[ G.R. No. 13715. January 22, 1919 ] 39 Phil. 523
[ G.R. No. 13715. January 22, 1919 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. FELIXBERTO VENTURA AND DOMINGO VICENTE, DEFENDANTS AND APPELLEE. D E C I S I O N
TORRES, J.:
In the cause, instituted in the Court of First Instance of Pangasinan, by virtue of an information filed by the provincial fiscal charging the above-named four defendants with the crime of robbery, judgment was. rendered, on November 16, 1917, whereby Felixberto Ventura and Domingo Vicente were each sentenced to the penalty of 3 years, 6 months, and 21 days of presidio correctional, to the accessory penalties, to pay jointly and severally an indemnity of P67 to the offended party, Calixto Dizon, and, in case of insolvency, to suffer the corresponding subsidiary imprisonment, and each to pay one-fourth of the costs. With respect to Pio Apostol, the proceedings were dismissed, with one-fourth of the costs de officio. From that judgment counsel for the two convicted defendants appealed. The other defendant, Ramon Carcha, who pleaded guilty, was also convicted and was sentenced to the penalty of 2 years, 11 months, and 11 days of presidio correctional, to the accessory penalties, to return to the offended party the stolen merchandise, or, in default thereof, to pay an indemnity of P67, and, in case of insolvency, to the corresponding subsidiary imprisonment, not to exceed one-third of the principal penalty, and to pay one-fourth of the costs. From this judgment the defendant Carcha did not appeal. On the night of August 18, 1917, or early in the morning of the following day, the four defendants, having previously and successively joined each other on the initiative of Felixberto Ventura, went, at a late hour that night to the vicinity of the house and small store of Calixto Dizon situated in the barrio of Talibao of the municipality of Calasiao, and while the defendants Apostol and Carcha remained outside in the street to keep watch, by arrangement made by the other two, Ventura and Vicente, the latter proceeded to open a hole in the inclosure or bamboo partition of the ground floor of the said house, where the store was that belonged to the owner of the building. After the opening had been made they entered the store; after a while they came out of it, Felixberto Ventura carrying a bundle of cloth, and Domingo Vicente a basket containing matches, cakes of soap, and other articles, which they had stolen from the inside of the said store and which were worth all together P67. Thereupon, one of the two last named, before leaving, gave to Pio Apostol a two-peso bill, with the instruction that he should tell no body of what he had seen; but Ramon Carcha, on seeing what had happened, became frightened and ran away. The agents of the authorities, having been informed of the crime, proceeded to investigate it, and Pio Apostol was arrested, who immediately pointed out his three codefendants as having been his companions in the commission of the robbery. Ramon Carcha was likewise arrested and also admitted his guilt. As Felixberto Ventura and Domingo Vicente, when arrested, denied any participation in the crime, they were placed in the presence of the aforesaid Apostol and Carcha who, on hearing that Ventura and Vicente denied their participation in the robbery, reproached them, saying, “Why do you people deny it?” And afterwards Pio Apostol, while in the presence of his coaccused Vicente and Ventura, told them to bring out the cloth that they had taken possession of. Moreover, Ramon Carcha, in testifying as a witness for the prosecution, after he had already been convicted by a final judgment, as a coprincipal in the same crime, stated that Felixberto Ventura and Domingo Vicente were his companions in the perpetration of the robbery in question; thus corroborating Pio Apostol’s testimony in its essential feature. The facts as related do, in fact, constitute the crime of robbery, committed in a small store located in the ground floor of Calixto Dizon’s house, which store is a dependency of the same house inhabited by the latter and his family. This house has an inside communication with the store located on its lower floor, and both of them, house and store, form one single building, inasmuch as, according to the testimony of their owner (record, p. 104) the entrance to the store, in front and towards the street as well as the exit were fastened on the inside with a padlock. This description shows that the inmates of the house, in entering the store, do not descend a stairway cut through the floor but go down ^he main-stairway, and pass through the yard or lot to enter the door of ingress, fastened with a padlock and leading to the inside of the store. For this second door would not be on the side of the other one in the street, but would, of course, open on the yard or lot of the house. Therefore it cannot be affirmed that the store is not a dependency of the house and has no interior communicition therewith, as both house and store form one single whole, without any partition whatever. As the upper