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SECOND DIVISION

G.R. No. 105316 September 21, 1995

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RENE LAMSING Y JABON, Accused-Appellant.

MENDOZA, J.:

This is an appeal from the decision rendered on March 30, 1992 by the Regional Trial Court, Branch 88, Quezon City, in Criminal Case No. Q-89-8161, finding accused-appellant guilty of the special complex crime of robbery with homicide and sentencing him accordingly. ¹

The case arose from the killing in the early hours of November 1, 1989 of Winnie Cabunilas, a security guard, while on duty at the construction site of a Synergy building on Aurora Boulevard, Cubao, Quezon City.chanroblesvirtualawlibrarychanrobles virtual law library

Four days after the killing, accused-appellant was arrested by policemen, while in a drinking spree with friends at a basketball court near the scene of the crime. He was detained and in a police lineup, was identified by witnesses as one of those responsible for the death of Winnie Cabunilas.chanroblesvirtualawlibrarychanrobles virtual law library

On November 9, 1989, an information was filed against him and a John Doe for the special complex crime of robbery with homicide.chanroblesvirtualawlibrarychanrobles virtual law library

Upon being arraigned, accused-appellant pleaded not guilty. As the other accused was at large, trial proceeded against accused-appellant alone.chanroblesvirtualawlibrarychanrobles virtual law library

The prosecution evidence is as follows:chanrobles virtual law library

Winnie Cabunilas, a security guard employed by Allen Security & Investigation Agency, Inc., was assigned to the construction site of a Synergy building on Aurora Boulevard, Cubao, Quezon City. He was provided by the agency with a .38 Cal. S & W SN-7485, with six live bullets. ²

Across the street was a canteen where Elizabeth de los Santos, an 18-year old student working as a dishwasher, was staying. This witness said that at dawn of November 1, 1989, she was roused from her sleep by the cries of a distressed person calling for his "mama". She got up, partly opened the door and saw, at a distance of about one meter, two male persons, one of them holding Winnie Cabunilas and the other one stabbing him. She immediately closed the door and peeped through a hole on it. She noticed a window partly open and watched from it. She identified the person who stabbed Cabunilas as the accused-appellant. From where she was, De los Santos saw accused-appellant stab the security guard with along pointed weapon ("ice-pick") several times, as another person held the guard's mouth. De los Santos saw accused-appellant holding the gun of the security guard which accused-appellant pointed at two persons who came to the rescue. De los Santos knew Winnie Cabunilas because he had been assigned to the construction site for four days already before the incident. According to the witness, after stabbing Cabunilas, the accused-appellant and his companion fled, bringing Cabunilas' gun with them. ³

On cross-examination, De los Santos testified that the scene of the crime was an open area with nothing to obstruct her view. She admitted there was no light in front of the door of the canteen or in any other place but claimed that she recognized the protagonists because of the light thrown on them when she opened the door and they "did not move when the light came [out]." ⁴

Four other witnesses were presented by the prosecution, namely, Dr. Roberto Garcia of the NBI who conducted an autopsy on Winnie Cabunilas and certified that he had died of hemorrhage; ⁵ Cpl. Conrado Lara of the Quezon City Police Station, who testified that he learned of the whereabouts of accused-appellant from a telephone caller; ⁶ Pfc. Restituto de Leon, also of the Quezon City Police, who testified that in a police lineup, two construction workers, Ronald Bon and Artemio Jabaan, and Elizabeth de los Santos identified accused-appellant as one of those who had attacked Winnie Cabunilas; ⁷ and Daisy Felizer, sister of the victim, who took care of his burial and testified as to the expenses incurred in the internment of the deceased. ⁸

