People of the Philippines vs. Pedro Tumulak

A conviction for robbery with homicide may rest on the positive identification of eyewitnesses and a conspiracy inferred from concerted acts before, during, and after the crime; once conspiracy is established, the act of one is the act of all. Band, though an ordinary aggravating circumstance in robbery with homicide, cannot be appreciated unless alleged in the information as required by Sections 8 and 9, Rule 110.

Pedro Tumulak and his co-accused were residents of Cawayan, Masbate, where Dioscoro Abonales and his family also lived; the victims knew them as neighbors. The prosecution was brought under the Revised Penal Code’s provisions on robbery with homicide, Article 294, although the information used the designation “robbery in band with homicide,” a designation not found in the Code; band is treated as an ordinary aggravating circumstance. The 2000 Rules on Criminal Procedure govern the pleading of qualifying and aggravating circumstances.

Dioscoro Abonales lived in Barangay Maihao, Cawayan, Masbate, with his wife Josefa and daughter Elizabeth. Rolando Verdida was Elizabeth’s fiancé, and Artemio Abonales was Dioscoro’s father. Pedro Tumulak and his co-accused Paulino Buayaban, Larry Betache, Marciano Toñacao, and Yoyong Buayaban were known to the victims and lived in the same locality.

At about 7:00 p.m. on January 2, 1990, the five accused, all armed, entered Dioscoro’s house. Pedro Tumulak and Paulino Buayaban immediately poked their guns at Rolando Verdida, who was sitting near the balcony with Elizabeth, and ordered them to lie flat on the floor. Marciano Toñacao and Yoyong Buayaban proceeded to the room where Dioscoro was sleeping; Yoyong kicked Dioscoro in the face, and when Dioscoro stood up, Marciano shot him in the neck, causing instantaneous death. Larry Betache went outside and stood guard at the door holding a knife.

Pedro Tumulak then went to the kitchen, grabbed Josefa Abonales by the right arm, and asked where the money was. Frightened, Josefa went to the room, followed by Marciano, while Pedro returned to watch Elizabeth and Rolando. Marciano threatened Josefa with death if she refused to surrender the money. Josefa took P30,000 from a wooden chest, placed it inside a pillow case, and handed it to Marciano; the money was the family’s capital in buying and selling pigs. Meanwhile, someone forcibly took Rolando’s wallet while he lay face down; it contained P10,000 intended for his wedding to Elizabeth, which he had brought to the house that night because they were preparing for the wedding.

After taking the money, the perpetrators hurriedly left the house. While escaping, they bumped into Artemio Abonales, who was on his way to investigate the gunshots. Artemio recognized them as they stopped momentarily; Paulino Buayaban pointed a gun at him and pulled the trigger, but the gun did not fire. The malefactors then ran away. Artemio proceeded to Dioscoro’s house, neighbors converged there, and Rolando and Elizabeth reported the incident to the barangay captain, who responded with three councilmen and arrived at the scene at about 8:30 p.m.

Appellant Pedro Tumulak denied involvement and set up alibi. He testified that at about 7:00 p.m. on January 2, 1990, he was talking with Barangay Captain Silverio Cortes in the latter’s house in Barangay Pen-as, Cawayan, Masbate, and that he slept there at 9:30 p.m.; he claimed he was staying there because Cortes had hired him to work in his fishpond from November 4, 1989 until his arrest by Alfredo Colambot on January 4, 1990. On cross-examination, he said Cortes’s house was about six kilometers from Dioscoro’s house and his own house was about one kilometer away. He also testified that in 1987 Rolando Verdida had mauled him in Barangay Maihao, but he did not ask why or report the incident to the police. The trial court found the prosecution evidence more convincing, rejected the alibi as weak and easy to fabricate, and relied on the positive identification by Rolando Verdida, Josefa Abonales, and Artemio Abonales. It found a direct relation between the robbery and the killing and conspiracy from unity of purpose and design.

