PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. OSCAR LAMOSA, GUALBERTO LAMOSA, SANTIAGO LAMOSA, AND SOFRONIO QUITER, ACCUSED-APPELLANTS.

Oscar Lamosa, Gualberto
Lamosa, Santiago Lamosa and
Sofronio Quiter were
charged before the Court of First Instance of Leyte
with the crime of Robbery with Homicide, docketed as Criminal Case Nos. Bn-1524
and Bn-1525, committed as follows:

“That on or about the 19th day of October 1977, in the
Municipality of Dagami, Province of Leyte, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, all armed with bolos, conspiring,
confederating and acting in concert with each other, with intent to gain and by
means of violence against and intimidation upon persons did, then and there wilfully, unlawfully and feloniously take, steal and carry
away cash money in the amount of P1,500.00 and jewelries consisting of wrist
watches, earrings and necklace valued at P1,800.00, or in the total value of
P3,300.00, owned by and belonging to the spouses Iluminado
Lucinario and Barbara Garcia, against their will and
without their consent, and to their damage and prejudice in the said amount.

“That by reason or on the occasion of the robbery
above-described, the four abovenamed accused, in the
furtherance of their conspiracy and with the use of bolos which they had
purposely provided themselves, with evident premeditation and with the decided
intent to kill did, then and there wilfully,
unlawfully and feloniously attack, assault, hack and wound the aforesaid
Barbara Garcia, thereby hitting and inflicting upon her injuries on the
different parts of her body which caused her death immediately thereafter.”

and with the
crime of Frustrated Murder, docketed as Criminal Case No. Bn-1523, committed as
follows:

“That on or about the 19th day of October, 1977, in the
Municipality of Dagami, Province of Leyte, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, all armed with bolos, conspiring, confederating
and acting in concert with each other with evident premeditation and with the
decided intent to kill did, then and there wilfully,
unlawfully and feloniously attack, assault, hack and wound Iluminado
Lucinario, with the bolo which accused Sofronio Quiter had at hand for
the purpose, thereby hitting and inflicting upon the latter with wounds on the different parts of his body which would
ordinarily cause death and required medical attendance for more than twenty-one
(21) days and incapacitated him from performing his usual daily activities for
the same period of time; thus, the accused performed all the acts of execution
which would have produced the crime of murder as a consequence thereof but
which, nevertheless said accused were not able to produce the same by reason of
causes independent of their will, and there [sic] were the timely escape of Iluminado Lucinario and the
proper and timely medical attendance rendered to him which prevented his
death.”^[1]

After a joint trial, judgment was rendered finding the accused
guilty of the crime of Robbery in Band with Homicide in Crim.
Case Nos. Bn-1524 and Bn-1525, and Frustrated Homicide in Crim. Case No. Bn-1523, and
sentencing said accused to suffer:  (1)
in Crim. Case Nos. Bn-1524 and Bn-1525, the supreme
penalty of death, to indemnify the heirs of the deceased Barbara Garcia Lucinario the sum of P3,300.00, the value of the properties
taken, and the amount of P12,000.00, for the death of said victim, without
subsidiary imprisonment in case of insolvency, and to pay the costs; and (2) in
Crim. Case No. Bn-1523, an indeterminate penalty
ranging from 2 years, 4 months and 1 day of prision correcional,
as minimum, to 10 years and 1 day of prision mayor, as maximum, and to pay the costs.

From said judgment, the accused appealed to this Court.

