Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-28865 February 28, 1972 NICANOR NAPOLIS, petitioner, vs. COURT OF APPEALS, and THE PEOPLE OF THE PHILIPPINES, respondents. Victor Arichea for petitioner. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Conrado T. Limcaoco for respondents.

CONCEPCION, C.J.:p Appeal taken by Nicanor Napolis from a decision of the Court of Appeals affirming that of the Court of First Instance of Bataan, the dispositive part of which reads as follows: IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby finds the accused Bonifacio Malana, Nicanor Napolis and Apolinario Satimbre guilty beyond reasonable doubt of the crime of robbery in band and sentences Bonifacio Malanaas an accessory after the fact to suffer imprisonment of from six (6) months, arresto mayor, as minimum to six (6) years, prision correccional, as maximum and to indemnify the offended party, Ignacio Peaflor in the sum of P80.00 with subsidiary imprisonment in case of insolvency but not to exceed one-third (1/3)of the principal penalty and the accused Nicanor Napolis and Apolinario Satimbre to suffer imprisonment of from ten (10) years and one (1) day, prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day, reclusion temporal, as maximum, both to indemnify the spouses Ignacio Peaflor and Casimira Lagman in the sum of Two Thousand Five Hundred Fifty-Seven Pesos (P2,557.00) without subsidiary imprisonment in case of insolvency and all three to pay the proportionate part of the costs. The main facts, on which there is no dispute, are set forth in the decision of the Court of Appeals, from which We quote: At about 1:00 o'clock in the early morning of October 1, 1956, Mrs. Casimira Lagman Peaflor , 47-year old wife of Ignacio Peaflor , the owner of a store located at the new highway, Hermosa, Bataan, after answering a minor call of nature, heard the barkings of the dog nearby indicating the presence of strangers around the vicinity. Acting on instinct, she woke up husband Ignacio Peaflor who, after getting his flashlight and .38 caliber revolver, went down the store to take a look. As he approached the door of the store, it suddenly gave way having been forcibly pushed and opened by 4 men, one of them holding and pointing a machinegun. Confronted by this peril, Ignacio Peaflor fired his revolver but missed. Upon receiving from someone a stunning blow on the head, Ignacio fell down but he pretended to be dead. He was hogtied by the men. The fact, however, was that he did not lose consciousness (tsn. 5, I). The men then went up the house. One of the robbers asked Mrs. Casimira L. Peaflor for money saying that they are people from the mountain. Mrs. Casimira L. Peaflor , realizing the danger, took from under the mat the bag containing P2,000.00 in cash and two rings worth P350.00 and delivered them to the robber. Thereupon, that robber opened and ransacked the wardrobe. Then they tied the hands of Mrs. Casimira L. Peaflor and those of her two sons. After telling them to lie down, the robbers covered them with blankets and left. The revolver of Ignacio, valued at P150.00, was taken by the robbers. The spouses thereafter called for help and Councilor Almario, a neighbor, came and untied Ignacio Peaflor . The robbery was reported to the Chief of Police of Hermosa and to the Philippine Constabulary. Chief of Police Delfin Lapid testified that he went to the premises upon receiving the report of Councilor Almario and found owner Ignacio Peaflor with a wound on the head (tsn. 23, I). The wardrobe was ransacked and things scattered around. It appears that the robbers bore a hole on the sidewall of the ground floor of the store and passed through it to gain entrance. According to Chief of Police Delfin Lapid, "they removed the adobe stone and that is the place where they passed through" (tsn. 24, I). In that same morning, policeman Melquiades Samaniego reported seeing suspicious characters passing through a nearby field and when the field was inspected, the authorities were able to locate a greasegun with 5 bullets and a pistol with 3 bullets (tsn. 24, I, testimony of Chief of Police)... It appears that, shortly after the occurrence, a criminal complaint for robbery in band was filed with the Justice of the Peace Court of Hermosa, Bataan. Named as defendants in the complaint, as subsequently amended, were Nicanor Napolis, Bonifacio Malana, Ben de la Cruz, Mauricio Anila, alias Mori, Jose Escabel, alias Pepe, Antonio Bededia, alias Toning, John Doe, alias Sommy Casimiro, Apolinario Satimbre, Paul Doe, et al. Napolis, Malana, Anila and Casimiro having waived their right to a preliminary investigation, the case, insofar as they are concerned, was forwarded to the Court of First Instance of Bataan, where the corresponding information was filed. As subsequently amended, by the inclusion, as

