PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DEMETRIO CABALE, FLORENCIO DANIEL, BENITO TERANTE @ “BODOY”, AND BONIFACTO CUALTEROS, DEFENDANTS, BENITO TERANTE @ “BODOY”, DE…

At about 8:00 o’clock in the evening of 7 June 1968, while Rufina Rosello, an octogenarian,
was tending her small store located at Barrio Magaupas,
Liloan, Southern Leyte,
four (4) persons, later identified as the accused Demetrio
Cabale, Florencio Daniel,
Benito Terante @ “Bodoy“,
and Bonifacio Cualteros,
arrived.  Two (2) of them, Florencio Daniel and Benito Terante,
entered the store of Rufina Rosello
while Demetrio Cabale and Bonifacio Cualteros stayed
outside and fired shots into the air, shouting: 
“Those persons who have no part get away.  We are not afraid.  We are the followers of Montemayor,
and those who will get near will be killed.”^[1]

Upon entering the store, Florencio
Daniel and Benito Terante demanded money from Rufina Rosello.  But she refused to accede to their
demand.  So, they dragged the old woman
outside the store and made her lie down on a bamboo bed.  One of them then put his hands around her
neck, strangling her, while the other held her upper legs and continued
demanding money from her.  But Rufina Rosello told them that she
had no money.^[2]

As this was going on, Ricarido
Fernando, riding on a motorcycle, arrived at the scene.  He was ordered to stop.  When he did not stop, as he did not know the
men stopping him, his motorcycle was kicked so that he fell.  Then, a man whom he later identified as the
accused Demetrio Cabale,
ordered him not to rise but to lie flat on the ground.  The man then began to search his
pockets.  When Ricarido
Fernando placed his hand over the back pocket of his pants, the man struck his
hand with a gun and then removed the money from the pocket amounting to
P492.00.  His wallet containing his
driver’s license and the certificate of registration of his motorcycle, as well
as some coins, were also taken from him. 
He was then repeatedly kicked and “rolled” over. ^[3]

After strangling Rufina Rosello to death, Florencio
Daniel and Benito Terante went back to the
store.  When they came out of it, they
were carrying the “alkansiya” of Rufina Rosello.  They then joined their companions and tried
to drive off with the motorcycle of Ricarido
Fernando, but they failed to start the motorcycle.  So, Bonifacio Cualteros ordered Fernando to start the motor.  After Fernando had started the motorcycle,
the four (4) accused rode on the motorcycle and left the place.^[4]

Ricarido Fernando was taken to the
White Cross Clinic at Malitbog, Southern Leyte where his injuries were treated.  He suffered injuries on the head, left hand,
right knee, and chest.  He was incapacitated
to perform his regular work for a period of fifteen (15) days.^[5]

A post mortem examination was conducted on the
cadaver of Rufina Rosello
and it was found that she sustained injuries on her scalp, ear, cheek and
neck.  The cause of death was “Asphyxia,
by strangulation.”^[6]

Initial investigations revealed that one of the robbers was Florencio Daniel who used to be a “cargador”
of the Palancas. 
When questioned, Florencio Daniel admitted
that he participated in the commission of the robberies and pointed to Demetrio Cabale alias Demit, Bonifacio Cualteros alias Bonie, and Benito Terante alias Bodoy as his companions in committing said robberies.^[7]

Consequently, Demetrio Cabale, Bonifacio Cualteros, Florencio Daniel, and
Benito Terante alias Bodoy
were charged in two (2) separate informations before
the Court of First Instance of Maasin, Southern
Leyte, with the crimes of Robbery in
Band with Less Serious Physical Injuries, docketed therein as Criminal Case No.
R-2894, for the crime committed against Ricarido
Fernando; and Robbery in Band with Homicide, docketed therein as Criminal Case
No. R-2895, for the crime committed against Rufina Rosello.