The incriminatory facts of these three (3) cases, as contained in the People’s Brief,
are as follows:

“On October 18, 1977, between eight and nine o’clock in the
morning Iluminado Lucinario
together with his wife Barbara and his daughter Elnora went to the house of Barangay Captain Bienvenido Servando of Sirab, Dagami, Leyte.  The Lucinarios
sought the assistance of Servando in connection with
the destruction of their land allegedly by Oscar and Santiago Lamosa who, they likewise alleged, threatened and intended
to kill them (TSN Servando, December 18, 1979, pp.
55, 56).  Unable to provide assistance to
the Lucinarios, Servando,
on the same day, reported the matter to Dagami
Station Commander Captain Andrade who, forthwith, summoned to a conference both
the Lucinarios and Oscar and Santiago Lamosa, and advised them to come to an agreement as they
belong to the same family (Id., pp. 57 and 58). 
Apparently nothing positive resulted from the conference as the parties
failed to meet later in the afternoon after being asked to do so by Captain
Andrade to further thresh out and settle the dispute (Id., p. 59).

“The following day or on October 19, 1977 at around 8:00
o’clock in the evening while Iluminado
was having supper with his wife at their house and while their children were
resting at their sala, someone knocked on the kitchen
door identifying himself as Gualberto Lamosa (TSN, I. Lucinario,
November 13, 1980, p. 8).  Gualberto Lamosa was allowed in
by Barbara who, when asked by the former on whether he was included in the
complaint they made with the Barangay Captain,
answered that he (Berting Lamosa)
is not included in the case.  (Id., p. 9).  Suddenly
Oscar Lamosa pushed aside the kitchen door and after
gaining entry started hacking Barbara with a bolo which was about thirty (30)
inches long (Id., p. 9).  Barbara fell
after she was hit, and immediately both Gualberto and
Oscar jumped out of the house (Id., p. 9). 
Immediately thereafter, Iluminado after
closing the kitchen door and securing the same with a bamboo lock carried
Barbara who was then bleeding profusely up the house and treated her wound by applying
thereon a crushed penicillin tablet placed in a cotton.  (Id., p. 11) While Iluminado
was administering to his wife, he heard Santiago Lamosa
giving instructions to his companions to push the door with a wood to gain
entry inside the house and to kill all the occupants thereon including the children.  (Id., p. 11) Forthwith, the door was rammed
and appellants were able to enter the house. 
Sofronio Quiter
immediately hacked with a bolo Iluminado hitting him
on his left and right arms.  (Id., p. 13)
Before Santiago and Oscar Lamosa could join Sofronio Quiter in the attack, Iluminado jumped out of the window landing first on the
porch and then on the ground.  (Id., p. 14). 
Appellants chased Iluminado who fled to the
house of Barangay Captain Servando
which was about half a kilometer away. 
(Id., p. 15) Upon reaching the aforesaid house, Iluminado
found that Servando was not there.

“While the physical attack on the Lucinarios
was going on, Reynaldo Tobe, a neighbor of the
former, acting on the cries for help emanating from the house of the Lucinarios proceeded to the house of Servando
to report the matter.  Servando then went to the Municipal
Building to ask for police
assistance.  (TSN, Servando,
December 18, 1979, p. 62) Unfortunately, however, the needed police assistance
could not be provided as there was only one policeman who was manning the
police station (Id., pp. 60, 61). 
Consequently, Servando returned to his house
after leaving word to the policeman on duty, Hermogenes
Bod-oy, that when the other policeman shall have
arrived that they proceed immediately to Barrio Sirab
as their assistance is [sic] needed (Id., p. 61).

“Meanwhile, appellants
discontinued chasing Iluminado and returned to
the latter’s house and upon seeing Elnora Lucinario,
tried to hack her with bolos (TSN, E. Lucinario, July
8, 1981, p. 13).  Appellant(s) did not
succeed in hitting Elnora as her mother, Barbara, came to the rescue and
protected her by swinging his [sic] arms (Id., p. 114) which allowed her
(Elnora) to run and hide inside her room. 
Appellants then concentrated their attack on Barbara who pleaded that
her life be spared (TSN, L. Lucinario, February 24,
1981, pp. 79, 80).  Her pleas fell on
deaf ears as appellants continued hacking her.  Barbara fell down on the floor after
receiving the blows.  Appellants then
dragged her – with Oscar holding her hair, Sofronio
her shoulder, Berting her breast and Santiago
her feet – and brought her out of the house and left her on the road.  This provided Elnora with the opportunity to
escape and join her father, who himself had escaped earlier, [sic] at the house of Servando.  Appellants again went back to the
house of the Lucinarios and ransacked the house
taking away all the money and the jewelries that they could find (Id., p. 82).