defendants therein, of Antonio Bededia alias Toning, Domingo Flores alias Eko, Ben de la Cruz, Jose Escabel alias Pepe, Apolinario Satimbre, Carlito Veloso and Paul Doe, it is alleged in said information: . That on or about 1:00 o'clock in the early morning of October 1, 1956, in the Municipality of Hermosa, Province of Bataan, Philippines, and within the jurisdiction of this Honorable Court, the herein accused Bonifacio Malana, Nicanor Napolis, Ben de la Cruz, Mauricio Anila, Alias Mori, Jose Escabel, Alias Pepe, Antonio Bededia, alias Toning, John Doe, Alias Sommy Casimiro, Apolinario Satimbre, Carlito Veloso, Domingo Flores, Alias Eko and Paul Doe, by conspiring, confederating and helping one another, with the intent to gain and armed with a Grease Gun, Three (3) caliber .45 pistols and two (2) revolvers, did then and there willfully, unlawfully and feloniously, entered the dwelling of the spouses IGNACIO PEAFLOR and CASIMIRA L. PEAFLOR by boring a hole under the sidewall of the ground floor of the house and once inside, attack, assault and hit Ignacio Peaflor with the handle of the Grease Gun causing him to fall on the ground and rendering him unconscious, tied his hands and feet and then leave him; that the same accused approached Casimira L. Peaflor , threatened her at gun point and demanded money; that the same accused while inside the said house searched and ransacked the place and take and carry away the following cash money and articles belonging to said spouses Ignacio Peaflor and Casimira L. Peaflor , to wit: P2,000.00 in cash, Philippine Currency, One (1) ring (Brillante) valued at P350.00, One (1) licensed Commando Colt Revolver, Serial No. 532132 and One (1) Flashlight, valued at P7.00, to the damage and prejudice of said spouses in the total sum of TWO THOUSAND FIVE HUNDRED FIFTY-SEVEN PESOS, (P2,557.00) Philippine Currency.". At the trial of Malana, Napolis, Satimbre, De la Cruz, Anila, Casimiro and Flores, 1 the evidence for the prosecution consisted of the testimony of the offended parties, Ignacio Peaflor and his wife Casimira Lagman Peaflor , Provincial Fiscal Eleno L. Kahayon, Clerk of Court Pedro Aldea, Deputy Clerk of Court Eulogio C. Mina, Delfin Lapid, the Chief of Police of Hermosa, Bataan, and Lt. Luis Sacramento of the Constabulary and the affidavits, Exhibits A, B and C of defendants Napolis, Satimbre and Malana, respectively, admitting their participation in the commission of the crime charged. Mr. and Mrs. Peaflor testified mainly on the robbery involved in the charge, whereas Fiscal Kahayon narrated the circumstances under which the affidavit Exhibit A was subscribed and sworn to before him by appellant Napolis; Police Chief Lapid and Lt. Sacramento dwelt on the investigations conducted by them and the circumstances under which said defendants made their aforementioned affidavits; and Clerk of Court Pedro Aldea and Deputy Clerk of Court Eulogio C. Mina explained how Exhibits B and C were subscribed and sworn to before them by defendants Satimbre and Malana, respectively. Upon the other hand, Napolis tried to establish an alibi. Testifying in his own defense, he would have Us believe that on October 1, 1956, he was in his house in Olongapo, Zambales, because of a tooth extracted from him by one Dr. Maginas. Defendant Satimbre, in turn, introduced his own testimony and that of his wife Engracia Mendoza. Satimbre claimed to be innocent of the crime charged and said that, although reluctant to sign Exhibit B, he eventually signed thereon, upon the advice of his wife Engracia Mendoza who sought to corroborate him and Mayor Guillermo Arcenas of Hermosa, in order that he may not be implicated in a robbery that took place in Balanga, Bataan, and that he could be sent back to his hometown, Hermosa, Bataan. Before the conclusion of the trial, the court of first instance of Bataan dismissed the case as against defendants Flores, Anila, Casimiro and De la Cruz. In due course, said court convicted Nicanor Napolis, Bonifacio Malana and Apolinario Satimbre, as above indicated. Said defendants appealed to the Court of Appeals which, however, dismissed Malana's appeal, and affirmed the decision of the Court of First Instance, insofar as Napolis and Satimbre are concerned. Satimbre did not appeal from said decision of the Court of Appeals, whereas Napolis alleges that said court has erred . I. In affirming in toto the conviction of petitioner herein, of the crime charged based upon a lurking error of identity. II. In affirming the conviction of petitioner based upon an extra-judicial confession extracted through duress. III. In affirming the decision of the court a quo based upon the evidence on record adduced during the trial. IV. In deciding the case not in accordance with the provision of law and jurisprudence on the matter. Under the first assignment of error, it is urged that appellant has not been sufficiently identified as one of those who perpetrated the crime charged. In support of this contention, it is argued that the identification made by Mrs. Peaflor was due to a picture of appellant taken by Lt. Sacramento from the files of the police in Olongapo, Zambales, and then shown to her, before he (appellant) was apprehended and then brought to her presence for identification. It is thus implied that Mrs. Peaflor identified him in consequence of the suggestion resulting from the picture she had seen before he was taken to her for said purpose. The defense further alleges that she could not have recognized appellant herein, in the evening of the occurrence, because the same was dark, and the flashlight used by the malefactors was then focused downward. Appellant's pretense is, however, devoid of factual basis. The record shows that the authorities were notified immediately after the occurrence; that, soon after, peace officers Police Chief Lapid and PC Lt. Sacramento repaired to the house of Mr. and Mrs. Peaflor and investigated them; that based upon the description given by Mrs. Peaflor , one individual was

