Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

137601 April 24, 2003 THE PEOPLE OF THE PHILIPPINES, appellee, vs. WINCHESTER ABUT, RITCHIE WASLO and GREGMAR BALIGA, accused, WINCHESTER ABUT and GREGMAR BALIGA, appellants. CALLEJO, SR., J.: Before the Court for automatic review is the decision1 of the Regional Trial Court, Cagayan de Oro City, Branch 25, in Criminal Case No. 97-1504, finding appellants Winchester Abut and Gregmar Baliga guilty beyond reasonable doubt of Murder. The trial court sentenced appellant Winchester Abut to death, and appellant Gregmar Baliga only to an indeterminate penalty because of the privilege mitigating circumstance of minority, the trial court appreciated in his favor. The Charge On October 27, 1997, an Information was filed charging Winchester Abut, Gregmar Baliga and Ritchie Waslo with murder which reads: On September 20, 1997, at about 2:00 o'clock early dawn, at the National Park, Bubutan, Tubigan, Initao, Misamis Oriental, which is within the jurisdiction of the Honorable Court, the above-named accused, with intent to kill and taking advantage of superior strength, conspiring, confederating with and mutually helping each other, did, then and there, willfully, unlawfully, and feloniously attack, assault, box, hit, and wound one Edgar Galarpe with the use of their fists, broken bottles, and other deadly weapons, thus, inflicting multiple stab wounds upon the person of the latter which caused his death not long thereafter. CONTRARY TO and in violation of Article 248 of the Revised Penal Code.2 Winchester and Gregmar were arrested. Ritchie remained at-large. Upon arraignment on January 5, 1998, assisted by their counsel, Winchester and Gregmar pleaded not guilty. Trial thereafter ensued with the prosecution presenting Maricar Perez, Rosie Pabila, Al Cailing and Dr. Tammy Uy as witnesses. Winchester and Gregmar testified in their behalf. The Case for the Prosecution In the evening of September 19, 1997, Winchester, Ritchie and Gregmar were in the store of Rudy Galarpe at Bubutan, Tubigan, Initao, Misamis Oriental.3 The three ordered a case of red horse beer and had a drinking spree. They sang with the accompaniment of a video karaoke. Also in the store were Rudy's employee, Maricar Perez, a widow, who was vending chicken barbecue; and the victim, Edgar Galarpe, Maricar's boyfriend; Rosie Pabela and her boyfriend, Al Cailing. 4 Winchester and Al were contemporaries in the Initao National Comprehensive High School. Rosie had been the girlfriend of Winchester

before she became the girlfriend of Al. Maricar had been employed for one month in the store of Ritchie's mother before she was employed by Rudy. At around 2:00 a.m. the following day, Maricar and Edgar and Rosie and Al agreed to take a stroll at the National Forest Park, which was about one half kilometer away from the store. Upon reaching the park, the two couples sat on the concrete benches facing each other, with a concrete table in between them.5 Al and Rosie sat on one of the cemented benches facing the national highway6 while Edgar and Maricar sat on the other bench.7 Behind Al and Rosie was a pole on which a flourescent lamp was installed.8 About fifty meters away from the table was another flourescent lamp installed near the office of the park administrator. The couples placed the two bottles of red horse beer which they brought along with them on the table. After a few minutes, Winchester, Gregmar and Ritchie arrived. Winchester told Maricar that he wanted to get acquainted with Edgar, and asked her permission. Maricar agreed. Edgar introduced himself to Winchester, at the same time, extending his hand towards Winchester for a handshake and said: "I am Edgar." Winchester shook hands with Edgar. When Edgar asked for his name, Winchester curtly responded: "King-king ko, Bay." Edgar was dumbfounded when Winchester yanked his hand and immediately boxed him. Edgar fell to the ground. He tried to stand up but Winchester, Gregmar and Ritchie ganged up on him, kicked and mauled him. Ritchie struck the two bottles of red horse beer against the table and hit Edgar with the broken bottles. Winchester astraddled the victim while Ritchie and Gregmar positioned themselves on each side of the victim. The three continued their assault on the victim and stabbed him. Maricar and Rosie saw Edgar being stabbed by Winchester, Gregmar and Ritchie and tried in vain to stop the assault. Edgar pleaded to his attackers to stop assaulting him telling them that he had sustained so many stab wounds already. Frantic, Rosie shouted at Ritchie, Gregmar and Winchester: "What have we done to you? Why did you do that to us?" Although mortally wounded, Edgar stood up and staggered towards the direction of the national highway only to fall down near one of the cemented benches in the park about 10 meters from the table.9Winchester wanted to run after Edgar but was prevailed upon by Rosie not to. Gregmar and Ritchie ran after Edgar but returned to the park when Edgar fell down. Afraid that he would be the next victim, Al fled from the park towards the national highway with Ritchie and Gregmar in hot pursuit. Al was able to elude his pursuers. Ritchie and Gregmar rejoined Winchester at the park. Gregmar, Ritchie and Winchester then left the park together. Maricar tried to help Edgar up but he was too heavy for her. She then shouted for help. When Al heard the shouts for help of Maricar, he returned to the park and together with the girls, flagged down a truck. They then boarded Edgar in the truck and had him transported to the Initao District Hospital. However, Edgar was already dead on arrival at the hospital. Dr. Tammy Uy, the Medico-Legal Officer of the National Bureau of Investigation conducted an autopsy of the victim's body. His post mortem findings are as follows: Embalmed, fairly well-preserved. Areas of post-mortem greyish-yellowish discolorations are noted.

ABRASIONS, roughly linear: 7X0.3 cms., left side of the chest, infero-medial aspect; 10X0.2 cms., left lower thoracic region between left posterior and midaxillary lines. ABRASIONS, confluent, 2X1.5 cms., right elbow; 4X0.7 cms., left forearm, middle third, posterior aspect; 5X6 cms., right knee region; 6X3 cms., left knee region. STAB WOUNDS, non-penetrating; two (2) in number; elliptical in shapes; measuring 1.7 cms. long and 2.1 cms. long; located at the left scapular region of the back and middle third of right forearm, posterior aspect, respectively; edges, clean-cut; extremities are modified by embalming; both directed forward, downward, medially; involving only the skin and underlying soft tissues and muscles; with approximate depths of 2.2 cms. and 2.5 cms., respectively. STAB WOUNDS, non-penetrating; twelve (12) in number; triangular in shapes; with average sizes of 0.4X0.4X0.4 cm.; two (2) are located at the chest, six (6) at the back, two (2) at the left upper arm, one (1) at the dorsum of right hand, and one (1) at the middle third of right thigh, posterior aspect; with contused edges; involving only the skin and underlying soft tissues and muscles; with approximate depths ranging between 0.6 cm. and 3.7 cms. STAB WOUNDS, penetrating; four (4) in number; triangular in shapes; with average sizes of 0.4X0.4X0.4 cm.; one (1) is located at the left side of the chest, medial aspect, and three (3) at the left lower thoracic region of the back; with contused edges; involving among others, the skin and underlying soft tissues and muscles, the pericardium and right ventricle of the heart, the lower lobe of the left lung, the lower lobe of the left lung and the lower lobe of the left lung, (sic) respectively, with approximate depths of 6.5 cms, 6 cms, 5.5 cms, and 7.5 cms, respectively. HEMOPERICARDIUM, about 30 cc. embalmed blood. HEMOTHORAX, left, about 400 cc. embalmed blood; left lung, atelectatic. Stomach, empty. Heart chambers, empty of blood. Brain and other visceral organs, embalmed and fairly well-preserved. VVVVVVVVVVV CAUSE OF DEATH: Hemorrhage, severe, secondary to multiple stab wounds.10 The Defenses and Evidence of the Accused Gregmar and Winchester denied assaulting and stabbing Edgar. They claimed that it was Ritchie alone who stabbed and killed the victim. Winchester testified that before he left Sitio Bubutan for Manila, he and Rosie had been sweethearts. However, they broke up before Winchester left for Manila. Winchester was employed for seven months in a printing press in Manila. He had to return on September 14, 1997 to Bubutan when his father died. However, Winchester was peeved when his father was buried even before his arrival. In the meantime, Winchester and Rosie reconciled.

On September 19, 1997, late in the evening, Winchester, Gregmar and Ritchie were in the store of Rudy Galarpe at Bubutan, Tubigan, Initao, Misamis Oriental. They sang with the accompaniment of a video karaoke. With them were Maricar Perez, the girlfriend of Ritchie and Rosie Pabilan who were listening to the singing and the karaoke. At about 2:00 a.m. the following day, Rosie and Maricar left the store telling Ritchie that they were going to the park in the forest and for him and Winchester to follow them. The two women left the store first, followed by Ritchie and Winchester and Gregmar. When they reached the park, Winchester, Ritchie and Gregmar saw that the two women were with Edgar Galarpe and Al Cailing seated on the benches made of cement. Winchester then asked Maricar if he, Winchester, could get acquainted with Edgar, and Maricar agreed. Winchester then extended his hand towards Edgar and introduced himself, thus: "Kiking ako, parts" (I am Kiking, parts). However, Edgar abruptly pulled the hand of Winchester and boxed Winchester on the neck. Winchester and Edgar then fought each other. Ritchie and Al likewise fought with each other. Maricar intervened and pacified Ritchie and Al. Edgar and Winchester continued boxing each other. Winchester fell down when Edgar hit him. When he saw his friend Winchester down on the ground, Ritchie struck the bottles of red horse beer against the table and hit Edgar with the broken bottles. Edgar fled from the park towards the national highway. Ritchie, armed with a knife, ran after Edgar. Al also fled from the park. On the other hand, Winchester and Gregmar remained in the park with Maricar and Rosie. Ritchie later rejoined Winchester and Gregmar in the park. They then left the park together. On September 22, 1997, Winchester was arrested by policemen for the death of Edgar. Winchester adduced evidence that on September 23, 1997, he was examined and treated by Dr. Jaima Roa, the Municipal Health Officer, for the following injuries: 1. Old contusion right middle arm lateral portion about 1 inch in a semi circular.11 Gregmar testified that he was born on January 15, 1980. To buttress his testimony, he adduced in evidence his Certificate of Live Birth12 and his Elementary School Permanent Record13 showing that he was born on January 15, 1980. He also testified that on his way to the park with Winchester and Ritchie, he tarried because he had to defecate. After he had defecated, he heard a woman shouting for help from the direction of the park. He rushed to the park and saw Edgar mauling Winchester. Winchester fell to the ground. Edgar then knelt on the back of Winchester and mauled him anew. Ritchie stabbed Edgar several times and fled from the park. The Verdict of the Trial Court On October 9, 1998, the trial court rendered its Judgment14 with the following dispositive portion: IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, this Court hereby finds both accused, WINCHESTER ABUT and GREGMAR BALIGA, GUILTY BEYOND REASONABLE DOUBT of the crime of MURDER, in conspiracy with each other as principals by direct participation.

Considering that the crime was committed by both accused Winchester Abut and Gregmar Baliga when the penalty for Murder was amended by R.A. 7659, effective January 1, 1994, the said penalties found in said law is applicable and hereby sentences the accused, WINCHESTER ABUT to DEATH BY LETHAL INJECTION. Accused Gregmar Baliga, who is still below 18 years when the crime was committed, is sentenced to an indeterminate penalty of Ten (10) years of Prision Mayor as minimum to Seventeen (17) years and four (4) months of Reclusion Temporal as the maximum term. The two accused, WINCHESTER ABUT and GREGMAR BALIGA are ordered to pay Seventy Five Thousand Pesos (P75,000.00) to the herein offended party as indemnity and another Seventy Five Thousand Pesos (P75,000.00) as moral damages, and to pay the costs. SO ORDERED.15 Winchester and Gregmar, now appellants, assail the decision of the trial court contending that: I THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF ACCUSED-APPELLANTS FOR THE CRIME CHARGED WERE PROVEN BEYOND REASONABLE DOUBT. II GRANTING THAT HEREIN ACCUSED-APPELLANTS ARE GUILTY IN KILLING THE VICTIM, THE COURT A QUOGRAVELY ERRED IN CONVICTING THEM OF THE CRIME CHARGED INSTEAD OF THE LESSER OFFENSE OF HOMICIDE. III GRANTING FURTHER THAT HEREIN ACCUSED-APPELLANTS ARE GUILTY OF THE CRIME CHARGED, THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON ACCUSED-APPELLANT WINCHESTER ABUT.16 On the first assignment of errors, the appellants assert that Ritchie alone assaulted and killed the victim. The prosecution failed to prove that the appellants conspired with Ritchie to assault and kill the victim. They did not intend to assault and kill the victim. They and Ritchie proceeded to the park from the store of Rudy Galarpe merely to get acquainted with the victim and Al and not to assault or kill him. The appellants could not have conspired with Ritchie to assault and kill the victim because (a) appellant Winchester was shaking hands with the victim when Ritchie broke two bottles of red horse beer prompting the victim to violently pull the hand of the appellant; (b) Rosie was able to pull away appellant Winchester from Edgar; (c) it was Ritchie alone who pursued the victim as the latter staggered from the park towards the national highway; (d) appellant Gregmar was still defecating while the victim was being mauled, assaulted and stabbed by Ritchie; (e) even as Maricar, Rosie and Al were carrying the victim to the truck, Rosie and Maricar were talking with the appellants and Ritchie; hence, the women

were aware that the assault and killing of the victim were the result of an uncontrolled outburst of emotions. Maricar, Rosie and Al could not have identified and pin-pointed who among the appellants and Ritchie assaulted and stabbed Edgar considering that the moon was dimly lit and that the flourescent lamp installed near the office of the park administrator was about fifty meters away from the situs criminis. The Court is not persuaded by the contentions of the appellants. By challenging their identification by the witnesses of the prosecution, as the assailants of the victim, the appellants thereby attacked the credibility of said witnesses and the probative weight of their testimonies. But the legal aphorism is that when the issue of credibility of witnesses is involved, the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded by the appellate court high respect if not conclusive effect precisely because of the unique advantage of the trial court in observing and monitoring at close range the demeanor, deportment and conduct of the witnesses as they testify unless the trial court has overlooked, misconstrued or misinterpreted cogent facts of substance which if considered might affect the result of the case.17 In this case, there is no showing that the trial court overlooked, misunderstood, misapplied or misconstrued any facts of substance that would have materially affected the outcome of the case. The trial court found the collective testimonies of the witnesses of the prosecution straightforward, positive and credible, in contrast to the testimonies of the appellants. The trial court correctly concluded that the appellants conspired with Ritchie in assaulting and stabbing the victim to death and that all of them are criminally liable for the death of the victim. The appellants cannot thus argue that Maricar, Rosie and Al could not have seen the appellants stab and kill the victim. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. To establish conspiracy, direct evidence is not required. It is not even essential that there be proof of the agreement to commit the felony. Proof of concerted action of the accused before, during and after the crime which demonstrates their unity of design and objective is sufficient. This Court had consistently ruled that conspiracy may be inferred when by their acts, two or more persons proceed towards the accomplishment of the same felonious objective, with each doing his act, so that their acts though seemingly independent were in fact connected, showing a closeness of former association and concurrence of sentiment. To hold one as a co-principal by reason of conspiracy it must be shown that he performed an overt act in pursuance of or furtherance of the conspiracy, although the acts performed might have been distinct and separate. This overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting a moral ascendance over the other co-conspirators by moving them to execute or implement the criminal plan. Once conspiracy is established, all the conspirators are answerable as co-principals regardless of their degree of participation, for in the contemplation of the law, the act of

one becomes the act of all.18 It matters not who among the accused inflicted the fatal blow to the victim. 19 In this case, the evidence on record indubitably shows that after introducing himself to the victim, appellant Winchester pulled the hand of the victim and boxed him. Ritchie broke two bottles of beer and hit the victim with the broken bottles. The appellants and Ritchie ganged up and assaulted the victim. Not content, they stabbed the victim repeatedly. Maricar narrated how the appellants and Ritchie by their collective acts killed the victim, thus: Q And after Edgar Galarpe said his name to Winchester Abut, what did Winchester Abut say? A Winchester Abut did not answer when Edgar Galarpe said "How about you, Partner? What is your name?" Q And what happened after that? A Then Richie (sic) Waslo got the two Red Horse bottle which were still cold. Q And what happened to these bottles? A The two Red Horse bottles were broken. Q Then, what happened? A They immediately attacked Edgar. Q Who are these who attacked Edgar Galarpe? A Winchester Abut, Richie Waslo and Gregmar Balega. Q How did they suddenly attack Edgar Galarpe? How about Winchester Abut? A Winchester Abut boxed Edgar Galarpe. Q Where was he hit? A I was not able to notice where Edgar Galarpe was hit because there was already a rumble. He was ganged up by the three. Q How about Al Cailing? Where was he during the rumble? A Al Cailing was near us. Q What about Waslo? What specifically did he do when you said he ganged up on Edgar Galarpe? On the part of Waslo, what specifically did he do by way of attacking Edgar Galarpe? A Richie Waslo kept on boxing Edgar Galarpe. Q Do you recall where was Edgar Galarpe hit by Richie Waslo? A I cannot recall. Q What happened to Edgar Galarpe when he was boxed by Richie Waslo? A When Edgar Galarpe was continuously boxed, he fell down. Q How about Gregmar Balega? What specifically did he do by way of attacking Edgar Galarpe? A Still the same. Gregmar Balega kept on boxing Edgar Galarpe. The three of them took turns in attacking Edgar Galarpe. Q How about the bottle in which the group brought?

