THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FRANCISCO CARA ET AL., DEFENDANTS AND APPELLANTS.

This
is an appeal taken by Francisco Cara, Juan Cara, Pedro Cara and Ciriaco
Cara from a judgment of the Court of First Instance of Nueva Ecija,
finding each of them guilty of the crime of robbery in band, with
serious physical injuries, and sentencing them to the penalty of twelve
years and one day of cadena temporal, with the accessories
provided by law, and to indemnify the offended party, Marcelo Gabriel,
in the sum of fifty-two pesos and fifty centavos (P52.50), and
one-fourth each of the costs of the action.

The appellants
assign seven supposed errors as committed by the trial court, which we
shall discuss in the course of this opinion.

The theory of
the prosecution is that the land in question is formed by lots Nos. 800
and 801 of cadastral proceeding No. 10, G. L. R. O. Record No. 270, of
the Court of First Instance of Nueva Ecija, claimed by Marcelo Gabriel,
on the one hand, as parts of his homestead, and by Pedro Cara and
Candida Cara, respectively, on the other. Candida Cara is sister of
Pedro Cara and daughter of Antonio Cara. After hearing the evidence of
all the claimants, the Court of First Instance of Nueva Ecija on
November 7, 1922, rendered judgment, declaring said lots public lands,
and that Marcelo Gabriel had been in possession thereof since twelve
years ago, tilling and cultivating them, and had applied for a
homestead title thereto after five years of possession without
opposition, and overruling the claims of Pedro Cara and Candida Cara
(Exhibit C). It does not appear that these persons have appealed from
said judgment. When the time for sowing came, Marcelo Gabriel sowed
rice thereon. In the same year, he was prosecuted, convicted and
imprisoned for arson. On leaving the jail about the month of November,
1924, he found that Juan Rapanan had erected a house on the land in
question. On December 16, 1924, at about 7 o’clock in the morning, the
offended party saw the defendants reap the rice on said land 400 meters
from his house, and went to the place where they were reaping rice, and
said to Francisco Cara, “Do not take that rice away from here.” Instead
of answering him, Francisco Cara struck him with a rattan cane on the
hand, and the other defendants cried, “Let us pursue and kill him.”
Upon hearing this, the offended party ran away pursued by Pedro Cara,
who threw at him the sickle which he was carrying, and by Ciriaco Cara
who hurled a stone against him, Which went over his shoulders. After
pursuing him, the defendants returned to reap rice, having gathered
about 15 cavans. The price of a cavan was three pesos (P3). Marcelo
Gabriel received a bruise with a fracture of a bone below the second
phalanx of the forefinger of the right hand, the joints having become
half stiff, that is, having lost forever the ordinary flexion and
extension, and thereby their former effectiveness and efficiency. The
bruise took thirty days to heal, the offended party having failed to
earn two pesos (P2) a day as a worker.

The theory of the
defense consists in that after lots 800 and 801 of cadastral proceeding
No. 10, G. L. R. O. Record No. 270, claimed by Pedro Cara and Candida
Cara, respectively, were declared public lands, said claimants
transferred their rights over said lots to Juan Rapanan in the
documents Exhibits 3 and 4, respectively, dated March 17, 1924. Lot No.
800 was assessed in the name of Antonio Cara, father of Pedro Cara,
since the year 1906 (Exhibit 6), and in that of Pedro Cara since the
year 1920, who made the last payment of the land tax in the year 1924
(Exhibit 5).” Lot No. 801 was assessed in the name of Tito Sablay,
deceased husband of Candida Cara, in the year 1906 (Exhibit 8), whose
land tax declaration was revised in the year 1920 (Exhibit 7). As soon
as he acquired the respective rights of Pedro Cara and Candida Cara
over said lots, Juan Rapanan took possession of said lots, and applied
to the Bureau of Lands first for the lease thereof, and then for a
gratuitous title thereto. When in the month of August, 1924, Juan
Rapanan received the answer of the Bureau of Lands dated July 3, 1924
(Exhibit 1), wherein he was told to abstain from taking possession of
the land whose lease he was applying for, he had already sown rice
through his coparcener on shares Ciriaco Cara, and had a house there,
which was that of Pedro Cara; On the morning of December 16, 1924,
while Ciriaco Cara, Francisco Cara, Pedro Cara and Leoncio Sablay were
reaping the rice sown by the first, Marcelo Gabriel came with many
companions and asked them, “Why are you reaping my rice? ” Ciriaco Cara
answered, “We are reaping it because it is mine.” Upon hearing this,
Marcelo Gabriel attacked Pedro Cara with the bolo which he
was carrying, but the latter has been stepping backward, defending
himself with a piece of firewood that he had taken from the ground; and
when the companions of Marcelo Gabriel said, “Let us kill them all,”
all of them ran away. After Marcelo Gabriel and his companions had
retired, the defendants began again to reap rice, having gathered 15
cavans, which they heaped near the house of Juan Rapanan, who, after
having caused them to be threshed, sold them at three pesos and ten
centavos (P8.10) a cavan, paying his coparceners on shares with the
proceeds of the sale.

