Appellants Juanito and Arsenio Mabilangan, brothers and residents of Barangay Albalate, Catbalogan, Samar, together with Feliciano Juamis, Romeo Juamis and Adriano Gualba, were charged with robbery with multiple homicide for taking personal effects belonging to Vivencio Cabarles, having gained entrance to the latter’s house through an open door, on the occasion of which the hired help and four minor children of Cabarles were stabbed dead. The case against Feliciano and Romeo Juamis, who both pleaded not guilty, was dismissed on motion of the fiscal while Adriano Gualba was never arrested. Both appellants entered a plea of guilty which they reiterated even after the trial judge fully explained to them the nature of the information, the consequences of their plea and the probable penalty that may be imposed upon them. After the trial, both were convicted as charged and sentenced to death. On review, they contest the imposition of the death penalty disputing the lower court’s finding that the crime was aggravated by its commission by a band and contend that as they are entitled to the two mitigating circumstances of voluntary plea of guilty and drunkenness which is not habitual offsetting the two aggravating circumstances of treachery and dwelling, reclusion perpetua should have been imposed instead.

The Supreme Court held that the lower court erred in appreciating "in band" as an aggravating circumstance as the evidence showed that only the appellants and Adriano Gualba, who is at large, were armed with sharp pointed instruments; but that this error does not alter the result since there were still the three aggravating circumstances of treachery, dwelling and habitual drunkenness offset only by the sole mitigating circumstance of plea of guilty. The fact that several persons were killed on the occasion of the robbery was appreciated as an additional aggravating circumstance to avoid the anomalous situation where, from the standpoint of the gravity of the offense, a robbery with one killing would be on the same level as a robbery with multiple killings.

Judgment affirmed.

1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; COMMISSION OF CRIME BY A BAND; REQUISITES THEREOF NOT PRESENT IN CASE AT BAR. — Where the evidence shows that only the two Mabilangan defendants and Adriano Gualba, who is at large, were armed with sharp pointed instruments, the lower court erred in appreciating "in band" as an aggravating circumstance since in order to consider that a crime is committed by a band, there should be more than three (3) armed malefactors. (Art. 14, par. 6 and Art. 296, Revised Penal Code.)

2. ID.; ID.; TREACHERY; SUDDEN ATTACK PRESENT IN CASE AT BAR. — There is treachery because four of the minor children of Vivencio Cabarles, the oldest of whom was only ten years old while the youngest was only two years old, were suddenly attacked and killed while they were seated.

3. ID.; ID.; DWELLING; PROPERLY CONSIDERED IN CASE AT BAR. — The aggravating circumstance of dwelling should also be taken into consideration because the crime was committed in the dwelling of Vivencio Cabarles.

4. ID.; ID.; DRUNKENNESS; AGGRAVATING WHEN HABITUAL; CASE AT BAR. — Drunkenness should be considered as an aggravating circumstance because it is habitual on the part of both Mabilangan defendants who admitted in open court that before they committed the crime, they drank for three hours in the house of defendant Adriano Gualba, further testifying that they often had drinking parties.

5. ID.; ROBBERY WITH HOMICIDE; AGGRAVATED BY TREACHERY, DWELLING AND HABITUAL DRUNKENNESS BEING OFFSET ONLY BY ONE MITIGATING CIRCUMSTANCE; IMPOSABLE PENALTY. — The three aggravating circumstances of treachery, dwelling and habitual drunkenness attending the commission of the crime being offset only by the mitigating circumstance of a plea of guilty, the penalty for robbery with multiple homicide must be imposed in its maximum period.

6. ID.; ID.; FACT THAT TWO OR MORE PERSONS WERE KILLED ON OCCASION OF ROBBERY APPRECIATED AS ADDITIONAL AGGRAVATING CIRCUMSTANCE. — Since there is only one crime of robbery with homicide, irrespective of the number of killings committed on the occasion, the fact that two or more persons were killed on the occasion of robbery should be appreciated as an additional aggravating circumstance; otherwise, there will obtain an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be on the same level as robbery with multiple killings.

Five defendants, namely, Juanito Mabilangan, Arsenio Mabilangan, Feliciano Juamis, Romeo Juamis and Adriano Gualba were accused in the Court of First Instance of Samar of robbery with multiple homicide.

