PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, AND SIMPLICIO CANASARES, BIENVENIDO SALVILLA, DEFENDANT-APPELLANT.

Accused Bienvenido Salvilla alone appeals
from the Decision of the Regional Trial Court, Branch 28, Iloilo City,* dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed Canasares,
guilty beyond reasonable doubt of the crime of “Robbery with Serious
Physical Injuries and Serious Illegal Detention” and sentencing them to
suffer the penalty of reclusion perpetua.

The Information filed
against them reads:

“The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO
CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames,
dated and places of birth cannot be ascertained of the crime of ROBBERY WITH
SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art. 294, paragraph 3, in conjunction with Article 267 of
the Revised Penal Code), committed as follows:

That on or about the 12th day of April, 1986, in the City of
Iloilo, Philippines and within the jurisdiction of this Court, said accused, conspiring
and confederating among themselves, working together and helping one another,
armed with guns and handgrenade and with the use of
violence or intimidation employed on the person of Severino
Choco, Mary Choco, Mimia Choco and Rodita Hablero, did then and
there wilfully, unlawfully and criminally take and
carry away, with intent of gain, cash in the amount of P20,000.00, two (2)
Men’s wrist watches, one (1) Lady’s Seiko quartz wrist watch and one (1) Lady’s
Citizen wrist watch and assorted jewelries, all valued at P50,000.00; that on
the occasion and by reason of said robbery, Mary Choco
suffered serious physical injuries under paragraph 2 of Article 263, Bienvenido Salvilla likewise
suffered serious physical injuries and Reynaldo Canasares
also suffered physical injuries; that the said accused also illegally detained,
at the compound of the New Iloilo Lumber Company, Iznart
Street, Iloilo City.  Severino Choco, owner/proprietor of said Lumber Company, Mary Choco, Mimie Choco,
who is a minor, being 15 years of age, and Rodita Hablero, who is a salesgirl at said Company; that likewise
on the occasion of the robbery, the accused also asked and were given a ransom
money of P50,000.00; that the said crime was attended by aggravating
circumstances of band, and illegal possession of firearms and explosives; that
the amount of P20,000.00, the ransom money of P50,000.00, two (2) Men’s wrist watches, two (2) Lady’s wrist
watches, one (1) .38 caliber revolver and one (1) live granade were recovered from the
accused; to the damage and prejudice of the New Iloilo Lumber Company in the amount of P120,000.00.”

The evidence for the
prosecution may be re-stated as follows:

On 12 April
1986, a robbery
was staged by the four accused at the New Iloilo Lumber Yard at about noon time. 
The plan was hatched about two days before.  The accused were armed with homemade guns and
a hand grenade.  When they entered the establishment,
they met Rodita Habiero, an
employee thereat who was on her way out for her meal break and announced to her
that it was a hold-up.  She was made to
go back to the office and there Appellant Salvilla
pointed his gun at the owner, Severino Choco, and his two daughters, Mary and Mimie,
the latter being a minor 15 years of age, and told the former that all they
needed was money.  Hearing this, Severino told his daughter, Mary, to get a paper bag
wherein he placed P20,000.00 cash (P5,000.00,
according to the defense) and handed it to Appellant.  Thereafter, Severino
pleaded with the four accused to leave the premises as they already had the
money but they paid no heed.  Instead,
accused Simplicio Canasares
took the wallet and wristwatch of Severino after
which the latter, his two daughters, and Rodita, were
herded to the office and kept there as hostages.

At about 2:00 o’clock of the same day, the hostages were allowed
to eat.  The four accused also took turns
eating while the others stood guard. 
Then, Appellant told Severino to produce P100,000.00 so he and the other hostages could be released. 
Severino answered that he could not do so
because it was a Saturday and the banks were closed.

In the meantime, police
and military authorities had surrounded the premises of the lumber yard.  Major Melquiades B.
Sequio, Station Commander of the INP of Iloilo City,
negotiated with the accused using a loud speaker and appealed to them to
surrender with the assurance that no harm would befall them as he would
accompany them personally to the police station.  The accused refused to surrender or to
release the hostages.

