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[G.R. No. 10790. October 29, 1915. ]

THE UNITED STATES, Plaintiff-Appellee, v. SIMON TAN CORTESO, ET AL., Defendants-Appellants.

Antonio Belmonte and M. B. Villanueva for Appellants.

Acting Attorney-General Zaragoza for Appellee.


1. MURDER AND ROBBERY WITH HOMICIDE; CIRCUMSTANCES; ARTICLE 403, PENAL CODE. — No qualifying circumstance enumerated in article 403 of the Penal Code, which may attend the commission of the crime of homicide committed for the purpose or on the occasion of a robbery, can determine the classification of the crime of murder; but, under the classification of robbery with homicide, it should be considered merely as a generic aggravating circumstance to be taken into account in the imposition of the proper penalty.

2. ROBBERY WITH HOMICIDE; EVIDENCE; TESTIMONY OF CODEFENDANT. — The affidavit of one of the persons who took part in the commission of the crime merits credence and should receive attention in the final disposition of the case, when such affiant, in charging his coaccused with complicity and coparticipation in the crime, admits and confesses his own responsibility, and, furthermore, when, his incriminatory statements appear to be corroborated by the testimony of witnesses and circumstantial evidence produced at trial.



On December 16, 1914, the deputy provincial fiscal filed complaint with the Court of First Instance of Tacloban charging Simon Tan Corteso, Claudio Corteso and Felix Alvero with the crime of robbery with murder, and after trial judgment was rendered on February 6, 1915 whereby the three defendants were sentenced to the penalty of death. From this judgment counsel for Simon Tan Corteso and Felix Alvero appealed, wherefore the record in this case has been brought up to this court on appeal for a review of the said judgment.

On October 27, 1914, about 4 o’clock in the afternoon, the Chinaman Chong Bunto went to Chinaman Tan Quiatco’s house situated in the pueblo of Abuyog, Leyte, to receive from the latter about P100, the son of the proprietor of the house, the defendant Simon Tan Corteso and a Chinaman named Tan Poco being present. On Chong Bunto announcing his departure for Tacloban the following morning, Tan Poco handed him a letter with the sum of P12 with the request to deliver both the letter and the money at the house of the Chinaman Ortega, who would forward them to Tan Poco’s wife who was living in Basay. The defendant Simon heard this conversation and saw Chong Bunto receive said money.

At sunrise, or about 6 o’clock of the morning of the 28th of the said month and year, the defendants Simon Tan Corteso, Felix Alvero and Claudio Corteso, going from Abuyog in the direction of the pueblo of Tarragona, crossed the Maya River in a banca paddled by the women Macra Silvano and Petra Gabrielles. Afterwards the Chinamen named Quia and Chua, on their way from Tarragona to Abuyog, also crossed this river, on horseback; still later Juan Salvana crossed it, and after him, Chong Bunto, who had come from Abuyog, traveling in direction of Tarragona. At about 5 o’clock that afternoon the three defendants bathed in this river, then crossed it, going toward Abuyog, and, after dressing themselves, went to the town. Simon Tan Corteso was carrying a bolo at that time. The women in charge of the banca, Macra Silvano and Petra Gabrielles corroborated these details, as did also Juan Salvana who added that, when he was going from Tarragona to Abuyog to sell fish, between 8 and 9 o’clock in the morning of October 28, 1914, while passing along the shore, he saw the three defendants seated on the trunk of a fallen tree on the shore ten brazas from the spot where the corpse of the Chinaman Chong Bunto was found buried.

Besides the testimony of these witnesses, the record contains that of Felix Tabugukan. This witness testified that about 10 o’clock in the morning of the said 28th, while going from Casarungan toward Abuyog, when passing along the shore, he saw on the other side of the Maya River Raymundo Pantin who was talking with the defendants Claudio Corteso and Felix Alvero; that just at this moment Raymundo started to run and these two defendants pursued him; that behind them followed the other defendant, Simon Tan Corteso, who had emerged from a wood; that witness heard the latter shout to the two defendants in front: "Kill that son of a b. . . for he might blab;" that when witness heard these words he also started to run as he saw that Simon Tan Corteso was then carrying a bolo; that the place where he saw the defendants pursue Raymundo Pantin was about twelve brazas from where the body of the Chinaman Chong Bunto was found buried.