• Judge Who Penned the Decision: Appellant argued that Judge Henry B. Basilla, who wrote the decision, was not the judge who observed firsthand the testimonies of the witnesses, so he could not have discerned whether the witnesses were telling the truth.
• Credibility of Artemio Abonales and Larry Betache: Appellant maintained that the trial court erred in giving weight to Artemio Abonales over Larry Betache because Artemio’s eyesight was allegedly defective due to old age and his testimony was inconsistent, while Larry Betache was credible because a DSWD report described him as a “good boy.”
• Identification by Rolando Verdida: Appellant argued that Rolando Verdida could not have identified him and his companions and could not have seen what was going on because Rolando was lying face down on the floor.
• Identification by Josefa Abonales: Appellant argued that Josefa Abonales did not really know him and his companions because she allegedly admitted that she only learned their names when her father-in-law told her.
• Alibi and Denial: Appellant set up alibi and denial, claiming that at the time of the crime he was talking with Barangay Captain Silverio Cortes in Barangay Pen-as, Cawayan, Masbate, and later slept in Cortes’s house; he denied any involvement in the crime.
• Sufficiency of Evidence: Appellant argued that the trial court gravely erred in finding him guilty beyond reasonable doubt of robbery with homicide.

• Credibility and the Judge Who Did Not Hear the Witnesses: Whether the fact that the judge who penned the decision was not the judge who heard the testimonies is enough reason to overturn the trial court’s findings on the credibility of witnesses.
• Credibility of Artemio Abonales and Larry Betache: Whether the trial court erred in giving weight to Artemio Abonales’s testimony over Larry Betache’s, in light of the alleged defects in Artemio’s eyesight and testimony and the DSWD report on Larry.
• Identification by Rolando Verdida and Josefa Abonales: Whether Rolando Verdida and Josefa Abonales positively identified appellant despite Rolando’s position face down on the floor and Josefa’s alleged reliance on her father-in-law for the names of the malefactors.
• Alibi: Whether appellant’s defense of alibi should be credited against the prosecution’s positive identification.
• Conspiracy: Whether conspiracy existed among appellant and his co-accused.
• Robbery with Homicide and Band: Whether appellant was guilty beyond reasonable doubt of robbery with homicide and whether the aggravating circumstance of band could be appreciated when not alleged in the information.
• Penalty and Damages: Whether the penalty of reclusion perpetua and the award of damages were proper.

• Credibility and the Judge Who Did Not Hear the Witnesses: No. A judge who pens a decision without personally hearing the witnesses may rely on the transcripts, and the factual findings remain respected absent grave abuse of discretion or overlooked facts.
• Credibility of Artemio Abonales and Larry Betache: No error. The positive identification by Artemio, Rolando, and Josefa prevails; minor inconsistencies strengthen credibility, and the DSWD report does not make Larry’s testimony credible.
• Identification by Rolando Verdida and Josefa Abonales: Yes, the identification was positive. Rolando could glimpse the malefactors in a small, well-lighted house, and Josefa knew them as neighbors and did not admit learning their names only from Artemio.
• Alibi: No. Alibi fails because appellant did not prove physical impossibility to be at the crime scene; the alleged place was in an adjacent barangay about an hour’s walk away.
• Conspiracy: Yes. Conspiracy was inferred from concerted acts before, during, and after the crime; the act of one became the act of all.
• Robbery with Homicide and Band: Yes, robbery with homicide was established. Band cannot be appreciated because it was not alleged in the information as required by Sections 8 and 9, Rule 110.
• Penalty and Damages: Reclusion perpetua is proper absent an aggravating circumstance. Moral damages were increased to P50,000; exemplary damages were deleted; temperate damages of P25,000 were awarded; civil indemnity and restitution were affirmed.

