PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARIO AQUINO Y MAKILAN AND ERNESTO GALLEGO Y REMADA, ACCUSED-APPELLANTS.

Automatic review of the judgment of the Circuit Criminal Court,
12th Judicial District, at Bacolod
City, convicting Mario Aquino y Makilan and Ernesto Gallego y Remada of the crime of
Robbery with Homicide, with the aggravating circumstance of nighttime or
uninhabited place, and sentencing them to suffer capital punishment.

The Information against the accused-appellants charged them as
follows:

“That on or about the 4th day of June, 1977, in the City of Bacolod, Philippines and within the jurisdiction of this
Honorable Court, the herein accused, conspiring, confederating together and
mutually helping one another with intent to gain and against the consent of the
owner thereof and by means of violence, did, then and there wilfully,
unlawfully and felo­niously take, steal and carry away a wrist watch valued in
the amount of ONE HUNDRED (P100.00) PESOS, Philippine Currency, belonging to
one Bienvenido Laud, to the damage and prejudice of
the said owner in the aforementioned amount; that on the occasion of the said
robbery and for the purpose of enabling them to take, steal and carry away said
wrist watch, the herein accused, with evident premeditation and with intent to
kill, did, then and there wilfully, unlawfully and
feloniously assault, attack, strike with stone and stab with a knife said Bienvenido Laud, thereby in­flicting upon him the following
wounds, to wit:

– Lacerated wound, stellate in shape, 1 in. in length and 1 cm. in depth at
the parietal region, left.

– Lacerated wound,
1.3 in length and 1 cm. in depth at the parietal region, right.

– Lacerated wound,
1.2 in length and 1 cm. in depth at the la­teral aspect, occipital region,
left.

– Stab wound, 2-3/4
in. in length and penetrating at the chest, left, 3rd interspace
entering the chest cage, puncturing the upper lobe, lung, left going downwards
and passing out through middle lobe, with mas­sive hemorrhage thereat.

Note:  Apex of lung protruding from the wound.

– Stab wound, 1.2
in length and 2 in. in depth at the posterior axillary
region, level of the angle of scapular, right.

– Incised wound, 1
1/2 in. in length and 1/2 in. in depth running across lateral aspect, middle
thirds, forearm, right.

– Incised wound, 1
1/2 in. in length and 1 cm. in depth at the postero-medial
aspect, wrist, right.

– Stab wound, 1 1/2
in. in length and 1 1/2 in. in depth (non-penetrating) at the infrascapular region, left, running perpendicularly.

– Contusion with
abrasion, 1/2 cm. by 2 in. length running across, lumbar region, left.

– Contusion with hematoma, 4 in. in square area at the upper left, abdominal
quadrant.

– Incised wound, 3
in. in length running across upper lip, involving whole thickness thereat.

– Contusion with
abrasion, 1/2 cm. by 4 in. in length running slantingly at the mid-sub costal
region, right down to um­bilicus.

– Contusion with
abrasion, 1/2 cm. in width and 6 in. in length running slantingly at the chest,
right from 2nd rib to 8th rib.

– Contusion with
abrasion, 1/2 cm. by 3 in. in length running slantingly at the right,
sub-costal region.

– Incised wound,
1/2 in. in length each, 2 in. no side by side at the posterior aspect, base of
thumb, hand, left.

– Contusion with
abrasion, 1/2 cm. in width, and 2 in. in len length
at the posterior aspect, upper thirds, arm, left.

– Contusion with
abrasion, 1/2 cm. by 2 in. in length running across posterior aspect, lower
thirds, arm left.

– Contusion with
abrasion, 1/2 cm. by 1 1/2 in. in length and 1 cm. in depth at the sternoclavicular junction, left.”^[1]

Following is the Statement of Facts by the prosecution:

“Appellants Mario Aquino and Ernesto
Gallego, and the deceased Bienvenido
Laud, were all employees of the Hacienda Helvetia in Bacolod
City.

“On the afternoon of June 4, 1977, which was payday in the Hacienda,
appellants were at the canteen of Cesar Buenaflor
drinking a bottle of Sy Hoc Tong wine.

“In the same place was Bienvenido
Laud who was also drinking wine with another group.

