PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DANILO BADILLA Y ONES ALIAS DODONG, ACCUSED-APPELLANT.

This is an appeal from the decision of the Regional Trial Court
of Bohol, Branch 3, the dispositive
portion of which reads:

“WHEREFORE, in view of
the foregoing considerations, judgment is hereby rendered finding
accused Danilo Badilla y Oñes alias Dodong guilty beyond
reasonable doubt of the crime of Robbery with Homicide allegedly committed in
the manner and under the circumstances described in the aforequoted
information and as penalized under the provisions of Article 294 of the Revised
Penal Code and taking into account three aggravating circumstances alleged in the aforequoted
information which is offset by one mitigating circumstance, the Court hereby
sentences accused Danilo Badilla
y Oñes alias Dodong the
penalty of DEATH and to indemnify the heirs of Nestora
Horohoro the sum
of P12,000.00 without subsidiary imprisonment in case of insolvency therefor pursuant to and in accordance with the provisions
of Art. 39 of the Revised Penal Code as amended by RA 5465 and to pay the costs
of the proceedings.

The weapons used in the commission of the crime namely one
stainless knife with white handle
and two pieces of broken pestle are ordered confiscated in favor of the government,
and the one rota air electric fan marked Exhibit B
and the radio cassette (Exh. A) Dynamic Sound, are
ordered returned to the heirs of Nestora Horohoro.”  (Original Record, pp. 55-56)

The prosecution evidence upon which the trial court based its
finding of guilt beyond reasonable doubt is summarized as follows:

“The first witness of the prosecution was Ruth Torrefranca, 10 years old, single, Grade V, student of Cogon Elementary School,
Tagbilaran City, who testified that on July 18, 1984, in the morning she was at home
in their house at Calceta Street, Tagbilaran
City together with her aunt Nestora Horohoro.  The owner
of the house where they live is Praxedes Quidang who at that time was in Manila.  That she knows accused Danilo Badilla (witness pointing
to the accused in the courtroom). 
In the whole morning of July
18, 1984 she was in school from 7:00
o’clock in the morning to past 11:00
o’clock.  In the afternoon
she went back to school but at about 2:00
in the afternoon of the aforementioned date somebody went to school to her
classroom and informed her of the incident that happened to her aunt Nestora Horohoro.  Before that incident when she returned home
at 11:00 o’clock Nestora
Horohoro and Danilo Badilla were with them. 
They ate lunch together in the said house.  After lunch she left for school and at about 2:00 in the same afternoon somebody informed
her that her aunt Nestera Horohoro
died.  She went home due to said
information.  When she arrived home she
noticed that the radio cassette and rota air Electric
fan were already gone.  These two
aforementioned things were placed near the TV set and that Nestora
Horohoro was already dead lying
face down bathed in her own blood
at the porch where she was sweeping when she (Ruth Torrefranca)
left for school after lunch.  Nestora Horohoro was already dead
when she arrived.  The radio cassette was shown to her in the
trial by the prosecuting fiscal
and was identified by her to be
the same radio cassette near the TV set in the sala
of Praxedes Quidang where
she lives and said radio cassette was marked Exhibit “A”.  The rota air
electric fan presented by the prosecution was also identified by her to be the
same rota air electric fan that was placed near the
TV set of the house of Praxedes Quidang and the
prosecution marked said rota air electric fan as
Exhibit “B”.  On cross-examination she declared that
before the death of Nestora Horohoro
on July 18, 1984, he (sic)
saw Danilo Badilla the
accused visit the house of Praxedes Quidang three times. 
However, she did not know the
reason why Danilo Badilla
visited Nestora Horohoro
because at that time she did not know yet that the accused is a relative of Nestora Horohoro.

