GR L 31726; (May, 1974)

SECOND DIVISION

G.R. No. L-31726 May 31, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TOMAS ABALOS and SALVADOR MENDIOLA, accused-appellants.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Rosalie A. de Leon and Solicitor Vicente V. Mendoza for plaintiff-appellee.

AQUINO, J.:

Tomas Abalos and Salvador Mendiola appealed from the decision of the Circuit Criminal Court at Malolos, Bulacan, convicting them of attempted robbery with homicide, sentencing each of them to reclusion perpetua and ordering them to pay solidarily to the heirs of Guillermo Corbe the sum of six thousand pesos and to pay the costs (Criminal Case No. CCC-V-155).

The evidence, particularly the confessions (Exh. E and F), reveals the following facts:

Sometime before midnight of Saturday, July 5, 1969, Tomas Abalos and Cornelio Felicisimo, both twenty-seven years old, Visayans and residents of Valenzuela, Bulacan, drank liquor at the store of a Pampangueño in the Arty Subdivision, Caruhatan, Valenzuela. Later, they fetched Saturnino Galicha, a twenty-nine year old Visayan, a neighbor of Felicisimo. The trio had a drinking spree at an establishment known as D’Royal. After drinking, they went to MacArthur Highway or Rizal Avenue Extension, Malabon near the establishment known as BBB. They waited for Salvador Mendiola, a twenty-year old resident of the Arty Subdivision who worked as a casual laborer on the night-shift in the Cosmos Bottling Company. He was off at one o’clock in the morning of July 6, 1969. It was payday. Mendiola was supposed to pay for the drinks.

The four comrades went to D’Cheers Restaurant, which was near the Cosmos Bottling Company. There they drank beer. After drinking beer, Mendiola hailed a taxi and directed the driver to take them to the Arty Subdivision. Abalos was seated beside the driver. Galicha, Mendiola and Felicisimo were seated at the back.

When the cab reached the Valenzuela market (Versam), Felicisimo and Galicha, who lived nearby, alighted. Mendiola and Abalos directed the driver to enter the subdivision. Abalos signalled Mendiola that they should hold up the driver. Felicisimo and Galicha did not know that the driver would be held up.

As the cab was nearing the house of a Chinese mestizo named Mang Beloy, Abalos drew out a knife (Exh. D) and pointed it at the driver’s neck. At the same time, Mendiola asked for his earnings. He boxed the driver three times on the back. The driver refused to yield his earnings. He made a motion as if he was going to fight back. Abalos, infuriated by the driver’s obstinacy and belligerency stabbed him in the right cheek with his knife whose double blade is seven and one-half inches long and whose steel handle is four inches long. The knife had been in Abalos’ possession for about three years. It was given to him by a man named Bert who used to reside at Sampaloc, Manila and who had gone to the Ilocos provinces. He had used the knife many times in his house.

Unnerved by the wounding of the driver, Abalos and Mendiola forgot to divest him of his earnings. They hastily left the cab. It was the first time that they had tried to hold up a cab driver. They passed the vacant lot near the house of the aforenamed Mang Beloy. Abalos threw the knife on the lot in the course of his headlong flight. The fugitives went to their respective homes. Abalos, in explanation of his misdeed, said:

Lasing ho kami. Wala ho kaming pera na pambayad sa taxi at balak naming holdapin yong taxi, kaya tinutukan ko yong tsuper ng taxi sa leeg. Ngunit umangal at nanlaban ang tsuper ng taxi. Kaya ang ginawa ko ay sinaksak ko.

Later in the morning, Abalos and Mendiola learned that the driver died (See p. 3, Record).

The wounded driver was able to drive his cab at some distance on Mabini Street. He stopped at a place (saklaan) in the subdivision where a gambling game, known as sakla, was being played. By repeatedly blowing his horn, he alerted Carlos Santos, one of the persons playing sakla, that he was in distress. He came out of his Dollar taxicab. He informed Santos that he had been stabbed and wanted to be taken to a hospital. Santos, like a Good Samaritan, took the wheel of the cab. The driver sat on his right. He had a stab wound in the cheek. He was covered with blood.