A The bottle that was broken was left in the table. Q You mentioned after awhile that Edgar Galarpe fell down. What did accused do when Edgar Galarpe fell down? A That was the time when Winchester Abut rode on top of Edgar Galarpe, while Gregmar Balega was on one side, while Richie Waslo was on the other side. Q Now, what was Winchester Abut doing to Edgar Galarpe when he was riding on top of Edgar Galarpe? A They kept on stabbing, but I did not see what was the instrument used by them in stabbing Edgar Galarpe because the moonlight was not quite bright. Q How was Edgar Galarpe positioned while lying on the ground? A At first Edgar Galarpe was lying on his back, but after awhile, he was able to lie on his face to the ground because he struggled so that he can stand up. Q Was he able to stand up? A After awhile, when Richie Waslo left, he was able to stand up because when I pulled up, Winchester Abut, Edgar Galarpe shouted enough because I have many stab wounds already. Q How about Rosie Pabela? What was she doing all the while? A Rosie Pabela pulled out Winchester Abut and kept on shouting, "What have we done to you?," and "why did you do this to us?"20 Al Cailing corroborated the testimony of Maricar when he testified on direct and cross examinations, thus: Q And who was this one who introduced himself? A Winchester Abut introduced himself. Q How did he do that? A When they arrived they met Maricar Perez and Maricar said, "you are here King, introduce yourself" and so he said, King-King ko, Bay, meaning, "I am King-King, Bay." Q When he said King-King ko Bay, to whom did he say those words? A Winchester Abut addressed those words to Edgar Galarpe. Q And what was the answer of Edgar Galarpe? A Edgar Galarpe answered, "I am Edgar, Bay." Q After that, what happened next? A When King-King released the hand of Edgar Galarpe, he immediately boxed Edgar Galarpe and so Edgar Galarpe stood up, but he was ganged up. Q Who ganged up Edgar Galarpe? A Winchester Abut, Gregmar Baliga and Ritchie Waslo ganged up Edgar Galarpe. Q When they ganged up Edgar Galarpe, what happened to Edgar Galarpe? COURT: Slowly. Before that, ask how? Q How did they gang up Edgar Galarpe?

A The three accused helped one another in stabbing Edgar Galarpe. COURT: What did they use? A I cannot exactly determine what were the instruments used by them in stabbing Edgar Galarpe because there were insufficient illumination of light. Q While they were ganging up Edgar Galarpe, what happened to Edgar Galarpe? A (What happened to) Edgar Galarpe fell down. Q And when Edgar Galarpe fell down, what did Wichester (sic) Abut do? A Wichester (sic) Abut was brought by Rosie Pabila towards the seashore.21 xxx xxx xxx Q So, immediately thereafter, Winchester Abut introduced himself to you? A Yes, Mam. Q And he suddenly boxed Edgar Galarpe? A Immediately after releasing the hands of Edgar Galarpe because they were shaking hands. Q Without any reason, he immediately boxed Edgar Galarpe? A Yes, Mam. Q How about Ritchie Waslo, what was he doing then? A Then, the three accused helped one another in mauling Edgar Galarpe. Q Is it not a fact, Mr. Cailing, that this Winchester Abut fell down before there (there) was a commotion among this group and the group of Winchester Abut. A Winchester Abut did not fall down. Q But, you are ascertain (sic), Mr. Cailing, that when there was a commotion, you left the place instead of helping Edgar Galarpe? A Edgar Galarpe and attempted to run away and Edgar Galarpe was chased by the two accused, Wichester (sic) Abut and Gregmar Baliga and I was chased by Ritchie Waslo. Q So, it is not true that the three accused ganged up Edgar Galarpe? There was first a chasing of Edgar Galarpe by the two accused, Winchester Abut and Gregmar Baliga and against you by Ritchie Waslo? A At first, Edgar Galarpe was ganged up by the three accused, and when Edgar Galarpe and myself attempted to run away, I was chased by Ritchie Waslo while Edgar Galarpe was chased by Winchester Abut and Gregmar Baliga, but Edgar Galarpe did not run because he was already wounded. Q But, you did not see who stabbed Edgar Galarpe? A I saw that Edgar Galarpe was stabbed by the three accused. Q Despite the fact, the three accused ganged up Edgar Galarpe, you did not do anything? A I attempted to help Edgar Galarpe, but I was also afraid and so, I ran away.

Q You are telling now the court that only the girls or the females who helped Edgar Galarpe when there was a commotion? A It did not take long and I came back because Maricar Perez was shouting for me to come back.22 Rosie Pabila likewise testified that the appellants and Ritchie stabbed the victim several times.23 As shown in the autopsy report of Dr. Tammy Uy, the victim sustained eighteen stab wounds on the chest, arms, thighs and at the back, as well as abrasions.24 The finding of the trial court that the appellants stabbed the victim is buttressed by the testimony of the doctor that the assailants used two kinds of weapons, a single or double-bladed instrument or object and a sharp-pointed instrument with three sides (tres cantos): Q The next entry are stab wounds. Where are these located? A These two stab wounds are located at the left scapular region of the back or left shoulder blade region, and the other is located at the posterior aspect of the forearm. Q What could have caused these two stab wounds? A Considering that these stab wounds are eliptical (sic) in shape they could have been caused by any sharp-bladed object or instrument. Q Such as a knife? A Yes. Q How deep are these stab wounds? A Well, the size are 1.7 cm long and 2.1 cm long and they have an approximate depth of 2.2 cm and 2.5 cm, respectively. Q Do you consider those stab wounds as fatal? A No. Q Could you estimate how deep is that with your finger? A 2.5 cm is rough which is equivalent of one inc. 2.2 cm is almost one inch. Q Could you tell if the size or sharp-pointed instrument used was single or double-bladed? A I could not tell that. It could be single or double-bladed. Q The next entry is twelve stab wounds. Could you point? A These twelve non-penetrating stab wounds are described in my report. As to shape they are triangular in shape. Q What could have caused these stab wounds? A These could have been caused by a sharp-pointed instrument with three sides. Q Such as a file? A A file (limbas or tres cantos). Q These stab wounds are fatal? A Considering that all of them are non-penetrating, if they are taken individually they are non-fatal. As to location, two are located at the chest; six at

the back; two at the left upper arm; one at the back of the right hand; and one in the middle third of the right thigh posterior aspect, back of the right thing. Q Would you say that the wound found on the dorsal portion of the hand could be called as a defensive wound? A Yes, it is possible. Q How about the other wounds at the forearm which you mentioned in Entry No. 3? A The one at the posterior aspect of the left forearm is highly indicative of a defensive wound. Q The last entry is also stab wounds, four in number and penetrating. Where are these located? A These are located on the following: One is found on the left side of the chest medial aspect or near the center of the body; the other three are located at the left lower thoracic region of the back, more or less below the left shoulder blade region (witness demonstrating). Q What kind of weapon was used in the infliction of these four stab wounds? A Well, these could have been caused by a sharp-pointed object or instrument with three sides or three corner or tres kantos. Q All the four stab wounds? A Yes. Q Could you determine which of the penetrating stab wound was caused first? A I cannot determine that, sir. I can only say that all these stab wounds sustained by the victim were inflicted on the fact while he was still alive. Q Could you hazard an educated guess of what position was the victim at the time he was stabbed with these penetrating wounds? A Well, with respect to the left side of the chest, most probably they were, more or less, facing each other while the three at the back is that most probably the assailant was, more or less, at the back of the victim. Q Would you say that the victim was lying at that time when the wounds were inflicted on him? A That is possible. Q Which of these stab wounds was fatal? A Each of them could be fatal because the one at the chest involved the heart, while the three at the back involved the lungs. Q Are you trying to say that the one found on the left chest caused injury of the heart? A Yes.25 Although Ritchie alone pursued the victim as he staggered from the situs criminis, however, by then the victim had already been assaulted and repeatedly stabbed by the appellants and Ritchie. The appellants cannot thus argue that Ritchie alone is criminally liable for the death of the victim. As against the collective positive testimonies of the

witnesses of the prosecution coupled with the physical evidence on record pointing to the appellants and Ritchie as the perpetrators of the crime, the bare denial of the appellants which are merely negative self-serving evidence cannot prevail.26 Besides, there is no evidence on record that the three witnesses of the prosecution had any ill motives to testify against the appellants and ascribe to them the commission of a heinous crime for which the appellants could be meted reclusion perpetua or even the death penalty. It would run counter to the natural order of events and of human nature and contrary to the presumption of good faith for the prosecution witnesses to falsely testify against the appellants if, indeed, they are innocent.27 In sum, the appellants are criminally liable for the death of the victim. The Crime Committed by the Appellants On the second and third assignment of errors, the appellants aver that they are guilty only of homicide as defined in Article 249 of the Revised Penal Code, and not of murder. Even if it is assumed that the appellants are guilty of murder, the proper penalty for the crime is reclusion perpetua and not the death penalty. Although the crime is qualified by abuse of superior strength, however, treachery was not alleged in the information; and hence, treachery should not be considered as an aggravating circumstance in the commission of the crime. The trial court correctly convicted the appellants of murder with the qualifying circumstance of abuse of superior strength. However, the trial court erred in appreciating treachery against the appellants. There is treachery when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. In order that treachery may be appreciated as a qualifying circumstance, it must be shown that: a.) the malefactor employed means, method or manner of execution affording the person attacked no opportunity to defend himself or to retaliate; and b.) the means, method or manner of execution was deliberately or consciously adopted by the offender. The second is the subjective element of treachery.28Treachery must be proved by clear and convincing evidence as conclusively as the killing itself. In the absence of any convincing proof that the accused consciously and deliberately adopted the means by which they committed the crime in order to ensure its execution, the Court must resolve the doubt in favor of the accused.29 In this case, the prosecution failed to prove that the mode or manner of execution was deliberately or consciously adopted by the appellants when they stabbed the victim. Appellant Winchester first boxed the victim. The appellants and Ritchie then mauled and kicked the victim. There is no evidence that at the outset, they had decided to stab and kill the victim. It was only at the late stage of the assault that the appellants and Ritchie stabbed the victim. The Court believes that after ganging up on and mauling the victim, the appellants, at the spur-of-the moment, decided to stab the victim. Thus, the subjective element of treachery was not present.30 However, the appellants and Ritchie abused their superior strength. They boxed and kicked the victim without let up. They mauled and kicked the victim even as he was already sprawled on the ground. The victim

was outnumbered. As against the combined strength of the appellants and Ritchie, the victim was helpless. There was indubitably inequality of strength between the victim and the appellants and Ritchie. 31 The Proper Penalties Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to death. There being no modifying circumstances in the commission of the crime other than the qualifying circumstance of abuse of superior strength, appellant Winchester Abut should be sentenced to reclusion perpetua conformably with Article 63 of the Revised Penal Code. The penalty imposed by the trial court on appellant Gregmar Baliga which is from ten years of prision mayor as minimum to 17 years and 4 months of reclusion temporal, as maximum is correct. The appellant was seventeen and eight months old when the crime was committed and under Article 68 of the Revised Penal Code, the penalty for the crime should be reduced by one degree. Civil Liabilities of the Appellants The trial court awarded to the heirs of the victim Edgar Galarpe P75,000 as civil indemnity and P75,000 as moral damages. The decision of the trial court must be modified. Conformably with the current jurisprudence, the appellants are obliged to pay in solidum the heirs of the victim, Edgar Galarpe, the amount of P50,000 as civil indemnity.32 However, they are not liable for moral damages because the prosecution failed to present the heirs of the victim to prove said damages.33 IN LIGHT OF ALL THE FOREGOING, the decision of the Regional Trial Court of Cagayan de Oro City, Branch 25, in Criminal Case No. 97-1504 is AFFIRMED with MODIFICATIONS. Appellants Winchester Abut and Gregmar Baliga are found guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal Code qualified by abuse of superior strength. There being no other modifying circumstances in the commission of the crime, appellant Winchester Abut is sentenced to suffer the penalty of reclusion perpetua. Appellant Gregmar Baliga is sentenced to suffer an indeterminate penalty of from ten (10) years of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. Said appellants are hereby ordered to pay in solidum the heirs of the victim, Edgar Galarpe, the amount of P50,000 as civil indemnity. The award for moral damages is deleted. Costs de oficio. SO ORDERED. Davide, Jr., C .J ., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales and Azcuna, JJ ., concur. Quisumbing, J ., on official leave. Footnotes 1 Penned by Judge Noli T. Catli. 2 Records, p. 2.

TSN, April 1, 1988; Records, p. 177. TSN, January 12, 1998, pp. 34. 5 Exhibit "B." 6 Exhibits "B-1" and "B-3." 7 Exhibits "B-2" and "B-4." 8 Exhibit "B-5." 9 Exhibit "C-1." 10 Records, p. 13. 11 Exhibit "I." 12 Exhibit "2." 13 Exhibit "2-A." 14 Rollo, p. 22. 15 Id., at 2930. 16 Rollo, pp. 6263. 17 People vs. Aquino, 329 SCRA 247 (2000); People vs. Ratunil, 334 SCRA 721 (2000). 18 People vs. Ponce, 341 SCRA 352 (2000). 19 People vs. Canoy, 328 SCRA 385 (2000); People vs. Go-od, 331 SCRA 612 (2000); People vs. Pama, 216 SCRA 385 (1992); People vs. Liquiran, 228 SCRA 62 (1993); People vs. Sequio, 264 SCRA 9 (1996). 20 TSN, Perez, January 12, 1958, pp. 710. 21 TSN, Cailing, January 20, 1998, pp. 78. 22 TSN, Cailing, February 2, 1998, pp. 45, supra. 23 TSN, January 14, 1998, pp. 1112. 24 Exhibit "A." 25 TSN, Uy, January 9, 1998, pp. 710, supra. (Emphasis supplied) 26 People vs. Orio, 330 SCRA 576 (2000). 27 People vs. Macaliag, 337 SCRA 502 (2000). 28 People vs. Arellano, 334 SCRA 775 (2000). 29 People vs. Orio, supra. 30 People vs. Arellano, supra. 31 People vs. San Andres, 326 SCRA 223 (2000). 32 People vs. Quimson, 366 SCRA 581 (2001). 33 Id.
4

FIRST DIVISION [G.R. No. 129371. October 4, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO SANTIAGO, SOLIS DE LEON and JAIME ILLESCAS, accused, JAIME ILLESCAS, accused-appellant. DECISION YNARES-SANTIAGO, J.: Accused Romeo Santiago, Solis De Leon and Jaime Illescas were charged with murder in an Information[1] which reads: "That on or about the 18th day of December, 1993, in the municipality of Baliuag, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, armed with a gun and with intent to kill one Antonio Dionisio, did then and there wilfully, unlawfully and feloniously with evident premeditation and treachery, attack, assault and shoot with the said gun the said Antonio Dionisio, hitting the latter on his head, thereby inflicting serious physical injuries which directly caused his death. Contrary to law." Only Illescas was arrested while his co-accused remained at large. Upon arraignment, Illescas pleaded "not guilty" to the charge. The trial court found that on December 18, 1993 at around 8:45 to 9:00 o'clock in the evening, Antonio Dionisio, together with his daughters Mary Ann, Girlie, Maria Paz and Mariel, were on board a blue mini cruiser on their way to attend a party. At the corner of Pitong Gatang Street, Poblacion, Bustos, Bulacan, their car hit an Enduro motorcycle ridden by the three accused. One of the accused uttered expletives at them. Mary Ann clearly remembered Illescas' face and later identified him as the driver of the motorcycle. After the minor collision, Dionisio dropped off Mary Ann, Maria Paz and Girlie at the party while he and Mariel proceeded to the service station to buy gas for the mini cruiser. Sometime later, Mary Ann learned from a tricycle driver that her father had been shot. Four-year old Mariel Dionisio who was with her father in the mini cruiser identified Illescas as among the three persons who killed her father, although she said he was not the triggerman. Miguel Lopez, a tricycle driver, corroborated Mariel's testimony. He testified that he saw the three accused at the corner of Bunga Mayor and Tibagan Streets prior to the incident. Then he heard a gunshot a few minutes after seeing them. He again saw the three accused near the foot of the bridge with two of them aboard the motorcycle while the other one was pushing it, apparently trying to jumpstart the motorcycle. Lopez was facing sideways to the three accused and light coming from a nearby spare parts store was illuminating the area where he saw them. He remembered Illescas as the driver of the motorcycle. Lopez knew the victim, Antonio Dionisio, as he was related to his father.

Edgardo Dungao, a jeepney driver, also saw the three accused prior to the shooting when they passed by the house of Marcelo Ramos.While driving his jeepney at the Gen. Alejo Santos bridge, he heard a shot. Thereafter, he saw a person on a motorcycle with two other persons running after it. After the two persons caught up with the motorcycle, they all fled. One of the accused was wearing a black jacket. Upon reaching the end of the bridge, he saw the bloodied victim whom he recognized to be Tony Dionisio, a barangay councilman of Bustos, Bulacan. SPO4 Jaime Santos established the names of the accused as Romeo Santiago, Solis de Leon and Jaime Illescas. The defense relied solely on the testimony of Illescas who denied participation in the crime. He claimed he was merely a backrider on the motorcycle together with his brother-in-law, Solis de Leon, and Romeo Santiago. While they were on their way to a birthday party at Bustos, Bulacan aboard a black motorcycle, an owner-type jeepney suddenly overtook them causing them to fall down. The driver of said vehicle alighted and told them, "Napakayabang n'yong magpatakbo ng motor, parang sa inyo and daan." Thereafter, the driver of the jeepney forced Romeo Santiago to board his jeepney at gunpoint. While trying to set the motorcycle upright, he heard a gunshot. He did not see who fired the shot.Immediately, he left the premises and went home on a tricycle. The trial court gave credence to the version of the prosecution and rendered a decision as follows: "WHEREFORE, judgment is hereby rendered finding accused Jaime Illescas guilty beyond reasonable doubt of the crime of murder pursuant to Art. 248 of the Revised Penal Code because of the attending qualifying circumstances of treachery and evident pre-meditation and hereby sentenced him and imposed the penalty of RECLUSION PERPETUA and to indemnify the heirs of the offended party in the amount of Fifty Thousand Pesos (P50,000.00) as actual and moral damages and to set an example and sense of prevention to others not to commit the same offense." Hence, this appeal, with accused-appellant interposing the following errors: I. THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS AMPLY AND SUFFICIENTLY PROVED THAT TREACHERY ATTENDED THE SHOOTING AND KILLING OF VICTIM ANTONIO DIONISIO. II. THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS AMPLY AND SUFFICIENTLY PROVED THAT EVIDENT PREMEDITATION ATTENDED THE SHOOTING AND KILLING OF VICTIM ANTONIO DIONISIO. III. THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS AMPLY AND SUFFICIENTLY PROVED THE PRESENCE OF CONSPIRACY BETWEEN YOUR ACCUSED-APPELLANT AND THE TWO OTHER CO-ACCUSED IN THE SHOOTING AND KILLING OF VICTIM ANTONIO DIONISIO.

