7/31/2019 G.R. No. L-48796 | People v.

Opero y Cosipag

EN BANC

[G.R. No. L-48796. June 11, 1981.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

DIEGO OPERO Y COSIPAG, et al., accused, DIEGO OPERO Y
COSIPAG, defendant-appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General

Eulogio Raquel-Santos and Solicitor Salvador C. Jacob for plaintiff-appellee.
Dakila Castro for appellant.

SYNOPSIS

The victim Liew Soon Ping was found dead in her room at the House
International Hotel, hogtied, with a pandesal stuffed in her mouth causing death
by asphyxiation. The room was ransacked, personal belongings thrown around
and personal effects valued at P30,221.00 were found missing. Accused
appellant Diego Opero, with ins co-accused Reynaldo Lacsinto and Milagros
Villegas admitted participation in the commission of the robbery and identified
the objects stolen while another accused Asteria Avila denied participation
thereof. The Circuit Criminal Court of Manila sentenced Diego Opero to death
for robbery with homicide. Reynaldo Lacsinto and Milagros Villegas were
sentenced to a lesser penalty and did not appeal. Avila was acquitted.
On automatic review, the only question raised was the propriety of the
imposition of the death penalty. The Supreme Court ruled that: (a) it is
immaterial that the occurrence of death was by mere accident as contended by
appellant; what is important is that death results by reason or on the occasion of
robbery and (b) the higher of the imposable penalty for the complex crime of
robbery with homicide is death.
Judgment affirmed.

SYLLABUS

1. CRIMINAL LAW; ROBBERY WITH HOMICIDE; ESSENTIAL ELEMENT.

— When direct and intimate connection exists between the robbery and the
killing, regardless of winch of the two precedes the other, or whether they are
committed at the same time, the crime committed is the special complex crime
of robbery with homicide.

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2. ID.; MITIGATING CIRCUMSTANCES; THE CIRCUMSTANCE OF NOT

HAVING INTENDED TO COMMIT SO GRAVE A WRONG, MAY BE
APPRECIATED IN CASE AT BAR. — Where the circumstances would indicate
no intention to kill, as in the instant case where evidently, the intention is to
prevent the deceased from making an outcry, and so a "pandesal" was stuffed
into her mouth, the mitigating circumstance of not having intended to commit so
grave a wrong may be appreciated.
3. ID.; ID.; WHEN DEATH SUPERVENES BY REASON OR ON OCCASION
OF ROBBERY; OCCURRENCE OF DEATH BY MERE ACCIDENT IS
IMMATERIAL. — It is a settled doctrine that when death supervenes by reason
or on the occasion of the robbery, it is immaterial that the occurrence of death
was by mere accident. What is important and decisive is that death results by
reason or on the occasion of the robbery.
4. ID.; APPLICATION OF PENALTIES; ARTICLE 49 OF THE REVISED
PENAL CODE; APPLICABLE ONLY TO CASES WHEN THE CRIME
COMMITTED BEFALLS A DIFFERENT PERSON. — Article 49, paragraph 1 of
the Revised Penal Code has been applied only to cases when the crime
committed befalls a different person from the one intended to be the victim,
(People vs. Albuquerque 59 Phil. 150-153, citing decisions of the Supreme Court
of Spain), not when the intended victim, not any other person, was the one
killed, as a result of an intention to rob, as in fact appellant and his co- accused,
did rob the deceased.
5. ID.; ID.; ID.; DIFFERENTIATED FROM MITIGATING CIRCUMSTANCE
OF NOT HAVING INTENDED TO COMMIT SO GRAVE A WRONG. — The
mitigating circumstance of not having intended to commit so grave a wrong as
that committed, under paragraph 3 of Article 13 of the Revised Penal Code, is
an entirely different situation from that contemplated under paragraph I, Article
49 of the same Code, where the different felony from that intended, befalls
someone different from the intended victim, as when the person intended to be
killed is a stranger to the offender, but the person actually killed is the offender's
father thereby making the intended felony which is homicide different from the
crime actually committed which is parricide.
6. ID.; ROBBERY WITH HOMICIDE; WITH ONE AGGRAVATING
CIRCUMSTANCE; IMPOSABLE PENALTY IS DEATH. — Where there still
remains one aggravating circumstance to consider, after either one of the two
aggravating circumstances present, that of superior strength and dwelling, is
offset by the mitigating circumstance of not having intended to commit so grave
a wrong as that committed, the higher of the imposable penalty for robbery with
homicide which is reclusion perpetua to death, should therefore be the proper
penalty to be imposed. This is the penalty of death as imposed by the lower
court.

