G.R. No. L-32515. September 10, 1981
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARIANO CAÑIZARES, FERMIN CAÑIZARES, AND ANTONIO CAÑIZARES, DEFENDANTS, FERMIN CAÑIZARES, DEFENDANT-APPELLANT.
CONCEPCION, JR. J.:
Appeal from the decision of the Court of First Instance of Davao
in Criminal Case No. 9930, the dispositive portion of which reads, as follows:
“IN VIEW WHEREOF, the
Court finds all the defendants guilty beyond reasonable doubt of having
committed the crime of Robbery in Band with Rape, in the manner alleged in the
information and considering the aggravating circumstance of night time
purposely sought to facilitate the commission of the crime charged and by a
band, without any mitigating circumstance to offset the same, the Court hereby
sentences all and each one of the accused, Fermin Cañizares, Mariano Cañizares
and Antonio Cañizares to suffer LIFE IMPRISONMENT according to Article 294,
Paragraph 2 of the Revised Penal Code, and to pay unto the offended parties,
the heirs of Patricio Delima the sum of P10,854.00 the value of the cash and
articles stolen which are not recovered, without subsidiary imprisonment in
case of insolvency due to the nature of the penalty imposed, and to pay the
costs.”
It is not disputed that
in the early morning of May 24, 1966, the house of Patricio Delima, situated in
sitio Paligue, barrio Bulacan, Padada, Davao del Sur, was broken into and
robbed by several armed men of cash and other articles of value amounting
to P10,854.00, on the occasion of which his daughter
Primitiva Delima, was raped and violated
by one of the malefactors.
Eufrosina Delima, a granddaughter of Patricio Delima, who slept
in the house of her grandparents at the invitation of the latter,[1]
in view of her forthcoming marriage,[2]
testified that at about 2:00 o’clock in the morning of May 24, 1966,[3]
while she was sleeping in a room
in the upper floor of her grandparent’s house, together with her grandmother
Dionisia Diez, her aunt Primitiva Delima, and her cousin Luzminda Ofamin,[4]
she was suddenly awakened by an armed man, dressed in fatigues, whom she later
identified as the herein defendant-appellant Fermin Cañizares (Cañasares),[5]
who pointed a gun at her,[6] saying: “If you don’t want to die don’t
make any noise,”[7] and “Day, Day, wake up, we are agents
of the law,” forcing her to stand up.[8]
She was frightened.[9] Looking around her, she saw two other men,
whom she later identified as Mariano and Antonio Cañizares (Cañasares), inside
the room, similarly dressed in fatigues, and pointing their guns at her
companions.[10]
Afterwards, they were brought to the
sala where their hands were tied behind their backs. Eufrosina’s feet were also bound together at
the ankles by strips of cloth.[11] In the sala, she saw her grandfather
Patricio Delima, her uncle Guillermo Delima, and her cousin Eduardo Delima, son
of Guillermo Delima, guarded by another armed man dressed in fatigues. Their hands were also tied behind their back.[12]
She was asked where their money was
kept but she told them that she was not from the house. So, the armed men asked the others. When no one answered, the intruders
threatened to kill them. Consequently,
her grandfather, Patricio Delima, said: “You get everything, just ransack
our trunk and you can get anything you want there.” The armed men opened
the trunk and took therefrom money, contained in two “alcancias” amounting to P10,000.00, which Patricio Delima had been saving in order to buy a jeep;
one lady’s watch worth P90.00; two necklaces valued at P46.00; and two rings, diamante
negra, valued at P58.00. The armed intruders also got the .22 cal.