“At about 8:00 o’clock
in the evening, appellants left the canteen. 
According to them, they stopped at the house of Arturo Flores to watch a
card game called ‘Pusoy‘.  After thirty minutes, they left the
place.  About the same time Bienvenido Laud left the canteen and proceeded to his
home.  At a road junction, appellants saw
Bienvenido Laud walking in front of them.  Suddenly, appellant Ernesto Gallego picked up a stone and hit Bienvenido
Laud on the head twice.  On his part,
appellant Mario Aquino grabbed the knife of Bienvenido Laud and stabbed the latter several times with
it.  As a result of the assault, Bienvenido Laud fell to the ground dead.  Appellants carried him to a ditch and dumped
him there.  Appellant Mario Aquino took the watch of the deceased and sold it the
following day to Alfredo de la Cruz for P9.00.

“The following day the body of Bienvenido
Laud was discovered.  It bore the
following wounds and injuries (as enumerated in the Information).

“Appellants were apprehended by the police.  They were interro­gated and they gave written
confessions which were marked during the trial as Exhibits C and D.”^[2]

 The foregoing facts were
gathered, not from any eyewitness’ testimony, but from the respective
extrajudicial confessions of the accused, the re-enactment of the crime by
them, and the circumstantial evidence testified to by Alfredo de la Cruz, who
purchased the watch in question; Bonifacio Malapitan, who was shown the watch soon after the incident;
and Estelita Laud, widow of the deceased.

As translated from the local dialect, Mario Aquino’s
extrajudicial confession signed by him on June 7, 1977, reads in full as follows:

“03. Q – Can you tell me why you are here today, 7 June 1977, at the Police Station, Bacolod City?

A
– I am here today because I was apprehended together with Ernesto Gallego by the police authorities of Bacolod City
for the crime of killing Bienvenido Laud at around 9:00 P.M. more or less 4 June 1977 at Hda. Helvitia, Bacolod
City.

04.  Q – Can you tell me all what you know about
this incident which you are now telling me which happened at Hda. Helvitia, Ba­colod City,
at around 9:00 P.M. more or less, June
4, 1977?

A – On June 4, 1977,
at around 9:00 P.M. more or less, at Bacolod City,
Ernesto Gallego and I were following Bienvenido Laud in going home, when suddenly Ernesto Gallego picked up a piece of stone and he struck Bienvenido Laud on the head two times.  Because of this, Bienvenido
Laud pulled a knife but I got the same from Bienvenido
Laud.

05.  Q – When you got the knife of Bienvenido Laud, what did you do with it?

A –
The said knife was used by me in stabbing Bienvenido.

06.  Q – Can you tell me also what you and Ernesto Gallego did next to Bienvenido
Laud?

A – Ernesto Gallego and I carried him and dropped him in a ca­nal at
Had. Helvitia, Bacolod
City, near the place where Bienvenido Laud fell down
and when Bienvenido Laud was in the canal I got his
watch and the following day I sold the said watch to Alfredo de la Cruz at
Burgos Street, Bacolod City, for the amount of P9.00
only.

07.  Q – Can you tell me where is now the knife you
used to stab Bienvenido Laud on June 4, 1977 at around 9:00 P.M.?

A  – I left it at the side of Bienvenido Laud when we dropped him in the canal.

08.  Q – I am showing to you this ROCAR watch,
what can you tell about this?

A – That belongs to Bienvenido Laud which I took from his arm after he fell
down and we have thrown him in the canal and which I sold to Alfredo de la Cruz
for the amount of P9.00.

09.  Q – Do you know the reason why Ernesto Gallego struck Bienvenido Laud
that time?

A  – I really did not know.

10.  Q – Did somebody cajole you or threaten you
so you can give a true statement in this investigation?

A  – No one.

11.  Q – Aside from this have you more to say in
this investigation?

A  – That is all.”^[3]

On the same date, Aquino swore to his
Affidavit before Asst. City Fiscal Adriano L. Natu,
who certified as follows:

“SUBSCRIBED AND SWORN TO before me this 7th day of June 1977
in the City of Bacolod, Philippines.  This further certify that I have personally
examined the affiant and I am satisfied that he voluntarily executed and fully
understood the content of his Affidavit.

(Sgd.) ADRIANO L. NATU

Asst.
City Fiscal

Bacolod City”

For his part, Ernesto Gallego narrated
in his extrajudicial confession, which he thumbmarked
on June 6, 1977:

“03. Q – Do you know BIENVENIDO LAUD?

A  – Yes, an overseer of Hacienda Helvitia of Padoc Gonzaga.

