People of the Philippines vs. Victor Asibar y Baluyot and Julio Manzano y Roldan

Recidivism cannot be appreciated where the prior conviction and the crime charged are not embraced in the same title of the Revised Penal Code; a prior conviction for homicide under Title VIII (Crimes against Persons) cannot be used as recidivism for robbery with homicide under Title X (Crimes against Property). Corollarily, in robbery with homicide, treachery is a generic aggravating circumstance, not a qualifying one.

Victor Asibar y Baluyot and Julio Manzano y Roldan came to know each other while serving sentences at the New Bilibid Prison in Muntinlupa — Asibar having been committed on November 6, 1970 upon conviction for homicide, and Manzano having been convicted of theft of large cattle. Asibar was later transferred to the Sablayan Penal Colony, from which he escaped on February 3, 1972, while Manzano had been released on parole on February 25, 1971 and was required to report to the Municipal Judge of Puerto Galera, Oriental Mindoro. Their prior convictions and custodial status supplied the factual predicate for the recidivism allegation in the information and for the charge that Asibar was an escaped convict.

Victor Asibar y Baluyot, also known as "Romy Tan," and Julio Manzano y Roldan were both previously convicted — Asibar of homicide and Manzano of theft of large cattle — and came to know each other while serving sentence at the New Bilibid Prison in Muntinlupa. Asibar was transferred to the Sablayan Penal Colony, from which he escaped on February 3, 1972, while Manzano had been released on parole on February 25, 1971. After his escape, Asibar went to Manzano's house at Lusacan and stayed there for about a week, but was asked to leave after he confided that he was an escapee; he subsequently found work as a farm laborer for Bienvenido Rodriguez in Sta. Cruz, Occidental Mindoro.

While working in Sta. Cruz, Asibar saw Cesar Malabanan pass by and learned from the latter's friends that he carried firearms. Asibar, who regularly passed the Pola River bed on his way to work and had often seen Malabanan there in his jeep with several firearms, became interested in possessing them. On April 18, 1972, the two accused waited for Malabanan along the dried river bed of the Pola River in Sitio Baribuan, Barrio Casague, Sta. Cruz, Occidental Mindoro. At about 1:00 o'clock in the afternoon, Malabanan passed by. Asibar hid behind a cluster of talahib grass while Manzano stood about one hundred yards away at an elevated place to watch for the victim and signal Asibar. When the jeep approached, Manzano signalled Asibar, who positioned himself and readied his weapon. The jeep stopped about twenty meters away, apparently because of engine trouble, and Malabanan alighted and began tinkering with the engine. Asibar fired his first shot; the victim took several steps forward but then retreated about ten meters toward his jeep, whereupon Asibar fired a second shot and the victim fell.

When Asibar was certain that the victim was already dying, he took the latter's money from his jacket, amounting to about P1,000.00, and gave Manzano P395.00 as the latter's share. The two also took from the deceased three firearms — a carbine, a caliber .45 pistol, and a caliber .22 magnum revolver — as well as an attache case. Asibar then proceeded to a nearby forested area and, at a banana plantation, forced open the attache case and took therefrom two bundles of money and other documents. At the time of his death, Malabanan had with him P7,000.00 intended to pay the wages of workers in his poultry project and to defray expenses for supplies and materials, three firearms licensed in his name, his attache case, a diamond ring (solitaire brillante) valued at P6,500.00, a jade ring valued at P250.00, a sunglass valued at P200.00, and a box of ammunition; he was employed in the License Division of the Office of the City Treasurer of Manila with a monthly salary of P650.00.

Dr. Vicente A. Hernandez, Assistant Provincial Health Officer of Occidental Mindoro, performed the autopsy and issued the corresponding death certificate. He found nine gunshot wounds on the deceased — three on the head and six on the thorax — and recovered three pellets, one from the head and two from the thorax. The wounds were caused by a Gauge 12 shotgun. The head wounds, sustained while the victim was in a stooping position with the assailant facing him at a distance of more than five meters, were fatal and could independently have caused death; the six thorax wounds, inflicted with the assailant about five meters behind the victim, were likewise fatal. About 300 cc. of blood was recovered, causing severe damage to the brain, and the cause of death was internal hemorrhage, severe, secondary to multiple gunshot wounds.

Because of the gravity of the offense and the manner of its perpetration, a PC team of investigators headed by T/Sgt. Victor Ona, together with Senior NBI Agents Zacarias R. Leus and Juanito Gonzaga, was assigned to assist the local police authorities of Mamburao, Occidental Mindoro. On April 21, 1972, Manzano was first arrested; upon inquiry by PC Sgt. Descanzo and his companions, he accompanied them to the poblacion of Sta. Cruz, where Asibar was arrested. From Asibar were recovered a caliber .45 pistol with magazines and live bullets, a caliber .22 revolver Magnum with holster, and P800.00 in various denominations. Both were brought to the Office of the Chief of Police of Mamburao and investigated, and they admitted that they had killed Malabanan and stolen his personal belongings, narrating their respective participation in the killing.