Appellant denied involvement in the crime. He claimed that on October 1, 1989, he and his common-law wife stayed at his uncle's house at Butocan St., Area V, project 2, Quezon City, as he and his uncle had prepared foodstuffs to be sold at the La Loma Cemetery the following day, which was All Saints' Day. According to him, he woke up at about 3:30 in the morning of November 1, 1989 and hailed a taxi at Bignay St., an interior road near Aurora Boulevard, and from there he and his uncle went to La Loma North Cemetery where they stayed the whole day selling food. They went home at about 9:00 in the evening. Appellant admitted that he used to sell mangoes and "baluts" in front of Quezon City Medical Center which is very near the construction site of a Synergy building where Winnie Cabunilas was assigned. ⁹

Accused-appellant's uncle, Romeo Lamsing, confirmed that accused-appellant had stayed in their house the evening of October 31, 1989 and claimed that it was impossible for accused-appellant to go out that evening because "he was with [him] all the time." ¹⁰

The trial court found the testimony of Elizabeth de los Santos credible even as it rejected accused-appellant's alibi. Hence this appeal.chanroblesvirtualawlibrarychanrobles virtual law library

Accused-appellant assigns two errors as having been allegedly committed by the trial court.chanroblesvirtualawlibrarychanrobles virtual law library

First, accused-appellant faults the trial court for giving credence to the allegedly "incredible and uncorroborat[ed]" testimony of Elizabeth de los Santos to the effect that she had witnessed the perpetration of the crime despite her admission that there was no light in the area. Although she claimed that the place became lighted when she opened the door to see what was going on, accused-appellant contends that she could not have seen the protagonists because the light inside the canteen came from behind her. Accused-appellant contends, moreover, that it was contrary to human behavior for the assailants to have stood in the area "like statues for three (3) minutes," as she described them instead of immediately running away or attacking her when she opened the door.chanroblesvirtualawlibrarychanrobles virtual law library

The trial court gave full faith and credit to the testimony of Elizabeth de los Santos for the following reasons:

First, the crime charged was committed at a distance less than a meter away from the canteen where she was at that time witnessing the protagonists. Secondly, nothing blocked her vision because there is no wall between the scene of the crime and the space leading to the canteen. Thirdly, prior to the incident in question, she had known Cabunilas already and had seen Lamsing passed by the canteen. Fourthly, Lamsing himself admitted that he had previously frequented the Synergy Construction site where he sells mangoes and "baluts." Undisputed is the fact that said construction site is just fronting the aforementioned canteen where she worked as a stay-in dishwasher. Finally, no evidence was presented by the defense to show that she was motivated by any improper or evil motive to make false imputations against Lamsing. This is a circumstance that enhances her credibility (People vs. Sarmiento, 64 SCRA 350 (1975); De la Paz vs. Inutan, 64 SCRA 540 (1975).

Indeed the record shows that De los Santos knew both the victim, who had been securing the area for four days before he was killed, ¹¹ and accused-appellant, who had been frequently "passing that place together with his companions or barkada." ¹² De los Santos was witness to a grisly crime which occurred right in front of the place where she was staying. She had no ulterior motive to tell falsehoods and accuse appellant of serious crime if she did see him committing the crime. Although she did not give a statement to the police, the fact was that she went to the police headquarters with the policemen investigating the crime shortly after the crime, at about 4:00 o'clock in the morning of November 1, 1989. The reason she did not then give a statement was because she was afraid to come out until the accused-appellant could be arrested. She later agreed to testify after the accused-appellant had been arrested. ¹³

That Elizabeth De los Santos' testimony was uncorroborated does not make it less worthy of credit. Uncorroborated testimony can stand alone if, as in this case, it is intrinsically credible and there is no showing that it was improperly or maliciously motivated. ¹⁴ So long as it is credible and trustworthy and is sufficient to support a finding of guilt, its probative value is not diminished ¹⁵and corroborative testimony of another eyewitness becomes dispensable. ¹⁶

On the other hand, accused-appellant's defense consists merely of alibi which we think was correctly rejected by the trial court. Alibi is the weakest of all defenses because it is easy to fabricate it while it is difficult to disprove it. It cannot prevail over the positive identification by the witness, ¹⁷especially where it is not physically impossible for the accused to be present at the place of the crime or its vicinity at the time of its commission. ¹⁸ Positive identification by an independent witness who has not been shown to have any reason or motive to testify falsely must prevail over simple denials and unacceptable alibis of the accused. ¹⁹