• Credibility and the Judge Who Did Not Hear the Witnesses: The fact that the judge who penned the decision was not the judge who heard the testimonies was not enough reason to overturn the trial court’s findings on credibility. Ideally a judge should hear all testimonies personally, but a different judge may pen the decision because the predecessor retired, died, or was reassigned. The successor may rely on the transcripts of stenographic notes, and such reliance does not violate substantive or procedural due process. The correctness of the decision is not impaired unless there is grave abuse of discretion in the appreciation of factual findings. The only reason to disregard the trial court’s findings is a manifest indication that it overlooked, misunderstood, or misapplied facts of weight and substance that could have altered the conviction. No such reason existed.
• Credibility of Artemio Abonales and Larry Betache: The trial court did not err in giving weight to Artemio Abonales. Artemio testified that he could still see clearly, that he knew all the accused since childhood, and that the distance between him and the malefactors was about two meters; the malefactors halted briefly, and Paulino Buayaban tried but failed to shoot him. The alleged inconsistency—that Rolando and Elizabeth were still lying face down when Artemio arrived despite his wife and daughter having gone ahead—was minor and did not affect credibility. Minor inconsistencies do not detract from credibility; they strengthen it and erase suspicion of rehearsed testimony. Larry Betache’s testimony did not prevail. The DSWD report describing him as a “good boy” did not make his testimony credible. As a defense witness and a youthful offender entitled to suspended sentence, he had nothing to lose by freeing appellant, and his uncorroborated testimony wilted against the positive identification by Rolando, Josefa, and Artemio.
• Identification by Rolando Verdida and Josefa Abonales: Rolando’s position face down did not prevent him from glimpsing the malefactors as they moved inside the house. The house was a small nipa hut where one could see without obstruction what was happening in another part, and it was well-illuminated by three lamps—one in the balcony, one at the door of the bedroom, and one in the kitchen. Before he was ordered to lie flat, Rolando had a good look at the accused when they entered, and Pedro Tumulak and Paulino Buayaban pointed guns at him. Josefa’s testimony contained no admission that she learned the names only from her father-in-law. She testified that her father-in-law met five persons—Paulino Buayaban, Pedro Tumulak, Larry Betache, Yoyong Buayaban, and Marciano Toñacao—but she never said that was how she first knew their names. Her direct testimony showed she knew the accused, and on cross-examination she stated that she knew them because they lived in the same place and were neighbors.
• Alibi: To properly appreciate alibi, the requirements of place and time must be strictly met. The accused must prove not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to be at the scene at the time of its commission. Appellant failed to establish physical impossibility. The house of Barangay Captain Silverio Cortes, where he claimed to be, was in an adjacent barangay and was not far from the scene; appellant could reach the victim’s house after only an hour’s walk. The barangay captain did not testify despite several subpoenas. The defense presented Laurencio Villegas, who claimed to be a co-worker in Cortes’s fishpond and testified that he and appellant ate together on the date and time of the crime and slept on one mat, with appellant sleeping ahead. Against the positive identification of the prosecution witnesses, the alibi could not prevail.
• Conspiracy: Conspiracy can be inferred from the acts of the perpetrators before, during, and after the crime, which indicate a common design, concerted action, and concurrence of sentiments. The eyewitness testimonies showed unity of purpose and design. The malefactors, all armed, entered Dioscoro Abonales’s house; Paulino Buayaban and Pedro Tumulak stood guard over Rolando Verdida and Elizabeth Abonales; Yoyong Buayaban and Marciano Toñacao woke Dioscoro by kicking him in the face, and Marciano shot him in the neck; Larry Betache stayed at the door as a look-out; and after the money was forcibly seized, they all fled. The five accused clearly conspired, and when conspiracy is shown, the act of one is the act of all. Thus, although Pedro Tumulak did not personally kill Dioscoro or forcibly take the money from Josefa, he was liable as a principal by direct participation for Dioscoro’s death as an incident to or result of the robbery.
• Robbery with Homicide and Band: The information erroneously charged “robbery in band with homicide.” There is no such crime in the Revised Penal Code; the felony is properly called robbery with homicide. Under People vs. Apduhan, Jr., if robbery with homicide is committed by a band, the indictable offense is still “robbery with homicide” under Article 294(1) of the Revised Penal Code, but the circumstance that it was committed by a band is appreciated as an ordinary aggravating circumstance. In this case, however, band could not be treated as an aggravating circumstance because it was not alleged in the body of the information. Although band is an ordinary aggravating circumstance, the 2000 Rules on Criminal Procedure require even generic aggravating circumstances to be alleged in the information. Sections 8 and 9, Rule 110, require the complaint or information to state the designation of the offense, aver the acts or omissions constituting the offense, and specify qualifying and aggravating circumstances in ordinary and concise language sufficient to enable a person of common understanding to know the offense and its qualifying and aggravating circumstances. People vs. Nerio Suela held that the use of “must” in Section 9 makes the requirement mandatory; failure to comply means generic aggravating circumstances, although proven at trial, cannot be appreciated if not stated in the information. Rules of criminal procedure are given retroactive application insofar as they benefit the accused. Since there was no allegation that “more than three armed malefactors acted together in the commission of the crime,” band could not be appreciated.
• Penalty and Damages: Appellant was guilty beyond reasonable doubt of robbery with homicide as defined and penalized under Article 294 of the Revised Penal Code by reclusion perpetua to death. Because there was no appreciable aggravating circumstance, reclusion perpetua was the proper penalty. On civil liability, the trial court’s award of damages was affirmed except for the exemplary damages of P20,000, which were deleted, and the moral damages, which were increased from P20,000 to P50,000. Exemplary damages were deleted because the crime was not committed with any aggravating circumstance; under Article 2230 of the Civil Code, exemplary damages can only be awarded in criminal actions if the crime was committed with aggravating circumstances. Moral damages were properly awarded to the wife and family of Dioscoro Abonales for the pain and anguish they suffered, and the amount was increased to P50,000 in conformity with existing jurisprudence. The trial court did not award actual damages for funeral and burial because no receipts were presented, which was correct; however, under People vs. Abrazaldo, temperate damages of P25,000 are awarded where no documentary evidence of actual damages is presented because it is reasonable to presume that the family necessarily incurred expenses for the wake and funeral. Thus, temperate damages of P25,000 were added. The civil indemnity of P50,000 and restitution of P40,000—P30,000 to the heirs of Dioscoro Abonales and P10,000 to Rolando Verdida—were affirmed.

