THIRD DIVISION

[G.R. No. 69317. May 21, 1990.]

PEOPLE OF THE PHILIPPINES, plainti-appellee, vs. DANILO

BADILLA Y OES alias DODONG, accused-appellant.

The Solicitor General for plaintiff-appellee.

Camilo D. Quiason counsel de oficio for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; ROBBERY WITH HOMICIDE; ESTABLISHED IN CASE

AT BAR. The appellant's reason for stabbing the victim is that "when he saw
that his nger was bleeding because of the bite of Nestora Horohoro's teeth, he
felt so obfuscated so he held his knife and stabbed Nestora Horohoro". This
statement is purely self-serving. The more believable reason is the appellant's
craving for the radio cassette recorder and the electric fan and his willingness to
get them from the appellant whatever the means or cost. The testimony of
Joseph Lim reveals that the appellant already had a plan to get not only the radio
cassette but the rota air electric fan as well even before the killing. The
testimony of the appellant, therefore, was only an attempt to cover-up his plan
to get the two items as he did not even make mention of an electric fan to be
borrowed from the deceased. These two items were oered by the appellant to
Joseph Lim as early as 8:00 o'clock in the morning of July 18, 1984. Upon the
victim's refusal to give the said items, the appellant attacked and killed the
victim and thereafter took the items to sell to Joseph Lim. The policemen were
already there because of the tip that someone was coming back to sell what
were probably hot items. The homicide then, was committed as a consequence of
or on occasion of the robbery.
2. ID.; ID.; IMPOSABLE PENALTY. Robbery with homicide is
punishable by reclusion perpetua to death. The aggravating circumstances of
treachery and dwelling are appreciated in this case with the mitigating
circumstance of plea of guilty. Death, then is the proper imposable penalty
(Article 63 (4), Revised Penal Code). In view, however, of Article III, Section 19
(1) of the 1987 Constitution as interpreted in our ruling in People v. Muoz, et
al., G.R. Nos L-38969-70, February 9, 1989, 170 SCRA 107 [1989]; prohibiting
the imposition of the death penalty, the Court has since February 2, 1987 not
imposed the death penalty whenever it was called for under the Revised Penal
Code but instead reduced the same to reclusion perpetua. (People v. Solis, et al.,
G.R. Nos. 78732-33, February 14, 1990) Thus, Danilo Badilla is sentenced to
reclusion perpetua.
 3. ID.; ROBBERY; ELEMENTS; PRESENT IN CASE AT BAR. It is evident
that robbery was committed. Article 293 of the Revised Penal Code states: "Any
person who, with intent to gain, shall take any personal property belonging to
another, by means of violence against or intimidation of any person, or using
force upon anything shall be guilty of robbery." These elements are present in
the instant case. The intention to gain can be gleaned not only from the
testimony of the businessman-buyer, Joseph Lim but also from the appellant's
own testimony as he would have used the proceeds of the sale of the radio
cassette and electric fan for his fare. There was also the use of force as earlier
discussed.
4. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY; PRESENT IN
CASE AT BAR. Treachery is present in this case because the appellant
employed measures intended to ensure the commission of the oense without
risk to him arising from the defense his victim might make. (People v. Francisco,
et al., G.R. No. 69580, February 15, 1990) The numerous stab wounds, some of
which were inicted at the back of the victim, shows that the appellant's attack
was sudden and brutal. The suddenness of the attack deprived the victim, who
was a woman, unarmed, and alone, the opportunity to run or ght back. The
appellant, a strong young man, did not even suer any injuries except for the
small wound on his nger inicted by a bite. Obviously, apart from using her
teeth, the victim could not put up any defense.
5. ID.; ID.; DWELLING; VICTIM NEED NOT BE THE OWNER OF THE
HOUSE WHERE THE CRIME WAS COMMITTED. Dwelling may mean temporary
dwelling. We agree with the trial court that dwelling is an aggravating
circumstance even though the victim was not the owner of the house where the
crime was committed. She was living in that house with her niece. The owner
was in Manila.
6. ID.; ID.; OBVIOUS UNGRATEFULNESS; NOT APPRECIATED IN CASE
AT BAR. Obvious ungratefulness cannot be appreciated as there is no evidence
as to what generosities and the extent thereof were received by the appellant
from the victim.
7. ID.; MITIGATING CIRCUMSTANCES; LACK OF INTENTION TO COMMIT
SO GRAVE A WRONG; NOT APPRECIATED IN CASE AT BAR. The appellant
submits that the mitigating circumstance of lack of intention to commit so grave
a wrong mentioned in the sixth assignment of error, should be considered as he
had no intention to kill. This mitigating circumstance addresses itself to the
intention of the oender at the particular moment when he executes or commits
the criminal act. (People v. Abueg, 145 SCRA 622, 634 [1986]). We nd that such
mitigating circumstance cannot be considered in this case. The intention of the
appellant was clearly manifested in his overt acts as the victim suered at least
eighteen (18) stab wounds and multiple lacerated wounds plus abrasions and
other injuries.
8. REMEDIAL LAW; ADMISSIBILITY OF EVIDENCE; OBJECTIONS
THERETO MUST BE MADE AT THE PROPER TIME. It has been repeatedly held
as a rule of evidence that objections against the admission of any evidence must
be made at the proper time and that if not so made it will be understood to have
 been waived. The proper time to make a protest or objection is when, from the
question addressed to the witness, or from the answer thereto, or from the
presentation of the proof the inadmissibility of evidence is, or may be, inferred.
(People v. Mario, 130 SCRA 595, 600-601 [1984]; People v. Verges, 105 SCRA
744, 755 [1981]). In the case at bar, even if the appellant would not admit
Exhibit "E" without seeing the original, this is not the objection that is raised in
the accused's appeal. Moreover, the appellant did not object to the admissibility
of Exhibit "E" and "E-1". Even without said rule, the witness presented by the
prosecution, Dr. Escobia, had personally examined the cadaver of the deceased
and is, thus deemed competent to testify on the same matters covered by the
post-mortem certificate.

