Automatic review of the decision rendered by the Circuit Criminal Court of Rizal in Case No. CCC-VII- 55 (P.C. 8153), finding the accused Celestino Garillo y Orjel alias Celing and Federico Fernandez y Arellano alias  Putol guilty of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of Death; to indemnify the heirs of the offended party the amount of P12,000.00, jointly and severally; and to pay the costs. Celestino Garillo y Orjel alias Celing died in the National Penitentiary at Muntinglupa, Rizal on August 16, 1970 and his appeal was dismissed by the Court December 9, 1970.^[1]

It is of record that Lim Tao Sing was the owner and operator of the Excel Ice Drop Factory located at No. 2504 Taft Avenue, Pasay City. His uncle, Lim Ping Suy, assisted him in the management of said factory. The factory was housed in a two-storey building, the upper floor of which was used by Lim Tao Sing as his sleeping quarters. The ground floor contained the factory equipment and the sleeping quarters of some of the factory workers. Lim Ping Suy resided elsewhere and went to the factory only in the daytime.

In the early evening of October 31, 1968, Lim Tao Sing and Lim Ping Suy counted their money, amounting to P3,200.00 which had been set aside for the operating expenses of the factory, such as wages, house rentals, and light and water bills. They also examined the jewelry, consisting of a necklace, a bracelet, a gold ring, a diamond ring, and other kinds of rings, all valued at P1,800.00, which Lim Ping Suy bought for his nephew and which the latter had intended to send as gifts to his children in China. Afterwards, they put the money and jewelry inside a trunk which Lim Tao Sing kept in his bedroom. Lim Ping Suy then left for home.

In the evening of November 1, 1968, All Saints' Day, Henry Barillo and Alejandro Buco alias  Tangkad, workers in the factory, slept, as usual, on the ground floor of the factory. The room was well lighted with flourescent lamps because the generator of the factory operated for twenty four hours. At about 11:00 o'clock that night, Henry Barillo woke up because he felt that he was being tied up. True enough, Henry Barillo saw his own co-worker at the plant, Tangkad, tying him up, while another person was pointing a gun at him (Barillo). Barillo also saw three more persons, two of whom were armed with knives, emerging from a hole which the culprits made on the plywood wall and then enter the factory. Barillo was ordered to lie face downwards but he saw three men, including Tangkad, go upstairs to the room occupied by Lim Tao Sing. A little later, he heard a shot, followed by the moans of Lim Tao Sing. Soon thereafter, he saw the men coming downstairs. They left the place in a hurry, all of them running.

About an hour later, Barillo saw, through the hole in the wall, one Norberto, an ice drop vendor, whom Barillo requested to call for the police. Two policemen arrived and Barillo was untied. Then Barillo and a policeman went upstairs. They found the room of Lim ransacked and Lim Tao Sing dead and covered with a mosquito net soaked with his own blood. They saw the box, which had contained the money and jewelry, destroyed and emptied of its contents.

The body of the deceased Lim Tao Sing was brought to the NBI morgue for autopsy and the medical examiner reported that Lim Tao Sing died of multiple stab wounds in the body.^[2]

Three persons, Celestino Garillo y Orjel alias Celing, Alejandro Buco y Valdez alias Tangkad, and Federico Fernandez alias  Putol, were arrested and charged with the commission of the crime of Robbery with Homicide. Three other suspects remained at large. Garillo and Fernandez pleaded not guilty while Alejandro Buco y Valdez alias Tangkad entered a plea of guilty and was sentenced by the court to suffer the penalty of reclusion perpetua.^[3]  Garillo and Fernandez were subsequently found guilty of the crime charged and sentenced to suffer the death penalty. Garillo died in prison and his appeal was subsequently dismissed by this Court. Hence, We are concerned only with the case of Fernandez.

