PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FELICITO TAWAT, JIMMY TARRAYA, NESTOR ROJO AND ROQUE BASE, ACCUSED, FELICITO TAWAT AND JIMMY TARRAYA, ACCUSED-APPELLANTS.

Roque Base, Nestor Rojo
and appellants Felicito Tawat
and Jimmy Tarraya were charged with the crime of
Robbery with Homicide and Frustrated Homicide in Criminal Case No. 906 of the then Court of First Instance of Catanduanes.  The
information against them reads as follows:

“That on or about the 30th day of November 1980, in the
evening, at Bugao, Bagamanoc,
Catanduanes, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together between November 24 to 29, 1980, and mutually aiding each other,
did then and there, wilfully, unlawfully and
feloniously with intent of gain and by means of force and violence upon the
persons of spouses Pedro Lim and Jovita Lim y Sesalem, to wit:  Felicito Tawat, Jimmy Tarraya and Nestor Rojo while
inside the store of Mr. and Mrs. Lim, Felicito Tawat suddenly and unexpectedly with intent to kill them,
stabbed Mrs. Jovita Lim on the vital parts of her
body, resulting in her instantaneous death, while at the same time Jimmy Tarraya hit Pedro Lim on the head with a piece of
wood,  resulting in his getting
unconscious, while Nestor Rojo remained by the door
guarding, and with intent of gain immediately emptied the store drawer which
contained money in the amount of P110.00 more or less, thereby performing all
acts which would produce murder, but which nevertheless did not produce it by
reason of causes independent of
the will of the accused, that is by the timely medical assistance rendered to
said Pedro Lim, which prevented his death.

“That in the commission of the said offense the following
aggravating circumstances were present:

“1.   evident
premeditation;

“2.   treachery;

3.   aid of armed men;

4.   superior strength;
and

5.   offense committed in
the dwelling of the offended party.” (pp. 20-21, Record)

The case against Roque Base was
dismissed upon motion of Prosecuting Fiscal Manuel Magistrado
on the ground that the evidence against said accused is insufficient “to secure his conviction
beyond reasonable doubt.” The remaining accused were
sentenced, as follows:

“WHEREFORE, in view of all the foregoing, this Court finds the
accused Felicito Tawat,
Jimmy Tarraya and Nesto Rojo GUILTY beyond reasonable doubt of the crime of Robbery
with Homicide and Frustrated Homicide, without any mitigating circumstance, but
with three (3) aggravating circumstances against them, namely:  treachery, evident premeditation and abuse of superior strength, except
minority as a privilege mitigating circumstance in so far as accused
Nestor Rojo is concerned, hereby imposes upon the
accused FELICITO TAWAT and JIMMY
TARRAYA the penalty of DEATH, and considering the privilege mitigating
circumstance of minority in favor of accused Nestor Rojo,
and in the light of the provision of Arts. 68 and 64(1) of the Revised Penal
Code, as well as the Indeterminate Sentence Law, hereby imposes upon the accused NESTOR ROJO the penalty of eight (8) years and
one (1) day of prision mayor medium, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal
medium, as maximum, and all the three accused to indemnify jointly and solidarily the heirs of the deceased Jovita
Sesalem Lim the sum of P12,000.00, and
P30,000.00 by way of damages, and also to indemnify jointly and solidarily Pedro Lim the sum of P6,000.00.” (pp.
216-217, Record)

Considering the penalty imposed upon accused Felicito
Tawat and Jimmy Tarraya,
the case against them is now before Us on automatic review.

The People’s version of
the facts is as follows:

“On November 30, 1980, at about 7:30 in the evening, while
Pedro Lim and his wife, Jovita, were tending their
store situated in barrio Bugao, Bagamanoc,
Catanduanes, defendants Nestor Rojo,
Jimmy Tarraya and Felicito Tawat arrived (p. 48, t.s.n.
July 8, 1981).  Rojo
entered the store first and bought a pack of “Boss” cigarettes (pp.
47-48, t.s.n. July 8, 1981). 
Soon thereafter, appellants Tawat and Tarraya entered the store, while Rojo
stood by the door of the store (p. 48, id.). 
Inside, Tarraya asked for a hat and a
flashlight bulb (p. 49, id.).  At
this time, both Tawat and Tarraya
were facing Pedro Lim who was situated at the inner part of the store but
separated from the two by a table about a meter wide (p. 50, id.).  Tawat was on the
left side of Tarraya and about one (1) foot away from
each other (p. 50, id.).  At the right
side of Pedro Lim about one (1) foot away from him was his wife, Mrs. Jovita
Lim, who was seated on the table but facing her husband (pp. 50-51), id.).  Tawat was opposite
Mrs. Lim and Tarraya directly facing Pedro Lim (p. 51,
id.).  The drawer of the table which
separated Tawat and Tarraya
from the spouses was the place where the sales of the day were kept (pp. 76-77,
t.s.n. July
9, 1981).  Before appellants
entered the store, Pedro Lim had already counted the contents of the drawer in
the amount of P110.00 (id.).