04.  Q – How about you, what is your work?

A  – I work in the sugarcane fields

05.  Q – Do you know MARIO AQUINO?

A  – Yes, one of my friends and residing also at
Hda. Helvitia.

07.  Q – Do you know how Bienvenido
Laud is, at the moment?

A  – Yes, he is dead.

08.  Q – What was the cause of his death?

A  – He was struck on the head with a stone and
was stabbed.

09.  Q – Who struck him on the head with a stone
and who stabbed him, if you know?

A  – I was the one who struck him on the head
with a stone.

10.  Q – Are you not wrong in saying, nor I, that
you were the one who struck him on the head with a stone?  This will incri­minate you, do you
understand?

A  – I was really the one who struck him on the
head with a stone.

11.  Q – Do you already know who stabbed Bienvenido Laud which caused his death?

A  – Mario Aquino was
the one who stabbed.

12.  Q – At what time did this happen?

A  – More or less 9:00
o’clock in the evening, 4
June 1977.

13.  Q – Where did this happen?

A  – On a road where there are sugarcane fields
on both sides, Hda. Helvitia,
Bo. Villamonte, Bacolod City.

14.  Q – Which came first, the strucking
on the head with a stone or the stabbing of Bienvenido
Laud?

A  – The strucking on
the head with a stone by me.

15.  Q – After you have struck Bienvenido’s
head with a stone what happened to him?

A  – He fell down and Mario Aquino
immediately got the knife which was being held by Bienvenido
and stabbed Bienvenido.

16.  Q – While Mario Aquino
was stabbing Bienvenido, what did you do?

A  – I was only standing and watching.

17.  Q – How did you know that Bienvenido
is already dead?

A
– He was not moving anymore so we carried him to the canal.  I was holding the two legs and Mario Aquino on both sides of the shoulders.

18.  Q – What else did you see when Bienvenido was in the canal?

A  – Mario stayed there, I cannot make out what
more he did.  At last, Mario went home
and I also went home.

19.  Q – When you reached home, did you remember
what you did?

A  – I went to the house of Bienvenido
and asked for a match and I was given one by his wife.  Then I went home and sleeped
in my house.

20.  Q – Did you say anything to Bienvenido’s wife aside from asking for a match that night?

A  – Yes, I inquired if Bienvenido
has arrived.

21.  Q – Why did you still inquire for you know
that he is already dead and you left him there in the canal?

A  – So that they won’t be surprised with me and
besides Bienvenido can no longer go home.

xxx                xxxx                 xxx

25.  Q – Did you and Mario Aquino
talked about what you were going to do with Bienvenido?

A
– No.  It only happened that we were
standing at the intersection of the road going to the house of Mario Aquino when we found out that Bienvenido
was also coming.  We came from the house
of Flores because Mario played ‘pusoy‘
and he also stopped when we started for home. 
We stood for a mo­ment at the intersection and we saw Bienvenido coming.  Bienvenido said, ‘Peace. 
It is said that you are samaritanos‘ re­ferring
this to Mario because Mario is a Samaritano.  Mario boxed Bienvenido
and I picked up a stone because Bienvenido was
already holding a weapon.  I threw a piece
of stone at him and he was hit on the head. 
He fell down and Mario then grabbed or got the bolo and stabbed Bienvenido.  I saw
that Bienvenido was no longer mo­ving so we carried
him to the canal.  Finally, we went
home.”^[4]

Gallego, too, swore to his Affidavit
before Asst. City Fiscal Natu, who prepared the
following jurat and certification:

“SUBSCRIBED AND SWORN TO before me this 6th day of June,
1977.  I certify that I had examined the
affiant and I am convinced that he was apprised of his constitutional rights
and that he gave his statement voluntarily.

(Sgd.) ADRIANO L. NATU

Asst.
City Fiscal

Bacolod City”

Coming now to the testimonies of prosecution witnesses:  Alfredo de la Cruz, a shoe repairer,
confirmed that at around 8:00 A.M. of June 5, 1977, or the day after the
commission of the crime, Mario Aquino sold to him a
watch (Exhibit “C”), which he bought for P12.00 and later re-sold for
P20.00 to another person.  After knowing
that it had been stolen, he retrieved the watch and surrendered it to the
police.  Actually, the watch was worth
P100.00.

