Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 1986 > October 1986 Decisions > G.R. No. L-52017 October 27, 1986 - PEOPLE OF THE PHIL. v. PEPITO GAPASIN, ET AL.:




PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. L-52017. October 27, 1986.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PEPITO GAPASIN and CALIXTO MATIAS, Accused-Appellants.

The Solicitor General for Plaintiff-Appellee.

Gonzalo Gonzales counsel de oficio for Accused-Appellants.


SYLLABUS


1. REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSION; ADMISSIBLE EVEN IN THE ABSENCE OF COUNSEL WHEN OBTAINED PRIOR TO THE CONSTITUTION. — It has been held in several cases that statements obtained before the 1973 Constitution from a person under interrogation for commission of an offense although in the absence of counsel are admissible in evidence against him, the reason being that the provisions of section 20 Article IV of the constitution cannot be given retroactive effect. Moreover, any repudiation on account of force will not necessarily negate the confession unless accompanied by evidence of injury or medical examination to bolster the claim that force was indeed employed to obtain the confession.

2. ID.; ID.; CREDIBILITY OF WITNESS; STRENGTHENED BY THE ABILITY OF THE WITNESS TO IDENTIFY THE ALLEGED CULPRIT ON THE WITNESS STAND. — While it may be true that Loreta failed to mention names of Gapasin and Matias in her affidavit, there is no doubt that while she was being investigated, she told Sergeant Lamorena that the two accused were among those persons who went to their house and committed the crime. It was precisely because of that information that Sergeant Lamorena, with two soldiers, arrested Gasapin in the morning of July 24, 1972 at his residence in Rang-ayan and brought him before Loreta for identification. On the basis of what he perceives as material variances between Loreta’s extrajudicial statement and her testimony in court, Accused-appellants’ counsel prays for their exoneration on the ground of reasonable doubt. We cannot oblige. In People v. Advincula, L-44643, March 31, 1980,. 96 SCRA 875. The Court took into account the state of shock, excitement and agitation that the rape victim was laboring under when she executed her statement, hence 1981, 105 SCRA 459, the Court observed that the infirmity of affidavit evidence is a matter of judicial experience. Since, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiant statements, omission and misunderstanding by the writer are not infrequent. But what is important is that the witness was able to identify the alleged culprits on the witness stand. Despite the alleged incredibilities and inconsistencies meticulously pointed out by appellants’ counsel, we are convinced to a moral certainty that Loreta de Leon was unerringly identified Gapasin and Matias as among the malefactors who had killed, robbed and raped on the night of July 23, 1972.

3. CRIMINAL LAW; ROBBERY WITH HOMICIDE; CONSTRUED IN CASE AT BAR. — It should be noted that in order to sustain a conviction for the robbery with homicide, it is necessary to established that the homicide was a mere incident of the robbery, the latter being the main purpose and objective of the criminals. It contemplates a situation where the homicide resulted by reason or on the occasion of the robbery. The six armed men, after having partaken of the supper prepared for them, sought to repay Eusebio by inviting him to join them in their pursuit of gamblers. They brought him down from his house, waylaid him in an elevated area near a mango tree, bound his hands and feet and beat him to death. After thus eliminating any possible obstacle to their heinous plan, they returned to the man’s house and ransacked his bedroom with hardly any resistance form his hapless wife. It is thus clear that the killing and the felonious taking were not isolated acts. It is of no moment that the homicide preceded the robbery by an appreciable length of time. What is essential is that there was a direct link, an intimate connection between the two felonious. That connection was the prospect of monetary gain which impelled the malefactors to place filthy lucre above the value of human life. and once again. we are witness to the stark reality of man’s inhumanity to man. For after having been given water to drink and food to eat, the six armed men, with the two accused among them, returned Eusebio’s selfless gesture by despoiling his abode and killing him in cold blood. in humanity to man. For after having been given water to drink and food to eat, the six armed men, with the two accused among them. returned Eusebio’s selfless gesture by despoiling his abode and killing him in cold blood.

