THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TAGO ESMAEL AND TAILISAN CAMARODIN, DEFENDANTS-APPELLANTS.

Appeal, taken by defendants Tago Esmael and Tailisan Cama­rodin, from a decision, of the Court of First Instance
of Lanao del Sur,
convicting them of the crime of robbery with homicide, with which they are
charged, and sentencing them to life imprisonment, with the accessory penalties
provided by law, to jointly and severally indemnify the heirs of the deceased Lamberto Mendoza in the sum of P6,000, in addition to the
sum of P180, representing the value of the objects stolen from him, and each to
pay one-half of the costs.

The facts established by the prosecution are correctly set forth
in the appealed decision, from which we quote:

“The evidence of the prosecution show that in the morning of
July 28, 1965, while Lamberto Mendoza was driving a
tractor plowing the farm of Luis Ocsio at Masao, Lalabuan, Malabang, Lanao del Sur with Fernando Capilitan, accused Tago Esmael and Tailisan Camarodin, approached the tractor while at a standstill
and, at a distance of four steps from the tractor, accused Tago
Esmael, shot Lamberto
Mendoza with a pistol while Mendoza was sitting on the driver’s seat holding
the steering wheel of the tractor; that when Tago Esmael shot Lamberto Mendoza he
was at the right side of the tractor while Camarodin
was at the left side six brazas from Lamberto Mendoza; that Tago Esmael shot Lamberto Mendoza five
times and the latter slumped dead on the steering wheel after he was shot; that
after Tago Esmael shot Lamberto Men­doza, Camarodin told
Tago Esmael to get the
revolver and watch of Mendoza so that Tago Esmael took said revolver valued at P120.00 and watch
valued at P60.00; that after Tago Esmael
took the watch and revolver of Lamberto Mendoza, he
fired at Fernando Capilitan, who was then ten meters
away from the tractor, but Fernando Capilitan was not
hit and he ran away towards the house of Macario Mendoza,
the father of Lamberto Mendoza where they were
living; that on his way, he met Alfonso Mendoza, the brother of Lamberto, and told Alfonso Mendoza that Lamberto
Mendoza was shot by Mus­lims; that before the incident, Fernando Capilitan was familiar with the face of both accused but
not their names because they were neighbors and often times saw them; that the
dead body of Lamberto Mendoza was examined by Dr.
Rafael Lucido on July 28, 1965 less than one hour
after death and found five gunshot wounds as described in the Medical
Certificate, Exh. ‘A’, as follows:

“‘POSTMORTEM FINDINGS:

“1.  Wound gunshot entrance 9 mm diameter located
at the right posterior sygamatic bone, exit 12 mm
diameter at the left superior border temporal bone.

“2.  Two gunshot wound entrance roughly oval in
shape 9 mm in diameter located at the mid axillary
line right 2 inches apart level of the 4th intercostal
space, no exit.

“3.  Wound gunshot entrance roughly oval in shape 9
mm diameter located at the mid axillary line right
level of the 7th rib, exit oval in shape 12 mm by 15 mm loca­ted at superior
border of the left scapula.

“4.  Wound gunshot entrance roughly oval in shape 9
mm diameter located at the mid axillary line level of
the 10th rib, no exit.

“CAUSES OF
DEATH:  Hemorrhage severe internal and
external due to multiple gunshot’, and that the dead body of Lamberto Mendoza was buried in the cemetery of Malabang, Lanao del Sur, the next day.”1

The defense tried to impeach the testimony of Fernando Capilitan upon the ground that he had, at first, identified
Usman Moro as the person who killed Lamberto Mendoza. 
Appellants, moreover, set up their respective alibis.  Tago Esmael would have Us believe that, on July 28, 1965, he was
in the coconut plantation of Maitowamama Mangondato, four kilometers away from the scene of the
occurrence, from early morning to long after noontime, whereas Tailisan Camarodin claimed that
he was then fishing in Parang, Cotabato,
about 55 kilometers away, where he stayed for three days.

Commenting on these alibis, His Honor, the trial Judge, said:

“The evidence of denial and alibi put up by both accused could
not prevail over the clear, explicit and positive identification of both
accused by prosecution witness, Fernando Capilitan,
as the very person who shot and robbed Lamberto
Mendoza of his .45 caliber pistol and wrist watch.  Considering that alibi is the weakest of all
defenses and easy to concoct and the alibi of accused, Tago
Esmael, was merely established by the testimony of
his uncle, Maitowamama Mangondato,
and the alibi of accused, Tailisan Camarodin, was merely corroborated by his brother-in-law, Camarodin Sadon, said defense of
denial and alibi could not prevail over the positive identification of both
accused by Fernando Capilitan as the authors of the
crime.  (People vs. Luomayag,
L-19142, March 31, 1965; People vs. Amiril Asmawil, L-18761, March 19, 1965; People vs. Cunanan, et al., L-17599, April 24, 1967; People vs. Caymo, et als., L-16177, May 24,
1967; People vs. Reyno, L-19071, April 30, 1965;
People vs. Paz, et al., L-17320, May 31, 1965; People vs. Reyes, et al. ,
L-19892, May 30, 1960; People vs. Torino, L-18787,
May 30, 1964; People vs. Susano, et al., L-19098, May
31, 1964).