In the case at bar, Elizabeth De los Santos admitted that there was no light in the area but she also maintained that light, which came from inside the canteen when she opened the door, illuminated the place where the protagonists were. She opened the door about a foot and a half wide. ²⁰ The light thrown on the protagonists enabled her to witness the crime and identify those involved in its commission. Her proximity (just a meter away) to the protagonists reinforces her claim that she saw the perpetrators of the crime and recognized accused-appellant as one of them.chanroblesvirtualawlibrarychanrobles virtual law library

Much is made of De los Santos' testimony that after she had opened the door, the accused-appellant and his companion stood still "like statues" for about 3 minutes. That she did not really mean they just stood transfixed upon being seen by her is clear from her subsequent statement that "they were moving," after all, with one holding the victim by the mouth while the other (accused-appellant) kept stabbing him. ²¹ Nor is it improbable that momentarily the assailants were surprised that they were seen.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant also argues that his arrest in a place near the scene of the crime negates his guilt. He contends that since flight is evidence of guilt and of a guilty conscience, ²² then conversely non-flight is an indication of innocence. The argument is untenable. If the contention is correct then all that a criminal must do to profess his innocence would be to remain at or near the place of the crime and declare, when arrested, that he is innocent otherwise he would have fled. The crime may have been committed with impunity and he may have thought that the victim or his heirs would not complain, or that the eyewitness will not be able to identify him. ²³ Indeed when the credibility of witnesses is concerned, appellate courts will generally not disturb the findings of the trial court considering that the latter has the singular opportunity to decide the question, having heard the witness herself and observed her deportment and manner of testifying during the trial. ²⁴ Only when certain facts or circumstances of weight and value (which if considered might alter the outcome of the case) have been overlooked, misunderstood or misapplied by the trial court will this Court undertake a review of factual findings of trial courts. Otherwise, such findings will be accorded great weight and respect on appeal. ²⁵

For his second assignment of error, accused-appellant claims that there is absolutely no evidence to show that robbery preceded the killing or that there was intent to rob.chanroblesvirtualawlibrarychanrobles virtual law library

There is no question that accused-appellant and his companion took the security guard's gun before they fled. This was the unrebutted testimony of Elizabeth de los Santos who she saw the accused-appellant and his companion taking the gun as they ran away. ²⁶Considering this, the trial court held accused-appellant guilty of the special complex crime of robbery with homicide.chanroblesvirtualawlibrarychanrobles virtual law library

To begin with, it is immaterial whether robbery preceded the killing in order to find an accused liable for this special complex crime. What is important is that robbery should be the principal felony and the homicide is only complexed with it. ²⁷ To sustain conviction for robbery with homicide, it must be established with certitude that the killing was a mere incident of the robbery, the latter being the main purpose and objective of the criminals and that the killing resulted "by reason or on the occasion" of the robbery. ²⁸Thus, Art. 294 of the Revised Penal Code provides:

Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:chanrobles virtual law library

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. (Emphasis supplied). . . .

In the case at bar, even assuming for a moment that the taking of the guard's firearm was for the purpose of gain, ²⁹ it does not appear that it was the principal purpose of the accused-appellant. Their principal purpose was to kill the guard. The taking of the gun was merely an afterthought. While there was violence against person, it was not employed for the purpose of depriving him of the thing taken. Robbery with violence against or intimidation of person requires that the violence or intimidation be employed as means of depriving a person of his personal property. ³⁰

Instead, as, explained in the separate opinion of Mr. Justice Regalado, the accused-appellant should in addition to homicide be held guilty of the separate crime of theft. There is no evidence as to the value of the firearm which, as already stated, is a .38 Cal. Smith and Wesson SN-7485. It is reasonable to place its value, however, to be P500.00 with reference to Art. 309, par. 3 which punishes any person guilty of theft, where the value of the thing stolen is more than P200.00 but does not exceed P6,000.00, with prision correccional in its minimum and medium periods.chanroblesvirtualawlibrarychanrobles virtual law library