4. ID.; ID.; RAPE COMMITTED ON THE OCCASION THEREOF; CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE. — It is the uniform jurisprudence of the Supreme Court that where the crime charged is robbery with homicide and rape, the legal definition of the crime is robbery with homicide punishable under paragraph 1 of Article 294 of the Penal Code, and the rape committed on the occasion thereof is considered an aggravating circumstance.

5. ID.; CONSPIRACY; LIABILITY OF PARTICIPANTS; RULE. — The settled rule is that where the conspiracy to commit the crime of robbery was conclusively shown by the concerted acts of the accused, and homicide was committed as a consequence thereof, all those who participated as principals in the robbery will also be held as principals in the complex crime of robbery with homicide although they did not actually take part in the homicide, unless it appears that they attempted to prevent the killing. The question of who actually robbed or who actually killed has no importance since all of them will be held accountable for the robbery with homicide.

6. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY; PRESENT IN CASE AT BAR. — The violent death of Eusebio de Leon was accompanied by treachery. Although there were no eyewitnesses to the actual assault, Eusebio was apparently beaten to death while his hands and feet were tied with a rope. The accused, in thus immobilizing the victim, obviously employed means which tended directly to insure its execution without risk to themselves arising from the defense which the offended party might make.

7. ID.; ID.; ABUSE OF SUPERIOR STRENGTH AND BAND; ABSORBED IN TREACHERY. — Abuse of superior strength is deemed absorbed by treachery (People v. Rosario, L-46161, February 25, 1985, 134 SCRA 496). Band, although present, cannot be appreciated because it is absorbed by treachery People v. Arbois, L-36936, August 5, (1985, 138 SCRA 24).

8. ID.; ID.; DWELLING; TAKEN INTO ACCOUNT IN ROBBERY WITH HOMICIDE. — The trial court should have taken into account the aggravating circumstance of dwelling. Dwelling is aggravating in robbery with homicide because this type of robbery could be committed without the necessity of transgressing the sanctity of the home.


D E C I S I O N


PER CURIAM:


This is an automatic review of the decision of the Court of First Instance of Isabela, Roxas branch, finding Pepito Gapasin and Calixto Matias guilty of robbery with homicide and rape and sentencing them "to suffer the extreme penalty of death, to indemnify Loreta Bernardo de Leon of P6,000.00, and the amount of P12,000.00 for the death of Eusebio de Leon, and to pay the amount of P1,733.00, without subsidiary imprisonment in case of insolvency . . ." 1

The prosecution evidence shows that at about 8 o’clock in the evening of July 23, 1972, in Barrio Sinamar, Roxas, Isabela, the spouses Eusebio de Leon, 35, and Loreta Bernardo de Leon, 30, were in bed with their two children, Marilou, aged 2 years, and Perlina, aged 5 months. 2 Hearing a knock at the door, Eusebio peeped through the door of their elevated one storey hut, He saw six [6] armed men in civilian clothes, who after identifying themselves as members of Task Force Lawin in pursuit of gamblers, asked for drinking water [ "Makiinom kame man pare?" ]. Out of fear, Eusebio invited them into the house. Four persons came up while the others remained downstairs. Loreta could hear them murmuring. 3

The house was illuminated by two [2] kerosene lamps. The four men who entered were armed with pistols. One had a moustache or a beard. After drinking water, they asked for food Eusebio told his wife, Loreta, to cook rice. 4

While the men were eating, the fifth member of the group came up and joined them. He was wearing a hat and his mouth was covered with a handkerchief. He removed his hat. As he started to eat, his mask slipped off. In the light, Loreta quickly recognized him as Pepito Gapasin, a former barriomate. 5

After they had eaten, the men invited Eusebio to accompany them because they were "after gamblers." 6

