11/6/22, 11:18 AM [ G.R. No. L-19491.

August 30, 1968 ]

133 Phil. 786

[ G.R. No. L-19491. August 30, 1968 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
APOLONIO APDUHAN, JR. ALIAS JUNIOR, ET AL., DEFENDANTS,
APOLONIO APDUHAN, JR. ALIAS JUNIOR, DEFENDANT-
APPELLANT.

DECISION

CASTRO, J.:

This is an automatic review of the judgment rendered on August 30, 1961 by the Court of First
Instance of Bohol (Judge Hipolito Alo presiding) convicting Apolonk) Apduhan, Jr. of robbery
with homicide and sentencing him to death and "to indemnify the heirs of the deceased
Geronimo Miano in the amount of P6,000.00, to indemnify the heirs of the other deceased
Norberto Aton in the same amount of P6.000.00. ..."

On August 2, 1961 the accused Apduhan, then represented by Atty. David Ocangas, together
with his co-accused Rodulfo Huiso and Felipe Quimson, both represented by Atty. David Tirol,
pleaded not guilty to a second amended information which recites:

"The undersigned Provincial Fiscal accuses Apolonio Apduhan, Jr., alias Junior,
Rodulfo Huiso and Felipe Quimson of the crime of Robbery With Homicide,
committed as follows:

"That on or about the 23rd day of May, 1961, at about 7:00 o'clock in the evening, in
the municipality of Mabini, province of Bohol, Philippines, the above-named
accused and five (5) other persons whose true names are not yet known (they are
presently known only with their aliases of Bernabe Miano, Rudy, Angel-Angi,
Romeo and Tony) and who are still at large (they will be charged in separate
information or informations as soon as they are arrested and preliminary proceedings
in Crim. Case No. 176 completed before the Justice of the Peace Court), all of them
armed with different unlicensed firearms, daggers, and other deadly weapons,
conspiring, confederating and helping one another, with intent of gain, did then and
there willfully, unlawfully and feloniously enter, by means of violence, the dwelling
house of the spouses Honorato Miano and Antonia Miano, which was also the
dwelling house of their children, the spouses Geronimo Miano and Herminigilda de
Miano; and, once inside the said dwelling house, the above-named accused with
their five (5) other companions, did attack, hack and shoot Geronimo Miano and
another person by the name of Norberto Aton, who happened to be also in the said
dwelling house, thereby inflicting upon the said two (2) persons physical injuries
which caused their death; and thereafter the same accused and their five (5) other
companions, did take and carry away from said dwelling house cash money
amounting to Three Hundred Twenty-two Pesos (P322.00), Philippine Currency,
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belonging to Honorato Miano and Geronimo Miano, to the damage and prejudice of
the said Honorato Miano and Geronimo Miano, and the heirs of the deceased
Geronimo Miano in the sum of Three Hundred Twenty-two Pesos (P322.00) with
respect to the amount robbed, and also to the damage and prejudice of the heirs of
deceased Geremmo Miano and Norberto Aton by reason of the death of these two
persons.

"Act committed contrary to the provisions of Art. 294, par. I, of the Revised Penal
Code with the special aggravating circumstance that the crime was committed by a
band with the use of unlicensed firearms (Art. 296, Rev. Penal Code), and other
aggravating circumstances, as follows:

"1. That the crime was committed in the dwelling of the offended parties without any
provocation from the latter;

"2. That nighttime was purposely sought to facilitate the commission of the crime;
and

"3. That advantage was taken of superior strength, accused and their companions,
who were fully armed, being numerically superior to the offended parties who were
unarmed and defenseless."

