G.R. No. L-48796 June
11, 1981
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DIEGO
OPERO Y COSIPAG et al., accused; DIEGO OPERA Y COSIPAG, Defendant-Appellant.
PER CURIAM:
Automatic review of the death sentence imposed on Diego Opero for robbery with
homicide with which he was charged in the Circuit Criminal Court of
Manila, together with
Reynaldo Lacsinto and Milagros Villegas, who, however, did not appeal
their conviction with much lesser penalty, the last-named, as a mere accessory
after the fact. Another accused, Asteria Avila was acquitted.
In his brief, appellant raised only the question of the
propriety of the imposition of the death penalty on him, with the following
assignments of error:
1. THE LOWER COURT
ERRED IN NOT CONSIDERING ARTICLE 4, PARAGRAPH 1 OF THE REVISED PENAL CODE IN
DETERMINING THE CRIMINAL LIABILITY OF THE ACCUSED.
2. THE TRIAL COURT
ERRED IN NOT CONSIDERING ARTICLE 49, PARAGRAPH 1 OF THE REVISED PENAL CODE IN
IMPOSING THE PENALTY ON THE ACCUSED
For the facts of the case, the narration of which in both
the People's brief and that of appellant does not vary as to the essential
ones, We could very well quote from the Appellee's brief, being the more
comprehensive and complete, the following:
At about 4:00
o'clock in the morning of April 27, 1978, Salvador Oliver, a GSIS security
guard assigned to the House International Hotel at Ongpin Street, Binondo,
Manila, was informed by Demetrio Barcing another security guard, that the
latter picked up a little girl about three years old loitering at the second
floor of the building. Rafael Ordona a janitor of the House International
Hotel, told Oliver that the little girl is residing at Room 314 of the hotel.
Oliver called up Room 314 by telephone and when nobody answered, he and Barcing
brought the little girl to said Room 314 (pp- 6, 7, & 8, t.s.n.,
June 15, 1978). Upon
reaching Room 314, Oliver knocked at the door, and when nobody answered, he
pushed the door open but he smelled foul odor emanating from the room. Oliver
covered his nose with a handkerchief and together with Barcing and the little
girl, they entered the room where they saw prostrate on a bed a dead person
with the face down and both feet tied. Oliver called up the homicide division
of the Manila Police. Patrolman Fajardo who was assigned to investigate
the report of Oliver, together with some funeral parlor men arrived at the
scene, and they saw a
small baby crying and trying to get out of a crib near the bed of the dead
person. (pp. 9, 10 & 11, t.s.n., Id).
The dead body at Room 314 of the House International Hotel
was that of Liew Soon Ping,
Room 314 had been
ransacked and personal belongings thrown all around. The hands and feet
of the dead person were tied and the body was bloated. A towel was tied around the mouth of the victim. Photographs of
the dead person and the condition of the room were taken under Patrolman
Fajardos supervision (pp. 19, 20, 21, 22, 23 & 24, t.s.n., June 15, 1978).
Patrolman Fajardo came to know that the occupants of Room 314
were Dr. Hong, his wife
Liew Soon Ping who is the victim in this case, their three children and two
maids, namely, Mila and Ester (pp. 26 & 27, t.s.n., Id). After
conducting a preliminary inquiry around the vicinity of the incident, Patrolman
Fajardo made an advance report (Exh. "O"; pp. 32, 33 & 34, rec.)
naming therein three suspects, namely, Diego Opero, Milagros Villegas, Asteria
Avila and a fourth unidentified suspect. The names of these suspects were
furnished by neighbors of the victim to Patrolman Fajardo (pp- 28 & 29,
t.s.n., Id.).
After establishing the Identity of the suspects, a follow up
team of Manila Policemen composed of Patrolmen Luis Lim and Servande Malabute
was formed to further investigate the case. A separate police team composed of
Sgt. Yanguiling and several policemen were sent to Leyte and Samar to track
down the suspects (pp. 30 & 31, t.s.n., Id.). "Dr. Hong, the victim's husband who was in Cebu
when the incident in his residence was committed was contacted by the police
and informed about the death of his wife.
Dr.
Hong came back immediately from Cebu and reported to the police. He (Dr. Hong) made an inventory
of the personal effects found missing in his residence. valued at P30,221.00
(pp. 31, 32 & 33, t.s.n Id; Exhs. 'R' and 'R-l').
