PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FELICISIMA BASILAN Y ABU, DEFENDANT-APPELLANT.

On March 15, 1984 at about 5:30 o’clock in the morning Rafael Abarico was walking by the Alpha Grocery store along San
Juan Street in Calapan, Oriental Mindoro
when he overheard the loud voice of a woman within the store saying, “Pag hindi mo ibinigay
ang hinihingi namin sa iyo
ay papatayin ka namin.”
Abarico stopped and peeped into the store through a
slit in the steel accordion door and saw two men holding the Chinese store
owner, Lim Wan, by the arms.  Felicisima Basilan stood in front
of Lim Wan pointing a finger at him while he was shaking his head.  Thereafter, one of the two men released Lim Wan’s arm and stabbed the Chinaman on the back.

Alarmed by what he saw, Abarico ran
across the street.  A few moments later,
he saw two men emerge from the store and run in the direction of the back of
the vice-governor’s house.  Felicisima Basilan then came out
closing the door behind her and hurriedly proceeded in the direction of the
public market.  In her haste, she slipped
and fell on the road.  However, she
recovered and proceeded on her way towards the market.  Because Abarico had
to see his sister in Calauang, he boarded a passenger
jeep and did not stay to report what he saw.

Lim Wan’s body was found on that same
morning.  The drawer of his desk was
pulled out and some small change lay scattered about the floor.  Ubaldo Pimentel,
the business partner of Lim Wan, found out later that some Five Hundred Pesos
left with Lim Wan the night before for settling an obligation
were gone.  Abarico
later told the authorities what he saw.

The municipal health officer of Calapan
who conducted an autopsy of the victim’s body found three penetrating stab
wounds on the victim’s chest and one stab wound on the back that did not quite
penetrate the body because the weapon was blocked by a bone of the spinal
column.  Internal hemorrhage resulted in
the death of the victim.^[1]

In due course, the provincial fiscal of Mindoro filed an information charging Felicisima Basilan y Abu, John
Doe and Peter Doe of the crime of Robbery with Homicide allegedly committed as
follows:

“That on or about the 15th day of March, 1981, at around 5:30
o’clock in the morning, in the Pablacion (San
Vicente), municipality of Calapan, Province of
Oriental Mindoro, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, with intent of
gain, conspiring, confederating and mutually helping one another, thru and with
the use of violence against or intimidation of person, that was, after having
ganged-up and stabbed one Lim Wan, a Chinese business man resulting in his
sudden and unexpected demise, did then and there wilfully,
unlawfully and feloniously take, steal and carry away cash money in the amount
of FIVE HUNDRED (P500.00) PESOS, Philippine Currency, belonging to and owned by
the same business man to the damage and prejudice of the latter’s heirs.

That in the commission of the crime the aggravating circumstances
of nighttime and dwelling were present.

Contrary to Article 294 of the Revised Penal
Code.”^[2]

Only the accused Felicisima Basilan submitted to the jurisdiction of the court while
the two other accused remained at large. 
Upon arraignment, she entered a plea of not guilty and thereafter the
trial on the merits proceeded.

On May 19, 1983, after the trial on the merits, the trial court
rendered a decision convicting the accused of the offense charged, imposing on
her the penalty of reclusion perpetua,
to indemnify the lawful heirs of the deceased Lim Wan in the amount of
TWELVE THOUSAND PESOS (P12,000.00), in addition, to
pay said heirs the amount of FIFTY ONE THOUSAND NINE HUNDRED TWENTY PESOS
(P51,920.00), as actual and compensatory damages and to pay the costs.  It was further directed in the same decision
that the law enforcing agencies should
exert efforts to locate the two unidentified accused so that they may be held
accountable for their acts.

Not satisfied therewith,
the accused brought this appeal on certiorari alleging that the trial
court committed the following assigned errors:

I.      THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING HEREIN
APPELLANT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE.

II.     THE TESTIMONIES OF ALLEGED EYEWITNESS RAFAEL ABARICO AND WITNESS
UBALDO PIMENTEL ARE FULL OF INCONSISTENCIES, CONTRADICTIONS, AND THEREFORE
UNRELIABLE AND INCREDIBLE.  HENCE THE
TRIAL COURT GRAVELY ERRED IN CONVICTING HEREIN APPELLANT, ON THE BASIS OF SUCH
TESTIMONIES.