“Besides, it could not be physically impossible for Tago Esmael to be at the scene of
the crime even if he was working in the coco­nut plantation of his uncle, Maitowamama Mangondato, because
the distance is only four kilometers. 
Neither is it physically impossible for Tailisan
Camarodin to be with Tago Esmael in committing the crime because the distance of his
house to the scene of the crime is only five kilometers so that it was easy for
him to imme­diately leave for Parang, Cotabato, fifty kilo­meters away just after the commission
of the crime by taking a truck in order to invent an alibi.  For alibi to prosper, it is not enough to
prove that the accused were somewhere when the crime was committed but that
they must likewise demonstrate that it was physically impossible for them to
have been at the scene of the crime. 
(People vs. Caymo, et als.,
L-16177, May 24, 1967).”1

We are fully in agreement with this view.  Besides, Mangon­dato
could not possibly recall the date on which Tago Esmael had allegedly worked with him, for he (Mangondato) is not familiar with the Gregorian Calendar and
did not even know what date it was when he took the witness stand.  Neither could Camarodin
Sadon – who tried to corroborate the alibi of his
brother-in-law, Tailisan Cama­rodin
– reckon dates, so that the former could not be positive as to the date when
the latter was allegedly with him in Parang, Cotabato.

As regards the identification of Usman
Moro by Fernando Capilitan as the person who had shot
Lamberto, the following facts should be noted.  Immediately after the occurrence, the same
was reported to the Philippine Constabulary, which forthwith sent a team of
investigators, headed by then Captain Jimmy Bangcola.  The team divided itself into two (2)
groups.  One, including a medical
officer, went to the house of the Mendozas,
where the body of Lamberto Men­doza had already been
taken.  The other proceeded to the scene
of the occurrence, which the members of the group examined and where they
picked up some empty cartridges.  Nearby,
they, likewise, found Usman Moro – who turned out to
be about ten (10) years old,2 although he was rather tall for his
age – who could not give a cate­gorical answer to the questions propounded to
him by the peace officers, who asked him to explain his presence in that
place.  What is more, he was pale and
trembling.  These circumstances led the
peace officers to suspect and detain him. 
Then, they brought him to the house of the Mendozas.

There, the PC asked Fernando Capilitan
whether Usman Moro was the very person who had killed
Lamberto Mendoza. 
Al­though Capilitan answered in the
affirmative, he told Captain Bangcola that he (Capilitan) was not certain about it.  Upon the other hand, having been tipped that
defendants herein had been seen in the vici­nity of the scene of the
occurrence, Captain Bangcola bade the local chief of
police to pick them up for questioning. 
As the chief of police did what he was told and brought the defendants
to the PC, Capilitan identified them positively as
the culprits, and admitted that he had committed a mistake when he, at first,
said that Usman Moro was one of them.  Thereupon, Capilitan
executed, before the local muni­cipal judge, an affidavit to this effect, the
contents of which he rei­terated on the witness stand.

Considering that Capilitan was barely
16 years old when he testified in court; that he had not even finished fourth
grade ele­mentary school; that, like Usman Moro, he
was, also, scared when the peace officers first interrogated him; that, soon
after, he con­fided to Captain Bangcola that he (Capilitan) was not certain that Usman
Moro was one of those who had participated in the commission of the crime; that
he has no motive whatsoever to falsely incriminate appellants herein; and that
he had seen them several times before the occurrence, they being neighbors of
the Mendozas, for whom he had been working for one
(1) year, we find no reason to doubt either his veracity or the accuracy of his
testimony regarding the identity of the culprits.

Appellants maintain that the lower court erred:  (1) “in appre­ciating facts not
introduced in evidence”; (2) “in convicting appel­lants for the crime
charged without Exhibit B having been admitted in evidence for the
prosecution”; and (3) “in holding that notice of appeal in criminal
cases perfected the appeal,” and that, accord­ingly, their motion for
reconsideration, filed after the filing of their notice of appeal, could
“no longer be entertained” by said court.

Under their first assignment of error, it is urged that the lower
court was not justified in stating in the decision appealed that
“possession of a firearm is precious to a Muslim, hence the reason for the
robbery,” no evidence having been introduced in support thereof.  Said statement reflects, however, a common belief
among Christians in Mindanao, of which judicial
cognizance may be taken.  At any rate,
even if the expression objected to were stricken out or disregarded, still
there is the positive testimony of Fernando Capilitan
to the effect that, after killing Lamberto Mendoza,
appellant Tago Esmael, upon
indication of his co-defendant, divested the deceased of his pistol and a wrist
watch, thus indicating that robbery was the motive of the culprits.

