THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. BIENVENIDO CANO, ET AL., DEFENDANTS. PEDRO POBLAR, DEFENDANT AND APPELLANT.

After 8:00 o’clock in the evening of May 28, 1956, when Silvino
Esplago and his wife Eleuteria Mosqueso were already sleeping in their
house located at sitio Patag, barrio Anislag, Calbayog City, someone
outside called out, “Good Evening; allow us to buy kerosene”. Silvino
got up and asked his son Salvador to see who he was, whereupon
Salvador, apparently recognizing the voice remarked, “Maybe it was
Pedring,” referring to appellant Pedro Poblar. Followed by Salvador who
was holding a small kerosene lamp Silvino opened the door, immediately
after which a man blew off the light from the lamp and gave Silvino a
thrust. As the latter fell, Salvador jumped out and, together with his
older sister Teofila, ran towards the mountain for refuge during the
night. The assault was followed by a gun report which hit Eleuteria and
her child, Corazon, who was lying nearby. Then a person approached
Eleuteria and with a gun demanded for her money, while another
companion opened her trunk and carried away a big coconut shell
containing coins and an empty powder container with paper bills, all
amounting to more than one thousand pesos which were not recovered.

Silvino Esplago was brought to the puericulture center in Oquendo
district of Calbayog City where he died hours later. Eleuteria Mosqueso
was found with a “bullet wound, left arm through and through,” and
Corazon with a “bullet wound, left arm complicated with comminuted
fracture of the humerus”.

After a careful perusal of the evidence on record, we agree with the
trial court that the following circumstances undoubtedly prove
appellant’s guilty participation in the robbery:

1. The evidence for the prosecution that he was
   among, the malefactors that called at the house of the Esplago spouses,
   assaulted its inmates and committed robbery therein, is not refuted.

2. Exhibits
   “6” and “6—A” contain his voluntary statements. His allegations that he
   did not make the same, that they were just presented to him for
   signature, that they were not read to him, and that he did not know
   what was written thereon, are empty excuses obviously thought of after
   he had realized the seriousness of his offense and the penalty it
   carried. That Exhibits “6” and “6—A” are in order is self-evident. The
   first was sworn to before the City Attorney on June 25, 1956; and he
   was again made to swear it on June 28, 1956, before the Municipal Judge
   who even went to the trouble of taking his additional statement (the
   second) on the same day. Both exhibits contain a confession of his
   participation in the crime.

3. His
   re-enactment of the crime, as testified to by Captain Daguman and
   Patrolman Tarrayo, was not denied by the appellant when he took the
   witness stand and testified in his own behalf. There being no evidence
   tending to show that he was compelled to accomplish that formality it
   may be considered as voluntary confession.

We believe, however, that the crime committed is robbery with
homicide and physical injuries, and not robbery with homicide and
double frustrated homicide as found by the trial court, for the reason
that, as to said physical injuries, the evidence does not show intent
to kill.

In imposing the death penalty, the trial court found one aggravating
circumstance but failed to consider the mitigating circumstance of
voluntary surrender. The penalty that should have been imposed is,
therefore, reclusion perpetua.

Wherefore, the decision of the lower court is affirmed with the sole
modification that the appellant, Pedro Poblar, is sentenced to reclusion perpetua. So ordered.

Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, Barrera, and Gutierrez David, JJ., concur.