After joint trial of the two (2) cases, the accused Demetrio Cabale, Florencio Daniel, and Benito Terante
were found guilty in both cases and sentenced, in Criminal Case No. R-2895 for
the crime of Robbery with Homicide, to suffer the Death penalty and to
indemnify, jointly, the heirs of the deceased Rufina Rosello in the amount of P12,000.00 plus P20,000.00 by way
of consequential damages, without subsi­diary imprisonment in case of
insolvency; and in Criminal Case No. R-2894 for the crime of Robbery with Less
Serious Physical Injuries, the accused Florencio
Daniel and Benito Terante were sentenced, each to
suffer an indeterminate penalty of from four (4) years and one (1) day of prision correccional,
as minimum, to ten (10) years of prision mayor,
as maximum, while the accused Demetrio Cabale was sentenced to imprisonment of from six (6) years
and one (1) day of prision mayor, as
minimum, to ten (10) years of prision mayor,
as maximum, with all three (3) accused to indemnify, jointly, Ricarido Fernando in the sum of P10,704.40, without subsidiary
imprisonment in case of insolvency.

The accused, Bonifacio Cualteros, upon the other hand, was acquitted of both
charges on reasonable doubt, but was, nevertheless, ordered to indemnify,
jointly with his co-accused, the offended parties Ricarido
Fernando and heirs of Rufina Rosello
in the amounts stated.

In view of the death penalty imposed upon each of the accused Demetrio Cabale, Florencio Daniel, and Benito Terante
in Criminal Case No. R-2895, the records of both Criminal Cases Nos. R-2894 and
R-2895 were forwarded to this Court pursuant to law for the review of the decision*
rendered therein.  However, upon the
adoption of the 1987 Constitution under which the death penalty is no longer
imposable, the accused, Florencio Daniel, when asked
whether or not he would like to continue with the review of the decision as an
ordinary appeal, informed the Court that he was no longer interested in
pursuing an appeal and that he was willing to serve the reduced penalty of reclusion
perpetua.^[8]
Accordingly, the judgment against him was considered final.^[9]

Since the judgment against the accused Demetrio
Cabale has also become final due to his escape from
detention, only the appeal of the accused Benito Terante
alias Bodoy is left for consideration.  Earlier, said accused manifested his desire
to continue and pursue his appeal.^[10]

The accused-appellant, Benito Terante
alias Bodoy, denied having participated in the
commission of the offenses charged in the informations,
and interposed the defense of alibi. 
According to him, he was in the copra drier, located at Barrio Suba, Sogod, Southern Leyte from 7:00 o’clock in the evening of 7 June 1968,
standing watch over piles of coconuts to be made into copra, together with one Cresencio Dugos, until 10 June
1968, when a policeman and PC
soldiers came and arrested him in
connection with the robberies committed at Magaupas.^[11]

He also claims that there was an irregularity in his arraignment
since it was done after the cases had been submitted for decision, so that he
was not afforded the chance to prepare properly for his defense; and that the
prosecution failed to prove his guilt beyond reasonable doubt since the
testimonies of the prosecution witnesses Vicente Mangaring,
Rosita Makiling, and Ricarido
Fernando are not credible in view of the inconsistencies and improba­bilities
in such testimonies.

We find no merit in the appeal. 
On the procedural issue, we find that while the arraignment of the
appellant was conducted after the cases had been submitted for deci­sion, the
error is non-prejudicial and has
been fully cured.  In the case of People vs. Atienza,^[12] where a similar issue was raised, the Court
said:

“Counsel for the appellant attacks the proce­dure followed in
the trial already referred where the two accused were arraigned after the
prosecu­tion had rested its case, and he claims that the trial court erred in
considering such evidence, especially since the trial court itself had declared
all the proceedings had before arraign­ment as null and void.  The error, if any, is non-prejudicial.  The interests of the appellant have not
suffered thereby.  His counsel entered
into trial without any objection on the ground that his client had not yet been
arraigned.  Said counsel cross-examined
the witnesses for the prosecution.  When
the fiscal offered to repro­duce all his evidence by presenting again his witnesses,
instead of accepting said offer, he agreed or rather did not object to having
that same evidence for the government declared by the court as reproduced.  We hold that this error or irregularity has
not prejudiced the right or interests of the appellant, and considering that
appellant’s counsel had full opportunity of cross-examining all the witnesses
who took the witness stand for the government and that furthermore he agreed to
the reproduction, of the evidence from the prosecution, the error or defect had
been substantially or fully cured.”

