GR 4487; (September, 1908)

EN BANC

G.R. No. 4487:September 7, 1908

THE UNITED STATES, plaintiff-appellee,

vs.
ALFONSO MELEGRITO, ET AL., defendants-appellants.

Eusebio Orense for appellants.
Attorney-General Araneta for appellee.

CARSON, J.:

The accused were charged with the crime of robbery in an armed gang (robo en cuadrilla) on the following complaint;

The undersigned charges Alfonso Melegrito and Catalino Melegrito with the crime of robbery in a gang, committed as follows: That between 10 and 11 p.m. of the 15th of March, 1907, in the barrio of Mabanengbeng, pueblo Baclotan province of La Union, the said accused, accompanied by two unknown men, willfully, illegally, and feloniously, and with arms entered the dwelling of one Teodoro Dacanay and, with intent to profiting thereby and by means of violence and intimidation, took possession of personal property of said Teodoro Dacanay< of the total value of 1,028 pesetas; the commission of the crime in marked by “gravity manifestly unnecesary for its execution.” The said did constitutes the crime punished by paragraph 4 of article 503 of the Penal Code, and was committed within the jurisdiction of the Court of First Instance and against statute.

The evidence of record conclusively establishes the guilt of the accused of the crime of robbery, as charged, in so far as it is alleged that it was committed en cuadrilla, and that the robbery was attended with violence or intimidation, manifestly unnecesary for its execution.

The only questions raised by counsel of the appellants is as to the accuracy of their identification by the witnesses for the prosecution. Upon this point the trial judge held that “that the two accused were clearly and positively identified at the time of their arrest by Agapita Lagao, who is a very intelligent woman, and her daughter, a young girl in whose testimony the court had the utmost faith. There is not the least doubt in the mind of court of the identity of the accused nor of their guilt.” We think that this finding must be sustained.

The evidence in support of the allegation of the crime was committed en cuadrilla consists of proof that the true appellants being armed, entered the house of Teodoro Dacanay, living several companions outside, and that one of their companions drove bolo through the floor of the house. None of their companions were seen by the witnesses. While it appears, therefore that at least three of the party were armed, the evidence of record does not disclose that “more than three” of the guilt of the party were armed, as required by the provisions of article 505 of the Penal Code which describes a gang as consisting of more than three armed malefactors united in the robbery.

The only evidence as the violence committed by the accuse was to the effect that they pushed Teodoro Dacanay, the owner of the house, into one corner of the room, and at the same time instructing him at the back with a bolo, causing no wound and making him lie down and cover himself with a blanket or sheet. This is not violence or intimidation of a “gravity manifestly or unnecessary for the execution of the crime,” and was not sufficient to bring it under the provisions of subdivisions 4 of article 503, as alleged in the complaint.

The judgment of the trial court should, therefore, be reversed, and the appellants should be and are hereby convicted of the crime of simple robbery, as defined in subdivision 5 article of 503, and it appearing was marked by the aggravating circumstance of nocturnity and the fact that was committed in the house of the offended person, the penalty should be impose in its maximum degree. (U.S. vs. Marcelo Aquino et al., decided September 8, 1908;¹ U.S. vs. Leyba 8 Phil. Rep., 671; sentencia of the supreme court of Spain, December 24, 1896.) The penalty of nine years of presidio mayor with the accessory penalties prescribed by law imposed by the trial court, is within the limits prescribed for the offense of which the accused are thus convicted, and we therefore imposed upon the appellants the same penalty, if the costs of this instance against the appellants. So ordered.

Arellano, C.J., Torres, Mapa, Willard and Tracey, JJ., concur.

Footnotes

¹ page 244, post.

Batas Pinas