THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. TOMAS BUAMA, ET AL., DEFENDANTS. DIOSCORO BODINO AND ALEJO BODINO, DEFENDANTS AND APPELLANTS.

It appears from the evidence that at about 9 o’clock in the evening
of May 16, 1950, five men, one of them armed with a pistol and the
others with a bolo each, broke into the house of Cecilia Brizuela in
barrio Pinagbobong of the municipality of Tabaco, Albay. In the house
at the time were Cecilia Brizuela, her children Salome Luciano and
Emilio Luciano, her mother Maria Bosero, and a protege named Venancia
Brizuela. After holding up the inmates at gun point and making them
kneel in the sala the intruders searched the house for money
and firearms, and not finding any took and carried away a bolo, a
flashlight and four chickens, of the aggregate value of P16.50. While
his companions were ransacking the house, the one who carried a pistol,
who turned out to be Tomas Buama, searched the person of Salome Luciano
and then dragged her downstairs and raped her, warning her afterwards
not to tell any body what had happened on pain of being killed.

But the following morning two policemen were sent out to investigate
the raid in Cecilia Brizuela’s house as well as other raids reported to
have been made in the same locality that same night and in a
neighboring barrio the night previous. Going first to the house of
Cecilia Brizuela, the policemen were there informed who the raiders
were, their names being given by Cecilia and her companions as Tomas
Buama, Restituto Boneo, Simplicio Cana, Dioscoro Bodino and Alejo
Bodino. Armed with this information, the policemen went to the house of
Tomas Buama and there found the pistol and helmet used by him in the
raid of the Brizuela home. Then going to the house of Simplicio Caña
and Restituto Boneo, who were brothers-in-law, the policemen found the
mask used by Boneo, the bolo taken from the Brizuela’s and various
articles taken from the other houses raided. Confronted with these
items of evidence, the three, that is, Tomas Buama, Simplicio Caña and
Restituto Boneo., admitted their participation in the crime and later
pleaded guilty at the preliminary investigation conducted by the
Justice of the peace. In the house of Dioscoro Bodino and Alejo Bodino
the policemen found nothing to connect them with the robberies. But we
have it from their own brief that they were implicated in the different
raids and, in addition to the present case, there were six other cases
filed against them for robbery in band, in two of which they were
convicted and did not appeal.

At the trial of the present case Alejo Bodino and Dioscoro Bodino
denied having had any participation in the crime charged. The first
testified with the corroboration of his wife, that he did not leave his
house on the night of the robbery. The other testified, without any
corroboration, that he passed that night in the house of his
father-in-law. They also presented in evidence the extrajudicial
confession of their co-accused Restituto Boneo according to which only
Tomas Buama and Simplicio Caña were with him that night. And in that
connection they reject the confession of Tomas Buama implicating them
in the crime contending that the said confession is not admissible
against them.

The trial court found Tomas Buama guilty of robbery with rape, aggravated by nocturnity cuadrilla
and use of disguise. But the other accused were only declared guilty of
robbery in an inhabited house, with the same aggravating circumstances,
and sentenced to an indeterminate period of imprisonment, indemnity of
P16.50 and costs. From this sentence, Dioscoro Bodino and Alejo Bodino
appealed to the Court of Appeals, but that court has certified the case
to us on the ground that in its opinion appellants are guilty as
charged and should be sentenced to reclusion perpetua,
considering that they and their three co-accused were all armed and one
of them committed rape on the occasion of the robbery without any one
of them attempting to prevent it.

The case hinges on the identification of the appellants, it being
contended that the complaining witnesses, Cecilia Brizuela and her
daughter Salome Luciano, could not have recognized the five men who
broke into their house because they had their faces covered and four of
them had their hats on while one wore helmet. But it appears that the
complainants had full opportunity to observe the movements and personal
characteristics of the malefactors for they stayed about one hour and
there was light in the house. Besides, with the exception of the one
wearing a mask, who turned out to be Restituto Boneo, the others had
their faces only partly covered with handkerchiefs. Being all of them
familiar figures long known to the complainants, their simple disguises
were no absolute proof against recognition. That recognition was
possible in spite of the disguises, finds confirmation in the fact that
three of them confessed their participation in the crime. There is
nothing to the insinuation that the robbers were identified only after
their arrest, for even before they were apprehended their names had
already been given to the policemen by Cecilia Brizuela and her
companions in the house. Appellants weak alibi is not enough to destroy
the convincing proof of their identity as two of the malefactors who
broke into the house of the Brizuelas.

The crime committed is robbery in band with rape for which the two
appellants should be held responsible as principals, it appearing that
they and their co-accused were acting in concert and though they did
not themselves take part in the rape, they were present and did not try
to prevent it. (Art. 296 paragraph 2 of the Revised Penal Code.) The
claim that the complaint was defective because it was signed by the
offended party, is without merit, it being settled that the crime of
robbery with rape may be prosecuted de oficio, without the complaint of the offended party. (People vs.
Orcullo, 46 Off. Gaz., Supp. 11, p. 238.) With the aggravating
circumstances of nocturnity and use of disguise the penalty imposable
is reclusion perpetua.

Wherefore, the sentence below, in so far as the present appellants
are concerned, is modified in the sense that they are declared guilty
of robbery in band with rape and sentenced to life imprisonment,
jointly and severally to indemnify the offended party Salome Luciano in
the sum of P4,000 and to pay proportionate costs, this in addition to
their liability to pay far the stolen articles (P16.50J jointly and
severally with their co-accused.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautista Angelo, Labrador, Concepcion and Reyes, J. B. L., JJ., concur.