PEOPLE OF THE PHILIPPINES, PLAINTIFF, VS. GAUDENCIO MONGADO, JILLY SEGADOR, AND BELESANDE SALAR, ACCUSED.

Up for automatic review, in this case of robbery with double homicide
and rape, is the trial court’s decision imposing the capital penalty upon the
accused Gaudencio Mongado, Jilly Segador and Bele­sande Salar, on a plea of
guilty^[1]
entered into by each of them with the assistance of counsel de oficio, to the second amended informa­tion of June
16, 1965, which reads:

“SECOND
AMENDED INFORMATION

The undersigned Assistant Provincial Fiscal hereby accuses
GAUDENCIO MONGADO, JILLY SEGADOR, BELESANDE SALAR, ANASTACIO CADENAS and ANDRES
CAGADAS of the crime of ROBBERY WITH DOUBLE HOMICIDE AND RAPE, committed as
follows:

That on or about the 17th day of March, 1965, in the municipality
of Mainit, province of Surigao
del Norte, Philippines, and within the jurisdiction of this honorable Court,
the said accused, Gaudencio Mongado,
Jilly Segador, Belesande Salar, Anastacio Cadenas and Andres Cagadas with evident premedi­tation, conspiring,
confederating together and mutually helping one another, and armed with an
unlicensed .22 cal. revolver, a small sharp-pointed bolo, a toy revolver marked
‘Kit gun’ and a wooden club, with intent to gain, after having gained entrance
to the residence of Silvino Lincuna
and Emilia Dalit, husband
and wife respectively, by abusing the good­will of the said spouses, the latter
being the uncle and aunt respectively of the accused Gaudencio
Mongado, did then and there willfully, unlawfully and
feloniously by means of force upon things thru violence as alleged in the third
paragraph of this information that is by breaking the aparadors
and a trunk where valuables and personal effects were then kept, take, steal
and carry away the following articles, to wit:

having a total value of P1,710.00, more or
less, belonging to the said Silvino Lincuna and Emilia Dalit, as owners, to their ultimate damage and prejudice in
the aforementioned amount.

That on the same occasion, in the foregoing manner as charged and
pursuant to their conspiracy, the said accused, with intent to kill, did then
and there willfully, unlawfully and feloniously attack and assault in a
treacherous manner the said spouses, Silvino Lincuna and Emilia Dalit; that is, the accused Belesande
Salar clubbing Silvino Lincuna on the head, Gaudencio Mongado tying him helplessly to a chair with the use of
radio antennae and stuffing his mouth with rolls of gauze, and Jilly Segador attacking him with
fatal thrusts by means of a sharp-pointed bolo, and finally with Belesande Salar, also with the
use of the same sharp-pointed bolo, stabbing Emilia Dalit with several fatal thrusts; who as a result thereof
suffered the following injuries, to wit:

SILVINO LINCUNA

‘Contusion:  1. Frontal
region, left;

 2. Orbital
region, left;

 3. Maxillary
region, left;

 4. Nassal region.

‘Incised wounds:

1.  
Earlobe, left;

2.  
Hemathorax,
anteriorly, left (4)

(a)     
4 inches below midelevicular
bone; 3 inches deep

(b)     
Upper-lateral to nipple

(c)     
Below nipple

(d)     
Lateral to nipple’

EMILIA DALIT

‘1.  Contusions buccal
region with fracture right mandible;

2.   Incised wounds

1.     
Infraclavicular
region, left;

2.     
Mammary region, laterally left;

3.     
4 inches below axilla,
mid-axillary line, right;

4.     
Humeral region (2) right;

a.     
Lateral aspect

b.     
Medial aspect

5.     
Mammary region, upper right;

6.     
Numural
region, left;

7.     
Infrascapular
region, left (3);

8.     
Back right.’

which injuries directly caused the death of
the said Silvino Lincuna
and Emilia Dalit.

