G.R. Nos. L-32202-04 July 25, 1984 THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs.

ONTING BIRUAR, EUGENE RUSLIN, ABRAHAM LIM alias Titing Lim, ANGEL DY alias Baba Isa, CEFERINO CATURAN alias Fred, EDGARDO SEERES alias Broke, ROMUALDO RABOY alias Romy, and SATURNINO GALLIANO, defendants, ABRAHAM LIM alias Titing Lim, CEFERINO CATURAN alias Fred, ROMUALDO RABOY alias Romy, and SATURNINO GALLIANO, defendants-appellants. The Solicitor General for plaintiff-appellee.Sycip, Salazar, Luna, Manalo & Feliciano for defendants-appellants. CONCEPCION, JR., J.: REVIEW of the decision of the Court of First Instance of Davao finding the accused Abraham Lim, alias Titing Lim, Angel Dy, alias Baba Isa, Ceferino Caturan, alias Fred, Edgardo Seeresalias Broke, Romualdo Raboy, alias Romy, and Saturnino Galliano guilty of the crimes of Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries, and sentencing each of them, in (1) Crim. Case No. 9987, for Robbery in Band, to suffer an indeterminate penalty ranging from TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor , as maximum, with the accessory penalties of the law, and to indemnify, jointly and severally, Gorgonio Mosende in the amount of P720.00, without subsidiary imprisonment in case of insolvency, and to pay the costs; (2) Crim. Case No. 9988, for Arson, to suffer the penalty of reclusion perpetua, with the accessory penalties of the law, to pay, jointly and severally, the heirs of the deceased George Kalitas the amount of P20,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs; (3) Crim. Case No. 9989, for Robbery with Homicide and Physical Injuries, to suffer the death penalty, and to indemnify, jointly and severally, the heirs of the deceased George Kalitas in the amount of P12,000.00, without subsidiary imprisonment in case of insolvency. The inculpatory facts are as follows: At about 10:00 o'clock in the evening of July 2, 1966, while Gorgonio Mosende and his wife, Fausta, were preparing to go to sleep in their house in Sitio Suapit, Barrio Limot, Mati, Davao, several persons arrived and called: "Good evening, tiyo . " Thinking that they were relatives of his wife, Mosende invited the callers to come up. Two men, armed with .45 cal. pistols, later ientified as the accused Romualdo Raboy and Edgardo Seeres came up and demanded: "hain na ang iyong armas "where is your firearm? Mosende denied having a firearm, but his wife was so frightened that she told the armed menn: "Do not kill my husband, if you want the arm, the shotgun is here," and raised the mosquito net covering their sleeping mat and pointed to the shotgun. The accused Edgardo Seeres took the gun and asked the couple for money. Fausta, in fear, opened their aparador which the accused Edgardo Seeres then ransacked, taking therefrom P170.00 in coins and paper bills. The two accused then left, taking with them the shotgun of Mosende valued at P550.00. Not long thereafter, Mosende heard gunshots coming from the direction of the house of George Kalitas, about 25 meters away. Mosende and his wife went down their house and sought cover behind a coconut tree. A few minutes later, Mosende saw a blaze start from the house of George Kalitas which spread rapidly until the entire house was engulfed in flames and completely burned down. 1 All the inmates of the house of George Kalitas were fast asleep when the firing started and were awakened by the gunfire. George Kalitas, a 70-year old paraplegic, was sleeping inside

their bedroom with his wife, Sylvia Mingming, his grandchildren Jessie Renopal and "Bebot", and their maid's son, Fortunato "Ato" Malapong. 2 Narciso Bauyot, a nephew of George Kalitas, slept in the dining room, while the maid Babbadon Odal slept in the kitchen. 3 Upon hearing the fusillade, Babbadon Odal rushed to the master's bedroom to get her son, "Ato." But, as she was about to raise the mosquito net covering her son, she was hit by a bullet on the left wrist and immediately lost consciousness, regaining the same only at the Mati Baptist Hospital, where she was brought for treatment of her injury. 4 Jessie Renopal, the 11-year old granddaughter of George Kalitas, was also grazed by a bullet in the head when she stood up upon hearing the volley. 5 She felt pain, but she did not lose consciousness, thus enabling her to see five robbers enter the house while two others remained by the door. 6 Narciso Bauyot who was sleeping in the dining room, ran to the kitchen upon hearing the gunfire and hid in an aparador. But, when the toilet of the main house of George Kalitas was set on fire, he left his hiding place and went out of the house, passing through a small window in the kitchen. He landed safely on the ground only to fall into the hands of the accused Romualdo Raboy who pointed a gun at his abdomen telling him: "you surrender, if you will not surrender, I will kill you." The accused Edgardo Seeres also told Narciso to surrender and raise his hands, which Narciso did. Seeres then continued firing at the house of George Kalitas. Another armed man, later Identified as the accused Saturnino Galliano, also approached Narciso and threatened to pour a can of kerosene on him. But, Narciso pleaded: "Don't pour it on me because I might be burned," and was spared. The accused Saturnino Galliano, instead, poured the can of kerosene on the walls of the kitchen of the house and ignited it with some dried fronds. 7 The robbers then started to break open the main door of the house with an axe. 8 After the robbers had broken the door and gained access to the sala, George Kalitas fired at them with his "Stevens" 12-gauge shotgun, 9 hitting one of them. 10 George Kalitas had crawled with his wife and grandchildren after Jessie Renopal and Babbadon Odal were hit by bullets. 11 The armed men fired back, hitting George Kalitas, who dropped his shotgun. His grandson, Bebot, picked up the shotgun, but, when the robbers shouted: "surrender, surrender, throw that gun to us; throw the gun below, by the stairs," he panicked and threw the shotgun to them. 12 Immediately, thereafter, four (4) armed men, later Identified as the accused Angel Dy, Romualdo Raboy, Saturnino Galliano, and Abraham Lim rushed them. Angel Dy held Mrs. Kalitas by the neck and kicked the wounded George Kalitas, while the others went inside the bedroom of George Kalitas and forcibly opened a trunk placed under the bed which contained the amount of P40,000.00, in cash, at the last counting two months before the incident. They also took some old coins which Mrs. Kalitas had kept in a container inside the trunk. Saturnino Galliano and Angel Dy also got the money of Jessie Renopal. 13 After getting the money, the robbers left. 14 The inmates of the house also went out because of the fire and brought the wounded to the hospital. But, George Kalitas died before they could reach the hospital in Mati. 15 Meanwhile, the fire continued to spread until the main house of George Kalitas and his bodega, including their contents, and a truck parked in between the buildings, all valued at P34,545.00. were completely destroyed. 16 The crime was reported to the police authorities immediately thereafter and Sgt. Jose Biones of the 433rd PC Company stationed at Mati, Davao, conducted an investigation. He learned that a light green Buick Electra 225 Sedan, 1964 model, with

Plate No. H-6357-Manila-'65, had refueled at a Caltex gasoline station in the poblacion of Mati and then proceeded towards Barrio Limot at about 9:00 o'clock in the evening of July 2, 1966, and was seen again parked at some distance from the house of George Kalitas. PC Sgt. Blones also went to the still smouldering house of George Kalitas and recovered twenty-nine (29) spent cartridges of various calibers and a mutilatedqqq slug, which he turned over to the PC Company investigator. An alarm was, likewise, flashed to intercept the Buick car and apprehend its occupants. 17 At about 3:00 o'clock in the afternoon of July 3, 1966, Pat. Bonifacio Dao of the Davao City Police Department, received a telephone call from the Sasa Police Precinct that the wanted car was spotted going towards Davao City. Pat. Dao and two (2) companions boarded a jeep to intercept the car, and at Bajada, near the EMCOR, they saw the car stop and a man with a sack alighted therefrom. They gave chase, but the car sped away. They then tried to run after the man with the sack, but the man threw the sack away and disappeared in the tall cogon grasses. They recovered the abandoned sack and found it to contain a pistolized carbine, a .45 cal. pistol, with several rounds of ammunition, a barong tagalog, four (4) flashlights, and a pair of gloves. The next day, July 4, 1966, a police team saw the wanted car parked in the corner of Monteverde and Guerrero Streets, in front of the Cosmopolitan Funeral Parlor, in Davao City. They found the accused Angel Dy inside the car who, when asked who the owner of the car was, pointed to Onting Biruar at the Kingston Hotel. The policemen went to the hotel and found Onting Biruar together with Romualdo Raboy and Edgardo Seeres whom they brought to the police headquarters for investigation. Upon questioning, Angel Dy informed the police investigators that the car was driven by Abraham Lim on the night of July 2, 1966, and led a police posse to Barrios Obrero and Piapi, both in Davao City, in an effort to catch the said Abraham Lim. But, they failed to find him. Instead, they found the accused Ceferino Caturan in Barrio Piapi, who was nursing a bullet wound on his left upper leg. From Piapi, Angel Dy brought the police team to a house in Toril, Davao City, where they finally found Abraham Lim in the company of Eugene Ruslin. The policemen found a .45 cal. pistol, with seven rounds of ammunition under the pillow used by Abraham Lim. 18 Later, the police team arrested the accused Saturnino Galliano who was implicated in the crime. 19 The Buick sedan was turned over to the PC detachment and PC Sgt. Diomedes Cagas, upon inspection of the said car, recovered a .45 cal. pistol, with seven rounds of ammunition, hidden under the floor mat, near the gas pedal of the said car. 20 As a consequence, Onting Biruar, Abraham Lim alias Titing Lim, Angel Dy alias Fred, Edgardo Seeres alias Broke, Romualdo Raboy alias Romy, Eugene Ruslin, and Saturnino Galliano were charged with Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries before the Court of First Instance of Davao, in three (3) separate informations docketed therein as Crim. Case Nos. 9987, 9988, and 9989, respectively. All the accused denied the commission of the crimes charged and, except for the accused Abraham Lim, interposed the defense of alibi. The trial court summarized the evidence of the defendants, which they claim to be substantially correct, as follows: 1. TESTIMONY OF ACCUSED ONTING BIRUAR Defendant Onting Biruar testified that on June 28, 1966 he came to Davao City to renew the coastwise license of motor boat; that he rode on his Buick (Electra) car; that he registered in a room at Kingston Hotel, Davao City and did not go out until the following day; that on June 29, and 30, 1966, he went to the Customs office to renew his license, but he failed to obtain his purpose; that on July 1, 1966 Abraham Lim came to his hotel to borrow his car for the purpose of bringing his wife to a hospital

to deliver; that he consented and gave his car; that as the car was not returned he became apprehensive and he began looking for it; that on the same day, he met Romualdo Raboy y alias Romy and Edgardo Seeres alias Broke and one Sammy, driver of the Provincial Governor of Cotabato and asked them to help him find his car to which they acceded; that from that day they began the search and continued until the next day but in vain; that on July 3, he (Onting Biruar) was apprehended by the D.C.P.D. Commando Unit in his hotel on a charge that his car was used in the commission of the crimes charged herein at Limot, Mati. Later, he corrected a mistake that it was on July 4 when he was arrested and not July 3. It was explained to him that his involvement with other accused lies solely in his being the owner of the car subject of the present inquiry; that he admitted that he was taken at the P.C. barracks where he was investigated by Sgt. Abalayan. 2. TESTIMONY OF BERNARDINO SAMSON: Bernardino Samson, driver of the Provincial Governor of Cotabato corroborated the statement of Onting Biruar referring to his having joined the party to search for Onting's car. 3. TESTIMONY OF ABRAHAM LIM: Accused Abraham Lim testified that he came from Cotabato City and arrived at Davao City in the afternoon of June 29, 1966 in response to a telegram that he received from accused, Angel Dy alias Baba Isa; that he took a Minrapo bus and he met his wife in the house of his uncle, Candido Ramos at Piapi, Davao City; that he brought her to San Pedro Hospital on the following day (June 30) where she delivered; that on July 1st morning at about 7:00 he was able to borrow the car of defendant, Onting Biruar after assuring the latter that he would use it only for service of his wife who delivered in the hospital; that from that time the car was under his exclusive control until July 2, 1966. On July 4, 1966 he was arrested by the Davao City Commando Unit at Toril, Davao City together with Eugene Ruslin, one of the accused herein. Abraham Lim admitted that he used the said car in going to Limot, Mati, Davao Oriental without the knowledge and permission of the owner; that on July 2, 1966, he left Davao City in company with Ceferino Caturan, Cesar Go and another unidentified man and arrived at Mati at about ten o'clock at night; that he proceeded to the house of George Kalitas with his men, but as no one was familiar with the road and the place, he needed a guide; that he passed at the house of Saturnino Galliano which was about 5 kilometers from the house of Kalitas and invited him to be his guide; that the latter accepted although that was the first time that Lim met him in Betty's store; that the purpose of accused Abraham Lim in going to Kalitas house is to collect accounts, an alleged indebtedness of George Kalitas in the amount of P15,000.00 which was advanced by him for the purchase of coprax; that on demand, Kalitas refused to pay; that Lim pressed him more and asked him to pay in kind particularly pointing to the coprax store in Kalitas bodega; that this must have irked Kalitas and he commanded his nephew, Narciso Bauyot to get his carbine from his bed, but he was calmed down and promised to pay him on the first week of July; that as he insisted on his demand, Kalitas drew his pistol which was timely grabbed by him and at the same time he drew his own 22 caliber magnum pistol and pointed at the back of Kalitas head and dragged him towards the main door; that upon reaching the stairs they were fired upon by some people whom Lim suspected to be the neighbors of Kalitas; that the old man was hit in the upper part of his body and he (Lim) saw blood streaming down from his wound; that although wounded and under his (Lim) control, Kalitas shouted at his men to surrender which was heeded; that Aguedo, Mosende and four other neighbors came and surrendered their firearm to Lim which consists of one carbine and 5 pistols and were ientified by Lim.

