The supreme penalty of death was imposed upon accused-appellant Arnold Dizon y Buluran after the Regional Trial Court, Branch 32 of San Pablo City, Laguna, found him guilty beyond reasonable doubt of special complex crime of Robbery with Homicide aggravated by Rape, Dwelling and Nocturnity.1 [Rollo, pp. 30-103; penned by Judge Zorayda Herradura-Salcedo.] An Amended Information together with two other Informations were filed against accused-appellants, as follows:

The above cases were jointly tried. Upon arraignment, accused-appellant pleaded "not guilty" to all charges.

The following facts were established:

In the early morning of May 24, 1997 at around 2:00 o’clock, Jovita Gesmundo and her children Gesalyn, 18, Erwin, 15, and Ruel, 12 were asleep in their house in Pook Pateña, Bgy. San Gabriel, San Pablo City, when Jovita, Ruel and Erwin were roused from their sleep by the persistent barking of their dog. Jovita looked out the window but saw nothing. She then went to the comfort room to relieve herself. Erwin and Ruel followed her to the comfort room to also relieve themselves.

When Jovita returned to the living room, she was surprised to see their neighbor, accused-appellant Dizon hanging from the ceiling, which was partially open because of the ongoing construction at their house.

Jovita got hold of a piece of wood and dared accused-appellant to come down. When accused-appellant jumped down from the ceiling, Jovita started hitting him with a piece of wood. Accused-appellant brandished a knife and stabbed Jovita in different parts of her body. Erwin, seeing her wounded mother fall to the ground, attacked accused-appellant with his fists, but he, too, was stabbed several times causing him to fall.

Ruel then got a piece of wood and hit accused-appellant at the back of his head. Meanwhile, Gesalyn was awakened by the commotion. She went out of her room and, seeing what was happening, jumped on the back of accused-appellant. She too, was stabbed several times by accused-appellant. Ruel ran inside his mother’s room and hid under the bed.

Accused-appellant switched on the three lights of the house and started looking for things2 ["Kinalkal niya ang mga padala in Tatay", TSN, June 24, 1997, p. 24.] in his mother’s cabinet. From where he was hiding, Ruel saw accused-appellant stab Erwin some more. He also saw accused-appellant approach his sister who was lying on her back. After a while, Ruel heard his sister say, "Tama na! Tama na!", after which she fell silent. He looked and saw Gesalyn lying face down.

Accused-appellant entered the room where Ruel was hiding and coaxed him to come out of his hiding place. He pulled out Ruel’s legs and successively stabbed the exposed parts of his body including his face, thighs, neck and legs. In the hope of stopping the attack, Ruel held his breath and played possum. MisjÓ uris

Believing that Ruel was already dead, accused-appellant went back to the living room and mercilessly stabbed Jovita and Erwin who were already bathed in their own blood. Then, Ruel saw accused-appellant ransack their closets as if looking for something. Accused-appellant then went to the kitchen, opened the refrigerator, drank water, washed his hands and left.

After accused-appellant left their house, Ruel went out of his hiding place. At the living room, he saw his mother sprawled on her back and bathed in her own blood. Erwin was lying on his side also bathed in blood. His sister Gesalyn, who was wearing shorts before she went to bed and before she joined the affray at the living room, was lying face down with her panties already pulled down below her knees. Like Jovita and Erwin, Gesalyn was also lying in a pool of blood.

The wounded Ruel immediately went to the nearby house of his aunt Editha Gesmundo Martinez to ask for help. Editha informed her mother, Lourdes Gesmundo, what had happened. Lourdes Gesmundo brought Ruel to the San Pablo District Hospital on board a tricycle driven by Wilfredo Herradura. On their way to the hospital, Ruel informed his grandmother that it was accused-appellant "Apeng", their neighbor, who was responsible for the crimes.

After bringing Ruel to the hospital, Wilfredo Herradura went to the house of the victims. Accused-appellant, who was also there, approached him twice to ask him whether Ruel would survive from his wounds.