IV. THE TRIAL COURT ERRED IN CONVICTING YOUR ACCUSEDAPPELLANT OF THE CRIME OF MURDER. The defense contends that treachery did not attend the commission of the crime considering that there was a previous altercation between the victim and one of the accused thereby logically putting the former on guard and forewarned at their second meeting. Besides, no evidence was presented by the prosecution to show how the killing was commenced. This contention is meritorious. There is treachery when the following conditions are present: (a) employment of means, methods or manner of execution to ensure the safety of the malefactor from defensive or retaliatory acts on the part of the victim, and (b) deliberate adoption by the offender of such means, methods or manner of execution.[2] In ruling that treachery attended the commission of the crime, the trial court held, thus: "x x x [T]he victim was killed by a single shot on the head while inside his car. There was treachery and premeditation because it was so sudden and unexpected that the victim had no time to prepare for his defense much less to retaliate. Hence, the crime was murder." The trial court's conclusion has no basis considering that no evidence was presented to show that the accused deliberately employed means, methods or manner of execution to ensure their safety from the defensive or retaliatory acts of the victim.[3] In fact, the trial court merely concluded that the attack was treacherous because it was sudden and unexpected but it failed to cite any evidence to show that the attack was indeed sudden and unexpected. This Court has held that where all indicia tend to support the conclusion that the attack was sudden and unexpected but there are no precise data on this point, treachery cannot be taken into account. Treachery cannot be established from mere suppositions drawn from the circumstances prior to the moment of the aggression that the accused perpetrated the killing with treachery.[4] When the witnesses did not see how the attack was carried out and cannot testify on how it began, the trial court cannot presume from the circumstances of the case that there was treachery. Circumstances which qualify criminal responsibility cannot rest on mere conjectures, no matter how reasonable or probable, but must be based on facts of unquestionable existence. Mere probabilities cannot substitute for proof required to establish each element necessary to convict. Treachery must be proved by clear and convincing evidence, or as conclusively as the killing itself.[5] In People v. Tony Adoc, et. al.,[6] treachery was ruled out as having attended the commission of the crime considering that the two eyewitnesses had no knowledge as to how the fighting begun, thus: "Neither could Diomedel Diapo testify as to the cause of the fray. He came out of his house which was across the terminal only after he already heard shouts which proves that the fighting had already started when he arrived at the scene of the crime. This failure of

the prosecution to present evidence as to the manner in which the altercation started precludes a finding that the killing was qualified by treachery. In People v. Sambulan (289 SCRA 500 [1998]) this Court also held that: In the case at bar, the record is bereft of evidence showing the methods or the means employed by appellant in order to ensure his safety from any retaliation that could be put up by the victim. The witness for the prosecution only saw the actual hacking of the victim and not the preceding events that led to it.Treachery cannot be considered where the lone witness did not see the commencement of the assault. The importance of such testimony cannot be overemphasized considering that treachery cannot be presumed nor established from mere suppositions. (Italics supplied) The same doctrine was applied in People v. Amamangpang (291 SCRA 638 [1998]) wherein this Court said: The trial court, however, erred in finding that the crime was committed with treachery. Treachery, which should be proven as clearly as the crime itself to be considered a qualifying circumstance, was not conclusively established in this case. According to the prosecution eyewitness Noculan, when he was alerted to the assault by the warning shout of appellant's daughter and when he peeped inside the house, he saw the victim already prostrate on the bamboo floor, blood oozing from his neck and about to be struck by the appellant. Since the lone eyewitness failed to witness the initial attack inflicted upon the victim, treachery cannot be considered a qualifying circumstance. In People v. Beltran, this Court reiterated that: x x x. There is treachery when, in the commission of the crime, the offender employs means, methods and forms which directly and specially insure the execution thereof without risk to himself arising from any defense the offended party might make. The essence of treachery is the swift and unexpected attack without the slightest provocation by the victim. In the case at bar, the victim may have sustained twenty-two (22) stab wounds but there is no evidence as to the manner in which the attack was made or how the stabbing resulting in her death began and developed. The existence of treachery cannot be established from mere suppositions nor drawn from circumstances that existed prior to and after the killing; it must be proved by clear and convincing evidence or as conclusively as the killing itself. Where treachery is not adequately proved, appellant can only be convicted of homicide. The defense next assails the finding of the trial court that the qualifying circumstance of evident premeditation attended the killing of the victim. It contends that the 15-minute interval between the initial encounter of the accused and the victim, on the one hand, and the shooting, on the other hand, was not sufficient for meditation and reflection. Also, the defense claims that the evidence is silent as to when the accused resolved to assault and kill the victim. Neither was there evidence that they clung to their previous resolution of assaulting the deceased. The three requisites needed to prove evident premeditation are the following: (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating

that the offender had clung to his determination; and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act.[7] None of the above requisites exist in this case. The record is bereft of any evidence to show when the accused decided to kill the victim. It was not shown that the accused meditated and reflected upon their decision to kill the victim. Likewise, there is a dearth of evidence that the accused persisted in their plan to kill the victim. As this Court has repeatedly held, the premeditation to kill must be plain, notorious and sufficiently proven by evidence of outward acts showing the intent to kill.[8] In the absence of clear and positive evidence, mere presumptions and inferences of evident premeditation, no matter how logical and probable, are insufficient.[9] We cannot agree with the prosecution's theory that the 15-minute interval is sufficient time for the accused to coolly reflect on their plan to kill the victim. It has been held in one case that even the lapse of 30 minutes between the determination to commit a crime and the execution thereof is insufficient for full meditation on the consequences of the act.[10] The trial court erred in appreciating the existence of conspiracy among the three (3) accused. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. It may be deduced from the manner in which the offense is committed, as when the accused acted in concert to achieve the same objective.[11] In order to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or in furtherance of conspiracy. The overt act may consist of active participation in the actual commission of the crime itself or it may consist of moral assistance to his co-conspirators by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy.[12] Mere presence at the scene of the incident, knowledge of the plan or acquiescence thereto are not sufficient grounds to hold a person liable as a conspirator. As such, conspiracy must be established as any element of the crime and evidence of the conspiracy must be beyond reasonable doubt.[13] Neither joint nor simultaneous action is per se sufficient indicium of conpiracy, unless proved to have been motivated by a common design.[14] As shown by the evidence presented by the prosecution, Illescas was driving the motorcycle in the company of his co-accused immediately prior to and after the shooting incident. Illescas' participation in the crime was limited to driving the motorcycle. As testified to by Mariel, the four-year old daughter of the victim, Illescas was not the triggerman, although he was the one driving the motorcycle. The prosecution failed to adduce sufficient evidence to completely establish the existence of conspiracy among the three accused. The acts of Illescas vis--vis those of his co-accused failed to establish beyond reasonable doubt the presence of conspiracy. It bears stressing that conspiracy must be proved as convincingly and indubitably as the crime itself. [15] Nonetheless, the failure of the prosecution to prove the existence of

conspiracy does not eliminate any criminal liability on the part of Illescas. Although he could not be convicted as a co-principal by reason of the conspiracy he could still be held liable as an accomplice, thus: We have previously held that the liability of one whose participation in a crime was limited to driving for the killers x x x is only that of an accomplice. The rationale for these rulings is that where the quantum of proof required to establish conspiracy is lacking, the doubt created as to whether accused acted as principal or accomplice will always be resolved in favor of the milder form of criminal liability, that of a mere accomplice. x x x [T]he lack of complete evidence of conspiracy, which creates the doubt whether he has acted as a principal or as an accomplice, impels this Court to resolve the question as to his liability in his favor by holding that he is guilty of the minor form of responsibility. [16] Based on the foregoing disquisition, it is clear that the court below erred in convicting accused-appellant of murder. Absent the qualifying circumstances of treachery and evident premeditation, accused-appellant could only be held liable for homicide. In addition, lacking sufficient evidence of conspiracy and there being doubt as to whether accused-appellant acted as a principal or just a mere accomplice, the doubt should be resolved in his favor and is thus held liable only as an accomplice. Under Article 249 of the Revised Penal Code the penalty for homicide is reclusion temporal. Since accused-appellant is only an accomplice, the imposable penalty is one degree lower than that imposable for the principal, i.e., prision mayor. There being neither aggravating nor mitigating circumstances, the said penalty shall be imposed in its medium period.[17] Applying the Indeterminate Sentence Law, accused-appellant Illescas is accordingly sentenced to suffer the prison term of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Bulacan, Branch 79, is AFFIRMED with the MODIFICATION that accused-appellant Jaime Illescas is held guilty of homicide and is accordingly sentenced to a prison term of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, and to indemnify the heirs of Dionisio Antonio the amount of P50,000.00. With costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

Dated February 15, 1994, Rollo, p. 12. People v. Flora, G.R. No. 125909, June 23, 2000; People v. Rios, G.R. No. 132632, June 19, 2000.
[2]

[1]

People v. Belbes, G.R. No. 124670, June 21, 2000; People v. Ladit, G.R. No. 127571, May 11, 2000. [4] People v. Silva, G.R. No. 131591, December 29, 1999. [5] People v. Lopez, G.R. No. 131151, August 25, 1999. [6] G.R. No. 132079, April 12, 2000. [7] People v. Sison, 312 SCRA 792, 804 (1999). [8] People v. Tan, G.R. No. 129882, September 14, 1999; People v. Mahinay, 304 SCRA 767, 779 (1999); People v. Chua, 297 SCRA 229, 242 (1998). [9] People v. Tan, supra. [10] People v. Rabanillo, G.R. No. 130010, May 26, 1999. [11] People v. Bautista, et al., G.R. No. 131840, April 27, 2000. [12] People v. Ragundiaz, et al., G.R. No. 124977, June 22, 2000. [13] Salvatierra, et al. v. CA and the People of the Philippines, G.R. No. 115998, June 16, 2000. [14] People v. Ragundiaz, supra. [15] People v. Patalinghug, G.R. Nos. 125814-15, November 16, 1999. [16] People v. Ragundiaz, supra. [17] Revised Penal Code, Article 64 (1).

[3]

EN BANC [G.R. Nos. 146235-36. May 29, 2002] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELCHOR RAFAEL y LEGASPI, MARIO RAFAEL y LEGASPI, and MAXIMO RAFAEL y MACASIEB, accused. MELCHOR RAFAEL y LEGASPI and MARIO RAFAEL y LEGASPI, accusedappellants. DECISION MENDOZA, J.: This is an appeal by way of automatic review from the decision,[1] dated December 8, 2000, of the Regional Trial Court, Branch 217, Quezon City, convicting accusedappellants, Melchor and Mario Rafael, of frustrated murder and murder in Criminal Case Nos. Q-94-59453 and Q-94-59454, respectively. Accused-appellants were accused with their father Maximo Rafael under the following informations alleging In Criminal Case No. Q-94-59453 (Frustrated Murder), That on or about the 28th day of August 1994, in Quezon City, Philippines, the said accused, conspiring, confederating together, and mutually, helping one another with evident premeditation, treachery, and superior strength, did then and there, wilfully, unlawfully, and feloniously with intent to kill, attack, assault, and employ personal violence upon the person of ALEJANDRA MACARAEG-RAFAEL, by then and there hacking her with a bolo and hitting her on the different parts of her body, thereby inflicting upon her serious and mortal wounds which ordinarily would cause the death of said ALEJANDRA MACARAEG-RAFAEL, thus performing all the acts of execution which should have produced the crime of MURDER, as a consequence but nevertheless did not produce it by reason of causes independent of their will, that is the timely and able medical attendance rendered to said ALEJANDRA MACARAEG-RAFAEL which prevented her death, to her damage and prejudice. CONTRARY TO LAW.[2] and in Criminal Case No. Q-94-59454 (Murder), That on or about the 28th day of August 1994, in Quezon City, Philippines, the said accused, conspiring, confederating together and mutually helping one another, with evident premeditation, treachery and superior strength, by then and there hacking her [GLORIA TUATIS-RAFAEL] with the use of a bolo and hitting her on the different parts of her body, thereby inflicting upon her serious and mortal wounds which was the direct and immediate cause of her death, to the damage and prejudice of the heirs of said GLORIA TUATIS-RAFAEL. CONTRARY TO LAW.[3] Accused Maximo Rafael was tried ahead of accused-appellants as he was the only one in custody at the time. On October 30, 1995, he was found guilty as charged and sentenced in Criminal Case No. Q-94-59453 (frustrated murder) to the indeterminate penalty of six (6) years of prision correccional, as minimum, to twelve (12) years of prision mayor, as maximum, and to death in Criminal Case No. Q-94-59454 (for

murder). On appeal, this Court found Maximo Rafael guilty not as a principal but only as an accomplice in the commission of the crimes and accordingly sentenced him to two (2) years, eleven (11) months, and eleven (11) days of prision correccional, as minimum, to eight (8) years, eight (8) months, and one (1) day of prision mayor, as maximum, for frustrated murder, and to eight (8) years, eight (8) months, and one (1) day of prision mayor, as minimum, to fifteen (15) years, six (6) months, and twenty (20) days of reclusion temporal, as maximum, for murder.[4] In 1996, accused-appellants Melchor and Mario Rafael were finally arrested.[5] On November 10, 1997, both were arraigned, each one entering a plea of not guilty.[6] Trial on the merits then ensued. The prosecution presented the following witnesses: Rogelio Rafael, who is the husband of Gloria and the son of Alejandra Rafael, the victim Alejandra Rafael herself; Leonilo Hamoy, a neighbor of Rogelio Rafael; and Dr. Florante F. Baltazar, chief of the Philippine National Police (PNP) National Capital Region Crime Laboratory. The gist of their testimonies is as follows: At around 8 oclock in the evening of August 28, 1994, Alejandra Rafael and her daughter-in-law Gloria were in the kitchen on the ground floor of their residence on Rosal Street, Pingkian, Barangay Pasong Tamo, Quezon City. Alejandra Rafael was setting the table, while Gloria was cooking their dinner. As Alejandra heard a commotion outside, she opened the kitchen door to find out what it was about. Alejandra saw accused-appellant Melchor Rafael standing outside with his brother, accusedappellant Mario Rafael, and his father Maximo Rafael, who was slightly behind the latter. Alejandra knew the three very well since Maximo is the brother of her husband. Without any warning, Melchor attacked Alejandra with a bolo, severing her left hand. He then turned to Gloria and struck her on the head with the bolo. Wounded, Gloria tried to run away, but she was pursued outside by Mario. Melchor for his part continued to attack Alejandra and stopped only because he thought she was already dead. Melchor then followed his brother outside. Before losing consciousness, Alejandra heard Maximo Rafael telling his two sons to kill the victims.[7] Alejandra was rushed to the East Avenue Medical Center. A medical certificate (Exh. A)[8] issued to her on August 13, 1998 described her injuries as follows: TRAUMATIC AMPUTATION, (L) WRIST. HACKING WOUNDS, (R) HAND; OPEN COMPLETE FRACTURE DISTAL PART 3RD PORTION 4TH PHALANX, PROXIMAL PART 2ND PORTION 3RD PHALANX, (R) HAND. Surgical Procedure: EMERGENCY DEBRIDEMENT, PINNING 3RD AND 4TH PHALANGES, TENORRHAPHY 3RD FLEXOR DIGITORUM. (8/29/94) Rogelio Rafael, Glorias husband, testified that in the evening of August 28, 1994, he was asleep in his bedroom on the second floor of their house when he was awakened by noise outside. When he looked through the window, he saw his wife being pursued

outside their house by accused-appellants Mario and Melchor Rafael, both of whom were armed with bolos. Accused-appellants caught up with Gloria near the pigpen and took turns stabbing and hitting her with their bolos. Rogelio said he cursed accused-appellants, Putang-ina ninyo! (You sons of bitches!) as he rushed downstairs to help his wife. But, by the time he got out of the house, accused-appellants had already run away.[9] Leonilo Hamoy, whose house adjoined that of the victims, witnessed the attack on Gloria in the evening of August 28, 1994. He was holding his child when he heard a commotion outside. When he looked out of the window, he saw Gloria Rafael coming out of her house being pursued by accused-appellants. He said he saw Gloria stumble and fall to the ground, after which she was struck by accused-appellants with their bolos. Leonilo testified that he gave a sworn statement (Exh. C)[10] to the police although the prosecution did not call him to the witness stand at the trial of Maximo Rafael.[11] Dr. Florante F. Baltazar identified the medico-legal certificate (Exh. D)[12] and the sketches of the head (Exh. E)[13] and body injuries (Exh. F)[14] of Gloria Rafael which he had executed.[15] The medico-legal certificate (Medico-Legal Report No. M-1402-94) issued by him stated: SPECIMEN SUBMITTED: Cadaver of Gloria Rafael, about 29 years old, 147 cm. in height, and a resident of Pingkian Village, Quezon City. PURPOSE OF LABORATORY EXAMINATION: To determine the cause of death. FINDINGS: Fairly developed, fairly nourished female cadaver in rigor mortis with postmortem lividity over the dependent portions of the body. Conjunctivae, lips and nailbeds were pale. EXTERNAL INJURIES: HEAD, TRUNK, AND EXTREMITIES: 1) Hacking wound, left occipital region, 5 cms. from the posterior midline, measuring 8 x 2 x 2 cms. depth, directed downwards, anteriorwards, slightly towards midline, fracturing the left occipital bone. 2) Hacking wound, right parieto-occipital region, 14 cms. from the mid-sagittal line, measuring 7 x 2 x 3.5 cms. depth, directed slightly downwards, posteriorwards and towards midline, fracturing the right parieto-occipital bone; 3) Stab wound, anterior right upper thorax, 116.5 cms. from the heel, 8 cms. from the anterior midline, measuring 1.7 x 0.7 x 20 cms. depth, directed downwards, posteriorwards, right to left, fracturing the sternum at the level of 2nd thoracic rib, piercing the pericardium, ascending aorta, lower lobe of the left lung, exiting at the 6th left intercostal space. 4) Stab wound, anterior right upper thorax, 118 cms. from the heel, 12 cms. from the anterior midline, measuring 3 x 1.5 x 19 cms. depth, directed slightly upwards, slightly posteriorwards, right to left thru the muscle tissue.