Loreta remained behind. While waiting for her husband’s return, she heard someone under the house say: "You just sleep, Ading." 7 After a while she heard footsteps around the house and someone entering through the back door. As she tried to get out through another door, she was grabbed from behind and a hand was clamped hard on her mouth. She bit the hand and was hit on the head with a gun. Someone cursed her and threatened to slice her neck. Another man brandished his knife at her and in the process nicked the bridge of her nose which bled a little. While holding a knife at her, the intruders demanded the proceeds of the tobacco sale. 8

It appears that ten [10] days earlier, or on July 13th, Eusebio and Loreta had sold some tobacco from their farm for P2,000. P700 of that amount was used to buy a female carabao while the rest of the money was kept inside their house. 9

The intruders, numbering three, were the same ones who had earlier brought Loreta’s husband down from the house, but this time Eusebio was not with them. 10 They tied Loreta’s hands at her back and threatened to kill her if she did not disclose to them where the money was.

Intimidated by the threat, Loreta motioned towards the aparador which the men then opened with a key taken from the wall. They took P1,500 and P30 in old coins, several pieces of clothing belonging to her husband and two wrist-watches. 11 After taking said articles from the aparador, the men turned to Loreta and removed her pants. They could not remove her house because her hands were tied. They then dragged her downstairs. 12 It was at this point that Loreta saw Pepito Gapasin again and recognized Calixto Matias, also a former barriomate. 13 Gapasin and Matias joined the three men and together they took Loreta to a working hut on a hill, about two kilometers east of her house. 14 Inside the hut, three men raped her, one after another. One of the rapists was Gapasin. Matias, who was present, stood watch but did not touch her. 15

After ravishing Loreta, the three men untied her bands and left. She then returned to her house, washed her private parts, dressed up and sought help. She went to Tony Salagubang, her nearest neighbor, but there was no response. So she repaired to her house, gathered her two children and brought them over to her mother’s house. 16 From there she proceeded to the house of Victoriano [Hermogenes] Villegas, the barrio-councilman who lived about 100 meters away. It was then about two in the morning of July 24th. She recounted to Villegas that they were robbed and that her husband was gone. 17 She also told him that Gapasin was one of the culprits. 18 With some barrio officials and rural policemen, Villegas went to the mayor, who in turn, called on the Philippine Constabulary for assistance. They all then proceeded to the house of Loreta. 19

Under a tree about 700 meters from the De Leon house, they found the lifeless body of Eusebio. He was lying flat on his belly and his hands were tied. 20 An autopsy performed by the municipal health officer at 10:30 of that same morning showed the cause of death as "intra-cranial hemorrhage and shock resulting from fracture of the left temporal bone." In addition, there were extensive contusions and bruises on the left side of the neck and face. Both wrists and ankles bore rope imprints. The fatal wound, "slightly curved, about 2 inches long, 3/4 inch wide and 3/8 inch deep, situated on the upper portion of the left temporal region and fracturing the left temporal bone," was caused by a blunt instrument which could be a piece of wood or the butt of a gun. 21

Meanwhile, Loreta went to the Roxas Emergency Hospital for medical examination. The medical report showed that her vagina was torn at the 12:27 position but was negative for seminal fluid. 22

Loreta, a high school graduate, was investigated by PC Sergeant Lamorena in the morning of July 24, 1972. 23 According to Sergeant Lamorena, Loreta identified Calixto Matias alias Calis and Pepito Gapasin, both residents of Barrio Rang-ayan. She said that they were her former barriomates in Sinamar. 24 Sergeant Lamorena immediately conducted a search for the two suspects but only Gapasin was apprehended. He was confined in the PC stockade.

Sergeant Lamorena indorsed the case to Chief of Police Saludares and during their joint investigation, Gapasin was brought before Loreta who then positively identified him as one of those who killed her husband and robbed and abused her. She said she could recognize the others who were with Gapasin if they were presented to her.

