THE PEOPLE OF THE PHILIPPINES, PLAINTIFF and APPELLEE, VS. MADRIGAL TORINO, DEFENDANT and APPELLANT.

BAUTISTA ANGELO, J.:

Madrigal Torino, together with others who are still at large, were accused
before the Court of First Instance of Zamboanga del Norte of three separate
crimes, namely, (1) robbery in band with homicide (Criminal Case No. 3111), (2)
robbery (Criminal Case No. 3138), and (3) robbery in band with serious physical
injuries (Criminal Case No. 3268). While these offenses were committed on
different dates against different persons, necessitating separate trials,
however, since the defendant made use of the same defense in all of them, the
court a quo deemed it proper to hand down only one consolidated
decision. Following the same pattern, we are now rendering the instant joint
decision.

In Criminal Case No. 3111, the court a quo sentenced the accused Madrigal
Torino to suffer reclusion perpetua, computed at 30 years, with all the
accessories of the law, to indemnify the spouses Pio Ching and Eustiquia Dawat
in the sum of P550.00, and the heirs of the deceased Alfredo Ocao in the sum of
P5,000.00, without subsidiary imprisonment in case of insolvency, and to pay
one-sixth (1/6) of the costs.

In Criminal Case No. 3268, Torino was also sentenced to an indeterminate
imprisonment of from 4 years 2 months and 1 day of prision
correccional, as minimum, to 12 years 5 months and 11 days of prision
mayor, as maximum, with all the accessories of the law, to indemnify the
spouses Demas Agad and Francisca Busca in the sum of P430.00, without subsidiary
imprisonment in case of insolvency, and to pay one-eighth (1/8) of the
costs.

In Criminal Case No. 3138, Torino was likewise sentenced to an indeterminate
imprisonment of 4 months and1 day of arresto mayor, as minimum, to 6
years 1 month and 11. days of prision mayor, as maximum, to indemnify
Isidra Velez in the sum of P1,450.00, and Isidra Velez and Juanita Galocino in
the sum of P385.00, without subsidiary imprisonment in case of insolvency, and
to pay one-half (1/2) of the costs.

The above penalties were imposed with the understanding that their maximum
duration shall not exceed 40 years.

Torino interposed the present appeal.

CRIMINAL CASE NO. 3111

In the afternoon of October 7, 1959, at about three o’clock, Pio Ching and
his family were inside their house at barrio Napuyan, New Piñan, Zamboanga del
Norte. After his wife and sister-in-law had eaten their evening meal, Pio went
to the kitchen to feed the dogs. As he opened the kitchen door three persons,
one or whom was Madrigal Torino, pushed him back inside, followed by another
group of three persons. All these persons were armed either with firearms or
bolos. Pio’s hands were tied behind his back and was brought down to his bodega.
Two of them were left to watch Pio, while Madrigal and the rest went to the
house. Madrigal then demanded money from the wife, while his confederates
ransacked the store of assorted merchandise with a value of P100.00, more or
less, after which Madrigal ordered the wife to go upstairs. Madrigal and his
cohorts followed and spying a trunk they forced it open. Finding it without
money, Madrigal aimed his gun at the wife who, fearing for her life, surrendered
P450.00 to Madrigal, the proceeds from a copra deal consummated that afternoon.
Pio was then escorted upstairs and the group asked for his gun. Pio replied that
he did not have any. At that precise moment, the people in the house heard a
voice emanating from the ground floor saving: “Here are the robbers who are
stealers of chicken, they are stealing chicken from Pio!” The wife recognized
the voice to be that of Alfredo Ocao, a neighbor. Madrigal and his group rushed
down the stairs to lug the assorted merchandise they took from the store. After
doing this the couple heard shots. The wife immediately went downstairs, closed
the door of the kitchen, and went back upstairs to untie Pio. She started
shouting for help, which brought back the robbers, who tried to break down the
kitchen door. The couple, together with Pio’s sister-in-law, sneaked out thru an
exit in the store. They all ran to the house of Diego Martillano whom Pio
requested to accompany him back to their house. Diego and Pablo Martillano,
together with some other people, went with Pio to his house and on the way they
found Alfredo Ocao sprawled dead near some banana plants. The body of Ocao was
found to have received three incised wounds and one bullet wound, two of them
fatal. Pio immediately reported the robbery to the police authorities at New
Piñan.