The witness Raymundo Pantin, corroborating the previous reference, testified: that while traveling from Tarragona on his way to the mouth of the Maya River on the morning aforementioned he saw the three defendants lead a person higher up among some brush-on the shore; that, believing that the person conducted was sick, he approached; that from a distance of about 50 brazas he saw that Claudio Corteso had seized the two hands and had put one foot on the neck of the person whom they had conducted, and who was stretched out on his back; that Felix Alvero was holding the victim’s feet; that Simon Tan Corteso was slashing victim’s right side with a bolo; that he noticed that the victim was the Chinaman Chong Bunto, whom he had previously known; that on seeing what was taking place he fled, pursued by Claudio Corteso and Felix Alvero who, on overtaking him, caught him and asked why he had run away; that he replied he was frightened by what he had seen; that just then Simon Tan Corteso appeared saying "Kill that son of a b. . . for he might blab;" that whereupon he begged for clemency and promised to say nothing to anybody, not even to his own wife and children; that, after threatening to kill him and his family should he reveal the deed, they released him; that he saw the man Felix Tabugukan pass near by the place; and that when witness was about to continue his journey, the defendants prevented him from so doing and warned him to return home, which he did.

Anastacio Moron, a Constabulary sergeant, testified that, having received orders to investigate the matter of the disappearance of the Chinaman Chong Bunto, he examined various places till on November 12th, 1914, he arrived at the pueblo of Abuyog; that on passing along the shore he noticed a place, which appeared to have been recently excavated, covered with coconut leaves; that he thereupon approached the spot and after removing the leaves saw an umbrella sticking in the ground up to the handle, which caused him to suspect that the Chinaman he was looking for was buried there; that he therefore sent a note, by the Constabulary soldier who was with him, to the justice of the peace of the pueblo to request him to come to the place where witness remained on watch; that between 2 and 3 o’clock in the afternoon of the said date the justice of the peace, the municipal president, the chief of police, several policemen and two Chinamen arrived; that after digging away the earth the exhumed body was identified by the two Chinamen present as that of Chong Bunto who, when he left the town, was carrying the umbrella found buried in the place where the body was discovered; that after an examination the corpse was reburied in the same place; that while returning to the town, one of the Chinamen who was present at the exhumation (named Diunga) told witness that he suspected the defendants of being the murderers of Chong Bunto; that witness therefore went to Claudio Corteso’s house; that on being questioned Corteso, trembling, replied by inquiring in turn "if he would not come out of the affair badly;" that witness answered telling him not to worry, because he would be used as a witness; that Claudio Corteso then said he would tell the truth; that thereupon witness conducted Corteso to a friend’s house, left him there and immediately went to the house of Felix Alvero whom he advised to tell the truth because Claudio, his companion in the murder of the Chinaman, had confessed; that Alvero said: "By God, sergeant, if we were not friends, I would not confess the crime to you;" that witness replied Alvero need not worry because he and Claudio Corteso would serve as witnesses and he (witness) would accuse only Simon Tan Corteso; that immediately thereafter he conducted Alvero to the house where Claudio Corteso was, and, leaving them there together, went in search of Simon Tan Corteso, whom he afterwards found in the street, took at once to the municipal building handcuffed, and asked whether he had killed the Chinaman; that Simon replied he was not the one and added that prior to the date of disappearance, his father received from Chong Bunto a written request to meet the latter, as he carried tins of opium, and that his father then told him to go out and meet the deceased (whom in fact they did meet in Tarragona) who having handed over four tins of opium advised Simon to go on ahead to the town of Abuyog; that after the arrest of the defendants, witness went to bring Felix Alvero and Claudio Corteso to the municipal building; that furthermore at the place where the body was found he noticed a great deal of blood on the ground and a branch about two inches in diameter that had been cut from a tree.

