THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LUDOVICO CERVANTES AND YOLANDO ALBA, ACCUSED-APPELLANTS.

LUDOVICO CERVANTES and
YOLANDO ALBA were accused in Criminal Case No. 276 of the defunct Court of
First Instance of Davao Oriental of the crime of
robbery with homicide. The information against them reads as follows:

“That on or about December 7, 1971, in the Municipality of Cateel, Province of Davao
Oriental, Philippines, and within the jurisdiction of this Court, the
above-mentioned accused, conspiring and confederating together with Petronilo Castillo who is still at large, with the use of
violence against and intimidation of persons,
and armed with a sharp pointed instruments, did then and there wilfully, un­lawfully and feloniously
enter the store owned and inhabited by Chua Chin alias Julian and once inside,
with intent of gain, take, steal and carry away there from cash in the amount
of P2,850.00, Wrist Watch valued at P200.00 and a ring (Chinese Gold) valued at
P150.00, causing him damage and prejudice in the total sum of P3,200.00; that
by reason and/or on the occasion of the aforesaid robbery, and in pur­suant of
their conspiracy, the aforementioned accused, armed with sharp pointed
instruments and with intent to kill, did then and there wilfully, unlawfully and
feloniously attack, assault and stab Chua Chin alias Julian thereby inflicting
upon the latter mortal wounds which caused his death.” (Expediente,
pp. 16-17.)

After trial, the following sentence was pronounced:

“WHEREFORE,
the Court finds accused YOLANDO ALBA and LUDOVICO CERVANTES guilty
beyond reasonable doubt of the offense of Robbery with Homicide, and there being
three (3) aggravating circumstances of Craft, Treachery, and Dwelling attendant
to the commission of the crime, and without any mitigating circumstance to
offset the same, it hereby imposes upon the accused the supreme penalty of
DEATH, and orders the two accused to pay, jointly and severally, the heirs of
the victim Chua Chin alias Julian, the amount
of TWELVE THOUSAND (P12,000.00) PESOS, and the further amount of THREE
THOUSAND (P3,000.00) PESOS which is the
total value of the cash and the Gold ring taken from the store of the said
victim. The accused are furthermore ordered to pay the costs.” (Expediente,
pp. 576-577.)

The Expediente does not show that Cervantes and Alba
appealed their conviction. Nonetheless, the law mandates a review of their sentence
to assure that no person within the jurisdiction of the Republic of the Philippines shall forfeit his life except by a thorough
study of the facts of his case and the law applicable thereto.

The People’s version of the facts is as follows:

“Isidro Ebrano and Ramon Ebrano were houseboys of the late Chua Chin alias Julian
who had a store at Barrio San Rafael, Municipality
of Cateel,
Province of Davao Oriental. In the eve­ning
of December 7, 1971, they
were sleeping at the mezzanine floor of the said store. At about 9 o’clock that
same evening, Isidro Ebrano was awakened by
commotions he heard from
downstairs. He went down one step of the stairs and looked towards the bedroom
of his employer through the holes of the partition which separated the bodega
and the stairs leading to the mezzanine floor. He saw Chua Chin, Yolando Alba and another one whom he did not know. Alba was
pushing Chua inside the bedroom. He saw this because of the flashlight held by
the other person that was focused on the ceiling (pp. 129-138, 139, 155­-159,
167-170, tsn, July 18, 1972). Afraid of what he witnessed, Isidro went
back to bed without telling his companion Ramon Ebrano
(pp. 138-140, id.).

“At about 4:00 o’clock
in the early morning of December 8,
1971, Lorenzo delos Santos,
storekeeper and in-charge of the books of account in the store of Chua Chin
alias Julian, was going to buy fish from fishermen in the vicinity of said
store (pp. 55-56, 68, tsn, June 23, 1972).
While passing by the store, Lorenzo was surprised
to see its door leading to the bodega already opened,
and the dog inside the store the night
previous, already roaming outside. The thought of robbery flashed in his
mind. So he went inside and found the drawers of the ‘estantes‘
or display cabinets already opened. He called the name of Chua Chin alias
Julian but received no response. He then
called the two houseboys, Isidro Ebrano and Ramon Ebrano,
who were sleeping at the mezzanine floor. The two boys did not say anything to
him about any incident. With a small lamp
(‘lamparilla‘) borrowed from them, Lorenzo went to the room of the chinaman and there found him lying on the cement floor
covered with a blanket. He rushed out­side and without bothering to tell the
houseboys what he saw, notified Anacleto Ferrando,
his compadre and Assistant Manager of the store, of
the incident (pp. 56­-62, 71-72,
77-78, 89-94, 97-105, id.; pp. 191, 192, 205- 206, 230, tsn,
July 18, 1972). Together, they returned to the store. Anacleto
Ferrando instructed Lorenzo not to touch anything
while he (Ferrando) would go to the poblacion to report the matter to the
authorities and the Chinese community. Lorenzo stood guard outside the store so
that nobody could enter until Ferrando’s return (pp.
62-63, 106-110, tsn, June 23, 1972).