In the course of the investigation, the questions propounded by Saludares to Loreta in Ilocano which she answered also in Ilocano were translated into English and reduced into writing which Loreta then signed and swore to before Municipal Judge Alfredo Mabbayad, after the latter had read the contents to her.25cralaw:red

Gapasin, 37, a farmer and an illiterate, also executed a sworn statement before Sergeant Lamorena on July 24, 1972 wherein he implicated Calixto Matias. 26 He stated that at about 6:00 in the afternoon of July 23, 1972, Matias came over to his house in Barrio Rang-ayan with Modesto Viado and one called Miling and another whose name he did not know. They invited him to rob and kill one alias Marcos of Sinamar because Marcos was the enemy of Matias. Eusebio de Leon was known in the locality as Marcos. Gapasin declined to go with Matias but he was warned that he and his family would be killed if he reported the matter to the authorities.chanrobles lawlibrary : rednad

Matias, 35, also a farmer, was not investigated by Sergeant Lamorena at that time because he was at large. He was apprehended only on December 14, 1972. 27

A criminal complaint dated August 25, 1972 was filed by the chief of police in the municipal court of Roxas against Rodolfo Javillonar [Miling], Pepito Gapasin, Calixto Matias, Juanito Lactao, Pedro Tamayo, Romeo Menor, Jaime Rosete and several John Does for the crime of robbery with homicide and rape. 28

On September 15, 1972, Judge Mabbayad issued an order discharging Lactao, Tamayo, Menor and Rosete from the complaint due to lack of evidence. He likewise ordered the arrest and confinement of Gapasin, Modesto Viado, Matias and Javillonar. 29 However, Viado and Javillonar remained at large. On December 22, 1972, Judge Mabbayad indorsed the criminal case to the Court of First Instance of Isabela for the proper proceedings. 30 On March 6, 1973, the provincial fiscal filed an information accusing Pepito Gapasin and Calixto Matias of the crime of robbery with homicide and rape committed as follows:jgc:chanrobles.com.ph

"That on or about the 23rd day of July, 1972, in the municipality of Roxas, province of Isabela, Philippines. and within the jurisdiction of this Honorable Court, the herein accused, together with Modesto Viado and Rodolfo Javillonar, who are still at large, and John Doe, whose real identity is still unknown, conspiring and confederating together and all helping one another, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of intimidation and violence against persons, ransack a cabinet, take, steal and carry away from the dwelling of the spouses Eusebio de Leon and Loreta de Leon cash in the amount of P1,500.00; transistorized radio, valued at P150.00; one [1] sweater, valued at P30.00; and assorted clothings, [sic] valued at P53.00, all belonging to the spouses Eusebio de Leon and Loreta de Leon, against their will and consent, to the damage and prejudice of said spouses in the total amount of P1,733.00, Philippine Currency: that on the occasion of said robbery and for the purpose of enabling them to take, steal and carry away the above mentioned cash money and articles, the herein accused, in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with evident premeditation and taking advantage of their number and strength and with intent to kill, treacherously assault, attack and use personal violence upon Eusebio de Leon, by then and there giving him several blows with blunt instruments on the different parts of his body, which directly caused his death due to intracranial hemorrhage and shock resulting from the fracture of the left temporal bone and that further on the occasion of the said robbery with homicide, three [3] of the herein accused, in pursuance of their conspiracy did then and there wilfully, unlawfully and feloniously, by means of force, have sexual intercourse with Loreta de Leon one after the other, against the latter’s will and consent." 31

Gapasin and Matias pleaded not guilty when separately arraigned. At the trial they interposed the defense of alibi. Their version is as follows:chanrob1es virtual 1aw library

On the night of July 23, 1972 up to the early morning of July 24, 1972, Gapasin was in his house in Barrio Rang-ayan, Mallig, Isabela, with his wife, Florentina Acosta, and their eight [8] children. 32 He never left the place during the period as testified by his wife and his daughter, Leticia Gapasin. 33 Barrio Rang-ayan is about three kilometers from Sinamar, the scene of the crime. There is a river in between which is passable in the month of July. Pathways occasionally used by bullcarts connect the two barrios.