DECISION

GUTIERREZ, JR., J :p

This is an appeal from the decision of the Regional Trial Court of Bohol,
Branch 3, the dispositive portion of which reads:
"WHEREFORE, in view of the foregoing considerations, judgment
is hereby rendered nding accused Danilo Badilla y Oes alias Dodong
guilty beyond reasonable doubt of the crime of Robbery with Homicide
allegedly committed in the manner and under the circumstances
described in the aforequoted information and as penalized under the
provisions of Article 294 of the Revised Penal Code and taking into
account three aggravating circumstances alleged in the aforequoted
information which is oset by one mitigating circumstance, the Court
hereby sentences accused Danilo Badilla y Oes alias Dodong the
penalty of DEATH and to indemnify the heirs of Nestora Horohoro the
sum of P12,000.00 without subsidiary imprisonment in case of
insolvency therefor pursuant to and in accordance with the provisions
of Art. 39 of the Revised Penal Code as amended by RA 5465 and to
pay the costs of the proceedings.
The weapons used in the commission of the crime namely one
stainless knife with white handle and two pieces of broken pestle are
ordered conscated in favor of the government, and the one rota air
electric fan marked Exhibit B and the radio cassette (Exh. A) Dynamic
Sound, are ordered returned to the heirs of Nestora Horohoro."
(Original Record, pp. 55-56).
The prosecution evidence upon which the trial court based its nding of
guilt beyond reasonable doubt is summarized as follows:
"The rst witness of the prosecution was Ruth Torrefranca, 10
years old, single, Grade V, student of Cogon Elementary School,
Tagbilaran City, who testied that on July 18, 1984, in the morning she
was at home in their house at Calceta Street, Tagbilaran City together
with her aunt Nestora Horohoro. The owner of the house where they
live is Praxedes Quidang who at that time was in Manila. That she knows
accused Danilo Badilla (witness pointing to the accused in the
courtroom). In the whole morning of July 18, 1984 she was in school
from 7:00 o'clock in the morning to past 11:00 o'clock. In the afternoon
she went back to school but at about 2:00 in the afternoon of the
aforementioned date somebody went to school to her classroom and
informed her of the incident that happened to her aunt Nestora
Horohoro. Before that incident when she returned home at 11:00
o'clock Nestora Horohoro and Danilo Badilla were with them. They ate
lunch together in the said house. After lunch she left for school and at
about 2:00 in the same afternoon somebody informed her that her
aunt Nestora Horohoro died. She went home due to said information.
When she arrived home she noticed that the radio cassette and rota air
electric fan were already gone. These two aforementioned things were
placed near the TV set and that Nestora Horohoro was already dead
lying face down bathed in her own blood at the porch where she was
sweeping when she (Ruth Torrefranca) left for school after lunch.
Nestora Horohoro was already dead when she arrived. The radio
cassette was shown to her in the trial by the prosecuting scal and was
identied by her to be the same radio cassette near the TV set in the
sala of Praxedes Quidang where she lives and said radio cassette was
marked Exhibit "A". The rota air electric fan presented by the
prosecution was also identied by her to be the same rota air electric
fan that was placed near the TV set of the house of Praxedes Quidang
and the prosecution marked said rota air electric fan as Exhibit "B". On
cross-examination she declared that before the death of Nestora
Horohoro on July 18, 1984, he (sic) saw Danilo Badilla the accused visit
the house of Praxedes Quidang three times. However, she did not
know the reason why Danilo Badilla visited Nestora Horohoro because
at that time she did not know yet that the accused is a relative of
Nestora Horohoro.