Aguedo surrendered his 45 cal. pistol, Mosende his 45 cal. pistol; confiscated from George Kalitas, is a nickel plated pistol marked Exh. "B", one carbine from Narciso Bauyot and another 45 caliber pistol (Exh. "C") from Mosende, one barong-tagalog, Exh. "BB" which is his own (Lim) dress; that after the surrender of these firearm they went back to Davao City; that he saw Saturnino Galliano grab the carbine from Narciso Bauyot which he fired at the latter in order to scare the men of Kalitas, but his intention was only to shoot Narciso's shirt; that Galliano was with him and Kalitas when they were seeking shelter in the pile of lumber near the kitchen of Kalitas' house while there was shooting directed at them, Accused Lim also admitted that he was investigated by the Davao City Police Commando and subsequently by the P.C. (Exhs. "O", "O-1" to "O-4"); that he signed both affidavits taken by these investigators only under compulsion of force and duress; that he was kicked by his probers on his knees and pellets were inserted between his fingers and pressed so strong that it caused him pain, in order to make him confess. Lim also admitted that he was convicted by final judgment rendered by the City Court of Davao City for illegal possession of firearm filed against him in Crim. Case No. 2490-C; that he was arrested at Toril, Davao City on July 4, 1966; that he explained that his appearance there was due to his purpose to see his friend, Joselito Ambrosio from whom he would borrow money to defray the hospital expenses of his wife, but he failed; that before the incident in question, he (Lim) was engaged in the business of buying and selling coprax corn, rice and other agricultural products covering the coastal towns of Cotabato and the eastern old province of Davao; that he did not have license in his name, but he borrowed the license of his cousin, Felipe Uy; that pursuance to the operation of his business he came to know the deceased, George Kalitas since 1965; that they have a deal-Kalitas would be his agent to buy coprax and grains in his neighborhood; that on August 1965 he happened to meet Kalitas in a bus while on his way to Mati, that being an old man he could trust him; that he advanced to him P15,000.00 as capital for their business; that this money was given to Kalitas in his house at Limot in the presence of Saturnino Galliano and Kalitas' family; that Kalitas signed a receipt for said amount but he lost it during that scuffle incident in Kalitas' house including a notebook containing an entry of their business transaction; that Kalitas delivered to him a truckload of coprax worth P5,000.00; that he does not know how much additional cash advances he gave Kalitas; that he was investigated by the municipal judge of Mati on July 12, 1966; that during the investigation he did not tell the truth that he was kicked and maltreated by the Davao City Police and by the P.C. agents for fear of revenge. 4. TESTIMONY OF ANGEL DY: Accused Angel Dy testified that he left Dadiangas, Cotabato on June 29, 1966 at about 7:00 AM together with the wife of accused Abraham Lim and a maid; that upon arrival in Davao City in the afternoon they proceeded to Piapi in the house of an uncle of Abraham Lim; that he met the latter in the CBC terminal on June 30, 1966 at about five o'clock in the afternoon; that on July 1, 1966 they went out to see accused Onting Biruar, to borrow his car for the purpose of bringing Lim's wife to the hospital; that Lim's wife was brought to the hospital only on July 2 in the afternoon on Onting's car escorted by him and Abraham Lim and a housemaid and Caturan (t.s.n., 674-675 Barlaan); that on July 1 they spotted the car of Onting parked in a gasoline station; that accused Abraham Lim borrowed it and had full control thereof from that day; that from that time he was taking care of the car, that while he was watching it in the premises of the Cosmopolitan Funeral Parlor the Davao City Police Commando came and seized the car, telling him (Dy) it was used in committing the crime of robbery and homicide in Mati, that he told them he did not go to Mati, however, he was brought to Agdao where he was maltreated, then he was transferred in the office of the Police Detective Division boxed and manhandled by the police; that on July 4, 1966 he guided the police to locate

the accused, Abraham Lim at Toril, Davao City; that Abraham was found there and was arrested together with Eugene Ruslin; that they were brought to the P.C. barracks and were jailed there; that he did not sign any state judgment; that he admitted he is also known as Baba Isa and he is the uncle of Abraham Lim; that he rode in Onting's car together with Abraham and hi4 wife on July 1, 1966 in going to Talomo and back to Piapi. On cross examination this witness (Dy) incurred in selfcontradiction. He declared that he went to meet accused Abraham Lim in the CBC terminal after lunch on June 29, 1966 and testifying further he said that he arrived in Davao City from Cotabato at about 4:00 same day; that on July 1 at 8:00 A.M. Lim brought his wife to a clinic at San Pedro Street riding in Onting's car; that he slept in the hospital until July 4, 1966; that on that day from the hospital he brought the car to the premises of the Cosmopolitan Funeral Parlor where it was taken by the police. 5. TESTIMONY OF ROMUALDO RABOY: Accused Raboy alias Romy testified that on June 22, 1966 he came for the first time from Cotabato City to take vacation in Davao City; that he was accompanied by his cousin, Nelly Agravante; that he lodged in her house at Talomo, Davao City, from June 22 to July 2, 1966; that he stayed in said house without going to any other place outside Davao City; that on July 2, 1966 he took permission from his cousin to go to CBC terminal to make arrangement for him to take the last trip to Cotabato; that on his way at Acacia at about 7:30 A.M. he saw accused, Onting Biruar in Kingston Hotel, Onting whistled and called him and asked him to help him find his car to which he agreed; that he desisted from continuing his plan to go to Cotabato; that they searched the car during the whole day of July 2, but in vain; that he slept with Onting Biruar in Kingston Hotel; that on the following day (July 3) they failed again to see the car; that on July 4, 1966 they were arrested in Kingston Hotel by the D.C.P.D. Commando, he, Onting Biruar and Edgardo Seeres that he was brought to the office of the Police Detective Division; that he denied that he was in the house of the latter George Kalitas on July 2 and 3, 1966; that he does not know, nor met Silvia Kalitas; neither Narciso Bauyot, nor Gorgonio Mosende. On cross examination he declared that his nickname is Romy, that he did not know Abraham Lim, Ceferino Caturan, Angel Dy and Eugene Ruslin; that he first met accused Onting Biruar for the first time at P.C. barracks at Davao City before he was brought to Mati by the P.C. that he did not register his name in Kingston Hotel; that he was arrested in said hotel together with Onting Biruar and Edgar do Seeres that from the Detective Division he was transferred to the PC barracks; that he was not investigated there; that the car finally arrived at 5:30 on July 3 according to what Onting Biruar informed him. 6. TESTIMONY OF NELLY AGRAVANTE: Nelly Agravante, cousin of accused Romualdo Raboy has corqqq roboratedqqq the statement of the latter covering that portion, from the time he arrived in Davao City on June 22, 1966 until he took permission from her to go back to Cotabato on July 2, 1966. 7. TESTIMONY OF SATURNINO GALLIANO: Saturnino Galliano testified that he is 37 years old; that he is a resident of Waywayan, Mati, Davao Oriental; that since 1960 he cultivated a farm about four hectares with two cousins; that he was arrested on July 5, 1966, in the same place by the Mati Police; that he does not know the defendants Onting Biruar, Edgardo Seeres, Romualdo Raboy, Ceferino Caturan, Eugene Ruslin and Abraham Lim; that he met them only on July 12, 1966 at Mati when they were investigated; that he denied having robbed, the houses of Gorgonio Mosende and the late George Kalitas on July 2 late at night and in early morning of July 3,

1966; that he denied having poured petroleum and set on fire the house of the latter; that he just met for the first time Silvia Kalitas, Narciso Bauyot, Mosende and others on July 12, 1966 in the Municipal Court of Mati; that it is not true that he participated in the commission of robbery, killing and arson as charged in the information; that he resembled the accused Ceferino Caturan. 8. TESTIMON OF CEFERINO CATURAN: Ceferino Caturan declared that on the second week of June he was brought to Davao City by his employer, co-accused Abraham Lim to assist the latter's wife to deliver in the hospitalthat they came in Davao City in a PU car together with the wife of Abraham Lim, a maid and himself; that upon arrival they proceeded to the house of his uncle at Piapi, Davao City; that for about six months he was employed as a checker of Lim in his motor launch; that before the incident in question his master, Abraham Lim was engaged in the business of buying and selling coprax corn and rice; that Lim returned to Cotabato and came back on June 29, 1966 and rejoined his wife at Piapi; that on June 30, he brought Lim's wife to the hospital: that they rode on a hired taxi because he was not able to borrow Onting Biruar's car; that Lim's wife delivered on June 30, 1966 at night; that on the following morning he, Abraham Lim and Angel Dy took their breakfast in a restaurant; that on the afternoon of July 2, 1966 at about one o'clock he was brought by Abraham Lim to Mati; that they have started from a restaurant with three (3) companions; that along the way they picked up six other persons at Bajada; that he cannot see any of them in the Courtroom; that at the start he did not know the purpose of Lim in going to Mati, now he knows that it is to rob a certain house in Mati; that upon reaching Mati they refueled in a gasoline station and went to eat in a restaurant; that they met one Angelo Montero there who invited Lim to go inside; that after eating they left with Montero guiding them until they reached a certain place where the car could no longer proceed due to bad road; that he received instruction to guard the car; that all the riders left and went towards certain direction, that after some time he heard successive shots coming from some distance; that at about two o'clock the following morning (July 3) two of his companions returned; that one of them is wounded; that one of them shot him hitting his thigh; that half-hour later the bigger group with Abraham Lim arrived; that they started for Mati and from there they proceeded to Davao City passing at Kingking bridge where two or five of their companions got off the car; that they arrived at Davao City on July 3, 1966 at about 3:00 p.m.; that on July 4, 1966 he was apprehended by the Commando Police and brought to the P.C. barracks, Davao City where his affidavit (Exh. 'HH') was taken by Sgt. Almazar; that he did not sign it after it was typewritten but only on the following day after his wound was operated in the Davao General Hospital; that while he was confined in said hospital, Fiscal Angel Matondo arrived, but before he came he has already signed it; that he was weak and not feeling well when he signed his affidavit before it was explained to him. On cross examination he declared that one of those 6 men who joined them in the car brought a sack wrapped in Manila paper; that Abraham Lim is the one who drove the car going to Mati; that he did not talk with him during the trip in going to and on return. This witness (Caturan) was confronted with his answer to question 17 of his affidavit (Exh. "HH")wherein he stated that he saw six of his companions being armed with pistol of different calibers and one carrying carbine and Abraham Lim carried his own 45 caliber pistol. Caturan explained that it is true that he saw his companions carry firearms, but it was during that time when they returned to the car from the place where they went. (t.s.n., p. 735, Barlaan) This statement refers to that incident when the car stopped to a certain place when it could no longer proceed due to bad road, where all the riders except Caturan went off the car and came

back later after 4 or 5 hours covering a period from July 2 at about 10:00 at night to 2 or 3 o'clock early morning of July 3, 1966. 9. TESTIMONY OF EDGARDO SERERES: Defendant Edgardo Seeres testified that he came from Cotabato City and arrived at Davao City on June 28, 1966 riding on a CBC bus; that he had no companion; that his purpose in coming to Davao City is to deliver shrimps for sale in a place near the public market at Bankerohan; that upon arriving he proceeded to his aunt's house at Washington Street and stayed there continuously for 5 or 6 days; that he knew accused Onting Biruar, but not Romualdo Raboy, Eugene Ruslin, Ceferino Caturan; Angel Dy and Saturnino Galliano; that on his way to CBC station on July 2, 1966, Onting Biruar saw him passing his hotel and called him; that he asked him to help in looking for his car which was borrowed by someone and was not returned; that he agreed; that they have started the search but they could not find it on that day; that from that time he lodged in Kingston Hotel with Onting and Romualdo Raboy; that on July 4, 1966 in the morning he was apprehended by the Davao City Police together with Onting Biruar and Romualdo Raboy; that he did not know the cause of his arrest; that they were brought to Agdao, then transferred to the office of the detective division and finally to the P.C. barracks; that he was investigated there; that he was maltreated by the P.C. soldiers at the time he signed his affidavit; that he just met Ceferino Caturan; Angel Dy and Abraham Lim there; that he met Galliano at Mati; that he was detained together with others at the P.C. barracks at Mati on July 6, 7 and 8, 1966; that he did not go to Limot, Mati on July 2 or July 3, 1966; that he always was in Davao City during those days; that he denied statements of Narciso Bauyot; that he was seen in the house of Kalitas on the night of July 2, 1966, that he denied the statement of Mosende that he was one of the two men who robbed his house on the same day; that the first occasion he met Romualdo Raboy was in P.C. barracks, so also Ceferino Caturan, Angel Dy and Eugene Ruslin; that he is known as Broke; that he knows Onting Biruar for he used to deliver crabs to him; that he does not know Fiscal Matondo; that his affidavit taken by the P.C. (Exh. 'N') has been extracted by force and duress. The trial court, however, rejected the denials and excuses of the defendants and found that an of them, except Onting Biruar, the owner of the Buick car used in the commission of the crimes, and Eugene Ruslin, who was found sleeping with Abraham Lim in Toril, Davao City, when the said Lim was arrested by a police team, did, in fact, actively participate in the commission of the crimes complained of, and that their claims that they were elsewhere when the crimes were committed are unavailing against their positive Identification by the witnesses for the prosecution who testified in a natural and straightforward manner and had no motive or reason to pervert or suppress the truth or testify falsely against them. We have examined the record of the cases with great care and found no convincing reason to disturb the findings of the trial court that the accused were the perpetrators of the offenses charged. The claim of Abraham Lim that he went to the house of George Kalitas to collect what the latter allegedly owned him is improbable and not worthy of belief. The following observations of the trial judge is more logical and consistent with human conduct: (3) Referring to improbabilities and inconsistencies of the defendants' statements, Abraham Lim declared that his purpose in going to the late Kalitas' house that night in question was to collect accounts from the deceased. if this is true, why did he bring along no less than four armed men with him and made demand at about midnight in the dwelling of Kalitas? He admitted in cross examination that by chance he met Kalitas in a bus while he was on his way for Mati in 1965; that being an old man he could trust Kalitas and he advanced to him P15,600.00 as capital for their business.

