G.R. No. L-27431. August 22, 1969
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FRANCISCO HAMTIG, ET AL., DEFENDANTS, FRANCISCO HAMTIG, EUTIQUIO HAMTIG AND MARIANO ALIAS ALEJANDRO OSORIO, DEFENDANTS -AP…
PER CURIAM:
Compulsory review of the decision of the Court of First Instance
of Leyte (Carigara Branch) in Criminal Case No. 3072, finding Francisco Hamtig,
Eutiquio Hamtig and Mariano alias Alejandro Osorio guilty, beyond reasonable
doubt, of robbery with homicide, and robbery with frustrated homicide, under
Article 294, paragraph 1, in relation to Article 63, paragraph 1 and Article 50
of the Revised Penal Code, with the aggravating circumstances of nighttime,
disregard of the respect due to the offended party on account of her sex, relationship
– only as regards Francisco
Hamtig, who was the son-in-law of the victim -and in band, without any
mitigating circumstance to offset the some.
The dispositive portion of said decision is as follows:
“Wherefore, the Court finds the accused Francisco Hamtig,
Eutiquio Hamtig and Mariano alias Alejandro Osorio guilty beyond reasonable
doubt of the crimes of robbery with homicide and frustrated homicide. Taking
into consideration the provisions of Article 294, paragraph 1, in relation to
Article 63, paragraph 1, of the Revised Penal Code, the Court hereby sentences
the said defendants to suffer the penalty
of DEATH for the crime of robbery with homicide; to indemnify the heirs of the
deceased Hilaria Vda de Hondolero to the amount of SIX THOUSAND PESOS
(P6,000.00), without subsidiary imprisonment in case of insolvency, the
principal penalty imposed being higher than prision correccional; and to pay the costs of the proceedings. In view of the penalty imposed for the first
offense which is DEATH, the
Court deems it unnecessary that the penalty of reclusion temporal for the
second offense of robbery with frustrated homicide shell be imposed upon the
accused and served by them. It is hereby recommended to the Chief Executive,
through the Department of Justice, that the death sentence be commuted to life
imprisonment in order to give the accused a chance to reform.”
The information filed against the defendants reads as follows:
“The undersigned Assistant Provincial Fiscal accuses FRANCISCO HAMTIG, EUTIQUIO HAMTIG, MARIANO
OSORIO, 3 JOHN DOES and FRANCISCO GASTON (the last named accused being
still at large), of the crime of ROBBERY IN BAND WITH HOMICIDE AND FRUSTRATED
HOMICIDE, committed as follows:
“That on or about the 15th day of June, 1966, in the
municipality of Carigara province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring
together and mutually helping one another and all armed with guns and pointed
bolos with intent of gain and by means of violence against and intimidation
upon persons, did then and there
willfully, unlawfully and feloniously enter the house of one HILARIA VDA. DE
HONDOLERO and MASTITO HONDOLERO and once inside rob, steal, take and carry away
against their will and consent the amount of P1,400.00. Philippine Currency to their damage and
prejudice in the said mentioned sum and that by reason and on the occasion of
the said robbery the above-mentioned accused in conspiracy did then and there
wilfully, unlawfully and feloniously shoot Hilaria Vda. de Hondolero and Mastito
Hondolero with the weapons which the accused have provided themselves for the
purpose, thereby inflicting upon Hilaria Vda. de Hondolero the following
wounds, to wit:
Gunshot, wound,
entrance 1/2 cm. in diameter with powder burns, right hypochondrium,
penetrating, perforating mesentery, retro-cecal; hemorrhage, moderately severe,
secondary.
General peritonitis, Toximia, severe.
Gunshot wound,
entrance, 1/2 cm. diameter with powder burns lateral middle 3rd, arm, right.
Exit – 1/2 cm. in diameter, posterior, middle
3rd arm, left. No exit, which wounds
caused her death.
and upon. Mastito Hondolero the following wounds, to
wit:
Gunshot wound,
entrance, 1/2 cm. in diameter
antero-medial upper 3rd, forearm, right.