That on the occasion of the said Robbery, with Double Homicide, in
the manner as charged in this information and pursuant to their conspiracy, the
accused Belesande Salar
after having fatally assaulted the wife, Emilia Dalit, and while she was still alive and helpless, did then
and there willfully, unlawfully and feloniously have carnal knowledge with the
said Emilia Dalit at the
residence referred to where the aforementioned crime was committed.

Contrary to Article 294, paragraphs 1 and 2 of the Revised Penal
Code with the aggravating circumstances of treachery, ignominy, evident pre­meditation
and abuse of confidence, and with an additional aggravating circumstance of
recidivism against Gaudencio Mongado
for having been pre­viously convicted of the crime for robbery in Case No. 2470
before this Honorable Court on December 8, 1960 and made to suffer the penalty
of not less than 2 years, 4 months and one day of prision
cor­rectional, as minimum, to not more than 8 years of prision
mayor, as maximum.

Surigao, Surigao
del Norte, June 16, 1965.

(SGD.) ILDEFONSO G.
MANTILLA

Assistant Provincial Fiscal”

It was on June 28, 1965
when the three accused, together with two others, were arraigned before His
Honor, Judge Teofilo B. Buslon
of the Court of First Instance of Surigao del Norte.^[2]
According to the decision below, during the arraignment, the information was
translated to the accused “into the Visayan
dialect, the dialect which each of the five accused speaks and
understands.” The accused Gaudencio Mongado, Jilly Segador and Belesande Salar pleaded guilty. 
The two others, Anastacio Cadenas
and Andres Cagadas, pleaded not guilty.  Those who admitted guilt were asked by the
court, in the words of the trial judge, “if they understood the
consequence of their plea of guilty which is that they would be punished
according to law which might be death in the Electric Chair, to which question
each of the three accused answered in the affirmative.” Thus did the trial
court state in its decision that it “is satisfied that when each of the
above-named accused, GAUDENCIO MONGADO, BELE­SANDE SALAR and JILLY SEGADOR,
entered the plea of guilty, each of them was well aware of its consequences and
that each of them did so freely and voluntarily.”

On July 8, 1965, without taking any evidence, but taking stock of
the affidavits of admission of the three accused, as attached to the record,
the trial court found that the commission of the crime charged was attended by
the aggravating circumstances of treachery, ignominy, evident premeditation,
dwelling and abuse of confidence for all the three accused, and recidivism as
regards the accused Gaudencio Mongado
(who was a parolee at the time of the commission of this crime), all offset
only by the mitigating circumstance of voluntary plea of guilty.  The court, accordingly, sentenced the three, Gaudencio Mongado, Belesande Salar and Jilly Segador (Anastacio Cadenas and Andres Cagadas were to be tried separately) to suffer the penalty
of death for the crime of robbery with double homicide and rape defined and
penalized under Article 294, para­graphs 1 and 2 of the Revised Penal Code, to
indemnify jointly and severally the heirs of the victims Silvino
Lincuna and Emilia Dalit in the amount of P6,000 each, plus P596.15,^[3]
the value of the things taken by the accused but not recovered, with 3/5 of the
costs.  The trial court also directed the
return to the heirs of the victims, of a radio receiving set, a radiophono, cash money of P163.85, six pieces of assorted
clothes of the victims and other things taken by the accused but recovered; and
likewise ordered the deposit with the Philippine Constabulary Provincial
Command of Surigao del Norte of the 12 ga. shotgun until it can be bought by any qualified person,
the proceeds of which shall be turned over to the heirs of the victims.  The home-made revolver, cal. .22, the rounds
of ammunitions thereof, the toy gun revolver, the small sharp-pointed bolo, and
the wooden club used as instruments of the crime, were ordered forfeited in
favor of the government.

On July 15,1965, the trial court came out with an order directing
that the decision disposing of the things recovered and forfeiting to the
government all the articles used in the commission of the crime, shall not be
implemented until after the case of the remaining two defendants, Andres Cagadas and Anastacio Cadenas, “will have been tried and decided.”