If he could trust the late Kalitas with such big amount, why did he make that demand in the presence of armed men who made use of force and terror to attain their aim? Again he related that on demanding payment of the debts, Kalitas was irked and he drew his pistol and aimed at Abraham Lim but the latter in turn grabbed it and drew his own 22 caliber magnum pistol and grazed it at the back of Kalitas head and then dragged him outside. In the ensuing scuffle he lost the receipt of the said loan of P15,600.00 and also a notebook containing an entry of their transaction. This is another brand of Lim's statements which is not only improbable and unnatural but is outright incredible. Kalitas was an old, sickly man who was alone facing a menacing group of armed men who shot their way to his bedroom. Would he, in his senses dare to provoke them in that manner? At least two inmates of the house declared that he was already shot during the first burst of gunfire coming from outside the house and before the defendants came up. This seem to be true because he was carried by two of them towards the main door and Lim admitted that they dragged him outside. How could Kalitas drew his pistol when he was severely wounded and could not even talk. Abraham Lim continued his story by stating that when Kalitas was brought outside, he was shot at the upper part of his body by others whom he suspected to be Kalitas' neighbors and yet he was able to shout at his men calling them to surrender and in fact, Mosende, Aguedo and four others surrendered to Abraham their respective firearms consisting of one carbine and five pistols which he Identified in the courtroom. If his story is true, then no other logical conclusion can be drawn therefrom except that Abraham Lim and his men went to Kalitas' house on that night in question to fight, plunder and subdue Kalitas and his neighbors and in fact, according to him, they succeeded in forcing them to surrender thru Kalitas not only their persons but also their arms, but the Court would prefer to believe that a sham story of this nature is rather false, exaggerated and unbelievable because if Kalitas was really shot at a vital part of his body he could not have talked and moved, how then could he shout? Granting arguendo that Kalitas shouted at his men to surrender, the latter following the natural instinct of selfpreservation would flee from the scene of the crime and would not give up their arms and persons to such ruthless and dangerous foe under that horrible circumstances of firing, killing and burning of a house. There is no evidence that they were cornered or trapped in such a tight situation that no other remedy could be availed of except to surrender . . . If Lim's story is to be accepted the Court cannot find good reasons to justify him to capture Kalitas and his neighbors if his purpose is only to collect debts. Besides, the attack on the credibility of the witnesses for the prosecution is based upon trial matters. Thus, counsel for the accused claims that the testimony of the prosecution witness Alfredo Matiga is not credible since the said witness even failed to recall, during his cross-examination, the number of the house where he was living and his birthdate. It should be noted, however, that the said witness testified to only one detail, and that is, the fact that he saw the Buick car of Onting Biruar refueling at a gasoline station in the poblacion of Mati on the night of July 2, 1966, which fact is admitted by the accused Abraham Lim and Ceferino Caturan. The testimony of Narciso Bauyot is also assailed on the ground that he signed his sworn statement before the Municipal Judge during the preliminary investigation without reading its contents, or without having then read and explained to his. The conviction of the accused, however, was not based upon the sworn statement of the witness, but, on the collective testimony of Narciso Bauyot and the other prosecution witnesses who were subjected to a rigid cross-examination by the defense counsel during the trial of the case. Besides, counsel failed to point out

how the failure of this witness to understand the substance of his affidavit could have cast serious doubt on the guilt of the defendants, The testimony of Gorgonio Mosende regarding the robbery in his house is also impugned as improbable because the said Mosende had testified that the accused Romualdo Raboy and Edgardo Seeres had announced their presence to Mosende before coming to the house, which they need not have done in order to rob the couple. While it may be true that the accused had made known their presence to Mosende and that the latter had invited them to come up his house, Mosende did so because he thought that the callers were relatives of his wife. It may have been unwise for Mosende to do so, but that does not render his story improbable considering that the incident happened in the rural areas where the people are generally more hospitable. Besides, Mosende is a poor man and he had no reason to expect that he would be robbed. At any rate, the accused failed to impeach the testimony of the said Gorgonio Mosende. Defense counsel also claims that no robbery was committed in the house of George Kalitas since there is no positive evidence presented to show the existence of the money allegedly taken from George Kalitas as well as the act of taking the same. To support his contention that no money was taken from George Kalitas, counsel quoted a portion of the testimony of Silvia Mingming Kalitas, the wife of George Kalitas, which shows that the trunk where the money was kept was burned without its being opened. Counsel further stated that the accused were apprehended within 48 hours after the commission of the crime and yet the money stolen or a part thereof was not traced to, nor recovered from the accused, much less presented in court. The contention is devoid of merit. It had been positively established that the late George Kalitas had kept money in a trunk placed under his bed which the accused took on the night in question. Martillana Kalitas categorically stated in court that her father, George Kalitas, had money, amounting to P65,000.00, which he kept in a trunk placed under his bed, because he had no trust in banks. 21 Jessie Renopal testified that the accused broke open the said trunk with an axe on the night of July 2, 1966 and took the money placed inside. 22 Her testimony is corroborated by Silvia Mingming Kalitas, the wife of George Kalitas. Silvia Mingming Kalitas declared, however, that the money kept by her husband amounted to only P40,560.00 at the last counting. 23 The testimony of Silvia Mingming Kalitas which was quoted by counsel for the accused, does not support his contention that no money was taken from George Kalitas on the night in question. The testimony, adverted to, reads, as follows: COURT: Q Now, the Court wants to know whether that trunk which you have mentioned from which they got the P40,560.00 cash was taken before or after the house was set on fire. Which is which? A The fire was beginning, when it was advancing, that the time when the robbers came up. Q Was that trunk from which the money was taken burned? A It was burned; nothing is left, including the clothes. Q Before it was burned, was it already opened? A Before it was burned, it was not yet opened. It was they themselves who opened it. 24 It is clear therefrom that the accused opened the trunk and took the money placed inside before it was burned.

The argument of counsel that the amount stolen, or a portion thereof, should have been presented in evidence in order to make the transportation credible, is untenable. Where the property stolen was not recovered, it would be impossible to present it in evidence. Besides, there is no law nor jurisprudence which requires the presentation of the thing stolen in order to prove that it had been taken away. It appears of record that there were other persons who participated in the commission of the offenses, but have not been charged. Ceferino Caturan stated that there were 9 of them inside the car when they went to the house of George, Kalitas on the night in question, and Abraham Lim testified that one of his companions in going to the house of George Kalitas on the said night was one Cesar Go. 25 However, only 8 persons have been Identified and charged and Cesar Go is not one of them. The money could be with him. Moreover, the accused were not apprehended immediately after the commission of the crimes, but a day later, or on July 4, 1966. The accused could have disposed of the money before their arrest. The failure of the prosecution to present in evidence the money stolen does not give rise to a reasonable doubt as to the guilt of the accused. It is also contended by the accused that only one offense was committed since the robbery in the houses of Gorgonio Mosende and George Kalitas is one continuing offense, committed at the same time and on one occasion, and arising out of one criminal resolution, and the burning of the house of George Kalitas was the means to commit the crime of robbery. Counsel cites the case of People vs. De Leon 26 in support of his contention. The contention is without merit. In the case cited by counsel the defendant entered the yard of a house where he found two fighting cocks belonging to different persons and took them. In this case, however, the accused, after committing the crime of robbery in band in the house of Gorgonio Mosende, went to the neighboring house of George Kalitas where they committed the crimes of Arson and Robbery with Homicide and Physical Injuries. Obviously, the rule enunciated in the cited case cannot be made applicable since the herein accused performed different acts with distinct purposes which resulted in juridically independent crimes. The Court also rejected the applicability of the cited case of People vs. De Leon in the case of People vs. Enguerro , 27 and found the accused therein guilty of three (3) separate crimes of Robbery in Band, where the said accused, after committing a robbery in band in a store, went to another house where they committed a second robbery, and after committing it proceeded to another house where they committed a third robbery, and in the same barrio during the period from 7:00 p.m. to 11:00 p.m. of the same day. The burning of the house of George Kalitas was not the means in committing the robbery. The evidence shows that the accused gained entry into the house of George Kalitas by breaking down the door with an axe and not by burning the same. 28 Finally, the accused Abraham Lim pleads that he had been denied the right to be present and defend in person and by attorney at every stage of the proceedings against him, that is, from the arraignment to the promulgation of the judgment. He claims that the trial court proceeded with the trial of the cases despite his absence therefrom although he was charged with a capital offense. The contention is devoid of merit. The provisions of the Rules of Court 29 Securing to an accused person the right to be present in all criminal prosecutions against him must be understood as securing to him merely the right to be present during every stage of his own trial and not at the trial of another. Since the accused Abraham Lim was present during his arraignment and jumped bail after giving his testimony in court and was absent only when his co-accused were presenting their evidence, none of which are prejudicial to the interest of the accused Abraham Lim his attorney was present during this time, and also present when the sentence was read to him, there was no infringement of the said

defendant's right to be present at every stage of the proceedings against him. The trial court, therefore, did not err in finding the defendants Abraham Lim alias Titing Lim, Ceferino Caturan alias Fred, Romualdo Raboy alias Romy, and Saturnino Galliano guilty of the crimes of Robbery in Band, Arson, and Robbery with Homicide and Physical Injuries. The trial court found that the commission of the offenses charged was attended by the aggravating circumstances of nighttime, dwelling, use of motor vehicle, use of unlicensed firearm, and with the aid of armed men to ensure or afford impunity. The use of unlicensed firearm, however, cannot be appreciated as an aggravating circumstance in Crim. Case Nos. 9988 (Arson) and 9989 (Robbery with Homicide and Physical Injuries) since the special aggravating circumstance of use of unlicensed firearm is solely applicable to robbery in band under Art. 295 of the Revised Penal Code. 30 This, notwithstanding, the death penalty imposed upon the accused Abraham Lim alias Titing Lim, Ceferino Caturan alias Fred, Romualdo Raboy alias Romy, and Saturnino Galliano in Crim. Case No. 9989, for Robbery with Homicide and Physical Injuries, is within the range of the penalty provided for by law. However, for lack of the necessary affirmatory votes, the penalty imposed upon them by the trial court is hereby reduced to reclusion perpetua. We also find that the trial court had inadvertently ordered the defendants to indemnify, jointly and severally, the heirs of the deceased George Kalitas the amount of P20,000.00 for the money stolen from him and not recovered in Crime Case No. 9988, and the amount of P12,000.00 for the death of the said deceased in Crim. Case No. 9989. Crim. Case No. 9988, however, is a prosecution for Arson, for the illegal burning of the property of George Kalitas valued at P34,545.00, while Crim. Case No. 9989 is one for Robbery with Homicide and Physical injuries where the evidenced showed that the amount of P40,000.00 was taken from the house of George Kalitas. The Solicitor General recommends that the defendants be ordered to indemnify the heirs of the late George Kalitas the amount of P34,545.00 in Crim. Case No. 9988, and the amounts of P12,000.00, for the death of the said deceased and P40,000.00, for the money stolen from him. We further note that the penalty imposed upon the defendants in Crim. Case No. 9987 is less than what the law prescribes for the offense committed. In said case, the defendants were found guilty of Robbery in Band, attended, among others, by the aggravating circumstance of use of unlicensed firearms and sentenced to suffer an indeterminate penalty of from two (2) years and four (4) months of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. However, Article 295 of the Revised Penal Code, as amended, provides that if the robbery mentioned in pars. 3, 4 and 5 is committed by a band, the offenders shall be punished by the maximum period of the proper penalties, and Article 296 of same Code, as amended, also states that when any of the arms used in the commission of the offense be an unlicensed firearm, the penalty to be imposed upon the malefactors shall be the maximum of the corresponding penalty provided for by law. Hence, the penalty to be imposed upon the defendants should be the maximum of the maximum period of the penalty, even without the concurrence of any other aggravating circumstance, 31 or an indeterminate penalty of from four (4) years and two (2) months of prision correccional as minimum, to ten (10) years ofprision mayor , as maximum. WHEREFORE, the judgment appealed from should be, as it is hereby AFFIRMED, with the modification that the defendants Abraham Lim alias Titing Lim, Ceferino Caturan alias Fred, Romualdo Raboy alias Romy, and Saturnine Galliano are sentenced: (1) to suffer an indeterminate penalty of from four (4) years and two (2) months of prision correccional as minimum, to ten

(10) years of prision mayor , as maximum in Crim. Case No. 9987; (2) to suffer the penalty of reclusion perpetua in Crim. Case No. 9989; and (3) to indemnify, jointly and severally, the heirs of the deceased George Kalitas the amount of P34,545.00 in Crim. Case No. 9988, and the amount of P40,000.00 in Crim. Case No. 9989, for the money stolen from the said deceased. The indemnity for the death of George Kalitas is hereby increased to P30,000.00. 32 With costs against the accused Abraham Lain alias Titing Lim, Ceferino Caturan alias Fred, Romualdo Raboy alias Romy, and Saturnino Galliano in this instance. Republic of the Philippines G.R. No. L-54567 March 22, 1990 THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. EMETERIO DINOLA, accused-appellant. The Office of the Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellant. CORTES, J.: Upon complaint by Marilyn Caldosa, the appellant-accused Emeterio Dinola was charged before the Circuit Criminal Court, 13th Judicial District, Palo, Leyte with the crime of robbery with rape under the following information: xxx xxx xxx That on or about the 21st day of October, 1977 in the Municipality of Alangalang, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with a deadly weapon, and by means of force and intimidation, did then and there wilfully and feloniously have a carnal knowledge with one Marilyn Caldosa, and that on the occasion thereof, the said accused, by the use of force upon the same Marilyn Caldosa, and with intent to gain, did then and there wilfully and feloniously take and carry away the wrist watch of Marilyn Caldosa, to her damage and prejudice in the amount of P300.00, the money value of the watch. Contrary to law.[ Rollo , p. 8.] Upon arraignment, the accused pleaded "not guilty" [ Rollo , p. 10]. After trial, the court a quo rendered judgment finding the accused guilty beyond reasonable doubt of the crime of robbery with rape and accordingly sentenced him to suffer the penalty of reclusion perpetua , to indemnify the victim in the amount of twelve thousand pesos (P12,000.00) and to pay the costs [ Rollo, pp. 11-12]. From the judgment of conviction, the accused filed the present appeal assigning the following as errors: 1. THE TRIAL COURT ERRED IN NOT CONSIDERING THE IMPROBABILITIES IN THE TESTIMONY OF COMPLAINANT MARILYN CALDOSA. 2. THE TRIAL COURT ERRED IN PLACING THE BURDEN UPON THE ACCUSED-APPELLANT TO PROVE HIS INNOCENCE AND IN NOT ANALYZING THE STATE'S EVIDENCE TO ARRIVE AT A CONCLUSION BEYOND REASONABLE DOUBT. [ Rollo , p. 65.] The evidence for the prosecution consisted primarily of a medico-legal certificate and the testimonies of complainant