When the case was called for trial on August 9, 1961, Atty. Tirol informed the court a quo that
he was appearing also for Apduhan, but only as counsel de oficio. In view of this manifestation,
the trial court appointed Atty. Tirol as counsel de oficio for the said accused. Forthwith, Atty.
Tirol manifested that Apduhan would change his former plea of not guilty to a plea of guilty.
The record discloses that after the trial judge had repeatedly apprised Apduhan of the severity of
the offense for which he was indicted and the strong possibility that the capital penalty might be
imposed upon him despite a plea of guilty, Apduhan persisted in his intention to plead guilty
with the request, however, that the death penalty be not imposed. Then after hearing the
arguments of Provincial Fiscal Jesus N. Borromeo and Atty. Tirol on the effect of Articles 295
and 296 of the Revised Penal Code on the case at bar, the trial judge advised the herein accused
anew that he could be sentenced to death notwithstanding his projected plea of guilty, but the
latter reiterated his desire to confess his guilt on the specific condition that he be sentenced to
life imprisonment. Eventually, however, Apduhan desisted from pleading guilty and let his
previous plea stand on record after further warnings that he faced the grave danger of being
sentenced to death in view of the circumstances of his case. But the aforesaid desistance was
merely momentary as it did not end the accused's equivocation on the matter of his plea. After a
five-minute recess requested by Atty. Tirol in order to confer with the accused, the former
informed the court a quo that his client would insist on entering a plea of guilty. The following
appears on record:

"Atty. D. TIROL:
   
"Your Honor, please, I luld a conference with the accused and apprised him with the
situation of the case and after hearing our apprisal he manifested that he will insist
on his entering a plea of guilty, Your Honor. I made it clear to him that we are not
forcing him to enter the plea of guilty.
   
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"COURT (To accused Apolonio Apduhan, Jr.):

   
"Q. Is it true that you are withdrawing your plea of not guilty?
   
"A. I will just enter the plea of guilty.
   
"Q. Have you been forced to enter the plea of guilty by your lawyer?
   
"A. No, Sir.
   
"Q. And why do you said 'I will JUST enter the plea of not guilty?
   
"A.
I have proposed to enter the plea of guilty even before.

   
"Q. Now the Court warns you again. Are you conscious of the fact that
notwithstanding your plea of guilty the court may impose upon you the penalty
of death?
   
"A. I win just enter the plea of guilty, at the discretion of the Court.
   
"Q. Even with all those dangers mentioned by the Court to you?
   
"A. Yes, Sir." (t.s.n. pp. 23-25)

Subsequently, the prosecuting fiscal and the counsel de oficio resumed their oral arguments
regarding the effect on the instant case of Articles 295 and 296, particularly the use of
unlicensed firearm as a special aggravating circumstance under the latter article. Also discussed
were the existence and effect of the alleged mitigating and aggravating circumstances. All of
these points will be later analyzed.

When the lower court subsequently reviewed the proceedings, it found that the accused's plea of
guilty was ambiguous. Hence, on August 30, 1961, the case was reopened with respect to
Apduhan, and on said date the latter entered a categorical plea of guilty, as evidenced by the
record:

"COURT (To Accused Apduhan, Jr.):

   
"The Court reopened this case because after a review of the proceedings it found that
your plea was not definite. In answer to a question of the Court you simply said 'I
will just enter the plea of guilty'. The court wants to know whether you enter the plea
of guilty of the crime charged in the second amended information.
   
"ACCUSED APDUHAN:
   
  "I enter the plea of guilty. "COURT (To same accused Apduhan):
   
''Q. Therefore, you admit that you have committed the crime charged in the second
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information?
   
"A. Yes, Your Honor.
   
"Q. Is it necessary for you that the second amended information be read again?
   
"A. No more; it is not necessary.
   
"Q. Do you want that the second amended information be read to you again?
   
"A. No more, Your Honor." (t.s.n. pp. 50-51)

On the same day, the court a quo rendered its decision, the pertinent dispositive portion of
which reads:

"PREMISES CONSIDERED, the court renders judgment finding accused Apolonio Apduhan,
Jr. alias Junior guilty of the complex crime of robbery with homicide, punished by Article 294
of the Revised Penal code, in relation to Article 296 of the saffle Code, as amended, and
sentences him to suffer the penalty of death."

