G.R. No. 97426. June 03, 1993
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO APOLINARIO AND ANTONIO RIVERA, ACCUSED/APPELLANTS.
FELICIANO, J.:
Romeo Apolinario and Antonio Rivera appeal from a decision of the
Regional Trial Court of Capiz, Roxas City, Branch 10, finding them guilty of
robbery with homicide.
Appellants were charged in an information dated 13 March 1990
which read as follows:
“The undersigned Assistant Provincial Prosecutor, with prior
authority and approval of the Provincial Prosecutor, accuses ROMEO APOLINARIO,
ANTONIO RIVERA and MARIO SION of the crime of ROBBERY WITH HOMICIDE, committed
as follows:
That on or about
October 9, 1989 at around 2:00
in the morning, at Sitio Agbobolo, Brgy. Agdahon,
Cuartero, Capiz, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, armed with bolos and with intent of (sic) gain,
conspiring, confederating and mutually helping one another, by means of force
upon things entered the house of the Spouses SIMON HIBALER and RESTITUTA
HIBALER through the window jealousy (sic) and once inside, by means of violence
and intimidation did then and there wilfully, unlawfully and feloniously take,
steal and carry away the following personal properties, to wit:
1. Cash money in the
amount of ………………………………P6,000.00
2. Silver coins,
genuine, in the amount of …………………………500.00
3. Radio Cassette valued
at ……………………………………..3,000.00
4. Assorted jewelries
(sic) valued at …………………………… 5,000.00
5. Unused clothes valued
at ……………………………………..1,000.00
6. Blankets valued at
……………………………………………….750.00
Total P18,250.00
to the damage and the prejudice of the said
spouses Simon Hibaler and Restituta Hibaler as owners thereof against their
will and consent in sum total of Eighteen Thousand Two Hundred Fifty
(P18,250.000) Pesos, Philippine Currency; that on the occasion and in the
furtherance of the robbery, Simon Hibaler was boloed several times causing
death thereafter.
ACTS CONTRARY TO LAW with the aggravating circumstance of use of
superior strength and nighttime.”[1]
Only Romeo Apolinario and Antonio Rivera were arraigned, because
Mario Sion was at large and so far as the records of this case are concerned,
remains at large still.
Upon arraignment, appellants pleaded not guilty. After trial, the court a quo found
both appellants guilty in a Decision dated 31 October 1990 of the crime of
robbery with homicide and sentenced them to suffer reclusion perpetua
and to indemnify, jointly and severally, the heirs of the deceased Simon
Hibaler in the amount of P30,000.00, plus the sum of P14,650.00 which represented
the total value of the personal properties and money which the accused took
from the home of the deceased.
The prosecution presented
Restituta Hibaler, the widow of the deceased victim Simon Hibaler, and Ernesto
Biboso, the next-door neighbor of the Hibalers, whose testimony can be
summarized in the following terms:
Around 2:00 o’clock in
the morning of 9 October 1989, Restituta Hibaler and her husband, Simon
Hibaler, were awakened by three (3) persons who had broken into their
house. Simon got his flashlight and
directed its beam towards the three (3) intruders. Simon and Restituta recognized the intruders
and they were Romeo Apolinario, Antonio Rivera and Mario Sion. Simon exclaimed in the local dialect
“kamo man lang gali” (“it was you all along”). The intruders promptly attacked Simon with
their bolos. Restituta pleaded for her
husband’s life. In response, one of the
intruders struck Restituta on the face; she fell down and lost
consciousness. When she regained her
senses, she saw appellant Romeo Apolinario taking clothes from their respective
hangers while the other two (2) were ransacking a trunk. When they finished, the three (3) went down
to the first floor, to the dining room, lit a lamp and helped themselves to
some coffee. Restituta said she saw the
appellants on the first floor drinking
coffee through a hole she had made on the sawali floor.