Finally, although it is not assigned as error, accused-appellant complains that he was made to join a police lineup where he was identified by three persons, including Elizabeth De los Santos, without the assistance of counsel. It was settled in Gamboa v. Cruz, ³¹however, that the right to counsel guaranteed in Art. III, � 12(1) of the Constitution does not extend to police lineups because they are not part of custodial investigations. The reason for this is that at that point, the process has not yet shifted from the investigatory to the accusatory. The accused's right to counsel attaches only from the time that adversary judicial proceedings are taken against him.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the decision appealed from is MODIFIED by sentencing accused-appellant to an indeterminate penalty of 8 years and 1 day of prision mayor to 14 years, 8 months and 1 day of reclusion temporal, with the corresponding penalties for the crime of homicide and to an indeterminate penalty of 3 months and 11 days of arresto mayor to 1 year, 8 months and 21 days of prision correctional and to indemnify the Allen Security & Investigation Agency, Inc. in the amount of P500.00 for the crime of theft. In all other respects, the decision of the trial court is AFFIRMED.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Narvasa, C.J. and Puno, J., concur.

Separate Opinions

REGALADO, J., concurring:chanrobles virtual law library

I agree with the majority that, for the reasons stated and the attendant facts of this case, accused-appellant herein cannot be held liable for the special complex crime of robbery with homicide. I further concur in the complementary holding that said accused-appellant is guilty not only of homicide but that he is likewise liable for the separate crime of theft of the firearm belonging to the Allen Security & Investigation Agency, Inc., then in the possession of its security guard, the victim Winnie Cabunillas.chanroblesvirtualawlibrarychanrobles virtual law library

There can, of course, be no quarrel with the finding that the killing constitutes the crime of simple homicide since, although the word "homicide" in Paragraph 1, Article 294 of the Code is used in its generic sense, there is no showing that there were qualifying or other circumstances which would change said categorization of that offense. It cannot, however, be complexed with robbery since, as correctly pointed out in the main decision, the taking of the gun was merely an afterthought, and while there was violence against the victim, it was definitely not employed for the purpose of depriving him of the firearm. What property the accused may have originally intended to steal does not appear in the records, but it does not detract from the fact that there was an unlawful taking of property belonging to another.chanroblesvirtualawlibrarychanrobles virtual law library

Correspondingly, the aforesaid position taken in the main ponencia correctly reiterates a long-entrenched doctrine in criminal law that animus lucrandi is presumed the moment there is proof of apoderamiento or asportacion. It is not, necessary for the prosecution to initially prove that there was intent to gain; rather, it is for the defense to prove otherwise as a matter of defense. This doctrine, with its concomitant importance on the matter of the burden of evidence on criminal prosecutions, is a major aid in the prosecution of crimes against property where animus lucrandi is an essential element.chanroblesvirtualawlibrarychanrobles virtual law library

As early as the case of United States vs. San Pedro, ¹this Court had made this explanation:

Counsel for the appellant urges that the information upon which the accused was tried is fatally defective in that it fails to allege that the property taken "was not the property of the accused," and that it was taken con animo de lucro.chanroblesvirtualawlibrarychanrobles virtual law library

Article 502 of the Penal Code defines the crime of robbery as the taking of property not one's own, with violence against the person and con animo de lucrarse.chanroblesvirtualawlibrarychanrobles virtual law library

The information in this case alleges that the accused, with force and violence, took a pistol from the possession of the complaining witness. Unless the contrary appears, the animo de lucro is presumed, where all the other facts which would constitute the crime of robbery have been established, and it is also presumed "that things which a person possesses are owned by him, unless the contrary appears." (Decision of the supreme court of Spain, June 16, 1884; par. 10, sec. 334, Code of Civil Procedure.)chanrobles virtual law library

While it would have been better to allege specifically all the essential elements of the crime charged, we are of (the) opinion that the information in this case was not fatally defective and that the evidence adduced at the trial fully sustains the findings of the trial court, and establishes the guilt of the accused beyond a reasonable doubt.

