People of the Philippines vs. Celestino Garillo y Orjel and Federico Fernandez y Arellano

A person who participates in a robbery as a lookout, with knowledge of the criminal plan, is liable as a principal in robbery with homicide for the killing committed on the occasion of the robbery, even if he did not take part in or foresee the killing, unless he proves that he tried to prevent it; the death penalty may be reduced to reclusion perpetua where nocturnity is offset by the mitigating circumstance of physical defect.

Lim Tao Sing owned and operated the Excel Ice Drop Factory at No. 2504 Taft Avenue, Pasay City, with his uncle Lim Ping Suy assisting in its management. The factory occupied a two-storey building; Lim Tao Sing used the upper floor as sleeping quarters, while the ground floor housed factory equipment and the sleeping quarters of some workers, including Henry Barillo and Alejandro Buco alias Tangkad. The prosecution was brought under the Revised Penal Code's provisions on robbery with homicide, Article 294(1), before the Circuit Criminal Court of Rizal.

Lim Tao Sing owned and operated the Excel Ice Drop Factory at No. 2504 Taft Avenue, Pasay City. His uncle, Lim Ping Suy, assisted him in managing the factory. The factory was housed in a two-storey building; Lim Tao Sing used the upper floor as his sleeping quarters, while the ground floor contained the factory equipment and the sleeping quarters of some workers. Lim Ping Suy lived elsewhere and went to the factory only during the daytime. In the early evening of October 31, 1968, Lim Tao Sing and Lim Ping Suy counted P3,200.00 set aside for operating expenses such as wages, house rentals, and light and water bills. They also examined jewelry consisting of a necklace, a bracelet, a gold ring, a diamond ring, and other rings, all valued at P1,800.00, which Lim Ping Suy had bought for his nephew and which Lim Tao Sing intended to send as gifts to his children in China. They placed the money and jewelry inside a trunk in Lim Tao Sing's bedroom, and Lim Ping Suy then left for home.

In the evening of November 1, 1968, All Saints' Day, Henry Barillo and Alejandro Buco alias Tangkad, workers in the factory, slept as usual on the ground floor. The room was well lighted with fluorescent lamps because the factory generator operated for twenty-four hours. At about 11:00 o'clock that night, Barillo woke up because he felt he was being tied up; he saw Tangkad tying him while another person pointed a gun at him. Barillo also saw three more persons, two of whom were armed with knives, emerging from a hole made on the plywood wall and entering the factory. He was ordered to lie face downwards, but he saw three men, including Tangkad, go upstairs to Lim Tao Sing's room. A little later, he heard a shot followed by the moans of Lim Tao Sing. Soon thereafter, he saw the men coming downstairs and leaving the place in a hurry, all of them running. About an hour later, Barillo saw Norberto, an ice drop vendor, through the hole in the wall and asked him to call the police. Two policemen arrived and untied Barillo. Barillo and a policeman went upstairs, where they found Lim Tao Sing's room ransacked and Lim Tao Sing dead, covered with a mosquito net soaked with his own blood. The box that had contained the money and jewelry was destroyed and emptied of its contents. The body was brought to the NBI morgue for autopsy, and the medical examiner reported that Lim Tao Sing died of multiple stab wounds.

Three persons—Celestino Garillo y Orjel alias Celing, Alejandro Buco y Valdez alias Tangkad, and Federico Fernandez y Arellano alias Putol—were arrested and charged with robbery with homicide. Three other suspects remained at large. Garillo and Fernandez pleaded not guilty, while Buco entered a plea of guilty and was sentenced to reclusion perpetua. Garillo and Fernandez were subsequently found guilty of the crime charged and sentenced to death. Garillo died in the National Penitentiary at Muntinglupa, Rizal on August 16, 1970, and his appeal was dismissed by the Supreme Court on December 9, 1970, leaving Fernandez as the remaining accused on review.