After the intruders had left, Restituta went to the balcony and
called out for her son, Pedro Hibaler, and a neighbor, Ernesto Biboso. Ernesto arrived ahead of Pedro, and upon
Restituta’s request, went to the second floor and there found Simon bleeding
profusely. Ernesto held the wounded man
in his arms and asked him what had happened. Simon told Ernesto that Romeo, Antonio and Mario had attacked him. When Pedro arrived, he too asked his father
what had happened but by then Simon was already very weak. Pedro Hibaler and Ernesto Biboso put Simon
on a hammock in order to bring him to the hospital. Simon, however, died before they could leave. The son, Pedro Hibaler, with three (3)
barangay councilors, went to the police station to report the incident. Pedro then went back to his parent’s house,
accompanied by policemen. Simon’s body
was brought to the municipal hall where an autopsy was performed.
The prosecution also presented Dr. Donanito Hijosa who had
carried out the autopsy examination. Dr. Hijosa identified his autopsy report which listed the injuries
sustained by Simon as follows:
“1. Clean
cut edges wound, spindle shaped, 1/2 inch x 1/4, skull deep at right frontal
area;
2. Clean
cut edges, spindle shaped, 1/2 x 1/4 inch, skull deep at right temporo frontal.
3. Clean
cut edges wound, spindle shaped, 3/4 inch by 1/4, skull deep at medial frontal
area.
4. Left
infraorbital blackish hematoma 1 inch x 3/4.
5. Blackish
hematoma left ear middle of pinna, 1/2 x 1/4 circular in form.
6.
Blackish hematoma on entire lower lip.
7.
Reddish hematoma left parasternal area 4th intercoastal (sic)
space circular in from, 1 inch in diameter.
8.
Clean cut edges wound, spindle shaped, left hand lateral area
dorsal 4 1/2 inches by 1 1/2 inches, fracturing the underneath (sic) ybones.
9.
Clean cut edges wound, spindle shaped, left hand medial area,
dorsal, measuring 7 inches x 1 1/2 inch (sic) fracturing the underneath (sic)
bones.
10.
Clean cut edges wound, spindle shaped, 3 inches long avulsing
the little finger and middle third of the ring finger.
11.
Clean cut edges wound, spindle shaped, 2 inches x 3/4, skull
deep, temporo occipital area.
12.
Clean cut edges wound, spindle shaped, 2 inches x 3/4,
fracturing the skull at supra occipital area.
13.
Clean cut edges wound, spindle shaped, 2 1/2 inches x 3/4,
chipping off a portion of the skull and injuring the underneath (sic) brain
tissue 1 1/2 inch deep at parieto-occipital area.
14.
Clean cut edges wound, spindle shaped, 2 1/2 inches by 1/2,
transverse skull deep at occipital area.
15.
Abrasion 1 1/2 inches long at left suprascapular area,
diagonal in direction.
16.
Abrasion 3 inches long at left lumbar area, diagonal in
direction.
17.
Clean cut edges wound, spindle shaped, 3 inches x 1/2 inch at
right lumbar area, muscle deep, level of T 12.
18.
Clean cut edges wound, spindle shaped, 5 inches x 1 inch x 4 inches
deep at right lumbar level of L-4, fracturing the vertebra at this level.[2]
Pedro Hibaler was also presented by the prosecution, as a
rebuttal witness. Pedro testified that
when he first reported the crime to the police, he did not reveal the identities
of the three (3) assailants of his father, for the reason that policeman
Anacleto Habana was present at the police
station, and Habana’s stepson was married to the daughter of one of the
appellants, Romeo Apolinario. Pedro
stated that he feared that appellants might disappear completely if he revealed
their identities in the presence of Pat. Habana.
For its part, the defense
presented appellants Romeo Apolinario and Antonio Rivera. The two claimed that from the 7th to the 9th
of October 1989, they were in the house of one Estelita Dayao at San Roque
Street, Roxas City. They testified that
they went to Roxas City to attend the “Halaran” celebration and to
buy fish which they proposed to resell in Maindang, Cuartero, Capiz. They said that they left Roxas City only on
9 October 1989 at around 4:00 o’clock in the morning and arrived in Maindang,
Cuartero, around 8:00 o’clock in the morning of the same day. Estelita Dayao testified for the defense and
corroborated appellants’ claim that they had stayed in her house from 7 October
to 9 October 1989.
