G.R. No. L-29181. July 09, 1984
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANDRES CANUMAY, ET AL., DEFENDANTS, VICTOR BATERNA, NELSON POTESTAS, JAVIER FERNANDEZ, AGAPITO BAUTISTA, ANTONIO ABATAYO, RICA…
ESCOLIN, J.:
prosecution allegedly failed to overturn, appellants Nelson Potestas,
Agapito Bautista, Buenaventura Tagbacaola and Javier Fernandez seek
reversal of the judgment of the then Court of First Instance of Misamis
Occidental, sentencing them to suffer the penalty of reclusion perpetua for the crime of robbery with homicide and serious physical injuries.
In the evening of October 31, 1966, Gliceria Tolero Rudines, 63, and her
granddaughter Gerarda Rudines, 18, were in their house at Bo. Mangga,
Tangub, Misamis Occidental, preparing “bibingka” for the next day, the
All Saints Day. At about 7:00 that night, bursts of gunshots rang
outside the house. This was followed by shouts ordering them to open
the door. When the frightened women refused, the door was forcibly
opened with an axe. Four men rushed into the house, even while the
firing outside continued. Gliceria ran to the room of her husband,
Guillermo Rudines, but before reaching it, she suddenly slumped on the
floor, as she cried out, “Mong, Mong, I am hit.”
At this juncture, Guillermo Rudines, 75, went out of his room and was
met by four armed men, one of them holding an axe. When the intruders
demanded money from him, he took out the cash he had in his pocket and
offered it to them; but they refused to accept it. Instead, they
ordered the old man to lie on the floor face down and tied his hands
behind his back. Then, using the axe, they broke open the trunks in the
house and ransacked the same.
Soon after, one of the intruders dropped the axe on Guillermo’s back,
and demanded more money from him. Guillermo told them to look in the
“aparador” inside his room. While he was lying on the floor, other
members of the group, some armed with pistols and others with long guns,
entered the house and joined their companions in ransacking the house.
The marauders left at about 11:00 that night, after taking away money and jewelry valued at about P5,000.00.
After the robbery, relatives and neighbors of the Rudineses arrived.
Gliceria was brought to the poblacion for medical assistance; but on the
way thereto, she expired.
The following day, Dr. Jesus Abad conducted an autopsy of the deceased. The doctor described the victim’s injuries as follows:
“1. Gunshot wound
a) Point of entrance at the back of distal third of the right leg.
b) Point of exit at the front of the distal third of the right leg forming a cauliflower wound.
c) The bones of the distal third of the leg were completely fractured.
Cause of death:
1) Gunshot wound producing shock
2) Hemorrhage.”[1]
Dr. Abad also examined Guillermo Rudines and found the following wounds sustained by him:
“1. Superficial lineal wound about 1 inch long located at the left scapular area.
2. Pain on pressure at the vertebral column at the level of the 10th thorasic vertebral.
This certifies further that if without complication, it will heal in two (2) weeks.”[2]
Upon receiving report of the crime that same night, elements of the
Tangub Police Force repaired to the house of the victims. When asked by
Police Chief Andres Enguito as to the identity of the intruders,
neither Guillermo nor Gerarda could name any of the malefactors. They
stated however that they could recognize them if they saw them again.
The following day, November 1, the Chief of Police went to the house of
one Victoriano Rosario, about 50 meters distant from the victim’s
residence. Chief Enguito surmised that Rosario, who was a known police
character in the locality, might be able to furnish some information as
to the identity of the malefactors.
When Rosario’s wife told the police that her husband had left for
Mananao, Tubod, Lanao del Norte on October 28 and would not return home
until November 3, the Police Chief became suspicious – he deemed it
most unusual for a head of the family to be absent from home on All
Saints Day. He immediately ordered that Rosario be fetched from
Mananao. When the latter was brought to the Tangub Police Station on
the following day, November 2, for investigation, Rosario admitted not
only his complicity in the commission of the crime, but also divulged
the names of all his sixteen [16]
co-conspirators, viz.: Andres Canumay, Proculo Lemon, Victor Baterna,
Buenaventura Tagbacaola, Nelson Potestas, Benito Saquin, Eduardo
Cabahug, Vicente Mondares, Antonio Abatayo, Agapito Bautista, Ricardo
Patihan, Faustino Handugan, Eglecerio Durano, Tente Dimasakay, Javier
Fernandez and Jose Duliente.
All of them, except Dimasakay, who had allegedly gone into hiding in the
forest of Lanao del Norte, were taken into custody. In the ensuing
investigation, Andres Canumay readily admitted his participation in the
conspiracy and voluntarily executed an affidavit.[3]
At first, Bautista, Lemon, Durano, Mondares, Patihan, Potestas, and
Handugan denied any participation in the crime; but upon being
confronted with the statements of Rosario and Canumay, they too admitted
their culpability. They gave statements which were sworn to before
Judge Vicente Baz, Jr. of the Municipal Court of Tangub. However, the
five other accused, namely: Victor Baterna, Benito Saquin, Antonio
Abatayo, Buenaventura Tagbacaola and Javier Fernandez refused to give
any statement. On November 8, all the accused were brought to the scene
of the incident where they conducted a reenactment of the crime.
