EN BANC

[G.R. No. 128114. October 25, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER CANDO Y PAGDANGANAN, ARNEL VARGAS Y MAGTANGOB, AND WILBERTO RAPCING Y BROOLA, accused-appellants.

D E C I S I O N

QUISUMBING, J.:

On automatic review is the decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 95-142748, convicting appellants of the crime of robbery with homicide, sentencing them to death, ordering them solidarily to indemnify the heirs of the victim the amount of P50,000.00, and to return the personal belongings taken from the victim and other offended parties. In a related case, Criminal Case No. 95-142749, appellants were acquitted of the charge of carnapping.

Appellants Cando and Rapcing, aged 40 and 28 respectively, were employed as candlemakers at the Rosarian Candle Factory located in Paco, Manila. Appellant Vargas, aged 20, was employed as a delivery boy. The victim, Luis D. Remoriata, was the caretaker (katiwala) in said factory.

The facts based on the records are as follows:

In the afternoon of May 13, 1995, Vargas, Rapcing and one Nonoy Sayson were having a drinking session at a canteen in front of the factory. At around 9:30 P.M., Cando joined the group. Upon the prompting of Vargas, Cando went to the factory to get his salary. Cando came back angry because he was unable to get his salary from the secretary, nor was he able to get a loan of P100.00 from the caretaker. Apparently, Cando already had previous misunderstandings with the caretaker, so this time, he threatened to kill the caretaker. The group continued their drinking session.[1]

At around 11:00 P.M., Vargas, Rapcing, and Cando, armed with two knives and carrying a shoulder bag, climbed the fence of the factory. They walked on the galvanized iron roof towards the other building. One by one, they slipped through a narrow window at the side of the building. The trio proceeded to the victims room, which was lighted by a fluorescent lamp. Cando picked a piece of lead pipe and told Vargas to pull open the door where the victims mosquito net was attached. When Vargas pulled open the door, the mosquito net snapped and Cando struck the victim on the head with the lead pipe. The victim awakened and Cando demanded money from him. When the victim replied that he had no money, Cando struck him again with the lead pipe. Blood oozed from the victims head. Cando asked the victim if he recognized him. The victim weakly replied Yes, You are Roger (Cando). Thereafter, Cando repeatedly hit him with the lead pipe until he became unconscious. Cando placed the victims radio cassette in his bag. He went upstairs to get more items and the keys of the Cimarron van. Thereafter, the trio went downstairs to where the van was parked. Vargas, the only one who knew how to drive, sat on the drivers seat. Cando and Rapcing opened the gate, then pushed the van outside. Once they were out of hearing range, Vargas gunned the motor and the two clambered into the van. Cando sat on the passenger side while Rapcing sat at the back. Cando prevailed upon the group to proceed to Quiapo to visit his girlfriend, but they could not locate her so they just drove around until daybreak. When they reached Hemady Street in Quezon City, they abandoned the van. The trio boarded a jeep going to Taft Avenue and went their separate ways.[2] It was then already early morning of May 14, 1995.

At around 6:00 A.M., Mrs. Norma Chu, the factory owner, discovered the dead body of Luis Remoriata. The factory van was also missing. A hysterical Mrs. Chu called the Barangay Captain, who in turn reported the incident to the police. Upon investigation, the police found a bakawan firewood stained with blood some ten meters away from the victims body. The police also called a funeral parlor to get the body of the victim.[3]

In the meantime, the van was discovered by Barangay Kagawad Mejia, who called up the telephone number posted at the side of the van. The owner, Mrs. Chu, arrived with three NBI Agents who took pictures of the van and lifted fingerprints from it.[4]

The very next day, May 15, 1995, Mrs. Chu lodged a complaint[5] with the National Bureau of Investigation (NBI). Based on her complaint, the NBI dispatched a team of agents to the crime scene. The NBI recovered a bloodstained steel pipe behind the door of the room. Upon learning from Mrs. Chu that appellants Cando and Vargas had previous skirmishes with the victim, on May 16, 1995, the NBI agents picked up Vargas from the factory and brought him to their office for questioning.[6]

Vargas readily admitted his participation and pinpointed appellants Cando and Rapcing as his co-perpetrators. He likewise executed an extrajudicial admission[7] and waiver of his rights under Articles 124 and 125 of the Revised Penal Code.[8]

Acting on the lead, the NBI agents picked appellant Cando at his house in Libis St., Caloocan City. Appellant Cando invoked his right to remain silent.[9] He executed a waiver of rights under Articles 124 and 125 of the Revised Penal Code.[10]

Thereafter, appellant Rapcing was also arrested at his house in Cristobal St., Looban, Paco, Manila.[11] Rapcing admitted complicity in the crime, and executed an extrajudicial admission[12] corroborating the story of Vargas. He also executed a waiver of his rights under Articles 124 and 125 of the Revised Penal Code.[13]

During custodial investigation, the three were assisted by Atty. Isidro T. Gamutan, a lawyer who happened to be at the NBI because he was following up a case.