Exit – 1/2 cm. in
diameter anterolateral upper third, forearm, right.
which wounds required
a period of from twenty (20) days to thirty-five (35) days to heel and
incapacitated said offended party from performing his habitual work for the
same period of time; thus the accused performed all the acts of execution which
would have produced the crime of Homicide as consequence thereof with respect
to said Mastito Hondolero but nevertheless did not produce it by reason or
causes independent of the will of the accused, that is, the timely and able
medical assistance rendered to said Mastito Hondolero which prevented his
death.
“CONTRARY TO LAW.
“Carigara, Leyte, July 27, 1966.
SGD. SALVADOR ???. SEGOVL
Assistant
Provincial Fiscal”
The following facts appear to have been fully established:
Hilaria Vda. de
Hondolero, widow, lived with her
son, Mastito, in Barrio Manloy, Carigara, Leyte. Sometime after 8 o’clock in the evening of
June 14, 1966 they went to sleep:
Hilaria and her grandson ntonio Dan-dan – who decided to stay with them
that evening – occupying the only room of the house, while Mastito lay down on
a table found in the “sala” where they had e vigil lamp.
At about three o’clock the following morning, they were suddenly awakened
by noise coming from the kitchen.
Mastito sat down on the table, took hold of his flashlight end focused
its light towards the door leading to the kitchen from which emerged four armed
persons whom he recognized as
his brother-in-law, Francisco Hamtig,
Eutiquio Hamtig, Mariano Osorio and Francisco Gaston. As the four intruders were advancing towards
him, his mother came out of the
room where the had been sleeping and upon seeing Francisco Hamtig she
exclaimed: “It is you Kikoy”. Thereupon Francisco, who was Hilaria’s son-in-law, fired at her with a
rifle hitting her in the abdominal region.
Mastito immediately went
to the aid of his mother and pulled her inside the room where the four armed
persons followed them. As they continued
firing they hit Hilaria again on the right and left arms. Mastito then decided to counter attack, and
arming himself with a bolo he found in the room, he hacked the hand of
Francisco Gaston with it, forcing the latter to go back to the sale. The other intruders, however, continued
firing and hit Mastito on the right forearm.
During ell this time, Antonio Dandan was in hiding among the buri bags
of rice in the room. On the other hand,
in spite of their wounds, Hilaria and Mastito succeeded in escaping through
the window, end went towards the house of Gonzalo Dandan Antonio’s father and
son-in-law of Hilaria – located around thirty meters away.
As Gonzalo Dandan was also awakened by successive gunshots coming
from the direction of the house of his mother-in-law, he went down his house
with a flashlight. Nearby he met his
mother-in-law and Mastito – both wounded -end helped them go upstairs. Thereafter, he went down again to look for
his son. Near the house of his mother-in-law he focused his flashlight towards
it and was thereby able to recognize Francisco and Eutiquio Hamtig, Mariano,
alias Alejandro Osorio and Francisco Gaston who were then going down the house.
As stated heretofore, Antonio Dandan hid himself behind several
burl bags of rice found in the room where he and his grandmother had
slept. From that place he later saw the
four intruders drag a trunk into
the middle of the room where they forced it open and from which Francisco Hamtig got a bag full
of money while the rest stood by, end afterwards they went downstairs
together. Antonio then jumped out of the
window and ran to his house.
Hilaria end her son were brought to the Rural Health Officer of
Capoocan, Leyte, upon whose advice they were taken to the Leyte Provincial
Hospital in Tacloban City where the Senior Resident Physician operated upon
Hilaria. The latter, however, died on
June 24, 1966 as a result of Generalized Peritonitis due to her wounds, end
secondary infection, while Mastito was able to return home the next day.
The Senior Resident Physician who examined and operated upon
Hilaria subsequently issued a medical certificate wherein he described the
wounds inflicted upon her as follows:
“Gunshot,
entrance 1/2 cm. in diameter with powder burns, right hypochondium, penetrating
perforating mesentery, retro-cecal, hemorrhage, moderately severe, secondary.
General
peritonitis. Toxomia severe. Gunshot wound entrance 1/2 cm. in diameter,
powder burns lateral middle 3rd arm right.
Exit — 1/2 cm. in
diameter, posterior, middle 3rd arm right. Gunshot wound, 1/2 cm. in diameter
posterior middle 3rd arm, left. No exit,
which wounds caused her death.”
