THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JAIME CAPITO @ JIMMY, ET AL., DEFENDANTS, TOMAS SUPAT, CELES­TINO COLLADO @ DODONG, AND CESAR MARATA @ LOLOY, DEFENDANTS-A…

Jaime Capito @ Jimmy,
Celestino Collado @ Dodong, Tomas Supat, Cesar Marata @ Loloy, Icot Lacaya,
Leonardo Abaa, and two John Does were accused of the crime of robbery with homicide with the attendant aggravating circumstances
of superior strength, nocturnity and dwelling, and recidivism with respect to
Tomas Supat and Ce­lestino Collado, before the Court of First I­nstance of
Zamboanga del Norte.

The trial proceeded only against Jaime Capito, Celestino Collado,
Tomas Supat and Cesar Marata be­cause Icot Lacaya and Leonardo Abaa were still
at large.

After trial, the court rendered decision ac­quitting Jaime Capito
on reasonable doubt, and con­victing Celestino Collado, Tomas Supat and Cesar
Marata of the crime charged, and sentenced each to reclusion perpetua,
to indemnify, jointly and several­ly, the heirs of the victim, Hadji Mohamad
Nol Akil, in the amounts stated in the decision in concept of damages.

Celestino Collado, Tomas Supat and Cesar Mara­ta appealed from
the decision.

The finding of facts made by the trial court with reference to
the commission of the crime and the circumstances surrounding it, except the suffi­ciency of the
evidence relating to appellants iden­tity as the perpetrators of the crime, are
not disputed.  In fact, the appellants
have adopted as their own, and have reproduced in their brief, as statement of the
facts, the findings of the trial court in that respect; they assail, however, the conclusion
of the court that the evidence has established beyond reason­able doubt the
identity of the appellants as the per­petrators of the crime, and claiming that
their de­fense of alibi has been sufficiently proven, they pray for
their acquittal.

The crime of robbery with homicide charged against the appellants
was committed on February 20, 1963, in barrio Polandoc, municipality of
Sindangan, Zamboanga del Norte.  The
victim was Hadji Mohamad Nol Akil, hereinafter referred to as Hadji Akil for
short.

The facts of the case are
as follows:

Testimony of Amina Sapihi. 
– For many years prior to February 20, 1963, the spouses Hadji Akil and
Amina Sapihi were engaged in the farming of palsy and corn, beside attending to
their coconut plantation.  After every
harvest, they placed the money proceeds from the products of their farm in a
trunk for safekeep­ing.  At about
midnight of February 20, 1963, the spouses, together with their children Abdul
Salam, Mohamad Akil, Fatima, Latip,
Susan, Haron and Juanita, and
their two grandchildren were in the house, situa­ted in barrio Polandoc,
municipality of Sindangan, Zamboanga del Norte. 
With the exception of Amina Sa­pihi, who was awake preparing her chewing
buyo, the rest of the members of the family were fast asleep.  There were three big kerosene lamps that
lighted the house, one was hanging near the door of the room oc­cupied by Hadji
Akil, another was in the room of Fa­tima,
and the other in the sale where Abdul Salem was sleeping.  The floor area of each room was about 3 x 5
sq. meters.  The main door of the house
was closed but not locked.  Soon, Amina
heard a truck stopped near the house. 
She did not bother to look out. 
All of a sudden, two persons entered the house and approached
Amina.  Amine recognized them,
although she did not know their names, because their faces were not covered
with masks, one of them, whom she pointed in court, was Jaime Capito, and
the other, whom she also pointed in court, was Tomas Supat.  She knew Capito because he was a companion of
Samat, a son of Hadji Akil, working on the national road in Polandoc; she
knew Tomas Supat because a week before the robbery, Supat came to their house
offering to sell firearm to Hadji Akil, but the latter declined, tarried
in the house and took his meal on that occa­sion.  The man (Capito) asked Amina where her
husband was.  Amina pointed to the room
where her husband was sleeping.  Both
entered the room, and the man (Capito) lifted the blanket which covered Hadji
Akil.  The latter was awakened and stood
up.  Suddenly, the two men delivered
blows on Hadji Akil.  A struggle
ensued.  Amina proceeded to the room
where Fatima and Latip were sleeping to get help.  Inside the room, she saw Celestino Collado
and Cesar Marata hogtying Latip, Haron and Fatima.  She withdrew and returned to the room of her
husband.  The struggle was still going
on.  She saw the man (Capito) holding the
hands of Hadji Akil, while the other (Supat) fired one shot in the air,
followed by two more shots at the body
of Hadji Akil.  The latter
fell to the floor.  In­stinctively, Amina
ran to the room of Fatima, but she was held by the hand by a man with a knife
in his hand, whom she pointed in court to be Celestino Col­lado.  She recognized the face of Collado because
when he took the lamp, his face was exposed to the brightness of the light.  Then Collado tied her hands, warning her not
to shout, or they will all be killed.

