THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BENITO DE LA CRUZ AND CIPRING DE LA CRUZ, DEFENDANTS-APPELLANTS.

This is an automatic review of the Decision of the Court of First
Instance of Samar, Branch IX, convicting Benito de la
Cruz and Cipring de la Cruz of the crime of Robbery
in Band with Double Homicide and imposing upon them the capital punishment.

The prosecution narrates the occurrence as follows:

Melchor Bago,
64 years of age, was the light-house keeper at Hinamok Island,
Salvacion, Basey, Western Samar.  On October
29, 1968, at about 5:00 o’clock
in the afternoon, he was proceeding to light the lamp at the said light-house,
which is about two-thirds of a kilometer away from his house on the seashore,
where he and his wife, Adriana Bago, lived.  On the way, he met Elmerio
Banasan, a fisherman who had just arrived from
fishing, and who informed him that he saw some persons disembark from a
motorized banca (referred to in the transcript as a
“pumpboat“).  Looking towards the sea, Melchor
saw a “pumpboat” anchored at about “40
brazas” from the “beach of the
lighthouse”.  It was painted green
and yellow with a roof covering the boat so that when someone enters, he cannot
be seen.^[1]
Noting nothing unusual, he proceeded on his way.  Upon reaching the base of the lighthouse, he
saw a person crouching behind the cogon grass
about four arm’s-lengths away.  He
called out saying “who are you, what are you doing there?” The man
stood up, followed by four others.  They
were all armed, two with revolvers, one with a rifle and still another with a
homemade shotgun or “paltik“.  All of them encircled him.  One of the men who was carrying a revolver
and whom he came to know later as the accused, Benito de la Cruz, ordered the
others to hogtie him, warning him not to shout and resist otherwise he would be
killed; while another, whose name he knew later as Cipring
de la Cruz, took his bolo away.  Then
Benito de la Cruz inquired where he kept the .38 cal. rifle and .45 cal. pistol issued by the Government to him.  Melchor denied
having those firearms.  He was then taken
by Benito, Cipring and another companion to a nearby
cemetery.  After being made to sit, his
upper arms were tied to the post of a tomb with his feet likewise tied to the
fence.  Cipring
tied Melchor’s arms loosely but Benito told him to tighten it in order to prevent
escape. Then Benito de la Cruz asked Melchor which
part of his house was open and Melchor replied that
it was the door and window facing the sea. 
The group then stuffed Melchor’s mouth with a
piece of cloth and a handkerchief, and before leaving, Benito told him that
they would kill his wife and would return to kill him too.

At about 9:00 o’clock in the evening of that same day, Camilo Saborrido, a fisherman,
whose house is near that of Melchor, was unloading
coconut shells from his banca and carrying them to
his house.  While doing so, he noticed a
motorized banca, which had come from the direction of
the lighthouse, drop anchor in front of Melchor’s
house.  That banca
was about fifty meters away from where he was. 
Then he saw seven men disembark and proceed uphill towards the direction
of Melchor’s
house.  He did not bother to see what
those persons were up to as he
was far from them.  It was only the next
day that he saw the dead body of one Edilberto Estriber on the beach about 30 meters away from where he
was unloading coconut shells the night before. 
He also saw the dead body of Melchor’s wife, with hands and legs tied to a piece of
wood, lying face up, with a strip of rattan tied tightly around her neck.

Melchor remained tied at the cemetery
until 10:00 o’clock the next morning
when the barrio teenagers found and untied him and informed him that his wife and Edilberto Estriber had been killed. 
Reaching home, he saw the dead body of his wife about three arm’s
lengths from their abode.  Inside his
house, things were in disarray, and the following were missing:  radio, cash, flashlight, one can of rice, canned
goods, three pairs of earrings, two gold necklaces, three suitcases and a trunk
of clothes, all valued at P1,313.00.

The dead body of Edilberto Estriber was found on
the beach in front of Melchor’s house, with wounds on
the left and right breast. Dr. Harry S. Marabut,
Municipal Health Officer of Basey, Samar, performed the autopsy on the cadavers of
Adriana Bago and Edilberto Estriber on October 30, 1968.  His
findings were reflected in the postmortem reports he issued, to wit:

“Adriana Bago

xxx    xxx       xxx

“III External and Internal Findings:

A.     Head and Neck – Presence of multiple
abrasions at the muchal area (semi circular) with the
fracture of the hyoid bone, blocking the air passage producing asphyxia.