DECISION

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PER CURIAM : p

Automatic review of the death sentence imposed on Diego Opero for robbery
with homicide with which he was charged in the Circuit Criminal Court of Manila,
together with Reynaldo Lacsinto and Milagros Villegas, who, however, did not
appeal their conviction with much lesser penalty, the last-named, as a mere
accessory after the fact. Another accused, Asteria Avila was acquitted.
In his brief, appellant raised only the question of the propriety of the imposition
of the death penalty on him with the following assignments of error:
"1. THE LOWER COURT ERRED IN NOT CONSIDERING
ARTICLE 4, PARAGRAPH 1 OF THE REVISED PENAL CODE IN
DETERMINING THE CRIMINAL LIABILITY OF THE ACCUSED.
"2. THE TRIAL COURT ERRED IN NOT CONSIDERING
ARTICLE 49, PARAGRAPH 1 OF THE REVISED PENAL CODE IN
IMPOSING THE PENALTY ON THE ACCUSED."
For the facts of the case, the narration of which in both the People's brief and
that of appellant does not vary as to the essential ones, We could very well
quote from the Appellee's brief, being the more comprehensive and complete,
the following:
"At about 4:00 o'clock in the morning of April 27, 1978, Salvador
Oliver, a GSIS security guard assigned to the House International
Hotel at Ongpin Street, Binondo, Manila, was informed by Demetrio
Barcing, another security Guard, that the latter picked up a little girl
about three years old loitering at the second floor of the building.
Rafael Ordoña, a janitor of the House International Hotel, told Oliver
that the little girl is residing at Room 314 of the hotel. Oliver called up
Room 314 by telephone and when nobody answered, he and Barcing
brought the little girl to said Room 314 (pp. 6, 7, & 8, t.s.n., June 15,
1978). Upon reaching Room 314, Oliver knocked at the door, and
when nobody answered, he pushed the door open but he smelled
foul odor emanating from the room. Oliver covered his nose with a
handkerchief and together with Barcing and the little girl, they entered
the room where they saw prostrate on a bed a dead person with the
face down and both feet tied. Oliver called up the homicide division of
the Manila Police. Patrolman Fajardo who was assigned to
investigate the report of Oliver, together with some funeral parlor men
arrived at the scene, and they saw a small baby crying and trying to
get out of a crib near the bed of the dead person. (pp. 9, 10 & 11, t.s.n.,
Id.)
"The dead body at Room 314 of the House International Hotel was
that of Liew Soon Ping. Room 314 had been ransacked and personal
belongings thrown all around. The hands and feet of the dead person
were tied and the body was bloated. A towel was tied around the

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mouth of the victim. Photographs of the dead person and the

condition of the room were taken under Patrolman Fajardo's
supervision (pp. 19, 20, 21, 22, 23, & 24, t.s.n., June 15, 1978).
"Patrolman Fajardo came to know that the occupants of Room 314
were Dr. Hong, his wife Liew Soon Ping who is the victim in this case,
their three children and two maids, namely, Mila and Ester (pp. 26 &
27, t.s.n., Id.). After conducting a preliminary inquiry around the
vicinity of the incident, Patrolman Fajardo made an advance report
(Exh. "O"; pp. 32, 33, & 34, rec.) naming therein three suspects,
namely, Diego Opero, Milagros Villegas, Asteria Avila and a fourth
unidentified suspect. The names of these suspects were furnished by
neighbors of the victim to Patrolman Fajardo (pp. 28 & 29, t.s.n., Id).
"After establishing the identity of the suspects, a follow up team of
Manila Policemen composed of Patrolmen Luis Lim and Servande
Malabute was formed to further investigate the case. A separate
police team composed of Sgt. Yanguiling and several policemen
were sent to Leyte and Samar to track down the suspects (pp. 30 &
31, t.s.n., Id.).
"Dr. Hong, the victim's husband who was in Cebu when the incident
in his residence was committed, was contacted by the police and
informed about the death of his wife. Dr. Hong came back
immediately from Cebu and reported to the police. He (Dr. Hong)
made an inventory of the personal effects found missing in his
residence, valued at P30,221.00 (pp. 31, 32 & 33, t.s.n., Id; Exhs. 'R'
and 'R-1').
"While the case was under investigation, the homicide division of the
Manila Police, received a radio message (Exh. 'T-1', p. 40, rec.)
relayed thru Col. Narciso Cabrera, Chief of the Detective Bureau of
the Manila Police, that Reynaldo Lacsinto one of the suspects could
be found in a school house in Moriones, Tondo, Manila. Another radio
message (Exh. 'T', p. 41, rec.) was received by the police that two
other suspects in the case, namely, Diego Opero and Asteria Avila
were picked up by the Samar P.C. and some of the missing articles,
namely, one (1) camera, flashlight, bill fold, and other personal
belongings were recovered from them (pp. 35 & 36, t.s.n., Id.).
"Reynaldo Lacsinto was taken to police headquarters and after
appraising him of his rights under the constitution, his statement was
taken in the presence of his father (pp. 37, 38 & 39, t.s.n., Id; Exhs. 'U'
& 'U-1', pp. 42, 43, 44, 45, 46, 47 & 48, rec.). In his said statement to
the police, Lacsinto admitted his participation and narrated in detail
the commission of the robbery in Room 314 of the House
International Hotel.