“While Tarraya was trying to fit the bulb on the
flashlight, Jovita suddenly screamed (p. 51,
id.).  Lim was taken aback when he saw a
sharp instrument, a dagger, being withdrawn by Tawat
from the right side below the right nipple of Mrs. Lim (p. 52, id.).  Without
ado, Tarraya hit Pedro Lim on the left side of the
head above the ear with a piece of wood which rendered him unconscious (p. 52,
id.).

“Afterwards, Rojo and appellants Tarraya and Tawat fled (pp.
54-55, t.s.n. Aug.
14, 1981).  In their haste,
the piece of wood was left inside the store,
while the bow gun, a slingshot with three arrows and a mask were left
outside the store (pp. 31-32, t.s.n. July 8, 1981).

“Hearing that there was trouble in Pedro Lim’s store, Lope de
Leon, a neighbor, proceeded to the store (pp. 29-30, t.s.n. March 24,
1981).  Near the gate, he saw
Jessie Lim, son of Pedro Lim, who had just arrived (p. 30, id.).  Both entered the store and saw Pedro Lim and
his wife, Jovita, both bleeding, lying prostrate on
the floor (p. 30, id.).  As Jessie Lim
was looking for a piece of cloth with which
to wipe the blood of his father, the former noticed the drawer of the table
wherein the sales of the day are kept, already open and empty (p. 17, t.s.n. March 23, 1981).

“Thereafter, Pedro Lim was rushed to the Viga Emergency
Hospital for treatment, while Mrs.
Lim, who was already dead, was brought
to the upper floor of the store (pp. 33-34, t.s.n. March
24, 1981).

“Dr. Elizabeth de Lima, Resident Physician of Viga Emergency Hospital who treated Pedro Lim of ‘stab wound 12 cm. 1 inch deep
scapula region, left’ and ‘lacerated wound, 5 cm. temporal region left’ (Exh. ‘I’), testified that if the above injuries of Pedro
Lim did not result in his death, it was due to timely medical attention (pp.
43-44, t.s.n. July
7, 1981).

“Dr. Carmen Ugel, Municipal
Health Officer of Panganiban, Catanduanes,
who performed the postmortem examination on the body of Mrs. Jovita Lim attributed
the victim’s death to ‘Hematorax, accumulation of
blood within the right half of the chest (Exh. ‘B’)
due to penetrating wound (Exh. ‘A‘)
caused by a sharp bladed instrument (p. 8, t.s.n.
March 13, 1981).

“About midnight on the same evening,
Pat. Felipe Villaflor of the Bagamanoc INP received
a report of the Bugao incident (p. 55, t.s.n. July 7, 1981). 
Upon being informed of the presence of three (3) suspicious looking
persons inside the passenger bus parked at Bagamanoc
town plaza, he immediately proceeded there with one Roberto Evangelista (p. 56,
id.).  When they
reached a distance of about three (3)
meters away from the bus, Pat. Villaflor saw appellant Tawat
and Rojo standing inside the back portion of the bus
while Tarraya was in the act of opening the back door
(p. 57, id.).  Thereafter, Tawat fled by jumping out of the bus through the window
followed by Tarraya who passed through the back door
(pp. 58, 61, id.).  Pat. Villaflor
pursued Tawat and in the process the latter’s hat and
jacket fell (pp. 60-61, 62, id.).  Soon
he gave up the chase, and, picking up the hat and jacket of Tawat,
went back to the bus, where he apprehended Rojo who
was left inside the bus and brought him to the Bagamanoc
Police Department (pp. 62, 63, 64, id.). 
When asked why he was with the two others who fled, Rojo
answered that they were companions in going to Bagamanoc
in order to stage a robbery holdup (p. 64, id.).