The robbers then ransacked the house.  A big trunk belonging to Fatima and two other
smaller trunks were forcibly opened. 
They took and carried away money in paper bills of undetermined denomination, contained in bags made of fabrics,
rings, ear­rings, bracelets and gold chains, worth P840.00; one .45 caliber
pistol, Remington, SN-830873 worth P300.00; 12 gauge shotgun, Winchester,
SN-618162, worth P200.00; and other personal effects.

After the robbers had left the house, Fatima un­tied Amina and Latip. 
Amina repaired to the room of her husband, found him covered with
the mat, already dead.

The next day, the incident was reported to the local authorities
who immediately started an investigation. 
The cadaver of Hadji Akil which appeared to be well-built (see picture,
Exhibit C), was examined by Dr. Sevillano Quiachon, health officer of
Sindangan, Zamboanga del Norte, and found the body in rigor mor­tis.  He prepared a necropsy report, Exhibits A and
A-1, and his post-mortem findings were as follows:

“1.  Wound, incised, 4 cm. x 1, cm.  With clean cut borders, located above the
eye-brow.

“2.  Wound, gunshot, thru and thru, circular in
outline 1 cm. in diameter, edges inverted with con­tused-abraded collar and an
area of blackening around the wound, located at the left hypochondriac region,
5 cm. below the left niple, directed inward, downward and posteriorly
perforating part of the heart, left lung, diaphragram, sto­mach, intestines and
right kidney, with exit, slit-like in outline, at the right infra-scapular
area, 12 cm. above the right anterior superior iliac spine.  (See sketch.)

“3.  Wound, gunshot, thru and thru, circular in
outline, 1 cm. in diameter, edges inverted with con­tuse-abraded collar and an
area of blackening around the wound located at the left lumbar region, 6 cm.
above the left anterior superior i­liac spine, directed inward and posteriorly
perforating part of descend­ing colon and left kidney, with exit, slit-like in
outline, at left portion of infrascapular
area, 22 cm. above the left anterior pos­terior iliac spine.  (See sketch.)

“CAUSE OF DEATH:

“Hemorrhage, internal and shock, secondary to gunshot wounds,
thru and thru, perforat­ing the heart and left abdomen.  (Exhibit A)”

Testimony of Abdul Salam
Akil.  – On the night of February 20, 1963, there
were three big lighted wick lamps inside the house.  While
he
was asleep, he heard three gunshots.  He
stood up and dashed to the main
door, but he was met at the door by a masked man with a knife pointed at
him.  The man kicked him, but he was able
to get hold of the foot of the man, and the latter fell to the floor, face
upward.  As he stooped to choke the
fallen man, the latter yelled – “Loloy, help”, and Loloy, who was
also masked, struck Abdul Salam Akil with the handle of a pistol on the left
side of his head, causing him injuries which required medi­cal treatment for a
period of four to six days.  (Ex­hibit F)
Loloy and the other man dragged Abdul towards the room of Fatima, and as he
was struggling, the mask of Loloy dropped to this neck, and Abdul recognized
him to be Cesar Marata.  He knew Cesar
Marata because they used to play basketball in Sindangan on opposite camps.  While he was being dragged, he saw other
persons in the house.  Once inside the
room of Fatima, his hands were tied.  The
five persons ransacked the trunks in the room. 
Soon, he heard a whistle from outside the house, and the robbers
departed, warning them not to shout, or they will be killed.

Testimony of Latip
Halid.  – He corroborated Amina and Abdul Salam Akil
as to the occurrence inside the house.  He
declared that he was able to recognize Mara­ta because the lighted lamp in the
room of Fatima was bright, and he was only a meter away from Marata.  He knew Marata because the latter’s house in
Lipakan was only a kilometer distance from his house; Marata has a mole on his face, and a gold tooth, which he often noticed when together they rode in the bus.

Testimony of Fatima Akil.  – At about midnight, she was awakened when she heard three gunshots. 
She saw two persons, who were not masked enter her room.  She recognized them, although she did
not know their names, because on previous occasions, they had been in their house,
accompanied by her brother Abdul Samal, one of them a “big man”, whom she pointed in court
to be Jaime Capito, and the other a “small man”, whom she pointed
in court to be Celestino Collado.

Samat Akil declared that
he knew Jaime Capito because together they worked in the construction of
the national road in Polandoc, and the latter used to go to the house of his
father to drink tuba.

Testimony of Mohamad
Akil – He declared that he was
awakened by three gunshots, and he saw two unmask­ed men, about two meters
away from him, one of them “big”, he did not know his name, but
pointed to him in court to be Jaime Capito, and the other “small
man”, he did not know also his name, but pointed to him in court to be
Tomas Supat.  He recognized the
“small man”, because five days before the incident at bar, he met him alone on the road to Rizon.