Thereafter, in United States vs. Alabot (alias) Paguinaguina, ² the aforesaid pronouncement was reiterated with further ramifications, to wit:

In the United States vs. San Pedro (4 Phil. Rep., 405) it was held that where all the other facts constituting the crime of robbery have been established, judgment of conviction will not be reversed on appeal on the ground that the information failed specifically to allege that the information failed specifically to allege that the crime was committed con animo de lucro, or that the property taken was not the property of the accused, it appearing that it was taken with force and violence from the possession of the complaining witness. In the opinion in this case, it was said:

The information in this case alleges that the accused, with force and violence, took a pistol from the possession of the complaining witness. Unless the contrary appears, the animo de lucro is presumed, where all the other facts which would constitute the crime of robbery have been established, and it is also presumed "that things which a person possesses are owned by him, unless the contrary appears."

In support of this proposition reference was made to a decision of the supreme court of Spain wherein the following language was used:

While it is true that the intent of gain constitutes one of the essential and characteristic elements of the crime of robbery and that of theft, it is no less true that the possession of things belonging to another against the will of the owner, whether force or violence be used, implies as a general rule, said intent of gain, as being the natural and proper motive for the perpetration of the act. For this reason, it is necessary to overcome in each case the force of this legal presumption, when it is alleged, with facts showing that there was no such intent.

xxx xxx xxxchanrobles virtual law library

We are of the opinion that, following the decision in United States vs. San Pedro (supra), this information charges every ingredient of the offense of robbery which is essential to be stated, even without reference to the words "y con animo de lucro." From the language used only one reasonable interference with regard to the intention entertained by the accused can in our opinion be drawn, which is, that the robbery was committed with intent to gain. The information clearly shows that the articles were seized unlawfully, by violence and against the will of the owner, and this implies that they were taken with the purpose of gain. Especially instructive in this connection are the closing words of the complaint "con el fin de aporderarse de los efectos mencionados." The act of appropriating the personal effects of the person who is the victim of an assault like that described in this complaint necessarily involves the idea that the act was done with intent to deprive the true owner of his property, to the consequent gain of the other party.

Later, in People vs. Sia Teb Ban, etc. ³, a prosecution for qualified theft, the same principle was stressed, as follows:

But it has been proved that he took the watch described in the information without the owner's consent, having been overtaken a few moments later by a friend of the offended party, who found the stolen watch on the appellant. It is alleged that animus lucrandi has not been proved. We find it sufficiently established, as the acts of the accused (one's intention may be gathered from one's deeds) unequivocally show.chanroblesvirtualawlibrarychanrobles virtual law library

It is a fundamental doctrine of law that the act penalized by the law is presumed to be voluntary unless the contrary is shown (art. 1 Penal Code). And from the appellant's felonious acts, freely and deliberately executed, the moral and legal presumption of a criminal and injurious intent arises conclusively and undisputably, in the absence of evidence to the contrary (sec. 334, No. 2, Act No. 190).

Then, in People vs. Elizaga, et al., ⁴for the killing of a priest whom they met near a river and from whose horse they immediately took his saddle bag supposedly containing about P500.00 in cash and other personal effects, appellants were charged with the composite crime of robbery with homicide. This Court held them liable for the separate crimes of homicide and theft, under these considerations:

The uncertainty as to the motives does not however lessen that conviction that the defendants slew the deceased. . . . Its only effect is to change the qualification of the crime from the complex crime of robbery with homicide, as charged, to two separate, simple crimes of homicide and theft. Giving the appellants the benefit of the doubt, we find them guilty of the latter crimes independent of and unrelated to each other.

xxx xxx xxxchanrobles virtual law library

The taking of the deceased's bag constitutes either robbery or theft, according as force was used in the taking, distinct from the force employed in the killing or the intent to carry away the bag was formed after the priest was killed. The evidence on this feature of the case is also uncertain with the result that, again, we have to adopt the theory which is more favorable to the defendants.chanroblesvirtualawlibrarychanrobles virtual law library

The value of the money and property stolen is undetermined. . . . We fix the value of the bag and its contents at P100 in the absence of a definite proof relative to their value.