Marilyn Caldosa and Dr. Sherlito Siao, the doctor who conducted the physical examination on Caldosa after the incident allegedly occurred. The medicolegal certificate of the complainant stated the following findings: Findings: No external sign of physical injuries INTERNAL EXAM: Introitus: Admits 2 examining fingers with slight pain. There is an incomplete laceration of the hymen at 6 o'clock position There is a contusion 0.5 cm. at the 1 o'clock position of the hymen Cervix: Negative Sperm Exam: Negative for spermatozoa Uterus: Not Enlarged Discharges: None xxx xxx xxx [Exh. "A"; Rollo , p. 5.] Dr. Sherlito Siao, a resident physician of the Daniel T. Romualdez Memorial Hospital testified to the following: xxx xxx xxx . . . [T]hat on October 21, 1977, at about 4:00 o'clock in the afternoon, he conducted a physical examination of Marilyn Caldosa in connection with an alleged rape case; that his findings were reduced to writing Exhibit "A" which witness identified; that there were no signs of external physical injuries; that there was incomplete laceration [of the hymen] which did not extend to the base and it is possible that there was sexual contact; that there was injury to the hymen caused by a blunt instrument, perhaps a male organ, and could have been caused by forcible insertion; that no spermatozoa was found as there was perhaps no ejaculation, recent washing or there was no penetration of the male organ, and that the victim was possibly raped. xxx xxx xxx [Trial Court Decision, p. 2; Rollo , p. 23.] The testimony of complainant Marilyn Caldosa was summarized by the trial court as follows: xxx xxx xxx . . . That she knows the accused, . . . and that she has known him for more than a year as the accused resides in front of their house and had previously worked for them and they would oftentimes converse as they are friends; that on October 21, 1977, at about 3:00 o'clock in the morning, she was at home sleeping [alone] in the house of her aunt, Gertrudes Vda. de Barraza, who was then in Tacloban . . .; that she was awakened by a voice saying: "Do not make a noise or I will kill you. If you will not accede to a carnal knowledge I will count from one to three and I will kill you."; that she noticed a small bolo pointed towards her breast and she [was] frightened . . .; that the person then placed himself on top of her and placed his penis inside her vagina by push and pull; that the first push was not successful

and the person tried many times to put his penis inside [her] vagina until he was able to do so and [she] felt pain; that while the person was on top of her, she did not resist as he was ( sic ) big while she is small and she cannot overcome him; that after having carnal knowledge [with] her, the person lighted a candle and when he saw her "Citizen" watch valued at P300.00 he grabbed it from her; that after the candle was lighted, she saw that the person was "Eme" whose full name is Emeterio Dinola . . .; that the accused left after grabbing her watch while she stayed in bed as she was afraid and at about 4:00 o'clock in the morning she went to the bathroom and washed her vagina as she felt dirty; that at about 5:00 or 6:00 o'clock in the morning, she went to the house of the son of her aunt in Barrio Binongtuan and they went to the Provincial Hospital in Tacloban City to have her painful vagina treated, arriving there at about 8:00 o'clock in the morning; that she was not treated that morning as the doctor on duty was not there and they were requested to return in the afternoon; that they were given a prescription for the medicine which the son of her aunt bought while she went to school; that she went back to the hospital in the afternoon and she was physically examined by Dr. Sherlito Siao. xxx xxx xxx [Trial Court Decision, pp. 2-4; Rollo , pp. 23-25.] The accused denied the complainant's allegations and offered the following counter-statement of facts: xxx xxx xxx . . . That on October 21, 1977, at about 3:00 o'clock in the morning, he was at home in their farm at Barrio Caiguihan, Alangalang, Leyte, about 1 kilometer from the Poblacion of Alangalang; that the house belongs to his father Inocentes Dinola and living with them were his step-mother and a halfbrother; that he does not know Marilyn Caldosa and her statement that he raped her and stole her watch is not true as he knows nothing about it; that it is not true that he lives infront ( sic ) of the house of the victim in the poblacion as he lives in the farm; that he does not know Gertrudes Vda. de Barraza; that he was fetched from the house of Filemon Ramos at Calle Retana, Alangalang, Leyte on October 21, 1977 by Patrolman Augusto Salvatierra who told him that the Chief of Police wanted to see him; that he went with Patrolman Salvatierra to the Municipal Building but the Station Commander was not there; that it was only "Cocoy" Caples who was there and who immediately maltreated him; that he was never informed why he was summoned; that he was boxed, kicked, and maltreated in many other ways by "Cocoy" Caples, including being thrust at or jabbed with a pistol; that "Cocoy" Caples boxed his ears with his (Caples) palms and blood came out and he lost consciousness; that he was maltreated in the office of the Chief of Police; that while he was in the Municipal Building on October 21 1977, he did not meet Marilyn Caldosa and he did not see her the next day; that on October 22, 1977 he was inside the jail and during the whole time that he was in jail in Alangalang he never saw Marilyn Caldosa; that the charge against him is a mere fabrication. xxx xxx xxx [Trial Court Decision, pp. 7-8; Rollo , pp. 28-19.] The testimony of the accused was corroborated by the only other defense witness Diosdado Dinola, the accused's half brother. As in most rape cases where the complainant is the main prosecution witness, the issue boils down to her credibility. The accused assails the credibility of complainant Marilyn Caldosa by pointing to the following factors which, according to the accused, negate the complainant's allegation of the use of

force on her: (1) there were no external signs of injuries on her body; (2) the complainant did not make any resistance as in fact her hands were just on her sides during the time the forced intercourse allegedly occurred; and (3) she did not say anything to stop her assailant from consummating the act. In the medico-legal certificate prepared by Dr. Sherlito T. Siao, it was stated that Marilyn Caldosa sustained "[n]o external sign of physical injuries" [Exh. "A"; Rollo , p. 5]. This statement was confirmed by the doctor when he took the witness stand [TSN, August 1, 1978, p. 3]. But from this medical finding alone, it can not be concluded that there is no truth in the complainant's allegation of rape. The Court has already ruled that the absence of external signs of physical injuries on the complainant does not necessarily negate the commission of the crime of rape [People v. Malabad, G.R. No. 63219, November 28, 1984, 133 SCRA 392; People v. Monteverde, G.R. No. 60962, July 11, 1986, 142 SCRA 668; People v. Mendoza, G.R. No. 74653, July 26, 1988, 163 SCRA 568]. But the accused, in order to impugn further the credibility of the complainant, relies on the latter's admission that during the time the accused was on top of her, her hands were on her sides and that she did not say anything to stop the accused. It is true that when asked if the complainant resisted the accused while he was on top of her, she said that she did not [TSN August 1, 1978, p. 10]. She also admitted that during all the time that the accused was on top of her, her hands were just on her sides [TSN, September 20, 1978, p. 19]. However, it must be remembered that according to the complainant, when she was roused from sleep by the accused, the latter held a bolo to her chest and threatened to kill her if she made any noise [TSN, August 31, 1978, p. 9]. Moreover, when asked to explain why she offered no resistance, she consistently stated both on direct and cross-examination the following: "I cannot resist him because he is bigger and I am small" [TSN, August 1, 1978, p. 10; "I did not anymore [resist] because he was ( sic ) big and I was ( sic ) small" [TSN, September 20, 1978, p. 19]. The Court has already ruled that rape may be committed even if no force was used, intimidation being sufficient. Intimidation includes the moral kind such as fear caused by threatening the girl with a knife [People v. Garcines, G.R. No. L-32321, June 28, 1974, 57 SCRA 653]. The Court has likewise held that the admission of the victim that her hands were on her sides while the accused was on top of her does not mean that she consented to the act [People v. Modelo, G.R. No. L-29144, October 30, 1970, 35 SCRA 639]. The complainant in this case, is a seventeen (17) year old lass while the accused is a thirty four (34) year old laborer. In complainant's words: "he is bigger and I am small." Considering, the size, age and strength of the accused, coupled by his use of a bolo to threaten the complainant, the Court rules that the complainant's failure to resist the accused does not detract from the fact that the latter employed intimidation in order to have sexual intercourse with the latter. The law does not impose a burden on the rape victim to prove resistance. What needs only to be proved by the prosecution is the use of force or intimidation by the accused in having sexual intercourse with the victim. The accused next takes issue with the statement of the complainant that after he allegedly raped her, he lighted a candle, enabling the complainant to see his face and recognize him. The accused finds it incredible for a perpetrator of a crime to give the victim the chance to identify him. Thus, it is concluded by the accused that the complainant has fabricated a tall tale of rape involving the two of them. But in this day and age, it is not uncommon for criminals to be careless about or to even intentionally reveal their identities to their victims. The failure by a criminal to conceal his identity would not make the commission of the crime any less credible. Bragadoccio among criminals is not uncommon. Very often too, they are secure in the thought that they have instilled sufficient

fear in their victims that the latter will not give them away to the authorities. The complainant in this case was able to identify her assailant with certainty. When asked on the witness stand who had assaulted her, she replied that it was the accused, Emeterio Dinola [TSN, August 31, 1978, p. 7]. On being told to identify her rapist and with the permission of the trial court, she stepped down from the witness stand and tapped the accused on the shoulder [Id .] The trial court found the complainant to be a credible witness, and with good reason. A careful reading of the record of the case shows the complainant's testimony regarding the circumstances of the rape and the identity of the rapist to be direct, lucid forthright and, being totally untainted by contradictions in any of the material points, deserves credence. Lending further credence to the testimony of the complainant is the oft-repeated observation of the Court that no young Filipina of decent repute would publicly admit that she had been criminally abused and ravished unless that is the truth. It is her natural instinct to protect her honor [People v. Itano, 109 Phil. 912 (1960); People v. Reyes, G.R. No. 62387, June 19,,1985, 137 SCRA 99; People v. Ramilo, G.R. No. 52230, December 15, 1986, 146 SCRA 258; People v. Magdaraog, G.R. No. L-40988, April 15, 1988, 160 SCRA 153]. As the trial Court noted: xxx xxx xxx . . . [A]t the time of the incident the complaining witness was only 17 years old, single, and a college student. She was then at the stage of life when an individual prepares for the future. This Court cannot conceive that such a person would seemingly jeopardize her future by the filing of the instant case with its resultant adverse social effects unless the charges were true. She would not willingly go through the rigors of a public trial wherein she would have to relate, in detail, the atrocity committed upon her person unless she was sure that it was the accused who committed such an atrocity. Further, aside from the allegation that the instant case is a mere fabrication, no evidence has been adduced by the defense as to why the complaining witness would fabricate a case against the accused. [Trial Court Decision, p. 11; Rollo , p. 32.] Finally, the Court finds significance in the fact that the complainant sought medical examination immediately after the incident [TSN, August 31, 1978, p. 12]. This fact, taken together with the other circumstances of the case, indicates that the fresh laceration found by the doctor on her hymen [Exh. "A"; Rollo , p. 5] was inflicted against her will. In fine, the Court, after a thorough examination of the entire record of the case, finds no substantial reason to depart from the established rule that the Supreme Court regards with respect and will generally not disturb the findings of the trial court on the credibility of witnesses, unless certain facts of substance and value have been overlooked which if considered, might affect the result of the case [People v. Sinaon, G.R. No. L-15631, May 27, 1966, 17 SCRA 260; People v. Abonada, G.R. No. 50041, January 27, 1989; People v. Pedrosa, G.R. No. 56457, January 27, 1989]. Having sustained the findings of the trial court on the credibility of the complainant, the defense put up by the accused, alibi, must necessarily fall. The Court has consistently held that the alibi of the accused that he was not at the rape scene cannot stand against the positive identification made by the complainant [People v. Soriano, G.R. No. L-32244, June 24, 1983, 122 SCRA 740; People v. Deus, G.R. No. 63729, May 31, 1985, 136 SCRA 660; People v. Aragona, G.R. No.L-43752, September 19, 1985, 138 SCRA 569]. Alibi is inherently a weak defense [People v. Datahan, G.R. Nos. 77107-08, January 21, 1988, 157 SCRA 215] especially, where as in this case, the same was corroborated only by a relative of the accused [People v. Manuel, G.R. No. L-

44461, April 15, 1988, 160 SCRA 248; People v. Macabenta, G.R. No. 72476, February 14, 1989]. The accused, in this case, was not satisfied in abusing the complainant. After satisfying his criminal lust and upon seeing the watch on the girl's wrist, he again threatened to kill the complainant if she did not hand over the watch. The complainant refused to give it but he forcibly grabbed it from her. [Sworn Statement of Marilyn Caldosa dated October 22, 1977, p. 1;Rollo , p. 3]. The accused was charged and convicted of the special complex crime of robbery with rape. However, it does not appear from the record of the case that when the accused entered the house of the complainant, he already had the intention to rob the complainant. In fact, the complainant testified that after she was raped by the accused, the latter lit a candle, saw the watch on her wrist, threatened to kill her if she did not give it to him and forcibly took it from her [TSN, August 31, 1977, pp. 10-11]. Hence, the taking of the watch by the accused was more of an afterthought, even accidental. If the intention of the accused was to commit robbery but rape was also committed even before the robbery, the crime of robbery with rape is committed [ See People v. Canastre, 82 Phil. 480 (1948)]. However, if the original design was to commit rape but the accused after committing rape also committed robbery because the opportunity presented itself, the criminal acts should be viewed as two distinct offenses. ACCORDINGLY, the Court hereby MODIFIES the judgment of the court a quo by finding the accused guilty of two independent crimes of rape and robbery. The accused is hereby sentenced to suffer the indeterminate penalty of not less than two (2) years, four (4) months and one (1) day of prision correccional , to not more than eight (8) years of prision mayor [Art. 294, par. 5, RPC in relation to Act No. 4103, as amended] for the crime of robbery and to restore to the victim the watch which was taken or to pay its value in the amount of three hundred pesos (P300.00). As for the crime of rape, since it was committed with the use of a deadly weapon, the accused must suffer the penalty of reclusion perpetua [Art. 335, Revised Penal Code in relation to Art. III, Sec. 9 (1) of the 1987 Constitution] and indemnify the victim the amount of thirty thousand pesos (P30,000.00) [People v. Viray, G.R. No L-41085, August 8, 1988, 164 SCRA 135]. With costs against the accused. SO ORDERED. Republic of the Philippines G.R. No. 92049 March 22, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN MORENO y ULTRA, and PAULINO DELORIA, accused, REYNALDO MANIQUEZ, accused-appellant. The Solicitor General for plaintiff-appellee.Gonzales, Batiller, Bilog & Associates for accused-appellant. CAMPOS, JR., J.: Accused Juan Moreno, Paulino Deloria and lone appellant Reynaldo Maniquez were charged with the Crime of "Robbery with rape" in an information quoted as follows: That on or about May 31, 1985, in the City of Manila, Philippines, the said accused, conspiring and confederating

together and helping one another, with intent of gain, and by means of force, violence and intimidation and by means of force upon things, to wit: by forcibly destroying with the use of cutter and screw driver the window of the ground floor of House No. 1291 Paz St., Paco, this City, an inhabited house being used as a dwelling place of RAJ MOHNANI and his family, and entering the said window, an opening not intended for entrance or egress, did then and there wilfully, unlawfully and feloniously break into and enter inside the said house and once inside, poked their respective bladed/pointed weapons to said Raj Mohnani and his wife, Sundri Mohnani, telling to call their maids, and ordering them including their three (3) children to lie face down, took, stole and carried away the following, to wit: One (1) SONY TV 21" colored valued at P10,000.00

all valued at P98,550.00, Philippine Currency and US$134.00 or its equivalent to P2,412.00, or all valued at P100,962.00 more or less, belonging to said RAJ MOHNANI against his will and consent, to the damage and prejudice of said owner in the aforesaid amount of P100,962.00, more or less, Philippine Currency; that on this occasion, the robbery was immediately accompanied by rape, the said accused, did then and there wilfully, unlawfully and feloniously, and by means of force, violence and intimidation, to wit: by using and poking their respective bladed weapons on the person of Marry Ann Galedo y Caledo and Narcisa Sumayo y de Alagdon, succeed in having sexual intercourse with them against their will and consent. Contrary to law. 1 Upon arraignment, all the accused pleaded not guilty.