The next witness of
the prosecution was Erica Requina, 45 years old,
married, beautician, resident of Calceta St., Tagbilaran City, who declared that she knows accused Danilo Badilla (witness pointing
to accused in the courtroom).  She knew Nestora Horohoro being a niece of Praxedes Quidang who lives in the house of the latter.  The house of Praxedes
Quidang is located at Calceta St., City of Tagbilaran which is adjacent to
her (Erica) house.  Her house and the
house of Praxedes
Quidang are separated by a fence.  On July
18, 1984 at past 1:00 o’clock
in the afternoon she was at home with her husband.  When she was about to go out from her house,
she heard a sound of the gate in
the house of Praxedes Quidang.  She went out and verified what was it and
there she saw Danilo Badilla
going out of the gate bringing a radio cassette and rota
air electric fan.  This Danilo Badilla is the accused in
this Case which she identified during the trial to be the same Danilo Badilla whom she saw
bringing the radio cassette and rota air electric
fan.  After seeing the accused bringing rota air electric fan and radio cassette, she went to the
gate of the house of Praxedes Quidang
and called for Nestora Horohoro
but nobody answered.  So she went inside
the gate to verify whether Nestora Horohoro was washing clothes but instead she saw Nestora Horohoro lying dead bathed
in her own blood.  In view of the
situation that she saw, she awoke her husband and told her husband to call for
the police.  At first she wanted to call
the police at Socias residence nearby but the
telephone was busy so she rode a pedicab towards the Tagbilaran City
police station and reported the matter to the police.  When she reached the police station, the
police already knew about the incident because somebody had already reported
the matter, therefore she went back home riding in the police jeep with Pat. Balatero.  She declared that she saw the rota air electric fan and radio cassette brought by accused Badilla
because she visits the house of Praxedes Quidang almost everyday as they are neighbors.  She
identified the radio cassette and rota air electric
fan in the trial to be the same rota air electric
fan and radio cassette placed in the house of Praxedes
Quidang which were brought by the accused.

The next witness of the prosecution, was Joseph Lim, 33 years old,
married, businessman and resident of CPG Avenue, Tagbilaran
City who declared that he knows accused Danilo Badilla (witness pointing to accused in the
courtroom).  That as businessman he is
engaged in the sale of hardware and groceries and his place of business
establishment is at the old post office building, CPG
Avenue, Tagbilaran City.  The name of his store is Tagbilaran
Champion Enterprise.  At about 8:00 o’clock in the morning of July 18, 1984 he was at his
store.  While in his store a certain
person approached him and offered to sell
a radio cassette and a rota air electric
fan.  He told the person to bring the
said items because he would see if he would like it.  That person wanted to sell the two
aforementioned items promised to come back at about 2:00 P.M. and after that the person went away.  After the person left he called the radio
station DYRD and inquired the radio station if somebody has lost a radio
cassette and rota air electric fan because he usually
hears from said radio station about some person who lost things like radio
cassette.  But the radio station DYRD
advised him to call a police station at Tagbilaran City
and so he called for the police.  The
police with whom he conversed on the telephone told him that the police would
go to his store.  At about 9:00
in the morning of that day there were policemen who arrived at his store.  The policemen stayed nearby his store until
past 1:00 o’clock in the afternoon of said day.  At past 1:00
in the afternoon of the same date the person who introduced to him that he
would sell radio cassette and electric fan arrived in his store.  While the said person was in his store the two policemen were
also inside his store.  Right there he asked the person about
the price of the two items and the answer of said person it was P3,000.00.  This person
who was selling the two items was called by the policemen and was asked about
the last price of said items, and the person answered it is P3,000.00.  After that
he (accused) was asked by the police who were then in plain clothes as to where
he got the radio cassette and rota air and the answer
of that person it was given to him by his brother.  Then the police told the person that he would
be investigated and this person was later on known to be Danilo
Badilla who was identified by him (Joseph Lim) in the trial of the case to be the same
person who went to his store to sell radio cassette and rota
air.  He identified the radio cassette to
be colored black, Sanyo Dynamic Sound which he identified in the trial and marked Exhibit A and
likewise she (sic) identified the rota air to be
light brown in color.  Later on he
learned from the police station that somebody died.  He did not know how the accused Danilo Badilla got those radio
cassette and rota air.

On cross-examination Joseph Lim declared that when Danilo Badilla went to his store at 1:00 in the
afternoon of July 18, 1984
bringing the radio cassette and rota air electric fan
he noticed that there was a small wound on his index finger.  He forget whether it
was long (sic) or right index
finger.