The evidence is not
disputed that four of the in­mates in the house had been tied with ropes.  The pieces of rope were recovered the day
after the rob­bery (exhibits G to G-7). 
Alejandro Bayo, a public school teacher in Lipakan, a friend of
appellant Marata, declared that the rope recovered by the police, was the rope
used for the flag pole in the public school of Lipakan.  The school building was about two kilometers
from the house of appellant Marata.  He
de­clared that about 7:00 o’clock in the evening of Feb­ruary 20, 1963, he
heard the barking of dogs in the premises of the school.  He went down and hid in the shop building of
the school from which vantage place, he saw five persons whom he did not
recognize, around the flag pole.  Mamerto
Baldomar declared that about 5:00 o’clock in the afternoon of February 20,
1963, while he was making copra, he saw appellant Marata, whom he already
knew before that date, with two com­panions not known to him, talking among
themselves.  He overheard Marata say
to his companions that they will go to the school after the pupils have been dis­missed from their classes. 
Marata denied the imputa­tion of Baldomar; however, he admitted that he knew
Baldomar and knows not of any
reason why the latter would
declare in the manner he did.

Appellants do not dispute
the fact that no less than two
prosecution witnesses have declared to have recognized and identified each of
the appellants on the night in question, this they so admit in their brief, and
we quote:

“Appellant Tomas Supat – of the aforementioned pro­secution
witnesses, only Amina Sapihi, wife of Hadji Nol Akil, and her son Mohamad Akil,
allegedly recognized Tomas Supat.” (p. 12 brief.)

“Appellant Celestino Collado – only prosecution witnesses
Amina Sapihi and Fatima Akil, mother and daughter, have testified that
appellant Celestino Co­llado was, in effect, among the persons who participa­ted
in the robbery-killing at the house of the victim Hadji Mohamad Nol Akil in the
evening of February 20, 1962.” (p. 15, brief.)

“Appellant Cesar Marata – among the persons in the house
whereat the robbery-killing took place, only Abdul Salam and Latip Halid (also
Amina Sapihi), son and
son-in-law, respectively, of the spouses Hadji Mo­hamad Nol Akil and Amina
Sapihi, claimed to have recog­nized Cesar Marata as one of the persons who took
part in the commission of the aforesaid crime.” (p. 17, brief.)

Appellants contend,
however, that the testimonies of the prosecution witnesses with reference to
their identity have not shown beyond reasonable doubt that they were the ones
who participated in the commission of the crime.

Case against appellant
Tomas Supat.  – Counsel for the appellant argues
that the testimony of Amina Sapihi is “highly improbable and inconsistent
with human experience” because at the time of the robbery “she (Ami­na)
did not know Tomas Supat”, ignoring, however, what the witness had
declared that “about a week
before the incident in question, Tomas Supat came to their house, was given
food, and had conversation with the victim to whom he offered to sell firearm“,
counsel reasoning thus:  “It
could only be, however, that she (Amina Sapi­hi) was not able to get so close a
look at him at that moment as to
enable her to negotiate (recognize) him on that evening, considering that, that
was the first time (when Supat asked for food and offered to sell firearm,
granting this to be true) when she first met him,” and taking into account
that the “three lamps by their na­ture could not brightly illumined the
house”, and “Amina Sapihi was sixty-six years old woman who by that
age had blurred vision, especially during night”, that Ami­na’s testimony
as to the identity of Supat, is unrelia­ble. 
And with respect to the testimony of Mohamad Akil, this is what counsel
say:  “It is more in the natural
course of things that two strangers meeting on a road casually would not recognize each other unless there is any reason for
so doing,” forgetting, however, what the witness had declared that this
“small man”, point­ing to Supat, was the one who dragged him into the
room of Fatima Akil where there was a lighted kerosene lamp, and he (Mohamad) recognized the fact of Supat who was not wearing a mask.

It will thus be observed that the impeachment of the credibility
of the prosecution witnesses against Supat is merely on conjecture.  There is no showing that the eye-sight of
Amina was either blurred, weak or defective, and taking account of the undisputed
fact that the rooms were well lighted, the size of each room was 3 x 5 square
meters, the appellant Supat was not wearing mask and about a week before the
robbery, Supat had been in the house of the victim, partook of the meal in the
house, and had conversation with the de­ceased offering firearm for sale, the
conjecture pales to nothingness in the light of so clear and positive evidence
as to the identification of Tomas Supat. 
If Amina did not really recognize Supat, there is no rea­son or motive
why the former would foist a grave accu­sation against the latter and
pinpointing Supat as one of the robbers. 
The same observation may be made with respect to the attack on the
credibility of Mohamad Akil.

The testimonies of the prosecution witnesses de­serve full faith
and credit, considering that the defense of alibi interposed by the
appellant Supat, as we shall presently show, is unbelievable.

To sustain the plea of alibi, appellant Supat pre­sented his
wife, Florentina Supat, policeman Marcelo Gimang, and Reynaldo Sator.