Thereafter, an information for the crime of robbery with homicide and serious physical injuries was filed against the sixteen [16]
accused, namely: Victoriano Rosario, Jose Duliente, Andres Canumay,
Proculo Lemon, Victor Baterna, Buenaventura Tagbacaola, Nelson Potestas,
Benito Saquin, Javier Fernandez, Eduardo Cabahug, Vicente Mondares,
Antonio Abatayo, Agapito Bautista, Ricardo Patihan, Faustino Handugan,
and Eglecerio Durano.
At the trial, the court, on motion of the prosecution, ordered the
discharge of the accused Victoriano Rosario and Jose Duliente to be
utilized as state witnesses.
The testimony of Victoriano Rosario is summarized by the Solicitor General as follows:
“On October 17, 1966, he (Victoriano Rosario) was asked by the
accused Andres Canumay whether Guillermo Rudines was a ‘moneyed man’,
which question he answered in the affirmative; that Canumay then
requested him to be their guide when they would rob Guillermo Rudines
(p. 41, t.s.n., January 20, 1967); that subsequently, on October 30,
1966, he was brought by Andres Canumay to the cockpit of Tubod, Lanao
del Norte, where, together with other companions, they hatched a plan to
commit the robbery the following day, October 31, 1966; that present in
that cockpit conference were the accused Antonio Abatayo, Vicente
Mondares, Eduardo Cabahug, Eglecerio Durano, Tinte Dimasakay, Ricardo
Patihan, and Andres Canumay; that he was told to inform Victor Baterna
and Benito Saquin about the robbery plan and to tell them also to
converge in Bo. Silanga as 5:00 o’clock in the afternoon of October 31,
1966; that accordingly, he notified both Benito Saquin and Victor
Baterna (pp. 42-45, id.); that the following day, October 31, 1966, at
about 4:00 o’clock in the afternoon, he left for Silanga, Misamis
Occidental, together with Dado Handugan, Ventura Tagbacaola and Nelson
Potestas, arriving thereat at around 5:00 o’clock that same evening;
that the group of Benito Saquin later arrived, with the accused Agapito
Bautista, Proculo Lemon and Javier Fernandez; that the last group, which
came from Tubod, Lanao del Norte, and composed of Antonio Abatayo,
Andres Canumay, Vicente Mondares, Eduardo Cabahug, Eglecerio Durano,
Ricardo Patihan and Tinte Dimasakay, arrived at 7:00 o’clock that night;
that the men were armed with two Thompsons, an axe, carbines, pistols
and knives (pp. 46-52, id.); that from Silanga, the band proceeded to
the residence of Guillermo Rudines in Barrio Manga, Tangub, Misamis
Occidental; that as they neared the place, he and Javier Fernandez were
left near the school house building because of the fear of the others
that as he was known to the Rudines, the latter might recognize him (pp.
54-55, id.); that soon thereafter, Victoriano heard gunshots coming
from the direction of the house of Guillermo as well as the breaking of
the door of the house; that as the firing continued, he and Fernandez
went near the house of Rudines and saw Victor Baterna and Tinti
Dimasakay enter said house; that Benito Saquin, Victor Baterna, Andres
Canumay, Antonio Abatayo, Vicente Mondares, Eglecerio Durano, Ricardo
Patihan, Tinti Dimasakay and Eduardo Cabahug went up the house, while
the others remained with him (Victoriano) on the ground (pp. 55-57,
id.); that at about 11:00 o’clock, those who went up the house came down
and all of them proceeded to the school building and partitioned the
loot under a mango tree; that he (Victoriano) did not, however, receive
his share, and instead, he was told to go to Tubod the following day in
order to get his share, but when he did, his companions were no longer
in Tubod, for which reason he never got his share of the loot (pp.
58-60, id.); that the next day, November 1, 1966, he was arrested in
Barrio Mananaw, Tubod, Lanao del Norte, by a member of the police force
of Tangub, Misamis Occidental, and two PC soldiers; and that he was
interrogated twice and he confessed to his participation in the crime
(pp. 56-58, t.s.n., Feb. 14, 1967).”
On the bases of the testimones of said government witnesses, and of
Guillermo Rudines, Gerarda Rudines, Dr. Jesus Abad, Chief of Police
Andres Enguito, and Judge Vicente Baz, Jr. of the municipal court of
Tangub, as well as the extrajudicial confessions of the accused, the
trial court rendered a decision, the dispositive portion of which reads:
“WHEREFORE, the accused, Andres Canumay, Proculo Lemon, Victor
Baterna, Buenaventura Tagbacaola, Nelson Potestas, Benito Saquin, Javier
Fernandez, Eduardo Cabahug, Vicente Mondares, Antonio Abatayo, Agapito
Bautista, Ricardo Patihar, Faustino Handugan and Eglecerio Durano, are
hereby found guilty beyond reasonable doubt of the crime charged in the
information. They are hereby sentenced to suffer the penalty of RECLUSION PERPETUA,
with the accessory penalties of the law; to jointly and severally
indemnify Guillermo Rudines in the sum of P5,000.00 and the heirs of
Gliceri Tolero in the sum of P6,000.00, without subsidiary imprisonment
in case of insolvency, and to pay the costs.”
