G.R. No. L-28548. July 13, 1979
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FRANCISCO TOLING ALIAS IKONG, ROGELIO COMETA ALIAS CELIO, CANDELARIO BOLANDO ALIAS DODO, ROLANDO COMETA ALIAS LANDO, EMILI…
ANTONIO, J.:
Automatic review of the decision of the Court of First Instance
of Zamboanga del Sur, dated
December 1, 1967, in
Criminal Case No. 3141, in view of the capital punishment imposed on Rolando Cometa, Rogelio Cometa and Candelario Bolando. The sentence reads as follows:
“WHEREFORE, the Court finds Francisco Toling,
Rolando Cometa, Rogelio Cometa,
Candelario Bolando, and Hilario Gahito guilty beyond
reasonable doubt of the crime of Robbery in Band with Homicide, and
appreciating the aggravating circumstances of in band, nocturnity,
dwelling, and treachery regarding the killing of Isabelo
Caseres, with no mitigating circumstance to offset
the same, hereby imposes the Death penalty on all the defendants.
“The defendants are further ordered to return the things
robbed or pay the value of P59.45 in case of failure to return the same, to
indemnify the heirs of Isabelo Caseres,
in the amount of P6,000.00 to be borne equally by the five defendants, to
suffer the accessory penalties of the law, and to pay the costs.”
Originally, six (6) persons were accused of the crime of Robbery
in Band with Homicide in an Information filed in the aforesaid court on June
29, 1966, namely: Francisco Toling alias Ikong,
Rogelio Cometa alias Celio,
Candelario Bolando alias
Dodo, Rolando Cometa alias Lando,
Emilio Toling and Hilario Gahito, but only the three afore-named appellants appeared
for the promulgation of the judgment on December 19, 1967, because:
(a) Hilario Gahito
died in jail on September 26, 1967
and the case against him was dismissed on December 19, 1967;[1]
(b) Emilio Toling was not brought to
court for trial; the person arrested as Emilio Toling
turned out to be Emilio Montillano and was released
from custody;[2]
and
(c) Francisco Toling escaped from the
Provincial Jail on December 1, 1967
and was still at large when the sentence was promulgated.[3]
He cannot be considered to have appealed also because as to him the sentence
has not been promulgated.[4]
The Information wherein the appellants were charged reads:
“The undersigned First Assistant Provincial Fiscal of Zamboanga del Sur, accuses
Francisco Toling alias Ikong,
Rogelio Cometa alias Celio,
Candelario Bolando alias
Dodo, Rolando Cometa alias Lando,
Emilio Toling and Hilario Gahito, for the crime of Robbery in Band with Homicide,
committed as follows:
“That at about 11:45 o’clock in the evening of February 5,
1966, at Barrio Bag-ong Gutlang,
Municipality of Molave, Province of Zamboanga del Sur, Republic of
the Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating together and mutually helping
one another, armed with a home-made shot gun (paliuntod),
a 22 caliber homemade revolver (paltik), bolos of
different sizes and make, with intent of gain, by means of force and violence
against persons and with intent to kill with the use of said firearms, did then
and there wilfully, unlawfully and feloniously shot
one Isabelo Caseres,
thereby hitting and inflicting gunshot wounds in the different parts of his
body, which mortal gunshot wounds caused his death shortly thereafter and on
the same occasion, the same said accused enter the dwelling and/or house of one
Francisco Lumpayao, a neighbor of the deceased Isabelo Caseres and once inside,
take and carry away his personal household belongings without his knowledge and
consent and against his will, to wit:
“Two (2) Pants, One (1) Polo Shirt, Four (4) Ladies Dresses,
Two (2) Children’s Dresses, Three (3) Books for grade 2 Pupils, Four (4) Pieces
of Dried Fish, One (1) Flashlight with 3 batteries and cash money in different
denominations amounting to One Peso and Sixty Five Centavos (P1.65), all things
taken constituting a total amount of Eighty (P80.00) Pesos, Philippine
Currency, to the damage and prejudice of the said owner Francisco Lumpayao, of the aforesaid amount and also to the damage
and prejudice of the Wife and Parents of the said deceased Isabelo
Caseres.