III.     THE TRIAL COURT GRAVELY ERRED IN CONVICTING
HEREIN APPELLANT WITH THE CRIME OF MURDER WHICH IS DIFFERENT AND DISTINCT FROM
THE CRIME OF ROBBERY WITH HOMICIDE, THE CRIME CHARGED IN THE INFORMATION.^[3]

The first and second assigned errors are without merit.  The
testimony of Rafael Abarico is corroborated in
certain points by other evidence.  His
statement that he saw the victim, as he was stabbed at the back is corroborated
by the necropsy reports^[4] prepared by Dr. Carlos Adeva
after an examination of the body of the victim Lim Wan, which reads in part,
thus:

“POST MORTEM
FINDINGS:

THORAX:

1. 
x x x x x

2. 
x x x x x

3. 
x x x x x

BACK:

4.  Stab wound- 1 1/2 inches long, 2 inches deep,
directed supero-medially, 1 cm from the midline,
left, level of the superior border of the scapular bone.

CAUSE OF DEATH:

x x x x x“^[5]

Appellant maintains that it is improbable for Abarico
to have been at or near the Alpha
Grocery at the time of the commission of the crime since the holy mass began at
5:30 o’clock in the morning and
it lasted for about an hour and
that “it would be unchristian-like for catholic Abarico,
to short-change his obligation to God”^[6]
by leaving for Calauang before the mass is completed.  Abarico testified,
however, that he felt compelled to leave church early because his sister expected him at Calauang.

Appellant then suggests that
there is a possibility that the angry words that Abarico
heard may have been uttered by another woman, i.e. a certain
Anita Abas who, according to defense witness Morita
De la Cruz also resides in the Alpha Grocery. 
However, the records show that Morita De la Cruz resides in Tondo, Manila
and that she never stayed in Calapan.  Furthermore, the testimony of Morita cannot
prevail over that of Ubaldo Pimentel, a co-owner of the Alpha Grocery, who would have known if
there was indeed another occupant therein besides Lim Wan.  In fact, appellant herself asserted that she
did not see any other woman at the time she was in the store.  This fact was also confirmed by Abarico during the
trial.

To further discredit the
testimony of Abarico, the appellant calls the attention of the court to
the fact that his testimony is full of coincidences such that he happened to
pass in front of the store when the slaying occurred and later on, he happened
to overhear two policemen discussing the results of the investigation when he
decided to report what he had witnessed. 
Appellant argues that it is hard to believe that a witness would just be
at the proper places at those times.

This contention is bereft of merit.  The two events mentioned by the appellant
occurred a month apart and should not be taken together.  What is clear is that Abarico
was an eyewitness to the commission of the crime and that when he learned that the crime had not been solved
for some time, he volunteered the information.

Appellant maintains that the shaking of the head of Lim Wan at
the time he was confronted by the three accused including appellant herein,
manifests a willingness on his part to give what his assailants were demanding
from him.  Hence, according to appellant,
the charge of robbery with homicide can not prosper since it is unlikely that
the victim would be stabbed after he agreed to yield to their demands.

This argument is untenable. 
Common experience shows that one nods his head in agreement and shakes
his head as a sign of refusal.  The
argument of the appellant runs counter to
human experience.

Thus, the court finds no
reason to disregard the testimony of Abarico as
proposed by appellant even if he is the sole eyewitness.  Well established is the rule that the
testimony of only one witness, if credible and positive, is sufficient to
convict.^[7] The trial court characterized Abarico as a “fine young boy, intelligent and very
humble in person.”^[8] His testimony is positive as he affirmed
that the crime was indeed committed. 
Furthermore, there appears no underlying motive for Abarico
to concoct such a story.  It is a basic
principle in the law on evidence that in the absence of improper motive to
testify against the accused, the testimony of such a witness must be given full
faith and credence.