As regards the
wounds sustained by Mastito Hondolero the same physician’s certificate reads as follows:
“Gunshot wound,
entrance 1/2 cm. in diameter antero-medical upper 3rd forearm right.
Exit — 1/2 cm. in
diameter, anterolateral upper 3rd forearm, right which wounds required a
period of from twenty (20) days to thirty five (35) days to heal and
incapacitate said offended party from performing
his habitual work for the same period of time.”
According to the evidence, on June 18, 1966 or five days before
Hilaria’s death, Sgt. Escal of the 57th P.C. Company stationed at Camp Bumpus,
Tacloban City took down her statement in the Visayan dialect, which he afterwards
translated into English, the substance thereof being to the effect that she was
shot by Francisco Hamtig who was accompanied by three other persons, and that
she was brought to the hospital on the 16th of June. Asked whether she thought she was going to
die, however, she answered “Maybe”.
The brief submitted by the counsel de oficio appointed by this
Court for the three defendants (Gaston did not stand trial because the
authorities had not been able to apprehend him) prays for the reversal of the
appealed judgment claiming (first and second assignments of error) that the
trial court erred in giving weight to the testimonies of prosecution witnesses
Mastito Hondolero, Gonzalo Dandan and Antonio Dandan; in not believing the
testimony of the witnesses for the defense, and in finding that Francisco
Hamtig was the one who shot his mother-in-law.
The third assignment of error is to the effect that the trial
court erred in ignoring the defense of alibi interposed by Eutiquio Hamtig and
Mariano alias Alejandro Osorio.
Francisco Hamtig admits that he was present in the house of his
mother-in-law in the early morning of June 15, 1966, but claims that he went
there, upon the proddings of his wife, in response to a call for help; that on
his way to said house, he stopped at that of Gonzalo Dandan whom he asked to
accompany him, but the letter refused, for which reason he had to go alone;
that he went up through the window of the kitchen because the main door was
closed; that es he was entering the “sala”, a flashlight was focused
towards him and he saw four persons besides his mother-in-law and Mastito, and
that the one who shot his mother-in-law was wearing a mask.
This version – supported almost exclusively by the testimony of
Francisco Hamtig – can not overcome the clear end positive prosecution evidence
identifying him as one of four persons who broke into the house of
Hilaria. Mastito Hondolero, his own
brother-in-law, recognized him immediately upon focusing his flashlight upon
the four intruders. Then, when Hilaria
came out of her room to find out what was the noise about, she saw him and even
exclaimed: “It is you Kikoy”, end having thus been recognized he
immediately shot her. Then, as they were
going down the house, they were positively identified by Gonzalo Dandan,
another son-in-law of Hilaria.
Moreover, Francisco’s claim that he went to the house of his
mother-in-law precisely to help her is strongly belied by his conduct. In this
connection, there is no evidence et ell that he did anything to help her by
preventing the commission of the crime; nor did he prove that he did anything
to help his mother-in-law after she was shot and when she was taken to the
hospital; in fact, he did not even visit her at the latter place, nor did he
attend her funeral. His behavior, it is
clear, strongly corroborates the prosecution evidence to the effect that he
was, not only one of the four robbers who broke into the house of his
mother-in-law but that he was precisely the one who fired at her after she had
recognized him.
Attempting to assail the reliability of the testimony of Mastito
Hondolero, the defense claims that it is full of improbabilities and
contradictions. While it must be
admitted that the testimony not only of Mastito but also of other prosecution
witnesses suffers from some flaws and inconsistencies. We are convinced that the same refer only to
minor details. As regards the main
incident; the identities of the intruders and of the person who fired at the
deceased Hilaria, their testimonies appear to be consistent with each other.
Lastly, it is contended on behalf of Francisco Hamtig that it is
not probable that he was the one who shot his mother-in-law because he is not a
holder of any licensed or unlicensed firearm; no firearm was ever confiscated
from him; there is no evidence
that powder burns were found in his person and, in fact, there was no
investigation conducted in this regard by the police authorities.
This contention is without merit.
