G.R. No. L-28966. November 07, 1979
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BRIGIDO DE LA CRUZ, RODRIGO MACA AND ONOFRE COVITA, DEFENDANTS, RODRIGO MACA AND ONOFRE COVITA, DEFENDANTS-APPELLANTS.
PER CURIAM:
Before this Court on automatic review is the judgment of the
Court of First Instance of Agusan, Branch I, in its
Criminal Case No. 2546, the dispositive portion of
which reads:
“WHEREFORE, the Court finds the accused Onofre
Covita and Rodrigo Maca
guilty beyond reasonable doubt of the offense charged and accordingly imposes
on them the DEATH PENALTY. They are also
hereby ordered, jointly and severally, to indemnify the heirs of Cong Tiong Hay Ham the sum of P6,000.00, to restore to them the
sum of P20,018.30 (P20,103.50 minus P85.20 recovered) robbed from the deceased
victim’s house and store, to indemnify Judge Julito Dairo and Pacita Dairo the sum of P3,000.00, and to each pay one-half of the
costs. The weapons used in the
commission of the offense are hereby forfeited to the Government.
“The accused Brigido de la Cruz is
acquitted and his immediate release from detention is hereby ordered.”
At about 6:30 o’clock
in the evening of January 30, 1963,
five men, armed with guns and bolos, entered the store and house of Cong Tiong Hay Ham (hereinafter referred to as Hay Ham) located
in Veruela, Agusan. At that time the following persons were in
the house: Hay Ham, his wife Anselma Chamen and his daughter Pacita Dairo. Inside the store were Hay Ham’s son-in-law, Julito Dairo, Municipal Judge of Veruela and husband of Pacita, Florencio Piencenaves, Jr., son
of Anselma Chamen by a
former marriage, Hay Ham’s laborer Tomas Otero, Leonilo
Novo, Laurentino Otero and Crispin Romano.
Two of the intruders, including the leader, who entered ahead of
their companions, ordered Tomas and Laurentino Otero,
Leonilo Novo and Crispin Romano to go into the house,
and once the latter four were inside, they were told not to move. Laurentino Otero,
Crispin Romano and Leonilo Novo were, however, able
to escape. The others were ordered to
lie down on the floor by the leader of the group, and as the intruders were
tying them up, the leader fired his gun, the bullet ricocheting from the floor
and injuring the leg of one of the intruders.
Judge Dairo, who was previously sitting in the
corner of a room, was already on the floor, with his hands tied by the
robbers. Anselma
Chamen was slapped with the blade of a bolo, as a
result of which she became unconscious.
After regaining consciousness and while lying flat on the floor, she
pleaded with the intruders not to harm them, telling them to just take what
they wanted. She was, however, rebuked
for talking too much. Mrs. Dairo was slapped, beaten with a gun and kicked several
times. The leader of the gang fired his
gun once more and went to the display table, pulled out a drawer, and took therefrom money and other valuables. Another man, bringing a sack, followed
him. Then the leader approached Hay Ham
and, holding him by the back of his collar, ordered him to stand. Hay Ham was not able to stand, for by that
time he had become weakened by the beatings inflicted on him by the
intruders. Another man dragged him into
his bedroom, followed by another intruder who kept kicking him at the
back. Hay Ham was thereafter heard to be
groaning. One of the intruders
approached Judge Dairo, who was lying on his left
side, pointed his gun toward the judge and pressed the trigger thrice, but the
gun did not fire. Another member of the
gang got a bolo and hacked the judge several times, and as the latter tried to
evade the blows, he was slashed on the left side of the face, on the back,
right wrist and head. About thirty
minutes later, the robbers left the house, carrying with them their sackful of booty, but one of them fired two shots before
leaving the environs of the house of Hay Ham.
After they had gone, Judge Dairo, his
wife Pacita and Piencenaves
immediately went to Hay Ham’s bedroom.
There they saw Hay Ham lying prostrate with two big wounds on his
face. His hands were tied, and he was in
critical condition. He could not
talk. Mrs. Dairo
applied some medicine on Hay Ham’s wounds and a torniquet
on the wound of Judge Dairo. Hay Ham was placed on a motorized banca to be taken to a hospital, but he had already expired
by then.
The robbers succeeded in taking away P20,000.00 in cash kept in a
drawer of a table in bills of P50, P20, P10, P5, P2, and P1, and small denominations of P0.50,
P0.20, P0.10, and P0.05, P50.00 in cash
inside a brown bag belonging to Anselma Chamen, as well as other articles of value as enumerated in
the Information. Of the cash amount
taken, P85.20 was later recovered by the authorities, as will be mentioned
hereinafter.