On May 17, 1995, appellant Vargas executed a second extrajudicial admission[14] stating that Cando gave him the bag containing the stolen items for safekeeping and that he brought the bag to his sister-in-laws house in Kahilum, San Andres Bukid, Manila. He accompanied the NBI agents to the house and gave them the bag which bore Candos name.[15]

On May 23, 1995, appellants were charged with the crime of Robbery with Homicide under the following Information:[16]

The undersigned accuses ROGER CANDO y PAGDANGANAN, ARNEL VARGAS y MAGTANGOB and WILFREDO RAPCING y BROOLA of the crime of Robbery with Homicide, committed as follows;

That on or about May 13, 1995, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one another, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation, to wit: by hitting one LUIS D. REMORIATA with steel pipe and wood on the head several times and at the same time forcibly taking away from him the following, to wit:

One (1) Brown wallet valued at P 120.00

containing cash money of . 1,000.00

Cash money in the amount of 10,000.00

Three (3) wrist watches, all valued 1,000.00

One (1) Radio casette (STD) ... 1,200.00

Assorted clothing, not less than 500.00

or in the total amount of P13,820.00 belonging to said Luis D. Remoriata and under his personal care, to the damage and prejudice of the said owner in the aforesaid amount of P13,820.00, Philippine Currency; that on the occasion of the said robbery and by reason thereof, the herein accused, in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon the said LUIS D. REMORIATA, and as a result thereof, he sustained physical injuries which were the direct and immediate cause of his death.

Contrary to law.

ALEJANDRO G. BIJASA

Asst. City Prosecutor

On August 29, 1995, upon arraignment, appellants entered their respective pleas of not guilty.[17] Joint trial ensued.

The prosecution presented the following witnesses: (1) Norma C. Chu, the factory owner; (2) NBI Agents Serafin Gil, Mario Garcia, Gregorio Tomagan; (3) NBI Photographer Cecilio Datinguinoo; (4) NBI Fingerprint Examiner Elter Yano; (5) Dr. Manuel Lagonera, medico-legal officer; (6) Atty. Isidro Gamutan, counsel of appellants during custodial investigation; (7) Barangay Kagawad Alejandro Mejia.

Mrs. Norma Chu testified that when she discovered the body of the victim, the quarters was in disarray, and the victims clothes and radio were missing. Later, her husband and son informed her that their wallets which they placed on top of the TV in the sala upstairs, and two other wristwatches were missing. She also identified the van which was recovered from Hemady St. in Quezon City as the one belonging to the factory.[18]

Serafin Gil testified that he took down the statement of Mrs. Chu and supervised the custodial investigation of appellants.[19] Mario Garcia took down the statements of Vargas and Rapcing.[20] Gregorio Tomagan testified that he was present during the taking of the two statements of appellant Vargas dated May 16 and 17, 1995.[21] Cecilio Datinguinoo testified that he took pictures of the van while the NBI agents were lifting fingerprints from the van.[22] Elter Yano testified that he managed to lift six (6) fingerprints from the cimarron van, tagged as Q-1 to Q-6. He testified that Q-1 which was lifted from the air freshener found in the van was identical to the left index fingerprint of appellant Vargas (Exh. DD). Likewise, Q-2 which was lifted from the victims stereo cassette was identical to the right ring fingerprint of Cando (Exh. EE). The other prints were unidentifiable.[23]

Dr. Manuel Lagonera testified that the cause of death was blunt head injuries and that the victim sustained the following injuries:[24]

