This case involves the dastardly killing of an old couple in Forbes Park and their housemate and serious injury to a daughter in the course of a robbery of a wristwatch worth P100.00 and a transistor radio worth P60.00.  It reached this Court on mandatory review of the judgment promulgated on 10 August 1977 by the Circuit Criminal Court of the Seventh Judicial District, Pasig,^[1] convicting the accused of the crime of Robbery with Triple Homicide and Frustrated Homicide and imposing the penalties of three death sentences for each of the accused.

In a Resolution dated 27 August 1987 this Court en banc directed that all pending death penalty cases be remanded for adjudication to the respective division of the Court to which the member to whom they have been preliminarily assigned for reporting purposes pertains, considering that under Section 19(1), Article III of the Constitution, any death penalty already imposed shall be reduced to reclusion perpetua.^[2] On 21 April 1988 the Clerk of Court notified the accused in this case and gave them 30 days within which to file a written statement personally signed by them with the assistance of counsel or in the presence of prison authorities on whether or not they wished to continue with the case as an appealed case, with the caveat that failure to do so will cause the dismissal of the case which shall thereafter be remanded to the trial court for execution of judgment.^[3]

Accused Alfredo Endencio and Reynaldo Ruga complied and in a letter received by the Court on 18 May 1988 manifested that they were willing to accept the sentence of reclusion perpetua.^[4] In a Resolution dated 1 June 1988 the First Division of this Court noted the manifestation of the two accused and remanded the case to the lower court for execution of judgment as to them, while the appeal of Ernesto Ga continued.^[5]

Appellant Ga does not dispute the findings of fact of the trial court.  In his appeal, appellant questions only the application of certain aggravating circumstances and the exclusion of some mitigating circumstances by the court a quo, which found the facts attendant to the commission of the crime charged as follows:

"x x x That at about 8:00 A.M. of July 29, 1977, the above-named accused met at the residence of Reynaldo Ruga at Project 7, Quezon City, and planned to buy a motorcycle to rob the residence of the Gonzaga family.  That they borrowed a travelling bag from a friend of Ruga, and they proceeded to Cubao, where Ernesto Ga withdrew from the Savings Bank of Manila, Cubao Branch, the sum of P55.00 out of his savings deposit, and they bought a kitchen knife and a dagger (Exhs. Y and Z).  Then, the three went to the Ocean Theater, and inside said theater, they planned to rob the said residence, wherein they planned to hogtie all the occupants and would kill who ever (sic) will stop them.  At about 7:30 in the evening of July 29, 1977, the three accused went out of the movie house and bought a bottle of White Castle whiskey; boarded a taxi and proceeded to the residence of the Gonzaga family in Forbes Park, where they invited Bonifacio Marteja, Andres Larion and Francisco Melorin to a drinking spree in the servants' quarters of the Gonzaga residence.  While in that quarter (sic), Ruga brought [out] another bottle of liquor, this time, gin, and they continued drinking up to midnight of July 29.  At this time, Andres Larion, who was heavily drunk already became unruly and boisterous.  At this juncture, Endencio kicked the feet of Ga making a sign of their plan, simultaneously stood up, pulled out the kitchen knife from the bag, and stated, "hold-up ito" (sic).  Alfredo Endencio took some pieces of cord and torn clothes and hog-tied Larion, Marteja and Melorin, and the accused went out to proceed to the main door of the entrance of said residence.  Due to their failure to open the entrance, they went back to the servants' quarters and took Bonifacio Marteja with them to lead them in entering inside (sic) the Gonzaga residence.  Inside the servants' quarters, they saw Larion being unruly and scandalous, and fearing that neighbors would hear them, they gagged him, and then, Endencio kicked Larion on his body, and when Ernesto Ga saw blood coming out from (sic) the mouth of Andres Larion, he stabbed Larion on his stomach with the use of the dagger (Exh. Z) which they bought from Farmers Market.  Endencio got the key from Marteja and he managed to enter inside (sic) the residence thru the back door.  Later on, the three accused, together with Bonifacio Marteja, who was still hog-tied, entered the room of Ester Gonzaga, but upon seeing that she is [a] cripple, they did not harm her.  Then, they entered the masters' bedroom, leaving Ruga behind to guard Ester Gonzaga; that when Alfredo Endencio saw that Doña Juliana Gonzaga was awake, he shouted to Ga that she was awake, and then Endencio approached Doña Juliana and stabbed her mercilessly with the kitchen knife (Exh. Y).  Don Julio Gonzaga, who was sleeping on the other bed inside the masters' bedroom, was awakened by the violence near him and stood up, but he was met by Ernesto Ga and was told to calm down.  But Rogelia Gonzaga came rushing towards her parent's room, shouting.  Because of that reaction, Ernesto Ga stabbed Don Julio with a dagger and after stabbing him, rushed to the door where accused Endencio, who also met Don Julio, who was then going out of the bedroom, stabbed Julio Gonzaga also.  The accused Endencio and Ga met Rogelia Gonzaga [by] the door and they also stabbed her on the face and several parts of her body.  Rogelia Gonzaga, though wounded, managed to call the Forbes Park security guards for help.  Lt. Lope Celestial and Victorino Sindayon and Cesario Pabillaran called the Makati Medical Center ambulance that took Rogelia Gonzaga and Doña Juliana Gonzaga to the said hospital.