Considering that Apduhan had voluntarily confessed his guilt in open court, then the only aspect
of the case properly subject to review is the correctness of the penalty imposed by the court a
quo. In this respect, the appreciation of the use of unlicensed firearm as a special aggravating
circumstance (Art. 296) in fixing the appropriate penalty for robbery with homicide (Art.
294[1]) committed by a band with the use of unlicensed firearms, and the interplay and counter-
balancing of the attendant mitigating and aggravating circumstances, would determine the
severity of the penalty imposable.

The disposition of the question at hand necessitates a discussion of the interrelation among
articles 294, 295 and 296 of the Revised Penal Code. For this purpose the said articles are
hereunder quoted:

"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:

"1. The penalty of reclusion perpetua to death, when by reason or on occasion of the
robbery, the crime of homicide shall have been committed.

"2. The penalty of reclusion temporal in its medium period to reclusion perpetua,
when the robbery shall have been accompanied by rape or intentional mutilation, or
if by reason or on occasion of such robbery, any of the physical injuries penalized in
subdivision 1 of 263 shall have been inflicted.

"3. The penalty of reclusion temporal, when by reason or on occasion of the robbery,
any of the physical injuries penalized in subdivision 2 of the article mentioned in the
next preceding paragraph, shall have been inflicted.

"4. The penalty of prision mayor in its maximum period to reclusion temporal in its
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minimum period, if the violence or intimidation employed in the commission of the

robbery shall have been carried to a degree clearly unnecessary for the commission
of the crime, or when in the course of the execution, the offender shall have inflicted
upon any person not responsible for its commission any of the physical injuries
covered by subdivisions 3 and 4 of said article 263.

"5. The penalty of prision correccional in its maximum period to prision mayor in its
medium period in other cases." (As amended by Rep. Act 18.)

"ART. 295. Robbery with physical injuries, committed in an uninhabited place and
by a band, or with the use of firearm on a street, road or alley. —If the offenses
mentioned in subdivisions three, four, and five of the next preceding article shall
have been committed in an uninhabited place or by a band, or by attacking a moving
train, street car, motor vehicle or airship, or by entering the passengers'
compartments in a train or, in any manner, taking the passengers thereof by surprise
in the respective conveyances, or on a street, road, highway, or alley, and the
intimidation is made with the use of a firearm, the offender shall be punished by the
maximum period of the proper penalties. (As amended by Rep. Act Nos. 12 and
373.)" (Italics supplied)

"ART. 296. Definition of a band and penalty incurred by the members thereof—
When more than three armed malefactors take part in the commission of a robbery, it
shall be deemed to have been committed by a band. When any of the arms used in
the commission of the offense be an unlicensed firearm, the penalty to be imposed
upon all the malefactors shall be the maximum of the corresponding penalty
provided by law, without prejudice to the criminal liability for illegal possession of
such unlicensed firearm.

"Any member of a band who is present at the commission of a robbery by the band,
shall be punished as principal of any assaults committed by the band, unless it be
shown that he attempted to prevent the same (As amended by Rep. Act No. 12)."
(Italics supplied).

The afore-quoted Art. 294 enumerates five classes of robbery with violence against or
intimidation of persons and prescribes the corresponding penalties. The case at bar falls under
Art.294(1) which defines robbery with homicide and fixes the penalty from reclusion perpetua
to death.

Article 295 provides, inter alia, that when the offenses described in subdivisions 3, 4, and 5 of
Art. 295 are committed by a band, the proper penalties must be imposed in the maximum
periods. The circumstance of band is therefore qualifying only in robbery punished by
subdivisions 3, 4, and 5 of Art. 294. Consequently, Art.295 is inapplicable to robbery with
homicide, rape, intentional mutilation, and lesiones graves resulting in insanity, imbecility,
impotency or blindness. If the foregoing classes of robbery which are described in Art. 294(1)
and (2) are perpetrated by a band, they would not be punisHable under Art. 295, but then
cuadrilla would be a generic aggravating under art. 14 of the Code.[1] Hence, with the present
wording of Art. 295[2] there is no crime as "robbery with homicide in band." If robbery with
homicide is committed by a band, the indictable offense would still be denominated as "robbery
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with homicide" under Art. 294(1), but the element of band, as stated above, would be
appreciated as an ordinary aggravating circumstance.