As already stated before, the testimony of Mastito Hondolero, his own
brother-in-law end whose credibility has not been successfully assailed, proves
that he was the one who
actually fired at his mother-in-law.
That there is no evidence that he was a holder of a firearm
license is of no consequence. As he
admits that he had no license to own a firearm,
he must have shot the victim with an unlicensed firearm.
The other defendants relied on the defense of alibi.
Mariano Osorio claims that he was in the house of one Manuelita
Cabelin on June 14, 1966 where he spat blood in the afternoon of that day; that
he was treated by Manuelita and his co-accused Eutiquio Hamtig who also
happened to be in the house of the latter; that he spent the whole day of June
15 lying down and left the house only to answer calls of nature.
For his part, Eutiquio Hamtig testified that in the evening of
June 14, 1966 he was in the house of Manuelita Cabelin in Barrio Libo, four
kilometers awey from the scene of the crime; that he was fetched by Manuelita
because Mariano Osorio had spat blood; while he was there, Manuelita requested
him to boil water and perform some other minor services, and that he left her
house the following day.
Although Manuelita Cabelin corroborated the testimony of Osorio
and Hamtig regarding their presence in her house on the dates mentioned above,
the facts disclosed by the record clearly show that the trial court committed
no error in disregarding their defense of alibi.
In the first place, considering the distance that separated the
houses of said defendants and
that of Manuelita Cabelin, from that of the deceased Hilaria (four kilometers
more or less), it was not a physical impossibility for them to have been at the latter
place at the time of the commission of the crime (People vs. Palamos 49 Phil.
601; People vs. Rosabal 50 Phil. p. 780).
In the second place, his Honor, the trial judge, who had the
decided advantage of having heard the testimonies of the witnesses of both
sides and the opportunity to observe their conduct end demeanor while
testifying, gave full credit to the testimony of the prosecution witnesses to
the effect that the three defendants herein, together with Francisco Gaston,
were the ones who broke into the house of Hilaria; that it was Francisco Hamtig
who fired a fatal shot at the letter, and that, thereafter, they continued
firing at their victims, having, in fact, inflicted other wounds upon Hilaria
and also wounded her son Mastito. A
careful review of the record has failed to disclose anything sufficient to
show that the above findings made by the trial court are arbitrary or
unfounded, or that, in arriving at them, said court had failed to consider
other materiel evidence to the contrary.
Lastly, it is well known that alibi is a defense that can be
easily concocted. In the present case,
it is supported exclusively by testimony given by the same defendants who rely
upon it, corroborated by that of Manuelita Cabelin whose story about Osorio
spitting blood does not ring true at all.
WHEREFORE, We affirm the appealed decision in so far as it
sentences the three defendants named above to suffer the penalty of death for
the crime of robbery with homicide, but we increase to P12, 000.00 the
indemnity of P6, 000.00 which they were ordered to pay to the heirs of the
deceased Hilaria Vda. de Hondolero es indemnity.
Moreover, it is clear from the appealed decision that the trial
court also found said defendants guilty of the “second offense of robbery
with frustrated homicide” but deemed it unnecessary to impose upon them
the corresponding penalty “in view of the penalty imposed for the first
offense which is death”. In this
respect, the lower court erred because it should have imposed upon them the
penalty corresponding to the second offense of robbery with frustrated homicide
alleged in the information and fully established by the evidence. Consequently, considering that said second
offense is robbery in band with physical injuries under Article 294, paragraph
4 of the Revised Penal Code, since the injuries inflicted upon Mastito
Hondolero required from twenty to thirty-five days to heal, the corresponding
penalty of prision mayor in its maximum period to reclusion temporal in its
medium period should be imposed in its maximum period, in view of the
aggravating circumstances attending the commission of the crime. As a result, each and everyone of the three
defendants are sentenced to suffer an indeterminate sentence of from eight (8)
years and twenty (20) days of prision mayor, as minimum, to seventeen (17)
years, four (4) months and one (1) Gay of reclusion temporal, as maximum.
MODIFIED AS ABOVE INDICATED, the appealed decision is
affirmed in all other respects. With costs.
Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Fernando,
Capistrano and Teehankee, JJ., concur.
Barredo, J., did not take part.
Reyes and Zaldivar, JJ.,
are on leave.