One (1) Betamax valued at 11,000.00 One (1) ROLEX wristwatch gold 10,000.00 One (1) PEGOT wristwatch blue w/ gold 10,000.00 One (1) Citizen quartz w. watch, gold 2,000.00 One (1) Computer Sharp Model 1500 10,000.00 One (1) Seiko wristwatch, silver 1,200.00 One (1) Citizen quarts, gold 1,500.00 One (1) Casio wristwatch 500.00 One (1) Cartier black 500.00 Six (6) assorted wristwatches 3,000.00 One (1) gold ring with initial "R" 5,000.00 Two (2) Gold bracelets 15,000.00 One (1) pair of gold earrings 2,000.00 Three (3) wallets with cash money 3,000.00 and US $134.00 Two (2) pairs of Bally shoes 5,000.00 One (1) bicycle 850.00 One (1) bottle Black Label whisky 500.00 One (1) Dunhill cig.lighter 7,000.00 One (1) Win electro lighter 500.00 One (1) Sony TV 16" One (1) Headphone radio Four (4) betamax tapes One (1) Bally shoes One (1) bag of assorted slippers One (1) Yasaki rubber shoes One (1) ROTA AIRE SUNBEAM WHEREFORE, the Court hereby renders judgment against all the Accused, as follows: 1. The Court finds the Accused Juan Moreno y Ultra, guilty beyond reasonable doubt, as principal, for the crime of robbery as defined in and penalized by Article 294, paragraph 5 of the Revised Penal Code, as amended and hereby sentences him to suffer imprisonment for an indeterminate period of from four (4) years and two (2) months of prision correccional , as minimum, to ten (10) years of prision mayor, as maximum, with the accessory penalties of the law; 2. The Court finds the Accused Reynaldo Maniquez y de la Merced and Paulino Deloria y Ramilla, guilty beyond reasonable doubt, as principal, for the crime of robbery with rape and hereby sentences each of them to suffer the penalty of reclusion perpetua with all the accessory penalties of the law and hereby orders the Accused Reynaldo Maniquez to pay Mary Ann Galedo and the Accused Paulino Deloria to pay Narcisa Sumayo, the amount of P10,000.00, Philippine Currency, by way of damages, without subsidiary imprisonment in case of insolvency; 3. Ordering all the Accused to return to the Spouses Mohnani Raj and Sundri Mohnani all the goods and appliances stolen by them as listed in the aforementioned Information and if they failed and/or refused to do so, to pay, jointly and severally, to said Spouses the value of said goods, in the amount of P98,550.00, without subsidiary imprisonment in case of insolvency, and to pay the costs. SO ORDERED. 2 Since the decision involved the penalty of reclusion perpetua , the records of the case were transmitted to this Court for review. Notice was sent to counsel of the accused to file Appellants' brief but such notice was returned unclaimed. However, Reynaldo Maniquez, who was detained at the New Bilibid Prison in Muntinlupa, signified his intention to plead his case, at the same time requesting this Court to appoint a counsel de oficio since his previous counsel had allegedly abandoned him. His request was granted, and counsel de oficio filed his brief, raising only one assignment of error: that "the lower court gravely erred when it convicted the appellant with the crime of During the trial, all three accused jumped bail. Accused-appellant Reynaldo Maniquez was, however, reapprehended. The other tow, Juan Moreno and Paulino Deloria, could not be found, although Juan Moreno has been reported dead. On the other hand, the victims of the alleged rape, Mary Ann Galedo and Narcisa Sumayo, left their employer's house shortly after the alleged robbery and rape for an unknown province, and thus neither of them could testify at the trial. On September 11, 1987, after trial on the merits, the lower court rendered judgment of conviction, the dispositive portion of which reads as follows:

rape on the basis of the affidavit of the alleged offended party, without hearing her testimony in open court." 3 Accused-appellant is contesting, not his conviction for robbery, but only his conviction for rape of Mary Ann Galedo, who was not presented as a witness during the trial. The following facts as found by the trial court are undisputed: As can be synthesized from the evidence in the record, it appears that between 4:00 and 4:30 o'clock in the early morning of May 31, 1985, the Spouses Mohnani Raj and Sundri Mohnani, both Indian nationals, but residing in the Philippines, were sleeping in their house at No. 1291 Paz Street, Paco, Manila, with their three (3) children. The couple had two maids, namely, Mary Ann Galedo and Narcisa Sumayo, who were sleeping in another room near the sala of the house. The three (3) Accused agreed to rob the house of Mohnani Raj and Sundri Mohnani. At first, the Accused Juan Moreno had, in mind, robbing a house in Makati but when he saw that there were policemen in the vicinity, the house of the Indian couple became their prime target. Seemingly, aside from the three Accused, they had another confederate, a jeepney driver, who agreed to use his jeepney on which to load the loot taken by the Accused from the house of the couple. When the Accused reached the vicinity of the house of the couple, the jeepney was parked nearby about four (4) meters away from the house of the couple. The Accused Juan Moreno entered the house first by cutting the iron grills of the window of the house. In the meanwhile, the Accused Paulino Deloria patrolled the street nearby for any persons or tanod in the vicinity. The Accused Reynaldo Maniquez, on the other hand, acted as the look-out. After a while, Juan Moreno emerged from the house, with a pair of scissors. The Accused Juan Moreno handed over to the Accused Reynaldo Maniquez the pair of scissors and ordered the latter to look for Paulino Deloria. Thereafter, the trio entered the house together, using a flashlight. It was at that point in time that the son of the couple, Pran, was going out of the bedroom of the couple to urinate. The spouses were awakened when the three Accused Juan Moreno, Reynaldo Maniquez and Paulino Deloria entered their bedroom. The Accused Paulino Deloria, who was armed with a gun covered with a towel, switched on the lights inside the bedroom of the couple and stood by the door. The Accused Reynaldo Maniquez, on the other hand, sat on the stomach of Mohnani Raj, at the same time, warning the latter not to shout, while poking the pair of scissors on him. The Accused Juan Moreno posted himself beside where Sundri Mohnani Raj was lying down, while poking his knife at her. The Accused Juan Moreno told Sundri Mohnani to remove all her belongings and her handbag and warned her not to shout. The said Accused was able to take from her a watch, two (2) Indian bangles, two (2) rings and P1,000.00 cash. The Accused Paulino Deloria also told Sundri Mohnani to remove her watch and other personal belongings and asked her if she had money. Sundri Mohnani gave the said Accused her money. The Accused Reynaldo Maniquez asked Sundri Mohnani for the wallet and the latter told the Accused that the wallet was on top of the airconditioning unit. The Accused Paulino Deloria asked her where her maids were and Sundri Mohnani told the Accused where their maids were sleeping. Sundri Mohnani, thereupon, accompanied Paulino Deloria and Reynaldo Maniquez to the room of their maids, near the sala. When Sundri Mohnani and the two (2) Accused entered the room of the maids, Sundri Mohnani instructed her maids not to shout and to go to the room of the Spouses.

However, the Accused Paulino Deloria and Reynaldo Maniquez told the maids to go with them stead. Reynaldo Maniquez brought Mary Ann Galedo to the bathroom of the house while Paulino Deloria brought Narcisa Sumayo to the sala. Sundri Mohnani was afraid to go out of the bedroom. However, she peeped through the door of the bedroom which was then open. Although she could see the bathroom, the door to the bathroom was closed. She could not, moreover, see the sala from where she was. After about five (5) minutes, Paulino Deloria and Reynaldo Maniquez and the two (2) maids returned to the room of the couple. Sundri Mohnani saw that the zipper of the pants of Reynaldo Maniquez was still open. Narcisa Sumayo was crying while Mary Ann Galedo was lying in bed, quiet. The two (2) maids were told to lie down. Sundri Mohnani asked Narcisa Sumayo why she was crying, but the latter did not respond. The Accused Paulino Deloria told Narcisa Sumayo to stop crying. After two or three minutes, Reynaldo Maniquez closed the zipper of his pants and went out of the bedroom and took the wallet of Mohnani Raj on his way out. Thereupon, the Accused left the room and ransacked the house. The Accused Juan Moreno took the television and Betamax set from the room of the couple while the Accused Reynaldo Maniquez took a Betamax and the wallet of Sundri Mohnani Raj. The three Accused forthwith carted from the house the belongings and things they took from the house. They waited for the jeepney to arrive. After a while, the jeepney parked nearby came along. The three Accused thereupon loaded their loot inside the jeepney. Juan Moreno rode in the jeepney while the Accused Reynaldo Maniquez walked home. After the Accused left the residence of the couple, Sundri Mohnani locked their door while Mohnani Raj shouted "Nakaw, nakaw". When the couple went out of their room, they saw their door to the house opened and the iron bars on the window were destroyed. The couple called up the police who later responded and arrived in their house. There were also about twenty or so people who offered succor to the couple. The police officers were told of the circumstances of the robbery-rape perpetrated by the Accused. The couple were able to recover, from across the street from their house, some of their belongings stolen by the Accused, namely, one (1) rota air, one (1) Sony television, head phone, four (4) Betamax tapes, one (1) pair Bally shoes and one (1) pair of rubber shoes. One bag of assorted slippers was found near the gate of their house. Mohnani Raj, his brother-in-law and his son later proceeded to the police station at about 5:45 o'clock that morning to make a formal report of the robbery. The police investigators were furnished with a list of the belongings stolen by the Accused. Forthwith, Pat. Rodolfo Soriano, of the Theft & Robbery Unit of the Crimes Against Property Section of the Western Police District prepared and signed, on May 31, 1985, an Alarm Report, based on the investigation of the police officers wherein is listed the properties stolen by the Accused, and the values thereof, thus: xxx xxx xxx It is alleged in said Report that after the accused ransacked the house of the couple and took their appliances and belongings, the two maids were dragged to the sala and bedroom and were sexually abused, and that the two (2) maids will be furnished with the request for a medico legal examination of said maids ( Exhibit "J-1" ). xxx xxx xxx

Further investigation of the case was turned over to Pat. Cecilio Banzagales, Jr. the next day, June 1, 1985. On June 12, 1985, the police investigators received information that the Accused Juan Moreno could be found at Union Street, Paco, Manila. The police thereupon arrested the Accused Juan Moreno. At 12:00 noon of the same day, the Accused Reynaldo Maniquez was apprehended by the police officers. The said Accused informed the police officers of the whereabouts of the Accused Paulino Deloria at Taguig, Metro Manila. The latter Accused was arrested at about 3:00 o'clock that day in said place. 4 On June 14, 1985, at 8:30 o'clock in the afternoon, Mary Ann Galedo and Narcisa Sumayo had themselves examined by Dr. Marcial Ceido of the Medico Legal Section of the Western Police District. On his physical examination of Mary Ann Galedo, the doctor made the following findings: 1. Breasts are fairly developed, conical in shape, pendulous and soft and with dark brown prominent nipples and arcelae; 2. Abdomen is flat, soft and with striae of pregnancy; 3. Multiple old healed lacerations at 3, 6 and 9 o'clock positions extending to the base, while hymen as a whole is thick; 4. Introitus vagina admits two (2) examining fingers with moderate resistance; 5. Vaginal wall is lax and with flattering of rugosities; and 6. Last menstrual period June 11, 1985 for 4 days. OPINION: The above findings is consistent with a woman who has already given birth. Exhibit "M". which findings are "consistent with a woman who has already given birth ( Exhibit "M" ). On his examination of Narcisa Sumayo, the doctor made the following findings: 1. Breasts are fully developed, firm, hemispherical in shape and with small brownish nipples and areolae; 2. Abdomen is flat, firm and without striae of pregnancy;

the police investigators, left for their respective provinces and that their whereabouts were unknown to the Prosecution, nevertheless, there is sufficient, ample and convincing circumstantial evidence in the record proving the guilt of the Accused beyond peradventure of doubt for the crime of rape. The testimony of Sundri Mohnani is vital. Thus, she positively and spontaneously testified that he saw the Accused Reynaldo Maniquez bring Mary Ann Galedo from her room to the bathroom. The two of them, the Accused Reynaldo Maniquez and Mary Ann Galedo staying inside the bathroom for about five (5) minutes. After the lapse of said time, Mary Ann Galedo and the Accused Reynaldo Maniquez went out of the bathroom. Mary Ann Galedo proceeded to the bathroom of the couple. Sundri Mohnani saw the zipper to the pants of the Accused Reynaldo Maniquez still open. It was only after two (2) minutes that the Accused Reynaldo Maniquez bothered to close the zipper of his pants. The Accused Paulino Deloria and Narcisa Sumayo likewise stayed in the sala of the house for about said period of time of five (5) minutes after said Accused brought her from her room. When Narcisa Sumayo returned to the bedroom of the couple, she was crying profusely, most possibly because of the emotional shock and traumatic experience she went through in the sala. Mary Ann Galedo, on the other hand, sat on the bed quiet. Because of her persistent cries, Narcisa Sumayo had to be ordered by the Accused Paulino Deloria to stop crying. While it may be true that when Sundri Mohnani asked Narcisa Sumayo why she was crying, the latter did not respond, and that Mary Ann Galedo was lying in bed, quiet, however, the failure of Narcisa Sumayo to respond and the silence of Mary Ann Galedo is understandable. It is to be noted that the Accused Reynaldo Maniquez and Paulino Deloria were still inside the bedroom standing guard and holding their weapons. The two Accused had threatened the two maids that they would be killed. There was thus the ever-present possibility that if the two maids talked about what happened to them, the two Accused might kill them. When the police investigators responded to the calls for succor from the couple and proceeded to the house of the latter immediately after they received said calls that early morning, the police officers were forthwith informed of the sexual abuse the two maids suffered at the hands of the two Accused and this is reflected in the Alarm Report prepared by Pat. Rodolfo C. Soriano Exhibit "J-1", on May 31, 1985, . . . : xxx xxx xxx

3. Hymen is relatively thick, circular in shape and intact; 4. Introitus vagina admits one (1) examining finger with moderate resistance and would not admit the tip of two (2) examining fingers; 5. Vaginal wall is firm and with prominent rugosities; and 6. Last menstrual period May 25, 1985 for 4 days. OPINION: The above findings is consistent with a woman who is a virgin. Exhibit "M" which findings are consistent with a woman who is a virgin ( Exhibit "M" ). 5 The trial court in convicting appellant and accused Deloria of the crime of rape stated as follows: . . . While concededly, there is no direct evidence to prove the crime of rape considering that Mary Ann Galedo and Narcisa Sumayo, after they executed their respective statements before The testimony of Sundri Mohnani was partially corroborated by no less than the Accused Reynaldo Maniquez himself when he affirmed and confirmed on the witness stand the allegation of Sundri Mohnani that the Accused brought Mary Ann Galedo to the bathroom and stayed with her inside the bathroom, although the Accused averred that they did so only for less than two (2) minutes. 6 Although Mary Ann Galedo and Narcisa Sumayo were not presented by the Prosecution as its witnesses, however, when the Prosecution offered the aforementioned written statements of the two (2) maids, the counsel of the accused did not object to the admission of said evidence: xxx xxx xxx Consequently, the Accused thereby waived their right to crossexamine the said affiants and such statements are admissible in evidence and the Accused became bound to any favorable or unfavorable effects resulting from said evidence: xxx xxx xxx

