G.R. No. L-18866




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-18866 January 31, 1966 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. *DIOSDADO DEVELOS alias* MARIANO and SANTIAGO ALDEA, JR. alias JUANITO, defendant. DIOSDADO DEVELOS alias MARIANO,** defendant-appellant. J.M. Madarang for the defendant-appellant. Office of the Solicitor General for the plaintiff-appellee. REGALA, J.: This is a review of the decision of the Court of First Instance of Iloilo imposing the death penalty on Diosdado Develos for having committed the crime of robbery with homicide. In the afternoon of June 19, 1961, a patrolman of the Iloilo City Police Department received a report that the store of Marcelino Tan Bon Huat located at Mabini Street of that city had not been opened for business for two days already, and that people in the vicinity had been smelling foul odor emitting therefrom. The said patrolman, accompanied by one Ta Chi of the local Chinese Association, went to the store and found the dead body of Marcelino Tan Bon Huat lying on its back covered with a sack. Report of this incident having reached the police department, the chief of the Arson and Homicide Section, Secret Service Division, with three detectives, the Assistant Medico legal officer of the City Police Department, and Assistant City Fiscal repaired to the scene. A picture of the victim was taken in the same position as first seen by the police officers with a sack covering his dead body and another showing a rope tied around his neck. Dr. Raymundo Torres, assistant medico-legal officer, conducted a post-mortem examination upon the deceased and it was found in his autopsy findings that the victim died of asphyxia due to strangulation and burns; that there was a lacerated wound appearing at the occipital region; that there were first degree burns at his neck and abdomen; and that second degree burns were found at the thorax and upper extremity. It was established in the course of investigation conducted by the police officers, that the perpetrators of the crime were Diosdado Develos alias "Mariano" and Santiago Aldea, Jr. alias "Juanito" who were employed by the victim as houseboys. A team of police officers organized themselves and were able to arrest Develos at La Paz, Iloilo City, recovering from him the following articles which were found to have been lacking in the store of the deceased: one jacket, two towels, two pants, eight shirts, two T-shirts and a pair of shoes. Develos confessed his guilt upon interrogation by one Lt. Arante at the office of the Secret Service Division. He narrated how he and his companion, Santiago Aldea, Jr. killed the victim in the evening of January 27, 1961, and afterwards robbed him. Santiago Aldea, Jr. was also arrested and upon investigation he recounted in detail how he and Develos committed the crime. The commission of the crime was thus reenacted in the presence of police officers and pictures of the reenactment were taken. Information was filed against the two accused for the crime of robbery with homicide. During arraignment, both the accused were assisted by counsel de oficio. While the herein appellant entered a plea of guilty, his co-accused entered a plea of not guilty. At the date set for trial, however, without objection from the fiscal, Aldea, thru counsel, withdrew his plea of not guilty and upon arraignment pleaded guilty. And there being no question as to the guilt of the accused, the trial proceeded only for the purpose of receiving the evidence as to the aggravating circumstances that attended the commission of the crime. Thereafter, the court rendered judgment pronouncing the crime to have been committed with the aggravating circumstances of evident premeditation, treachery, abuse of confidence or obvious ungratefulness, abuse of superior strength and unusual cruelty. The trial court considered the first aggravating circumstance of evident premeditation offset by the mitigating circumstance of plea of guilty, the only mitigating circumstance that may be appreciated in favor of the defendants. Dispositive part of the judgment reads: POR TANTO, el Juzgado declara al acusado Diosdado Develos culpable, fuera de toda duda racional, del delito de robo homicido, apreciando en contra de el las agravantes de alevosia, abuso de confianza, abuso de superioridad y la de haber aumentado deliberadamente el mal del delito, causando otros males innecesarios para su ejecucion, no neutralizadas por ninguna atenuante, le condena a sufrir le pena de muerte; a indemnizar a los herederos de Marcelino Tan Bon Huat en la suma de P6,000.00, mas la otra suma de P25.50, importe de objetos robados y no recuperados, sin sufrir prision subsidiaria correspondiente, en caso de insolvencia, dada la naturaleza de la pena principal; a las accesorias de la ley y a pagar, ademas un mitad (1/2) de las costas del juicio. Apareciendo que el acusado Santiago Aldea, hijo, era menor de 16 años cuando cometio el delito alegado en la querella enmendada, de conformidad con al Articulo 80 de Codigo Penal Revisado, tal como ha sido enmendado, suspendase todo ulterior procedimiento contra el y se ordena su envio y reclusion en el "Philippine Training School for Boys", Welfareville Institution, Mandaluyong, Rizal, hasta que llegue a su mayoria de edad o hasta nueva orden de este Juzgado. In his brief before us, counsel for appellant points out the fact that Aldea, his co-accused, who "did not only initiate the fatal blow but also poured alcohol over the body and burned the deceased" was given a suspended sentence and committed to the Philippine Training School for boys while he (the appellant) was sentenced to suffer the death