5) Stab wound, anterior right thorax, 111 cms. from the heel, passing thru the 4th right intercostal space, measuring 2 x 0.4 x 10 cms. depth, directed downwards, posteriorwards, towards midline, piercing the lower lobe of the right lung, right dome of the diaphragm and right lobe of the liver. 6) Stab wound, anterior right lower thorax, 108 cms. from the heel, 14 cms. from the anterior midline, measuring 1.7 x 0.3 x 7 cms. depth, directed downwards, posteriorwards, towards midline, thru the muscle tissue. 7) Multiple abrasions, right knee, measuring 3.5 x 1.5 cms., along its anterior midline. 8) Linear abrasion, posterior left lumbar region, measuring 21 x 0.2 cms., 3 cms. from the posterior midline. 9) Linear abrasion, posterior right shoulder, measuring 10 x 0.3 cm., 17 cms. from the posterior midline. 10) Multiple abrasions, anterior right deltoid region, measuring 8 x 1 cm., 6.5 cms. lateral to its anterior midline. 11) Stab wound, posterior left deltoid region, 3 cms. medial to its posterior midline, measuring 1 x 0.4 cm., 2 cms. depth, thru the muscle tissue. 12) Incised wound, posterior distal 3rd left arm, 4 cms. lateral to its posterior midline, measuring 6 x 2 cms. 13) Incised wound, posterior right deltoid region, measuring 5.5 x 3 cms., bisected by its posterior midline. 14) Stab wound, posterior middle 3rd right arm, 4 cms. lateral to its posterior midline, measuring 2.3 x 1 cm., directed upwards, slightly anteriorwards, right to left, exiting at the anterior middle 3rd right arm, 6 cms. medial to its anterior midline, entry - exit measuring 7 cms. 15) Abrasion, right elbow, measuring 1.4 x 1 cm., along its posterior midline. 16) Stab wound, posterior proximal 3rd right forearm, 3.4 cms. lateral to its posterior midline, measuring 4 x 1 cm., directed slightly downwards, anteriorwards, towards midline, exiting at the anterior proximal 3rd right forearm, measuring 2 x 0.5 cms., along its anterior midline, entry-exit measuring 6 cms. 17) Stab wound, anterior middle 3rd right forearm, measuring 3.5 x 1.5 cms., 5 cms. lateral to its anterior midline, directed downwards, anteriorwards, towards midline, exiting at the anterior middle 3rd right forearm, measuring 2.2 x 0.6 cms., 3 cms. lateral to its anterior midline, entry-exit measuring 3 cms. 18) Multiple abrasions, left knee, measuring 4 x 2 cms., along its anterior midline. INTERNAL FINDINGS: 1. There were subdural and subarachnoidal hemorrhages. 2. Recovered from the stomach about 2 glasses of partially digested food particles mostly of rice. CONCLUSION: Cause of death is hacking and stab wounds, head, body, and extremity.[16] Accused-appellant Mario Rafaels defense was alibi. He testified that on August 14, 1994, he left for Isabela upon learning from the mother of his common-law spouse Myrna

that one of their children was sick. He said that for the next two years he never left Isabela.[17] His claim was corroborated by his common-law wife Myrna, who testified that when these crimes were committed on August 28, 1994, accused-appellant was with her in Malanit, Isabela, which was more than 250 kilometers away from Quezon City. She claimed that Mario stayed on for two years working as a cook at the Mabuhay restaurant, of which she was the manager, until he was arrested sometime in September 1996.[18] On the other hand, accused-appellant Melchor Rafael admitted to the crimes but invoked the mitigating circumstances of passion and obfuscation on his part and provocation on the part of the victims. He claimed that in the afternoon of August 28, 1994, he was invited by Rogelio Rafael, whom he called Kuya Robert, to a drinking session at the latters house. He arrived there alone at around 7 oclock in the evening and found Rogelio Rafael drinking with two companions. He joined them and consumed four bottles of beer. Melchor claimed that Rogelios wife, Gloria Rafael, arrived while they were drinking and that the couple had a quarrel shortly thereafter. The couple then went outside. Gloria eventually returned and told him, Punyeta nandito ka na naman! (Son of a bitch, youre here again!) Then, she allegedly told him, Putang ina, wala na ba kayong magawa kundi ayain n[an]g ayain ang Kuya Robert mong uminom? (Son of a bitch, dont you have anything better to do than to keep inviting your Kuya Robert to drink?) Melchor said Alejandra Rafael arrived shortly, and she too had derogatory words for him, as she said, Nandito na naman ang patay-gutom. (The good-for-nothing is here again.) At this, accused-appellant claimed he lost control of himself (nagdilim ang paningin ko) and got hold of two sharp objects and struck Alejandra Rafael with them. When he saw Gloria Rafael running towards the door, he pursued her outside the house. He said that when Gloria tripped near the pigpen and fell on her back, he stabbed her with the knife [he] was holding. He then went into hiding. On cross-examination, Melchor denied he harbored a grudge against Gloria and Alejandra Rafael.[19] On December 8, 2000, the trial court rendered its decision, the dispositive portion of which states: WHEREFORE, finding accused Melchor Rafael and Mario Rafael guilty beyond reasonable doubt in each of the offenses charged, judgment is hereby rendered as follows: In Criminal Case No. Q94-59454 (for Murder), accused are hereby sentenced each to suffer the penalty of death and both are ordered to pay the heirs of Gloria Rafael the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity, Ninety Four Thousand Pesos (P94,000.00) as actual damages, Fifty Thousand Pesos (P50,000.00) as moral damages, and Twenty Thousand Pesos (P20,000.00) as exemplary damages. In Criminal Case No. Q94-59453 (for Frustrated Murder), accused are hereby sentenced each to suffer an indeterminate penalty of six (6) years and one (1) day of Prision Mayor, as MINIMUM, to fourteen (14) years, eight (8) months, and one (1) day of Reclusion Temporal, as MAXIMUM, and both are ordered to pay Alejandra Rafael the sum of

Thirty Six Thousand Five Hundred Fifty Pesos (P36,550.00) as actual damages and Twenty Thousand Pesos (P20,000.00) as exemplary damages. SO ORDERED.[20] The trial court held that the crimes were qualified by treachery and abuse of superior strength, although the latter had been absorbed by the former. It also appreciated the aggravating circumstance of dwelling with respect to the killing of Gloria Rafael. Hence this appeal. Accused-appellants make the following assignment of errors: I. THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANTS OF THE CRIMES OF MURDER AND FRUSTRATED MURDER DESPITE THE INCREDIBLE, INCONSISTENT, IF NOT CONTRADICTORY TESTIMON[IES] OF THE PROSECUTION WITNESSES. II. THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANTS OF THE CRIMES OF MURDER AND FRUSTRATED MURDER DESPITE THE FACT THAT ACCUSED-APPELLANTS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT.[21] First. Accused-appellants contend that Alejandra Rafael admitted in her testimony that she was at all times in the kitchen during the incident and, therefore, she could not have seen them help each other in attacking Gloria Rafael. Indeed, Alejandra Rafael testified as follows: ATTY. [Maximo B.] Usita [Counsel for Accused-Appellants]: Q You said that you [were] play[ing dead] and you were in fact in a squatting position, and you could not even remember how many times you were hacked and because of that condition, you did not notice what happened outside of the kitchen? A I only witnessed the hacking of Gloria inside the house. The incident that took place outside of the house, I am not aware.[22] However, accused-appellants conviction is based not only on the testimony of Alejandra Rafael but also on those of Rogelio Rafael and Leonilo Hamoy, both of whom witnessed Gloria Rafael being assaulted outside her residence. To be sure, a reading of Alejandra Rafaels testimony, particularly during her direct examination, shows that, due to either her nervousness or the manner of questioning by counsel or the harrowing subject of her testimony, she had difficulty narrating the events in chronological fashion. This difficulty is apparently the basis of accused-appellants contention that Alejandras testimony is inconsistent. They point out that Alejandra testified that she was not able to set the table because she saw all three accused standing outside the kitchen door, but she later claimed that she heard a commotion outside and thus opened the door, implying it had been closed beforehand. That would mean, according to accused-appellants, that she saw them through a closed door. This is not so. What really happened was that Alejandra heard a commotion outside while she was setting the table so she stopped what she was doing to open the door, and it was then that she saw accused-appellants. Thus, Alejandra said on cross-examination:

Q: A: Q: A: Q: A:

There claim. Turning now to the testimony of Leonilo Hamoy, accused-appellants find it surprising that he did not shout or do anything except watch [accused-appellants take] turns in hacking and stabbing Gloria Rafael. The contention has no merit. With his baby in his arms and the speed with which the events unfolded, Leonilo Hamoy could not be expected to act with such speed and composure as to be able to come to the aid of Gloria Rafael. In any case, as accused-appellants themselves concede, different people react differently in a given situation.[24] Indeed, the foregoing boils down to a question of credibility of the prosecution witnesses. But, with respect to this issue, the findings of the trial court will not be disturbed on appeal unless it be shown that it has plainly overlooked certain facts of substance which, if considered, might affect the result of the case.[25] This is because the trial court, having personally heard the witnesses and observed their deportment and manner of testifying during trial, is in a better position to decide the question of credibility. The Court thus finds no reason to doubt the accuracy of the identification by prosecution witnesses Alejandra Rafael and Leonilo Hamoy of accused-appellants as the assailants of Gloria Rafael. Indeed, the same is supported by Rogelio Rafaels account which, curiously, accused-appellants chose not to assail in this appeal. Against their positive identification of accused-appellants, Mario Rafaels defense of denial and alibi cannot prevail.[26] Second. Accused-appellants also contend that the prosecution failed to establish the presence of conspiracy in this case. Corollary to this, it must be noted that accusedappellant Melchor Rafael owns sole responsibility for the crimes, albeit invoking the mitigating circumstances of passion and obfuscation on his part and of provocation on the part of the victims. While in the appeal of Maximo Rafael (G.R. No. 123176), this Court found that there was no conspiracy between him and his two sons, herein accused-appellants, the conspiracy between the latter having been sufficiently and convincingly established in these cases. Accused-appellants contention that proof of a previous agreement to commit a crime is necessary to establish conspiracy is without any basis in law.[27] For direct proof of conspiracy is rarely found, as criminals do not write down their lawless

But before you saw the three (3) accused, you first heard a commotion, is it not? Yes, sir. And that is the reason why you proceeded to the kitchen door to verify the same, is it not? Yes, sir. When you saw the three (3) accused, the kitchen door was already opened? When I heard the sound, I went to the door immediately and I opened it, I saw the three (3) of them, and then, Melchor Rafael immediately hacked me. [23] is therefore no inconsistency on Alejandras testimony, as accused-appellants

plans and plots.[28] Certainly, conspiracy can be inferred from the acts of the assailants before, during, and after the commission of the crime.[29] In these cases, the testimonies of Rogelio Rafael, his mother Alejandra Rafael, and their neighbor Leonilo Hamoy clearly show that accused-appellants possessed a common design towards the accomplishment of the same unlawful purpose. Accused-appellants were both armed when they went to Rogelio Rafaels residence. When Gloria Rafael, who had been seriously wounded by Melchor, tried to run away, Mario went in pursuit of her. When accused-appellants caught up with Gloria, they took turns in stabbing and hacking her. Afterwards, accused-appellants both fled and went into hiding. Melchors claim as the sole assailant of the victim is apparently intended to shield his brother Mario from criminal liability, in the words of the trial court, to offer himself as a sacrificial lamb. In contrast to Melchor, however, the prosecution eyewitnesses do not appear to have any improper motive except to bring the perpetrators of the crimes to justice. Their testimonies, therefore, are entitled to full faith and credence.[30] Moreover, Melchors version of the events does not ring true because of the following circumstances: (1) When he said he lost control of himself (nagdilim ang paningin ko) because of the alleged derogatory remarks of the victims, he managed to grab not just one but two sharp objects, which were conveniently on hand, to enable him to immediately commence his attack on the victims. One cannot help suspecting that Melchor was really armed and that the two sharp objects correspond to his weapon and that of his brother Mario. (2) He testified that he lost control of himself so that he was not aware [he] was hacking Alejandra Rafael, yet he claimed he noticed Gloria running towards the door so that he stopped hacking Alejandra and ran after Gloria.[31] These do not appear to be the acts of a man who finds himself in the grip of passion and obfuscation but rather of one deliberately set on committing mayhem. Passion and obfuscation as a mitigating circumstance can only be appreciated only where there is an act both unlawful and sufficient to produce such condition of mind and the act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time during which the perpetrator might recover his moral equanimity.[32] In this case, however, there is no evidence other than Melchors self-serving testimony that he was provoked by being berated by the victims. Third. The attacks on Gloria and Alejandra Rafael were clearly qualified by treachery inasmuch as they were made without warning and by armed men against defenseless women. The two conditions for treachery, i.e., (1) that at the time of the attack, the victim was not in a position to defend himself and (2) that the offender consciously adopted the particular means, method, or form of attack employed by him,[33] have thus been met in this case. This qualifying circumstance of treachery absorbs the abuse of superior strength alleged in the informations so the latter need not be appreciated separately.[34] The crime committed as to Alejandra was clearly frustrated

murder considering that the number and severity of her wounds would have caused her death had she not been rushed to the hospital and received timely medical attention.[35] The trial court correctly held that evident premeditation, which was alleged in the information, was not established in this case. There is no proof of (a) the time when the accused determined to commit the crime; (b) an act of the accused manifestly indicating that the accused have clung to their determination; and (c) sufficient lapse of time between such determination and execution to allow them to reflect upon the consequences of their act.[36] On the other hand, the generic aggravating circumstance of dwelling, although proven, cannot be appreciated. To be sure, the two women were attacked inside their house.[37] Gloria Rafael was killed outside the house only because she ran outside to avoid further attack. The aggression began in her house though it ended outside of it.[38] However, as this Court held in People v. Gallego,[39] where, under R.A. No. 7659, the effect of a generic aggravating circumstance is to raise the penalty to death, such aggravating circumstance must be alleged in the information, otherwise it cannot be appreciated: The accused must . . . be afforded every opportunity to present his defense on an aggravating circumstance that would spell the difference between life and death in order for the Court to properly exercise extreme caution in reviewing the parties evidence. This, the accused can do only if he is apprised of the aggravating circumstance raising the penalty imposable upon him to death. . . The death sentence being irrevocable, we cannot allow the decision to take away life to hinge on the inadvertence or keenness of the accused in predicting what aggravating circumstance will be appreciated against him. Now, under the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, a generic aggravating circumstance will not be appreciated by the Court unless alleged in the information. Rule 110 provides in pertinent parts: SEC. 8. Designation of the offense The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. SEC. 9 Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. These provisions have been given retroactive effect[40] on the well-settled principle that statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage.[41] The penalty for frustrated murder under Art. 245, in relation to Arts. 50 and 61(2) of the Revised Penal Code, is reclusion temporal. There being no mitigating circumstance

and the aggravating circumstance of dwelling not being considered in view of the failure of the prosecution to allege the same in the information, the maximum of accusedappellants sentence for frustrated murder would fall within the range of reclusion temporal medium, i.e., fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, the minimum of the penalty is within the range of the penalty one degree lower than reclusion temporal, i.e., prision mayor, which is from six (6) years and one (1) day to twelve (12) years. The sentence imposed by the trial court is within the foregoing range and should therefore be affirmed. Although dwelling has not been alleged in the informations, it may nonetheless be considered for the purpose of determining liability of accused-appellants for exemplary damages in view of Art. 2230 of the Civil Code which provides that exemplary damages may be awarded as a part of the civil liability of the accused in criminal cases when the crime was committed with one or more aggravating circumstances. In line with current jurisprudence, therefore, accused-appellants are civilly liable for the following damages: (a) for the murder of Gloria Rafael P50,000.00 moral damages and P50,000.00 civil indemnity[42] and (b) for the frustrated murder of Alejandra Rafael P30,000.00 civil indemnity[43] and P50,000.00 moral damages.[44] In both cases, due to the presence of the qualifying circumstance of treachery and the aggravating circumstance of dwelling, an award of P25,000.00 in exemplary damages should also be awarded pursuant to Art. 2230 of the Civil Code.[45] The award of actual damages for funeral and medical expenses in both cases should, however, be deleted for lack of receipts or any documents evidencing the same, as required by Art. 2199 of the Civil Code. [46] However, nominal damages of ten thousand pesos (P10,000.00) may be awarded so that the victims rights may be recognized or vindicated. [47] WHEREFORE, the decision of the Regional Trial Court, Branch 217, Quezon City, finding accused-appellants Melchor and Mario Rafael guilty of the frustrated murder of Alejandra Rafael and the murder of Gloria Rafael, is AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. Q-94-59453 (frustrated murder), accused-appellants are ordered to pay jointly and severally the victim Alejandra Macaraeg-RafaelP30,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P10,000.00 as nominal damages. (2) In Criminal Case No. Q-94-59454 (murder), accused-appellants are sentenced to reclusion perpetua and ordered to pay jointly and severally the heirs of the victim Gloria Tuatis-Rafael P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P10,000.00 as nominal damages. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, Carpio, AustriaMartinez, and Corona, JJ., concur.