The medical certificates show the following: Hay
Ham died of shock and
hemorrhage due to hack wounds in the face (Exhibit “B”); Judge Dairo sufered a
deep incised wound about seven (7) inches on the left side of the face — temporo maxillary, a superficial incised wound on the left cheek about three (3)
inches, and two sliced wounds about one (1) inch of the scalp at the occipital
region (Exhibit “A”); Anselma Chamen suffered a lesion on the right
temporal region, with hematoma, as big as a closed
fist of a three-month old baby, which was expected to heal from four (4) to
seven (7) days (Exhibit “C”); and Pacita Dairo suffered a contusion on the right
occipital region, another contusion on the right periorbital
region, a laceration of two (2) inches at the scalp, right occipital region,
with an expected healing period of three (3) weeks.
On April 22, 1963,
an Information was filed with the Court of First Instance of Agusan, docketed as Criminal Case No. 2546, which reads:
“The undersigned Special Counsel of Agusan
accuses BRIGIDO DELA CRUZ, RODRIGO MAGA and ONOFRE COVITA of the crime of
ROBBERY AND HOMICIDE, FRUSTRATED HOMICIDE AND PHYSICAL INJURIES, committed as
follows:
“That on or about the 30th day of January, 1963, at about 6:30
o’clock in the evening, in the Municipality of Veruela,
Province of Agusan, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused, armed with firearms
and bolos, conspiring together with John Doe and Peter Doe, with intent of
gain, and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously enter into the house
of Cong Tiong Hay Ham at the aforementioned place
and take, steal and carry away therefrom a cash
amount of P20,000.00, a bag worth P8.50 containing a wrist watch worth P45.00
and a cash amount of P50.00, all belonging to Cong Tiong
Hay Ham, to the damage and prejudice of the latter in the aggregate sum of
P20,103.50, and on the occasion and by reason of said robbery, the said
accused, confabulating together with John Doe and Peter Doe and mutually
helping one another, with intent to kill and with treachery and evident
premeditation, then and there wilfully, unlawfully
and feloniously attack, assault and stab with bolos Cong Tiong
Hay Ham, thereby inflicting upon the
latter mortal wounds which directly caused his death, and Julito
Dairo, inflicting upon the latter serious wounds
which would ordinarily produce death, thus performing all the acts of execution
which would produce the crime of homicide as a consequence but which,
nevertheless, did not produce it because the weapon used met obstructions in
the victim’s body and by reason of competent medical treatment rendered on him,
and struck Pacita Dairo and
Anselma Chamen with blunt
instruments, thereby inflicting physical injuries upon them.
“That the offense herein charged is attended by the
aggravating circumstances of nocturnity and a band.
“Contrary to
law.”
On May 8, 1964,
after a reinvestigation of the case, an Amended Information was filed,
containing more or less the same allegations as those in the original
Information, but adding as accused the names of Filemon
Suarez, Ludovico Suarez and Alias Cano, in lieu of John or Peter Doe.
A motion for reinvestigation was filed in behalf of accused Brigido de la Cruz and Rodrigo Maca
on August 20, 1964, to
which the prosecution filed an opposition.
The motion was denied by the court in an Order dated December 3, 1964.
Trial proceeded with respect to accused Brigido
de la Cruz, Rodrigo Maca and Onofre
Covita, who had previously pleaded not guilty at the
arraignment. The other accused, Filemon Suarez, Ludovico Suarez
and Alias Cano, remained at large.
Nine (9) witnesses, namely, Florencio Piencenavez, Jr., Melquiades Salisi, Tomas Otero, Marcelino Belano, Jose Dadong, PC Cpl. Teodoro Magturtur, Anselma Chamen, PC Cpl. Dacman Pancilmawan and Judge Julito Dairo, testified for the
prosecution. After the prosecution had
rested its case, accused Brigido de la Cruz and
Rodrigo Maca filed, on October 4, 1965, a motion to dismiss the case against
them on the grounds of insufficiency of evidence and doubtful
identification. The motion was opposed
by the prosecution. In a resolution
dated January 5, 1966, the
trial court, then presided over by Judge Montano A. Ortiz, denied the motion to
dismiss. It was the court’s opinion that
the accused-movants had been unmistakably identified
as participants in the crime by some of the prosecution witnesses, especially
by Tomas Otero and Florencio Piencenaves,
Jr..
The three accused, Onofre Covita, Rodrigo Maca and Brigido de la Cruz, took the witness stand. Four (4) other persons, namely, Eusebio Montero, Silvestre Maca, Teresita Maca and Atty. Teodorico Labtic, testified for
the defense.
