THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DIEGO OPERO Y COSIPAG, ET AL., ACCUSED, DIEGO OPERO Y COSIPAG, DEFENDANT-APPELLANT.

Automatic review of the death sentence imposed on Diego Opero for
robbery with homicide with which he was charged in the Circuit Criminal Court
of Manila, together with Reynaldo Lacsinto and Milagros Villegas, who, however,
did not appeal their conviction with much lesser penalty, the last-named, as a
mere accessory after the fact.  Another
accused, Asteria Avila was acquitted.

In his brief, appellant raised only the question of the propriety
of the imposition of the death penalty on him, with the following assignments
of error:

“1. THE LOWER
COURT ERRED IN NOT CONSIDERING ARTICLE 4, PARAGRAPH 1 OF THE REVISED PENAL CODE
IN DETERMINING THE CRIMINAL LIABILITY OF THE ACCUSED.

“2. THE TRIAL
COURT ERRED IN NOT CONSIDERING ARTICLE 49, PARAGRAPH 1 OF THE REVISED PENAL
CODE IN IMPOSING THE PENALTY ON THE ACCUSED.”

For the facts of the case, the narration of which in both the
People’s brief and that of appellant does not vary as to the essential ones, We
could very well quote from the Appellee’s brief, being the more comprehensive
and complete, the following:

“At about 4:00 o’clock in the morning of April 27, 1978,
Salvador Oliver, a GSIS security guard assigned to the House International
Hotel at Ongpin Street, Binondo, Manila, was informed by Demetrio Barcing,
another security guard, that the latter picked up a little girl about three
years old loitering at the second floor of the building.  Rafael Ordoña, a janitor of of the House
International Hotel, told Oliver that the little girl is residing at Room 314
of the hotel.  Oliver called up Room 314
by tele­phone and when nobody answered, he and Barcing brought the little girl
to said Room 314 (pp. 6, 7, & 8, t.s.n., June 15, 1978).  Upon reaching Room 314, Oliver knocked at the
door, and when nobody answered, he pushed the door open but he smelled foul
odor emanating from the room.  Oliver
covered his nose with a handkerchief and together with Barcing and the little
girl, they entered the room where they saw prostrate on a bed a dead person
with the face down and both feet tied. 
Oliver called up the homicide division of the Manila Police.  Patrolman Fajardo who was assigned to
investigate the report of Oliver, together with some funeral parlor men arrived
at the scene, and they saw a small baby crying and trying to get out of a crib
near the bed of the dead person.  (pp. 9,
10 & 11, t.s.n., Id).

“The dead body at Room 314 of the House International Hotel
was that of Liew Soon Ping, Room 314 had been ransacked and personal belong­ings
thrown all around.  The hands and feet of
the dead person were tied and the body was bloated.  A towel was tied around the mouth of the
victim.  Photographs of the dead person
and the condition of the room were taken under Patrolman Fajardo’s supervision
(pp. 19, 20, 21, 22, 23 & 24, t.s.n., June 15, 1978).

“Patrolman Fajardo came to know that the occupants of Room 314
were Dr. Hong, his wife Liew Soon Ping who is the victim in this case, their
three children and two maids, namely, Mila and Ester (pp. 26 & 27, t.s.n.,
Id).  After con­ducting a preliminary
inquiry around the vicinity of the incident, Patrolman Fajardo made an advance
report (Exh. “O”; pp. 32, 33 & 34, rec.) naming therein three
suspects, namely, Diego Opero, Milagros Villegas, Asteria Avila and a fourth
unidentified suspect.  The names of these
suspects were furnished by neighbors of the victim to Patrolman Fajardo (pp. 28
& 29, t.s.n., Id.).

“After establishing the identity of the suspects, a follow up
team of Manila Policemen composed of Patrolmen Luis Lim and Servande Malabute
was formed to further investigate the case. 
A separate police team composed of Sgt. Yanguiling and several policemen
were sent to Leyte and Samar to track down the suspects (pp. 30 & 31,
t.s.n., Id.).

“Dr. Hong, the victim’s husband who was in Cebu when the
incident in his residence was committed was contacted by the police and
informed about the death of his wife. 
Dr. Hong came back immediately from Cebu and reported to the
police.  He (Dr. Hong) made an inventory
of the personal effects found missing in his residence, valued at P30,221.00
(pp. 31, 32 & 33, t.s.n., Id; Exhs. ‘R’ and ‘R-1’).

