inform him
of a commotion in the Chinese store across the street. Simon’s house is
barely eight meters from the store, and while his wife admitted that
she was a light sleeper, she claim to have heard no gun-fire.

De Vera’s alibi is that he was also sound asleep at the time of the
incident, having passed out after a drinking spree at about 5 o’clock
in the afternoon of 3 October 1958, and did not wake up until 9 o’clock
the following morning. It might be true that a friend of his, Carlitos
de Guzman, dropped by de Vera in the morning of 3 October 1958 to
invite him to his birthday on 12 October, but that upon suggestion of
de Vera, Guzman decided to celebrate his birthday right then and there,
the two consuming four bottles of Tanduay rum and a case of beer; but
Guzman left the house of de Vera at 5 o’clock in the afternoon and did
not return until 9 o’clock the following morning, thus leaving
unaccounted for where de Vera was during Guzman’s absence.

Standing independently of any other evidence, the actions of Simon
and de Vera in committing the crime show conspiracy: they were both
inside the store when Chua unsuspectingly knocked at the door on that
fatal dawn; lying prostrate was Co Too, rendered defenseless y] by the
two appellants; one opened the door while the other , I stood guard
“with a gun; and their instant and simultaneous flight from the scene
of their crime after shooting their victims all show identity of
design. Prom these facts also, treachery in the commission of the
misdeed is made manifest, since the squatting Chua Sam and the
prostrate Co Too were both unarmed and plainly unable to put up any
effective defense; thus the accused ran no risk whatever in shooting
both Chinamen.

No attempted robbery in an inhabited house was proven at all,
although two separate crimes of murder and frus- trated murder, both
qualified by treachery, were fully established. However, the appellants
cannot be convicted and punished for murder and frustrated murder,
since the information filed against them is only for attempted robbery
in an inhabited house with homicide and frustrated homicide (U.S. vs.
Campo, 23 Phil. 368; People vs. Alonzo, L-4405, July 31, 1954). The
appellants can thus be held guilty only of homicide and frustrated
homicide, aggravated by treachery, as correctly held by Judge Antonio
in the amended judgment in de Vera, which should be made extensive to
the other accused-appellant Felino’ Simon.

WHEREFORE, the appealed decision is modified both
accused-appellants, Remigio de Vera and Felino Simon, are found guilty
of the crimes of homicide and frustrated homicide, aggravated by the
circumstance of treachery. For the killing of Co Too, each of them
shall suffer an indeterminate penalty ranging from twelve (12) years of
prision mayor, as minimum, to twenty (20) years of reclusion temporal,
as maximum, with the accessory penalties set by the law; to indemnify,
jointly and severally, the heirs of Co Too in the sum of P6,000.00,
without subsidiary imprisonment in case of insolvency.

For the shooting of Chua Sam, each of the appellants shall also
suffer an indeterminate penalty of not less than six (6) years of prision correccional, as the minimum, and not more than twelve (12) years of prision mayor; as the maximum, with the accessories of the law; add to pay the costs.

And it appearing that the alleged confessions of Felix Sarmiento and
Romulo Ranin were obtained through violence, the trial court is
instructed to refer the records of the case to the Department of
Justice, after reading of the sentence to appellants herein, for
investigation and such administrative action against the persons found
responsible as the facts may warrant.

Finally, the separate action for damages for the injuries to Chua Sam is hereby reserved.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.