After trial, the court a quo, presided over by Judge
Simeon N. Ferrer, rendered the judgment referred to
at the beginning of this opinion, acquitting the accused Brigido
de la Cruz and convicting Rodrigo Maca and Onofre Covita.
In finding
defendant-appellant Onofre Covita
guilty of the crime charged, the trial court stated in its decision:
“The testimonial evidence presented by the prosecution coupled
with his own admissions established beyond the shadow of doubt accused Onofre Covita’s participation in
the crime charged. His close association
with his co-accused before, during and after the commission of the offense, his
admittedly direct participation in the performance of acts resulting in the
accomplishment of their evil purpose, his concealment of his share of its loot
(Session of Sept. 15, 1965, t.s.n. 116-122), his
failure or refusal to voluntarily surrender to the authorities (Ibid.) negate his belated pretension
he was deceived and/or forced into committing the robbery-killing. This Court cannot simply bring itself to
believe Covita’s story he permitted three men (his
co-accused Felimon Suarez, Ludovico
Suarez, and alias Cano) whom according to him, he hardly knew, and who were
armed with deadly weapons, to stay in his house one day and one night, and, on
the following day, accompanied them, ostensibly to buy land in a totally
strange place miles away from home, only to find himself involved in a
robbery-killing. On the contrary, this
evinces a community of purpose, and that each of the accused knew of the
criminal design of the others as can be sufficiently inferred from the
attendant circumstances, such as their arrival at Veruela
at the same time, their presence from the commencement up to the consummation
of the crime, and most important of all, the fact they acted in concert all
throughout its commission pursuant to the same evident objective. (People vs. Agrava,
et al., G. R. No. L-12406, June 30,
1961; People vs. Mandagay, et al., 46
Phil. 838). In a conspiracy, every act
of one of the conspirators in the furtherance of the common purpose or design
is in law the act of each of them (U.S.
vs. Ipil, 27 Phil. 530; U.S.
vs. Remigio, 37 Phil. 599).”
With respect to the defendant-appellant Rodrigo Maca, the trial court stated:
“Apart from the positive identification of the accused Maca by the prosecution eyewitnesses Piencenaves,
Otero, and Dairo during the trial, several
circumstances militate strongly against Maca’s
inherently weak defense of alibi:
“1) in his
affidavit, Exhibit E, he swore having reached his house at Penalisan
from Tacurong on January 18, 1963; his repudiation of
this and other statements contained in his affidavit during the trial is a defensive afterthought (Session
of May 24, 1966; t.s.n., pp. 78-82);
“2) at one point during the robbery, Maca’s white handkerchief mask slid down his face enabling
the eyewitness Florencio Piencenaves
to recognize him under the bright Petromax lamp
(Session of March 24, 1965; t.s.n., pp. 12-18);
“3) by his own
admission, shortly after the commission of the offense charged, he was with the
accused Onofre Covita, Felimon Suarez, Ludovico Suarez,
and alias Cano, among others; on February 1, 1963, rural policeman Jose Dadong saw him with the aforesaid accused, among others, on
the Masayan trail; on February 2, 1963, Jose Dadong saw him again with the same group at Dadong’s farm digging for camotes
(Session of July 29, 1965; t.s.n. pp. 90-94); earlier
on the same day, the very identical group was surprised by barrio lieutenant Marcelino Belano at Triumph
Timber Corporation’s logging camp at Kaigangan,
Loreto, Agusan; Rodrigo Maca
lied to Belano when he told the latter his group had
been to Masayan to plant rice (Session of July 29,
1965; t.s.n., pp. 54-56);
“4) despite his
knowledge of the commission of the offense charged and the perpetrators
thereof, he made no effort to report the incident to the authorities until he
was arrested; in fact, the aid and comfort he gave the perpetrators contributed
to the escape of three of them who, to this date, are still at large;
“5) the unrebutted testimony, on direct and cross-examination of
Corporal Teodoro Magturtur
of the 97th PC Co., Punawan, Agusan,
is to the effect that Rodrigo Maca confessed to him
and his Commanding Officer, Maca was one of the five
persons who had robbed the residence of Hay Ham on January 30, 1963, at 6:30 P.M. (Session
of September 15, 1963; t.s.n., pp. 119-120; 124-131).
“The above-specified circumstances coupled with his positive
identification erase any doubt in the mind of this Court with respect to the
guilt of Rodrigo Maca.
“The vicarious testimony of his brother-in-law, Onofre Covita (a confessed
participant) seeking to bolster Rodrigo’s defense of alibi deserves little
credence; much less the understandably biased testimony of his father,
Silvestre, and his sister, Teresita. Neither can the self-serving letters
(Exhibits 4, 4-A-Maca) nor the hearsay
reply letter (Exhibit 6-Maca) be of any decisive assistance.”