“While the case was under investigation, the homicide division
of the Manila Police, received a radio message (Exh. p. ‘T-1’, p. 40, rec.)
relayed thru Col. Narciso Cabrera, Chief of the Detective Bureau of the Manila
Police, that Reynaldo Lacsinto one of the suspects could be found in a school
house in Moriones, Tondo, Manila. 
Another radio message (Exh. ‘T’, p. 41, rec.) was received by the police
that two other suspects in the case, namely, Diego Opero and Asteria Avila were
picked up by the Samar P.C. and some of the missing articles, namely, one (1)
camera, flashlight, bill fold, and other personal belongings were recovered
from them (pp. 35 & 36, t.s.n., Id).

“Reynaldo Lacsinto was taken to police head­quarters and after
appraising him of his rights un­der the constitution, his statement was taken
in the presence of his father (pp. 37, 38 & 39, t.s.n., Id; Exhs. ‘U’ &
‘U-1, pp. 42, 43, 44, 45, 46, 47 & 48, rec.).  In his said statement to the police, Lacsinto
admitted his participation and narrated in detail the commission of the robbery
in Room 314 of the House International Hotel.

“The Samar P.C. turned over three other sus­pects, namely
Diego Opero, Milagros Villegas and Asteria Avila to Sgt. Yanguiling who brought
said suspects to Manila and turned them over to the homicide division of the
Manila Police, together with some of the stolen articles (pp. 31 & 32,
t.s.n., June 16, 1978).  Statements of
these three suspects (Exhibits ‘B’, ‘C’ and ‘D’, respectively) taken by the
Samar P.C. were also turned over by Sgt. Yanguiling to the homicide division
(pp. 34 & 35, t.s.n., Id).  Opero was
investigated further at the Manila Police Headquarters and he gave a supplemental
statement (Exh. ‘FF’, pp. 70-74, rec.; p. 36, t.s.n., Id) admitting that he had
robbed the victim and identified some of the missing articles recovered from
his possession (pp. 41 & 42, t.s.n., Id). 
He described in detail how he planned the robbery and named the rest of
his co-accused as willing participants. 
He also narrated in his said supplemental statement that he and his
co-accused Lacsinto subdued the victim by assaulting her, tying up her hands
and feet stabbing her and stuffing her mouth with a piece of pandesal (pp.
70-74, rec.)

“In her statement to the Manila police (Exh. ‘GG’, pp. 74
& 75, rec.) Milagros Villegas identified the stolen clothes which were
given to her by Opero.  (pp. 44, 45 &
46, t.s.n., Id)

“The third suspect, Asteria Avila told the Ma­nila police that
she was not a party to the crime and upon advice of her lawyer she did not give
any further statement.  (p. 47, t.s.n.,
Id)

“A reenactment of the crime at the crime scene was held under
the direction of Opero portraying – his role, with Lacsinto depicting his part,
and pic­tures of the reenactment were taken (pp. 51, 52, 53, 54, 55, 56, 57,
58, 59 & 60, t.s.n., Id; pp. 79­-99, incl., rec.).

“The body of the victim Liew Soon Ping was autopsied by Dr.
Angelo Singian, then Chief of the Medico Legal Division of the Western Police
District.  The body was identified by the
victim’s husband.  Dr. Singian examined
the body of the victim and issued a death certificate (Exh. ‘AA’), and the
necropsy report (Exh. ‘BB’), with the following findings:  1) a pale yellowish band across the eyes of
the victim caused by the application of a towel, or broad piece of cloth across
the eyes; 2) a pale yellowish band across the mouth caused by a similar
material as the one applied across the victim’s eyes, which was tied across the
mouth; 3) contusion and hematoma on the upper and lower lips caused by a blunt
instrument; 4) abrasions on the right side of the chin; 5) broad linear mark of
clothing material on the neck; 6) cord or ligature marks on the left and right
arm, indicating that both arms were tied; 7) abdomen distended with gas, due to
decomposition; 8) epiglotis, hematoma and contusion on the right side of the
tongue; 9) contusions and hematoma on the right cheek; 10) superficial stab
wound measuring 0.8 cm. on the right side of the chin caused by a sharp bladed
instrument; 11) superficial stab wound on the mid-axilliary line caused by a
sharp bladed instrument; 12) stab wound on the left forearm; 13) cord markings
on both feet.

“Internal findings reveal an impacted bolus of white bread
measuring 3 x 2.5 cm in the oropha­rynx. 
The tongue has contusion on the right lateral side and an abrasion
across the middle portion.  The larynx
and trachea are markedly congested.  The
cause of death was due to ‘asphyxiation by suffocation’ with an impacted bolus
into the oropharynx and com­pression of the neck with a broad clothing around
the neck” (pp. 6-18, incl., t.s.n., June 16, 1978; Exh. ‘BB’, pp. 62 &
63, rec.).”

