Defendant-appellant Eugenio Olaes, together with Cosme Isip and  Bienvenido Dayuta, who where then at large and five other men, unidentified and also  at large, were accused of the crime of attempted robbery with homicide and frustrated homicide before the Court of First Instance of Rizal. Olaes was the only one who stood trial, after which he was found guilty of robbery with homicide and frustrated homicide and sentenced as follows:

"WHEREFORE, the accused Eugenio  Olaes is hereby declared guilty of robbery with homicide and frustrated  homicide defined and penalized in Article 294, Case  No. 1, Revised Penal Code.  Although the crime was attended by  the aggravating circumstances of nocturnity and in band, in  view of the attitude of the Chief Executive on death penalty,  the accused is hereby sentenced to life imprisonment, to indemnify the heirs of Maria Argame in  the sum of P6,000 without subsidiary imprisonment  in case  of insolvency, and to pay the costs.  In the service of his sentence, the accused should be credited with one-half of the period of preventive imprisonment suffered by him since  January 24, 1955."

Because of the penalty imposed, the appeal of Olaes was taken directly to this Court.

The facts in this case as established by the evidence and found by the trial court are the following: Between 4:00 and 4:30 a.m. of November  9, 1954, Bus No. 64 of the Laguna Transportation  Company, driven by one Feliciano Limosnero,  with one conductor,  left the  town plaza of Biñan, Laguna,  bound for Manila.   Among the passengers were  Mariano  Inobio,  a resident  of  Bo.  Almanza,  Las Piñas,  Rizal, Maria Argame and Elena Loyola.  When the bus reached  the curve in Bo. Almanza,  Las Piñas, a man later identified by passenger Inobio as Cosme Isip, holding a rifle or carbine, suddenly appeared on the right  side of the road and signalled the bus to stop.   Limosnero, taking him for  a prospective passenger, applied his brakes  and slowed down, but before the  vehicle could come to  a complete stop, seven other men,  also  carrying guns, such as, garands  or  carbines,  emerged from the left  side  of the road.   Isip  shouted,  "Para, pasok!"  The  appearance of these armed men on both sides  of the road must  have affected the  equanimity  of Limosnero  on the  wheel,  and he must  have forgotten to press the clutch with his foot, resulting in  the  engine stalling or  stopping.  Probably convinced that the eight men were  net passengers but were  bent  on holding-up the bus  and robbing the passengers, Limosnero started the engine  and sped away from the place despite the shouts of the men on both sides of the road for him to stop.   Those men immediately commenced firing at the bus  which was riddled with bullets.

One of the shots grazed the head of Limosnero.   Another shot hit passenger Maria Argame  on the back, the slug penetrating the abdominal wall and entering the abdominal cavity.  Still another shot  struck passenger Elena Loyola on the shoulder, fracturing her right clavicle.  When the bus was out of range of the guns of the eight men  on the road and they had ceased firing, passenger Inobio on rising from his prone position in the bus, saw driver Limosnero's wound on the head, which was bleeding profusely, the blood dimming his vision,  and so he took over the wheel.  On reaching Zapote,  an  inspector of the  Laguna Transportation  Company took over the wheel from Inobio and drove the bus straight to  the  Las Pinas  Municipal Building where the incident and shooting was reported to the police. Thereafter, the same  bus, with  a  police officer, drove straight to Manila and to the Philippine General Hospital. Maria Argame was pronounced dead on arrival.  The fracture of  the right clavicle of Elena  Loyola necessitated an operation,  which  was performed, and she was confined  in the hospital  for about twenty days, after which she was discharged, though she was not  completely  recovered,  to continue treatment at home.  The expert testimony  on her condition is that if she had not been given prompt medical attention, she would have  died from  her wound.   Driver Limosnero  was treated at the same hospital for his head would and was released, but treatment was  continued by the bus company for about a month.

During the trial, passenger Inobio,  star witness for the Government, told the court that he clearly  identified the person standing on the right side of the road, who signalled the bus to stop and who cried out "Para, pasok!" as Cosme Isip.  Inobio also  said  that among the seven armed men who emerged from the left side of the road and who fired at the bus when  it sped away, he saw and clearly identified defendant-appellant Olaes, because he is a barriomate, both of them being residents  of Bo. Almanza, Las  Piñas and that Olaes was then  carrying  a  gun, either a garand or a carbine.

Appellant Olaes at the trial insisted that he  was not in the group of men that supposedly tried to hold  up the bus, much less was he seen by Inobio because in the course of the investigation made by  the municipal  police  and the Philippine  Constabulary, on two  occasions when he  was present, and while Inobio  was making statements to the authorities,  Inobio never mentioned  his  name much less pointed  to him.   The evidence, however, shows that the failure  of Inobio to point to appellant as one of the supposed hold-uppers and who stopped  the  bus was because of fear  of reprisal, believing that Olaes  was a dangerous character.  Appellant also tried to  establish a motive or reason for Inobio's accusing him.   We quote with favor the pertinent portions of the decision of the trial court on this point:

"He (Olaes) further averred that a poljeeman from  Las  Pinas investigated the holdup at  7:30 o'clock in the morning  of November 9; that during the questioning of Inobio, Inobio never implicated him, although  he was present for some twenty  minutes; that at around 1:00 p.m. while on his way home, he met  a PC team  investigating the crime headed by then Lt. Ver, whom  he led to  the house of Mariano  Inobio; that in the course of the questioning of Inobio which lasted for about half an liour, Inobio never made mention of his (accused's) name and told the PC that he did not  recognize the persons who attempted to waylay the bus and hold-up its passengers. When asked for a possible motive why Inobio should testify against him the way he did, the accused narrated that in May, 1954, he tried to pacify and separate Inobio and Dayuta who were quarreling; that as Inobio struggled against him, he encircled Inobio's neck with the arm; that  Inobio  resented this and  accused him  of siding with Dayuta;  that shortly, Inobio left muttering, "Your day of reckoning will come; you will  pay for this"; that from that time on, he  and Inobio had strained relations.