“CONTRARY TO LAW.” (CFI Record, p. 1.)
The prosecution sought to establish that at about 11:45 o’clock in the evening of February 5, 1966, the accused,
conspiring and confederating with each other, robbed the house of Francisco Lumpayao after mortally wounding Isabelo
Caseres who had responded to Lumpayao’s
call for succor. The evidence consisted
of the testimonies of Francisco Lumpayao, Marcelino Campomanes and Florentino P. Omandam, and the
extrajudicial statements of Hilario Gahito, Candelario Bolando and Rogelio Cometa
(Exhibits “C”, and “E”, respectively). To prove the voluntariness
and due execution of Exhibits “C”, “D” and “E”,
the prosecution introduced the testimonies of Gualberto
B. Bacarro, Municipal Judge of Tambulig,
Zamboanga del Sur and
Acting Municipal Judge of Molave, Zamboanga
del Sur, Ramon P. Mabanag,
former Municipal Judge of Molave, Zamboanga
del Sur, and Paciano Guillen, Municipal Mayor of the same municipality.
According to Francisco Lumpayao, a
34-year-old farmer, resident of Bag-ong Gutlang, Molave, Zamboanga del Sur, at about 11:45 o’clock in the evening of February 5, 1966, he was awakened by
the barking of his two dogs at the porch of his house. Peeping through a hole on the wall, he saw
near his house four (4) persons, namely Francisco Toling
and Candelario Bolando, who
were astride his carabao, and the other two, Rolando Cometa and Hilario Gahito, who were standing nearby. Those astride the carabao
were trying to reach for the chickens on the eaves of the roof of his
house. Upon seeing this, he shouted:
“Robbers! Robbers!”. Because
of his shouts, the four persons scampered about the premises as far as nine (9)
meters away from his house. Shortly
thereafter, he saw Isabelo Caseres,
a neighbor of his, walking towards his house.
He called Isabelo and warned him of the
robbers, but as Isabelo was about three (3) meters
from his house, he was shot by Francisco Toling with
a shotgun. Isabelo
fell to the ground. Upon seeing this tragic
turn of events, he (Lumpayao), together with his
wife, Rosario Larawan, and their children, jumped out
of their house and ran towards the house of Florencio
Caseres, father of Isabelo,
about six hundred (600) meters away. On
the way, they met Maria Caseres, wife of Isabelo, who was also running towards her father-in-law’s
house because she heard a shot. When
they reached the house of Florencio Caseres, he shouted: “Compadre,
Isabelo was shot.” They then proceeded to hide
among the bushes nearby.
Early in the following morning, Francisco Lumpayao
returned to his house only to discover in the yard his trunk, which in the
evening before was inside his house, already emptied of its contents,
namely: two (2) pairs of pants, two (2)
lady’s dresses, four (4) children’s dresses, a flashlight, a necklace, a pair
of earrings, and cash in the amount of P1.65.
He also found out that three (3) of the books of his children were
taken. In that same morning, at about 6:00 o’clock, Lumpayao
saw the remains of the late Isabelo Caseres lying in state in the house of Florencio
Caseres.
Marcelino Campomanes,
farmer, 34 years of age, and resident of Barrio Ariosa,
Molave, Zamboanga del Sur, testified that at about 12:30
o’clock in the evening of February
5, 1966, while he was inside his house at the said barrio, he heard
the barking of three dogs. Peeping
through the little opening of the window, he saw two horses running fast, with
two persons riding on each horse. When
the horses got near his house, the riders dismounted and made their horses
fight his horse. Thereafter, three of
the four persons walked toward his house while the fourth continued to watch
the horses fighting. He noticed that the
three persons who went near his house were armed. He recognized them as Francisco Toling, who was armed with a gun, Hilario
Gahito and “Basilio“* Cometa. He did not
recognize the fourth man because he was quite far. He was able to recognize the three men
because the moon was bright — there was a full moon — and the sky was not
cloudy. After about half an hour, the
group left. He added that his place was
about two (2) kilometers away from Barrio Bag-ong Gutlang, the situs of the crime.
