GR L 16639; (March, 1921)

EN BANC

G.R. No. L-16639; March 22, 1921

THE UNITED STATES, plaintiff-appellee,

vs.
BASILIO REGUERA (alias Teniente Asir) and ALEJANDRO ASUATEGUI (alias Teniente NANDO), defendants-appellants.¹

Locsin and Ampig for appellants.
Acting Attorney-General Feria for appellee.

VILLAMOR, J.:

The appellant in this case were found guilty of robbery with double homicide and sentenced by the Court of First Instance of the Province of Iloilo each to cadena perpetua, to pay jointly and severally to the heirs of the deceased Josefa Pasaporte the sum of P1,000, to return to Porfirio Guangco, also jointly and severally, the sum of P200 and the jewels robbed or their value of P2,083.50, with the accessories provided by law, and the payment of the costs.

The facts proved in the case are the following: At about 5 p.m. of the 22d day of July, 1919, the accused Basilio Reguera (alias Teniente Asir), and Alejandro Asuategui (Alias Teniente Nando), the first armed with a dagger and the second also with a dagger and a bolo, assaulted the house of Josefa Pasaporte, situated in Calle Pilar, poblacion of the Municipality of Pototan, Province of Iloilo, and upon gaining entrance, closed the doors, and blandishing the weapons they carried, tied the inmates, the aged Josefa Pasaporte and the young people Natalia Peronce (15 years old), her deaf brother Sixto and two children, grandchildren of the first person mentioned, who were Esteban and Corazon Guangco, the latter being 5 years old; and while they were thus tied and the accused Alejandro Asuategui guarded them, the other accused Basilio Reguera, threatening the old woman with death, asked her to give up P200 and as she answered that she had no money, he opened wardrobes, several tampipis and two boxes, Exhibits C and B of the prosecution, and took possession of the jewels they found, such as rings, bracelets, chains, etc. gathering and placing them in the smaller box, which he wrapped with the underwear which he wore upon entering the house and which he took off and changed with a cundiman, that is, a red cloth. At dusk they lighted the lights, a small one in a bottle prepared ad hoc and another bigger light in a lamp used by them as a lamp for outing. At about 6 o’clock Porfirio Guangco, son-in-law of the old woman Pasaporte, arrived, having been absent from the house with his wife Sofia Perenas, daughter of said Pasaporte, Porfirio called his mother-in-law, but instead of her one of the culprits looked out of the window and asked him for money threatening to kill all in the house if his order should be refused. At first he asked P1,000, and as Porfirio answered that he did not have that sum he reduced it to P500, and as Porfirio neither agreed to it, he reduced it to P200, and then Porfirio answered that he would go and look for it. As soon as possible he returned with the P200, wrapped it in a handkerchief, and delivered it to the accused Asir, throwing it to the window. After receiving the money, Reguera told the occupants to light the way as they were going down, warning them that they would kill the old woman and the children should they hear shots. They went down on their way in the following order: In front was the old woman Pasaporte, held by the shoulder by Basilio Reguera (alias Asir), with one hand tied and the other loose and holding the child Corazon; then followed Sixto, the deaf, who carried the lamp already referred to, with one hand tied to that of Natalia Peronce who carried in her arms the child Esteban; behind them came the other accused Alejandro Asuategui (alias Nando) with a drawn dagger in his right hand and the bolo in the left; on the rear about two arms’ length away was Porfirio Guangco accompanied by Donato Parcon who also carried another lamp. They had hardly gone some distance from the house when they heard shots coming from the west thereof and then Asir, who was in front, holding the old woman by the shoulder stabbed her in the abdomen and then the child Corazon in the right collar bone, the wound passing into the breast. And Nando, who was on the rear, also stabbed the child in the left part of the region of the groin. The culprits then took flight. The old woman Josefa Pasaporte and the child Corazon Guangco died on the same night that the event occurred as a result of the wounds.