Article 296, as quoted above, defines "band", creates the special aggravating circumstance of
use of unlicensed firearm, and provides the criminal liability incurred by the members of the
band. The ascertainment of the definite function and range of applicability of this article in
relation to Articles 294 and 295 is essential in the disposition of the case at bar.

In imposing the death penalty, the trial court appears to have accorded validity to the Provincial
Fiscal's contention that in robbery with homicide committed by a band, the use of unlicensed
firearm must be appreciated as a special aggravating circumstance pursuant to Art. 296. Thus
convinced, the trial judge stressed in his decision that "under the express mandate of the law, we
cannot escape the arduous task of imposing the death penalty." Subscribing to the said position,
the Solicitor General adds that the "penalty for robbery under the circumstances mentioned in
Articles 294, paragraph 1, and 296 of the Code is the maximum of reclusion perpetua to death,
or the supreme penalty of death. This is mandatory."

On the other hand, Atty. Alberto M. Meer, the accused's counsel de oficio in the present review,
contends that the use of unlicensed firearm, if ever appreciated in the case at bar, must be
considered a generic aggravating factor which "may be offset by the existence of mitigating
circumstances to that the penalty to be imposed should be the penalty of reclusion perpetua."

Both the foregoing contentions are untenable.

After a perceptive analysis of the provisions of Art. 296, we reach the considered opinion that
the said article is exclusively linked and singularly applicable to the immediately antecedent
provision of Art: 295 on robbery in band, as the later article in turn, is explicitly limited in scope
to subdivisions 3, 4, 5 of Art. 294. Consequently, although the use of unlicensed firearm is a
special aggravating circumstance under art. 296, as amended by Rep. Act 12,[3] it cannot be
appreciated as such in relation to robbery with homicide, described and penalized under
paragraph 1 of Art. 294.

As previously stated, Art. 295 provides that if any of the classes of robbery described in
subdivisions 3, 4, and 5 of art. 294 is committed by a band, the offender shall be punished by
the maximum period of the proper penalty. Correspondingly, the immediately following
provisions of Art. 296 define the term "band, " prescribe the collective liability of the members
of the band, and state that "when any of the arms used in the commission of the offense be an
unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of
the corresponding penalty provided by law." Viewed from the contextual relation to Articles 295
and 296, the word "offense" mentioned in the above-quoted portion of the latter article logically
means the crime of robbery committed by a band, as the phrase "all the malefactors" indubitably
refers to the members of the band and the phrase "the corresponding penalty provided by law"
relates to the offenses of robbery described in the last three subdivisions of Art. 294 which are
all encompassed within the ambit of Art. 295. Evidently, therefore, Art. 296 in its entirety is
designed to amplify and modify the provision on robbery in band which is nowhere to be found
but in Art. 295 in relation to subdivisions 3, 4, and 5 of art. 294. Verily, in order that the
aforesaid special aggravating circumstance of use of unlicensed firearm may be appreciated to
justify the imposition of the maximum of the maximum period of the proper penalty, it is a
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condition sine qua non that the offense charged be robbery committed by a band within the
contemplation of Art. 295. To reiterate, since Art. 295 does not apply to subdivisions 1 and 2 of
Art. 294, then the special aggravating factor in question, which is solely applicable to robbery in
band under Art.295, cannot be considered in fixing the penalty imposable for robbery with
homicide under Art. 294(1), even if the said crime was committed by a band with the use of
unlicensed firearms.