At about 1:00 o’clock
in the afternoon of the following day, February
7, 1966, Mr. Florentino Omandam, Provincial Sanitary Inspector of Zamboanga del Sur, upon the
request of the Chief of Police of Molave, examined
the remains of Isabelo Caseres. After the examination, he issued a
Medico-Legal Report (Exhibit “A”), showing the cause of death of Isabelo as massive hemorrhage, secondary to the six (6)
thru and thru bullet wounds. He also
issued the death certificate of Isabelo Caseres (Exhibit “B”).
On the other hand, the defendants presented their defense
consisting of denials and alibis. Hilario Gahito, Candelario Bolando and Rogelio Cometa repudiated their respective extrajudicial
statements, all contending that they were mauled or maltreated into signing the
same. Anent their alibis, Rolando Cometa, Rogelio Cometa and
Francisco Toling tried to prove that on the night in
question, they were in the house of Francisco Apa in
Barrio Moyo, Buug, which is
131 kilometers from the scene of the crime; Candelario
Bolando testified that he was in his house at Barrio Ebarle, Tambulig, 30 kilometers
from Bag-ong Gutlang; and Hilario Gahito declared that he
was at his house in Barrio Ariosa.
The prosecution presented rebuttal evidence and thereafter the
case was submitted for decision.
When the trial court was preparing its decision it discovered that
the Fiscal inadvertently omitted to present as evidence the admission of
Rogelio Cometa.
Hence, the court, motu proprio, ordered the reopening of the case to enable
the Fiscal to offer in evidence the extrajudicial statement of Rogelio Cometa. Thereafter,
the case was submitted anew for decision.
In convicting appellants Rolando Cometa,
Rogelio Cometa and Candelario
Bolando, the trial court appears to have relied
principally on the extrajudicial statements of Hilario
Gahito, Candelario Bolando and Rogelio Cometa
(Exhibits “C”, “D” and “E”, respectively).
According to Gahito, he was compelled
to join the group at 6:00 p.m., February 5, 1966 by Rogelio Cometa
to go to Barrio Bag-ong Gutlang;
that upon nearing the house of Francisco Lumpayao,
Rogelio Cometa rode on one of the carabaos
of Lumpayao, while his four companions — Francisco Toling, Candelario Bolando, Emilio Toling and
Rolando Cometa — approached the house, but suddenly
the dogs began to bark; that the owner of the house woke up and shouted for
help, and a few minutes later, a man went down an adjacent house; that it was
at this juncture that Francisco Toling fired his
shotgun at the man. As he got scared, he
ran away (Exhibit “C”).
Candelario Bolando
stated in his sworn statement (Exhibit “D”) that while he was inside
his house at about 4:30 o’clock in
the afternoon of February 5, 1966,
a friend of his by the name of Francisco Toling came
and invited him to go with him to Barrio Bag-ong Gutlang. He inquired
what was their purpose and Toling just said:
“Let us go,” and as he was afraid he might get mad at him, he did not
hesitate to go with him. His companions
in going to Barrio Bag-ong Gutlang
were Francisco Toling, Rogelio Cometa,
Emilio Toling and Rolando Cometa. On their way to said barrio, they met another
person whom he came to know later to be Hilario Gahito, and whom they also invited to go with them. When Gahito
refused, Rogelio Cometa threatened to kill him. Rogelio Cometa was
armed with a .22 Caliber “paltik“, Emilio Toling with a bolo, Francisco Toling
with a home-made shotgun; Rolando Cometa with a bolo,
while he also carried a bolo. They
arrived near the house of Francisco Lumpayao in
Barrio Bag-ong Gutlang at
about 11:00 o’clock in the
night. Upon arrival, they saw Francisco’s
carabao nearby.
