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FIRST DIVISION

G.R. No. 89116 August 22, 1990

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. CALIXTO TUMALE y TANGUIN, MAXIMO ATIENZA y AMBAL, ROLANDO TITOY y BANTASAN, Defendants-Appellants.

GANCAYCO, J.:

This is a prosecution for robbery with homicide resulting in the senseless maltreatment of an old woman that caused her life.chanroblesvirtualawlibrarychanrobles virtual law library

At about 5:00 o'clock in the morning of September 5, 1987, Susan Aguilar, alias Susan Titoy, together with Sammy Cardenas opened the sari-sari store of their employer's mother-in-law, Lola Gorgonia Danque Vda. de Limcangco, at No. 4 Glenn Street, U.P. Professors Village, Barrio Culiat, Diliman, Quezon City. Thereafter, Susan went inside the house adjoining the store to cook and clean the house while Sammy cleaned the car.chanroblesvirtualawlibrarychanrobles virtual law library

Two men then arrived at the store to buy cigarettes. They looked around to see if other people would come. Suddenly their three companions arrived and all the five of them entered the store. Two of them grabbed Lola Gorgonia by the hand and covered her mouth with a handkerchief to prevent her from shouting. They dragged her towards the house adjoining the store. When they saw Sammy cleaning the car, they held him by the neck as they entered the house. In time, they tied up Lola Gorgonia, Susan and Sammy with plastic straws. The women were shoved inside the bathroom, while Sammy was left outside. While inside the bathroom, Lola Gorgonia felt dizzy and her perspiration and breath were cold.chanroblesvirtualawlibrarychanrobles virtual law library

The five men ransacked the house and the store and were able to take away cash, a pair of diamond earrings, a ring, a transistor radio, a table watch, a stethoscope and a blood pressure instrument, all valued at P8,000.00 to P9,000.00.chanroblesvirtualawlibrarychanrobles virtual law library

Upon noticing that the men were gone, Sammy opened the bathroom and saw Lola Gorgonia sitting on the floor, while Susan was holding her head asking if she was still alive. Lola Gorgonia appeared to be glaring at Susan as if the latter had a part in the crime.chanroblesvirtualawlibrarychanrobles virtual law library

Sammy then opened the gate where he met his employer, Ric Aquino, son-in-law of Lola Gorgonia, who inquired about what happened. Aquino then rushed his mother-in-law to the Philippine Heart Center where she was pronounced dead. Post mortem examination showed that the cause of her death was "cardiac failure, secondary to myocardial infraction, resulting from coronary insufficiency.chanroblesvirtualawlibrarychanrobles virtual law library

On the same day the incident was reported to the police. The sketch of the face of one of the suspects was made based on the description of eyewitnesses. This led to the apprehension of Calixto Tumale whose face had a strong resemblance to the said sketch. He was investigated by Pfc. Rodrigo R. Fortaleza of the Quezon City Police Station on September 19, 1987. His statement was taken in writing and was sworn to before the fiscal on the same day. ¹ In the said statement it appears that he admitted his complicity in the commission of the offense and he Identified his companions to be Rene Roma, Maximo Atienza, Rolando Titoy and one Dado. Thus, Maximo Atienza and Rolando Titoy were apprehended. In due course an amended information was filed against all of them in the Regional Trial Court of Quezon City charging them with the offense of robbery with homicide.chanroblesvirtualawlibrarychanrobles virtual law library

Upon arraignment all the accused entered a plea of not guilty. After the trial on the merits a decision was rendered by the trial court on March 8, 1989 finding the three accused guilty beyond reasonable doubt as principals of the crime of robbery with homicide and sentencing each one of them to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim, Gorgonia Danque Vda. de Limcangco, in the amount of P30,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs.chanroblesvirtualawlibrarychanrobles virtual law library

Not satisfied therewith said accused appealed to this Court.chanroblesvirtualawlibrarychanrobles virtual law library

In his appeal, appellant Maximo Atienza raises the following errors allegedly committed by the trial court:

Ichanrobles virtual law library

THE TRIAL COURT ERRED WHEN IT DISREGARDED THE REPUDIATION BY APPELLANT CALIXTO TUMALE OF HIS STATEMENT WHICH HE GAVE TO THE POLICE.