The legislative intent of making Art.296 corollary to art. 295 with respect to robbery in band
was unmistakably articulated by Congressman Albano in his sponsorship speech on H.B. No.
124 (subsequently enacted as Rep. Act No. 12, amending among others, Articles 295 and 296 of
the Revised Penal Code). Said Congressman Albano:

"Article 296 as a corollary of Article 295 would change the definition heretofore
known of the term 'band' under the law. The purpose of this amendment is to inject
therein the element of aggravation, when any member of the band carries an
unlicensed firearm. . ."[4]

The special aggravating circumstance of use of unlicensed firearm, however, was initially
applicable to all the subdivisions of Art. 294 since the said Rep. Act No. 12 also amended Art.
295 to include within its scope all the classes of robbery described in Art.294. With the then
enlarged coverage of Art. 295, Art. 296, being corollary to the former, was perforce made
applicable to robbery with homicide (Art. 294[1]). Thus, in People vs. Bersamin,[5] this Court,
in passing, opined:

"The use of unlicensed firearm is a special aggravating circumstance applicable

only in cases of robbery in band (Art. 296, Revised Penal Code, as amended by
section 3, Republic Act No. 12)."

In the said case, this Court, declared in effect that in robo con homicidio the use of unlicensed
firearm is not a special aggravating circumstance when the said offense is not committed by a
band. Inferentially, had the robbery with homicide in Bersamin been perpetrated by a band, the
use of unlicensed firearm would have been appreciated. This implied pronouncement would
have been justified under Art. 296 in relation to Art. 295, as amended by Rep. Act 12. But the
aforesaid inference lost all legal moorings in 1949 with the enactment of Rep. Act 373 which
excluded subdivisions 1 and 2 of Art.294 from the coverage of Art. 295. Since Ait.296, as
repeatedly emphasized above, is corollary to Art. 295, the diminution of the latter's scope
correspondingly reduced the former's extent of applicability. In other words, the passage of the
foregoing amendment did not only jettison the first two subdivisions of Art. 294 from the
periphery of Art. 295 but also removed the said subdivisions (which pertain, inter alia, to the
offense of robbery with homicide) from the effective range of Art. 296.

Notwithstanding that the special aggravating circumstance of use of unlicensed firearm cannot
be appreciated in the instant case, we are constrained, in the final analysis, to observe that the
imposition of the death penalty on the accused Apduhan would appear to be a logical legal
consequence, because as against the attendant mitigating circumstances the aggravating
circumstances numerically and qualitatively preponderate.

After Apduhan had pleaded guilty, the defense counsel offered for consideration three

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mitigating circumstances, namely, plea of guilty, intoxication, and lack of intent to commit so
grave a wrong. Subsequently, however, the defense withdrew the last mentioned mitigating
circumstance after the prosecution had withdrawn the aggravating circumstance of abuse of
superior strength. The following manifestations appear on record:

"FISCAL BORROMEO:
   
  "In fairness to the accused, because the crime charged is robbery in band (the
case at bar is actually robbery with homicide), it is natural that in robbery in
band there is already abuse of superior strength, so we will just withdraw that
superior strength.
 
"COURT (To Atty. D. Tirol):
 
  What do you say now?
 
"ATTY. D. TIROL:
 
  "Such being the case, we will not insist, on presenting evidence in support of our
contention that the accused did not intend to commit so grave a wrong.
 
"COURT:
 
  "Moreover, by the mere use of firearm accused cannot claim that he did not
intend to commit so grave a wrong as that committed. So now you withdraw
your petition that you be allowed to present evidence to that effect?
 
"ATTY. D. TIROL:
 
  Yes, Your Honor." (t.s.n. pp. 47-48).

Thus, only two alleged mitigating circumstances remain for consideration.

Anent the plea of guilty, we believe that under Art. 13(7) its appreciation in the case at bar is
beyond controversion.

