G.R. No. L-23092. October 28, 1977
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANITO BEBERINO ALIAS NIT (APPEAL WITHDRAWN), GERARDO CASAÑA ALIAS BANDONG (APPEAL WITHDRAWN), LEODEGARIO ESTRADA (APPEAL …
CONCEPCION JR., J.:
Appeal of the accused Ignacio Calvario from the judgment of the
Court of First Instance of Surigao del Norte finding him guilty as an
accomplice in the crime of simple robbery and sentencing him to suffer an
indeterminate penalty ranging from four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor,
as maximum, with the accessory penalties provided by law; and to indemnify,
jointly and severally, together with his co-accused Anito Beberino, Gerardo
Casaña, and Leodegario Estrada, the heirs of Gregorio Nuñez in the amount of
P605.00; and to pay proportionate costs.
It is undisputed that in the evening of February 3, 1960, the
house of Gregoria Nuñez, situated in sitio Balibayon, barrio Lakandula, Placer,
Surigao del Norte, was broken into and robbed by several persons of cash and
other articles of value amounting to P605.00, on the occasion of which Gregoria
Nuñez was strangled to death.
Gregoria Nuñez, a septuagenarian with ample means, lived alone in
her house built on her coconut plantation close to the seashore. Her grandchildren took turns in keeping her
company at night. On the night of February
3, 1960. Victor Ugay and Julian Dublois, both 16 years of age,
spread a mat in the sala, while their grandmother slept on a wooden bed inside
a small room. Before retiring, the boys placed a wooden bar across the door, on
the inside, and locked the windows with pieces of wire and tuned in the
radio. They went to sleep at about 10:00.[1]
Towards midnight, the
boys were awakened by three men,[2]
two of whom were armed with revolvers, who ordered them to lie down on their
stomach, after which they were bound hand and foot and their mouths stuffed
with cloth.[3]
After the boys were tied, the three men entered the room occupied by Gregoria
Nuñez, and soon thereafter, the boys heard choking sounds (tika-tikan) and
kicking inside the room. They also
heard the clinking of bottles and the snorting of pigs, under the house, as if
there were people there. After a while,
the men came out the room and left, passing through the window facing the
sea. Not long thereafter, they heard the
sounds of a departing motor launch, so that they tried to unloosen the ropes that bound them.[4]
At about 5:00 o’clock in the morning, Librada Dobdoban de Ugay
was awakened by her son, Victor Ugay, shouting for help. She ran to the house
of Gregoria Nuñez, about 20 brazas away.
The door was still barred from the inside, so that she passed through an
open window. Inside, she saw her son,
Victor, and her nephew, Julian Dublois, bound hand and foot. She
called her mother-in-law and, receiving no answer, she entered her
room. There, she saw her mother-in-law,
Gregoria Nuñez, lying down apparently lifeless. So she went back to the sala and untied Victor Ugay and Julian Dublois. After a cursory check of the house, she found that the money from the sale of copra amounting
to P147.50, as well as the radio-phono, records, Coleman lamp and flashlight,
all belonging to Gregoria Nuñez, were missing.[5]
The matter was reported to the police,
and an autopsy of the cadaver of Gregoria Nuñez showed that she died of
strangulation by hand.[6]
Dissatisfied with the apparent inability of the local police
force to solve the crime expeditiously, the relatives of the victim sought the
assistance of the Philippine Constabulary.[7] On March 1, 1960, Cpl. Michael Desoloc was
dispatched to Placer to conduct an investigation. In barrio Lakandula, he received information
that one Ignacio Calvario had knowledge of the crime and was willing to testify
if the authorities would utilize him as a witness in the case.[8]
Ignacio Calvario was, accordingly, taken into custody, and after questioning,
he executed an affidavit wherein he described the means by which the crime was
committed and the role he played in the commission thereof. He also named (Bandong) Gerardo Casaña, (Nit)
Anito Beberino, (Mandot) Rumaldo Guibao, Floro Abas, Garbo Estrada, Rose