The prosecution's evidence on conspiracy included the admission of Alejandro Buco alias Tangkad that the plan to rob the owner and operator of the Excel Ice Drop Factory was hatched and proposed to him by Gaudencio Garillo alias Gauding, Celestino Garillo alias Celing, Roberto Quinto alias Berto, and Guillermo alias Emot in the morning of November 1, 1968. The deceased Celestino Garillo likewise admitted that the plan to rob the said owner was proposed to him by Gauden, Berto, and Emot. Fernandez was aware of the plan. He denied being a co-conspirator, claiming that he was merely told of the plan; that he was told that if he did not want to go with them in robbing the owner, he should merely keep quiet and they would give him something; that he answered that it was up to them; and that he was asked to accompany them to act as look-out or guard outside (bantay sa labas), to which he added that he did so because he was afraid of Alejandro Buco alias Tangkad, who had a tattoo "Simaron-Oxo" on his hands. Fernandez claimed that he left the place when the conspirators started to destroy a portion of the wall of the ice drop factory. According to his statement, however, he fled to Barrio Bicutan, Taguig, Rizal very early in the morning of the next day and thence to Angeles, Pampanga, where he stayed in a house together with some of the conspirators. He also stated that he received no share and that when he met Berto and Goding in Angeles, Pampanga, they told him that nothing was taken because the gun fired and the owner was killed because he fought.

The trial court found that the commission of the crime was attended by the aggravating circumstances of nighttime, superior strength, evident premeditation, and treachery, and it found Fernandez to be a co-principal. The evidence showed that while Tangkad, Celing, Gauden, and Berto were on the second floor, the gun held by Gauden hit a table and misfired; Lim Tao Sing rose from his bed holding a bolo, and some of the accused stabbed him. Fernandez's right hand was missing as a consequence of an accident involving kuwitis on New Year's Eve of 1966.

• Lack of Participation in Conspiracy: Appellant Fernandez, through counsel de oficio, argued that the evidence showed he was not a party to the plan to commit robbery because he was merely told of the plan and never agreed to participate in its commission.
• Desistance: Counsel contended that Fernandez left the place when the conspirators started to break the factory's wall preparatory to entering the premises, demonstrating that he did not participate in the crime.
• Fear of the Mastermind: Counsel maintained that if Fernandez made a pretense of joining the conspirators as a look-out or guard outside, it was because of his fear of displeasing the mastermind, Alejandro Buco alias Tangkad, a member of the notorious OXO gang who had a tattoo "Simaron-Oxo" on his hands.

• Conspiracy and Participation: Whether Federico Fernandez was a co-conspirator and principal in the robbery with homicide despite his claim that he merely knew of the plan, acted as look-out out of fear, and left before the wall was breached.
• Liability for Robbery with Homicide: Whether one who participated in the robbery as a look-out but did not take part in the killing is guilty as a principal of robbery with homicide absent proof that he tried to prevent the killing.
• Aggravating Circumstances: Whether evident premeditation, abuse of superior strength, and treachery were properly appreciated.
• Nocturnity and Mitigating Circumstance: Whether nocturnity was present and whether it was offset by Fernandez's physical defect.
• Penalty: Whether the death penalty imposed on Fernandez should be reduced to reclusion perpetua.

• Conspiracy and Participation: Yes. Conspiracy and Fernandez's participation as a look-out were established by his knowledge of the plan and his previous and simultaneous acts, including acting as guard outside; his flight and hiding with the conspirators negated his disclaimer and desistance.
• Liability for Robbery with Homicide: Yes. Under Article 294, No. 1, of the Revised Penal Code, all who took part in the robbery are principals of robbery with homicide when homicide occurs by reason or on occasion of the robbery, unless they tried to prevent the killing; no such attempt was shown.
• Aggravating Circumstances: No, except nocturnity. Evident premeditation, abuse of superior strength, and treachery were not appreciated for lack of proof.
• Nocturnity and Mitigating Circumstance: Nocturnity was present, but it was offset by the mitigating circumstance of Fernandez's physical defect, his missing right hand.
• Penalty: The death penalty was reduced to reclusion perpetua.