The same situation obtained, with the identical conclusion drawn, in the case of People vs. Glore, et al., ⁵ a prosecution for murder with robbery. After shooting the victim for reasons that do not clearly appear, "appellants challenged the other persons in the vicinity and, finding no opposition, they forthwith regrouped and took from the body of the victim a ring worth P450.00 and cash in the amount of P60.00. On these facts, the Court held that "(t) he facts proven constitute murder and theft." The first is characterized by abuse of superior force, there being at least four assailants provided with firearms. Appellants were sentenced to reclusion perpetua for the murder and an indeterminate sentence for the separate crime of theft.chanroblesvirtualawlibrarychanrobles virtual law library

It is true that in one case, People vs. Fontanilla, ⁶the Court did say that the thought of carrying away the sum of P51.00 found in a pocket of the deceased, Basilio Lopez, supposedly came after the killing had been consummated, and "as a mere incident of the task of disposing of or concealing the corpse of the victim." It appears, however, that the Court so stated as a matter of judicial perception and only to stress that even if true the taking could not constitute robbery "since his purpose in going to the residence of Lopez and beating him to death was not to steal." ⁷It did not, however, hold that such unlawful taking could or could not constitute theft either, and the reason is simple.chanroblesvirtualawlibrarychanrobles virtual law library

In Fontanilla, the apoderamiento could not constitute robbery, or theft for that matter, and it was not because animus lucrandi could not be presumed. The truth is, as the Court revealed and affirmed, there was no evidence of the subject matter which would establish the apoderamiento from which that animus lucrandi could arise. Thus:

We cannot even convict appellant of the crime of robbery, separately from the killing, the only evidence on the appropriation and taking away of the aforementioned sum of P51.00 being his confession, which is not corroborated by evidence of the corpus delicti, insofar as said amount is concerned, inasmuch as the same has never been found, he having lost it in gambling, according to his confession, and independently thereof, there is no evidence of its presence in the body of Lopez, at the time of the occurrence. (Emphasis mine.)

ACCORDINGLY, I concur that, both as a matter of statutory and case law, herein accused-appellant Rene Lamsing should be convicted of two separate felonies of homicide and theft.

REGALADO, J., concurring:chanrobles virtual law library

I agree with the majority that, for the reasons stated and the attendant facts of this case, accused-appellant herein cannot be held liable for the special complex crime of robbery with homicide. I further concur in the complementary holding that said accused-appellant is guilty not only of homicide but that he is likewise liable for the separate crime of theft of the firearm belonging to the Allen Security & Investigation Agency, Inc., then in the possession of its security guard, the victim Winnie Cabunillas.chanroblesvirtualawlibrarychanrobles virtual law library

There can, of course, be no quarrel with the finding that the killing constitutes the crime of simple homicide since, although the word "homicide" in Paragraph 1, Article 294 of the Code is used in its generic sense, there is no showing that there were qualifying or other circumstances which would change said categorization of that offense. It cannot, however, be complexed with robbery since, as correctly pointed out in the main decision, the taking of the gun was merely an afterthought, and while there was violence against the victim, it was definitely not employed for the purpose of depriving him of the firearm. What property the accused may have originally intended to steal does not appear in the records, but it does not detract from the fact that there was an unlawful taking of property belonging to another.chanroblesvirtualawlibrarychanrobles virtual law library