Bebang, Penoy, Busio, and (Pelesio) Simplicio
Guibao as his confederates.[9]
Following further investigations, a complaint for robbery in
band with murder was filed by Cpl. Desoloc before the Justice of the Peace
Court of Placer, Surigao against the afore-named persons. Ignacio Calvario was listed in the complaint
as one of the witnesses for the prosecution.[10]
Finding a prima facie case against the
accused, the Justice of the Peace issued a warrant for their arrest, [11]
and, upon termination of the preliminary investigation, remanded the case to
the Court of First Instance of Surigao for trial on the merits. [12]
A re-investigation of the case was conducted by the Fiscal after which he filed
an information before the Court of First Instance of Surigao charging the
accused, including Ignacio Calvario who had by then demonstrated hostility to
the prosecution and indicated that he would no longer testify for the
government, with the crime of robbery
with homicide.[13]
In due time following the conclusion of the trial, judgment was
rendered finding the accused Anito Beberino,
Gerardo Casaña and Leodegario Estrada guilty of the crime of robbery with
homicide, and sentenced to suffer the penalty of reclusion perpetua,
and to indemnify, jointly and severally, the heirs of Gregoria Nuñez in the
amount of P3,000.00. The accused Ignacio
Calvario was found guilty as an accomplice in the crime of simple robbery
since he did not actually participate in the killing of Gregoria Nuñez and no
conspiracy was proved among the
accused, and sentenced to suffer the penalty hereinbefore stated.[14] For insufficiency of evidence, the accused
Simplicio Guibao, Rumaldo Guibao, Floro Abas, and Rudy Casaña were acquitted; while
the case was dismissed as against Rose Bebang and Penoy, nicknamed Busio.[15]
From this judgment, Gerardo Casaña, Anito Beberino, Leodegario
Estrada, and Ignacio Calvario appealed.
However, the appeals of Gerardo Casaña, Leodegario Estrada, and Anito Beberino
were subsequently withdrawn,[16]
so that the appeal of Ignacio Calvario
alone is left for consideration.
In seeking a reversal of the judgment appealed from, the
appellant Ignacio Calvario claims that the evidence of the prosecution is
insufficient to sustain a conviction because the extra-judicial confession
upon which said judgment is based was obtained from him by means of threats,
and, therefore, inadmissible in evidence.
The appellant testified that he was threatened by Cpl. Michael
Desoloc who said that if he would not affix his thumbmark on the document, he
(Calvario) would be brought to the barracks and sent to Bilibid to be burned.[17]
Cpl. Desoloc, however, denied having threatened or coerced the
appellant into executing the said extra-judicial confession and claimed that
Ignacio Calvario furnished the statements contained therein freely and,
voluntarily. His claim is corroborated
by the Justice of the Peace of Placer, Surigao, before whom Ignacio Calvario
swore to the veracity of its contents, who testified that he read the extrajudicial
confession to the accused and asked the latter if he understood what had been
read to him; and that when the accused answered in the affirmative, he
requested the accused to affix his thumbmark on the document, which he did.
The appellant’s claim that he had been threatened into executing
the extra-judicial confession in question appears to be more of an after
thought than a valid claim. The
circumstances surrounding its execution positively show that the document was
executed freely and voluntarily and the reason that prompted the accused to do
so was that he had been promised immunity from prosecution as he would be
utilized as a government witness. Thus,
Cpl. Michael Desoloc testified that he went to sitio Balibayon on March 1, 1960
to investigate the robbery and killing of Gregoria Nuñez. After questioning Librada Ugay, Victor Ugay,
and Julian Dublois, he proceeded to barrio Lakandula where he was informed by
one Eliot Dublois, who obtained his information from Eugenio Cinco, that
Ignacio Calvario was one of the robbers.
He went to Cinco who told him that Ignacio Calvario was indeed willing
to testify if utilized as a government witness.