However, apropos the alternative circumstance of intoxication, we find no evidence on record to

support the defense's claim that it should be considered as a mitigating factor. This absence of
proof can be attributed to the defense's erroneous belief that it was not anymore its burden to
establish the state of intoxication of the accused when he committed the offense charged since
anyway the prosecution had already admitted the attendance of the said mitigating circumstance
on the ground that the State did not have strong evidence to overthrow the accused's claim of
non-habituality to drinking. The record discloses the following pertinent discussion:

"COURT (To Fiscal Borromeo):

Do you agree, Mr. Fiscal, that the non-habitual intoxication of the accused be
also taken into account in his favor as a mitigating circumstance?

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"FISCAL BORROMEO:

"We have no evidence exactly to know at this time that the accused was
intoxicated, but his affidavit states that before the commission of the crime they
took young coconuts and there is no mention about the taking of any liquor, so
that, as it is now, we are constrained to object.

"COURT (To the Fiscal):

"But do you have evidence to counteract that allegation?

FISCAL BORROMEO:

"We do not have any evidence to counteract that,

"COURT (To the Fiscal):

"But do you admit the attendance of that circumstance?

"FISCAL BORROMEO:

"With that manifestation we submit because actually we do not have evidence to

counter-act that he was a habitual drinker.

"COURT (To the Fiscal):

"But do you prefer to admit that mitigating circumstance or you need that
evidence be presented to that effect?

"FISCAL BORROMEO:

"Inasmuch as we do not have strong evidence to contradict that circumstance, in

fairness to the accused, we would rather submit.

"COURT (To the Fiscal):

The attendance of the mitigating circumstance of non-habitual intoxication?

'FISCAL BORROMEO:

Yes, Your Honor." (t.s.n. pp. 7-9) (Italics supplied)

From the above proceedings in the trial court, it would appear that what the prosecution actually
intended to admit was the non-habituality of the accused to drinking liquor, not as a matter of
fact, but due to the State's inability to disprove the same. The prosecution apparently did not
concede the actual intoxication of the accused. We are of the firm conviction that, under the
environmental circumstances, the defense was not relieved of its burden to prove the accused's
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actual state of intoxication. Otherwise, to appreciate the attendance of a mitigating factor on the
mere allegation of the accused, coupled with the dubious acquiescence of the prosecution,
would open wide the avenue for unscrupulous and deceitful collusion between defense and
prosecution in order to unduly and unjustly minimize the penalty imposable upon the accused.
The last paragraph of Art. 15 of the Code provides:

"The intoxication of the offender shall be taken into consideration as a mitigating

circumstance when the offender has committed a felony in a state of intoxication, if
the same is not habitual or subsequent to the plan to commit said felony; but when
the intoxication is habitual or intentional it shall be considered as an aggravating
circumstance." (Italics supplied)

Under the foregoing prevision, intoxication is mitigating when it is not habitual or intentional,
that is, not subsequent to the plan to commit the crime. However, to be mitigating the accused's
state of intoxication must be proved.[6] Once intoxication is established by satisfactory
evidence,[7] then, in the absence of proof to the contrary, it is presumed to be non-habitual or
unintentional.[8]

In People vs. Noble[9] the defendant testified that before the murder he took a bottle of wine and
drank little by little until he got drunk. The policeman who arrested the accused testified that the
latter smelled wine and vomited. The Court held that the evidence presented was not
satisfactory to warrant a mitigation of the penalty. Intoxication was likewise not competently
proved in a case[10] where the only evidence was that the defendant had a gallon of tuba with
him at the time he committed the crime.

In the case at bar the accused merely alleged that when he committed the offense charged he
was intoxicated although he was "not used to be drunk."[11] This self-serving statement stands
uncorroborated. Obviously, it is devoid of any probative value.

To recapitulate, the accused has in his favor only one mitigating circumstance: plea of guilty. As
aforementioned, the defense withdrew its claim of "lack of intent to commit so grave a wrong"
and failed to substantiate its contention that intoxication should be considered mitigating.