penalty. The suspension of Aldea's sentence is clearly in accordance with Article 80 of the Revised Penal Code which applies only to minors under sixteen years of age at the date of the commission of a grave or less grave felony. It appears that while Aldea was only 15 years, 4 months and 15 days old when the crime took place, the herein appellant was already 22 years old. Hence, the latter cannot invoke the same treatment given by the trial court to his co-accused. Since the appellant has pleaded guilty to the crime charged, this review is merely to find out the correctness of the punishment imposed, considering the circumstances attendant to the crime. We fully agree with the observation of the Solicitor General that the aggravating circumstance of evident premeditation has not been proven beyond reasonable doubt. For in his sworn statement during investigation by Lt. Arante of the Iloilo City Police Department, the appellant stated that in the evening of June 17, when Aldea bared to him (Develos) his plan to kill their employer, Aldea struck the victim suddenly and from behind. The fact that appellant did not assent to the killing that very instant renders doubtful the attendance of evident premeditation on his part. However, we find the aggravating circumstances of (1) abuse of confidence or obvious ungratefulness (2) treachery, (3) abuse of superior strength, and (4) unusual cruelty to have been sufficiently proven as shown by the evidence, summarized by the Solicitor General, as follows: The appellant, in confessing his guilt before the police officers, stated that while employed as a houseboy by the victim he lived and ate with him in his store; that after his co-accused Aldea suddenly and without warning struck the victim from behind, as he was massaging him with rubbing alcohol, while the victim was about to rise, the appellant strangulated him with a rope; that after killing the victim, the appellant ransacked the store for money while his co-accused watched him but when he failed to find any he took some cigarettes and the clothes belonging to the victim; that while he was looking for money, Aldea set the victim on fire which accounts for the burns on the arms, chest and abdomen; that when he returned to the place where the body was, he found it covered with a sack; that after killing and robbing the victim they stayed in the kitchen until 4 o'clock in the morning of the next day and took a bus bound for Dingle to hide in the house of his aunt. The foregoing testimony was affirmed by Santiago Aldea, Jr., the appellant's co-accused.1äwphï1.ñët Dr. Raymundo Torres, assistant medico-legal officer of the Iloilo City Police Department, testified that the wound sustained by the victim in the occipital region, three centimeters long, could have been caused by a blunt instrument; that with the location of the wound at the head of the victim, it could have been inflicted while the appellant was face to face with the victim and that the assailant must have been at the back of the victim; that when he first saw the body of the deceased, the neck was tied with a rope; that he must have been strangulated while he was still alive because the tongue came out of his mouth; that the second degree burns in the thorax and upper extremities and the first degree burns in the abdomen, as shown by the skin blisters and burnt areas, were caused by setting afire the rubbing alcohol he found near the body of the victim; that the victim could have died by the impact of the blow alone, even without burning and strangulating him. Lt. Arante, Chief of the Arson and homicide Section, Secret Service Division of the City Police Department, testified that appellant reenacted the way the crime was committed as Detective Abarcoso took pictures of the various stages thereof. According to the witness, as reenacted by the appellant, he was struck from behind by Aldea, with a piece of wood; that after the victim was struck thus, he fell down; that as he was rising up, the appellant also struck him with the same piece of wood and strangulated him with a rope. That the appellant had abused the confidence of his victim and was obviously ungrateful is apparent from the fact that he was an employee of the victim, living with him in the same dwelling. There was treachery on the part of the appellant when he suddenly struck the victim from behind without warning, as the latter was about to rise — a method which had insured the execution of the crime without risk to himself arising from the defense. Abuse of superior strength was likewise present because aside from the fact that the appellant and his co-accused were two, while the victim was alone, the latter was unarmed and defenseless. The presence of unusual cruelty is borne by the fact that the accused did not merely kill the victim but augmented his sufferings by strangulating him with a rope and setting him on fire after having struck him twice on the head. Paragraph 1, Article 294, of the Revised Penal Code prescribes reclusion perpetua to death as the penalty for robbery with homicide. For lack of the necessary votes for the imposition of the death penalty, considering the youth of the appellant, we hereby impose the penalty of reclusion perpetua. As recommended by the Solicitor General, the articles belonging to the deceased enumerated somewhere in this decision, which have been recovered from the appellant, should be returned to the heirs of the deceased. In view of the foregoing, the judgment of the lower court is hereby modified in accordance with the above pronouncements. With costs. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur. The Lawphil Project - Arellano Law Foundation