rifle of Patricio Delima valued at P440.00; and a transistor radio worth
P220.00.[13] Fermin Cañizares also dragged Primitiva
Delima inside the room and forcibly had sexual intercourse with her.[14] About an hour later, the intruders covered
them with mats and then left, after putting out the lights in the house. At the balcony of the house, Eufrosina heard
one of the armed men say: “Where
shall we go? To Davao City or to Malita.” And they agreed to go to Malita. After a time, she was able to free herself
from her bonds and went home, about 40 meters away,[15] and reported the incident to her father,
Benigno Delima, who, in turn, informed the police authorities.[16] Some policemen came and conducted an
investigation.[17] The following day, she went to the municipal
building of Padada to identify a suspect and she pointed to Mariano Cañizares
as one of the malefactors.[18]
Her testimony is corroborated
by Primitiva Delima who further declared that after Fermin Cañizares had abused
her, Fermin “told me, ‘Do not report this to the agents of the law, if you
will report we will have to kill
you.’ “[19] Asked how she was abused, Primitiva Delima
declared as follows:
“Q You said
that you were raped or one of these robbers had sexual intercourse with you
inside the room, and that your hands were tied at the back, you said that did
you not?
A Yes, sir.
Q How were you made to lie down?
A I lied face up because I was pushed to the floor.
Court:
Q Who
pushed you?
A Fermin.
Q He
was alone?
A Yes,
Your Honor.
ATTY. OCAMPO:
Q And all the time your hands were tied at
your back like this (counsel demonstrating with hands crossed) and you are tied
this way?
A Yes, sir.
Q Was
your pantie taken when you were already down?
A Yes,
when I was already lying down.
COURT:
Q When
you were lying your face was up or down?
A Face upwards.
Q Your body up or downwards?
A Up.
Q So
that you must be lying on your hands because as you said your hands were tied
at your back and you were facing upwards?
A Yes,
your Honor.
Q When
did he remove your panties when you were lying face up?
A When
I was already lying down with my hands at my back.
ATTY. OCAMPO:
Q Which
of these two panties you identified in court was the one taken from you on
that assault upon you?
A The two of them because I was using
double panties.
Q And
at that time you said you had your menstral period?
A Yes, sir.
Q You
were bleeding profusely?
A Yes, sir.
Q What
did Fermin Cañizares do after he pushed you to the floor?
A He
abused me.
Q The
assaulting he did was to have sexual intercourse with you?
A Yes, sir.
Q He
did not do anything else?
A No
more, they said: ‘Do not make noise.’
Q Did
you not tell him, please, do not touch me because I have my menstral period?
A I
told him – do not touch me because I have my menstral period, but he did not
believe me.
COURT:
Q Did
he go over you?
A Yes,
your Honor.
Q Did
he put his penis in your vagina?
A Yes, sir.
Q Penetrated?
A Yes, sir.
Q Whole?
A Yes,
your Honor.
Q Did
you consent or like it?
A No, sir.
Q What
did you do in order to show that you did not like the act?
A I
was trying to struggling in order that the act would not be consummated but I
was overpowered.
Q Did
you kick him?
A I
was not able to kick him.
Q Why?
A Because I was afraid.
Q Did
you shout for help?
A I
shouted once.
Q What
did you say in your shout?
A I
shouted, please help me. I was
addressing this to my brother but they were not able to help because they were
many outside, they were tied.
Q Was
the intercourse for a long time or short time?
A Quite long.
Q Was
he using force while he was lying with you like pressing your breast or holding
your hands or covering your mouth?
A They
have not used force because I had no more strength, I was already tired.”[20]
Primitiva Delima was examined by the Municipal Health Officer of
Hagonoy, Davao and found to have suffered
the following lesions:
“EXTERNAL
FINDINGS
“1. Linear, superficial abrasion, 1-1/2 inches long over the
middle part of the back of the neck.
2. Linear, superficial abrasion, 1/2 inch long
over the middle part of the back of the neck, 1 cm. to the left of No. 1.
“INTERNAL
FINDINGS
“1.
Introitus admits 2 fingers.