The trial court found that the commission of the crime was attended
by the aggravating circumstances of band and treachery, without any mitigating
circumstance to offset them. Hence, the
imposition of the supreme penalty on defendants-appellants.
Appellant Covita testified that on
January 29, 1963, three persons, namely, Filemon
Suarez, Ludovico Suarez and someone called Cano, all
armed with bolos, arrived at his house at Penalisan,
Johnson, Loreto, Agusan; that they brought with them
a handbag and a sack purportedly containing clothes and other personal effects;
that the three men requested him to accompany them to Lugom,
Agusan, where they allegedly wanted to see a parcel
of land which they were contemplating to buy; that in the morning of January
30, 1963, he, armed with a hunting knife, together with the men, left his
house; that when they reached Veruela at about 6:30
o’clock in the evening, he made inquiries from his companions about the land
which they were intending to buy; that the three men pulled out their firearms
from the handbag — Filemon Suarez, a rifle; Ludovico Suarez, a shotgun; and Cano, a .38 Caliber
revolver — and Cano then told him that their intention was not to buy land but
to rob a Chinaman; that he (appellant) told them that had they informed him
earlier of their plan, he would not have gone with them; that Cano pointed his
revolver at him, asking him whether he preferred to go with them or to be
killed by Cano; that because of this, he became afraid and had no alternative
but to go with the men; that Filemon Suarez ordered
him and the other two men to go up Hay Ham’s house and rob the place; that when
they were already in the second floor of the house, Filemon
Suarez ordered the persons inside “‘Wag kayong kikilos” and made them lie on the floor; that he
(appellant) was ordered by Filemon and Ludovico to tie the hands of the persons whom they found in
the house but he refused thrice, and the third time he refused, a shot was
fired at him by Ludovico Suarez, as a result of which
he was hit on the right foot; that he went to the balcony of the house and
there tried to stop his wound from bleeding; that while he was in the balcony,
he saw Ludovico Suarez standing guard outside the
house, Filemon Suarez entering Hay Ham’s room, and
Cano tying the inmates’ hands; that Filemon demanded
money from Hay Ham and when the latter refused, Ludovico
entered and hacked Hay Ham with a bolo; that Ludovico
then came out of the room, aimed his gun at Judge Dairo,
and pressed the trigger, but it did not fire, so he (Ludovico)
unsheathed his bolo and hacked the judge; that he (appellant) went down from
the house in order to escape, but because of the pain in his right foot, he had
to rest for a while, and it was while he was resting that his three companions,
who were then fleeing from the Chinaman’s house, overtook him; that he pleaded
with them to bring him to his house at Penalisan;
that his companions carried him, and when they had gone a little farther away
from Veruela, they found a man who assisted them in
carrying him on a hammock; that he sent Ludovico
Suarez and Cano to his (appellant’s) house at Penalisan
to notify his family of his condition; that as a result, his wife, Teresita Maca, his father-in-law,
Silvestre Maca, and his brother-in-law, Rodrigo Maca (the other appellant in this case), came to him in the mountain where he was lying
wounded; that the said relatives, together with Filemon
Suarez, Ludovico Suarez and Cano, helped one another
in carrying him on the hammock to Penalisan, which
they reached on February 5, 1963; that he was taken to a ricefield,
where they hid him; that on February 6, 1963, he became aware of the fact that
a PC patrol was at Penalisan looking for the
robbers; and that he stayed in the ricefield until
February 9, 1963, when PC soldiers arrived.
Appellant Onofre Covita
thus admits his presence at the scene of the crime at the time of its
commission, but denies having acted in conspiracy with the other accused
because he was misled by Filemon Suarez, Ludovico Suarez and Cano into accompanying them to Lugom to see a parcel of land which the three wanted to
buy, but when they reached Veruela, he was forced by
them through threats to participate in the robbery. He contends that the fact that he was shot by
one of the men proves that he was present as an unwilling member of the group,
and that, if at all, his participation merely consisted in pointing a gun at
some of the inmates of the house, which is not punishable by death.
The flaw in appellant Covita’s theory
is that it leaves many vital questions unanswered. Why, for instance, would he accompany the
three persons to Lugom when according to him he
himself did not know where that place was?