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"The Samar P.C. turned over three other suspects, namely Diego
Opero, Milagros Villegas and Asteria Avila to Sgt. Yanguiling who
brought said suspects to Manila and turned them over to the homicide
division of the Manila Police, together with some of the stolen articles
(pp. 31 & 32, t.s.n., June 16, 1978). Statements of these three
suspects (Exhibits 'B', 'C' and 'D', respectively) taken by the Samar
P.C. were also turned over by Sgt. Yanguiling to the homicide division
(pp. 34 & 35, t.s.n., Id.). Opero was investigated further at the Manila
Police Headquarters and he gave a supplemental statement (Exh.
'FF', pp. 70-74, rec.; p. 36, t.s.n., Id.) admitting that he had robbed the
victim and identified some of the missing articles recovered from his
possession (pp. 41 & 42, t.s.n., Id.). He described in detail how he
planned the robbery and named the rest of his co-accused as willing
participants. He also narrated in his said supplemental statement that
he and his co-accused Lacsinto subdued the victim by assaulting her,
tying up her hands and feet stabbing her and stuffing her mouth with a
piece of pandesal (pp. 70-74, rec.)

"In her statement to the Manila police (Exh. 'GG', pp. 74 & 75, rec.)
Milagros Villegas identified the stolen clothes which were given to her
by Opero. (pp. 44, 45 & 46, t.s.n., Id.)
"The third suspect, Asteria Avila told the Manila Police that she was
not a party to the crime and upon advice of her lawyer she did not
give any further statement. (p. 47, t.s.n., Id.)
"A reenactment of the crime at the crime scene was held under the
direction of Opero portraying — his role, with Lacsinto depicting his
part, and pictures of the reenactment were taken (pp. 51, 52, 53, 54,
55, 56, 57, 58, 59 & 60, t.s.n., Id., pp. 79-99, incl., rec.)
"The body of the victim Liew Soon Ping was autopsied by Dr. Angelo
Singian, then Chief of the Medico Legal Division of the Western
Police District. The body was identified by the victim's husband. Dr.
Singian examined the body of the victim and issued a death
certificate (Exh. 'AA'), and the necropsy report (Exh. 'BB'), with the
following findings: 1) a pale yellowish band across the eyes of the
victim caused by the application of a towel, or broad piece of cloth
across the eyes; 2) a pale yellowish band across the mouth caused
by a similar material as the one applied across the victim's eyes,
which was tied across the mouth; 3) contusion and hematoma on the
upper and lower lips caused by a blunt instrument; 4) abrasions on
the right side of the chin; 5) broad linear mark of clothing material on
the neck; 6) cord or ligature marks on the left and right arm, indicating
that both arms were tied; 7) abdomen distended with gas, due to
decomposition; 8) epiglotis, hematoma and contusion on the right
side of the tongue; 9) contusions and hematoma on the right cheek;
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10) superficial stab wound measuring 0.8 cm. on the right side of the
chin caused by a sharp bladed instrument; 11) superficial stab wound
on the mid-axilliary lie caused by a sharp bladed instrument; 12) stab
wound on the left forearm; 13) cord markings on both feet.
"Internal findings reveal an impacted bolus of white bread measuring
3 x 2.5 cm. in the oropharynx. The tongue has contusion on the right
lateral side and an abrasion across the middle portion. The larynx
and trachea are markedly congested. The cause of death was due to
'asphyxiation by suffocation' with an impacted bolus into the
oropharynx and compression of the neck with a broad clothing around
the neck" (pp. 6-18, incl., t.s.n., June 16, 1978; Exh. 'BB', 62 & 63,
rec.)
In his first assignment of error, appellant advances the theory that he never
intended to kill the deceased, his intention being merely to rob her, for if indeed
he had the intention to kill her, he could have easily done so with the knife, and
therefore, his liability should be only for robbery.
Appellant's theory finds no basis in the law or in jurisprudence. It has been
repeatedly held that when direct and intimate connection exists between the
robbery and the killing, regardless of which of the two precedes the other, or
whether they are committed at the same time, the crime committed is the
special complex crime of robbery with homicide. 1 If the circumstances would
indicate no intention to kill, as in the instant case where evidently, the intention
is to prevent the deceased from making an outcry, and so a "pandesal" was
stuffed into her mouth, the mitigating circumstance of not having intended to
commit so grave a wrong may be appreciated. 2 The stuffing of the "pandesal" in
the mouth would not have produced asphyxiation had it not slid into the
neckline, "caused by the victim's own movements," according to Dr. Singian.
The movements of the victim that caused the "pandesal" to slide into the
neckline were, however, attributable to what appellant and his co-accused did to
the victim, for if they did not hogtie her, she could have easily removed the
"pandesal" from her mouth and avoided death by asphyxiation.
It may not avail appellant to contend that the death was by mere
accident for even if it were so, which is not even beyond doubt for the sliding
of the pandesal into the neckline to produce asphyxiation could reasonably
have been anticipated, it is a settled doctrine that when death supervenes by
reason or on the occasion of the robbery, it is immaterial that the occurrence
of death was by mere accident. 3 What is important and decisive is that
death results by reason or on the occasion of the robbery. 4 These Spanish
doctrines were cited by this Court in People vs. Mangulabnan, et al., 99 Phil.
992.
Appellant would also have Article 49, paragraph 1 of the Revised Penal Code
apply to him, and faults the court a quo for having failed to do so. The provision
cited reads:

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"Art. 49. Penalty to be imposed upon the principals when the

crime committed is different from that intended. — In cases in which
the felony committed is different from that which the offender intended
to commit, the following rules shall be observed:
"1. If the penalty prescribed for the felony committed be higher
than that corresponding to the offense which the accused intended to
commit, the penalty corresponding to the latter shall be imposed in its
maximum period.
xxx xxx xxx"
The foregoing provision has been applied only to cases when the crime
committed befalls a different person from the one intended to be the victim. This
was the explicit ruling in the case of People vs. Albuquerque, 59 Phil. 150-153,
citing decisions of the Supreme Court of Spain. 5
In the instant case, the intended victim, not any other person, was the one
killed, as a result of an intention to rob, as in fact appellant and his co-accused,
did rob the deceased. As stated earlier, what may be appreciated in appellant's
favor is only the mitigating circumstance of not having intended to commit so
grave a wrong as that committed, under paragraph 3 of Article 13 of the Revised
Penal Code, an entirely different situation from that contemplated under
paragraph 1, Article 49 of the same Code, where as already explained, the
different felony from that intended, befalls someone different from the intended
victim, as when the person intended to be killed is a stranger to the offender, but
the person actually killed is the offender's father, thereby making the intended
felony which is homicide different from the crime actually committed which is
parricide.
Notwithstanding the presence of the mitigating circumstance of not having
intended to commit so grave a wrong as that committed, there still remains one
aggravating circumstance to consider, after either one of the two aggravating
circumstances present, that of superior strength and dwelling, is offset by the
mitigating circumstance aforesaid. The higher of the imposable penalty for the
crime committed, which is reclusion perpetua to death, should therefore be the
proper penalty to be imposed on appellant. This is the penalty of death as
imposed by the lower court.
WHEREFORE, the judgment appealed from being in accordance with law and
the evidence, except as to the non-appreciation of the mitigating circumstance
of having no intention to commit so grave a wrong as that committed, which
nevertheless does not call for the modification of the penalty of death as
imposed by the lower court, is hereby affirmed. Cost de oficio.
SO ORDERED.
Teehankee, Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez Guerrero,
Abad Santos and De Castro, JJ., concur.
Fernando, C.J., did not take part.
Melencio-Herrera, J., concurs in the result.
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Footnotes

1. People vs. Hernandez, 46 Phil. 48.

2. People vs. Sia Bonkia, 60 Phil. 1; U.S. vs. Samea, 5 Phil. 227.
3. People vs. Mangulabnan, 99 Phil. 992.
4. Id., citing Decisions of the Supreme Court of Spain, November 26, 1892
and January 12, 1899.
5. Decision of October 20, 1897 and June 28, 1899.

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