All the accused, except Eduardo Cabahug, interposed an appeal. It
appears, however, that Saquin, Mondares, Lemon, Canumay, Handugan,
Baterna, Abatayo, Durano and Patihan subsequently withdrew their appeal;
and since the judgment as to them had already become final, only the
appeals of Nelson Potestas, Agapito Bautista, Buenaventura Tagbacaola
and Javier Fernandez remain to be resolved.
We perceive no compelling reason to disturb the judgment of conviction.
Appellants were positively identified by state witness Victoriano
Rosario as co-conspirators in the perpetration of the offense. In
accordance with the plot to rob the Rudineses hatched the previous day
at the cockpit of Tubod, said appellants went to Silanga where, as
previously agreed upon, they and their co-accused met. From there, they
all proceeded to the house of the victims at Bo. Mangga. Appellants
Nelson Potestas and Javier Fernandez were armed with pistols, while
Buenaventura Tagbacaola and Agapito Bautista carried hunting knives. At
the time of the robbery, the four appellants stood guard outside the
house, while their co-accused entered the victim’s dwelling. After the
robbery, each of said appellants received his corresponding share in the
loot.
The fact that appellants did not enter the victims’ house did not
mitigate, much less abate, their criminal responsibility. By standing
guard outside the house, each of them performed an indispensable role in
the attainment of their common objective. This action on their part,
performed to ensure the success of their nefarious design, clearly
indicated the existence of conspiracy which justified the lower court in
holding each and all of them liable for the felony committed as well as
the consequences thereof.
Appellants lay considerable emphasis on the inconsistencies between
Rosario’s testimony in open court and the statements in his affidavits.
It is thus pointed out that while Rosario stated in his affidavit that
he departed for Tubod at 8:00 p.m. of October 30, 1966, in open court he
declared that he left his house for Tubod at 1:00 p.m. of October 30.
Such discrepancy is too trivial and immaterial to discredit his
testimony. It should be pointed out that the robbery itself was
perpetrated on October 31, not on October 30. Thus, the time of the
witness’ departure for Tubod on October 30, referring, as it does to an
immaterial matter, does not impair, much less destroy, his testimony.
It is a settled rule that a witness may be impeached only on matters
which are material, competent, specific and relevant; but not on matters
which are immaterial and collateral to the real issue.[4]
What is important is that this witness positively affirmed at the
trial those portions of his affidavit wherein he described the
individual participation of all the accused in the crime in question.[5]
Appellants Potestas and Bautista would repudiate their affidavits of
confession for having been allegedly extracted through force and
coercion. They claimed that they signed their statements because they
were maltreated and tortured by the chief of police. The records,
however, reveal a number of significant circumstances strongly negating
such pretension.
[1]Their confessions were admittedly signed and sworn to before
Judge Vicente Baz, Jr. The latter testified that when he read the
contents of the affidavit of Potestas and Bautista, they unhesitatingly
affirmed the truth and correctness thereof; that he further asked them
is there was any mistake therein and both responded in the negative; and
that not one of the confessants complained to him of any maltreatment
or torture[2]On November 11, all the accused were bought to Dr. Jesus Abad,
municipal health officer of Tangub, for physical examination. At the
trial, the doctor attested to his findings that accused “are all in good
physical condition” and that “there are no signs of physical injuries
inflicted on any of them.”[6][3] As noted by the Solicitor General, “the fact that five of the
accused, namely, Antonio Abatayo, Buenaventura Tagbacaola, Victor
Baterna, Javier Fernandez, and Benito Saquin did not execute similar
confessions disproves the alleged use of force and coercion by the chief
of police in securing the confessions of the other nine accused. Why
indeed should these nine accused (including Potestas and Bautista) be
tortured and maltreated, while five of their co-accused were spared from
said maltreatment?”
It has been held that a confessant bears the burden of proving that the admissions in his affidavit are involuntary and untrue.[7] Appellants Potestas and Bautista have not successfully discharged such burden.
WHEREFORE, the judgment appealed from is hereby affirmed, with the
modification that the amount awarded to the heirs of the deceased
Gliceria Tolero Rudines is hereby increased to P30,000.00. Costs
against appellants.
SO ORDERED.
Makasiar, (Chairman), Aquino, Concepcion, Jr., Guerrero, Abad Santos, and Cuevas, JJ., concur.
[1] Exh. “N”, p. 227, Rec., Vol. I
[2] Exh. “O”, p. 228, Rec., id.
[3] Exhibit “F”
[4] Underhills’ Criminal Events, 4th Ed, pp. 848-849
[5] tsn, p. 30, 50, 53, Feb. 14, 1967
[6] Exhibit “P”
[7] People v. Manobo, 18 SCRA 30