At the hospital, accused-appellant was also seen surreptitiously lurking in the corridors while Rule was being treated.

Policemen went to the hospital to talk to Ruel, who survived the massacre. They were informed by Ruel that it was "Apeng" who committed the crimes, whereupon they immediately proceeded to the house of "Apeng", i.e., accused-appellant Arnold Dizon y Buluran. "Apeng" was brought by the police officers to the hospital, where he was positively identified by Ruel as the perpetrator of the crimes. Ruel would later reiterate his positive identification of accused-appellant during his testimony in open court.

All in all, Jovita suffered 4 stab wounds; Erwin, 17 stab and puncture wounds; Gesalyn, 25 stabs and puncture wounds as well as fresh lacerations in her genital organ; and Ruel, 32 stab and puncture wounds. Of the four, only 12-year-old Ruel survived to tell this harrowing tale. At the time of his death, Erwin was 15 years old and was working as a construction worker with a daily wage of P100.00. Gesalyn was 18 years old.

Remedios Peñaflor, a neighbor of the Gesmundos, testified that at dawn of May 24, 1997, she was awakened by shouts for help. She looked out in her window but saw nothing. After a while, she heard another shout. This time, when she peeped through her window, she saw accused-appellant running towards the direction of his house.3 [TSN, June 17, 1997, pp. 3-6.]

Reigel Allan Zorra, a fingerprint expert, testified that upon examination, he found that the latent fingerprints lifted from the crime scene matched with the standard fingerprints of accused-appellant.4 [TSN, June 25, 1997, pp. 14-26.] Jjä lex

Dr. Romeo T. Salen testified that the blood specimens extracted from two pieces of wood found at the scene of the crimes, and those from accused-appellant’s long sleeve T-shirt and underwear which were sent to his office for testing, turned out to be positive for human blood belonging to blood group "O".5 [TSN, June 26, 1997, pp. 12-16.]

Reynaldo Gesmundo, husband of Jovita, testified that he was working in Korea when his family was massacred. He returned home to Pook Pateña, Bgy. San Gabriel, San Pablo City on May 28, 1997 immediately after being informed of the incident. He further testified that when he went through the things left in the house, he noticed that a ring and watch, worth US$200 and $50 respectively, which he sent to his daughter Gesalyn two years ago, were missing.6 [TSN, June 25, 1997, pp. 36-42.]

Accused-appellant, however, denied participation in the crime and interposed the defense of alibi. He alleged that from 3:00 o’clock up to 6:00 o’clock in the afternoon of May 23, 1997, he attended a drinking spree at the house of his friend, Eduardo de Luna, in Pook Pateña, Bgy. San Gabriel, San Pablo City together with Joselito Gesmundo and Rommel Gesmundo. They stopped drinking between 7:00 o’clock and 7:45 that evening, as they were in-charge of the Palibot sa Kubol, during which they gathered the children at the chapel and served them food. His group did not leave the chapel until around 9:00 o’clock in the evening, when they proceeded to the house of a certain Ronald Reyes. From 10:00 o’clock up to 12:00 midnight, they continued their drinking spree. He went home past midnight and slept. At around 2:00 o’clock in the morning of May 24, 1997, he was awakened by the shouts of Joselito "Tetet" Gesmundo who came over to ask his father for help. Despite the commotion, accused-appellant remained upstairs inside his room. It was only later that he saw Joselito "Tetet" Gesmundo hurriedly board a tricycle with a child in his arms. Thereafter, he went to the house of the Gesmundos and inquired from their neighbors what had transpired.

Reynante de Luna and Alejandro Cabrera corroborated the testimony of accused-appellant regarding their drinking spree from 6:00 o’clock in the evening up to 12:00 o’clock midnight of May 23, 1997. They denied having personal knowledge of the killing of Jovita, Erwin and Gesalyn.

