THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FELIX DEFENSOR AND ALBERTO LOABLE, DEFENDANTS AND APPELLANTS.

Felix Defensor and Alberto Loable are appealing from a decision of
the Court of First Instance of Iloilo finding them guilty of attempted
robbery with homicide with the aggravating circumstance of the crime
having been committed in band, but compensated by the mitigating
circumstance of voluntary surrender, and sentencing them from 12 years
and 1 day to 18 years, 8 months and 1 day of reclusion temporal,
to indemnify jointly and severally the heirs of the deceased Alfredo
Legayada in the amount of P2,000, and to pay the costs. The appellants
have filed separate briefs but the Solicitor General has filed only one.

Because of the penalty imposed by the trial court the case was
first appealed to the Court of Appeals but after a study of the case,
including the evidence on record, the briefs of the appellants, and
that of the Solicitor General, the First Division of said Court arrived
at the conclusion that the penalty imposable in this case was reclusion perpetua, which was beyond its jurisdiction to impose and so certified the case to this tribunal.

A careful review of the evidence in this case shows the following
facts to have been fully established. On October 1, 1947, early in the
afternoon, while Rosita de Betoya was alone in her house with her baby,
in the barrio of Catig, municipality of Dueñas, Iloilo, slit armed men,
namely, Julio Espiton, supposed leader, the two appellants (Felix
Defensor and Alberto Loable), Faustino Gollos, Melecio N. and Masin N.,
went up her house and asked where the men of the house were. Rosita
told them that the only man of the house, her husband was out in the
field plowing, whereupon Espiton pointed his carbine without a butt at
her and asked for money. Rosita answered that they had no money in the
house. In the meantime, the five other marauders began searching the
house, evidently, for anything valuable they could carry away. Just
then, Alfredo Legayada and his wife Magdalena Laguartilla arrived in
the same house, apparently, for a visit because Magdalena was a
relative of Rosita. Alfredo was carrying a .45 caliber automatic pistol
on his hip. Espiton immediately turned his buttless carbine on Alfredo
and demanded that he turn over his pistol, saying that he (Espiton) was
an MP (military police), which was not true. Alfredo, apparently
believing that his intervenor was a member of the military police,
answered that he had a license to carry firearms, and instead of
delivering his weapon, took his firearm license or permit from his
pocket and delivered it to Espiton, but the latter instead of examining
it, tore it up and then immediately shot Alfredo in the abdomen.
Although mortally wounded, Alfredo was able to whip out his pistol from
his hip and returned the fire, hitting Espiton in the head and killing
him instantly. The companions of Espiton had, by this time been alerted
by the shooting and they all fired at Alfredo while they hurriedly left
the house and their fallen Made.ri without being able to take anything
valuable away with them. The shot of Faustino Gollos found its mark in
the right shoulder of Alfredo evidently permanently disabling him from
continuing his hopeless fight against his adversaries.

According to the written statement of Felix Defensor to the police, he also fired at Legayada but missed his target.

Late that same afternoon Alfredo Legayada was taken to the poblacion
and in the evening he was able to make a sworn statement (Exh. G)
before the Municipal Mayor with two witnesses, in which he pointed to
Felix of Binaba-an Labayno and another, the son of Pili of the same
barrio as the persons who shot him. That same night Alfredo Legayada
was taken to a hospital in Iloilo but on the way he died.

About three days after the shooting and killing, appellants
Defensor and Loable reported to the Chief of Police of Dueñas,
evidently, to surrender themselves upon the advice of Municipal
Councilor Fermin Sarongon who told them that inasmuch as they were
wanted by the police, if they were really innocent, they should give
themselves up or report to said police and explain.

The Provincial Fiscal filed an information for attempted robbery in
band with homicide against the two appellants, their companions being
still at large.

The two defendants admit having been in the house of Rosita Betoya
on the afternoon in question. They both claim, however, that they did
not go there to rob but to guide Espiton and his companions who were
looking for Sinforoso Lañada, brother of Rosita, and that they
(appellants) left the house of Rosita before the shooting started
although they heard the shots while on their way home.

Considering the circumstances under which the two defendants and
their companions went to the house of Rosita and what occurred there
culminating in an exchange of shots which produced the death of Espiton
and the mortal wounding of Alfredo Legayada, the logical conclusion is
that all the six men including the two appellants herein went there to
commit robbery, and that frustrated in their intention to commit the
crime, they all joined in the shooting although only Espiton and
Faustino Gollos could inflict injuries on Alfredo, thereby causing his
death.