“As Tawat was running and could not
be apprehended, a policeman from San Miguel who came upon him shot him on the
leg (pp. 64-65, id.).  Thereafter, he was
brought to the Municipal building of Bagamanoc
(id.).  Upon learning of Tawat’s apprehension, Tarraya
surrendered to the barangay captain of Nursery, San
Miguel, who brought him also to the Police Department of Bagamanoc (p. 65, id.).

“When the three defendants were investigated by the Bagamanoc Police Force, they readily gave written
statements admitting their respective participation in the conspiracy among themselves (Exhs. ‘C’, ‘D’ & ‘G’). 
Their statements were taken down by the investigators after informing
them of their constitutional rights and sworn to before Judge Mendoza of the
Municipal Circuit Court of Panganiban, Catanduanes, after the latter had read aloud and explained
in the dialect each and every question and answer contained in the statements
(pp. 2-19, t.s.n. March 24, 1981).” (pp. 3-9, Appellee’s
Brief)

Appellant Felicito Tawat prays that the appealed decision be modified in that he should be convicted only of
the crime of homicide and slight physical injuries without any aggravating
circumstance; on the other hand, appellant Jimmy Tarraya
prays that he be acquitted considering the mitigating circumstance of provocation.

Tawat declared that since November
21, 1980 he was with
Jimmy Tarraya and Nestor Rojo
in the mountain of Maitang, San Miguel, Catanduanes, stripping abaca.  About 7:00
in the evening of November 30, 1980,
the three of them went to the seashore of Bugao to fish.  When he found
that the light coming from his flashlight was dim, he went alone to buy
flashlight bulb in the store of Pedro Lim, leaving Rojo
and Tarraya at the seashore about 15 meters
away.  He was choosing a bulb from among
those in the store when Pedro Lim
called him “suplado.” He answered back with
bad words and hit Lim on the right side of the head with the flashlight.  At
that juncture, Mrs. Lim tried to
help her husband.  Whereupon, he pulled
from his waist a weapon called
“supnit” which is used for stripping abaca
and stabbed Mrs. Lim several times. 
While leaving, he met Tarraya and Rojo by the door of the
store and the three of them escaped by walking from Bugao
to Bagamanoc which is 3 kilometers away.

He admitted having affixed his signatures on the prepared
statement (Exhibits “G“, “G-1“, “G-2” and “G-3“) after he had been maltreated.

Tarraya corroborated the testimony of Tawat, saying that he followed the latter after hearing the
scream of a woman.  He met Tawat
when the latter was leaving the store of Mr. Lim Tawat
informed him that there was an accident and that they better go home.  Thus, he, Tawat and
Rojo ran away.

He admitted his signatures on Exhibits “D” to
“D-3”, but, however, claimed that some of the contents of which were
not his because they were
already prepared and accomplished when given to him.

In their brief, appellants Tawat and Tarraya claimed that
the trial court erred (1) in finding that the special complex crime of robbery
with homicide was committed and that they were guilty thereof; (2) in finding
that they were also guilty of frustrated homicide; (3) in finding that there
was conspiracy among them; and (4) in
not appreciating the mitigating circumstance of voluntary surrender on the part
of Tarraya.

We reject the claim of the appellants.  When they were apprehended and brought to the
office of the Integrated National Police of Bagamanoc, Catanduanes, appellants disclosed their intention to rob the store of Pedro Lim following the plan that Tawat and Tarraya would enter the store and take the Money
while Rojo would
stay outside as a lookout.  When they
entered the store, Pedro Lim had just counted the contents of the drawer which at the time amounted to P110.00.  After the stabbing incident, Jesse Lim, son of
Pedro Lim and Lope de Leon, a neighbor, were the first to arrive and they
attended to the victims who were lying prostrate on the ground.  When Jesse Lim was looking for a piece of
cloth to wipe the blood of his father, he noticed that the drawer of the table
which contained the money was open and empty. 
It was at the hospital where Pedro Lim was taken for treatment that he
came to know about the loss of the money in the drawer.  The claim that appellants went to the store
of Pedro Lim for the purpose of buying flashlight bulb only is hard to believe
considering that the three were fully armed with a “supnit,”
a sling shot, a piece of wood and a
mask which were left by them in
the store in their haste to leave after the
incident.  It was the finding of the
trial court that ?