Marcelo Gabriel had been prosecuted for arson, having been confined in jail for two months.

Juan Cara was not with his codefendants when the latter reaped the rice
in question, because he had fever and was confined to his bed.

The only questions to be decided in this appeal are: (1) Whether or not
the rice reaped by the defendants was Juan Rapanan’s; and (2) whether
or not the defendants acted in the defense of their persons or rights.

From the evidence of the prosecution, as well as of the defense, it
appears that while Marcelo Gabriel, the offended party, was since over
twelve years ago in possession of the land where the supposed crime was
committed, yet his possession was but of an applicant for a homestead
to whom no title had as yet been granted. So that the land applied for
by him continued to be public, as was declared by the Court of First
Instance of Nueva Ecija, in dismissing all the claims presented,
concerning said lots. Pedro Cara and Candida Cara, who claimed said
lots, believing that they still had the right to acquire them, being
public lands, sold their rights to Juan Rapanan, who immediately took
possession thereof, built a house thereon, and applied to the Bureau of
Lands for their gratuitous grant. While he was waiting for the answer
of the Bureau of Lands, Juan Rapanan had rice sown on the land in
question, and when he received the answer, notifying him that his
application will be investigated and that in the meantime he should
abstain from doing anything on said land, he had already sown rice.
This claim is not altogether groundless, because if Juan Rapanan
acquired the rights of Candida Cara on March 17, 1924, and took
immediate possession of the lands, building his house thereon, and if
the offended party, Marcelo Gabriel, had been in jail for two months,
the sowing must have been done during his confinement. And if Marcelo
Gabriel cultivated said lands personally, it is not possible that he
should have sown rice thereon during the time he was serving sentence.
It is, therefore, more probable that the rice reaped by the defendants
was that sown by Ciriaco, Cara by order of Juan Rapanan. And if this is
the case, the defendants cannot be guilty of robbery, for they did not
take away, through force or intimidation, any personal property of
another against the owner’s will.

As to the second question,
the record contains sufficient evidence to show conclusively that when
the offended party approached the defendants, Francisco Cara, Pedro
Cara and Ciriaco Cara, in order to ask them why they were reaping the
rice, the first struck him on the hand with a rattan cane and the
others cried, “Let us beat him.” Upon hearing this, the offended party
ran away and was pursued by all of them. While he was running, Pedro
Cara threw a stone against him. After pursuing him up to his house, his
pursuers returned and continued to reap the rice. The claim of the
defendants is improbable that when Marcelo Gabriel and his companions
arrived at the place where the former were reaping rice, said Marcelo
Gabriel, after asking them why they were reaping his rice, attacked
Pedro Cara with the bolo which he was carrying, and upon hearing Marcelo Gabriel’s companions say “Let us kill them all,” all of them ran away.

As to the defense of alibi set
up by Juan Cara, we believe it was sufficiently established. Aside from
the declarations of the witnesses for the defense that Juan Cara was
confined to his bed, because he had fever, it was not necessary for him
to deny his presence there, if in fact he was not there, for there is
no proof that he had done anything wrong to the offended party.

As to the criminal liability of the defendants, the only one who
appears to have injured the offended party is the defendant Francisco
Cara. While it is true that Pedro Cara threw his sickle at him, and
Ciriaco Cara a stone, none of these instruments hit or injured him. It
was not proven that there had been an agreement or conspiracy to
assault Marcelo Gabriel, and consequently the others cannot be held
responsible for the acts of Francisco Cara, because there was no
concert of mind and common design to perpetrate a criminal act, so as
to hold that the act of one is the act of all. The fact that the others
cried, “Let us pursue and kill him,” is not sufficient for drawing the
conclusion that there was such concert, because the invitation took
place after the aggression made by Francisco Cara and did not have any
influence upon the act performed by the latter.

From the
foregoing it results that the only one criminally liable is the
defendant Francisco Cara. The act committed by him constitutes the
crime of serious physical injuries defined and punished by article 416,
case No. 3, of the Penal Code, as the offended party has lost the use
of a member which is not principal, such as the forefinger of the right
hand, the penalty provided by law being prision correccional
in its minimum and medium degrees, that is to say, from 6 months and
one day to four years and two months. In the application of the
penalty, no circumstance is to be taken into consideration to modify
the criminal liability; wherefore the penalty provided by the law shall
be imposed in the minimum of the medium degree, that is, one year,
eight months and twenty-one days of prision correccional.

For the foregoing, the judgment appealed from is reversed, and the
defendant Francisco Cara is found guilty of the crime of serious
physical injuries, and sentenced to undergo imprisonment for one year,
eight months and twenty-one days of prision correccional, to
indemnify the offended party in the sum of sixty pesos (P60), with the
corresponding subsidiary imprisonment in case of insolvency, the
accessory penalties provided by the law, and one-fourth of the costs.

The defendants Pedro Cara, Ciriaco Cara and Juan Cara are acquitted with three-fourths of the costs de oficio, and cancellation of the bond given by them for their provisional release. So ordered.

Avanceña, C. J., Street, Malcolm, Ostrand, Johns, and Romualdez, JJ., concur.
Villamor, J., reserves his vote.