Appellants are now before this Court raising the following as
alleged errors of the trial court:
1. The trial court erred in relying on the
testimony of Restituta Hibaler and Ernesto Biboso despite the incredible and
doubtful nature of such testimony;
2. The trial court erred in finding appellants
guilty beyond reasonable doubt of the crime charged despite the failure of the
prosecution to positively identify accused-appellants; and
3. Granting that accused-appellants were indeed
positively identified as the doers of the crime, the trial court erred in
convicting accused-appellants despite the failure of the prosecution to prove
robbery as conclusively as any other essential element of the crime.[3]
Turning to the first and second assignments of error, we note
that Restituta Hibaler testified affirmatively and firmly that Romeo
Apolinario, Antonio Rivera and Mario Sion had broken into their house, savagely
attacked her husband Simon and then proceeded to ransack their house and take
their money and other personal property:
“Q: Where were you in the evening of October 8, 1989?
A: I was in our house.
Q: Where was your house
situated?
A: At Sitio Agbobolo, Brgy.
Agdahon, Cuartero, Capiz.
Q: What were you doing that
evening of October 8, 1989?
A: I was sleeping.
Q: Please tell the court if
you can remember about what time did you wake up from your sleep?
A: At 2:00 in the morning.
Q: You mean it was already
October 9, 1989?
A: Yes, sir.
Q: Please tell the court
what woke you up?
A: I was surprised and I was
awakened by some persons who woke up my husband.
Q: What did these persons tell your
husband?
A: Wake up.
Q: And what did your husband do?
A: He woke up and he hold (sic) a flashlight and talk (sic) to those persons.
x x x x x x x x x
Q: When the flashlight was directed at those men
have you seen those men?
A: Yes,
sir.
Q: Did you recognize them?
A: Yes, sir.
Q: Who were they?
A: Romeo Apolinario, Antonio Rivera and Mario
Sion.
Q: These persons are inside
this courtroom please identify each of them?
A: There (witness pointing
to those sitting on the bench).
Q: Please identify the persons closed to you.
A: Antonio.
Q: What about the person near him?
(Witness identified that
person as Antonio Rivera and the
second person give his name as Romeo Apolinario.)
Q: What about this Mario Sion, is he inside the
courtroom?
A: No, sir.
Q: After
your husband directed the beam of his flashlight
to these three persons, what happened?
A: They took hold of my
husband and they asked where is the money.
Q: And what did your husband
do?
A: My husband said, ‘it is
you all along.’ (kamo man lang gali.)
Q: After he said that, what
happened?
A: I then shouted, ‘do not
bolo him, do not bolo him and immediately she was being boxed
(witness pointing to her
person to the bridge of her nose.)
Q: Do you still have a scar
to (sic) your nose?
A: Yes, sir.
Q: Please point that to the
court?
A: Witness pointed to her
nose.
Q: What happened after that,
what happened to you after you were hit on the bridge of your nose?
A: I fell on the floor face
up and I fainted and I do not know anything.
x x x x x x x x x
Q: When you recovered
consciousness, what did you see?
A: When I recovered
consciousness I look (sic) up and I saw this Romeo getting those clothes being
hanged in a hanger.
Q: When you say Romeo was he
the accused you identified?
A: Yes, sir.
Q: And what about the
companions of Romeo, where are (sic)
they at the time?
A: They were there
inside the room, I saw the companions of Romeo getting the contents of the
trunks.
Q: Who were they?
A: Antonio and Mario.
Q: How were you able to
recognize them?
A: I know them because
they have a flashlight and I could see them.
Q: How about this Romeo
earlier, how were you able to recognize him getting from those hanger? (sic)
A: He was getting those
clothes hanging in the hanger using his flashlight and I saw his face.