2. Lacerations of the hymen was
found at 5:00 o’clock and 7:00 o’clock.”[21]
In view thereof, a criminal complaint was filed with the Municipal
Court of Padada, Davao, charging
Mariano Cañizares (Cañasares) and his four (4) unidentified companions with the
crime of Robbery in Band with Rape.[22]
On June 30, the complaint was amended, naming as defendants, Fermin and Antonio
Cañizares (Cañasares).[23]
Thereafter, trial was conducted and on July 29, 1970, the trial court rendered the
herein appealed decision.[24]
Prior to the promulgation of the
decision, however, or on July 6, 1970, the accused Antonio Cañizares died,[25] so that only Mariano and Fermin Cañizares
appealed.[26] Then, on July 13, 1975, Mariano Cañizares also died, and the case
was dismissed insofar as he is concerned,[27] leaving the appeal of the defendant Fermin
Cañizares.
The appellant assails the
decision claiming that the trial court erred:
1.
In considering, and in not
discrediting the testimonies of Primitiva Delima and Eufrosina Delima, the only
alleged eyewitnesses despite the substantial inconsistencies and
improbabilities in their
testimonies, all of which made them and their testimonies not credible;
2.
In making findings of fact not
supported by the records and in considering
the testimony of an alleged witness by the name of Gabino Oyanguren who was not
presented as witness either by the prosecution or the defense;
3.
In not giving credit to the
testimonies of the defense witnesses; and
4.
In convicting the accused despite
the fact that the evidence failed to establish their guilt beyond reasonable
doubt.
1. On the first assignment of error, the
appellant maintains that it was error for the trial court to have relied upon
the testimony of Primitiva Delima and Eufrosina Delima in deciding the case
against him. To bolster his claim, the
appellant points to inconsistencies and improbabilities in the declaration of said witnesses which render their
testimony unworthy of belief. The appellant cites the statement of
Primitiva Delima contained in her affidavit executed on May 25, 1966,[28]
wherein she stated that she could easily identify the malefactors since their
house was well-lighted when the crime was committed and pointed to Mariano
Cañizares as one of the robbers, and yet, when asked during the trial of the
case to identify Mariano Cañizares, she pointed at Fermin Cañizares, and when
asked to identify Antonio Cañizares, she pointed at Mariano Cañizares. The appellant stresses that omission or
failure at identification renders her testimony doubtful.
The appellant’s assertion
clearly lacks merit. As pointed out by
the Solicitor General, the fact that Primitiva Delima was confused or mixed-up as
to names of the accused does not detract from her positive identification of
the malefactors. The explanation of the
Solicitor General is impressed with merit and We
quote:
“Primitiva Delima first came to know the names of the three
appellants when her affidavit (Exh. 2) was taken by policeman Abner Granado,
which she signed at the municipal building; it was policeman Camarino who told
her their names, but she was made to confront them when she was already in the
municipal building (pp. 144, 149, tsn, Adao).
However during the confrontation
Primitiva Delima merely pointed to them as the malefactors, without
identifying each one of them by name.
She could not have known of their respective names in advance of the
confrontation. Even if she were told their
names, it was not possible that this victim could have remembered which
appellant was Fermin, Mariano, Antonio. Indeed, there was no other opportunity for
Primitiva to have enabled her to know the respective names of appellants.”[29]
The appellant also points
at conflicting testimony of Primitiva Dilema and Eufrosina Delima to the effect
that Eufrosina declared that her hands and feet were tied in the sala, while
Primitiva Delima stated that they were tied inside the room where they slept;
and that Eufrosina testified that she saw four armed men, while Primitiva said
that there were seven persons.
The alleged
contradictions in the testimony of Primitiva and Eufrosina Delima, pointed out
by the appellant, however, refer to minor details which do not impair the
intrinsic credibility of the witnesses.