Per Judge Lydia Querubin Layosa. Records, p. 1. [3] Id., p. 4 [4] People v. Rafael, G.R. No. 123176, Oct. 13, 2000, 343 SCRA 97. Accused Maximo Rafael was likewise ordered to pay Alejandra Rafael P36,500.00 as actual damages and P20,000.00 as exemplary damages and the heirs of Gloria Tuatis-Rafael P50,000.00 as civil indemnity, P94,000.00 as actual damages, and P50,000.00 as moral damages. [5] See Accused-appellants Motion to Set Cases for Arraignment and Trial, dated July 11, 1997; Records, pp. 23-24. [6] Records, p. 41. [7] TSN (Alejandra Rafael), pp. 6-10, Sept. 9, 1998; Affidavit, dated Sept. 9, 1994, of Alejandra Rafael (Exh. B); Records, pp. 12-13. [8] Records, p. 155. [9] TSN, pp. 8-12, April 20, 1998; TSN, pp. 5-8, June 22, 1998. [10] Records, p. 156. Leonilo Hamoys affidavit was dated Aug. 29, 1994. [11] TSN, pp. 2-15, March 22, 1999; TSN, pp. 5-7, May 12, 1999. [12] Records, p. 157. [13] Id., p. 158. [14] Id., p. 159. [15] TSN, pp. 2-7, Sept. 8, 1999. [16] Records, p. 157. [17] TSN, pp. 1-5, May 10, 2000. [18] TSN, pp. 5-8, July 5, 2000. [19] TSN, pp. 2-14, June 7, 2000. [20] RTC Decision, pp. 6-7; Records, pp. 209-210. [21] Appellants Brief, p. 9; Rollo, p. 53. [22] TSN, p. 9, Sept. 9, 1998. [23] Id., p. 7. [24] Maandal v. People, G.R. No. 144113, June 28, 2001; People v. Naredo, 276 SCRA 489 (1997). [25] People v. Punsalan, G.R. No. 145475, Nov. 22, 2001; People v. Caares, G.R. No. 137243, Nov. 22, 2001. [26] People v. Francisco, G.R. No. 138022, Aug. 23, 2001; People v. Miana, G.R. No. 134565, Aug. 9, 2001; People v. Maandal, G.R. No. 144113, June 28, 2001. [27] People v. Estepano, 307 SCRA 701 (1999). [28] People v. Pagpaguitan, 315 SCRA 226 (1999). [29] People v. Templa, G.R. No. 121897, Aug. 16, 2001; People v. Hapa, G.R. No. 125698, July 19, 2001. [30] People v. Galvez, G.R. No. 136790, March 26, 2001.
[2]

[1]

TSN, p. 7, June 7, 2000. People v. Lobino, 317 SCRA 606 (1999). [33] People v. Reyes, G.R. Nos. 137494-95, Oct. 25, 2001. [34] People v. Arrojado, 350 SCRA 679 (2001). [35] Revised Penal Code, Art. 14. [36] People v. Cabug, G.R. No. 123149, March 27, 2001; People v. De la Tongga, 336 SCRA 687 (2000). [37] It appears that the house is also Alejandra Rafaels residence per her affidavit, dated September 9, 1994; Exh. B; Records, pp. 12-13. [38] See People v. Uycoque, 246 SCRA 769 (1995). [39] 338 SCRA 21 (2000). [40] See People v. Gano, G.R. No. 134373, Feb. 28, 2001; Tangan v. People, 352 SCRA 599 (2001); People v. Arrojado; 350 SCRA 679 (2001). [41] Ocampo v. Court of Appeals, 180 SCRA 27 (1989); Alday v. Camilon, 120 SCRA 521 (1983); People v. Sumulong, 77 Phil. 764 (1946). [42] E.g., People v. Punsalan, G.R. No. 145475, Nov. 22, 2001. [43] People v. Pacaa, 345 SCRA 72 (2000). [44] People v. Singh, et al., G.R. No. 129782, June 29, 2001. [45] People v. Catubig, G.R. No. 137842, Aug. 23, 2001. [46] The receipts evidencing such damages apparently were only presented in the trial of Maximo Rafael. [47] People v. Sanchez, et al., G.R. Nos. 121039-45, Oct. 18, 2001; People v. Candare, 333 SCRA 358 (2000).
[32]

[31]

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-40778 January 26, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARCILLO MANLOLO, accused-appellant, ROLLO GARCIA, accused, The Solicitor General for plaintiff-appellee. Montesa, Manikan & Associates for accused-appellant. PARAS, J.: This is an appeal by defendant-appellant Arcillo Manlolo from the judgment of the Court of First Instance, Branch XXX (Pasay City) (now known as the Regional Trial Court [RTC]) in Criminal Case No. 990-P, convicting the said defendant-appellant and one of his co-accused, Romulo Garcia, of the crime of homicide with two (2) aggravating circumstances of nighttime and band, sentencing them to suffer the penalty of reclusion perpetua, and ordering them to pay the heirs of the deceased Cipriano Manuel the sum of P12,000.00 jointly and severally. The information alleging conspiracy, charged defendant-appellant Arcillo Manlolo, Romulo Garcia and Alfonso Militante with the crime of homicide allegedly committed on May 7, 1972 with Cipriano Manuel as the victim. Trial was conducted by Judge Santiago Ranada who, however, died before judgment could be rendered in the case, Judge Jose C. Campos, Jr., who substituted for Judge Ranada, decided the case on the basis solely on what appeared on the record. One of the three accused, Alfonso Militante, was at-large and was never brought to trial, which therefore proceeded against defendant-appellant Manlolo and accused Garcia only. On December 12, 1974, appellant Arcillo Manlolo filed a notice of appeal (p. 256, Record). On December 19, 1974, Romulo Garcia filed a "Motion to Reconsider, Set Aside Decision, and/or Reopen the Case" on the following grounds: (a) That the evidence is insufficient to warrant the conviction of the accused; (b) That circumstances exist that necessitate clarification by witness so that the interest of justice may be subserved (p. 258, Rec.) The Motion to Reconsider, Set Aside Decision and/or to Reopen the case was granted by the trial court on December 20, 1974, in an order which reads as follows: Finding the reasons for the motion to set aside the decision and reopen the case, and it appearing that the case was tried by the former presiding Judge of Branch XXVII and raffled to this court rendering the decision and finding merit in the allegation that the testimonies of the two prosecution witnesses are conflicting, the motion is well taken.

Wherefore, the decision dated November 13, 1974 is withdrawn and set aside and the case is reopened for the purpose of re-taking of the testimony of witness Severino Perito and Felicito Mediona. It is understood that their former testimonies shall not in any case be taken into account during the direct or cross- examination of said witnesses at the hearing for retaking their testimonies. Let the date of hearing be set. SO ORDERED. (pp. 34, Plaintiff-Appellee's Brief) Because of this Order for a new trial for Romulo Garcia, the instant case concerns only the appeal of Arcillo Manlolo on the following issues. 1. Has conspiracy been established under the evidence of record? 2. Is defendant-appellant Manlolo criminally liable for the fatal stabbing of Cipriano Manuel? 3. May the aggravating circumstance of nighttime be appreciated although it was not shown that it was purposely sought to secure advantages? 4. In the absence of clear evidence that more than three armed men acted together, may the aggravating circumstance of band be appreciated? 5. Would it be correct to impose the penalty of reclusion perpetua for the crime of homicide simply because of the concurrence of two aggravating circumstances? 6. May aggravating circumstances provide at the trial but not alleged in the information be considered to qualify the killing to murder? 7. Should the Indeterminate Sentence Law be applied where the imposable penalty isreclusion temporal? The trial court found that: In the evening of May 7, 1972, Severino Perito, Felicito Mediona and Cipriano Manuel went to Villaruel Street, Pasay City, on the occasion of the local community fiesta as quests of Baltazar Manuel, a cousin of Cipriano. At about 11:30 in the evening of the same date when the three were on their way home, upon reaching the corner of Villaruel and Harrison Streets, someone threw a big rock at the group. The stone hit Perito on the head and as his companions came to assist him, a group of five persons coming from behind the police outpost rushed at the trio. One of these, the accused Romulo Garcia, stabbed Manuel hitting him on the chest, while the others started throwing rocks at the trio. At the same time, another person stabbed Perito and hit him on the right thigh. Upon seeing Manuel fall down, Perito and Mediona fled and ran towards the church to get a vehicle. When they were about to ride a jeep, a mobile unit of the Pasay City Police Department arrived. Perito and Mediona immediately reported to the policemen and the mobile unit proceeded to the scene of the crime and apprehended some of the accused. In the

meantime, Perito and Mediona brought the wounded Manuel at the Philippine General Hospital where he was operated on and treated. Upon his release from the operating room, Manuel was given by the attending physician a 50-50 chance to live. In spite of the medical assistance given at the PGH, Manuel died the next day. On May 8, at about 6:45 in the morning, Sgt. M. San Juan, an investigating officer at the Pasay City Police Department, took down the statement of Severino Perito (Exh. 1Manlolo). Earlier, at about 5:30 in the morning, same investigator took down the statement of Felicito Mediona (Exh. 2 Manlolo). The Necropsy Report No. N-72-885 issued by Dr. Orlando V. Salvador, Medico-Legal Officer, NBI, who took an autopsy on the body of the deceased Cipriano Manuel, stated as cause of death: shock secondary to stab wound of the chest. (pp. 98-100. Rollo) Both defendant-appellant Manlolo and accused Garcia did not deny their presence at the scene of the crime, but the two, who did not deny being with the group that assaulted the victim, denied having stabbed Manuel. This is a case wherein the two (2) defendants were accusing each other as the perpetrator of the crime and pointing to each other as the person who stabbed the deceased. Appellant denies conspiracy. According to appellant simultaneous action does not of itself demonstrate the concurrence of wills nor the unity of action and purpose which are the basis of the responsibility of two or more individuals and it is not enough that the attack be joint and simultaneous, it is necessary that the assailants be animated by one and the same purpose. Let Us now examine the facts to determine whether or not the accused or assailants were animated by one and the same purpose. It has been proved during the trial that all the accused were together as a group near the police outpost at the corner of Villaruel and Harrison Streets, that one of them threw stones at the trio composed of Perito, Mediona and Manuel as they were walking along the street; that one of the stones thrown by the group of the accused hit Perito on the head; that when Manuel and Mediona approached Perito to assist him, the group rushed at the trio, with Garcia and Manlolo armed with knives; that at the same time that Garcia and Manlolo were assaulting Manuel and his companions, the others were throwing rocks and stones at their victims. The evidence established that appellant was one of the five persons who simultaneously rushed and surrounded the victim and his companions. Appellant was one of those who stabbed the victim. He and his group followed the victim and his companions when they retreated, and they fled together from the scene of the crime after pursuing the victims. Where the accused cooperated with the other co-accused in bringing about the death of the victim and the evidence showed that by their very acts during and after the commission of the crime, they were acting in concert, they are guilty of conspiracy. When the accused by their acts aimed at the same object, one performing one part and another performing another part so as to complete it, with a view to the attainment of the same object, and their acts, though apparently independent were in fact concerted and cooperative,

indicating closeness of personal association, concerted action and concurrence of sentiments, the court will be justified in concluding that said defendants were engaged in conspiracy (People vs. Zea 130 SCRA 77), wherein the act of one is the act of all. (People vs. Cortez, 57 SCRA 308, 318). While the lower court did not state in its decision who stabbed the victim, the Court declared that "it had found that the two accused were participants in the assault and they were with the group that assaulted the victim." Both accused did not deny their presence at the scene of the crime. Neither did they deny having been with the group that assaulted the victims. Furthermore, the testimonies of the prosecution eyewitnesses, and Severino Espiritu (pp. 7 and 19, tsn., February 2, 1973), Felicito Mediona (pp. 18 and 43, tsn., February 21 1973) established that appellant stabbed the victim. The most damaging evidence was the testimony of Matilde Dalida, a defense witness, who unerringly pointed to the appellant as the one who stabbed the victim on the chest (pp. 13-14, tsn., February 27, 1973). Such testimony was corroborated by the testified of the other accused, Romulo Garcia, who also testimony fled that it was the appellant who stabbed the victim (pp. 1920, tsn., August 20, 1973). We now come to appellant's next assignment of error. While We fully concur that the aggravating circumstance of nighttime is not present, We however find that the aggravating circumstances of band and abuse of superior strength attended the commission of the crime. It has not been shown that accused or his companions purposely sought nighttime to better accomplish their purpose. On the other hand, it was shown by the evidence that more than five (pp. 18-19, tsn., February 22, 1973) or about ten persons (pp. 11- 12, tsn., February 21, 1973) attacked the victim and his companions by stabbing them (pp. 11, 37, and 44, tsn., February 2, 1973; pp. 18-24, tsn., February 21, 1973). Noteworthy is the fact that previous to this, the group of the accused threw stones at the victim and his companions. Apropos to this, We held in the case of People vs. Bautista (28 SCRA 184) that there is an intention to cause death if the accused throws a stone at the victims, thus including stone under the term arms in the phrase "more than 3 armed malefactors acted together". The evidence also shows that after Cipriano Manuel was stabbed, he fell. Severino Perito and Mediona then "rushed" Manuel away from the scene but the appellant and his companions followed the victim and his group. In following the victim, some of the companions of the appellant continued throwing stones at the victim and his companions (pp. 28-29, tsn., February 21, 1973; p. 39, tsn., February 21, 1973). Being superior in number and armed with knives and stones, appellant and his companions took advantage of their collective strength to overpower their relatively weaker victims who were not armed. It is therefore evident that the aggravating circumstances of band and abuse of superior strength were present in the commission of the crime. In another assignment of error, appellant also claims that "the Court ... erred in imposing upon defendant-appellant, Manlolo the penalty of Reclusion Perpetua in the crime of Homicide and in not applying the Indeterminate Sentence Law.' We find merit in his contention.

Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law in its maximum period. (Art. 64 par. 6 Revised Penal Code). WHEREFORE, We find accused-appellant Arcillo Manlolo GUILTY. For the crime of homicide, the Revised Penal Code provides for the penalty of reclusion temporal (Art. 249, Revised Penal Code), considering however the presence of two aggravating circumstances, and considering further the Indeterminate Sentence Law, We hereby imposed an indeterminate sentence of 8 years and 1 day ofprision mayor as minimum to 17 years, 4 months and 1 day of reclusion temporal as maximum, and to indemnify the heirs of the victim the sum of P30,000.00 conformably with established precedents. SO ORDERED. Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-35652 September 29, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMINIO TAACA and REGALADO TAACA, accused-appellants. The Solicitor General for plaintiff-appellee. Pablo B. Bulan counsel de oficio for accused-appellants. BIDIN, J. This is an appeal from the decision** of the then Circuit Criminal Court, First Judicial District, Tuguegarao, Cagayan, in Criminal Case No. I-100 promulgated on September 21, 1972, finding Herminio Taaca and Regalado Taaca guilty of the crime of murder and sentencing each of them to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased, the dispositive portion (Rollo, p. 40) of which reads, as follows: WHEREFORE, this Court finds the accused, Herminio Taaca y Arellano and Regalado Taaca y Barcena, after trial on the merits, GUILTY beyond reasonable doubt as co-principals in the crime of Murder, qualified by treachery, and in accordance with law, sentences each of them to suffer the penalty of RECLUSION PERPETUA, or life imprisonment, with the accessories of the law, to jointly and severally indemnify the heirs of the deceased Alfredo Gabuat in the sum of TWELVE THOUSAND PESOS (Pl2,000.00) plus EIGHT THOUSAND PESOS (P8,000.00) as moral and exemplary damages, without subsidiary imprisonment in case of insolvency, and to pay the costs of this action. The facts of the case as found by the trial court, are as follows: At about 5:30 p.m. of June 29,1971, the accused Herminio Taaca, and Regalado Taaca, together with Juanito Alipio and Adriano Cabael dropped at the house of the deceased victim, Alfredo Gabuat, at Barrio Tabbac, Buguey, Cagayan. Alipio and Cabael arrived first and the two Taacas came a half-hour later. They sat on benches in front of Gabuat's ricemill (camarin) and conversed with Gabuat (Exh. 'B-5'). The visitors asked for wine and cigarettes from Gabuat but when he answered that there were none in his store which had been closed a month before, they gave money to Gabuat's son, Jun, to buy them at another neighboring store owned by Narding (Exh. 'I'). After the purchaser arrived, the visitors including the two accused drank the wine (Cruz de Oro gin and coke) and smoked the cigarettes. The conversation was normal and ranged from lumber to asbestos roofing.

The wife of Alfredo Gabuat, Caridad Arellano, was then in the kitchen adjoining the main house preparing supper for the family. Before going there she told her 10-year-old son, Melvin, to stay and watch his father, because Gabuat had just killed one Santiago Tabisola less than a month before on June 20, 1971. Melvin sat on the stairs leading from the porch or balcony to the second storey and watched his father and the visitors. Around 6:00 p.m., Alipio and Cabael left and went towards the bridge along the Pattao-Bineg Road (Exh. "2"). The two Taacas, Herminio and Regalado, stayed behind and continued talking with Gabuat. Herminio was then carrying a gun, about one meter long, which he carried tucked to his right waist with the barrel protruding at the shoulder. Regalado was not carrying a firearm. Caridad Gabuat then called her husband to eat but he told her and the other children to go ahead. She then fed her other children excluding Melvin, and ate supper herself, after which she told her children to carry some plates of food to the main house for their father. She then went back to the kitchen to close the windows and doors thereat. Down in front of the camarin, the two Taacas bade goodbye to Gabuat and Gabuat then went up the five-rung stairs followed 1-2 meters behind by his son Melvin. When both had reached the balcony and while Gabuat was opening the door to the main house, Melvin heard a gun report and, looking back, saw Herminio at a nearby post pointing a gun in his father's direction. Herminio then ran away towards the bathroom where Regalado was hiding and they ran together towards the south with Regalado in the lead. When she heard the gun report, Caridad Gabuat was still in the kitchen and upon peeping out of a window saw Regalado running southwards with Herminio following him with a gun in his hands. She called for her husband and not receiving any answer, called for help. Her brothers then arrived and told her that her husband was dead already, after which she did not know what happened to her. Melvin, on the other hand, after seeing his father shot, heard him say in the Ilocano dialect 'be humble son' or 'be patient son', and after recovering from his shock jumped down from the balcony and ran to the house of his uncle. On the way he saw the two Taacas run southward." (Decision, pp. 6-8) On February 28, 1972, Herminio Taaca alias Terio and Regalado Taaca alias Dado, were charged with the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code in an information filed with the then Court of First Instance of Cagayan alleging: That on or about June 29, 1971 in the municipality of Buguey, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused Herminio Taaca alias Terio and Regalado Taaca alias Dado,

armed with a gun, conspiring together and helping each other, with intent to kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and feloniously assault, attack and shoot one Alfredo Gabuat, inflicting upon him gun shot wound on his body, which wound caused his death." (Record, p. 23). In view of the fact that the docket of the Court of First Instance of Cagayan was clogged at that time, the records of the case was transferred to the Circuit Criminal Court, First Judicial District, Tuguegarao, Cagayan together with the records of other criminal cases (Rollo, p. 24). Upon arraignment, the accused pleaded not guilty of the crime charged (Record, p. 30). The prosecution presented four (4) witnesses; Dr. Fortunato Tacuboy, Municipal Health Officer of Buguey, Cagayan; Jovito Macabangon, Chief of Police of Buguey; Caridad Arellano Gabuat, widow of the victim; and Melvin Gabuat, son of the victim. One of the principal witnesses of the prosecution, Caridad Arellano Gabuat, widow of the deceased, testified that at around 6:00-6:30 p.m. of June 29, 1971, Herminio Taaca and Regalado Taaca came to their house in Tabbac, Buguey, Cagayan. She pointed in court to the person seated at the right who identified himself as Terio (Herminio) Taaca and to the one seated at the left side, who gave his name as Regalado Taaca as the persons she was referring to. She was then at the kitchen when these visitors asked for wine. There being no wine in the house, her husband sent their son, Jun, to buy one bottle. She saw them drinking but not her husband. One of them also ordered for cigarettes. She went back to the kitchen and called her husband to eat but the latter told her and the children to go ahead because he was still conversing with the visitors. While they were having their meal, she instructed the children to bring the food of their father upstairs. She then closed the door and window of the house, but upon remembering that she forgot to cover the sugar, she started to open the door again. It was then that she heard a gunshot and she called for her husband. When he did not answer, she shouted for help. Her brothers came to her aid, and when she was told that her husband was already dead, she did not know anymore what happened to her. Asked how far was she from the two accused and her late husband when she heard the gun report, the witness requested for a piece of paper and made a sketch of the premises (Exhibit "B") indicating among others, the kitchen, the house, the doors of the house, the porch, the location of the chairs and benches. She likewise indicated the exact place where her husband was shot, the post behind which the accused were supposed to be hiding and from which witness saw them running, the place where witness was when she heard the gun report and the place where the two accused were drinking wine prior to the shooting. Caridad admitted that her husband killed Santiago Tabisula one month prior to his death (TSN, July 6, 1972, pp. 8-37). On cross examination, Caridad stated that aside from the two accused, they had other visitors. They were Juanito Alipio and Andring Cabael. But these two left earlier before the shooting occurred. She also stated that she saw a long gun tucked at the buttocks of