Bonifacio Malapitan,
another hacienda laborer, also testified that in the evening of June 4, 1977,
around 9:30 P.M., at a dancehall near their house, Mario Aquino
showed him a watch allegedly “brought from Mindanao”, but that he
knew there and then that the watch belonged to the deceased because, as their
foreman, the deceased used to time the laborers with that watch.^[5]

The widow of the deceased, Estelita
Laud, declared that when her husband left their house, he was wearing his
watch, which she identified (Exhibit “C”); that when she saw her husband’s
dead body, the watch was no longer on him; that when her husband left the
hacienda that afternoon he had P40.00, gave P20.00 to his wife and retained the
other P20.00 in his pocket.^[6]

In addition to the extrajudicial confessions, the records
disclose that on June 8, 1977,
or three days after their arrest, and after appellants had executed their
extrajudicial confessions on June 6 and June
7, 1977, respectively, appellants staged a re-enactment of the
offense at the crime scene in the presence of Fiscal Mariano Natu-el, Pat. Esperidion Estana, who was the investigating officer, Sgt. Becena, Jr. of the Homicide Section, and Detective Juanito de los Reyes.  Patrolman Estana
described the re-enactment as follows:

“FISCAL CHUA:

Q –
Then, what happened?

WITNESS:

A  – Upon reaching the junction, they pose (sic)
for a while and waited for Bienvenido Laud who was
following them, and when Bienvenido Laud was nearing
them, they greeted him, and the latter answered, “paghidait”
(peace) ang sa­maritano amo man lang ang
malain (the samaritans are
the only ones who are evil)

FISCAL CHUA:

What
else happened upon say­ing those words.

WITNESS:

A  – Bienvenido Laud
pulled his knife from the scabbard and attempted to stab Ernesto Gallego, but Ernesto Gallego
side-step and struck Bienvenido Laud with a stone
hitting him on the back portion of his head, which renders Bienvenido
Laud groggy and Mario Aquino grappled the knife took
position (sic) of it and instantly stabbed Bienvenido
Laud for several times, the victim fell to the ground unconscious, then they
lifted the body of Bienvenido Laud and throw the body
to the canal and Mario Aquino took the wrist watch of
Bienvenido Laud.”

It is to be noted that, as re-enacted, appellants had modified
their earlier version of the occurrence, as set forth in their written
confessions, by claiming that it was the deceased who had started the
aggression by attempting to stab Gallego with a knife,
after which the latter ducked and retaliated by throwing a stone at the
victim.  Except for this modification,
the re-enactment corroborated the written confessions on substantial points.

The Investigation Report, dated June 8, 1977, submitted by Pat. Estana
contained the modified version (Exhibit “F” or “5”).

During the trial Mario Aquino injected
another twist when he testified that he found the watch “in between the
place where the fight ensued and the body of the deceased”,^[7]
contrary to what he declared in his confession that he got the watch while the
dead body of the victim was still in the canal.

More precisely, then, the version of the incident from the
defense point of view is as follows:

“x x x On
the way(home) they passed by the house of Flores where
Mario Aquino played ‘pusoy‘.  After the game was over they proceeded home
and upon reaching the junction where their ways would part, they stopped
because Gallego noticed a man following them whom he
recog­nized as the deceased.  Gallego asked Aquino to wait for
Laud so that he (Gallego) could go home together with
Laud, his neighbor whose house is only 3 houses away from him.  When Laud noticed that he was drunk and said
to them ‘Peace, the samaritanos themselves are
bad’.  This has reference to Mario Aquino who is a samaritano (a
person who has taken a course on religious reformation).  Whereupon Laud took his knife and stabbed Gallego but the latter was able to duck.  Gallego thereupon
picked up a stone and hit Laud with it. 
Laud tried to stab Aquino also but the latter
succeeded in wresting the knife from him. 
Aquino stabbed Laud with it several times, and
they grappled for its possession on the process falling to the ground.  When Aquino sensed
that Laud was dead, he dragged his body to the ditch and requested Gallego to help him. 
Later he found the watch on the ground between the place where the fight
ensued and the canal where the body was thrown.”^[8]

The Trial Court gave more credence to appellants’ extra­judicial
confessions, which it found to have been voluntarily given, concluded that the
crime committed is Robbery with Homicide, and sentenced appellants thus:

“WHEREFORE, in view of the foregoing, the Court finds both ac­cused
MARIO AQUINO Y MAKILAN and ERNESIO GALLEO Y REMADA GUILTY beyond a reasonable
doubt as principals by direct participation of the offense of robbery with
homicide as charged, by robbing one Bienvenido Laud;
and by reason or on occasion thereof, killing said Bienvenido
Laud on the night of June 4, 1977, in Hda. Helvetia,
Bacolod City, Philippines,
the place and offense within the jurisdiction of this Court.  Considering that there is no mitigating
circumstance, but there is an aggravating circumstance of the offense committed
at nightime or in an uninhabited place, and in
accordance with the provisions of paragraph 1, Article 294, in relation to
Article 63, of the Revised Penal Code, the Court sentences both accused Mario Aquino y Makilan and Ernesto Gallego y Remada to suffer the maximum
penalty provided for by law which is Death, to be executed by the
Director of prisons at the manner, time and place provided for by law; to
indemnify the heirs of deceased Bienvenido Laud the
amount of P12,000.00, and to pay the costs.

x x x              x x x “^[9]

As assignment of errors, the defense alleges:

“I

The Trial Court erred in
finding that the extra-judicial confessions of the accused were voluntary and
in convicting them of the crime of robbery with homicide on the basis thereof
although they do not amount to an admission of the commission of such crime.

“II

The Trial Court erred in
not finding that the offenses committed were two separate crimes of homicide
with the privileged mitigating circumstance of incomplete self-defense and theft
and with Mario Aquino alone as the perpetrator.

“III

The Trial Court erred in
appreciating against the accused the aggravating circumstance of nighttime or
uninha­bited place.

“IV

The Trial Court erred in
not appre­ciating in favor of the accused the mitigating circumstance of intoxi­cation.”

Upon review of the evidence, we find that the grounds relied upon
by the defense for overthrowing their confessions do not stand on solid
footing.  Maltreatment has not been
substantiated.  Appellants failed to complain
to the Fis­cal who had sworn them. 
Appellants showed no mark of violence on their bodies nor did they
submit to medical examination.  Neither
did they institute any criminal or administrative act­ion against the policemen
who allegedly maltreated them (People vs. Mada-i Santalani, 93 SCRA 315 (1979).

The voluntariness of the confessions
was certified to by the Fiscal as the swearing officer.  The written confessions themselves disclose
that before appellants were interrogated by police investigators, they were
advised of their constitutional rights to silence and to counsel.  Gallego’s
declaration in his statement is pertinent:

“10.
Q – Are you not wrong in saying, that you were the one who s­truck him on the
head with a stone?  This will incrimi­nate
you, do you understand?

A
– I was really the one who s­truck him on the head with a stone.”

In a similar vein, Aquino stated:

“10.
Q – Did somebody cajole you or threaten you so you can give a true statement in
this investigation?

A –
No one.”

Additionally, Pat. Esperidion Estana, who was also uti­lized by the defense as its
witness, declared:

“Fiscal Chua:

Q – Now, you said that you were present
when the investigation of the two accused is being conducted which resulted to
the confession of the crime, do you know what procedure did the investigating
group adopted before the execution of this extrajudicial con­fession?

A – Before making their affidavits, they
were apprised of their constitutional rights.

Q – What are those.

A – According to Section 20, Article 4,
they have the right to remain silent, they have the right to have a counsel of
their own choice, and that, the statement that they will give may be used
against them or in favor of them in any court or tribunal within the Republic
of the Philippines, and no force, threat, intimidation or violence will be used
against them that will vitiate their free well.

Q – After they admitted or confessed,
what else did you do with the two accused?

A – The taking of the affidavit was
conducted.

Q – After it was made and signed, what
happened?

A – After it was made and signed, They
were brought to the office of the Fiscal.

x x x              x x x

Court:

Q – Did you explain to them these rights
of the accused in the dialect?

A – Yes, Sir.

Q – So the confessions are in the
dialect?

A – Yes, Sir.

Q – With English translation?

A – Yes, Sir.

Q – For example, in the dialect, for
purposes of clarification, will you demonstrate how you said to the accused
their rights, ‘to remain silent’?

A – ‘May derecho
ikaw nga indi magsabat sa
mga pamangkot kon nahibalu-on mo nga ang imo
pagsabat mahimo nga maka­palain sa imo sa
ulihi.’ (You have the right to remain silent if you
think that what you are going to answer would incriminate you later).

Q – And you explained to him that, by
saying that you have the right to remain silent?

A – Yes, Sir.

Q – And at the first instance, if the
accused would not answer you or would refuse to give answer, you will not
insist on questioning them?

A – Yes, sir.

Q – But what was their answer in this
particular question?

A – They will give a voluntary
statement, because they want only to tell the truth?