B.     Thorax – Hypersthenic
Type – Opening of thoracic cavity – lungs expanded.

C.     Upper Extremities – presence of abrasions
at both wrist joints.

D.     Lower Extremities – presence of abrasions
at both ankle joints.

“IV    Cause of Death:  Asphyxia due to Strangulation (fracture of
hyoid bone).^[2]

xxx    xxx       xxx

“Edilberto Estriber:

xxx    xxx       xxx

“III External and Internal Findings:

A.     
Head and Neck – presence of multiple abrasions
at the frontal and maxillary areas with compacted sand particles.

B.  Thorax

1)    Presence of thru-thru wound at Right supra-mamary area traversing the right lung making an exit at
right scapular angle (1″ x 1/3″ x 9″).

2)    Presence of thru-thru wound at Right Infra-Mamary area hitting the right lung making an exit at Right
Infra-capular area (1″x1/3″x9″).

3)    Presence of three (3) pene­trating wounds
(1″1/3″x6″) at Right Mamary area
hitting the Right Lung.

4)    Four (4) Penetrating wounds
(1″x1/3″x5″) at left mamary area
hitting the heart and left lung.

5)    Presence of Penetrating wound at left Infra-mamary area (1″x1/3″x4″) hitting the lower
lobe of left lung.

6)    Presence of Penetrating wound (1″x1/
3″x1/2″) left supra scapular area hitting the left lung.

7)    Penetrating wound (1“x1/3″x6″) at
left Infrascapular area hitting the left lung.

8)    Penetrating wound #4 –
(1″x1/3″x4″) at right scapular area and right para vertibral areas.

— opening of the
thorax-presence of blood approximately one and a half (1-1/2) liters

NOTE – All injuries are fatal.

“IV Cause of
Death:  Shock due to injury of the heart
and Right and Left Lungs.^[3]

Melchor Bago
was also examined by Dr. Marabut and according to the
medical certificate issued to him, dated December 12, 1968, he sustained the following injuries;
which would heal from ten (10) to eleven (11) days barring compli­cations,
namely:

“1)
Abrasions (5 cm. diameter) superficial right and left lower jaw.

2) Multiple abrasions, around right and left wrist
joints.

3) Multiple abrasions, superficial, left and right
arms.

4) Multiple abrasions, around right and left ankle
joints.” (Exh.
F)

Investigation by the
authorities ensued.  A few days before December
12, 1968, the Chief
of Police of Basey, Western Samar, sent Melchor with
some policeman and a PC constable to try and trace the motorboat used in the
commission of the offense by walking along the shore starting from San Jose, Tacloban City.  Note
may be taken of the fact that only a relatively narrow strip of water separates
the south­western part of Samar from the northeastern
coast of Leyte.

Upon arriving at the
beach at San Roque, Tanauan,
Leyte, on December 11, 1968, Melchor Bago identified a boat thereat as the very same boat he saw
at Hinamok Island on October 29, 1968, except that it was painted differently in
blue.  A police sergeant of Tanauan, Leyte, who was with
them, called the owners of said boat, and when the two appellants appeared, one
after the other, and came face to face with Melchor,
the latter “had a certain unusual feeling and his hair stood on its
ends”^[4] as he recognized them to be those who had
tied him that fateful evening. 
Parenthetically, at that point of his testimony, the Fiscal placed on
record “the reaction of this witness when answering the question of the
Court with respect to the spontaneous identity of the accused, because the witness
jerked and demonstrating spontaneity as if he saw a long lost friend.” Melchor, at the time, was wearing sunglasses so he himself
would not be recognized.  Melchor then informed the police “secretly” of
the identity of his assailants but since the police were not armed with
warrants of arrest, they all returned hone to Basey,
Western Samar.

The appellants were
arrested on December 12, 1968 and were brought to Basey,
Samar, where they were investigated by the Chief
of Police.  The latter likewise filed the
corresponding Complaint for Robbery in Band with Double Homicide before the
Municipal Court of Basey on the same day.  During the investigation, both appellants
denied participation in the commission
of the robbery-homicide on October
29, 1968.  However, on December 14, 1968, a Saturday,
the Chief of Police was informed by one of the jailers that Cipring
de la Cruz wanted to confide something to him about the incident.  He was thereupon investigated anew by the
Chief of Police.  The investigation, which
was reduced to writing, was finished at past 12:00 o’clock noon but Cipring de la Cruz was unable to sign the same because the
Municipal Judge before whom the Chief of Police believed it should be signed
had already gone home.  The following
Monday, December 16, 1968, Cipring de la Cruz,
accompanied by his counsel was taken to the Municipal Judge but at that time he
refused to sign and confirm the statement he had given.

