1. ROBBERY; PENALTY; PROOF OF DEFENDANT’S AGE. — Defendant’s statement that he was only seventeen years of age was the only evidence presented on this point. The trial judge in his decision stated that judging from his appearance the defendant "is a youth eighteen or nineteen years old’" and rendered sentence accordingly. Held: That owing to the marked difference between the penalty to be imposed if the culprit is over eighteen years of age and that applicable if he is under eighteen years of age, the conclusion of the trial court, drawn from personal observations, is not sufficient to establish beyond a reasonable doubt that the defendant was, as a matter of fact, eighteen years of age when the crime was committed.

2. ID.; MINORS. — In the case of a minor less than eighteen and over fifteen years of age the penalty to be imposed is one degree lower than that prescribed for the offense committed.

This appeal brings up for review a judgment of the Court of First Instance of the Province of Misamis, condemning each of the defendants, Esteban Agadas and Rosario Sabacahan, to six years ten months and one day of presidio mayor, to jointly and severally indemnify Gregoria Dapin in the sum of P380, and to the payment of the costs of the cause for the crime of robbery.

Counsel de officio for the defendants urges that the trial court erred (1) in finding that Gregorio Dapin was robbed of the sum of P380 on the early morning of October 19, 1915, at Oroquieta, Misamis; (2) in not finding that the defendants had established an alibi; and (3) in not finding that this charge of Gregoria Dapin was a mere revenge against the defendant, Esteban Agadas. These three alleged errors, which raise the question of whether or not the guilt of the defendants has been established beyond a reasonable doubt, may be considered together.

Gregoria Dapin testified that about daylight on the morning of October 19, 1915, she was awakened by someone who had placed his hand over her mouth and who was examining her clothes which she then had on; that person then told her that he would kill her if she did not give him her money; that the same person, within a few minutes thereafter, took from her the sum of P380 which she had tied around her waist in a handkerchief; that she was unable to identify the person in any other manner except by his voice, because the lamp in the room was no longer burning; that she did recognize the voice of the person to be that of Esteban Agadas; that she was unable to recognize the other man in the room was no longer burning; that she did recognize the voice of the person to be that of Esteban Agadas; that she was unable to recognize the other man in the room; that at the time the two men left the room, one of her children cried out, saying that one of the men was Rosario Sabacahan; and that her husband, Galo Calavite, was not at home at the time the robbery occurred, he having gone to the cockpit, leaving her and her five children alone.

Marcos Calavite, the 7-year old daughter of Gregoria Dapin and Galo Calavite, testified that she recognized both of the defendants at the time the robbery was committed; that one of them stepped on her hand, she thinking that it was her father; and that Agadas put out the light after he had stepped on her hand. Prudencio Calavite, the 9-year old son of Gregoria Dapin and Galo Calavite, testified that when the robbery was going on he was seized by Rosario Sabacahan, taken to the window, and held in such a position that he could not see what was occurring in that part of the house where his mother was; and that he recognized both of the defendants at the time they left the house.

The robbery was reported immediately to the authorities and Lieutenant Dionisio of the Philippine Constabulary and the chief of police of Oroquieta thereupon instituted an investigation and on being informed that Gregoria Dapin had recognized the voice of the defendant Agadas and that the two children had recognized both of the defendants at the time they left the house, the two children were taken to the house of Agadas and also to the house of Sabacahan, who were then living in the same community, and identified the defendants as being the men who committed the robbery. Rosario Sabacahan admitted to the lieutenant and the chief of police that he had participated in the robbery. On October 20 Rosario Sabacahan appeared before the justice of the peace and freely and voluntarily confessed under oath that he and Esteban committed this robbery. Rosario pleaded guilty to the charge at the time he was arraigned before the justice of the peace, who held the preliminary investigation. Rosario again made another written confession to the same effect. Esteban Agadas denied at all times any knowledge or participation in the robbery and attempted to establish an alibi. Agadas testified that he was, on the morning of October 19, 1915, in the house of his parents in the center of the town of Oroquieta, some 8 or 9 kilometers distant from the place where the robbery was committed. The defense attempted to show that the confessions made by Rosario Sabacahan were extorted from him by threats and violence. The trial court decline to believe the testimony of the defendants and their witnesses upon these two points. The court sets forth its reasons for believing the testimony of the witnesses for the prosecution. After a careful examination of the record, we are thoroughly convinced that the defendants are guilty of the crime for which they were convicted. While it is true that the two little children, who identified both of the defendants at the time, are very young, yet they knew both of the defendants, as they (the defendants) were frequent visitors at the house and lived in the same community.

Rosario Sabacahan testified that he was 17 years of age; that he had never purchase a cedula; and that he was going to purchase a cedula the following January. Thereupon the court asked this defendant these questions: "You are a pretty big boy for seventeen." Answer: "I cannot tell exactly because I do not remember when I was born, but 17 years is my guess." Court: "If you are going to take advantage of that excuse, you had better get some positive evidence to that effect." Answer: "I do not remember, as I already stated on what date and in what year I was born." The court, in determining the question of the age of the defendant, Rosario Sabacahan, said:jgc:chanrobles.com.ph

"The defendant, Rosario Sabacahan, testified that he thought that he was about 17 years of age, but judging by his appearance he is a youth 18 or 19 years old. He has shown that he has no positive information on the subject and no effort was made by the defense to prove the fact that he is entitled to the mitigating circumstance of article 9, paragraph 2, of the Penal Code, which fact it is held to be incumbent upon the defense to establish by satisfactory evidence in order to enable the court to give an accused person the benefit of that mitigating circumstance."cralaw virtua1aw library

In United States v. Estavillo and Perez (19 Off. Gaz., 1984) Estavillo testified, when the case was tried in the court below, that he then was only 16 years of age. There was no other testimony in the record with reference to his age. But the trial judge said: "The accused Estavillo, notwithstanding his testimony giving his age as 16 years, is, as a matter of fact, not less than 20." This court, in passing upon the age of Estavillo, held:jgc:chanrobles.com.ph

"We presume that the trial court reached this conclusion with reference to the age of Estavillo from the latter’s personal appearance. There is no proof in the record, as we have said, which even tends to establish the assertion that this appellant understated his age. . . . It is true that the trial court had an opportunity to note the personal appearance of Estavillo for the purpose of determining his age, and by so doing reached the conclusion that he was at least 20, just two years over 18. This appellant testified that he was only 16, and this testimony stands uncontradicted. Taking to consideration the marked difference in the penalties to be imposed upon those who are 18 years of age and those who are under that age, we must, therefore, conclude (resolving all reasonable doubts in favor of the appellants) that the appellants’ ages were 16 and 14 respectively."cralaw virtua1aw library

While it is true that in the instant case Rosario testified that he was 17 years of age, yet the trial court reached the conclusion, judging from the personal appearance of Rosario, that "he is a youth 18 or 19 years old." Applying the rule enunciated in the case just cited, we must conclude that there exists a reasonable doubt, at least, with reference to the question whether Rosario was, in fact, 18 years of age at the time the robbery was committed. This doubt must be resolved in fact, 18 years of age at the time the robbery was committed. This doubt must be resolved in favor of the defendant, and he is, therefore, sentenced to six months of arresto mayor in lieu of six years ten months and one day of presidio mayor. In all other respects the judgment appealed from is affirmed, with costs against the appellants. So ordered.

Torres, Carson, and Araullo, J., concur.

Moreland, J., concurs in the result.