The two were then brought to Barrio Lusacan, Sta. Cruz, to recover the articles they had mentioned. At Manzano's house, his wife refused to disclose the whereabouts of the money, but her eight-year-old son pointed to the money hidden in the trunk of a tree in their backyard, telling the investigators that his father had given it to him; the money, wrapped in cellophane, amounted to P395.00 in five-peso and twenty-peso bills. In the same backyard, a carbine was recovered underneath dried leaves and a small log, Manzano himself having pointed to the hiding place and admitted that Asibar had given it to him; its serial number, 7203022, tallied with the serial number on the license to possess in the deceased's name. Asibar then led the investigators to a forested area where he recovered the attache case, and thereafter to another forested area about 700 yards away where he recovered the homemade shotgun he had used in shooting the deceased, together with twenty-one rounds of live Gauge 12 ammunition; he informed the investigators that the shotgun had been given to him by Manzano. Live ammunition was also found in a creek about 600 yards from the crime scene, and an empty cartridge was found among the talahib grass at the scene. A footprint and a growth of talahib grass about ten yards from the scene that was slightly bent indicated that somebody had stepped there; Asibar admitted during the confrontation and reenactment that he had stayed at that spot and that his companion, Julio Manzano, had been at an elevated place on the other side of the river about 100 yards away to watch for the arrival of the victim and to make the necessary signal to him. On April 25, 1972, the investigators and the two accused returned to the crime scene for a reenactment of the crime, which was recorded in photographs.

NBI Agent Juanito Gonzaga verbally interrogated both accused, in coordination with PC Sgt. Ona, at the Municipal Building of Mamburao. On April 26, 1972, he took the statement of Victor Asibar in question-and-answer form, and on April 27, 1972, he and T/Sgt. Ona reduced to writing the statement of Julio Manzano. The statements were voluntarily executed and were subscribed and sworn to by both accused before NBI Agent Leus in the absence of the Municipal Judge. On April 29, 1972, T/Sgt. Ona filed a criminal complaint against the appellants for robbery with homicide, and in the preliminary investigation conducted by Municipal Judge Rosie L. Isler of Sta. Cruz, Occidental Mindoro, both accused pleaded guilty.

At the trial, Sgt. Laureano Descanso testified that he, together with Sgt. Ona, two NBI agents, Sgt. Lamuzga, and CIC Sgt. Luna, went to the scene of the crime and found that there were no houses thereat, or that the houses were very far from the place, the nearest house being more or less one kilometer away. The trial court found that the attack on the victim was sudden and that he was not given the chance to defend himself, and that the crime was committed in an uninhabited place; it likewise found that Asibar had been previously convicted by final judgment of homicide and that he had escaped from the Sablayan Penal Colony on February 3, 1972.

• Recidivism and Uninhabited Place: Defense counsel alleged that the trial court erred in appreciating the aggravating circumstances of recidivism and uninhabited place in imposing the supreme penalty of death on accused-appellant Victor Asibar.
• Manzano's Extrajudicial Confession: Defense counsel alleged that the trial court erred in not holding that accused-appellant Julio Manzano's extrajudicial confession (Exhibit "J") should be rejected for having been obtained under circumstances amounting to force and intimidation.
• Conspiracy: Defense counsel alleged that the trial court erred in holding that accused-appellant Julio Manzano acted in conspiracy with accused-appellant Victor Asibar.
• Manzano's Acquittal: Defense counsel alleged that the trial court erred in not holding that accused-appellant Julio Manzano should be acquitted for lack of proof to show any criminal participation on his part, whether as principal, accomplice, or accessory, in the commission of the crime charged.

• Recidivism: The Solicitor General, in his brief, agreed that recidivism should not have been considered in this case, since the previous conviction of appellant Asibar for homicide under Article 249 falls under Title VIII of the Revised Penal Code, entitled "Crimes against Persons," while the case at bar for robbery with homicide under Article 294, paragraph 1 of the Revised Penal Code falls under Title X, entitled "Crimes against Property."

• Recidivism: Whether the aggravating circumstance of recidivism was properly appreciated against accused-appellant Victor Asibar.
• Uninhabited Place: Whether the aggravating circumstance of an uninhabited place was properly taken into account.
• Treachery: Whether treachery should be considered a qualifying or a generic aggravating circumstance in the crime of robbery with homicide.
• Penalty: Whether the extreme penalty of death was properly imposed on accused-appellant Victor Asibar.
• Manzano's Conviction: Whether the trial court erred in not rejecting Julio Manzano's extrajudicial confession for having been obtained through force and intimidation, in holding that he acted in conspiracy with Victor Asibar, and in not acquitting him for lack of proof of criminal participation.