Tomas Supat denied having
participated in the commission of the crime. 
He claimed that from noontime on February 20, 1963, until morning of the
next day, he, together with his wife Florentina Supat and their small child,
was in Dipolog.

Florentina Supat declared
that they have seven children, the youngest was one year old.  At noontime on February 20, 1963, her husband
and herself with their youngest child, left their house at Bacongan, leaving
their six
children, to go to the house of
her father-in-law in Dipolog.  They took
a bus and arrived at about 3:00 o’clock in the afternoon in Dipolog.  Be­ing asked why they had to go to Dipolog,
she said that a certain Magdaleno Cuenca who lives in Dipolog, owed her husband
P300.00, the unpaid balance of P2,000.00, the value of a car which Supat sold
to Cuenca (exhibit 7), and Cuenca promised to pay P50.00 on that day, so they
had to go to Dipolog to collect that amount; ano­ther reason given was, because
they were building a house in Bacongan “x x x I was the one who urged him (husband) to come with me to
Dipolog because I did not know what is the measurement of the nails he will
buy.” Florentina said that Cuenca paid P50.00 that day. “Q.- In effect,
did you receive the P50.00
from Magdaleno Cuenca?  A.-
Yes, sir.” Magdaleno Cuenca, was not presented as witness.  On this point, the trial court said:

“But this document, Exhibit 7, refutes Supat‘s claim, for it po­sitively states
that he received from Cuenca the P2,000.00 therein specified in cash on
the date of its execution.  Supat cannot
re­pudiate with mere words his writ­ten admission in Exhibit 7 that he had been paid in cash by Cuenca upon the
execution thereof.”

Assuming, on the other
hand, that Cuenca promised to pay P50.00 on February 20, 1963, following the
argu­ment of appellant, it is “highly improbable and inconsistent with
human experience” that the wife bringing with her their youngest child,
leaving their six child­ren
alone in the house, and having to travel three hours to reach Dipolog, that she
should have to accom­pany her husband just to collect the small sum of P50.00, when her husband, who was the party who sold the car, could very
well do the errand; what is more incredible
is her testimony that because her husband did not know the measurement of
the nails he will buy, she had to urge him to go with her to Dipolog just for
that purpose.  It is a matter of
common knowledge that nails are of the standard size and length which a child
could buy by just mentioning its inch-length.

The attempt of the wife
to distort the truth just to be able to corroborate the alibi of her
husband may be gleaned from the following testimony given by her.

“Q.  –
Now, when were you asked to be a witness
by your husband?  A.- When my husband was
arrested that was the time when I
looked for the persons who were in the house asking them to testify.  Q.- You volunteered to testify?  A.- When I was looking for Tomas when I was
not able to go home on Good Friday, that was the time I looked for the persons
in the house to ask them to test­ify.  Q.-
Did you not volunteer the information that you were with your husband Tomas
Supat in Dipolog on Feb­ruary 20, 1963? 
A.- I did not.  Q.- So when were
you asked to be a witness for the first time? 
A.- I was already informed by our lawyer that I can testify be­cause I
was with my husband that day.  Q.- When
this case was called for trial, were you already asked to be a witness in this
case?  A.- Yes, sir.  Q.- But your name was not mentioned as one of
the witnesses when your counsel was asked to name the persons to be a wit­ness?  A.- I was only informed in the month of July
that I will be one of the witnesses.  Q.-
You mean to say this month of July, 1964? 
A.- Yes, sir.  Q.- So, until the
month of July 1964, you did not know that you are going to be a witness in this
case?  A.- We have not known that I will
be a witness in this case.”

The next witness presented to corroborate the alibi of
appellant Supat was Marcelo Gimang, policeman of Sin­dangan, who declared that
at noon-time on February 20, 1963, he rode in a ZAMTRANCO bus bound for
Dipolog, and while he was in the bus, he noticed on the road a parked Sevilla
truck with engine trouble, with many passengers on board, and one among them
was Tomas Supat.  That Supat transferred
to his bus, and they arrived in Dipolog at 3:00 o’clock in the afternoon, and
did not see Supat anymore.  That at 10:00
o’clock in the morning of the next day, February 21, he saw Supat standing near
San Vicente drug store in Dipolog.

Of the testimony of
Gimang, the trial court said:  “On
the other hand, Gimang did not say that he saw Supat’s wife transfer to the
other truck when Supat trans­ferred to it. 
If only Supat had changed bus, obviously, he and his wife and their
child could not have arrived in Dipolog at the same time, but both Supat and
his wife declared they arrived in Dipolog with their child at the same time.