Testifying in his own behalf, Gapasin stated that he was forced to give a statement 34 on July 24, 1972 because he had been tortured and maltreated by soldiers inside the PC barracks where he was detained for four [4] hours. 35 He informed Judge Mabbayad that he had to affix his thumbmark to that statement "just so that it will be finished." 36 Judge Mabbayad had noticed that Gapasin had a contusion on his face and appeared "a little bit nervous" but he did not ask why. 37

Gapasin was acquainted with Loreta de Leon and her deceased husband because they were his former neighbors in Sinamar. 38 They had no quarrel and even up to the time he left to live in Rang-ayan, they were on speaking terms. He admitted that although his nickname in Sinamar was Peping, he was jokingly referred to as Caut. 39

On the night of the crime, July 23, 1972, Calixto Matias was playing "pepito" in the house of Alfredo Gumaru in Rang-ayan. It was supposedly a benefit game to raise funds for the school in the area. Gumaru was a rural policeman, who with Domingo Bagaoisan, the tong collector, testified that they continuously watched the game from 4:00 p.m. of July 23 up to 7:00 a.m. the following day, They stated that during that entire period, Matias never left the place. 40

On October 1, 1979, the trial court found the two accused guilty as charged and sentenced them to death. Hence, this mandatory review.

In their brief, Accused-appellants averred that the lower court erred in not setting aside the "confession" of Gapasin on constitutional grounds, in giving full credence to the testimony of Loreta de Leon and in not acquitting them on reasonable doubt.

Counsel for the accused-appellants contends that Gapasin’s extrajudicial statement on July 24, 1972 41 should not have been received in evidence against him because it was given under duress and without the benefit of counsel.

The argument is untenable. It has been held in several cases that statements obtained before the 1973 Constitution from a person under interrogation for commission of an offense although in the absence of counsel are admissible in evidence against him, the reason being that the provisions of section 20, Article IV of the Constitution cannot be given retroactive effect. 42 Moreover, any repudiation on account of force will not necessarily negate the confession unless accompanied by evidence of injury or medical examination to bolster the claim that force was indeed employed to obtain the confession.

Gapasin stated that during his four-hour detention in the PC stockade, he was given blows on the different parts of his body with the butt of a gun. 43 He did not ask to be hospitalized even though the hospital was just a few meters away. At any rate, even if his so-called confession were disregarded by the trial court, the testimonial evidence on hand amply proved Gapasin’s complicity in the offense charged.

A perusal of the lower court’s decision shows that its verdict rested principally on the lengthy testimony of Loreta, the widow of the deceased and the sole eyewitness to the alleged crime. Appellants, however, claim that her testimony is not worthy of credence, it being shot through with incredibilities and inconsistencies. They contend that in her statement 44 taken within a few hours after the crime had been committed, Loreta never gave the names of accused Pepito Gapasin and Calixto Matias.

While it may be true that Loreta failed to mention the names of Gapasin and Matias in her affidavit, there is no doubt that while she was being investigated, she told Sergeant Lamorena that the two accused were among those persons who went to their house and committed the crime. 45 It was precisely because of that information that Sergeant Lamorena, with two soldiers, arrested Gapasin in the morning of July 24, 1972 at his residence in Rang-ayan and brought him before Loreta for identification. 46

On the basis of what he perceives as material variances between Loreta’s extrajudicial statement and her testimony in court, Accused-appellants’ counsel prays for their exoneration on the ground of reasonable doubt. We cannot oblige.

In People v. Advincula, L-44643, March 31,1980, 96 SCRA 876, the Court took into account the state of shock, excitement and agitation that the rape victim was laboring under when she executed her statement, hence the differences in her perception and recollection. Similarly, in People v. Mendoza, L-33127, July 15, 1981, 105 SCRA 459, the Court observed that the infirmity of affidavit evidence is a matter of judicial experience. Since generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiant’s statements, omissions and misunderstandings by the writer are not infrequent. But what is important is that the witness was able to identify the alleged culprits on the witness stand. 47