On February
26, 1969, the
corresponding Information charging appellants and three Does with the crime of
Robbery in Band with Double Homicide was filed before the Court of First
Instance of Western Samar, Branch IV, reading as
follows:

That on or about the 29th day of October, 1968, in the Municipality
of Basey, Western Samar,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused conspiring and confederating together and mutually helping
one another with John Doe, Peter Doe, and Paul Doe who are all still at large
and while armed with firearms and deadly weapons with intent of gain, with
violence against and intimidation of persons did then and there wilfully, unlawfully, and feloniously hogtie one Melchor Bago with a piece of rope
after which they forcibly entered the dwelling of said Melchor
Bago and once inside take, steal, rob, and carry away
the following personal properties, to wit:

ARTICLES                            WORTH
OF VALUE

Radio Transistor (Maharlika)                         P 170.00

Cash ——————————————-         8.50

Flashlight ————————————–         4.50

Rice, one tin can full ————————       15.00

Canned Goods ——————————-       15.00

Revolver, Cal. 38, Colt———————-       300.00

Three
pairs of gold earrings—————       150.00

Two
gold necklaces ————————       50.00

Three suitcases —————————–       50.00

One Chest box or trunk with clothes—–       550.00

Total amount—————————- P1,313.00

without and against the consent of the said
Melchor Bago valued in the
totality of P1,313.00 to the damage and prejudice of said owner in the
aforementioned amount and in pursuance of their criminal conspiracy and during
or on the occasion of the robbery with deliberate intent to kill Edilberto Estriber and Adriana Bago with treachery, evident premeditation, and with abuse
of superior strength did then and there wilfully,
unlawfully, and feloniously hog-tie and strangle Adriana Bago,
assault, attack, stab, and hack Edilberto Estriber with the weapon which they provided themselves for
the purpose which strangling resulted in the death of Adriana Bago and inflicting multiple wounds on the different parts
of the body of Edilberto Estriber
which injuries directly caused their death.

“That in the commission of the crime, the following
aggravating circumstances were present:

“1.    Nocturnity;

“2.    Use of Motor Boat;

“3.    That the crime was committed in the dwelling
of the complaining witness Melchor Bago;

“4.    That in the commission of the crime,
unlicensed firearms were used in band.

” CONTRARY TO LAW. “

Appellants denied
participation in the commission of the offense charged.  They maintained that at about 4:00 o’clock in the afternoon of October
29, 1968, both of
them, with other persons, beached their own fishing boat and that of Victoriano Mansalay as it was the
end of the fishing season.  Thereafter,
they were in the house of Victoriano Mansalay at San Roque, Tanauan, Leyte, from 5:00 o’clock in the afternoon until 12:00 o’clock midnight because they helped in the preparation of the food
for the merrymaking held in the house of Victoriano
on which occasion profits at the end of the fishing season were to be distributed.  Later, they also helped in serving food to
the guests.  They argue then that as they did not leave that place at all, they could not have been at the
scene of the crime on the date in ques­tion. 
Their testimonies were corroborated by Julian Sanchez, Victoriano Mansalay, Benedicto Campos and Francisco Mendiola.

Unconvinced, the trial Court, after hearing, convicted the
appellants as follows:

“WHEREFORE, premises above considered, the Court finds the two
accused herein Benito de la Cruz and Cipring de la
Cruz guilty beyond reasonable doubt as principals of the consummated crime of
robbery with double homicide defined and penalized under Article 294, paragraph
1 of the Revised Penal Code, and considering the two aggravating circumstances
aforementioned (in band, and use of a motor vehicle) and without any mitigating
circumstance to offset the same, hereby sentences each of the herein accused to
DEATH, to pay the costs of this case and jointly and severally to indemnify
each of the heirs of Adriana Bago and Edilberto Estriber in the amount
of P12,000.00 for each death.

xxx                            xxx                                           xxx

In this appeal, appellants attribute the following errors to the
trial Court:

1.     The lower Court erred in giving credence
and weight to the testimony of Melchor Bago as a whole especially on the point that he recognized
and identified both accused in Bo. San Roque, Tanauan, Leyte
on December 11, 1968, a
period of 43 days after the alleged incident on October 29, 1968.

2.     The lower Court erred in giving much
credence and weight to the testimony of the Chief of Police of Basey, Samar,
Antonio Tabuac to the effect that he investigated Cipring de la Cruz and that he reduced the same to writing
and which later Cipring de la Cruz refused to sign.

