Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-28389 January 20, 1928
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ANTONIO CERDEŅA, ET AL., defendant-appellants.
S. K. Demeterio, C. K. Kangleon and Pedro S. Aguilar for appellants.
Attorney-General Jaranilla for appellee.
ROMUALDEZ, J.:
The accused appeal from the judgment of the Court of First Instance of Leyte rendered in the present case, sentencing Antonio Cerdeņa to ten years and one day prision mayor and Serapion Palcone, Felixberto Moreno Aguilar and Agapito de la Peņa to six years, ten months and one day presidio correccional, all to the accessories of the law, to indemnify Melecio Lerin in the sum of P70, to return the brass knuckle Exhibit 6, to Perfecto Cifra and to pay the costs.
The assignments of error on which they base their appeal relate principally to questions of fact.
The evidence of the prosecution shows that the accused on the occasion, in question, presented themselves on the boat named Kasilak manned by Melecio Lerin and his companions. and representing themselves as agents of authority, armed with revolvers, made a prolonged and detailed search without finding anything contraband, while they appropriated a brass knuckle, and after threatening Melecio Lerin and his companions the accused Antonio Cerdeņa finally demanded P100 from him, but obtained only P70, later telling the crew that they might leave and that nothing would come it.
While they admit having made the search, the accused assert that it was done without Antonino Cerdeņa who only came to the boat upon being called for by his policemen, who sent him a message in view of the finding of the brass knuckle called "ring fight" and twenty-six bolos. They deny that Antonino Cerdeņa had demanded money from the crew or that he received any amount whatever. They also declare that they were then provided with a search warrant, which they claim is Exhibit 4, and that, according to them, Serapion Palcone showed it to Melecio and Generoso Lerin who read it before they made the search.
After carefully examining the evidence, we find it sufficiently proven that the accused, in spite of the demand made by Melecio Lerin, did not exhibit any search warrant to the latter or to his companions. It has not been sufficiently proven that the document Exhibit 4 was in the accused's possession on that occasion.
It has been proven, beyond a reasonable doubt, that the accused Antonino Cerdeņa led the search of the ship in question and afterwards, by means of intimidation and taking advantage of his authority, obtained the sum of P70 from said crew without any justification therefor.
In not having been proven that there was conspiracy between the accused Cerdeņa and the other accused with regard to the robbery, not cooperation on the part of the latter in taking the P70, nor participation in the said sum, we cannot hold the accused Agapito de la Pena, Felixberto Moreno Aguilar and Serapion Palcone guilty, beyond a reasonable doubt, of the crime of robbery in band with which they are charged in the complaint as principals, not even as accomplices or accessories after the fact.
The fact of carrying revolvers and making a search of the boat, under orders of their chief, the accused Antonino Cerdeņa, looking for possible contraband, in themselves alone cannot be considered as participation in the robbery of the P70 committed afterwards by their said chief, who, according to the evidence in the record, is the only one liable for said crime.
For these same reasons we do not find it proven by the evidence in the record that the robbery was committed in band as defined in article 505 of the Penal Code.
We do find present in the case here in question the aggravating circumstance of the accused Cerdeņa having taken advantage of his office as chief of police in perpetrating the robbery, for which reason the proper penalty, which is that provided for in article 503, paragraph No. 5 of the Penal Code, should be imposed in its maximum degree.
The accused Agapito de la Pena, Felixberto Moreno Aguilar and Serapion Palcone are hereby acquitted with their proportional part of the costs de oficio and other favorable pronouncements; and Antonino Cerdeņa is sentenced to ten years presidio mayor, with the accessories of the law, to indemnify Melecio Lerin in the sum of P70 , to return the brass knuckle, Exhibit 6, to Perfecto Cifra, with one-fourth of the costs in both instances. So ordered.
Johnson, Street, Malcolm, Johns and Villa-Real, JJ., concur.
Separate Opinions
OSTRAND, J., concurring and dissenting:
I concur in the conviction of Antonio Cerdeņa, but dissent from the acquittal of the other appellants.
The Lawphil Project - Arellano Law Foundation