Q: What about your husband,
where was he at that time?
A: He was lying on the
floor where he was boloed.
Q: How long did these three
men stayed (sic) inside that room where you and your husband were sleeping?
A: About one (1) hour or
more.
Q: After one hour where did
these three persons go?
A: They went down from the
second floor and drunk (sic) coffee.
Q: How do you know that?
A: Because I heard the
clinking of the spoon.
Q: And what did you do when
you heard the clinking of the spoon?
A: I heard the moaning of
my husband I crawled towards him and told him to keep quiet because they are
(sic) still downstairs drinking coffee.
Q: After that, what?
A: I then crawled near
the dining room and I made
a small hole and I peep (sic) through it and I saw Antonio, Romeo and Mario
drinking coffee.
Q: How did you know that
when it was nighttime?
A: Because
they lighted the lamp and I could see them.
Q: How long did they stayed
(sic) in that dining room downstairs drinking coffee?
A: Maybe ten (10) minutes.
Q: After ten minutes where
did they go?
A: They went home.
Q: What did you do after
they left your house?
A: I look (sic) at them
when they went away and then I returned to the place where my husband was lying
on the floor and I asked my husband if he has any wound. (sic)
Q: And after you asked from
him, what happened?
A: I left him and I went to
the balcony and called for Ernesto.
x x x x x x x
x x
Q: And after you shouted to
Ernesto, what happened?
A: Ernesto arrived.
x x x x x x x x x”[4]
(Underscoring supplied)
The identities of appellants were also conveyed by the victim
himself to Ernesto Biboso who had rushed to the scene of the crime when
Restituta had called out. Ernesto
testified as follows:
“Q: When
you saw him lying on the floor, what did you do?
A: I held him and
craddled him.
Q: Why did you ask what
happened to him?
A: I saw him with many
wounds.
Q: Was he bleeding or not?
A: Yes, sir.
Q: After asking him that
question was your question answered by him?
A: He told me that Romeo
and Antonio helped each other boloed (sic) him.
Q: He mentioned to you
two persons?
A: Three (3) persons.
Q: What
is the name of the other one?
A: Mario, Antonio, Romeo
and no more.
x x x x x x x x x
Q: Do you know these
persons named as (sic) Mario
Antonio and Romeo?
A: Yes, sir.
Q: If these persons are in
court, can you point them? (sic)
A: Yes, sir.
Q: Please point (sic)
Romeo.
A: There (witness
pointing to the man in the middle of the two accused and mentioning the name of
Romeo when asked give his name as Romeo).
Q: Do you know Romeo’s
family name?
A: Yes, sir.
Q: What is his family
name?
A: Apolinario.
Q: Please point the other
person you mentioned, Antonio?
A: There (witness pointing to the man sitting when asked his name give his name as Antonio).
x x x x x x x x x
Q: You personally know the
two accused you mentioned, how long have you known Romeo and Antonio?
A: For a long time
because they were always at Brgy. Agbobolo.”[5]
(Underscoring supplied)
The Court considers that the foregoing testimony of Ernesto
Biboso as to what the dying Simon Hibaler told him is admissible in evidence as
a dying declaration. A dying
declaration, which is admissible as an exception to the hearsay rule, is
defined in Section 37 of Rule 130 as “the declaration of a dying person,
made under the consciousness of
an impending death” with respect to “the cause and surrounding
circumstances of such death”[6] There
is no question here that Simon must have been aware of the imminence of death
for he died shortly thereafter before he could be brought to the hospital.
That both Restituta Hibaler and Ernesto Biboso were in a position
to identify appellants Romeo Apolinario and Antonio Rivera is quite clear: both lived in the same barangay in which
appellants lived and had seen appellants several times before.
