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Case # 37

G.R. No. L-26193 January 27, 1981 PEOPLE OF THE PHILIPPINES vs. RODULFO SABIO, alias "PAPU" Decision on : Automatic review of the Death Penalty imposed for Robbery with Homicide to Accused Appelllant

FACTS: On October 5, 1965, at about 5:00 o'clock in the morning, in Barrio Looc, Argao, Cebu, Catalino Espina, 80-years old, owner of a small sari-sari store located in his house was found on the second floor of his dwelling wounded on the forehead, from which injury he died three days later. PROSECUTION BASIS: 1. Testimonies of witnesses: a) JESUSA BIRONDO testified to have heard the victim shouting for help around 5am of October 5, 1965 , and when she looked out the window, saw and recognized accused-appellant coming out the house of the victim and retreated going to the seashore. b) CAMILLO SEMILLA, nephew of the victim, living with him also testified that he saw Papu ran past him about 4meters away while he was at the sea shore around 5am , Oct. 5, 1965. He left the house at four and was waiting for help in to drag his boat for he would go fishing that day. He also testified that the cash sales of previous day was gone and canister-container laid empty on the floor. As pre instruction by the deceased he went to the police and was assisted by Patrolman Fuentes and Burgos who conducted questioning on his uncle and made him signed in a torn calendar where notes was made and subsequently thumb marked by his uncle. c) PATROLMAN PAULINO FUENTES testified that he, together with Pedro Burgos responded to a call that somebody was hacked near the seashore and found the old man in the second floor of a house lying with wound on his head. They questioned the victim to what happened and the latter related positively identifying the perpetrator. With no notebook and ink in hand, they subscribed the statement of the victim in a torn page of a calendar in the house and have it thumb marked by the victim with the two of them and Camillo as witnesses. d) DR. MELITA ROMATIGUE testified on the medical findings. 2. The Anti-Mortem Declaration of the Victim 3. Track Record of the Accused-Appelllant who was convicted by final judgment twice in the crime of theft. ASSAILED DEFENSES: 1. Testimony of Rodulfo Sabio claiming an alibi that at the time of the incident, he was at their house, sleeping and there was no way he could be identified by the witnesses of the prosecution. 2. Corroborative testimony of Jacinto Mendez who claimed to have slept in the house of the accused in the night of October4, 1965 and woke up at around 5am the next day and positively remembered that all siblings were around the house, sleeping still. ISSUES: 1. WHETHER OR NOT THE ACCUSED SHOULD ONLY BE HELD GUILTY OF HOMICIDE ALONE? 2. WHETHER OR NOT THE STATEMENT OF THE VICTIM CAN NOT BE REGARDED AS ANTIMORTEM STATEMENT? 3. WHETHER OR NOT THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME CHARGE BASED SOLELY ON THE TESTIMONIES GIVEN BY ITS WITNESSES? SC RULINGS: 1. SC merited the contention of the defense that the accused appellant guilt was merely established by the prosecution in the crime of Homicide but not of Robbery with Homicide. Sole evidence presented was merely circumstantial based on the testimony of Camillo and no positive witness was produced that he carried away belongings of the offended party. A crime of Robbery with Homicide should clearly show that the intent to rob and evidence to that effect must be present. Conviction should be proven beyond reasonable doubt and not by mere suspicion or presumption. 2. The statement of the victim is an Anti-mortem declaration. When he asked that a police be fetched, he realized then that his condition is of serious nature and would expire anytime. Failure to disclose the statement to the accused when he was apprehended doesnt militate the fact of its execution. It is an evidence the police has no power to disclose. 3. The alibi put up by the defense crumbled in the testimonies given by credible witnesses. Jesusa Birondo is a competent witness, for someone who was so familiar with the person to have known him from birth, positive identification can be relied on. The testimony of Camillo Semilla also supported the testimony of Jesusa plus the dying declaration of the victim pinpointing his perpetrator. To sum up, Rodulfo Sabio was found guilty of the crime of HOMICIDE with aggravating circumstance of great disregard of respect on account of the age of the victim, with no mitigating circumstance and was sentenced to suffer 12 years imprisonment, prision mayor as minimum to 20 years to prision temporal as maximum, indemnify the heirs of the deceased in the amount of P12,000.00 and pay costs.