Terio Taaca when the latter was talking with her husband. She admitted, however, that she did not actually see the two accused shoot her husband (TSN, July 6, 1972, pp. 3846), and on clarificatory questions from the court, she admitted that she did not actually see her husband going upstairs to open the door of the house. It was her son who told her about it just after the incident. (lbid., pp. 53-54). On redirect examination, witness Caridad clarified that Herminio and Terio Taaca are one and the same person and that the other accused she was referring to was Regalado. She clarified further that she saw only one gun which was carried by Terio but accused Regalado was not holding or carrying any firearm (TSN, July 17,1972, pp. 52-53). The testimony of the widow (Caridad) was fully corroborated on all material points by her son, the eleven-year-old Melvin Gabuat, who saw the shooting because he was following behind the victim, his father. Melvin testified that he and his father were already in the balcony and his father was opening the door of their house when Terio pointed the gun at the latter and shot him. His father was not able to do anything except advise his son "Agsingsingpet ka barok" which means be humble. On the other hand, the two accused ran southward. Melvin positively identified in court the two accused, Terio and Regalado (TSN, July 10, 1972, pp. 27-34). On cross examination Melvin, like his mother, admitted that there were two other persons who arrived at their house besides the accused. They were Juanito Alipio and Andring Cabael but both of them left earlier than the accused, and before the incident occurred (TSN, July 10, 1972, pp. 36-37). On questions from the court, Melvin explained that he was immediately behind his father when the latter pushed the door of the balcony and while his father was pushing the door, he looked back and saw accused Herminio alias Terio shoot his father. From the testimony of the witness, it can be gathered that the visit of the two accused was originally a peaceful occasion, where his father and the two accused were sitting close together while the latter were drinking wine. Melvin was sitting at the stairs where he was instructed by his mother to stay and watch his father. He was listening to their conversation about the merits of asbestos roofing. Their voices were normal with no sign of quarreling. However, while the two accused were conversing with his father, he noticed that Terio had a gun, less than a meter in length, tucked at his waist with the barrel protruding (TSN, July 10, 1972, pp. 43-51). The witness demonstrated the relative positions of his father when he was shot and of the two accused and stated that he was at a distance of two meters from his father when the latter fell (lbid., pp. 51-52). More importantly, the testimonies of both mother and son were fully corroborated by Dr. Tacuboy, the Municipal Health Officer of Buguey, Cagayan since 1960, who conducted in Barrio Tabbac, a post-mortem examination on the body of the deceased Alfredo Gabuat which he reduced in writing and marked Exhibit "A", (Record, p. 2). His findings as stated in his medical certificate is that the victim suffered a "gunshot wound, through and through, entrance wound 0.3 inch in diameter, with collar contusion, tissues invaginated, located at the mid portion of the right scapular region, posterior portion of

the body; exit wound 0.75 inch in diameter, tissues everted, located at mid basal portion of the neck, anterior point: trajectory of the bullet from the back (right scapular region) direct obliquely upwards, forward to the left." He confirmed that the gunshot wound was caused by a rifle bullet and that the point of entry is at a lower place than the point of exit, which means that judging from the location of the entrance wound and the exit wound, the assailant at the time of the commission of the crime was probably below or at a lower elevation than the victim. His finding that the "trajectory of the bullet from the back (right scapular region) directed obliquely upwards, forward to the left," in relation to the body of the victim, means that the entrance of the wound was at the back scapular region lower and it is directed obliquely upwards to the left because it is deflected to the left side of the victim. It is possible, according to the witness, for the bullet prodding through the body of the victim, to hit a specific bone causing the trajectory of the bullet to run obliquely. In answer to questions of the Court, witness clarified that if there had been a deflection, there could have been a high velocity of the bullet. He probed the wound with a stick from the entrance to the exit and can say that there is but a slight deflection by hitting the small bones at the side of the vertebrae. The bullet which is a .30 caliber bullet of a rifle or carbine lodged on the beam of the house where it was extracted by the police. According to the witness, the cause of the victim's death was shock and hemorrhage due to gunshot wound and he could not have survived despite proper medical attention because death was sudden (TSN, July 6,1972, p. 4). On question by the Court, the witness further testified that the body of the victim was already inside the room of the house when he first saw it; that when the victim was shot he was facing east that he was not going upstairs, otherwise the wound would be on the left scapular; that the victim has no other injury; that the victim did not smell of any intoxicating liquor; and that the estimated time of the death of the victim based on his examination of the body was around 7:00 to 8:00 p.m. of June 29. He conducted the post mortem examination the next day at 11:45 a.m. for about forty minutes. (TSN, May 17, 1972, pp. 22-24). Jovito Macabangon testified that he was Chief of Police of Buguey, Cagayan on June 29, 1971. On that particular day, at 8:30 p.m. the death of Alfredo Gabuat was reported to his office by Councilman Arellano of Buguey, Cagayan. He proceeded immediately with Councilman Arellano and others to the scene of the crime which is at Tabbac, Buguey, Cagayan. He reached Tabbac on the same night and proceeded immediately to the house of the victim where they found the body of Alfredo Gabuat near the gate of the house. The body was lying flat. During his investigation, he found out that the victim had only one wound at the back protruding at the side of the neck. He was informed by the Councilman that it was the accused, Herminio Taaca and Regalado Taaca who shot Alfredo Gabuat. He invited the widow and the son to go to his office for further investigation. The investigation was conducted by Policeman Emilio Tadili (TSN, July 10, 1972, pp. 2-6).

The evidence for the defense consisted of the testimonies of Emilio Tadili, Juanito Alipio, Silvestre Belen, Adriano Cabael, Herminio Taaca and Regalado Taaca. Emilio Tadili, the police Sergeant of Buguey, Cagayan at the time, testified that on orders of his Chief of Police, he investigated individually, Juanito Alipio, Adriano Cabael, Herminio Taaca and Regalado Taaca who allegedly dropped at the house of the late Alfredo Gabuat before the latter was shot to death. All of them denied participation in the killing but his investigation was not reduced to writing. He likewise investigated the widow Caridad Arellano Gabuat and her son Melvin and his investigation of the two complainants were reduced to writing. He identified the sworn statement of Caridad Arellano and confirmed that he asked the question: "Do you know of any cause why they shot your husband?" and the answer of the widow was "I believe that those persons who liquidated my husband were hired by the relatives of the late Santiago Tabisola who was stabbed to death by my late husband sir." Afterwards he complied with the instructions of the Chief of Police to prepare the corresponding complaints against Herminio Taaca and Regalado Taaca and filed the complaint in court. He also went to Naguillian with several policemen to apprehend Berlino Caliso, whom he investigated at the police department. His investigation was reduced to writing which he identified in court and the contents of said testimony were relayed to the widow. He and other policemen exerted efforts to ascertain the whereabouts of Orlando Tactac and Tinoy Tabisola who were mentioned by Berlino Caliso as the real perpetrators of the killing. Tinoy Tabisola was at large and was not apprehended while Orlando Tactac whom they encountered at Barrio Mala-weste, evaded arrest. On the other hand, Juanito Alipio, Adriano Cabael, Herminio Taaca and Regalado Taaca, all denied participation in the crime and uniformly stated that on that day, they were in the house of Benito Alipio playing the game "pepito". They admitted, however, that later they all went to the house of the deceased where they drank wine, smoked cigarettes and talked but afterwards they all left and proceeded to go home. But at a distance of more or less one hundred meters away from the house of the deceased, they heard a gun report and then continuous firing. They continued walking thinking that the shots were coming from the house of Benito Alipio, forty meters away (TSN, July 17,1982, pp. 102-116; TSN, August 15,1972, pp. 202-229; TSN, August 25, 1972, pp. 182- 197; TSN, September 18, 1972, pp. 3- 11). Silvestre Belen, farmer and resident of Nagsabaran, Buguey, Cagayan testified that he is a native of Mabilbila, Santa, Ilocos Sur. He came to Nagsabaran because his brother Benito Belen, asked him to help in the latter's farm in Nagsabaran. He is residing with his brother in the house of Santiago Tabisola who is already dead and with whom they were working under tenancy relationship. In the afternoon of June 29, 1971, he was at Dagupan, Lallo, Cagayan which is three (3) kilometers from Nagsabaran, to visit a good friend. He left the place the following day, that is, on June 30,1971. On his way home to Nagsabaran from Dagupan, Lallo, he met Tinoy Tabisola, Orlando Tactac and Berlino Caliso. Berlino Caliso had a carbine. On July 1, 1971, he went back to Dagupan but returned to Nagsabaran in the evening of the

same day. On his way home, he met Orlando Tactac who informed him that Terio Taaca and Dado Taaca were in jail. He had known the accused Herminio Taaca and Regalado Taaca for less than three (3) months. He has not given any statement regarding the subject of his testimony because of fear of being liquidated (TSN, August 8, 1972, pp. 127-144.). The Circuit Criminal Court convicted the two accused Herminio Taaca and Regalado Taaca of the crime of Murder qualified by treachery, in a decision promulgated on September 21, 1972 (Rollo, p. 17). On October 9, 1972, they filed a notice of appeal from the judgment of conviction (Record, p. 110). On November 13, 1972, the Court resolved to appoint Atty. Pablo D. Bulan of Tuguegarao, Cagayan as counsel de oficio for appellants Herminio Taaca and Regalado Taaca to represent them in their appeal (Rollo, p. 51) in accordance with the request of said appellants made through the provincial warden of Cagayan (Rollo, p. 49). The brief for the defendants-appellants was filed with the Court on April 23, 1973 after four (4) requests for extension (Rollo, p. 68); while the brief for appellee was filed on September 4, 1973 (Rollo, p. 82). The Court resolved to consider the case submitted for decision on December 20, 1973, it appearing that appellants failed to file their reply brief within the period which expired on October 9, 1973 (Rollo, p. 88). On March 2, 1981, accused-appellant Herminio Taaca filed a motion to withdraw appeal alleging among others, that he had entirely lost interest in pursuing his appeal on account of his personal belief. (a) that he has already undergone years of preventive imprisonment; (b) that his appeal is not meritorious; and (c) that he humbly believes that the withdrawal of the appeal is more favorable and advantageous to himself (Rollo, p. 100). Acting on the said motion, the Court in a Resolution dated March 19, 1981 resolved to require aforesaid appellant's counsel and the Solicitor General to comment on said motion within ten (10) days from notice (Rollo, p. 10). The comment of the de officio counsel for the accused interposing no objection to said withdrawal, was submitted on August 10, 1981 (Rollo, pp. 106-108). The Court then resolved to require accused-appellant Herminio Taaca himself, to file a Reply to Comment of hisde officio counsel within ten (10) days from notice (Rollo, p. 110). On November 2, 1981, accused-appellant filed his Reply to Comment reiterating his manifestation to withdraw his appeal (Rollo, p. 11). On December 2, 1981, the Court resolved: (a) require the Clerk of Court to furnish the Solicitor General with copies of accused-appellant's motion to withdraw appeal, the comment of the counsel de officio and the reply of accused-appellant to the comment of his counsel de officio; and (b) the Solicitor General to file his comment on the motion to withdraw within the prescribed period (Rollo, p.114). The Comment of the Solicitor General, also interposing no objection to the motion to withdraw appeal filed by appellant Herminio Taaca was filed on January 21, 1982 (Rollo, p. 117). On February 1, 1982, this Court allowed accused-appellant, Herminio Taaca, to withdraw his appeal in this case (Rollo, p. 120) and the judgment became final and executory on

the same date insofar as he is concerned. Entry of judgment was made on February 26, 1982 (Rollo, p. 121). The remaining appellant is Regalado Taaca. Appellant sets forth the following assignments of errors I THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE UNRELIABLE, INCONSISTENT AND CONTRADICTORY TESTIMONIES OF THE TWO PRINCIPAL WITNESSES FOR THE PROSECUTION NAMELY, CARIDAD GABUAT AND MELVIN GABUAT TO THE SERIOUS PREJUDICE OF THE DEFENDANTS APPELLANTS' SUBSTANTIAL RIGHTS. II THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANTSAPPELLANTS IN SPITE OF THE FACT THAT THEIR IdENTIFICATION WAS NOT SUFFICIENTLY ESTABLISHED BY THE PROSECUTION AND THE TOTAL ABSENCE OF MOTIVE ON THEIR PART TO COMMIT THE CRIME IN QUESTION. III THE TRIAL COURT ERRED IN NOT ACQUITTING THE DEFENDANTS-APPELLANTS ON THE GROUND THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. The withdrawal of appeal by the co-accused shows acquiescence to the judgment of conviction and an affirmation of the fact of the crime charged (People v. Bundol, 143 SCRA 241 [1986]) or a realization that the evidence of the prosecution is overwhelming, and that of the defense, weak in the extreme (People v. Carreon y Viray, 99 SCRA 473 [1980]). As manifested by Herminio Taaca in his motion to withdraw appeal, one of the reasons for his withdrawal of the appeal is that it is not meritorious. In effect he has shown acquiescence to the correctness of his conviction and the fact of his having committed the offense of murder against the person of the deceased Alfredo Gabuat. The evidence of the prosecution point to Herminio Taaca as the one who treacherously shot the deceased while the latter was opening the main door of his house unaware of any intention on the part of his assailant to kill him. On the other hand, the complicity of appellant Regalado Taaca to the crime is premised on the alleged presence of conspiracy in the commission of the crime. The sole issue therefore, in this case, is whether or not the presence of conspiracy has been adequately proven by the prosecution. This Court has ruled that: A conspiracy in the statutory language exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The objective then on the part of the conspirators is to perform an act or omission punishable by law. What is required is assent to the perpetration of such a misdeed. That must be their intent. There is need in the language of Justice Mapa in the early leading case of United States v. Magcomot, a 1909 decision, for 'concurrence of wills' or 'unity

of action and purpose.' The usual phraseology employed in many of the later cases is 'common and joint purpose and design.' At times, reference is made to 'previous concert of criminal design.' Its manifestation could be shown by united and concerted action.' Thus a conspiracy need not be proved by direct evidence; it may be deducted from the mode and manner in which the offense was perpetrated. The conditions attending its commission and the acts executed may be indicative of a common design to accomplish a criminal purpose and objective. If, to use the apt words of Chief Justice Bengzon, there is a 'chain of circumstances' to that effect, then conspiracy has been established. If such be the case then, the act of one is the act of all the others involved and each is to be held to the same degree of liability as the others. So it has been our constant ruling from the 1905 decision of United States v. Mazu (People v. Pudpud, 39 SCRA 618 [1971]. Quoted in People v. Tiongson, 47 SCRA 279 [1972]; People v. Malilay, 63 SCRA 420 [1975]; People v. Ogapay, 66 SCRA 209 [1975]). The only eyewitness to the crime, Melvin, son of the deceased, testified on cross examination that four persons went to their house Juanito Alipio, Anding Cabael, Herminio Taaca and Regalado Taaca. When Juanito Alipio and Anding Cabael left, Herminio Taaca and appellant stayed behind and when Herminio Taaca fired at the deceased Alfredo Gabuat, appellant hid near their bathroom (TSN, July 10, 1972, pp. 3640). Melvin further testified that while Herminio Taaca was shooting his father, appellant was not doing anything. When Herminio Taaca ran, he also ran: COURT: When you looked back and you saw Terio shooting your father, what was Regalado doing? A None, sir. COURT How far was he (this Regalado) from Terio shooting his father? A (Witness pointed to a distance of more or less two meters.) COURT He was not armed. A None. sir. COURT Was he carrying anything? A None, sir. COURT When you saw Terio ran, what did Regalado do? A He also ran. COURT Did you hear Regalado say something while Terio was pointing his gun towards your father? A None, Sir. (TSN, July 10, 1972, p. 47). No evidence of conspiracy can be deduced from the above testimony of the sole eyewitness to the perpetration of the crime. There is no evidence of appellant's direct participation in the shooting of the deceased.

Although no formal agreement is necessary to establish conspiracy and said conspiracy may be inferred from the circumstances attending the commission of the crime, yet conspiracy like any other ingredient of the offense, must be established by clear and convincing evidence. There must be evidence of intentional participation in the transaction with a view to the furtherance of the common design and purpose (People v. Agda, 111 SCRA 330 [1982]). The same degree of proof necessary to establish the crime is required to establish a finding of criminal conspiracy, which is, proof beyond reasonable doubt (People v. Drilon, Jr., 123 SCRA 72 [1983]). It cannot be established by conjectures but by positive and conclusive evidence (People v. Martinez, 127 SCRA 260 [1984]). The fact that Herminio Taaca and appellant were together when the crime was committed is not proof of the existence of conspiracy to commit the crime (Francisco v. Court of Appeals, 122 SCRA 538 [1983]). Mere companionship does not establish conspiracy (People v. Sosing, 111 SCRA 368 [1982]). No conspiracy can be deduced where the alleged co-conspirators did not perform any overt act of shooting the victim although they were with the person who fired the gun (People v. Benavidez, 127 SCRA 188 [1984]). In the instant case, it is undisputed that appellant did not perform any overt act. The only incriminating evidence against appellant is that he was at the scene of the crime. The mere presence of appellant at the scene of the crime at the time of its commission is not by itself, however, sufficient to establish his criminal liability. Existence of conspiracy must be clearly and convincingly proven (People v. Sabilano, 132 SCRA 83 [1984]). The accused must be shown to have had guilty participation in the criminal design entertained by the slayer, and this presupposes knowledge on his part of such criminal design. It is not enough that there be a relation between the acts done by the principal or accomplice. It is furthermore necessary that the latter, with knowledge of the former's criminal intent should cooperate with moral or material aid in the consummation of the crime (People v. Drilon, Jr., supra; People v. Pimentel, 147 SCRA 25 [1987]). Conspiracy between two accused cannot be inferred by the mere fact that they have been drinking together prior to the shooting and run away in the same direction thereafter: more so where the other accused had no known motive to kill (People v. Realon, 99 SCRA 422 [1980]). The fact that the two accused left together after the shooting incident does not show conspiracy (People v. De Jesus, 118 SCRA 616 [1982]). Two circumstances which are indicative of the innocence of the appellant and his earnest desire to prove his innocence are: (a) his insistence during the trial of the case in the lower court to testify and be placed on the witness stand (TSN, August 25, 1972, pp. 149150); and (b) when his co-accused Herminio Taaca withdrew his appeal, appellant pursued this appeal to the end. The incriminating evidence against appellant Regalado Taaca is not sufficient to establish conspiracy. Without conspiracy, he cannot be considered liable as he had no direct participation in the commission of the crime. The presumption of innocence has not been successfully overwhelmed by evidence beyond reasonable doubt (People v. Agda, supra).

