G.R. No. L-27708. December 19, 1970
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PETRONILO ESPEJO, ANSELMO TOLENTINO, JULIO ARZADON, ESTANISLAO MANDING, CONSTANTE CACHUELA ALIAS KISKI, JOVENCIO TABIOS, CONCH…
PER CURIAM:
This is an appeal taken by Anselmo Tolentino, Julio Arzadon, Jovencio Tabios and Teresita Nolasco alias Tessie from the decision of the Court of First Instance of Ilocos Norte in its Criminal Case No. 4312-III of which dispositive portion reads:
WHEREFORE, AND IN VIEW OF THE FOREGOING, the Court finds the
accused Anselmo Tolentino,
Julio Arzadon, Jovencio Tabios and Teresita Nolasco alias Tessie guilty
beyond reasonable doubt of the crime of Robbery with Homicide under Article
294, paragraph (1) of the Revised Penal Code as charged in the information and
hereby sentences them as follows: accused
Teresita Nolasco alias Tessie to suffer an indeterminate penalty of Six (6) years
and One (1) day of prision mayor, as
minimum, to Twelve (12) Years and One (1) Day reclusion temporal
as maximum, with the accessories prescribed by law, accused Jovencio
Tabios, to suffer reclusion perpetua, with the accessories prescribed law, and
accused Anselmo Tolentino
and Julio Arzadon to suffer the supreme penalty of
death. The four (4) accused are also
ordered to pay, jointly and severally the heirs of Ko
Pian the sum of Five Thousand Two Hundred Sixteen
Pesos (P5,216.00), the value of the properties taken by them and the further
sum of Six Thousand Pesos (P6,000.00) far the death of said Ko
Pian, and to pay the proportional costs. On reasonable doubt, accused Petronilo Eapejo and Constante Cachuela alias Kiskis are hereby acquitted, with the proportional costs de
oficio.
“The jeep (Exhibit B) used in the commission of the crime is
hereby ordered forfeited in favor of the Government.”
At about 9:25 o’clock
in the evening of May 14, 1963,
while Claudio A. Bagaoisan, the Chief of Police of Batac, Ilocos Norte, was driving
his jeep on his way to the municipal hall, his attention was attracted by the
headlights of a vehicle running along the municipal dirt road leading to the
national highway. He stopped at the
junction to observe, a recent robbery in the locality having made him
suspicious of vehicles going around at night.
Upon reaching the highway the vehicle, which turned out to be a jeep,
proceeded northward at a fast clip.
Sensing something unusual, Bagaoisan have
chase and signalled its driver to stop by blowing the
police siren and firing a warning shot.
The jeep slowed down somewhat, and as he was about to overtake it, one
of the passengers looked back and shouted a question at him. Instead of stopping, however, the jeep shot
forward and left him behind. But the
brief interlude enabled the Chief of Police to observe that one of the
passengers occupying the front seat was a woman and to note the facial
appearance of the passenger who shouted at him.
He also noted the jeep a registration plate No. 22274, Series 1963.
Realizing the futility of further pursuit Chief Bagaoisan turned back drove to a police station and then
proceeded to the municipal hall. There
he was informed by the guard that Petronilo Espejo of San Nicolas, Ilocos
Norte had called up by phone, requesting the Batac
police to be on the look-out for a jeep with plate number 22274, which had
allegedly been stolen from its owner. It
was also requested that the message be relayed to the PC detachment at Badoc. Shortly after
midnight Petronilo
Espejo, Jovencio Tabios, a certain Ching Macadangdang and another unnamed companion arrived at the
municipal hall. Espejo
inquired whether a jeep with plate number 22274 had been seen in Batac. Bagaoisan related what he had seen earlier that evening and
even described the passenger who had shouted at him, eliciting a remark from Espejo that he could surmise who that passenger was. The group then bade good night and left.
The following morning, May 15 1963, between six and seven
o’clock, Ko Pian (also
referred to as Co Piang in the record) a Chinese
merchant was found stabbed to death inside his garage located at the back of
his store just across the public market of Batac. The local police department was immediately
notified and the initial investigation at the scene revealed that one of the
dead manes steel safes and two (2) as axes displayed at the store were missing
while the other steel safe had been slightly pulled forward from its place and
found with a piece of rope still tied to it.
The post-mortem examination conducted by the municipal health
officer showed that the victim had received five stab wounds and five puncture
wounds in the neck and chest and that he died from the resulting massive
hemorrhage.
Suspecting that the persons riding in the jeep he pursued the
previous night had something to do with the crime, Bagaoisan
went to San Nicolas to check. There he
learned from Ching Macadangdang
that the jeep had been found. He then
tried to contact Espejo but the latter had gone to Laoag. So he
proceeded to the place, where he was able to locate Espejo. Questioned as to the identity of the jeep’s
passenger whom Bagaoisan described when they met in Batac, Espejo was at first
hesitant but Later on named Anselmo Tolentino. Bagaoisan then informed the PC headquarters about his
findings and requested the commanding officer to impound the said jeep and to
pick up Anselmo Tolentino
for questioning.
In the afternoon, Espejo Tabios and another unidentified person brought the jeep to
the PC headquarters. When Tabios was investigated he admitted that he was the owner
of said jeep, but claimed that it had been stolen from him. That evening Tolentino
was apprehended by the PC, but he denied any participation in the
robbery-killing. However when the Chief
of Police of Batac was summoned he positively
identified Tolentino to be the jeep’s passenger who
shouted at him during the chase the previous night.