Despite the alleged incredibilities and inconsistencies meticulously pointed out by appellants’ counsel, we are convinced to a moral certainty that Loreta de Leon has unerringly identified Gapasin and Matias as among the malefactors who had killed, robbed and raped on the night of July 23, 1972. Let us scrutinize the records:chanrobles virtual lawlibrary

1. Pepito Gapasin — As earlier mentioned, Gapasin was acquainted with Loreta because she and her husband were his barriomates in Sinamar. As a matter of fact, they were together once in the same group which went to Muñoz to harvest palay. 48

Although Loreta’s testimony on the identity of Gapasin is uncorroborated, we believe that the same is sufficient. She had ample opportunity to unmistakably recognize him on the night of the incident. There was light in the house when he came up to eat supper. In spite of his hat and mask, Loreta knew him because of his movements, and more so when he removed his hat and the mask fell off his face.

The trial court correctly rejected Gapasin’s alibi, which in his case has become more dubious because it was sought to be established by the accused himself, his wife and his twelve year-old daughter, and not by uninterested, unbiased persons, who would, in the natural order of things, be best situated to support the tendered alibi. It has been repeatedly observed that alibi is a defense easily fabricated especially among parents, children and relatives, or even among those not so related, so that great caution must be exercised in accepting it. 49 The testimony of a wife corroborating her husband’s alibi is of little probative value. It is undeniably tainted with bias for it springs from the natural desire of a wife to free her husband from criminal liability. 50 Not only that. Well-entrenched is the rule that for alibi to prosper, it is not enough to prove that the accused was somewhere else when the crime was committed but it must likewise be demonstrated that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission. 51 Rang-ayan is only three kilometers from Sinamar, a distance that can easily be traversed in thirty minutes al a leisurely pace. Such distance does not preclude the possibility that the accused could have committed the felony.

2. Calixto Matias — He testified that he was in Rang-ayan playing "pepito" on the evening of July 23rd. That testimony was corroborated by Gumaru and Bagaoisan, his two close friends. His alibi, however, cannot prevail over the positive identification made by Loreta who knew him well because they both resided in Sinamar for a long time. Matias’ house was about 100 meters from Loreta’s house. As he had no quarrel with Loreta, he knew of no reason why she would frame him up. Indeed, the evidence on record is bereft of any known motive as to why Loreta would prevaricate against him and Gapasin. It has been held that alibi is unavailing once the accused is indubitably identified by one without motive to falsely charge the accused especially with a grave offense that could bring about his death by execution. 52

It results from the foregoing that the participation of Gapasin and Matias in the criminal offense under consideration has been established beyond question.

The trial court had adjudged Gapasin and Matias guilty of the special complex crime of robbery with homicide penalized under paragraph 1 of Article 294 of the Penal Code. It should be noted that in order to sustain a conviction for the aforesaid offense, it is necessary to establish that the homicide was a mere incident of the robbery, the latter being the main purpose and objective of the criminals. 53 It contemplates a situation where the homicide resulted by reason or on the occasion of the robbery.chanrobles virtual lawlibrary

In a small barrio like Sinamar, the sale of tobacco produce amounting to P2,200 would not escape notice. Perhaps a pittance by city standards, P2,200 would be considered substantial among rural folks. And to the less-principled, the lure of all that cash just waiting to be taken, would be too tempting a chance to pass up, exactly as it happened in the case at bar.

The six armed men, after having partaken of the supper prepared for them, sought to repay Eusebio by inviting him to join them in their pursuit of gamblers. They brought him down from his house, waylaid him in an elevated area near a mango tree, bound his hands and feet and beat him to death. After thus eliminating any possible obstacle to their heinous plan, they returned to the man’s house and ransacked his bedroom with hardly any resistance from his hapless wife. It is thus clear that the killing and the felonious taking were not isolated acts. It is of no moment that the homicide preceded the robbery by any appreciable length of time. What is essential is that there was a direct link, an intimate connection between the two felonies. That connection was the prospect of monetary gain which impelled the malefactors to place filthy lucre above the value of human life. 54 And once again, we are witness to the stark reality of man’s inhumanity to man. For after having been given water to drink and food to eat, the six armed men, with the two accused among them, returned Eusebio’s selfless gesture by despoiling his abode and killing him in cold blood.