apprehended and then presented to Mrs. Peaflor , who said that he was not one of the thieves; that another person subsequently arrested and taken to Mrs. Peaflor was, similarly, exonerated by her; that in the course of the investigation conducted by the Philippine Constabulary, Lt. Sacramento later brought Mrs. Peaflor to the offices of the police force in Olongapo and showed her the pictures of police characters on file therein; that among those pictures, she noticed that of appellant herein, who, she believed, was one of the culprits; and that appellant was, therefore, arrested and brought to Mrs. Peaflor , who positively identified him as one of the malefactors. In other words, Lt. Sacramento did not suggest to Mrs. Peaflor , through the aforementioned picture of appellant, that he was one of the thieves. It was she who told Lt. Sacramento that said picture was that of one of the thieves. Besides, the fact that Mrs. Peaflor readily exonerated the first two suspects, arrested by the authorities, shows that appellant herein would not have been identified by her if she were not reasonably certain about it. Then, again, she had ample opportunity to recognize appellant herein because it was he who demanded money from her and to whom she delivered P2,000 in cash and two (2) rings worth P350; it was, also, he who opened and ransacked her wardrobe; and it was he who tied her hands and those of her two sons. These series of acts, performed in her presence, consumed sufficient time from 10 to 20 minutes to allow her eyesight to be adjusted to existing conditions, and, hence, to recognize some of the robbers. The night was dark; but, there were two flashlights switched on, namely, that of her husband, and the one used by the thieves. Although the latter was, at times, focused downward, it had to be aimed, sometimes, in another direction, particularly when the money and rings were delivered to appellant herein, and when he opened and ransacked the wardrobe of Mrs. Peaflor . Lastly, her testimony was confirmed by other circumstances presently to be mentioned, in connection with the consideration of the other alleged errors pointed out by appellant herein. The second assignment of error is based upon a wrong premise that appellant's conviction was based upon his extrajudicial confession and that the same had been made under duress. Said extra-judicial confession was merely one of the factors considered by His Honor, the trial Judge, and the Court of Appeals in concluding that the evidence for the defense cannot be relied upon and that the witnesses for the prosecution had told the truth. Besides, appellant's confession was not tainted with duress. In this connection, the Court of Appeals had the following to say: . Apart from the reliability of Mrs. Casimira Lagman Peaflor 's identification, we have the extra-judicial confession of appellant Nicanor Napolis, marked Exh. A, subscribed and sworn to by said accused on October 26, 1956, 25 days after the occurrence, before Provincial Fiscal Eleno L. Kahayon, the 64-year old prosecutor who, since July 18, 1946, was the Provincial Fiscal of Bataan up to the present. His testimony shows that he read the confession, Exh. A, to said accused in the Tagalog dialect; asked him whether he understood it to which appellant Napolis answered "yes"; inquired whether he was coerced to which he replied "No"; and then, required him to raise his hand in affirmation which he did (tsn. 14-15, I). Thereupon, appellant Napolis signed the confession in his (Fiscal's) presence. Provincial Fiscal Eleno L. Kahayon further testified that he saw no signs of physical violence on the person of the appellant who appeared normal in his appearance (tsn. 15, I). In this confession, Exh. A, appellant Napolis related that it was co-accused Antonio Bededia (still-at-large) who pointed the greasegun to husband Ignacio Peaflor and who hit him (Peaflor ) on the head and that it was co-accused Ben de la Cruz (whose case was dismissed) who wrested Peaflor 's revolver. For his part, appellant Napolis admitted that it was he who talked to Mrs. Casimira L. Peaflor and it was he who got the money bag. The loot, according to him, was split from which he received a share of P237.00 (Answer to Q. A, Exh. A). Among others, he mentioned appellant Bonifacio Malana as the owner of the greasegun and the one who got Peaflor 's revolver from the hands of coaccused Ben de la Cruz. ... . It may not be amiss to advert to the fact that, on appeal from a decision of the Court of Appeals, the findings of fact made in said decision are final, except . (1) When the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. 2 and that the case at bar does not fall under any of the foregoing exceptions. The third assignment of error is predicated upon the theory that the evidence for the prosecution is contradictory and, hence, unworthy of credence. Counsel for the defense alleges that, whereas Ignacio Peaflor said that the thieves had entered his house by forcing its door open, Mrs. Peaflor testified that their entry was effected through an excavation by the side of the house, and the chief of police affirmed that the malefactors had removed a piece of wood and an adobe stone to get into said house. No such contradictions, however, exist. The house of Mr. and Mrs. Peaflor consisted of two (2) parts, one of which was a store and the other the dwelling proper, adjoining the store, which had a door leading thereto (to the dwelling proper). Mrs. Peaflor testified that the culprits had entered the store by removing an adobe stone from a wall thereof, and this was corroborated by the chief of police, although he added that the malefactors had, also, removed a piece of wood from said wall. Upon the other hand, the testimony of Mr. Peaflor referred to a door, inside the store, leading to the dwelling proper, as distinguished from the store. In the light of the foregoing, and considering that the findings of fact made by the Court of Appeals are supported by those of His Honor, the trial Judge, who had observed the behaviour of the witnesses during the trial, it is clear to Us that the first three (3) assignments of error are untenable.

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 ten (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 Peaflor , 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. Turla, 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. ... . 3 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. 4 Pursuant to the above view, adhered to in previous decision, 5 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. 6 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 7 and applied in U.S. v. Manansala, 8 U.S. v. Turla, 9 People v. Baluyot, 10 Manahan v. People, 11 and People v. Sebastian, 12 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. Thus modified as to the penalty, the decision of the Court of Appeals is hereby affirmed in all other respects, with costs against herein appellant, Nicanor Napolis. It is so ordered. Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur. Makasiar, J., took part.

Footnotes 1 Other defendants were granted a separate trial, whereas still others had not been apprehended as yet. 2 Garcia v. Court of Appeals, L-26490, June 30, 1970, citing Roque v. Buan, et al., L-22459, Oct. 31, 1967; Ramos v. Pepsi Cola Bottling Co., L-22533, Feb. 9, 1967; Hilario, Jr. v. City of Manila, L-19570, Sept. 14, 1967. 3 People v. Sebastian, 85 Phil. 601, 603. See, also, Manahan v. People, 73 Phil. 691; U.S. v. Manansala, 9 Phil. 529, 530; U.S. v. De los Santos, 6 Phil. 411, 412. 4 From twelve (12) years and one (1) day to twenty (20) years of reclusion temporal. 5 People v. Sebastian, 85 Phil. 601; Manahan v. People, 73 Phil. 691; People v. Baluyot, 40 Phil. 89; U.S. v. Turla, 38 Phil. 346; U.S. v. Manansala, 9 Phil. 529; U.S. v. De los Santos, 6 Phil. 411.

6 From four (4) years, two (2) months and one (1) day of prision correccional to ten (10) years of prision mayor. 7 Supra. 8 Supra. 9 Supra. 10 Supra.. 11 Supra. 12 Supra..

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-35354 April 5, 1982 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LIANI ARARAO, defendant-appellant.