"The weapons used by Ernesto Ga and Alfredo Endencio were thrown by them near the concrete wall of the Gonzaga residence and at the servants' quarters, and they managed to escape through Tamarind Road, passing Pili Road, where they spent the night at the ground floor of the residence of Mr. Malulis, unnoticed by the occupants; that at 5:30 A.M. of July 30, 1977, they jumped off the wall of that residence and they fled.  x x x"^[6]

The information filed on 3 August 1977 in the court a quo, charging Ernesto Ga y Esplanada, Alfredo Endencio y Salvador and Reynaldo Ruga y Resurreccion alias Reynaldo Bustamante y Mutas, reads as follows:

"That on or about the 30th day of July, 1977, in the municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, at nighttime, a circumstance deliberately sought to insure success in the commission of the crime, with intent of gain, and by means of force, violence and intimidation upon the person of one Bonifacio Marteja y Juntilla, a houseboy, while in his dwelling, did, then and there, willfully, unlawfully and feloniously take, steal and carry away one (1) wristwatch worth P100.00 and one (1) transistor radio worth P60.00,' belonging to one Bonifacio Marteja y Juntilla, thereby causing damage and prejudice to the latter in the aforesaid amount of P160.00;

"That by reason or on the occasion of said robbery and for the purpose of enabling them (accused) to take, steal and carry away the aforesaid articles in pursuance of their conspiracy and for the purpose of enabling (sic) the success of their criminal act, with intent to kill, did, then and there, willfully, unlawfully and feloniously attack, assault and stab with a kitchen knife and a dagger the following, to wit:  Juliana Gonzaga y de la Rama, Julio Gonzaga y Cuison, and Andres Larion alias Jessica, thereby inflicting upon the aforesaid persons mortal stab wounds which directly caused their death and inflicting stab wounds to one Rogelia Gonzaga y de la Rama, thus performing all the acts of execution which would have produced the crime of homicide as a consequence but nevertheless did not produce it by reason of cause or causes independent of their will, that is, due to the timely and able medical attendance rendered to said Rogelia Gonzaga y de la Rama which prevented her death.