Upon examining the corpses of the deceased on the same night, Doctor Arancillo found that Josefa Pasaporte had a cut of 1 ? to 2 centimeters wide in the epigastric region, caused by a cutting and pointed instrument, and necessarily mortal; and that the child Corazon received four wounds, the first a cut of 2 ? centimeters long by ? centimeter wide and 18 centimeters deep in the right shoulder blade; the second which is a continuation of the preceding, of 2 centimeters long and ? centimeter wide on the interior edge of the joint of the scapular and the collar bones, both wounds having been caused with a single blow of a cutting instrument, the first being the pint of the entrance and the second the outlet; the third in the right hip, being an almost round wound 8 centimeters deep, caused by a firearm, and the fourth in the left inguinal region, 10 centimeters deep, caused by a pointed and cutting instrument. The first, second, and third wounds, were necessarily mortal, but the first two given with a single blow were more deadly than the third.

Counsel for the accused in this instance, in assigning the errors committed by the trial court, allege: (1) That the lower court erred in finding the accused guilty as principals in the crime in question; and (2) that the accused are entitled to the benefit of a reasonable doubt.

The perpetration of the robbery with double homicide, which is prosecuted in this cause, is an indisputable fact. The only question raised in the brief for the defense is whether the accused and appellants were sufficiently identified.

A careful examination of the declarations of the prosecuting witnesses, Natalia Peronse, Adriano Pasaporte, Cirilo Lapatin, and Porfirio Guangco, shows beyond all reasonable doubt: (1) That the accused Basilio Reguera (alias Asir), upon going up the house of Josefa Pasaporte, went to the kitchen and took the servant Sixto to the sala where Josefa Pasaporte and her two grandchildren Corazon Guangco and Esteban Guangco were; that he opened the wardrobes and trunks, upset the contents and took the jewels from the jewel boxes; that he demanded P200 of Porfirio Guanco from the window of the house; that he ordered Porfirio Guangco to light the lower part of the house where they had to pass with their victims; that upon going down he took off his hemp cloth and put on a red one and held the right shoulder of Josefa Pasaporte with his left hand, while with his right hand he held a dagger over her breast; that, upon hearing the first shot at about 20 steps from the house, he stabbed said Josefa Pasaporte and then the child Corazon Guangco, whom the former carried in her arms; and (2) that the other accused Alejandro Asuategui, upon going up the house, stationed himself at the upper part of the stairs, closed the door after the servant Natalia Peronse had ascended the stairs; took the latter to the sala where Josefa Pasaporte with her two grandchildren Corazon and Esteban and the servant Sixto were, and there he tied the three adults with only one rope and carried them to the open door of the room to the left which led to the room to the right where he guarded them, while his companion opened the trunks and wardrobes, upset their contents and took the jewels; that upon going down he received from his companion the sinamay cloth, which the latter had taken off, and he put it around his neck, and then placed himself behind the servants Natalia Peronse and Sixto who were tied, while he held his drawn bolo in his right hand which rested upon the right shoulder at about the height of his head and held a dagger in the left hand; and that upon hearing the first shot at 20 steps from the house he fled, after first stabbing the girl Corazon Guangco in the left inguinal region.

The Honorable Antonio Villareal, the judge who tried the case in the first instance, analyzing the circumstances under which said prosecuting witnesses observed the culprits, in order to determine whether they were such as to enable them to perfectly recognize and retain in their memory the physiognomies and general appearance of these persons, to such extent that in indicating the accused during the trial two months afterwards, they could not be mistaken as to the fact that they were the same rascals whom they saw two months before says the following in the decision appealed from:

The witness Natalia Peronse saw the accused very near her in plain daylight, at 5 p.m., until night came, and by the light of the lamp for outing purposes which they lighted in the house. Natalia Peronse is young and appears to posses a perfect eyesight. She was therefore in the best of condition, with respect to time and light, in order to observe well the physiognomies of the accused and retain them in her memory. The constant threats of death under which that witness was placed from the moment the rascals ascended the house until they escaped must have produced a profound impression upon her. On this point we read the following from Moore on Facts, Vol., II, page 891: ” “An impression may be so exciting emotionally as almost to leave a scar upon the cerebral tissues” says Professor James. So where a man and his wife were dragged from their bed in the nighttime and cruelly tortured by robbers partly masked, and they heard the voices of their torturers, observed their figures, their movements, their eyes, the color of their hair, and their relative size and manner, “every peculiarity of each of them,” said the court, “must have been literally burned into the memory” of their victims and enable the latter to identify them subsequently with confidence.” Furthermore Natalia Peronse identified the accused the next day when they were arrested, in this manner making the impression upon her memory of their physiognomy more profound.