CONCEPCION JR., J.: In the evening of February 26, 1970, at Barrio Bansarvil, Municipality of Kapatagan, Lanao del Norte, three persons, armed with daggers, entered through a window of the house of Julia G. Mariquit, caused physical injuries to the 65 years old woman, stole and carried away personal properties. On the occasion of the said robbery two of the malefactors, by the use of force and intimidation, raped Julia G. Mariquit and her 41 years old daughter, Jovencia Tesio. 1 As a result, on March 13, 1970, a complaint was filed against Liani Ararao and two others, John Doe and Richard Doe, for robbery with rape, in the Municipal Court of Kapatagan. 2 An information dated September 21, 1970 was filed by the Provincial Fiscal against Liani Ararao, as follows:
The undersigned provincial Fiscal accuses LIANI ARARAO of the crime of ROBBERY WITH RAPE committed as follows: That on or about the 26th day of February, 1970, in the barrio of Banservil, Municipality of Kapatagan, Province of Lanao del Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with daggers, conspiring together, confederating and mutually helping with other John Doe and Richard Doe who are still atlarge and with intent of gain, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously enter the house of JULIA G. MARIQUIT thru the window and once inside, boxed Julia G. Mariquit, hitting her mouth, held her two hands and pushed her to the floor and choked her neck and told her not to shout and demanded money from her; while accused Liani Ararao met JOVENCIA TESIO and covered her mouth with his right hand and told her not to shout, pointed his dagger towards her; while Richard Doe went inside the room looking for the money after which the said accused took, stole and carried away without the consent and against the will of the owner, the following personal properties belonging to said Julia G. Mariquit, to wit: 1. P280.00 in paper bills, P37.50 in coins with a total of P317.50 in cash; 2. Three (3) Corsican T-shirt worth P22.00 each or a total of P66.00; and

3. Two (2) credentials of a carabao, and on the occasion of the said robbery, the above-named accused by the use of force and intimidation, have sexual intercourse with Julia G. Mariquit and Jovencia Tesio against their will Contrary to and in violation of Art. 294, par. 2 of the Revised Penal Code as amended, with the aggravating circumstances of nighttime, use of superior strength and dwelling of the offended party.

After arraignment, plea of not guilty on March 2, 1971, and trial, 4 the Trial Court, in its Decision dated March 20, 1971, convicted the accused, with dispositive part as follows:
WHEREFORE, this Court finds the accused Liani Ararao GUILTY beyond reasonable doubt of the crime of Robbery with Rape under Article 294, Par. 2, of the Revised Penal Code, with the aggravating circumstances of nighttime and use of superior strength and with no attending mitigating circumstances, and hereby sentences him to suffer a penalty consisting of life. imprisonment (reclusion perpetua). Further, the accused is hereby sentenced to indemnify the offended parties, Julia Mariquit and Jovencia Tesio in the amount of P383.50, the value of the good stolen, for actual damages and the amount of P6,000.00 (P3,000.00 for each of the victims) for moral and exemplary damages. Finally, the accused is hereby sentenced to pay the costs of the proceedings. SO ORDERED.
5

The version of the prosecution is: When Julia Mariquit testified on March 2, 1971 she was sixty-five (65) years old, while her daughter Jovencia Tesio, was forty-one (41) years old. Julia Mariquit was in the "buy and sell" business. Both mother and daughter stayed since 1948, in a one-storey house in Bansarvil, Kapatagan, Lanao del Norte. 6 At night, Jovencia Tesio used to sleep in her room. Julia Mariquit slept on a sofa in the dining room, with a lighted gas lamp beside her throughout the night. That gas lamp was capable of illuminating the dining room and sala of the house, even the room of Jovencia Tesio, when its door was left open.
7

On February 26, 1970, at around eleven in the evening, Julia Mariquit was awakened when the window of their dining room was pushed and opened. Immediately thereafter, three men, each armed with a hunting knife, entered the house through that window. 8 Both occupants of the house did not find it difficult to Identify appellant Liani Ararao because the latter rented and stayed in the very room of Jovencia Tesio, from October, 1969, up to the last day of January, 1970. The other two companions of Ararao were unknown to and not Identified by the two victims. Liani Ararao and one of his companions wore hats on that night, while the other companion had a cloth around his forehead. 9 As soon as the three men were inside the house, appellant Liani Ararao said: "Hala" as if to signal the start of operations. He proceeded straight to the room of Jovencia Tesio. The two companions confronted Julia Mariquit. One of them "boxed" Julia Mariquit on her left cheek, causing a cut wound thereon. 10 Julia was held by the shoulders, pushed down the floor, with a knife pointed at her neck, and asked where she kept her money. 11 Julia told the two that her money was in a box near the place where she slept in the dining room. 12 Upon hearing this, the second companion of Liani Ararao took the box, opened it, and got the money inside, consisting of paper bills, amounting to P280.00 and coins, totalling P37.00. 13 This man went back to Julia Mariquit, who was still pinned down the floor by his companion and complained "Is that the only money you have?" Apparently irked, he stabbed Julia on the left foot. 14 The man who took her money then placed himself on top of Julia Mariquit. He opened her dress, inserted his organ into her vagina and had a "one minute" sexual intercourse with her, leaving his semen inside her vagina, while the other companion held her down the floor. 15 When the two companions of appellant Ararao attacked Julia, Liani Ararao met Jovencia Tesio at the door of her room as she was about to go out and determine the cause of the commotion that woke her up. 16 Ararao held Jovencia by the mouth and pointed a knife at her stomach, stating: "Do not shout because if you do, we will kill you all! " 17 Ararao asked Jovencia to bring him to "the place where the money was kept by her mother." 18

