THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DALMACIO SABENORIO, ROLANDO SABENORIO AND TORIBIO ORTIZ, DEFENDANTS (AT LARGE), ESTEBAN ANGCON, DEFENDANT WHOSE DEATH SENT…

This is an automatic review of the death sentence imposed by the
Court of First Instance of Leyte, Tacloban City Branch VII, on Esteban Angcon,
who, together with his bro­ther Policarpo Angcon (who died during the pendency
of this case), was convicted of robbery in band with homicide and physical
injuries and was ordered to pay an indemnity of nine thousand pesos to the
heirs of Melecio Marentes (Criminal Case No. N-0315).

The review of the death sentence is simplified by the fact that
Esteban Angcon, a twenty-six-year old farmer, signed an extrajudicial
confession in the Cebuano dialect which was taken by the chief of police and
sworn to before the municipal mayor (Exh. C and C-1).

In that confession, he admitted that in the afternoon of Sunday,
December 6, 1964, while he was in the cockpit, he and his younger brother
Policarpo Angcon, and his com­panions, Dalmacio Sabenorio, Lando Sabenorio and
Dioso Ortiz conspired to rob Melecio Marentes because the latter had received
“plenty of money from the sale of his land”.

In pursuance of that conspiracy, Esteban, who was armed with a
sawed-off shotgun, and his four companions went at seven o’clock in the evening
to the house of Marentes located at Sitio Bunacan, Barrio Villalon, Calubian,
Leyte.  Dalmacio fired at the lock of the
house and Dioso pounded it with a piece of wood.  Esteban and his companions entered the house.

Esteban recounted in his confession that once inside the house he
shot Marentes who was in a kneeling position. 
Marentes died.  Esteban and his
companions were able to get three thousand pesos which amount was entrusted to
Dalmacio.  He did not give Esteban any
part of it.

Policarpo Angcon signed a similar confession before the chief of
police.  It was also sworn to before the
muni­cipal mayor (Exh. B).

The counsel de oficio of Esteban Angcon candidly
stated in his brief that after he “has made a very careful and
conscientious study of the records of this case” and read several times
the transcripts of the stenographic notes, “in conscience,
he is fully convinced” that Esteban Angcon took part in the robbery and
killed Melecio Marentes (Page 116 of Rollo).

At the trial, two eyewitnesses, namely, Gregoria Casas, the
victim’s wife, and his mother-in-law, Bonifacia Avila, who were with the victim
in his house at the time of the killing and the robbery, testified that they
saw Esteban Angcon shooting Marentes while he was in a kneeling posi­tion and
that the sum of three thousand pesos was taken by Esteban and his companions.

The two eyewitnesses were acquainted with Esteban because he
resided in the same barrio; he was a neighbor and a friend, and, as a cockfight
aficionado, he frequented the house of Marentes for the purpose of holding
practice cockfights (purok).

The municipal health officer, who performed the autopsy on the
body of the twenty-two-year-old victim, cer­tified and testified that the
victim sustained a gunshot wound in the chest which perforated his left lung
and the ventricles of his heart.  The
wound was fatal (Exh. A).

As to why the robbery was committed, the prose­cution proved that
thirteen days before the incident Prudencio Esmero paid P2,820 to Gregoria
Casas, the victim’s wife, as part payment of the price of an eight-hectare land
(Exh. F).  That payment was the major
part of the sum of three thousand pesos which Esteban Angcon and his companions
took from the overnight bag in the victim’s house and which, according to his
confession, was entrusted to Dalmacio Sabenorio.

Thus, the evidence of the corpus delicti or the
fact of the commission of the robbery with homicide confirms the extra­judicial
confession of Esteban Angcon.  Esteban’s
counsel de oficio admits that even without his confession and on
the basis alone of the prosecution’s other evidence, said counsel is morally
convinced that Esteban committed robbery with homicide.

At the trial, the Angcon brothers impugned the voluntariness of
their confessions.  They claimed that
they were maltreated by the police.  The
chief of police and the municipal mayor testified that the confessions were
executed by the two accused without any violence, coercion or duress.

After the confessants had sworn their confessions before the
mayor, it so happened that the municipal judge arrived in his office.  The chief of police brought the Angcon
brothers to the municipal judge.  That
magistrate asked them whether their confessions were freely executed.  They did not complain of any maltreatment.

In view of Esteban Angcon’s confession, which should be given
full credence, his defense of alibi was correctly rejected by the trial
court.  His guilt was established beyond
reasonable doubt.  (The Sabenorio
brothers and Toribio Ortiz are at large.)