The next witness of the prosecution was Erica Requina, 45 years

old, married, beautician, resident of Calceta St., Tagbilaran City, who
declared that she knows accused Danilo Badilla (witness pointing to
accused in the courtroom). She knew Nestora Horohoro being a niece
of Praxedes Quidang who lives in the house of the latter. The house of
Praxedes Quidang is located at Calceta St., City of Tagbilaran which is
adjacent to her (Erica) house. Her house and the house of Praxedes
Quidang are separated by a fence. On July 18, 1984 at past 1:00 o'clock
in the afternoon she was at home with her husband. When she was
about to go out from her house, she heard a sound of the gate in the
house of Praxedes Quidang. She went out and veried what was it and
there she saw Danilo Badilla going out of the gate bringing a radio
cassette and rota air electric fan. This Danilo Badilla is the accused in
this case which she identied during the trial to be the same Danilo
Badilla whom she saw bringing the radio cassette and rota air electric
fan. After seeing the accused bringing rota air electric fan and radio
cassette, she went to the gate of the house of Praxedes Quidang and
called for Nestora Horohoro but nobody answered. So she went inside
the gate to verify whether Nestora Horohoro was washing clothes but
instead she saw Nestora Horohoro lying dead bathed in her own blood.
In view of the situation that she saw, she awoke her husband and told
her husband to call for the police. At rst she wanted to call the police
at Socias residence nearby but the telephone was busy so she rode a
pedicab towards the Tagbilaran City police station and reported the
matter to the police. When she reached the police station, the police
already knew about the incident because somebody had already
reported the matter, therefore she went back home riding in the police
jeep with Pat. Balatero. She declared that she saw the rota air electric
fan and radio cassette brought by accused Badilla because she visits
the house of Praxedes Quidang almost everyday as they are neighbors.
She identied the radio cassette and rota air electric fan in the trial to be
the same rota air electric fan and radio cassette placed in the house of
Praxedes Quidang which were brought by the accused.
The next witness of the prosecution, was Joseph Lim, 33 years
old, married, businessman and resident of CPG Avenue, Tagbilaran City
who declared that he knows accused Danilo Badilla (witness pointing to
accused in the courtroom). That as businessman he is engaged in the
sale of hardware and groceries and his place of business establishment
is at the old post oce building, CPG Avenue, Tagbilaran City. The name
of his store is Tagbilaran Champion Enterprises. At about 8:00 o'clock in
the morning of July 18, 1984 he was at his store. While in his store a
certain person approached him and oered to sell a radio cassette and
a rota air electric fan. He told the person to bring the said items
because he would see if he would like it. That person wanted to sell the
two aforementioned items promised to come back at about 2:00 P.M.
and after that the person went away. After the person left he called the
radio station DYRD and inquired the radio station if somebody has lost a
radio cassette and rota air electric fan because he usually hears from
said radio station about some person who lost things like radio
cassette. But the radio station DYRD advised him to call a police station
at Tagbilaran City and so he called for the police. The police with whom
he conversed on the telephone told him that the police would go to his
store. At about 9:00 in the morning of that day there were policemen
who arrived at his store. The policemen stayed nearby his store until
past 1:00 o'clock in the afternoon of said day. At past 1:00 in the
afternoon of the same date the person who introduced to him that he
would sell radio cassette and electric fan arrived in his store. While the
said person was in his store the two policemen were also inside his
store. Right there he asked the person about the price of the two items
and the answer of said person it was P3,000.00. This person who was
selling the two items was called by the policemen and was asked about
the last price of said items, and the person answered it is P3,000.00.
After that he (accused) was asked by the police who were then in plain
clothes as to where he got the radio cassette and rota air and the
answer of that person it was given to him by his brother. Then the
police told the person that he would be investigated and this person
was later on known to be Danilo Badilla who was identied by him
(Joseph Lim) in the trial of the case to be the same person who went to
his store to sell radio cassette and rota air. He identied the radio
cassette to be colored black, Sanyo Dynamic Sound which he identied
in the trial and marked Exhibit A and likewise she (sic) identied the rota
air to be light brown in color. Later on he learned from the police station
that somebody died. He did not know how the accused Danilo Badilla