1. Triangular lacerated wound, with contussions at the periphery, measuring 3x2.8x2.5 cms, right forehead.

2. Deep lacerated wound, right forehead, above the right eyebrow, measuring 7x1.9 cms.

3. Lacerated wound, right zygomatic region, measuring 4.2x1.5 cms.

4. Deep lacerated wound, left frontal region, measuring 7x2.5cms.

5. Lacerated wound, left fronto-temporal region, measuring 2.5x2 cms.

6. Deep lacerated wound, angle of the mouth, right, measuring 4.5x2 cms.

7. Hematoma, both upper eyelids.

8. Deep lacerated wound, vertex, measuring 9x3 cms.

9. Lacerated wound, left occipital region, measuring 7x3 cms.

10. V-shaped lacerated wound, right external ear, measuring 3x2.5 cms.

11. Abrasion, right anterior shoulder, measuring 4x1.8 cms.

12. Semi-circular contussion, right supra-clavicular region, measuring 3.5x3.2 cms.

INTERNAL FINDINGS:

1. There was extensive sub-aponeurotic hematoma with multiple fractures of the cranial vault. Epidural hematoma over the left parietal lobe of the brain with massive sub-arachnoid hemorrhage.

2. Right anterior and middle cranial fossae were fractured.

3. The stomach was empty.

Atty. Isidro T. Gamutan testified that he happened to be at the NBI when the three accused were scheduled for custodial investigation. The Chief of the Anti-Carnapping Unit requested him to give legal assistance to the three accused. He asked the accused why they were being investigated, and explained to them their rights. When he was satisfied that the accused understood their rights, he assisted them in executing their extrajudicial statements.[25]

Alejandro Mejia, Barangay Kagawad at Barangay Kristong Hari, Quezon City testified that he found the abandoned van with a flat tire. He contacted the owner through the telephone number printed on the side of the van. The owner arrived with three NBI agents who examined the van.[26]

For the defense, appellants testified. Appellant Cando stated that he finished Grade III, cannot read, but can write his name. He denied any participation in the killing, but claimed that Vargas and Rapcing knew about the incident. He said that on May 13, 1995, he reported for work at the factory at 2:00 P.M. until 10:00 P.M. He went home in Libis St. Caloocan City, where he slept until around 11:00 A.M. the following day. He denied joining the drinking session. On May 14, 1995, he reported for work at around 12:00 NN until 2:00 P.M.. He identified as his the bag containing the stolen items. He further identified the contents of the bags, the air freshener which was taken from the van, the two wristwatches belonging to the son and daughter of Mrs. Chu. He admitted that he and the other two appellants offered to pay to the widow of the victim damages for his death.[27]

Appellant Vargas, for his part, admitted participation in the killing, but claimed that he was forced by Cando at knife point to participate. He further claimed that it was only Cando who killed the victim by hitting him with an iron bar. He admitted, however, that he agreed to drive the Cimarron because he wanted to practice driving.[28]

Appellant Rapcing recanted his extrajudicial admission. He denied any knowledge or participation in the killing since he was stone drunk (lasing na lasing). He claimed that he just slept inside a Tamaraw pick-up parked outside the factory. Further, he claimed that the finding of guilt is inconsistent with the fact that he never went into hiding after the alleged incident.[29]

On December 27, 1996, the trial court rendered its decision[30] convicting the three (3) appellants of Robbery with Homicide with the aggravating circumstances of evident premeditation and treachery, and sentencing them to suffer the penalty of death. Appellants were acquitted of the charge of carnapping.

Hence, the present automatic review. In their consolidated brief,[31] appellants raise the lone assignment of error that -

THE TRIAL COURT ERRED IN FINDING THAT THE AGGRAVATING CIRCUMSTANCES OF EVIDENT PREMEDITATION AND TREACHERY ATTENDED THE COMMISSION OF THE CRIME CHARGED.

In praying for the reduction of the sentence from death to reclusion perpetua, appellants contend that the prosecution failed to prove evident premeditation, as there was no time for cool reflection since their minds were hazy with the influence of liquor. Appellants further dispute the existence of treachery since the killing of Remoriata was merely on the spur of the moment.

The Solicitor General, on the other hand, contends that evident premeditation clearly attended the commission of the crime but said aggravating circumstance, being inherent in the crime of robbery with homicide, should not be appreciated separately.[32] Treachery qualified the killing since the victim was sleeping at the time he was attacked. In addition, the generic aggravating circumstances of nighttime and dwelling should be appreciated.

The principal issue for resolution is whether the aggravating circumstances of treachery and evident premeditation attended the commission of the offense? Secondarily, we must also determine whether all the elements of robbery with homicide were proved beyond reasonable doubt.

