PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PANCHO PELAGIO Y ALFONSO, ET AL., DEFENDANTS, PANCHO PELAGIO Y ALFONSO, OSCAR CAYMO Y REYES AND JOSE GUICO Y PARAS, DEFENDANTS…

This is an appeal from the decision of the Court of First
Instance of Pasay City in Criminal Case No. 3380,
People v. Pancho Pelagio,
et al., condemning the appellants, Pancho Pelagio, Oscar Caymo and Jose Guico,
to death for the crime of robbery with homicide as defined and penalized in
Article 294 of the Revised Penal Code.

The amended information under which the above judgment was
rendered originally recited six defendants, namely, the three aforenamed appellants, and Arcadio
Balmeo, Evelyn Villanueva and Armando Manalang alias Ding Manalang.  Subsequently, however, Arcadio
Balmeo and Evelyn Villanueva were discharged from the
said information when they agreed to turn state witnesses.  Armando Manalang,
on the other hand, died while the case was pending trial.  Thus, the trial proceeded only with respect
to the here­in appellants:  Pancho Pelagio, Oscar Caymo and Jose Guico.

The records disclose that Jose Guico,
an ex-convict, and Evelyn Villanueva lived in common law relationship at No.
289-A (Int.) Leveriza St., Pasay
City, from about January 1955 to March of the same year.  Among their friends were
Pancho Pelagio, also an
ex-convict, and Armando Manalang.  At around three
o’clock in the afternoon of March
23, 1955, while Manalang was at the above
residence, Pancho Pelagio
came to see the spouses Guico and Villanueva.  Pelagio’s wife had
just delivered a child and he wanted to borrow money for the hospital expenses.

It is not determinable from the records if Pancho
Pelagio was then accommodated in his request for a
loan.  The records disclose, however,
that Armando Manalang, taking advantage of the said
visit, informed Pancho Pe­lagio
of a robbery he, Manalang, was planning with some
other friends who later were revealed by Manalang to
be Jose Guico, Oscar Caymo
and Arcadio Balmeo.  Pelagio and Manalang decided to talk the matter over and, in fact, did discuss the subject once more
later that afternoon in the presence of Jose Guico
and Evelyn Villanueva, when Caymo and Balmeo arrived in the same house.  The follow­ing day, March 24, 1955, the above
persons, namely Evelyn Villanueva, Pancho Pelagio, Armando Manalang, Oscar Caymo and Arcadio Balmeo, met again at Guico’s residence and there finalized and agreed on the
plan to rob the house of Guico’s former landlady, a certain Aling
Nena, at No. 327 G. Villanueva St., Pasay City.  At this
meeting, Jose Guico was absent.

But the full and exact nature of Jose Guico’s
parti­cipation in the first meeting is unclear because there is evidence to the
effect that while the robbery was then being discussed, Guico
was in the bathroom taking his show­er. 
(t.s.n. pp. 6, 12-13,
Hearing of August 23, 1955)
It is established, though, that after Manalang had
sketched the intended victim’s house and its surrounding, Guico
explained the location of the said house in relation to the surrounding streets
and the points thereof through which entrance and exit should be effected.

When the meeting broke up at about six o’clock that evening,
March 24, 1955, Pancho Pelagio,
Oscar Caymo, Armando Manalang
and Arcadio Balmeo set out
for the execution of their plan.  They all walked together towards Aling
Nena’s residence although before reaching the place, Caymo ordered Manalang to hail
and hold a taxi which the latter
did.  Then, too, only Balmeo and Caymo actually entered the
victim’s premises because, as was earlier agreed upon, Pancho
Pelagio acted as the lookout for the two and he
simply posted himself by the gate of the said house.

Caymo and Balmeo
gained entrance to the house through its back kitchen door which they found to be open.  Once inside, Caymo
drew his gun and sought out its occupants. 
Only an old woman, Mrs. Severina de Gloria,
however, was in at the time.  Caymo then pointed the gun at the old lady and intimidated
her into producing all the money and jewelry she could.  All in all,
the pair got about P437 in cash, three pieces of jewelry worth about
P205.00 and a watch worth about P300.00. 
After they had taken the above items, Caymo
ordered Mrs. de Gloria to lie face downward, covered
her with a blanket, and cautioned her against moving or otherwise sounding out
an alarm.  The two then went down the
house and out into the street.  At the
gate, however, they failed to find Pancho Pelagio.