The following day, May 16, Tabios went
back to the PC headquarters and executed a sworn statement (Exhibit “1- Tabios“) stating, among other things, that he was the
owner of the jeep with plate number J-22274, S-63; that he lent it to Anselmo Tolentino at about 6:30
o’clock in the evening of May 14, 1963; that when Tolentino
failed to return the jeep that same evening he, Tabios,
went to see Petronilo Espejo
in San Nicolas on the pretext of inquiring whether the latter had taken it;
that he resorted to the foregoing pretext because he was afraid Espejo might get angry with him for lending away his jeep
although they had previously agreed to use it in their scheduled trip to Abra that night; that he and Espejo
went to the San Nicolas municipal hall and reported the supposed loss of the
vehicle that from there Espejo contacted the
policeman on duty in Batac by phone and requested him
to impound the said jeep if it should pass that way; that he, Espejo and Macadangdang went to Batac later that same night to make inquiries regarding the
jeep; that at about 7:00 o’clock in the morning of May 15, 1963 he found the
jeep parked near his wife’s boarding house in Laoag;
that after he was informed that it was the suspected getaway vehicle used by
the persons who had robbed the Chinese store in Batac
on May 14, he was constrained to reveal to Espejo
that the jeep had in fact been borrowed by Tolentino
and that it had not really been lost.
On the same day, May 16, Anselmo Tolentino gave a written statement (Exhibit “I”),
which was sworn to before Judge Wenceslao Ortega of
the Court of First Instance of Ilocos Norte, wherein
he admitted participation in the commission of the robbery in Batac. He further
declared among other things, that Petronilo Espejo was the mastermind; that he had three (3)
companions, one of them a woman, but did not know their names although he could
recognize them if presented to him; that he and his companions used the jeep of
Jovencio Tabios in going to
Batac, with himself doing the driving; that while in Batac he was left behind by his companions to guard the
jeep; that when his companions returned they loaded something on it, after
which they drove away, with somebody else at the wheel.
On the same day also Sgt. Jerez of the
Philippine Constabulary filed with the Justice of the Peace Court of Batac a criminal complaint for robbery with homicide
against Anselmo Tolentino, Petronilo Espejo and four others
referred to as John Does and Mary Doe.
After the preliminary investigation the corresponding warrants of
arrest were issued against the two named accused. No bail was fixed for their temporary
liberty. The second stage of the
preliminary investigation was waived by them, and the case was remanded to the
Court of First Instance of Ilocos Norte.
In the meantime, a reinvestigation of the case was conducted by
the Philippine Constabulary. On June 25,
1963 Jovencio Tabios
prepared personally in his own handwriting another statement (Exhibit
“6-Tabios”) in narrative form, wherein he admitted that on the night
of May 14 he drove his jeep to and from Batac, with
Julio Arzadon, Anselmo Tolentino, two girls named Chita
and Tessie, and another person whose name he did not
know as his companions. He further
stated, among other things, that before leaving Batac,
Anselmo, Julio and the unidentified companion loaded
on his jeep something like a square container placed inside a sack; that on
their return trip they were pursued by another jeep which he was not able to
identify; and that after the chase, Anselmo and Julio
revealed to him that they had killed somebody.
On the same day, June 25, Conchita Topinio and Teresita Nolasco were picked up by PC operatives. Julio Arzadon was
apprehended on the night of June 26. The
PC recovered from the place indicated by Anselmo Tolentino in Barrio Tulnagan, Pasuquin, Ilocos Norte, the door
(Exhibit “F”) and the metal box (Exhibit “F-1”) of the
steel safe and one of the axes (Exhibit “E”) taken from the store of
the Chinaman. The next morning, June 27,
Julio Arzadon gave a statement (Exhibit
“J”; translation, Exhibit “J-1”) confessing his participation
in the crime. He said that his
companions were Estanislao Manding,
Anselmo Tolentino, Chita Topinio, Teresita Nolasco and Jovencio Tabios; that the jeep
they used belonged to Jovencio Tabios;
that the robbery was planned by Anselmo Tolentino and Chita Topinio, and that he saw them talking with each other, the
latter explaining the sketch of the Chinaman’s place; that they forcibly opened
the steel safe in Pasuquin, Ilocos
Norte; that according to Anselmo Tolentino
the sum of P5,000.00, more or less, was found inside the safe; and that Anselmo Tolentino was the one who
kept the money. In the afternoon, Teresita Nolasco gave her written
statement (Exhibit “K” translation, Exhibit “K-1”). She stated, among other things, that Julio Arzadon, Conchita Topinio and she went together to rob Ko
Pian; that Anselmo Tolentino, Conchita Topinio and Constante Cachuela planned the robbery but Cachuela
did not go with them to Batac; that she saw Tolentino, Topinio, and Cachuela prepare at Topinio’s
house the sketch of the Chinaman’s place which they were going to rob; that on
the night of May 14, 1963, upon instruction of Mang Chita, she bought “chicklet”
(chewing gum) from the store of the Chinaman and told him that Chita and she would enter the house through the back door;
that after giving the chewing gum to Chita, the two
girls went to the said door, which Ko Pian opened to let them in; that when they were about to
leave the place; Tolentino, Arzadon
and Manding entered the store; and that she saw Julio
Arzadon and Anselmo Tolentino stab the Chinaman.