• Recidivism: No. Recidivism requires that both the first and the second offenses be embraced in the same title of the Revised Penal Code; Asibar's prior conviction for homicide under Article 249 falls under Title VIII while robbery with homicide under Article 294, paragraph 1 falls under Title X.
• Uninhabited Place: Yes. An uninhabited place is one where there are no houses at all, a place at a considerable distance from the town, or where the houses are scattered at a great distance from each other; the nearest house here was about one kilometer from the scene.
• Treachery: Generic. In robbery with homicide, treachery — the attack having been sudden and the victim not given the chance to defend himself — is a generic aggravating circumstance, not a qualifying one.
• Penalty: Reclusion perpetua. With two aggravating circumstances and one mitigating circumstance, the penalty should be imposed in its maximum period, but the extreme penalty of death cannot be imposed for lack of the necessary votes.
• Manzano's Conviction: Mooted. The case against Julio Manzano was dismissed insofar as his criminal liability is concerned, his death on November 27, 1978 having extinguished that liability under Article 89, paragraph 1 of the Revised Penal Code.

• Recidivism: The Court adopted and approved the Solicitor General's position that recidivism should not have been considered. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code; it is one of the requisites of recidivism that both the first and second offenses are embraced in the same title of the Code. Asibar's previous conviction was for homicide under Article 249, which falls under Title VIII of the Revised Penal Code, entitled "Crimes against Persons," whereas the present case for robbery with homicide under Article 294, paragraph 1 falls under Title X, entitled "Crimes against Property." Because the two offenses are not embraced in the same title, the requisite for recidivism is absent and the circumstance was improperly appreciated.

• Uninhabited Place: The aggravating circumstance of an uninhabited place was correctly taken into account. Sgt. Laureano Descanso testified that he, together with Sgt. Ona, two NBI agents, Sgt. Lamuzga, and CIC Sgt. Luna, went to the scene of the crime and found that there were no houses thereat or that the houses were very far from the place, the nearest house being more or less one kilometer away. An uninhabited place is one where there are no houses at all, a place at a considerable distance from the town, or where the houses are scattered at a great distance from each other. In People vs. Aguinaldo, 55 Phil. 610, where the nearest house was 400 meters distant, hidden by coconut groves, the place was considered despoblado; in People vs. Rubia, 52 Phil. 172, the crime was held to have been committed in an uninhabited place because it was difficult for the offended party to receive any help while the assailants could easily have escaped punishment. The locus of the killing, with the nearest house about a kilometer away, accordingly qualified as an uninhabited place.

• Treachery: Because the crime charged and proved is robbery with homicide, treachery — the attack having been sudden and the victim not having been given the chance to defend himself — should be considered a generic aggravating circumstance and not a qualifying one. It therefore aggravates the penalty without changing the nature of the offense or raising it to a higher degree.

• Penalty: With recidivism eliminated, two aggravating circumstances remained — treachery and uninhabited place — against one mitigating circumstance, the plea of guilty. The penalty should thus be imposed in its maximum period. The extreme penalty of death, however, could not be imposed for lack of the necessary votes. Accordingly, the judgment of the lower court with respect to Asibar was affirmed in all respects, with the sole modification that he shall suffer reclusion perpetua only, with costs de oficio.

• Manzano's Conviction: The errors assigned on Manzano's behalf — the rejection of his extrajudicial confession for having been obtained under circumstances amounting to force and intimidation, the finding that he acted in conspiracy with Asibar, and his claimed entitlement to acquittal for lack of proof of criminal participation — were not resolved on the merits. The Clerk of Court received a letter from the Officer-in-Charge of the Bureau of Prisons informing the Court that Manzano died on November 27, 1978 at the New Bilibid Prison Hospital of Military Tuberculosis, as confirmed by the records of the Local Civil Registrar of Muntinlupa, Rizal. The Solicitor General commented that Manzano's criminal liability had been extinguished by his death under Article 89, paragraph 1 of the Revised Penal Code, and that the appeal with respect to him should be dismissed without prejudice to civil liability, citing the Court's resolutions in People vs. Florencio Datay alias "Lucy," L-39976, and People vs. Valentino S. Estrella, L-32706. On March 22, 1979, the Court issued a resolution dismissing the case against Manzano insofar as his criminal liability was concerned, and judgment was entered as final and executory with respect to him.

• Recidivism — A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. It is a requisite of recidivism that both the first and the second offenses be embraced in the same title of the Code. The Court applied the rule to hold that a prior conviction for homicide under Article 249 (Title VIII, Crimes against Persons) cannot be appreciated as recidivism in a prosecution for robbery with homicide under Article 294, paragraph 1 (Title X, Crimes against Property), because the two offenses belong to different titles of the Code.