got those radio cassette and rota air.
On cross-examination Joseph Lim declared that when Danilo
Badilla went to his store at 1:00 in the afternoon of July 18, 1984
bringing the radio cassette and rota air electric fan he noticed that there
was a small wound on his index nger. He forget whether it was long
(sic) or right index finger.
The next witness for the prosecution was Teofano Ordidor,
patrolman of the Tagbilaran Police Station, who declared that he had
been with the Tagbilaran Police Station as patrolman for 16 years up to
the present. That on July 18, 1984 in the morning while in the police
station he was called by Capt. Absalon, then the station commander, to
conduct surveillance at Champion Enterprises because there was a
person who oered to sell a radio cassette and electric fan. In
compliance with the said order of their station commander he and Pfc.
Zamora want to the Champion Enterprises located at CPG North,
Tagbilaran City. The owner of the said store is Joseph Lim. They asked
Joseph Lim if it is true that there was a person who oered to sell a
radio cassette and electric fan to him and Joseph Lim answered Yes.
Joseph Lim informed them that person who oered to sell the
aforementioned items would come back to his store. When the person
came back to the Champion Enterprises at about past noon time he
and Pat. Zamora were already in the store, while Joseph Lim and
accused Danilo Badilla (the person who oered to sell the
aforementioned items) were negotiating for the price of the said items,
they were listening. And they heard that Danilo Badilla would sell the
item for P3,000.00 to Joseph Lim. After that he held the shoulder of
Danilo Badilla and introduced themselves to be policemen because they
were then in plain clothes. They invited the accused to go with them to
the police station for questioning because the items he brought to
Champion Enterprises were questionable. Pat. Ordidor identied the
radio cassette recorder (Dynamic Sound) marked Exhibit "A": and the
rota air electric fan (Super King) as Exhibit B. He was able to identify the
two items because there was an initial of Pat. Eugenio Zamora in the
radio cassette marked Exhibit 2 (should be A) as well as in the rota air
electric fan. Thereafter, they rode on a motorcycle and brought the
accused to the police station. They noticed that the right little nger of
the accused was with bandage which was stained with blood. At the
police station they conducted investigation on the accused. The piece of
cloth (bandage) which was the cover of the little nger of the accused
was removed and said piece of cloth was identied by him to be the
same bandage marked Exhibit D.
The next witness of the prosecution was Dr. Marcial Escobia, Jr.,
31 years old, resident physician of the Celestino Gallares Memorial
 Hospital, Tagbilaran City, who declared that on July 18, 1984 he
examined the dead body of Nestora Horohoro. After examining said
deceased body, he issued a postmortem certicate of death marked
Exhibit E and the back of the said certicate is a postmortem certicate
marked Exhibit E-1 which he both identied during the trial. Atty.
Migrio, Jr., admits that the entry in the post mortem certicate is
correct, after Dr. Escobia compared the said certicate with the
records of the hospital. The post mortem certicate is signed by Dr.
Jones of the Tagbilaran City Hospital because the dead body of Nestora
Horohoro was brought to the City Hospital of Tagbilaran. However, they
received the request from the INP Tagbilaran City to conduct autopsy
on the deceased body of Nestora Horohoro and after which he issued
an autopsy report marked Exhibit F but it was signed by Dr. Jones
because as already said the dead body was brought to the Tagbilaran
City Hospital. Dr. Escobia declared that the dead body of Nestora
Horohoro showed the following:
"MULTIPLE LACERATED WOUNDS:
2 CM. LEFT FRONTAL
2.5 CM. RIGHT FRONTO TEMPORAL.
INCISED WOUND 2 CM ANGLE OF THE LEFT JAW BELOW THE LEFT
EAR.
STAB WOUNDS:
1 CM. LEFT CHEEK
1 CM. MISTERNUM, 4TH INTERCOSTAL SPACE, PENETRATING THORACIC
CAVITY, LACERATING RIGHT LUNG
1 CM. MIDCLAVICULAR, 2ND INTERCOSTAL SPACE PENETRATING,
LACERATING LEFT LUNG
1 CM. LEFT 5TH INTERCOSTAL SPACE MIDCLAVICULAR LUNG,
PENETRATING THORACIC CAVITY, LACERATING LEFT LUNG.
1 CM. LEFT 7TH INTERCOSTAL SPACE, MIDAXILLARY LINE
1 CM. RIGHT PARASTERNAL, 3RD INTERCOSTAL SPACE
1 CM. RIGHT MIDAXILLARY LINE, 4TH INTERCOSTAL SPACE
PENETRATING THORACIC CAVITY, LACERATING RIGHT LUNG.
1 CM. RIGHT POSTERIOR AXILLARY LINE, 4TH INTERCOSTAL SPACE
MIDVERTEBRAL AREA
1 CM. 3RD RIGHT INTERCOSTAL SPACE PARAVERTEBRAL AREA
1 CM. 4TH LEFT INTERCOSTAL SPACE, PARAVERTEBRAL AREA
1 CM. 6TH RIGHT INTERCOSTAL SPACE, PARAVERTEBRAL AREA
1 CM. 7TH LEFT INTERCOSTAL SPACE, PARAVERTEBRAL AREA
1 CM. 8TH LEFT INTERCOSTAL SPACE, PARAVERTEBRAL AREA
1 CM. LEFT HAND
1 CM. LEFT FOREARM HEMOTHORAX, SECONDARY TO PENETRATING
STAB WOUNDS OF THE APPROXIMATELY 60 cc EACH PLEURAL CAVITY
ABRASIONS - NECK, FACE, ANTERIOR CHEST
 (SGD.) MARCIAL M. ESCOBIA, JR.