On June 29, 1963 Anselmo Tolentino gave an additional statement (Exhibit
“1-Espejo”), wherein he named Conchita Topinio, Teresita Nolasco, Julio Arzadon, Estanislao Manding, and Jovencio Tabios as his companions
in the robbery and admitted having stabbed the victim on the chest with an ice
pick three or four times. He also stated
that Conchita Topinio and Constante Cachuela planned the
robbery and that what he had said before regarding the participation of Petronilo Espejo was not true.
The statement of Teresita Nolasco and the additional statement of Anselmo
Tolentino were sworn to, respectively, before Fiscal Honorio Reyes on June
29, 1963. The investigation
having been terminated, the PC referred the case to the Provincial Fiscal, who
in turn filed on July 2, 1963
the information accusing Petronilo Espejo, Anselmo Tolentino, Julio Arzadon, Estanislao Manding, Constante Cachuela, Jovencio Tabios, Conchita Topinio, and Teresita Nolasco of the crime of
robbery with homicide committed as follows:
“That on or about the 14th day of May, 1963, in the
municipality of Batac, province of Ilocos Norte, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, and with the use of a motor vehicle, did then and
there wilfully, unlawfully and feloniously, by means
of violence against and intimidation of person, with intent to gain, and
against the consent of the owner thereof, Co Piang,
take and carry away the following, to wit:
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belonging to the said Co Piang with a total value of P5,216.00, Philippine currency
to the damage and prejudice of the said owner in the aforementioned sum.
That on the occasion of the said robbery and for the purpose of
facilitating the commission of the same, that is, to take, steal, carry away
the articles above-mentioned, the said accused in pursuance of a preconceived
plan, did then and there wilfully unlawfully and
feloniously with evident premeditation and treachery, assault and use personal
violence upon Co Piang by stabbing him with ice picks
and other sharp pointed instruments, thereby inflicting upon said Co Piang several stab wounds in different parts of his body
which injuries caused the death of said Co Piang
immediately thereafter.
That the crime was committed with the following aggravating
circumstances:
1. Use
of motor vehicle
2. Night
time;
3. Treachery;
and
4. Superior
strength
CONTRARY TO LAW.”
When the case was called for arraignment on July 8, 1963, all accused were present except Estanislao Mending, who was still at large. Upon petition of accused Anselmo
Tolentino, Julio Arzadon, Constante Cachuela, and Conchita Topinio, the trial court
appointed Attys. Santiago Rañada, Sixto
Pedro, Herman Coloma and Guillermo Passion as their counsel de oficio, respectively.
To give them time to go over the records of the case and to confer with
their respective clients, the trial Judge suspended the proceeding. When the case was called anew, all the
accused, assisted by their respective counsel pleaded “not
guilty”. In an order issued on the
same day the trial court set the hearing of the case for August 8, 9, and 10,
1963. However, upon motion of the
Provincial Fiscal dated August 2, the trial was postponed to August 27 and 28.
Before the prosecution could present its evidence on the first
day of hearing, August 27. Anselmo Tolentino and Julio Arzadon, through their respective counsel, moved that they
be permitted to withdraw their former plea of “not guilty” and to
substitute it with that of “guilty”.
The trial court granted the motion and upon being arraigned anew the two
accused pleaded “guilty” to the charge. Considering, however, that the plea was to a
capital offense the trial court withheld judgment until after the presentation
of the evidence.
In the course of the trial, Conchita Topinio was discharged as defendant and utilized as witness
for the prosecution. In substance her
testimony is as follows: On April 25, 1963 she played mahjong in
the house of one Mateo Reyes in Laoag, Ilocos Norte. When
she was about to leave the place Constante Cachuela came and confided to her that he and his
companions were planning to rob the house of Ko Pian in Batac and that they
needed her cooperation because she was a known friend of the Chinaman. However, she told Cachuela
that she was afraid. After their
conversation, she left the place.
On the following day Conchita met Petronilo Espejo in front of the
Tobacco Monopoly monument at the public plaza and the latter inquired from her
whether Cachuela had gone to her house. She answered no, but added that Cachuela did tell her something at the mahjong place. Espejo then asked
her whether she had agreed, and she replied she had not because she was
afraid. Before parting Espejo told her that he would send Cachuela
to her house so that they could talk about the matter again.
On May 2, 1963,
at about eight o’clock in the morning,
Cachuela and Anselmo Tolentino went to Conchita’s
house. Cachuela
introduced Tolentino and reiterated to her what she
had been told at the mahjong place. When
she insisted that she was afraid to cooperate, they threatened her with death.
The next morning, May 3, Cachuela and Tolentino, together with Julio Arzadon,
Jovencio Tabios and Estanislao Manding returned to Conchita’s house and advised her that they were going to Batac on that day.
At past six in the evening the group composed of Teresita
Nolasco, Anselmo Tolentino, Julio Arzadon, Jovencio Tabios, Estanislao Manding and Conchita Topinio proceeded to Batac in a jeep driven by Tabios. Cachuela had
declined to go with them on the pretext that he was known in Batac. Teresita Nolasco knew why they
were going to Batac, as she was at Conchita’s house the first time Cachuela
came. On their way, her companions
talked about how they could enter the store and how they could get out. When they reached Batac
she pointed to them the house of the Chinaman.
