40 SUPREME COURT REPORTS ANNOTATED

People vs. Opero

No. L-48796. June 11, 1981. *

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIEGO OPERO Y

COSIPAG, et al., accused; DIEGO OPERO Y COSIPAG, defendant-appellant.
Criminal Law; Robbery with homicide is committed regardless of which of the two
precedes the other where there is a close link between the killing and the robbery.—
Appellant‟s theory finds no basis in the law or in jurisprudence. It has been repeatedly held
that when direct and intimate connection exists between the robbery and the killing,
regardless of which of the two precedes the other, or whether they are committed at the
same time, the crime committed is the special complex crime of robbery with homicide.
Same; Where death supervenes by reason or on the occasion of a robbery it is immaterial
that death was caused by mere accident, i.e., the victim who was hogtied swallowed the
pandesal stuffed in her
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VOL. 105, JUNE 11, 1981 4
1
People vs. Opero
mouth.—It may not avail appellant to contend that the death was by mere accident for
even if it were so, which is not eyen beyond doubt for the sliding of the pandesal into the
neckline to produce asphyxiation could reasonably have been anticipated, it is a settled
doctrine that when death supervenes by reason or on the occasion of the robbery, it is
immaterial that the occurrence of death was by mere accident. What is important and
decisive is that death results by reason or on the occasion of the robbery. These Spanish
doctrines were cited by this Court in People vs. Mangulabnan, et al., 99 Phil. 992.
Same; The death of robbery victim by accident can, however, be considered as a
mitigating circumstance.—If the circumstances would indicate no intention to kill, as in the
instant case where evidently, the intention is to prevent the deceased from making an
outcry, and so a “pandesal” was stuffed into her mouth, the mitigating circumstance of not
having intended to commit so grave may be appreciated. The stuffing of the “pandesal” in
the mouth would not have produced asphyxiation had it not slid into the neckline, “caused
by the victim‟s own movements,” according to Dr. Singian.
Same; Art. 49 of the Revised Penal Code on “Penalty to be imposed . . . where the crime
committed is different from that intended” applies only to cases where the crime befalls on a
person different from the intended victim.—In the instant case, the intended victim, not any
other person, was the one killed, as a result of an intention to rob, as in fact appellant and
his co-accused, did rob the deceased. As stated earlier, what may be appreciated in
appellant‟s favor is only the mitigating circumstance of not having intended to commit so
grave a wrong as that committed, under paragraph 3 of Article 13 of the Revised Penal
Code, an entirely different situation from that contemplated under paragraph 1, Article 49
of the same Code, where as already explained, the different felony from that intended,
befalls someone different from the intended victim, as when the person intended to be killed
is a stranger to the offender, but the person actually killed is the offender‟s father, thereby
making the intended felony which is homicide different from the crime actually committed
which is parricide.
AUTOMATIC REVIEW from the judgment of the Circuit Criminal Court of Manila.
The facts are stated in the opinion of the Court.
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42 SUPREME COURT REPORTS ANNOTATED
People vs. Opero

PER CURIAM:

Automatic review of the death sentence imposed on Diego Opero for robbery with
homicide with which he was charged in the Circuit Criminal Court of Manila,
together with Reynaldo Lacsinto and Milagros Villegas, who, however, did not
appeal their conviction with much lesser penalty, the last-named, as a mere
accessory after the fact. Another accused, Asteria Avila was acquitted.
In his brief, appellant raised only the question of the propriety of the imposition
of the death penalty on him, with the following assignments of error:

1. “1.THE LOWER COURT ERRED IN NOT CONSIDERING ARTICLE 4,

PARAGRAPH 1 OF THE REVISED PENAL CODE IN DETERMINING THE
CRIMINAL LIABILITY OF THE ACCUSED.
2. „2.THE TRIAL COURT ERRED IN NOT CONSIDERING ARTICLE 49,
PARAGRAPH 1 OF THE REVISED PENAL CODE IN IMPOSING THE PENALTY
ON THE ACCUSED”