As Jovencia was about to lead Ararao to the dining room where the box containing the money could be found, Ararao pulled Jovencia inside the room. He pushed her down in her bed, tore her panty away, went on top of her, and inserted his organ into her vagina. 19 Jovencia could not do anything but say: "Intawon dili ka ba maluoy" (Please, will you not pity me?) 20 After having sexual intercourse with Jovencia, "which did not take long," appellant Ararao brought Jovencia to the dining room where she saw her mother being abused by one of his companions. 21 Afterwards, the trio ransacked the place, scattered the belongings of the two victims, including "land papers and credentials of the carabao." They took in addition to the money they got from the box, three (3) "Corsican" T-shirts worth P22.00 each, and two certificates of ownership of large cattle. 22 After warning the two victims not to report to anybody or "they will come back and kill them," they left. 23 The trio pretended to be Maranaws and even tried to talk in that language but Julia Mariquit who can speak that language noticed that they spoke Maranaw incorrectly. 24 The next day, February 27, 1970, the two victims were medically examined by Dr. Gregorio Cardona, Municipal Health Officer of Lala, Lanao del Norte. However, only Jovencia Tesio was examined on her private part. 25 Julia Mariquit was treated for a small plain cut wound on the "left angle of her mouth," "two slit wounds over the left wrist," a slit wound "over the dorsal portion of her left hand at the base of the thumb," a "slit wound at the dorsal aspect of the left foot," and "swelling of the left leg." The wounds were caused by a sharp instrument. 26 Julia was further treated for subjective injuries, those not seen by the naked eye: pain over the anterior portion of the neck, pain over the nape, and pain in swallowing. 27 Jovencia Tesio was found to be a virgin because she screamed with pain upon the insertion of a finger into her vagina. There were blood stains over the "left inguinal region of her body, between the thigh and the main trunk", and a fresh "laceration at five o'clock of her vagina. 28 The defense of denial and alibi was interposed by the appellant, supported by his testimony and that of the witnesses Juanito Ohagan, Valeriano Guimbao, and Fortunato Tagalogan, all members of the Barrio Council of Bansarvil, Kapatagan, Lanao del Norte. 29 The alibi claimed by the defense may be summarized as follows:
Ohagan, Guimbao, and Tagalogan testified among other things that on the 3rd week of February, 1970, the Municipal Mayor of Kapatagan called all the members of the Barrio Council of Bansarvil to a conference. They were ordered to form the so-called Carabao Assembly which means that all the carabaos of Bansarvil will be gathered together in one place where the owners and volunteers from the barrio inhabitants will have to watch them at night due to the rampant cattle rustling then going on in the said barrio. Alter the conference these members of the Barrio Council organized the Carabao Assembly. They have observed that Liani Ararao have been one of the active member who always attended the nightly carabao assembly as invisioned by the Municipal Mayor; that on February 26, 1970, when the alleged robbery with rape was committed on the persons of Julia Mariquit and Jovencia Tesio, the accused Liani Ararao could not be one of the three robbers as suspected by the complainants for all the time on that evening he was with the group at the carabao assembly held at the Barrio Chapel about only 40 meters away from the house of said accused. As a matter of fact the accused was the one serving them the coffee and all the time they were telling stories one after the other so they could avoid getting sleepy the whole night. It was only at 5:00 o'clock the following day when they dispersed. When they came to know that the complainants were robbed and raped, they together with the accused went to the house of the alleged victim and inquired as to who robbed and raped them, Jovencia Tesio who was then in the house at the time of their visit told them that they could not Identify the intruders except that one 30 have a long hair and scar on the face. (TSN, Jove pp. 68; Dulay- 2-94).

Appellant's first contention that the prosecution in this case failed to prove the material jurisdictional fact and consequently the trial court erred in exercising jurisdiction over it, 31 is completely devoid of merit. The assault on the two victims was committed at their residence. Clearly that residence was located at Bansarvil, Kapatagan, Lanao del Norte, within the territorial jurisdiction of the Court of First Instance of Lanao del Norte that tried and decided this case. 32 Appellant contends that victim Jovencia Tesio was able to Identify him at the time of the crime through his voice only, by the very testimony of Jovencia. 33 Although in a portion of her testimony,

Jovencia stated that she Identified appellant by his voice, Jovencia also testified that she saw the appellant and that was the reason she Identified him. 34 Appellant also argues that an inconsistency exists between the testimonies of Julia Mariquit and Jovencia Tesio, because while Julia heard Jovencia moan and say "Please, will you not pity me," Jovencia testified that she was not able to talk because when she met the appellant at the door, the latter covered her mouth. Examining the testimonies of both Julia Mariquit and Jovencia Tesio, 35 We find no inconsistency in those versions. Clearly, Jovencia was not able to shout when she met the appellant at the door of her room because the latter "grabbed her mouth." However, Julia heard her daughter Jovencia moan and shout, when the appellant was raping her, and not when Jovencia met the appellant at the door of her room. It is fundamental that an alibi, especially if it is as weak and hardly credible as the present one, cannot stand against the positive Identification made by the victims in this case. Both Julia and her daughter Jovencia had no problem Identifying the appellant because he stayed with the victims as lessee for a time and he entered the house of the victims on the night of February 26, 1970 while it was lighted inside. The two victims were candid in admitting they could not Identify the companions of appellant during that incident because the two were not known to them. Thus, Jovencia Tesio clearly Identified the appellant:
Q. While having opened the door on your way to the comedor, what happened, if any? A. Liani Ararao met me and held my mouth.
36

xxx xxx xxx

Q. Do you keep a lamp in your room during nighttime? A. Only my mother is using a lamp and I am not using a lamp everytime to sleep. Q. So, inside your room in the absence of a lamp, since you do not keep any lamp, it is dark? A. It is not dark, it is very near and the light will also penetrate. Q. Where did the light come from? A. From the dining room, from my mother who was sleeping. Q. Do you want to convey that the light from the lamp in your mother's side reached inside your room? A. Yes, sir, it will reach to the room where I was sleeping.
37

xxx xxx xxx

Q. You met the accused while you were still inside the room or while you were still outside the room? A. The time that I opened the door, Liani Ararao met me right at the door. Q. How did you know that it was Liani Ararao? A. Because there was a lamp light and he met me at the door of my room. Q. Did you actually see his face at its entirety? A. Yes, sir. I saw him because it was lghted.
38

