G.R. No. 12090. April 30, 1960
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FEDERICO BAUTISTA, ET AL., DEFENDANTS. ERNESTO VELASCO, DEFENDANT AND APPELLANT.
BARRERA, J.:
the Court of First Instance of Negros Occidental, Judge Jose Teodoro,
Sr., presiding, in which he was found guilty of robbery with homicide
and sentenced to life imprisonment and to indemnify the heirs of the
deceased Marcelino Buenafe in the sum of P6,000.
Originally appellant was charged with seven others, one of whom,
Ildefonso Larit, was upon motion of the Provincial Fiscal, with the
consent of the court, discharged and utilized as a state witness. Three
others were, upon motion of the defense counsel, with the consent of
the court, likewise discharged and used as witnesses for their
co-accused. Of the four who stood trial, one (Federico Bautista) was
acquitted; and two (Diosdado Velasco and Nicanor Dizon) were found
guilty of robbery only and given indeterminate sentences and hence did
not appeal.
The records disclose that at about 8 o’clock in the evening, on
April 4, 1952, Diosdado Velasco went to the house of Ildefonso Larit,
at Hacienda Maasin, Bacolod City, looking for Francisco de los Reyes
(one of those discharged to be a defense witness), who happened to be
at Larit’s house at the time. Upon seeing De los Reyes, Diosdado asked
the former to accompany him to the house of Marcelino Buenafe at
Hacienda Galubcub to get some paiay. For the purpose, he requested him
(De los Reyes) to bring his carabao, which he did. He also requested
Larit to go with him and bring the cart belonging to the hacienda.
While De los Reyes was getting his carabao, Larit and Diosdado went
ahead. On the way to Hacienda Calubcub, they met the appellant Ernesto
Velasco (elder brother of Diosdado), Federico Bautista, Nicanor Dizon,
and Lacierto Lobaton (another discharged to be a defense witness). Upon
seeing Diosdado, appellant inquired whether he was able to secure a
cart, to which, Diosdado replied in the affirmative. Appellant ordered
the group to proceed to their destination. Shortly thereafter, De los
Reyes, with the cart, caught up with the group. With him was Larit’s
brother-in-law Teopisto Postrado (the third discharged to be a defense
witness). Upon reaching the house of Marcelino Buenafe, appellant
called him and asked whether he (Buenafe) had seen a stray carabao (a
ruse apparently employed to find out if Buenafe was there). When the
old man responded and answered in the negative, appellant told him to
come down. When he did, appellant, together with Bautista, Diosdado,
Lobaton, and Dizon immediately surrounded him. Upon appellant’s order,
Buenafe was hogtied by Diosdado and Lobaton and tied to the post of his
house. Appellant then directed Diosdado to fetch the cart which was
left not far from Buenafe’s house with Postrado and De los Reyes.
Except these two, who were left with the cart, the rest of the group
went upstairs and filled their sacks (15 in all) with Buenafe’s palay.
Larit, Lobaton, and Dizon held the sacks, while Diosdado and Bautista
poured the palay into them. Appellant proceeded to ransack the house.
Having filled the sacks with palay and loaded them into the cart,
appellant ordered Buenafe’s carabao to be taken and for De los Reyes
and Postrado to go ahead with the cart. Bautista, Dizon, and Lobaton
followed them. After a while, two shots were heard to have been fired
and when Bautista looked back, he saw Diosdado and Larit coming at a
distance of about 100 arms length. Farther, at a distance of about 150
arms length, he saw appellant with the rifle Exh. H coming from the
direction of the victim’s house.
Upon reaching Cabora River, where the group separated, appellant
ordered De los Reyes and Postrado to leave 6 sacks of palay as his,
Bautista’s, and Lobaton’s share; and to load 1 sack on the victim’s
carabao which they had taken, for Dizon. He then directed the remaining
8 sacks to be left in the cart as Diosdado’s, De los Reyes’,
Postrado’s, and Larit’s share.