His wife, Teresita, testified that her
husband told her that the first to enter Hay Ham’s house were Filemon and Ludovico Suarez, the
next, Cano, and the last, appellant Covita. Being the last to enter the house, Covita could have escaped had he wanted to, as some of the
persons who were then in the house — Laurentino
Otero, Crispin Romano and Leonilo Novo — were able to
do, considering, especially, that he was, by his own admission, armed with a
hunting knife. Appellant Covita would make capital of the fact that he was wounded
by one of his companions because he refused to participate in the commission of
the robbery. This was, however, belied
by Tomas Otero who testified that Covita was wounded
when the bullet from the riot gun fired by one of the culprits towards the
floor ricocheted. Again, if appellant Covita was an unwilling member, why did he hide from the
authorities in a ricefield at Penalisan
until February 9, 1963? Upon the other hand, the evidence for
appellant Covita shows that after the robbery, his
companions attended to him with solicitude, carrying him to the mountain,
notifying his family of his wounded condition, helping his relatives carry him
to Penalisan and hiding him in a ricefield. Besides, appellant Covita
was likewise armed which would not have been the case if he joined the group
under duress. And there is the money in
the amount of P85.20 in a tin can hidden under the ground beneath a tree at Penalisan some fifteen (15) meters away from the house of
appellant Covita’s father-in-law. It was dug up by the PC soldiers upon the
information given to them by appellant Covita’s wife
that the money was hidden there by her husband.
No explanation at all was given on the witness stand by Covita why he had hidden this money although it appears
clear from the evidence that the prosecution had always considered the money as
part of Covita’s share in the loot. For the
foregoing reasons and in view of the substantial evidence for the prosecution,
We find that Onofre Covita
was indeed one of the participants in the offense charged.
The case of defendant-appellant Rodrigo Maca
is in a different situation.
To begin with, in his affidavit, appellant Maca
stated that he arrived in his house at Penalisan,
Johnson, Loreto, Agusan, from Tacurong,
Cotabato, on January
18, 1963; but on the witness stand he testified that the date of
his arrival was January 30, 1963. In his brief, appellant Maca
admits that there is a discrepancy between his affidavit and his testimony in
court regarding the date of his arrival at Penalisan,
but he claims that there must have been an error in the drafting of the
affidavit, the contents of which were not read to him before he affixed his
signature. He claims that the true date
of his departure from Tacurong, Cotabato,
was January 25, 1963; that the true date of his arrival at Penalisan
was January 30, 1963; and that in his affidavit, he declared that he left Tacurong, Cotabato on January 18,
1963 and arrived at Penalisan on January 18, 1963,
which could not be the case unless he travelled by
airplane, which is not shown by the record.
We have examined appellant Maca’s
affidavit and We cannot but conclude that the dates appearing therein are the
true dates of his departure from Cotabato and arrival
at Penalisan.
It is not true, as now claimed by this appellant, that he stated that he
left on January 18, 1963.
“Q. 10 – When did you leave Tina, Tacurong, Cotabato for Agusan Province?
A. – January
15, 1963, sir.”
To the question of when he arrived at Penalisan, appellant Maca
answered in his affidavit that the date of his arrival was January 18, 1963.
He also stated in said affidavit that his companion on the trip was one Nicolas Espulgar;
and when asked where Espulgar was at the time the
affidavit was being executed (on February 23, 1963), appellant Maca
replied that Espulgar went back to Cotabato on January 25, 1963. If,
as now claimed by appellant Maca, he arrived at Penalisan only on January 30, 1963, he would not be in a position to state that
his travel companion, Nicolas Espulgar, went back to Cotabato on January 25, 1963.
We are convinced that when the robbery took place on January 30, 1963 in Veruela, Agusan, appellant Maca had long returned to Penalisan
from Cotabato.
The next, indeed the crucial, question to be resolved is whether
appellant Maca was sufficiently identified as one of
the perpetrators of the crime. The court
a quo, it will be noted, anchored its affirmative conclusion mainly on
the circumstance that appellant Maca’s white
handkerchief mask slid down his face, enabling Piencenaves
to recognize him.
Three of the eyewitnesses, namely, Florencio
Piencenaves, Jr., Tomas Otero and Judge Julito Dairo, identified
appellant Maca as one of the criminal
participants. Each of them narrated in
court the role allegedly performed by appellant Maca. Our duty is to ascertain whether there was a
correct and convincing identification of this appellant.
