Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 1920 > March 1920 Decisions > G.R. No. 15672 March 16, 1920 - UNITED STATES v. MACARIO BONETE

040 Phil 958:




PHILIPPINE SUPREME COURT DECISIONS

FIRST DIVISION

[G.R. No. 15672. March 16, 1920. ]

THE UNITED STATES, Plaintiff-Appellee, v. MACARIO BONETE, CANDIDO DELUTA, FILOMENO DAYONDON, ESTEFANIO DELUTE, GERONIMO BONETE and FLORENCIO PAUG, Defendants-Appellants.

Francisco Zullcita for Appellants.

Attorney-General Paredes for Appellee.

SYLLABUS


1. ROBBERY COMMITTED BY BREAKING OF WALLS. — Held: That the act of the appellants in entering the store, pulling off the timbers of the wall and making an opening therein in order to take away the goods which disappeared from the store, constitutes the crime of robbery, defined and penalized in article 608, paragraph 2, of the Penal Code.

2. AGGRAVATING CIRCUMSTANCE; NIGHTTIME. — Nighttime having been a circumstance which rendered the commission of the crime easy and having been sought by the appellants in order to insure their success, the same should be considered an aggravating circumstance.

3. CRIMINAL PROCEDURE; CONTINUANCE OF TRIAL. — When the court ordered that evidence be presented, the attorney for the accused asked for a postponement of the trial, to which the prosecuting attorney objected. The court, after hearing the arguments of both parties, denied the motion but stated that he would see if it was necessary to accede to the postponement in order to hear the testimony of the witnesses for the defense. Evidence for the prosecution and for the defense was presented, but the attorney for the accused did not, when his turn to offer evidence came, state that it was still necessary for him that the trial should be continued. The introduction of evidence having terminated, judgment was rendered by the court. Held: That the court did not err in refusing to postpone the trial of the case. The conduct of the attorney for the appellants in failing during the whole course of the trial to repeat his motion for continuance, although he knew that the court was ready to consider it, indicated that he renounced his motion which was presented at the beginning of the trial.

4. STATUTORY CONSTRUCTION; ACT No. 2709; EVIDENCE FOB THE PROSECUTION; DISCHARGE OF WITNESSES. — The court granted the motion of the fiscal to the effect that one of the accused persons should be discharged from the information in order that he might be used as a witness for the prosecution. Held: That the ruling of the court is in accordance with Act No. 2709. (U. S. v. Abanzado, 37 Phil., 658.)

5. ID.; ID.; WITNESSES. — The fiscal presented, as one of the witnesses for the prosecution, a person who had taken part in the commission of act charged and the attorney for the appellants contends in this instance that the court erred in admitting the testimony of said witness without first ordering the fiscal to include him in the information. Held: That this point not having been raised in the first instance, it cannot be raised for the first time on appeal. (U. S. v. Inductivo, 40 Phil., 84.)

6. EVIDENCE; SUFFICIENCY. — When the evidence presented in any case is sufficient to establish the guilt of the accused persons, the failure of the court to order the introduction of more evidence cannot be considered as error.

7. CRIMINAL LAW; CRIMINAL RESPONSIBILITY; ACCESSORY. — One of the accused participated in the commission of the crime by receiving from one of the robbers a pair of shoes although he knew that they were part of the goods stolen. Held: That his responsibility is that of accessory only.

8. JUDGMENT, LACK OF PRONOUNCEMENT AGAINST AN ACCUSED. — J. B. was one of the accused, who was arraigned, pleaded not guilty and was present during the whale trial, but the judgment does not contain any pronouncement whatever against him. Held: That there is no judgment against this accused in the first instance and the record should be sent back to the court below in order that it may render the corresponding judgment.


D E C I S I O N


AVANCEÑA, J. :


The Chinaman Uy Pingco lived in his house in the municipality of Hinunangan, Province of Leyte. In the lower part thereof he had a store where cloth and other merchandise were sold. In the morning of August 12, 1918, he discovered that an opening had been made in the walls of the store through which one person could enter and that some timbers of the wall have been pulled off. He examined the interior of the store and found lacking cloth and other effects worth P1,700.