IIchanrobles virtual law library

THE TRIAL COURT ERRED WHEN IT DISREGARDED THE FACT THAT EYEWITNESS SUSAN AGUILAR/SUSAN TITOY WAS NOT ABLE TO IDENTIFY THE APPELLANTS IN OPEN COURT.

IIIchanrobles virtual law library

THE TRIAL COURT ERRED WHEN IT RULED THAT APPELLANT MAXIMO ATIENZA WAS A PRINCIPAL IN THE OFFENSE CHARGED.

IVchanrobles virtual law library

THE TRIAL COURT ERRED WHEN IT RULED THAT THERE WAS CONSPIRACY AMONG THE APPELLANTS.

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THE TRIAL COURT ERRED WHEN IT DISREGARDED THE FACT THAT APPELLANT MAXIMO ATIENZA WAS NOT ASSISTED BY COUNSEL WHEN HE WAS BROUGHT TO THE POLICE STATION.

VIchanrobles virtual law library

THE TRIAL COURT ERRED WHEN IT DISREGARDED THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE OF APPELLANT MAXIMO ATIENZA.chanroblesvirtualawlibrarychanrobles virtual law library

In a separate appeal the other appellants enumerated the alleged errors of the trial court to be:

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THE COURT A QUO ERRED IN GIVING MUCH WEIGHT AND CREDENCE TO THE EVIDENCE FOR THE PROSECUTION WITHOUT CONSIDERING THAT OF THE DEFENSE.

IIchanrobles virtual law library

THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE.

The pivotal issue in this appeal is whether or not the appellants have been duly identified to be among the culprits by the witnesses for the prosecution. Insofar as appellant Tumale is concerned, the admissibility of his extrajudicial confession is also in issue.chanroblesvirtualawlibrarychanrobles virtual law library

An examination of the testimony of Susan Aguilar shows that the following answers were given by her to the questions propounded to her on direct examination:

Q Who were these people you said hogtied you?chanrobles virtual law library

A Them, Sir, but I could only remember their face before when I was hogtied I was brought inside the bathroom.chanroblesvirtualawlibrarychanrobles virtual law library

Q Do you know the person by face, the one who hogtied you?chanrobles virtual law library

A I will be able to recognize him once I see him.chanroblesvirtualawlibrarychanrobles virtual law library

Q Will you please stand and Iook around this Court and tell us if he is here?chanrobles virtual law library

A They are not here, Sir. Nobody is here. They are not here.chanroblesvirtualawlibrarychanrobles virtual law library

ATTY. INTING

I manifest that the suspects Calixto Tumale and Titoy are present in Court, your honor.

COURT

Alright, please take note.

ATTY. ROUS

Same manifestation for Maximo Atienza.

COURT

The manifestation of the counsel for accused that Tumale, Titoy and Atienza are all in court is NOTED. ²chanrobles virtual law library

On further questions on the direct examination the same witness testified as follows:

Q Coming back to you said the man held you, then what happened after that?chanrobles virtual law library

A I was hogtied and I look up and I saw an old man whom I recognize and I told him "kilala kita".chanroblesvirtualawlibrarychanrobles virtual law library

Q What is his name?chanrobles virtual law library

A Calixto.chanroblesvirtualawlibrarychanrobles virtual law library

Q You know his full name?chanrobles virtual law library

A I do not know, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Is he here in Court?chanrobles virtual law library

A Yes, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Will you please point him to us?chanrobles virtual law library

A There, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

(Witness pointing to a person who is presently handcuffed and Identified himself as Calixto Tumale.)chanrobles virtual law library

FISCAL ESCUETAchanrobles virtual law library

Why did you know him?chanrobles virtual law library

A Because he usually pass by our place at our store.chanroblesvirtualawlibrarychanrobles virtual law library

Q Then after being held by the man you pointed to as Calixto,chanrobles virtual law library

what did he do to you if he did anything?chanrobles virtual law library

A I was tied and I was brought inside the bathroom.chanroblesvirtualawlibrarychanrobles virtual law library

Q Who tied you?chanrobles virtual law library

A The old man who was wearing yellow suit.chanroblesvirtualawlibrarychanrobles virtual law library

Q Is he here in Court the one who tied you?chanrobles virtual law library

A I do not recognize him here, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL ESCUETAchanrobles virtual law library