Correspondingly, the aforesaid position taken in the main ponencia correctly reiterates a long-entrenched doctrine in criminal law that animus lucrandi is presumed the moment there is proof of apoderamiento or asportacion. It is not, necessary for the prosecution to initially prove that there was intent to gain; rather, it is for the defense to prove otherwise as a matter of defense. This doctrine, with its concomitant importance on the matter of the burden of evidence on criminal prosecutions, is a major aid in the prosecution of crimes against property where animus lucrandi is an essential element.chanroblesvirtualawlibrarychanrobles virtual law library

As early as the case of United States vs. San Pedro, ¹this Court had made this explanation:

Counsel for the appellant urges that the information upon which the accused was tried is fatally defective in that it fails to allege that the property taken "was not the property of the accused," and that it was taken con animo de lucro.chanroblesvirtualawlibrarychanrobles virtual law library

Article 502 of the Penal Code defines the crime of robbery as the taking of property not one's own, with violence against the person and con animo de lucrarse.chanroblesvirtualawlibrarychanrobles virtual law library

The information in this case alleges that the accused, with force and violence, took a pistol from the possession of the complaining witness. Unless the contrary appears, the animo de lucro is presumed, where all the other facts which would constitute the crime of robbery have been established, and it is also presumed "that things which a person possesses are owned by him, unless the contrary appears." (Decision of the supreme court of Spain, June 16, 1884; par. 10, sec. 334, Code of Civil Procedure.)chanrobles virtual law library

While it would have been better to allege specifically all the essential elements of the crime charged, we are of (the) opinion that the information in this case was not fatally defective and that the evidence adduced at the trial fully sustains the findings of the trial court, and establishes the guilt of the accused beyond a reasonable doubt.

Thereafter, in United States vs. Alabot (alias) Paguinaguina, ² the aforesaid pronouncement was reiterated with further ramifications, to wit:

In the United States vs. San Pedro (4 Phil. Rep., 405) it was held that where all the other facts constituting the crime of robbery have been established, judgment of conviction will not be reversed on appeal on the ground that the information failed specifically to allege that the information failed specifically to allege that the crime was committed con animo de lucro, or that the property taken was not the property of the accused, it appearing that it was taken with force and violence from the possession of the complaining witness. In the opinion in this case, it was said:

The information in this case alleges that the accused, with force and violence, took a pistol from the possession of the complaining witness. Unless the contrary appears, the animo de lucro is presumed, where all the other facts which would constitute the crime of robbery have been established, and it is also presumed "that things which a person possesses are owned by him, unless the contrary appears."

In support of this proposition reference was made to a decision of the supreme court of Spain wherein the following language was used:

While it is true that the intent of gain constitutes one of the essential and characteristic elements of the crime of robbery and that of theft, it is no less true that the possession of things belonging to another against the will of the owner, whether force or violence be used, implies as a general rule, said intent of gain, as being the natural and proper motive for the perpetration of the act. For this reason, it is necessary to overcome in each case the force of this legal presumption, when it is alleged, with facts showing that there was no such intent.

xxx xxx xxxchanrobles virtual law library

We are of the opinion that, following the decision in United States vs. San Pedro (supra), this information charges every ingredient of the offense of robbery which is essential to be stated, even without reference to the words "y con animo de lucro." From the language used only one reasonable interference with regard to the intention entertained by the accused can in our opinion be drawn, which is, that the robbery was committed with intent to gain. The information clearly shows that the articles were seized unlawfully, by violence and against the will of the owner, and this implies that they were taken with the purpose of gain. Especially instructive in this connection are the closing words of the complaint "con el fin de aporderarse de los efectos mencionados." The act of appropriating the personal effects of the person who is the victim of an assault like that described in this complaint necessarily involves the idea that the act was done with intent to deprive the true owner of his property, to the consequent gain of the other party.

