G.R. No. 13052. October 04, 1918
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. ALABOT (ALIAS) PAGUINAGUINA, DEFENDANT AND APPELLANT.
STREET, J.:
First Instance of the Province of Lanao, convicting the accused of the crime of
robbery with homicide, committed upon the person of Charles H. Mills, and
sentencing him to death.
The evidence establishes beyond doubt that sometime previous to September 14,
1915,—probably a day or two before this date—a party of about eight armed Moros
had gone to a certain place near a lafce in the Province of Lanao in order to
procure subsistence by begging or stealing. The defendants Alabot, Kao, and
Makarimpong, and the witnesses for the prosecution, Kalaku and Kuruao, were
members of the party, but the organizer and apparent chief of it was one named
Rumaub. When they had obtained a certain amount of palay they proceeded to
return. On their way home they passed the house of the Sultan Sarip, which
Rumaub, Alabot and Uru, another member of the party, entered. Upon leaving this
house they continued their way until they reached a cotta, where Rumaub told
them to rest.
Early in the morning of the next day, September 14,1915, while the party was
still lying in wait in the cotta, a shot was fired by Rumaub at an American
passing in the roadway a few meters away. This shot created confusion among some
members of the party. The witnesses Kalaku and Kuruao ran away. While they were
thus running Rumaub cried to them asking why they ran instead of shooting; and
either because of this cry or out of natural curiosity, they looked back and saw
that Alabot was slashing the American with his cris. The defendant Alabot upon
hearing the shot did not run away but instead jumped and ran to the place where
he was later seen slashing the American.
Sometime afterwards Rumaub and Alabot and the other members of the party
caught up with Kalalu and Kuruao, and they all proceeded to the house of Adam,
the father of the latter two. At Adam’s house Rumaub and Alabot each related the
part he had taken in the killing of the American. Alabot told Adam that he had
slashed the American who had been shot by Rumaub and had taken from the former
his revolver and money. At this time Alabot was in possession of these things;
but they were taken from him by Rumaub who gave the revolver to Adam, as dowry
for his daughter, and divided the money among the members of the party.
On or about the same day that the events narrated above took place the dead
body of an American by the name of Charles H. Mills was brought to the hospital
at Dansalan and was there examined by Dr. E. W. Ames, the provincial health
officer, assisted by the witness Nicasio Torres. The body exhibited two bullet
wounds in the abdomen, being the places of entrance and exit of the bullet, a
wound on the neck which almost severed the head from the body, and other wounds
in various parts of the body, caused by blows inflicted with a cutting
instrument.
Upon this state of the facts the first and most important question that
naturally suggests itself is, whether the American shot by Rumaub and cut by
Alabot was the deceased Charles H. Mills; and counsel for the defendant insists
that the proof fails to show that the American attacked by the party* of Moros
was Charles H. Mills. In this connection it may be noted that the deceased
Charles H. Mills had two wounds caused by a bullet shot which passed clear
through his abdomen; the American killed by Rumaub and Alabot had first been
shot by the former. Charles H. Mills had several wounds inflicted with a cutting
instrument; the American killed by Rumaub and Alabot was slashed by the latter
with his cris. Charles H. Mills died on or about September 14, 1915;
the killing of the American by Rumaub and Alabot also took place on or about
that date.
No question appears to have been made at the trial in the court below as to
the identity of the person slain; and counsel for the defendant as well as
counsel for the prosecution there assumed, in questioning the witnesses, that
the person slain by the party, of which the accused was a member, was none other
than Charles H. Mills. In view of all the circumstances, we have no doubt
whatever on this point.
The next contention of counsel for Alabot which we consider is that it is not
shown that the trial court had jurisdiction over the case, in that it does not
appear that the barrio of Tuluan where the killing occurred was in the province
of Lanao. In the present case the information charged that the crime was
committed in or near the barrio of Tuluan, Province of Lanao. It was proven at
the trial that the crime was in fact committed in said barrio but nobody
testified directly that this barria is in the province of Lanao. However, a
leading question which presupposes that said barrio is in the province of Lanao
was asked without objection on the part of the defense, which is: “Sabe Usted si
se ha matado a algiin americano en el sitio de Tuluan de la provincia
de Lanao? The answer was: “Si señor, yo se; Rumaub fue el que le mato.”
This is sufficient in our opinion to show that the barrio of Tuluan where the
crime was proven to have been committed is in the province of Lanao.
Furthermore, under section 275 of the Code of Civil Procedure courts have the
power to take judicial notice of the fact that a certain municipality or barrio
is within its jurisdiction. (Marzon vs. Udtujan, 20 Phil. Rep., 232.
See also U. S. vs. Chua Mo, 23 Phil. Rep., 233; U. S.
vs. Lim Soon, 34 Phil. Rep., 668.)
