PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. ADRIANO DAGUNDONG, FEDERICO BULAON, MELCHOR LAO AND RICARDO SERRANO, DEFENDANTS. ADRIANO DAGUNDONG, FEDERICO BULAON AND RI…

In the Court of First Instance of Rizal, Adriano Dagundong, Melchor
Lao, Federico Bulaon, Ricardo Serrano and Joseph Ebrada were charged
with the crime of frustrated robbery in band with homicide. Upon motion
of the provincial fiscal, the court ordered Ebrada discharged from the
information in order that he could be utilized as a state witness.

After due trial with respect to the rest of the accused, the court
found all the defendants, except Dagundong, guilty of frustrated
robbery with homicide, with the aggravating circumstances of nighttime,
abuse of superior strength, and commission of the crime with the aid of
a motor vehicle, without any mitigating circumstance, and sentenced
each of the three defendants, Melchor Lao, Federico Bulaon and Ricardo
Serrano to reclusion perpetua; found Adriano Dagundong guilty
of murder, qualified by treachery, with the aggravating circumstance of
nighttime, in band, abuse of superior strength and commission of the
offense with the aid of a motor vehicle, without any mitigating
circumstance, and sentenced him to death; and also sentenced all of the
four accused to indemnify jointly and severally the heirs of the victim
Mamey Lake Hewell in the amount of P6,000.00, with subsidiary
imprisonment in case of insolvency, and the accessories of law, and to
pay the costs.

All four accused appealed, but Melchor Lao subsequently withdrew his
appeal. So, this is with respect only to the appeal of accused Adriano
Dagundong, Ricardo Serrano and Federico Bulaon.

The following facts are not in dispute: On October 7, 1950, Alice
Lake, more popularly known as movie actress Anita Linda, lived at No.
13 Pasong Tamo, Makati, Rizal, together with her son, her sister Mrs.
Mamey Lake Hewell, and the latter’s children, Josephine, Patricia,
Johnny and Helen. At about 7 p.m. of said date, Alice, who was then in
her bedroom, requested her niece Josephine, then 12 years old, to get
her a glass of milk from the kitchen. As Josephine entered the kitchen,
she suddenly came face to face with a man holding a gun. This gunman
was small in stature, fairly, built and was wearing a checkered shirt
with long sleeves, dark colored pants, gloves and army shoes. On his
head he had a balangot hat, and over his face a black mask
with two holes for the eyes. Instinctively, Josephine screamed. The
gunman told her to keep silent and to return to the sala. With the gun
held against her back, the gunman followed her into the sala, where
they found Patricia. The gunman motioned Patricia to come nearer to
Josephine.

At this time, Alice and her sister, Mrs. Hewell, startled by
Josephine’s scream, rushed out of the their respective bedrooms. When
they reached the sala they came upon Josephine and Patricia, and the
gunman who had his gun stuck at Josephine’s back. As Mrs. Hewell knelt
before the gunman and pleaded for her daughters, saying: “Maawa po
kayo, huwag po”, Patricia and Josephine ran to their aunt Alice.
Without compunction, the gunman levelled his gun straight at Mrs.
Hewell’s face.

Meanwhile, Alice, together with her nieces, had fled into her
bedroom. Shortly thereafter, several shots, not less than five, were
heard coming from the sala. Alice and the children screamed. Alice
wanted to go out to help her sister, but the two girls prevented her by
locking the bedroom door. A moment later, they heard someone knock on
and then kick the door to Alice’s bedroom. Then complete silence. After
some minutes, Alice heard the noice of a jeep moving away and going
towards Sta. Ana. Feeling certain that the malefactors had left for
good, Alice shouted for help. Her outcries were heard by the driver of
a passing taxicab, who lost no time in bringing the Makati police to
the scene.