floor of the house was inhabited, the robbery committed in the shop located in the lower part of the building must be classified as robbery in an inhabited house or a dependency thereof, pursuant to the legal provision contained in the last paragraph of article 508 of the Penal Code, which crime is punished with considerable severity for the reason that, in such cases, the inmates of the house are more exposed to personal danger during the act of the robbery. For, as in the instant case, had Calixto Dizon become aware of the robbery at the time of its perpetration or during the time when the opening was being made in the partition or enclosure of the lower part of the house and the store, and had he come forward to defend his property, he would have exposed himself to a sure and certain danger, if he had been attacked by the four robbers, who might at that time have been carrying arms, if not all at least some of them, although it was not brought,out at the trial whether they were armed, and, for this reason, only the provision contained in the last paragraph of said article 508 of the Code is applied to them. (Decision of the supreme court of Spain, of January 4, 1898.) After Pio Apostol, who testified as a witness for the prosecution, had been excluded from the proceedings, and Ramon Carcha convicted by a final judgment, the record discloses that it is fully proven that the other defendants, the appellants Felixberto Ventura and Domingo Vicente, are coprincipals and convicted as such; for, notwithstanding that they pleaded not guilty and made certain allegations which were not proven, the record furnishes convincing and abundant evidence that they had a direct participation in the commission of the robbery as the principal perpetrators thereof, inasmuch as they were charged as such and were the two men who entered the said store through a hole they had previously made in the enclosure or partition and it was they who took possession of the stolen articles. Such facts were asserted by Ramon Carcha who confessed and pleaded his guilt, and by the witness and accomplice in the crime, Pio Apostol, not only before the agents of the authorities but also during the trial of the cause. Therefore the guilt of the two defendant-appellants is unquestionable Moreover, on their being confronted with the defendants Apostol and Carcha, the latter reproached and incriminated them. As regards the four so-called errors assigned to the judgment appealed from, it should be stated that, in excluding Pio Apostol from the proceeding to use him as a witness, the trial court acted in accordance with law and the provisions of Act No. 2709, in the exercise of the discretion which the law confers upon him; for both Apostol and Carcha admitted their participation in the robbery in question. Besides, the testimony given by Carcha is virtually a corroboration of the statements made by Apostol, and the testimony of both of them, as confessed coprincipals, of their participation in the crime of robbery, evidences without the slightest doubt the guilt of the two appellants. When the codefendants and accomplices confess their coparticipation and complicity, as did the said Apostol and Carcha, it is proper to admit their testimony against the other defendants, the coprincipals of the crime. With respect to the pleading and proofs found in the record, in connection with the alibi set up by the defendant-appellants, such allegations and evidence have not invalidated the conclusive evidence of the prosecution which shows fully and in a satisfactory manner the guilt of the appellants Felixberto Ventura and Domingo Vicente. In the commission of the crime the aggravating circumstance of nocturnity was undoubtedly present, inasmuch as, without the darkness and the silence of the night—on which occasion the malefactors knew that the inmates of the house, of which the said store is a dependency, and the other residents of the locality were asleep and at rest— they would not have dared to perpetrate the robbery by means of the opening which they made in the enclosure or wall of the store, which acts they undoubtedly would not have ventured to perform in broad daytime; and as there is no extenuating circumstance to offset the said aggravating one, the penalty specified by the law should be imposed in its maximum degree. For the foregoing reasons, deeming the errors assigned by counsel for the defendant-appellants to have been refuted, it is proper to affirm the judgment appealed from and the penalty therein fixed, which is in conformity with the evidence, for said judgment is in accordance with law, and we do hereby affirm the same, with the costs of this instance against the defendant-appellants: Provided, however, That the said Felixberto Ventura and Domingo Vicente, jointly and severally with Ramon Carcha, are ordered to return the stolen articles, or to pay an indemnity for their value, and, in case of insolvency, they shall suffer the corresponding subsidiary imprisonment. So ordered. Arellano, C.J., Johnson, Street, Malcolm, and Avanceña, JJ., concur.