“Back at the house of
the Barangay Captain, Servando
upon his return from the Municipal Building found the wounded Iluminado
and Elnora waiting for him (TSN, E. Lucinario, July
8, 1981, p. 118) both of whom narrated the hacking incident that had
just happened at their house.  After a
while, Sgt. Jose Catoligo, responding to the call for
assistance of Servando, arrived (TSN, Servando, December 18, 1978, p. 63).  Except for Iluminado,
they all proceeded to the house of the Lucinarios
(TSN, Servando, December 18, 1978, p. 64).  Along the way, however, they found the dead
body of Barbara lying near the ditch on the left side of the road fourteen (14)
meters from the house of the Lucinarios.  Consequently, they proceeded to the house of
the Lucinarios and found that appellants were no longer there and their house had been
ransacked.

“Upon
the request of the Chief of Police, Dra. Paciencia Ofalla conducted an autopsy on Barbara Lucinario
(TSN, October 30, 1979, p. 13).  Dr. Ofalla testified that of the eleven stab wounds sustained
by the deceased, five of them were fatal, namely stab wounds number 2, 3, 4,
6 and 7 (Id., pp. 13-15).  The other
wounds while not necessarily fatal contributed to her death (Id., p. 16).  Wound No. 1 was on the forehead, 2 inches
long and one inch deep (TSN, November 20, 1979. pp. 29, 33).  Wounds 2, 3, 4 and 6 were sustained in the
right temporal portion of the head severely injuring the brain (TSN, October
30, 1979, p. 16; TSN, November
20, 1979, p. 29).  Wound No. 5 incised
the distal portion of the forearm (TSN, November 20, 1979, pp. 28, 34).  Wound No. 6 was sustained at the base of the
skull (Id., p. 30).  Wound No. 9 was
sustained at the left posterior portion of the chest cavity (Id., p. 31).  Wound No. 11 is 6 inches long, 2 inches wide
injuring the muscle tissues in the deltoid portion (Id., p. 28, 36).  The cause of death was shock due to profuse
hemorrhage (TSN, October 30, 1979, p. 17).

“Iluminado Lucinario
submitted himself to Dr. Dionisio Conde
for examination and treatment of his wounds. 
The former sustained two wounds, one in each forearm (TSN, January 23,
1980, p. 20).  The wound referred to as
wound No. 1 in the medical certificate
issued by Dr. Conde is two and a half inches long and
one inch deep (Id., p. 6).  Dr. Conde testified that Wound No. 1 was not fatal (Id., p.
8).  However, he considered Wound No. 2
fatal as it involved a lot of superficial blood vessels and nerves.  Death was averted when two tourniquets (Id.,
p. 20) made of pieces of cloth (Id., p. 19) were applied to Iluminado’s
wounds (Id., p. 11).  The tourniquets averted the hemorrhage.  The wound would have ‘ordinarily cause (sic) death’  (Id., p.
19).”^[2]

The accused-appellants Gualberto Lamosa alias “Berting“,
Santiago Lamosa and Sofronio
Quiter alias “Sopong”
claim, however, that they are innocent of the charges filed against them and
maintain that they were elsewhere when the offenses charged were
committed.  They point to
accused-appellant Oscar Lamosa as the person
responsible for the injuries suffered by
the spouses Iluminado and Barbara Lucinario.  Oscar Lamosa, for
his part, admitted having inflicted the injuries on Iluminado
and Barbara Lucinario but claims self-defense.