Rogelio Cometa mounted the carabao. Suddenly, the dogs began barking and the
owner of the house was awakened and shouted for help from his neighbor. A few minutes later, a person whose name he
came to know later on as Isabelo Caseres
came and Francisco Toling shot him. He saw the victim fall down groaning with
pain. Later, the owner of the house,
Francisco Lumpayao, with his family, left their
house. He got out of his hiding place
and at that juncture, Rolando Cometa, Rogelio Cometa and Emilio Toling went up
the stairs of said house while he and Francisco Toling
remained on the ground. After that they
all went home. Rogelio Cometa burned some books and other papers, and some pants
and dresses which were taken from the house of Lumpayao
because they might be found in their possession. Out of the amount of P1.60 which they got,
his share was Fifty Centavos (P0.50), while Francisco Toling
got a necklace. He further stated
thereon that the shotgun used by Francisco Toling was
borrowed by Rogelio Cometa from one Fabian Cometa, father of Rogelio.
Rogelio Cometa narrated in his
extrajudicial statement (Exhibit “E”) that on the night of February 5, 1966, he was informed by
his brother-in-law, Francisco Toling, that he was
hired by his father-in-law, Magno Sejuela,
to kill one Isabelo Caseres
of Barrio Bag-ong Gutlang
because they had a misunderstanding.
Francisco Toling told him that he was hired to
kill for P250.00 so that Toling promised him P50.00
if he would go with him. He agreed. Toling was armed
with a home-made shotgun, Dodo Bolando with a bolo,
Emilio Montillano with a bolo, he brought with him a
.22 Caliber revolver (homemade), while his brother, Rolando Cometa,
was unarmed.
Thus, he testified:
“Q.
– What time did you arrive in Barrio Bag-ong Gutlang?
A. – I think its around 11:45 o’clock in the evening, more or less, but the moon
was very shiny due to good weather on that particular time.
Q. – How come that said Francisco Toling was able to shoot and kill Isabelo
Caseres?
A. – That upon arrival near the house of his
neighbor, whose name later known to be Francisco Lumpayao,
we tried to make noise with the carabao to let him
come down until the dogs of said Francisco Lumpayao
barked and barked and the said owner of the dogs was awakened, so that he
shouted for help thinking that we are robbers, and for that instant, Isabelo Caseres came down from
his house, and Francisco Toling who was aiming
already waiting for him to come down fired him a shot and I am sure he was hit
because he fell on the ground shouting for pains, and on that instant,
Francisco Lumpayao and his family run down from their
house to make their escape, so that some of us came upstairs and robbed the
house.
Q. – You have stated that you were only hired by
your father-in-law, have you received the said amount of money?
A. – None, sir, we did not receive the P250.00.
Q. – Why?
A. – After the incident, said Magno Swela evacuated with his
family and we were not able to see them, especially that we were wanted and we
were always hiding ourselves from the Molave police.
Q. – Why are you here in the office of the Chief
of Police of this municipality?
A. – I was arrested while I was sleeping in the
house of my parents at Barrio Ariosa this
municipality by a team of local police.
Q. – Are there any attempts of local police to
arrest you and you were able to make good your escape?
A. – Yes, sir, there are many times already,
and one is that in Ozamiz
City where Rogelio Bretania and his companion went inside the ship (VICTOR)
and I am to see them first, so that I was able to escape from them.”
(Exhibit “E”, CFI Record, pp. 62-63).
In connection with the execution of the extrajudicial statement
of Candelario Bolando, Gualberto B. Bacarro, Acting
Municipal Judge of Molave, Zamboanga
del Sur, testified that when the prepared statement
of Candelario Bolando was
brought to him at his office (Exhibit “D”), he read the statement
sentence by sentence and interpreted the same in Visayan,
a dialect understood by Bolando; that after he had
read a paragraph, he would ask Bolando whether his
statement was true and the latter would answer in the affirmative, after which
the same was signed by appellant. He declared
that the aforesaid prepared statement was brought to his office by Sgt. Bretania of the Molave Police
Force, and that the latter was present when the same was read and translated to
appellant.
At the hearing on October
2, 1967, Mayor Guillen testified that on October 13, 1966, the statement of
Rogelio Cometa (Exhibit “E”) was brought to
him by Sgt. Bretania.
He translated the contents thereof to Cometa
from English to Visayan and asked him whether the
contents thereof were true and correct.