"*        *        *        *        *         *        *

"Much stress is laid on Inobio's failure  to pinpoint Olaes during the investigation conducted by Lt.  Ver of  the PC at 2:00 p.m., November  9, 1954.  But as explained  by  Inobio, he did not point to Olaes  who was there present as he was afraid of reprisal against himself and members of his family.   Indeed, two hours later,  and feeling secure in the municipal building, he  revealed the names of Eugenio  Olaes, Bienvenido Dayuta and Cosme Isip  to  the  chief of police of Las Piñas.

"Moreover, PC Capt. Ver testifying on rebuttal declared that when he  questioned Inobio in his house, in the presence of Olaes, Inobio appeared nervous; that he took him upstairs and during the  interrogation, a PC detachment commander investigating the same offense came  and advised him  (Ver)  that Inobio  already  revealed to  him that morning that Olaes was among the hold-uppers;  that at  this juncture, Inobio informed him  (Ver) that that man was his guide and companion who remained  downstairs; that when they looked at  the place  where they had left  Olaes, the  latter was  nowhere to be found, having slipped away  unnoticed."

Defendant-appellant also  interposed the defense of  alibi. We also reproduce that portion of the decision of the trial court on this point.

"The defense  of  alibi must  be  clearly and  satisfactorily proven (People vs. Limbo, 49 Phil., 94).  The testimony of the  accused that he slept in the house of his father or brother on the night of November 8 does not preclude the possibility that he woke  up at, say 3:00 or  4:00  o'clock  in  the  early morning  of the  next  day and joined the band of armed men who at 4; 30 were frustrated in their nefarious  plan to waylay the  bus  and rob its passengers,  considering the fact  that the houses of his father  and.brother  are situated in the same barrio  where  the crime  was committed  (See People vs. Palamos, 49 Phil., 601).  Moreover, the father and/or brother of the accused were available to him  at  all times to  testify in his behalf and corroborate his alibi that he slept in his house that night.  This was not  done and no plausible  explanation given why these corroborative  witnesses were not presented  (People  vs.  Pili, 52  Phil., 965),"

After a careful study of the  case, we fully agree with the trial court that defendant Eugenio  Olaes  is  guilty. However, it will be remembered that the charge against him was for attempted robbery  with homicide and frustrated homicide.  Under this charge, as the Solicitor General well said,  he may not be convicted  of consummated robbery with homicide as  the trial  court did.   Moreover,  we agree with  the prosecution that  inasmuch as no overt  acts pointing to robbery or even an attempt thereof have  been  established, the  killing of one passenger and the  wounding of two others should be considered as plain murder, frustrated  murder, and physical injuries respectively.  

The trial court  found  that  the   aggravating  circumstances of nocturnity and in band, there being more than three armed men in the group of malefactors, attended the commission of the crimes.   The aggravating circumstance of in band may be considered to qualify the act of killing of Maria as murder, and the wounding of Elena as frustrated murder.   The evidence for the defense  was to the effect that appellant surrendered to the authorities when  he  found out  that he was wanted  by the constabulary. This was not refuted by the prosecution and so, it can be regarded as  a  fact.   This mitigating circumstance will compensate the other aggravating circumstance of nocturnity.   The penalty for murder which, is reclusion temporal in its  maximum degree to death, should therefore be imposed in  its medium period, namely  reclusion perpetua, so that in the result, we agree with the trial court as to the penalty imposed by it.

However,  we disagree with the lower court as to the reason given by it in imposing the penalty in its medium degree, namely, that "although the crime  was attended by the aggravating circumstances of nocturnity and in band, in view of the attitude of the Chief Executive on death penalty", the accused was sentenced  only  to life imprisonment.  Without attempting, even desiring to ascertain the veracity  or trueness of the alleged  attitude of the. Chief Executive on the application of the death  penalty,  the courts of the land will interpret and apply the laws as they find them on the  statute books,  regardless of the manner their judgments  are executed  and. implemented  by the executive department.  By doing so, the courts will have complied with their  solemn duty  to administer  justice. Until the Legislature sees fit to repeal or modify the imposition of  the extreme penalty, the courts will continue to impose the same when the facts  and circumstances in a case so warrant.

For the crime of frustrated murder, appellant is hereby sentenced to not less than six (6) years of prision correctional and not more than fourteen  (14)  years of reclusion temporal, with the accessories of the  law.

As to the physical injuries, the evidence shows that the period within which the injuries on the head of Limosnero were treated was  less than 30 days, for which reason, the offense as  to  him should be considered as less  serious physical injuries.   For this, appellant is hereby sentenced to three (3) months of arresto mayor.

In view of the  foregoing, with the modifications above indicated, the  appealed decision  is hereby affirmed, with costs.

Paras, C. J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, and Endencia,  JJ., concur.