• Conspiracy; Act of One Is the Act of All: Conspiracy may be inferred from the acts of the perpetrators before, during, and after the crime showing a common design, concerted action, and concurrence of sentiments. Once conspiracy is established, the act of one conspirator is the act of all, and each is liable as a principal by direct participation. Applied: Pedro Tumulak was liable for robbery with homicide although he did not personally kill Dioscoro or take the money, because he guarded the victims while his co-accused killed and robbed.
• Alibi: Alibi requires proof not only that the accused was somewhere else when the crime was committed but also that it was physically impossible for him to be at the scene at the time of its commission. Applied: appellant’s claim that he was in an adjacent barangay about an hour’s walk away did not establish physical impossibility, especially against positive identification.
• Credibility of Witnesses; Judge Who Did Not Hear Testimonies: A judge who pens a decision without personally hearing the witnesses may rely on the transcripts of stenographic notes; the findings of fact remain respected absent grave abuse of discretion or a manifest indication that the trial court overlooked, misunderstood, or misapplied facts of weight and substance. Minor inconsistencies in a witness’s testimony do not detract from credibility and may even strengthen it. Applied: the trial court’s credibility findings were upheld.
• Robbery with Homicide and Band: Robbery with homicide is penalized under Article 294(1) of the Revised Penal Code. If committed by a band, the offense remains robbery with homicide, but band is an ordinary aggravating circumstance. However, under the 2000 Rules on Criminal Procedure, even generic aggravating circumstances must be alleged in the information; failure to allege band bars its appreciation. Applied: band was not appreciated because the information did not allege that more than three armed malefactors acted together.
• Exemplary Damages in Criminal Actions: Under Article 2230 of the Civil Code, exemplary damages may be awarded in criminal actions only if the crime was committed with an aggravating circumstance. Applied: the award of exemplary damages was deleted because no aggravating circumstance was appreciated.
• Temperate Damages for Death: Where no documentary evidence of actual damages for funeral and burial is presented, temperate damages of P25,000 may be awarded because it is reasonable to presume that the family of the deceased necessarily incurred expenses for the wake and funeral. Applied: P25,000 temperate damages were added.