1.  It is clear error on the
part of the trial court to consider the affidavits of admission of the three
accused attached to the record in appreciating aggravating circumstances
against them.  Affidavits are generally classed
as hearsay evidence; they are objectionable on hearsay grounds;^[4]
they are not admissible evidence of the facts they narrate.^[5]
These affidavits must first be formally offered and admitted in evidence before
the court may consider their contents. 
Thus, in People vs. Parayno
(1968), 24 SCRA 3, 17, affidavits of prosecution witnesses and the record of
the preliminary investigation “were offered as exhibits” and
“legally before the Court” and were thus properly considered.  And again, in People vs. Tarrayo, L-26489, April 21, 1969, a capital case, the transcript of
stenographic notes taken at the preliminary investigation was received in
evidence after the accused pleaded guilty. 
It was thus also appropriately utilized by the court.

The fundamental rule on this point is found in Section 35, Rule
132, Rules of Court, which provides that “[t]he court, shall consider no
evidence which has not been formally offered.”  It is the duty of the judge to rest his
findings of facts and his judgment only and strictly upon the evidence adduced.^[6]
Here, the affidavits of admission have not been formally offered, much less
admitted, in evidence.  They cannot be
taken into account.

The result is that solely the factual averments in the second
amended information – to which the three accused have pleaded guilty – may be
made the basis of any court finding as to the aggravating circumstances.

2. Of importance here is the existence of circumstances in
aggravation or in mitigation of the penalty for the crime committed.  For, at stake are the lives of the three
accused.  Deep-rooted in criminal law is
the precept that the existence of aggravating circumstances must be based on
positive and conclusive proof, not merely on hypothetical facts, no matter how
truthful suppositions and presumptions may seem.^[7]

There is, of course, the firmly settled jurisprudential prin­ciple
that an unqualified plea of guilty constitutes an admission of all the material
facts alleged in the information including the aggra­vating circumstances
therein stated.^[8]
Excepted therefrom are conclusions of fact,^[9]
and mere conjectures.^[10]
Thus it is, that a plea of guilty is sufficient to sustain a conviction of any
offense charged in the information, even a capital offense, without the
introduction of further evidence, the defendant having himself supplied the
necessary proof.^[11]

Parting from the foregoing premises, we take a look at the
aggravating circumstances found by the trial court.

3.  Counsel de oficio contends that alevosia
may not be considered in aggravation, because here it did not exist at the
inception of the attack.

True, the general rule is that treachery should normally attend
the inception of the attack.^[12]
But “if a person is first seized and bound, with a view to rendering him
incapable of defense, and he is then slain either by the person who reduced him
to this helpless state or by another”, alevosia
is present.^[13]
Reason for this is that “[i]n a case of that
kind it is obvious that the binding of the victim of the aggression introduces
a material change in the conditions of the homicide; and in slaying a person so
circumstanced, the author of the crime obviously avails himself of a form or
means directly tending to insure the execution of the deed without risk to
himself from any defense on the part of the person slain.”^[14]

In this case, the second amended information specifically charged
that defendants killed Silvino Lincuna
“in a treacherous manner x x x
that is, the accused Belesande Salar
clubbing Silvino Lincuna on
the head, Gaudencio Mongado
tying him helplessly to a chair with the use of radio antennae and stuffing his
mouth with rolls of gauze, and Jilly Segador attacking him with fatal thrusts by means of a
sharp-pointed bolo.” No doubt, the principles heretofore stated fit into the
foregoing facts.  Treachery has been
properly appreciated.

4.  Ignominy was deemed an
aggravating circumstance because of the rape committed on the occasion of the
robbery with double homicide.