Q – What about you, you mean to say that
despite the admonition, they still insists on giving their statement?

A – Yes, Sir.

Q – What about this right to have a
counsel of their own choice, did you inform them of their rights that they
could secure a counsel of their own choice, if they want?

 A
– Yes, Sir.  We informed them that they
have the right to have a counsel of their own choice, if they want they could
secure a counsel, and if they don’t have money, we will help them look for a
counsel, for the government will give them one, free of charge.

Q – And what was their answer?

A – There is no need, for we will only
tell the truth.

Q – Did you tell them that there are
several lawyers, and if they want, you will make steps in order that they will
be given one counsel de oficio?

A – Yes, Sir.

Q – And that, if they could not afford
to have a lawyer, the government will provide one for them, in order to assist
them during the investigation of this case?

A – Yes, Sir.

Q – And what was the answer of the
accused?

A – They will…they told us that they
will submit themselves for investigation, even though there is no lawyer to assist
them, because they were only telling the truth.

Q – Did you explain to them, in a very
layman’s language that it would be better to have a counsel because what you
are going to say here will be significant, and it is better for you to have a
lawyer who will guide you during the investigation?

A –   Yes,
but they insisted that there is no need for they are only going to tell the
truth.^[10]

Indeed, the facts and details in appellants’ respective
confessions attest to their voluntariness for those
could have been known and given only by them.

The variance in the two confessions as to who started the fight,
with Gallego claiming that Aquino
started it when he (Aquino) boxed the deceased, while
Aquino said that it started when Gallego
hit the deceased with a stone, underscores the fact that each appellant was
trying to exculpate himself from criminal responsibility, thereby additionally
attesting to the voluntariness of their respective
confessions.^[11]

Of note also is the fact that when the extrajudicial con­fessions
(Exhibits “D” and “E”) were offered in evidence, the
defense interposed no objection.^[12]

We agree with appellants, however, and as admitted and
recommended by the Solicitor General, that the offense committed is not the
special complex crime of Robbery with Homicide, but two separate crimes of
Homicide and Theft (vide, People vs. Elizaga,
86 364 [1950]).

For Robbery with Homicide to exist, homicide must be committed by
reason or on occasion of the robbery^[13],
meaning that the homicide must be committed in the course or because
of the robbery.  Robbery and Homicide
are separate offenses when the homicide was not committed “on the
occasion” or “by reason” of the robbery.^[14]
In the cases of People vs. Elizaga, 86 Phil. 364
(1950) and People vs. Glore, 87 Phil. 739 (1950)
where the victims were killed, not for the purpose of committing robbery, and
the idea of taking the money and other personal property of the victims was
conceived by the culprits only after the killing, it was held that the culprits
committed two separate crimes of Homicide or Murder (qualified by abuse of
superior strength) and Theft.^[15]
It is true that in People vs. Hernandez, 46 Phil. 48 (1924), it was held that
killing first the victim and then afterwards taking the money from the
body of the deceased is Robbery with Homicide. 
However, an intent to commit robbery must precede the taking of human
life in Robbery with Homicide.  The
offender must have the intent to take personal property before the
killing.^[16]
Similar­ly, the case of U.S.
vs. Baguioa, et al., 4 Phil. 110 (1905) held that it
must be conclusively shown that the homicide was committed for the purpose of
robbing the victim.

“When the case does not show conclusively on its merits that
the homicide was committed for the pur­pose of robbing the victims, a mere presumption
of such fact is not sufficient to sustain a conviction for the complex crime of
robbery with murder.”

In the case at bar, it is far from conclusive that the deceased
was killed for the purpose of committing robbery.  Appellants had no thought of robbery prior to
the killing.  What provoked Aquino into boxing the deceased and stabbing him afterwards
was the deceased’s remark regarding “samaritanos“.  Thus, Gallego had
narrated in his Statement:

“25. Q – Did
you and Mario Aquino talked about what you were going
to do with Bienvenido?

A
– No.  It only happened that we were
standing at the intersection of the road going to the house of Mario Aquino when we found out that Bienvenido
was also coming.  We came from the house of
Flores because Mario played ‘pusoy‘
and he also stopped when we started for home. 
We stood for a moment at the intersection and we saw Bienvenido
coming.  Bienvenido
said, ‘Peace.  It is said that you are samaritanos‘ referring this to Mario because Mario is a Samaritano.  Mario
boxed Bienvenido and I picked up a stone because Bienvenido was already holding a weapon.  I threw a piece of stone at him and he was
hit on the head.  He fell down and Mario
then grabbed or got the bolo and stabbed Bien­venido.  I saw that Bienvenido
was no longer moving so we carried him to the canal.  Finally, we went home.”