There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.[33] The conditions which must concur before treachery can be appreciated are: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) that said means of execution be deliberately and consciously adopted.[34] The essence of treachery lies in the adoption of ways that minimize or neutralize any resistance which may be put up by the offended party.[35] The killing of the sleeping victim herein was attended by treachery since he was in no position to flee or defend himself.[36]

The presence of treachery, though, should not result in qualifying the offense to murder, for the correct rule is that when it obtains in the special complex crime of robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance, robbery with homicide being a case of a composite crime with its own definition and special penalty in the Revised Penal Code.[37]

For evident premeditation to exist, the prosecution must prove with clear and convincing evidence the following elements: (1) the time when the offenders decided to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) sufficient lapse of time between the determination and execution to allow them to reflect upon the consequences of their act and allow their conscience to overcome the resolution of their will.[38] Evident premeditation is inherent in crimes against property, but it may be considered in robbery with homicide if there is premeditation to kill besides stealing.[39] The prosecution clearly proved the intention to rob and to disable the victim, but not the intention to kill him. As Vargas testified, the victim was still alive when they left him rolling on the floor.[40] Thus, evident premeditation can not be appreciated where the prosecution failed to establish that the accused killed the victim pursuant to a preconceived plan.[41]

The alternative circumstance of intoxication, however, should be considered as mitigating, it having been sufficiently shown that (1) at the time of the commission of the criminal act, they have taken such quantity of alcoholic drinks as to blur their reason and deprive them of certain degree of control, and (b) that such intoxication is not habitual, or subsequent to the plan to commit the felony. [42]

As to the crime committed, the prosecution amply established the following elements of robbery with homicide: (a) the taking of personal property is perpetrated by means of violence or intimidation against a person, (b) the property taken belongs to another, (c) the taking is characterized by intent to gain or animus lucrandi, and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, in its generic sense, is committed.[43] It matters not that the victim was killed prior to the taking of the personal properties of the victim and the other occupants of the house. What is essential in robbery with homicide is that there be a direct relation, and intimate connection between robbery and the killing, whether the latter be prior or subsequent to the former or whether both crimes be committed at the same time.[44] The rule is well-established that whenever homicide has been committed as a consequence of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide.[45] While Cando was bashing the head of the victim, and placing the personal items in his bag, nary a peep could be heard from Vargas and Rapcing. Their act of simply watching Cando shows their moral assent and complete acquiescence to the commission of the crime.

Appellant Vargas claims that he was threatened at knife point to join appellant Cando in the commission of the crime. He is in effect invoking the exempting circumstance of compulsion of an irresistible force under Article 12, par. 5 of the Revised Penal Code. We have held that the compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense.[46] Vargas had several opportunities to prevent the killing and to escape, but he chose to remain with his co-conspirators, and even willingly drove the get-away vehicle.

As to appellant Rapcing, the fact that he did not go into hiding after the alleged incident does not make him an innocent man. We have long ruled that flight is an indicium of guilt, but non-flight is not necessarily an indicium of innocence.[47]

Under Article 294 of the Revised Penal Code, as amended by Section 9 of R.A. No. 7659, the penalty for robbery with homicide is reclusion perpetua to death. There being one mitigating circumstance of intoxication, and one aggravating circumstance of treachery, the penalty to be imposed is reclusion perpetua.[48] The existence of one aggravating circumstance merits the award of exemplary damages under Art. 2230 of the New Civil Code.

We likewise order that the personal properties which are in custodia legis be returned to the offended parties.

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 95-142748 is hereby MODIFIED as follows: appellants ROGER CANDO Y PAGDANGANAN, ARNEL VARGAS Y MAGTANGOB, and WILBERTO RAPCING Y BROOLA are hereby found guilty of the crime of Robbery with Homicide, and sentenced to suffer the penalty of reclusion perpetua, and ordered solidarily to pay the heirs of the victim P50,000.00 as civil indemnity and P10,000.00 as exemplary damages, and to return to the owners thereof the cash and the vehicle and other effects taken by the appellants, as well as to pay the costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Vitug, J., see separate opinion.

Melo, J., join Justice Vitug in his separate opinion.

Kapunan, J., on leave.

