EN BANC
G.R. No. L-31012 August 15, 1973
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARTURO CARANDANG, MARIO BUISER, MONTANO CARAAN and DIOMEDES ESTRELLA, defendants-appellants.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor, General Ricardo L. Pronove, Jr. and Solicitor Tomas M. Dilig for plaintiff-appellee.
Pastor B. Timog for defendant-appellant Arturo Carandang.
Magno T. Bueser for defendants-appellants Mario Buiser, et al.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The Court's decision, per the main opinion of Mr. Justice Fernando, affirms the lower court's judgment of conviction of, and sentence imposed upon, the four accused-appellants: — two of them, Arturo Carandang and Diomedes Estrella, for the crime of robbery with rape, of which they have been found "guilty beyond reasonable doubt as principals ... and considering the aggravating circumstances of nighttime, dwelling of the offended party, abuse of superior strength and ignominy, without any mitigating circumstance" and meted therefor the penalty of reclusion perpetua, and the remaining two others, Montano Caraan and Mario Buiser for the crime of robbery, as defined under Article 294, paragraph 5 of the Revised Penal Code, of which they have likewise been found "guilty beyond reasonable doubt as principals" with the same aggravating circumstances and lack of any mitigating circumstance and meted therefor an indeterminate penalty of from four years, two months and one day of prision correccional as minimum to ten years of prision mayor as maximum.
I dissent from the imposition of the lighter penalty of reclusion perpetua as the maximum penalty for the crime of robbery with rape upon the two above first named accused-appellants, Carandang and Estrella, by the application of the penalty provided in Article 294, sub-paragraph 2 of the Revised Penal Code which imposes only the "penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have been accompanied by rape" rather than the graver penalty of death for the more serios crime of qualified rape as imposed by Article 335 of the penal code1which provides that "(W)henever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death."
Hence, it has been confirmed that the two first named accused-appellants, Carandang and Estrella, aside from robbing the victims, raped Socorro Familiar one after the other at gunpoint, in the very presence of her husband, and brazenly ignored her pleas for pity and to be spared the pain and ignominy as she had just given birth.2
Under Article 335, paragraph 3, third sub-paragraph of the penal code above-quoted, the mandatory penalty for qualified rape thus committed with the use of a deadly weapon and by two persons and with the presence of the aggravating circumstances above-enumerated is death.
The present case is analogous to the situation in Napolis vs. Court of Appeals3 where the Court, in a unanimous decision penned by Chief Justice Roberto Concepcion, overturned previous jurisprudence that ignored the more severe penalty of reclusion temporal imposed on robbery in an inhabited building under Article 299 of the penal code and imposed the lighter penalty of prision correccional, maximum to prision mayor, medium, under Article 294, sub-paragraph 2 of the penal code when the robber committed not only the act of simple breaking-in (carrying the heavier penalty) but further and more serious acts of violence against or intimidation of persons (which peculiarly carried the lighter penalty). Chief Justice Concepcion, speaking for the Court, stated that "(T)o our mind, this result and the process of reasoning that has brought it about, defy logic and reason."4
This Court, then, in Napolis, abandoning the earlier precedents, held that "(W)e deem it more logical and reasonable to hold, as We do, when the elements of both provisions are present, that the crime is a complex one, calling for the imposition — as provided in Art. 48 of said Code — of the penalty for the most serious offense, in its maximum period ...," as follows:
The fourth assignment of error refers to the characterization of the crime committed and the proper penalty therefor. It should be noted that the Court of Appeals affirmed the decision of the trial court convicting Napolis, Malana and Satimbre of the crime of robbery committed by armed persons, in an inhabited house, entry therein having been made by breaking a wall, as provided in Article 299(a) of the Revised Penal Code, and, accordingly, sentencing Napolis and Satimbre to an indeterminate penalty ranging from(10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, which is in accordance with said legal provision.