Another contention of the defense is that the court below erred in dismissing
the separate cases against Adam, Kalaku, and Kuruao so that they might testify
for the prosecution and against Alabot in this case. The record does not
affirmatively show that the three mentioned were charged with the same offense
as Alabot. Supposing that such was the case and admitting, without deciding that
Act No. 2709 is applicable where the several accused are prosecuted separately
upon different informations, it is evident that any error that the court may
have made in discharging the three to be used as witnesses in this case did not
affect the competency of their testimony. (U. S. vs. Abanzado, 37 PhiU
Rep., 658.)
The defendant’s last contention is that he was tried upon a complaint upon
which he was never arraigned and to which he never pleaded. On this point the
record shows that on October 20, 1916, he was charged in the justice of the
peace court of Dansalan in the Province of Lanao with the crime of brigandage.
Upon this charge he was arraigned, pleaded not guilty, and waived his right to a
preliminary investigation. The case was transmitted to the Court of First
Instance, where on March 13, 1917, a criminal prosecution was instituted against
him charging him with a crime denominated as “robbery with homicide,” but which
more properly was brigandage as described in the body of the information. On
March 14, 1917, an amended information was filed in which he was charged with
the complex crime of robbery with homicide. As presented, this amended
information was defective in that it did not charge that the criminal act was
committed with intent to gain (“con animo de lucro”). On March 15, 1917, the
accused was arraigned upon the latter information and put in a plea of not
guilty.
Upon these facts we are of the opinion, that, both informations having been
filed prior to the day of the arraignment and plea, the filing of the second
information, charging the offense of robbery with homicide, had the effect of
withdrawing tYie original which charged brigandage. It will therefore be
presumed in the absence of proof to the contrary that the second was the
information upon which the defendant was arraigned and to which he pleaded.
As already stated, the second information was defective in failing to charge
that the robbery was committed with intent to gain (con animo de lucro); and it
appears that after the defendant had pleaded and the first witness for the
prosecution had been called to the stand, the attorney for the defendant moved
that the case be dismissed on the ground that the information was for this
reason insufficient. Thereupon the trial judge remarked that he would permit the
prosecuting attorney to amend by inserting the words “con animo de lucro,” which
was accordingly done. To this action exception was taken by counsel for the
defense.
In order to determine whether the action of the trial court in permitting
this amendment of the information constitutes reversible error, we shall first
consider whether the accused could have been convicted of the crime of robbery
with homicide upon the infbrmation as it stood prior to the insertion therein of
the additional words “con animo de lucro.” Intent to gain is undoubtedly an
essential element in the crime of robbery, and this is obvious from the very
terms of the definition contained in article 502 of the Penal Code. It will be
observed, however, that this factor relates to the internal mental purpose of
the actor, and it is not an external circumstance by which one act of robbery
can be identified and distinguished from another. The intent is generally
discovered by inference from the external circumstances connected with the
commission of the offense; and in case of robbery these circumstances usually
reveal with infallible certainty the existence of such intent.
It is declared in subsection 3 of section 6 of General Orders No. 58, that
the acts or omission complained of as constituting the crime or public offense
should be stated in ordinary and concise language, without repetition, not
necessarily in the words of the statute, but in such form as to enable a person
of common understanding to know what is intended and the court to pronounce
judgment according to right.
This provision has been repeatedly applied by this court, and it has been
held in numerous cases that it is not necessary for the complaint or information
to follow the exact language of the statute. It is enough if it sufficiently
describes the crime defined by law. (U. S. vs. Go Changco, 23 Phil. Rep., 641;
U. S. vs. Gatmaitan, 4 Phil. Rep., 265; U. S. vs. Grant and
Kennedy, 18 Phil. Rep., 122; U. S. vs. Vecina, 4 Phil. Rep., 529; U. S.
vs. Sarabia, 4 Phil. Rep., 566.) Evidently the important end to be
accomplished is to describe the act with sufficient certainty that the accused
may be apprised of the nature of the charge against him. In section 7 of General
Orders No. 58, it is declared that “when an offense shall have been described
with sufficient certainty to identify the act, an erroneous allegation as to the
person injured shall be deemed immaterial.” Also in section 8 of General Orders
No. 58, where a form suitable for a complaint is given, it is indicated that the
things to be set forth are the acts or omissions charged as an offense; and
there is no indication that, where the external acts are described with
certainty, the complaint or information will be insufficient for failure to
state the intent with which those acts were done. The obvious conclusion is that
the principal purpose of an information is accomplished when the act which is
the subject of the prosecution is fully identified.