Santos knows Abalos and Mendiola because, like him, they were residents of the Arty Subdivision. Santos took the driver to the Manila Central University Hospital in Caloocan City. The unfortunate driver died at around three o’clock in morning of July 6th. From his identification card and from information given by his brother Rodolfo Corbe, it was ascertained that he was Guillermo Corbe, thirty-two years old, married, a resident of Sampaloc, Manila, about five feet and eight inches tall (173 centimeters). As shown in the photograph, he had a heavy build (Exh. B). He weighed eighty-three kilos.

He died due to the stab wound in the right lower cheek which penetrated the neck (Exh. A and B-1). The doctor found (a) a linear, reddish abrasion in the zygomatic region, three by two centimeters (Exh. B-1-B); (b) an incised wound in the right zygomatic region one and seven-tenths centimeters long (Exh. B-1-A) and (c) a stab wound in the right digastric region, elliptical in shape, three centimeters long, oriented almost horizontally, with sharp posterior extremity, blunt and contused anterior extremity cleancut edges, directed downward, penetrating the neck, cutting completely the internal carotid artery and vein and the thyroid cartilage (Exh. B-1-C). The victim suffered massive hemorrhage as a result of the stab wound. That precipitated his death.

A hospital employee phoned the Valenzuela police that a holdup victim, a cab driver, was brought to the hospital in a critical condition. Patrolman Jose Salonga was assigned to the case. He rushed to the hospital. Corbe was already dead. Santos accompanied Salonga to the scene of the crime. While there, the aforenamed Mang Beloy apprised Salonga that he (Mang Beloy) had seen two persons passing the vacant lot in the early morning of July 6th and that a knife had been thrown on the lot. Salonga had known Mang Beloy since 1963.

When Salonga saw the knife, he immediately recalled that one night, a month before the incident, while he was on patrol duty in the Arty Subdivision, he had searched Abalos and found that same knife tucked in his waist. He remembered the knife because of the green paint at the end of its handle and the depression showing the welding of the handle to the blade. Salonga did not confiscate the knife because Abalos pleaded with him that he (Abalos) be allowed to retain the weapon, which was allegedly a gift given to him, and because he mentioned persons well-known to Salonga (See page 4 of the record).

Salonga had known Abalos for about three or four years before he found him in possession of that knife. He and other policemen had booked Abalos (Tom) for physical injuries, drunkenness and disorderly behavior. He said that Abalos used to mooch drinks or to bully persons for liquor money. He investigated Abalos in connection with Corbe’s killing. Abalos linked Mendiola.

Having learned that the cab driver died, Abalos and Mendiola instinctively became apprehensive that they would sooner or later be apprehended. They conferred two times in Mendiola’s residence. They evolved the theory that they should make it appear that, from D’Cheers Restaurant, they took a passenger jeepney (not a taxi cab) and alighted at the Valenzuela market and, from that place, they walked to their homes by way of the basketball court. Mendiola said in his confession:

Napagusapan ho namin ang tungkol sa gagawin naming alibi kung sakali at mahuli kami, na kaming apat ay sa jeep sumakay pagkatapos na maginuman sa D’Cheers at doon kami bumaba sa tapat ng Valenzuela market … at kami ay naglakad na lamang papauwi. (Exh. F)

On July 15, 1969, or nine days after the stabbing incident, Sergeant Carlos M. Palomares secured the confessions of Abalos and Mendiola and Galicha’s statement (Exh. C, E and F). The bloodstained knife (Exh. D) was given to him. He caused the letters “JS”, the initials of Patrolman Salonga, to be incised on the handle of the knife. Salonga secured Felicisimo’s statement on September 14, 1969. Felicisimo said that Galicha was his neighbor and drinking companion. He disclosed that, after the stabbing incident, Abalos apprised him that he (Abalos was a suspect. Abalos coached Felicisimo that, should the police question Felicisimo and Galicha, the two should pretend to the police that they were not companions of Abalos and that they had nothing to do with the killing of Corbe. On that occasion, Abalos asked from him twenty centavos. Felicisimo said that he was not investigated by the police right away because he took a vacation in Miagao Iloilo about five days after the incident (Exh. G).

