SECOND DIVISION
[ G.R. No. 105316, September 21, 1995 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RENE LAMSING Y JABON, ACCUSED-APPELLANT.
D E C I S I O N
MENDOZA, J.:
This is an appeal from the decision rendered on March 30, 1992 by the Regional Trial Court, Branch 88, Quezon City, in Criminal Case No. Q-89-8161, finding accused-appellant guilty of the special complex crime of robbery with homicide and sentencing him
accordingly.[1]
The case arose from the killing in the early hours of November 1, 1989 of Winnie Cabunilas, a security guard, while on duty at the construction site of a Synergy building on Aurora Boulevard, Cubao, Quezon City.
Four days after the killing, accused-appellant was arrested by policemen, while in a drinking spree with friends at a basketball court near the scene of the crime. He was detained and, in a police lineup, was identified by witnesses as one of those responsible for the death of Winnie Cabunilas.
On November 9, 1989, an information was filed against him and a John Doe for the special complex crime of robbery with homicide.
Upon being arraigned, accused-appellant pleaded not guilty. As the other accused was at large, trial proceeded against accused-appellant alone.
The prosecution evidence is as follows:
Winnie Cabunilas, a security guard employed by Allen Security & Investigation Agency, Inc., was assigned to the construction site of a Synergy building on Aurora Boulevard, Cubao, Quezon City. He was provided by the agency with a .38 Cal. S & W SN-7485, with six live bullets.[2]
Across the street was a canteen where Elizabeth de los Santos, an 18-year old student working as a dishwasher, was staying. This witness said that at dawn of November 1, 1989, she was roused from her sleep by the cries of a distressed person calling for his "mama". She got up, partly opened the door and saw, at a distance of about one meter, two male persons, one of them holding Winnie Cabunilas and the other one stabbing him. She immediately closed the door and peeped through a hole on it. She noticed a window partly open and watched from it. She identified the person who stabbed Cabunilas as the accused-appellant. From where she was, De los Santos saw accused-appellant stab the security guard with a long pointed weapon ("ice-pick") several times, as another person held the guard's mouth. De los Santos saw accused-appellant holding the gun of the security guard which accused-appellant pointed at two persons who came to the rescue. De los Santos knew Winnie Cabunilas because he had been assigned to the construction site for four days already before the incident. According to the witness, after stabbing Cabunilas, the accused-appellant and his companion fled, bringing Cabunilas' gun with them.[3]
On cross-examination, De los Santos testified that the scene of the crime was an open area with nothing to obstruct her view. She admitted there was no light in front of the door of the canteen or in any other place but claimed that she recognized the protagonists because of the light thrown on them when she opened the door and they "did not move when the light came [out]."[4]
Four other witnesses were presented by the prosecution, namely, Dr. Roberto Garcia of the NBI who conducted an autopsy on Winnie Cabunilas and certified that he had died of hemorrhage;[5] Cpl. Conrado Lara of the Quezon City Police Station, who testified that he learned of the whereabouts of accused-appellant from a telephone caller;[6] Pfc. Restituto de Leon, also of the Quezon City Police, who testified that in a police lineup, two construction workers, Ronald Bon and Artemio Jabaan, and Elizabeth de los Santos identified accused-appellant as one of those who had attacked Winnie Cabunilas;[7] and Daisy Felizer, sister of the victim, who took care of his burial and testified as to the expenses incurred in the internment of the deceased.[8]
Appellant denied involvement in the crime. He claimed that on October 1, 1989, he and his common-law wife stayed at his uncle's house at Butocan St., Area V, Project 2, Quezon City, as he and his uncle had prepared foodstuffs to be sold at the La Loma Cemetery the following day, which was All Saints Day. According to him, he woke up at about 3:30 in the morning of November 1, 1989 and hailed a taxi at Bignay St., an interior road near Aurora Boulevard, and from there he and his uncle went to La Loma North Cemetery where they stayed the whole day selling food. They went home at about 9:00 in the evening. Appellant admitted that he used to sell mangoes and "baluts" in front of Quezon City Medical Center which is very near the construction site of a Synergy building where Winnie Cabunilas was assigned.[9]
Accused-appellant's uncle, Romeo Lamsing, confirmed that accused-appellant had stayed in their house the evening of October 31, 1989 and claimed that it was impossible for accused-appellant to go out that evening because "he was with [him] all the time."[10]
The trial court found the testimony of Elizabeth de los Santos credible even as it rejected accused-appellant's alibi. Hence this appeal.