Moreover, the contents of the Alarm Report, Exhibit (sic) "J" and "J-1" anent the rapes of the two maids, prepared by the police in the performance of his duties as such police officer and investigator are prima facie of the facts contained therein: Sec. 38.Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty especially enjoined by law, are prima facie evidence of the facts therein stated. Section 38, Rule 130, Rules of Court Considered from another angle, the Alarm Report, Exhibit "J" was prepared on the very day when the two maids were raped. The informations about the rapes of the maids were relayed to the police officers shortly after the rapes were committed and the same reported to the police investigators. Patently, therefore, the declarations of the two maids who forthwith informed the police officers of the rapes are admissible in evidence as part of the " res gestae " and as an exception to the hearsay rule: 7 In effect, there are two issues raised in this appeal: (1) Whether the affidavit executed by Mary Ann Galedo narrating the circumstances of her rape was properly considered as evidence without her testimony in open court, and (2) Whether, without such affidavit, there was sufficient circumstantial evidence to prove beyond a reasonable doubt that the alleged rape was committed by the accused-appellant, Reynaldo Maniquez. Counsel for appellant claims that in the absence of Galedo's testimony in court, her affidavit is hearsay evidence and was thus inadmissible for the purpose of proving the allegation of rape. Admittedly, Galedo's affidavit would be hearsay evidence if she did not testify as to its contents at the trial. The accused was not given the opportunity to face and cross-examine her on her accusations, a right guaranteed to him by the Constitution. However, there are exceptions to the rule on inadmissibility of hearsay evidence, and one of these is when it is part of the res gestae . Section 42 of Rule 130, Rules of Court, provides: Sec. 42. Part of the res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as a part of the res gestae . . . . This exception is based on the belief that such statements are trustworthy because made instinctively, "while the declarant's mental powers for deliberation are controlled and stilled by the shocking influence of a startling occurrence, so that all his utterances at the time are the reflex products of immediate sensual impressions, unaided by retrospective mental action". 8 Said natural and spontaneous utterances are perceived to be more convincing than the testimony of the same person on the witness stand. 9 Immediately after the three accused left the house where the crime was committed, and the threatening presence of the accused was gone, both Mary Ann Galedo and Narcisa Sumayo told their employers, the Mohnani spouses, that they were raped. The latter later testified in court as to these statements. These were thus part of the res gestae since they were spontaneously made after their harrowing experience, as soon as the victims had the opportunity to make them without fear for or threat to their lives. More important even is the straightforward and clear testimony of Sundri Mohnani, wife of Raj Mohnani, their employer. She testified in court that she saw appellant enter their bathroom with Galedo. She saw him close the door and later come out after about five minutes, with the zipper of his pants still

unzipped. She saw him zip it up some minutes later. This testimony was partly corroborated by appellant himself who admitted on the witness stand that he went inside the bathroom with Galedo, but denied having raped her. Aside from the testimony of the victim herself, it is not often that direct evidence of rape is available. The act of rape itself is rarely witnessed by a third party. More often than not, only circumstantial evidence can be given. And such evidence can be the basis of conviction, provided certain requisites are present. Section 4 of Rule 133, Rules of Court, provides: Sec. 4. Circumstantial evidence, when sufficient . Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. Although the medical examination of Galedo was inconclusive as to whether she was raped, there are several other circumstances tending to prove that she was, namely: the act of appellant in taking her to the bathroom, closing the door and leaving it only after about five minutes; the fact that his fly was open when he left the bathroom; and the spontaneous statement of Galedo to her employers that she was raped. These facts were all part of the testimonies of witnesses who were given credence by the trial court and must thus be considered as proven. We find no reason to question the latter's judgment as to the truth of these testimonies. Finally, taking all these facts together, We are convinced beyond a reasonable doubt that appellant is guilty of having raped Mary Ann Galedo. With respect to Paulino Deloria who was also found guilty by the trial court of the crime of Robbery with rape against Narcisa Sumayo, the circumstantial evidence presented against him consists of Sumayo's statement to Raj Mohnani that Deloria raped her, and the testimony of Sundri Mohnani to the effect that Deloria took Sumayo to the sala . Although Sundri did not see what happened in the sala as it was out of everybody's sight, she stated that when Deloria and Sumayo came back after about five minutes, Sumayo was crying profusely. Raj Mohnani also testified that Sumayo was crying for some time and could not stop until she was threatened by Deloria. It is true that the medical examination of Sumayo showed that her hymen was intact. However, this fact alone does not necessarily signify that Sumayo was still a virgin, and does not preclude the fact that she may have had sexual intercourse. A well-known authority on Legal Medicine has this to say on the subject: Although unruptured hymen is commonly mentioned as a distinguishing feature of virginity, it is not always a sure indication of preservation of virginity. A woman might have had previous sexual intercourse and yet the hymen remains unruptured, while others might have experienced sexual relations, but with laceration of the hymen. 10 This Court has previously held that an intact hymen does not preclude rape. The ruling of the court below as regard Pastores must be affirmed. It must be remembered that the fact that a woman's hymen has no sign of laceration does not preclude a finding of rape. For the rupture of the hymen or laceration of any part of the woman's genitalia is not indispensable to a conviction for rape; it is enough that there is proof of entrance of the male organ within the labia of the pudendum. 11 Thus, despite the fact that the medical examination of Sumayo showed that the hymen was still intact, it is not inconsistent with a finding that Deloria raped her. Why did he bring her to a place where no one could see what he intended to do? Why did

Sumayo cry so violently that she could not stop until her tormentor Deloria threatened her and ordered her to stop crying? Why did she tell her employer as soon as the three accused left, that she was raped? We are convinced that there is only one answer to these queries: because she was indeed violated by Deloria. With respect to the charge of robbery, appellant does not question his conviction by the lower court. The records show strong and ample evidence more than sufficient to support the conviction of all three accused of the crime of robbery. They all conspired to rob the victim's house; they cut the iron grills of the window for the purpose of gaining entry into the house; Moreno was armed with a .38 paltik gun and appellant with a pair of scissors; they hogtied and intimidated Raj and Sundri Mohnani; and they carted away in a waiting jeep everything they could get from the Mohnani household from big appliances like 21" TV set, to several kinds of watches and jewelry, to shoes and slippers. Appellant, who was the only one of the three accused who testified in court, practically admitted all these facts, although he tried to minimize his share of the loot. Therefore, accused Juan Moreno, who took no part in the rape, is guilty of robbery only under Article 294, No. 5 of the Revised Penal Code but as to appellant Reynaldo Maniquez, who is herein found to have raped Mary Ann Galedo, he should be guilty of the special complex crime of robbery with rape, under Article 294, No. 2 of the Revised Penal Code, as correctly found by the lower court. However, the trial court in fixing the penalty imposed on the accused failed to take into consideration the aggravating circumstances of dwelling, nocturnity and the use of a motor vehicle. The aggravating circumstance of dwelling is considered because the crime was committed in the place of abode of the victims. It is obvious that the accused used the cover of the night to facilitate the commission of the crime, and intentionally contracted for and used a motor vehicle to insure the success of their criminal plot. But since it was only accused Reynaldo Maniquez who appealed the lower court's decisions, the corresponding increase in the penalty brought about by the appreciation of the mentioned aggravating circumstances will not affect the sentences imposed upon the two other accused Deloria and Moreno who did not appeal. In view of the foregoing, the judgment of the trial court finding the accused-appellant Reynaldo Maniquez guilty of the crime of robbery with rape, and sentencing him to suffer the penalty ofRECLUSION PERPETUA with all the accessory penalties of the law, is hereby AFFIRMED. We furthermore order the accused-appellant Reynaldo Maniquez to pay Mary Ann Galedo, the sum of P30,000.00 by way of damages without subsidiary imprisonment in case of insolvency. SO ORDERED. Republic of the Philippines G.R. No. L-28547 February 22, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA, accused. ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES, defendants-appellants. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-appellee.Sixto P. Dimaisip for defendants-appellants.

AQUINO, J.: This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision of the Court of First Instance of Iloilo, which convicted them of robbery with homicide, sentenced each of them to reclusion perpetua and ordered them to pay solidarily the sum of six thousand pesos to the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value of fighting cocks (Criminal Case No. 11082). The evidence for the prosecution shows that at around eleven o'clock in the evening of January 9, 1966, Gorriceta, who had just come from Fort San Pedro in Iloilo City, was driving a Ford pickup truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde Building on J. M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed Gorriceta who stopped the truck. Jaranilla requested to bring them to Mandurriao, a district in another part of the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his way home. Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had to get something from his uncle's place. So, Jaranilla, Brillantes and Suyo boarded the pickup truck which Gorriceta drove to Mandurriao. Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy meters from the provincial hospital. Jaranilla, Suyo and Brillantes alighted from the vehicle. Jaranilla instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After an interval of about ten to twenty minutes, they reappeared. Each of them was carrying two fighting cocks. They ran to the truck. Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove the truck to Jaro (another district of the city) on the same route that they had taken in going to Mandurriao. It is important to note the positions of Gorriceta and his three companions on the front seat of the track. Gorriceta the driver, was on the extreme left. Next to him on his right was Suyo. Next to Suyo was Brillantes. On the extreme right was Jaranilla. While the truck was traversing the detour road near the Mandurriao airport, then under construction, Gorriceta saw in the middle of the road Patrolmen Ramonito Jabatan and Benjamin Castro running towards them. Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning shot and was signalling with his flashlight that the truck should stop. Gorriceta stopped the truck near the policeman. Jabatan approached the right side of the truck near Jaranilla and ordered all the occupants of the truck to go down. They did not heed the injunction of the policeman. Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot Patrolman Jabatan. The shooting frightened Gorriceta. He immediately started the motor of the truck and drove straight home to La Paz, another district of the city. Jaranilla kept on firing towards Jabatan. Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck inside the garage. Jaranilla warned Gorriceta not to tell anybody about the incident. Gorriceta went up to his room. After a while, he heard policemen shouting his name and asking him to come down. Instead of doing so, he hid in the ceiling. It was only at about eight o'clock in the morning of the following day that he decided to come down. His uncle had counselled him to surrender to the police. The policemen took Gorriceta to their headquarters. He recounted the incident to a police investigator.

Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft Street in Mandurriao, testified that before midnight of January 9, 1966, he conducted a friend in his car to the housing project in the vicinity of the provincial hospital at Mandurriao. As he neared his residence, he saw three men emerging from the canal on Taft Street in front of Baylon's house. He noticed a red Ford pickup truck parked about fifty yards from the place where he saw the three men. Shortly thereafter, he espied the three men carrying roosters. He immediately repaired to the police station at Mandurriao. He reported to Patrolmen Jabatan and Castro what he had just witnessed. The two policemen requested him to take them in his car to the place where he saw the three suspicious-looking men. Upon arrival thereat, the men and the truck were not there anymore. Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour road leading to the airport, the policemen left the car and crossed the runway which was a shortcut. Their objective was to intercept the truck. Trespeces turned his car around in order to return to Mandurriao. At that moment he heard gunshots. He stopped and again turned his car in the direction where shots had emanated. A few moments later, Patrolman Castro came into view. He was running. He asked Trespeces for help because Jabatan, his comrade, was wounded. Patrolman Castro and Trespeces lifted Jabatan into the car and brought him to the hospital. Trespeces learned later that Jabatan was dead. Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department, conducted an autopsy on the remains of Patrolman Jabatan. He found: (1) Contusion on left eyebrow. (2) Bullet wound one centimeter in diameter, penetrating left anterior axilla, directed diagonally downward to the right, perforating the left upper lobe of the lungs through and through, bitting the left pulmonary artery and was recovered at the right thoracic cavity; both thoracic cavity was full of blood. Cause of death : Shock, hemorrhage, secondary to bullet wound. Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the morning of January 10, 1966. He discovered that the door of one of his cock pens or chicken coops (Exhs. A and A-1) was broken. The feeding vessels were scattered on the ground. Upon investigation he found that six of his fighting cocks were missing. Each coop contained six cocks. The coop was made of bamboo and wood with nipa roofing. Each coop had a door which was locked by means of nails. The coops were located at the side of his house, about two meters therefrom. Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives came to his house together with the police photographer who took pictures of the chicken coops. The six roosters were valued at one hundred pesos each. Two days later, he was summoned to the police station at Mandurriao to identify a rooster which was recovered somewhere at the airport. He readily identified it as one of the six roosters which was stolen from his chicken coop (Exh. B). Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the aggravating circumstances of use of a motor vehicle, nocturnity, band, contempt of or with insult to the public authorities and recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was dismissed as to him. On February 2, 1967, after the prosecution had rested its case and before the defense had commenced the presentation of its evidence, Jaranilla escaped from the provincial jail. The record does not show that he has been apprehended.

The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October 19, 1967 when it was read to them in court. They signed at the bottom of the last page of the decision. There was no promulgation of the judgment as to Jaranilla , who, as already stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court). However, the notice of appeal filed by defendants' counsel de oficio erroneously included Jaranilla. Inasmuch as the judgment has not been promulgated as to Jaranilla, he could not have appealed . His appeal through counsel cannot be entertained. Only the appeals of defendants Suyo and Brillantes will be considered. In convicting Suyo, Jaranilla and Brillantes of robo con homicidio , the trial court assumed that the taking of the six fighting cocks was robbery and that Patrolman Jabatan was killed "by reason or on the occasion of the robbery" within the purview of article 294 of the Revised Penal Code. In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was the one who shot the policeman and that Jaranilla was driving the Ford truck because Gorriceta was allegedly drunk. Through their counsel de oficio , they further contend that the taking of roosters was theft and, alternatively, that, if it was robbery, the crime could not be robbery with homicide because the robbery was already consummated when Jabatan was killed. After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and who shot policeman, this Court finds that the trial court did not err in giving credence to Gorriceta's declaration that he was driving the truck at the time that Jaranilla shot Jabatan. The improbability of appellants' theory is manifest. The truck belonged to Gorriceta's sister. He was responsible for its preservation. He had the obligation to return it to his sister in the same condition when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and when he allegedly invited them for a paseo . There is no indubitable proof that Jaranilla knows how to drive a truck. The theory of the defense may be viewed from another angle. If, according to the appellants, Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was drunk then that circumstance would be inconsistent with their theory that Gorriceta shot Jabatan. Being supposedly intoxicated, Gorriceta would have been dozing when Jabatan signalled the driver to stop the truck and he could not have thought of killing Jabatan in his inebriated state. He would not have been able to shoot accurately at Jabatan. But the fact is that the first shot hit Jabatan. So, the one who shot him must have been a sober person like Jaranilla. Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it was Jaranilla, not Gorriceta, who would have the motive for shooting Jabatan. Consequently, the theory that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be plausible. Was the taking of the roosters robbery or theft? There is no evidence that in taking the six roosters from their coop or cages in the yard of Baylon's house violence against or intimidation of persons was employed. Hence, article 294 of the Revised Penal Code cannot be invoked. Neither could such taking fall under article 299 of the Revised Penal Code which penalizes robbery in an inhabited house ( casa habitada ), public building or edifice devoted to worship. The coop was not inside Baylon's house. Nor was it a dependency thereof within the meaning of article 301 of the Revised Penal Code.

Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether the taking of the six roosters is covered by article 302 of the Revised Penal Code which reads: ART. 302. Robbery in an uninhabited place or in private building . Any robbery committed in an uninhabited place or in a building other than those mentioned in the first paragraph of article 299, if the value of the property exceeds 250 pesos, shall be punished by prision correccional in its medium and maximum periods provided that any of the following circumstances is present: 1. If the entrance has been effected through any opening not intended for entrance or egress. 2. If any wall, roof, floor or outside door or window has been broken. 3. If the entrance has been effected through the use of false keys, picklocks or other similar tools. 4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has been broken. 5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed, even if the same be broken open elsewhere. xxx xxx xxx In this connection, it is relevant to note that there is an inaccuracy in the English translation of article 302. The controlling Spanish original reads: ART. 302. Robo en lugar no habitado o edificio particular .El robo cometido en un lugar no habitado o en un edificio que no sea de los comprendidos en el parrafo primero del articulo 299, ... . (Tomo 26, Leyes Publicas 479). The term "lugar no habitado" is erroneously translated. as "uninhabited place", a term which may be confounded with the expression "uninhabited place" in articles 295 and 300 of the Revised Penal Code, which is the translation of despoblado and which is different from the term lugar no habitado in article 302. The term lugar no habitado is the antonym of casa habitada(inhabited house) in article 299. One essential requisite of robbery with force upon things under Articles 299 and 302 is that the malefactor should enter the building or dependency, where the object to be taken is found. Articles 299 and 302 clearly contemplate that the malefactor should enter the building ( casa habitada o lugar no habitado o edificio ). If the culprit did not enter the building, there would be no robbery with force upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688). Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue, Manila and removed forty watches therefrom, the crime was theft and not robbery because he did not enter the building. The show-window was outside the store. (People vs. Adorno, CA 40 O. G. 567, per Montemayor, J ., who later became a member of this Court). * In the instant case, the chicken coop where the six roosters were taken cannot be considered a building within the meaning of article 302. Not being a building, it cannot be said that the accused entered the same in order to commit the robbery by means of any of the five circumstances enumerated in article 302. The term "building" in article 302, formerly 512 of the old Penal Code, was construed as embracing any structure not mentioned in article 299 (meaning not an "inhabited house or public building or edifice devoted to worship" or any dependency

thereof) used for storage and safekeeping of personal property. As thus construed, a freight car used for the shipment of sugar was considered a private building. The unnailing of a strip of cloth nailed over the door, the customary manner of sealing a freight car, was held to constitute breaking by force within the meaning of article 512, now article 302. (U.S. vs. Magsino, 2 Phil. 710). The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that a railroad employee who, by force, opens a sealed or locked receptacle deposited in a freight car, does not commit robbery. He is guilty of theft because a railroad car is neither a house nor a building within the meaning of article 302 which corresponds to article 525 of the 1870 Spanish Penal Code. Article 302 refers to houses or buildings which, while not actually inhabited, are habitable. Thus, a pig sty is not a building within the meaning of article 302. The stealing of hogs from a pig sty is theft and not robbery, although the culprit breaks into it. Article 302 refers to habitable buildings. (Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal 636-7, 642, which in turn cites the decisions of the Spanish Supreme Court dated March 2, 1886 and April 25, 1887). ** As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the dialect as tangkal or kulungan , is about five yards long, one yard wide and one yard high. It has wooden stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of average height like Baylon. It is divided into six compartments or cages. A compartment has an area of less than one cubic yard. A person cannot be accommodated inside the cage or compartment. It was not intended that a person should go inside that compartment. The taking was effected by forcibly opening the cage and putting the hands inside it to get the roosters. Therefore, the taking of the six roosters from their coop should be characterized as theft and not robbery. The assumption is that the accused were animated by single criminal impulse. The conduct of the accused reveals that they conspired to steal the roosters. The taking is punishable as a single offense of theft. Thus, it was held that the taking of two roosters in the same place and on the same occasion cannot give rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing decision of Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320; People vs. Villanueva, 49 O.G. 5448, L-10239, August 7, 1953). Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the commission of the theft. The accused intentionally sought the cover of night and used a motor vehicle so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People vs. Gardon, 104 Phil. 372). Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of recidivism which was alleged in the information. They admitted their previous convictions for theft (130, 132 tsn; Exhs. I and J; Art. 14[9], Revised Penal Code). The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its minimum and medium periods (Art. 309[3], Revised Penal Code). That penalty should be imposed in its maximum period because only aggravating circumstances are present (Art. 64[3], Revised Penal Code). Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act No. 4103). With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for the prosecution points to Jaranilla as the malefactor who shot that unfortunate peace

officer. The killing was homicide because it was made on the spur of the moment. The treacherous mode of attack was not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs. Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771). The twenty-four year old Jabatan was an agent of authority on night duty at the time of the shooting. He was wearing his uniform. The killing should be characterized as a direct assault (atentado ) upon an agent of authority (Art. 148, Revised Penal Code) complexed with homicide. The two offenses resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People vs. Lojo, Jr., 52 Phil. 390). The evidence for the prosecution does not prove any conspiracy on the part of appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They conspired to steal the fighting cocks. The conspiracy is shown by the manner in which they perpetrated the theft. They went to the scene of the crime together. They left the yard of Baylon's residence, each carrying two roosters. They all boarded the getaway truck driven by Gorriceta. The theft was consummated when the culprits were able to take possession of the roosters. It is not an indispenable element of theft that the thief carry, more or less far away, the thing taken by him from its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil. 754). It is not reasonable to assume that the killing of any peace officer, who would forestall the theft or frustrate appellants' desire to enjoy the fruits of the crime, was part of their plan. There is no evidence to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance that they were with Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that Suyo did not do anything when Jabatan approached the right side of the truck and came in close proximity to Jaranilla who was on the extreme right. Brillantes pulled his revolver which he did not fire (47, 53-55 tsn). Mere presence at the scene of the crime does not necessarily make a person a co-principal thereof. Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the witness stand to refute the testimony of Gorriceta, Jaranilla escaped from jail. That circumstance is an admission of guilt. The instant case is different from People vs. Mabassa , 65 Phil. 568 where the victim was killed on the occasion when the accused took his chickens under the house. It is distinguishable from the People vs. Gardon , 104 Phil. 372 and People vs. Salamudin No. 1 , 52 Phil. 670 (both cited by the Solicitor General) where the robbery was clearly proven and the homicide was perpetrated on the occasion of the robbery. As already noted, theft, not robbery, was committed in this case. The situation in this case bears some analogy to that found in the People vs. Basisten , 47 Phil. 493 where the homicide committed by a member of the band was not a part of the common plan to commit robbery. Hence, only the person who perpetrated the killing was liable for robbery with homicide. The others were convicted of robbery only. There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes in the killing of Jabatan by Jaranilla. As already stated, no robbery with homicide was committed. Therefore, it cannot be concluded that those two appellants have any responsibility for Jabatan's death. Their complicity in the homicide committed by Jaranilla has not been established. WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco Brillantes of robbery with homicide is reversed. They are acquitted of homicide on the ground of reasonable doubt.

As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each sentenced to an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum and (b) ordered to indemnify solidarily the complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each appellant should pay one-third of the costs. As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of authority, trial court should render a new judgment consistent with this opinion (See Sec. 19, Art. IV, Constitution). So ordered. G.R. No. 86163 April 26, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendantappellant. The Solicitor General for plaintiff-appellee.Resurreccion S. Salvilla for defendant-appellant. MELENCIO-HERRERA, J.: Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28, Iloilo City, * dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable doubt of the crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" and sentencing them to suffer the penalty of reclusion perpetua The Information filed against them reads: The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated and places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction with Article 267 of the Revised Penal Code), committed as follows: That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, conspiring and confederating among themselves, working together and helping one another, armed with guns and handgrenade and with the use of violence or intimidation employed on the person of Severino Choco, Mary Choco, Mimie Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take and carry away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and assorted jewelries, all valued at P50,000.00; that on the occasion and by reason of said robbery, Mary Choco suffered serious physical injuries under paragraph 2 of Article 263, Bienvenido Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also suffered physical injuries; that the said accused also illegally detained, at the compound of the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor of said Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age, and Rodita Hablero, who is a salesgirl at said Company; that likewise on the occasion of the robbery, the accused also asked and were given a ransom money of

P50,000.00; that the said crime was attended by aggravating circumstances of band, and illegal possession of firearms and explosives; that the amount of P20,000.00, the ransom money of P50,000.00, two (2) Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and one (1) live grenade were recovered from the accused; to the damage and prejudice of the New Iloilo Lumber Company in the amount of P120,000.00. The evidence for the prosecution may be re-stated as follows: On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about noon time. The plan was hatched about two days before. The accused were armed with homemade guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an employee thereat who was on her way out for her meal break and announced to her that it was a hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of age, and told the former that all they needed was money. Hearing this, Severino told his daughter, Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense) and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the premises as they already had the money but they paid no heed. Instead, accused Simplicio Canasares took the wallet and wristwatch of Severino after which the latter, his two daughters, and Rodita, were herded to the office and kept there as hostages. At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so he and the other hostages could be released. Severino answered that he could not do so because it was a Saturday and the banks were closed. In the meantime, police and military authorities had surrounded the premises of the lumber yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the accused using a loud speaker and appealed to them to surrender with the assurance that no harm would befall them as he would accompany them personally to the police station. The accused refused to surrender or to release the hostages. Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead, explaining the difficulty of raising more as it was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be accompanied by Mary Choco in going out of the office. When they were out of the door, one of the accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita was later set free but Mary was herded back to the office. Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the accused to surrender peacefully but they refused. UItimatums were given but the accused did not budge. Finally, the police and military authorities decided to launch an offensive and assault the place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so that her right leg had to be amputated. The medical certificate described her condition as "in a state of hemorrhagic shock when she was brought in to the hospital and had to undergo several major operations during the course of her confinement from April 13, 1986 to May 30, 1986."

For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-accused entered the lumber yard and demanded money from the owner Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and Rodita inside the office. He maintained, however, that he stopped his co-accused from getting the wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were never touched by them. He claimed further that they had never fired on the military because they intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not prevent her. Appellant also admitted the appeals directed to them to surrender but that they gave themselves up only much later. After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused "to suffer the penalty of reclusion perpetua , with the accessory penalties provided by law and to pay the costs." Appellant Salvilla's present appeal is predicated on the following Assignments of Error: 1. The lower court erred in holding that the crime charged was consummated and in not holding that the same was merely attempted. 2. The lower court erred in not appreciating the mitigating circumstance of voluntary surrender." Upon the facts and the evidence, we affirm. The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an attempt requires asportation or carrying away, in addition to the taking, In other words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or asportation And without asportation the crime committed is only attempted" (Memorandum for Appellant Salvilla, Records, p. 317). There is no question that in robbery, it is required that there be a taking of personal property belonging to another. This is known as the element of asportation the essence of which is the taking of a thing out of the possession of the owner without his privity and consent and without the animus revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking, there can be no robbery. Unlawful taking of personal property of another is an essential part of the crime of robbery. Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because neither he nor his three coaccused touched the P5,000.00 given by Severino nor the latter's wallet or watch during the entire incident; proof of which is that none of those items were recovered from their persons. Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee, testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch were within the dominion and control of the Appellant and his coaccused and completed the taking.

The State established a "taking" sufficient to support a conviction of robbery even though the perpetrators were interrupted by police and so did not pick up the money offered by the victim , where the defendant and an accomplice, armed with a knife and a club respectively, had demanded the money from the female clerk of a convenience store, and the clerk had complied with their instructions and placed money from the register in a paper bag and then placed the bag on the counter in front of the two men; these actions brought the money within the dominion and control of defendant and completed the taking . (Johnson vs. State, 432 So 2d 758). "Severance of the goods from the possession of the owner and absolute control of the property by the taker, even for an instant, constitutes asportation (Adams vs. Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [Emphasis supplied]. It is no defense either that Appellant and his co-accused had no opportunity to dispose of the personalities taken. That fact does not affect the nature of the crime, From the moment the offender gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594). The crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of the lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553). Contrary to Appellant's submission, therefore, a conviction for consummated and not merely attempted Robbery is in order. It is the contention of Appellant that Rodita could not have seen the taking because the place was dark since the doors were closed and there were no windows. It will be recalled, however, that Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to mention the taking in her sworn statement would not militate against her credibility, it being settled that an affidavit is almost always incomplete and inaccurate and does not disclose the complete facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]). The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense has not proven that she was actuated by any improper motive in testifying against the accused. In the last analysis, the basic consideration centers around the credibility of witnesses in respect of which the findings of the Trial Court are entitled to great weight as it was in a superior position to assess the same in the course of the trial ( see People vs. Ornoza G.R. No. L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No.L-38042, 30 June 1987, 151 SCRA 326). Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot be considered in their favor to mitigate their liability. To be mitigating, a surrender must have the following requisites: (a) that the offender had not been actually arrested; (b) that the offender surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141). The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were, indeed, asked to surrender