On the basis of the extrajudicial confessions of Abalos and Mendiola and the statements of Salonga and Galicha, which were all sworn to before the municipal judge, the chief of police on July 16, 1969 filed a complaint for robbery with homicide against them. On that same date, Abalos and Mendiola were committed to jail. Judge Teofilo M. Abejo elevated forthwith the record to the Court of First Instance where on September 24, 1969 the Provincial Fiscal filed an information for attempted robbery with homicide against Abalos and Mendiola.

As already stated, the trial court convicted appellants Abalos and Mendiola of attempted robbery with homicide.

The salient issue is whether appellant’s extrajudicial confessions, which they repudiated during the trial, were voluntary. According to the confessions, Abalos, Mendiola, Felicisimo, and Galicha rode in Corbe’s taxicab in going to Valenzuela. Felicisimo and Galicha alighted at the Valenzuela market and then the cab proceeded to the Arty Subdivision where Abalos and Mendiola assaulted Corbe while trying to rob him.

On the other hand, during the trial the appellants, abjuring their confessions, testified that they took a jeepney in going to the Arty Subdivision and that all of them alighted at the Valenzuela market. Galicha and Felicisimo walked to their respective homes. Abalos and Mendiola decided to go to the gambling den. It was while they were going to the saklaan game that they learned from two persons named Goying and Gorio that a taxicab was held up.

Abalos’ appeal. — To prove that his confession was not voluntary, Abalos testified that on July 15, 1969 he was summoned by the police to the old municipal hall of Polo where he was interrogated and locked in a cell for three hours. He was brought to a certain Police Lieutenant Dolorito who boxed him and shouted: “Why did you kill my cousin?” When he answered that he knew nothing about the killing, he was kicked and maltreated. He was asked to sign a prepared statement. He requested that he be allowed to talk first with his elder brother. His plea was turned down and he was forced to sign the statement. The next day he was taken to the office of the municipal judge who asked him whether he “agreed to everything” that was contained in his statement. He signified his assent because he was forewarned by his guards to answer “yes” to the judge’s questions; otherwise, he would be killed (p. 12, Abalos’ Brief) .

In answer to the questions of the trial court, Abalos admitted that he believed that a municipal judge is more powerful than a policeman, that his confidence in Judge Abejo had “no limit” and that he would consider his mother’s presence “as enough protection” against the policemen. He also admitted that three or four days after he swore to his confession before Judge Abejo his elder brother visited him but he did “not tell him about the maltreatment” (19 t.s.n.).

Jose Abalos, a brother of appellant Tomas Abalos, testified that on July 16, 1969, between four and five o’clock in the afternoon, he visited Tomas at the municipal jail of Valenzuela. Jose claimed that Tomas confided to him that he (Tomas) admitted having killed the cab driver because he could not stand the maltreatment inflicted by the Valenzuela police. Jose noticed swellings on the left cheek and neck of Tomas. His brother recounted that the middle part of his body was painful and that he was kicked and boxed by Lieutenant Dolorito and Corporal Tanfelix. Tomas swore that he did not kill the cab driver.

Jose Abalos complained to the Mayor about the alleged police brutalities. The Mayor said that he would investigate the matter. The next day his mother saw the Mayor. The latter allegedly admitted that it was the practice of the Valenzuela police to torture suspects. The Mayor assured Jose Abalos that Tomas Abalos would not be tortured anymore. Jose Abalos thought of complaining to the Police Commission (Polcom) but his mother opposed that move. She feared that Tomas Abalos might be killed.

On cross-examination, Jose Abalos said that he did not bring a doctor to examine and treat his brother Tomas because he was apprehensive that the latter might be killed by the police. He admitted that when he complained to the Mayor he did not expect the police to kill his brother. Jose admitted that it did not occur to him to request the Mayor to direct the municipal health officer to examine his brother and to summon Dolorito and Tanfelix for a confrontation. He did not request the Mayor to bring out his brother from his cell in order that the Mayor could examine his actual physical condition. He and his brother did not file any complaint against Dolorito and Tanfelix.