The next witness for the prosecution was Teofano
Ordidor, patrolman of the Tagbilaran
Police Station, who declared that he had been with the Tagbilaran
Police Station as patrolman for 16 years up to the present.  That on
July 18, 1984 in the morning while in the police
station he was called by Capt. Absalon, then the
station commander, to conduct surveillance at Champion Enterprises because
there was a person who offered to sell a
radio cassette and electric fan. 
In compliance with the said order of their station commander he and Pfc.
Zamora went to the Champion Enterprises located at CPG North, Tagbilaran City.  The owner of the said store is Joseph
Lim.  They asked Joseph Lim if it is true
that there was a person who offered to sell a radio cassette and electric fan
to him and Joseph Lim answered Yes.  Joseph Lim informed them that that person who
offered to sell the aforementioned items would come back to his store.  When the person came back to the Champion
Enterprises at about past noon time
he and Pat. Zamora were already in the store, while Joseph Lim and accused Danilo Badilla (the person who
offered to sell the aforementioned items) were negotiating for the price of the
said items, they were listening.  And
they heard that Danilo Badilla
would sell the item for P3,000.00
to Joseph Lim.  After that he held the
shoulder of Danilo Badilla
and introduced themselves to be policemen because they were then in plain clothes.  They invited the accused to go with them to the police station for questioning because the items he
brought to Champion Enterprises were questionable.  Pat. Ordidor
identified the radio cassette recorder (Dynamic Sound) marked Exhibit
“A”:  and the rota air electric fan (Super King) as Exhibit B.  He was able to identify the two items because
there was an initial of Pat. Eugenio Zamora in the radio cassette marked Exhibit 2
(should be A) as well as in the rota air electric fan.  Thereafter, they rode on a motorcycle and
brought the accused to the police station. 
They noticed that the right little finger of the accused was with
bandage which was stained with blood.  At
the police station they conducted investigation on the accused.  The piece
of cloth (bandage) which was the cover of the little finger of the accused was
removed and said piece of cloth was identified by him to be the same bandage
marked Exhibit D.

The next witness of the prosecution was Dr. Marcial
Escobia, Jr., 31 years old, resident physician of the
Celestino Gallares Memorial
Hospital, Tagbilaran City,
who declared that on July 18, 1984
he examined the dead body of Nestora Horohoro.  After
examining said deceased body, he issued a postmortem certificate of death
marked Exhibit E and the back of the said certificate is a postmortem
certificate marked Exhibit E-1 which he both identified during the trial.  Atty. Migriño, Jr., admits that the entry in the post
mortem certificate is correct, after Dr. Escobia
compared the said certificate with the records of the hospital.  The post mortem certificate is signed by Dr.
Jones of the Tagbilaran City
Hospital because the dead body of Nestora Horohoro was brought to
the City Hospital of Tagbilaran.  However, they received the request from the INP
Tagbilaran City
to conduct autopsy on the deceased body
of Nestora Horohoro
and after which he issued an autopsy report marked Exhibit F but it was signed
by Dr. Jones because as already said the dead body was brought to the Tagbilaran City
Hospital.  Dr. Escobia
declared that the dead body of Nestora Horohoro showed the following:

“MULTIPLE LACERATED WOUNDS:

2 CM. LEFT FRONTAL

2.5 CM. RIGHT FRONTO
TEMPORAL

INCISED WOUND – 2 CM ANGLE
OF THE LEFT JAW BELOW THE LEFT EAR

STAB WOUNDS:

1 CM. LEFT CHEEK

1 CM. MISTERNUM, 4TH INTERCOSTAL SPACE,
PENETRATING THORACIC CAVITY, LACERATING RIGHT LUNG

1
CM. MIDCLAVICULAR, 2ND INTERCOSTAL SPACE PENETRATING, LACERATING LEFT
LUNG

1 CM. LEFT 5TH
INTERCOSTAL SPACE MIDCLAVICULAR LUNG, PENETRATING THORACIC CAVITY, LACERATING
LEFT LUNG.

1 CM. LEFT 7TH INTERCOSTAL SPACE,
MIDAXILLARY LINE

1 CM. RIGHT PARASTERNAL, 3RD
INTERCOSTAL SPACE

1 CM. RIGHT
MIDAXILLARY LINE, 4TH INTERCOSTAL SPACE PENETRATING THORACIC CAVITY, LACERATING
RIGHT LUNG.

1 CM. RIGHT POSTERIOR AXILLARY LINE,
4TH INTERCOSTAL SPACE MIDVERTEBRAL AREA

1 CM. 3RD RIGHT INTERCOSTAL SPACE
PARAVERTEBRAL AREA

1 CM. 4TH LEFT INTERCOSTAL SPACE,
PARAVERTEBRAL AREA

1 CM. 6TH RIGHT INTERCOSTAL SPACE,
PARAVERTEBRAL AREA

1
CM. 7TH LEFT INTERCOSTAL SPACE, PARAVERTEBRAL AREA

1 CM. 8TH LEFT INTERCOSTAL SPACE,
PARAVERTEBRAL AREA

1 CM. LEFT HAND

1 CM. LEFT FOREARM

HEMOTHORAX, SECONDARY TO PENETRATING STAB
WOUNDS OF THE APPROXIMATELY 60 cc EACH PLEURAL CAVITY ABRASIONS – NECK, FACE,
ANTERIOR CHEST

                              (SGD.)  MARCIAL M. ESCOBIA, JR.