Accused-appellant assigns two errors as having been allegedly committed by the trial court.
First, accused-appellant faults the trial court for giving credence to the allegedly "incredible and uncorroborat[ed]" testimony of Elizabeth de los Santos to the effect that she had witnessed the perpetration of the crime despite her admission that there was no light in the area. Although she claimed that the place became lighted when she opened the door to see what was going on, accused-appellant contends that she could not have seen the protagonists because the light inside the canteen came from behind her. Accused-appellant contends, moreover, that it was contrary to human behavior for the assailants to have stood in the area "like statues for three (3) minutes," as she described them, instead of immediately running away or attacking her when she opened the door.
The trial court gave full faith and credit to the testimony of Elizabeth de los Santos for the following reasons:
First, the crime charged was committed at a distance less than a meter away from the canteen where she was at that time witnessing the protagonists. Secondly, nothing blocked her vision because there is no wall between the scene of the crime and the space leading to the canteen. Thirdly, prior to the incident in question, she had known Cabunilas already and had seen Lamsing passed by the canteen. Fourthly, Lamsing himself admitted that he had previously frequented the Synergy Construction site where he sells mangoes and "baluts." Undisputed is the fact that said construction site is just fronting the aforementioned canteen where she worked as a stay-in dishwasher. Finally, no evidence was presented by the defense to show that she was motivated by any improper or evil motive to make false imputations against Lamsing. This is a circumstance that enhances her credibility (People vs. Sarmiento, 64 SCRA 350 (1975); De la Paz vs. Inutan, 64 SCRA 540 (1975).
Indeed the record shows that De los Santos knew both the victim, who had been securing the area for four days before he was killed,[11] and accused-appellant, who had been frequently "passing that place together with his companions or barkada."[12] De los Santos was witness to a grisly crime which occurred right in front of the place where she was staying. She had no ulterior motive to tell falsehoods and accuse appellant of serious crime if she did see him committing the crime. Although she did not give a statement to the police, the fact was that she went to the police headquarters with the policemen investigating the crime shortly after the crime, at about 4:00 o'clock in the morning of November 1, 1989. The reason she did not then give a statement was because she was afraid to come out until the accused-appellant could be arrested. She later agreed to testify after the accused-appellant had been arrested.[13]
That Elizabeth De los Santos' testimony was uncorroborated does not make it less worthy of credit. Uncorroborated testimony can stand alone if, as in this case, it is intrinsically credible and there is no showing that it was improperly or maliciously motivated.[14] So long as it is credible and trustworthy and is sufficient to support a finding of guilt, its probative value is not diminished[15] and corroborative testimony of another eyewitness becomes dispensable.[16]
On the other hand, accused-appellant's defense consists merely of alibi which we think was correctly rejected by the trial court. Alibi is the weakest of all defenses because it is easy to fabricate it while it is difficult to disprove it. It cannot prevail over the positive identification by the witness,[17] especially where it is not physically impossible for the accused to be present at the place of the crime or its vicinity at the time of its commission.[18] Positive identification by an independent witness who has not been shown to have any reason or motive to testify falsely must prevail over simple denials and unacceptable alibis of the accused.[19]
In the case at bar, Elizabeth De los Santos admitted that there was no light in the area but she also maintained that light, which came from inside the canteen when she opened the door, illuminated the place where the protagonists were. She opened the door about a foot and a half wide.[20] The light thrown on the protagonists enabled her to witness the crime and identify those involved in its commission. Her proximity (just a meter away) to the protagonists reinforces her claim that she saw the perpetrators of the crime and recognized accused-appellant as one of them.
Much is made of De los Santos' testimony that after she had opened the door, the accused-appellant and his companion stood still "like statues" for about 3 minutes. That she did not really mean they just stood transfixed upon being seen by her is clear from her subsequent statement that "they were moving," after all, with one holding the victim by the mouth while the other (accused-appellant) kept stabbing him.[21] Nor is it improbable that momentarily the assailants were surprised that they were seen.
