1. CRIMINAL LAW; ROBBERY WITH HOMICIDE; DESIGNATION OF CRIME NOT AFFECTED BY NUMBER OF PERSONS KILLED. — It is necessary first to correct the designation in the information of the offense as "Robbery with Double Homicide." As we have emphasized in two recent cases: . . . it is the nature of the crime of robbery with homicide that the homicides, irrespective of their number, committed on the occasion of or by reason of the robbery, are merged in the composite crime of "robbery with homicide." It is error, therefore, to treat the death of the victims as "double or multiple homicide," for in this special complex crime, the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294 of the Revised Penal Code. . . . The designation of the crime as robbery with multiple homicide is incorrect. Assuming that a complex crime was committed, it should be categorized as robbery with homicide regardless of the number of persons killed by reason or on occasion of the robbery.

2. ID.; ID.; HOMICIDE MUST HAVE BEEN COMMITTED ON THE OCCASION OF OR IN CONNECTION WITH THE ROBBERY. — It must also be pointed out that the crime of robbery with homicide is a crime against property. The principal offense is robbery, not homicide. Hence, it must be shown that the homicide was committed on the occasion of or in connection with the robbery as originally planned, and not independently thereof. This cannot be presumed. Unless the robbery itself is established, the crime committed is simple homicide or murder as the case may be.

3. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY OF EVIDENCE; CONTRADICTION OF EYEWITNESSES ON A VITAL QUESTION; LEGAL EFFECT THEREOF. — In finding that Eroles was the killer of Villanueva, the trial court obviously relied on the testimony of Carreon, who said that when they heard the gunshots coming from the restaurant, he and Medina immediately proceeded thereto. There they came upon Eroles firing at Villanueva and thereafter taking the victim’s rifle before fleeing. The trial court apparently disregarded the testimony of the other supposed eyewitness, Medina. Medina testified that when they arrived at the scene of the crime, Villanueva was already lying dead outside the restaurant and Nieva had also succumbed inside. He said it was at Carreon that Eroles fired two shots. The appellee dismisses this inconsistency as a minor discrepancy, but the Court does not think so. It goes to the very issue of who shot and killed Villanueva and must therefore be carefully considered in assessing the criminal responsibility of the accused. Where two alleged eyewitnesses contradict themselves on such a vital question, the element of reasonable doubt is injected and cannot be disregarded. Significantly, both Carreon and Medina were prosecution witnesses.

Two soldiers were killed in the morning of March 23, 1989, at a restaurant in Quezon Province. 1 Their weapons were presumably stolen. That same day, Luisito Eroles was picked up by the police for questioning. No other suspects were apprehended although the crime was reportedly committed by several persons.

On July 31, 1989, an information for robbery with double homicide was filed against Eroles and five other persons. The information read in full as follows:chanrob1es virtual 1aw library

The undersigned accuses Luisito Eroles y Veranga alias "Ka Randy", (prisoner), Alejandro Romero alias "Ka Noel", (at large), Feliciano Patriarca alias "Ka Darwin" (at large), Pedro Eroles alias "Ka Rommel", (at large), Peter Doe and John Doe, the last two-mentioned accused being still at large and whose true names are still unknown, of the crime of robbery with double homicide, committed as follows:chanrob1es virtual 1aw library

That on or about the 23rd day of March, 1989, at Barangay Lapu-lapu, Poblacion, Municipality of Unisan, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with firearms of undetermined caliber, with intent to gain and to rob, conspiring and confederating together and mutually helping one another, with force and violence, did then and there willfully, unlawfully and feloniously take, steal and carry away one M-14 rifle, valued at P10,000.00; with Serial No. 860752, issued to and in the possession of CAA Rogelio Nieva, CAFGU, and a property of the Government of the Republic of the Philippines, to its damage and prejudice in the said amount of P10,000.00; and that on the same occasion and by reason thereof, the above-named accused, armed with firearms, conspiring and confederating together and mutually helping one another, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and shoot C2C Fernando Villanueva, PC and CAA Rogelio Nieva, CAFGU, respectively, which directly caused their death.