Defendants Juanito Mabilangan and Arsenio Mabilangan who are brothers, assisted by their counsel, Atty. Nilda Torrevillas, pleaded guilty.

Defendants Feliciano Juamis and Romeo Juamis pleaded not guilty. But after trial, the Court, on motion of the Fiscal, dismissed the case against them. Defendant Adriano Gualba is still at large.

The trial Judge fully explained to the Mabilangan defendants the nature of the information, the consequences of a plea of guilty, and the probable penalty that may be imposed upon them. But they reiterated their plea of guilty. They were also thoroughly examined by the trial Court and the Prosecution was required to present evidence to determine the degree of culpability of said defendants and the existence of the aggravating and mitigating circumstances. These two defendants narrated how they committed the crime in open court by answering questions propounded by no less than the trial Judge.

The facts are not disputed.

At about 3:00 o’clock in the afternoon of November 27, 1975, the accused Juanito Mabilangan and Arsenio Mabilangan were drinking in the house of Adriano Gualba. At about 6:00 p.m. that same day, they stopped drinking and they went down and proceeded to the house of Vivencio Cabarles.chanrobles virtual lawlibrary

The accused, Juanito Mabilangan and Arsenio Mabilangan, are known to Vivencio Cabarles because they all reside at Barangay Albalate, Catbalogan, Samar. They sometimes had drinking parties in the house of Vivencio Cabarles.

When the two Mabilangans, together with Adriano Gualba, reached the house of Vivencio Cabarles, Adriano Gualba went up the house of Vivencio Cabarles through the open door. Arsenio Mabilangan and Juanito Mabilangan followed Adriano Gualba up to the house. Vivencio Cabarles was not at home.

The moment Adriano Gualba got inside the house, he immediately started stabbing the occupants. Dionisio Llantos, one of the victims, resisted so Juanito Mabilangan stabbed him. Arsenio also stabbed Dionisio Llantos. The four minor children of Vivencio Cabarles, namely, Juan, Regina, Shirley, and Rogelio, all less than ten years old were also stabbed to death.

Both Arsenio and Juanito admitted that they only took the radio phonograph but not the cash of P2,000.00.

At the time of the incident, Vivencio Cabarles was in the house of his Padi Coni Jabonalla attending a baptismal party. At about 8:00 o’clock in the evening, he went down the house of his Padi Coni to urinate in the yard. While urinating, he heard his dogs barking but could not see his house as it could not be seen from where he was. Besides, the vicinity was dark. After urinating, he went to his house to investigate why his dogs were barking. When he was about 12 meters to his house, he saw Arsenio Mabilangan going down his house carrying a kerosene lamp in his left hand and a big carton box under his right arm. Arsenio Mabilangan was followed by Juanito Mabilangan who was carrying on his right shoulder a trunk and a bolo in his left hand.

When Vivencio Cabarles was sure that Juanito Mabilangan and Arsenio Mabilangan had already left, he ran to the house of his Padi Coni Jabonalla. He informed his Padi Coni Jabonalla and other guests in the house of what he saw. Padi Coni Jabonalla together with Amado Jabon, Manuel Bañar and Conrado Casica accompanied him to his house. Upon arriving at the house of Vivencio Cabarles, they saw Dionisio Llantos, the hired help, on the floor in the balcony wounded and dead. When they went inside the house in the bedroom, they saw the bodies of Juan, Rogelio and Shirley, all surnamed Cabarles, all wounded and dead. Regina, another child of Vivencio Cabarles, was under the table in the kitchen also wounded and dead. After looking at the dead children, Vivencio Cabarles and his companions went to Sitio Bañgon, Barangay Albalate, Catbalogan, Samar, to inform the Barangay Captain what had happened. The Barangay Captain advised them to wait till daybreak. At daybreak, Vivencio Cabarles and his companions including defendant Gualba, went back to their house and traced the footprints. After covering a distance of 60 meters, the footprints disappeared and Adriano Gualba found among the tall grasses a wooden trunk belonging to Vivencio Cabarles. Several personal effects of Vivencio Cabarles were recovered but the evidence does not show how they were recovered.