Appellant also argues that his arrest in a place near the scene of the crime negates his guilt. He contends that since flight is evidence of guilt and of a guilty conscience,[22] then conversely non-flight is an indication of innocence. The argument is untenable. If the contention is correct then all that a criminal must do to profess his innocence would be to remain at or near the place of the crime and declare, when arrested, that he is innocent otherwise he would have fled. The crime may have been committed with impunity and he may have thought that the victim or his heirs would not complain, or that the eyewitness will not be able to identify him.[23] Indeed when the credibility of witnesses is concerned, appellate courts will generally not disturb the findings of the trial court considering that the latter has the singular opportunity to decide the question, having heard the witness herself and observed her deportment and manner of testifying during the trial.[24] Only when certain facts or circumstances of weight and value (which if considered might alter the outcome of the case) have been overlooked, misunderstood or misapplied by the trial court will this Court undertake a review of factual findings of trial courts. Otherwise, such findings will be accorded great weight and respect on appeal.[25]
For his second assignment of error, accused-appellant claims that there is absolutely no evidence to show that robbery preceded the killing or that there was intent to rob.
There is no question that accused-appellant and his companion took the security guard's gun before they fled. This was the unrebutted testimony of Elizabeth de los Santos who said she saw the accused-appellant and his companion taking the gun as they ran away.[26] Considering this, the trial court held accused-appellant guilty of the special complex crime of robbery with homicide.
To begin with, it is immaterial whether robbery preceded the killing in order to find an accused liable for this special complex crime. What is important is that robbery should be the principal felony and the homicide is only complexed with it.[27] To sustain conviction for robbery with homicide, it must be established with certitude that the killing was a mere incident of the robbery, the latter being the main purpose and objective of the criminals and that the killing resulted "by reason or on the occasion" of the robbery.[28] Thus, Art. 294 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:
In the case at bar, even assuming for a moment that the taking of the guard's firearm was for the purpose of gain,[29] it does not appear that it was the principal purpose of the accused-appellant. Their principal purpose was to kill the guard. The taking of the gun was merely an afterthought. While there was violence against person, it was not employed for the purpose of depriving him of the thing taken. Robbery with violence against or intimidation of person requires that the violence or intimidation be employed as means of depriving a person of his personal property.[30]
Instead, as explained in the separate opinion of Mr. Justice Regalado, the accused-appellant should in addition to homicide be held guilty of the separate crime of theft. There is no evidence as to the value of the firearm which, as already stated, is a .38 Cal. Smith and Wesson SN?7485. It is reasonable to place its value, however, to be P500.00 with reference to Art. 309, par. 3 which punishes any person guilty of theft, where the value of the thing stolen is more than P200.00 but does not exceed P6,000.00, with prision correccional in its minimum and medium periods.
Finally, although it is not assigned as error, accused-appellant complains that he was made to join a police lineup where he was identified by three persons, including Elizabeth De los Santos, without the assistance of counsel. It was settled in Gamboa v. Cruz,[31] however, that the right to counsel guaranteed in Art. III, §12(1) of the Constitution does not extend to police lineups because they are not part of custodial investigations. The reason for this is that at that point, the process has not yet shifted from the investigatory to the accusatory. The accused's right to counsel attaches only from the time that adversary judicial proceedings are taken against him.
WHEREFORE, the decision appealed from is MODIFIED by sentencing accused-appellant to an indeterminate penalty of 8 years and 1 day of prision mayor to 14 years, 8 months and 1 day of reclusion temporal, with the corresponding penalties for the crime of homicide and to an indeterminate penalty of 3 months and 11 days of arresto mayor to 1 year, 8 months and 21 days of prision correccional and to indemnify the Allen Security & Investigation Agency, Inc. in the amount of P500.00 for the crime of theft. In all other respects, the decision of the trial court is AFFIRMED.
SO ORDERED.
Narvasa, C.J., (Chairman), and Puno, J., concur.
Regalado, J., see separate opinion.
[1] The dispositive portion of the trial court's decision reads:
WHEREFORE, the Court finds accused Rene Lamsing y Jabon GUILTY beyond reasonable doubt of the crime charged and hereby sentences him to suffer imprisonment for life (RECLUSION PERPETUA). In addition, the same accused is ordered to pay Daisy Fellizer the amount of P10,235.48 as reimbursement of her actual expenses for the funeral and burial of Winnie Cabunilas. Accused Lamsing is also ordered to pay the heirs of Winnie Cabunilas the sum of P50,000.00 by Way of indemnity. With costs against the accused.