                                           
Medico Legal Officer”

According to Dr. Escobia the lacerated
wound right side of the forehead
and temple of the head of the said victim may be caused by blunt object.  It could have been caused by wooden pole
which was shown to Dr. Escobia during the trial which
was already marked Exhibit G (long broken pole) and G-1 (short broken
pole).  The incised wound in the body of
the victim may be caused or inflicted with knife.  And when shown the knife (Exh. H) Dr. Escobia said
it is possible that said knife may have been the instrument used in inflicting
the incised wound on said victim.  The
victim Nestora Horohoro
sustained fifteen (15) stab wounds.  The
cause of death was due to hemorrhage and collapse of the lungs because the
wound penetrated the lungs of the victim. 
There were four wounds which penetrated the lungs of the victim.

The next witness of the prosecution Pat. Erlende Bantugan, Tagbilaran Police Station, who declared that on July 18,
1984 at about past 12:00 he was at the police station of Tagbilaran
City.  While in said station a certain
Rica Requina requested
them to go with her to the residence of Praxedes
Quidang because they (sic) saw a dead person.  He and Pat. Suaybaguio went with Requina to
the aforementioned house at Calceta
St., Tagbilaran
City.  When they arrived at the
said house Pat. Oppus also arrived and they
cordoned the area to prevent persons from getting inside.  When they went inside the compound where the
house is located they saw a person lying face on the ground and they also
noticed a broken pestle situated near the body of the victim who was lying on
the pool of blood.  The broken pestle was
marked Exhibit G and G-1.  He could still
identify the two pieces of broken pestle because he inscribed at the tip of the
long broken pestle the letters EEB and another initial on the shorter broken pestle letters EEB which means Erlende E. Bantugan.  Thereafter, he requested Pat. Oppus to contact
the Fiscal and the doctor to conduct an inquest.  Later on,
Fiscal Geulen, Jr. and a photographer
arrived.  He requested the photographer
to take pictures of the victim.  When
Fiscal Geulen rolled the body of the victim to face up they found a knife underneath
which knife was identified by him in the trial marked Exhibit H.  He could identify the said knife because he
placed initial on the tip of the
knife at the time of the investigation letters
EEB which means Erlende E. Bantugan.  After Fiscal Geulen inspected the body of the victim, the body of the said victim was brought to the funeral
parlor.  When they entered the door of
the house there was a drop of fresh blood coming from the kitchen door to the sala and they saw a piece
of cloth with blood stain near
the door of the comfort room and this bloodstained cloth was marked Exhibit 1 (should be
I) which he identified to be the same cloth found near the door of the comfort
room.  Afterwards when he went to the sala of the house
he saw a portion of a piece of cloth taken from the handkerchief which portion
was marked Exhibit J.  After that the
father of the victim in the person of Amadeo Horohoro informed them that the rota
air electric fan and radio
cassette, in the house were lost.  The
photographs taken by the Ramasola Superstudio
photographer which took pictures of the victim
were marked as Exhibits L, L-1, L-2 and L-3 and the pool of blood
in Exhibit L is marked Exhibit L – (a). 
(Original Record, pp. 46-51)

The version of the defense is shown in the testimony of the
accused-appellant.  It is summarized as follows:

“Danilo Badilla,
21 years old single, jobless, temporarily residing at barrio Bood, Maribojoc, Bohol who declared that he is a resident of
the Municipality of Calamba, Misamis
Occidental but he is on vacation, that is why he stayed at barangay Bood,
Maribojoc, Bohol.  His parents are from Calamba,
Misamis Occidental and both still alive.  He arrived in barrio Bood
last June 1984 and stayed in the house of his uncle.  He also remembered that upon his arraignment
in this case he pleaded Guilty.  Before July 18, 1984 he already knew Nestora Horohoro because she was
his relative being related to his mother. 
The surname of his mother is Oñes.  Before July 18, 1984 he already saw Nestora
Horohoro at her
residence in the house of Quidang at Calceta Street, Tagbilaran City.  He had gone
to the house of Praxedes Quidang
three times.  When he first visited Nestora Horohoro in the residence
of Quidang he wanted to borrow money from Nestora Horohoro but the latter
did not lend him money.  However, he
stayed in the house of Quidang for four hours.  When he left the house of Quidang
Nestora Horohoro told him
to come back.  He came back for the second time to the house of Quidang just to visit but he did not borrow money anymore
from Nestora Horohoro.  The third time he visited Nestora
Horohoro at the house of Quidang
his purpose was to borrow the radio cassette recorder in the house of Quidang because he would bring it to the sea.  The
radio cassette exhibited by the prosecution was the same radio cassette he
borrowed from Nestora Horohoro.  He did not bring the radio cassette recorder
after Nestora Horohoro
agreed but he went first to contact one Joseph Lim at the Champion Enterprises
because he had planned to pledge the radio cassette recorder to Joseph Lim for
P500.00 so that the money could
be used for his daily expenses.  He
contacted Joseph Lim at the Tagbilaran Champion
Enterprises but at that time he did not know Joseph Lim yet.  However, he noticed that Joseph Lim store had
radio cassette for sale and he thought that Joseph Lim would be interested to buy a radio cassette recorder.  After contacting Joseph Lim the latter told
him to go, back to the store
because he would examine first the item. 
Then he went back to the house where Nestora Horohoro was residing. 
When he arrived at the house of Quidang where Nestora Horohoro was residing he
did not get at once the radio cassette recorder.  He first listened to the drama through the
radio at the house of Quidang.  Then he took his lunch with Nestora Horohoro at Quidang’s house. 
After lunch Nestora Horohoro
was cleaning at the back portion of their kitchen and he also helped.  At that time Nestora
Horohoro’s companion was a small girl.  Later on the small girl went to school.  After that Nestora Horohora was treaming (sic) the
grasses with a bolo.  While she was treaming (sic) the grasses it was already about 2:00 o’clock
in the afternoon and it was almost time
to go to the sea.  He told Nestora Horohoro that he was
leaving and that he will bring the radio cassette but Nestora
Horohoro refused. 
He went near to Nestora Horohoro
but he was pushed by Nestora.  At that time Nestora
Horohoro got angry and she refused to lend the radio
cassette.  He approached again Nestora Horohoro but she
shouted.  He told her not to shout for
there might be neighbors who could hear them but she kept on shouting.  And so he tried to cover her mouth with his
hand and so it happened that his
little finger was placed in the
mouth of Nestora Horohoro
and she bit it while he pulled his finger away. 
He told Nestora Horohoro
not to bite his finger and he asked her to release it.  And he told Nestora
that he is no longer borrowing the radio cassette.  He was able to pull by force his finger out
from the mouth of Nestora Horohoro.  When he saw that his finger was bleeding
because of the bite of Nestora Horohoro’s
teeth, he felt obfuscated so he held his knife and stabbed Nestora
Horohoro.  He
cannot remember how many times he
stabbed Nestora Horohoro
but he had no intention to kill her. 
Because he thought that Nestora Horohoro was already dead he decided to bring the rota air electric fan and radio cassette recorder inside
the house of Praxedes Quidang
where Nestora Horohoro was
residing because his plan was to use the proceeds of said item for his
fare.  He identified the small piece of
cloth marked Exhibit D for the prosecution which was bloodstained and he told
the court that, that is the same cloth that he bound
around his finger that was bleeding.  Then he left the house of Quidang
and brought the radio cassette recorder and the rota
air electric fan and proceeded to
the Champion Enterprises.  He declared
also that the broken pestle marked Exhibits G and G-1 for the prosecution was
already broken when he was there and he did not use said pestle against Nestora Horohoro.  At the time he stabbed Nestora
Horohoro, the bolo used by Nestora
Horohoro in treaming (sic)
the grass was stuck in the banana plant but Nestora Horohoro did not use said bolo against him although Nestora Horohoro attempted to reach for the bolo but he tried to hold her hands.  The knife marked Exhibit H of the prosecution
was identified by him to be the same knife he used in stabbing Nestora Horohoro.  He had that knife during that occasion
because he was planning to go with his friends to the sea and eat raw fish locally called ‘kinilaw’.  On
cross-examination, accused Danilo Badilla
declared that he went to the house of Praxedes Quidang where Nestora Horohoro was residing in
1984 for the first time.  At that
time he did not know yet Nestora Horohoro
but he introduced himself to her.  He was first
looking for Praxedes Quidang
but she was not there so he borrowed
money from Nestora Horohoro.  He is acquainted with Praxedes
Quidang the owner of the house where Nestora Horohoro is residing
because Praxedes Quidang
and Nestora Horohoro are
his relatives.  He further declared on
cross-examination that his purpose to borrow the radio cassette recorder on July 18,
1984 was to pledge it
to Joseph Lim.  After lunch on July 18,
1984 Nestora Horohoro refused to lend
him the said radio cassette.  On further
cross-examination accused answered that the knife (Exh.
H) which was exhibited
by the prosecution was bent because of the force he used when he stabbed Nestora Horohoro.  (Original Record, pp. 51-53)