by the police and military authorities but they refused until only much later when they could no longer do otherwise by force of circumstances when they knew they were completely surrounded and there was no chance of escape. The surrender of the accused was held not to be mitigating as when he gave up only after he was surrounded by the constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People vs. Mationg G.R. No.L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that they intended to surrender, the fact is that they did not despite several opportunities to do so. There is no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]). All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant, Bienvenido Salvilla, established beyond reasonable doubt. Although unassigned as an error, we deem it necessary to turn now to the nature of the linked offenses involved and the penalty imposed by the Trial Court. Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and sentenced to reclusion perpetua . We agree with the Trial Court that a complex crime under Article 48 of the Revised Penal Code has been committed such that the penalty for the more serious offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or " reclusion perpetua to death," is to be imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal Under Article 48, a complex crime arises "when an offense is a necessary means for committing the other." The term "necessary means" does not connote indispensable means for if it did then the offense as a "necessary means" to commit another would be an indispensable element of the latter and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant and his co-accused to facilitate and carry out more effectively their evil design to stage a robbery. The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of robbery." For one, in Astor , there were two (2) separate Informations filed, one for Robbery and another for Serious Illegal Detention. In the present case, only one Information was filed charging the complex offense. For another, in Astor , the robbery had already been consummated and the detention was merely to forestall the capture of the robbers by the police. Not so in this case, where the detention was availed of as a means of insuring the consummation of the robbery. Further, in Astor, the detention was only incidental to the main crime of robbery so that it was held therein: . . . were appellants themselves not trapped by the early arrival of the police at the scene of the crime, they would have not anymore detained the people inside since they have already completed their job. Obviously, appellants were left with no choice but to resort to detention of these people as security, until arrangements for their safe passage were made. This is not the crime of illegal detention punishable under the penal laws but an act of restraint in order to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a robbery case were detained in

the course of robbery, the detention is absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id .). In the case at bar, the detention was only incidental to the main crime of robbery, and although in the course thereof women and children were also held, that threats to kill were made, the act should not be considered as a separate offense. Appellants should only be held guilty of robbery. In contract, the detention in the case at bar was not only incidental to the robbery but was a necessary means to commit the same. After the amount of P20,000.00 was handed to Appellant, the latter and his co-accused still refused to leave. The victims were then taken as hostages and the demand to produce an additional P100,000.00 was made as a prerequisite for their release. The detention was not because the accused were trapped by the police nor were the victims held as security against the latter. The detention was not merely a matter of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an additional amount. The police and other authorities arrived only much later after several hours of detention had already passed. And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the amount of P100,000.00 they demanded could be turned over to them. They even considered P50,000.00, the amount being handed to them, as inadequate. The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where the restraint was for no other purpose than to prevent the victims from reporting the crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in Astor and where the victims were only incidentally detained so that the detention was deemed absorbed in robbery. In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention are present in this case. The victims were illegally deprived of their liberty. Two females (Mary and Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those detained. The continuing detention was also for the purpose of extorting ransom, another listed circumstance in Article 267 (last parag.) not only from the detained persons themselves but even from the authorities who arrived to rescue them. It follows then that as the detention in this case was not merely incidental to the robbery but a necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper. WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs. SO ORDERED. G.R. No. 71765-66 April 29, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANTE ASTOR, RENATO DAET AND HERCULES DEL ROSARIO, accused, RENATO DAET AND HERCULES DEL ROSARIO, accused-appellants. GUTIERREZ, JR., J.: 'This is an appeal from the decision of the Regional Trial Court of Legazpi City, Branch IX, finding the accused-appellants, Renato Daet and Hercules del Rosario guilty beyond reasonable doubt of the crimes of robbery and serious illegal detention and sentencing each of them as follows:

a) In Crim. Case No. 537, for Robbery, to suffer an indeterminate imprisonment of FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor as maximum, and to indemnify CHUA SAN the sum of FIVE THOUSAND, SEVEN HUNDRED PESOS, (P5,700.00), Philippine Currency, as actual damages; and b) In Crim. Case No. 642, for Serious Illegal Detention, to suffer the penalty of reclusion perpetua With costs against the accused in both cases. The .45 caliber automatic pistol, Colt, with SN-228033; two (2) hand grenades with SN-319 and SN-045; the magazine for .45 caliber automatic pistol; and the bullets for .45 caliber and .22 caliber revolver are hereby confiscated and forfeited in favor of the State." The information filed against the appellants alleged: CRIM. CASE NO. 537 That on or about and within the period from August 27 to August 28, 1979, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with intent of gain and by means of violence against or intimidation of persons, did then and there wilfully, unlawfully and feloniously take and carry away P5,700.00 and an additional amount of P10,000.00 from Miki (noodle) factory owned and managed by one CHUA SAN, against the will and consent of the latter, and in the course of the commission of said robbery, said accused, used personal violence upon the immediate member of the family of the said Chua San by pointing guns at them, threatening them with the use of explosives and were hogtied, to the damage and prejudice of said CHUA SAN and the other victims. xxx xxx xxx CRIM. CASE NO. 642 That on or about and within the period from August 27 to August 28, 1979, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another for a common purpose, did then and there wilfully, unlawfully and feloniously and by force, take THOI MUI CHI and TWENTY (20) other persons as hostages while they were in the Miki Factory, whom said accused detained in the salt-room of the said factory owned by said THOI MUI CHI, from August 27 to August 28, 1979 or a period of TWENTY TWO (22) hours, under restraint and against the will of said hostages, and said accused did, during said period of detention, hogtied and threatened by pointing guns at them and refused to release said hostages until the following articles which were demanded by the accused from the military authorities were met, to wit: Cash amount of P50,000.00 Three (3) Caliber. 45 pistols hand-cuffs A get-away car. The lower court found that clear and convincing evidence had been adduced by the prosecution as follows: (T)hat at 7:00 p.m. on August 27, 1979, the herein accused, led by certain Dante Astor, barged inside the Legazpi Miki Factory with pulled handguns and grenades. Upon gaining entry, they closed the door and threatened all the twenty one innocent and unsuspecting people caught inside, some of whom were females and twelve were males. They also hogtied Thoi Mui Chi, the wife of the factory owner, and forcibly ordered her to open the cash register and give them the money. Trembling in fear, and under the watchful eyes of these armed men, she opened the drawer and gave them all its contents of P5,700.00.

Unfortunately for the accused, they failed to act with precision, facility and speed in the perpetration of this daring offense, They over-looked the important element of time. Their failure must only lend credence to the truism that 'crime does not pay.' Before they could leave the premises after the commission of the robbery, the police authorities were already at the scene of the crime. There was no way out for the robbers. All possible exits were blocked. in the face of these circumstances, however, the accused displayed more boldness and daring. What followed next unfolds a human drama reminiscent of that award winning movie "Dog Day Afternoon." The armed men herded and detained all their twenty one victims, including the females and children, first inside the bodega, and then transferred them in a small office where they were packed like sardines and also detained. The armed men threatened to explode the hand grenades and kill all the hostages. Since the accused knew, or have known, that the authorities have already cordoned the place, Astor picked and singled out from the group an elderly woman, who is prosecution witness Francisco Astillero, to look for a walkie talkie. Astillero informed him that she could not stand up because another hostage was lying on her legs. When she managed to stand up, two shots were fired inside the factory. Fearing that she might be hit, Astillero remained lying down. Astor ordered her to stand up. When she stood up, Astor approached her and placed a grenade on her hand. He ordered her to shout to the people outside, that they were afraid because there were guns and hand grenades which the armed men threatened to explode. Thereafter, the girl Rosario Astillero, who is the child of this woman, pleaded with accused Daet and del Rosario who were sitting on the steps of the stairs to let them go out of the factory. This irked Astor who shouted: "All of you are very noisy. I will kill you." The child then pleaded with Astor if it was possible even to release her mother because she might suffer from heart attack. The plea was rejected and Astor insisted that he should be given a walkie talkie which should be placed near the door. Francesca shouted to the people outside to send a walkie talkie, as demanded by the armed men. Finally, a walkie talkie was placed near the door and it was taken by one of the hostages, Chan Hoc Pin, who gave it to Astor. The authorities led by Mayor Gregorio Imperial, Jr., Gen. Racela and Col. Riller, negotiated with the armed robbers for the release of the hostages. The negotiations were carried out through the walkie talkie. The mayor pleaded for the safety of the hostages. As this drama was taking place, food were sent inside the factory for the hostages. The armed men demanded for a getaway vehicle, money, a fi-ee passage, and a guarantee from Mayor Imperial, Jr. of their safety during the escape. Above and beyond the call of duty, Mayor Imperial offered himself to the armed men in exchange for the release of the twenty one hostages. His offer was refused and the armed men demanded that they should be accompanied during their escape by three barangay chairmen and others whom they already knew. After a briefing with the police authorities, Mayor Imperial, Jr. finally acceded to the demands. Through the help and voluntary contributions of the families of the hostages and other civic spirited citizens, he was able to raise P10,000.00 A Toyota Land Cruise was also prepared as the getaway car. The getaway car was placed close to the main door of the factory. Sgt. Ojas of the PC was a to drive the vehicle. The mayor requested the respective barangay chairmen of the places where the accused reside, as well as the mother of del Rosario and the father of Daet, to ride with the accused in the getaway vehicle. Then the much awaited moment leading to the to the final rescue of the hostages came. The barangay chairmen fearlessly but cautiously entered the factory in order to fetch the three armed men and them to the waiting At 5.00 in the afternoon of August 28, 1979, the main door of the which has remained closed since the accused entered the place at 7:00 in the evening of August 27, 1979, finally opened. Moments later, the three accused who were tightly secured and surrounded by the barangay chairmen went out of the factory and boarded the waiting getaway vehicle under the

helpless eyes of the authorities. Amidst the sight of terror, the families of the hostages were on hand, anxiously waiting for a warm embrace with them. After the vehicle sped away towards Manila, Mayor Imperial, Jr. hurriedly entered the factory. Finally he saw the hostages safe and sound. Like the good father of the family, he comforted them and gave food and medical assistance. At long last, after twenty two terrifying hours of captivity, the hostages were rescued and again saw the outside world. Judgment was rendered against appellants Daet and del Rosario only, as Dante Astor escaped from detention after their arraignment and remained at large. The appellants raised the following assignment of errors: I IN NOT GIVING CREDENCE TO THEIR DEFENSE. II IN FINDING THAT THERE ARE TWO SEPARATE CRIMES COMMITTED, AND III IN IMPOSING CAPITAL PENALTY ON THEM. In the first assigned error, the appellants contend that the lower court erred in not lending credence to their version that their participation in the holdup was under compulsion and fear of Astor. We agree with the observations of the lower court which noted the followingxxx xxx xxx ... The Court believes and is fully convinced that the meeting of the accused shangrila was not accidental but prearranged. It was there where they hatched and planned the details for the execution of the crime. Astor was already carrying the bag containing the guns, hand grenades and other paraphernalia to be used in the robbery. If Astor was the lone perpetrator, it is inconceivable why he would arm himself with two guns and two hand grenades, and three masks. The Court cannot also believe that they went to the parking lot only to accompany Astor to take ride in going home and that, when there was no available ride, they accompanied him to the miki factory .. xxx xxx xxx It is significant to note that after Astor had already jumped out of the getaway vehicle in Naga City, Daet and del Rosario were asked by the barangay chairmen why they committed the crime but they just keep silent. If it is true, as the defense alleged, that the herein accused merely acted under compulsion or fear of Astor, they would have readily revealed the truth and would have said so to the barangay chairmen, if not to their father or mother. Their silence is a clear indicia that they knew of and had participated in the commission of the crime. If it were true, as they claimed, that they were only threatened by Astor into joining him in committing the crime, it is strange why they did not go with the group in going back to Legazpi City in order to profess their innocence to the authorities. The explanation that they were afraid of the PC soldiers who were trailing them cannot be given credence for the simple reason that they were or would still be accompanied during the trip back to Legazpi City by their parents and the barangay chairmen, and a PC soldier was the one driving the vehicle. It should be noted that these persons went with them during their escape out of the city in order precisely to ensure their safety. Yet, they decided to be left

alone in Camarines Norte which exposed them more to the harm they were afraid of. They proceeded to Manila and, in the case of del Rosario, he even proceeded to Olongapo City, without giving themselves up to the authorities. The explanation is clearly illogical and unnatural The claim that barangay captain Sevillano advised them to go elsewhere until their surrender to Mayor Imperial shall have been arranged is absurd. Their flight is clear evidence of a guilty conscience (Peo. vs. Realon, 99 SCRA 422). It is likewise significant to state that the accused offered to plead guilty to the crime of robbery (p. 47, t.s.n., June 14, 1983). Conspiracy was therefore properly established by the lower court. Each of the offenders performed with such closeness and coordination as to indicate a common purpose or design. (See People v. Tamba, G.R. No. 71272, January 29, 1987). In the second assigned error, the appellants contend that the lower court erred in finding them guilty of two separate crimes, namely robbery and serious illegal detention. They allege that they should only be convicted for robbery. We agree with the appellants' second assigned error, sustained by the Solicitor General that the trial court erred in penalyzing Daet and del Rosario separately under the two informations. As the Solicitor General stated: Explaining the rationale why appellants further continued to detain people despite the accomplishment of their mission to rob, the narrative of the trial court states thus Unfortunately for the accused, they failed to act with precision, facility and speed in the perpetration of this daring offense. They overlooked the important element of time. Their failure must only lend credence to the truism that "crime does not pay." Before they could leave the premises after the commission of the robbery, the police authorities were already at the scene of the crime. There was no way out for the robbers. All possible exits where blocked. In the face of these circumstances, however, the accused displayed more boldness and daring. What followed next unfolds a human drama reminiscent of that award winning movie Dog Day Afternoon. The armed men herded and detained all their twenty one victims, including the females and children, and then transfered them in a small office where they were packed like sardines and also detained. It is evident from the above finding that were appellants themselves not trapped by the early arrival of the police at the scene of the crime, they would have not anymore detained the people inside sine they have already completed their job. Obviously, appellants were left with no choice but to resort to detention of these people as security, until arrangements for their safe passage were made. This is not the crime of illegal detention punishable under the penal laws, but an act of restraint in order to delay the pursuit of the criminals by peace officers (People vs. Sol, 9 Phil. 265; People vs. Uday, 85 Phil. 498; People vs. Manzanilla, 43 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a robbery case were detained in the course of robbery, the detention is absorbed by the crime of robbery (People vs. Baysa, 92 Phil. 1008, Id). In the case at bar, the detention was only incidental to the main crime of robbery and, although in the course thereof women and children were also held that threats to kill were made, the act should not be considered as a separate offense. Appellants should only be held guilty of robbery. Contrary to the third assigned error, capital punishment was not imposed by the trial court Capital punishment is equivalent to the death penalty which incidentally has been abolished in the

1987 Constitution unless specifically reinstated by law for heinous crimes. The lower court sentenced the appellants in Criminal Case No. 642 for serious illegal detention to reclusion perpetua which is commonly referred to as " life imprisonment." WHEREFORE, the judgment of the court a quo in Criminal Case No. 537 for robbery is AFFIRMED. The judgment in Criminal Case No. 642 for serious illegal detention is REVERSED and SET ASIDE. The accused-appellants are ACQUITTED in the case for serious illegal detention but the judgment of forfeiture is AFFIRMED. SO ORDERED.