Adriano Pasaporte has known the accused for more than six years; he has frequently been with them and has played monte with them on various occasions, so that the details of their person must be familiar to him and it would be sufficient for him to see them by the light of a lamp used for outing purposes, to recognize them. The same work already cited says on page 1365 the following as to this point: “The combination and arrangement of the human feature and lineaments are ordinarily so unique in each particular person, and the peculiarities of individual expression, tone of voice, gesture, and carriage, so marked and striking, that to a familiar acquaintance or fried there can be very little chance of mistaking personal identity. Familiar intercourse produces that kind of knowledge which acts instantaneously, by an immediate and single process of recognition. We do not, at every meeting with an acquaintance, begin to compare features, and reason on the question of identify, but we recognize the whole object as a living unity. . . .”

The identification of the accused by Cirilo Lapitan and Porfirio Guangco, although not made under the same circumstances as that by Natalia Peronse and Adriano Pasaporte, are sufficient to establish their guilt, there being no credible evidence to the effect that they were in another place.

We have carefully examined the evidence before us and are convinced that the findings of the trial judge are in accordance with the merits of the cause. The prosecuting witnesses were submitted to a long and detailed examination both by the fiscal and counsel for the defense as well as by the trial judge, and in their declarations we find nothing which would justify any alteration in the conclusions of fact contained in the judgment appealed from.

Counsel for the accused presented the witness Epifanio Lucasi, attempting to show that the accused were not the evildoers who assaulted the house in question but others, because said witness saw them and did not recognize them, although he knew the accused for a long time and would recognize them although they might be in a somewhat dark place. Nevertheless this witness, who positively states that he closely observed the faces of the rascals, did not observe whether they had hats on or not, a circumstance which puts much doubt upon the veracity of his testimony. After giving the description of the rascal who went by the side of the deceased Josefa Pasaporte, which coincides with that given by the prosecuting witnesses, he says that man is not the accused Basilio Reguera (alias Asir) for, according to him, Asir is taller by one finger than that person whom he saw that night (p. 134, s.n.). The testimony of this witness does not deserve greater credit than those of the witnesses for the prosecution, who unanimously affirm that the man whom the witness Lucasi refers is the same accused Basilio Reguera (alias Asir).

The accused Alejandro Asuategui declared that the witness Peronse stated, when the accused were arrested the next day and presented to her by Lieutenant Castañeda of the Constabulary, that they were not the culprits. But this uncorroborated declaration of the accused Asuategui cannot prevail over that of the witness Peronse, who repeatedly and positively declared at the trial that the accused are the same rascals who robbed the house of Josefa Pasaporte on the afternoon in question. This is corroborated by the testimony of Lieutenant Castañeda, when he says that he ordered the arrest of the two accused the same night of the occurrence, because, according to the information he received, the culprits where the persons known as Asir and Nando, the same persons accused in this case. Said witness Peronse, nothing certain distinctive features of the accused, said to the court in the beginning of her declaration:

The person who killed my grandmother Josefa is that man, Asir, who then had a mustache (indicating the accused Basilio Reguera), and the person who tied us is that man who has smallpox (indicating the accused Alejandro Asuategui) (p. 17, s. n.).

This shows that the witness knew the accused perfectly well from the afternoon in question and this knowledged enabled her to recognize them when they were arrested the next day after the event. Josefa Perenas also corroborates her when the former says that Peronse told her that morning that those persons presented to her are those who assaulted the house of Josefa Pasaporte (p. 72, s.n.).

The defense impeached the credibility of the prosecuting witnesses Pasaporte and Lapatin, alleging that the first had, nine months before the event, certain personal disputes with the accused Asuategui. It should be noted nevertheless that Adriano Pasaporte denied that such incident with the accused Reguera had happened, and there is no reasonable motive to doubt her veracity; but supposing that such incident did happen, yet, we believe that it is not enough to inspire this witness with a desire of vengeance, above all because she testified not only against Reguera but also against the other accused Asuategui, with whom no motive of resentment is alleged. The same thing may be said to the witness Cirilo Lapatin. The later denies having known Asuategui before the even and he could not therefore have and any resentment against him. This witness was presented to identify the accused, and he testified against the accused Asuategui and also against his coaccused Reguera, with whom, according to the theory of the defense, he could not have any personal resentment.