The accused raises the
following assignment of errors in his appeal, to wit:

I

THE TRIAL COURT ERRED IN NOT HOLDING THAT
THE INFORMATION FAILED TO AVER THE COMMISSION OF THE OFFENSE OF ROBBERY WITH
HOMICIDE AS DEFINED IN ARTICLE 294 OF THE REVISED PENAL CODE.

II

ASSUMING ARGUENDO THAT
THERE WAS ROBBERY COMMITTED, THE TRIAL COURT ERRED IN FINDING THAT THE KILLING
WAS COMMITTED AS A CONSEQUENCE OF OR ON
THE OCCASION OF THE ROBBERY.

III

THE TRIAL COURT ERRED IN ADMITTING IN
EVIDENCE THE POST-MORTEM CERTIFICATE, EXHIBIT “E”, AND THE AUTOPSY
REPORT, EXHIBIT “F”, WHICH WERE PREPARED
AND SIGNED BY DR. ALBERT JONES, BUT WHO WAS NOT PRESENTED AS A WITNESS.

IV

THE TRIAL COURT ERRED IN FINDING THAT THE
CRIME WAS COMMITTED WITH TREACHERY, OBVIOUS UNGRATEFULNESS AND DWELLING.

V

THE TRIAL COURT ERRED IN IMPOSING THE DEATH
PENALTY, WHICH HAS BEEN DECLARED UNCONSTITUTIONAL
UNDER THE 1973 AND THE FREEDOM CONSTITUTIONS.

VI

THE TRIAL COURT ERRED IN NOT FINDING THAT
THE OFFENSE COMMITTED IS SIMPLE HOMICIDE WITH THE MITIGATING CIRCUMSTANCES
OF PLEA OF GUILTY AND LACK OF INTENTION TO COMMIT SO GRAVE A WRONG AND WITH NO
OFFSETTING AGGRAVATING CIRCUMSTANCES. 
(Appellant’s Brief, pp. 1-3)

Two trials were conducted in this case.  During the initial proceedings, the accused was
arraigned.  He pleaded guilty to the offense charged. 
As a result of this plea of guilty, the accused was sentenced to death
by the lower court on October 31, 1984.  In
an automatic review of the foregoing decision, this Court gave the accused a fuller
opportunity to re-examine his plea of guilt, set aside the judgment under
automatic review and ordered the case to be remanded to the trial court for
further proceedings on September 11, 1985.  The
questioned March 3, 1986 decision of the trial court is
based on the continued proceedings.

It should be stressed at the outset that the accused-appellant
never withdrew his October 22, 1984
plea of GUILTY during the further proceedings. 
In his later testimony he admits killing the victim although he
attributes it to obfuscation.

In the first assignment of error, the appellant contends that the
information filed against him does not
charge the crime of robbery as the phrase “with the intent to gain and by the use of force and
violence” qualifies the charge of homicide, not the charge of
robbery.