The justice of the peace of Abuyog, Juan Catindoy, testified that on the right side of the shirt on the body of the Chinaman exhumed on the shore, where witness and several assistants had gone by reason of the summons of the Constabulary sergeant, he saw blood stains. When the said justice of the peace was shown the affidavits, executed before him by Felix Alvero and Claudio Corteso, drawn up in the Visayan dialect, translated into Spanish and presented at the trial as Exhibit C and D, he stated that when the arrested men appeared before him they ratified the contents of both documents in which it appears that they respectively stated under oath that both, invited by Simon Tan Corteso, started out very early on the morning of October 28, 1914, for the purpose of gambling in Tarragona; that, on arriving at the other side of the Maya River which they crossed in a banca, they halted, at Simon’s suggestion, to await the arrival of a Chinaman whom Simon knew; that when the Chinaman arrived, at about 9 o’clock in the morning, Simon Tan Corteso approached the man to talk with him; that after a short interval, suddenly, with a cudgel he was carrying, he dealt the Chinaman a blow on the left ear as a result of which the victim fell at full length on the ground; that after having seen this affiants withdrew, while the assailant. Simon Tan Corteso, took possession of several banknotes the assaulted Chinaman was carrying; and that afterwards they returned to the town. The said Alvero and Claudio Corteso each ratified the contents of these affidavits.

The defendants pleaded not guilty, and Simon Tan Corteso, testifying as a witness, denied the charge as well as that he had crossed the Maya River on the 28th of October, 1914, and had killed the Chinaman Chong Bunto. He alleged that on the said day, as it was his birthday, he remained at home and did not leave the house; that he did not know the Chinaman Chong Bunto; that he did not see his father hand any sum of money whatever to the deceased; that he also denied the truth of the testimony given by his two codefendants.

The other defendant, Felix Alvero, testified under oath that on November 13, 1914, Sergeant Anastacio Moron came to his house saying that if he wanted to earn some money he was to find a man who had disappeared two weeks before, about whom nothing was known, not even whether he had been killed; that the Chinese had prepared P500, P200 for two witnesses and P300 for defendant himself; that he told the sergeant that he could not accept the proposal, as he knew nothing of the matter, nor could he give such testimony as he might be instructed to give; that upon making this reply the sergeant threatened defendant with his revolver, wherefore through fear defendant assented; that then the sergeant took him to a large house where there were two Constabulary soldiers and Claudio Corteso; that the sergeant, laying his revolver on a table, informed Claudio Corteso that he would use them as witnesses; that he coached them as to what they should testify and threatened them with death if they disobeyed; that he also directed them to testify in the municipal building as he had coached them and to state that they had seen the bills of different denominations taken from the dead Chinaman.

The defendant Claudio Corteso, likewise testifying under oath, said that, at about 5 o’clock in the morning of the 28th of October, 1914, Simon Tan Corteso and Felix Alvero appeared at his house and invited him to the cockpit; that he at first refused the invitation, but his said visitors insisted promising him money if they won; that as he was then in need of money, he finally accompanied them; that, crossing the Maya River, they halted on the bank whereupon Felix Alvero cut off the branch of a tree to serve as a cane, as he said; that at about 8 o’clock in the morning the Chinaman Bunto arrived; that Simon and Felix engaged him in conversation; that thereupon Simon Tan Corteso dealt the Chinaman a blow with the said stick or cudgel; that on seeing this done, witness ran off and hid behind a pandan plant; that soon afterwards his said companions commenced to look for him and, on finding him, Simon asked him why he ran away; that Felix remarked to witness it would be better to kill a person who could do them harm and threatened witness with his weapon; that witness begged them not to kill him, because he knew nothing of what had occurred nor of what they had done; that they then enjoined him to say nothing to anyone, not even to his wife or his children; and that while leaving they counted the banknotes they had, which were of the denominations of ten, five, and two pesos.