“Acting on Anacleto Ferrando’s
report the Chief of Police, Mayor Elano Cabrero, Dr. Cayo Rabe and two policemen repaired to Barrio San Rafael and
arrived there at about 6:00 o’clock that same morning (pp. 207-208, tsn, July 18, 1972). While inside the store, they had to
use a petromax lamp as it was still dark (pp. 209, 210, id.). They found the
victim in his bedroom lying on the cement floor with his face down covered with
a woolen blanket and an empty sack of flour (pp. 38-39, 42-44, tsn, Dec. 15, 1972). His hands were tied at the back with a
rope (Exh. “S”, pp. 42-43, id.). When the
blanket and the empty sack were removed, his mouth was found to be covered with
a ‘camiseta‘ (Exh.
“T”) tied to the back (pp. 43-45, id.). The ‘camiseta‘
he was wearing showed three (3) holes (Exhs.
“U-1”, “U-2” & “U-3”) at the back (pp. 45-48,
id.). The investigators also found in the bodega a drum of gasoline with a hose
(Exh. “R”) con­nected to a tin can (Exh. “Q”) beside the drum (pp. 39­-41, id.). Upon
request of the Chief of Police, Marciana Toroba took pictures of the dead body (Exhs.
“D”, “D­-1”, & “D-2”, pp. 48-51, tsn, June 23, 1972; pls. see Folder of Exhibits).

“Inspection of the ‘estantes‘ or
display cabinets made by Anacleto Ferrando
showed that the drawers were already opened and the money totalling
P2,850.00 representing the sales which Ferrando
placed in one of the drawers the
previous night at the close of business hours was already gone. Also missing
was a gold ring valued at P150.00 placed
inside the same drawer (pp. 195?198, 201-202, 212-214, tsn, July 18, 1972).

“An examination of the cadaver by Dr. Cayo
R. Rabe (Exh.
“B”, p. 4, rec.) revealed that the victim suffered two (2) wounds at
the occipital region or back of the head, one (1) inch and one and one-half
(1-1/2) inches in length, reaching the occipital bone; two (2) wounds at the
temporal region, one and one-half (1-1/2) inches and
two (2) inches long, reaching the temporal bone; and four (4) stab wounds at
the back puncturing the lungs, pleura, blood vessels and the heart (pp. 10-15, tsn, June 23, 1972). Dr. Rabe
opined that the cause of death was internal hemorrhage due to the stab wounds
at the back, on the ear and the occipital region (p. 25, id.), caused by a
sharp instrument probably a bolo or a dagger (p. 27, id.). He issued the Death Certificate (Exh. “C”, pp. 26-27, id.; p. 3, Rec.).

“Appellant
Yolando Alba was apprehended by Major Teofilo Bulusan, then Provincial
Commander of Davao Oriental (pp. 10-11, tsn,
Aug. 17, 1972). The day following Alba’s
arrest, or on December 9, 1971, appellant Ludovico
Cervantes was brought by PC operatives to
the PC detachment at Lambajon, Baganga where he voluntarily admitted to Major Bulusan his
participation in the commission of the crime (pp. 11-13, 38, 46, id.). Cervantes gave his extra-judicial
statement (Exhs. “P”, “P-1”, to
“P-4”, pp. 10-12, Rec.) before Sgt. Rodrigo Cabotaje
of the Davao Oriental PC Command (pp. 13-16, 95-97,
106-112, tsn, id.). It was subscribed and sworn to
before Judge Auxencio C. Dacuycuy,
Municipal Judge of Baganga, Davao
Oriental (pp. 16-17, 57-66, id.).