Medico Legal Officer"
According to Dr. Escobia the lacerated wound right side of the
forehead and temple of the head of the said victim may be caused by
blunt object. It could have been caused by wooden pole which was
shown to Dr. Escobia during the trial which was already marked Exhibit
G (long broken pole) and G-1 (short broken pole). The incised wound in
the body of the victim may be caused or inicted with knife. And when
shown the knife (Exh. H) Dr. Escobia said it is possible that said knife
may have been the instrument used in inicting the incised wound on
said victim. The victim Nestora Horohoro sustained fteen (15) stab
wounds. The cause of death was due to hemorrhage and collapse of
the lungs because the wound penetrated the lungs of the victim. There
were four wounds which penetrated the lungs of the victim.
The next witness of the prosecution Pat. Erlende Bantugan,
Tagbilaran Police Station, who declared that on July 18, 1984 at about
past 12:00 he was at the police station of Tagbilaran City. While in said
station a certain Rica Requina requested them to go with her to the
residence of Praxedes Quidang because they (sic) saw a dead person.
He and Pat. Suaybaguio went with Requina to the aforementioned
house at Calceta St., Tagbilaran City. When they arrived at the said
house Pat. Oppus also arrived and they cordoned the area to prevent
persons from getting inside. When they went inside the compound
where the house is located they saw a person lying face on the ground
and they also noticed a broken pestle situated near the body of the
victim who was lying on the pool of blood. The broken pestle was
marked Exhibit G and G-1. He could still identify the two pieces of
broken pestle because he inscribed at the tip of the long broken pestle
the letters EEB and another initial on the shorter broken pestle letters
EEB which means Erlende E. Bantugan. Thereafter, he requested Pat.
Oppus to contact the Fiscal and the doctor to conduct an inquest. Later
on, Fiscal Geulen, Jr. and a photographer arrived. He requested the
photographer to take pictures of the victim. When Fiscal Geulen rolled
the body of the victim to face up they found a knife underneath which
knife was identied by him in the trial marked Exhibit H. He could
identify the said knife because he placed initial on the tip of the knife at
the time of the investigation letters EEB which means Erlende E.
Bantugan. After Fiscal Geulen inspected the body of the victim, the
body of the said victim was brought to the funeral parlor. When they
entered the door of the house there was a drop of fresh blood coming
from the kitchen door to the sala and they saw a piece of cloth with
blood stain near the door of the comfort room and this bloodstained
cloth was marked Exhibit 1 (should be I) which he identied to be the
same cloth found near the door of the comfort room. Afterwards when
he went to the sala of the house he saw a portion of a piece of cloth
taken from the handkerchief which portion was marked Exhibit J. After
that the father of the victim in the person of Amadeo Horohoro
informed them that the rota air electric fan and radio cassette in the
 house were lost. The photographs taken by the Ramasola Superstudio
photographer which took pictures of the victim were marked as
Exhibits L, L-1, L-2 and L-3 and the pool of blood in Exhibit L is marked
Exhibit L-(a). (Original Record, pp. 46-51).
The version of the defense is shown in the testimony of the accused-
appellant. It is summarized as follows:
"Danilo Badilla, 21 years old, single, jobless, temporarily residing at
barrio Bood, Maribojoc, Bohol who declared that he is a resident of the
Municipality of Calamba, Misamis Occidental but he is on vacation, that
is why he stayed at barangay Bood, Maribojoc, Bohol. His parents are
from Calamba, Misamis Occidental and both are still alive. He arrived in
barrio Bood last June 1984 and stayed in the house of his uncle. He also
remembered that upon his arraignment in this case he pleaded Guilty.
Before July 18, 1984 he already knew Nestora Horohoro because she
was his relative being related to his mother. The surname of his mother
is Oes. Before July 18, 1984 he already saw Nestora Horohoro at her
residence in the house of Quidang at Calceta Street, Tagbilaran City. He
had gone to the house of Praxedes Quidang three times. When he rst
visited Nestora Horohoro in the residence of Quidang he wanted to
borrow money from Nestora Horohoro but the latter did not lend him
money. However, he stayed in the house of Quidang for four hours.
When he left the house of Quidang Nestora Horohoro told him to come
back. He came back for the second time to the house of Quidang just
to visit but he did not borrow money anymore from Nestora Horohoro.
The third time he visited Nestora Horohoro at the house of Quidang his
purpose was to borrow the radio cassette recorder in the house of
Quidang because he would bring it to the sea. The radio cassette
exhibited by the prosecution was the same radio cassette he borrowed