While the case was under investigation, the homicide
division of the Manila Police, received a radio message (Exh. "T-l",
p. 40, rec.) relayed thru Col. Narciso Cabrera, Chief of the Detective Bureau
of the Manila Police, that Reynaldo Lacsinto one of the suspects could be found
in a school house in Moriones, Tondo, Manila. Another radio message (Exh.
"T", p. 41, rec.) was received by the police that two other suspects
in the case, namely, Diego
Opero and Asteria Avila were picked up by the Samar P.C. and some of the
missing articles, namely, one (1) camera, flashlight, bill fold, and
other personal belongings were recovered from them (pp. 35 & 36, t.s.n.,
Id).
Reynaldo Lacsinto was taken to police headquarters and after
appraising him of his rights under the constitution, his statement was taken in
the presence of his father (pp. 37, 38 & 39, t.s.n., Id; Exhs.
"U" & "U-l", pp. 42, 43, 44, 45, 46, 47 & 48,
rec,). In his said statement to the police, Lasinto admitted his participation and narrated in detail
the commission of the robbery in Room 314 of the House International Hotel.
The Samar P.C. turned over three other suspects, namely
Diego Opero, Milagros
Villegas and Asteria Avila to Sgt. Yanguiling who brought said suspects
to Manila and turned them over to the homicide division of the Manila Police,
together with some of the stolen articles (pp. 31 & 32, t.s.n., June 16,
1978). Statements of these three suspects (Exhibits "B",
"C", and "D", respectively) taken by the Samar P.C. were
also turned over by Sgt. Yanguiling to the homicide division (pp. 34 & 35,
t.s.n. Id). Opero
was investigated further at the Manila Police Headquarters and he gave a
supplemental statement (Exh. "FF", pp. 70-74, rec.; p. 36, t. s.n.
Id) admitting that he had robbed the victim and Identified some of the missing
articles recovered from his possession (pp. 41 & 42, t.s.n. Id). He described in detail how he
planned the robbery and named the rest of his coaccused as willing
participants. He also narrated in his said supplemental statement that he and
his co-accused Lacsinto subdued the victim by assaulting her, tying up her
hands and feet stabbing her and stuffing her mouth with a piece of pandesal
(pp. 70- 74, rec.).
In her statement to the Manila police (Exh. 'GG', pp. 74
& 75, rec.) Milagros
Villegas Identified the stolen clothes which were given to her by Opero.
(pp. 44, 45 & 46, t. s. n. Id)
The third suspect, Asteria Avila told the Manila police that she was not a
party to the crime and upon advice of her lawyer she did not give any further
statement. (p. 47, t. S. n. Id)
A reenactment of the crime at the crime scene was held under
the direction of Opero portraying - his role, with Lacsinto depicting his part,
and pictures of the reenactment were taken (pp. 51, 52, 53, 54, 55, 56, 57, 58,
59 & 60, t. s.n. Id; pp. 79-99, incl., rec.).
The body of the victim Liew Soon Ping was autopsied by Dr.
Angelo Singian, then Chief of the Medico Legal Division of the Western Police
District. The body was Identified by the victim's husband. Dr. Singian examined
the body of the victim and issued a death certificate (Exh. "AA"),
and the necropsy report (Exh. 'BB'), with the following findings: 1) a pale
yellowish band across the eyes of the victim caused by the application of a
towel, or broad piece of cloth across the eyes; 2) a pale yellowish band across
the mouth caused by a similar material as the one applied across the victim's
eyes, which was tied across the mouth; 3) contusion and hematoma on the upper
and lower lips caused by a blunt instrument; 4) abrasions on the right side of
the chin; 5) broad linear mark of clothing material on the neck; 6) cord or
ligature marks on the left and right arm, indicating that both arms were tied;
7) abdomen distended with gas, due to decomposition; 8) epiglotis, hematoma and
contusion on the right side of the tongue; 9) contusions and hematoma on the
right cheek; 10) superficial stab wound measuring 0.8 c.m. on the right side of
the chin caused by a sharp bladed instrument; 1 1) superficial stab wound on
the mid-axilliary line caused by a sharp bladed instrument: 12) stab wound on
the left forearm: 13) cord markings on both feet.
Internal findings reveal an impacted bolus of white bread
measuring 3 x 2.5 cm in the oropharynx. The tongue has contusion on the right
lateral side and an abrasion across the middle portion. The larynx and trachea
are markedly congested. The
cause of death was due to asphyxiation by suffocation with an impacted bolus
into the oropharynx and compression of the neck with a broad clothing around
the neck (pp. 6-18, incl., t. s. n. June 16,1978; Exh. "BB" pp. 62
& 63, rec.).