No doubt, there was a conspiracy to rob the Excel Ice Drop Factory. Alejandro Buco y Valdez alias  Tangkad admitted that the plan to rob the Chinaman who owns and operates the Excel Ice Drop Factory was hatched up and proposed to him by Gaudencio Garillo alias Gauding, Celestino Garillo alias Celing, Roberto Quinto alias Berto, and Guillermo alias Emot in the morning of November 1, 1968.^[4] The deceased Celestino Garillo y Orjel alias Celing likewise admitted that the plan to rob the said Chinaman was proposed to him by Gauden, Berto and Emot.^[5] The accused Federico Fernandez y Arellano alias  Putol was also aware of the said plan. He denies, however, that he was a co-conspirator, claiming that he was merely told of the plan to rob the ice drop factory; that he was further told by them that if he did not want to go with them in robbing the Chinaman, he should merely keep quiet and they will give him something, to which he answered that it was up to them that he was asked to accompany them in order to act as look-out or guard outside (bantay sa labas) to which he acceded because he was afraid of Alejandro Buco y Valdez alias Tangkad who has a tatoo "Simaron-Oxo" in his hands, but that he left the place when the conspirators started to destroy a portion of the wall of the ice drop factory.^[6]

Counsel de oficio contends that it is obvious from the evidence that the accused Fernandez was not a party to the plan to commit the robbery since he was merely told of the plan and that he never agreed to participate in the commission thereof as shown by his leaving the place when the conspirators started to break the factory's wall preparatory to their entering the premises; and that if Fernandez had made a pretense, in the beginning, of joining the conspirators as a look-out or guard outside, it was because of his fear of displeasing the mastermind, Alejandro Buco alias Tangkad, who was a member of the notorious OXO gang and had a tattoo mark "Simaron-Oxo" in his hands.

The disclaimer of participation in the conspiracy and desistance in the commission thereof is, however, negated by the statement of Fernandez that he fled to Barrio Bicutan, Taguig, Rizal very early in the morning of the next day and thence to Angeles, Pampanga where he stayed in a house together with some of the conspirators. His statement reads, as follows:

 

"t - Iyo bang nalaman kung ano ang nangyari sa binalak o pinagusapan ninyong holdap sa intsik sa loob ng pabrika ng ice drop?  

 

"s - Ang nalaman ko po ay pinatay nila ang intsik, dahil sa huli si Celing (Celestino Garillo) na tumakbo at sinabi sa akin na huag akong maingay at napatay namin ang intsik.  

 

"t - Ng malaman mo ang nangyari, ano ang iyong ginawa?  

 

"s - Kinabukasan ng umagang-umaga nagpunta ako kay Dado (Diosdado Paraiso y Flores, 26, m, lab., add - Bo. Bicutan, Tagig, Rizal), sa kanila sa Bicutan Tagig, Rizal at akin ipinagtapat ang nangyari. Ang ginawa niya ay isinama ako sa Angeles, Pampanga at iniwanan ako ruon para don na ako magtabas ng tubo, dahil panahon ngayon ng tabasan ng tubo.  

 

"t - Magkano ang naparte mo sa holdap na isinagawa ninyo?  

 

"s - Wala po, dahil ng magkita-kita kami ni Berto at Goding sa Angeles, Pampanga at akin tinanong kung ano na ang nangyari ang sabi pa nila sa akin ay walang nakuha dahil pumutok ang baril at napatay ang intsik dahil sa lumaban.  

 

xxx xxx xxx

 

"t - Sino naman ang nagsama kay Goding at Berto sa Angeles, Pampanga?  

 

"s - Si Berto po ang nagsama kay Goding, dahil bayaw ni Dado (Diosdado Paraiso) at meon o kapatid ni Berto ang amin tinutuluyan." (See Exh. M, pp. 78, 79, Orig. Record).

If Fernandez were innocent as he claimed to be, there is no reason for him to run away and hide together with some of the conspirators. "The wicked flee when no one is chasing them. But the godly are bold as lions."^[7]

The evidence thus presented proves conspiracy and that the accused Federico Fernandez not only knew of the plan to rob Lim Tao Sing, but also participated in its commission by previous and simultaneous acts (by acting as look-out or guard outside) which lent to the accomplishment of the criminal intent. Although the said accused may not have foreseen the killing of the victim and did not take part in its execution, he is, nevertheless, guilty of the crime of robbery with homicide. The rule is that when homicide takes place as a consequence of or on occasion of a robbery, all those who took part in the robbery shall be guilty as principals of the crime of robbery with homicide, unless there is proof that they have tried to prevent the killing.^[8] Here, there is nothing in the record which would show that the accused Fernandez ever attempted to prevent the homicide.

The said accused is, therefore, guilty of the crime of robbery with homicide, covered by Article 294, No. 1, of the Revised Penal Code. The trial Court found that the commission of the crime was attended by the aggravating circumstances of nighttime, superior strength, evident premeditation, and treachery.