On the other hand, it strengthens their credibility and show that the
witnesses were not coached or rehearsed.[30]
2. On the second assignment of error, the
appellant cites the following statements of the trial court as not supported by
evidence:
a)
“x x x but Fermin
transferred his residence at Cabacungan, Padada, and lived there with his wife
until he was arrested by the police on May 25, 1966;”
b)
“x x x Besides the
supposed owner of the coprax, Gabino Oyanguren did not come out in the open to
assert his ownership over the disputed property altho he testified their alibi,
but remained silent as to his alleged connection or involvement in the conflict
of claims over the coprax processed by the defendants;” and
c)
“x x x With better reasons
it could be stated herein that the accused Fermin Caizares who was allegedly
with his wife in the house of his father-in-law at Cabacungan, Padada during the
occurrence of the incident in question could have also probably and possibly gone
to the scene of the crime
by riding on a motor vehicle since the distance between these places is 30
kilometers and passable to jeeps and trucks.”
The appellant argues that Cabacungan is not in Padada, but is
situated in Barrio Bulacan, Malalag, Davao; that it is not true that Fermin
Cañizares was arrested on May 25, 1966, but was detained after he voluntarily
went to the municipal building of Padada, together with Vice-Mayor Santos
Matubang of Malalag and then Councilor Saturnino Rosario to intercede in behalf
of his brother Mariano who had been arrested and detained in connection with
the present case; that no witness by the name of Gabino Oyanguren had been
presented by the prosecution or the defense; and that the accused Fermin
Cañizares and his wife, although living at Cabacungan, did not stay in the
house of his father-in-law, but lived in the house of his landlord Saturnino
Rosario.
Admittedly, the trial
court had made inaccurate statements in its decision, as pointed out by
counsel for the appellant. But, such inaccuracies refer to trivial matters and appears to be
misapprehensions of the trial court which do not detract from the established
fact that the appellant and his companions robbed the house of Patricio Delima
and that the appellant raped Primitiva Delima on the occasion thereof.
3. On the third assignment of error, the
appellant argues that their version is amply supported by evidence and is more
credible and reliable. The appellant and his co-accused denied participation in
the commission of the crime for which they were charged and interposed the
defense that they were somewhere else when the crime was committed and that it
was physically impossible for them to be at the scene of the crime at the time
it was committed. The defendants claim
that the Municipal Mayor of Padada, Davao
who harbors a grudge and against them, instigated
their prosecution notwithstanding their innocence.
The appellant testified that from 1963 to 1966, he was administering
a parcel of coconut land belonging to his father-in-law, Gabino Oyanguren,
situated in Paligue, Bulacan, Padada, Davao. In March, 1966, he invited his brothers
Antonio and Mariano, (also defendants in this case) to help him in making
coprax from the coconuts planted on the land.
The coprax they have made, however, were confiscated by policemen of
Padada, Davao, and brought to the
municipal building. So, he appealed to Governor Bangoy of Davao and the latter sent a letter to Mayor
Ordaneza of Padada, Davao directing the mayor to have the coprax weighed. The mayor resented this and upon receipt of
the letter, the mayor got mad and vowed that: “not long from now I will
send you to jail.”[31] In view of the threats, his brothers Antonio
and Mariano returned to their house at Tibulog, Malita, Davao, while he
transferred his residence to Cabacungan, Malalag, Davao, about 30 kilometers
from the poblacion of Malalag,[32] and stayed in the house of Saturnino
Rosario.[33]
The appellant further stated that he was sleeping with his wife
in the house of Saturnino Rosario in Cabacungan in the evening of May 23, 1966 and awoke at about 7:00 o’clock in the morning of May 24, 1966.[34]
Then, on May 25, 1966, the
wife of his brother Mariano came to him and informed him that Mariano was in
jail. So, he asked the help of his landlord, ex-Councilor Saturnino Rosario who, in turn, asked Vice-Mayor Santos
Matubang of Malalag, Davao to intercede in behalf of Mariano.