On that very same day, Ignacio Calvario was arrested. Apparently, an agreement had been reached for
Ignacio Calvario was brought to sitio Balibayon where they reenacted the commission
of the crime. The next day, March 2,
1960, Calvario was brought to the poblacion of Placer where he pointed to Cpl.
Desoloc the perpetrators of the crime.
On March 6, 1960, Ignacio Calvario executed the extra-judicial confession after which he was released from
custody.[18] On March 8, 1960, Cpl. Michael Desoloc filed a complaint before the
Justice of the Peace Court of Placer, Surigao, charging Gerardo Casaña
and others with the crime of robbery in
band with murder. Ignacio
Calvario, true to the promise, was merely listed as one of the witnesses for
the prosecution.[19]
After the preliminary investigation, the case was remanded to the Court of
First Instance of Surigao for trial.
However, a re-investigation was conducted, during which time Ignacio
Calvario turned hostile, so that he was
included in the information as one of the accused.[20]
As will be seen, the appellant was to be used as a government
witness which was not done because he later denied the facts that he had
revealed in his confession. This Court
has earlier held that where one of several co-defendants turns state’s
evidence on a promise of immunity by the prosecuting attorney, but later
retracts and fails to keep his part of the agreement, his confession made under such a promise may then be used against him.[21]
In view thereof, the extra judicial confession of the appellant is admissible as evidence against him.
Finally, counsel for the appellant claims that the trial court
erred in convicting Calvario as an accomplice in the crime of robbery although
he had no knowledge of the criminal intent of his co-accused.
The contention is without merit.
In his extra-judicial confession, the appellant stated that he was in
Placer, Surigao on February 3, 1960 and that at about 7:00 o’clock in the
evening of the said day, he was told by Gerardo Casaña to get aboard the
latter’s boat (“lancha”) as they were sailing for barrio
Cawilan. Already on board were Anito Beberino,
Rumaldo Guibao, and Rudy Casaña, the son of Gerardo Casaña. Thirty minutes after lifting anchor, they
reached the island of Maytubig where they met the group composed of Floro Abas,
Gario Estrada, Rose Bebang, Penoy, Busio, and Simplicio Guibao. He then heard the two groups discussing whose
boat they would use in going to sitio Balibayon to rob Gregoria Nuñez. After some time, they agreed to ride on the
boat of Simplicio Guibao, so that Rudy Casaña took the boat of his father to
sitio Sanisani. A while later, they
landed on the seashore near the house of Gregoria Nuñez. They disembarked and Simplicio Guibao sailed
for Nonoc, promising to come back for them later. Upon reaching the house of Gregoria Nuñez, he
and Gerardo Casaña, Anito Beberino, and Gario Estrada went upstairs, while
their other companions remained below.
Gerardo Casaña then removed the latch securing the window with a screw
driver, after which Gerardo Casaña and Anito Beberino, both of whom were armed
with revolvers, and Gario Estrada entered the house through the open window. The appellant stayed behind, on the
porch. Once inside, Gerardo Casaña
kicked the two persons then sleeping in the sala of the house who were
subsequently gagged and hogtied by Anito Beberino and Gario Estrada. Then, Gerardo Casaña entered the room of Gregoria Nuñez and
strangled her to death. After killing Gregoria
Nuñez, Gerardo Casaña removed the victim’s ring from her finger while Anito
Beberino and Gario Estrada ransacked the room.
Thereafter, they opened five bottles of wine, which they mixed with
beer, and gave a glass of the concoction to Calvario. On coming out of the room, Gerardo Casaña
opened the “comoda” and removed the radio therefrom and passed it on
to Calvario who put it atop a bench on the veranda. Gario Estrada likewise gave Calvario a
petromax lamp which he also placed, on the bench. Then, the three left the house passing through
the open window and rejoined their companions below. Afterwards, all of them boarded the boat of
Simplicio Guibao who had returned for them and sailed towards Sanisani. He and Floro Abas, Rose Bebang, Penoy, and
Busio disembarked at Sanisani, while Gerardo Casaña, Rumaldo Guibao, and Gario
Estrada boarded the boat of Rudy Casaña and returned to Placer.