The defense calls our attention in its brief to the discrepancy which is noted between the declarations of the witnesses Peronse, Lapatin, and Pasaporte with respect to the language or dialect which Reguera used in demanding money of Porfirio Guangco. Peronse, in stating that Reguera spoke in Spanish to Porfirio Guangco, does not positively state that he spoke only in that language, and his testimony does not exclude the possibility that part of the conversation between Reguera and Porfirio Guangco might have been carried on in Visaya. Lapatin says that the conservation was partly in Visayan and partly in Spanish. And Pasaporte in declaring that Reguera spoke partly in Spanish and partly in Visayan, far from contradicting any of the two preceding witnesses, corroborates their statements.

The accused presented as a principal defense an alibi, attempting to prove by means of their witnesses Pedro Sorianoso and Geronimo Atadero that on the day in question from 5 o’clock in the afternoon, at which time the attack was taking place, until 7 o’clock in the morning of the next day, they, with other companions, the said Pedro Sorianoso, Geronimo Atadero (alias Nomo), Fabian Torcuato, Arellano Solinap, one Cayetano, Federico Cordura, Basilio Misa, and Jacinto Pesadilla (alias Pitao), were playing monte in the house of the person last named situated in Guinacas, a barrio of the municipality of Pototan, about 3 kilometers from the poblacion of this municipality, where the crime occurred.

Although there is no evidence which directly contradicts the testimony of the witnesses with respect to the alibi, this defense alone does not outweigh the direct, positive, and conclusive testimony of the prosecuting witnesses as to the identification of the accused, as being the same persons who assaulted the house of Josefa Pasaporte, robbed her of the jewels and on the occasion of the robbery killed her and her granddaugther Corazon Guangco. But the record contains evidence which divests the defense of alibi presented by the accused of all value. Geronimo Atadero and Pedro Sorianoso, witnesses for the defense on this point, who testified that the accused were at the house of Jacinto Pesadilla with Federico Cordura and other playing monte from 5 p.m. of the day in question until 7 a.m. of the following day, were contradicted in rebuttal by Pesadilla and Cordura themselves, witnesses for the prosecution, who, corroborating themselves mutually, assure the court that the accused arrived at the gambling place, the house of Pesadilla, when the night was already well advanced, about 10 p.m. more or less of the same day, that is, two hours more or less after the attack which, according to the witnesses for the prosecution, ended at about 8 p.m. The trial judge believed these two witnesses for the prosecution, and was so convinced that the witnesses for the defense did not state the truth that, upon the termination of the trial, he ordered the prosecuting attorney to investigate the witnesses for the defense who testified as to the alibi, for the purpose of prosecuting them for perjury.

Finally, the attorneys for the accused contend that it is hard to believe that the latter should have committed the offense imputed to them: (1) Because of the extraordinary house and manner of the occurrence of the attack; (2) Because if the accused had been the authors of the robbery instead of going to a gambling house after the event, they would have escaped in order to conceal their crime; and (3) because as they enjoyed a good reputation. To the first the answer should be that similar cases of robbery in the outlying portions of a poblacion occur with unfortunate frequency in this country, a fact which indicates that there is nothing unbelievable in the present case. The accused entered the assaulted house peacefully, and once inside drew their weapons, maltreated the inmates and closed the door, succeeding in this manner in excluding all help on the part of the neighbors. To the second contention it suffices to answer that the fact that the accused went to the house of Pesadilla to gamble after the commission of the offense, far from being unbelievable, is the most natural thing they could have done under the circumstance, for, by going to gamble as usual where they were known gamblers, they attempted to drive from them the suspicion that they might have been the authors o the attack. The third contention of the defense is refuted by the evidence for the prosecution which shows, without any doubt, that the accused are the authors of the crime. Besides, it appears by the declaration of the witnesses for the defense, Atadero and Sorianoso, that the accused are well-known gamblers, and the history of crime furnishes many case of crimes against property and against persons committed as a result of gambling.

In view of what has been said there is therefor no doubt that the accused are the authors of the robbery committed in the house of Josefa Pasaporte and of the killing of the latter and of her granddaugther Corazon Guangco committed on the occasion of the robbery, the accused therefore being guilty of the complex crime of robbery with double homicide, in accordance with the doctrine established by this court in the case of U.S. vs. Tiongco (37 Phil., 951).