Notified by the overseer of Hacienda Calubcub, who in turn was
informed by a farmer who came upon the scene of the crime on the
following morning, April 5, 1952, Detectives Hofileña, Omogod, and
Sumagaysay, and Assistant City Health Officer Ledesma visited the scene
of the crime. There, they found the victim’s lifeless body, his hands
still hogtied with dried banana strips and tied to the post of his
house. On the floor of the victim’s house as well as on the trail
leading thereto, they discovered grains of palay scattered about. They
also noticed that his carabao was missing. Detectives Sumagaysay and
Hofilena were able to retrieve 2 empty cartridges of a SO caliber rifle
on the ground near the victim’s cadaver. A post mortem examination made
by said Assistant City Health Officer (See Exh. “J”), disclosed that a
gunshot wound penetrating the victim’s head through and through caused
his instantaneous death.
On April 8, 1952, Larit and De los Reyes, apparently remorseful over
the brutal and unexpected slaying of the victim, surrendered to the
police authorities at Bacolod City Hall. On April 9, 1952, Hortencia
Paneho, wife of Diosdado, led the police to the river where several
sacks of palay belonging to the victim, partly submerged therein, were
discovered and retrieved. On April 10, 1952, appellant, together with
Diosdado and Bautista, surrendered to Policeman Abdon at barrio Cabora.
Appellant also surrendered the 30 caliber rifle (Exh. “H”), the
ownership of which, he admitted, as well as 7 rounds of ammunition
(Exhs. “1” to “1-6”). They were then individually investigated by
Detective Sumagaysay, who reduced their statements into writing in the
form of affidavits (Exh. “A-1” to “G-1”), and which they later
acknowledged voluntarily and freely in the presence of Bacolod
Municipal Judge Ferrer.
The commission of the crime of robbery is without dispute. Even
herein appellant in page 11 of his brief admitted: “True,
unfortunately, Ernesto Velasco (herein appellant) has committed
robbery, but surely it was not Robbery with Homicide because he tried
his best to prevent Federico Bautista from killing his own
grandfather.” The only question thus raised in this appeal is who
killed Marcelino Buenafe and under what circumstances.
There are two versions supplied by the defendants themselves. The
defendants who were discharged as well as appellant and the two other
accused who were sentenced to indeterminate penalties testified that it
was Federico Bautista, the one acquitted by the lower court, who shot
the deceased Buenafe. Upon the other hand, Bautista declared that when
he and Dizon, Lobaton, De los Reyes and Postrado were some distance
away from the house of Buenafe, after they were ordered by the
appellant to go ahead, two shots were heard and as he looked back,
Bautista saw Diosdado Velasco and Ildefonso Larit coming at a distance
of about 100 arms length and behind them and farther still was the
accused-appellant Ernesto Velasco with the rifle Exh. H. For the
reasons stated in the decision, the lower court gave credence to the
testimony of Bautista and found that herein appellant Velasco, being
the last person seen leaving the place where the shots were fired,
carrying the rifle in his hand, he being the only one thus armed on the
occasion in question, must necessarily have been the one who fired the
shot that killed the deceased victim Buenafe.[1] It is this finding that appellant has assigned as error committed by the court a quo.
We have reviewed the entire record and found no ground nor reason to
depart from the finding of the trial judge, not only because he has had
the advantage and opportunity of observing and evaluating the demeanor
and manner of testifying of the witnesses but also because it is amply
supported by the evidence on record.
As already adverted to, it is the appellant who had the rifle Exh.
H. He was the one who surrendered it. When charged in a separate
information with illegal possession of firearms, the rifle being
unlicensed, he confessed ownership of it and pleaded guilty to the
charge and was sentenced to five years imprisonment.