When they arrived at the office of the Chief of Police of Padada, he saw
acting chief of police Brigido Caminero interrogating a woman, whom he later
identified as Primitiva Delima. Caminero
asked Primitiva if he (Fermin) was one of the robbers, and Primitiva answered
that he was not because the robber was already old and had a beard. Later, the vice-mayor wanted to take him
home, but Caminero refused saying that there was still an investigation to be
conducted by the mayor.[35]
In support of his claim, the appellant cites the testimony of
Santos Matubang and Saturnino Rosario who both declared that they were present
when the chief of police of Padada asked Primitiva Delima whether or not Fermin
Cañizares was one of the robbers and Primitiva Delima answered that Fermin was
not the robber because the robber had a beard and is old.
The testimony of Matubang and Rosario are, however, belied by
acting chief of police Caminero who testified in court that in the afternoon of
May 25, 1966, Fermin
Cañizares, Antonio Cañizares and Mariano Cañizares were pin-pointed in the office of the chief of police
as the perpetrators of the crime.[36]
Between the biased testimony of defense witnesses Matubang and Rosario and the
unprejudiced testimony of the public officer, the latter should prevail.
The appellant’s claim
that Mayor Ordaneza of Padada, Davao instigated the filing of this case against
him and his brothers Antonio and Mariano appears to be an after-thought. None of the accused complained of such
threats by the Mayor before and it was only during the trial of the case that
Fermin Cañizares made mention of such threats.[37]
Besides, the claim of the
appellant is not corroborated, and Acting Chief of Police Caminero, who was
present in that incident, denied that the Mayor had threatened to send the
accused to jail. His testimony reads, as
follows:
“Q It
has been testified by the three accused, Mariano, Fermin and Antonio Cañizares
that this case was filed because of the personal differences between the
accused and the Mayor, is that true? Mayor of Padada.
A No, sir.
Q They
said here that the Mayor of Padada threatened to send the accused to jail, is
that true?
A No, sir.
Q Is
there any incident wherein the accused were called by the Mayor?
A Yes, sir.
Q Why
do you know that incident or case?
A Because
I was the one who investigated that case.
Q Is
there any personal difference between the accused and the Mayor?
A None, sir.”[38]
There is also nothing in the record to show that Mayor Ordaneza had influenced the family of Patricio Delima
into implicating the appellant, or that Primitiva Delima and Eufrosina Delima
had any motive to testify falsely against him.
The claim of the appellant, which is affirmed by Saturnino
Rosario and Andres Tapic, that he was sleeping with his wife in the house of
Saturnino Rosario on the night in question is belied by the positive
identification of the appellant by Primitiva Delima and Eufrosina Delima that
he was one of the robbers and the person who raped Primitiva Delima.
Besides, Andres Tapic merely testified that he saw the appellant
in the house of Saturnino Rosario at 9:00 o’clock in the evening of May 23,
1966, where he stayed for about two hours, and again at 5:30 o’clock in the
morning of May 24, 1966,[39]
although the appellant declared that he woke up at about 7:00 o’clock in the
morning of May 24, 1966, so that he
could not have known what the appellant did between those hours. Since the crime was committed at about 2:00 o’clock in the morning of May 24, 1966, his testimony is of
little importance. There being no
positive showing that Cabacungan, Malalag, Davao,
where the house of Saturnino Rosario is situated, is very distant and
inaccessible from Paligue, Bulacan, Padada, Davao,
where the crime was committed, it was not physically impossible for the
appellant to be at the scene of the crime at the time of its commission.
The testimony of Saturnino Rosario, upon the other hand, is
exaggerated and improbable, and cannot be relied upon. He testified that he was awake that night in question and saw Fermin Cañizares in
the house the whole time. His testimony
reads, as follows:
“COURT:
Q Did
you see Fermin Cañizares at P2:00 o’clock at night?
A Yes,
he was there in the house.
Q What
was he doing at 12:00 o’clock?
A He happen to converse with each other in
our house.
Q On
May 24, at 1:00 o’clock in the
evening did you see Fermin Cañizares?
A Yes,
he was in the house.
Q What
was he doing?
A He
was working.
Q Inside the house?
A Yes, inside the house.
Q What
work?
A He
was doing?
A He
was preparing some food and fetching water.
Q Did
you talk to him?
A Yes,
your Honor.