For the facts of the case, the narration of which in both the People‟s brief and that of
appellant does not vary as to the essential ones, We could very well quote from the
Appellee‟s brief, being the more comprehensive and complete, the following:
“At about 4:00 o‟clock in the morning of April 27, 1978, Salvador Oliver, a GSIS security
guard assigned to the House International Hotel at Ongpin Street, Binondo, Manila, was
informed by Demetrio Barring, another security guard, that the latter picked up a little girl
about three years old loitering at the second floor of the building. Rafael Ordoña, a janitor
of the House International Hotel, told Oliver that the little girl is residing at Room 314 of
the hotel. Oliver called up Room 314 by telephone and when nobody answered, he and
Barcing brought the little girl to said Room 314 (pp. 6, 7, & 8, t.s.n., June 15, 1978). Upon
reaching Room 314, Oliver knocked at the door, and when nobody answered, he pushed the
door open but he smelled foul odor emanating from the room. Oliver covered his nose with a
handkerchief and together with Barcing and the little girl, they entered the room where
they saw prostrate on a bed a dead per-
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VOL. 105, JUNE 11, 1981 43
People vs. Opero
son with the face down and both feet tied. Oliver called up the homicide division of the
Manila Police. Patrolman Fajardo who was assigned to investigate the report of Oliver,
together with some funeral parlor men arrived at the scene, and they saw a small baby
crying and trying to get out of a crib near the bed of the dead person. (pp. 9, 10 & 11, t.s.n.,
Id).
“The dead body at Room 314 of the House International Hotel was that of Liew Soon
Ping, Room 314 had been ransacked and personal belongings thrown all around. The hands
and feet of the dead person were tied and the body was bloated. A towel was tied around the
mouth of the victim. Photographs of the dead person and the condition of the room were
taken under Patrolman Fajardo‟s supervision (pp. 19, 20, 21, 22, 23 & 24, t.s.n., June 15,
1978).
“Patrolman Fajardo came to know that the occupants of Room 314 were Dr. Hong, his
wife Liew Soon Ping who is the victim in this case, their three children and two maids,
namely, Mila and Ester (pp. 26 & 27, t.s.n., Id). After conducting a preliminary inquiry
around the vicinity of the incident, Patrolman Fajardo made an advance report (Exh. “O”;
pp. 32, 33 & 34, rec.) naming therein three suspects, namely, Diego Opero, Milagros
Villegas, Asteria Avila and a fourth unidentified suspect. The names of these suspects were
furnished by neighbors of the victim to Patrolman Fajardo (pp. 28 & 29, t.s.n., Id.).
“After establishing the identity of the suspects, a follow up team of Manila Policemen
composed of Patrolmen Luis Lim and Servande Malabute was formed to further investigate
the case. A separate police team composed of Sgt. Yanguiling and several policemen were
sent to Leyte and Samar to track down the suspects (pp. 30 & 31, t.s.n., Id.).
“Dr. Hong, the victim‟s husband who was in Cebu when the incident in his residence was
committed was contacted by the police and informed about the death of his wife. Dr. Hong
came back immediately from Cebu and reported to the police. He (Dr. Hong) made an
inventory of the personal effects found missing in his residence, valued at P30,221.00 (pp.
31, 32 & 33, t. s. n., Id; Exhs. „R‟ and „R-1‟).
“While the case was under investigation, the homicide division of the Manila Police,
received a radio message (Exh. „T-1‟ p. 40, rec.) relayed thru Col. Narciso Cabrera, Chief of
the Detective Bureau of the Manila Police, that Reynaldo Lacsinto one of the suspects could
be found in a school house in Moriones, Tondo, Manila. Another radio message (Exh. „T‟ p.
41, rec.) was received by the police that two other suspects in the case, namely, Diego Opero
and Asteria Avila were picked up by the Samar P.C. and some of the missing articles,
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44 SUPREME COURT REPORTS ANNOTATED
People vs. Opero
namely, one (1) camera, flashlight, bill fold, and other personal belongings were recovered
from them (pp. 35 & 36, t.s.n., Id).
“Reynaldo Lacsinto was taken to police headquarters and after appraising him of his
rights under the constitution, his statement was taken in the presence of his father (pp. 37,
38 & 39, t.s.n., Id; Exhs. „U‟ & „U-1‟ pp. 42, 43, 44, 45, 46, 47 & 48, rec). In his said
statement to the police, Lacsinto admitted his participation and narrated in detail the
commission of the robbery in Room 314 of the House International Hotel.
“The Samar P.C. turned over three other suspects, namely Diego Opero, Milagros
Villegas and Asteria Avila to Sgt. Yanguiling who brought said suspects to Manila and
turned them over to the homicide division of the Manila Police, together with some of the
stolen articles (pp. 31 & 32, t.s.n., June 16, 1978). Statements of these three suspects
(Exhibits „B‟, „C‟, and „D‟, respectively) taken by the Samar P.C. were also turned over by
Sgt. Yanguiling to the homicide division (pp. 34 & 35, t. s. n., Id). Opero was investigated
further at the Manila Police Headquarters and he gave a supplemental statement (Exh.
„FF‟, pp. 70-74, rec.; p. 36, t. s. n., Id) admitting that he had robbed the victim and identified
some of the missing articles recovered from his possession (pp. 41 & 42, t. s. n., Id). He
described in detail how he planned the robbery and named the rest of his co-accused as
willing participants. He also narrated in his said supplemental statement that he and his
co-accused Lacsinto subdued the victim by assaulting her, tying up her hands and feet
stabbing her and stuffing her mouth with a piece of pandesal (pp. 70-74, rec).
 “In her statement to the Manila police (Exh. „GG‟, pp. 74 & 75, rec.) Milagros Villegas
identified the stolen clothes which were given to her by Opero. (pp. 44, 45 & 46, t. s. n., Id)
“The third suspect, Asteria Avila told the Manila police that she was not a party to the
crime and upon advice of her lawyer she did not give any further statement, (p. 47, t. s. n.,
Id)
“A reenactment of the crime at the crime scene was held under the direction of Opero
portraying—his role, with Lacsinto depicting his part, and pictures of the reenactment were
taken (pp. 51, 52, 53, 54, 55, 56, 57, 58, 59 & 60, t. s. n., Id; pp. 79-99, incl, rec).
“The body of the victim Liew Soon Ping was autopsied by Dr. Angelo Singian, then Chief
of the Medico Legal Division of the Western Police District. The body was identified by the
victim‟s husband. Dr. Singian examined the body of the victim and issued a death
certificate (Exh. „AA‟), and the necropsy report (Exh. „BB‟), with the following findings: 1) a
pale yellowish band across the eyes of
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VOL. 105, JUNE 11, 1981 45
People vs. Opero
the victim caused by the application of a towel, or broad piece of cloth across the eyes; 2) a
pale yellowish band across the mouth caused by a similar material as the one applied
across the victim‟s eyes, which was tied across the mouth; 3) contusion and hematoma on
the upper and lower lips caused by a blunt instrument; 4) abrasions on the right side of the
chin; 5) broad linear mark of clothing material on the neck; 6) cord or ligature marks on the
left and right arm, indicating that both arms were tied; 7) abdomen distended with gas, due
to decomposition; 8) epiglotis, hematoma and contusion on the right side of the tongue; 9)
contusions and hematoma on the right cheek; 10) superficial stab wound measuring 0.8 cm.
on the right side of the chin caused by a sharp bladed instrument; 11) superficial stab
wound on the mid-axilliary line caused by a sharp bladed instrument; 12) stab wound on
the left forearm; 13) cord markings on both feet.
“Internal findings reveal an impacted bolus of white bread measuring 3 x 2.5 cm in the
oropharynx. The tongue has contusion on the right lateral side and an abrasion across the
middle portion. The larynx and trachea are markedly congested. The cause of death was
due to „asphyxiation by suffocation‟ with an impacted bolus into the oropharynx and
compression of the neck with a broad clothing around the neck” (pp. 6-18, incl, t. s. n., June
16, 1978; Exh. „BB‟, pp. 62 & 63, rec).
In his first assignment of error, appellant advances the theory that he never
intended to kill the deceased, his intention being merely to rob her, for if indeed he
had the intention to kill her, he could have easily done so with the knife, and
therefore, his liability should be only for robbery.
Appellant‟s theory finds no basis in the law or in jurisprudence. It was been
repeatedly held that when direct and intimate connection exists between the
robbery and the killing, regardless of which of the two precedes the other, or
whether they are committed at the same time, the crime committed is the special
complex crime of robbery with homicide. If the circumstances would indicate no
1