Thereafter, OIC Mayor, Rosa Caram, of Iloilo
City arrived and joined the
negotiations.  In her dialogue with the
accused, which lasted for about four hours, Appellant demanded P100,000.00, a
coaster, and some raincoats.  She offered
them P50,000.00 instead, explaining the difficulty of
raising more as it was a Saturday. 
Later, the accused agreed to receive the same and to release Rodita to be accompanied
by Mary Choco in going out of the office. 
When they were already out of the door, one of the accused whose face was covered by a
handkerchief, gave a key to Mayor Caram.  With this, Mayor Caram
unlocked the padlocked door and handed to Rodita the
P50,000.00, which the latter, in turn, gave to one of
the accused.  Rodita
was later set free but Mary was herded back to the office.

Mayor Caram, Major Sequio,
and even volunteer radio newscasters continued to appeal to the accused to
surrender peacefully but they refused. 
Ultimatums were given but the accused did not budge.  Finally, the police and military authorities
decided to launch an offensive
and assault the place.  This resulted in
injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo
and Reynaldo Canasares.  Mary suffered a “macerated right lower
extremity just below the knee” so that her right leg had
to be amputated.  The medical certificate
described her condition as “in a state of hemorrhagic shock when she was
brought in to the hospital and had to undergo several major operations during
the course of her confinement from April
13, 1986 to May 30, 1986.”

For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-accused entered the lumber
yard and demanded money from the
owner Severino Choco.  He demanded P100,000.00
but was given only P5,000.00, which he placed on the counter of the office of
the lumber yard.  He admitted that he and
his co-accused kept Severino, his daughters, and Rodita inside the office. 
He maintained, however, that he stopped his co-accused from getting the
wallet and wristwatch of Severino and, like the P5,000.00, were all left on the counter, and were never
touched by them.  He claimed further that
they had never fired on the
military because they intended to surrender. 
Appellant’s version also was that during the gunfire, Severino’s daughter stood up and went outside; he wanted to
stop her but he himself was hit by a
bullet and could not prevent her. 
Appellant also admitted the appeals directed to them to surrender but
that they
gave themselves up only much
later.

After trial, the Court a
quo meted out a judgment of conviction and
sentenced each of the accused “to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law and
to pay the costs.”

Appellant Salvilla’s present appeal is
predicated on the following Assignments of Error:

“1.     The lower court
erred in holding that the crime charged was consummated and in not holding that
the same was merely attempted.

“2.     The lower court
erred in not appreciating the mitigating circumstance of voluntary
surrender.”

 Upon the facts and the evidence, we
affirm.

The defense contends that “The complete crime of larceny
(theft/robbery) as distinguished from an attempt requires asportation
or carrying away, in addition to the taking. 
In other words, the crime of robbery/theft has three consecutive
stages:  1) the giving 2) the taking and
3) the carrying away or asportation.  And without asportation
the crime committed is only attempted” (Memorandum for Appellant Salvilla, Records, p. 317).

There is no question that in robbery, it is required that there
be a taking of personal property belonging to another.  This is known as the element of asportation, the essence of which is the taking of a thing
out of the possession of the owner without his privity
and consent and without the animus revertendi
(Aquino, Revised Penal Code, p. 97, citing 5 C.J.
607).  In fact, if there is no actual
taking, there can be no robbery. 
Unlawful taking of personal property of another is an essential part of
the crime of robbery.

Appellant insists that while the “giving” has been proven, the “taking” has not.  And this is because neither he nor his three
co-accused touched the P5,000.00 given by Severino nor the latter’s wallet or watch during the entire
incident; proof of which is that none of those items were recovered from their
persons.

Those factual allegations are contradicted by the evidence.  Rodita, the
lumberyard employee, testified that upon demand by Appellant, Severino put P20,000.00 inside a
paper bag and subsequently handed it to Appellant.  In turn, accused Simplicio
Canasares took the wallet and wristwatch of Severino.  In
respect of the P50,000.00 from Mayor Caram, Rodita declared that the
Mayor handed the amount to her after she (the Mayor) had opened the padlocked
door and that she thereafter gave the amount to one of the holduppers.  The “taking” was, therefore,
sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31).  The money demanded, and the wallet and wrist
watch were within the dominion and control of the Appellant and his co-accused
and completed the taking.