Upon entering the sala, the police came upon Mrs. He well’s
bullet-ridden body lying on the floor. In the course of their
investigation, the policemen came across three .45 caliber empty shells
about a meter from where Mrs. Hewell lay, and four other empty shells
outside the premises. They also discovered five slugs, three of which
were extracted from the wall leading to Alice’s bedroom, and about two
meters from Mrs. Hewell’s feet, and the remaining two from the wooden
cabinet which stood between the doors leading to the sala and the
kitchen. On entering Mrs. Hewell’s bedroom, the police found that it
had been ransacked. After the removal of Mrs. Hewell’s corpse, Alice
went into her sister’s bedroom and found it in the same condition as
the policemen had found it, but she did not notice anything missing
therefrom.

According to Dr. Enrique de los Santos, Chief, NBI, Medico Legal
Division, who performed the necropsy on the body of Mrs. Hewell, she
sustained 5 penetrating gunshot wounds, three of which were located on
the right and left chest, and the other two on the back; that said
wounds were produced by .45 caliber bullets; that the bullets hit the
liver, lungs, and pancreas of the deceased; and that death was due to
shock.

The prosecution established by means of the testimony of Joseph
Ebrada, one of the original accused but who was discharged in order to
be a prosecution witness, that: On October 5, 1950, Melchor Lao went to
see Ebrada in his place in Cavite, in order to borrow the jeep which
Ebrada had in turn borrowed from a certain Terio Manimbao of
Malagasang, Imus, Cavite. The jeep bore a PI plate number. At Lao’s
invitation, Ebrada went with him. They were then joined by appellants
Dagundong and Serrano in going to the New Bilibid Prisons in
Muntmglupa, Rizal. There, Lao and appellants Serrano and Dagundong
visited Pablo Rabaton, an inmate. After thirty minutes they left and
proceeded to Makati, Rizal. Along the way, appellant Dagundong stated
that they must raise money with which to bail out Rabaton, and if
necessary to commit robbery in order to do so. Ebrada, Lao and
appellant Serrano agreed to this proposal.

At about 7 in the evening of October 7, 1950, Lao went to see Ebrada
in his house in Guadalupe, Makati, Rizal, in order to borrow again the
jeep. At Lao’s behest, Ebrada drove the jeep to Olympia. There they
picked up appellants Bulaon, Dagundong and Serrano. The jeep then
proceeded to Buendia, Makati, Rizal. The jeep stopped some distance
from the house of Alice Lake. Leaving Lao in the jeep, appellants and
Ebrada, all of them armed, alighted and walked along the creek up to
the stone wall behind the house. They then stepped over the wall which
was about two feet high. Once inside the premises, appellant Dagundong
instructed Ebrada to stand guard near the window on the left side of
the house, and appellant Serrano on the right side. Dagundong and
Bulaon then entered the house through the kitchen. After two minutes,
Ebrada heard a shot coming from the house, whereupon, a .45 caliber
pistol in hand, he rushed inside, passing through the kitchen door.
Upon reaching the sala, he saw a woman sprawled on the floor. Dagundong
and Bulaon came out of the room adjoining the sala. The former was
holding a .45 caliber army pistol. In order to stop the screaming of
the two little girls, Ebrada fired twice at the wall. Immediately
after, Ebrada and his companions ran towards the waiting jeep and fled
from the scene. On the way to Olympia, the three appellants got off.
The jeep proceeded to Cavite City where Lao dropped off Ebrada then
drove to Malagasang, and upon arrival there returned the jeep to its
owner.

Rejection of Ebrada’s testimony is urged upon us by appellants on
three grounds, to wit: (1) he had been improperly discharged from the
information; (2) his testimony comes from a polluted source; and (3) he
incurred many inconsistencies.