Of the six accused, Eroles alone was arraigned because the others remained at large. 2 He pleaded not guilty. After trial, he was convicted by Judge Ludovico C. Lopez of the Regional Trial Court of Lucena City in a decision rendered on May 27, 1991. 3 Eroles was sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Villanueva civil indemnity in the amount of P30,000.00.

The trial court found, on the basis principally of the testimonies of Pat. Danilo Medina and C1C Geronimo Carreon, that the accused, in the company of the other accused, shot and killed C2C Fernando Villanueva and thereafter took the victims’ weapon and fled. It discounted his alibi as an inherently weak defense which, additionally, he had failed to sustain.

In this appeal, Eroles faults his conviction on the grounds that the testimonies of the alleged eyewitnesses are contradictory and inherently incredible. He claims that the robbery was not established. Moreover, the prosecution should rely on its own strength and not on the weakness of the defense.

It is necessary first to correct the designation in the information of the offense as "Robbery with Double Homicide." As we have emphasized in two recent cases:chanrob1es virtual 1aw library

. . . it is the nature of the crime of robbery with homicide that the homicides, irrespective of their number, committed on the occasion of or by reason of the robbery, are merged in the composite crime of "robbery with homicide." It is error, therefore, to treat the death of the victims as "double or multiple homicide," for in this special complex crime, the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294 of the Revised Penal Code. 4



The designation of the crime as robbery with multiple homicide is incorrect. Assuming that a complex crime was committed, it should be categorized as robbery with homicide regardless of the number of persons killed by reason or on occasion of the robbery. 5

It must also be pointed out that the crime of robbery with homicide is a crime against property. 6 The principal offense is robbery, not homicide. Hence, it must be shown that the homicide was committed on the occasion of or in connection with the robbery as originally planned, and not independently thereof. This cannot be presumed. Unless the robbery itself is established, the crime committed is simple homicide or murder as the case may be. 7

The fact of the killing of Rogelio Nieva and Fernando Villanueva is not disputed. The autopsy reports showed that the former died of two gunshot wounds and the latter of four as a result of the attack against them at the restaurant. 8 What is in issue is the identity of the killer or killers. More to the point, was it Eroles who killed them?

The decision of the trial court seems to have found Eroles guilty of killing only Villanueva because it decreed the payment of indemnity only to his heirs. No similar indemnity was ordered for the heirs of Nieva.

In finding that Eroles was the killer of Villanueva, the trial court obviously relied on the testimony of Carreon, who said that when they heard the gunshots coming from the restaurant, he and Medina immediately proceeded thereto. 9 There they came upon Eroles firing at Villanueva and thereafter taking the victim’s rifle before fleeing. 10

The trial court apparently disregarded the testimony of the other supposed eyewitness, Medina. Medina testified that when they arrived at the scene of the crime, Villanueva was already lying dead outside the restaurant and Nieva had also succumbed inside. 11 He said it was at Carreon that Eroles fired two shots. 12

The appellee dismisses this inconsistency as a minor discrepancy, but the Court does not think so. It goes to the very issue of who shot and killed Villanueva and must therefore be carefully considered in assessing the criminal responsibility of the accused. Where two alleged eyewitnesses contradict themselves on such a vital question, the element of reasonable doubt is injected and cannot be disregarded. Significantly, both Carreon and Medina were prosecution witnesses.

The other crime allegedly committed by Eroles was robbery. The allegation was that the accused stole and carried away an M-14 rifle "with Serial No. 860752 issued to and in the possession of CAA Rogelio Nieva" at the time he was killed. This too must be proved with clear and convincing evidence.

The memorandum receipt signed by Nieva proves only that he had been issued the rifle described therein. 13 The fact that the soldiers were killed does not raise the presumption that a robbery was also committed. The circumstance that they were soldiers does not raise the presumption that they were carrying firearms at the time of the attack. Even if it did and a robbery could also be presumed, there is no proof that it was Eroles who robbed them of the gun mentioned in the information.