CRIMINAL CASE NO. 3138

On November 6, 1959, at about two o’clock in the afternoon, Isidra Velez was
sitting by the window of her kitchen at barrio Mauswagan, La Libertad, Zamboanga
del Norte, when suddenly Madrigal Torino, who is outside the window, grasped her
left hand. Madrigal was wearing a buri hat and his face was covered by a
handkerchief. Madrigal and his companion climbed over the window after which
they took Isidra upstairs where her grandchildren were at the time. When the
children saw the robbers, they jumped out of the window and ran, but Madrigal
pursued them and herded them back to the house. Madrigal pointed his gun at
Isidra and demanded money. Isidra, who was frightened, gave her money amounting
to P1,450.00. Madrigal and his companion also ransacked a trunk, took dresses
from the same, and bundled them. As Madrigal and his companion were about to
leave, Isidra’s daughter-in-law, Juanita, with Marcelina Mangubat, arrived from
the market. Juanita called for her children to open the door but nobody heeded,
Juanita then called for her mother who answered in a very low voice. Alarmed,
Juanita this time called for her son Charles who came down and opened the door.
Juanita asked her son whether there was anybody inside the house, to which
Charles answered in the negative, while keeping his eyes focused on the door.
Then Madrigal Torino, with a bundle slung over his shoulder and carrying a gun,
came down the stairs. Juanita and Marcelina Mangubat fled and ran to a house
where they requested the tenants to call the police authorities and to inform
her husband who was in a neighboring barrio of what has happened. When the
authorities came to the house, they discovered that the robbers carted away
household effects valued at P385.00, aside from the P1,450.00 cash taken from
Isidra.

CRIMINAL CASE NO. 3268

In the afternoon of September 22, 1959, at about three o’clock, while
Francisca Busca, her husband Demas Agad, and their daughter Jovita were at the
yard of their house at barrio Disen, New Piñan, Zamboanga del Norte, four men
approached them who informed Francisca that they lost a male and a female
carabao. They identified one of them as Madrigal Torino. They accused the Busca
family of slaughtering their lost carabaos the meat of which was allegedly
hanging in their kitchen. Francisca denied the accusation. She was told to go
inside the house, and upon entering the same, she saw four more persons inside.
The eight were all armed either with pistols or bolos. Francisca, her husband
and their daughter, together with Jovencio Agad who went there to deliver a can
of salmon and salted fish, were all tied, and after firing a shot, Madrigal
demanded money from them. One of the robbers also hit the back and nose of the
husband with the butt of a pistol. When Francisca told Madrigal that they had no
money, the band forced open two trunks and took there from jewelry, clothing and
other household effects, all valued at P430.00. The robbers stayed inside the
house until sunset after which they left with their loot.

* * *

The defense of appellant in the three offenses imputed to him consists merely
in an alibi. He testified that he fled to barrio Sapad, Kapatagan, Lanao on
September 1, 1959 to escape from the wrath of his brothers Ricarte and
Bienvenido who had sworn to kill him for having reported them as the killers of
their father. He said that at about eight o’clock in the evening of June 13,
1959, in barrio Sipawon, Rizal, Zamboanga del Norte, his father was shot to
death by his brother Bienvenido; that his brother Ricarte was also present when
his father was killed; that he immediately reported the killing of his father to
the police authorities at Rizal, Zamboanga del Norte; that because of his report
his brothers surrendered to the police authorities; that while Ricarte and
Bienvenido were incarcerated, they told appellant that they would kill him; that
Bienvenido and Ricarte were able to escape from jail; that when he learned of
their escape, he sought refuge at the house of his cousin at Mapang; that in the
months of July and August, 1959, he hid in the house of a friend about a
kilometer from his house in barrio Sipawon; that on September 1, 1959, he left
for barrio Sapad, Kapatagan, Lanao where his married sister had a farm; that, ha
informed his sister and brother-in-law that his brothers Bienvenido and Ricarte
had escaped from jail and planned to kill him; that he tilled the land of his
brother-in-law from September to December 2l, 1959 when he was apprehended by
Sgts. Vergara and Mutya while on his way to the farm; that he was taken to the
PC headquarters at Ozamis City where he was mauled by the troopers; and that the
following morning he was taken to the PC headquarters at barrio Sicayab,
Dipolog.

His defense of alibi was supported by Timoteo Nies and Sergio Pardilio, both
farmers and residents of Kapatagan.

* * *

Since the defense of appellant is simply that he was at another place and
could not have possibly committed the crimes imputed to him, the only issue to
be determined hinges on his identification on the part of the robbery victims
and their witnesses. In this respect, we are satisfied that the evidence on
record sufficiently identifies appellant as one of the male factors.

Thus, in Criminal Case No. 3111, appellant was identified by Pio Ching and
his wife Eustiquia Dawat not only because he was not wearing any mask at the
time but also because their house was lighted by a Petromax lamp, and it was
Eustiquia who handed the money to him. Indeed, they pointed to appellant as a
member of the band who robbed them when they were brought to the PC headquarters
to identify him. The fact that witness Pablo Martillano, a neighbor of
appellant, recanted his testimony in an affidavit he later executed while
confined in Muntinglupa, can not nullify the identification made of appellant by
the witnesses of the prosecution, for it has been held that an affidavit of
recantation made by a witness after the conviction of the accused is unreliable
and deserves scant consideration.^[1] This
is more so when the testimony of Martillano is merely corroborative because the
identity of appellant has been sufficiently established by other worthy
witnesses.