The witnesses presented by the defense testified as follows: Juan Cañavela declared that at 7 o’clock in the morning of the 28th of October, Felix Alvero and Lucas Almendra came to his house, situated in the barrio of Buenavista, Abuyog, to buy coconuts, and remained there continuously until 4 o’clock in the afternoon of that day. Matea Corteso, the mother of Simon Tan Corteso, declared that on October 28, 1914, her son did not go out of her house; that being his birthday he helped her in the kitchen to prepare the dinner, and denied that the Chinamen Tan Poco and Chong Bunto were in her house the day before, October 27; that her son Simon speaks Chinese and is a relative of Claudio Corteso, and that Simon’s father is the Chinaman Tan Quiatco, witness’ husband. Margarito Allera declared that he was in Simon’s house by the defendant’s invitation for the purpose of working in the kitchen, as it was Simon’s birthday, and that on the said day, October 28th, he saw Simon Tan Corteso roasting a pig beside his father’s house. Ambrosio Matol declared that at about 6 o’clock in the morning of the 28th of October, 1914, he saw Raymundo Pantin set out for Abuyog; that in reply to his question Pantin said he had been sent for by a man named Andoy Diongco, to be a witness in a case; and that he (witness and Raymundo Pantin, traveling together, arrived at Abuyog at 9 o’clock that morning, adding that he was ferried across the Maya River by Macra Silvano.

On cross examination Raymundo Pantin contradicted the testimony given by Ambrosio Matol; and Macra Silvano testified that she did not see either Pantin or Matol cross the Maya River, that she did not take them in a banca that morning to the other side of this river.

The sergeant Anastacio Moron, also testifying on cross examination, denied that he offered any money whatever to Felix Alvero to induce him to testify to being a companion of Simon Tan Corteso and Claudio Corteso in the commission of the crime, likewise that he had maltreated or threatened Alvero with a revolver on his refusal to testify, as well as that he had maltreated or threatened either of the other defendants. He added that when Felix Alvero was arrested and taken to the house where Claudio Corteso was, witness was not carrying a revolver, that he only provided himself with one when he went to arrest Simon Tan Corteso. He also denied having coached the defendants as to the testimony they should give, and stated that if he nodded his head on hearing Claudio Corteso testify, he did so because of the satisfaction he felt at hearing this witness testify to substantially what he had previously stated to the sergeant.

From the facts above related it is concluded that the crime of robbery with homicide, provided for and punished by articles 502 and 503, No. 1, of the Penal Code, has been fully proven, inasmuch as the Chinaman Chong Bunto was violently killed for the purpose of robbery, his assailants taking possession of the money he was carrying, amounting to about P100, while traveling on the morning of the crime from the pueblo of Abuyog toward Tacloban. It is a proven fact that on the previous afternoon, October 27, the deceased received the said sum of money from the Chinaman Tan Quiatco in the presence of the latter’s son, Simon Tan Corteso, and the Chinaman Tan Poco. It is unquestionable that robbery was the final object of these assailants because, after Chong Bunto had been stretched out on the ground, the said Simon Tan Corteso took possession of several banknotes, carried by the assaulted Chinaman, which he knew positively his father had given to Chong Bunto the previous afternoon.

The crime in question is defined in the Penal Code as of a complex character and should be classified as robbery with homicide. This crime is specifically punished with two indivisible penalties, ranging from cadena perpetua to death, and, therefore, any qualifying circumstances which may have attended the violent death of the deceased can not, in this case, determine the classification of murder; under the classification of robbery with homicide, the said circumstances must be considered as generic aggravating ones, which will be taken into account for the imposition of the corresponding penalty.