"Contrary to law."^[7]

Upon arraignment, the above accused, being duly assisted by counsel de oficio, pleaded guilty to the Information.^[8] Evidence was presented to determine the degree of culpability of the accused.^[9] The defense submitted Ga's birth certificate (Exh. 1-Ga) and baptismal certificate (Exh. 5-Ga) to show that he was one day short of his 17th birthday at the time of the commission of the offense.  The lower court appreciated against all accused the aggravating circumstances of superior strength, insult or disregard of the respect due the victims on account of their ages, nighttime and commission by a band.  It also took into consideration their intoxication, habitual delinquency and recidivism, based on records presented that showed that they have been previously convicted of the crimes of serious physical injuries and of theft.^[10]

On 10 August 1977 they were found GUILTY beyond reasonable doubt of the crime of Robbery with Triple Homicide and Frustrated Homicide and sentenced to each suffer the penalty of DEATH THRICE.  They were also ordered to jointly and severally indemnify the heirs of the victims in the amount of P200,000.00; to pay moral damages in the amount of P10,000.00; and another P10,000.00 as exemplary damages, jointly and severally; and to pay their proportionate shares of the costs.^[11]

In his appeal of the decision appellant Ernesto Ga through counsel raised the following errors:

"1.  THE TRIAL COURT ERRED IN CONSIDERING COMMISSION OF A CRIME BY A BAND AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE.

"2.  THE TRIAL COURT ERRED IN CONSIDERING INSULT OR DISREGARD OF THE RESPECT DUE THE VICTIMS ON ACCOUNT OF AGE AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE.

"3.  THE TRIAL COURT ERRED IN CONSIDERING NIGHTTIME AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE.

"4.  THE TRIAL COURT ERRED IN CONSIDERING INTOXICATION AS AN AGGRAVATING CIRCUMSTANCE IN THIS CASE.

"5.  THE TRIAL COURT ERRED IN CONSIDERING RECIDIVISM AND HABITUAL DELINQUENCY AS AGGRAVATING CIRCUMSTANCES IN THIS CASE.

"6.  THE TRIAL COURT ERRED IN FAILING TO CONSIDER PLEA OF GUILTY AS A MITIGATING CIRCUMSTANCE IN THIS CASE.

"7. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE MINORITY OF APPELLANT GA AS A PRIVILEGED MITIGATING CIRCUMSTANCE IN THIS CASE.

"8.  THE ACCUSED GA AND ENDENCIO BEING MINORS AT THE TIME OF THE COMMISSION OF THE CRIME, SHOULD HAVE BEEN ENTITLED TO THE BENEFITS UNDER PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOW AS THE CHILD AND YOUTH WELFARE CODE.

"9.  THE TRIAL COURT ERRED IN SENTENCING APPELLANTS TO DEATH."^[12]

Because the accused pleaded guilty to the crime charged, the only aspect of the case properly subject to review is the correctness of the penalty imposed by the court a quo.^[13] In doing so We shall resolve the assigned errors in sequence.

As to the first assigned error, We find merit in appellant's contention that the aggravating circumstance of commission of a crime by a band should not have been appreciated against them.  A band (en cuadrilla) consists of at least four malefactors who are all armed.^[14] In this case there were only three perpetrators and two weapons, a kitchen knife (Exh. "Y") and a dagger (Exh. "Z").  Clearly, the terrible threesome of the accused did not constitute a band.

Appellant next alleges that insult or disregard of the respect due the victims on account of their ages was not present in the commission of the crime.  The Solicitor General agrees that this deserves consideration "because no evidence was presented and nothing appears in the judgment to indicate that, in the commission of the crime, the appellants deliberately intended to offend or insult the sex or age of the victims,"^[15] citing People v. Mangsant.^[16] While the conclusion reached is correct, the applicable doctrine should be that enunciated in Poople v. Pagal^[17] and reiterated in People v. Ang^[18] and People v. Nabaluna,^[19] that:

"The aggravating circumstance that the crime was committed with insult or in disregard of the respect due the offended party on account of his rank, age or sex may be taken in account only in crimes against persons or honor, when in the commission of the crime there is some insult or disrespect shown to rank, age, or sex (Albert, Revised Penal Code, 1946 Ed., p. 109; Reyes, Revised Penal Code, 1974 Ed., Vol. I, p. 297).  It is not proper to consider this aggravating circumstance in crimes against property (Aquino, Revised Penal Code, 1976 Ed., Vol I, p. 286, citing U.S. v. Samonte, 8 Phil 286).  Robbery with homicide is primarily a crime against property and not against persons.  Homicide is a mere incident of the robbery, the latter being the main purpose and object of the criminal (Ibid., Vol III, 1976 Ed., p. 1434, citing U.S. v. Ipil, 27 Phil. 530, 535).  The trial court erred in taking into account this aggravating circumstance."^[20]

Note, further, that what was involved in Mangsant was a crime against persons:  the murder of a girl fourteen years of age.  While it may be understandable that the prosecution alleged the aggravating circumstance of insult or disregard of the sex of the victim in the information, nevertheless, the Court finds that such aggravating circumstance is not present in this case.

Appellant also assails the appreciation of nighttime as an aggravating circumstance on the ground that, while nighttime may be the factual setting of the crime, it does not appear to have been especially or deliberately sought by the accused in order to facilitate its commission.  Citing People v. Apduhan Jr.^[21] and People v. Flores,^[22] appellant argues that nocturnidad must concur with the intent and design of the offender to capitalize on the intrinsic impunity afforded by the darkness of the night.^[23]

Appellant's reliance on these two cases is misplaced.  Rather, these two cases support the correct position taken by the Solicitor General that a plea of guilty is not only an admission of guilt but also of the material facts alleged in the complaint or information.^[24]

In Flores, the ruling touched on nocturnity merely to illustrate that it was a term with legal significance not ordinarily understandable by a layman unless explained to him.^[25] The case dwelt more on whether or not the accused, in pleading guilty, fully understood the nature of the charges against him and the character of the punishment provided by law before it is imposed.  It was then ordered that a new arraignment of the defendant with the assistance of counsel and with the precautions therein indicated be conducted by the lower court.

On the other hand, in Apduhan Jr. the Court ruled that:

"While an unqualified plea of guilty is mitigating, it at the same time constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances therein recited (People v. Egido, 90 Phil. 762; People v. Santos and Vicente, 105 Phil. 40).  x x x

"x x x             x x x                 x x x

"x x x The prosecution does not need to prove the said three circumstances (all alleged in the second amended information) since the accused, by his plea of guilty, has supplied the requisite proof (People v. Acosta, 98 Phil. 642; People v. Rapirap, 102 Phil. 863).  Hence we will not belabor our discussion of the attendant aggravating circumstances."^[26]

 It has been established that the accused pleaded guilty to the Information, which reads in part that the crime was committed "at nighttime, a circumstance deliberately sought to insure success in the commission of the crime, x x x." Further, a claim of an improvident plea was never part of the defense strategy.  Appellant does not question the effect of his plea of guilty to the crime charged.  He merely disputes the appreciation against him of an aggravating circumstance duly alleged in the information.  Applying the aforestated general rule, therefore, there is no need for the prosecution to prove the attendance of said circumstance.

The facts in the Formentera case are not obtaining here.  In that case, We considered the trial court as having committed certain lapses when it

"x x x did not require the prosecuting fiscal to present evidence to determine the exact degree of the accused's culpability.  It merely relied on his plea of guilty and the manifestation of his counsel de oficio that the only mitigating circumstances (sic) was his plea of guilty.  Thus, the court below took into account the aggravating circumstances of nighttime, dwelling, abuse of superior strength and recidivism, as "gathered" from the information.  It did not require the fiscal to prove that the "wee" hours alleged in the information referred to nighttime, or that the same was purposely sought by the accused to better accomplish their purpose or to afford impunity.  x x x"^[27]