The second amended information charges:  “That on the occasion of the said
Robbery, with Double Homicide, in the manner as charged in this information and
pursuant to their conspiracy, the accused Bele­sande Salar after having fatally assaulted the wife, Emilia Dalit, and while she was
still alive and helpless, did then and there willfully, unlawfully and
feloniously have carnal knowledge with the said Emilia
Dalit at the residence referred to where the
aforementioned crime was committed.”

Article 14 of the Revised Penal Code, in enumerating aggravating
circumstances, states in its paragraph 17: 
“That means be employed or circumstances brought about which add
ignominy to the natural effects of the act.”

We do not believe that the rape here committed added ignominy to
the crime.  Nothing in the information
suggests that the rape of Emilia Dalit
was perpetrated by the satyr in the presence or with the knowledge of her
husband Silvino Lincuna.  This act was done after the fatal thrusts
were inflicted on Lincuna.  Thereafter, the wife was first fatally
assaulted and, while still alive and helpless, was ravished.  This last averment by itself and without more
leaves us under serious doubt as to whether rape did really “add
ignominy” to the killing.

The foregoing notwithstanding, it is the uniform jurisprudence of
this Court that where the crime charged is robbery with homicide and rape, the
legal definition of the crime is robbery with homicide punishable under
paragraph 1, Article 294 of the Penal Code; and the rape committed on the
occasion of that crime is considered an aggravating circumstance.^[15]
Instead of ignominy, therefore, it is the rape itself that aggravates.

5.  Dwelling was properly
included as an aggravating circumstance, although not specifically alleged in
the information as such an aggravating circumstance.^[16]
And this, because from the factual narration in the second amended information,
the robbery, the killing and the rape were all perpetrated in the
“residence” of the offended parties. 
We have said in the recent case of People vs. Apduhan
(August 30, 1968), supra, at p. 815, that –

“The settled rule is that dwelling is aggra­vating in robbery
with violence or intimidation of persons,^[17]
like the offense at bar.  The rationale
behind this pronouncement is that this class of rob­bery could be committed
without the necessity of transgressing the sanctity of the home.  Morada is
inherent only in crimes which could be committed in no other place than in the
house of another, such as trespass and robbery in an inhabited house.  This Court in People vs. Pinca,
citing People vs. Valdez, ruled
that the ‘circumstances (of dwelling and scaling) were certainly not inherent
in the crime committed, because, the crime being robbery with violence or
intimidation against persons (specifically, robbery with homicide) that authors
thereof could have com­mitted it without the necessity of violating or scaling
the domicile of their victim.’ Cuello Calon opines that the commission of the crime in another’s
dwelling shows greater perversity in the accused and produces greater
alarm.”

No reason exists why we should depart from the pronouncement just
quoted.^[18]

6.  Counsel de oficio invokes in mitigation lack of
instruction.  But lack of instruction should
be proved; it cannot be inferred.^[19]
There is no such proof here.  It was not
invoked below.

The result, therefore, of our review of the record is that the
crime here under consideration is attended by the aggravating circumstances of
(1) treachery, (2) dwelling, and (3) rape against all the three accused, with
the added aggravating circumstance of (4) recidivism against Gaudencio Mongado.  And only one mitigating circumstance – that
of voluntary plea of guilty – can be considered in favor of the three
accused.  By the law, the three accused
merit the penalty of death.

We do not thus find it necessary to pass upon the lower court’s
pronouncement that the aggravating circumstances of evident premeditation and
abuse of confidence also attended the commission of the crime.  The result is the same.  The penalty is death.

For the reasons given, the decision under review is hereby
affirmed; the three defendants Gaudencio Mongado, Jilly Segador and Belesande Salar are hereby sentenced to DEATH, and are ordered,
jointly and severally, to indemnify the heirs of each of the deceased, Silvino Lincuna and Emilia Dalit, in the sum of
P12,000.00, and to pay the said heirs, jointly and severally, the sum of
P596.15, the value of the things taken but not recovered, and to pay the costs.

SO ORDERED.