• "The fact that the judge who penned the decision was not the judge who heard the testimonies of the witnesses was not enough reason to overturn the findings of fact of the trial court on the credibility of the witnesses." — States the rule allowing a successor judge to rely on transcripts and upholding the trial court’s credibility findings.
• "The accused must prove not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to be at the scene of the crime at the time of its commission." — Sets out the strict requisites of alibi, which appellant failed to satisfy.
• "When conspiracy is shown, the act of one is the act of all." — States the conspiracy doctrine that made appellant liable for the killing and robbery even though he did not personally commit all acts.
• "In the information, the People erroneously charged the accused with "robbery in band with homicide." There is no such crime in the Revised Penal Code. The felony is properly called robbery with homicide." — Clarifies the proper denomination of the offense and the treatment of band as an aggravating circumstance.

• People vs. Apduhan, Jr., 24 SCRA 798 [1968] — Cited for the rule that robbery with homicide committed by a band remains robbery with homicide under Article 294(1) of the Revised Penal Code, with band treated as an ordinary aggravating circumstance.
• People vs. Nerio Suela, G.R. Nos. 133570-71, January 15, 2002 — Cited for the mandatory requirement under Section 9, Rule 110, that generic aggravating circumstances be alleged in the information; failure to comply bars their appreciation even if proven.
• People vs. Rogelio Sansaet y Santoja, G.R. No. 139330, February 6, 2002 — Cited for the rule that a judge who did not hear the testimonies may rely on transcripts without violating due process, and for the strict requirements of alibi.
• People vs. De Paz, 212 SCRA 56, 63 [1992] — Cited with Sansaet on the reliability of factual findings by a judge who did not personally hear the witnesses.
• People vs. Rodolfo Castillano, G.R. No. 130596, February 15, 2002 — Cited for the rule that trial court findings may be disregarded only when facts of weight and substance were overlooked, misunderstood, or misapplied.
• People vs. Robert Dinglasan, 267 SCRA 26 [1997]; People vs. Cesar Givera, 349 SCRA 513 [2001] — Cited for the rule that minor inconsistencies in witness testimony do not detract from credibility and may strengthen it.
• S/Sgt. Elmer T. Vergara vs. People of the Philippines, G.R. No. 128720, January 23, 2002; People vs. Diasanta, 335 SCRA 218 [2000]; People vs. Marollano, 276 SCRA 84, 110 [1997] — Cited for the requisites of alibi, particularly the need to prove physical impossibility to be at the crime scene.
• People vs. Manuel Gutierrez, G.R. Nos. 137610-11, February 6, 2002 — Cited for the rule that conspiracy may be inferred from acts before, during, and after the crime and that the act of one is the act of all.
• People vs. Abrazaldo, G.R. No. 124392, February 4, 2003 — Cited for the award of P25,000 temperate damages where no documentary evidence of actual damages for funeral and burial is presented.
• People vs. Roberto Cabillan, et al., G.R. No. 131808, February 6, 2002; People vs. Cariño, G.R. No. 129960, August 28, 2001; People vs. Panado, 348 SCRA 679 [2000] — Cited for the increase of moral damages to P50,000 in conformity with existing jurisprudence.

• Article 294(1), Revised Penal Code — Defines and penalizes robbery with homicide, the offense for which appellant was convicted; the penalty is reclusion perpetua to death, but absent an aggravating circumstance, reclusion perpetua was imposed.
• Article 14, paragraph 6, Revised Penal Code — Defines band as an aggravating circumstance where more than three armed malefactors act together; it was not appreciated because it was not alleged in the information.
• Sections 8 and 9, Rule 110, 2000 Rules on Criminal Procedure — Require the complaint or information to state the designation of the offense and specify qualifying and aggravating circumstances in ordinary and concise language; failure to allege band barred its appreciation.
• Article 2230, Civil Code — Allows exemplary damages in criminal actions only if the crime was committed with an aggravating circumstance; the award of exemplary damages was deleted because no aggravating circumstance was appreciated.

Puno (Chairman), Panganiban, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.