THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. SOTERO BEBMEJO ET AL., DEFENDANTS. SOTERO BERMEJO, EUGENIO DIOPITA, FEDERICO BRAVO, AND FLORENCIO PRUNDA, APPEL…

JOHNSON, J.:

On the 28th day of May, 1923, a complaint was filed in the court of the
justice of the peace of the municipality of Saravia, Province of Occidental
Negros, charging the above-named defendants with the crime of robbery in a band,
alleged to have been committed on the night of May 25, 1923. The justice of the
peace, after a preliminary examination, found that there was cause for believing
that the defendants committed the crime charged in the complaint, and forwarded
the case to the Court of First Instance of said province for further
proceedings.

On the 21st day of June, 1923, the prosecuting attorney of the Province of
Occidental Negros filed against the above- named defendants an information
charging them with the crime of robo en cuadrilla. On July 5, 1923, the
prosecuting attorney filed against them an amended information, as follows:

“That on or about the night of May 25, 1923, in the barrio of
Alicante, municipality of Sarabia, Occidental Negros, Philippine Islands, and
within the jurisdiction of this court, the above named accused, conspiring
together and forming a band of more than three (3) individuals, all armed with
deadly weapons and committing violence and intimidation against persons and
force upon things, did willfully, unlawfully, and criminally, enter the house of
Rita Dequiña, by scaling, that is, penetrating thereinto through the window, and
once inside, they opened with a false key the drawer that there was there,
stealing and taking away with intent of gain and against the will of the owner,
the aforesaid Rita Dequiña, several personal properties valued at P398 plus the
sum of P400 in cash, thus causing damage to said Rita Dequiña in the total sum
of P798, equivalent to 2,990, pesetas.

“Contrary to article 508 of the Penal Code with the aggravating
circumstance of nocturnity.”

At the opening of the trial the court, upon motion of the prosecuting
attorney, with the express conformity of counsel for the defendants, ordered
that separate proceedings be instituted against one of said defendants, Dionisio
Prunda, who, on account of his doubtful mental state was under observation of
the district health officer, and that the trial should proceed with respect to
the other defendants. Accordingly, Dionisio Prunda was excluded, and the court
proceeded with the trial of Sotero Bermejo, Eugenio Diopita, Federico Bravo, and
Florencio Prunda.

At the close of the trial, and after a thorough study of the evidence for the
prosecution and the defense, the Honor- able Ed. Gutierrez David, judge, found
them guilty of a violation of article 502 in relation with article 503,
paragraph 5, and articles 504 and 505 of the Penal Code, with the aggravating
circumstance of nocturnity, and sentenced each of them to suffer ten years of
presidio mayor, with the accessory penalties of article 57 of the Penal Code; to
indemnify jointly and severally the offended person in the sum of 5P624 and each
to pay one-fourth part of the costs. From that sentence the defendants
appealed.

Counsel for appellants makes two assignments of error:

I. The lower court erred in ordering separate trial for Dionisio Prunda, upon
request of the provincial fiscal and not of his attorney in open court, and
consequently the sentence is null and void.

II. The lower court erred in sentencing the defendants to ten years of
presidio mayor.

Counsel expressly admits the guilt of the appellants (p. 48, rollo).
The findings of facts of the trial court will, therefore, be left
undisturbed.

There is no merit in the first assignment of error. From the record it
appears that at the opening of the trial the provincial fiscal, having in
mind the interests of the appellants, and in view of the fact that one of
their codef endants, Dionisio Prunda, was under observation of the district
health officer on account of his doubtful mental condition, moved that the trial
should proceed with respect to the appellants, and that separate proceedings be
instituted against Dionisio Prunda. Counsel for the defendants expressed his
conformity to the motion by saying: “Sin objecion” Thus, it appears
that separate trial was held of the appellants, with the express conformity
of their counsel, for their own benefit, and in order “not to prejudice their
rights.” As a matter of fact, there has been absolutely no impairment of
the rights of the appellants by reason of this separate trial.

Counsel for appellants, arguing the second assignment of error, contends that
the appellants should be punished under article 503, paragraph 5, of the Penal
Code, inasmuch as, according to the evidence for the prosecution, the robbery
has not been committed by a band, in view of the fact that only three of the
robbers were armed at the time of the commission of the crime; to wit, Florencio
Prunda, with a dagger; Sotero Bermejo, with a bolo; Eugenio Diopita, with a
bolo; and that nowhere in the record does it appear that Federico Bravo was
armed. Counsel evidently overlooked the affidavits made by the defendants before
the justice of the peace of Saravia (Exhibits I, J, and K, pp. 29-33, rec), duly
admitted in evidence, in all of which it appears that Federico Bravo was armed
with a revolver at the time of the robbery. This contention is, therefore,
untenable.

Counsel further contends that the lower court should have taken into
consideration the degree of instruction and education of the defendants as a
mitigating circumstance, under the provisions of article 11 of the Penal Code as
amended. In the case of United States vs. Tampacan (19 Phil., 185), we held that
“it is always within the discretion of the court as to whether or not the
provisions of article 11 should be applied. * * *” In view thereof, we abstain
from interfering with the discretion exercised by the lower court in regard to
the application of said provisions in the present case.

In view of all of the foregoing, we are of the opinion and so decide, that
the errors alleged by the appellants were not committed by the lower court, and
that the sentence imposed by the lower court should be and is hereby affirmed,
with costs. So ordered.

Street, Malcolm, Avanceña, Villamor, Ostrand, and Romualdez,
JJ., concur.