Q What
about at 2:00 o’clock of May 24, 1966, early morning, did you
see him in your house?
A I
saw him.
Q Did
you talk to him?
A I
only saw him.
Q Did
you not talk to each other?
A No, sir.
Q What
was he doing?
A I
don’t know what he was doing at that time downstairs.
Q How
about you what were you doing at that time?
A I
was lying down as I felt tired.
Q At
three o’clock of May 24, 1966, did you see him in your house,
early morning?
A Yes,
your Honor.
Q What
was he doing?
A I
don’t know, what he was doing but I saw him.
Q Was
he eating or smoking, walking or sitting down?
A He
was downstairs working.
Q At
four o’clock in the morning of May 24, 1966 did you see him?
A Still
I saw him.
Q What
was he doing if any?
A He
was downstairs splitting firewood, fetching water.
Q What
about you did you do or what were you doing?
A Lying down.
Q You
have talked with him?
A No.”[40]
On the whole, the issues raised by the appellant in his appeal
involves the credibility of witnesses, and the settled, long-standing rule, where
the issues raised hinge on credibility of witnesses, is for the appellate
tribunal to give due respect to the assessment of the facts made by the lower court, said court having had the
opportunity, not only of receiving the evidence, but also of observing the
witnesses while testifying. This rule
should not be overturned unless there is showing that in making the disputed
factual findings, the trial court had overlooked or failed to consider certain
facts of weight and importance that could have materially affected the
conclusion reached in the case.[41] In the instant case, there is no positive
reason that would justify a reversal of the judgment appealed from.
WHEREFORE, the judgment of conviction should be,
as it is hereby AFFIRMED. But, the
penalty imposed upon the appellant should be MODIFIED. The appellant is hereby sentenced to suffer
the penalty of reclusion perpetua and to pay unto the heirs of Patricio
Delima the amount of P10,854.00 for the value of the
cash and articles stolen and not recovered, without subsidiary imprisonment in
case of insolvency. The appellant is
further sentenced to indemnify Primitiva Delima, the rape victim, the amount of
P12,000.00. With costs against the appellant.
SO ORDERED.
Barredo, (Chairman), Aquino, Abad Santos, and De Castro, JJ., concur.
[1]
t.s.n., Adao, Vol. I, p. 28.
[2]
Id., p. 68.
[3]
Id., p. 34.
[4]
Id., p. 32.
[5]
Id., p. 38.
[6]
Id., p. 36.
[7]
Id., p. 35.
[8]
Id., pp. 73-74.
[9] Id.,
p. 54.
[10] Id.,
pp. 46, 74-75.
[11]
Id., p. 38.
[12]
Id., p. 40.
[13]
Id., pp. 55-58.
[14]
Id., pp. 60-62.
[15]
Id., pp. 27, 68.
[16]
Id., pp. 63-66; 80.
[17]
Id., p. 81.
[18]
Id., p. 97.
[19]
Id., p. 136.
[20]
Id., pp. 155-159.
[21]
Exhibit “A”.
[22]
Exhibit 3.
[23]
Exhibit 4.
[24]
Original Record, pp. 182-192.
[25]
Id., p. 179.
[26]
Id., p. 198.
[27]
Rollo, pp. 225-226.
[28]
Exhibit 2.
[29]Appellee/s
Brief, p. 4.
[30]
People vs. Selfaison, 110 Phil. 839; People vs.
Sangalang, L-32914, Aug. 30, 1974, 58 SCRA 737.
[31]
t.s.n., Adao, Vol. II, p. 101.
[32]
Id., p. 105.
[33]
Id., pp. 74-81.
[34]
Id., p. 83.
[35]
Id., pp. 86-89.
[36]
Id., p. 175.
[37]
Id., p. 104.
[38]
Id., p. 177.
[39]
Id., pp. 161, 165.
[40]
Id., pp. 111-114.
[41]
People vs. Sales, L-29340, April
27, 1972, and cases cited.