The delay in reporting
what he had seen to the police authorities is quite understandable for a young
boy of 16 years.  He naturally feared for
his own life and did not want his name dragged into a criminal investigation
especially since he is aware of what the malefactors are capable of
doing.  This is consistent with the
ruling of this Court in People v. Catao^[9] wherein it was held that “delay of a
witness in revealing to the authorities what he knows about a crime does not
render his testimony false, for the delay may be explained by the natural
reticence of most people and their abhorrence to get involved in a criminal
case.  But more than this, there is
always the inherent fear of reprisal, which is quite understandable
especially if the accused is a man of power and influence in the
community”12

In contrast, it is the testimony of the appellant which is not
credible.  She alleged that she did not
hear anything unusual while she was inside the toilet since the same is about
10 meters away from the place where Lim Wan was killed.  An ocular inspection of the crime scene
showed that the distance between the toilet and the table of Lim Wan is 4 meters only.  After the incident, appellant stated she lost
her nerve and ran hastily to the public market. 
And yet she first collected her things – a bag and thermos bottle.  She even changed her clothing before informing
the shops next door about the slaying. 
This is unnatural of a woman in distress.  Her actions in fact betray her complicity in
the crime.

The Court affirms the finding of the trial court that there was
indeed conspiracy between the accused Felicisima Basilan and the two other malefactors.  The fact that the appellant uttered the
treacherous remark that the victim would be killed if he did not comply with
their demands while her two unidentified companions held him on both sides;
that the threat she made was accomplished when her two companions stabbed the
victim; and thereafter, the three (3) fled from the scene of the crime; all these demonstrate a concerted effort to commit the offense
charged.

Having established the
existence of a conspiracy, the
trial court committed no error when it held the accused responsible for the
killing of the victim Lim Wan.  Although
no person could positively say that he saw the appellant inflict a stab wound on the victim herself, conspiracy having been established, the
act of one is deemed the act of all.

With respect to the third assignment of error, this Court agrees
with the appellant that the information does not allege any qualifying
circumstance that would justify a conviction for murder.  The information describes the offense of
robbery with homicide.  Although there
was evidence of such aggravating circumstances that may qualify the crime of
homicide to murder, the appellant cannot accordingly be convicted for murder without
transgressing the constitutional injunction that an accused should be informed
of the nature and cause of the accusation against him.11 However, the evidence supports a conviction for
attempted robbery with homicide.  When the accused uttered the words
“Pag hindi mo ibinigay ang hinihingi
namin sa iyo ay papatayin ka namin,” it clearly appears that appellant and her
companions had the intention of robbing the victim and were bent on resorting
to violent means to attain their devious ends. 
It could have been the P500.00 which Ubaldo
Pimentel left with the victim the previous night, or some other valuables, or
perhaps, even some merchandise.  Since
there is no proof or reasonable certainty that anything was successfully taken
from the deceased, the appellant should be convicted only of attempted robbery
with homicide penalized under Article 297 of the Revised Penal Code.  The threat she made is sufficient to
establish her attempt to rob the victim.

In People vs. Carunungan,12 this Court found the accused guilty of attempted robbery with
homicide when the accused demanded that the occupants of the house bring out
their money, an overt act which would lead to the commission of the robbery.

WHEREFORE, premises considered, the decision appealed from
is hereby modified in that the appellant is found guilty of the crime of
attempted robbery with homicide and he is thereby imposed the indeterminate
penalty of imprisonment of twelve (12) years
and one (1) day of reclusion temporal as
minimum, to twenty (20) years, also of
reclusion temporal as maximum, and the indemnity to the
heirs of the deceased is increased to P30,000.00, with
costs against appellant.  The decision is
AFFIRMED in all other respects.  No
costs.

SO ORDERED.

Narvasa, (Chairman), Cruz, Griño-Aquino, and Medialdea, JJ., concur.

^[1]
Exhibits A and B; TSN, Sept. 10, 1981,
pages 14-18.

^[2]
Page 7, Rollo.

^[3]
Page 66, Rollo.

^[4]
Exhibit A.

^[5]
Page 9, Rollo.

^[6]
Pages 33-36, Rollo.

^[7]
People vs. Marasigan, 85 Phil. 427 (1950).

^[8]
Page 28, Rollo.

^[9]
107 Phil. 861 (1960).

12 Ibid.

11 Section
14(2), Article III, Constitution.

12 109
Phil. 534 (1960).