“x
x x with Rojo as the ‘look-out’, Tawat
stabbed several times Mrs. Jovita Lim, while Tarraya hit Pedro Lim with a piece of wood (Exh. ‘J’), which was left by him (Tarraya) in the store when he, Tawat
and Rojo fled, which was recovered on the following
morning by the police authorities, together with a mask (Exh.
‘K-12’), slingshot or bow-gun
(Exh. ‘K-8’), and three darts (Exhs.
‘K-9’, ‘K-10’ and ‘K-11’), but before the accused
fled, Tawat also stabbed Pedro Lim, who was then unconscious and then robbed the earnings of the day in the amount of
P110.00.  From the acts simultaneously
performed by Tawat, Tarraya and Rojo, conspiracy is very apparent.  This Court gives credence to the testimony of
Dr. Elizabeth de Lima of Viga Emergency Hospital that the wounds inflicted upon Pedro Lim, which consist of a 2 cm. 1-inch
deep stab wound on the leftside of the back of the
scapular region could have been caused by a sharp
pointed instrument, similar to the sketch drawn as Exh. ‘K’, and the
lacerated wound on the leftside of the head above the
ear or at the temporal region, could have been caused by a blunt instrument
like a piece of wood (Exh. ‘J’), and the wounds could
cause death, as a result of complications, if no medical attendance were
given.  Medical attendance, therefore,
prevented the death of Pedro Lim.

“The Court cannot give credence to the admission of accused Tawat in court that he alone is responsible for the death of Mrs. Jovita Lim and the near death of Pedro
Lim.  Accused Tawat
would like this Court to believe that Mrs. Lim allegedly rushed to help her
husband just after Mr. Lim was hit on the head with a flashlight by Tawat, then the latter transferred the flashlight to his
left hand and then pulled the ‘supnit‘ from his waist
with his right hand, but as the distance between them was too close (about a
meter away), there would have been no chance for Tawat
to transfer the flashlight from his right hand to his left hand and then pulled the weapon from his waist to stab
the on-rushing Mrs. Lim.  Since Tawat himself admitted that he stabbed Mrs. Lim several
times but can not remember the number of injuries he had inflicted, there was
sufficient time for Tawat and Tarraya
to inflict the many wounds upon both Mr. and Mrs. Lim and to rob the money from
the table’s drawer before they ran away.

“The testimonies of Pedro Lim and all the prosecution
witnesses all taken together, as narrated
above, aside from the confessions of the accused, are sufficient to prove the
guilt of the accused Tawat, Tarraya
and Rojo beyond
reasonable doubt of the crime of robbery with homicide and frustrated homicide
as charged in the information filed by the prosecution.” (pp. 45?47,
Rollo)

The trial court did not err in its finding that there was
conspiracy among the defendants as shown by their conduct before, during and
after the commission of the crime.  The
three – Tawat, Tarraya and Rojo – arrived
together at the store of Lim.  Rojo stayed at the door to act as a lookout as Tawat suddenly stabbed Mrs. Lim and Tarraya
attacked Pedro Lim.  Thereafter, they got
the money inside the drawer and fled to Bagamanoc.  Patrolman Villaflor
pursued them.  They were inside a bus
bound for Virac and upon seeing the peace officer, Tawat jumped out of the window, followed by Tarraya who passed through the back door.  Patrolman Villaflor
apprehended Rojo who was left inside the bus.  Eventually, Tawat
was arrested when another peace officer came upon him and shot him on the
leg.  When Tarraya
learned of Tawat’s apprehension, he gave himself up
to the Barangay Captain of Nursery, San Miguel.

Even if We do not consider the sworn
statements (Exhibits “C” to “C-3”, “D” to
“D-3” and “G” to “G-3“) of herein defendants, taken together as interlocking
confessions, there is sufficient evidence to sustain their convictions of the
crime charged, attended by the aggravating circumstances of treachery and
dwelling.  Thus, the death penalty was
properly imposed by the trial court. 
However, for lack of necessary votes, the same is reduced to reclusion perpetua.

WHEREFORE, the judgment appealed from is AFFIRMED with the modification that the death penalty is
reduced to reclusion perpetua.  Costs de oficio.

SO ORDERED.

Makasiar, Aquino,
Concepcion, Jr., Guerrero, Abad
Santos, De Castro, Melencio-Herrera, Plana, Escolin, and Gutierrez, Jr., JJ.,
concur.

Fernando, C.J., and
Teehankee, J., in the
result.