In addition, however, to performing said acts, the malefactors had, also, used violence against Ignacio Peñaflor, and intimidation against his wife, thereby infringing Article 294 of the same Code, under conditions falling under sub-paragraph (5) of said article, which prescribes the penalty of prision correccional in its maximum period to prision mayor in its medium period, which is lighter than that prescribed in said Article 299, although, factually, the crime committed is more serious than that covered by the latter provision. This Court had previously ruled —
"... that where robbery, though committed in an inhabited house, is characterized by intimidation, this factor "supplies the controlling qualification," so that the law to apply is article 294 and not article 299 of the Revised Penal Code. This is on the theory that "robbery which is characterized by violence or intimidation against the person is evidently graver than ordinary robbery committed by force upon things, because where violence or intimidation against the person is present there is greater disturbance of the order of society and the security of the individual." (U.S. vs. Turia, 38 Phil. 346; People vs. Baluyot, 40 Phil. 89) And this view is followed even where, as in the present case, the penalty to be applied under article 294 is lighter than that which would result from the application of article 299. ..."
Upon mature deliberation, We find ourselves unable to share the foregoing view. Indeed, one who, by breaking a wall, enters, with a deadly weapon, an inhabited house and steals therefrom valuable effects, without violence against or intimidation upon persons, is punishable under Art. 299 of the Revised Penal Code with reclusion temporal. Pursuant to the above view, adhered to in previous decisions, if, aside from performing said acts, the thief lays hand upon any person, without committing any of the crimes or inflicting any of the injuries mentioned in subparagraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty — under paragraph (5) thereof — shall be much lighter. To our mind, this result and the process of reasoning that has brought it about, defy logic and reason.
The argument to the effect that the violence against or intimidation of a person supplies the "controlling qualification," is far from sufficient to justify said result. We agree with the proposition that robbery with "violence or intimidation against the person is evidently graver than ordinary robbery committed by force upon things," but, precisely, for this reason, We cannot accept the conclusion deduced therefrom in the cases above cited — reduction of the penalty for the latter offense owing to the concurrence of violence or intimidation which made it a more serious one. It is, to our mind, more plausible to believe that Art. 294 applies only where robbery with violence against or intimidation of person takes place without entering an inhabited house, under the conditions set forth in Art. 299 of the Revised Penal Code.
We deem it more logical and reasonable to hold, as We do, when the elements of both provisions are present, that the crime is a complex one, calling for the imposition — as provided in Art. 48 of said Code — of the penalty for the most serious offense, in its maximum period, which, in the case at bar, is reclusion temporal in its maximum period. This penalty should, in turn, be imposed in its maximum period - from nineteen (19) years, one (1) month and eleven (11) days to twenty (20) years of reclusion temporal — owing to the presence of the aggravating circumstances of nighttime. In short, the doctrine adopted in U.S v. De los Santos and applied in U.S. v. Manansala, U.S. v. Turla, People v. Baluyot, Manahan v. People, and People v. Sebastian, is hereby abandoned and appellant herein should be sentenced to an indeterminate penalty ranging from ten (10) years, and one (1) day of prision mayor to nineteen (19) years, one (1) month and eleven (11) days of reclusion temporal.5
By the same token and rationale I hold that it would be more logical and reasonable to hold that since the elements of both penal provisions are present, i.e. robbery with rape under Article 294, sub-paragraph 2 and qualified rape commited with the use of a deadly weapon and by two of the accused under Article 335, that the crime committed is a complex one calling for the imposition, under Article 48 of the penal code,6of the penalty for the most serious offense, in its maximum degree, which in the case at bar, is death for qualified rape (under article 335) rather than the lighter penalty for the lesser offense of robbery with rape (under Article 294, sub-par. 2).
It would defy reason and logic, in the language of Napolis to hold that if aside from robbery, the robbers both commit rape with the use of a deadly weapon, the imposable penalty (under Article 294) shall be much lighter than that imposed for qualified rape (under Article 335). Since the elements of both penal provisions are present, Article 48 should be applied by analogy and the penalty for the most serious crime (of qualified rape rather than robbery with rape) shall be imposed in its maximum — which is death.
Since the facts recited in the information as borne out by the evidence show that the two robbers-rapists, Carandang and Estrella, committed acts that are punishable both by Article 335 (for qualified rape) and by Article 294, sub-paragraph 2 (for robbery with rape), the penalty for the most serious offense of qualified rape i.e. death should be imposed upon them (with the robbery as an aggravating circumstance, just as prior to the amendment on June 20, 1964 of Article 335 by Republic Act No. 4111 making rape the most serious offense and imposing the penalty of death for rape with homicide, rape was considered a mere aggravating circumstance when committed on the occasion of robbery with homicide).