Furthermore, in his brief appellant does not support his claim that nighttime is not obtaining.  On the contrary, aside from being alleged in the information, the facts as found by the trial court clearly establish that the accused waited until midnight to execute their designs and took advantage of the cover of darkness to avoid discovery, minimize the risk of capture and facilitate their escape.  The application of nocturnity is proper.^[28]

The next assigned error is the appreciation against the accused of the alternative circumstance of intoxication as aggravating.  Appellant argues that, while the evidence shows that prior to the commission of the crime the three accused drank liquor, it has not been proven that they were in a state of intoxication at the time the crime was actually committed.  He cites the case of U.S. v. Dowdell, et al.,^[29] where it was held that intoxication cannot be considered mitigating where the accused were sufficiently sober to know what they were doing when committing the unlawful act.  He claims that his ability to give a detailed account of how the crime was committed shows that he was not in a state of intoxication.

Intoxication is mitigating when it affects the mental faculties of the accused.^[30] Appellant's line of argument therefore is supportive of not appreciating drunkenness as a mitigating circumstance in his favor.  Appellant should have attempted to prove instead that the evidence presented is not sufficient to indicate that his inebriated state was habitual or intentional, these being the bases for the considering intoxication an aggravating circumstance.^[31] On the other hand, the records indicate that after they had planned the crime, the accused went on a drinking spree--first with whiskey then with gin--with some of their would-be victims.  In this instance, intoxication is aggravating because it was intentional, i.e., it was subsequent to the plan to commit the crime.^[32] The accused drank to embolden themselves in the commission of the offense.

Appellant next contends that the trial court erred in appreciating recidivism and habitual delinquency as aggravating circumstances against him.  We agree with the Solicitor General in the merit of this contention considering that the evidence for the prosecution consisted merely of photo-copies of the NBI criminal records of appellant which were neither certified nor identified by a witness and no explanation was given as to why the original copies were not produced.  As we held in People v. Ang:

"To find recidivism against an accused, the same must be alleged in the Information and certified copies of the sentences rendered must be adduced at the trial and admitted as evidence with knowledge of the accused (People v. Hermosilla, 122 SCRA 905 [1983]; People v. Scott, 62 Phil. 553 [1935]).  However, even if it is not alleged, the same may be appreciated if proven by evidence (People v. Perez, 106 SCRA 436 [1981]), or if admitted by the accused during the trial (People v. Carzano, 95 SCRA 146 [1980]).  In this case, recidivism was not alleged in the Information, much less was there any admission by the accused, nor was there sufficient proof of the same."^[33]

The sixth assigned error is the failure of the trial court to consider the plea of guilty as a mitigating circumstance in favor of appellant.  In line with Our ruling in People v. Crisostomo,^[34] We find no reason to controvert the recommendation of the Solicitor General^[35] that the same be appreciated as the records show that appellant spontaneously pleaded guilty to the crime charged in the Information immediately upon arraignment before the competent court that is to try the case and prior to the presentation of evidence for the prosecution.^[36]

As to the seventh assigned error, appellant assails the failure of the trial court to consider his minority as a privileged mitigating circumstance inspite of the presentation of his birth certificate (Exhibit 1-Ga) and baptismal certificate (Exh. 5-Ga) indicating that he was born on 1 August 1960, and therefore one day short of his 17th birthday at the time of the commission of the offense.  While appellant cites the Court of Appeals case of People v. Ibanez Jr.,^[37] to show that the birth certificate would be the best evidence of age, the Solicitor General points out that the birth certificate was discredited by the trial court because it was full of erasures and alterations.^[38] We understand, then, why the trial court had to resort to the Social Security System identification card (Exh. "D"), the driver's license (Exh. "N"), and the Medicare identification card (Exh. "O") of appellant, all of which show that he was born on 1 August 1956.  Therefore, as proven by other equally admissible and more competent evidence indicating that when appellant committed the crime he was 20 years, 11 months and 29 days old, minority as a privileged mitigating circumstance under Article 68 of the Revised Penal Code should not be considered in his favor.