“But, granting for
the sake of argument, the truth of Gimang’s testimony, yet it is a fact that
the robbery and killing of Hadji Mohamad Nol Akil took place at mid­night of
February 20, 1963, and Gimang merely said that he saw Supat in Dipolog at 3:00 o’clock in
the after­noon of that day and at 10:00 o’clock in the morning of February 21,
1963.  There is, therefore, the
probability that after 3:00 o’clock in the afternoon of February 20,
1963, Supat went to Polandoc in time to be in the house thereat of Nano Akil
and after the commission of the offense, subject of the instant case, he
returned to Dipolog with still sufficient time to rest, and then showed up near
Botica San Vicente at 10:00 o’clock in the morning of February 21, 1963, to be
seen by Gimang.  The distance from
Dipolog to Polandoc is a little over 100 kilometers.  Between the two pla­ces, the road is good and
wide enough for two motor vehicles, coming from the opposite sides, to pass by
each other; it has asphalted portions in Katipunan, Manukan and Sindangan.  It can be negotiated in less that 3 hours by
car or by bus running continously even at moderate speed.”

It is of record that Tomas Supat was convicted of the crime of
robbery in a decision dated April 6, 1956 in Criminal Case No. 2052 of the
Court of First Instance of Zamboanga del Norte. 
His conviction is not denied by him.

Case against Appellant Celestino Collado.  – Coun­sel for this appellant argues that the
testimonies of Amina Sapihi and Fatima Akil, both having declared that they
recognized the herein appellant as one of the robbers on the night in question,
are unreliable.  The credibility of Amina
Sapihi is assailed in this wise:  “Amina Sapihi cannot be relied
upon in her aver­ments that she recognized the man who held her and tied her
and then took the lamp and brought it to the room of Fatima to be Celestino
Collado because she did not yet know Celestino Collado before the subject in­cident,
and it is more in accord with the natural course of things that she could not
have well formed and retained a picture of the face of the man she pointed in
court as Celestino Collado, taking into account that her sight of the man
carrying the lamp could only be fleeting, that the face of a man hit by the
rays of a kerosene lamp at night would become shiny and his face would look
different at daytime; that she, being a woman of sixty-six years old, surely
had a fail­ing eye-sight, and that she could be mistaken in making her
identification of Celestino Collado for the events attendant to the
robbery-killing in question happened very fast and this could possibly affect
her perception adversely.” (pp. 15-16, brief) Of the credibility of Fatima
Akil, because this witness admitted that Jaime
Capito pointed a pistol at her and asked where the money and the pistol
of her father were being kept, counsel argues thus:

“Naturally, her attention was then focused on the big man
(Capito) and she could not have looked well at the small man (Collado).  Her
identification, therefore, of the small man as Celestino Collado is
unreliable, especially in the light of her declaration that she no­ticed that
the small man also went to their house be­fore the incident (p. 29, Markela),
whereas all of those also living in the said house never declared that that
small man (whom she allegedly recognized as Celes­tino Collado) went to their
house before the subject robbery-killing.”

It will thus be observed that the force of the argument is also
based on conjecture, a modus argumenti that was also resorted to
in attempting to destroy the credibility of the witnesses for the prosecution against the appellant
Tomas Supat.  In this respect, may We add
to what already has been said, that the victims of atrocities have a peculiar
aptness and capability of identifying their tormentors goaded by a feeling of an­ger, hatred and
suffering.  In the case at bar, consi­dering
the established fact that the house was well lighted, appellant Collado was not
wearing mask, and the witnesses were near to the robbers, and in the case of
witness Fatima Akil, she said
that she recognized appellant Collado because at one time she saw said
appellant in the house of her father; under those circum­stances the identification of Celestino Collado
can not be doubted.  The contention
that because other prosecu­tion witnesses did not declare that they saw Collado
on that occasion when the latter was in the house of the victim, and at which
time he was seen by Fatima Akil, appellant argues that Fatima Akil should not
be believed.  The contention is so devoid of reason and logic that
it deserves little consideration.  Let it
be remembered that the opportunity of the other members of the house­hold to see or not to have seen a visitor in the house, depended much on
so many factors which, most probably, were not present to them at the time, for
they may not have been in the house then, which opportunity, how­ever, was
available only to Fatima Akil.

Appellant Celestino Collado declared that in the morning of
February 20, 1963, he was in his house in Lopoc, Labason; in the afternoon, he
was feeding hogs and chickens; his wife is Elsa Parillo, daughter of Inocencio
Parillo, and they have five children; his house was only 5 meters away from the
house of his fa­ther-in-law; at 9:00 o’clock in the evening, he was in his
house taking care of his sick child; during that evening, the persons who were
in his house were his wife, his parents-in-law, Apolonio Parillo, the uncle of
his wife, and himself; at about 9:00
o’clock in the evening, his father-in-law called for Antonio Maglente to
request the latter to call for a doctor in town; Maglente arrived, however, the
doctor was not called anymore, because the sick child got well; Maglente went
home at 1:00 o’clock; he (Celestino) did not leave the house the whole evening;
he was arrested on February 26, 1963; at 6:00 o’clock in the morning of
February 27, 1963, he, with other prisoners, were lined-up, and were made to
put on their hats and masks covering their faces leaving an opening for the
eyes, and then the chief of police called the muslim women, and were asked if
they recognized anyone of us; the muslim women took time before thy could
answer, and then said:  “that we
were the robbers.”