In his first assignment of error, appellant advances the theory that he never
intended to kill the deceased, his intention being merely to rob her, for if
indeed he had the intention to kill her, he could have easily done so with the
knife, and therefore, his liability should be only for robbery.
Appellant's theory finds no basis in the law or in
jurisprudence. It was been repeatedly held that when direct and intimate
connection exists between the robbery and the killing, regardless of which of
the two precedes the other, or whether they are committed at the same time, the
crime committed is the special complex crime of robbery with homicide. 1 If the
circumstances would indicate no intention to kill, as in the instant case were
evidently, the intention
is to prevent the deceased from making an outcry, and so a "pandesal"
was stuffed into her mouth, the mitigating circumstance of not having intended
to commit so grave a wrong may be appreciated. 2 The stuffing of the "pandesal" in the
mouth would not have produced asphyxiation had it not slid into the neckline,
"caused by the victim's own movements, " according to Dr. Singian.
The movements of the victim that caused the "pandesal" to slide into
the neckline were, however, attributable to what appellant and his co-accused
did to the victim, for if they did not hogtie her, she could have easily
removed the "pandesal" from her mouth and avoided death by asphyxiation.
It may not avail appellant to contend that the death was by
mere accident for even if it were so, which is not even beyond doubt for the
sliding of the pandesal into the neckline to produce asphyxiation could
reasonably have been anticipated, it is a settled doctrine that when death
supervenes by reason or on the occasion of the robbery, it is immaterial that
the occurrence of death was by mere accident. 3 What is important and decisive is that death results by
reason or on the occasion of the robbery. 4 These Spanish doctrines were
cited by this Court in People vs. Mangulabnan, et al., 99 Phil. 992.
Appellant would also have Article 49, paragraph I of the
Revised Penal Code apply to him, and faults the court a quo for having failed
to do so. The provision cited reads:
Art. 49.
Penalty to be imposed upon the principals when the crime committed is different
from that intended - In cases in which the felony committed is different from
that which the offender intended to commit, the following rules shall be
observed:
1. If the penalty
prescribed for the felony committed be higher than that corresponding to the
offense which the accused intended to commit, the penalty corresponding to the
latter shall be imposed in its maximum period.
xxx xxx xxx.
The foregoing provision has been applied only to cases when the crime committed
befalls a different person from the one intended to be the victim. This
was the explicit ruling in the case of People vs. Albuquerque, 59 Phil.
150-153, citing decisions of he Supreme Court of Spain." 5
In the instant case, the intended victim, not any other
person, was the one killed, as a result of an intention to rob, as in fact
appellant and his co-accused, did rob the deceased. As stated earlier, what may
be appreciated in appellant's favor is only the mitigating circumstance of not
having intended to commit so grave a wrong as that committed, under paragraph 3
of Article 13 of the Revised Penal Code, an entirely different situation from
that contemplated under paragraph 1, Article 49 of the same Code, where as
already explained, the different felony from that intended, befalls someone
different from the intended victim, as when the person intended to be killed is
a stranger to the offender, but the person actually killed is the offender's
father, thereby making the intended felony which is homicide different from the
crime actually committed which is parricide.
Notwithstanding the presence of the mitigating circumstance
of not having intended to commit so grave a wrong as that comitted, there still remains one
aggravating circumstance to consider, after either one of the two aggravating
circumstances present, that of superior strength and dwelling, is offset by the
mitigating circumstance aforesaid. The higher of the imposable penalty for the crime
committed, which is reclusion perpetua to death, should therefore be the proper
penalty to be imposed on appellant. 'This is the penalty of death as imposed by
the lower court.
WHEREFORE,
the judgment appealed from being in accordance with law and the evidence,
except as to the nonappreciation of the mitigating circumstance of having no
intention to commit so grave a wrong as that committed, which nevertheless does
not call for the modification of the penalty of death as imposed by the lower
court, is hereby affirmed. Cost de oficio.
SO ORDERED.
Teehankee, Barredo, Makasiar, Aquino, Concepcion Jr.,
Fernandez, Guerrero, Abad Santos and De Castro, Jr., concur.
Fernando, CJ., took no part.
Melencio-Herrera, J., concurs in the result.