Joselito Gesmundo, a brother-in-law of Jovita, testified that from 6:00 o’clock up to 7:30 o’clock in the evening of May 23, 1997, he was having a drinking spree together with accused-appellant. He went to bed at 7:30 in the evening. He was awakened at around 2:30 in the morning of May 24, 1997, right after the discovery of the incident.

Ruben Dizon, father of accused-appellant, testified that at around 5:00 o’clock in the morning of May 24, 1997, policemen went to their house and inquired as to the whereabouts of his son who was suspected of killing the Gesmundos. He accompanied his son to the hospital but he was not allowed to go inside the room where Ruel was being attended to by doctors. Ruel identified his son as the culprit. When accused-appellant went out of the room after about two minutes, he noticed contusions on his face, his t-shirt crumpled while his body looked "like a vegetable". Accused-appellant was immediately brought to the police headquarters. When he visited him there, he saw scratches on his face and traces of strangulation. His son could not remember who inflicted those inquiries on him. NewÓ miso

As stated above, accused-appellant Arnold Dizon was convicted of robbery with homicide aggravated by rape, dwelling and nocturnity, to wit:

Per automatic appeal, accused-appellant asserts that:

Indeed, the trial court erred in finding accused-appellant Dizon guilty of robbery. For a person to be guilty of robbery, it must be proved beyond a shadow of doubt that, with intent to gain, he took any personal property belonging to another by means of violence against or intimidation of any person, or by using force upon anything.

In the case at bar, the prosecution attempted to show that accused-appellant ransacked the things belonging got his victims. Reynaldo Gesmundo was presented to show that the ring and watch he sent to his daughter Gesalyn were missing. In his testimony, Ruel only testified that he saw accused-appellant opening their closets and throwing things on the floor. No mention whatsoever was made that accused-appellant asported something from the house of the Gesmundos. The incident happened at dawn of May 24, 1997, at which time Reynaldo Gesmundo was in Korea. He only knew of the incident later, after he arrived at their house in Pook Pateña, Brgy. San Gabriel, San Pablo City on May 28, 1997, four days after the killings. Presumably, he did not immediately sort through their things as he still had to attend to the burial of three members of his family as well as the hospitalization of Ruel. It would only be afterwards that he would go through their things. Significantly, he even testified that when he arrived home, their house was already cleaned up and in order. Based on the above circumstances, this Court cannot conclude that accused-appellant stole the ring and watch of Gesalyn.

On the other hand, this Court agrees with the trial court that rape was satisfactorily established by the prosecution. Ruel testified that when his sister Gesalyn slept that night, she was wearing a pair of shorts. From his vantage point under his mother’s bed, Ruel saw his sister lying face down. A while later, he saw accused-appellant approach his sister. He noted that his sister was lying on her back and uttering the words, "Tama na, Tama na!" Thereafter, he found his sister lying face down again. After accused-appellant had left, Ruel observed that his sister was sprawled on the floor face down and her undergarments pulled down to her knees.

Ruel was only 12 years of age when this gruesome event took place. As such, it is highly possible that he possessed no complete understanding as to what was happening to his sister when accused-appellant was having carnal knowledge of her. When the body of Gesalyn was subjected to laboratory and autopsy examination immediately after the discovery of the incident, it was found by the examining physician that Gesalyn suffered fresh lacerations, to wit:

Also, when accused-appellant was placed in the custody of the police officers, his briefs were found to be stained with blood for which he offered no satisfactory explanation.

In People v. Develles,9 [208 SCRA 101 (1992)] accused Develles was convicted of rape with homicide. Nobody witnessed the rape-slay but the prosecution established that accused was last seen with the victim near the place where the body of the victim was later found. The panties of the victim were removed and her genitalia showed signs of lacerations.