The trial court, in disbelieving Abalos’ version that he was tortured, took into consideration the fact that he failed to complain to the municipal judge that he was forced to sign his confession. He could have invoked the assistance of the municipal judge and apprised him of the maltreatment instead of swearing to the truth of his confession. The trial court noted that the confession contains details which the investigators could not have concocted and which must have been spontaneously supplied by Abalos. It further noted that Abalos should have presented as witnesses the persons named Goying and Gorio who allegedly informed Abalos about the holdup. Since Abalos called those persons by their nicknames, they must be his intimates.

Aside from the details mentioned earlier in the narration of facts, Abalos, in his confession, stated that he was born on February 13, 1942 in Maao, Occidental Negros. His parents are the spouses Filomeno J. Abalos and Soledad Cagandaon. He finished high school at the University of Manila. He was jobless. He resided at Pacweld Village, Marulas, Valenzuela. He identified Salvador Mendiola as Ador, Cornelio Felicisimo as Kune and Saturnino Galicha as Turning. He had been acquainted for about one year with Mendiola, his co-accused. When he boarded the taxicab, he had only loose change amounting to less than one peso.

Abalos contends that the knife, Exhibit D, was not the weapon used in stabbing Corbe because the medicolegal officer allegedly testified that the fatal wound was cause by a single-bladed weapon, whereas, Exhibit D is double-bladed. That contention is not borne out by the record. Doctor Plaridel F. Vidal did not categorically affirm that the stab wound was caused by a single-bladed weapon (See 6 tsn November 26, 1969). Even if he so testified, his testimony, in the nature of things, would be inconclusive. It would be conjectural.

Abalos has advanced the theory that Patrolman Salonga was the owner of the knife and that, as an incriminatory machination, he made it appear that it belonged to Abalos so that he (Salonga) could implicate Abalos. A judicious evaluation of the testimonies of Salonga and Sergeant Palomares, who incised the initials “JS” on the knife’s handle, leads to the conclusion that the theory of Abalos is based more on imagination than on solid fact.

Abalos in effect argues that the Valenzuela police used the knife to frame him up. Apart from the denial of Abalos that he owned the knife, there is no evidence proving that Patrolman Salonga acted in bad faith or that official duty was not regularly performed. Why Salonga should resort to the mischievous stratagem of planting evidence against Abalos has not been satisfactorily explained by the latter.

Counsel for appellant Abalos faults the police for their amateurish handling of the knife allegedly used in the killing. It may be conceded that town policemen are not trained and equipped to investigate crimes like the personnel of the Federal or National Bureau of Investigation. But even if that knife had not been produced, the guilt of Abalos could be established by means of his confession. There is no dispute as to the corpus delicti in this case. (See sec. 3, Rule 133, Rules of Court).

After a seculous and careful review of the record, we are convinced that the trial court did not err in finding Abalos guilty of attempted robbery with homicide. He has not successfully impugned the probative value of his confession.

As already noted, he said in his confession that he was intoxicated when he stabbed the cab driver. He and his companions had been drinking continuously sometime before the crime was perpetrated. Intoxication mitigates his liability. It was not habitual nor intentional (Art. 15, Revised Penal Code). The holdup was not the offspring of planning and deliberation. It was a fatal improvisation dictated by an impromptu impulse.

The offense of attempted robbery is punished with reclusion temporal in its maximum period to reclusion perpetua “unless the homicide committed shall deserve a higher penalty” (Art. 297, Revised Penal Code), meaning unless the homicide, a generic term, can be regarded as murder or parricide, a capital offense (People vs. Molijon, 99 Phil. 58; People vs. Morados, 70 Phil. 558).

In the instant case the robbery was attempted because Abalos commenced its commission directly by the overt act of trying to get the earnings of the cab driver by duress but he was not able to consummate it by reason of the driver’s refusal and resistance (Art. 6, Revised Penal Code; People vs. Carunungan, 109 Phil. 534).

The stabbing of the cab driver was homicide. It was not attended by any qualifying circumstance. Since the confession of Abalos should be given effect in its entirety (U.S. vs. Alano, 32 Phil. 381), he is entitled to the mitigating circumstance of intoxication. No aggravating circumstances can be appreciated against him. Nocturnity and the commission of the crime inside a motor vehicle were accidental circumstances which were not purposely sought by him.