It was only when he was satisfied that Cometa
understood the same and affirmed that it was voluntarily given that he allowed
appellant Cometa to sign the document and afterwards
he administered the oath to him.
In their brief, appellants contend, among others, that the trial
court erred in reopening motu proprio the proceedings after the case had been
submitted for decision, simply to enable the prosecution to present evidence
which it overlooked or failed to submit at the trial; that the trial court
erred in admitting and relying upon the confessions of Hilario
Gahito, Candelario Bolando and Rogelio Cometa as
competent evidence against each other and as against their co-accused Rolando Cometa; and that the trial court erred in holding that the
crime committed was Robbery in Band with Homicide under Article 294, paragraph
1 of the Revised Penal Code.
With reference to the reopening of the proceedings after both sides
had rested and the case submitted for decision, We hold that the trial court
was not in error. As early as in 1907,
this Court held in U. S. v. Cinco,[5]
that “judges of the Courts of First Instance are judges of both fact and
law, and after all the evidence adduced by the attorneys, if the court is not
satisfied, we see no reason why he should not be permitted to call additional
witnesses for the purpose of satisfying his mind upon any questions presented
during the trial of the case.” Also, in U. S. v. Base, et al.,[6]
it has been held that “if the lower court is not satisfied with the
evidence adduced by the attorneys in criminal cases, with reference to a particular
point, he may, on his own motion, call additional witnesses or recall some of
the same witnesses, for the purpose of satisfying his mind with reference to
particular facts involved in the case.”
As to the confessions of Candelario Bolando and Rogelio Cometa, We
find them to have been freely and voluntarily executed. For one thing, the confessions themselves
are indicative of their spontaneity and the truth. As the narration of facts in the
extrajudicial confessions of Bolando and Cometa will show, the essential details, except for the
alleged plot to kill Isabelo Caseres,
when pieced together are identical and reveal a complete story of the entire
incident from its inception to its consummation.
Thus, the initial meeting between Francisco Toling
and Candelario Bolando at
4:30 p.m. on February 5, 1966 wherein Bolando was
induced by Toling to go with him to Barrio Bag-ong Gutlang; the subsequent
meeting between Toling and his brother-in-law,
Rogelio Cometa, where Francisco Toling
induced Rogelio Cometa to go with him to Barrio Bag-ong Gutlang to kill one Isabelo Caseres who had a
misunderstanding with his (Rogelio’s) father-in-law, for which reason he (Toling) was hired by Rogelio’s father-in-law to kill Isabelo, and Toling’s promise to
Rogelio Cometa that he would pay him P50.00; their
trip to Barrio Bag-ong Gutlang
and the recruitment along the way of Rolando Cometa, Hilario Gahito and Emilio Montillano;[7]
the circumstance that Rogelio Cometa was armed with a
.22 Caliber revolver, Francisco Toling with a
home-made shotgun, Emilio Montillano with a bolo,
while Rolando Cometa and Candelario
Bolando had none; the events that transpired upon
their arrival near the house of Francisco Lumpayao at
about 11:00 o’clock in the evening of that date — such as the barking of the
dogs and the shooting of Isabelo Caseres
— which dovetail with the testimony of Francisco Lumpayao. The aforesaid statements contain only minor
and somewhat contradictory details.
Thus, one said Rolando Cometa had a bolo,
while the other said he was unarmed. Bolando stated that he did not know the purpose of their
mission and only was told along the way that they were going to rob Lumpayao, while Rogelio categorically declared that their
purpose was to kill Isabelo. There were also exculpatory statements, such
as the attempt of each declarant to show that not one
of them committed any overt act, either in the killing of Isabelo,
or in the robbery in the house of Lumpayao. The disclosure of such details which only the
declarants could have known, and the improbability
that such details could have been concocted by the police, the failure of the
appellants to complain to the municipal judge and the mayor before whom the
confessions were sworn, the evident attempt of each declarant
to exculpate himself, their delay in complaining to the authorities about their
alleged maltreatment, demonstrate clearly that their claim of maltreatment was
an afterthought and their said confessions were freely and voluntarily made.