From G. Villanueva Street where the victim’s house was located, Caymo and Balmeo walked till they
got to the corner of F. Fernando Street where they found Armando Ma­nalang waiting for them in a taxi.  Caymo and Balmeo then rode on it.

As the taxi was about to leave, however, a jeep from the opposite
direction blocked its way and as the two vehicles were thus stopped, a man
alighted from the jeep and started to walk towards the taxi.  When the stranger was very near the taxi
already, Manalang instructed Caymo
to shoot at the man as the latter was a
police officer.  Whereupon, Caymo leveled several shots at the latter, about six in all, and the man, who was later identified as Patrol­man
Francisco Trinidad of the Pasay Police Department,
fell dead.

From the scene of the shooting, Manalang,
Caymo and Balmeo went
direct to a house in Buendia Street owned by Manalang’s sister where they changed clothes and hid the
death weapon and the money and
jewelry they had robbed.

Shortly thereafter, Caymo and Balmeo proceeded to a house in Blumentritt
where they met Pancho Pelagio
whom they called to account for his absence at the gate during the
robbery.  The latter explained that he
had to scamper away before Caymo and Balmeo had gone down because he, Pelagio,
saw someone slip out of the house apparently to summon the police.

The records do not disclose just how and when the herein
appellants and their companions were apprehended by the police.  It appears, however, that on March 25, 1955,
or the day following the incident, Oscar Caymo was
taken to the National Bureau of Investigation and subjected to paraffin test
and found positive for nitrate burns in both hands.  The next day, he executed his extrajudicial
confession (Exh. H) relating
to his participation in the crime and implicating Pancho
Pelagio, Armando Manalang
and Arcadio Balmeo in it.

On March 26, 1955, appellant Jose Guico
also executed an extra-judicial confession (Exh. I) owning his participation in the formation of the
conspiracy as earlier recited in this decision. 
He named as co-conspirators Pancho Pelagio and Armando Manalang.

The last to be apprehended was Armando Manalang.  On April 8, 1955, he extra-judicially
confessed (Exh. G) to the
above offense and implicated as his companions in it Jose Guico,
Oscar Caymo, Arcadio Balmeo and Evelyn Villanueva.

In the trial court, the
herein appellants’ common defense was alibi. 
Pancho Pelagio
claimed that at the time of the incident he was playing mahjong at the house of
one Angelina Dadivas in Lakandola Street, Tondo, Manila.  Oscar Caymo, on the
other hand, claimed that he was then at home at No. 2316 Oroquieta
Street, Manila.  Finally, Jose Guico maintained that during the incident he was at the
residence of one Jose Obligacion where he stayed
until about 11:00 in the evening. 
Consistently with their alibi, the appellants charged that the
extrajudicial confession given by them were secured by
the police through threat and maltreatment.

In the appeal before us now, only Oscar Caymo
sticks to the defense of alibi. 
Appellant Pancho Pelagio
now admits he participated in the crime
in the manner recited above but submits that, under the circumstances, he
should only be convicted for simple robbery and not for robbery with
homicide.  Appellant Jose Guico, on the other hand, argues in this appeal that even
under the facts found by the
trial court regarding his participation, he cannot justly be convicted for the
crime charged.  The Office of the
Solicitor General, for its part, urges the affirmance
of the decision under review with respect to Pancho Pelagio and Oscar Caymo but
recommends the acquittal of Jose Guico on reasonable
doubt.

After a careful and thorough review of the evidence, this Court
believes that the decision appealed from should be modified to the end that
Oscar Caymo’s conviction should stand, Pancho Pelagio’s guilt be reduced
to simple robbery, and Jose Guico, as recommended by the Solicitor General, be
acquitted on reasonable doubt.

Appellant Oscar Caymo’s insistence on
his alibi is absolutely futile.  The
evidence against its credibility is both forceful and overwhelming.