She also showed them the door at the back of the store. Jovencio Tabios, who was at the wheel, said that there was an exit
westward, and forthwith drove in that direction, then turned south of the
municipal hall, and circled back again to the rear of the store. Having reconnoitered the place, the group returned
to Laoag. On
the way they passed near the house of certain Dr. Aoigan,
and Anselmo Tolentino
remarked that said house had recently been robbed but that it should not give
them cause for worry because the culprits were his companions and were still at
large. About one kilometer farther on
the way, Anselmo asked Tabios
to stop the jeep for a while and said that once they were inside the store they
should not touch anything in order not to leave fingerprints by which they
could be identified. The next morning, Anselmo Tolentino and Julio Arzadon went to her house and showed her a sketch of the
store of the Chinaman in relation to the national road and the public
market. Before leaving, they told her
that they would commit the robbery on May
9, 1963.
On the last mentioned date, at about six o’clock in the evening, Anselmo
Tolentino, Jovencio Tabios, Julio Arzadon, Estanislao Manding, Teresita Nolasco and Conchita Topinio left for Batac in a jeep driven by Tabios. On their way Conchita
and Teresita were told not to touch anything in the
store, nor carry any handkerchiefs which might be left at the place. When they arrived in Batac
the store of the Chinaman was already closed.
Upon instruction of Anselmo Tolentino, Conchita got off the
jeep and knocked at the door, but no response came from inside. Tolentino then
decided that they should leave and return on May 12, 1963.
However, when the day came the plan could not be carried out because
there was no available jeep. They
postponed its execution to May 14.
Between eleven o’clock
and twelve o’clock noon of May 14 Anselmo
Tolentino went to Conchita’s
house and reminded her about their scheduled trip to Batac. She was instructed to go to his boarding
house at 5:30 o’clock in the
afternoon with Teresita Nolasco. When they arrived there they were met by
Julio Arzadon.
After a while, Jovencio Tabios
and Estanislao Manding
arrived in a jeep. Anselmo
Tolentino, Julio Arzadon, Teresita and Conchita joined them
in the jeep and they proceeded to Batac. Near the public market Conchita
and Teresita were ordered to get off. They entered the market through the southern
gate and then proceeded to the western gate in front of Ko
Pian’s store, where they stayed for a while. Since the Chinaman would not let them enter
his place without previous notice, Conchita sent Teresita to the store to buy “chicklet”
and to inform him that they were already there and would pass through the back
door. When Teresita
came back she told Conchita that Ko
Pian had agreed.
The two girls then repaired to the rear of the store and sought cover
near the fence. After a while Ko Pian let them in and the three
of them went upstairs together. The
Chinaman and Teresita entered his bedroom, leaving Conchita outside.
The two remained inside the bedroom for about ten minutes, and as soon
as they came out the three went downstairs.
Ko Pian opened the
door to let them out, and it was then that Anselmo Tolentino, followed by Julio Arzadon
and Estanislao Manding,
suddenly barged in. Tolentino
covered Ko Pian’s mouth
with his hand while Manding held him by the
body. Arzadon
then stabbed the helpless victim in the neck with a double-bladed weapon, after
which they laid him on the ground. Tolentino then stabbed him several times with an ice
pick. The wounded man, moaning and
bleeding, was left to die in that position, while Tolentino
and Arzadon carted away a steel safe and loaded it on
the jeep. They tried to bring out the
other safe also but were not able to lift it.
They then took two axes from the store and after pushing the girls
inside the jeep, they sped away. The
original plan was to open the safe near the river in Sarrat,
Ilocos Norte, but on the highway they were pursued by
another jeep. Tolentino
ordered Tabios to drive faster, but the other vehicle
was able to close the distance. Tolentino then told Tabios to
slow down, and when the other jeep was already abreast he leaned outside and
shouted at the driver. At that moment Tabios stepped on the gas and left the other jeep
behind. When they heard a gunshot, Tolentino loaded his gun and warned his companions to get
ready, but the pursuit was not pressed.
Upon reaching the town of San Nicolas
the group took a sideroad where their jeep developed
engine trouble and stopped. They had to
push it until the motor started again.
When they arrived at a place north of the provincial capitol in Laoag, the two girls asked permission to get off. Tabios agreed and
added that he would report that his jeep had been stolen. The two girls then went to a restaurant to
eat.
In addition to the testimonies of its witnesses, the prosecution
submitted as evidence, among others, Exhibit “I”, the sworn statement
of Tolentino dated May 16, 1963; Exhibit
“J”, the sworn statement of Julio Arzadon;
Exhibit “K”, the sworn statement of Teresita
Nolasco; Exhibit “B”, the jeep with plate
No. 22274; Exhibit “F”, the door of the steel safe Exhibit
“F-1”, the metal box of the safe; and Exhibit “E”, one of
the axes taken from the store of the Chinaman.
Teresita Nolasco’s
defense is that she was not aware of the criminal intent of her co-accused when
they went to Batac on May 14, 1963 and that her purpose in going there was
merely to verify the result of her application as a salesgirl in Ko Pian’s store. She denied the truth of most of the answers
given by her in her sworn statement (Exhibit “K”) and said that she
signed it twice, first at the barracks and later at the office of the
Provincial Fiscal, because the Constabulary soldiers threatened to rape her if
she did not do so.
