1. CRIMINAL LAW; ROBBERY IN BAND WITH MURDER; INCREDIBLE EVIDENCE FOR THE PROSECUTION IS INSUFFICIENT FOR CONVICTION. — G. Y., who was as unpredictable as the changeable weather, certainly does not deserve credence. The explanation that he refused to incriminate the accused in view of the latter’s threats, cannot readily be accepted, since the same moral weakness that may be implied from the fact that Y is easily victimized by threats may be invoked in support of the probability that he testified in accordance with his confession because he was maltreated and threatened by the military police; and Y’s lack of credibility undoubtedly accounted for the acquittal of all the other co-accused.

2. ID.; ID.; VOICE OF ACCUSED AS EVIDENCE OF IDENTITY. — It is true that one’s identity may be established by or gathered from his voice, if familiar to the witness. But where, as in this case, the witness failed to state that the appellant had uttered any specific statement during the commission of the alleged offense which enabled her to recognize his voice, we cannot, without entertaining some doubt, hold the appellant responsible for so grave a crime as that charged in the information. While the widow testified that she heard orders coming from the outside, this of course does not mean that she heard said orders as having been given or uttered by the appellant.

Tomas Sasing, Guillermo Alcordo and Gervasio Ygot, with seven others, were accused in the Court of First Instance of Cebu with the offense of robbery in band with murder. At the instance of the prosecution, the trial court dismissed the case as against Gervasio Ygot in order to enable the prosecution to use him as a witness. After trial, the lower court convicted Tomas Sasing and Guillermo Alcordo of the complex crime of robbery with murder, aggravated by the circumstances of night time and armed band, and sentenced them to reclusion perpetua and its accessories, to indemnify the heirs of the deceased in the sum of P2,000, and to pay the costs. All the other accused were acquitted. Only Tomas Sasing has appealed to this Court.

The evidence for the prosecution in substance tends to show that at about nine o’clock in the evening of July 3, 1946, Inocentes Hermosilla and his wife Macaria Capuyan heard voices emanating from outside their isolated house in barrio Capotolan, municipality of Danao, Province of Cebu, demanding that the door be opened to the "harianon" (ruler). Hermosilla did not comply with the persistent demands of the visitors, saying that he was tired. Someone from the outside asked whether Hermosilla was going to resist, whereupon the latter went to the kitchen to fetch his wife. As they were entering the door leading to the hall, several shots were fired from the outside. Hermosilla, who was hit on several parts of his body, instantly died. The malefactors cut the rope which fastened the door, after which Tomas Sasing, Guillermo Alcordo and an unindentified companion, all armed with pistols, entered the house while the others remained below. Tomas Sasing and his two companions then took from the family trunk clothing worth P100, P235 in cash and P18 worth of jewelries, aside from three fighting cocks which the marauders carried away.

One of the two principal witnesses for the prosecution is Gervasio Ygot, appellant’s co-accused who was excluded from the case at the instance of the fiscal for the very purpose of becoming a state witness. This witness, in the first part of his testimony, disclaimed any knowledge of the facts alleged in the information. Upon being reminded by the fiscal of his extrajudicial confession (Exhibits F and F-1), however, Ygot began to relate the recitals in his confession incriminating the appellant and all the other accused. Upon cross- examination, Ygot reverted to his first statement that he did not know anything about the crime. After conferring with Ygot, the fiscal announced to the court that this witness was ready to tell the whole truth, whereupon the latter, allowed to take the witness stand again, testified in accordance with his confession.

The other principal witness for the prosecution is the wife of Hermosilla who testified that although she did not actually see the persons who entered her house on the occasion in question, she recognized the appellant as being one of them because of his voice.

We are unable to find the appellant guilty upon such kind of evidence. Gervasio Ygot, who was as unpredictable as the changeable weather, certainly does not deserve credence. The explanation that he refused to incriminate the accused in view of the latter’s threats, cannot readily be accepted, since the same moral weakness that may be implied from the fact that Ygot is easily victimized by threats may be invoked in support of the probability that he testified in accordance with his confession because he was maltreated and threatened by the military police; and Ygot’s lack of credibility undoubtedly accounted for the acquittal of all the other co-accused.