Appellants Serrano and Bulaon claim that Ebrada’s discharge violates
the provisions of Section 9, Rule 115, Rules of Court, more
particularly paragraph 5, thereof, because Ebrada has twice been
convicted of robbery. Whether or not he was improperly discharged is of
no moment in determining his credibility. The provisions of Section’9,
Rule 115, Rules of Court, are aimed at preventing the unnecessary or
arbitrary exclusion from the information of persons guilty of the crime
charged, but it has no bearing on the admissibility of their testimony
or their competency as witnesses (People vs. Castañeda, 63
Phil., 480). The rule merely lays down the requisites which should
control the court in the exercise of its discretion in discharging
accused persons in order that they may be used as witnesses against
their co-accused, so we must search elsewhere for the rules governing
the competency, admissibility, relevancy and probative value of the
testimony of these witnesses when it is offered in evidence, after they
have been discharged by the court to become prosecution witnesses. (U.
S. vs. Abanzado, 37 Phil., 658).

To a large extent, identification of the culprits depended on
Ebrada. Appellants maintain that because he is confessedly one of the
perpetrators of the crime, he does not merit credence. Having come from
a polluted source, his testimony, naturally, was subject to the gravest
suspicion, but a meticulous review of the evidence convinced us of
Ebrada’s reliability.

Before the filing of the criminal information, Ebrada had executed a
sworn written statement before Lt. Ver and in the presence of Provincal
Fiscal Nicanor Nicolas, wherein he admitted his complicity in the crime
and he named the three appellants herein and also Melchor Lao as his
companions in the commission thereof (Exhibit L). Lao also made a
verified statement on the same date and before the same officials,
wherein he likewise admitted his participation in the robbery (Exhibit
K). Ebrada’s testimony in court was but a more detailed reiteration of
what he stated in his sworn statement. His testimony finds
corroboration in Lao’s statement which relates a version of the crime
similar to that narrated by Ebrada.

It is alleged, however, that Lao’s extrajudicial confession is
admissible only against himself but not against appellants herein. The
rule is that a statement made by a conspirator relating to the
conspiracy and during its existence, may be given in evidence against
the co-conspirators after the conspiracy is shown by evidence other
than such statement (Section 12, Rule 123, Rules of Court). As to the
existence of the conspiracy, we have Ebrada’s testimony that two days
prior to the commission of the crime, he, Lao and appellants Dagundong
and Serrano agreed on committing the robbery and that on the very day
thereof, the four of them, joined this time by appellant Bulaon,
carried into execution their criminal plot. The conspiracy having been
proven, Exhibit K is therefore admissible in evidence even as against
appellants.

No ill motive on Ebrada’s part has been adduced to prove that he had
testified falsely against appellants. Furthermore, his testimony bears
the earmarks of truth in that it is replete with details which could
have been known only to one who was actually present during the
commission of the crime. He knew the description of the malefactor who
was first in entering the victim’s house, the very gunman who had
intimidated Josephine Hewell, Patricia Hewell and Alice Lake, and had
aimed his gun at Mrs. Hewell’s face. According to Ebrada, said gunman
was a little over 5 feet, 2 inches tall and fairly built; and that he
had a black mask covering his face, a balangot hat on his
head and wore fatigue pants and army shoes. This description tallies
perfectly with that given by Alice Lake and Josephine Hewell, both of
whom had seen the gunman at close range, and therefore were in a
position to remember his appearance. Alice Lake, however, had added
that the gunman also wore a long sleeved shirt and on his hands he had
gloves, while Josephine Hewell had specified that the gunman wore a
checkered shirt with long sleeves. The height and build of the gunman,
as described by Alice Lake and her niece, coincides with that of
appellant Dagundong, so there can be no doubt as to the veracity of
Ebrada’s statement that he was the gunman who had first entered the
yictim’s house.

Ebrada testified that right after he heard the sound of the first
shot coming from the house he rushed into the sala; and that he then
fired two shots directed at the wall in order to stop the screaming of
the girls. Proof of this is that in the course of their investigation,
the Makati police found in the sala of the victim’s house, five slugs,
three of which were embedded on the wall leading to Alice Lake’s
bedroom.