Carreon testified that he saw Eroles fire at Villanueva and thereafter take his victim’s gun before fleeing. Medina said nothing of the sort. His statement was that Villanueva and Nieva were already dead when they arrived at the restaurant and the supposed assailants were already fleeing.

The trial court itself seemed confused about the firearm that was taken. The decision said that Eroles got Villanueva’s M-14 rifle and, later in the same paragraph, noted that Nieva’s M-14 was also missing. It added that the rifle taken by Eroles was covered by a memorandum receipt signed on March 15, 1989, by Nieva (not Villanueva). So whose rifle was stolen by Eroles? If anything is clear about these findings, it is that the object of the robbery is uncertain. That uncertainty casts doubt on the evidence of the prosecution that a robbery was committed with the killings.

It would have been the better strategy for the prosecution to present the testimony of Celestina Capuno, the owner of the restaurant who had earlier signed a sworn statement regarding the incident in question. 14 She was the best eyewitness because she was in the restaurant even before Carreon and Medina arrived. She could have testified on how Nieva and Villanueva were killed, and by whom, and whether any robbery occurred at all. For some reason, however, she did not testify for the prosecution.

The Court agrees that the appellant’s alibi is not worthy of credence. His testimony that he traveled through several barangays to be at Barangay Kabulihan, to attend a burial, 15 is not believable. He never went to an interment although there was indeed one in the said barangay on March 23, 1989. 16 Moreover, he did not establish that from Barangay Kabulihan he could not have possibly gone to Barangay Lapulapu and be there at the time the two soldiers were killed.

But despite all these improbabilities, the weakness of Eroles’s alibi is not enough to overcome the presumption of innocence in his favor. The evidence of the prosecution is simply too flimsy to show that it was Eroles who shot Villanueva to death and stole the gun he was carrying. The two alleged eyewitnesses, both testifying for the prosecution, contradicted themselves on the actual killing of Villanueva. There is also no convincing proof of the firearm that was stolen or, indeed, that a firearm had been stolen at all.

The defense is weak, to be sure, but the prosecution is even weaker. It cannot sustain the appellant’s conviction against the presumption of his innocence as decreed by no less than the Constitution itself.

The Court notes the defense suggestion that when the police team organized to pursue the killers "chanced upon" Eroles, they arrested him because of his supposed NPA connections. He was a convenient "fall guy" they could easily frame. True or not, these observations jibe with the significant fact that Eroles had not sought to hide or flee after the commission of the crime. He alone of the six persons who allegedly attacked the two soldiers did not go into hiding. He alone did not elude trial and conviction.

The Court is not convinced to the point of moral certainty that Luisito Eroles is the person who killed Villanueva (and much less Nieva) and that a robbery was committed on the occasion or by reason of such killing. As there is not enough evidence to support the conclusion that he is guilty of the crime charged, he is entitled to be exonerated on the ground of reasonable doubt.

WHEREFORE, the decision of the Regional Trial Court of Lucena City in Criminal Case No. 89-600 is REVERSED, and appellant Luisito Eroles is hereby ACQUITTED, with no pronouncement as to costs. He is ordered released immediately.

SO ORDERED.

Davide, Jr., Bellosillo and Quiason, JJ., concur.

Griño-Aquino, J., is on leave.

Endnotes:

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1. TSN, pp. 4-5, April 17, 1990.

2. Original Records, p. 17.

3. Judgment: Original Records, pp. 135-145.

4. People v. Marañon, 199 SCRA 421.

5. People v. Ponciano, 204 SCRA 627.

6. Art. 294, Sec. 1, Title Ten of the Revised Penal Code.

7. Angelo v. Court of Appeals, 210 SCRA 402 citing People v. Pacala, 58 SCRA 370.

8. Exhibits B & C, Original Records, pp. 78-79.

9. TSN, p. 8, June 22, 1990.

10. Ibid.

11. TSN, p. 5, April 17, 1990.

12. Ibid.

13. Exhibit G, Original Records, p. 86.

14. Original Records, p. 9.

15. TSN, p. 4, Oct. 18, 1990.

16. TSN, p. 6, Jan. 29, 1991.