3.     The lower Court erred in giving much weight
to the unsigned alleged statement of Cipring de la
Cruz against said Cipring de la Cruz and against his
co-accused, Benito de la Cruz.

4.     The lower Court erred in finding both
accused responsible for the death of Edilberto Estriber.

5.     The lower Court erred in disregarding the
defense of both accused and instead of acquitting them,
the Court convicted them and imposed the penalty of death.

6.     The lower Court erred in not acquitting
both accused on reasonable doubt.

Fundamentally, appellants
assail the judgment of conviction of the lower Court on the ground that it was
based on circumstantial evidence.

Circumstantial evidence is
considered sufficient for conviction if the following circumstances are
present:  a) there is more than one
circumstance; b) the facts from which the inferences are derived are proven;
and c) the combination of all the circumstances is such as to produce
conviction beyond reasonable doubt.^[5]

There is, indeed, no direct evidence that both deceased were killed by appellants
and their companions.  We find, however,
that the combination of all circumstances in this case is sufficient to warrant
conviction with moral certainty.

Melchor Bago testified
that after being encircled by the group of five armed men, appellant Benito de
la Cruz inquired from him regarding the firearms issued to him by the
Government.  Thereafter, while he was
being tied in the cemetery, Benito also asked “what portion of your house
is open?” And he answered “the door facing the sea is now open”.^[6] Subsequently,
Benito de la Cruz told him before they left him tied to a post in the cemetery
that they would kill his wife.^[7]

At around 9:00 o’clock in
the evening, Camilo Saborrido,
a fisherman, whose house was near that of Melchor Bago, testified that he saw a “pumpboat”
anchor in front of the latter’s house. 
And more significantly, that it had come from the direction of the
lighthouse.  He declared that he could
see it clearly because it was a moonlight night.  Then he saw seven men disembark from the boat
and proceed uphill towards the house of Melchor.  The next day, he found the dead bodies of
Adriana Bago and Edilberto Estriber.^[8]

The foregoing chain of
circumstances, pieced together, in point of time and by sequence of events,
point to one conclusion – that appellants and their companions were the ones
who tied up Melchor in the cemetery; thence, they
proceeded to Melchor’s house, as they themselves had
categorically told Melchor.  In the latter place, they must still have
looked for the firearms issued to Melchor, as shown
by the fact that Melchor found things in the house in
disarray.  Thereafter, they robbed the
house and on that occasion killed Adriana Bago and Edilberto Estriber.  That Adriana was bound hand and foot is
characteristic of the same maltreatment that Melchor
received in the cemetery when his arms, his hands and his feet were also bound
and tied by appellants and their companions.

Additionally, after a
search along the northeastern coast of Leyte, Melchor
accompanied by the police, chanced upon a motorized banca
which Melchor readily identified as that which was
anchored fifty yards away from the lighthouse in the afternoon of October
29, 1968.  And when he saw the owners thereof upon being
summoned by the police, he readily recognized them to be the culprits.  If they did not recognize him nor suspected
that the police were tracking them, it was because the police disguised their
mission by inviting people to drink in a store by the seashore.^[9]

Appellants, however,
assail Melchor’s testimony in that being an old man,
64 years of age, he already had a faulty memory as
shown by the fact that he could not even remember the names of the policemen
who accompanied him during the search.^[10] While this may be so, it does not
necessarily follow that he would have the same difficulty recognizing the faces
of persons who had maltreated him and who had killed his wife.  The passage of forty-three days from the
commission of the robbery and homicide up to the date the appellants were
identified and arrested would neither dim his memory after having undergone
such a harrowing and traumatic experience.

Appellants further
contend that during the months of October, November and December, it is of
common knowledge that the days are shorter and the nights longer so that at 5:25 P.M., Melchor Bago could no longer have seen clearly the faces of
appellants.  Note can be taken of the
fact, however, that at that hour in October, objects and people are still rea­dily
discernible especially at short distances. 
It must be recalled that appellants not only came very near to Melchor, but they even tied him and talked to him.  They came close enough and stayed long enough
with him to enable him to see and remember their faces.

The inconsistencies in Melchor’s testimony, such as the
time he was released from the cemetery as compared to the hour the autopsies
were conducted, is a minor detail that does not affect his basic credibility,
but on the contrary, enhances it for it belies that his version of the incident
has been concocted or rehearsed.