Antonio Maglente was presented to corroborate appellant Collado’s
alibi.  He declared that he was 40
years old, with five children, and his house was near the house of appellant
Collado.  On February 20, 1963, he was in
the house of Inocencio Parillo, father-in-law of appellant Collado, doing some
carpentry work.  At 8:00 o’clock in the
evening of that day, he was called to the house of appellant Collado; he
responded to the call, and found the child, of appellant Collado, sick; he went
home at about 11:00 o’clock that evening; two hours later, he was again called
to the house of appel­lant Collado to go to the poblacion to call for a
doc­tor, but the doctor was not called anymore because after the first aid
treatment, the child got well; this time, he left the house of appellant at
1:00 o’clock in the morning of February 21, 1963.

On cross-examination, he said that the name of his wife is
Cristina Parillo, and he believes she is related to appellant Collado’s
father-in-law whose name is Inocencio Parillo. 
From morning of that day, Feb­ruary 20, until 11:30 o’clock in the
evening, he was in the house of Inocencio Parillo.

“Q.- You mean that from the early morning of February
20, 1963, up to 11:00 o’clock in the evening, you did not go home to see your
family?

 A.-  I returned home.

 Q.- What time?

 A.-  About 11:30 in the evening.”
(t.s.n. p. 60, Markela)

Being
asked why he was in the house of appellant Collado:

“A.-  I was requested to boil water needed in the
treatment of the sick child.”

and
although during that whole evening, as declared by appellant Collado, his
visitors were his parents-in-law, Apolonio Parillo, uncle of appellant’s wife,
and him­self, yet Maglente stayed in the house until 11:30 in the evening just
to boil water for the sick child.  Being
asked what was the name of the sick child:

“A.-  I
do not know.

 Q.- Up to this time (January 17, 1964, date of trial) you do not know
the name of that sick child of Celestino Collado?

 A.-  I do not know.” (t.s.n. p. 60 Markela.)

Being
further asked why he did not go home after his work, instead stayed in the
house of appellant Collado until 11:00 or 11:30 o’clock in the evening:

“A.-  I did not go home
because we were telling stories and after that, I helped them attend to the
sick child.” (t.s.n. p. 62, Markela.)

In connection with the
testimonies of appellant Collado and Maglente, the trial court said:

“The alibi of accused Collado cannot stand
scrutiny.  x x x Collado declared that at 9:00 o’clock in the evening of February 20, 1963, he was in the house, and the persons present
thereat were his mother-in-law, his father-in-law, his wife, and Apolonio
Parillo, the uncle of his wife.  They were
listening to a drama broadcast in the ra­dio and at the same time, they were
also helping him take care of his sick child; that at about midnight, he
requested his fa­ther-in-law to go to the house of Antonio Maglente to tell him
to call a doctor in the town, but he was not able to do so be­cause the child
got well after he and his family gave a first aid treatment.  x x
x.”

“There is nothing in Colla­do’s statement, Exhibit 3-Colla­do,
that Antonio Maglente was ever in his house at any time in the evening of
February 20, 1963, to do any errand or work for his sick child.  On the witness chair, Collado declared that
it was only at about midnight of that day that he sent for Antonio Maglente,
through his father-in-law, to fetch a doctor to treat his sick child, Tessi,
contrary to the testimony of Maglente that he went to Collado’s house twice;
first, at about 9:00 o’clock, and then, at about 11:30 o’clock in the eve­ning
in the same day.”

But, Maglente cannot be believed:

“Q.- Notwithstanding the fact that you were a family man and have several
children, on February 20, 1963, and notwithstanding the fact that you have
finished your job in the house of Inocen­cio Parillo, why did you not go home
at 6:00 o’clock but stayed up to 11:00 o’clock
in the evening?

 A.-  I DID NOT GO HOME BECAUSE WE WERE
YET TELLING STORIES AND AFTER THAT I HELPED THEM ATTEND TO THE SICK
CHILD.

 Q.- What time did you go home?

 A.-  About
11:30 in the evening be­cause I was again called.”

(t.s.n. p. 62, Markela.)

Quoting from the decision,
the Court said:

“That Maglente had never gone to Collado’s house at anytime on
the night of February 20, 1963, is further evident in that even as he said he
is a neighbor of Collado, he had never come to know the name of the latter’s
child who was sick, and in that, at first, he declared that the first time that
he went to Collado’s house was at 9:00 o’clock and two hours later, he returned
to Collado’s house in the evening of February 20, 1963, yet Collado declared
that the first time Maglente was called to his house was ‘about
midnights’.”

In view of the
self-contradiction of Maglente, and the contradiction between the testimonies
of appellant Collado and Maglente on material facts, the trial court did not
accord merit to the defense of alibi, and We find no reason to disturb
the finding of the trial court.