In his first assignment of error, appellant advances the theory
that he never intended to kill the deceased, his intention being merely to rob
her, for if indeed he had the intention to kill her, he could have easily done
so with the knife, and therefore, his liability should be only for robbery.

Appellant’s theory finds no basis in the law or in
jurisprudence.  It has been repeatedly
held that when direct and intimate connection exists between the robbery and
the killing, regardless of which of the two precedes the other, or whether they
are committed at the same time, the crime committed is the special complex
crime of robbery with homicide.^[1]
If the circumstances would indicate no intention to kill, as in the instant
case where evidently, the intention is to prevent the deceased from making an
outcry, and so a “pandesal” was stuffed into her mouth, the
mitigating circumstance of not having intended to commit so grave a wrong may
be appreciated.^[2]
The stuffing of the “pandesal” in the mouth would not have produced
asphyxiation had it not slid into the neckline, “caused by the victim’s
own movements,” according to Dr. Singian. 
The movements of the victim that caused the “pandesal” to
slide into the neckline were, however, attributable to what appellant and his
co-accused did to the victim, for if they did not hogtie her, she could have
easily removed the “pandesal” from her mouth and avoided death by
asphyxiation.

It may not avail appellant to contend that the death was by mere
accident for even if it were so, which is not even beyond doubt for the sliding
of the pandesal into the neckline to produce asphyxiation could reasonably have
been anticipated, it is a settled doctrine that when death supervenes by reason
or on the occasion of the robbery, it is immaterial that the occurrence of
death was by mere accident.^[3]
What is important and decisive is that death results by reason or on the
occasion of the robbery.^[4]
These Spanish doctrines were cited by this Court in People vs. Mangulabnan, et
al., 99 Phil. 992.

Appellant would also have Article 49, paragraph 1 of the Revised
Penal Code apply to him, and faults the court a quo for having
failed to do so.  The provision cited
reads:

“Art. 49.  Penalty to
be imposed upon the principals when the crime committed is different from that
intended.  – In cases in which the
felony committed is different from that which the offender intended to commit,
the following rules shall be observed:

“1. If the
penalty prescribed for the felony committed be higher than that cor­responding
to the offense which the accused intended to commit, the penalty corresponding
to the latter shall be imposed in its maximum period.

xx      xx         xx         xx.”

The foregoing provision has been applied only to cases when the
crime committed befalls a different person from the one intended to be the
victim.  This was the explicit ruling in
the case of People vs. Albuquerque, 59 Phil. 150-153, citing decisions of the
Supreme Court of Spain.^[5]

In the instant case the intended victim, not any other person,
was the one killed, as a result of an intention to rob, as in fact appellant
and his co-accused, did rob the deceased. 
As stated earlier, what may be appreciated in appellant’s favor is only
the mitigating circumstance of not having intended to commit so grave a wrong
as that com­mitted, under paragraph 3 of Article 13 of the Revised Penal Code,
an entirely different situation from that contemplated under paragraph 1,
Article 49 of the same Code, where as already explained, the different felony
from that intended, befalls someone different from the intended victim, as when
the person intended to be killed is a stranger to the offender, but the person
actually killed is the offender’s father, thereby making the intended felony
which is homicide different from the crime actually committed which is parricide.

Notwithstanding the presence of the mitigating circum­stance of
not having intended to commit so grave a wrong as that committed, there still
remains one aggravating circumstance to consider, after either one of the two
aggravating circumstances present, that of superior strength and dwelling, is
offset by the mitigating circumstance aforesaid.  The higher of the imposable penalty for the
crime committed, which is reclusion perpetua to death, should therefore
be the proper penalty to be imposed on appellant.  This is the penalty of death as imposed by
the lower court.

WHEREFORE, the judgment appealed from being in accordance
with law and the evidence, except as to the non-appreciation of the mitigating
circumstance of having no intention to commit so grave a wrong as that
committed, which nevertheless does not call for the modification of the penalty
of death as imposed by the lower court, is hereby affirmed.  Cost de oficio.

SO ORDERED.

Teehankee, Barredo, Makasiar, Aquino, Concepcion, Jr.,
Fernandez, Guerrero, Abad Santos, and De
Castro, JJ., concur.

Melencio-Herrera, J., in the
result.

Fernando, C.J., did not take
part.

^[1]
People vs. Hernandez, 46 Phil. 48.

^[2]
People vs. Sia Bonkia, 60 Phil. 1; U.S. vs. Samea, 5 Phil. 227.

^[3]
People vs. Mangulabnan, 99 Phil. 992.

^[4] Id.,
citing Decisions of the Supreme Court of Spain, November 26, 1892 and January
12, 1899.

^[5]
Decision of October 20, 1897 and June 28, 1899.