Piencenaves declared that appellant Maca was one of the five persons who participated in the
robbery; that he had known Brigido de la Cruz, who
acted as leader of the group, for about five (5) years before the incident, for
De la Cruz used to buy from Hay Ham’s store and once even had an altercation
with Hay Ham; that he did not know the other persons who were with De la Cruz,
but he could recognize them if he saw them again; that it was Onofre Covita and Rodrigo Maca who ordered Leonilo Novo,
Tomas Otero, Laurentino Otero and Crispin Romano, who
were then in Hay Ham’s store, to go inside the house; that Maca
had a revolver and a bolo; that Covita and Maca ordered him and his companions in the house to lie
flat on the floor; that Covita and Maca tied Hay Ham’s hands; that Maca
fired three (3) times at Judge Dairo while the latter
was lying on the left side of his body, but the gun did not fire; and that he
was able to see and remember the faces of the intruders because there was a
bright Petromax light inside the house.
On cross-examination,
witness Piencenaves declared, in relation to the
identification of appellant Maca:
“Q.
– You seem to know very well Onofre Covita and Rodrigo Maca before this incident.
Were you already fully acquainted with these two persons?
A. – No, sir; but it was during the fiesta when I
saw Onofre Covita. I recognized him to be of that person but I
did not know his name first. I
recognized him also because he was bald headed person, with beards on his
face. With respect to Rodrigo Maca, I did not know him but I recognized him to be the
same person because his physical feature resembles to the person I saw that
afternoon. Besides, he is a tall-looking
person.” (t.s.n., p. 15, Session of March 24, 1965).
“Q.
– And because you were not afraid to
face them and you followed their order, you must have observed very well. Is it not?
A. – Yes,
sir; I saw them.
Q.
– For how long did you see them?
A. –
When he ordered me to lie flat on the floor, I looked at them until I
found myself lying flat on the floor.” (t.s.n.,
p. 16, Ibid.)
“Q.
– You said that there were also two
persons aside from Brigido de la Cruz who came in
first. Because you were not afraid and you were looking at them as you
were lying down, you also noticed the clothing of the two persons. What was the clothing worn by the companions
of Brigido de la Cruz?
A. –
Rodrigo Maca was wearing a black jacket and
was also wearing a mask (white handkerchief).
At that time, his mask was removed down, so that his face was recognizable.” (t.s.n.,
p. 18, Ibid.)
“Q. – You said
a while ago that before the incident on January 30, 1963, you did not know the accused Rodrigo Maca. Is that
correct?
A.
– Yes, sir.
Q.
– You did not know Rodrigo Maca
because you did not see him before January
30, 1963?
A. – Never.
Q.
– You did not hear the name of Rodrigo Maca? Is that
correct?
A. – Yes, sir.
Q.
– Now, who told you that the person you
identified in this Court is Rodrigo Maca?
A. – The PC told me.” (t.s.n.,
pp. 25-26, Ibid.)
Tomas Otero testified that in the early evening of January 30,
1963, while he was in Hay Ham’s store together with Crispin Romano, Leonilo Novo and Laurentino
Otero, three persons arrived, shortly followed by two others; and that the
first three who arrived were Brigido de la Cruz, Onofre Covita and Rodrigo Maca, all three of whom he identified in court; that the
other two persons were not in court; that he had been acquainted with Brigido de la Cruz for five years since 1958 up to the time
of the incident, because he used to see him in the poblacion
purchasing supplies from Hay Ham’s store, and
there was a time when he (witness) and his mother went to harvest in De la
Cruz’ farm, and they had to stay in the latter’s house for almost one week;
that De la Cruz immediately told his above-named companions and Judge Dairo, Hay Ham and Anselma Chamen, not to move; that De la Cruz pulled Hay Ham, put
his hand around the latter’s neck, slapped him with a gun and pushed him toward
a box where Hay Ham slumped; that Covita and Maca were each armed with a bolo and a revolver; that the
other two unidentified persons were each armed with a revolver; that De la Cruz
then fired an alarm shot with a riot gun, hitting Covita
in the left leg; that Covita and Maca
ordered the persons to seek cover; that Maca tied his
hands, while Covita tied Piencenaves‘
hands; that De la Cruz took money from a drawer and put it inside a sack, after
which he dragged Hay Ham toward a room asking him where he had placed his other
money; that De la Cruz was assisted by another man who was also wounded in the
left leg and armed with a revolver and a bolo, in pushing Hay Ham; that he
heard a commotion inside the room, after which De la Cruz came out taking with
him a sack; that De la Cruz and
the other wounded man went downstairs; that Maca
aimed his revolver at Judge Dairo, who was hogtied
and lying on the side of his body, and pressed the trigger three times, but the
gun did not fire; that the man with the wounded leg approached Judge Dairo, pushed Maca inside and
began hacking the Judge with a bolo; and that the robbers then went away, and
before leaving, fired two shots.
On the question of
identification of appellants, Maca and Covita, Tomas Otero declared on direct examination:
“Q.