Hence, the penalty of reclusion temporal maximum to reclusion perpetua should be imposed in its minimum period whose range is seventeen (17) years, four (4) months and one (1) day to eighteen (18) years and eight (8) months. Abalos is entitled to an indeterminate penalty whose minimum should be taken from prision mayor maximum to reclusion temporal medium (Art. 61[3], Revised Penal Code).

Mendiola’s appeal. — In support of Salvador Mendiola’s contention that his confession was not voluntary, he testified that a few days after the incident, he was taken by policemen to their headquarters. A certain person entered and introduced himself as the trustee who had allegedly killed two persons. He asked Mendiola whether he wanted to be third victim. Mendiola came to know later that that person was Corporal Mario Tanfelix. When he denied to Tanfelix that he was involved in the stabbing, Tanfelix held his head and bumped it against the wall. He was allowed to go home.

According to Mendiola, on July 15, 1969, he went to the municipal building to accompany two Ilocanos who wanted to get a police clearance. Tanfelix saw him and brought him to Lieutenant Dolorito. When Mendiola denied to Dolorito that he had anything to do with the killing of the cab driver, Tanfelix struck him on the left knee and boxed him on the chest and left jaw. After administering those fistic blows, Tanfelix advised Mendiola to fix his clothes so that the chief of police would not notice that he had been maltreated. He was handcuffed and brought to the Family Lane Bowling Alley. There, he was asked to point to Saturnino Galicha. At that time, Galicha was not there. So, Mendiola was brought back to the municipal jail.

In the evening of that day three policemen took him out of his cell and brought him to Dolorito. That police officer asked him why he (Mendiola) killed his nephew or cousin. At the same time, Dolorito boxed him on the chest and abdomen. Five policemen took turns in boxing him like a punching bag. He was taken to a comfort room where he was ordered to remove his upper garment and to kneel. While in a kneeling position, he was kicked in the abdomen and on the back. While being thus maltreated, the policemen asked him to admit the killing but he refused.

Mendiola said that because of his refusal, he was brought to a dark place adjacent to the fire department building. There, he was ordered to remove his clothes. He was completely naked. He was made to stand with his back against the wall. While in that position, he was threatened that if he would not confess, he would be crushed by a jeep. In spite of that threat, he denied complicity in the killing of the cab driver. He was made to sit on a block of ice. Cold water was poured on his body. Not satisfied with that maltreatment and because he did not confess, he was made to lie flat on his abdomen. A block of ice was allegedly rolled on his body.

While in that position, he was informed that Tomas Abalos had already admitted his guilt. Since Mendiola could no longer stand the torture, he admitted his complicity in the killing (pp. 7-8, Mendiola’s brief, 14-17 tsn). He was visited on July 24th by a Polcom investigator. At that time, the swellings and discoloration on his body had disappeared. His sister had given him medicines for the treatment of his injuries.

Remedios Mendiola testified that on July 15th she saw her brother, Salvador, escorted by two policemen to the municipal jail but she was not able to talk with him. On July 17th, she talked with him for five minutes. She brought him food. She noticed that his voice was weak. He was lying down. He was feverish. On July 18th, she saw him again. His left cheek was swollen. He was pale. He bared his chest which had red spots. He told her that he was maltreated by a policeman. She gave him six Cortal tablets and a bottle of Wintergreen to relieve the pain in his aching body.

She asked Salvador why he was maltreated. He replied that he was being forced to confess that he had committed robbery with homicide. He did not divulge the name of the policeman who had maltreated him. Remedios sought the help of a radio commentator named Yabut. They had a dialogue over the radio about the maltreatment suffered by Salvador. She reported the maltreatment to Alfeo Abaro of the Complaint Section, National Bureau of Investigation. She delivered her brother’s complaint to a Mr. Medina who in turn transmitted it to the Polcom. She gave her statement to the Polcom investigator (Exh. 2).

Argus B. Gonzaga, a Polcom investigator, testified that on July 24, 1969 he investigated in the office of the Valenzuela chief of police Mendiola’s complaint that he was maltreated in order to extract his confession. Gonzaga interviewed Mendiola and took down his statement (Exh. 1). The next day he interrogated Remedios Mendiola, the sister of Salvador Mendiola (Exh. 2). On September 12, 1969 one Avelino Angeles appeared before him and gave a statement as to the alleged maltreatment of Mendiola (Exh. 3). Angeles testified that on July 18th he visited Mendiola in jail and noticed the contusions on his chest and left cheek. Mendiola told him that the police manhandled him in order to force him to admit that he committed a certain crime.