SO ORDERED.
[2] Testimony of Solomon Singao, security officer of the Allen Security and Investigation Agency, TSN, pp. 3-4, May 4, 1990; Exhibit F.
[3] Testimony of Elizabeth de los Santos, TSN, pp. 2-3, May 31, 1990.
[4] Id., p. 7.
[5] TSN, p. 3-6, April 18, 1990.
[6] TSN, pp. 4-5, June 14, 1990.
[7] TSN, pp. 3-4, June 15, 1990.
[8] Id., pp. 7-10.
[9] Testimony of accused-appellant, TSN, pp. 3-10, Aug. 3, 1990.
[10] TSN, p. 5, July 27, 1990.
[11] TSN, p. 3, May 31, 1990.
[12] Id., p. 8.
[13] TSN, pp. 8-9, May 31, 1990.
[14] People v. Lorioda, 2117 SCRA 425 (1993).
[15] People v. Flores, 217 SCRA 613 (1993); People v. Donato, 207 SCRA 125 (1992); People v. Catubig, 195 SCRA 505 (1991).
[16] People v. Kyamko, 222 SCRA 183 (1993).
[17] People v. Rosales, 224 SCRA 45 (1993).
[18] People v. Oracoy, 224 SCRA 759 (1993).
[19] People v. Cabuang, 217 SCRA 675 (1993).
[20] TSN, p. 4, May 31, 1990.
[21] TSN, p. 10, May 31, 1990.
[22] United States v. Alegado, 25 Phil. 310 (1913).
[23] People v. Guibao, 217 SCRA 64 (1993).
[24] People v. Adlawan, Jr., 217 SCRA 489 (1993).
[25] People v. de la Torre, 198 SCRA 6663 (1991).
[26] TSN, p. 4, May 31, 1990.
[27] People v. Badilla, 185 SCRA 554 (1990); People v. Robante, 178 SCRA 552 (1989); People v. Repuela, 183 SCRA 244 (1990).
[28] People v. Evardo, 216 SCRA 159 (1992).
[29] See Avecilla v. People, 209 SCRA 466, 474 (1992). (In the absence of any other circumstance negating it the taking of personal property may be presumed to be for the purpose of gain).
[30] REVISED PENAL CODE, ART. 293; People v. Manuel, 44 Phil. 333 (1923).
[31] 162 SCRA 642 (1988).
The case arose from the killing in the early hours of November 1, 1989 of Winnie Cabunilas, a security guard, while on duty at the construction site of a Synergy building on Aurora Boulevard, Cubao, Quezon City.
Four days after the killing, accused-appellant was arrested by policemen, while in a drinking spree with friends at a basketball court near the scene of the crime. He was detained and, in a police lineup, was identified by witnesses as one of those responsible for the death of Winnie Cabunilas.
On November 9, 1989, an information was filed against him and a John Doe for the special complex crime of robbery with homicide.
Upon being arraigned, accused-appellant pleaded not guilty. As the other accused was at large, trial proceeded against accused-appellant alone.
