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THIRD DIVISION
G.R. No. 97426 June 3, 1993
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROMEO APOLINARIO and ANTONIO RIVERA accused-appellants.
The Solicitor General for plaintiff-appellee.chanrobles virtual law library
Public Attorney's Office for 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.chanroblesvirtualawlibrarychanrobles virtual law library
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:chanrobles virtual law library
That on or about October 9, 1989 at around 2:00 in the morning, at Sitio Agbobolo, Brgy. Agdahon, Cuarterio, 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 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 Cassete 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 P18,250.00to 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.chanroblesvirtualawlibrarychanrobles virtual law library
ACTS CONTRARY TO LAW with the aggravating circumstance of use of superior strength and nighttime. 1chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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 the 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.chanroblesvirtualawlibrarychanrobles virtual law library
The prosecution presented Restituta Hibaler, the widow of the deceased victim Simon Hibaler, and Ernesto Biboso, the next-door neighbor of the Hibaler, whose testimony can be summarized in the following terms:chanrobles virtual law library
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 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.chanroblesvirtualawlibrarychanrobles virtual law library
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 took 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 there (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.chanroblesvirtualawlibrarychanrobles virtual law library
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;chanrobles virtual law library
2. Clean cut edges, spindle shaped, 1/2 x 1/4 inch, skull deep at right temporo frontal.chanroblesvirtualawlibrarychanrobles virtual law library
3. Clean cut edges wound, spindle shaped, 3/4 inch by 1/4, skull deep at medical frontal area.chanroblesvirtualawlibrarychanrobles virtual law library
4. Left infraorbital blackish hematoma 1 inch x 3/4.chanroblesvirtualawlibrarychanrobles virtual law library
5. Blackish hematoma left ear middle of pinna, 1/2 x 1/4 circular in form.chanroblesvirtualawlibrarychanrobles virtual law library
6. Blackish hematoma on entire lower lip.chanroblesvirtualawlibrarychanrobles virtual law library
7. Reddish hematoma left parasternal area 4th intercoastal (sic) space circular in from, 1 inch in diameter.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
10. Clean cut edges wound, spindle shaped, 3 inches long avulsing the little finger and middle third of the ring finger.chanroblesvirtualawlibrarychanrobles virtual law library
11. Clean cut edges wound, spindle shaped, 2 inches x 3/4, skull deep, temporo occipital area.chanroblesvirtualawlibrarychanrobles virtual law library
12. Clean cut edges wound, spindle shaped, 2 inches x 3/4, fracturing the skull at supra occipital area.chanroblesvirtualawlibrarychanrobles virtual law library
13. Clean cut edges wound, spindle shaped, 2 1/2 inches x 3/4, chipping of a portion of the skull and injuring the underneath (sic) brain tissue 1 � inch deep at parieto-occipital area.chanroblesvirtualawlibrarychanrobles virtual law library
14. Clean cut edges wound, spindle shaped, 2 1/2 inches by 1/2, transverse skull deep at occipital area.chanroblesvirtualawlibrarychanrobles virtual law library
15. Abrasion 1 1/2 inches long at left suprascapular area, diagonal in direction.chanroblesvirtualawlibrarychanrobles virtual law library
16. Abrasion 3 inches long at left lumbar area, diagonal in direction.chanroblesvirtualawlibrarychanrobles virtual law library
17. Clean cut edges wound, spindle shaped, 3 inches x 1/2 inch at right lumbar area, muscle deep, level of T 12.chanroblesvirtualawlibrarychanrobles virtual law library
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. 2chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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;chanrobles virtual law library
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; andchanrobles virtual law library
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. 3chanrobles virtual law library
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 you in the evening of October, 8, 1989?chanrobles virtual law library
A: I was in our house.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Where was your house situated?chanrobles virtual law library
A: At Sitio Agbobolo, Brgy. Agdahon, Cuartero, Capiz.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What were you doing that evening of October 8, 1989?chanrobles virtual law library
A: I was sleeping.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Please tell the court if you can remember about what time did you wake up from your sleep?chanrobles virtual law library
A: At 2:00 in the morning.chanroblesvirtualawlibrarychanrobles virtual law library
Q: You mean it was already October 9, 1989?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Please tell the court what woke you up?chanrobles virtual law library
A: I was surprised and I was awakened by some persons who woke up my husband.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What did these persons tell your husband?chanrobles virtual law library
A: Wake up.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And what did your husband do?chanrobles virtual law library
A: He woke up and he hold (sic) a flashlight and talk (sic) to those persons.