The defense questions the testimony of Restituta and Ernesto as
“doubtful” and “incredible”, upon the theory that both had
failed to mention to Pedro Hibaler the names of the killers of his father; for
when Pedro reported the crime to the police, the police blotter indicated that
the attack had been carried out by unknown persons.[7] We
think that the defense tries to make too much of the police blotter. A police blotter is not a confession by a
suspect; neither does it purport to be a complete and irrefutable record of
what had happened at the scene of the crime. It is no more than a summary report of the occurrence of the crime. In Ford v. Court of Appeals,[8]
the Court held that entries in police blotters are only prima facie
evidence and inaccuracies as well as omissions therein may be explained during
a witness’ testimony:
“We are satisfied with private respondent’s explanation. Her initiative in promptly instituting her
complaint clearly manifests her honest intent to vindicate the wrong committed
against her. She explained that shortly
after the incident between her and petitioner Uy, petitioner Ford came and
slapped her. Thus, when the report was
made by private respondent to the police authorities of Dumalag, Capiz, the
immediate hurt and humiliation being felt by her was not only the slander
committed by petitioner Uy but, primarily and foremost, the slapping by
petitioner Ford. Hence, the police
report of private respondent focused on her being slapped by petitioner Ford,
although inadvertently omitting the incident with petitioner Uy in view of her
emotional state then, should not be construed to mean that private respondent
was not slandered by petitioner Uy.”[9] (Underscoring supplied)
In the case at bar, the omission was
fully explained by Pedro Hibaler in his testimony as a rebuttal witness, where,
as earlier noted, he stated that Pat. Habana then at the police station, had a
stepson who was married to Romeo Apolinario’s daughter:
“Q: Why did you conclude that these accused
might run away because Habana was present?
A: Because the son of
Pat. Habana is married to
the daughter of Romeo Apolinario.
Q: The this Romeo
Apolinario is one of the accused here? (sic)
A: Yes sir.”[10]
(Underscoring supplied)
Pedro feared that Pat. Habana might warn
Romeo Apolinario and that the latter and the other assailants might thereby
escape apprehension.
People v. Tulagan[11]
cited by appellants in their brief affords them no comfort. There, the witness not only kept silent
about the occurrence of the crime for two (2) weeks but had also kept the
information from the victim’s father; the trial court accorded his testimony
very little credence. In the case at
bar, the identities of the robber-killers were immediately conveyed by
Restituta Hibaler and Ernesto Biboso to the victim’s son Pedro Hibaler, who in
turn, revealed to Pat. Himan who the killers were as soon as they were out of
the police station. In addition, the
victim’s widow, Restituta Hibaler, also informed the police who had slain her
husband. The testimony of Pedro Hibaler
follows in relevant part:
“Q: When you returned to your place in Agbobolo, Cuartero, Capiz,
did you have companions?
A: Yes, sir.
Q: Who were they?
A: The
policemen.
Q: Did you take any
transportation?
A: Yes sir.
Q: When you rode that
vehicle going home to Agbobolo, please tell the court what happened.
A: I told them that
Romeo Apolinario, Antonio Rivera and a certain Sion, were the ones who killed
my father.
Q: To whom did you tell
(sic) that statement?
A: Pat. Himan.
Q: What is the name?
A: Elek.
Q: When you give (sic) that
information to him did he ever confronted (sic) you of what you told him
earlier in the police blotter?
A: No sir.
Q: And did the policemen do
or what did the policemen do in Agbobolo?
A: They conducted a
necropsy examination.
Q: From whom did they ask
questions?
A: My mother.
Q: And what did you (sic)
mother tell them.
ATTY CONANAN:
Objection.
COURT:
Reform.
Q: You said they asked your
mother what happened?
A: My mother told them
and they left.
Q: What did your mother
tell them?
A: That Romeo
Apolinario, Antonio Rivera
and that Sion were the ones who killed my father.
Q: And you said the policemen
left, do you know where they were going?
A: Yes sir.
Q: Where?
A: Going to Brgy. Mainit.
Q: Did they tell you what
they are (sic) going to do in Brgy. Mainit?
A: Yes sir.
