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

Dagundong versus People of the Philippines

The Case

This is the appeal of Adriano Dagundong, Federico Bulaon and Ricardo Serrano from a judgment of conviction rendered against them for a violent robbery that ended in the killing of Mrs. Mamey Lake Hewell, the sister of the movie actress known on screen as Anita Linda. The trial court convicted Bulaon and Serrano of frustrated robbery with homicide and Dagundong of murder, sentencing him to death. The case matters to a reviewee for two reasons. First, it fixes the rule that the term homicide in the robbery-with-homicide provisions of the Revised Penal Code is used in its generic sense and absorbs murder, so that a killing qualified by treachery during a robbery does not become a separate crime of murder. Second, it teaches how the Court treats a discharged co-accused as a state witness, and how a retraction is weighed against a judgment of conviction.

Procedural History

An information for frustrated robbery in band with homicide was filed in the Court of First Instance of Rizal against Dagundong, Melchor Lao, Federico Bulaon, Ricardo Serrano and Joseph Ebrada. Upon motion of the provincial fiscal, the court ordered Ebrada discharged from the information so that he could be used as a state witness. After trial of the remaining accused, the court found Lao, Bulaon and Serrano guilty of frustrated robbery with homicide and sentenced each to reclusion perpetua. It found Dagundong guilty of murder qualified by treachery and sentenced him to death. All four were ordered to indemnify the heirs of the victim jointly and severally in the amount of 6,000 pesos, with subsidiary imprisonment in case of insolvency, and to pay the costs. All four appealed, but Lao subsequently withdrew his appeal, so the appeal proceeded only as to Dagundong, Serrano and Bulaon. After judgment was promulgated, the accused filed a motion for new trial grounded on Ebrada's alleged retraction and on an affidavit of Pablo Rabaton, which the trial court denied. The case then reached the Supreme Court on appeal.

Facts

On the evening of October 7, 1950, Alice Lake, known as Anita Linda, was in her house at Pasong Tamo, Makati, Rizal, together with her son, her sister Mrs. Mamey Lake Hewell, and Mrs. Hewell's children, among them Josephine, then twelve years old. At about seven in the evening, Alice asked Josephine to get her a glass of milk from the kitchen. In the kitchen Josephine suddenly came face to face with a masked gunman in a checkered long-sleeved shirt, dark pants, gloves, army shoes and a balangot hat. He silenced her scream, held the gun against her back, and marched her into the sala where her sister Patricia was. Alice and Mrs. Hewell rushed out of their bedrooms. Mrs. Hewell knelt before the gunman and pleaded for her daughters. Without compunction, the gunman levelled his gun straight at her face. Alice and the girls fled into Alice's bedroom and locked the door. Several shots, not less than five, were then heard from the sala, followed by knocking and kicking at the bedroom door, and then silence. A jeep was heard moving away. When the police arrived, they found Mrs. Hewell's bullet-ridden body on the floor, empty .45 caliber shells, and slugs embedded in the wall and in a cabinet. Her bedroom had been ransacked. The necropsy showed five penetrating gunshot wounds and death by shock.

The prosecution's account of the crime rested largely on Joseph Ebrada, one of the original accused who had been discharged to become a state witness. He testified that two days before the crime, Melchor Lao borrowed his jeep and, with Dagundong and Serrano, they visited an inmate at the New Bilibid Prisons in Muntinlupa. Along the way Dagundong said they must raise money to bail out the inmate, and if necessary commit robbery to do so. Ebrada, Lao and Serrano agreed. On the evening of October 7, Lao borrowed the jeep again, and they picked up Bulaon, Dagundong and Serrano. Leaving Lao in the jeep, the others, all armed, entered the premises of Alice Lake. Dagundong instructed Ebrada to stand guard at one window and Serrano at another, while Dagundong and Bulaon entered through the kitchen. Ebrada heard a shot, rushed inside, and saw a woman sprawled on the floor. To stop the screaming of the girls he fired twice at the wall. They then fled in the waiting jeep.

Ebrada's testimony was corroborated by his own sworn statement taken before a lieutenant and in the presence of the provincial fiscal, and by a verified statement of Lao admitting his participation. The Court found that Ebrada's description of the gunman tallied with the descriptions given by Alice Lake and Josephine Hewell, and that the physical evidence of the slugs matched his account. The accused offered alibis, which the Court rejected as unworthy of belief. After judgment, Ebrada retracted and Rabaton executed an affidavit, and on that basis the accused sought a new trial.

