[ G.R. No. 43754. October 15, 1935 ] 62 Phil. 307
[ G.R. No. 43754. October 15, 1935 ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. CIRILO MAGRAMO Y MANLOLO AND TEOFILO GUTIERREZ Y MATUMAN, DEFENDANTS AND APPELLANTS. D E C I S I O N
VICKERS, J.:
The defendants were charged in the Court of First Instance of Manila with the crime of robbery with slight physical injuries. It was alleged in the information;
“That on or about the 21st day of March, 1935, in the City of Mania, Philippine Islands, the said accused confederating together and mutually helping each other, did then and there willfully, unlawfully and feloniously, with intent to gain and by means of violence upon one Ty Liang Seng, to wit: giving the latter fist blows on the face and other parts of the body from which the latter sustained physical injuries which required and will require medical attendance for a period of more than one but less than ten days, and prevented and will prevent him from engaging in his customary labor for the same length of time, forcibly take and carry away the following describe personal property belonging to the said Ty Liang Seng, viz.: Money consisting of bills of different denominations and coins amounting to P9.93 to the damage and prejudice of the said Ty Liang Seng in the aforementioned amount of nine pesos and ninety-three centavos (P9.93), Philippine currency. “That the accused Cirilo Magramo y Manlolo is a habitual delinquent, having already been convicted twice of the crime of theft and once of qualified theft by virtue of final judgments rendered by a competent court, the date of his last conviction being February 8, 1934; and Teofilo Gutierrez y Matuman (alias Young Gutierrez) is a recidivist, having heretofore been convicted twice of slight physical injuries by virtue of final judgments rendered by a competent court”
The trial judge found the defendants guilty as charged, and taking1 into consideration the fact that Teofilo Gutierrez was a recidivist because he had already been twice convicted of the crime of slight physical injuries condemned him to suffer an indeterminate sentence from six months and one day of prision correctional to ten years of prisidn mayor; and finding that Cirilo Magramo was a habitual delinquent because he had already been convicted three times of theft the lower court sentenced him to suffer three years, eight months, and one day of prision correctional, and an additional penalty of four years, nine months, and ten days. The defendants were sentenced to indemnify the offended party in the sum of P9.93 with the corresponding subsidiary imprisonment in the case of Ciriio Magramo if he should fail to pay the said indemnity, and to pay the costs. The attorney for the appellants alleges that the lower court erred;
“In finding and concluding that the guilt of the accused for the crime of robbery with physical injuries has been proven beyond reasonable doubt notwithstanding the inconsistent, contradictory arid unbelievable testimony of the offended party and his only supposed ocular witness who is also a Chinaman and housemate, and in not absolving said appellants from this criminal charge.”
The prosecuting witness Ty Liang Seng testified that about eight o’clock in the morning of March 21, 1935 he went to a sari-sari tienda at the corner of Marcelino de Santos and Elcano streets in Manila, and bought a can of milk for seven centavos. He paid for it with a 10-peso bill, and received as change P9.93, consisting of a 5-peso bill, two 2-peso bills, and coins in the sum of ninety-three centavos. When he went out of the tienda and started home with the money in his hand, he met the defendants, who assaulted him. Both of them struck him with their fists. One struck him on the side of the head and the other under the jaw. He became dizzy and leaned against a wall for support. Teofilo Gutierrez, the larger of the two defendants, took the money from the offended party’s hand, and then the defendants ran away. Uy Gao testified that he was drinking a cup of coffee in the sari-sari tienda when Ty Liang Seng, the offended party, came in and bought a can of milk and! went out with the change, composed of paper money and coins, in his hand. Uy Gao then heard cries outside and went out holding his cup of coffee. He saw Ty Liang Seng leaning against a wall, bleeding from the mouth and about to fall. Gutierrez snatched the money from the hand of the wounded man and Magramo knocked him down. Uy Gao went into the tienda to set down the coffee cup and then ran out to help Ty Liang Seng, but the defendants had fled. He took the offended party into a barber shop and sent someone to call a detective. Pedro Galvez, a detective, testified that upon being notified of what had occurred he and detective Carpio went to see. the offended party anct found that his upper lip was swollen and one tooth was loose and his nose was bleeding. They then took him to the hospital where he was treated by Doctor Ordonez. Galvez further testified that he investigated the offended party, and the latter said that he had bought a can of milk in a sari-sari tienda at the corner of Elcano and Marcelino de Santos streets, and that when he went out the defendants assaulted him and Teofilo Gutierrez snatched from him P9.93. The offended party was taken to the secret service office, where he identified Teofilo Gutierrez by his photograph as the assailant who had taken his money. Cirilo Magramo was pointed out by Ty Liang Seng as his other assailant, and when arrested that same day Magramo said it was not he but Teofilo Gutierrez that