xxx xxx xxx
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?chanrobles virtual law library
A: There (witness pointing to those sitting on the bench).chanroblesvirtualawlibrarychanrobles virtual law library
Q: Please identify the persons closed to you.chanroblesvirtualawlibrarychanrobles virtual law library
A: Antonio.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What about the person near him?
(Witness identified that person as Antonio Rivera and the second person give his name as Romeo Apolinario.)chanrobles virtual law library
Q: What about this Mario Sion, is he inside the courtroom?
A: No, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: After your husband directed the beam of his flashlight to these three persons, what happened?chanrobles virtual law library
A: They took hold of my husband and they asked where is the money.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And what did your husband do?chanrobles virtual law library
A: My husband said, "it is you all along." (kamo man lang gali.)chanrobles virtual law library
Q: After he said that, what happened?chanrobles virtual law library
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.)chanrobles virtual law library
Q: Do you still have a scar to (sic) your nose?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Please point out to the court?chanrobles virtual law library
A: Witness pointed to her nose.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What happened after that, what happened to you after you were hit on the bridge of your nose?chanrobles virtual law library
A: I fell on the floor face up and I fainted and I do not know anything.
xxx xxx xxx
Q: When you recovered consciousness, what did you see?chanrobles virtual law library
A: When I recovered consciousness, I took (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?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And what about the companions of Romeo, where are (sic) they at the time?chanrobles virtual law library
A: They were there inside the room, I saw the companions of Romeo getting the contents of the trunks.
Q: Who were they?chanrobles virtual law library
A: Antonio and Mario.chanroblesvirtualawlibrarychanrobles virtual law library
Q: How were you able to recognize them?chanrobles virtual law library
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?chanrobles virtual law library
A: He was lying on the floor where he was boloed.chanroblesvirtualawlibrarychanrobles virtual law library
Q: How long did these three men stayed (sic) inside that room where you and your husband were sleeping?chanrobles virtual law library
A: About one (1) hour or more.chanroblesvirtualawlibrarychanrobles virtual law library
Q: After one hour where did these three persons go?chanrobles virtual law library
A: They went down from the second floor and drunk (sic) coffee.chanroblesvirtualawlibrarychanrobles virtual law library
Q: How do you know that?chanrobles virtual law library
A: Because I heard the clinking of the spoon.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And what did you do when you heard the clinking of the spoon?chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
Q: After that, what?chanrobles virtual law library
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?chanrobles virtual law library
A: Because they lighted the lamp and I could see them.chanroblesvirtualawlibrarychanrobles virtual law library
Q: How long did they stayed (sic) in that dining room downstairs drinking coffee?chanrobles virtual law library
A: Maybe ten (10) minutes.chanroblesvirtualawlibrarychanrobles virtual law library
Q: After ten minutes where did they go?chanrobles virtual law library
A: They went home.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What did you do after they left your house?chanrobles virtual law library
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)chanrobles virtual law library
Q: And after you asked from him, what happened?chanrobles virtual law library
A: I left him and I went to the balcony and called for Ernesto.
xxx xxx xxx
Q: And after you shouted to Ernesto, what happened?chanrobles virtual law library
A: Ernesto arrived.
xxx xxx xxx 4
(Emphasis 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?chanrobles virtual law library
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?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: After asking him that question was your question answered by him?chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What is the name of the other one?chanrobles virtual law library
A: Mario, Antonio, Romeo and no more.
xxx xxx xxx
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)chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
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?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
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).
xxx xxx xxx
Q: You personally know the two accused you mentioned, how long have you know Romeo and Antonio?