• Conspiracy and Participation: The Court reasoned that conspiracy was proved by the evidence presented, and that Fernandez not only knew of the plan to rob Lim Tao Sing but also participated in its commission by previous and simultaneous acts—acting as look-out or guard outside—which lent to the accomplishment of the criminal intent. His claim that he was merely told of the plan and never agreed was negated by his own statement that he fled to Barrio Bicutan, Taguig, Rizal very early the next morning and then to Angeles, Pampanga, where he stayed with some of the conspirators. The Court found no reason for an innocent person to run away and hide with the conspirators, and held that his flight and concealment were inconsistent with his claim of innocence and desistance.
• Liability for Robbery with Homicide: The Court applied the rule that when homicide takes place as a consequence of or on occasion of a robbery, all those who took part in the robbery shall be guilty as principals of the crime of robbery with homicide, unless there is proof that they tried to prevent the killing. Although Fernandez may not have foreseen the killing and did not take part in its execution, he was nevertheless guilty of robbery with homicide because he took part in the robbery and the record showed no attempt on his part to prevent the homicide. The Court cited People vs. Carunungan, 109 Phil. 534, and held the crime covered by Article 294, No. 1, of the Revised Penal Code.
• Aggravating Circumstances: The Court held that evident premeditation could not be considered because it is inherent in robbery, especially where committed by various persons, since there must be an agreement and the plotters have to meditate and reflect on the manner of carrying out the crime and act coordinately; in robbery with homicide, evident premeditation to kill must be shown in addition to stealing, and no such proof existed. Abuse of superior strength could not be appreciated absent proof of the relative physical strength of the aggressors and the victim and that the assailants took advantage of their combined strength. Treachery was likewise absent because the attack was made upon the impulse of the moment, as a sequence of an unexpected turn of events: the gun held by Gauden hit a table and misfired, Lim Tao Sing rose from his bed holding a bolo, and some of the accused stabbed him. The Court cited People vs. Valeriano, 90 Phil. 15, and People vs. Vente, L-8344, Feb. 28, 1957, 100 Phil. 1099, among others.
• Nocturnity and Mitigating Circumstance: The Court found nocturnity present because the accused purposely sought the cover of darkness of the night in committing the crime. This aggravating circumstance was offset, however, by the mitigating circumstance that Fernandez suffered a physical defect which restricted his means of action, defense, or communication with his fellow beings, his right hand being missing as a consequence of an accident involving kuwitis on New Year's Eve of 1966.
• Penalty: Because only nocturnity remained as an aggravating circumstance and it was offset by the mitigating circumstance of physical defect, the judgment imposed on Fernandez was reduced to reclusion perpetua. The appealed decision was affirmed in all other respects.

• Conspiracy; participation by look-out — Conspiracy may be established by proof of knowledge of the criminal plan and participation through previous or simultaneous acts. A person who acts as a look-out or guard outside during a robbery, with knowledge of the plan, is a co-conspirator and principal. The Court applied this to Fernandez, whose own statement and flight with the conspirators negated his claim of non-participation and desistance.
• Robbery with Homicide; liability of all participants — When homicide takes place as a consequence of or on occasion of a robbery, all those who took part in the robbery are guilty as principals of robbery with homicide, unless they prove that they tried to prevent the killing. The Court applied this rule to Fernandez even though he did not take part in the killing and may not have foreseen it.
• Evident Premeditation in Robbery — Evident premeditation is inherent in robbery, especially where committed by various persons, because the plotters must agree, meditate, and coordinate. In robbery with homicide, evident premeditation to kill must be shown in addition to the intent to steal; absent such proof, it cannot aggravate the offense.
• Abuse of Superior Strength — Abuse of superior strength cannot be appreciated absent proof of the relative physical strength of the aggressors and the victim and that the assailants took advantage of their combined strength to consummate the offense.
• Treachery — Treachery is absent when the attack is made upon the impulse of the moment as a sequence of an unexpected turn of events, rather than by a deliberate and preconceived method of attack.
• Nocturnity and Physical Defect — Nocturnity may be appreciated when the accused purposely sought the cover of darkness, but it may be offset by the mitigating circumstance of a physical defect that restricts the offender's means of action, defense, or communication with others.
• Flight and Desistance — A claim of desistance from a conspiracy is negated by the accused's flight and concealment with the conspirators after the crime; such conduct is inconsistent with innocence and voluntary withdrawal.