The testimony of the widow of Hermosilla might perhaps have served as corroborating evidence, if the same is not free from criticism. It is true that one’s identity may be established by or gathered from his voice, if familiar to the witness. But where, as in this case, the witness failed to state that the appellant had uttered any specific statement during the commission of the alleged offense which enabled her to recognize his voice, we cannot, without entertaining some doubt, hold the appellant responsible for so grave a crime as that charged in the information. While the widow testified that she heard orders coming from the outside, this of course does not mean that she heard said orders as having been given or uttered by the Appellant.

The alleged discovery in the appellant’s house of an empty magazine of a sub-machine gun does not strengthen the case for the prosecution, it appearing that, according to its own version, the appellant was armed with a pistol.

The appealed judgment will therefore be, as the same is hereby, reversed, and the appellant, Tomas Sasing, acquitted with costs de oficio. So ordered.

Moran, C.J., Feria, Perfecto, Bengzon and Briones, JJ., concur.



PABLO, J., disidente:chanrob1es virtual 1aw library

Solo dos, Tomas Sasing y Guillermo Alcordo, de los once que asaltaron la casa de Inocentes Hermosilla, fueron condenados porque los otros no fueron identificados y los otros dos, no arrestados aun. Gervacio Ygot, uno de los acusados, previo sobreseimiento de la querella en cuanto a el, fue presentado como testigo de la acusacion, y el juzgado a quo en cuanto a su declaracion dijo lo siguiente:jgc:chanrobles.com.ph

"The accused Gervasio Ygot signed an affidavit incriminating his co-accused on July 17, 1946, so much so that in the hearing of this case before this Court on October 8, 1946, the fiscal, invoking rule 115, Rules of Court, prayed for the dismissal of the case against him — which was granted, and made him testify for the prosecution. He began by denying any knowledge on the occurrence; a recess was had and upon resuming the hearing he declared incriminating his co-accused substantially as follows: that moments before the occurrence they were on a bridge because Sasing told him to be there — where he met the two Heranas, Batalla and Alcordo; Sasing told him they were going to rob a house. Although at first he refused he had to go with them under their threats; that Sasing was carrying a revolver, Venancio Herana and Batalla rifles, and the rest hunting knives; that upon nearing the house he was left behind to watch, while Sasing, Alcordo and Venancio Herana went upstairs, later he heard shots, the rest remained under the house. Later he saw them coming from the house carrying things and heard them say some one died; that he did not get any share from the loot and went his way afterwards. He explained that he had been threatened with death if he revealed the truth. Upon his cross-examination, however, in the following session (October 11, 1946) he upsetted everything by again denying any knowledge of the occurrence. It may be stated in this connection that all the accused were detained prisoners and that from the provincial jail to the court-house (a distance of more than two kilometers) the prisoners with their guards have to walk.

"In the interim other witnesses for the prosecution MPC Sgt. Olegario Villarino and the justice of the peace of Danao had to take the witness stand and established the circumstances under which accused’s extra-judicial confession Exhibit "F" was executed and acknowledged voluntarily. During an interval the Court was informed (this was during the session of October 14) that the accused Ygot wanted to testify again - which was granted. He declared that his conscience was bothering him; that in his cross-examination of October 11 he had to upset all he had testified to for the Government in his direct examination two days previous because Sasing had threatened other people outside the jail would kill him if he (Sasing) could not and that he used to threaten him every time there was a chance while they were in jail, but now knowing as he well knew that Sasing was the most responsible for all that happened he had to tell the truth: that Sasing was the terror in the mountains, and reiterated what he had testified to in his direct examination of October 8. The Court is aware of the circumstances surrounding the possibilities of contact between the accused in this case; has had full opportunities in observing the conduct of this witness and those of the other accused during the course of the hearings and thus impose itself with the predicament under which said witness had found himself. Between these changes in his testimony, and considering his affidavit Exhibit "F," the Court would chose what he had testified to in his direct examination of October 8 as the truth."cralaw virtua1aw library

Y no dando credito a la defensa de coartada, el juzgado a quo condeno a los dos acusados. Estas declaraciones contradictorias del testigo, teniendo en cuenta las amenazas de que fue objeto, no deben ser desatendidas indebidamente. Solamente declaraciones contradictorias no explicadas satisfactoriamente deben rechazarse.

Pero aun descartando la declaracion del testigo Ygot, en mi opinion, hay prueba bastante para confirmar la sentencia impuesta contra Tomas Sasing. La viuda de Inocentes Hermosilla declaro en preguntas directas lo siguiente:jgc:chanrobles.com.ph

"P.