The appellant’s statement is corroborated by Severo Enriquez who
declared that he saw the appellant Ignacio Calvario, Leodegario Estrada,
Gerardo Casaña, Anito Beberino, Floro Abas, and several others disembark from a
launch at about 10:00 o’clock in the evening of February 3, 1960 and proceed
towards the house of Gregoria Nuñez
with the appellant Ignacio Calvario in the lead.[22]
The evidence thus presented proves conspiracy, and that the
appellant not only knew of the plan to rob Gregoria Nuñez, but also
participated in its commission by previous and simultaneous acts which lent to
the accomplishment of the criminal intent.
Although the appellant may not have foreseen the killing of the victim
and did not take part in its execution, he is nevertheless guilty of the crime
of robbery with homicide. The rule is
that when homicide takes place as a consequence of or on the occasion of a
robbery, all those who took part in the robbery shall be guilty as principals
of the crime of robbery with homicide, unless there is proof that they have tried to prevent the killing.[23] Here, there is nothing in the record
which would tend to show that the appellant ever attempted to prevent the
homicide.
The appellant is, therefore, guilty of the crime of robbery with
homicide, covered by Article 294, No. 1, of the Revised Penal Code, which is
punished with reclusion perpetua to death. The commission of the offense was attended by
the aggravating circumstances of nocturnity, abuse of superior strength, and
disregard to the age of the offended party, the victim being 70 years of
age. The case thus calls for the
application of the maximum penalty provided by law, namely death. But for lack of the necessary number of
votes, appellant is hereby sentenced to reclusion perpetua.
As principal in the commission thereof, the appellant should also
be ordered to indemnify the heirs of the victim, jointly and severally, with
Gerardo Casaña, Anito Beberino, and Leodegario Estrada, the amount of
P12,000.00 for the death of Gregoria Nuñez aside from the amount of P605.00,
the value of the articles stolen.
Considering, however, that Gerardo Casaña, Anito Beberino, and
Leodegario Estrada had previously withdrawn their appeals so that the judgment
of the trial court is already final as to them, their joint and solidary
liability with the appellant for the death of Gregoria Nuñez shall not exceed
P3,000.00.
Modified in the manner above indicated, the judgment appealed
from should be, as it is hereby, affirmed with costs against the appellant.
SO ORDERED.
Fernando, (Chairman), Antonio, Aquino, and Santos, JJ., concur.
Barredo, J., no part.
[1]
pp. 40-42, t.s.n.
[2]
later identified as the accused Leodegario Estrada, Gerardo Casaña, an Anito
Beberino (pp. 53-55, t.s.n.).
[3]
pp. 44-45, t.s.n.
[4]
pp. 47-50, t.s.n.
[5]
pp. 6-12, t.s.n.
[6]
Exhibit A; see also p. 37, t.s.n.
[7]
p. 209, t.s.n.
[8]
pp. 250, 251, 25, 31, t.s.n.
[9]
Exh. C, C-1, D, D-1, D-2, E, E-1.
[10]
Exhibit 2.
[11]
pp. 6-9, Orig. Rec.
[12]
p. 2, Orig. Rec.
[13]
p. 26, Orig. Rec.; p. 3, rollo.
[14]
See p. 1, supra.
[15]
pp. 25-44, rollo.
[16]
pp. 314, 392, 405, rollo.
[17]
pp. 734, 735, t.s.n.
[18]
pp. 243, 250, 251, 258, 262, 271, t.s.n.
[19]
Exhibit 2.
[20]
pp. 283, 717, t.s.n. p. 26, Orig. Rec.
[21]
People vs. Panaligan and
Andulan, 43 Phil. 131.
[22]
89; 90, 108, t.s.n.
[23]
People vs. Carunuñgan, 109 Phil. 534.