The trial Court neither
erred in giving credence and weight to the testimony of the Chief of Police of Basey, Samar, to the effect that
he had investigated appellant Cipring de la Cruz and
had reduced it to writing, but that the latter changed his mind and refused to
sign it two days later.  The defense has
not presented any convincing reason that would impel us to disregard his
testimony.  As Chief of Police, he acted
in the performance of his official duty, and the legal presumption remains that
official duty has been regularly performed.^[11] In regards the unsigned statement of Cipring de la Cruz, taken on December 14, 1968, we find no
error on the part of the trial Court in admitting it as part of the Chief of
Police’s testimony.  In that affidavit, Cipring ad­mitted having been with a group at the
lighthouse at Hinamok Island, having tied an old man,
having gone to the latter’s house, and having left that place with loot, except
that he claimed that he and his brother had been merely forced to go with them
under duress and at the point of a gun. 
Considering, therefore, that the general tenor of the affidavit was
exculpatory, the defense cannot successfully allege that it was a mere
fabrication of the Chief of Police, besides the fact that it listed names of
people from Tanauan, Leyte, unknown to the Chief of Police.  And more importantly, that affidavit was not
the sole basis of conviction.  It was the
combination of circumstances surrounding the occurrence which convinced the
trial Court to adjudge the appellants
guilty; thus,

“It is true that there is no direct evidence as to who robbed
the house of Melchor Bago
and who killed his wife Adriana and one Edilberto Estriber, but the Court is fully convinced by the circumstantial evidence on record that
the two accused herein and their three unidentified companions were the ones
who robbed and killed Adriana Bago and Edilberto Estriber.  It has been proved that the persons who disembarked
from an anchored motorboat near the lighthouse and who later tied Melchor Bago inside the cemetery
were the very persons who later in that evening disembarked from the same
motorboat near the house of Melchor Bago.  Likewise, it
was proved that Benito de la Cruz, accused herein, revealed their intention to
rob and kill Adriana when he asked Melchor in the
cemetery which part of his house was opened, and then when they demanded from
him where his two pistols were being kept. 
And before they left Melchor in the cemetery,
they informed him that they are going to kill his wife.  The Court entertains no doubt that these two
accused herein and their three companions conspired and confederated and were
the ones who robbed the house of Melchor Bago and killed Adriana and one Edilberto
Estriber.”^[12]

The defense of alibi is bereft of merit.  It has been completely overthrown by the
testimony of Melchor Bago
and by the chain of circumstantial evidence herein.  Moreover, it takes only about two hours to
negotiate the distance between the house of Victoriano
Mansalay at Barrio San Roque,
Tanauan, Leyte,
where the appellants allegedly were, to Hinamok Island
where the crime was committed.^[13] It
is settled jurisprudence that
for the defense of alibi to prosper, it is not enough to prove that the accused
were somewhere else when the crime was committed but it must likewise be
demonstrated that it was physically impossible for them to have been at the situs of the crime at the time.^[14]

Upon the foregoing
premises, conviction for the crime of Robbery with Double Homicide is
warranted, with the aggravating circumstances of nighttime, and of having been
committed by a band being present, and with no mitigating circumstance to
offset them.

The crime of Robbery with Homicide is punishable by reclusion perpetua to death.15 In
consonance with Article 63(1) of the same Code, appellants should be sentenced
to the capital punishment.  However, for
lack of the required number of votes, the penalty to be imposed is the next
lower in degree or reclusion perpetua.

WHEREFORE, as thus modified, the judgment appealed from is
hereby affirmed, with the additional modification that the accused, jointly and
severally, shall indemnify Melchor Bago in the amount of P1,313.00, the value of the
articles stolen.

Costs
against accused-appellants.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Antonio, Concepcion,
Jr., Fernandez, Guerrero, Abad Santos, and De Castro, JJ., concur.

Barredo, J., votes for affirmance.

Aquino, J., did not take part.

Santos, J., abroad.

^[1]
T.s.n., April 7, 1969, p. 25.

^[2]
Exhibit “C”, p. 70, Original Record.

^[3]
Exhibit “B”, p. 68, ibid.

^[4]
T.s.n., April
7, 1969, p. 27.

^[5]
Sec. 5, Rule 133, Rules of Court.

^[6]
T.s.n., April
7, 1969, p. 12.

^[7]
T.s.n., ibid,
p. 13.

^[8]
T.s.n., May
5, 1969, pp. 35-40.

^[9]
T.s.n., Nov. 15, 1969, p. 176.

^[10]
T.s.n., April
7, 1969, p. 26.

^[11]
Section 5(m), Rule 131, Rules of Court.

^[12]
pp. 30-31, Rollo.

^[13]
T.s.n., Aug.
8, 1969, p. 124.

^[14]
People vs. Hamtig, 29 SCRA
14 (1969), and others.