• "The evidence thus presented proves conspiracy and that the accused Federico Fernandez not only knew of the plan to rob Lim Tao Sing, but also participated in its commission by previous and simultaneous acts (by acting as look-out or guard outside) which lent to the accomplishment of the criminal intent." — This passage states the majority's core finding on conspiracy and Fernandez's participation as a look-out.
• "The rule is that when homicide takes place as a consequence of or on occasion of a robbery, all those who took part in the robbery shag be guilty as principals of the crime of robbery with homicide, unless there is proof that they have tried to prevent the killing." — This passage states the controlling rule on liability for robbery with homicide, applied to Fernandez despite his non-participation in the killing.
• "If Fernandez were innocent as he claimed to be, there is no reason for him to run away and hide together with some of the conspirators." — This passage explains why the Court rejected Fernandez's claim of innocence and desistance based on his flight and concealment.
• "Premises considered, the judgment imposed upon the accused Fernandez should be reduced to reclusion perpetua." — This passage states the dispositive modification of the penalty from death to reclusion perpetua.

• People vs. Carunungan, 109 Phil. 534 — Cited by the majority for the rule that all those who take part in a robbery are guilty as principals of robbery with homicide when a killing occurs on the occasion of the robbery, unless they tried to prevent the killing.
• People vs. Valeriano, 90 Phil. 15 — Cited in connection with the Court's rejection of abuse of superior strength as an aggravating circumstance.
• People vs. Vente, L-8344, Feb. 28, 1957, 100 Phil. 1099 — Cited in connection with the Court's rejection of treachery where the attack was made upon the impulse of the moment.
• People vs. Custodio, 47 SCRA 289 — Cited in the dissenting opinion for the rule that conspiracy must be established as clearly and convincingly as the commission of the offense itself.
• People vs. Amajul, 1 SCRA 682 — Cited in the dissenting opinion for the rule that an extrajudicial confession of a defendant is admissible against him but not against his co-defendant.

• Article 294, No. 1, Revised Penal Code — Defines and penalizes robbery with homicide. The majority held Fernandez guilty under this provision because the killing of Lim Tao Sing occurred on the occasion of the robbery, even though Fernandez did not take part in the killing.
• Article 6, paragraph 3, Revised Penal Code — Cited in the dissenting opinion as exempting from liability those who spontaneously desist from the commission of a felony. The dissent argued that Fernandez's withdrawal before the wall was breached constituted voluntary desistance and warranted acquittal.
• Section 25, Rule 130, Rules of Court — Cited in the dissenting opinion for the rule that the rights of a party cannot be prejudiced by the act, declaration, or omission of another; the dissent argued that the extrajudicial statements of co-accused were inadmissible against Fernandez.
• Section 27, Rule 130, Rules of Court — Cited in the dissenting opinion for the rule that the act or declaration of a conspirator relating to the conspiracy may be given in evidence against a co-conspirator only after the conspiracy is shown by evidence other than such act or declaration.

Fernando, Barredo, Makasiar, Aquino, Santos, Fernandez, and Guerrero, JJ., concurred. Castro, J., concurred in the result. Teehankee and Antonio, JJ., took no part.

• Justice Muñoz Palma — The dissent argued that the evidence did not support Fernandez's conviction. The prosecution's evidence consisted solely of the oral testimony of Henry Barillo and the extrajudicial statements of Celestino Garillo (Exhibit D) and Fernandez (Exhibit M). Barillo positively identified only Alejandro Buco alias Tangkad and Celestino Garillo alias Celing; he never mentioned or identified Fernandez as one of the three other persons who entered the factory. Exhibit D showed that Fernandez remained outside the factory and was unarmed. Exhibit M was not a confession because it contained exculpating statements; Fernandez narrated that he stood guard outside, left when his companions were breaking the wall, went home, and later heard a shot. The dissent characterized this as voluntary desistance under Article 6, paragraph 3, of the Revised Penal Code, which exempts from liability those who spontaneously desist from the commission of a felony. It also argued that the extrajudicial statements of co-accused were inadmissible against Fernandez under the res inter alios acta rule, Section 25, Rule 130, and that a conspirator's declaration could be admitted against a co-conspirator only after conspiracy was shown by independent evidence, which was absent. Finally, the dissent maintained that flight is not substantive evidence of guilt and, without separate admissible evidence, Fernandez's departure for Angeles, Pampanga was insufficient to warrant conviction. The dissent voted for acquittal.