– What did you observe in the persons of
Rodrigo Maca and Onofre Covita from the time they entered the store of Hay Ham Lim
on January 30, 1963?
A. – All
these persons were not clearly seen by me because they were having masks
(handkerchiefs) on their faces.” (t.s.n., p.
77, Session of March 25, 1965.)
During the cross-examination, witness Tomas Otero declared,
however:
“Q.
– What kind of handkerchiefs did they
use, all plain white?
A. – Colored
and dotted with red.
Q.
– All their faces were covered of these
two that you saw?
A. – Up to their nostrils covering their mouth.
Q.
– And their faces were covered that you
could not recognize who they were?
A. – I was able to recognize them because their
masks were brought down when they were moving.
Q. –
What do you mean?
A.
– When they reached inside and went
upstairs their masks were removed down while they were hog-tying us.” (t.s.n., p. 11, Session of July 28, 1965.)
“Q. – You stated
that you were not able to recognize the two persons wearing masks, and you were
already inside the store, is that correct?
A. –
Yes, sir.” (t.s.n., p. 21, Ibid.)
Judge Julito Dairo
corroborated on material points Piencenaves‘ and
Tomas Otero’s testimonies, and he further testified that he was seated beside a
table in the store and opening a letter when five persons, namely, Brigido de la Cruz, Rodrigo Maca,
Onofre Covita and two
others who were not in court arrived; that the store was brilliantly lighted
with a 500-candle Petromax lamp; and that immediately
after the January 30, 1963 incident, he went to Davao
City for medical treatment, returning to Veruela, Agusan, on or about March 22, 1963.
On the question of
appellants’ identities, Judge Dairo declared on
cross-examination:
“Q.
– Atty. Dairo,
you seem to know very well these accused, namely, Brigido
de la Cruz, Rodrigo Maca and Onofre
Covita, could you tell the Court if you have any
association with them prior to the incident?
A. – Before
the incident, I saw Brigido de la Cruz several times
in the poblacion
of Veruela and at times in the store purchasing
supplies while this Rodrigo Maca and Onofre Covita, I saw them only
for the first time in the evening of January
30, 1963.
Q.
– How did you happen to immediately
identify the persons who entered in the evening of January 30, 1963 that they were Rodrigo Maca and Onofre Covita if you only knew them at that time?
A.
– While I was there lying down
hogtied, I was staring at the face of Rodrigo Maca
and I observed his face, the nature of his cars and I was staring at his
expression. While this Onofre Covita, I noticed that he
has a beard on his chin and he was bald-headed.
Q.
– Is it not a fact that you only came
to know these two merely at the time they were already accused?
A. –
When I came back from Davao
I went immediately to the headquarters and while I was sitting in the Office
of the Commanding Officer inside, a person came to the amphitheater acting as
a janitor and I recognized him immediately to be one of those who robbed us.
Q.
– When was that?
A.
– That was sometime in March, and I
easily recognized and identified him to be one of those who came up in the
store in the evening of January 30, 1963.” (t.s.n., pp. 180-181, Session of September 16, 1965.)
Appellant Maca places much stress on
the variances or inconsistencies in the witnesses’ description of the
handkerchiefs used as masks by the culprits.
Thus, according to Piencenaves, the
handkerchief was white,[1]
while in the view of Tomas Otero, it was colored and dotted red. These differences on impressions on the color
of the handkerchiefs do not detract from the credibility of the afore-stated
witnesses. They refer to minor
differences in detail which are not of such magnitude as to impair the
credibility of their testimony. This
Court has observed that inconsistencies in the testimonies of witnesses in
minor details reinforce rather than weaken their credibility. It is usual for witnesses to a stirring event
to see some details of the startling occurrence differently.[2]
It is clear from the evidence that the store of Hay Ham Lim where
the incident occurred was brightly lighted by a 500-candle Petromax
lamp. Since these eyewitnesses were near
appellant Maca, it is not improbable that they
recognized his face, when the handkerchief mask which he was wearing momentarily
slipped down his face, at the time appellant was stooping low when he was
tying up Otero. It must be noted that Piencenaves recognized Maca, not
only on the basis of Maca’s physiognomy, but also
because of his height and other physical features, while Judge Dairo recognized him because of the shape of his ears and
the other contours of appellant’s countenance.
Judge Dairo had every reason to remember
appellant Maca because he stared intently at the
appellant after he tried to shoot him thrice.