Was there conspiracy? The settled rule is that where the conspiracy to commit the crime of robbery was conclusively shown by the concerted acts of the accused, and homicide was committed as a consequence thereof, all those who participated as principals in the robbery will also be held as principals in the complex crime of robbery with homicide although they did not actually take part in the homicide, unless it appears that they attempted to prevent the killing. 55 The question of who actually robbed or who actually killed has no importance since all of them will be held accountable for the robbery with homicide.

In the instant case, while the records indicate that Gapasin and Matias were not physically inside the house when the robbery took place, and there was no eyewitness account of the actual slaying of Eusebio, they were nonetheless implicated by the prosecution’s principal witness, Loreta, as being part of the group which paid an unexpected nocturnal visit at the house of the De Leon spouses, culminating in the brutal killing of the husband, the rape of the wife and the asportation of the couple’s personal belongings. Therefore, they stand equally culpable as the rest for the felony of robbery with homicide.chanrobles virtual lawlibrary

That Loreta was sexually assaulted following the robbery is unquestionable. She had herself medically examined a few hours after the rape. The medical report stated that her vagina was torn. At the risk of being banal, a woman from the barrio, married with two children, would not admit that she was criminally abused and subject herself to embarrassment and humiliation, and have her private parts scrutinized if that were not the truth. 56

It is the uniform jurisprudence of the Supreme Court that where the crime charged is robbery with homicide and rape, the legal definition of the crime is robbery with homicide punishable under paragraph 1 of Article 294 of the Penal Code, and the rape committed on the occasion thereof is considered an aggravating circumstance. 57

The violent death of Eusebio de Leon was accompanied by treachery. Although there were no eyewitnesses to the actual assault. Eusebio was apparently beaten to death while his hands and feet were tied with a rope. The accused, in thus immobilizing the victim, obviously employed means which tended directly to insure its execution without risk to themselves arising from the defense which the offended party might make. 58 Abuse of superior strength is deemed absorbed by treachery. 59 Band, although present, cannot be appreciated because it is absorbed by treachery. 60

The trial court should have taken into account the aggravating circumstances of dwelling. Dwelling is aggravating in robbery with homicide because this type of robbery could be committed without the necessity of transgressing the sanctity of the home. 61

Evident premeditation, although alleged in the information, cannot be considered as an aggravating circumstance where no clear proof, as in the case at bar, had been adduced as to the time the accused had resolved to kill and rob their victim. 62

The information has placed the value of the stolen articles from the De Leon household at P1,733.00. Even if there was a statement by barrio councilman Villegas to the effect that he saw the stolen goods near the dead body of Eusebio on the early morning of July 24th, the records do not show that they were in fact recovered by the authorities since they were not presented in evidence during the trial. Hence, restitution would be in order. 63

WHEREFORE, Accused-appellants Pepito Gapasin and Calixto Matias are hereby declared guilty of the special complex crime of robbery with homicide and rape. In line with previous decisions, the rape is deemed to have aggravated the robbery. This, together with the aggravation of treachery and dwelling, and absent any mitigating circumstances, calls for the imposition of the death penalty. In addition, the accused-appellants shall jointly and severally indemnify the heirs of Eusebio de Leon in the increased amount of P30,000 for the homicide, Loreta de Leon in the amount of P20,000 for the rape plus the amount of P1,733 for the value of the stolen articles. As modified, the appealed decision is affirmed with costs against the Accused-Appellants.

SO ORDERED.

Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz, Paras and Feliciano, JJ., concur.

Teehankee, C.J., concur in the result.