In People v. Magana,10 [259 SCRA 380 (1996)] the victim was last seen in the company of the accused at 7:00 in the morning. At 9:00 in the evening, the body of the victim was found sprawled on the ground some twenty meters away from the place they were earlier seen. The skirt of the victim was raised upward and her panties were removed. In this case, the court found the totality of circumstantial evidence sufficient to convict accused beyond reasonable doubt of rape with homicide.

In the case at bar, this Court likewise finds that the chain of circumstances satisfactorily lead to the conclusion that indeed, accused-appellant Dizon raped Gesalyn before killing her.

However, the trial court erred in appreciating the aggravating circumstance of nighttime. For nocturnity to be properly attend the commission of a crime, it must be shown that it facilitated the commission and that it was purposely sought by the offender. These two tests should be applied in the alternative. By and of itself, nighttime is not an aggravating circumstance. The fact that the offense was committed at night will not suffice to sustain nocturnidad.11 [People v. Ernesto Belo, G.R. No. 109148, December 4, 1998.] In the instant case, other than the fact that the crime was committed at nighttime, no other evidence was submitted to show that accused took advantage of it. Thus, nighttime as an aggravating circumstance should be discarded. Significantly, the aggravating circumstance of nocturnity was not even alleged in the information.

As to the aggravating circumstance of dwelling, this Court finds that it attended the commission of the crime. Dwelling is considered an aggravating circumstance primarily because of the sanctity that the law accords to the privacy of the human abode. It cannot be said that Jovita sufficiently provoked accused-appellant into entering their house. Naturally, Jovita was alarmed at the sight of accused-appellant lurking at the open ceiling of her house at such an unholy hour.

In Criminal Case No. 10400-SP (97), accused-appellant Dizon is charged with Robbery with Homicide. But as discussed above, the crime of robbery was never satisfactorily established by the prosecution beyond moral certainty. Consequently, accused-appellant should only be held liable for two counts of Homicide aggravated by dwelling. Correspondingly, accused-appellant is sentenced to suffer for each count of homicide the indeterminate penalty of 11 years and 4 months of prision mayor as minimum to 20 years of reclusion temporal as maximum. Sâ djad

In Criminal Case No. 10406-SP (97), accused-appellant Dizon is charged with Frustrated Homicide for inflicting 32 stab and puncture wounds on Ruel Gesmundo which could have resulted in his untimely demise if not for immediate medical intervention. Finding accused-appellant guilty beyond reasonable doubt of the crime charged, this Court imposes upon him the indeterminate penalty of 5 years and 8 months of prision correccional as minimum up to 12 years of prision mayor as maximum.

In Criminal Case No. 10407-SP (97), this Court finds accused-appellant guilty beyond reasonable doubt of the crime of Rape with Homicide. Correspondingly, he is sentenced to suffer the supreme penalty of death.

As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity. In People v. Verde,12 [G.R. No. 119077, February 10, 1999.] the non-presentation of documentary evidence to support the claim for damages for loss of earning capacity did not prevent this Court from awarding said damages. The testimony of the victim’s wife as to the earning capacity of her murdered husband, who was then 48 years old and was earning P200.00 a day as a tricycle driver, sufficed to establish the basis for such an award.

In this case, Erwin Gesmundo was only 15 years old at the time of his death and was earning a daily wage of P100.00 as a construction worker. As in People v. Verde,13 [supra.] this Court is inclined to grant the claim for damages for loss of earning capacity despite the absence of documentary evidence. To be able to claim damages for loss of earning capacity despite the non-availability of documentary evidence, there must be oral testimony that: (a) the victim was self-employed earning less than the minimum wage under current labor laws and judicial notice was taken of the fact that in the victim’s line of work, no documentary evidence is available; or (b) the victim was employed as a daily wage worker earning less than the minimum wage under current labor laws. It cannot be disputed that Erwin Gesmundo was earning far less than the minimum wage as a construction worker.