Do you know him by face?chanrobles virtual law library

WITNESSchanrobles virtual law library

Yes, by face because. He's round face.chanroblesvirtualawlibrarychanrobles virtual law library

Q Will you please look around for the second time if he is here?chanrobles virtual law library

A None, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q After you were shoved inside a room, what happened next?chanrobles virtual law library

A No, Sir, it was in the bathroom. ³

From the testimony of this witness it is clear that while in the beginning she could not Identify any of the culprits among any of the appellants who were then present in court, on further questions of the prosecution she positively identified the appellant Calixto Tumale as among the robbers. She nevertheless failed to identify the two other appellants. Her inability to identify appellant Tumale at the beginning may be attributed to her nervousness and it being her first experience in court.chanroblesvirtualawlibrarychanrobles virtual law library

Sammy Cardenas also testified in this manner as to the Identity of the persons he saw:

Q Were you able to see the face and the appearance of these five people that entered the store of your Lola Gorgonia?chanrobles virtual law library

A Yes, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Would you be able to recognize them if you would see them?chanrobles virtual law library

A Yes, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Will you kindly stand up and look around inside the courtroom and try to Identify the person you saw on that particular date and time by tapping them on the shoulder or point at their person.chanroblesvirtualawlibrarychanrobles virtual law library

WITNESSchanrobles virtual law library

The two of them, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

COURTchanrobles virtual law library

Will you kindly stand up.chanroblesvirtualawlibrarychanrobles virtual law library

(Witness pointing to a person who Identified themselves as Maximo Atienza and Calixto Tumale.)chanrobles virtual law library

ATTY. BERNALBOchanrobles virtual law library

You said that there were five people who entered the sari- sari store of your lola Gorgonia, how many of them you could actually recognize if you see them again?chanrobles virtual law library

A I can only identify four not five, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What is the reason why you could not Identify the fifth one?chanrobles virtual law library

A Because he was wearing a mask, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

ATTY. BERNALBOchanrobles virtual law library

What kind of mask was that particular person wearing, will you kindly describe the mask?chanrobles virtual law library

WITNESSchanrobles virtual law library

It was a black mask, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What part of the face of that masked man could be seen?chanrobles virtual law library

A Only his eyes, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q You said a while ago that they tied, . . .chanroblesvirtualawlibrarychanrobles virtual law library

COURTchanrobles virtual law library

You said five men entered the store, you can Identify only 4, the fifth man was masked but you identified in open Court only two, are there any other members of the group in Court aside from the two you identified?chanrobles virtual law library

A I do not see anyone aside from the two.chanroblesvirtualawlibrarychanrobles virtual law library

COURTchanrobles virtual law library

Will you check whether there are other accused here in Court?chanrobles virtual law library

ATTY. ANDRES (Branch Clerk of Court)chanrobles virtual law library

There are three (3) accused in Court.chanroblesvirtualawlibrarychanrobles virtual law library

ATTY. BERNALBOchanrobles virtual law library

You said a while ago that they tied up your Lola Gorgonia and covered her mouth, after that what did they do with your Lola Gorgonia? ⁴

This witness positively Identified appellants Maximo Atienza and Calixto Tumale as among the persons who participated in the commission of the offense in his presence. He was not able to identify the rest of the five persons, including the one who was allegedly wearing a mask, from among the appellants present in court.chanroblesvirtualawlibrarychanrobles virtual law library

Susan Titoy, the mother of appellant Rolando Titoy, took the witness stand anew and was presented by the prosecution. She testified as follows:

Madame witness, what is your relation with the accused Rolando Titoy?