Under the facts, the extrajudicial confessions of appellants
Rogelio Cometa and Candelario
Bolando should have been admissible only against said
declarants and not as the basis for the conviction of
Rolando Cometa.
The rule on interlocking confessions is – “where extrajudicial
confessions has been made by several persons charged with a conspiracy and
there could have been no collusion with reference to the several confessions,
the fact that the statements are in all material respects identical is confirmatory
of the testimony of an accomplice.”[8]
In other words, such extrajudicial declarations may, under certain conditions,
be taken into consideration as a circumstance in judging the credibility of the
testimony of an accomplice. In the case
of Rolando Cometa, there is no testimony implicating
said appellant which the aforesaid extrajudicial confessions would confirm or
corroborate.
We agree with the appellants that they should not be convicted of
Robbery in Band with Homicide. Rogelio Cometa positively declared that for a price of P50.00, he
joined Francisco Toling in the latter’s plan to kill Isabelo Caseres of Barrio Bag-ong Gutlang inconsideration of a
reward of P250.00 promised by Magno Sejuela who wanted Isabelo Caseres to be killed.
Relating this declaration with the shooting and killing of Isabelo Caseres by Francisco Toling, We cannot escape the conclusion that indeed the
purpose of the group was to kill Caseres. In this connection, We hasten to state that
while Candelario Bolando
stated that he was told along the way that their purpose was to rob Francisco Lumpayao, said statement cannot prevail over the positive
declaration of Rogelio Cometa as to their purpose, it
appearing that Franciso Toling,
who did the killing, and his brother-in-law, Rogelio Cometa,
were the ones who organized and led the group in the criminal enterprise. It is not improbable that they did not
immediately reveal to Bolando their criminal purpose
in order to induce the latter to go with them.
They were the leaders, while Candelario was
merely a minor follower. Indeed, the
actuations of the appellants indicated that the robbery was an afterthought
which arose only when they saw that Lumpayao and his
family have, because of fear, abandoned their house.
The rule is that where the original design comprehends robbery in
a dwelling, and homicide is perpetrated with a view to the consummation of the
robbery, the crime committed is the complex offense of robbery with homicide even
though homicide precedes the robbery by an appreciable time. If the original design was not to commit
robbery but robbery was committed after the homicide as an afterthought as a
minor incident in the homicide, the criminal acts should be viewed as
constitutive of two distinct offenses and not as a single complex offense.[9]
The rule is that where a complex crime is charged and the
evidence fails to support the charge as to one of the component offenses, the
defendant can be convicted of the other.[10]
Where the defendant is charged with robbery with homicide, he may be convicted
of one of them.[11]
Likewise, when a person is charged with a crime and the evidence
does not show that he is guilty of the crime charged, but does show that he is
guilty of some lesser offense, the court may sentence him for the lesser
offense provided the lesser offense is a cognate offense and is included in the
complaint filed with the court.[12]
In the instant case, it should be noted that the crime charged was
Robbery with Homicide, which, being a special complex crime, is definitely
higher than the single crimes of homicide and robbery.[13]
If there is no express or implied conspiracy among two or more persons
taking part in the commission of the crime, then their liability is regarded as
individual or separate. Here, conspiracy
has not been sufficiently proven. It
does not appear that the appellants had a common plan or common criminal
design. According to Bolando’s
extrajudicial confession, he went along with Toling
because he was afraid to displease the latter.
It was only when they were on their way to the barrio that he learned
that the purpose was to rob one Francisco Lumpayao. Rogelio Cometa,
however, in his extrajudicial confession maintained that his purpose with
Francisco Toling was to kill Isabelo
Caseres.
Neither could conspiracy be inferred from the acts of Candelario Bolando or Rolando Cometa, since the two had not cooperated in any manner with
Francisco Toling and Rogelio Cometa
for the realization of the latter’s criminal purpose. Candelario Bolando and Rolando Cometa could
not, therefore, be held responsible for the death of Isabelo
Caseres.