intention to kill, as in the instant case were evidently, the intention is to prevent
the deceased from making an outcry, and so a “pandesal” was stuffed into her
mouth, the mitigating circumstance of not

______________
 1People vs. Hernandez, 46 Phil. 48.
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46 SUPREME COURT REPORTS ANNOTATED
People vs. Opero
having intended to commit so grave a wrong may be appreciated. The stuffing of 2

the “pandesal” in the mouth would not have produced asphyxiation had it not slid
into the neckline, “caused by the victim‟s own movements” according to Dr. Singian.
The movements of the victim that caused the “pandesal” to slide into the neckline
were, however, attributable to what appellant and his co-accused did to the victim,
for if they did not hogtie her, she could have easily removed the “pandesal” from her
mouth and avoided death by asphyxiation.
It may not avail appellant to contend that the death was by mere accident for
even if it were so, which is not even beyond doubt for the sliding of the pandesal into
the neckline to produce asphyxiation could reasonably have been anticipated, it is a
settled doctrine that when death supervenes by reason or on the occasion of the
robbery, it is immaterial that the occurrence of death was by mere accident. What 3

is important and decisive is that death results by reason or on the occasion of the
robbery. These Spanish doctrines were cited by this Court in People vs.
4

Mangulabnan, et al., 99 Phil. 992.

Appellant would also have Article 49, paragraph 1 of the Revised Penal Code
apply to him, and faults the court a quo for having failed to do so. The provision
cited reads:
“Art. 49. Penalty to be imposed upon the principals when the crime committed is different
from that intended.—In cases in which the felony committed is different from that which
the offender intended to commit, the following rules shall be observed:
“1. If the penalty prescribed for the felony committed be higher than that corresponding
to the offense which the accused intended to commit, the penalty corresponding to the latter
shall be imposed in its maximum period.
xx xx xx x x.”