Regarding the penultimate assigned error on the entitlement of the appellant to the benefits under Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, suffice it to say that, in any event, recourse to the benefit of a suspended sentence as a youthful offender in accordance with said law has become moot and academic inasmuch as appellant is now above 21 years of age, and the rule is that if an accused reaches the age of majority during appeal, he is no longer entitled to a suspended sentence.^[39]

In People vs. Casiguran,^[40] We held that

"The purpose of articles 189 and 192 of the Child and Youth Welfare Code is the same as that of article 80 (of the Revised Penal Code) and that is to avoid a situation where juvenile offenders would commingle with ordinary criminals in prison.  So, instead of imposing a condemnatory sentence on them, they are confined in a beneficent institution for their care, correction and education (People v. Estefa, 86 Phil. 104, 110).

"Article 192 should be interpreted in the same manner as article 80.  Under the original provisions of Article 80 (before it was amended by Republic Act No. 47 which reduced the age of eighteen years to sixteen years), it was held that if at the time the crime was committed the accused was below eighteen years but at the time of the trial or conviction he was no longer a minor, he is not entitled anymore to a suspended sentence because he is not a juvenile offender but already an adult.  The reason for the suspended sentence does not apply to him (People v. Celespara, 82 Phil. 399; People v. Nunez, 85 Phil. 448; People v. Estefa, supra; People v. Lingcuan, 93 Phil. 9; People v. Doria, L-26189 and two other cases, January 31, 1974, 55 SCRA 435, 450; People v. Pedro, L-18997, January 31, 1966, 16 SCRA 57, 67)."

Finally, appellant argues that the lower court erred in sentencing him to death.  Under the Revised Penal Code, when by reason or on the occasion of a robbery, the crime of homicide shall have been committed, the penalty of reclusion perpetua to death is imposable.^[41] Based on the foregoing disquisition, it is clear that the imposition of the death penalty is correct,^[42] there being three aggravating circumstances:  abuse of superior strength,^[43] nighttime and intoxication, and only one mitigating circumstance:  the voluntary plea of guilty.  However, consistent with the Constitution and Our ruling in People v. Millora, et al.,^[44] to the effect that Section 19(1), Article III of the Constitution does not declare the abolition of the capital punishment but merely prohibits its imposition, the penalty to be imposed on appellant Ga is reduced to reclusion perpetua.

The lower court, however, was in error when it convicted the accused of "the crimes of Robbery with Triple Homicide, and Frustrated Homicide," and in imposing on each of the accused the death penalty three times.  We reiterate at this point Our ruling in People v. Carino,^[45] that

"there is no crime of Robbery with Homicide and Frustrated Homicide.  The term 'Homicide' in paragraph 1, Art. 294 is to be understood in its generic sense.  It includes murder and slight physical injuries committed during the occasion of the robbery which crimes are merged in the crime of robbery with homicide as defined in paragraph 1 of Article 294 of the Revised Penal Code (People v. Saquing, 30 SCRA 834)."

Notwithstanding the fact that three persons were killed and one seriously injured in the commission of the robbery, the charge should have been only for robbery with homicide.^[46]

WHEREFORE, the decision appealed from is AFFIRMED with the modification that the accused is hereby held guilty of a single offense of robbery with homicide and imposed the corresponding penalty of reclusion perpetua.  The civil indemnity for each of the three victims is reduced to P30,000.00, to be paid to their heirs.  No pronouncement as to costs.

SO ORDERED.

Narvasa, (Chairman), Cruz, Griño-Aquino, and Medialdea, JJ., concur.

---

^[1] Judge Onofre A. Villaluz, presiding.

^[2] Page 219, Rollo.

^[3] Page 220, Rollo.

^[4] Page 221, Rollo.

^[5] Page 222, Rollo.

^[6] Pages 30 to 33, Rollo.

^[7] Pages 9 to 10, Rollo.