It is necessary to refer briefly to the proceedings taken in this cause because some of the errors assigned in the brief of the appellants are based upon them. On September 11, 1918, the provincial fiscal of Leyte filed an information against Macario Bonete, Geronimo Bonete, Nazario Bonete (Cesario), Estefanio Delute, Candido Deluta, Filomeno Dayondon, Jorge Rautraut and Florencio Paug, as authors of the robbery. These accused were arraigned upon this information on October 23d following, all of them pleading not guilty. On the same date the provincial fiscal, alleging that, from the investigations made in the case, the accused Nazario Bonete appeared to be the least guilty and that his testimony was necessary, as there was not sufficient evidence to support the charges, asked that he be excluded from the information in order that he might be a witness for the prosecution. The next day the court ruled favorably upon the motion of the fiscal and by order of that date Nazario Bonete was discharged from the information, his proportional part of the costs being declared de officio. When the court ordered that evidence be presented, the attorney for the accused asked for a postponement of the trial, to which the prosecuting attorney objected, and the court, after hearing the arguments of both parties, denied the motion but stated that he would see if it was necessary to accede to the postponement in order to hear the testimony of the witnesses for the defense. The trial proceeded, evidence for the prosecution and for the defense was presented, but the attorney for the accused did not, when his turn to offer evidence came, state that it was yet necessary for him to ask for the continuance of the trial. On October 30, 1918, the court rendered its judgment, convicting the accused of robbery and sentencing Florencio Paug to fourteen years and one day, cadena temporal, and the accused Macario Bonete, Candido Deluta, Filomeno Dayondon, Estefanio Delute and Geronimo Bonete to twelve years and one day, cadena temporal, with the accessories provided by law, and to pay each and everyone of them jointly and severally to the Chinaman Uy Pingco the sum of P1,669.751., as indemnification for the value of the goods stolen, as well as the costs. No finding or provision whatever was made in this decision with respect to Jorge Rautraut. From this judgment the accused who were convicted appealed.

It appears from the evidence that at 11 o’clock in the morning of August 11, 1918, the brothers, Macario Bonete and Cesareo Bonete, accompanied by Guillermo Resma and using a boat belonging to Geronimo Bonete, another brother, went to Hinunangan, arriving at the river of this town at 4 o’clock that afternoon. After these three persons had landed, they went to the hills, guided by Macario Bonete, and stopped at the house of Estefanio Delute whom they found in the company of Filomeno Dayondon and Candido Deluta. Macario Bonete entered one room of the house to talk with Estefanio Delute, Filomeno Dayondon and Candido Deluta, and afterwards they all took supper. At 9 o’clock that evening these six persons, all armed with bolos with the exception of Guillermo Resma and Cesareo Bonete, left the house, Estefanio Delute further carrying with him an auger and Macario Bonete a handsaw. They directed their steps to the river and upon arriving there, Macario Bonete ordered that Estefanio Delute, Guillermo Resma and Cesareo Bonete should remain at the boat, and he, together with Filomeno Dayondon and Candido Deluta went to the town. At 4 in the morning Macario Bonete, Filomeno Dayondon and Candido Deluta returned to the boat, carrying with them cloth and other effects which Macario ordered to be kept. Macario Bonete returned to the town, this time accompanied by Cesareo Bonete and Estefanio Delute, and, upon arriving at the store of the Chinaman Uy Pingco, they found Florencio Paug, who placed upon the shoulders of Cesareo Bonete cloth to be taken to the boat. Cesareo Bonete and Estefanio Delute carried these effects taken from the store to the boat. Macario Bonete then ordered the boat to put out to sea, because there were more cloth to be taken near the church When already at sea and near the place where these other effects were deposited, Florencio Paug, who must have been waiting for them, told them to sail towards the cemetery, where Macario Bonete, Cesareo Bonete and Guillermo Resma took more cloth near a vine, but they were not able to load all, because Florencio Paug ordered them to leave immediately so that they might not be seen by those who may have gone to the shore to buy fish. They all went out to sea and sailed towards Tubahon in the municipality of Dinagat, Province of Surigao, and anchored near the store of one Epifanio Armada (alias) Pariong, where they went to offer for sale the cloth they carried. Epifanio Armada went to the boat and, after the sale of the cloth and other effects were agreed upon, these goods were unloaded and carried to his store.