The prosecution evidence is as follows:
Winnie Cabunilas, a security guard employed by Allen Security & Investigation Agency, Inc., was assigned to the construction site of a Synergy building on Aurora Boulevard, Cubao, Quezon City. He was provided by the agency with a .38 Cal. S & W SN-7485, with six live bullets.[2]
Across the street was a canteen where Elizabeth de los Santos, an 18-year old student working as a dishwasher, was staying. This witness said that at dawn of November 1, 1989, she was roused from her sleep by the cries of a distressed person calling for his "mama". She got up, partly opened the door and saw, at a distance of about one meter, two male persons, one of them holding Winnie Cabunilas and the other one stabbing him. She immediately closed the door and peeped through a hole on it. She noticed a window partly open and watched from it. She identified the person who stabbed Cabunilas as the accused-appellant. From where she was, De los Santos saw accused-appellant stab the security guard with a long pointed weapon ("ice-pick") several times, as another person held the guard's mouth. De los Santos saw accused-appellant holding the gun of the security guard which accused-appellant pointed at two persons who came to the rescue. De los Santos knew Winnie Cabunilas because he had been assigned to the construction site for four days already before the incident. According to the witness, after stabbing Cabunilas, the accused-appellant and his companion fled, bringing Cabunilas' gun with them.[3]
On cross-examination, De los Santos testified that the scene of the crime was an open area with nothing to obstruct her view. She admitted there was no light in front of the door of the canteen or in any other place but claimed that she recognized the protagonists because of the light thrown on them when she opened the door and they "did not move when the light came [out]."[4]
Four other witnesses were presented by the prosecution, namely, Dr. Roberto Garcia of the NBI who conducted an autopsy on Winnie Cabunilas and certified that he had died of hemorrhage;[5] Cpl. Conrado Lara of the Quezon City Police Station, who testified that he learned of the whereabouts of accused-appellant from a telephone caller;[6] Pfc. Restituto de Leon, also of the Quezon City Police, who testified that in a police lineup, two construction workers, Ronald Bon and Artemio Jabaan, and Elizabeth de los Santos identified accused-appellant as one of those who had attacked Winnie Cabunilas;[7] and Daisy Felizer, sister of the victim, who took care of his burial and testified as to the expenses incurred in the internment of the deceased.[8]
Appellant denied involvement in the crime. He claimed that on October 1, 1989, he and his common-law wife stayed at his uncle's house at Butocan St., Area V, Project 2, Quezon City, as he and his uncle had prepared foodstuffs to be sold at the La Loma Cemetery the following day, which was All Saints Day. According to him, he woke up at about 3:30 in the morning of November 1, 1989 and hailed a taxi at Bignay St., an interior road near Aurora Boulevard, and from there he and his uncle went to La Loma North Cemetery where they stayed the whole day selling food. They went home at about 9:00 in the evening. Appellant admitted that he used to sell mangoes and "baluts" in front of Quezon City Medical Center which is very near the construction site of a Synergy building where Winnie Cabunilas was assigned.[9]
Accused-appellant's uncle, Romeo Lamsing, confirmed that accused-appellant had stayed in their house the evening of October 31, 1989 and claimed that it was impossible for accused-appellant to go out that evening because "he was with [him] all the time."[10]
The trial court found the testimony of Elizabeth de los Santos credible even as it rejected accused-appellant's alibi. Hence this appeal.
Accused-appellant assigns two errors as having been allegedly committed by the trial court.
First, accused-appellant faults the trial court for giving credence to the allegedly "incredible and uncorroborat[ed]" testimony of Elizabeth de los Santos to the effect that she had witnessed the perpetration of the crime despite her admission that there was no light in the area. Although she claimed that the place became lighted when she opened the door to see what was going on, accused-appellant contends that she could not have seen the protagonists because the light inside the canteen came from behind her. Accused-appellant contends, moreover, that it was contrary to human behavior for the assailants to have stood in the area "like statues for three (3) minutes," as she described them, instead of immediately running away or attacking her when she opened the door.
The trial court gave full faith and credit to the testimony of Elizabeth de los Santos for the following reasons:
First, the crime charged was committed at a distance less than a meter away from the canteen where she was at that time witnessing the protagonists. Secondly, nothing blocked her vision because there is no wall between the scene of the crime and the space leading to the canteen. Thirdly, prior to the incident in question, she had known Cabunilas already and had seen Lamsing passed by the canteen. Fourthly, Lamsing himself admitted that he had previously frequented the Synergy Construction site where he sells mangoes and "baluts." Undisputed is the fact that said construction site is just fronting the aforementioned canteen where she worked as a stay-in dishwasher. Finally, no evidence was presented by the defense to show that she was motivated by any improper or evil motive to make false imputations against Lamsing. This is a circumstance that enhances her credibility (People vs. Sarmiento, 64 SCRA 350 (1975); De la Paz vs. Inutan, 64 SCRA 540 (1975).