Considering, however, that Bolando admitted
that after knowing that they were going to rob someone he still went with them
to Barrio Bag-ong Gutlang
and although he did not directly participate in the robbery he gave moral
encouragement to them with his presence and shared in the loot in the amount of
Fifty Centavos (P0.50), he should be criminally responsible as an accomplice
for the crime of robbery.
An accomplice is one who cooperates in the execution of the crime
by previous or simultaneous acts, provided that he has not taken direct part in
the execution of the crime or forced or induced others to execute it, or
cooperated in its perpetration by an indispensable act. The crime committed is robbery with force
upon things, since the trunk of the offended party was taken from his house and
forcibly opened in the yard.[14]
Pursuant to the fifth paragraph of Article 299 of the Revised Penal Code, when
the value of the property taken does not exceed Two Hundred Fifty Pesos
(P250.00), the penalty for the offense is prision
mayor. The impossable
penalty on appellant Bolando is the penalty next
lower in degree than that prescribed by law for the consummated felony,[15]
which in the instant case should be prision correccional to be applied in its medium period, in
the absence of any aggravating or mitigating circumstance.
In the case of appellant Rogelio Cometa,
he admitted he agreed to the offer of Francisco Toling
that if he would go with him to kill Isabelo Caseres he would be paid P50.00 (Exhibit
“E”). As a matter of fact, he
went with Toling after arming himself with a Caliber
.22 home-made gun. On the way to Barrio
Bag-ong Gutlang, he even
forced Hilario Gahito to
join them. He was with Toling when the latter treacherously shot Isabelo Caseres. He should, therefore, be liable as a
co-principal in the crime of homicide, since the crime of murder is not
necessarily included in the information for robbery with homicide.
It appears also from the evidence that it was Rogelio Cometa who went up and ransacked the trunk of the Lumpayaos. He is,
therefore, guilty as a principal in the crime of robbery, defined and penalized
by Article 299, paragraph b, sub-paragraph 2, of the Revised Penal Code.
Upon the other hand, Rolando Cometa
cannot be held criminally responsible as principal of either the crime of
homicide or robbery since there is no direct proof that he conspired with his
co-appellants or directly participated in the commission thereof. He cannot also be held criminally responsible
as an accomplice. In order to hold one
liable as an accomplice, it is essential that it be proved beyond reasonable
doubt that between the supposed accomplice and the principal, there is
community of criminal purpose which implied that it be shown that the supposed
accomplice committed the acts imputed to him with the intention to help morally
or materially in the commission of the crime.[16]
Here, it has not been convincingly established that appellant
Rolando Cometa, knowing of the criminal purpose, has
given aid or encouragement, either morally or materially, in the commission of
the crime. Such circumstances being
absent, his mere presence at the scene of the crime does not make him an
accomplice.[17]
ACCORDINGLY, the judgment of the court a quo is hereby
modified as follows:
(a) finding Rogelio Cometa alias Celio guilty beyond reasonable doubt of the crimes of
Homicide, aggravated by treachery, and of Robbery, and imposing upon him, for
the crime of Homicide, an indeterminate penalty ranging from eight (8) years of
prision mayor as the minimum, to
eighteen (18) years of reclusion temporal as the maximum, and
ordering him to indemnify the heirs of Isabelo Caseres in the amount of P12,000.00; and for the crime of
Robbery, an indeterminate penalty ranging from four (4) years and two (2)
months of prision correccional
as the minimum, to eight (8) years and one (1) day of prision
mayor as the maximum, and to indemnify Francisco Lumpayao
in the amount of P200.00;
(b) finding Candelario Bolando alias Dodo guilty as an accomplice in the
crime of Robbery and sentencing him to suffer an indeterminate penalty ranging
from six (6) months of arresto mayor as
the minimum, to two (2) years, four (4) months and one (1) day of prision correccional
as the maximum of the penalty, and to indemnify Francisco Lumpayao
in the amount of One Hundred Pesos (P100.00), without prejudice to the
provisions of Article 110 of the Revised Penal Code; and
(c) Rolando Cometa alias Lando is hereby ACQUITTED on the ground of reasonable
doubt, with proportionate part of the costs de oficio.