Case Against Cesar
Marata.  – Appellant Marata de­clared that on February
20, 1963, he was in his house in Lipakan; he was not feeling well because he
was suffering from “stomach trouble, backache and headache”; he
stayed in the house from “six o’clock
p.m. to six of clock a.m. the
following morning,” and did not leave the house.  On the morning of February 21, 1963, he,
alone, went to Dipolog to the house of his father, Jose Marata, to be treated there of his sickness. 
His father bought some
tablets for his ailment.  In June 1963,
he was ar­rested in Dipolog.  He denied
ever having gone to the house of Hadji Akil, nor having played basketball
because he was sickly and of ill-health, which testimony, however, was
contradicted by his witness, Paterno Lu­baton, who said that – “A.- Before
he was committed to jail, he was alright, x x x.” He denies that he was ever called “Loloy”,
or ever had a “gold tooth”, but he did not deny that he has a mole on
his face, as tes­tified to by Latip Halid.  To prove that he has no “gold
tooth”, he exhibited at the trial his open mouth, and the court really did
not see any “gold tooth”, however, the court made the following observation:

“x x x but when he
was asked in court to open his mouth, there was really a gap on his upper
teeth.  It is possible that he had the
“gold tooth” removed after the commission of the offense, subject of
the in­stant case, before his arrest, considering
his own admission that he cannot remember how many teeth had been pulled
out.”

Apprehensive perhaps of
his testimony of having admitted that on February 20, 1963, he was in his house
in Lipakan, which was about three kilometers distance to barrio Polandoc, scene of the robbery, in the succeeding questions to him by
his counsel, he denied that he was in Lipakan on February 20, 1963, and
affirmed that until February 21, 1963, he was in Dipolog in the house of his
father.  To quote from his testimony:

“Q.- When did you get
married?

 A.-  In 1959.

 Q.- When you got married, where did you reside with your wife?

 A.-  In Sindangan first, and after that, we came to Dipolog.

 Q.- You said you have a house in Dipolog?

 A.-  That was I think in 1962.

 Q.- And from that time on in the year 1962 up to this time (June 1964, date of trial), with the
exception when you used to come down to Dipolog particularly in February 21, 1963, where did you stay?

 A.-  In the house of my father in Dipolog.” (t.s.n. p. 68.)

But on cross-examination, he said differently:

“Q.- Now, when did you
start living in Lipakan?

 A.-  In 1962.

 Q.- Up to what time?

 A.-  1963.

 Q.- You and your wife stayed in Lipakan?

 A.-  Yes,
sir.” (t.s.n. p. 72.)

His
house was only four kilometers to the scene of the robbery.

“Q.- That place where
your house was located is not far from the provincial road, is that correct?

 A.-  More than a kilometer from the road.

 Q.- Do you know that place known as Polandoc?

 A.-  I know that place but I have not stayed there.

 Q.- You always pass thru that place in going to your place in Lipakan coming from Sindangan?

 A.-  Yes, sir.

 Q.- And you were acquainted with the place Polandoc?

 A.-  I am not well acquainted because I live in the interior.

 Q.- But you know that place?

 A.-  Yes, sir, because I usually pass by it.

 Q.- About how far, more or less, is Polandoc to your place?

 A.-  Four kilometers, more or less.” (t.s.n. pp. 71-72.)

He
admitted that he was a friend of Tomas Supat and had met him many times; he knows
Jaime Capito and he also knows Celestino Collado because he is also from
Dipolog, and they have met many times. 
(t.s.n. p. 72)

Jose Marata, father of appellant Marata, declared that he resides
in Dipolog, and his son Cesar Marata arrived in his house on February 21,
1963.  On February 20, 1963, his son was
in Lipakan.  His son reached first year
high school in Roxas College, and he never played basketball because he has always
been weak and sickly.

Bonifacia Lomarda, wife of appellant Marata, de­clared that on
February 20, 1963, her husband was in the house because he was sick, and the
next day, he left for Dipolog.

The evidence of the
prosecution has shown that appellant Marata was recognized and identified as one of the persons who
robbed the house of Hadji Akil, by no less than three witnesses, Abdul Salam
Akil, Latip Akil and Amina Sapihi.  Their
identification of the appellant was clear and positive.  Appellant was known to Latip Akil because the
former lived in Lipakan, and his house was only a kilometer distant to the
house of Latip Akil, and oftentimes, they rode together in a bus.  Latip Akil was positive that, on the night in
question, he saw appellant Marata in their house, and he recognized him because
the room was well lighted, he had no mask, and he noticed the mole on his face,
the presence of which has not been denied by the appellant for he could not
obviously deny the presence of such mole on his face, because it could not
easily be removed, except thru surgical operation, unlike the “gold
tooth” which, although at the trial in June 1964, he had no “gold
tooth” in his mouth, however, as aptly observed by the trial court –
“there was really a gap in his upper teeth.  It is probable that he had the ‘gold tooth’
removed, x x x,” which
observation of the court, in our mind, is not unfounded, because Latip Halid
declared that even at the preliminary investigation of the case before the
justice of the peace, he saw the gold tooth in appel­lant Marata’s denture.