Concepcion, C.J., Reyes, Makalintal, Zaldivar, Sanchez, Ruiz
Castro, Fernando, Capistrano, Teehankee, and Barredo, JJ., concur.

Dizon, J., took no part.

^[1]
The three accused Gaudencio Mongado,
Jilly Segador and Belesande Salar, assisted by
counsel de oficio, also pleaded guilty upon
arraign­ment before the municipal judge of Mainit, Surigao del Norte, on March 27, 1965.  Record below, pp. 26, 28, 29, 72.

^[2]
Criminal Case 3946, Court of First Instance of Surigao
del Norte, entitled “People of the Philippines, Plaintiff, versus Gaudencio Mongado, Jilly Segador, Belesande Salar, Anastacio Cadenas and Andres Cagadas, Accused.”

^[3]
“Of the things taken by the accused on the occasion of the robbery, the
amount of P163.85 in cash, the Kharman Radio­phono, valued at P450.00; and the 12 ga. shotgun valued at P250.00; have been recovered, the
total value of which is P1,113.85, leaving a balance of P596.15 not
recovered.” Decision below, Record, p. 75.

^[4]
People vs. Pagkalinawan, 76 Phil. 457, 460;
People vs. Caggauan, 94 Phil. 118,
125-126.  See:  Salonga, Philippine
Law on Evidence, 3rd ed., p. 372.

^[5] 1
Am. Jur., p. 955, citing cases.

^[6]
U.S. vs. Solaña, 33 Phil. 582, 593.

^[7] I
Aquino, The Revised Penal Code, 1961 ed., pp.
273-274, citing U.S. vs. Barbosa, 1
Phil. 741; U.S. vs. Perdon, 4 Phil. 141; U.S. vs.
Rana, 4 Phil. 231; People vs. Talledo, 85 Phil. 533.

^[8]
U.S. vs. Burlado, 42 Phil. 72, 74; People vs.
Apduhan, 24 SCRA 798, 814, citing People vs.
Egido, 90 Phil. 762 and People vs. Santos, 105
Phil. 40; People vs. Arpa, L-26789, April 25,
1969, citing People vs. Boyles, L-15308, May 29, 1964, citing
cases; People vs. Pujinio, L-21690, April
29, 1969.

^[9]
People vs. Venus, 63 Phil. 435, 440-442.

^[10]
People vs. Serrano, 85 Phil. 835, 838.

^[11]
U.S. vs. Jamad, 37 Phil. 305, 317; People vs.
Salazar, 105 Phil. 1058, 1063-1064.  See
also:  People vs. Pujinio, supra.

^[12]
U.S. vs. Balagtas, 19 Phil. 164, 172-173;
People vs. Cañete, 44 Phil. 478, 481; People vs.
Durante, 53 Phil. 363, 368-369; People vs. De
la Peña, 54 Phil. 818, 820; People vs. Elizaga, 86 Phil. 364, 382-383.

^[13]
People vs. Cañete, supra, at p.
481, citing U.S. vs. Elicanal, 35 Phil.
209, 218 and cases there cited.

^[14] Id.
at pp. 481-482.

^[15]
People vs. Ganal, 85 Phil. 743, 751; People vs.
Bacsa, 104 Phil. 136, 142; and People vs. Tarrayo, supra.  See also:  People vs. Carillo,
85 Phil. 611, 635.

^[16]
“[G]eneric aggravating circumstances, although
not alleged in the information, may be proved.” People vs. Raquinio, 17 SCRA 914, 919, citing cases.

^[17] Citing
U.S. vs. Leyba, 8 Phil. 671; People vs.
Sebastian, 85 Phil. 602; People vs. Napili, 85
Phil. 521.

^[18] See
also:  People vs. Atencio, 22 SCRA 88, 103; People vs. Condemena, 23 SCRA 910, 920; People vs. Tarrayo, supra.

^[19]
People vs. Sakam, 61 Phil. 27, 34.