GR L 8138; (November, 1912)

EN BANC

G.R. No. L-8138; November 19, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
JUAN MORADA, ET AL., defendants.
GIL REVILLA and ISIDRO BARBANO, appellants.

Claudio Gabriel, for appellants.
Attorney-General Villamor, for appellee.

ARELLANO, C.J.:

The subject matter of this case is robbery in a dwelling with force upon things, but without evidence against persons. The force consisted in breaking down the wall of the kitchen so that one of the malefactors could get into shop while the others were outside. It was Juan Morada who entered the shop to get, as he did, coin amounting to P20 and various articles such as cans of salmon and sardines, rice, penknives, a razor and comb, all together worth P31.80 and not recovered, excepting some worth P1.17. The owner of the shop, the Chinese Iyong, awoke and caught up a stick, but as he did so some things fell and made a noise, so Morada fled. The Chinese called to his aid Estanislao Cabiguin, but the latter was already watching what was happening and succeeded in seeing Morada and the other defendants, the former in the act of robbery and all afterwards fleeing. They all carried sticks. This took place in the early morning of December 24, 1911.

The next day a penknife, a can of sardines, and another of salmon were found in the possession of Librado Sugcay, who voluntarily confessed to the municipal police sergeant of Mambajao, the scene of the occurrence, and through him the other defendants were soon discovered.

Evidence of alibi having been rejected and proof of conviction being well established, the Court of First Instance of Misamis classified the crime as simple robbery, but found against all the defendants the generic aggravating circumstances of nocturnity and a gang, and a moreover against Juan Morada, Isidro Babano, and Librado Sugcay that of previous conviction, and against Gil Revilla that of vagrancy, sentencing the first three to seven years of presidio mayor, and the latter to six years and one day of the same penalty and all four to the accessories of article 57, restitution of the articles not recovered or indemnity for their value and to payment of a proportional part of the costs.

Isidro Babano and Gil Revilla appealed from this judgment, while Morada and Sugcay submitted to it. Later, Babano withdrew his appeal to this court.

With reference to the facts, no error is alleged that can alter the conclusion of the trial court.

As for the law, the present appeal is only maintained by Gil Revilla, who has been sentenced to six years and one day of presidio mayor, as guilty of robbery with force upon things penalized in paragraph 3 of article 508 of the Penal Code. This paragraph 3 provides that when the malefactors are armed, but the value of the things stolen does not exceed 1,250 pesetas, as in the present case, there shall be imposed the penalty next lower than that imposed in paragraph 1, which is presidio mayor in its medium degree to cadena temporal in its minimum degree. Presidio correctional in its medium degree being next lower than presidio mayor in its minimum degree, according to rule 4 of article 75, it appears that the court imposed the penalty in its maximum degree, because of the twenty-third and fifteenth aggravating circumstances — that is, because the party convicted was a vagabond and had committed the crime at night and in a gang, holding this last circumstance to be merely a generic aggravating one.

It did not think applicable article 509 which penalizes qualified robbery, because, according to its interpretation, the robbery is qualified when it is committed in an uninhabited place and in a gang, these two qualifications concurring, which does not happen in the present case, for it does not appear that the house wherein the robbery was perpetrated was located in an uninhabited place.lawph!l.net

It is true that, under the Penal Code of the Philippines, robbery with force upon things, in order to be qualified, must be committed in an uninhabited place and in a gang; while robbery with violence against persons must be committed in an uninhabited place or in a gang. The Penal Code of Spain says for both cases: “In an uninhabited place and in a gang.” The generic aggravating circumstance is expressed in the same way: “To commit the crime at night or in an uninhabited place and in a gang,” but not so in the Philippine Code, which says: “To commit it at night or in an uninhabited place or in a gang.” But notwithstanding that wording of the Penal Code of Spain, in a judgment of November 6, 1880, the supreme court laid down the principle that if the acts of committing the crime by night or in an uninhabited place and in a gang constitute aggravating circumstances, it cannot be doubted that the three phrases which this clause grammatically contains refer to three different cases with the same legal force, to wit, that either the nighttime or an uninhabited place or a gang was selected for committing the crime. It is quite unreasonable that in robbery with force upon things it be necessary, in order to be qualified, that it be committed in an uninhabited place and in a gang together, and that for robbery with violence against persons it be sufficient that it be committed in an uninhabited place or in a gang separately.

In the present case this interpretation tending to establish a precedent is practically of no importance, on the supposition that article 509 provides that the penalty should be imposed in its maximum degree for qualified robbery, since the maximum degree (six years and one day) has been imposed upon the appellant Gil Revilla, although as guilty as simple robbery with three aggravating circumstances — nocturnity, gang, and vagrancy.

What this court thinks improper is that he punished, according to the opinion of the prosecution in this instance, with ten years of presidio mayor under No. 5 of article 503, in connection with articles 504 and 505, because it is evidently not a question of robbery with violence against persons to which No. 5 of article 503 refers.

The judgment appealed from is affirmed, with the costs of this instance against the appellant Gil Revilla, except the proportional part of the costs corresponding to Isidoro A. Babano, according to the provision of this court of September 12, 1912.

Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

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