At any rate, even without applying Article 48 on complex crimes (a single act constituting two felonies of robbery with rape and qualified rape) the proven aggravating circumstances of nighttime, dwelling, and ignominy (abuse of superior strength is absorbed in the qualifying circumstance of rape committed by two or more persons) warrant per se and call for the imposition of the penalty for qualified rape (reclusion perpetua to death) in its maximum degree of death. (Parenthetically, it may be noted that robbery with rape like the other felonies of robbery with homicide and robbery with physical injuries defined and penalized in Article 294, sub-paragraphs 1 to 4, are special indivisible crimes and are not the complex crimes covered under Article 48 of the penal code.7
Following the reasoning of Napolis, it is more plausible to hold that Article 294, sub-paragraph 2 (providing for the lesser penalty for robbery with rape) applies only where robbery with simple rape takes place without any of the qualifying circumstances calling for the heavier penalty imposed Article 335 for qualified rape (e.g. reclusion perpetua to death when committed with use of deadly weapon or by two or more persons, and death when the victim has become insane or a homicide is committed on the occasion of the rape).
Viewed otherwise, where robbery with rape is commited, but the rape is qualified by the use of a deadly weapon and is committed by two persons, either of these factors (which the law considers abhorrent and has expressly singled out as warranting imposition of the capital penalty) supplies the controlling qualification, so that the law to apply is Article 335 and not Article 294 of the penal code.
The information duly charged the two accused Carandang and Estrella with having committed with deadly weapons on the occasion of the robbery against the spouses Eugenio Gutierrez and Socorro Familiar, the crime of rape against Socorro. Since it is established doctrine that the real nature of the crime charged is determined not by the title information (robbery with rape) nor by the specification of the provision of the law alleged to have been violated (none was specified in the information at bar) but by the facts recited in the information, the said two accused should be held guilty of the crime of qualified rape and be imposed the capital penalty therefor, under Article 335, paragraph 3, third sub-paragraph of the penal code.
Many are the cases in our jurisprudence where the accused has been convicted for the most serious offense charged and proved against him, rather than for the lesser offense erroneously designated in the information. The courts are the final authority to adjudge what crime has been committed, and the fiscal's erroneous determination is of no binding effect. The late Chief Justice Moran aptly restated the governing principle, thus: "an erroneous classification of an act described in detail in the complaint does not prevent the accused from being declared guilty under a different classification from that made by the fiscal, nor can it affect the sentence that may be entered in the cases. For instance, where an offense is qualified as a lesioner menos graves, but the facts recited in the information and proved at the trial show that the real offense committed is lesiones graves, the accused may be convicted for the latter offense. Likewise, where the prosecuting erroneously qualifies an offense as attempted murder, when by the recitals of the information, the real offense commited is frustrated murder, a judgment of conviction may be rendered upon the latter offense. Again, where the information recites that the defendant slapped the face of the municipal president (an act which constitutes the offense of assault upon a person in authority), but the fiscal wrongfully designates the crime as assault upon a mere agent of authority, the error does not prevent conviction under the true offense."8
Since the Court is however unable to muster the qualified majority required for the imposition of the death penalty upon the two said accused Carandang and Estrella, the lesser and next lower penalty of reclusion perpetua imposed by the lower court upon the said accused and affirmed in the main opinion must stand pro hac vice.9
I concur unqualifiedly with the other portion of the main opinion finding the remaining two accused, Caraan and Buiser, guilty only of simple robbery as found by the lower court and affirming the penalty imposed upon them.7!ᕼdMᗄ7
Barredo, Makasiar and Esguerra, JJ., concur.
Footnotes
1 As amended by Rep. Act No. 4111, approved June 20, 1964.
2 In contrast to accused, Montano Caraan, who as stated in the main opinion, took compassion and heeded her plea for pity and "voluntarily desisted" from violating her.
3 43 SCRA 301 (Feb. 28, 1972).
4 Idem. at p. 312.
5 Idem, at pp. 310-312; emphasis copied.
6 "ART. 48. Penalty for complex crimes. — When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. (As amended by Act No. 4000.)" (Revised Penal Code).
7 Cf. Padilla's Revised Penal Code Anno. 10th Ed. (1972), p. 104.
8 4 Moran's Rules of Court, 1970 Ed., pp. 23-24, and cases cited.
9 Cf. Sec. 9, Rep. Act 296, as amended.
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