On the basis of the foregoing evidence and the plea of guilty of the Mabilangan defendants, the lower Court rendered a decision which reads as follows:jgc:chanrobles.com.ph

"WHEREFORE, in view of the plea of guilty of the accused Juanito Mabilangan and Arsenio Mabilangan, the Court finds the said accused guilty beyond reasonable doubt of the crime of Robbery with Multiple Homicide under Article 294 paragraph 1 and appreciating in their favor the mitigating circumstance of their spontaneous plea of guilty which offsets one of the aggravating circumstance of treachery by a band and dwelling hereby sentences the accused to suffer the extreme penalty of death to be executed by electrocution at the National Penitentiary, Muntinlupa, Rizal, on such date and hour as may be fixed by this Court after the case has been reviewed by the Supreme Court and the decision is affirmed."cralaw virtua1aw library

The case is now before Us for review.

The appellants, through counsel, do not dispute their guilt. They only contest the imposition of the death penalty. While they admit that the lower Court correctly appreciated the aggravating circumstances of treachery and dwelling, they dispute the lower Court’s finding that the crime was further aggravated by its having been committed by a band. The defendants further contend that they are entitled to the mitigating circumstances of voluntary plea of guilty and drunkenness which is not habitual. Offsetting the two mitigating circumstances against only two aggravating circumstances of treachery and dwelling, the appellants contend that reclusion perpetua should have been imposed as the proper penalty.chanrobles virtual lawlibrary

We agree that the lower Court erred in appreciating "in band" as an aggravating circumstance. The evidence shows that only the two Mabilangan defendants and Adriano Gualba, who is at large, were armed with sharp pointed instruments.

In order to consider that a crime is committed by a band, there should be more than three (3) armed malefactors (Art. 14, par. 6 and Art. 296, Revised Penal Code).

This error of the lower Court, however, does not alter the result. The commission of the offense is attended by three aggravating circumstances, namely, treachery, dwelling and habitual drunkenness.

There is treachery because four of the minor children of Vivencio Cabarles, the oldest of whom was only ten years old while the youngest was only two years old, were suddenly attacked and killed while they were seated. 1

The aggravating circumstance of dwelling should also be taken into consideration because the crime was committed in the dwelling of Vivencio Cabarles. Likewise, drunkenness should be considered as an aggravating circumstance because it is habitual on the part of both Mabilangan defendants. The defendants, when they answered the questions of the Court, admitted in open court that before they committed the crime, they drank for three hours in the house of defendant Adriano Gualba. They further testified as follows:jgc:chanrobles.com.ph

"Q: Do you often have a drinking party or do you often have a drinking with Adriano?

A: Yes, your Honor." 2

Even in the appellants’ statement of facts in their brief they stated that "they sometimes had drinking parties in the house of Vivencio Cabarles." 3

The three aggravating circumstances attending the commission of the crime being offset only by the mitigating circumstance of a plea of guilty, the penalty for robbery with homicide must be imposed in its maximum period.

Moreover, since there is only one crime of robbery with homicide, irrespective of the number of killings committed on the occasion of robbery 4 , the fact that two or more persons were killed on the occasion of robbery should be appreciated as an additional aggravating circumstance; otherwise, there will obtain an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be on the same level as robbery with multiple killings.

WHEREFORE, finding no error in the penalty imposed, We hereby affirm the decision appealed with costs.chanrobles virtual lawlibrary

SO ORDERED.

Fernando, C.J., Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Ericta, Plana and Escolin, JJ., concur.

Aquino, J., concurs in the result.



BARREDO, J., concurring:chanrob1es virtual 1aw library

I concur in the conviction of as well as the sentence imposed on the appellants insofar as the killing of Dionisio Llantos is concerned, but I hold that the killing of the four minor children should be deemed as four separate murder.chanrobles virtual lawlibrary

Teehankee, J., concurs.

Endnotes:

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1. see Information p. 1, Record; p. 42, tsn, March 2, 1978; People v. Espare, 61 Phil. 140; People v. Ludday, 61 Phil. 216.

2. tsn p. 8, January 17, 1978.

3. p. 3, Appellants’ Brief, found on page 51, Rollo.

4. People v. Mones, 58 Phil. 46, 59.