“On December 10, 1971,
appellant Ludovico Cervantes, in the presence
of appellant Yolando Alba, Major Bulusan
and Sgt. Cabotaje, re-enacted the crime in Barrio San
Rafael, Cateel (Exhs. “G” to “M”, pp. 19-25,
113-127, id.; pls. see Folder of Exhibits). Cervantes did the re-enactment
freely and voluntarily even as Alba witnessed it without making any protest
(pp. 21-22, 43-44, 114, tsn, id.).

“The records show that at about 9:00 o’clock in the evening of
December 7, 1971, Ludovico Cervantes, Yolando Alba and a person named Castillo were
drinking Tanduay Rum at a place in Barrio San Rafael
about fifty (50) meters from the store of the victim. After the drinking spree,
Alba got an empty kerosene can and they proceeded to the victim’s store. Upon
reach­ing the place, Alba told Cervantes to stay outside as a lookout while he
and Castillo entered the store. Alba knocked at the window of the victim’s
bedroom. The victim asked, ‘who is that?’ Alba answered, ‘I am Lando. I need gasoline for our truck because my
mother-in-law met an accident.’ Thereupon the victim opened the door of his
bodega. Alba and Castillo imme­diately entered and closed the door. Cervantes
remained outside (Exhs.
“P”, “P-1” to “P-4”, supra).

“The events that transpired outside the victim’s store were
witnessed by Jose Sagang from his house which is in
front of and only about ten (10) meters from said store. Sagang
heard somebody calling for the victim by saying ‘July, July, open the door
because we will buy gasoline.’ When he peeped thru the window, he saw Yolando Alba, Ludovico Cervantes
and a third person who is not known to him. When the victim opened the door of
the bodega, he saw Yolando
Alba and the other person whom he did not know enter while Ludovico Cervantes posted himself outside near the door (pp. 78-90, tsn, Aug. 17, 1972).” (Brief, pp. 2­-7.)

The appellants, through their counsel de oficio, claim that the trial court committed the
following errors:

“1. THE LOWER
COURT ERRED IN HOLDING THAT ‘THE ROLE AND PARTICIPATION OF ACCUSED ALBA IN THE COMMISSION OF THE CRIME
HAS BEEN WELL ESTABLISHED’ BY
MEANS OF THE TESTIMONY OF ISIDRO EBRANO AND
JOSE SAGANG.

“2. THE LOWER
COURT ERRED IN CONSIDER­ING THE EXTRA-JUDICIAL CONFESSION OF ACCUSED LUDOVICO
CERVANTES AS AGAINST APPELLANT ALBA.

“3. THE LOWER
COURT ERRED IN CONVICT­ING APPELLANT CERVANTES ON THE BASIS OF AN
EXTRA-JUDICIAL CONFESSION WHICH HE HAS ASSAILED AND IMPUGNED; and

“4. THE LOWER COURT ERRED IN
BELIEVING THAT ‘THE CRIME OF ROBBERY
WITH HOMICIDE BY HEREIN TWO (2) ACCUSED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT’.” (Brief, p. 3.)

Anent the first error, it is asserted that the testimony of Isidro Ebrano is not credible for the following reasons: (1) He did not tell Ramon
Ebrano that he saw Yolando Alba,
who was with an unidentified person holding a flashlight, push the deceased
Chua Chin towards the room of the latter. (2) He did not bother to tell any of
the policemen investigating the killing in
the morning of December 8, 1971, what he had seen. It is said that the behaviour of Isidro in these two instances was unusual and
made his testimony incredible. (3) If
it was true that Chua Chin was being pushed towards his room, Isidro could see only the backs of Chua Chin, Alba
and the unidentified person. How then, it is said, could Isidro have identified Alba? (4) He was a newcomer
in the barrio of San Rafael and he could not have identified Alba who
was a resident of Bislig where his wife and children were
staying.

It
is Our considered opinion that the circumstances
stated above do not seriously affect the trustworthiness of Isidro Ebrano’s testimony.

The
record shows that when Isidro testified on July 18, 1972, he was only 20 yrs
old. When the incident occurred on December 7, 1971, he was even much younger. He was a mere houseboy – a simple,
rural lad. He could not be blamed if he chose to keep his mouth shut for fear
of his life because one of the assailants of Chua Chin was Alba who had been a
policeman in Cateel. When asked on cross-examination
why he did not tell his roommate
Ramon what he had seen, the reply was: “I did not inform him because I was
afraid.” (TSN, July 18, 1972, p.
171.) And he kept repeating that he was afraid.