The version of the accused-appellant Oscar Lamosa
is as follows:

“At about 8:00
o’clock in the evening of October
19, 1977, he went out of his house to get his father’s carabao which was then tied inside the coconut plantation
of victim Iluminado Lucinario.  Thereafter, he proceeded to the house of his
mother to inform her about the fact that the carabao
was with him and proceeded home.  While on his way home, two persons who later
were identified to be deceased Barbara Lucinario and Iluminado Lucinario approached
Oscar Lamosa saying: 
‘I told you before not to pass on my land’ and immediately hacked Oscar
hitting the latter on the left hip. 
Oscar Lamosa embraced Barbara Lucinario using her as a shield to avoid the hacking blow
of Iluminado Lucinario who
as a result, hit Barbara Lucinario hitting the latter
on her thigh.  After Barbara Lucinario succeeded in releasing the hold of Oscar Lamosa, the latter drew his bolo and used it to parry the
hacking blow delivered by Iluminado Lucinario and in the process hit the latter (Iluminado Lucinario).  Thereafter, Barbara Lucinario
delivered a hacking blow on Oscar Lamosa which the
latter was able to escape, and he in turn made several hacking blows until
Barbara Lucinario fell on the ground, Oscar Lamosa faced Iluminado Lucinario who ran away. 
Oscar Lamosa, thereafter, proceeded home.  (TSN, pages 1 to 7, May 18, 1983, PEREGRINO)”^[3]

The accused-appellant Gualberto Lamosa alias “Berting“,
on the other hand, claimed that he was sleeping in his house in Barangay Sirab, Dagami, Leyte
in the evening of 19 October 1977
and did not leave his house because of a
swollen foot.^[4]
His testimony is corroborated by his wife Lucenda.^[5]

The alibi of the accused-appellant Santiago Lamosa
is that he was in the house of Celestino Garcia in Sagkahan, Tacloban City
in the evening of 19 October 1977
and stayed there until the following day, when he returned to Barangay Sirab.  Upon reaching his house at about 10:00
o’clock in the morning, his wife informed him that their son, Oscar
Lamosa, had been brought to the municipal
building.  He went to the municipal
building and asked to see Oscar Lamosa.  A policeman
asked him who he was and when he answered that he was the father, the policeman
told him to get inside the jail as he was also one of those accused in the
killing of Barbara Lucinario.^[6]

Santiago Lamosa’s testimony that he was
in the house of Celestino Garcia in Sagkahan, Tacloban City
on the evening of 19 October 1977
is corroborated by his uncle Valerio Garcia.^[7]

The accused-appellant Sofronio Quiter alias “Sopong”
claimed that he was at home in the evening of 19 October 1977 attending to his wife who had a
miscarriage after falling down their stairway in the afternoon of that day.^[8]
His testimony is corroborated by his wife Virginia O. Quiter.^[9]

The issue in this appeals again the credibility of witnesses, that
is, whether or not the trial court was correct in giving more weight to the
testimony of the prosecution witnesses than to the testimony of the
accused-appellants and their witnesses.

In the matter of credibility of witnesses, the rule is
well-settled that “unless there is a showing that the trial court had
overlooked, misunderstood or misapplied some fact or circumstance of weight and
substance that would have affected the result of the case, the appellate court
will not disturb the factual findings of the lower court.  For, having had the opportunity of observing
the demeanor and behavior of the witnesses while testifying, the trial court,
more than the reviewing tribunal, is in a
better position to gauge their
credibility and properly appreciate the relative weight of the often
conflicting evidence for both parties.”^[10]

After going over the records of the case, we find no
justification to overturn the judgment of the trial court giving credence to
the declaration of the prosecution witnesses. 
The alleged inconsistencies and contradictions in the testimony of the
prosecution witnesses, pointed out by the accused-appellants in their brief, if
they be so, refer to minor details which cannot destroy the credibility of said
prosecution witnesses.