^[8] Page 12, Rollo.

^[9] Page 12, Rollo.

^[10] Page 36, Rollo.

^[11] Page 38, Rollo.

^[12] Pages 164 to 166, Rollo.

^[13] People v. Apduhan Jr., 24 SCRA 798, 805 (1968).

^[14] Article 14, par. 6, Revised Penal Code; People v. Apduhan Jr., id., at page 814.

^[15] Page 7, Brief for the Appellee, Page 203, Rollo.

^[16] 65 Phil. 548 (1938).

^[17] 79 SCRA 570 (1977).

^[18] 139 SCRA 115 (1985).

^[19] 142 SCRA 446 (1986).

^[20] People v. Pagal, supra, note 17, at pages 576 to 577.

^[21] Supra.

^[22] 40 SCRA 230 (1971).

^[23] Page 168, Rollo.

^[24] Pages 7 to 8, Brief for the Appellee, Page 203, Rollo.  See also People v. Formentera, 130 SCRA 114, 128 (1984); People v. Retania y Rodelas, 95 SCRA 201, 220 (1980) and the cases cited therein.

^[25] Supra, note 22, at page 232.

^[26] Supra, at pages 814 to 815.

^[27] Supra, note 24, at pages 129 to 130.

^[28] People vs. Flores, supra; People vs. Boyles, 11 SCRA 88, 94 (1964).

^[29] 11 Phil. 4 (1908).

^[30] People v. Noble, 77 Phil. 93, 102 (1946).

^[31] Art. 15, third paragraph, Revised Penal Code.  See also People v. Renejane, 158 SCRA 258, 269 (1988).

^[32] People v. Apduhan Jr., supra, at page 813.

^[33] Supra, note 18, at page 122.

^[34] 160 SCRA 47, 56 (1988) and the cases cited therein.

^[35] Pages 12 to 13, Brief for the Appellee, page 203, Rollo.

^[36] Page 12, Rollo.

^[37] CA-G.R. No. 17077-R, 29 November 1957, Velayo, as cited in Aquino, The Revised Penal Code 1987 Ed., vol. I, p. 248.  The decision itself, however, does not say anything to this effect.

It only held that:

"The certificate of birth of appellant Jose Ibañez Jr. (Exhibit 6) shows that he was born on May 17, 1937.  At the time of the commission of the crime, therefore, he was below 18 years of age and, contrary to the contention of the Solicitor General, the mitigating circumstance of minority was correctly considered in his favor."

^[38] Pages 13 to 14, Brief for the Appellee, page 203, Rollo.

^[39] People v. Limosnero, 147 SCRA 232, 235 [1987] citing People v. Millora, 119 SCRA 417 [1982].  See also People v. Sanchez, 132 SCRA 103, 107 [1984] citing People v. Casiguran, infra, and the cases cited therein and reiterated in People v. Verano Jr., 163 SCRA 614, 620 [1988].

^[40] 94 SCRA 244, 249 (1979).

^[41] Article 294(1).  People v. Solis, G. R. Nos. 78732-33, 14 February 1990.

^[42] Article 63(4), Revised Penal Code.

^[43] The trial court has considered this against the accused (Page 36, Rollo).  In his brief, appellant acknowledges this finding of the trial court (Page 163, Rollo) but does not contest its appreciation against him as one of the assigned errors (Pages 164 to 166, Rollo).  Furthermore, the facts support the conclusion of the lower court that the accused abused their superior strength in committing the crime.

^[44] G. R. No. L-38968-70, 9 February 1989 [captioned in 170 SCRA 107 as People v. Muñoz], as cited in People v. Solis, supra.

^[45] 165 SCRA 664 (1988).  Also cited in People v. Repuela, et al., G. R. No. 85178, 15 March 1990.

^[46] People v. Quiñones, et al., G. R. No. 80042, 28 March 1990.  See also People v. Cabuena, 98 Phil. 919, 923 (1956).