The thought of taking the deceased’s
wrist watch was conceived only after the killing and throwing of the victim in
the canal, as Aquino had confessed, or if his
testimony in open Court is to be believed, he had found it between the place
where the fight ensued and the canal where the body was thrown.  On this point, Aquino’s
confession reads:

“06. Q – Can you tell me also what you and Ernesto Gallego did next to Bienvenido.

A  – Ernesto Gallego
and I carried him and dropped him in a canal at Hda. Helvitia, Bacolod City near the
place where Bienvenido Laud fell down and when Bienvenido Laud was in the canal I got his watch and the
following day I sold the said watch to Alfredo de la Cruz at Burgos Street, Bacolod City, for the amount of P9,00 only.

x x x              x x x                 x x x                 x x x

08.  Q – I am showing to you this Rocar watch, what can you tell about this?

A
– That belongs to Bienvenido which I took from his
arm after he fell down and we have thrown him in the canal and which I sold to
Alfredo de la Cruz for the amount of P9.00.”

Upon the foregoing circumstances, it has to be held that
appellants committed two separate crimes of Homicide and Theft, the latter being
included in the Robbery charge.  We find
absent herein that direct relation and intimate connection between the robbery
and the killing, the criterion laid down in People vs. Hernandez, 46 Phil. 48
(1924) for the complex crime of Robbery with Homicide.

We reject the defense contention that only Aquino
was the culprit.  It was not only Aquino but also Gallego who at­tacked
the deceased.  Gallego
picked up a stone and hit the deceased with it. 
Aquino then grabbed the victim’s knife and
stabbed the latter several times with that weapon.  The victim fell to the ground dead.  Both appellants carried the victim to a canal
and dumped his body there.  Gallego stood by while Aquino
deprived the deceased of his watch.  Gallego was with Aquino when the
latter sold the watch to Alfredo de la Cruz the next morning (Exhibit
“F” or “3”). 
Appellants’ concerted acts clearly demonstrated that they were of one
mind, imbued with the same purpose and objective, thereby establishing
conspiracy.^[17]
And when conspiracy exists, the act of one is that act of the other and they
are equally liable.^[18]

Neither is the mitigating circumstance of incomplete self-defense
available to appellants, as they attempted to show in their re-enacted
version.  According to Aquino’s confession, they “were following Bienvenido Laud in going home, when suddenly Gallego picked up a piece of stone and he struck Bienvenido Laud two times. 
Because of this, Bienvenido Laud pulled a
knife but I got the same from Bienvenido Laud”, Gallego’s version in his confession also states that
“Mario boxed Bienvenido and I picked up a stone
because Bienvenido was already holding a
weapon.” In other words, aggression originated from either appellant but
not from the deceased.  The latter may
have put up a fight but, as the Trial Court had pointed out “if the
deceased was able to put up any resistance at all, it was just an automatic
response to the instinct of self-preservation, by way of vain
self-defense”.^[19]
As between appel­lants’ confessions and the re-enacted version, we give the former
fuller faith and credence, having been closer in point of time to the
occurrence itself when the accused had no time to concoct anything contrary to
the real facts that occurred.  The
element of unlawful aggression on the part of the deceased, so indispensable in
incomplete self-defense, being absent, this mitigating circumstance cannot be
appreciated in appellants’ favor.

Appellants also claim the mitigating circumstance of in­toxication.  The evidence does not disclose, however, that
they were in that state at the time of the killing.

“ATTY.
MANLAPAO:

At
the time of the incident, this stabbing incident of Bienvenido
Laud, were you and Gallego drunk?

WITNESS:

No, Sir,
we were not so drunk.

COURT:

You had
drunk, but you were not that drunk?

WITNESS:

Yes,
sir.”^[20]

“FISCAL CHUA:

So
that, you were not drunk during the night of the incident for you drank, the
three of you one bottle of siyoktong?

WITNESS:

Yes,
madam.

FISCAL CHUA:

As a
matter of fact, you were not drunk because you were able to play ‘pusoy‘ on your way home, in the house of Flores?