By the testimony of witnesses and by the circumstantial evidence presented it has been proven that the defendants Simon Tan Corteso, Claudio Corteso and Felix Alvero are the sole perpetrators by direct participation, fully convicted, of the said crime of robbery with homicide, for, notwithstanding the denial of the first and the retractions of the two last-named, from the statements they made before the police and the justice of the peace the record furnishes decisive and conclusive proof which produces in the mind a full conviction, beyond all doubt, that the defendants are guilty of having robbed the Chinaman Chong Bunto of the money he was carrying, and of violently killing him for the sole purpose of taking away from him the paper money he had at the moment of the assault.

From all the evidence in the case it is concluded that at the very moment when Simon Tan Corteso saw his father deliver the P100, more or less, to the unfortunate Chong Bunto, he conceived the idea of possessing himself of this money, and that as he had learned that Chong Bunto would start for Tacloban the following morning, the said Simon, having already resolved to commit the crime, invited his two codefendants, Alvero and Corteso, to join him in ambushing the Chinaman when he crossed the Maya river; that when the Chinaman did so several hours afterwards, on his way from Abuyog, after a short conversation with the instigator of the crime, Simon Tan Corteso suddenly dealt him a heavy blow near the left ear with a thick stick, as a result of which Chong Bunto fell at full length on the ground; that his assailant thereupon took possession of the banknotes the victim was carrying. The sergeant, Moron, who discovered the place where the body of the Chinaman was buried, noticed that near by was a thick limb of a tree recently cut off, a detail affirmed by the defendant Alvero.

The record does not sufficiently prove that the two defendants Alvero and Corteso, when they accompanied Simon Tan Corteso upon invitation, were then aware of the criminal purpose which the latter had conceived the previous afternoon. While the two men invited were willing to accompany him and to stop on the river bank to await the victim; it is not shown, however, that in so doing they were in agreement with the principal for the commission of the double crime of robbery with homicide. The evidence and facts brought out during the trial induce the belief that it was Simon Tan Corteso alone who had thought out and premeditated the manner in which the crime planned hours before its commission, on the previous day, was to be executed.

The coparticipation Alvero and Corteso took, immediately after the Chinaman had been stretched out on the ground by the heavy blow dealt him by Simon Tan Corteso, has undoubtedly placed them in the position of coprincipals who cooperated in the commission of the very serious crime of robbery with homicide for, according to the testimony of the eyewitness Raymundo Pantin, the defendants Alvero and Corteso held the Chinaman by the hands and feet and one of them put his foot on the victim’s neck while Simon Tan Corteso inflicted a serious wound in the right side. Moreover, it is shown that it was Simon Tan Corteso himself who took possession of the paper money which the Chinaman had.

By the testimony of Ambrosio Matol, the defense made an attempt to discredit the testimony of an eyewitness to the crime, Raymundo Pantin, who is corroborated by another witness, Felix Tabugukan, who by chance saw Pantin pursued and afterwards held by the defendants and who saw them commit the crime. The testimony of the witness Matol appears to be contradicted by the said Pantin and by the woman who paddled the banca, Macra Silvano; the latter stated that she did not see the witness Matol cross the Maya river in a banca, either alone or with said Pantin. Therefore, the testimony of this witness for the defense, Ambrosio Matol, is not to be believed, neither is that of Juan Cañavela, presented by the defendant Alvero, nor that of Matea Corteso, mother of Simon Tan Corteso, and of Margarito Allera (Simon’s witnesses) for the reason that their testimony has not weakened or destroyed that of the several witnesses who, testifying to various facts and circumstances that occurred at different times, have, taking their testimony as a whole, confirmed the truth of the acts charged in the complaint, all of which is further borne out by the direct and the circumstantial evidence bearing on duly proven facts.