On his part, Jovencio Tabios testified that he was not aware of any plan on the
part of his co-accused to commit the said crime, nor did he participate in its
commission. While admitting that he was
the one who drove his jeep on which Tolentino, Arzadon, Manding, Nolasco and Topinio rode on May
3, 9 and 14, 1963, he alleged that Tolentino had
hired his jeep only to go out on dates with girls, paying him the sum of P20.00
per trip. He further claimed that he
came to know for the first time that somebody had been killed by Tolentino and his companions when he was driving the jeep
back to Laoag.
Petronilo Espejo
and Constante Cachuela, on
their part, made a blanket denial of the facts imputed to them relying on their
respective alibis, and were acquitted on reasonable doubt.
With regard to Anselmo Tolentino, his counsel de oficio
at first reserved the right to present evidence to prove mitigating
circumstances in his favor, but subsequently waived said right and instead
submitted a memorandum relative to the aggravating circumstances alleged in the
Information.
On August 24, 1966
the trial court promulgated its decision with respect to accused Petronilo Espejo, Anselmo Tolentino, Julio Arzadon, Jovencio Tabios, and on September
23, 1966 with respect to accused to Teresita
Nolasco.* Thereupon, Tolentino,
Arzadon, Tabios and Nolasco instituted the instant appeal.
Appeal
of Anselmo Tolentino and
Julio Arzadon
Appellant Anselmo Tolentino
avers that the trial court erred: (1) in
denying the motion of his counsel de oficio for time
to prepare for trial – an error or irregularity violative
of his constitutional right to due process; (2) in admitting his plea of
guilty, which was given improvidently; and (3) in imposing upon him the penalty
of death.
Appellant Julio Arzadon joins Tolentino in his third assignment of error.
Under the first assigned error, Tolentino
contends that considering the repeated manifestations of his counsel that he
was not prepared to enter into trial, the Court’s actuation in continuing with
the hearing of the case on August 27, 1963, which resulted in his hurried and
improvident plea of guilty, was clearly an abuse of discretion prejudicial to
his rights as provided in Section 5 Rule 116 and Section 7, Rule 118 of the
Rules of Court.[1]
He maintains that the plea of his counsel for a separate trial was an implied
request for postponement and should have been granted, or that the court, even motu proprio,
should have postponed the trial in accordance with Section 2, Rule 119,[2]
the unpreparedness of counsel being a valid ground therefor.
The contention cannot be sustained. It appears from the record that on July 8,
1963 the trial court appointed Atty. Santiago Rañada,
Sr. as Tolentino’s counsel de oficio; that on the same date, with the assistance
of said counsel, he entered the plea of “not guilty”; that on July
30, 1963 Atty. Loreto U. Bautista formally entered his appearance also as
counsel for the same appellant; and that on August 27, 1963 trial was
started. Evidently, the appellant had
more than two days as provided for in the Rules, to prepare for trial. His counsel even admitted that he was given
fifteen (15) days to study the case.
Under the circumstances, even if an express request for postponement had
been made, the trial court would not have erred in denying the same.[3]
With respect to the second assigned error, the appellant claims
that the trial court did not sufficiently or adequately explain to him the
meaning and consequences of a plea of guilty to the offense charged. The claim is unfounded. It appears from the transcript of
stenographic notes that after conferring with his client Atty. Rañada manifested that the latter decided to plead guilty
to the charge reserving his right to prove mitigating circumstances at the
proper time. Thereupon, the trial court
questioned the appellant thus:
“COURT to ACCUSED ANSELMO
TOLENTINO:
“Q. You
speak English, you heard the manifestation of your counsel. Your counsel is praying permission for you to
be allowed to withdraw your former plea of not guilty and substitute it to that
of guilty, did you hear that?
“ACCUSED A. TOLENTINO:
“A. Yes,
your Honor.
“Q. Do
you realize that your penalty of the offense with which you are charged is life
imprisonment to death?
“A. Yes,
your Honor.
“Q. Do
you realize that by pleading guilty, you will be sentenced in accordance with
law?
“A. Yes,
your Honor.
“Q. And
you are willing to withdraw your former plea of not guilty to substitute it for
that of guilty?
“A. I
am going to plead guilty, your Honor.
“COURT:
Let the accused be
arraigned anew. (The Deputy Clerk of
Court read the Information to the accused Anselmo Tolentino.) Anselmo Tolentino pleaded
“guilty” to the Information.
“COURT:
Make of record that the
accused, Anselmo Tolentino,
pleaded guilty and the Court is reserving its decision.”
Considering that the appellant was assisted by counsel and that
he was a college student at that time, we are convinced that the explanation
made by the court as to the meaning and consequences of a plea of guilty was
sufficient, and that he entered his plea with full knowledge of its
significance. The plea was made on August 27, 1963, and sentence was
promulgated on August 24, 1966. During the intervening period of three years
he could have complained to the court that his plea had been improvidently
made. He did not do so; on the contrary,
there appears in the record a letter dated November 24, 1964, addressed by him to the Presiding
Judge, pleading for a “humanitarian decision” inasmuch as he had
pleaded guilty to the charge.
The appellant suggests that at the time he pleaded the trial
court entertained a reasonable doubt as to his guilt. The suggestion has no basis. In fact the court did not even fix bail for
his temporary liberty. Moreover, when
the appellant offered to plead guilty to the lesser offense of homicide the
court turned him down, “considering the facts and circumstances appearing
on the record of the case.”