Exhibit B, to which the second assignment of error refers, is the
permit or license to possess said pistol. 
Exhibit B was identified and marked during the trial.  It was not available, however, to the public
prosecutor when he made a formal offer of his exhibits, immediately before
closing his evidence, inasmuch as said document was in the possession of the
private prosecutor, who happened to be absent at that time.  At any rate, Exhibit B is not indispensable
to find that Lamberto had the pistol in his
possession and that it was taken away from his person by Tago
Esmael, imme­diately after the latter had killed him,
said fact having been duly established by the testimony of Capilitan.  Besides, such testi­mony was partly
corroborated by that of Francisco Cariño, former
manager of the Southern Plantation, in whose favor a
permit had been issued to possess a .45 caliber pistol.  The same was, accord­ing to Cariño, turned over by him to Lamberto’s
father, Macario Mendoza, who succeeded him (Cariño) as manager of the Southern Plantation.  It is, thus, quite probable that Lamberto took the pistol from his father before proceeding
to the place of the occurrence, in the morning of July 28, 1965, for his (Lamberto’s)
protection while plowing the land with a tractor.

In any event, it has been proven, by the testimony of Capi­litan, that Lamberto had in
his possession a pistol at the time of the occurrence.  Whether he had a permit or not to possess the
firearm, the taking thereof by Tago Esmael, after killing Lamberto,
constituted the crime of robbery with homicide. 
Then, too, there is positive evidence to the effect that Tago Esmael had, also, taken a
wrist watch from the body of Lamberto Mendoza, which
– in the light of the attending circumstances and independently of said pis­tol
– suffices to establish the motive of the culprits, there being no animosity
between them and the deceased.

With respect to the last assignment of error, it appears that the
decision of the lower court was promulgated on September 30, 1967. 
Two (2) days later, or on October
2, 1967, counsel for appellants filed their notice of appeal from
said decision, after serving copy thereof, on the same date, to the
prosecution.  On October 7, 1967, the defendants filed a motion
for reconsideration of the aforementioned decision.  This motion was denied on October 20, 1967, upon the ground
that the lower court had no jurisdiction to entertain it, owing to the
perfection of defendants’ appeal prior thereto by the filing of their
aforementioned notice of appeal, in view of which His Honor, the trial Judge,
ordered that the records be forwarded to the Supreme Court.  This action is in accordance with sections 3
and 6 of Rule 122 of the Rules of Court and our jurisprudence.  Indeed, we have held that:

“x x x As
a matter of principle, when an appeal has been perfected from a judgment in a
criminal case, the court from which the appeal is made loses jurisdiction over
the case, and this (case) means both the record and the person of the
accused-appellant.  In the same manner
that after the judgment has become final, the trial court loses jurisdiction to
amend the same, so also upon the perfection of the appeal which brings about
the finality of the judgment or order of the court, the sentencing court must
also lose jurisdiction or power to do anything or any matter in relation to the
person of the accused-appellant.”1

Although courts may allow the withdrawal of an appeal, for the
purpose of allowing the filing of a motion for reconsideration and passing upon
the same, the exercise of such authority is discre­tionary in nature, and the
records do not show that His Honor, the trial Judge, had abused his discretion
or otherwise erred in acting as he did. 
In fact, appellants’ motion for reconsideration does not state that they
were withdrawing their notice of appeal. 
At any rate, We have examined said motion for reconsideration and found
the same to be devoid of merit.

The crime of robbery with homicide committed by the accused is
punishable – under Article 294, 1st subdivision, of the Revised Penal Code –
with life imprisonment to death.  The lower
court gave appellants the benefit of the mitigating circumstance of voluntary
surrender to the authorities – since they offered no resistance when the chief
of police picked them up for investigation, upon orders of Captain Bangcola – and imposed the penalty of life
imprisonment.  This, indeed, is the
proper penalty, pursuant to subdivision (2) of the second paragraph of Article
63 of said Code, even in the absence of said mitigating circumstance, inasmuch
as the punishment pres­cribed by law for the aforementioned offense consists of
two (2) indi­visible penalties.  The
amount of the indemnity due to the heirs of the deceased should, however, be
increased to twelve thousand pesos (P12,000).2

With this modification, the decision appealed from should be, as
it is hereby affirmed, therefore, in all other respects, with costs against the
appellants.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Barredo, and Villamor, JJ., concur.

Makasiar, J., did not take part.

1
CFI Decision, pp. 2-3.

1
CFI Decision, pp. 10-12.

2
T.s.n., p. 131.

1
Director of Prisons, et al. v. Teodoro, et
al., 97 Phil. 391, 395-396.

2
People v. Pantoja, L-18793, October 11, 1968.