A He is my son.chanroblesvirtualawlibrarychanrobles virtual law library

Q If he is in Court madame witness, will you be able to point at Rolando Titoy?chanrobles virtual law library

A Yes, madam.chanroblesvirtualawlibrarychanrobles virtual law library

Q Will you please look around and point to Titoy if he is in Court? (Witness pointing to a person who identified himself as Rolando Titoy.)chanrobles virtual law library

Q Madame witness, were you living together before or immediately before the incident?chanrobles virtual law library

A He is not there. He is not living with me.chanroblesvirtualawlibrarychanrobles virtual law library

Q Since when have you been separated with your son Rolando Titoy?chanrobles virtual law library

A Long time ago because I have been living with my employer long.chanroblesvirtualawlibrarychanrobles virtual law library

Q Although you have not been living together with your son, when this incident happened and immediately before, would you be able to recognize your son if and when he is near you?chanrobles virtual law library

A Of course, madame, because he is my son.chanroblesvirtualawlibrarychanrobles virtual law library

Q You will recall that you testified that one of the persons who entered the residence of Aquino was wearing a mask, do you remember that you testified on that?chanrobles virtual law library

A Yes, madam, I remember.chanroblesvirtualawlibrarychanrobles virtual law library

Q Were you able to recognize the person who was wearing a mask?chanrobles virtual law library

A No I was not able to recognize him, madam.chanroblesvirtualawlibrarychanrobles virtual law library

Q Was that person the one wearing mask, one of those who entered the comfort room?chanrobles virtual law library

A The one that brought me to the comfort room was not wearing a mask.chanroblesvirtualawlibrarychanrobles virtual law library

Q Where did you see this person who was wearing a mask in relation to the whole house of Aquino?chanrobles virtual law library

A Outside, madam. At the garage.chanroblesvirtualawlibrarychanrobles virtual law library

Q Was he near you then when you saw this man wearing a mask?chanrobles virtual law library

A No, madam.chanroblesvirtualawlibrarychanrobles virtual law library

Q But you saw him very well, is it not?chanrobles virtual law library

A No madame because I was immediately brought inside the comfort room.chanroblesvirtualawlibrarychanrobles virtual law library

Q But you saw this man wearing a mask?chanrobles virtual law library

A Yes, madame. I saw him but it was not clear.chanroblesvirtualawlibrarychanrobles virtual law library

Q When you saw him, was he facing you or was his back toward against you?chanrobles virtual law library

A He was not facing me. His back was towards me.chanroblesvirtualawlibrarychanrobles virtual law library

Q That is all for the witness. ⁵

Susan was positive in her identification in the courtroom of Rolando Titoy being her son. She asserted that she could easily identify him anytime because he is her son. Nevertheless, she could not say whether the person wearing a mask was her son.chanroblesvirtualawlibrarychanrobles virtual law library

From the foregoing set of evidence of the prosecution there can be no question that the appellants Calixto Tumale and Maximo Atienza have been duly identified as among the culprits by eyewitnesses but none of them identified appellant Rolando Titoy.chanroblesvirtualawlibrarychanrobles virtual law library

The positive identification of the perpetrators of an offense is required if their complicity is to be established beyond reasonable doubt. The failure to identify any of the accused would be fatal to the case of the prosecution as to said accused.chanroblesvirtualawlibrarychanrobles virtual law library

As to the extrajudicial confession of appellant Calixto Tumale, ⁶the Court finds and so holds that the same is not admissible in evidence against him much less against his co-appellants. A reading of the same as well as that of the testimony of investigator Fortaleza shows that he was not assisted by counsel during said investigation and that his alleged waiver of the right to counsel was not made with the assistance of a counsel. This is a constitutional requirement, failing in which, the said extrajudicial confession is not admissible in evidence.chanroblesvirtualawlibrarychanrobles virtual law library

The Court is not persuaded by the observation of the lower court that because appellant Tumale admitted that he knew his co-appellants, there is conspiracy. The mere fact that certain persons know each other do not necessarily prove conspiracy. Other acts than this must be established. While conspiracy need not be supported by documentary evidence, it may be deduced from the mode and manner in which the offense was committed. ⁷chanrobles virtual law library

However, We find and so hold that there is conspiracy in this case among the five men including appellants Tumale and Atienza who were positively identified. By their joint and simultaneous acts they showed oneness of purpose to commit the robbery by disabling the household members present resulting in the death of Lola Gorgonia and carting away the personal property of Ric Aquino.chanroblesvirtualawlibrarychanrobles virtual law library

The Court also finds that Rolando Titoy had not been satisfactorily identified as a co-conspirator.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the judgment appealed from is AFFIRMED as to appellants Calixto Tumale and Maximo Atienza but it is hereby REVERSED AND SET ASIDE as to Rolando Titoy and another judgment is hereby rendered ACQUITTING Rolando Titoy, with costs de oficio.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.