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EN BANC

G.R. No. L-55029 June 29, 1982

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. LEONCIO GAMET and BIBIANO AGULAY, accused-appellants.

AQUINO, J.:

This is a case of robbery with homicide. There is no dispute as to the corpus delicti. At about seven-thirty in the evening of Sunday, July 18, 1965, while the spouses Gregorio Masian and Romula Baysac with their three sons were resting in the kitchen of their house located at Sitio Camcamiring, Barrio No. 21, Quiom, Batac, Ilocos Norte, listening to a radio program, "Harana Ti Ilocandia", someone from the outside called "Apo" and inquired if "Manong" was there.chanroblesvirtualawlibrary chanrobles virtual law library

In response to that call, Gregorio, 44, with a lighted kerosene lamp, went to the landing of the stairs (sagpaton), followed by his wife and sons. As soon as Gregorio reached the landing, he was felled by two gunshots. He, was mortally wounded in the mouth and in the back. He died instantly (Exh. H-1).chanroblesvirtualawlibrary chanrobles virtual law library

Then, five armed persons entered the house, ransacked the trunks and cabinets and took cash amounting to P100 and personal properties with a total value of P572.50.chanroblesvirtualawlibrary chanrobles virtual law library

The policemen, who investigated the incident, were not able to Identify the malefactors. It was only fifty-four days later, or on September 10, when Romula Baysac executed a statement wherein she declared that Leoncio Gamet, her husband's nephew and a resident of Sitio Nanggaoedan, Barrio Quiom, was one of those involved in the incident (Exh. B-4). Gamet's mother was Gregorio's second cousin. The chief of police filed in the municipal court against Gamet and some John Does a complaint for robbery with homicide. Gamet was arrested.chanroblesvirtualawlibrary chanrobles virtual law library

More than two months later, or on November 23, 1965, a Constabulary investigator obtained the confession of Alfredo Salmazan, 23. He revealed that he and Bibiano Agulay, Mariano Tablatin, Artemio Mata, Pablo Rubio, Juan Morales, Amor Yala and Francisco Yala robbed and killed Gregorio Masian because he was a witch (mangkokolam), that Tablatin (Salmazan's brother-in-law) was the one who shot Masian in the head while Mata shot him in the back and that Salmazan was given ten pesos as his share of the loot (Exh. E-2). Two days later, Bibiano Agulay executed an extrajudicial confession wherein he corroborated the revelations in Salmazan's statement. Agulay said that, as his share of the loot, he was given ten pesos and a crosscut saw (Exh. D-2). The investigator retrieved the saw from the house of Agulay (Exh. A). The rifle used by Mata in shooting Masian was recovered from his house (Exh. G).chanroblesvirtualawlibrary chanrobles virtual law library

The Constabulary investigator filed in the municipal court a complaint for robbery in band with homicide against Agulay, Salmazan, Rubio, Tablatin, Mata, Morales, Amor Yala and Francisco Yala. In the office of the chief of police, Romula Baysac Identified Agulay and Tablatin as two of the malefactors who robbed and killed her husband. After the case was elevated to the Court of First Instance, Fiscal Lucas D. Carpio filed against the said persons an information for robbery in band with homicide dated August 25, 1966. Gamet was included in the information Lion.chanroblesvirtualawlibrary chanrobles virtual law library

At the trial, Gamet denied any involvement in the robbery with homicide. He declared that in the morning of July 19, 1965, when he learned that Masian was killed, he went to Masian's house and helped in the preparation of the bamboo coffin. His residence in Sitio Nanggaoedan is about two kilometers away from Sitio Camcamiring where the incident occurred. He was in his house when the robbery with homicide was committed.chanroblesvirtualawlibrary chanrobles virtual law library

Agulay's defense was an alibi. He testified that from July 17 to 20, 1965 he was in the house of his sister, Inocencia, located in Barrio Buanga, Pinili, Ilocos Norte. He took care of the animals of his brother-in-law, who was sick. In the evening of July 18, 1965, when the incident occurred, he boiled water in the house of his sister who was in the throes of childbirth. She delivered her baby in the morning of July 20, 1965.chanroblesvirtualawlibrary chanrobles virtual law library