Indeed the record shows that De los Santos knew both the victim, who had been securing the area for four days before he was killed,[11] and accused-appellant, who had been frequently "passing that place together with his companions or barkada."[12] De los Santos was witness to a grisly crime which occurred right in front of the place where she was staying. She had no ulterior motive to tell falsehoods and accuse appellant of serious crime if she did see him committing the crime. Although she did not give a statement to the police, the fact was that she went to the police headquarters with the policemen investigating the crime shortly after the crime, at about 4:00 o'clock in the morning of November 1, 1989. The reason she did not then give a statement was because she was afraid to come out until the accused-appellant could be arrested. She later agreed to testify after the accused-appellant had been arrested.[13]
That Elizabeth De los Santos' testimony was uncorroborated does not make it less worthy of credit. Uncorroborated testimony can stand alone if, as in this case, it is intrinsically credible and there is no showing that it was improperly or maliciously motivated.[14] So long as it is credible and trustworthy and is sufficient to support a finding of guilt, its probative value is not diminished[15] and corroborative testimony of another eyewitness becomes dispensable.[16]
On the other hand, accused-appellant's defense consists merely of alibi which we think was correctly rejected by the trial court. Alibi is the weakest of all defenses because it is easy to fabricate it while it is difficult to disprove it. It cannot prevail over the positive identification by the witness,[17] especially where it is not physically impossible for the accused to be present at the place of the crime or its vicinity at the time of its commission.[18] Positive identification by an independent witness who has not been shown to have any reason or motive to testify falsely must prevail over simple denials and unacceptable alibis of the accused.[19]
In the case at bar, Elizabeth De los Santos admitted that there was no light in the area but she also maintained that light, which came from inside the canteen when she opened the door, illuminated the place where the protagonists were. She opened the door about a foot and a half wide.[20] The light thrown on the protagonists enabled her to witness the crime and identify those involved in its commission. Her proximity (just a meter away) to the protagonists reinforces her claim that she saw the perpetrators of the crime and recognized accused-appellant as one of them.
Much is made of De los Santos' testimony that after she had opened the door, the accused-appellant and his companion stood still "like statues" for about 3 minutes. That she did not really mean they just stood transfixed upon being seen by her is clear from her subsequent statement that "they were moving," after all, with one holding the victim by the mouth while the other (accused-appellant) kept stabbing him.[21] Nor is it improbable that momentarily the assailants were surprised that they were seen.
Appellant also argues that his arrest in a place near the scene of the crime negates his guilt. He contends that since flight is evidence of guilt and of a guilty conscience,[22] then conversely non-flight is an indication of innocence. The argument is untenable. If the contention is correct then all that a criminal must do to profess his innocence would be to remain at or near the place of the crime and declare, when arrested, that he is innocent otherwise he would have fled. The crime may have been committed with impunity and he may have thought that the victim or his heirs would not complain, or that the eyewitness will not be able to identify him.[23] Indeed when the credibility of witnesses is concerned, appellate courts will generally not disturb the findings of the trial court considering that the latter has the singular opportunity to decide the question, having heard the witness herself and observed her deportment and manner of testifying during the trial.[24] Only when certain facts or circumstances of weight and value (which if considered might alter the outcome of the case) have been overlooked, misunderstood or misapplied by the trial court will this Court undertake a review of factual findings of trial courts. Otherwise, such findings will be accorded great weight and respect on appeal.[25]
For his second assignment of error, accused-appellant claims that there is absolutely no evidence to show that robbery preceded the killing or that there was intent to rob.
There is no question that accused-appellant and his companion took the security guard's gun before they fled. This was the unrebutted testimony of Elizabeth de los Santos who said she saw the accused-appellant and his companion taking the gun as they ran away.[26] Considering this, the trial court held accused-appellant guilty of the special complex crime of robbery with homicide.
To begin with, it is immaterial whether robbery preceded the killing in order to find an accused liable for this special complex crime. What is important is that robbery should be the principal felony and the homicide is only complexed with it.[27] To sustain conviction for robbery with homicide, it must be established with certitude that the killing was a mere incident of the robbery, the latter being the main purpose and objective of the criminals and that the killing resulted "by reason or on the occasion" of the robbery.[28] Thus, Art. 294 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:
- The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. (Italics supplied) . . .
In the case at bar, even assuming for a moment that the taking of the guard's firearm was for the purpose of gain,[29] it does not appear that it was the principal purpose of the accused-appellant. Their principal purpose was to kill the guard. The taking of the gun was merely an afterthought. While there was violence against person, it was not employed for the purpose of depriving him of the thing taken. Robbery with violence against or intimidation of person requires that the violence or intimidation be employed as means of depriving a person of his personal property.[30]
Instead, as explained in the separate opinion of Mr. Justice Regalado, the accused-appellant should in addition to homicide be held guilty of the separate crime of theft. There is no evidence as to the value of the firearm which, as already stated, is a .38 Cal. Smith and Wesson SN?7485. It is reasonable to place its value, however, to be P500.00 with reference to Art. 309, par. 3 which punishes any person guilty of theft, where the value of the thing stolen is more than P200.00 but does not exceed P6,000.00, with prision correccional in its minimum and medium periods.