Counsel de oficio, Virgilio B. Jara, who submitted
a well-written brief and who thoroughly studied the case, contends that the
trial court erred in not holding (1) that the crime committed was robbery with
homicide only and not robbery in band with homicide and physical injuries, (2)
that nocturnity and evident premeditation are not aggravating, (3) that lack of
instruction and lack of intent to commit so grave a wrong are mitigating and
(4) that reclusion perpetua, and not death, is the proper
penalty.

1.  We agree with the counsel de oficio
that the trial court erred in holding that Esteban Angcon is guilty of physical
injuries in addition to robbery in band with homicide.  Only robbery in band with homicide was
charged in the original and amended information and in the complaint filed by
the chief of police in the municipal court.

Although there are indications in the record that Gregoria Casas
and Bonifacia Avila suffered physical injuries, nevertheless, inasmuch as the
information did not include physical injuries, the trial court could not expand
the special complex crime charged therein by adding thereto the offense of
physical injuries (See sec. 4, Rule 120, Rules of Court).

Counsel’s contention that there is no conclusive evidence that
the robo con homicidio was committed by a band is
correct.  In the confession of Policarpo
Angcon, it is stated that only two of the five accused were armed with guns
(Exh. B).  While the prosecution
witnesses testified that the three of the five accused who entered the victim’s
house were armed, it is not certain that the two who re­mained outside were
also armed.  Hence, it cannot be categori­cally
averred that the crime was committed by a cuadrilla.

2.  Counsel de oficio’s contention
that nocturnity is not aggravating cannot be sustained considering that it may
be deduced from Esteban Angcon’s confession and the cir­cumstances surrounding
the commission of the crime that the five malefactors sought the cover of night
in order to consummate the crime with impunity.

The contention that evident premeditation is not aggravating is
based on the testimonies of the two prose­cution eyewitnesses.  It is argued that their testimonies do not
show that the killing of the victim was included in the conspiracy to commit
robbery.

As correctly observed by the defense counsel, evident
premeditation is inherent in robbery with force upon things but may be
aggravating in robbery with homi­cide with respect to the homicide.

In the instant case, the oral evidence shows that Esteban Angcon
and his two companions, upon entering the house of Marentes, asked his wife
where her husband was and they looked for him in the bedroom.  On finding him, they kicked him and Esteban
shot him while he was kneeling and pleading for mercy and his wife was
entreating that his life be spared.

Considering that, according to Esteban’s confession, there was a
conspiracy in the afternoon to commit the robbery in the evening and
considering the manner in which the rob­bery was committed, there is sufficient
basis for concluding that the conspirators’ plan embraced the killing of
Marentes.  Hence, premeditación
conocida is aggravating.

3.  There is no merit in the
contention that lack of instruction is mitigating.  Esteban Angcon knows how to sign his
name.  It is for the trial court to
determine whether the accused is a person of low intelligence.  No such finding was made by the trial court.

As to lack of intent to commit so grave a wrong, it should be
noted that Esteban Angcon shot the victim in spite of the latter’s submissive
attitude and the plea for mercy made by his wife.  Hence, it cannot be said that Esteban did not
intend to commit the grave wrong of killing the unarmed and docile victim.  Esteban acted with a high degree of per­versity
in killing Marentes.

4.  Dwelling is admittedly aggravating in this
case.  Since three aggravating
circumstances attended the commission of the robbery with homicide and no
mitigating circumstance can be appreciated in favor of Esteban Angcon, the
trial court did not err in imposing the death penalty on him (Arts. 63[1] and
294[1], Revised Penal Code).

The Solicitor General’s recommendation that the death penalty,
being “harsh and excessive”, a request for executive clemency should
be made is not in order.  Until the
lawmaking body “sees fit to repeal or modify the imposi­tion of the
extreme penalty, the courts will continue to impose the same when the facts and
circumstances in a case so warrant” (People vs. Olaes, 105 Phil.
502).  The “courts do not shirk
their disagreeable duty to impose the death penalty in cases where the law so
requires” (People vs. Carillo and Raquenio, 85 Phil. 611).  The instant case is such a case.

The civil liability should be increased to twelve thousand pesos
and should include the sum of three thousand pesos which was taken by the malefactors.

WHEREFORE, the trial court’s judgment is affirmed with the
modifications (1) that Esteban Angcon is sentenced to death for the offense of
robbery with homicide, (2) that the indemnity of nine thousand pesos is
increased to twelve thousand pesos and (3) that he is further ordered to pay to
the victim’s heirs the sum of three thousand pesos, the amount taken during the
robbery.  Costs de oficio.

SO ORDERED.

Teehankee, Barredo, Antonio, Aquino, Concepcion, Jr.,
Fernandez, Guerrero, de Castro, and Melencio-Herrera,
JJ., concur.

Fernando, Acting C.J., and
Makasiar, J., did not take part.

Santos, J., joins J.
Abad Santos in his concurring opinion.