The information, filed against the accused alleged:

“That on or
about the 18th day of July, 1984, in the City of Tagbilaran,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with the intent to gain
and by the use
of force and violence, did then and there
willfully, unlawfully and feloniously assault, attack, and beat Nestora Horohoro
with a wooden pole, and with the use of a stainless knife, a deadly weapon,
stab the latter on the vital parts of her body thereby inflicting upon her
various mortal wounds which directly caused the death of said Nestora Horohoro, and thereafter, the said accused
did then and there willfully, unlawfully, feloniously and forcibly take
and carry away one (1) rota-air electric fan and one
(1) Sanyo Dynamic radio cassette recorder, to the damage and prejudice of the
heirs of the said Nestora Horohoro
in an amount to be proved during the trial. 
(Underlining supplied)

Acts committed contrary to the provisions of Article 294 of the
Revised Penal Code with the aggravating circumstances of treachery, obvious
ungratefulness and dwelling.” (Original
Record, p. 10)

A close analysis of the above information will reveal that it has
sufficiently alleged the proper offense committed which is that of Robbery with
Homicide and fully apprises the accused about what he
is facing.

It is explicit in Rule 110, Sec. 9 of the Rules of Criminal
Procedure that:

“SEC. 9.  Cause of accusation.  – The acts or omissions complained of as constituting the offense must be
stated in ordinary and concise language without repetition, not necessarily in
the terms of the statute
defining the offense, but in such form as is sufficient to enable a person of
common understanding to know what offense is intended to be charged, and enable
the court to pronounce proper judgment. 
(8)”

Although the term “with the intent to gain and by the use of
force and violence” precedes the part alleging the “homicide”,
the information taken as a whole is sufficient to enable a person of common
understanding to know that the crime charged is that of robbery with homicide as the necessary elements of the
said offense are present in the above information.  This notwithstanding, we take this opportunity to remind the Chief Prosecutors of provinces and cities to train their subordinates
how to prepare carefully crafted and precisely professional informations
in studiedly correct grammar so that, as argued by the distinguished counsel of
the appellant, technical offenses are accurately presented with all
distinguishing and essential elements characterized beyond question.

The appellant also states assuming arquendo
that robbery was committed, the killing was the result of the quarrel between
the victim and himself thus, the homicide was not committed as a consequence
of or on occasion of the robbery.

This contention is without merit.

The appellant’s reason for stabbing the victim is that “when
he saw that his finger was bleeding because of the bite of Nestora
Horohoro’s teeth, he felt so obfuscated so he held his knife and stabbed Nestora Horohoro“.  This statement is purely self-serving.  The more believable reason is the appellant’s craving for the radio cassette recorder and the electric
fan and his willingness to get them from the appellant whatever the means or
cost.  The testimony of Joseph Lim
reveals that the appellant already had a plan to get not only the radio
cassette but the rota air electric fan as well even
before the killing.  The testimony of the
appellant, therefore, was only an attempt to
cover-up his plan to get the two items as he did not even make mention of an
electric fan to be borrowed from the deceased. 
These two items were offered by the appellant to Joseph Lim as early as 8:00 o’clock in the morning of July 18,
1984.  Upon the victim’s refusal to give the said
items, the appellant attacked and killed the victim and thereafter took the
items to sell to Joseph Lim.  The
policemen were already there because of the tip that someone was coming back to
sell what were probably hot items.

The homicide then, was committed as a consequence of or on occasion of the robbery.

It is evident that robbery was committed.  Article 293 of the Revised Penal Code states:

“Any person who, with intent to gain, shall take any personal
property belonging to another, by means of violence against or intimidation of any person, or using force upon anything
shall be guilty of robbery.”

These elements are present in the instant case.  The intention to gain can be gleaned not only
from the testimony of the businessman-buyer, Joseph Lim but also from the
appellant’s own testimony as he would have used the proceeds of the sale of the
radio cassette and electric fan for his fare. 
There was also the use of force
as earlier discussed.

It has been held that in robbery with homicide, the robbery
itself must be proven, otherwise, the accused may be
convicted only for the killing, homicide or murder as the case may be. (People v. Repuela, et al., G.R. No.
85178, March 15, 1990).  In the
case at bar, the fact of robbery has been established.

As regards the third assignment of error, the appellant questions the admissibility in evidence of
the post-mortem certificate, Exhibit “E” signed by Dr. Jones when he was not presented as
a witness to identify said certificate.

Also, he states that the best evidence should have been the
hospital records and not the post-mortem certificate of death as the entries in
the certificate were merely copied from the hospital records.