We are hot prepared to believe the story of the appellants that
they went to the house of Rosita merely to serve as guides to Espiton
and his companions, for if this were true, why should Defensor and
Loable find it necessary and convenient to arm themselves. Again, the
evidence shows that while Espiton was covering Rosita with his carbine
and demanding money, his companions including the appellants were
searching the house and looking for valuables to loot. As already
stated, Defensor in his affidavit admitted and even boasted to his
companions that he also took a shot at Alfredo but missed him. What the
two appellants were still in the house when the shooting started,
contrary to their claim, is established by the fact that Defensor took
part in the shooting according to his own statement and when leaving
the house of Rosita, Defensor when asked by someone who met him, he
said that Espiton had shot Alfredo. After the shooting, these too
appellants were seen running away from the house of Rosita.

If appellants had merely gone there as innocent guides, as they
assert, they would not have fled therefrom as though escaping to avoid
apprehension for committing something unlawful. And, as the trial court
aptly observed, if their conscience were really clear, they should have
gone directly to the authorities to explain that they had no part or
participation in the shooting and in the attempted robbery. Instead,
they kept away from the authorities, until advised by a municipal
councilor to surrender themselves to the police, which advice they
later followed.

The evidence shows that Sinforoso Lañada for whom Espiton and his
companions were supposedly looking for, had his own house, separate
from that of Rosita, and there is further evidence to show that one of
the men whom the malefactors met on the way told them that Sinforoso
was in town on the occasion of the town fiesta and, therefore, could
not be found in the barrio, and yet the appellants and their companions
went to the house not of Sinforoso but of Rosita and once tha’re, made
no inquiry about Sinforoso. All that they did was to inquire about the
men of the house to be sure that there would be no opposition or
resistance, and when assured of the absence of men in the house,
proceeded to intimidate Rosita and searched the house for valuables
until they were interrupted by the arrival of Alfredo and his wife when
they again proceeded to face and solve the interruption and do away
with any resistance which Alfredo with his pistol could put up.

It is contended on behalf of the appellants that inasmuch as they
did not take part in the infliction of the injury or injuries which
caused the death of Alfredo Legayada, they may not be held liable for
his death. In the first place, even if this were a simple case of
homicide, inasmuch as the circumstances point to a conspiracy and unity
of purpose and action in shooting, if not killing Alfredo as shown by
the fact that the six armed men, including the appellants herein, fired
at Alfredo, they will all be liable for the result, regardless of
whether the wounds or injuries which caused the death was inflicted by
them. In the second place, this being a case of robbery with homicide,
all the accused including the appellants who had conspired to commit
the robbery are responsible for any homicide committed on the occasion
thereof, unless the defendants or conspirators concerned who did not
actually perpetrate the killing made any attempt to prevent the same
which in this case, they did not.

The crime committed is that of attempted robbery with homicide
defined and penalized under Art. 297 of the Revised Penal Code. The
fact that the information filed by the Provincial Fiscal was entitled
“Attempted Robbery in Band with Homicide” does not affect adversely the
conviction of the appellants inasmuch as the body of the information
amply describes the offense with which the defendants were charged. The
caption of the information is merely a conclusion of the Fiscal. It is
the body of the complaint or information that counts or prevails.

Incidentally, it may be stated that we are satisfied that the sworn
statements (Exhs. A and I) of the appellants were given voluntarily as
they were sworn to before the Justice of the Peace without the presence
of any of the policemen who prepared said affidavits, based on
questions and answers propounded to and given by the affiants.

We agree with the Court of Appeals that the penalty imposable in this case is that of reclusion perpetua.
In addition to the aggravating circumstance of the crime having be|n
committed in band, as found by the trial court, compensated by the
mitigating circumstance of voluntary surrender, there is the
aggravating circumstance of dwelling without any mitigating
circumstance to offset the same. Under these circumstances, the penalty
which is reclusion temporal in its maximum degree to reclusion perpetua should be imposed in its maximum degree or reclusion perpetua.
The indemnity awarded by the trial court should also be increased to
P6,000. With these modifications, the decision appealed from is hereby
affirmed, with costs.

Ozaeta, Paras, Pablo, Bengzon, and Tuason, JJ., concur.