The fact that he saw Chua Chin being pushed towards the latter’s
room does not mean that he saw only the backs of the three men. In fact he
categorically stated that the three were facing him because Chua Chin’s room
was “not fronting” his room. And there was sufficient light to see the three persons because of the
light emitted by the flashlight held by Alba’s companion.

And the circumstance that
Isidro was a newcomer to San Rafael was no obstacle to the
identification of Alba. The fact is that Alba was in San Rafael in the evening
of December 7, 1971, according to the
positive testimony not only of Isidro but also of Jose Sagang.

Still on the first assignment of error, the credibility of Jose Sagang who testified that he saw Alba, Ludovico
Cervantes and a third person in front of Chua Chin’s store in the evening of December 7,
1971, is assailed on the ground that there was no electric service in barrio
San Rafael and
so he could not have seen the three men. This argument deserves scant consideration because
electricity is not the only source of illumination.

The
appellant’s also harp on the testimony of Dr. Rabe
that the victim probably died at 2:00 a.m. on December 8, 1971. From this they
argue that they could not have killed Chua Chin as alleged in the evening of
the preceding day. It suffices to state that Dr. Rabe
merely expressed an opinion. And considering the fact that no persons other
than Alba et al. were seen at the scene of the crime, the dis­crepancy in
respect of the time of death is not significant.

The trial court stated that the testimony of Isidro Ebrano was corroborated by the testimony of Jose Sagang and the extra-judicial confession of Ludovico Cervantes (Exhibit P). It is claimed that the trial court should
not have taken the Cervantes confession against Alba absent proof of
conspiracy. This claim is without merit because on the contrary the trial court precisely found that there was a
conspiracy.
It said:

“The
evidence has clearly shown and esta­blished conspiracy. As a matter of
fact, they were seen together by witness Jose Sagang
at the store of the victim before accused Yolando
Alba and the other person entered the bodega. This is corro­borated by
the extra-judicial confession (Exhs. “P”,
“P-1”, “P-2”) which states that they came together from Cateel and
proceeded to the store of the
victim at barrio San Rafael. All these facts point to the existence of
conspiracy. The evidence on record also affords no cogent explanation
why accused Yolando Alba and Ludovico
Cervantes, together with another person whose identity has not been recognized
by the Prosecution witnesses, were at the store of the victim Chua Chin alias
Julian, at 9:00 o’clock in the evening of December 7, 1971 knocking at the window
and asking to buy gasoline except that
they were there with a united and common design to rob the victim. Since there
is conspiracy, although accused Ludovico Cervantes
was only a mere look-out and had not actually part­icipated in the killing and
the taking of things of the victim Chua Chin alias Julian, he is still equally
liable with accused Yolando Alba in the commission of
the crime for in a conspiracy, the act of one conspirator is the act of
all.” (Expediente,
pp. 574.)

The extrajudicial confession of Cervantes is assailed on the
ground that it was obtained by force. True it is that an involuntary confession
is inadmissible in evidence. But in
this case there is no proof that the confession was the fruit of coercion. The
trial court discussed this claim at length and its conclusion is amply
supported by the record. The trial court said:

“With respect to accused Ludovico
Cervantes, said accused has impugned the voluntariness
of his extra-judicial confession charging that said extra-­judicial confession
was obtained by means of violence and intimidation made by the PC men,
particularly Sgt.
Cabotaje and Major Bulusan.
He declared that because of the maltreatment that he received from the PC men,
he submitted to an examination and medical
treatment by Dra. Batao
of the NORCAMCO Clinic at Lambajon, Baganga, Davao Oriental, but said
accused has not presented any medical certificate and gave the reason that
Dra. Batao refused to give
a medical certificate. On the alleged mal­treatment, he presented also
witnesses Domiciano Sobrecarey
and Jose Martinute who attempted to show that there
was maltreatment made on him, but the testimonies of these two (2) witnesses do
not show how said accused was maltreated. They merely testified that they, as
suspects, were maltreated by the PC men during the time that they were at the
PC detachment in Lambajon, Baganga,
together with the herein two (2) accused. The Court cannot accept this
assertion because it is not clear and convincing. If really he had submitted
himself to a medical examination and treatment, there was no reason why he
could not produce any medical certificate of Dra. Batao or he could have presented the said doctor on the
witness’ stand to support his allegation. On this score, it is the considered
view of the Court that his allegation was merely a product of his attempt to
assail the voluntariness of the extra­judicial
confession made by him.