beat Ty Liang Seng, but he later admitted that he had given the offended party a blow in the abdomen. Teofilo Gutierrez, when arrested five days later, was identified by Ty Liang Seng and Uy Gao as the man who had taken Ty Liang Seng’s money after beating him. Teofilo Gutierrez at first denied having had anything to do with the incident in question, alleging that he was in jail at that time, but later he admitted. that he had assaulted Ty Liang Seng, and attempted to explain the assault by saying he had been sent to jail because he had beaten a friend of Ty Liang Seng. The allegation in the information that the offended party’s wounds required medical treatment more than one day but less than ten days was admitted by the defendants. Cirilo Magramo admitted that he had been sentenced three times for theft as shown by Exhibits A, B, and C, and Teofilo Gutierrez admitted he was convicted of alight physical injuries on August 25, 1934 and February 21, 1935 as evidenced by Exhibits E and D. Testifying in his own behalf, Teofilo Gutierrez admitted that he assaulted Ty Liang Seng on the occasion in question, but stated that on March 17th, when he entered a barber shop after leaving prison, Ty Liang Seng insulted him and told him he must not come inside of that barber shop. He denied having taken any money from Ty Liang Seng. He further testified that the man who caused him to be sent to prison was a cargador in the market and lived in the same house where Ty Liang Seng was living. He did not know the name of the alleged companion of Ty Liang Seng, who was the offended party in the prior case. Gutierrez further testified that the reason why he assaulted this friend of Ty Liang Seng was that he refused to pay him for washing an automobile, and that he was sentenced1 in that case to pay a fine of P50. Cirilo Magramo testified that he was not with Teofilo Gutierrez when the incident in question occurred, but was drinking coffee in the shop of a Chinese when he saw Gutierrez and the offended party fighting. He stated on crossexamination that he was a cargador and a fellow worker of Gutierrez in the Divisoria Market. Ty Liang Seng testified that he was a silversmith. He denied having insulted Gutierrez, and said he had never had any conversation with either of the defendants. It clearly appears that both the defendants assaulted Ty Liang Seng, and the evidence leaves no doubt in our minds that the motive for the assault was robbery. When the offended party went out of the tienda with the money in his hand, the defendants saw him and attacked him for the purpose of getting possession of his money. The story of Gutierrez as to the alleged insult in the barber shop rests upon his uncorroborated testimony. Not content with that story, he insinuated that he assaulted Ty Liang Seng because the latter’s friend had prosecuted him for an assault. That friend of Ty Liang Seng was said to be a rival cargador in the market. That story, however, is spoiled by the testimony of Gutierrez to the effect that the reason for the assault in that case was the refusal of Ty Liang Seng’s friend to pay the defendant Gutierrez for washing an automobile. He did not explain why a Chinese cargador should hire him to wash an automobile. Gutierrez testified that he was fined fifty pesos in that case, but it appears that on February 21, 1935 he was sentenced to ten days in jail. The participation of Cirilo Magramo in the assault is shown not only by the testimony of the offended party and Uy Gao, but also by the admission of this defendant after he was arrested. His motive for joining Teofilo Gutierrez in the attack on Ty Liang Seng was undoubtedly to get possession of the money he saw in Ty Liang Seng’s hand. No other motive has been suggested. We admit that the prosecution ought to have called the owner of the tienda to corroborate the testimony of the offended party as to the sale of the can of milk and the change he gave Ty Liang Seng, but the trial judge was satisfied as to the truth of these facts by the testimony of Ty Liang Seng and Uy Gao, and we cannot say that he erred in giving credit to their testimony. The penalty for the offense committed is prision correctional to prision mayor in its medium period in accordance with No. 5 of article 294 of the Revised Penal Code, and the defendants being recidivists the penalty must be imposed in its maximum period. The defendants are therefore sentenced to suffer six years, ten months, and one day of prision mayor and to indemnify the offended party in the sum of P9.93. Cirilo Magramo being a habitual delinquent is not entitled to the benefits of the Indeterminate Sentence Law. The minimum sentence to be served by Teofilo Gutierrez is fixed at six months of arresto mayor. The evidence shows that Cirilo Magramo had already been convicted twice of theft and once of qualified theft, but it appears from Exhibits A and B that he was convicted on February 7, 1934 and February 8, 1934. For the purposes of No. 5 of article 62 of the Revised Penal Code relating to habitual delinquency, these two convictions would be counted as only one (People vs. Santiago, 55 Phil., 266; People vs. Ventura, 56 Phil., 1). The present conviction is therefore the third for the purposes of the aforementioned provision, and the appellant Cirilo Magramo is sentenced to suffer an additional penalty of three years, six months, and twenty-one days of prision correctional. As thus modified, the decision appealed from is affirmed with the costs against the appellants. Avanceña, C.J., Malcolm, Hull, Imperial, and Goddard, JJ., concur.