With respect to the alibi of the accused-appellants, it would
suffice to say that such defense must yield to and cannot prevail over the
positive identification made by the witnesses for the prosecution.  Besides, it would appear that the houses of
the accused-appellants are near the house of Iluminado
Lucinario so that it was not impossible for the
accused-appellants to have been at the scene of the crimes at the time they
were committed.  For alibi to prosper, it
is not enough to prove that the accused-appellants were somewhere else when the
crime was committed, but it must likewise be shown that it was physically
impossible for them to have been at the scene of the crime at the time of its
commission.^[11]

As regards the claim of Oscar Lamosa
that he killed the deceased Barbara Lucinario in
self-defense, the well-settled rule is “xxx that one who admits the
infliction of the injuries which caused the death of another, has the burden of
proving self-defense, which is an affirmative allegation.  Where the evidence of self-defense is of
doubtful veracity, the defense must fail. 
The quintessence of various decisions on this point is to the effect
that evidence of self-defense must be clear and convincing and the accused
claiming self-defense must plant his case on the strength of his own evidence
and not on the weakness of that of the prosecution.”^[12]

In this case, the accused-appellant Oscar Lamosa
failed to discharge the burden imposed upon him by law to prove
self-defense.  The alleged stabbing of
the accused by Barbara Lucinario is not
corroborated.  Its credibility is
impaired by the lack of any medical finding that the said appellant sustained
injuries as a result of the alleged attack. 
As the trial court had stated, he (Oscar Lamosa)
should have himself been treated or at least examined by a doctor, as this
would be necessary for his own defense.

Besides, the said appellant (Oscar Lamosa)
declared that he was attacked by Iluminado and
Barbara Lucinario in a place about 100 meters
from the house of Santiago Lamosa.^[13]
Barangay Captain Bienvenido
Servando declared, however, that when he and Police
Sgt. Jose Catilogo went to the house of Iluminado Lucinario in the
evening of 19 October 1977, they found the body of Barbara Lucinario
near the ditch on the left side of the road facing Tacloban
City, about 14 meters from the house of Iluminado Lucinario,^[14]
which is far from the place
indicated by Oscar Lamosa.^[15]
The barangay captain also stated that they found
bloodstains in the house of Iluminado Lucinario,^[16]
which lends credence to the testimony of the prosecution witnesses that Barbara Lucinario was attacked and killed inside the Lucinario house and then brought outside said house.

The trial court found the accused-appellants guilty of the crime
of “Robbery in Band with Homicide.” This is not correct.  There is no special complex crime of
“Robbery in Band with Homicide.” In the case of People vs. Pedroso,^[17]
the Court said:

“xxxxx
There is no special complex crime of robbery in band with double homicide
and/or serious, less serious or slight physical injuries under the present
Code, as amended by Republic Act No. 373. 
If robbery with homicide (or with the other crimes enumerated above) is
committed by a band, the indictable offense would still be denominated as
‘robbery with homicide’ under Article 294(1), but the circumstance that it was
committed by a band is not an element of the crime but is merely a generic
aggravating circumstance which may be offset by mitigating circumstances.  The homicides or murders and physical
injuries, irrespective of their numbers, committed on the occasion or by reason
of the robbery are merged in the composite crime of ‘robbery with
homicide.’”

The facts of the case at bar do not also support a finding that
the offense committed is robbery with homicide, since the original
design of the accused-appellants was to kill and the taking of the money and
jewelry belonging to the deceased Barbara Lucinario
was but an afterthought.  The prevailing
rule is that “where the original design comprehends robbery in a dwelling,
and homicide is perpetrated with a view to the consummation of said offense,
the crime committed is the complex offense even though homicide precedes the
robbery by an appreciable interval of time. 
On the other hand, if the original criminal design does not clearly
comprehend robbery, but robbery follows the homicide as an afterthought or as a
minor incident of the homicide, the criminal acts should be viewed as
constitutive of two offenses and not as a single complex offense.”^[18]

The murderous design of the accused-appellants is clearly shown
by the number and gravity of the wounds inflicted upon the deceased Barbara Lucinario and the fact that she was dragged outside her
house and left at the ditch beside the road, as well as the rancor and bitterness
of the accused-appellants towards Iluminado Lucinario, when they ran after him as he fled towards the
house of the barangay captain.  If the original intention was really to rob Iluminado Lucinario, there was no
need for the appellants to run after Iluminado Lucinario.  Nor was
there a need for the accused-appellants to inflict so many fatal wounds on
Barbara Lucinario and to drag her to the roadway.