As regards the third assignment of error the two appellants Anselmo Tolentino and Julio Arzadon first contend that the trial court should not have
considered the aggravating circumstances of “use of motor vehicle” in
the determination of the penalty to be imposed because the same was not alleged
in the information as a means by which the crime of robbery with homicide was
committed. They point out that the
information merely alleged that a motor vehicle was used by the accused in
carrying away the personal properties belonging to the victim, and that by then
the offense had already been consummated.
They maintain that the use of motor vehicle after the commission of the
crime is not what the law[4]
considers as an aggravating circumstance but rather its use as a means to
commit the same.
The contention is untenable.
The information recites that the crime was committed with several
aggravating circumstances one of which was “use of motor vehicle.” Since a
plea of guilty admits all the material averments in the information including
the aggravating circumstances alleged therein,[5]
the appellants cannot now question the actuation of the trial court in appreciating
“use of motor vehicle” as an aggravating circumstance. Besides, it has been established during the
trial that the accused used the motor vehicle in going to the place of the
crime in carrying away the effects thereof, and in facilitating their escape.
The two appellants claim that the trial court misapplied Article
63, paragraphs 2 and 4 of the Revised Penal Code[6]
by offsetting only the aggravating circumstance of treachery (which according
to the trial court absorbed “nighttime” and “superior
strength”) with the mitigating circumstance of “plea of guilty,”
leaving the aggravating circumstance of “use of motor vehicle” to
justify the imposition of the death penalty.
They maintain that said plea should have been weighed against both
aggravating circumstances, considering its importance and moral value.
We find no error in the application of the article cited by the
appellants. The facts of the case
particularly the manner the victim was repeatedly stabbed and the utter
senselessness of the killing itself show the correctness of the court’s
ruling. Since there is still one
aggravating circumstance left the penalty of death was properly imposed by the
trial court on the two appellants.
APPEAL
OF JOVENCIO TABIOS
In his brief appellant Jovencio Tabios alleges that the trial court erred: (1) in finding him guilty of the crime of
robbery with homicide and (2) in sentencing him to suffer the penalty of reclusion
perpetua with the accessories prescribed by
law to pay jointly and severally with his co-accused Anselmo
Tolentino, Julio Arzadon, Teresita Nolasco, alias Tessie, the heirs of Ko Pian the sum of P5,216.00 representing the value of the
properties allegedly taken and the additional sum of P6,000.00 for the death of
said Ko Pian; and to pay
the proportional costs.
This appellant contends that the prosecution has failed to
establish by strong, clear and convincing evidence that he participated in the
conspiracy to commit the crime of robbery with homicide. According to him the only evidence against
him on this point is the testimony of Conchita Topinio, which does not deserve the credence accorded to it
by the trial court because the witness was herself a co-conspirator, and a
woman of low morals besides. The trial
court did not overlook the so-called questionable morals of the state witness
nor the fact of her being a co-conspirator.
The Court said:
“In the evaluation of the evidence for the prosecution, this
Court is aware of the low morality of witness Conchita
Topinio alias Chita and of her being a
co-conspirator in the commission of the crime charged. However, after examining her testimony with
a jealous care and with a watchful scrutiny, the Court finds it consistent in
its details and harmonizes so well with the surrounding circumstances, and it
is further corroborated not only by the interlocking confession and/or
admission of accused Anselmo Tolentino,
Julio Arzadon, Jovencio Tabios, and Teresita Nolasco alias Tessie (Exhibit
“1-Tabios”; “6-Tabios”; “7-Espejo”;
“I”; “1-Espejo; “J” and “K”) but also by
other evidence on record. Her testimony
deserves full credence.”
It is a settled rule that where the issue is one of credibility
of witnesses, appellate courts will generally not disturb the findings of the
trial court, considering that it is in a better position to decide the
question, having heard the witnesses themselves and observed their deportment
and manner of testifying during the trial, unless it has plainly overlooked
certain facts of substance and value that if considered, might affect the
result of the case.[7]
In the instant case we find no cogent reason to disagree with the trial court.
As to appellant Tabios‘ participation
in the conspiracy the testimony of Conchita Topinio finds corroboration in the interlocking confessions
of appellant Julio Arzadon and Teresita
Nolasco, showing that on May 3, 1963, said appellant
drove his jeep with them to and from Batac for the
purpose of surveying the scene of the projected robbery; that on their way to Batac they discussed how they could enter the store and how
they could get out; that appellant even told his companions about an exit
westward and in fact drove the jeep in that direction; that on the night of May
9, he again drove his jeep to Batac with Tolentino, Arzadon, Topinio, Nolasco, and Manding as his companions for the purpose of carrying out
their plan but failed to do so because the Chinaman did not open the door of
his store; that on May 14, the same group went to Batac
again on appellant’s jeep, some of them armed with an ice pick, a bladed weapon
and a pistol; that all of them fully understood what each had to do; that
appellant parked his jeep about 100 meters from the store, ready to pick up his
companions at a moment’s notice; that when he was fetched by Arzadon he drove his jeep towards the rear of the store to
load the articles taken therefrom, and that he drove
the jeep in escaping from the scene of the crime. Thus the appellant’s participation in the
conspiracy has been fully established.
In the case of People, vs. Estrada,[8]
this Court said:
“To establish conspiracy, it is not necessary to prove
previous agreement to commit a crime if there is proof that the malefactors
have acted in concert and in pursuance of the same objective. This Court has repeatedly decided that
conspiracy may be inferred from the acts of the accused themselves when such
acts point to a joint purpose and design.