Endnotes:



1. Decision, p. 156, Records.

2. TSN, pp. 3-4, March 6, 1974.

3. Exhibit 2; TSN, pp. 33-34, 36, March 6, 1974.

4. TSN, pp. 33, 36-37, March 6, 1974.

5. Exhibit 2; TSN, p. 38, March 6, 1974.

6. TSN, pp. 7-8, March 6, 1974.

7. TSN, pp. 5, 54-55, March 6, 1974.

8. TSN, pp. 8-11, March 6, 1974.

9. TSN, p. 12, March 6, 1974.

10. TSN, p. 42, March 6, 1974.

11. TSN, pp. 12-14, March 6, 1974.

12. TSN, pp. 65-66, March 6, 1974.

13. TSN, pp. 40, 44, March 6, 1974.

14. TSN, p. 67, March 6, 1974.

15. TSN, pp. 16, 68, March 6, 1974.

16. TSN, pp. 18-19, March 6, 1974.

17. TSN, pp. 46-48, March 6, 1974.

18. p. 5, Records.

19. TSN, pp. 3-7, March 7, 1974.

20. TSN, p. 7. March 7, 1974.

21. Exhibit A; TSN, pp. 5-6, January 16, 1974.

22. Exhibit D.

23. TSN, p. 47, March 6, 1974.

24. p. 13, Records.

25. Exhibit 1.

26. Exhibit C.

27. TSN, p 13, January 16, 1974; p. 22, Records.

28. p. 2, Records.

29. pp. 14-15, Records.

30. pp. 25-27, Records.

31. pp. 30-31, Records.

32. TSN, p. 3, March 9, 1977.

33. TSN, p. 4, November 11, 1974; TSN, pp. 4-7, July 22, 1976.

34. Exhibit C.

35. TSN, pp. 7, 11-13, March 9, 1977.

36. TSN, p. 11, August 7, 1978.

37. TSN, pp. 10-12, August 7, 1978.

38. TSN, p. 4, March 9, 1977.

39. TSN, p. 16, March 9, 1977.

40. TSN, pp. 5-8, 13, 20-21, June 10, 1976; TSN, pp. 5-8 June 9, 1976.

41. Exhibit C.

42. People v. Viduya, L-36510, May 17, 1980, 97 SCRA 666; People v. Juliano, L-33053, January 28, 1980, 95 SCRA 511; People v. Umali, L-35705, August 21, 1982, 116 SCRA 23.

43. TSN, pp. 16-18, March 9, 1977.

44. Exhibit 1.

45. TSN, p., 48, March 6, 1974.

46. TSN, pp. 48-49, March 6, 1974.

47. People v. Gonzales, L-40727, September 11, 1980, 99 SCRA 697.

48. TSN, p. 20, March 6, 1974.

49. People v. Cabanit, No. 62030-31, October 4, 1985, 139 SCRA 94.

50. See People v. Romero, L-38786, December 15, 1982, 119 SCRA 234.

51. People v. Capillas, L-27177, October 23, 1981, 108 SCRA 173, citing other cases.

52. People v. Pizarras, L-35915, October 31, 1981, 108 SCRA 612.

53. People v. Ipil, 27 Phil. 530.

54. People v. Landasan, 36 Phil. 359; People v. Patricio, 79 Phil. 227; People v. Libre, 93 Phil. 5.

55. People v. Gardon, 104 Phil. 371.

56. People v. Ganado, L-37935, August 31, 1982, 116 SCRA 362.

57. People v. Mongado, L-24877, June 30, 1969, 28 SCRA 642; People v. Bacsa, 104 Phil. 136.

58. People v. Mongado, L-24877, June 30, 1969, 28 SCRA 642; People v. Laquinon, L-45470, February 28, 1985, 135 SCRA 91; People v. Banayo, No. 64164, June 22, 1984, 129 SCRA 725.

59. People v. Rosario, L-46161, February 25, 1985; 134 SCRA 496.

60. People v. Arbois, L-36936, August 5, 1985, 138 SCRA 24.

61. People v. Mercado, L-39511, April 28, 1980, 97 SCRA 232.

62. People v. Labrinto, L-43526-29, October 10, 1980, 100 SCRA 299.

63. Exhibit 3.




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