The statements made by the defendants Alvero and Corteso, particularly the latter, constitute corroborative proof of their guilt, as well as of their codefendant Simon Tan Corteso, notwithstanding his denial of the charge, since the said defendants Alvero and Corteso testified that they were present when Simon Tan Corteso committed the crime, and since they did not prove that they tried to prevent him from committing it. On the contrary, they took part in its consummation, therefore their respective statements undoubtedly are deserving of belief, inasmuch as they are corroborated by the eyewitness Raymundo Pantin, by the witness Juan Salvana who saw the three defendants sitting on the trunk of a fallen tree on the bank at a spot only about ten brazas distant from where the dead body of the buried Chinaman was discovered by the sergeant Anastacio Moron, and by the justice of the peace Catindoy, both of whom saw blood on the ground at the place of the crime and blood stains on the right side of the Chinaman’s shirt; by the testimony of Tabugukan and by that of the women who handled the ferry banca on the Maya river; and also by other evidence of a circumstantial character which more fully confirms the participation of all three defendants in the commission of the crime. Their counsel did not succeed in proving that the statements contained in the affidavits Exhibits C and D, which were ratified before the justice of the peace and presented in evidence at the trial, were not voluntarily made, or that they were obtained from them by intimidation and threats, and the record shows that the justice of the peace testified that Corteso and Alvero did make such ratifications under oath.

The incriminating statements of Claudio Corteso, accusing his codefendants of participation in the crime under prosecution, merit credence and should be given due weight because he himself therein admits and confesses his own participation in the crime, and furthermore because his said statements appear to be corroborated by the oral testimony and by the circumstantial evidence, taken as a whole, shown in the record.

For the reasons above mentioned, the commission of the crime of robbery with homicide must be deemed to have been attended by the aggravating circumstances of evident premeditation on the part of the defendant Simon Tan Corteso, and by that of abuse of superior strength by him and his two codefendants Alvero and Corteso. The circumstance of treachery, also an aggravating one, cannot be held to have been present in the commission of the crime, because of the lack of positive proof that the deceased died as a result of the blow he received on the head and that he was still alive when he was stabbed in the right side by Simon Tan Corteso while being held by the other assailants, for which reason only the aggravating circumstance of abuse of superior strength is considered. This latter circumstance appears to be offset by the special circumstance mentioned in article 11 of the Penal Code, as amended by Act No. 2142. The circumstances of extreme cruelty (ensañamiento) and of the commission of the crime in an uninhabited place are not to be taken into consideration, inasmuch as the place where the crime was committed is apparently frequented by people who cross the river in traveling from Tarragona to Abuyog and vice versa, wherefore it is very doubtful whether it was unpopulated; and the defendants’ acts show only a decided purpose to deprive the deceased of life, not to prolong or to deliberately increase his sufferings by the infliction of other evils unnecessary for their purpose.

For the foregoing reasons the errors assigned by the defense to the judgment brought up before us for review have been duly refuted and, therefore, the three defendants should be sentenced as guilty of the crime of robbery with homicide. Therefore we do hereby sentence Simon Tan Corteso to the penalty of death which shall be executed in conformity with the provisions of Acts Nos. 451 and 1577, and in case he should be pardoned it shall be understood that he is sentenced to the penalties of perpetual, absolute disqualification, and of subjection to the vigilance of the authorities for the rest of his life, unless, these accessory penalties shall have been specifically remitted in the pardon granted; and we sentence the defendants Felix Alvero and Claudio Corteso each to the penalty of cadena, perpetua, to civil interdiction and subjection during their lifetime to the vigilance of the authorities and, in case the said two defendants should obtain a pardon for the principal penalty, they shall, during their lifetime, suffer perpetual, absolute disqualification and subjection to the vigilance of the authorities, unless these accessory penalties be remitted in the pardon of the principal penalty; and all three defendants are sentenced to pay jointly and severally an indemnity of P1,000 to the heirs of the deceased and to indemnify them in the amount of the P100 stolen from the said deceased and to pay, each of the defendants, one-third of the costs of both instances. In this wise the sentence reviewed and appealed from is affirmed in so far as it agrees with this decision, and is reversed in so far as it does not. So ordered.

Arellano, C.J., Johnson, Carson, Trent and Araullo, JJ., concur.

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