SEPARATE OPINION

VITUG, J.:

It does seem that the prosecution has been able to establish the guilt of accused-appellants on their involvement in the crime charged. But I find myself unable to subscribe to the idea of having treachery taken as a generic aggravating circumstance in the crime of robbery with homicide. While I am not unaware of the past pronouncements which supports this conclusion, I believe it to be high time, however, for the Court to re-examine the doctrine. Robbery with homicide is a special complex crime where homicide is committed by reason or on occasion of robbery. In the same way that alevosia will not result in qualifying the offense to murder, where the original and real intent of the accused is robbery, so, also, must treachery be ignored in aggravating this special crime. Robbery with homicide is an offense against property under Title Ten, Book Two, of the Revised Penal Code, and treachery is an aggravating circumstance obviously applicable only to crimes against persons under Title Eight, Book Two, of the same Code.



[1] TSN, May 2, 1996, pp. 2-3; TSN, June 6, 1996, pp. 3-5, 25.

 

[2] TSN, May 2, 1996, pp. 3-6; TSN, June 6, 1996, pp. 6-24.

 

[3] TSN, September 7, 1995, pp. 49-51.

 

[4] TSN, February 27, 1996, pp. 4-13.

 

[5] Exhibit K, Folder of Exhibits, pp. 13-14.

 

[6] TSN, September 5, 1995, pp. 6-9.

 

[7] Exhibit Y, Folder of Exhibits, pp. 36-40.

 

[8] Exhibit W, Folder of Exhibits, p. 34.

 

[9] TSN, September 7, 1995, p. 17.

 

[10] Exhibit V, Folder of Exhibits, p. 33.

 

[11] TSN, September 7, 1995, p. 17.

 

[12] Exhibit J, Folder of Exhibits, p. 10.

 

[13] Exhibit X, Folder of Exhibits, p. 35.

 

[14] Exhibit B, Folder of Exhibits, pp. 2-3.

 

[15] TSN, September 7, 1995, p. 18.

 

[16] Records, pp. 2-3.

 

[17] Id. at 64.

 

[18] TSN, September 7, 1995, pp. 51-66.

 

[19] Id. at 17.

 

[20] TSN, October 3, 1995, pp. 5-6.

 

[21] TSN, September 21, 1995, pp. 2-8.

 

[22] TSN, September 7, 1995, pp. 42-44.

 

[23] TSN, September 7, 1995, pp. 31-39.

 

[24] Autopsy Report, Exhibit Z, Folder of Exhibits, p. 41.

 

[25] TSN, October 17, 1995, pp. 5-6, 11-14.

 

[26] TSN, February 27, 1996, pp.4-8.

 

[27] TSN, April 11, 1996, pp. 3-22.

 

[28] TSN, June 6, 1996, pp. 2-22.

 

[29] TSN, May 16, 1996, pp. 6-18.

 

[30] Records, pp. 121-141.

 

[31] Rollo, p. 62.

 

[32] Citing U.S. v. Blanco, 10 Phil. 298, 300 (1908); U.S. v. Hermosilla, 31 Phil. 405, 411 (1915).

 

[33] Art. 16, Revised Penal Code.

 

[34] People v. Bautista, 312 SCRA 214 (1999).

 

[35] People v. Academia, Jr., 307 SCRA 229, 234 (1999).

 

[36] People v. Adoviso, 309 SCRA 1, 16 (1999); People v. Quinao, 269 SCRA 495, 511 (1997); People v. De Guia, 280 SCRA 141, 159 (1997).

 

[37] People v. Salvatierra, 257 SCRA 489, 507 (1996); People v. Timple, 237 SCRA 52, 70 (1994).

 

[38] People v. Lopez, 313 SCRA 114, 125 (1999).

 

[39] People v. Guiapar, 129 SCRA 539, 555 (1984).

 

[40] TSN, May 2, 1996, p. 6.

 

[41] People v. Molina, 312 SCRA 130, 136 (1999).

 

[42] Art. 15, last par., Revised Penal Code; People v. Marquita, G.R. Nos. 119958-62, March 1, 2000, p. 12.

 

[43] People v. Paraiso, G.R. No. 127840, November 29, 1999, p. 15.

 

[44] People v. Navales, 266 SCRA 569, 594 (1997).

 

[45] People v. Robles, G.R. No. 101335, June 8, 2000, pp. 12-13.

 

[46] People v. Lising, 285 SCRA 595, 643-644 (1998).

 

[47] People v. Palma, 308 SCRA 466, 483 (1999).

 

[48] Pursuant to Article 63, No. 4 of the Revised Penal Code.