Mrs. Hewell’s fatal wounds were produced by .45 caliber bullets.
According to Ebrada, Dagundong was armed with a .45 caliber army
pistol; and that after they left the house of Alice Lake and while they
were on their way back to Olympia, appellant Dagundong handed his
pistol to Lao and ordered him to dispose of it. This was confirmed by
Lao in his statement (Exhibit K). As a matter of fact, Lao was charged
with illegal possession of firearms for having been caught with the
very same pistol in his possession (Exhibits J and J-1).

The alleged inconsistencies in Ebrada’s testimony are merely
superficial. It is true, as alleged by appellants, that he did not know
about the plan to commit robbery in the house of Alice Lake. He knew
that they were going to commit robbery, but at the time appellant
Dagundong first apprised him of the criminal plan, the intended victim
was not specified.

Appellant Dagundong’s counsel appears confused as to the time and
day that Lao borrowed Manimbao’s jeep from Ebrada. This may be due to
the fact that Lao borrowed the jeep twice, once, in the afternoon of
October 5, 1950, in order to go to the national penitentiary in
Muntinglupa; and the second time, in the evening of October 7,1950,
when they used the same jeep in committing the crime. Eleuterio
Manimbao, owner of the jeep, testified that when the crime was
committed, his jeep was in Ebrada’s possession, having been borrowed by
the latter.

Appellants argue that Ebrada committed an inconsistency when he
declared that he heard one shot, when the fact was that there was more
than one shot fired. What Ebrada stated was that upon hearing the first
shot, he immediately ran inside the house. The succeeding shots were
fired while he was running towards the sala, passing through the
kitchen.

Another contention of appellants is that there is a contradiction
between the testimony of Ebrada and that of Alice Lake respecting the
time the crime was committed. We do not find such a discrepancy in
their statements as would inescapably lead to the conclusion that
either was lying. In fact they corroborate each other that the crime
must have taken place between 7 and 8 in the evening of October 7, 1950.

The lower court which had the chance of observing Ebrada’s
deportment on the witness stand, after a painstaking scrutiny of his
testimony, arrived at the conclusion that he deserved credence. We find
no ground for reversing its findings.

Appellant Dagundong brands as incredible Alice Lake’s statement that
after she and her nieces had locked themselves in Alice’s room,
somebody knocked on and then kicked the door. We find nothing
unbelievable in this. One of the malefactors wanted to enter Alice’s
bedroom and ransack it for valuables (as was done in Mrs. Hewell’s
bedroom), and upon finding it locked expressed his frustration by
kicking the door. Contrary to appellant Dagundong’s claim, Alice Lake
was positive that there was more than one culprit. She saw only one of
the malefactors but she heard outside her window the voices of the
other robbers.

Attempt was made by appellants to show that Ebrada and Lao agreed to
admit their guilt and incriminate appellants by making their respective
statements, so they can claim the monetary reward allegedly offered by
Alice Lake. But there is not a shred of evidence proving that Alice
Lake had offered a reward to anybody. She denied having put up a
reward, or even of talking with either Ebrada or Lao. It was not shown
that such offer of reward appeared in the newspapers. Besides, if
Ebrada and Lao just wanted to collect such alleged reward, all they had
to do was to confess to the crime, without need of implicating
appellants.

In view of the strong evidence establishing appellants’ complicity,
their respective alibis must necessarily be rejected as vain attempts
calculated to evade criminal responsibility. The defense sought to
prove that from the middle of September to about a week before
Christmas, 1950, appellant Serrano was in Pulilan, Bulacan, harvesting
palay. But his alibi failed to impress us. He could not say who was the
overseer or the owner of the land he helped harvest; nor could he state
how much rice he received as his share in the harvest. Appellant
Dagundong’s alibi is that from 3 in the afternoon of October 7, 1950 up
to 5 in the morning of October 8, 1950, he was playing “44” at a
gambling house located beside the Sta. Ana racetrack. But his witnesses
had no reason to particularly remember October 7, 1950, and to
distinguish it from the other days when he also played the game in the
same place, it appearing that during the month of October, 1950, he
played there almost everyday. Besides, according to one of the
witnesses for Dagundong, the game of “44” is not played continuously
for the players may leave for lengths of time. In view of this, and
considering the nearness of the place to the house of Alice Lake, we
believe that appellant Dagundong was one of the robbers. Appellant
Bulaon claims that from October 1 to 10, 1950 he was in Santol,
Guiguinto, Bulacan, “smoking” mango trees. But considering that Bulacan
is not very far from Makati and that there is a great facility of
transportation, Bulaon could easily have been in the scene of the crime
at the time of its commission.