While an unqualified plea of guilty is mitigating, it at the same time constitutes an admission of
all the material facts alleged in the information including the aggravating circumstances therein
recited.[12] The four aggravating circumstances are (1) band; (2) dwelling; (3) nighttime; and
(4) abuse of superior strength. The circumstance of abuse of superiority was, however,
withdrawn by the prosecution on the ground that since the offense of robbery with homicide
was committed by a band, the element of cuadrilla necessarily absorbs the circumstance of
abuse of superior strength. We believe that said withdrawal was ill-advised since the
circumstances of band and abuse of superiority are separate and distinct legal concepts. The
element of band is appreciated when the offense is committed by more than three armed
malefactors regardless of the comparative strength of the victim or victims. Hence, the
indispensable components of cuadrilla are (1) at least four malefactor and (2) all of the four
malefactors are armed. On the other hand, the gravamen of abuse of superiority is the taking
advantage by the culprits of their collective strength to overpower their relatively weaker victim
or victims. Hence, in the latter aggravating factor, what is taken into account is not the number
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of aggressors nor the fact that they are armed, but their relative physical might vis-a-vis the
offended party.

Granting, however, that the withdrawal was valid, there still remain three aggravating
circumstances which render inutile the solitary extenuating circumstance of plea of guilty. The
prosecution does not need to prove the said three circumstances (all alleged in the second
amended information) since the accused, by his plea of guilty, has supplied the requisite proof.
[13] Hence, we will not belabor our discussion of the attendant aggravating circumstances.

The settled rule is that dwelling is aggravating in robbery with violence or intimidation of
persons,[14] like the offense at bar. The rationale behind the pronouncement is that this class of
robbery could be committed without the necessity of transgressing the sanctity of the home.
Morada is inherent only in crimes which could be committed in no other place than in the house
of another, such as trespass and robbery in an inhabited house.[15] This Court in People vs.
Pinca,[16] citing People vs. Valdez, [17] ruled that the "circumstances (of dwelling and scaling)
were certainly not inherent in the crime committed, because, the crime being robbery with
violence or intimidation against persons (specifically, robbery with homicide) the authors
thereof could have committed it without the necessity of violating or scaling the domicile of
their victim." Cuello Calon opines that the commission of the crime in another's dwelling shows
greater perversity in the accused and produces greater alarm.[18]

Nocturnity is aggravating when it is purposely and deliberately sought by the accused to

facilitate the commission of the crime[19] or to prevent their being recognized or to insure
unmolested escape.[20] Nocturnidad must concur with the intent and design of the offender to
capitalize on the intrinsic impunity afforded by the darkness of night.[21] In the case at bar, the
affidavit (exh. 1-1) of the accused Apduhan shows that he and his co-malefactors took
advantage of the nighttime in the perpetration of the offense as they waited until it was dark
before they came out of their hiding place to consummate their criminal designs.

In his decision, the trial judge recommends to the President of the Republic the commutation of
the death sentence which he imposed on the accused to life imprisonment. The Solicitor General
supports this recommendation for executive clemency.

We find no compelling reason to justify such recommendation. Contrary to the trial judge's
observation, the accused's plea of guilty was far from "spontaneous" and "insistent". It will be
recalled that his initial plea was one of not guilty. Later, he changed his plea but with the
persistent condition that he be sentenced to life imprisonment, not death. It was only after much
equivocation that he finally decided to "just" plead guilty. Because his plea was still ambiguous,
the court a quo had to reopen the case to ascertain its real nature. Conceding, however, that his
plea was "spontaneous" and "insistent," such manifestation of sincere repentance cannot serve
to obliterate the attendant aggravating circumstances which patently reveal the accused's
criminal perversity.

It appears from a cursory readng of the decision under review that the trial judge also anchored
his recommendation on the ground that there is "the possibility that the firearm was used in
order to counteract the resistance of the deceased." This is no justification at all for executive
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clemency. Firstly, the above observation is a mere conjecture—in the language of the presiding
judge, a "possibility." Secondly, even granting that the said observation relates to the actual
happening, to employ a firearm in subduing the lawful resistance of innocent persons is a
criminal act by any standard.