Agulay denied that the crosscut saw was taken from the house of Masian. He said that he inherited it from his father. He repudiated his confession which he said was allegedly not read to him by the police and by the municipal judge. He claimed that he was maltreated and forced to sign his confession (Exh. D). He admitted that Barrio Buanga is adjacent to Barrio Quiom where Masian was robbed and killed.chanroblesvirtualawlibrary chanrobles virtual law library

It was only on May 7, 1980 or more than fourteen years after the incident that the case was decided. The trial court convicted Gamet and Agulay of robbery in band with homicide, sentenced them to death and ordered them to pay an indemnity of P12,672 to the heirs of Gregorio Masian but at the same time it recommended executive clemency because the two accused were "rustics". It acquitted Morales, Tablatin and Mata on the ground of reasonable doubt. Salmazan died in 1970. Rubio, Amor Yala and Francisco Yala were not arrested.

Case of Gamet. - Gamet contends that the trial court erred in holding that he was positively Identified by Romula Baysac and in giving credence to her testimony and in not holding that his guilt was not proven beyond reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual law library

We find that there is no moral certainty as to the guilt of Gamet because (1) he was not mentioned in the confessions of Agulay and Salmazan (Exh. D and E) as having participated in the robbery with homicide and (2) Romula Baysac, the sole prosecution eyewitness, who said that Gamet was her husband's nephew, did not Identify him promptly as one of the intruders who burglarized her house. Salmazan said that Gamet was not with the group (No. 15, Exh. E- 3).chanroblesvirtualawlibrary chanrobles virtual law library

Romula Identified accused Gamet as a co-principal in the robbery with homicide fifty-four days after its commission. Her alleged fear of reprisal was not a sufficient excuse for the delay. The defense proved that during the investigation Romula Baysac told the police and the barrio authorities that she did not recognize any of the malefactors. Consequently, Gamet has to be acquitted.

Case of Agulay. - He contends that the trial court erred in rejecting his alibi, in admitting his extrajudicial confession, in finding that the crosscut saw was stolen from Masian's house and was not inherited by Agulay from his father and in holding that his guilt was proven beyond reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual law library

Agulay's case is different from Gamet's case. Agulay executed an extrajudicial confession. The trial court did not err in finding that the confession was voluntarily executed and that Agulay's claim of maltreatment was unfounded. He did not complain to the municipal judge, who administered the oath to him, that he was forced to sign his confession. That document dovetails in several details with Salmazan's confession. It destroys Agulay's alibi. And the fact that the crosscut saw, which according to his confession was his share of the loot, was recovered from his house confirms the veracity of his confession and proves conclusively his involvement in the robbery with homicide.chanroblesvirtualawlibrary chanrobles virtual law library

Romula Baysac testified that the crosscut saw was owned by her husband for five years. Agulay and his witness said that the crosscut saw which he inherited from his father had three missing teeth and one missing screw. But the trial judge noted that the saw in question has five missing teeth and two missing screws. (tsn. Jan. 24, 1977; 3-4 tsn June 13, 1978).chanroblesvirtualawlibrary chanrobles virtual law library

The trial court did not err in imposing the death penalty on Agulay in view of the presence of the aggravating circumstances of treachery (which absorbs nocturnity), dwelling and band. No mitigating circumstance can be appreciated in his favor.chanroblesvirtualawlibrary chanrobles virtual law library

However, it should be borne, in mind that the trial court acquitted Tablatin and Mata, who according to the confessions of Agulay and Salmazan, were the ones who inflicted the fatal gunshot wounds. Because of that circumstance and the trial court's recommendation of executive clemency and the fact that the case has been pending since 1965, the votes of ten Justices for the imposition of the death penalty could not be had.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the trial court's judgment is modified. Leoncio Gamet is acquitted on the ground that his guilt has not been proven beyond reasonable doubt. The death penalty imposed by the trial court on Agulay is commuted to reclusion perpetua. The civil liability fixed by the trial court is affirmed as to Agulay. Cost de oficio.

Fernando, C.J., Barredo, Makasiar, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library

Teehankee, Concepcion, Jr. and Guerrero, JJ., took no part.

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Separate Opinions

ABAD SANTOS, J., concurring:chanrobles virtual law library

I concur and in addition I recommend that he be given a conditional pardon.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur and in addition I recommend that he be given a conditional pardon.