To begin with, Oscar Caymo was
positively identified by Mrs. Severina de Gloria as
one of those who broke into her house on the night of the incident and robbed
her at gunpoint.  He was likewise
positively identified during the trial by Francisco Juni,
the driver of the get-away taxi, as the gunwielder in
the fatal shooting of Pat. Trinidad.  Additionally, state
witnesses Evelyn Villanueva and Arcadio Balmeo testified at the stand that he was among those who
hatched and agreed on the robbery at the house of Jose Guico
previous to the execution of the same. 
And then, too, he was found positive for nitrate burns in both his hands
by the National Bureau of Investigation the very day following the incident.  Against this finding, he has offered neither
denial nor any reasonable explanation. 
Even if this Court disregards his extrajudicial confession, therefore,
though we do not here now find the same in­admissible, the acceptance of Caymo’s alibi would still be completely anomalous and
irrational.  No jurisprudence in criminal
cases is more settled than the rule that alibi is the weakest of all defenses
and that the same should be rejected when the identity of the accused has been
sufficiently and positively established by eyewitnesses to the crime.    (People v. Briz, 104Phil., 329; People v. Asmawil,
G.R. No. L-18761, March 31, 1965;
People v. Lumayag, G.R. No. L-19142,
March 31, 1965) When nothing supports it except the testimonies of relatives
and friends and the defendant’s own urging of the same, the said defense weighs
and is worth nothing.  (People
v. Bañaga et al., G.R. No. L-14905, January
28, 1961) Besides, the rule is to the effect that for alibi to prosper, it is
not enough to prove that he was also somewhere when the crime was committed but
the defend­ant must likewise demonstrate that it was physically impossible for
him to have been at the scene of the crime at such time.  (People v. Limpo, et al., G.R. No. L-13058, January 28, 1961) Caymo’s
alibi does not meet this standard. 
Consequently, this Court would only do wrong and miscarry
justice to set aside his conviction.

This Court, however, concurs with appellant Pancho
Pelagio’s submission that, by the trial court’s own
factual determination, his criminal liability cannot be extended beyond simple
robbery.  We hold Pancho
Pelagio guiltless or innocent of Pat. Trinidad‘s death.

Even the decision under appeal recites that when Arcadio Balmeo and Oscar Caymo hurried out of the victim’s house after the robbery, Pancho Pelagio had evidently fled
from his lookout post because the pair, Balmeo and Caymo, failed to locate him at the gate where he was
supposed to have stationed himself.  To
be sure, the said decision itself renders the account that it was only Balmeo and Caymo who walked
together from the said house to the corner of Villanueva and F. Fernando
Streets where then they saw Armando Manalang waiting
for them in a taxi and that it was only when these three had taken to the said
taxi, and the cab was about to leave, that the shooting of Pat. Trinidad
happened.  When the homicide was committed,
therefore, Pancho Pelagio
could not have had the least intervention or participation as might justify
penalizing him likewise for the said killing. 
So far as the records disclose, the conspirators were agreed only on the
commission of robbery; there is no evidence that homicide besides was
determined by them when they plotted the crime. 
All these warrant the exclusion of Pancho Pelagio from any responsibility for the said killing.  (People v. Basisten,
et al., 47 Phil. 493) Considering that those who actually participated in the
robbery were only three, Pancho Pelagio
included, and only one of them was armed, the same evidently was not “in
band.” (Art. 296, Revised Penal Code) This being the case, then it would
indeed be irregular or questionable to hold Pancho Pelagio similarly responsible as Caymo
and Balmeo for the killing of Pat. Trinidad.  Under the code, it is only when the robbery
is in band that all those present in the commission of the robbery may be
punished for any of the assaults which its members might commit.  Thus, in People v. Pascual, G.R.
No. L-4801, June 30, 1953 (unreported), we held that where three persons
committed robbery and two of them committed rape upstairs on its occasion,
while the third guarded the owner of the house downstairs, only the two who committed the assault
should be punished for robbery with rape while the third was liable for robbery
only.