• Uninhabited Place (Despoblado) — An uninhabited place is one where there are no houses at all, a place at a considerable distance from the town, or where the houses are scattered at a great distance from each other. The circumstance is properly appreciated where the nearest house is about one kilometer from the scene of the crime, and where it was difficult for the offended party to receive any help while the assailants could easily have escaped punishment. The Court relied on the testimony of Sgt. Laureano Descanso that the nearest house to the crime scene was more or less one kilometer away.

• Treachery in Robbery with Homicide — In robbery with homicide, treachery is a generic aggravating circumstance and not a qualifying one. The Court so held where the attack was sudden and the victim was not given the chance to defend himself; the circumstance aggravates the penalty but does not alter the legal characterization of the offense.

• Extinction of Criminal Liability by Death — The death of the accused before final judgment extinguishes his criminal liability under Article 89, paragraph 1 of the Revised Penal Code, without prejudice to any civil liability in favor of the aggrieved parties. The Court applied the rule to Julio Manzano, whose death on November 27, 1978 during the pendency of the automatic review led to the dismissal of the case against him insofar as his criminal liability was concerned.

• Plea of Guilty as Mitigating Circumstance — The plea of guilty entered by Asibar was appreciated as a mitigating circumstance, but it was offset by the aggravating circumstances of treachery and uninhabited place, so that the penalty was imposed in its maximum period. The mitigating circumstance did not, however, suffice to authorize the imposition of the death penalty, which failed for lack of the necessary votes.

• "A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this Code. It is one of the requisites of recidivism that both the first and second offenses are embraced in the same title of the Code." — This is the Court's canonical statement of the requisites of recidivism and the ratio for striking out that aggravating circumstance, the prior homicide conviction and the present robbery with homicide charge falling under different titles of the Revised Penal Code.
• "An uninhabited place is one where there are no houses at all, a place at a considerable ,distance from the town, or where the houses are scattered at a great distance from each other." — This passage supplies the definition of the aggravating circumstance of uninhabited place (despoblado) which the Court applied in affirming its appreciation, the nearest house being about one kilometer from the crime scene.
• "The crime being robbery will homicide, treachery (since the attack was sudden and victim was not given the chance to defend himself) should be considered as a generic aggravating circumstance, and not a qualifying one." — This states the Court's holding on the character of treachery in robbery with homicide, a point that governs the penalty even as it leaves the legal designation of the offense unchanged.
• "However, for lack of the necessary votes, the extreme penalty of death cannot be imposed." — This is the Court's explanation for reducing the penalty from death to reclusion perpetua notwithstanding the presence of two aggravating circumstances and only one mitigating circumstance.

• People vs. Aguinaldo, 55 Phil. 610 — Cited by the Court as authority for the appreciation of an uninhabited place; it was held therein that where the nearest house was 400 meters distant, hidden by coconut groves, the place was considered despoblado.
• People vs. Rubia, 52 Phil. 172 — Cited for the holding that the crime was committed in an uninhabited place because it was difficult for the offended party to receive any help while the assailants could easily have escaped punishment.
• People vs. Florencio Datay alias "Lucy," L-39976 (Resolution dated June 9, 1978) — Cited in the Solicitor General's comment, and adopted by the Court, as authority for dismissing the appeal of a deceased accused whose criminal liability had been extinguished by death.
• People vs. Valentino S. Estrella, L-32706 (Resolution dated July 25, 1978) — Cited for the same proposition, that the death of the accused extinguishes criminal liability and warrants dismissal of the appeal without prejudice to civil liability.

• Article 294, paragraph 1, Revised Penal Code — Defines robbery with homicide, the crime charged and for which Asibar was convicted. Because the offense is robbery with homicide, the Court held that treachery is only a generic aggravating circumstance and not a qualifying one.
• Article 249, Revised Penal Code — Defines homicide. Asibar's previous conviction was for homicide under this article, which falls under Title VIII ("Crimes against Persons") of the Revised Penal Code; the Court held that this prior conviction could not serve as basis for recidivism in a prosecution under Title X ("Crimes against Property").
• Article 89, paragraph 1, Revised Penal Code — Provides for the extinction of criminal liability by death. Cited in the Solicitor General's comment and adopted by the Court in dismissing the case against Julio Manzano insofar as his criminal liability was concerned, without prejudice to civil liability.
• Revised Penal Code — Definition of a Recidivist — The Court quoted the statutory definition of a recidivist and its same-title requisite in ruling that recidivism was improperly appreciated against Asibar, whose prior homicide conviction and present robbery with homicide charge are not embraced in the same title of the Code.

Fernando, C.J., Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad, Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, and Gutierrez, Jr., JJ., concurred. Teehankee, J., took no part. Barredo, J., retired on October 1, 1982.