Later, in People vs. Sia Teb Ban, etc. ³, a prosecution for qualified theft, the same principle was stressed, as follows:

But it has been proved that he took the watch described in the information without the owner's consent, having been overtaken a few moments later by a friend of the offended party, who found the stolen watch on the appellant. It is alleged that animus lucrandi has not been proved. We find it sufficiently established, as the acts of the accused (one's intention may be gathered from one's deeds) unequivocally show.chanroblesvirtualawlibrarychanrobles virtual law library

It is a fundamental doctrine of law that the act penalized by the law is presumed to be voluntary unless the contrary is shown (art. 1 Penal Code). And from the appellant's felonious acts, freely and deliberately executed, the moral and legal presumption of a criminal and injurious intent arises conclusively and undisputably, in the absence of evidence to the contrary (sec. 334, No. 2, Act No. 190).

Then, in People vs. Elizaga, et al., ⁴for the killing of a priest whom they met near a river and from whose horse they immediately took his saddle bag supposedly containing about P500.00 in cash and other personal effects, appellants were charged with the composite crime of robbery with homicide. This Court held them liable for the separate crimes of homicide and theft, under these considerations:

The uncertainty as to the motives does not however lessen that conviction that the defendants slew the deceased. . . . Its only effect is to change the qualification of the crime from the complex crime of robbery with homicide, as charged, to two separate, simple crimes of homicide and theft. Giving the appellants the benefit of the doubt, we find them guilty of the latter crimes independent of and unrelated to each other.

xxx xxx xxxchanrobles virtual law library

The taking of the deceased's bag constitutes either robbery or theft, according as force was used in the taking, distinct from the force employed in the killing or the intent to carry away the bag was formed after the priest was killed. The evidence on this feature of the case is also uncertain with the result that, again, we have to adopt the theory which is more favorable to the defendants.chanroblesvirtualawlibrarychanrobles virtual law library

The value of the money and property stolen is undetermined. . . . We fix the value of the bag and its contents at P100 in the absence of a definite proof relative to their value.

The same situation obtained, with the identical conclusion drawn, in the case of People vs. Glore, et al., ⁵ a prosecution for murder with robbery. After shooting the victim for reasons that do not clearly appear, "appellants challenged the other persons in the vicinity and, finding no opposition, they forthwith regrouped and took from the body of the victim a ring worth P450.00 and cash in the amount of P60.00. On these facts, the Court held that "(t) he facts proven constitute murder and theft." The first is characterized by abuse of superior force, there being at least four assailants provided with firearms. Appellants were sentenced to reclusion perpetua for the murder and an indeterminate sentence for the separate crime of theft.chanroblesvirtualawlibrarychanrobles virtual law library

It is true that in one case, People vs. Fontanilla, ⁶the Court did say that the thought of carrying away the sum of P51.00 found in a pocket of the deceased, Basilio Lopez, supposedly came after the killing had been consummated, and "as a mere incident of the task of disposing of or concealing the corpse of the victim." It appears, however, that the Court so stated as a matter of judicial perception and only to stress that even if true the taking could not constitute robbery "since his purpose in going to the residence of Lopez and beating him to death was not to steal." ⁷It did not, however, hold that such unlawful taking could or could not constitute theft either, and the reason is simple.chanroblesvirtualawlibrarychanrobles virtual law library

In Fontanilla, the apoderamiento could not constitute robbery, or theft for that matter, and it was not because animus lucrandi could not be presumed. The truth is, as the Court revealed and affirmed, there was no evidence of the subject matter which would establish the apoderamiento from which that animus lucrandi could arise. Thus:

We cannot even convict appellant of the crime of robbery, separately from the killing, the only evidence on the appropriation and taking away of the aforementioned sum of P51.00 being his confession, which is not corroborated by evidence of the corpus delicti, insofar as said amount is concerned, inasmuch as the same has never been found, he having lost it in gambling, according to his confession, and independently thereof, there is no evidence of its presence in the body of Lopez, at the time of the occurrence. (Emphasis mine.)

ACCORDINGLY, I concur that, both as a matter of statutory and case law, herein accused-appellant Rene Lamsing should be convicted of two separate felonies of homicide and theft.