Evident premeditation, however, is not considered as an aggravating circumstance in crimes of robbery because the same is inherent in the crime, especially where it is committed by various persons since there must be an agreement and the plotters have to meditate and reflect on the manner of carrying out the crime and they have to act coordinately in order to succeed. In the crime of robbery with homicide, there should be evident premeditation to kill, besides stealing, in order that it can be considered as an aggravating circumstance.^[9] In the instant case, it has not been proven that the accused, before committing the crime, planned and decided, not only to steal, but also to kill Lim Tao Sing. Hence, evident premeditation cannot be considered as an aggravating circumstance in this case.

Abuse of superior strength cannot also be appreciated in the instant case in the absence of proof of the relative physical strength of the aggressors and the victim and that the assailants took advantage of their combined strength in order to consummate the offense.^[10]

Treachery is likewise absent in this case since the attack was made upon the impulse of the moment, as a sequence of the unexpected turn of events.^[11] It appears that while Tangkad, Gauden, and Berto were in the second floor, used by Lim Tao Sing as his sleeping quarters, the gun held by Cauden hit a table and misfired. As a result, Lim Tao Sing rose from his bed holding a bolo. So, some of the accused stabbed him.^[12]

But, nocturnity is present since the accused purposely sought the cover of darkness of the night in com-mitting the crime. However, this aggravating circumstance is offset by the mitigating circumstance that appellant suffers some physical defect which thus restricts his means of action, defense, or communication with his fellow beings, to wit: appellant's right hand is missing as a consequence of an accident involving "kuwitis" which occurred on New Year's eve of 1966.^[13]

Premises considered, the judgment imposed upon the accused Fernandez should be reduced to reclusion perpetua.

WHEREFORE, modified as thus indicated the appealed decision is hereby affirmed in all other respects.

SO ORDERED.

Fernando, Barredo, Makasiar, Aquino, Santos, Fernandez, and Guerrero, JJ., concur.

Castro, C.J., concurs in the result.

Teehankee and Antonio, JJ., no part.

Muñoz Palma, J., dissents in a separate opinion.

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^[1] pp. 64, 66-70, rollo.

^[2] Exh. A, p. 53, Original Record

^[3] p. 153, rollo.

^[4] Exh. D, p. 65, Original Record.

^[5] Exh. L, p. 74, Original Record.

^[6] Exh. M, p. 77, Orig. Rec., which reads:

"s - Ganito po iyan. Ako po ay pinuntahan nila sa bahay, dahil sa alam nila na palagi akong istambay sa ice drapan, malapit po ang bahay ko sa ice drapan. Sinabi nila sa akin na huholdapin ang intsik na katiwala sa pabrika ng ice drop. Halagang limang libo (P5,000.00) raw po ang makukuha. Ang sabi nila kung ayaw ko man sumama ay basta huag na lang akong maingay at sila ang bahala. Bibigyan na lang nila ako. Ang sagot ko po sa kanila ay kayo ang bahala. Umalis na sila. Pagkagabihan bumalik po sila sa akin sa bahay mga pagitan nga po ng alas 11 at 12 ng gabi, Nobiembre 1, 1968. Papasukin at huholdapin nga po ang intsik sa loob ng pabrika. Isinama pa ako para bantay sa labas at sila ang papasok.

xxx xxx xxx

"t - Ipagpatuloy mo ang iyong salaysay, tumigil ka sa ikaw ay isinama para bantay sa labas at sila ang papasok.

"s - Opo. Ng sinisira po nila ang dingding ng pabrika ng ice drop, ang ginawa ko po umuwi ako sa bahay namin. Hindi po nagtagal nadinig ko pumutok. Ngayon pagkaraan po ng putok na iyon ay nakita kong nagtakbuhan sila. Sa tabi po ng bahay sila nagdaan. Umakyat sila pader dahil sarado na po ang pinto papuntang Zamora. Hindi ko na po nalaman kung saan sila mga nag punta."

^[7] The Living Bible, p. 733, Proverbs 28:1

^[8] People vs. Carunungan, 109 Phil. 534.

^[9] People vs. Valeriano, 90 Phil. 15.

^[10] Aquino, The Revised Penal Code, 1976 ed., p. 350, 354.

^[11] Id., p. 372, citing People vs. Vente, L-8344, Feb. 28, 1957, 100 Phil. 1099.

^[12] See Exhibit D.

^[13] See Exhibit M, p. 3.

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