In the same manner, Julia Mariquit positively Identified the appellant, thus:
Q. Could you tell this Honorable Court whether you used light the whole night or not? A. Yes, sir. Q. Is it for the whole night? A. Yes sir, every night. Q. How many gas lamp do you use every night? A. Only one.

Q. And where do you usually place this gas lamp during night time? A. Near me. Q. What is the area practically, if you know that can be lighted by that gas lamp you said? A. Dining room and the sala of my house.
39

xxx xxx xxx

Q. So you have already awakened when the intruders entered the house, did you see personally the said robbers in their entrance? A Yes, sir, I saw them personally. Q. During this incident, did you actually see the faces of these intruders? A I saw personally Liani Ararao and his companions.
40

It is also a fundamental rule, that for alibi to succeed as a defense, it must be clearly established that it was physically impossible for the accused to have been at the scene of the crime when it was committed. In this case, such physical impossibility does not exist. The accused-appellant during that night of February 26,1970, by his own evidence, was within the immediate vicinity of the place where the crime was committed. From the chapel where they were supposed to be guarding carabaos, up to the victim's house is only about 60 meters. From the house of the victims up to the house where appellant Ararao was staying on February 26, 1970, is also about 60 meters. From either place, appellant Ararao could have easily gone to the house of victims on that night. The trial court correctly concluded that the testimonies of the Chief of Police Rafael Balatero and Sergeant Sacaben of the Kapatagan Police Force, to the effect that Julia Mariquit and Jovencia Tesio stated during the investigation of the crime that both did not recognize the three robbers on the night of February 26, 1970, deserve no consideration. Both these police officers admitted that during the alleged investigation, there was nothing reduced to writing. These officers of the law never testified during the preliminary investigation of this case in the Municipal Court of Kapatagan nor in the Provincial Fiscal's Office. Their testimonies before the trial court were attempts to cast doubt on the Identification of the appellant. No proper investigation of this case was conducted by the Chief of Police of Kapatagan. There was negligence, if not intentional wrong committed by the police force of Kapatagan in its failure to investigate this criminal case. The trial court committed no error in that conclusion. 41 On June 1, 1972, the National Bureau of Investigation reported by letter to the Secretary of Justice that the two "John Does" mentioned in this case were arrested and Identified as Dioscoro Pongkol, 27 years old, and Magnesio Pongkol, 44 years old. The two suspects executed affidavits; confessing to the crime and implicated one Gabriel Aqui, 28 years old. But, the latter died on December 5, 1970 at Balaring, Aloran, Misamis Occidental, in an encounter with the P.C. Dioscoro Pongkol, Magnesio Pongkol, and Gabriel Aqui were claimed to be the real perpetrators of the crime, and not Liani Ararao, the appellant in this case. 42 At the instance of the N.B.I., an information for Robbery with Rape was filed against Magnesio and Dioscoro Pongkol, because at that time Gabriel Aqui was at large. That information again implicated appellant Liani Ararao, as it stated that the two Pongkol's "armed with daggers, conspiring together, confederating and mutually helping with Liani Ararao, who was already tried and convicted of the same crime in Criminal Case No. 18, ..., " committed that robbery with rape. 43 That case docketed as Criminal Case No. IV-241, assigned to Branch IV of the C.F.I. of Lanao del Norte, Iligan City, under the same trial Judge in this case, was terminated by an order dated October 18, 1972, acquitting Magnesio and Dioscoro Pongkol. Both accused were acquitted because the victim Julia Mariquit could not Identify the accused during the trial. The extrajudicial confession of the accused were disregarded. 44 In the interest of justice, the Secretary of Justice, in reply to the request for assistance by the wife of appellant Liani Ararao, suggested that in view of the acquittal of the Pongkol's "it may be advisable to suggest to your husband's counsel de oficio to file a motion for new trial with the Supreme Court." 45

No motion for new trial was filed, hence it can be presumed that appellant's counsel has chosen to rely on the merits of his defense in the case pending an appeal before this Court. The positive Identification of the appellant by the two victims who had no reason to falsely implicate him in this case completely demolishes his weak alibi. We consider it unnatural for two old women, one 65 years old and the daughter 41 years old, to voluntarily submit themselves to a shameful public narration of how they were raped on the occasion of a robbery by three men, including the appellant, on February 26, 1970, if it were not true. The appellant and his two companions were so depraved they were not contented with robbing the two helpless old women. They had to inflict physical injuries on Julia Mariquit and then defile both victims, without regard to their ages. The requirements of moral certainty are sufficiently met and no reasonable doubt exists to defy a judgment of conviction. WHEREFORE, and upon recommendation by the Solicitor General, the decision dated March 20, 1972 in Criminal Case No. IV-18 (formerly 62) by the Court of First Instance of Lanao del Norte, Branch IV, Iligan City, is AFFIRMED in toto, with costs against appellant. SO ORDERED. Barredo (Chairman), Abad Santos, and Escolin, JJ., concur.