In resumé, therefore, there are facts
and circumstances which establish Maca’s
participation in the commission of the crime and militate strongly against his
defense of alibi. Thus:
1. Tomas Otero testified that Rodrigo Maca
tied him up while Onofre Covita
tied Florencio Piencenaves;
that Maca pointed his revolver at Judge Dairo, fired at the latter, but the gun failed to fire;
that only two of the culprits were masked but he was able to “recognize
them because their masks were brought down when they were * * * hogtying
us.”[3]
2. According to Florencio Piencenaves, Rodrigo Maca was
wearing a black jacket and a mask (white handkerchief) and at one point during
the robbery, Maca’s handkerchief mask slid down his face
enabling him to recognize Maca under the bright Petromax lamp.[4]
3. By Maca’s own admission, shortly after the commission of the
offense charged, he was with Onofre Covita, Felimon Suarez, Ludovico Suarez and alias Cano, among others; on February
1, 1963, rural policeman Jose Dadong saw him with the
aforesaid accused, among others, on the Masayan
trail; on February 2, 1963, Jose Dadong saw him again
with the same group at Dadong’s farm digging for camotes;[5]
earlier on the same day, the same group was surprised by Barrio Lieutenant Marcelino Belano at Triumph
Timber Corporation’s logging camp at Kaigangan,
Loreto, Agusan; Rodrigo Maca
lied to Belano when he told the latter that his group
had been to Masayan to plant rice.[6]
4. Municipal Judge Julito Dairo positively identified Rodrigo Maca
and Onofre Covita as the
two armed men who followed Brigido de la Cruz into
the store which was brillantly lighted by a “500
candle Petromax“; Rodrigo Maca
and Onofre Covita
“herded Tomas Otero, Crispin Roman, Laurentino
Roman and Leonilo Novo from the porch and forced
these four people * * * inside the store.”[7]
Maca and Covita commanded
Otero and Piencenaves to lie down;[8]
Maca who was guarding Judge Dairo
fired his revolver but he heard only three clicks as the gun didn’t fire; he
recognized Maca because he “was staring at the
face of Rodrigo Maca and I observed his face, the nature of his ears and I was staring at
his expression.”[9]
5. There is on record the unrebutted
testimony on direct and cross examination of Cpl. Teodoro
Magturtur of the 97th PC Company, Bunawan,
Agusan, to the effect that Rodrigo Maca confessed to him and his Commanding Officer that Maca was one of those who robbed the residence of Hay Ham
on January 30, 1963 at 6:30 p.m.[10]
In the face of the foregoing considerations, the lower court
correctly refused to give credence to the testimonies of Onofre
Covita, appellant Maca’s
brother-in-law, Silvestre Maca, his father, and Teresita Maca, his sister, to the
effect that he was not among those who perpetrated the offense, for being
understandably biased.
The crime committed is robbery with homicide, frustrated homicide
and physical injuries, punishable by reclusion perpetua
to death. Since the crime was committed
by a band, as five of the men were armed with guns and bolos, Article 295 of
the Revised Penal Code should be applied.
Under the afore-stated penal provision, if the robbery with homicide is
committed by a band, the offender shall be punished by the maximum
period of the proper penalty.
There being no mitigating circumstance, the trial court correctly
imposed the maximum penalty of death.
WHEREFORE, the judgment appealed from is AFFIRMED, with
the modification that the amount of indemnity for the death of the victim is
hereby increased from P6,000.00 to P12,000.00.[11]
SO ORDERED.
Teehankee, Makasiar,
Antonio, Aquino, Concepcion,
Jr., Santos, Fernandez, Guerrero, De Castro, and
Melencio-Herrera, JJ., concur.
Fernando, C.J., voted for the
imposition of the penalty of reclusion perpetua in
accordance with the view expressed by Mr. Justices Barredo
and Abad Santos.
Barredo, J., concurs in the finding of guilt, but consistently with any opinion in Peo. Vs. Borja, G.R. No. L-22947,
I vote for life imprisonment.
Abad Santos, J., concurs in the finding of guilt but because of their
long detention, I vote for life imprisonment.
[1]
T.s.n., p. 18, Session of March 24, 1965.
[2]
People v. De Gracia, L-21419, Sept. 29, 1966, 18 SCRA 197, 204.
[3]
T.s.n., p. 11, Session of July 28, 1965.
[4]
T.s.n., pp. 12-18, Session of March
24, 1965.
[5]
Ibid., pp. 90-94, Session of July 29, 1965.
[6]
Ibid., pp. 54-56.
[7]
Ibid., pp. 169-171, Session of Sept. 16, 1965.
[8]
Ibid., p. 173.
[9]
Ibid., p. 180.
[10]
Ibid., pp. 119-120; 124, 131.
[11]
People v. Pantoja, L-18793, Oct. 11, 1968, 25 SCRA 468.