from Nestora Horohoro. He did not bring the radio cassette recorder
after Nestora Horohoro agreed but he went rst to contact one Joseph
Lim at the Champion Enterprises because he had planned to pledge the
radio cassette recorder to Joseph Lim for P500.00 so that the money
could be used for his daily expenses. He contacted Joseph Lim at the
Tagbilaran Champion Enterprises but at that time he did not know
Joseph Lim yet. However, he noticed that Joseph Lim store had radio
cassette for sale and he thought that Joseph Lim would be interested to
buy a radio cassette recorder. After contacting Joseph Lim the latter
told him to go back to the store because he would examine rst the
item. Then he went back to the house where Nestora Horohoro was
residing. When he arrived at the house of Quidang where Nestora
Horohoro was residing he did not get at once the radio cassette
recorder. He rst listened to the drama through the radio at the house
of Quidang. Then he took his lunch with Nestora Horohoro at Quidang's
house. After lunch Nestora Horohoro was cleaning at the back portion
of their kitchen and he also helped. At that time Nestora Horohoro's
companion was a small girl. Later on the small girl went to school. After
that Nestora Horohoro was treaming (sic) the grasses with a bolo.
While she was treaming (sic) the grasses it was already about 2:00
o'clock in the afternoon and it was almost time to go to the sea. He told
Nestora Horohoro that he was leaving and that he will bring the radio
cassette but Nestora Horohoro refused. He went near to Nestora
Horohoro but he was pushed by Nestora. At that time Nestora
Horohoro got angry and she refused to lend the radio cassette. He
approached again Nestora Horohoro but she shouted. He told her not
to shout for there might be neighbors who could hear them but she
kept on shouting. And so he tried to cover her mouth with his hand and
so it happened that his little nger was placed in the mouth of Nestora
Horohoro and she bit it while he pulled his nger away. He told Nestora
Horohoro not to bite his nger and he asked her to release it. And he
told Nestora that he is no longer borrowing the radio cassette. He was
able to pull by force his nger out from the mouth of Nestora
Horohoro. When he saw that his nger was bleeding because of the
bite of Nestora Horohoro's teeth, he felt obfuscated so he held his knife
and stabbed Nestora Horohoro. He cannot remember how may times
he stabbed Nestora Horohoro but he had no intention to kill her.
Because he thought that Nestora Horohoro was already dead he
decided to bring the rota air electric fan and radio cassette recorder
inside the house of Praxedes Quidang where Nestora Horohoro was
residing because his plan was to use the proceeds of said item for his
fare. He identied the small piece of cloth marked Exhibit D for the
prosecution which was bloodstained and he told the court that, that is
the same cloth that he bound around his nger that was bleeding. Then
he left the house of Quidang and brought the radio cassette recorder
and the rota air electric fan and proceeded to the Champion
Enterprises. He declared also that the broken pestle marked Exhibits G
and G-1 for the prosecution was already broken when he was there
and he did not use said pestle against Nestora Horohoro. At the time he
stabbed Nestora Horohoro, the bolo used by Nestora Horohoro in
treaming (sic) the grass was stuck in the banana plant but Nestora
Horohoro did not use said bolo against him although Nestora Horohoro
attempted to reach for the bolo but he tried to hold her hands. The
knife marked Exhibit H of the prosecution was identied by him to be
the same knife he used in stabbing Nestora Horohoro. He had that
knife during that occasion because he was planning to go with his
friends to the sea and eat raw sh locally called `kinilaw'. On cross-
examination, accused Danilo Badilla declared that he went to the house
of Praxedes Quidang where Nestora Horohoro was residing in 1984 for
the rst time. At that time he did not know yet Nestora Horohoro but
he introduced himself to her. He was rst looking for Praxedes Quidang
but she was not there so he borrowed money from Nestora Horohoro.
He is acquainted with Praxedes Quidang the owner of the house where
Nestora Horohoro is residing because Praxedes Quidang and Nestora
Horohoro are his relatives. He further declared on cross-examination
that his purpose to borrow the radio cassette recorder on July 18, 1984
was to pledge it to Joseph Lim. After lunch on July 18, 1984 Nestora
Horohoro refused to lend him the said radio cassette. On further cross-
examination accused answered that the knife (Exh. H) which was
exhibited by the prosecution was bent because of the force he used
when he stabbed Nestora Horohoro. (Original Record, pp. 51-53).
 The accused raises the following assignment of errors in his appeal, to wit:
I
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE INFORMATION
FAILED TO AVER THE COMMISSION OF THE OFFENSE OF ROBBERY
WITH HOMICIDE AS DEFINED IN ARTICLE 294 OF THE REVISED PENAL
CODE.