“While it is true that he was at the PC detachment during the
investigation, but imme­diately after said investigation he was brought to
Judge Auxencio C. Dacuycuy,
Municipal Judge of Baganga, Davao
Oriental, before whom the said extra-judicial confession (Exhs.
“P”, “P-1”, “P-2”) was subscribed. Judge Dacuycuy categorically
stated that before accused Ludovico Cervantes affixed
his thumbmark, the contents of the said
Affidavit were explained to said accused, and the accused answered in the
affirmative upon being asked of the truth of the same. It is signi­ficant to
note that said Judge is the uncle of the accused because the mother of the
Judge bears the family name of Cervantes. If accused Ludovico
Cervantes was really maltreated and coerced to execute the Affidavit, he could
have stated such fact to the Judge who happens to be his uncle. Said Judge
would have been the first to protect him if really he was maltreated and
intimidated.

“Another consideration that would belie the involuntariness of
the execution of the extra-judicial confession by accused Ludovico
Cervantes is the fact that this confession contains many details which could
have been supplied only by the accused himself. Some of these details narrated
in the earlier portion of this Decision are definitely facts that could not
have been supplied by any other person except the accused himself who had
actually participated in the commission of the crime.

xxx                xxx                   xxx

“Accused Ludovico Cervantes
furthermore argues, through Counsel, that he was forced to admit the thumbmark affixed on the extra-judicial confession (Exhs. “P”, “P-1”, “P-2”) as
his, although actually, according to him, he knows how to write his own
signature. He maintains that because he could write his own signature, the thumbmark affixed on the said Affidavit was forced
on him by the PC authorities. The affixing of the thumbmark
by the accused was well explained by Judge Auxencio
C. Dacuycuy, before whom the Affidavit was subscribed
and sworn to. The Judge dec­lared that after having read and asked the accused
about the contents of the Affidavit, and after said accused answered in the
affir­mative as to the veracity of
the said contents, he assisted the accused in affixing the latter’s thumbmark because said accused could not write due to the
injury of the right arm. The Court accepts this explanation as a true
fact of what actually happened, considering
that there is no showing of improper motive on the part of the Judge.” (Expediente,
pp. 570- 574.)

As a footnote, it may be mentioned that Sobrecarey
and Martinute signed a statement that they were
neither harmed nor maltreated by their PC investigators and that they were
released in good health. (Exh. W.)

The defense of both appellants is alibi – one which is easily
manufactured.

Alba told a long story about an injury to his throat in the
evening of December 7, 1971; how he was
attended by his mother-in-law in San Rafael; the treatment administered to him by his uncle Dr. Oriculo Alba at a clinic in the poblacion of Cateel;
his return to San Rafael where
he slept at 10:00 p.m. only to be told that next day by his mother-in-law of
the death of Chua Chin.

It is to be noted that Alba’s story did not preclude his presence at the scene of
the crime when it happened. This, coupled with the positive identification
of Isidro Ebrano and Jose Sagang
plus the extrajudicial confession of Cervantes,
shatters his alibi.

On the part of Cervantes, he claimed that he was in Cateel at the time the crime was committed. But as the
trial court said, Cateel is only three (3) kilometers
from San Rafael and is accessible by road so that it was not physically
impossible for him to be at the scene when the crime was committed. Moreover,
he was positively identified by Jose Sagang. Finally,
he executed an extrajudicial confession.

All things considered, We are satisfied that the trial court
committed no factual and legal errors.

WHEREFORE, the judgment under review is affirmed in all
respects except that instead of the death penalty each of the accused shall
suffer reclusion perpetua because the
votes necessary to impose the former were not obtained.

SO ORDERED.

Makasiar, Aquino,
Concepcion, Jr., Guerrero, Melencio-Herrera,
Plana, Escolin, and Relova, JJ., concur.

Fernando, C.J. and Teehankee, JJ., in the
result.

Gutierrez, Jr., J., no part.

De Castro, J., on sick leave.