A: For a long time because they were always at Brgy. Agbobolo. 5(Emphasis 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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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. 7We 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, 8the 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(Emphasis 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)chanrobles virtual law library
A: Yes, sir. 10(Emphasis supplied)
Pedro feared that Pat. Habana might warn Romeo Apolinariom and that the latter and the other assailants might thereby escape apprehension.
People v. Tulagan
11cited 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?chanrobles virtual law library
A: The policemen.
Q: Did you take any transportation?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: When you rode that vehicle going home to Agbobolo, please tell the court what happened.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What is the name?chanrobles virtual law library
A: Elek.chanroblesvirtualawlibrarychanrobles virtual law library
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?chanrobles virtual law library
A: No sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And did the policemen do or what did the policemen do in Agbobolo?chanrobles virtual law library
A: They conducted a necropsy examination.chanroblesvirtualawlibrarychanrobles virtual law library
Q: From whom did they ask questions?
A: My mother.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And what did you (sic) mother tell them.chanroblesvirtualawlibrarychanrobles virtual law library
ATTY CUNANAN:chanrobles virtual law library
Objection.chanroblesvirtualawlibrarychanrobles virtual law library
COURT:chanrobles virtual law library
Reform.chanroblesvirtualawlibrarychanrobles virtual law library
Q: You said they asked your mother what happened?chanrobles virtual law library
A: My mother told them and they left.chanroblesvirtualawlibrarychanrobles virtual law library
Q: What did your mother tell them?
A: That Romeo Apolinario, Antonio Rivera and that Sion were the ones who killed my father.chanroblesvirtualawlibrarychanrobles virtual law library
Q: And you said the policemen left, do you know where they were going?chanrobles virtual law library
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Where?chanrobles virtual law library
A: Going to Brgy. Mainit.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Did they tell you what they are (sic) going to do in Brgy. Mainit?
A: Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library
Q: Why? (sic)chanrobles virtual law library
A: To look for Romeo Apolinario, Antonio Rivera and that certain Sion. 12(Emphasis 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 the 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.chanroblesvirtualawlibrarychanrobles virtual law library
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 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. 13The 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, 14it was held that:
. . .. 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(Emphasis supplied)
In People v. Salvilla, 16the 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. 17chanrobles virtual law library
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. 19chanrobles virtual law library
The information alleged two (2) aggravating circumstances. Since, however, as held in People v. Dapitan, 20the 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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
SO ORDERED.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Endnotes:
1 Records, pp. 1 and 2.chanrobles virtual law library
2 Id., pp. 217-218.chanrobles virtual law library
3 Appellants' Brief, p. 1.chanrobles virtual law library
4 TSN, 29 June 1991, pp. 2-7; Appellees's Brief, pp. 6-12.chanrobles virtual law library
5 TSN, 20 June 1990, pp. 5-6; Appellee's Brief, pp. 12-14.chanrobles virtual law library
6 E.g., People v. Talingdan, 191 SCRA 333 (1990); People v. Alegarbes, 173 SCRA 64 (1989).chanrobles virtual law library
7 Appellants' Brief, pp. 12-13.chanrobles virtual law library
8 186 SCRA 21 (1990). See also People v. Santito, Jr., 201 SCRA 87 (1991).chanrobles virtual law library
9 186 SCRA at 32.chanrobles virtual law library
10 TSN, 6 August 1990, pp. 4-5.chanrobles virtual law library
11 143 SCRA 107 (1988).chanrobles virtual law library
12 TSN, 6 August 1990, pp. 5-6.chanrobles virtual law library
13 TSN, 25 June 1991, p. 10.chanrobles virtual law library
14 202 SCRA 179 (1991).chanrobles virtual law library
15 202 SCRA at 186.chanrobles virtual law library
16 184 SCRA 671 (1990).chanrobles virtual law library
17 184 SCRA at 677.chanrobles virtual law library
18 People v. Puloc, 202 SCRA 179 (1991).chanrobles virtual law library
19 People v. Nunag, 196 SCRA 206 (1991).chanrobles virtual law library
20 196 SCRA 378 (1991).