Abdul Salam Akil also declared that when he was be­ing dragged
into the room of Fatima Akil,
the mask of the man who responded to
the call for help fell down to his neck, leaving his face uncovered, and Abdul
was able to recognize him to be Cesar Marata: 
Appellant Marata was known to Abdul because they use to play basketball
on opposite camps.  Of course, appellant Marata and his father both
denied that the former ever played basket­ball because he was sickly, but as
the trial court had observed, “x x
x it is incomprehensible why not even once was Cesar Marata treated by a
physician during all the long years, he had been living with his father,”
and both father and son could not mention a kind of medicine bought for his ailment.

Alibi as a defense must be received with
utmost caution because of the facility with which it may be concocted and
fabricated, and in order that such de­fense may be successful, it must be
proved by convin­cing evidence which reasonably satisfies the court of the
truth of such defense, and unless it meets this re­quirement, it cannot prevail
against the clear and posi­tive identification of the accused by witnesses of
the prosecution who had no motive to testify against the persons charge of a
crime; although, it is also a
set­tled rule that it is not of
the weakness of the defense of alibi that his conviction lies.  It
behooves the pro­secution to show his guilt beyond the shadow of a doubt.

Two questions, therefore, confront the court in the solution of
the case.  First, has the prosecution
evidence established the guilt of the appellants be­yond reasonable doubt?  Second, has the defense of alibi been
successfully proved by evidence which satisfy the court of the truth thereof?

That the house of Hadji Akil had been robbed on the night of
February 20, 1963, and he was the victim of foul assault which snuffed his
life, is not debated.  Neither is it
disputed that the small house of the vic­tim, with at least three rooms, the
size of each room is 3 x 5 square meters, was well lighted with big kero­sene
lamps with one lamp in each room.  The
inmates in the house, with the aid of
clear light, had full oppor­tunity to observe the movements and personal
character­istics of the intruders, they being familiar with their faces:  as to appellant Tomas Supat, who was not
wearing mask, he was not only an acquaintance but a friend who was allowed to
share the food with the family of the victim; as to appellant Celestino
Collado, he was not wearing mask when he was recognized by Fatima Akil, and
already known to the latter because on previous occa­sions, he had been in the
victim’s house in the company of Abdul Samal, a son of the deceased, who also
recog­nized Collado on the night in question; as to appellant Cesar Marata, he
was the one who planned to steal the rope of the flag pole which was used to
tie the victims, and the pieces of rope were recovered the day after the
robbery, and he was recognized by no less than three of the inmates in the
house.  Oral evidence of alibi is
so easily manufactured that it must be examined with utmost caution, and when
the defendants are identified by wit­nesses for the prosecution by clear,
explicit and positive testimonies, the alibi can not be accepted, es­pecially
when the evidence resorted to established the same, are unreliable.

Tomas Supat and Celestino Collado had been convict­ed of the
crime of robbery, and although unrelated to the crime now charged against them,
nevertheless, such evidence of the commission of identical crime infuse
persuasive influence in the over-all appreciation of the facts, for they tend
to show habit, or a design to com­mit a series of like crimes.

Examining as a whole the evidence of the appel­lants relating to
their defense of alibi, and analyzing them in connection with each
particular appellant, one cannot but note flaws and inconsistencies as pointed
hereinabove which created in the mind a serious doubt as to their
trustworthiness.  Their material
contradictions clearly reflect against the credibility of the witness.

The conspiracy among the appellants is evident.  Direct proof is not essential to show
conspiracy.  In the case at bar, the acts
of the appellants, collective­ly and individually executed, as shown by the
evidence, have clearly demonstrated the existence of a common de­sign towards
the accomplishment of the same unlawful purpose and objective.  The killing of Hadji Akil al­though
perpetrated by only two of the intruders, bears a direct relation and intimate
connection between the robbery and the killing, whether the latter be prior or
subsequent to the former, for the element of conspiracy having been clearly
established, it is unquestionable that the complex special crime of robbery
with homicide, has been consummated and all the appellants are liable therefor.

WHEREFORE, there being no mitigating circum­stance to off
set the aggravating circumstance of recidivism as to the appellants Tomas Supat
and Ce­lestino Collado, the writer of this opinion is of the belief that they
should be meted with the sup­reme penalty of death; but for lack of the
necessary number of votes among the members of the Court, the penalty of reclusion perpetua is hereby imposed.  Decision of the lower court is hereby
affirmed in all other respects as against the appellants Tomas Supat, Celestino
Collado and Cesar Marata, with proportion­ate costs among them.

Reyes, J.B.L., Acting C.J., Dizon, Makalintal, Bengzon,
Zaldivar, Sanchez, Castro, and Fernando,
JJ., concur.

Concepcion, C.J., on official
leave of absence.