WHEREFORE, the decision of the then Circuit Criminal Court, First Judicial District, Tuguegarao, Cagayan in Criminal Case No. I-100 promulgated on September 21, 1972 is hereby modified as follows: the judgment of conviction against Regalado Taaca is Reversed and another one is entered Acquitting him on the ground of reasonable doubt, with costs de oficio. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Cortes, JJ., concur. Footnotes ** Penned by Judge Romeo M. Escareal.

SECOND DIVISION G.R. No. 90907-12 August 7, 1991 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, -versusCONRADO DE LA CRUZ, CRISOSTOMO GALAW-EY y CARPIO, and CRESENCIA GALAW-EY, accused-appellants. EDUARDO CASTILLO y FERNANDEZ, TITO SEGUIN y SORIANO, ZOSIMO POGUIZ y DALIGDIG, FIDEL BRAVO y TORIO, at large, accused. The Solicitor General for plaintiff-appellee. Arthur E. Galace for spouses Galaw-ey. Angel C. Baniqued for accused-appellant De la Cruz. SARMIENTO, J.:p This is an automatic review of the Decision 1 of the Regional Trial Court of Baguio and Benguet, first Judicial Region, Branch 8, La Trinidad Benguet, rendered in six criminal cases Nos. 84CR 0105 to 84-CR-0110, inclusive, imposing the penalties of four reclusion perpetuas for four murders, and two prision mayors to reclusion temporals for two frustrated murders upon the appellants Conrado de la Cruz and the spouses Crisostomo Galaw-ey y Carpio and Cresencia Galaw-ey. The facts are not in dispute. On August 10, 1984, at around 8:00 o'clock p.m., six (6) persons inside the Western Valley Restaurant, Km. 12, Shilan, La Trinidad, Benguet Province, were suddenly fired upon from outside of the restaurant. Four persons died as a result thereof, namely, Mayor Johnny Ebes of Kapangan Benguet; Paulino Lubos, the District Supervisor of Tublay School District, Tublay Benguet; Pfc. Walsie Bulasao of the La Trinidad Police Station, La Trinidad, Benguet; and Rufino Salbino, a school janitor at Balakbak Elementary School, Kapangan Benguet. Two others, namely, Pfc. Robert Bakidol, a policeman assigned with the office of the Deputy Regional Director for Administration, Camp Bado Dangwa, La Trinidad, Benguet, and Andres Pilo, a cook at the Western Valley Restaurant, were seriously injured. For the death of the four and the wounding of the two others, SPOUSES CRISOSTOMO GALAW-EY and CRESENCIA GALAW-EY, of Tomay, La Trinidad, Benguet, and CPL. CONRADO DE LA CRUZ, CPL. EDUARDO CASTILLO y FERNANDEZ, CPL. TITO SEGUIN y SORIANO, CPL. ZOSIMO POQUIZ y DALIGDIG, and CPL. FIDEL BRAVO y TORIO, all members of the Special Action Company, Philippine Constabulary, were charged in separate Informations for four counts of Murder, as defined and penalized under Article 248 of the Revised Penal Code, and for Frustrated

Murder on two counts, as defined and penalized under Article 248 in relation to Articles 6 and 250 of the Revised Penal Code. 2 The identical informations for the four murder cases filed on October 11, 1984, and docketed as Criminal Cases Nos. 84-CR-0105 to 0108, read as follows: That on or about the 10th day of August 1984, at Km. 12, Shilan Municipality of La Trinidad, Province of Benguet, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, with deliberate intent to kill and with treachery and evident premeditation did then and there willfully, unlawfully and feloniously attack, assault, and shoot ... with the use of a firearm thereby inflicting gunshot wounds on the vital parts of the body of the offended party, which directly caused his death immediately thereafter. That in the commission of this offense, the aggravating circumstance of nocturnity was present, the accused having purposely sought the same to insure the commission thereof. 3 The identical informations for the two frustrated murder cases, filed on October 12, 1984 and docketed as Criminal Cases Nos. 84-CR-0109 to 0110, allege the following: That on or about the 10th day of August 1984, at Km. 12, Shilan Municipality of La Trinidad, Province of Benguet, Philippines and within the jurisdiction of its Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, with deliberate intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shoot ... with a firearm, thereby inflicting gunshot wounds on vital parts of the body of the offended party which would ordinarily cause his death, thus performing all the acts of execution which would produce Murder as a consequence but which nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely medical attention given to the offended party which prevented his death. That in the commission of this offense, the aggravating circumstance of nocturnity was present, the accused having purposely sought the same to insure the commission thereof. 4 Of all the seven accused, only CPL. CONRADO DE LA CRUZ and SPOUSES CRISOSTOMO GALAW-EY and CRESENCIA GALAW-EY were arraigned and tried; all three pleaded "not guilty." The four co-accused soldiers, namely, Eduardo Castillo, Zosimo Poquiz, Tito Seguin, and Fidel Bravo were, and still are, at large after having been discharged from the military service because of their alleged involvement in the massacre of August 10, 1984. Thereafter the six cases were tried jointly against the three accused abovenamed.

In proving the guilt of the three accused-appellants, the prosecution relied solely on circumstantial evidence, as it did not present anybody who actually saw the shooting. In other words, there was no eyewitness to the crime who testified at the trial. The prosecution theorizes that a pistol-whipping incident that happened on April 10, 1984, involving Crisostomo Galaw-ey, one of the accused, and Roberto Bakidol, one of the victims, who, however, survived, provided the motive for the despicable massacre. The evidence for the prosecution shows that sometime in March 1984, Bakidol had an altercation with Crisostomo Galaw-ey's uncle in the Western Valley Restaurant where Bakidol was moonlighting as a security guard. At that altercation, Crisostomo punched Bakidol on the face. Afterwards, or in the evening of April 10, 1984, Bakidol and Crisostomo decided to patch up their differences inside the same restaurant. However, before they could talk, a stranger suddenly appeared, pulled out a gun and pistol-whipped Crisostomo on the face, causing him injuries. This incident, the prosecution proffers, is the reason why Crisostomo Galaw-ey nursed a grudge against Bakidol and wanted to get even with the latter that night of August 10, 1984. That is the motive of this ghastly killing rampage accepted by the trial court. The prosecution would also have us believe that there was conspiracy among all the seven accused ostensibly based on the following facts as testified to by the prosecution's witnesses: 1) All five co-accused soldiers, namely: Conrado dela Cruz, Tito Seguin, Fidel Bravo, Eduardo Castillo and Zosimo Poquiz arrived together in Baguio City from Bontoc Mt. Province carrying with them their respective Armalite Rifles. Before they could arrive in Baguio City, three of them, namely: Conrado de la Cruz, Tito Seguin and Zosimo Poquiz alighted at Tomay, La Trinidad, Benguet and met with spouses Crisostomo and Cresencia Galaw-ey at their residence at Tomay, La Trinidad. (One of the soldiers, Conrado de la Cruz, is the brother-in-law of Crisostomo Galaw-ey; he being the brother of the latter's wife Cresencia) 2) Immediately before the shooting incident on August 10, 1984, Spouses Crisostomo Galaw-ey and Cresencia Galaw-ey were in the vicinity of the Western Valley Restaurant, the scene of the crime. They were seen with their Ford Fiera jeepney with Plate No. AVC 778; 3) Near the Western Valley Restaurant and shortly before the sound of gunfire was heard, Armalite Rifles were seen inside the Ford Fiera jeepney of accused Spouses Crisostomo Galaw-ey and Cresencia Galawey. These Armalite rifles were later taken by three men from said Ford Fiera jeepney; 4) Three men with Armalite rifles were seen near the door of the Western Valley Restaurant immediately before and after gun shots rang out in said restaurant. One of the three men was identified as accused Conrado de la Cruz;

5) Twenty one (21) of the thirty empty shells recovered from the crime scene were fired from one of the five Armalite rifles of the five coaccused soldiers, particularly Armalite Rifle SN-RP-163677, which was issued to Eduardo Castillo. Likewise, two of the slugs recovered from the body of Pfc. Walsie Bulasao and one of the slugs recovered from the body of Pfc. Roberto Bakidol were fired from the same Armalite Rifle; 6) Spouses Crisostomo Galaw-ey and Cresencia Galaw-ey arrived at the wake of Comising Bogatan, their neighbor, at 9:00 P.M., August 10, 1984; 7) Accused Crisostomo Galaw-ey was intercepted at the Camp Dangwa Checkpoint, La Trinidad, Benguet on board his Ford Fiera jitney at 4:00 A.M., August 11, 1984 with three armed soldiers aboard; 8) The five co-accused soldiers were discharged from military service on October 5, 1984. None of them protested nor contested the order for their dishonorable discharge from military service; 9) All of the accused were nowhere to be found shortly after the shooting incident on August 10, 1984. 5 On the other hand, the accused put up the defenses of denial and alibi, which may be summarized as follows: The accused Crisostomo Galaw-ey denies that there is "bad blood" between him and Robert Bakidol because whatever misunderstanding they had was settled amicably on the night of April 10, 1984, four months before the killings. As a matter of fact, they even drank together up to 1:00 o'clock a.m. with Crisostomo paying for the drinks. After that, they greeted each other whenever they met in the streets. The defense does not deny the arrival of the five accused PC soldiers in La Trinidad, Benguet at about 3:00 o'clock p.m. on August 10, 1984. It, however, avows that the three of the five soldiers went to the house of the Galaw-eys to borrow fare money from Cresencia Galaw-ey, the older sister of one of the soldiers, Conrado de la Cruz. Afterwards, Crisostomo, upon request of Conrado, his brother-in-law, brought him and his companions to Baguio City. (The municipality of Trinidad is contiguous to Baguio City). They parted ways at the Dangwa Terminal in Baguio City, with Conrado riding in Crisostomo's jitney back to the Galaw-ey's house in Tomay, La Trinidad, to meet his wife there. The Galaw-ey spouses admitted that they were sitting in their Ford Fiera jitney which was parked in front of the Morris Restaurant, which is near the Western Valley Restaurant, more or less an hour before the shooting incident. But they explained their presence at that place as part of their daily routine as vegetable merchants. Cresencia explained, however, that in the afternoon of August 10, 1984, they were to meet vegetable suppliers in Acop, Tublay Benguet. While passing by Morris Restaurant, Crisostomo realized that he did not have enough gasoline, so, he decided to go back to the family residence. In the process of making a U-turn, a front wheel of the jeepney got stuck in a canal near the Morris Restaurant. Two male teenagers, one of them the

prosecution witness Johnson Milo, helped push the jeepney out of the canal. Then, Crisostomo and his wife proceeded homeward to join the wake of a deceased neighbor. Crisostomo Galaw-ey denied that the two teenagers, Johnson Milo and his companion, Marcos Recana, rode with them in his Ford Fiera jitney that late afternoon of August 10, 1984; not having gotten inside the jeepney at all, they could not have stepped on what Milo testified as "scrap irons" that turned out to be armalite rifles. He also denied carrying soldier-passengers, emphasizing that it was only he and his wife inside the jitney contrary to the version of Milo and Recana. Crisostomo also testified that he and his wife were in the market of Baguio City at 4:30 o'clock a.m. on August 11, 1984, thereby refuting the testimony of Pat. Joseph Basquial that he (Crisostomo) was seen at the Camp Dangwa checkpoint with his Ford Fiera jitney with uniformed soldiers as passengers that early morning of the said date. Crisostomo denied on the witness stand seeing again the soldier-companions of Conrado de la Cruz after he had taken them to Baguio City on August 10, 1984. On the issue of flight, the three appellants explained their absence from Baguio and La Trinidad more or less a month after the massacre of August 10, 1984 was due to fear for their lives and safety in the wake of rumors and threats of their being "salvaged." On January 12, 1985, however, Crisostomo Galaw-ey and his wife decided to surrender to the authorities to clear their names once and for all. On his part, accused Conrado de la Cruz testified that in October 1984, he learned that he and his four soldier-companions had been discharged from the military service on account of their being suspects in the shooting incident at the Western Valley Restaurant. While he was in Sultan Kudarat in Mindanao, de la Cruz met Pat. Benjamin Untalan a member of the Baguio City Police Force who was supposed to arrest him, and he went with him. 6 On September 15, 1989, the trial court rendered its Decision 7 convicting all the three accused-appellants as charged, all as co-principals in four (4) counts of Murder and two (2) cases of Frustrated Murder, the dispositive portion of which states: WHEREFORE, judgment is hereby rendered in 1) Criminal Case No. 84-CR-0105, finding each of the accused Conrado de la Cruz, Crisostomo Galaw-ey and Cresencia Galaw-ey guilty beyond reasonable doubt of the came of Murder, defined and penalized under Article 248, Revised Penal Code, and hereby sentencing each of said accused to suffer the penalty of imprisonment of Reclusion Perpetua and to indemnity the heirs of the late District Supervisor Paulino Lubos the amounts of P30,000 for his death; P73,734.00 for loss of earning capacity; P100,000.00 moral damages; P50,000.00 exemplary damages; P50,000.00 attorney's fee; and to pay costs; 2) Criminal Case No. 84-CR-0106, finding each of the accused Conrado de la Cruz, Crisostomo Galaw-ey and Cresencia Galaw-ey guilty beyond reasonable doubt of the crime of Murder, defined and penalized under Article 248, Revised Penal Code, and hereby sentencing each of them to

suffer the penalty of imprisonment of Reclusion Perpetua and to indemnify the heirs of the late Mayor Johnny Ebes in the amounts of P30,000.00 for his death; P108,480.00 for loss of earning capacity; P100,000.00 for moral damages; P50,000.00 for exemplary damages and P50,000.00 attorney's fees; and to pay costs. 3) Criminal Case No. 84-CR-0107, finding each of the accused Conrado de la Cruz, Crisostomo Galaw-ey and Cresencia Galaw-ey guilty beyond reasonable doubt of the crime of Murder, defined and penalized under Article 248, Revised Penal Code, and hereby sentencing each of them to suffer the penalty of imprisonment of Reclusion Perpetua and to indemnify the heirs of the late Pfc. Walsie Bulasao in the amounts of P30,000.00 for his death; P46,512.00 for loss of earning capacity; P80,000.00 for moral damages; P50,000.00 for exemplary damages; P10,000.00 attorney's fees; and to pay costs; 4) Criminal Case No. 84-CR-0108, finding each of the accused Conrado de la Cruz, Crisostomo Galaw-ey and Cresencia Galaw-ey guilty beyond reasonable doubt of the crime of Murder, defined and penalized under Article 248, Revised Penal Code, and hereby sentencing each of them to suffer the penalty of imprisonment of Reclusion Perpetua and to indemnify the heirs of the late Rufino Salbino in the amount of P30,000.00 for his death; P36,632.00 for loss of earning capacity P50,000.00 for moral damages; P50,000.00 for exemplary damages; P5,000.00 attorney's fees; and to pay costs; 5) Criminal Case No. 84-CR-0109, finding each of the accused Conrado de la Cruz, Crisostomo Galaw-ey and Cresencia Galaw-ey guilty beyond reasonable doubt of the crime of Frustrated Murder, defined and penalized under Revised Penal Code, and hereby sentencing each of them under the Indeterminate Sentence Law to suffer the penalty of imprisonment of from Ten (10) Years of Prision Mayor to Eighteen (18) Years of Reclusion Temporal, and to indemnify Andres Pil-o in the amount of P1,000.00 nominal damages, and to pay costs; 6) Criminal Case No. 84-CR-0110, finding each of the accused Conrado dela Cruz, Crisostomo Galaw-ey and Cresencia Galaw-ey guilty beyond reasonable doubt of the Crime of Frustrated Murder, defined and penalized under Article 248 in connection with Article 6, Revised Penal Code, and hereby sentencing each of them under the Indeterminate Sentence Law to suffer the penalty of imprisonment of from Ten (10) Years of Prision Mayor to Eighteen (18) Years of Reclusion Temporal, and to indemnify Robert Bakidol in the amount of P1,000.00 nominal damages; and to pay costs; SO ORDERED. 8