Besides, Virginia Quiter, wife of the
appellant Sofronio Quiter,
declared that the incident in question resulted from the closure of the path
inside the coconut plantation of Iluminado Lucinario, leading to the house of Santiago Lamosa, which was resented by Santiago Lamosa.^[19]

The evidence of the prosecution does not also establish the
commission of the offense of robbery, since there is no showing that the
accused-appellants had used force upon persons or things in taking away the
money and jewelry of the deceased Barbara Lucinario.  Leticia Lucinario,
who witnessed the asportation, merely declared that
the accused-appellants, after dragging her mother Barbara Lucinario
to the road, came back to the house and took the money and jewelry from their
bookstand and left.  Her testimony reads
as follows:

“Q   Now
after dragging your mother to the road, what did these four persons do, if any?

A   They
came back inside our house.

Q   And
when they came back inside your house, what did they do there, if any?

A   They
went to our bookstand and took money and jewelries.

Q   Now
after that what did they do next, if any?

A   They
got the money.

Q   Now
after that what did they do?

A   They
also got the watch, the necklace and earrings.

Q   Now
after getting the money from your bookstand and also the
watches and earrings, what did these four persons do next, if any?

A   They
placed the same inside their pocket.

Q   After
doing that what did they do?

A   They left.”^[20]

Hence, the crime committed is simple theft.

The killing of Barbara Lucinario cannot
also be categorized as Murder absent a qualifying circumstance duly alleged and
proved.  In the information filed against
the accused-appellants for the killing of Barbara Lucinario,
it was alleged that her killing was attended, and qualified to Murder, by evident premeditation.  There is evident premeditation when the killing had been carefully
planned by the offender, when he prepared beforehand the means which he deemed
suitable for carrying it into execution, and when he had sufficient time dispassionately to
consider and accept the consequences, and when there has been a concerted
plan.  It has also been held that evident premeditation requires proof of the
time when the offender determined to commit the crime; an act
manifestly indicating that the culprit had clung to his determination; and a
sufficient lapse of time between the determination and the execution of the
crime to allow his conscience to overcome the resolution of his will.^[21]

While, in the instant
case, the accused Santiago and Oscar Lamosa had
threatened to kill the spouses Iluminado and Barbara Lucinario, the day before, for closing the pathway in their
coconut plantation leading to the house of Santiago Lamosa,
as a result of which Iluminado and Barbara Lucinario complained to the barangay
captain and later to the police station commander, there are no overt facts of
record that would show when the accused-appellants had resolved to commit the
crime and that they had cooly and dispassionately
reflected on the means of carrying out the resolution into execution and the
consequences of their criminal design.

As stated by this Court
in People vs. Lacao:^[22]

“It is not sufficient to suspect that premeditation preceded
the crime.  The criminal intent evidenced
by outward acts must be notorious and manifest, and the purpose and
determination must be plain and have been adopted after mature consideration on
the part of the persons who conceived and resolved upon the perpetration of the
crime, as a result of deliberation, meditation, and reflection sometime before
its commission (U.S. vs. Banagale, 24 Phil. 69, 73;
People vs. Mendova, 100 Phil. 811).”