It has been repeatedly held as a rule of evidence that objections
against the admission of any evidence must be made at the proper time and that
if not so made it will be understood to have been waived. 
The proper time to make a protest or objection is when, from the
question addressed to the witness, or from the answer thereto, or from the
presentation of the proof the inadmissibility of evidence is, or may be,
inferred.  (People v. Mariño, 130 SCRA 595, 600-601 [1984]; People v. Verges, 105 SCRA 744, 755 [1981].  In the case at bar, even if the appellant would not admit Exhibit “E”
without seeing the original (TSN, January 10, 1986, p. 28), this is not the
objection that is raised in the accused’s
appeal.  Moreover, the appellant did not
object to the admissibility of Exhibit
“E” and “E-1”.  (TSN,
January 17, 1986, p. 5)

Even without said rule,
the witness presented by the prosecution, Dr. Escobia,
had personally examined the cadaver of the deceased and is, thus deemed
competent to testify on the same matters
covered by the post-mortem certificate.

The appellant alleges that the aggravating circumstances of
treachery, dwelling, and obvious ungratefulness were not supported by evidence.

Treachery is presents in this case because the appellant employed
measures intended to ensure the commission of the offense without risk to him arising from the defense his victim might make.  (People v. Francisco, et al., G.R. No. 69580,
February 15, 1990)

The numerous stab wounds, some of which were inflicted at the
back of the victim, shows that the appellant’s attack was sudden and
brutal.  The suddenness of the attack
deprived the victim, who was a woman, unarmed, and alone, the opportunity to
run or fight back.  The appellant, a strong young man, did
not even suffer any injuries except for the small wound on his finger inflicted
by a bite.  Obviously, apart from using
her teeth, the victim could not put up any defense.

Obvious ungratefulness cannot be appreciated as there is no
evidence as to what generosities and the extent thereof were
received by the appellant from the victim.

Dwelling is also considered as an aggravating circumstance in
this case.

The appellant cites a number of cases decided in the 1940’s and
50’s ruling that for the circumstance of dwelling to be established, the house
in which the offense is committed must
belong to the victim or at least be her permanent dwelling.

People v. Sto.
Tomas, 138 SCRA 206, 219 [1985] states:

“Anent appellant’s submission that the trial court erred in considering dwelling as an
aggravating circumstance, we find the same bereft of any legal support.  There is no dispute that the place where the
crimes herein involved were
committed is the house of Consolation Grulla.  It is there where she lives with her
daughter, Natividad Grulla
(the other victim) and where Salvacion Grulla was temporarily staying in order to escape from the brutalities of the appellant brought
about by the latter’s jealousy.  The fact
that Salvation’s stay in the said place may be considered as a temporary sojourn
adds no validity to appellant’s stance on this point.”

Dwelling, then, may mean temporary dwelling.  Applying the above ruling, we agree with the
trial court that dwelling is an aggravating circumstance though the victim was not the owner of the
house where the crime was committed.  She
was living in that house with her niece. 
The owner was in Manila.

The appellant submits that the mitigating circumstance of lack of
intention to commit so grave a wrong mentioned in the sixth assignment of error, should be considered as he had no intention to kill.

This mitigating circumstance addresses itself to the intention of the offender at
the particular moment when he executes or commits the criminal act.  (People v. Abueg, 145 SCRA 622, 634 [1986]).

We find that such
mitigating circumstance cannot be considered in this case.  The intention of the appellant was clearly
manifested in his overt acts as the victim suffered at least eighteen (18) stab
wounds and multiple lacerated wounds plus abrasions and other injuries.

Robbery with homicide is punishable by reclusion perpetua to death. 
The aggravating circumstances of treachery and dwelling are appreciated
in this case with the mitigating circumstance of plea of guilty.  Death, then the proper
imposable penalty (Article 63 (4), Revised Penal Code).  In view, however, of Article III, Section 19
(1) of the 1987 Constitution as interpreted in our ruling in People v. Munoz, et al., G.R. Nos. L­38969-70,
February 9, 1989, 170 SCRA 107 [1989]; prohibiting the imposition of the death
penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the
same to reclusion perpetua. 
(People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990) Thus, Danilo Badilla
is sentenced to reclusion perpetua.

WHEREFORE, IN VIEW OF THE ABOVE, the judgment of the trial
court is MODIFIED, and the accused-appellant DANILO BADILLA is found GUILTY
beyond reasonable doubt of the special complex crime of robbery with homicide with the aggravating circumstances of
treachery and dwelling and the mitigating circumstance of plea of
guilty.  The accused-appellant is hereby
sentenced to suffer the penalty of reclusion perpetua.  In addition, the INDEMNITY to the offended
party is INCREASED TO THIRTY THOUSAND PESOS (P30,000.00).

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.