After judgment in this case was promulgated, a motion for new trial
was presented, based on the alleged retraction of Joseph Ebrada and the
affidavit of Pablo Rabaton to the effect that appellants never visited
him in Muntinglupa; and that he and Melchor Lao were the ones who
concocted the idea of opening the case of Mamey Lake Hewell so they
could claim the big reward being offered by Alice Lake for the solution
of her sister’s death. Citing the case of People vs. Castelo,
97 Phil., 398; 51 Off. Gaz. [8] 4043), appellants argue that the lower
court should have granted their motion in view of Ebrada’s retraction.
The cited case is authority for the rule that a motion for new trial
may be granted when it is made to appear that there is no evidence
sustaining the judgment of conviction other than the testimony of the
recanting witness. But appellants’ conviction does not entirely depend
on Ebrada’s testimony, but is supported by other evidence of record
which we have already mentioned. Retractions of witnesses cannot be
made the basis of new trial (People vs. Olfindo, 47 Phil., 1; People vs.
Follantes, 64 Phil., 527), unless conviction of the accused rests
solely on the testimony of the retracting witnesses (U. S. vs. Decir,
26 Phil., 503). And the latter is not the case herein. Furthermore, the
affidavits of Ebrada and Rabaton cannot be deemed newly discovered
evidence, for with the use of reasonable diligence, appellants could
easily have obtained and presented such evidence during the trial.
Indeed, during the cross-examination of Ebrada, the defense tried hard
to make him admit that appellants were innocent of the charge, but
Ebrada stuck to his declaration that appellants were participants in
the crime. Also, appellants knew that Pablo Rabaton was confined in the
New Bilibid Prisons and could have presented him in court during the
trial, but they did not do so. The lower court was correct in denying
the motion for new trial.

We agree with the lower court that appellants Bulaon and Serrano are
guilty of the crime of frustrated robbery with homicide, under Article
297, Revised Penal Code, in relation with Article 296, Revised Penal
Code, as amended by Republic Act No. 12 inasmuch as it has been proven
beyond reasonable doubt that they had conspired to commit the robbery;
and that they actually took part in the commission thereof, appellant
Serrano by standing guard outside the victim’s house while appellant
Bulaon accompanied appellant Dagundong inside the house and helped him
ransack the victim’s room.

We believe, however, that the lower court erred in finding appellant
Dagundong guilty of murder. It was established that it was he who had
fired the fatal shots at Mrs. Hewell. But though the slaying was
attended by treachery, his crime was not murder. The term “homicide” in
paragraph 1, Article 294, Revised Penal Code, is used in its generic
sense and the offense defined therein comprehends not only robbery with
homicide in its limited sense, but also robbery with murder. So, an
offense is not taken out of the purview of this article merely because
the homicide “rises to the atrocity of murder” (People vs.
Manuel, et al., 44 Phil., 333). And the same definition must be given
to the term as it is used in Article 297, Revised Penal Code, which
penalizes frustrated robbery with homicide.

Wherefore, we find appellant Dagundong guilty of frustrated robbery
with homicide and sentence him to life imprisonment. Thus modified, the
appealed decision is hereby affirmed in all other respects, with costs
against appellants.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., and Barrera, JJ., concur.
Padilla, J., took no part.