Accordingly, the crime committed by the accused-appellants for
the killing of Barbara Lucinario is simple Homicide,
with the aggravating circumstances of: 
(1) Dwelling since the crime was committed inside the residence of said
deceased; (2) Breaking a wall or door to gain entry (Art. 14, No. 19, Revised
Penal Code), instead of unlawful entry, as
erroneously found by the trial court, since the accused-appellants
rammed the door off its hinges in order to gain entry, whereas “unlawful
entry” exists only when entrance into a building is made by a way not for
the purpose of entry; (3) Abuse of superior strength, since there were four (4)
armed men pitted against one
unarmed woman; and (4) Disregard
of sex, without any mitigating circumstance to offset the same.

The trial court, however, correctly found that, where Iluminado Lucinario was the
victim (Criminal Case No. Bn-1523), the crime committed is Frustrated Homicide,
since the qualifying circumstance of evident premeditation has not been
proven.  The aggravating circumstances
properly considered should be Dwelling and Breaking a Wall or Door to Gain
Entry, instead of “unlawful entry”, and as the penalty imposed upon the accused-appellants in said case,
namely, an indeterminate penalty ranging from 2 years, 4 months and 1 day of prision correcional,
as minimum, to 10 years and one 1 day of prision mayor, as maximum, is within
the range provided for by law, the judgment therein should be affirmed.

WHEREFORE, the appealed judgment in
Criminal Case Nos. Bn-1524, Bn-1525 and Bn-1523 is hereby AFFIRMED, with
the modification that in Criminal Case Nos. Bn-1524 and Bn-1525, the
accused-appellants are found guilty of two (2) distinct crimes of Homicide and
Theft and sentenced to suffer:  (1) in
the case for Homicide, an indeterminate penalty of from 10 years and 1
day of prision mayor, as minimum, to 20
years of reclusion temporal, as maximum, and to indemnify,
jointly and severally, the heirs of the deceased Barbara Lucinario
in the amount of P30,000.00; and (2) in the case for Theft, an
indeterminate penalty of from 4 months and 1 day of arresto
mayor, as minimum, to 4 years and 2 months of prision
correcional, as maximum, and to indemnify,
jointly and severally, the heirs of the deceased Barbara Lucinario
in the amount of P3,300.00.  With costs against the accused-appellants.

SO ORDERED.

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

Sarmiento, J., on leave.

^[1]
The original complaints filed against the appellants before the Municipal Trial
Court of Dagami, Leyte
were for Frustrated Murder, Murder and Robbery in Band.  After the preliminary investigation, the
complaints for Murder and Robbery in Band were consolidated in
one information for Robbery with Homicide.

^[2]
Appellee’s Brief, pp. 7-12

^[3]
Appellants’ Brief, pp. 3–4

^[4]
tsn of May
28, 1983, pp. 180-181

^[5]
tsn of July
28, 1983, pp. 173-177

^[6]
tsn of February
21, 1983, pp. 3-7

^[7]
tsn of July 29, 1983, pp. 17-18

^[8]
tsn of July 15, 1982, pp. 141-142

^[9]
tsn of June
10, 1983, pp. 3-7

^[10]
People vs. Ablaza, 30 SCRA 173, 176

^[11]
People vs. Mercado, L-39511-13, April
28, 1980, 97 SCRA 232, 247

^[12]
People vs. Rosario, L-46161,
Feb. 25, 1985, 134 SCRA
496, 504-505

^[13]
tsn of May
18, 1983, p. 5

^[14]
tsn of Dec.
18, 1979, pp. 64-65

^[15]
See Exhibit 7

^[16]
tsn of Dec.
18, 1979, p. 66

^[17]
G.R. No. L-32997, July 30, 1982; 115 SCRA 599, 608-609

^[18]
3 Aquino, Revised Penal Code, p. 116

^[19]
tsn of June
10, 1983, pp. 12-13

^[20]
tsn of Feb.
24, 1981, pp. 82-83

^[21]
People vs. Camano, G.R. Nos. L-36662-63,
July 30, 1982, 115 SCRA 688

^[22]
G.R. No. L-32078, Sept. 30, 1974, 60 SCRA 89, 95