In the United States vs. San Pedro (4 Phil. Rep., 405) it was held
that where all the other facts constituting the crime of robbery have been
established, judgment of conviction will not be reversed on appeal on the ground
that the information failed specifically to allege that the crime was committed
con animo de lucro, or that the property taken was not the property of
the accused, it appearing that it was taken with force and violence from the
possession of the complaining witness. In the opinion in this case, it was
said:
“The information in this case alleges that the accused, with force and
violence, took a pistol from the possession of the complaining witness. Unless
the contrary appears, the animo de lucro is presumed, where all the
other facts which would constitute the crime of robbery have been established,
and it is also presumed ‘that things which a person possesses are owned by him,
unless the contrary appears.'”
In support of this proposition reference was made to a decision of the
supreme court of Spain wherein the following language was used:[1]
“While it is true that the intent of gain constitutes one of the essential
and characteristic elements of the crime of robbery and that of theft, it is no
less true that the possession of things belonging to another against the will of
the owner, whether force or violence be used, implies, as a general rule, said
intent of gain, as being the natural and proper motive for the perpetration of
the act. For this reason, it is necessary to overcome in each case the force of
this legal presumption, when it is alleged, with facts showing that there was no
such intent.”
In the case now before us the information, as amended, is in the following
words:
“The undersigned, acting as fiscal for the Province of Lanao, accuses Alabut
(a) Paguinaguina, a Moro, of the crime of robbery with homicide
committed as follows:
“That, on or about the 14th day of September, 1915, in or near the barrio of
Tuluan, in the Province of Lanao, Department of Mindanao and Sulu, the said
accused Alabut (a) Paguinaguina, forming a band with Moros Adam,
Rumaub, Uru, Kalapi, Kalaku, Kuruao, Kao, and Makarimpong, willfully,
unlawfully, and criminally, did, treacherously, with evident premeditation, in
an uninhabited place, in a band, and armed with guns and krises,
obtain, by means of violence and (with intent of gain), a revolver with its
munitions, a watch worth P3, and P36 in cash belonging to one Charles H. Mills
whom the said band killed by shooting, and on whom several wounds were inflicted
with his kris by the accused Alabot with a view to securing for himself
the articles aforementioned, * * *.”
We are of the opinion that, following the decision in United States
vs. San Pedro (supra), this information charges every
ingredient of the offense of robbery which is essential to be stated, even
without reference to the words “y con animo de lucro.” From the language used
only one reasonable inference with regard to the intention entertained by the
accused can in our opinion be drawn, which is, that the robbery was committed
with intent to gain. The information clearly shows that the articles were seized
unlawfully, by violence and against the will of the owner, and this implies that
they were taken with the purpose of gain. Especially instructive in this
connection are the closing words of the complaint “con el fin de apoderarse de
los efectos mencionados.” The act of appropriating the personal effects of the
person who is the victim of an assault lil$e that described in this complaint
necessarily involves the idea that the act was done with intent to deprive the
true owner of his property, to the consequent gain of the other party.
If the accused could have been convicted of robbery upon the information as
it stood prior to the amendment in question, it is evident that he was not
prejudiced by the addition of the words imputing to him an intent to gain; and
the fact that the amendment was permitted can not constitute reversible error.
We also observe, in passing, that the case is not changed by the circumstance
that the attorney for the accused objected to the amendment at the time it was
made. In our view the inserted words merely expressed with greater fullness and
clearness an idea readily deducible from the other language used in the
information and they really added nothing to its legal effect. The addition of
words of this character to an information or complaint is not a substantial
amendment, such as might prejudice the accused. It must rather be considered a
nonprejudicial and formal amendment admissible, in the discretion of the trial
court, at any time during the trial. (Sec. 9, Gen. Orders No. 58.)
We acquiesce in the conclusion reached by the Attorney-General in the brief
filed by him for the Government in this case, to the effect that the accused is
not clearly shown to have attacked the deceased treacherously; but the
aggravating circumstance of the commission of the offense in an uninhabited
place was present, since the crime occurred in a place remote from human
habitation.
The offense committed was robbery with homicide, punishable under subsection
1 of article 503 of the Penal Code, in the commission of which is to be
appreciate4 the aggravating circumstance above mentioned. The trial court did
not consider lack of instruction and education of the accused as a mitigating
circumstance, and we see no reason why the action of the court in this respect
should be revised, it not being customary in this court to recognize lack of
instruction and education as an attenuating circumstance in offenses against
property.
It results that the sentence of the lower court condemning the accused to
death was not erroneous; and said judgment is affirmed, with costs of this
instance against the accused. The penalty of death will be executed at a time to
be fixed by the lower court in accordance with law; and if the death penalty
should not be executed by reason of the extension of executive clemency to the
condemned person, he shall, during life, be subject to the accessory penalties
prescribed in article 53 of the Penal Code, if not specially remitted in the
pardon. So ordered.
Torres, Johnson, Malcolm, Avanceña, and Fisher, JJ.,
concur.
[1] Decision of June 16, 1884 (32 Jur.
Crim., 457).