Even as we purge the decision under review of its errors, we must hasten to commend the trial
judge, the Hon. Hipolito Alo, for his earnest and patient efforts to forestall the entry of an
improvident plea of guilty by the accused Apduhan, notwithstanding that the latter was already
represented by a counsel de oflcio and hence presumed to have been advised properly. Judge
Alo made sure that the accused clearly and fully understood the seriousness of the offense
charged and the severity of the penalty attached to it. When the accused proposed to confess his
guilt, Judge Alo repeatedly warned him that the death penalty might be imposed despite his plea
of guilty. As aforementioned, when it appeared that Apduhan's plea of guilty was ambiguous,
Judge Alo reopened the case to determine with definitiveness the nature of his plea.

The virtue of Judge Alo's efforts in ascertaining whether Apduhan pleaded guilty with full
knowledge of the significance and consequences of his act, recommends itself to all trial judges
who must refrain from accepting with alacrity an accused's plea of guilty, for while justice
demands a speedy administration, judges are duty bound to be extra solicitous in seeing to it that
when an accused pleads guilty he understands fully the meaning of his plea and the import of an
inevitable conviction.

As a final commentary on the criminal conduct of the accused herein, it must be emphasized
that the instant review was delayed for several years because he escaped from the New Bilibid
Prisons on June 17, 1963, less than six months after he was committed to the said penitentiary.
He was recommitted on July 10, 1964 with a new mittimus from the Court of First Instance of
Leyte for robbery in band in criminal case 10099, for which he was sentenced to serve a prison
term of from 8 years and 1 day to 12 years and 1 day commencing on October 31, 1963.[22] His
recommitment was reported to this Court only on July 5, 1963.

Notwithstanding the foregoing disquisition, for failure to secure the required number of votes,
the penalty of death cannot be legally imposed. The penalty next lower in degree—redusion
perpetua —should consequently be imposed on the accused.

ACCORDINGLY, with the modification that the death sentence upon Apolonio Apduhan, Jr. by
the court a quo is reduced to redusion perpetua, the judgment a quo is affirmed in all other
respects, without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles, and Fernando,
JJ., concur.

Judgment affirmed with modification.

[1]People vs. Casunuran, L-7654, August 16, 1956; People vs. Leyesa, Ld-7842 August 30,
1956.

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[2] Prior to Rep. Act 373, the scope of art. 295. as amended bv Ren. Act No 12

[3] PeoDle vs. Bersamin. 88 Phil. 292.

[4] Philippine Congressional Record, House of Representatives, Vol. 22, June 29, 1946, p. 290.

[5]

[6] Aquino, The Revised Penal Code, vol. II, p. 399.

[7] People vs. Noble, 77 Phil. 93.

[8] U.S. vs. Fitzgerald, 2 Phil. 419.

[9] See note 7.

[10] People vs. Pardo, 79 Phil. 568.

[11] Seet.s.n. p. 3.

[12] People vs. Egido, 90 Phil., 762; People vs. Santos and Vicente, 105 Phil. 40.

[13] People vs. Acosta, 98 Phil. 642; People vs. Rapirap, 102 Phil. 863.

[14]U.S. vs. Leyba, 8 Phil. 671; People vs. Sebastian, 85 Phil. 602; People vs. Napili, 85 Phil.
521.

[15] Aquino, Vol. I, p. 286.

[16] L-16595, Feb. 23, 1982.

[17] 84 Phil. 860.

[18] Cited in Aquino, supra, p. 287.

[19] People vs. Alcala, 46 Phil. 739; People vs. Matbagon, 60 Phil. 887; People vs. Corpus, et
al., L-10104, January 28, 1961.

[20] U.S. vs. Billedo, 32 Phil. 575; People vs. Perez and De Leon, 32 Phil. 163.

[21] People vs. Leyles, L-15300, May 29, 1964.

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[22] Letter-Report from the Office of the Superintendent, New Bilibid Prison.

Source: Supreme Court E-Library | Date created: June 26, 2015

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