Finally, we find the Solicitor General’s recommend­ation for the
acquittal of appellant Jose Guico well founded.  While it seems proven that the said appellant
did participate in the first of two meetings in the dis­cussion of the plan to commit the robbery in question
by answering Armando Manalang’s inquiries relating to
the intended house and its surrounding streets and the means of entrance
thereto and the channels of exit therefrom, the
evidence is as much that,
thereafter, his involve­ment with the conspiracy ceased.  It should be recalled that the conferences on
the robbery were held on March 23, and 24, 1955.  At the first meeting, the participants were
Jose Guico, Pancho Pelagio, Oscar Caymo, Armando Manalang, Arcadio Balmeo and Evelyn Villanueva.  At the meeting of the 24th the same
group, save for appellant Jose Guico, conferred and
finalized the plan and, in fact, proceeded to execute the same almost
immediately after the conference adjourned. 
There is ample and positive evidence on record that appellant Jose Guico was absent not only from the second meeting but
likewise from the robbery itself.  To be
sure, not even the decision under appeal determined otherwise.  Consequently, even if Guico’s
participation in the first meeting sufficiently involved him with the conspiracy,
such participation and involvement, however, would be inadequate to render him
criminally liable as a conspirator.  Conspiracy
alone, without the execution of its purpose, is not a crime punishable by law,
except in special instances (Article 8, Revised Penal Code) which, however, do
not include robbery.

Besides, appellant Jose Guico’s absence
from the second conference as well as from the robbery itself strongly points
to his evident change of mind regarding his commitment the previous day to be
in on the robbery.  Under the
circumstances and under a policy of liberal consideration for timely retreat or
repentance, he may be deemed to have desisted voluntarily from the conspiracy
before the contemplated crime could actually be carried out and therefore, free
from penal accountability.  (People v. Timbol, et al., G.R. Nos. 47473-­47474, August 4, 1944 [unreported]) As Viada expounds on the rule, “when the action of the
felony starts and the accused, because of fear or remorse desists from its continuance,
there is no attempt.  x x x If the author of the attempt,
after having commenced to execute the felony by external acts, he stops by a
free and spontaneous feeling, on the brink of the abyss, he is saved.  It is a call to repentance, to the conscience,
a grace, a pardon which the law grants to voluntary repentance.” (Cited and translated in Padilla, Criminal Law, p. 120, 1964 Ed.)

In summary then, this Court finds appellant Oscar Caymo guilty beyond reasonable doubt of the crime of
robbery with homicide attended by the aggravating circumstances, all recited in
the information and proven at the trial, of nocturnity
and use of a motor vehicle without any compensating mitigating
circumstances.  On the other hand,
appellant Pancho Pelagio is
hereby determined to be guilty beyond reasonable doubt of simple robbery under
Article 294, paragraph 5 of the
Revised Penal Code, attended by the aggravating circumstances of nocturnity and recidivism, having been at the time of the
trial, as recited in the information and proven at the trial, previously
convicted for robbery.  There is no
mitigating circumstance appreciable in his favor.  For both appellants, therefore, the penalties
prescribed by law should be imposed in their maximum period, although appellant
Pancho Pelagio is still
qualified to avail of the benefits of the Indeterminate Sentence Law.  For the reasons given above, appellant Jose Guico should be, as he is hereby acquitted.

WHEREFORE, this Court affirms the decision under appeal
insofar as it imposes the death penalty on appellant Oscar Caymo,
but modifies the conviction of appellant Pan­cho Pelagio from robbery with homicide to simple robbery under
Article 294, paragraph 5, R.P.C., with the aforementioned aggravating
circumstances.  Accordingly, and applying
the Indeterminate Sentence Law, the
said appellant is hereby sentenced to a prison term of from four years and two
months of prision correccional
to eight years and one day
of prision mayor.  The abovenamed appellants, moreover, are hereby ordered to
indemnify, jointly and severally, the offended parties named in the decision
under appeal the sums therein
stated.  The indemnity for the death of Pat.
Francisco Trinidad, payable to his heirs, should be raised from P3,000.00 to P6,000.00 and charged alone against appellant
Oscar Caymo. 
Finally, the conviction of appellant Jose Guico
is hereby set aside and let
judgment be entered acquitting him for the reasons given above.  Costs against the
appellants.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, and
Castro, JJ., concur.