It appears clearly from the evidence, including the testimony of
those witnesses who said it was Bautista who killed the deceased
victim, that all throughout the progress of the incident, from the
preparation to the execution of the robbery and the distribution of the
spoils, the leader of the group was the herein appellant. Larit,
testifying for the prosecution, declared that when the group had
assembled after the cart was procured, it was appellant who gaved the order to proceed to their destination;
that upon arrival at the victim’s place, it was appellant who told
Diosdado to stop the cart; that it was appellant who called the victim
at his house and inquired from him whether he had seen a stray carabao;
that it was appellant who asked the victim to come down; that it was
appellant who directed Diosdado and Lobaton to hogtie the victim and
tie him to the post of his house; that it was appellant who urged
Diosdado to get the cart and for the rest of the group to go upstairs
and take the victim’s palay; that it was appellant who gave the order
for De los Reyes and Postrado to go ahead of the group with the loaded
cart; that it was appellant who told them to divide the palay among
themselves; and that as a whole, it was appellant who gave all the
orders on the night in question. In fact, as already stated, it was
only appellant who was armed with the rifle (Exh. “H”).
The record confirms the observation of the trial court, in rejecting
appellant’s version, that the testimonies of appellant and the other
co-accused “are based on the same pattern, one after the other, using
the same expression”, and that this uniformity in their testimony
(People vs. Pascual, G. E. No. L-4801, promulgated June 30,
1953) is proof that there was a common understanding or agreement
before the trial of the case to impute the crime on Bautista. This
conclusion of the trial judge is further supported by the proven fact
that all seven of the participants are closely related to one another.
Herein appellant Ernesto Velasco is the elder brother of the other
accused Diosdado Velasco; Ildefonso Larit is the brother-in-law of
Francisco de los Reyes; Teopisto Postrado is the first cousin of Larit;
Dizon and Lobaton are first cousins of the Velascos. While on the other
hand Bautista, a much younger man than appellant Ernesto Velasco, was
formerly a mere laborer under the latter in the hacienda and came to
know the rest of the group only on the night in question.
It is true that in his affidavit (Exh. “B-1”), Bautista had admitted
having shot the deceased. But, on the witness stand, he repudiated the
same, and declared that most of the answers were given by the appellant
himself and were placed there because the investigator apparently did
not believe him (Bautista) and that he signed the affidavit out of fear
of appellant who even in jail threatened to kill him should he state
otherwise. It is significant that in spite of these allegations by
Bautista, the defense failed to ask the investigator, Detective
Sumagaysay to take the witness stand, for the purpose of either denying
or contradicting the same, with the result that, Bautista’s repudiation
of his admissions appearing in his said affidavit (Exh. “B-1”) must be
upheld, as the trial court correctly did. (See People vs. Gomez, et al., 101 Phil., 1056; 54 Off. Gaz. [5] 1368.)
Explaining his presence during the incident, Bautista testified that
he was forced to go with the group at gun point by appellant on the
night in question; that he was maltreated by appellant who poked him
with the rifle (Exh. “H”); that he was hogtied and then loaded on the
cart and brought to the deceased’s place at Hacienda Calubcub. This
testimony of Bautista was corroborated by that of his wife, Marina
Salde, who declared that on the night in question, at around 9 o’clock,
while they were already asleep, they were awakened by appellant, who
forced her husband, Bautista, at gun point to go with him to the
deceased’s house and hogtied and maltreated him; and that she was,
likewise, maltreated by appellant as a result, of which, she delivered
prematurely the following day.
After a careful and thorough appraisal of the evidence, we are
convinced that the appellant did in fact, as the trial court correctly
held, commit the crime of robbery with homicide, covered by Article
294, No. 1, of the Revised Penal Code which is punished with reclusion
perpetua to death. The commission of the offense was attended by the
aggravating circumstance of dwelling (which is offset by the mitigating
circumstance of voluntary surrender) and by the aggravating
circumstances of nocturnity, abuse of superior strength, disregard to
the age of the offended party, the victim being 60 years of age, and
treachery, as the victim was hogtied and tied to a post, thereby
insuring the commission of the crime without risk to the appellant. The
case, therefore, calls for the application of the maximum penalty
provided by law, namely, death. However, for failure to get the
necessary votes for the imposition of said penalty, the judgment of the
trial court is affirmed, with costs against the appellant. It is so
ordered.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia and Gutierrez David, JJ., concur.
[1] See People vs. Abrina, et al., 102 Phil., 695; 54 Off. Gaz., [17] 4958; also People vs. Peje, G. R. No. L-8245, promulgated July 19, 1956.