The facts proved at the trial beyond all reasonable doubt constitute the complex crime of robbery with double homicide defined and penalized in article 503, case No. 1 of the Penal Code. In the commission of the crime there should be considered as aggravating circumstance of the robbery that of the accused having entered the dwelling house of the deceased Josefa Pasaporte and, as to the killing of the latter, the disregard of her age and sec and as to that of the child Corazon, 5 years of age, that of alevosia, as the crime was committed when the old woman had her hand tied and with the other carried the child, and because the latter was a child of tender age. (U.S. vs. Baul, 39 Phil., 846; decision of the supreme court of Spain, dated March 1, 1881.)

The trial court correctly found the presence of said aggravating circumstances, and after compensating them with the special mitigating circumstance provided for in article 11 of the Penal Code,. as amended by Act No. 2142, imposed upon the accused the penalty in its medium degree, in accordance with rule 2 of article 80 of the Penal Code, that is, cadena perpetua.

The Attorney-General argues in his brief that the mitigating circumstance (art. 11 of the Penal Code) of lack of instruction cannot be considered, as a general rule, in crimes against property, and much less in this case, in which the accused are barrio lieutenants, and therefore, the penalty which should be imposed upon them should be the maximum, which in this case is death, prescribed in article 503 of the Penal Code, instead of cadena perpetua which the judgment appealed from imposes upon them.

In the case of U.S. vs. Maqui (27 Phil., 97), this court established the following doctrine:

It is true that this court has quite uniformly held that convicts of the crimes of theft and robbery are not entitled to the benefits of the provisions of article 11 of the Penal Code prior to its amendment by Act No. 2142, this on the theory that under the provisions of the article prior to its amendment the ground upon which the courts were authorized in their discretion to mitigate the penalties prescribed by the code was “the circumstance of the offender being a native, mestizo, or Chinese.” As to crime of this nature we declined to hold that the mere fact that one is a native of the Philippine Islands, a mestizo or a Chinese would justify a claim that upon conviction of crimes such as theft or robbery he should be treated more leniently than the members of any other race or people, no sound presumption arising from the mere racial affiliation of the convict that he was less able to appreciate the criminal character of such offenses or to resist the temptation to commit them than are they.

Under the provisions of the article as amended by Act No. 2142, the ground upon which the courts are authorized to mitigate the prescribed penalties is not the racial affiliation of the convict, but “the degree of instruction and education of the offender;’ and while mere ignorance or lack of education will not always be sufficient to justify the mitigation of the prescribed penalties for crimes such as theft and robbery, there can be no doubt that cases may and will arise wherein under all the circumstances attending’ the commission of these offenses the exercise of a sound discretion will justify a more lenient treatment of an ignorant and semicivilized offender, than that which should be accorded one who has had the advantage of such a degree of instruction and education as would justify the court in believing that he was capable of fully and properly understanding and appreciating the criminal character of the offense committed by him.

We conclude, therefore, that under the provisions of article 11 as amended by Act No. 2142, the courts may and should, even in cases of theft and robbery, take into consideration the lack of instruction and education of the offender where it appears that, under all the circumstances attending the commission of the offense, he should not be held to the strict degree of responsibility prescribed in the code for the ordinary offender.

The doctrine announced in this decision was followed in the following cases: U.S. vs. Tan Corteso (32 Phil., 104); U.S. vs. Landasan (35 Phil., 359); and U.S. vs. Maido (36 Phil., 847).

In the case of U.S. vs. Solana (33 Phil., 582), this same court, applying the benefits of article 11 of the Penal Code, said:

Having in mind their manifest ignorance and lack of instruction, and having in mind also the fact that they do not appear to have taken a leading part in the organization of the band or the commission of the crime and seem rather to have been the ignorant tools of the leaders of the band, the penalty as to them should be reduced to life imprisonment (cadena perpetua) under the provisions of article 11 of the Penal Code as amended.

And in the case of U.S. vs. Antonio (31 Phil., 205), this court said:

On account of deficient instruction and lack of education on the defendant’s part, the special circumstance established by article 11 of the Code, as amended by Act No. 2142, must be applied in his favor; but even holding the concurrence of this special circumstance to offset one or several of the aggravating circumstances mentioned, from the nature of the penalty fixed in said article 503, No. 1, of the Penal Code, the final and extreme penalty fixed by the law must still be imposed upon the offender in view of the large number of aggravating circumstances, the greater portion of which are interrelated and lack other mitigating circumstances of offset them. (Penal Code, art. 80, Rule 4.)