WITNESS:

Yes,
madam.”^[21]

The Trial Court appreciated against the accused the aggravating
circumstances of nighttime and uninhabited place.  We rule otherwise.  In order that nighttime may be considered an
aggravating circumstance, it must be specially sought.  Absent any such showing, the fact that the
crime was committed at night will not suffice to sustain “nocturnidad“.^[22]
Nighttime is not specially sought for when the notion to commit the crime was
conceived only shortly before its commission.^[23]
In the case at bar, appellants and the deceased merely chanced upon one another
on their way home in the evening of June
4,1977.

The aggravating circumstance of uninhabited place can neither be
appreciated.  Although there is testimony
to the effect that the crime was committed in a secluded place where people
rarely pass, the fact remains that it is the usual road going to the residences
of Aquino and the deceased, at the junction where it
met with another road going to the residence of Aquino.  It is not apparent from the evidence that the
accused selected the place of the commission of the crime either to obtain
their object without interference or to secure them­selves against detection
and punishment.^[24]

Summing up, we find that appellants were not deprived of their
constitutional rights during the custodial investi­gation; that their
extrajudicial confessions were given voluntarily; and that on the basis of
their admissions, their re-enactment of the crime, and the testimonies of
prosecution witnesses, their guilt has been established beyond reasonable
doubt.  The characterization of the
crime, however, is not Robbery with Homicide, as concluded by the Trial Court,
but the separate crimes of Homicide and Theft. 
As their commission was not attended by any modifying circumstance, the
penalties are imposable in their medium degree.

WHEREFORE, modifying the judgment under review, the
accused-appellants are hereby sentenced as follows:  For the crime of Homicide, they are each
sentenced to eight (8) years and one (1) day of prision
mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal, as maximum; and for the crime of Theft, they are
each sentenced to a straight penalty of four (4) months.  They are further sentenced to pay the heirs
of the deceased, jointly and severally, an indemnification of P12,000.00 for
the crime of Homicide, and P100.00 for the crime of Theft.

Costs against accused-appellants Mario Aquino
y Makilan and Ernesto Gallego
y Remade.

SO ORDERED.

Guerrero, Plana, Escolin,
Relova, and
Gutierrez, Jr., JJ., concur.

Fernando, C.J., in the result,
concurs with the separate opinion of J. Teehankee
and J. Makasiar.

Teehankee, J., concurs with the separate opinion of J. Makasiars’ brief opinion.

Aquino, J., see dissent.

Concepcion, J., reserved his vote.

Abad Santos, J., in the result.

De Castro, J., on sick leave.

---

^[1]
pp. 1-2, Original Record.

^[2] Appellee’s Brief, pp.1-4.

^[3]
Exhibit “D”, pp. 108-109, Original Record.

^[4]
Exhibit “E”, pp. 110-112, Original Record.

^[5] T.s.n., October
17, 1977, pp. 3, 9.

^[6] T.s.n., February 2,
1978, pp. 21-22.

^[7] T.s.n., September
15, 1978, p. 3.

^[8]
p. 9, Appellant’s Brief.

^[9]
Decision, p. 101, Original Record.

^[10] T.s.n., pp. February
28, 1978, pp. 122; 123; 130-132.

^[11]
People vs. Palencia,
71 SCRA 679 (1976); People vs. Madai Santalani, 93 SCRA 315 (1979).

^[12] T.s.n., February
28, 1978, pp. 20-21.

^[13]
Article 294(1), Revised Penal Code.

^[14]
People vs. Atanacio, et al., 110 Phil. 1032.

^[15]
Luis B. Reyes, Criminal Law, Book Two, Eleventh Edition, p. 594.

^[16] U.S.
vs. Villorente and Bislig,
30 Phil. 59 (1915).

^[17]
People vs. Geronimo, 53 SCRA 246 (1973).

^[18]
People vs. Manzano, 58 SCRA 251 (1974).

^[19]
p. 8, Decision.

^[20] T.s.n., September
14, 1978, pp. 24-25.

^[21] T.s.n., September
15, 1978, pp. 5-6.

^[22]
People vs. Boyles, 11 SCRA 89 (1964); People vs. Morales, 113
SCRA 683 (1982); People vs. Lagtu, 108 SCRA 84
(1981); People vs. Capillas, 108 SCRA 173
(1981); People vs. Coderes, 104 SCRA 255 (1981).

^[23]
People vs. Pardo, 79 Phil. 568-580 (1947).

^[24]
People vs. Capillas, 108 SCRA 173 (1981).

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