II
ASSUMING ARGUENDO THAT THERE WAS ROBBERY COMMITTED, THE
TRIAL COURT ERRED IN FINDING THAT THE KILLING WAS COMMITTED
AS A CONSEQUENCE OF OR ON THE OCCASION OF THE ROBBERY.
III
THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE POST-
MORTEM CERTIFICATE, EXHIBIT "E", AND THE AUTOPSY REPORT,
EXHIBIT "F", WHICH WERE PREPARED AND SIGNED BY DR. ALBERT
JONES, BUT WHO WAS NOT PRESENTED AS A WITNESS.
IV
THE TRIAL COURT ERRED IN FINDING THAT THE CRIME WAS
COMMITTED WITH TREACHERY, OBVIOUS UNGRATEFULNESS AND
DWELLING.
V
THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY, WHICH
HAS BEEN DECLARED UNCONSTITUTIONAL UNDER THE 1973 AND THE
FREEDOM CONSTITUTIONS.
VI
THE TRIAL COURT ERRED IN NOT FINDING THAT THE OFFENSE
COMMITTED IS SIMPLE HOMICIDE WITH THE MITIGATING
CIRCUMSTANCES OF PLEA OF GUILTY AND LACK OF INTENTION TO
COMMIT SO GRAVE A WRONG AND WITH NO OFFSETTING
AGGRAVATING CIRCUMSTANCES. (Appellant's Brief, pp. 1-3).
Two trials were conducted in this case. During the initial proceedings, the
accused was arraigned. He pleaded guilty to the oense charged. As a result of
this plea of guilty, the accused was sentenced to death by the lower court on
October 31, 1984. In an automatic review of the foregoing decision, this Court
gave the accused a fuller opportunity to re-examine his plea of guilt, set aside
the judgment under automatic review and ordered the case to be remanded to
the trial court for further proceedings on September 11, 1985. The questioned
March 3, 1986 decision of the trial court is based on the continued proceedings.
It should be stressed at the outset that the accused-appellant never
withdrew his October 22, 1984 plea of GUILTY during the further proceedings. In
his later testimony he admits killing the victim although he attributes it to
obfuscation.
In the rst assignment of error, the appellant contends that the
information led against him does not charge the crime of robbery as the phrase
"with the intent to gain and by the use of force and violence" qualies the
charge of homicide, not the charge of robbery.
The information filed against the accused alleged:
"That on or about the 18th day of July, 1984, in the City of
Tagbilaran, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with the intent to gain and by the use
of force and violence, did then and there willfully, unlawfully and
feloniously assault, attack, and beat Nestora Horohoro with a wooden
pole, and with the use of a stainless knife, a deadly weapon, stab the
latter on the vital parts of her body thereby inicting upon her various
mortal wounds which directly caused the death of said Nestora
Horohoro, and thereafter, the said accused did then and there willfully,
unlawfully, feloniously and forcibly take and carry away one (1) rota-air
electric fan and one (1) Sanyo Dynamic radio cassette recorder, to the
damage and prejudice of the heirs of the said Nestora Horohoro in an
amount to be proved during the trial. (Emphasis supplied)
Acts committed contrary to the provisions of Article 294 of the
Revised Penal Code with the aggravating circumstances of treachery,
obvious ungratefulness and dwelling." (Original Record, p. 10)
A close analysis of the above information will reveal that it has suciently
alleged the proper oense committed which is that of Robbery with Homicide
and fully apprises the accused about what he is facing.
It is explicit in Rule 110, Sec. 9 of the Rules of Criminal Procedure that:
"SEC. 9. Cause of accusation. The acts or omissions
complained of as constituting the oense must be stated in ordinary
and concise language without repetition, not necessarily in the terms of
the statute dening the oense, but in such form as is sucient to
enable a person of common understanding to know what oense is
intended to be charged, and enable the court to pronounce proper
judgment. (8)"
Although the term "with the intent to gain and by the use of force and
violence" precedes the part alleging the "homicide", the information taken as a
whole is sucient to enable a person of common understanding to know that
the crime charged is that of robbery with homicide as the necessary elements of
the said oense are present in the above information. This notwithstanding, we
take this opportunity to remind the Chief Prosecutors of provinces and cities to
train their subordinates how to prepare carefully crafted and precisely
professional informations in studiedly correct grammar so that, as argued by the
distinguished counsel of the appellant, technical oenses are accurately
presented with all distinguishing and essential elements characterized beyond
question.
The appellant also states assuming arguendo that robbery was committed,
the killing was the result of the quarrel between the victim and himself thus, the
homicide was not committed as a consequence of or on occasion of the robbery.
This contention is without merit.
The appellant's reason for stabbing the victim is that "when he saw that
his nger was bleeding because of the bite of Nestora Horohoro's teeth, he felt
so obfuscated so he held his knife and stabbed Nestora Horohoro". This
statement is purely self-serving. The more believable reason is the appellant's
craving for the radio cassette recorder and the electric fan and his willingness to
get them from the appellant whatever the means or cost. The testimony of
Joseph Lim reveals that the appellant already had a plan to get not only the
radio cassette but the rota air electric fan as well even before the killing. The
testimony of the appellant, therefore, was only an attempt to cover-up his plan
to get the two items as he did not even make mention of an electric fan to be
borrowed from the deceased. These two items were oered by the appellant to
Joseph Lim as early as 8:00 o'clock in the morning of July 18, 1984. Upon the
victim's refusal to give the said items, the appellant attacked and killed the
victim and thereafter took the items to sell to Joseph Lim. The policemen were
already there because of the tip that someone was coming back to sell what
were probably hot items.
The homicide then, was committed as a consequence of or on occasion of
the robbery.
It is evident that robbery was committed. Article 293 of the Revised Penal
Code states:
"Any person who, with intent to gain, shall take any personal
property belonging to another, by means of violence against or
intimidation of any person, or using force upon anything shall be guilty
of robbery."
These elements are present in the instant case. The intention to gain can
be gleaned not only from the testimony of the businessman-buyer, Joseph Lim
but also from the appellant's own testimony as he would have used the proceeds
of the sale of the radio cassette and electric fan for his fare. There was also the
use of force as earlier discussed.
It has been held that in robbery with homicide, the robbery itself must be
proven, otherwise, the accused may be convicted only for the killing, homicide or
murder as the case may be. (People v. Repuela, et al. , G.R. No. 85178, March 15,
1990). In the case at bar, the fact of robbery has been established.
As regards the third assignment of error, the appellant questions the
admissibility in evidence of the post-mortem certicate, Exhibit "E" signed by Dr.
Jones when he was not presented as a witness to identify said certificate.
Also, he states that the best evidence should have been the hospital
records and not the post-mortem certicate of death as the entries in the
certificate were merely copied from the hospital records. cdll