Finally, although it is not assigned as error, accused-appellant complains that he was made to join a police lineup where he was identified by three persons, including Elizabeth De los Santos, without the assistance of counsel. It was settled in Gamboa v. Cruz,[31] however, that the right to counsel guaranteed in Art. III, §12(1) of the Constitution does not extend to police lineups because they are not part of custodial investigations. The reason for this is that at that point, the process has not yet shifted from the investigatory to the accusatory. The accused's right to counsel attaches only from the time that adversary judicial proceedings are taken against him.
WHEREFORE, the decision appealed from is MODIFIED by sentencing accused-appellant to an indeterminate penalty of 8 years and 1 day of prision mayor to 14 years, 8 months and 1 day of reclusion temporal, with the corresponding penalties for the crime of homicide and to an indeterminate penalty of 3 months and 11 days of arresto mayor to 1 year, 8 months and 21 days of prision correccional and to indemnify the Allen Security & Investigation Agency, Inc. in the amount of P500.00 for the crime of theft. In all other respects, the decision of the trial court is AFFIRMED.
SO ORDERED.
Narvasa, C.J., (Chairman), and Puno, J., concur.
Regalado, J., see separate opinion.
[1] The dispositive portion of the trial court's decision reads:
WHEREFORE, the Court finds accused Rene Lamsing y Jabon GUILTY beyond reasonable doubt of the crime charged and hereby sentences him to suffer imprisonment for life (RECLUSION PERPETUA). In addition, the same accused is ordered to pay Daisy Fellizer the amount of P10,235.48 as reimbursement of her actual expenses for the funeral and burial of Winnie Cabunilas. Accused Lamsing is also ordered to pay the heirs of Winnie Cabunilas the sum of P50,000.00 by Way of indemnity. With costs against the accused.
SO ORDERED.
[2] Testimony of Solomon Singao, security officer of the Allen Security and Investigation Agency, TSN, pp. 3-4, May 4, 1990; Exhibit F.
[3] Testimony of Elizabeth de los Santos, TSN, pp. 2-3, May 31, 1990.
[4] Id., p. 7.
[5] TSN, p. 3-6, April 18, 1990.
[6] TSN, pp. 4-5, June 14, 1990.
[7] TSN, pp. 3-4, June 15, 1990.
[8] Id., pp. 7-10.
[9] Testimony of accused-appellant, TSN, pp. 3-10, Aug. 3, 1990.
[10] TSN, p. 5, July 27, 1990.
[11] TSN, p. 3, May 31, 1990.
[12] Id., p. 8.
[13] TSN, pp. 8-9, May 31, 1990.
[14] People v. Lorioda, 2117 SCRA 425 (1993).
[15] People v. Flores, 217 SCRA 613 (1993); People v. Donato, 207 SCRA 125 (1992); People v. Catubig, 195 SCRA 505 (1991).
[16] People v. Kyamko, 222 SCRA 183 (1993).
[17] People v. Rosales, 224 SCRA 45 (1993).
[18] People v. Oracoy, 224 SCRA 759 (1993).
[19] People v. Cabuang, 217 SCRA 675 (1993).
[20] TSN, p. 4, May 31, 1990.
[21] TSN, p. 10, May 31, 1990.
[22] United States v. Alegado, 25 Phil. 310 (1913).
[23] People v. Guibao, 217 SCRA 64 (1993).
[24] People v. Adlawan, Jr., 217 SCRA 489 (1993).
[25] People v. de la Torre, 198 SCRA 6663 (1991).
[26] TSN, p. 4, May 31, 1990.
[27] People v. Badilla, 185 SCRA 554 (1990); People v. Robante, 178 SCRA 552 (1989); People v. Repuela, 183 SCRA 244 (1990).
[28] People v. Evardo, 216 SCRA 159 (1992).
[29] See Avecilla v. People, 209 SCRA 466, 474 (1992). (In the absence of any other circumstance negating it the taking of personal property may be presumed to be for the purpose of gain).
[30] REVISED PENAL CODE, ART. 293; People v. Manuel, 44 Phil. 333 (1923).
[31] 162 SCRA 642 (1988).