Macario Bonete and his companions returned afterwards to their town and, upon arriving at the shore, found Geronimo Bonete, who informed them that the Constabulary soldiers were after them. Macario Bonete gave a pair of nut-brown shoes to Geronimo Bonete, who asked if they were of the Hinunangan stuff and Macario answered affirmatively.

After the investigations made by the corresponding authorities, there were found and identified by the Chinaman Uy Pingco, as the goods which disappeared from his store, a sewing machine sold to Epifanio Armada, the pair of shoes given by Macario Bonete to Geronimo Bonete, another pair of shoes, the pants, shirts, and two P5 bills which Macario had given to Cesareo Bonete and part of the cloths.

The act of the appellants in entering the store, pulling off the timbers of the walls and making an opening therein in order to take away the goods which disappeared from the store, constitutes the crime of robbery, defined and penalized in article 508, paragraph 2, of the Penal Code. Nighttime having been a circumstance which rendered the commission of the crime easy and having been sought by the appellants in order to insure their success, the same should be considered an aggravating circumstance.

The court did not err in refusing to postpone the trial of the case. This ruling referred to the introduction of evidence for the prosecution, for, as already indicated, the court suggested that when the turn of the defense to present evidence came, it would consider if this continuance was necessary. The attorney for the appellants did not, at any time during the trial, renew his request for continuance, although he knew that the court was ready to consider his motion. This conduct of the attorney for the appellants indicated that he renounced his motion which was presented at the beginning of the trial. At any rate the continuance of trial rests upon the sound discretion of the court and we do not find in this case any reason whatever which would lead us to believe that the court abused its discretion.

Neither was the ruling of the court, discharging Cesareo Bonete from the information, in order that he might be used as a witness for the prosecution, erroneous, for it is in accordance with Act No. 2709. (U. S. v. Abanzado, 37 Phil. Rep., 658.)

One of the prosecuting witnesses presented was Guillermo Resma. As may have been seen, he had taken some part in the robbery in question. The attorney for the appellants assigns in this instance as error committed by the court the act of the latter in admitting the testimony of this witness, without first having ordered the fiscal to include him in the information. But this question was not raised by the attorney for the accused in the first instance and is for the first time raised in this appeal, and, as decided by this court in U. S. v. Inductivo (40 Phil. Rep., 84), this question cannot be raised for the first time on appeal.

The defense also assigns as one of the errors committed by the court below its failure to order the appearance of Epifanio Armada as witness for the Government. As the evidence presented in this case is sufficient to establish the guilt of the appellants, the failure of the court to order the introduction of other evidence cannot be considered as error.

From the evidence it appears that Geronimo Bonete did not participate in the commission of the crime by previous or simultaneous acts. There is no proof that he knew the purposes of the voyage which Macario and his companions made. The only participation in the act which incriminates Geronimo Bonete was his having received the pair of shoes which Macario had given him upon arriving on his return voyage. Geronimo Bonete knew at the time he received this pair of shoes, that it was one of the goods stolen at Hinunangan, for he then knew that the Constabulary soldiers were already after Macario and his companions and he was informed that that pair of shoes was of the Hinunangan stuff. We are in accord with the opinion of the Attorney-General that the responsibility of this appellant is that of accessory only.

One of the accused was Jorge Rautraut. He entered an appearance, pleaded not guilty, was present during the whole trial of the case, yet there is nothing whatever in the sentence with respect to him. The Attorney-General, considering that there is no evidence against him, recommends that the cause be dismissed as to him. We believe that this is improper. There was no judgment in the court below. The judgment which we may render as to him would be one rendered in the exercise of original jurisdiction and we lack such jurisdiction in this case. What may be said is that there is no judgment against this accused and the case as to him is not yet terminated and the record should be sent back to the court below in order that it may render the corresponding judgment.

The penalty imposed by the court below with respect to all appellants, except Geronimo Bonete, is within the limits of the penalty fixed by law. We find the severity of the penalty imposed upon Florencio Paug justified as he was at the time of the commission of the crime a municipal policeman.

Wherefore, we modify the judgment of the court below, so far as concerns Geronimo Bonete, whom we now sentence to the penalty of six months and one day of presidio correccional, and affirm it in all other respects, with the instruction that the court below should render such judgment with respect to Jorge Rautraut, as the evidence would justify. No special pronouncement is made as to costs. So ordered.

Arellano, C.J., Torres, Araullo, Malcolm and Street, JJ., concur.




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