Separate Opinions

AQUINO, J., concurring: I concur but wish to invite attention to the fact that robbery with rape cases are controversial cases which have been decided by the Banc. They are controversial because, some Justices believe that robbery with rape committed by two or more persons or with the use of a deadly weapon should be penalized as qualified rape under article 335 of the Revised Penal Code. See People vs. Arias, 102 SCRA 303;, People vs. Mabag, 77 O.G. 3870, People vs. Pizzaras L35915, October 30, 1981 and People vs. Boado, 103 SCRA 607. Note, however, that People vs. Caizares, L-32515, September 10, 1981, also a robbery with rape case, was decided by the Second Division. Reclusion perpetua was imposed in that case. DE CASTRO, J., concurring: I concur. Commenting, however, on the separate opinion of Justice Ericta holding that the crime committed is the complex crime of robbery with force upon things and robbery with rape, not simply robbery with rape as held in the main opinion, citing the case of Napolis vs. Court of Appeals, 43 SCRA 301. I believe that the ruling cited applies only when to hold the robbery committed as one with violence against or intimidation of persons would call for a lesser penalty than what should be imposed if We were to hold the robbery as one with force upon things. The reason given in the Napolis case is in order to avoid the illogical proposition that the former is the "graver offense, " but yet punished with a lighter penalty than the latter. But, if the penalty for the robbery is higher when it is categorized as one with violence than when classified as one with force upon things, it is the violence against or intimidation of person that supply the "controlling qualification," as held in earlier cases (U.S. vs. Turla, 38 Phil. 346; U.S. vs. Baluyot, 40 Phil. 89), and the crime would simply be robbery with violence against or intimidation of persons. In the instant case, the crime would be robbery with rape under Art 294, par. 2 of the Revised Penal Code. Personally, I cannot see how there can be a complex crime of robbery with force upon things and robbery with violence against or intimidation of persons when the property stolen constitutes a common element of the two kinds of robbery. It cannot be said that the "single act" of taking the money results in two or more grave or less grave offenses, the taking of the money being generally

posterior to the use of violence or intimidation or illegal entry, two separate acts, followed by the taking of property. I am, therefore, not prepared to apply in this case the Napolis doctrine of complexing robbery with force upon things and robbery with violence against or intimidation of persons where I fail to see a "single act" resulting in two or more grave or less grave offenses within the meaning of Art. 48, defining "complex crimes" of the Revised Penal Code, much less that one offense is a necessary means of committing the other. Hence, my concurrence with the majority opinion that the crime committed is robbery with rape, as defined in Art. 294, paragraph 2 of the Revised Penal Code, but with the additional aggravating circumstance of dwelling, to take into account the illegal entry into the house where the crime was committed. ERICTA JR., J., concurring and dissenting: I agree with the penalty imposed but not with the nature of the crime committed. The information charges the complex crime of robbery with force upon things in an inhabited house defined in Art. 299 of the Revised Penal Code and robbery with rape defined in Art. 294 of the Revised Penal Code. The allegation that the accused did then and there "wilfully, unlawfully and feloniously enter the house of Julia G. Mariquit through the window and once inside ... took, stole and carried away without the consent and against the will of the owner" personal properties valued at more than P300.00 is sufficient to describe robbery with force upon things in an inhabited house; and the further allegation that "on the occasion of said robbery, the above-named accused, by the use of force and intimidation, had sexual intercourse with Julia G. Mariquit and Jovencia Tesio against their will" sufficiently describes robbery with rape. The evidence sufficiently proves the allegations in the information. Hence, the defendant Liani Ararao should be convicted not of the crime of robbery with rape, which is a "single, special and indivisible (not complex)" crime (People vs. Labita (unreported) 99 Phil. 1068; People vs. Moro Sarabi (unreported) 99 Phil. 1070) but of the complex crime of robbery with force upon things under Art. 299 and robbery with rape under Art. 294, paragraph 2, in relation to Art. 48 of the Revised Penal Code (Napolis vs. Court of Appeals, 43 SCRA 301). The resulting penalty, which is the maximum period of the penalty for the more serious offense, namely, robbery with rape, is reclusion perpetua.

Separate Opinions AQUINO, J., concurring: I concur but wish to invite attention to the fact that robbery with rape cases are controversial cases which have been decided by the Banc. They are controversial because, some Justices believe that robbery with rape committed by two or more persons or with the use of a deadly weapon should be penalized as qualified rape under article 335 of the Revised Penal Code. See People vs. Arias, 102 SCRA 303;, People vs. Mabag, 77 O.G. 3870, People vs. Pizzaras L35915, October 30, 1981 and People vs. Boado, 103 SCRA 607. Note, however, that People vs. Caizares, L-32515, September 10, 1981, also a robbery with rape case, was decided by the Second Division. Reclusion perpetua was imposed in that case. DE CASTRO, J., concurring: I concur. Commenting, however, on the separate opinion of Justice Ericta holding that the crime committed is the complex crime of robbery with force upon things and robbery with rape, not simply robbery with rape as held in the main opinion, citing the case of Napolis vs. Court of Appeals, 43 SCRA 301. I believe that the ruling cited applies only when to hold the robbery committed as one with violence against or intimidation of persons would call for a lesser penalty than what should be imposed if We were to hold the robbery as one with force upon things. The reason given in the