In Criminal Case No. 3138, the same situation obtains Appellant has also been
sufficiently identified as one of the culprits by Isidra Velez, Nita Velez and
Juanita Galocino de Velez who were all present at the scene of the crime even if
appellant was at the time wearing a mask which covered his face up to the level
of his eyes. These witnesses were able to recognize him despite this mask
because they knew him well since they were either his neighbors or his old
acquaintances. In fact, Isidra Velez knew appellant since he was a kid because
they were neighbors and had more than one occasion to hear his voice as well as
to observe his build, height and facial appearance. She was positive that the
one who herded and robbed them was appellant considering his voice and physical
appearance. Nita Velez, a child 11 years old, also recognized the accused
because he used to pass by their house whenever he went to market in barrio
Boboringan. Her mother, Juanita Galocino de Velez, also was positive in
recognizing him because they were neighbors and on the occasion of the robbery
his hat was raised when the bundle he was carrying got entangled with the
shutter of the door.

The defense makes capital of the fact that when the authorities went to the
house of the victims to investigate the Velez family never mentioned the name of
Madrigal as one of the robbers. But this, shortcoming can easily be explained by
the fact that they were afraid of possible reprisal by Madrigal, but after he
had been arrested by the authorities, they readily identified him.

The same thing may be said with regard to Criminal Case No. 3268. Thus,
appellant was sufficiently identified by Francisca Busca and Jovencio Agad who
had had ample opportunity to observe him because the robbery occurred at three
o’clock in the afternoon and the robbers stayed in the house until sunset. As a
matter of fact, Jovencio Agad declared in his affidavit that, although he did
not personally know the robbers, he would however be able to recognize them if
they are shown to him, and on the witness stand he readily pointed to appellant
as one of the male factors. He also identified him at the PC headquarters.

In this connection, the defense quotes a portion of the affidavit of
Francisca Busca to prove that she cannot identify the persons who came to her
house. Thus, the defense has quoted the following as allegedly said by her: “If
I happen to meet, I could not remember faces because at the time I was afraid
and besides two of them wore masks.” A careful perusal of Exhibit 1, however,
does not reveal such statement attributed to Francisca which would cast doubt on
her identification of appellant. Her actual statement was: “I could not remember
maybe because at the time I was so afraid and besides two of them wore
masks,” which has an entirely different connotation from the portion quoted by
the defense. In the latter quotation, Francisca merely stated that she was
uncertain whether she would be able to identify any of the robbers, but was able
to identify Madrigal when presented to her at the PC headquarters. Francisca
again pointed to Madrigal as the person who was always following her during the
robbery.

It, therefore, appears that the defense of alibi of appellant
deserves scant consideration in the face of the positive and unwavering
testimony of the prosecution witnesses who pointed to him as one of the
malefactors. The rule is well-settled that the defense of alibi cannot
be entertained when the identification of the accused has been sufficiently
established by a number of worthy witnesses. This is more so when there is
nothing in the record to show any motive why the prosecution witnesses would
impute to appellant the commission of so grave a wrong as the one imputed to
him.

With regard to the testimony of Timoteo Nies and Sergio Pardillo who
attempted to substantiate the defense of alibi of appellant, we are
impressed by the refutation made bf such testimony by the government in its
brief. We fully agree with its views on the matter.

The court a quo found in Criminal Case No, 3111 that the crime was
committed by a band with homicide which falls under subdivision 1 of Article 294
of the Revised Penal Code, but failed to consider the commission of the act by a
band as an aggravating circumstance, which would make the same penalized with
capital punishment.^[2] However, for lack
of the requisite number of votes, the Court decided to affirm the penalty
imposed by the court a quo for this crime.

Again, the court a quo in Criminal Case No. 3268 found appellant
guilty of robbery in band with serious physical injuries under subdivision 4,
Article 294 of the Penal Code, when it should fall under subdivision 5 of the
same article, as pointed out by counsel de oficio. There being no
mitigating circumstance to be considered, and the crime having been committed by
a band, the imposable penalty should be the one prescribed in subdivision 5 of
Article 294 in its maximum degree, or prision mayor in its medium
period. Applying the Indeterminate Sentence Law, appellant should be sentenced
to an indeterminate penalty of 6 years and 1 day, as minimum, to 10 years, as
maximum, both of prision mayor.

With the modification as above indicated with regard to the penalty to be
imposed in Criminal Case No. 3268, the decision appealed from is affirmed in all
other respects, with costs against appellant.

Bengzon, C.J., Padilla,
Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Makalintal,
JJ., concur.

---

^[1] People vs. Manigbas, et al.,
109 Phil., 469; People vs. Tiongson, et al., L-15201-02, October 31,
1962.
^[2] People vs.
Casunuran, L-7654, August 16, 1956.