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2 People vs. Sia Bonkia, 60 Phil. 1; U.S. vs. Samea, 5 Phil. 227.
3 People vs. Mangulabnan, 99 Phil. 992.
4 Id., citing Decisions of the Supreme Court of Spain, November 26, 1892 and January 12, 1899.

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VOL. 105, JUNE 11, 1981 47
People vs. Opero
The foregoing provision has been applied only to cases when the crime committed
befalls a different person from the one intended to be the victim. This was the
explicit ruling in the case of People vs. Albuquerque, 59 Phil. 150-153, citing
decisions of the Supreme Court of Spain. 5

In the instant case, the intended victim, not any other person, was the one killed,
as a result of an intention to rob, as in fact appellant and his co-accused, did rob the
deceased. As stated earlier, what may be appreciated in appellant‟s favor is only the
mitigating circumstance of not having intended to commit so grave a wrong as that
committed, under paragraph 3 of Article 13 of the Revised Penal Code, an entirely
different situation from that contemplated under paragraph 1, Article 49 of the
same Code, where as already explained, the different felony from that intended,
befalls someone different from the intended victim, as when the person intended to
be killed is a stranger to the offender, but the person actually killed is the offender‟s
father, thereby making the intended felony which is homicide different from the
crime actually committed which is parricide.
Notwithstanding the presence of the mitigating circumstance of not having
intended to commit so grave a wrong as that comitted, there still remains one
aggravating circumstance to consider, after either one of the two aggravating
circumstances present, that of superior strength and dwelling, is offset by the
mitigating circumstance aforesaid. The higher of the imposable penalty for the
crime committed, which is reclusion perpetua to death, should therefore be the
proper penalty to be imposed on appellant. This is the penalty of death as imposed
by the lower court.
WHEREFORE, the judgment appealed from being in accordance with law and
the evidence, except as to the non-appreciation of the mitigating circumstance of
having no intention to commit so grave a wrong as that committed, which
nevertheless does not call for the modification of the penalty of

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5Decision of October 20, 1897 and June 28, 1899.

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48 SUPREME COURT REPORTS ANNOTATED
People vs. Opero
death as imposed by the lower court, is hereby affirmed. Cost de oficio.
SO ORDERED.
Teehankee, Barredo, Makasiar, Aquino, Concepcion
Jr., Fernandez, Guerrero, Abad Santos and De Castro, JJ., concur.
Fernando, C.J., did not take part.
Melencio-Herrera, J., in the result.
Judgment affirmed.
Notes.—Where robbery with homicide was committed by a band, the offense is
still robbery with homicide aggravated by band and not robbery in band with
homicide. (People vs. Navasca, 76 SCRA 70).
Although an accused may not have foreseen the killing of the victim and did not
take part in its execution but not only did he know of the plan of robbery but also
participated in its commission by previous and simultaneous acts which lent to
accomplishment of the criminal intent, he is guilty of the crime as a principal.
(People vs. Beberino, 79 SCRA 694).
As there was not direct evidence of the planning or preparation to kill the victim,
the court‟s conclusion may not be endorsed, since it is not enough that
premeditation be suspected or surmised, but the criminal intent must be evidenced
by notorious outward acts evincing the determination to commit the crime. (People
vs. Ordiales, 42 SCRA 238).
The rule giving the accused two days to prepare for trial does not apply to a case
where the defendant enters a plea of guilty which dispenses with the necessity of
trial. (Alberca vs. Superintendent of the Correctional Institution for Women, 10
SCRA 113).
For robbery with homicide to exist, it is enough that a homicide would result by
reason or on occasion of the robbery. (People vs. Saliling, 69 SCRA 427).
The fact that a criminal‟s intention is tempered with a desire also to revenge
grievances against the murdered person does
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VOL. 105, JUNE 11, 1981 49
The Overseas Bank of Manila vs. Court of Appeals
not prevent his punishment for robbery with homicide. (People vs. Saliling, 69
SCRA 427).
Death penalty is imposed in robbery with homicide where aggravating
circumstance is not offset by any mitigating circumstances. (People vs. Navasca, 76
SCRA 70).
Manner and circumstances by which appellant came to be arrested as added
proof of his involvement in the robbery. (People vs. Paredes, 98 SCRA 369).
When homicide takes place as a consequence of or on occasion of a robbery, all
those who took part in the robbery are guilty or principals of the crime of robbery
with homicide, unless proof is presented that the accused tried to prevent the
killing. (People vs. Garillo, 84 SCRA 537).