Napolis case is in order to avoid the illogical proposition that the former is the "graver offense, " but yet punished with a lighter penalty than the latter. But, if the penalty for the robbery is higher when it is categorized as one with violence than when classified as one with force upon things, it is the violence against or intimidation of person that supply the "controlling qualification," as held in earlier cases (U.S. vs. Turla, 38 Phil. 346; U.S. vs. Baluyot, 40 Phil. 89), and the crime would simply be robbery with violence against or intimidation of persons. In the instant case, the crime would be robbery with rape under Art 294, par. 2 of the Revised Penal Code. Personally, I cannot see how there can be a complex crime of robbery with force upon things and robbery with violence against or intimidation of persons when the property stolen constitutes a common element of the two kinds of robbery. It cannot be said that the "single act" of taking the money results in two or more grave or less grave offenses, the taking of the money being generally posterior to the use of violence or intimidation or illegal entry, two separate acts, followed by the taking of property. I am, therefore, not prepared to apply in this case the Napolis doctrine of complexing robbery with force upon things and robbery with violence against or intimidation of persons where I fail to see a "single act" resulting in two or more grave or less grave offenses within the meaning of Art. 48, defining "complex crimes" of the Revised Penal Code, much less that one offense is a necessary means of committing the other. Hence, my concurrence with the majority opinion that the crime committed is robbery with rape, as defined in Art. 294, paragraph 2 of the Revised Penal Code, but with the additional aggravating circumstance of dwelling, to take into account the illegal entry into the house where the crime was committed. ERICTA, JR., J., concurring and dissenting: I agree with the penalty imposed but not with the nature of the crime committed. The information charges the complex crime of robbery with force upon things in an inhabited house defined in Art. 299 of the Revised Penal Code and robbery with rape defined in Art. 294 of the Revised Penal Code. The allegation that the accused did then and there "wilfully, unlawfully and feloniously enter the house of Julia G. Mariquit through the window and once inside ... took, stole and carried away without the consent and against the will of the owner" personal properties valued at more than P300.00 is sufficient to describe robbery with force upon things in an inhabited house; and the further allegation that "on the occasion of said robbery, the above-named accused, by the use of force and intimidation, had sexual intercourse with Julia G. Mariquit and Jovencia Tesio against their will" sufficiently describes robbery with rape. The evidence sufficiently proves the allegations in the information. Hence, the defendant Liani Ararao should be convicted not of the crime of robbery with rape, which is a "single, special and indivisible (not complex)" crime (People vs. Labita (unreported) 99 Phil. 1068; People vs. Moro Sarabi (unreported) 99 Phil. 1070) but of the complex crime of robbery with force upon things under Art. 299 and robbery with rape under Art. 294, paragraph 2, in relation to Art. 48 of the Revised Penal Code (Napolis vs. Court of Appeals, 43 SCRA 301). The resulting penalty, which is the maximum period of the penalty for the more serious offense, namely, robbery with rape, is reclusion perpetua. Footnotes
1 pp. 22-23, rollo. 2 pp. 2-3, Original Record, Criminal Case No. 62, CFI of Lanao del Norte, Branch IV, Iligan City. 3 p. 29, Original Record. 4 p. 229, Original Record. 5 p. 242, Id. 6 pp. 4, 5, 46-47, t.s.n., March 2, 1971. 7 pp. 32-33, 35-36, 57-58, t.s.n., March 2, 1971. 8 pp. 8-11, t.s.n., March 2, 1971.

9 pp, 6, 27, 29, 31, 38, 42, 56, 69-70, t.s.n., March 2, 1971. 10 pp. 5-6, t.s.n., April 1, 1971; Exhibit "A", p. 9, Record; pp. 12-13, 37, 49, t.s.n., March 2, 1971. 11 pp. 12-13, 37, t.s.n., March 2, 1971. 12 pp. 13, 51, t.s.n., March 2, 1971. 13 pp. 13-14, t.s.n., March 2, 1971, 14 p. 15, t.s.n. March 2, 1971. 15 pp. 15, 17-18, 23-24, t.s.n., March 2, 1971; Exhibit "A", p. 9. Record; pp. 4-6, t.s.n., April 1, 1971. 16 pp. 48-49, t.s.n., March 2, 1971. 17 pp. 50-51, t.s.n., March 2, 1971. 18 p. 51, t.s.n. March 2, 1971. 19 pp. 51-52, t.s.n., March 2, 1971. 20 pp. 35, 52, t.s.n., March 2, 1971. 21 pp. 53-54, t.s.n., March 2, 1971. 22 pp. 16, 54-55, t.s.n., March 2, 1971. 23 p. 24, t.s.n., March 2, 1971. 24 p. 27, t.s.n., March 2, 1971. 25 pp. 2, 4, 12-13, t.s,n., April 1, 1971. 26 Exh. "A", p. 9, Record; pp. 5-7, t.s.n., April 1, 1971. 27 pp. 5, 7-8, t.s.n., April 1, 1971; Exh. "A", p. 9, Record. 28 pp. 11-12, 10-11, t.s.n., April 1, 1971; Exh. "B", p. 10, Record. 29 pp. 20-21, t.s.n., May 24, 1971; p. 6, t.s.n., June 16, 1971; p. 40, t.s.n., June 16, 1971. 30 pp. 5-7, Appellant's Brief. 31 pp. 10-11, Appellant's Brief. 32 pp. 4, 5, 44, 47, 48, t.s.n., March 2, 1971. 33 p. 56, t.s.n., March 2, 1971; pp. 11-12, Appellant's Brief. 34 pp. 49, 57-58, 60, t.s.n., March 2, 1971. 35 pp, 62-63, 65-66, t.s.n., March 2, 1971; p. 52, t.s.n., March 2, 1971. 36 p. 49, t.s.n. March 2, 1971. 37 pp. 57-58, t.s.n., March 2, 1971. 38 p. 60. t.s.n. March 2, 1971. 39 pp. 32-33, t.s.n., March 2, 1971. 40 p. 37, t .s.n. March 2, 1971. 41 pp. 13-14, Decision; pp. 240-241, Original Record. 42 pp. 22-23, Appellee's Brief. 43 pp. 24-25, Appellee's Brief. 44 pp. 26-29, Appellee's Brief. 45 p. 29, Appellee's Brief.