Q: Why? (sic)
A: To look for Romeo Apolinario,
Antonio Rivera and that certain Sion.”[12]
(Underscoring supplied)
In their third assignment of error, appellants contend that they
could not be convicted of robbery with homicide because the robbery had not
been proven. Appellants claimed that there
was no conclusive evidence that they had carried the money and other personal
properties away from the Hibaler house. As already noted, Restituta had seen with her own eyes appellants and
Mario Sion ransacking their house and taking whatever they wanted. Appellants claim that because Restituta did
not testify that they were still in possession of here personalty here involved
when they left the Hibaler house and because the missing items were never
recovered from them, there was no evidence to support a finding of guilt with
respect to the charge of robbery.
Once more, appellants’ contention must be rejected as without
merit. The element of taking or
asportation in the crime of robbery, in the instant case, was completed when
appellants and Mario Sion took the personal property, even if (and this is not
true in the case at bar) they had had no subsequent opportunity to dispose of
the same. Restituta had testified that
after the robbery, she made an inventory and found many of their personal
belongings missing.[13] The
later disposition of the property taken, or the failure to dispose of such
property, is without moment so far as the characterization of the crime as
robbery is concerned. In People v.
Puloc,[14]
it was held that:
“x x x. As early as People
v. Patricio, the settled rule is that when the fact of asportation has been
established beyond reasonable doubt, the conviction of the accused is justified
even if, as in this case, the thing subject of the robbery was
abandoned by the accused and recovered by the owner.”[15]
(Underscoring supplied)
In People v. Salvilla,[16]
the Court held that in robbery, the element of asportation — which requires
the taking of personal property out of the possession of its owner, without his
privity and consent and without animus revertendi — is present once the
property is in fact taken from the owner:
“Severance of goods from the possession of the owner and
absolute control of the property by the taker, even for an instant,
constitutes asportation.”[17]
In the case at bar, all the elements of robbery, i.e., (a)
personal property belonging to another; (b) was unlawfully taken; (c) with
intent to gain; and (d) with the use of force upon things[18]
— were present. Because the homicide
was committed by reason or on the occasion of the robbery, appellants are
guilty of the special complex crime of robbery with homicide under Article 294
of the Revised Penal Code.[19]
The information alleged two (2) aggravating circumstances. Since, however, as held in People v.
Dapitan,[20]
the penalty for robbery with homicide is reclusion perpetua regardless
of presence of aggravating or mitigating circumstances, there appears no need
to focus upon these two (2) modifying circumstances.
WHEREFORE, the Decision of the trial court dated 31
October 1990 is hereby AFFIRMED, with the modification that the indemnity for
the death of Simon Hibaler shall be INCREASED from P30,000.00 to
P50,000.00. Costs against appellants.
SO ORDERED.
Bidin, Davide, Jr., Romero, and
Melo, JJ., concur.
[1]
Records, pp. 1 and 2.
[2]
Id., pp. 217-218.
[3]
Appellants’ Brief, p. 1.
[4]
TSN, 29 June 1991, pp. 2-7; Appellee’s Brief, pp. 6-12.
[5]
TSN, 20 June 1990, pp. 5-6; Appellee’s Brief, pp. 12-14.
[6]
E.g., People v. Talingdan, 191 SCRA 333 (1990); People v.
Alegarbes, 173 SCRA 64 (1989).
[7]
Appellants’ Brief, pp. 12-13.
[8]
186 SCRA 21 (1990). See also People v.
Santito, Jr., 201 SCRA 87 (1991).
[9]
186 SCRA at 32.
[10]
TSN, 6 August 1990, pp. 4-5.
[11]
143 SCRA 107 (1988).
[12]
TSN, 6 August 1990, pp. 5-6.
[13]
TSN, 25 June 1991, p. 10.
[14]
202 SCRA 179 (1991).
[15]
202 SCRA at 186.
[16]
184 SCRA 671 (1990).
[17]
184 SCRA at 677.
[18]
People v. Puloc, 202 SCRA 179 (1991).
[19]
People v. Nunag, 196 SCRA 206 (1991).
[20]
196 SCRA 378 (1991).