Their action must be judged by what they do and not altogether by what
they say; for what men do is the best index of their intention.”
Tabios now contends that even granting
that he was aware of the plan of his co-accused to commit the crime of robbery,
he should not be held liable for the crime of robbery with homicide because the
killing of the Chinaman was not a part of the conspiracy, invoking the case of
People vs. Basisten, et al., 47 Phil. 493, wherein
this Court held:
“Where it appears that only one of the defendants committed
homicide at the time of perpetrating the robbery, said homicide not having been
the subject of the conspiracy, nor the others having had any intervention in
said homicide, the author of the homicide is the only one responsible for the
complex crime of robbery in band with homicide, the other defendants being
responsible only for the robbery in band.”
In People vs. Rogel, G. R. No. L-15318,
March 31, 1962 (4 SCRA 807)
where the accused also invoked the ruling in People vs. Basisten,
this Court rejected his view, thus:
“We do not share appellant’s view, in this respect; for as
early as 1926, one year after We enunciated the ruling in the Basisten case supra.
We decided to revert to the former doctrine laid down in U.S.
v. Macalalad, 9 Phil. 1, in the following
language: –
x x x The Supreme
Court of Spain, interpreting the provisions of the Penal Code touching the
complex crime of ROBO CON HOMICIDIO, has frequently decided that, where the
complex crime has been committed, all those who took part as principals in
the commission of the robbery are guilty as principals in the commission of the
crime of ROBO CON HOMICIDIO, unless it appears that they endeavored to
prevent the unlawful killing. (Decisions
of the Supreme Court of Spain, April 30 and February 23, 1872, and June 19, 1890. See
also Viada, Vol. 3, pp. 347, 354, and 356.)”
(Italics supplied).
Thus, in People vs. Bautista et al., 49
Phil. 389, (1926), We held that –
‘x x x Whenever a homicide has been
committed as a consequence or on the occasion of a robbery, all those who took
part as principals in the commission of the robbery will also be held guilty as
principals in the complex crime of robbery with homicide although they did
not actually take part in the homicide, unless it clearly appeared that
they endeavored to prevent the homicide (U.S. Macalalad,
9 Phil. 1).” (Italics supplied)
The same ruling was applied in many subsequent cases, among them
People vs. Atencio, G. R. No. L-22518 (Jan. 17,
1968), where this Court held that while the appellants therein might not have
participated in the slaying of the victims, nevertheless, they were liable for
the crime actually committed, for the rule is settled that when homicide takes
place as a consequence or on the occasion of a robbery, all of those who took
part in the robbery shall be guilty as principals of the complex crime of
robbery with homicide, unless there is proof that they had endeavored to
prevent the killing, citing the cases of People vs. de la Rosa, 90 Phil. 365;
People vs. Libre, 93 Phil. 5: U.S. vs. Macalalad, 9 Phil. 1; U.S. vs. Santos, 4 Phil. 189. The same ruling was reiterated in People vs. Pujinio, G. R. No. L-21690, April 29, 1969, (27 SCRA 1185) citing People vs. Morados, 70 Phil. 558; and People vs. Carunungan,
et al., G. R. No. L-13283, September
30, 1960.
Since it has been established that the appellant in the instant
case was a co-conspirator and that he performed overt acts in furtherance of
the conspiracy the lower court correctly held that he was liable for the crime
of robbery with homicide as a co-principal.
When a group of malefactors conspire to commit robbery and arm
themselves for the purpose, no member of the group may disclaim responsibility
for any act of violence that is perpetrated by reason or on the occasion of the
robbery. Such violence is always
reasonably to be expected either to overcome active opposition or to forestall
it altogether by disabling the victim at the very outset, or even to silence
him completely thereafter. In the
instant case the group that set out for Batac to rob Ko Pian was provided with lethal
weapons – a dagger, an ice pick and a gun.
These instruments were intended to facilitate the commission of the
robbery, and if their use resulted in homicide, the liability therefor attaches to the entire group. The only exception recognized in the
decisions of this Court presumably drawing an analogy with the situation
provided for in. Article 296 of the
Revised Penal Code, concerning robbery by a band, is when a co-conspirator in
the crime of robbery tried to prevent the homicide or the other acts of
violence committed by reason or on the occasion of the robbery. In robbery by a band punished under the said
Article, of course, proof of conspiracy is not required so as to hold all
members of the band liable for any of the assaults committed on the occasion of
the robbery, whereas such proof is necessary where several accused, not
constituting a band, are charged with the offense of robbery with homicide
under Article 294.
With this view we take of the case of appellant Jovencio Tabios, strictly
speaking he should suffer the same penalty as that imposed upon Anselmo Tolentino and Julian Arzadon. Some
members of the Court, however, are of the opinion that a distinction should be
made as far as the penalty is concerned, considering that Tabios
although co-conspirator, was not in the immediate scene of the crime but
guarding the jeep some distance away, and had no direct hand in the killing of
the victim. For lack of the required
number of votes to impose the maximum penalty, that meted out by the trial
court on this appellant stands affirmed.
APPEAL
OF TERESITA NOLASCO
Three errors are assigned by this appellant, namely (1) in not
acquitting her on the ground of reasonable doubt; (2) in considering only the inculpatory portions of her sworn statement (Exh. “K”) and disregarding the exculpatory
portion thereof; and (3) in not dismissing the case upon motion of the defense
after the Provincial Fiscal had finished presenting its evidence.