Issues

• Whether or not the testimony of Ebrada should be rejected because he was improperly discharged from the information, came from a polluted source, and gave inconsistent statements.
• Whether or not Lao's extrajudicial statement may be admitted against the other accused as a statement of a conspirator.
• Whether or not the trial court erred in denying the motion for new trial based on Ebrada's retraction and Rabaton's affidavit.
• Whether or not Dagundong was correctly convicted of murder, or should instead be convicted of frustrated robbery with homicide.

Applicable Provisions

Article 294, paragraph 1, of the Revised Penal Code, as discussed by the Court, defines robbery with homicide and uses the term homicide in its generic sense:

Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer the penalty of reclusion temporal in its maximum period to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed.

This provision bears on the case because the Court held that the homicide it mentions comprehends murder, so a killing qualified by treachery during a robbery remains within the article.

Article 297 of the Revised Penal Code, which the Court applied to the frustrated stage of the crime, provides:

The provisions of Articles 294 and 295 shall apply to the frustrated and attempted robbery with homicide, with the exception of the last paragraph of Article 294.

This provision bears on the case because the Court held that the same generic meaning of homicide must be given to the term as it is used in Article 297.

Section 12 of Rule 123 of the Rules of Court, on the admission of a conspirator's statement, provides:

The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

This provision bears on the case because the Court admitted Lao's statement against the other accused after the conspiracy had been shown by Ebrada's testimony.

Ruling

On the first issue, the Court held that whether Ebrada was improperly discharged is of no moment in determining his credibility. The provisions on discharge are aimed at preventing the unnecessary or arbitrary exclusion from the information of persons guilty of the crime charged, but they have no bearing on the admissibility of their testimony or their competency as witnesses. The Court acknowledged that Ebrada's testimony came from a polluted source and was subject to the gravest suspicion, but after a meticulous review it found him reliable. His testimony was a more detailed reiteration of his sworn statement, was corroborated by Lao's statement, bore the earmarks of truth in its wealth of detail, and was supported by the physical evidence. The alleged inconsistencies were superficial, and the trial court, which had observed his deportment, found him credible.

On the second issue, the Court held that Lao's statement was admissible even against the appellants. The conspiracy was shown by evidence other than the statement itself, namely Ebrada's testimony that two days before the crime the plan to rob was agreed upon and that on the day itself the group carried it into execution. Once the conspiracy was proven, the statement of a conspirator relating to the conspiracy and during its existence could be given in evidence against the co-conspirators.

On the third issue, the Court held that the trial court correctly denied the motion for new trial. A motion for new trial may be granted on the ground of retraction only when there is no evidence sustaining the conviction other than the testimony of the recanting witness. Here the conviction did not rest entirely on Ebrada's testimony but was supported by other evidence of record. The Court also held that the affidavits could not be deemed newly discovered evidence, since with reasonable diligence the appellants could have obtained and presented them during the trial.

On the fourth issue, the Court held that the trial court erred in finding Dagundong guilty of murder. It was established that he fired the fatal shots, and the slaying was attended by treachery, but his crime was not murder. The term homicide in paragraph 1 of Article 294 is used in its generic sense and comprehends not only robbery with homicide in its limited sense but also robbery with murder. An offense is not taken out of the purview of the article merely because the homicide rises to the atrocity of murder. The same definition must be given to the term as used in Article 297.

Doctrine

First, the homicide contemplated in robbery with homicide under Article 294, and in frustrated robbery with homicide under Article 297, is homicide in its generic sense. It includes murder. A killing qualified by treachery committed by reason or on occasion of robbery does not convert the crime into murder but remains absorbed in the composite crime of robbery with homicide.

Second, the discharge of an accused to become a state witness is governed by the requisites for the exercise of the court's discretion. The regularity or impropriety of the discharge does not affect the admissibility of the witness's testimony or his competency; credibility is weighed separately, and the testimony of a self-confessed participant, though coming from a polluted source, may be believed when corroborated and consistent with the physical evidence.

Third, the statement of a conspirator relating to the conspiracy and made during its existence is admissible against the co-conspirators once the conspiracy is shown by evidence other than the statement itself.

Fourth, a retraction does not justify a new trial unless the conviction rests solely on the testimony of the recanting witness. Affidavits that could have been obtained and presented during trial with reasonable diligence are not newly discovered evidence.

Disposition

The Court modified the appealed decision by finding Dagundong guilty of frustrated robbery with homicide and sentencing him to life imprisonment, and affirmed the decision in all other respects, with costs against the appellants.

Remember This

Memorize this line: the term homicide in robbery with homicide is used in its generic sense and comprehends murder, so treachery does not raise the crime to murder. Examiners use this case to test the composite crime rule under Articles 294 and 297, and the treatment of a discharged state witness whose testimony is later retracted.