The period of preventive imprisonment shall be deducted from the
term of imprisonment of Rogelio Cometa and Candelario Bolando, pursuant to
Article 29 of the Revised Penal Code, as amended.
With costs against appellants.
SO ORDERED.
Fernando, C.J., Barredo, Concepcion, Jr., Santos, Fernandez, Guerrero, Abad Santos, De Castro, and
Melencio-Herrera, JJ., concur.
Teehankee, Makasiar,
and Aquino, JJ., no
part.
[1]
Order dated December 19, 1967,
CFI Record, p. 125.
[2]
Order dated October 1, 1966,
CFI Record, p. 53-A.
[3]
Order dated December 19, 1967,
supra.
[4] People
v. Jaranilla, L-28547, Feb. 22, 1974, 55 SCRA 563.
*
“Basilio” is Rogelio Cometa
(Exhibit “C”).
[5]
No. 3664, August 17, 1907,
8 Phil. 388.
[6]
No. 3961, October 12, 1907,
9 Phil. 48.
[7]
As mentioned in the affidavit of Rogelio Cometa
(Exhibit “E”). In the affidavit
of Candelario Bolando,
Exhibit “D”), he is referred to as Emilio Toling.
[8] People
v. Badilla, No. 23792, Feb. 17, 1926, 48 Phil. 718.
[9]
“From the fact that the killing and the robbery did not take place in the
same place, the appellants contend that the crime committed cannot be robbery
with homicide. But it appears from the
facts proved that appellants had the intention of robbing Omblero
when their leader asked him for money and threatened him with death if he
refused and that after shooting him down and thus eliminating an obstacle to
the effectuation of their unlawful design, they repaired to his house, which
was nearby, and by force, took his money therefrom. It is thus clear that the killing and the
robbery are not isolated acts, for there is a direct connection between the
two. The killing sprang from the idea of
robbing and was but a step in the perpetration of the robbery. In the circumstances, we have no hesitation
in saying that the killing was done by reason or on the occasion of the
robbery, so that appellants are guilty of the special complex crime of robbery
with homicide (Article 294, paragraph 1, Revised Penal Code).
“When there is direct relation
and intimate connection between the robbery and the death of the owner of the
property stolen, by reason of the death having preceded the robbery and of the
fact that the crime sprang from the idea of robbery, the accused beginning the
criminal act by killing their victim, such crimes cannot be separated into two
distinct crimes of robbery and of homicide or murder, nor consequently, can
the criminal liability of the defendants be divided in accordance with such
participation as they may have had in one part of the crime or the other, nor
can they be sentenced for the crime of robbery independently of that of
homicide or murder. In other words, if
there is a direct relation, an intimate connection between the robbery and the
killing whether the latter be prior or subsequent to the former, or whether
both crimes be committed at the same time – it is unquestionable that they
constitute the complex crime defined in article 294, paragraph 1, of the Penal
Code.” (Guevara, Revised Penal Code, p. 576, citing People v.
Hernandez, 46 Phil. 48; People v. Napoleon Libre, 93 Phil. 5, 8.)
[10] U.S.
v. Lahoylahoy, et al., No. 12453, July 15, 1918, 38 Phil. 330.
[11] U.S.
v. Paddit, et al., No. 583, Oct. 15, 1902, 1 Phil. 426.
[12] US. v. Nery, No. 1989, Jan.
22, 1905, 4 Phil. 158; People v. Castillo,
CA-No. 227, Feb. 1, 1946, 76 Phil. 72.
[13] U.S.
v. Abelinde, et al., No. 945, Dec. 19, 1902, 1
Phil. 568; People v. Andam, L-11383, April 30,
1958 (Unrep.), 103 Phil. 1129; People v. Mori,
L-23511 L-23512, Jan. 31, 1974, 55 SCRA 382.
[14]
Article 299, par. b, sub-par. 2, of the Revised Penal Code.
[15]
Article 52, Revised Penal Code.
[16] People
v. Tamayo, No, 18289, Nov. 17, 1922, 44 Phil. 38.
[17] People v. Madera,
L-35133, May 31, 1974, 57
SCRA 349.