Gonzaga said that, upon his request, the municipal health officer of Valenzuela examined Mendiola. “There was no positive finding of injuries.” The Polcom deferred action on the complaint. It was not referred to the Board of Investigators.

The observations already adduced with respect to the confession of Abalos are applicable to Mendiola’s confession. It recites facts and particulars which could not have been fabricated by the police and which must have been willingly supplied by Mendiola. He said in his confession that he was born on February 28, 1949 in Culasi Matnog, Sorsogon, the son of the spouses Eusebio Mendiola and Juana Gardon. His nickname is Ador. He finished high school at the Osias Academy in Matnog. He resided at 1628 Sisa Street, Sampaloc, Manila. He did not know whether Abalos got the driver’s money because he (Mendiola) was in a hurry to get out of the taxicab. Two persons named Roger and Jo-Ann saw him when he entered his apartment on July 6th. Those details, together with other matters already adverted to in the summary of the prosecution’s evidence, invest Mendiola’s confession with a truthful character.

It should be underscored that Abalos and Mendiola did not deny that they were together in the Arty Subdivision in the early morning of July 6, 1969 when Corbe was stabbed in his cab in that vicinity (12-13 tsn Dec. 17, 1969; 1 tsn Dec. 15, 1969). What they dispute is their admission in their confessions that they were in Corbe’s taxicab and that they attempted to rob him. They concede the truth of the statement in their confessions that they, together with Galicha and Felicisimo, were in the D’Cheers restaurant at around one o’clock in the morning of July 6th and that they took a vehicle (taxi according to their confessions; jeepney according to their testimonies) in going to the Arty Subdivision, where they allegedly came to know that Corbe was held up.

We hold that the trial court did not err in giving credence to appellant’s confessions. Generally, the admissibility of extrajudicial confessions is necessarily addressed in the first instance to the trial court to determine their voluntariness (People vs. Ramos, 59 Phil. 7).

In People vs. Asas, 70 Phil. 578, 582, the confessions were assailed on the ground that they were extorted by means of threat and violence. In rejecting that contention, this Court noted that the declarants did not complain of any violence when they swore to the truth and voluntariness of their confessions before the justice of the peace. Moreover, as in this case, the recitals of the confessions in the Asas case indicated that the facts surrounding the killing of the victim were voluntarily disclosed due to a desire to tell the truth (See People vs. Flores, 58 Phil. 138).

As to Mendiola’s criminal liability, the Court is convinced that, while his acts show that he had community of design with Abalos to commit robbery, it cannot be concluded with certitude from the record that he approved the act of Abalos in mortally wounding Corbe. He cannot be held liable for homicide (See People vs. Basisten, 47 Phil. 493). Even Abalos himself, who was drunk, had no preconceived design to kill Corbe. In view of the suddenness of Abalos’ assault on Corbe and the fact that it must have been dark inside the taxicab, Mendiola had no chance to prevent the assault. Mendiola was not armed. He merely boxed the cab driver. He must have been disconcerted by the homicidal impulse that prompted his intoxicated companion to inflict a fatal stab wound on the hapless cab driver. The record does not show that Mendiola was drunk. He had imbibed not more than two glasses of beer. He is guilty of attempted robbery only.

WHEREFORE, the trial court’s judgment as to Tomas Abalos is affirmed with the modification that, instead of reclusion perpetua, he is sentenced to an indeterminate penalty of seventeen (17) years as minimum to eighteen (18) years and eight (8) months of reclusion temporal as maximum. The indemnity of P6,000 is raised to P12,000.

The trial court’s judgment as to Salvador Mendiola is set aside. He is found guilty of attempted robbery only and sentenced to four months of arresto mayor (Arts. 51 and 294[5], Revised Penal Code). Costs againsts the appellants.

SO ORDERED.

Zaldivar (Chairman), Barredo and Fernandez, JJ., concur.

Batas Pinas