The trial court committed none of the errors assigned. Although Conchita Topinio testified during the cross-examination, as found by
the trial court, that she did accompany this appellant to the store of Ko Pian to apply for a job as a
sales clerk three weeks prior to May 14, 1963, that fact does not negate
appellant’s knowledge of the criminal intent of her co-accused nor her
participation in the crime charged. Topinio’s testimony, corroborated by appellant’s sworn
statement, clearly shows not only her knowledge of the purpose of the trip to Batac on May 14 but also her own overt acts in furtherance
of the conspiracy. She quotes the
following portion of her sworn statement which she says was not considered by
the trial court:
“Q. Who
among you planned to rob the said Chinese then?
A. They
were Anselmo Tolentino, Conchita Topinio and Constante Cachuela alias Tante but he did not follow.
Q. How
did you know that they were the ones who planned?
A. I
saw them make the map or sketch of the place where we were going to rob.”
Knowing the plan as she did she still went with the group, and
actively cooperated by facilitating the entry of her companions through the
back door so that the robbery could be carried out.
In the computation of the penalty to be imposed on appellant Teresita Nolasco, the trial court
appreciated in her favor the mitigating circumstance of “lack of intent to
commit so grave a wrong as that committed.” This is error. She being part of the conspiracy the
intentional act of her co-conspirators of stabbing the victim to death is
considered as the act of all. (People
vs. Bautista, G. R. Nos. L-23303-23304, May
20, 1961, 28 SCRA 184). However,
taking into account that Teresita Nolasco
was 15 years and 5 months old at the time of the commission of the crime, the
penalty next lower in degree than that prescribed by law should be imposed in
its proper period. The penalty for
robbery with homicide being reclusion perpetua
to death, one degree lower than said penalty is reclusion temporal
(Article 61, par. 2 and Article 71, Scale No. 1). Since there are two aggravating and no
mitigating circumstances in her case, the penalty should be reclusion temporal
in its maximum period. Applying the
Indeterminate Sentence Law, she should be as she is hereby sentenced to suffer
the penalty of from 10 years and 1 day of prision
mayor, as minimum, to 17 years, 4 months and 1 day of reclusion temporal,
as maximum.
Wherefore, the judgment appealed from is affirmed with
respect to the penalty of death imposed upon appellants Anselmo
Tolentino and Julio Arzadon,
and with respect to the penalty of reclusion perpetua
imposed upon appellant Jovencio Tabios
modified as above indicated with respect to the penalty imposed upon appellant Teresita Nolasco and further
modified as to the amount of civil indemnity for the death of Ko Pian which is raised from
P6,000.00 to P12,000.00. Costs against
appellants.
Reyes, J.B.L., Acting C.J., Makalintal,
Zaldivar, Castro, Fernando, Teehankee,
Barredo, and Villamor, JJ., concur.
Dizon and
Makasiar, JJ., on
leave, did not take part.
*
The other accused, Constante Cachuela,
died on March 25, 1966 per
Certificate of Death submitted to the trial court.
[1]
Sec. 5. Time for counsel de officio
to prepare or arraignment or trial. –
Whenever an attorney de officio is employed or assigned by the court to defend
the accused either at the arraignment or at the trial, he shall be given a
reasonable time to consult with the accused and prepare his defense before
proceeding further in the case, which shall not be less than two (2) hours in
ease of arraignment and two (2) days in case of trial, but the court may, for
good cause shown shorten or extend the time.
(RULE 116)
SEC. 7. Time to prepare for trial. – After a plea of not guilty, except when the
case is on appeal from the justice of the peace, the defendant is entitled to
at least two (2) days to prepare for the trial unless the court for good cause
shown shall allow further time. (RULE
118)
[2]
SEC. 2. Continuance or post the trial. – The court on the application of either
party or on its own motion, may in its discretion for good cause postpone the
trial of the case for such period of time as the ends of justice and the right
of defendant to a speedy trial require.
(RULE 119)
[3] U.
S. vs. Santos,
4 Phil. 419; People vs. Silerio, 81 Phil. 124.
[4]
Article 14. Aggravating circumstances. – The following are aggravating
circumstances:
x x x x x x x x x
20. That the crime be committed with the aid of
persons under fifteen years of age or by means of motor vehicles airships or
other similar means. (Revised Penal
Code.)
[5]
People vs. Arpa, G. R. No. L-26789 April 25, 1969 (27 SCRA 1037) citing
People vs. Boyles, G. R. No. L-15308, May 29, 1964 and cases cited.
[6]
Article 63. Rules for the application of
indivisible penalties. – x x x x x x
x x x
In all cases in
which the law prescribes a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:
x x
x x x x x x x
2. When there are neither mitigating nor
aggravating circumstances in the commission of the deed, the lesser penalty
shall be applied.
x x
x x x x x x x
4. When both mitigating and aggravating
circumstances attended the commission of the act, the courts shall reasonably
allow them to offset one another in consideration of their number and
importance, for the purpose of applying the penalty in accordance with the
preceding rules according to the result of such compensation.
[7]
People vs. Sinaon, G. R. No. L-15631, May 27, 1966 (17 SCRA 260) and the
cases cited.
[8]
People vs. Estrada, G. R. L-26103, Jan. 17, 1968 (22 SCRA 111, 126)