According to the actual state of the decisions of this court, it results: (1) That the special mitigating circumstance of article 11 of the Penal Code, as amended by Act No. 2142, that is, the lack of instruction and education of the convict, may be and should be considered, as a general rule, even in cases of robbery and theft, when it appears that, under all the circumstances which surrounded the commission of the crime, the strict degree of responsibility which the Penal Code imposes upon common convicts should not be exacted of them; and (2) that said special mitigating circumstance may be compensated with one or some aggravating circumstances in order to reduce the penalty prescribed by law, but it will not prevent the imposition upon the convict of the penalty in its maximum degree when one of more aggravating circumstances concur which are not susceptible of compensation because of the lack of other mitigating circumstances.

We agree with the Attorney-General in that in the present case the mitigating circumstance of lack of instruction and education should not be considered because the accused were barrio lieutenant, a position which implies that they are cognizant of their duties with respect to the protection of persons and properties.

In the case of U.S. vs. Fortaleza (12 Phil., 472), this court, among other things, said:

Taking into consideration, the fact that under the municipal system which was superseded by the system provided in this Act, municipal councilors and their lieutenants placed in charge of particular barrios were always recognized as agentes de la autoridad and clothed with the necessary authority for the maintenance of order and the protection of life and property; we think that the Commission, in providing for the assignment of one or more councilors in charge of each barrio or part of barrio, so that each barrio shall be under the direction of one or more councilors, must be taken to have entrusted to these councilors and their lieutenants a duty of maintaining order within their respective barrios, substantially similar to that which was imposed upon municipal councilors under the Spanish law existing at the time of the promulgation of the Act No. 82, and thus to have conferred upon, or confirmed to them the functions of agentes de la autoridad (agents of authority) within their respective barrios, with the necessary authority incident thereto for the maintenance of order and the protection of life and property.

That the robbery in question took place out of the jurisdiction of the barrios of which the accused are lieutenants, does not divest them of the knowledge that they acted in violation of their duties, for which reason they cannot be considered as lacking in education and instruction within the meaning of article 11 of the Penal Code, as amended by Act No. 2142. But even considering in favor of the accused the presence of said special mitigating circumstance of article 11, equitatively weighing the moral importance of said special mitigating circumstance and the aggravating circumstances of the commission of the robbery in the dwelling place of the deceased Josefa Pasaporte, and of the homicide upon her in disregard of her age and sec, and of the alevosia present in the homicide committed against the child Corazon Guangco, we do not believe that the first of said circumstances should have such force as to completely destroy the effects of all the others; so that, compensating it with one or two of the aggravating circumstances mentioned, in view of the penalty imposed in No. 1, of article 503, of the Penal Code, it is proper in any event to imposed upon said accused the maximum penalty fixed by law, in view of the number of aggravating circumstances, one of which, that of alevosia, is no longer susceptible of being compensated because of the absence of other mitigating circumstances. (U.S. vs. Antonio, supra.)

Notwithstanding this conclusion arrived at by the court, the sentence of death cannot be executed with respect to the accused Alejandro Asuategui, in view of the fact that upon the reconsideration of the case by the court in banc, it was not possible to secure, with respect to said accused, the unanimity of votes of all the justice present, a condition which Act no. 2726 requires for the imposition of the death penalty.

By virtue of all that has been said, in accordance with section 2 of said Act No. 2726, the penalty immediately inferior to that of death according to graduated scale No. 1 of article 91 of the Penal Code, that is, cadena perpetua, should be imposed upon the accused Alejandro Asuategui, the judgment appealed from being thus affirmed as to him; and the same is reversed as to the other accused Basilio Reguera (alias Asir), upon whom the maximum penalty prescribed by article 503, case No. 1, of the Penal Code that is, death, is imposed, which shall be executed at the time and date which the trial judge may fix in accordance with the provisions of Act No. 1577. So ordered.

Mapa, C.J., Araullo, Streets and Malcolm, JJ., concur.

Footnotes

¹New trial was granted by resolution of September 27, 1921.

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