“The State established a ‘taking’ sufficient to support a
conviction of robbery even though the perpetrators were interrupted by police
and so did not pick
up the money offered by the
victim, where the defendant and an
accomplice, armed with a knife and a club respectively, had demanded the money
from the female clerk of a convenience store, and the clerk had complied with
their instructions and placed money from the register in a paper bag and then placed the bag on
the counter in front of the two
men; these actions brought the money within the dominion and
control and of defendant and completed
the taking.” (Johnson vs. State,
432 So 2d 758).

“Severance of the
goods from the possession of the owner and absolute control of the property by
the taker, even for an instant, constitutes asportation.”
(Adams vs. Commonwealth, 154 SW 381; State vs. Murray
280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [underlining
supplied].

It is no defense either that Appellant and his co-accused had no opportunity
to dispose of the personalities taken. 
That fact does not affect the nature of the crime.  From the moment the offender gained
possession of the thing, even if the culprit had no opportunity to dispose of the same, the unlawful taking is complete (Reyes, Revised
Penal Code Annotated, Book II, 1981 ed., p. 594).

“The crime is consummated when the robber acquires possession
of the property, even if for a short time, and it is not necessary that the
property be taken into the hands of the robber, or that he should have actually
carried the property away, out of the physical presence of the lawful
possessor, or that he should have made his escape with it” (People vs.
Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d
504; People vs. Clark, 160 P 2d 553).

Contrary to Appellant’s
submission, therefore, a conviction for consummated and not
merely attempted Robbery is in order.

It is the contention of
Appellant that Rodita could
not have seen the taking because the place was dark since the doors
were closed and there were no windows. 
It will be recalled, however, that Rodita was
one of the hostages herself and could observe the unfolding of events.  Her failure to mention the taking in her
sworn statement would not militate against her credibility, it being settled
that an affidavit is almost always incomplete and inaccurate and does not
disclose the complete facts for want of inquiries or suggestions (People vs. Andaya, G. R. No. L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89
Phil. 337 [1951]).

The fact, too, that Rodita was an employee of Severino
would not lessen her credibility.  The
defense has not proven that she was actuated by any improper motive in
testifying against the accused.

In the last analysis, the
basic consideration centers around the credibility of witnesses in respect of
which the findings of the Trial Court are entitled to great weight as it was in
a superior position to assess the same in the course of the trial (see People
vs. Ornosa, G.R. No. L56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G. R. No. L-38042, 30 June
1987, 151 SCRA 326).

Anent the second
assignment of error, the “surrender” of the Appellant and his co-accused cannot
be considered in their favor to mitigate their liability.  To be mitigating, a
surrender must have the following requisites:  (a) that the offender had not been
actually arrested; (b) that the offender surrendered himself to a person in
authority or to his agent; and (c) that the surrender was voluntary (People vs.
Ganamo, G. R. No. L 62043, 13
August 1985, 138
SCRA 141).

The “surrender”
by the Appellant and his co-accused hardly meets these requirements.  They were, indeed, asked to surrender by
the police and military authorities but
they refused until only much later when they could no longer do otherwise by
force of circumstances when they knew
they were completely surrounded and there was no chance of escape.  The surrender of the
accused was held not to be mitigating as when he gave up only after he was
surrounded by the constabulary and police forces (People vs. Sigayan, et al., G. R. No. L-18523-26, 30 April 1966, 16 SCRA 839; People vs. Mationg,
G. R. No. L 33488, 29 March
1982, 113 SCRA 167).  Their
surrender was not spontaneous as it was motivated more by an intent to insure their safety. 
And while it is claimed that they intended to surrender, the fact is
that they did not despite several opportunities to do so.  There is
no voluntary surrender to speak of (People vs. Dimdiman,
106 Phil. 391 [1959]).

All told, the assigned errors remain unsubstantiated and we find
the guilt of the accused-appellant, Bienvenido Salvilla, established beyond reasonable doubt.

Although unassigned as an error, we deem it necessary to turn now
to the nature of the linked offenses involved and the penalty imposed by the
Trial Court.

Appellant and his co-accused were charged in the Information with
“Robbery with Serious Physical Injuries and Serious Illegal Detention
(“Art. 295, par. 3, in conjunction with Art. 267,
RPC”), and sentenced to reclusion perpetua.  We
agree with the Trial Court that a complex crime under Article 48 of the Revised
Penal Code has been committed such that the penalty for the more serious
offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or “reclusion
perpetua
to death,” is to be imposed instead of the penalty prescribed for Robbery
with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal.