In the instant cases, counsel for the appellant entered into
trial without objecting that his client, the appellant herein, had not yet been
arraigned.  Said counsel had also the
full opportunity of cross-examining the witnesses for the prosecution.  Then, when the cases were being retried after
the appellant had been arraigned, appellant’s counsel filed a joint
manifestation with the prosecution, adopting all proceedings had previous to
the arraignment of the appellant.^[13]
There was, therefore, no violation of the appellant’s constitutional right to
be informed of the nature and cause of the accusation against him.

The Court cannot also give weight to the appellant’s alibi.  Settled is the rule that for alibi to prosper
as a defense, the accused must prove, not only that he was somewhere else when
the crime was committed, but also that it was impossible for him to be at the
scene of the crime at the time it was committed.  In the instant cases, the appellant failed to
prove his alibi that he was at the copra drier at Barrio Suba,
Sogod, Southern Leyte
when the robberies were committed.  He
claimed to be with one Cresencio Dugos
at the time, but he did not present the said Cresencio
Dugos to corroborate his claim.  Then, the appellant also failed to prove that
it was impossible for him to be at Barrio Magaupas, Liloan, Southern Leyte
at the time the robberies in question were being committed.  It should be noted that the robberies in
question were committed at about 8:00 o’clock
in the evening of 7 June 1968.  Since the appellant stated that he went to
Barrio Suba at about 7:00
o’clock, there was a time difference of only an hour so that it was
not improbable for the appellant to be at the scene of the crimes at the time
they were being committed.

Besides, the alibi of the appellant cannot prevail over the
testimony of Ricarido Fernando who positively
identified the appellant as one of the four (4) persons who perpetrated the
robberies on the night of 7 June 1968.  The moon was shining brightly and Ricarido Fernando had ample time and opportunity to observe
the robbers at close range so that he could not have been mistaken in
identifying them.  Ricarido
Fernando may not have known their names when the crimes were committed, but he
saw their faces and identified them in court. 
It would also appear that Ricarido Fernando
had no ill-motive to testify falsely against the appellant so that his
testimony is entitled to full weight and credence.

The alleged inconsistencies and
improbabilities in the testimonies of the witnesses for the prosecution,
pointed out by the appellant, refer to insignificant details which cannot
destroy the credibility of said witnesses. 
Besides, they have been fully explained. 
Moreover, the issue involves the credibility of witnesses and we find no
reason to set aside the findings of fact of the trial court.

The appellant also contends that the trial court erred in appreciating
the aggravating circumstance of nighttime in fixing the penalty imposed upon
him in Criminal Case No. R-2894, for Robbery with Less Serious Physical
Injuries, there being no proof that the appellant and his co-accused had
purposely sought the cover of darkness in committing the crime.  While we agree with this contention of the appellant,
the penalty imposed is still correct since there was abuse of superior
strength, without any mitigating circumstance to offset it.

The indemnity to be paid to the heirs of the deceased Rufina Rosello, should, however,
be increased from P12,000.00 to P30,000.00 in line with prevailing
jurisprudence.

WHEREFORE, with the modification that the indemnity to be
paid to the heirs of the deceased Rufina Rosello is increased to P30,000.00 (from P12,000.00), the
judgment appealed from is hereby AFFIRMED, with proportionate costs.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Sarmiento, and Regalado, JJ., concur.

^[1]
Tsn of June
17, 1970, p. 4

^[2]
Tsn of June
7, 1968, pp. 4, 31-35

^[3]
Tsn of July
27, 1978, pp. 13-21

^[4]
Id., pp. 22-24

^[5]
Tsn of August 19, 1972, pp. 5-7

^[6]
Tsn of January 14, 1971, pp. 77-79; Exhibit A

^[7]
Exhibit C

*
Penned by Judge Getulio M. Francisco

^[8]
Rollo, p. 148

^[9]
Id., p. 165

^[10]
Id., p. 126

^[11]
Tsn of April
21, 1983, pp. 28-30

^[12]
G.R. No. L-3001, June 17,
1950, 86 Phil. 576,
579-580

^[13]
Original Record, p. 709