Republic of the Philippines DEPARTMENT OF JUSTICE OFFICE OF THE CITY PROSECUTOR City of Iloilo P/Sr. Insp. MARCO A.

JARODA, ________________ Complainant, -versusTITO CRUZ and VIC CRUZ, Respondent. x--------------------------------------------------x RESOLUTION The Respondents, TITO CRUZ and VIC CRUZ were charged of the crime of ROBBERY WITH HOMICIDE in a complaint filed by Police Senior Inspector MARCO A. JARODA. In support of his complaint, the herein complainant attached the following documents: 1. Joint Affidavits of Bea S. Robles and Francesca S. Campos; 2. Affidavit of Geraldine B. Demetri; 3. Affidavit of Paris J. Michaels; 4. Affidavit of Police Officer Romeo V. Benamarca; 5. Death Certificate of Joey Cruz; 6. Autopsy Report of Joey Cruz; 7. Anatomical Sketch of Joey Cruz; 8. Police Record of Events and others. Statement of Facts Based on the investigation conducted by the Police Investigator, PO2 JANVIC CHAN, the facts of the case are stated hereunder: That on or about the 24th day of May 2008, at around 12:45 in the afternoon in Tabuc Suba, Jaro, Iloilo City, Philippines, the respondents together with the deceased JOEY CRUZ conspiring and confederating together and mutually helping one another, while armed with a handgun staged a “hold-up” at Iloilo Supermart, Tabuc Suba, Jaro Branch owned and operated by JHONNY B. QUE. That while inside, the respondents took or steal away an amount of forty eight thousand (Php 48, 000) pesos and food stuffs from the grocery. Thereafter, they proceeded to Pototan, Iloilo to divide the loot among themselves. While they were dividing the loot, an argument ensued between TITO CRUZ and JOEY CRUZ which prompted TITO CRUZ to draw his gun and shot JOEY CRUZ in the forehead, killing the latter instantly. In the joint affidavit of witnesses Bea S. Robles and Francesca R. Campos, they stated that on May 24, 2008 at about 12:45 in the afternoon, they were inside Iloilo Supermart when the robbery happened. While standing in Counter 1 to pay for their groceries, they saw a man pointing a I.S. NO:

FOR: ROBBERY WITH HOMICIDE (Art. 294, par. (1), Revised Penal Code)

gun at the cashier and declared a “Hold up!” while his two companions emptied the cash registers and took some grocery stuffs. In the affidavit of Geraldine B. Demetri, one of the cashiers on duty during the time of the robbery, stated that while she was at Counter 1, a person pointed his gun to her and immediately declared a “hold up!”and two other customers who were falling in line to pay were ordered to drop on their knees. One of the robbers emptied the cash registers while the other took some grocery stuffs. In the affidavit of Paris J. Michaels, one of the customers during the time of the robbery, stated that while she was standing near the cosmetics section, she heard a person declaring a “hold up!”. The other robber forced her to join the other customers to kneel down near counter 1. That after emptying the cash registers and taking some groceries, one of the robbers shouted “lakat na kita!”. They immediately drove away using a red owner type jeep. And in the affidavit of Police Senior Inspector Romeo V. Benamarca, stated that he was patrolling at Brgy. Mabalud, Pototan when he heard a gunshot from an abandoned rice mill. When he proceeded to the area, he saw TITO CRUZ holding a .45 caliber pistol and the lifeless body of JOEY CRUZ lying on the ground with his own blood, while VIC CRUZ was just standing a meter away from TITO CRUZ. He recovered an amount of forty eight thousand (Php 48, 000) pesos inside a clear plastic bag with printed logo of Iloilo Supermart. That he immediately arrested TITO and VIC CRUZ and brought them to the Pototan Police Station, while JOEY CRUZ was brought to the nearest hospital. That upon further search in the crime scene, an empty bullet shell and three (3) live ammunitions were likewise recovered and turned over to the exhibit custodian SPO2 Roger M. Carman. As for the respondents, in their counter-affidavits, they vehemently denied the accusations against them putting up self-defense and alibi as their defenses. TITO CRUZ alleged that on May 24, 2008, he and his cousins VIC and JOEY were on a drinking spree, which started from eight o’clock in the morning and ended at around 2 o’clock in the afternoon. That he was awakened by the shouting of his “live-in” partner TITA and the commotion outside of his house. He then took his gun and went out. There, he saw JOEY holding a bag with TITO’s money. Upon seeing him, while carrying a bolo, JOEY ran towards TITO. So the latter shot the former in order to defend himself. VIC CRUZ likewise denied the allegations against him, stating that after their drinking spree on May 24, 2008, he went home. And at about four o’clock in the afternoon of the said day, he was awakened by his mother telling him that there were police officers looking for him. He then voluntarily went to the police station to answer the charges against him. Analyses/ Findings and Recommendations Article 294 of the Revised Penal Code specifically states: “Art. 294. Robbery with violence against or intimidation of persons- Penalties —Any person guilty of robbery with the use of violence or intimidation of any person shall suffer:

1. The penalty of Reclusion Perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, x x x.” (Italics Supplied) Robbery with homicide arises only when there is a direct relation, an intimate connection, between the robbery and the killing, even if the killing is prior to, concurrent with, or subsequent to the robbery. (People vs.Salazar, 277 SCRA 67 [1997]). The facts of the case before us squarely fall under the crime of Robbery with Homicide. The time element between the consummation of robbery in Iloilo City and the killing of JOEY in Pototan, Iloilo is of no moment since the killing may be prior to, concurrent with, or subsequent to the robbery. The killing of JOEY was intimately connected or necessarily related with the robbery since the subject of the argument which ensued between JOEY and TITO was the division of the loot, which were essentially the effects of the crime of robbery notwithstanding the fact that the robbery took place in Iloilo City while the killing was done in Pototan, Iloilo. It is enough therefore that the homicide resulted by reason or on the occasion of the robbery in order to constitute the crime of Robbery with Homicide. On the part of the defense of the respondent it is a settled rule that alibi is the weakest of all defenses because it is facile to fabricate and difficult to disprove, and is generally rejected. For alibi to prosper, it is not enough to prove that the defendant was somewhere else when the crime was committed, that he must likewise demonstrate that it was impossible for him to have been at the scene of the crime at that time. (People vs. Malejana, 479 SCRA 610). Courts generally view the defenses of denial and alibi with disfavor on account of the facility with which an accused can concoct them to suit his defense. Alibi like denial, is also inherently weak and fabricated----for these defenses to justify an acquittal, the following must be established: the presence of the accused in another place at the time of the commission of the offense and the physical impossibility for him to be at the scene of the crime. (People vs. Mangit-ngit, 502 SCRA 560). As regards the alibi of the respondents, that they were not at the place when the crime was committed, cannot be appreciated since the respondents failed to convince the Investigating Prosecutor that they satisfy all the elements to sustain the defense of alibi. Pototan is more or less thirty (30) kilometers away from Iloilo City, as such it can be reached by about thirty to forty five (30-45) minutes of travel using any motorized vehicle. Hence, the respondents failed to demonstrate that it was physically impossible for them to have been at the scene of the crime when the same was committed. Respondent TITO CRUZ, as for his defense, admitted killing JOEY CRUZ on the ground of self-defense. However, it is a well settled rule that once an accused has admitted that he inflicted the fatal injuries on the deceased, it is incumbent upon him in order to avoid criminal liability, to prove the justifying circumstance claimed by him with clear, satisfactory and convincing evidence. (Cabuslay vs People, 471 SCRA 241) In order for the justifying circumstance of self-defense to be appreciated, the following requisites must concur, to wit: (1) Unlawful

aggression; (2) Reasonable necessity of the means employed to prevent or repel the attack; and (3) lack of sufficient provocation on the part of the person defending himself. Aggression presupposes that the person attacked must face a real threat to his life and the peril sought to be avoided is imminent and actual, not imaginary. Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of the person---not a mere threatening or intimidating attitude---but most importantly, at the time the defensive action was taken against the aggressor; there is aggression in contemplation of the law only when the one attacked faces real and immediate threat to one’s life. (People vs Dagani, 499 SCRA 64) TITO CRUZ failed to persuade the Investigating Prosecutor that the killing was indeed done in self-defense. The element of unlawful aggression was lacking since based on the respondent’s affidavit, the deceased JOEY CRUZ was holding a bolo and running towards him when he decided to shot the victim. Based on the facts alleged, it can be gleaned that there was yet no unlawful aggression as there was no actual or imminent danger on TITO’s life and limb. The danger feared by TITO most likely was merely imaginary. Hence, the theory of self-defense by TITO must fail. WHEREFORE, IN VIEW OF THE FOREGOING, it is most respectfully recommended that an information for the crime of Robbery with Homicide be filed against the respondents TITO and VIC CRUZ. Iloilo City, June 4, 2008. PLARIDEL H. MAKABAYAN Assistant City Prosecutor APPROVED BY: GREGORIO T. TAROSA Chief City Prosecutor Copy Furnished: (1) Tito Cruz- Brgy. Mabalud, Pototan, Iloilo (2) Vic Cruz- Brgy. Mabalud, Pototan, Iloilo

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