Under Article 48, a
complex crime arises “when an offense is a necessary means for committing the
other.” The term “necessary means” does not connote indispensable means for if it did
then the offense as a “necessary means” to commit another would be an indispensable element of
the latter and would be an ingredient thereof. 
The phrase “necessary means” merely signifies that one crime
is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol.
I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515).  In this case, the crime of Serious Illegal Detention was such a “necessary
means” as it was selected by Appellant
and his co-accused to facilitate and carry out more effectively their evil
design to stage a robbery.

The facts of this case
differ from those in People vs. Astor, et als. (G. R.
Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused were convicted
of Robbery but acquitted in the case for Serious Illegal Detention and where it
was held that “the detention is absorbed in the crime of robbery.”
For one, in Astor, there
were two (2) separate Informations filed, one for
Robbery and another for Serious Illegal Detention.  In the present case, only
one Information was filed charging the complex offense.  For another, in Astor, the robbery had
already been consummated and the detention was merely to forestall the capture
of the robbers by the police. 
Not so in this case, where the detention was availed of as a means of
insuring the consummation of the robbery. 
Further, in Astor, the detention was only incidental to the main
crime of robbery so that it was held therein:

“x x x
were appellants themselves not trapped by the early arrival of the police at
the scene of the crime, they would have not anymore detained the people inside
since they have already completed their job. 
Obviously, appellants were left with no choice but to resort to
detention of these people as security, until arrangements for their safe
passage were made.  This is not the crime
of illegal detention punishable under the penal laws but an act of restraint in
order to delay the pursuit of the criminals by peace officers (People v. Sol, 9
Phil. 265; People v. Uday, 85 Phil. 167, cited in the
Revised Penal Code, Aquino, Vol. 3, 1976 ed., p.
1337).  Where the victims in a robbery
case were detained in the course of robbery, the detention is absorbed by the
crime of robbery (P v. Baysa, 92 Phil. 1008, id.).  In the case at
bar, the detention was only incidental to the main crime of robbery, and
although in the course thereof women and children were also held, that threats
to kill were made, the act should not be considered as a separate offense.  Appellants should only be held guilty of
robbery.”

In contrast, the
detention in the case at bar was not only incidental to the robbery but was a
necessary means to commit the same. 
After the amount of P20,000.00 was handed to Apellant, the latter and his co-accused still refused to
leave.  The victims were then taken as
hostages and the demand to produce an additional P100,000.00
was made as a prerequisite for their release. 
The detention was not because the accused were trapped by the police nor
were the victims held as security against the latter.  The detention was not merely a matter of
restraint to enable the malefactors to escape, but deliberate as a means of extortion for an additional amount.  The police and other authorities arrived only much later after several hours of detention had
already passed.  And, despite appeals to
appellant and his co-accused to surrender, they adamantly refused until the
amount of P100,000.00 they demanded could be turned
over to them.  They even considered P50,000.00, the amount being handed to them, as inadequate.

The foregoing features
also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 (1907) where
the restraint was for no other
purpose than to prevent the victims from reporting the crime to the
authorities; from People v. Gamboa, 92 Phil. 1085
[1953] where the victims were taken to a place one kilometer away and shot in
order to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 (1953); People v. Manzanilla,
43 Phil. 187 (1922), all of which cases were cited in Astor, and where the victims
were only incidentally detained so that the detention was deemed absorbed in
robbery.

In other words, unlike in
the above cases, the elements of the offense of Serious Illegal Detention are
present in this case.  The victims
were illegally deprived of their liberty.  Two females (Mary and Minnie), and a minor (Minnie), a specified circumstance
in Article 267 (3), were among those detained.  The continuing detention was also for the
purpose of extorting ransom another listed circumstance in Article 267 (last parag.), not only
from the detained persons themselves but even from the authorities who arrived to rescue them.

It follows then that as the detention in this case was not merely
incidental to the robbery but a necessary means employed to facilitate it, the
penalty imposed by the Trial Court is proper.

WHEREFORE, the
judgment appealed from is hereby AFFIRMED. 
Proportionate costs.

SO ORDERED.

Paras, Padilla, Sarmiento,
and Regalado, JJ., concur.

* Penned by
Judge Edgar D. Gustilo.