Thus, the heirs of Erwin Gesmundo are entitled to receive an award for lost earnings computed as follows:

By way of indemnity, this Court affirms that trial court’s award in Criminal Case No. 10400-SP (97) of P50,000.00 each for the deaths of Jovita Gesmundo and Erwin Gesmundo. On the other hand, the award for death indemnity in Criminal Case No. 10407-SP (97) for the rape and homicide of Gesalyn Gesmundo is modified and increased from P50,000.00 to P100,000.00, in accordance with this Court’s ruling in People v. Robles.14 [G.R. No. 124300, March 25, 1999.] Sppedscâ

The amount of 1.5 million awarded by the trial court as moral and exemplary damages must likewise be modified in line with prevailing jurisprudence. According to Article 2216 of the Civil Code, no proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or exemplary damages may be adjudicated. The assessment of such damages, except liquidated ones, is left to the discretion of the court, according to the circumstances of each case. In People v. Verde,15 [op. cit., note 12.] the Court awarded P50,000.00 as moral damages. In People v. Gutierrez, Jr.,16 [G.R. No. 116281, February 8, 1999.] this Court reduced from P100,000.00 to P50,000.00 the moral damages awarded by the trial court stressing that the purpose of the award is not to enrich the heirs of the victim but to compensate them for the injuries to their feelings. In the present case, this Court deems the award of P50,000.00 for each count of homicide in Criminal Case No. 10400-SP (97), P50,000.00 in Criminal Case No. 10406-SP (97) for frustrated homicide and another P50,000.00 in Criminal Case No. 10407-SP (97) for rape with homicide, or a total of P200,000.00 as proper.

Also, the award of exemplary damages rests on the discretion of the courts. Under Article 2231 of the Civil Code, exemplary damages may be awarded if the crime was committed with one or more aggravating circumstances.17 [People v. Caballes, 274 SCRA 83, 87 (1997)] In this case, this Court finds that the aggravating circumstance of dwelling attended the commission of the crimes. The award for exemplary damages is therefore justified. Thus, in Criminal Case No. 10400-SP (97), the amount of P20,000.00 as exemplary damages is awarded for each count of homicide; P20,000.00 as exemplary damages in Criminal Case No. 10406-SP (97) for frustrated homicide; and P20,000.00 as exemplary damages in Criminal Case No. 10407-SP (97) for rape with homicide or a total of P80,000.00 as exemplary damages, consonant with this Court’s decision in People v. Gutierrez, Jr.18 [op. cit., note 16.] and People v. Bahenting.19 [G.R. No. 127659, February 24, 1999.]

The trial court awarded P200,000.00 for funeral, burial and other miscellaneous expenses. Upon examination of the records, however, this Court found nothing by which to support the award. According to Article 2199 of the Civil Code, one is entitled to adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. For lack of legal basis, the award of P200,000.00 for funeral, burial and other miscellaneous expenses is deleted.

Four Justices of the Court have continued to maintain the unconstitutionality of Republic Act No. 7659 insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. Scä juris

WHEREFORE, in light of the foregoing, accused-appellant Arnold Dizon y Buluran is found GUILTY of two counts of homicide in Criminal Case No. 10400-SP (97) and is correspondingly sentenced to suffer the indeterminate penalty of 11 years and 4 months of prision mayor as minimum to 20 years of reclusion temporal as maximum for each count; in Criminal Case No. 10406-SP (97), accused-appellant is found guilty of frustrated homicide and is sentenced to suffer the indeterminate penalty of 5 years and 8 months of prision correccional as minimum up to 12 years of prision mayor as maximum; in Criminal Case No. 10407-SP (97), accused-appellant is found guilty of rape with homicide and sentenced to suffer the supreme penalty of DEATH.

In addition, accused-appellant Arnold Dizon y Buluran is ordered to PAY the following sums:

The award of P200,000.00 for funeral, burial and other miscellaneous expenses is DELETED for lack of factual basis.

Pursuant to Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forwarded to the Office of the President for possible exercise of the pardoning power.