It has been repeatedly held as a rule of evidence that objections against

the admission of any evidence must be made at the proper time and that if not
so made it will be understood to have been waived. The proper time to make a
protest or objection is when, from the question addressed to the witness, or from
the answer thereto, or from the presentation of the proof the inadmissibility of
evidence is, or may be, inferred. (People v. Mario , 130 SCRA 595, 600-601
[1984]; People v. Verges, 105 SCRA 744, 755 [1981]). In the case at bar, even if
the appellant would not admit Exhibit "E" without seeing the original (TSN,
January 10, 1986, p. 28), this is not the objection that is raised in the accused's
appeal. Moreover, the appellant did not object to the admissibility of Exhibit "E"
and "E-1". (TSN, January 17, 1986, p. 5)
Even without said rule, the witness presented by the prosecution, Dr.
Escobia, had personally examined the cadaver of the deceased and is, thus
deemed competent to testify on the same matters covered by the post-mortem
certificate.
The appellant alleges that the aggravating circumstances of treachery,
dwelling, and obvious ungratefulness were not supported by evidence.
Treachery is present in this case because the appellant employed measures
intended to ensure the commission of the oense without risk to him arising
from the defense his victim might make. ( People v. Francisco, et al. , G.R. No.
69580, February 15, 1990)
The numerous stab wounds, some of which were inicted at the back of
the victim, shows that the appellant's attack was sudden and brutal. The
suddenness of the attack deprived the victim, who was a woman, unarmed, and
alone, the opportunity to run or ght back. The appellant, a strong young man,
did not even suer any injuries except for the small wound on his nger inicted
by a bite. Obviously, apart from using her teeth, the victim could not put up any
defense.
Obvious ungratefulness cannot be appreciated as there is no evidence as to
what generosities and the extent thereof were received by the appellant from
the victim.
Dwelling is also considered as an aggravating circumstance in this case.
The appellant cites a number of cases decided in the 1940's and 50's ruling
that for the circumstance of dwelling to be established, the house in which the
oense is committed must belong to the victim or at least be her permanent
dwelling.

People v. Sto. Tomas, 138 SCRA 206, 219 [1985] states:

"Anent appellant's submission that the trial court erred in
considering dwelling as an aggravating circumstance, we nd the same
bereft of any legal support. There is no dispute that the place where the
crimes herein involved were committed is the house of Consolacion
Grulla. It is there where she lives with her daughter, Natividad Grulla
(the other victim) and where Salvacion Grulla was temporarily staying in
order to escape from the brutalities of the appellant brought about by
the latter's jealousy. The fact that Salvacion's stay in the said place may
be considered as a temporary sojourn adds no validity to appellant's
stance on this point."
Dwelling, then, may mean temporary dwelling. Applying the above ruling,
we agree with the trial court that dwelling is an aggravating circumstance even
though the victim was not the owner of the house where the crime was
committed. She was living in that house with her niece. The owner was in
Manila.
The appellant submits that the mitigating circumstance of lack of intention
to commit so grave a wrong mentioned in the sixth assignment of error, should
be considered as he had no intention to kill.
This mitigating circumstance addresses itself to the intention of the
oender at the particular moment when he executes or commits the criminal
act. (People v. Abueg, 145 SCRA 622, 634 [1986]). LibLex

We nd that such mitigating circumstance cannot be considered in this

case. The intention of the appellant was clearly manifested in his overt acts as
the victim suered at least eighteen (18) stab wounds and multiple lacerated
wounds plus abrasions and other injuries.
Robbery with homicide is punishable by reclusion perpetua to death. The
aggravating circumstances of treachery and dwelling are appreciated in this case
with the mitigating circumstance of plea of guilty. Death, then is the proper
imposable penalty (Article 63 (4), Revised Penal Code). In view, however, of
Article III, Section 19 (1) of the 1987 Constitution as interpreted in our ruling in
People v. Muoz, et al. , G.R. Nos L-38969-70, February 9, 1989, 170 SCRA 107
[1989]; prohibiting the imposition of the death penalty, the Court has since
February 2, 1987 not imposed the death penalty whenever it was called for
under the Revised Penal Code but instead reduced the same to reclusion
perpetua. (People v. Solis, et al. , G.R. Nos. 78732-33, February 14, 1990) Thus,
Danilo Badilla is sentenced to reclusion perpetua.
WHEREFORE, IN VIEW OF THE ABOVE, the judgment of the trial court is
MODIFIED, and the accused-appellant DANILO BADILLA is found GUILTY beyond
reasonable doubt of the special complex crime of robbery with homicide with the
aggravating circumstances of treachery and dwelling and the mitigating
circumstance of plea of guilty. The accused-appellant is hereby sentenced to
suer the penalty of reclusion perpetua. In addition, the INDEMNITY to the
offended party is INCREASED TO THIRTY THOUSAND PESOS (P30,000.00)
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.