Conrado de la Cruz appealed the Decision, assigning the following as the errors allegedly committed by the trial court: (1) The lower court erred in not finding the evidence of the prosecution substantially insufficient to establish the guilt of accused-appellant Conrado dela Cruz beyond reasonable doubt in the cases at bar; (2) The lower court erred in not giving weight to the evidence of the accused-appellant Conrado de la Cruz. 9 The spouses Crisostomo and Cresencia Galaw-ey likewise appealed, submitting in a separate Appellants' Brief the following assignment of errors: (i) The trial court erred in finding that the accused-appellants Spouses Crisostomo and Cresencia Galaw-ey conspired with the perpetrators in committing the crime charged; (ii) The trial court erred in finding that there was circumstantial evidence sufficient to establish the accused-appellants Spouses Galaw-ey's guilty beyond reasonable doubt; (iii) The trial court erred in taking into consideration in its judgment the alleged "flight" of the accused-appellants Spouses Galaw-ey; (iv) The trial court erred in not considering that the accused-appellants Spouses Galaw-ey had no possible motive in committing the acts charged against them; (v) The trial court erred in not taking [into] consideration the voluntary surrender of the accused-appellants Spouses Galaw-ey; (vi) The trial court erred in not applying the provisions of Article 48, Revised Penal Code. 10 We find both appeals meritorious. It is the avowed policy of the law that "before an accused is convicted of a crime, his guilt must be proved beyond reasonable doubt and until thus proven guilty, he is presumed innocent. The burden of proof rests upon the prosecution and unless the State succeeds in proving his guilt, the presumption of innocence in favor of the accused applies. 11 This policy is embodied in the Bill of Rights, Sec. 14(2) of the 1987 Constitution, which states that "in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved." Only by proof beyond reasonable doubt which requires moral certainly, a "certainty that convinces and satisfies the reason and conscience of those who are to act upon it, may the presumption of innocence be overcome. 12 The prosecution relied solely, in all these six cases, on circumstantial evidence to prove the guilt of the accused-appellants. There is nothing wrong with that. In order, however, to sustain a conviction by bare circumstantial evidence, three requisites explicitly provided by law must concur, to wit: (1) There is more than one circumstance (2) The facts from which the inferences are derived are proven and

(3) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt.13 All these requisites must be complied with if circumstantial evidence is to be the basis for proof beyond reasonable doubt. Every circumstance in favor of innocence must be considered in a criminal case; the strongest suspicion must not be allowed to sway judgment against the accused. 14 For the hard and fast rule in evidence is that "before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the crime. 15 In the case at bar, only one witness, Meriam Agbuya, identified Conrado de la Cruz as one of the three persons with "long guns" at the scene of the shooting. While it is true that the testimony of only one witness, if credible and positive, and satisfies the court beyond reasonable doubt, is sufficient to convict, 16 this is not so in the instant case. The narration of Meriam does not meet the requirements of the testimony of a true eyewitness as the trial court ruled, finding only as it did a circumstantial case against the appellants. But whatever it is, be that of an eyewitness or that of a mere vital witness, on the circumstances of the shooting leading to the identification of the "soldier" who held the "smoking gun," so to speak, Meriam's testimony at the trial loses weight and importance when we consider the other evidence on record. First, Meriam Agbuya did not mention that she recognized one of the accused when the police took her statement 17barely three days after the incident, her reason being that "I (she) was not asked." It was only during the trial, or on April 23, 1985, that she implicated appellant Conrado in the killing of August 10, 1984. This suppression for more than eight months of her obligation to speak out to the police authorities the whole truth renders her subsequent identification of Conrado dubious, to say the least. We have held that the silence of an alleged eyewitness for several weeks renders his credibility doubtful ... . The long delay in reporting a crime or its author to the authorities not caused by threat, intimidation, or coercion, renders the testimony untruthful. 18 Meriam was never threatened, intimidated, nor coerced not to divulge the identity of accused de la Cruz as one of the three soldiers at the scene of the massacre immediately before and after it happened. She simply was not asked. But this is not a valid reason to withhold the identity of a probable perpetrator of such slaughter. It behooves an eyewitness to the crime to report to the authorities not only its commission but more importantly, the identity of all the criminals, so that the ends of justice may be served. This is especially so when said "eyewitness" is being investigated by the police authorities regarding the same. Failure to make such a full disclosure renders the later revelation or sworn statement doubtful, at best, and can not, of course, serve as a basis of guilt beyond reasonable doubt. Second, during the hearing on April 23, 1985, Meriam Agbuya testified on matters that happened immediately before and immediately after the shooting in the Western Valley Restaurant. Thus: xxx xxx xxx

(Before the shooting incident) Q You said that you were standing at the door or [sic] your room, what can you see from the place you are standing, if any? A The three male persons holding guns. xxx xxx xxx Q When you saw them, they were walking? A Yes, Your Honor. Q They were following one another or were they walking side by side with each other? A They were walking side by side, Your Honor. xxx xxx xxx Q What did you see of them? Their right side, their left side, front side or their back? A Their front, Your Honor. (After the shooting) Q Now, what did you do if you did anything when you heard the gunshots? A I went to our room, sir. Q Before you went to your room, will you tell this Court if you saw anything before you entered ? A After the gunfire and before I entered our room, I saw one of them look back. Q Who is that one of them you are referring to? A The three male persons who were running, sir. xxx xxx xxx Q Now will you tell this Court if you know any of these three persons, if you know them personally ? A There was, sir. Q You know one of them, two of them or the three of them? A I only know one because they [sic] look [sic] back, I saw his face, Your Honor. xxx xxx xxx Q Was that the first time you saw his face, or there were previous occasions that you saw his face? A None. Your Honor. xxx xxx xxx Q If that person is in the courtroom, can you identify that person? A Yes, sir. xxx xxx xxx

Mr. Bias: ... Witness ... pointed to the person of the accused Conrado de la Cruz. 19 The foregoing is the nearest of an eyewitness account in the entire record of this case. At the same time, we find it incredulous that the witness Meriam Agbuya was able to recognize Conrado de la Cruz after the shooting because the latter allegedly looked back while running away from the restaurant. But she did not recognize him before the shooting while de la Cruz and two other soldiers were allegedly walking towards the restaurant facing her. We find this to be inconsistent with ordinary human experience wherein it would be, easier to recognize a person when one is calm than when one is frightened and excited after hearing a fusillade of gunshots. Third, Meriam Agbuya testified that the three soldiers she saw walking to and running away from the Western Valley Restaurant where the shooting took place were wearing yellow T-shirts. 20 This was, however, contradicted by two other prosecution witnesses, Johnson Milo and Joseph Basquial, who testified that the soldiers were in fatigue uniform.21 Fourth, Ms. Agbuya also testified on direct examination that before the shooting occurred, she was at the door of her room in a building separate from, but near, the Western Valley Restaurant. It was there that she saw three male soldiers holding armalite rifles parallel to the ground walking towards the restaurant. 22 However, in her sworn statement 23 she said that she was standing at the door of the girl's toilet which was in another building, when three male soldiers in yellow T-shirts carrying long guns slung on their shoulders walked past her towards the restaurant. The lower court disregarded the above inconsistencies in the testimony of Meriam Agbuya on the ground of her being of tender age, i.e. 18 years old. But 18 years of age is not a tender age. In fact, 18 is now the age of majority. In any event, even if some of the above-mentioned inconsistencies may be considered minor, they nevertheless put in doubt not only the honesty and candor of the said witness, but her believability. As we said, such testimony fails to satisfy the criterion of moral certainty. We can not also discount the fact that, according to Patrolman Joseph Basquial, a prosecution witness and a brother-in-arms of two of the victims, the deceased Pfc. Walsie Bulasao and the wounded Pfc. Robert Bakidol (who also testified for the prosecution), the appellant Conrado de la Cruz was not among the three soldiers inside the jeepney of the other appellant Crisostomo Galaw-ey in the early morning of August 11, 1984 when he (Basquial) intercepted said jeepney at the gate of Camp Dangwa. Only Fidel Bravo, Eduardo Castillo, and Tito Seguin were identified by him to be riding in the jitney with Crisostomo. Thus, during the hearing on March 12, 1985, Patrolman Basquial testified as follows: xxx xxx xxx A At about past 4:30 o'clock in the morning, more or less, sir, I stopped a Ford Fiera vehicle driven by one Crisostomo Galaw-ey and I stopped it, sir.

Q What did you see, if any, when you stopped that motor vehicle? A I approached it from the rear and using my flashlight I saw three men wearing fatigue uniform, sir. xxx xxx xxx Q You said you saw three men in fatigue. Where in the vehicle did you see them, was it in front or at the back? A At the back, sir, two were sitted (sic) at my right side and the other one was sitted (sic) at my left with a rifle when I approached them from the rear, sir. xxx xxx xxx Q How about the front seat, was there anybody there? A I noticed only the driver, sir. xxx xxx xxx Q Who was driving? A Crisostomo Galaw-ey. xxx xxx xxx Q You mentioned three PC Soldiers that you saw that morning. Did you have opportunity to meet with them after that date again? A Yes, sir. Q Where was that? A At the La Trinidad Police Station. That was more or less one week later after the incident at the Western Valley Restaurant. xxx xxx xxx Q What did you do when Julius Binayan was investigating these PC Soldiers? A I asked Sgt. Binayan what where the names of these PC Soldiers because they were the ones whom I saw when I apprehended the vehicle of Crisostomo Galaw-ey at the gate of Camp Dangwa sir. Q What did Julius Binayan say? A He told me that they are Fidel Bravo, Eduardo Castillo and Tito Seguin. 24 Without the positive identification of the accused-appellant Conrado de la Cruz as one of the perpetrators of the crime, the constitutional presumption of innocence in his favor, stands unrebutted. As we have earlier emphasized, a defendant in a criminal case must always be presumed innocent until the contrary is proven. When his culpability is not satisfactorily shown, or in case of reasonable doubt, he shall have the right to be acquitted, though his innocence be doubted. 25 It is better to acquit a dozen guilty

criminals than let an innocent person suffer unjustly, so it has been said and rightly so. Of course, the ideal would be for everyone to get his or her just deserts. On the criminal conspiracy found by the trial court, the paucity of evidence is glaring. To prove the alleged conspiracy by and among the Galaw-eys and their co-accused five soldiers, the prosecution would rely so much on the fact that the former and their Ford Fiera jeepney were "sighted" near the Western Valley Restaurant a few minutes before and after the shooting incident. However, the presence of the Galaw-eys and their Ford Fiera jitney near the scene of the crime is not by itself sufficient to establish their criminal liability. In Saavedra 26 we said that "presence at the scene of the crime, without more, does not imply conspiracy." Well-settled is the rule that conspiracy presupposes the existence of a pre-conceived plan or agreement and in order to establish the existence of such circumstance, it is not enough that the persons supposedly engaged or connected with the same be present when the crime was perpetrated. There must be a logical relationship between the commission of the crime and the supposed conspirators, evidencing a clear and more intimate connection between and among the latter, such as by their overt acts committed in pursuance of a common design . ... 27 Neither the fact that one of the soldiers, Conrado, is the younger brother of Cresencia, nor that he and his soldier companions went to her house that afternoon of August 10, 1984, would indicate his and the Galaw-eys' participation in the criminal design. More is required to fully support the prosecution's theory that the three appellants were united in pursuing a common unlawful purpose and that they, or any one of them fired the fatal fusillade that killed four victims and seriously wounded two others. The foregoing indicia of an alleged conspiracy relied upon by the prosecution, even all together, do not constitute proof beyond reasonable doubt. Having fallen short of that quantum necessary to establish the accused-appellants' guilt, the prosecution's case must fall. Only if we could arrive at a conclusion that the crime had been committed precisely by the persons on trial under the exacting test of proof beyond reasonable doubt should the sentence be one of conviction. Every circumstance favoring their innocence must be duly taken into account. The proof against the appellants must survive the test of reason. The conscience must be satisfied that on the appellants could be laid the responsibility for the offense charged. Moral certainty is a must. 28 The prosecution's case against the appellants is cracked by the actual ballistic examinations (Exhibits "C" and "D") of the firearms, slugs, and empty shells submitted to the National Bureau of Investigation (NBI). The findings of that Government office known for its competence, reliability, and fairness indubitably showed that the armalite rifle belonging to Conrado de la Cruz did not fire any of the shells and slugs submitted in evidence. Instead, it was the firearm belonging to accused Eduardo Castillo (Exhibit "G") bearing Serial No. 163677 that was found to have been the gun used in the shooting where four (4) men died and two (2) others were seriously injured. The NBI so declared positively and definitely. Thus, the NBI Ballistician, Rogelio G. Mumar, testified, on cross-examination: xxx xxx xxx

Q You have examined 30 shells recovered from the scene of the crime, am I correct? A Yes, sir. Q And from the examination of the 30 shells, you have determined that at least some of those 30 shells were fired from Exhibit "G" ? A Yes, sir, you are right. Q And you have also examined Exhibit "K" which are certain slugs, am I correct? A Those are fragments. Q And you have also determined that some of these fragments were fired from Exhibit "G"? A Yes, sir, you are right. Q But apart from Exhibit "G", which is firearm with Serial No. 163677 recovered from Castillo, you have not made any finding that any of the shells were fired from any other armalite rifle? A Yes, you are right. 29 Assuming ex gratia argumenti that Eduardo Castillo fired the fatal shots, such fact would be of no moment and will not help the prosecution's case as it had not proved beyond reasonable doubt that there was a conspiracy among the seven accused. Absent the same, each of the accused can not be held liable for the act or acts of his co-accused. The trial court has also declared that "a motive has indeed, been established by the prosecution." To this end, it sustained the conclusion of the prosecution that: ... the accused were moved by vengeance in committing the criminal acts for which they stand charged. It was too hurting for the Galaw-ey couple, most especially to Crisostomo Galaw-ey to be pistol whipped and injured at a time when he was ready to settle an earlier incident as only a "small matter," the fire of vengeance was lit them then and there. 30 We do not agree. If it was, indeed, true that Crisostomo Galaw-ey wanted to exact vengeance from Robert Bakidol that fateful night of August 10, 1984, why the massacre of several people, including innocent by-standers, among them highly respected members of the community, one a town mayor and another a school district supervisor? Why was Bakidol not killed, but only wounded not even very seriously, if indeed, he was the apple of Crisostomo's vengeful eyes Bakidol could have been an easy target by any of the soldiers-accused especially with the use of an armalite rifle which is an accurate firing weapon. And to think that there were three soldiers firing simultaneously at him (Bakidol) each with an armalite rifle, how could have they missed shattering Bakidol's body and "blowing him to kingdom come" if he was really the target? "Moonlighting" as a security guard in the Western Valley Restaurant (where he even has his own quarters, he said he was a boarder), it would have been easy to isolate Bakidol outside the said restaurant where he is supposed to stand on guard. It puzzles the Court

why two high government officials, innocent ones at that, were included in the carnage. Could either, or both, of them be the real targets for a variety of reasons? The prosecution has not provided the missing pieces that would successfully weave its theory of revenge against Bakidol. It was not even Bakidol who pistol-whipped Crisostomo Galaw-ey. So, why should the latter harbor rancor in his heart against the former? Although proof of motive is not indispensable to conviction, yet a void in the evidence in this respect discloses a weakness in the case for the prosecutions. 31 As early as People v. del Rosario Murray, 32 we have said that where the identity of a person accused of having committed a crime is in dispute, the motive that may have compelled its commission is very relevant. The accused-appellants' defense of alibi is weak, as is the general rule in the case of alibis. But it is well-settled that the prosecution must rely on the strength of its own evidence and not rest on the weakness of that of the defense. 33Further, "where the identification of the accused as the author of the crime is unreliable, his defense of alibi assumes importance and may be given weight. 34 In view of our foregoing disquisition, all other issues raised in this appeal have become academic. WHEREFORE, the appealed decision of the Regional Trial Court is REVERSED and the accused-appellants are hereby ACQUITTED on reasonable doubt. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur. Endnotes 1 People v. de la Cruz, et al., "Regional Trial Court of Baguio and Benguet, First Judicial Region, Branch 8, La Trinidad, Benguet, September 15.1989; Nicodemo T. Fetri Presiding Judge. 2 Appellant's Brief for Spouses Crisostomo and Cresencia Galaw-ey; Rollo, 298-299. 3 Rollo 41-48. 4 Rollo, 49-52. 5 Consolidated Brief for the Plaintiff-Appellee; Rollo, 414-416. 6 Rollo, 69, 72-77. 7 People v. de la Cruz, et al., supra, note 6. 8 Rollo. 91-92. 9 Appellant's Brief for Conrado de la Cruz; Rollo, 108. 10 Appellants' Brief for Spouses Cresencia and Crisostomo Galaw-ey; Rollo, 294-295. 11 People v. de Leon, No. 82882, February 5, 1991. 12 People v. Tolentino, No. 70836, October 18, 1988. 13 Rule 133, Sec. 5, The Revised Rules of Court in the Philippines; People v. Rodriguez, G.R. No. 90255, January 23,1991.

14 Perez de la Merced v. Sandiganbayan, G.R. Nos. 76203-04. December 6, 1989. 15 People v. Tolentino (citing People v. Subano 73 Phil. 692 (1942), supra, note 13. 16 People v. Salondro Jr., 170 SCRA 763. 17 Exh. TT, Supra. 18 People v. Besa, G.R. No. 78899, March 22, 1990, 183 SCRA 533, 544. 19 TSN, hearing on April 23, 1985, 44 and 60. 20 TSN, hearing on April 23, 1985, 41-42. 21 TSN, hearing on March 7, 1985, 18; hearing on March 12, 1985, 37. 22 TSN, hearing on April 23, 1985, 39-41. 23 Exhibit TT and 14-A, Q and A No. 6, August 13, 1984. 24 TSN, hearing on March 12, 1985, 37, 39, 42, 43. 25 People v. Songcuan G.R. No. 73070, August 11, 1989. 26 People v. Saavedra, G.R. No. L-48738, May 18, 1987. 27 Id., citing People v. Custodio No. L-30463, October 30, 1972, 47 SCRA 289 (1972). 28 People v. Torre, G.R. No. 44905, April 25, 1990 (citing People v. Ramos, No. 76744, June 28, 1988). 29 TSN, 40, hearing on March 4, 1985. 30 Decision, supra, notes 8 and 9. 31 People v. Lim, G.R. No. 86454, October 18, 1990, citing People v. Modesto, 25 SCRA 36,46 (1968). 32 105 Phil. 591 (1959), citing U.S. v. McMann, 4 Phil. 561; People v. Ragsac 61 Phil. 146, People v. Batastas, 65 Phil. 654; People v. Tagasa, 68 Phil. 147; People vs. Cagguan, et al., 94 Phil. 118. 33 People v. Domingo, G.R. No. 68993, September 26, 1988. 34 People v. Cunanan, 19 SCRA 769.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 86883-85 January 29, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORBERTO MANERO, JR., EDILBERTO MANERO, ELPIDIO MANERO, SEVERINO LINES, RUDY LINES, EFREN PLEAGO, ROGER BEDAO, RODRIGO ESPIA, ARSENIO VILLAMOR, JR., JOHN DOE and PETER DOE, accused. SEVERINO LINES, RUDY LINES, EFREN PLEAGO and ROGER BENDAO, accused-appellants. The Solicitor General for plaintiff-appellee. Romeo P. Jorge for accused-appellants. BELLOSILLO, J.: This was gruesome murder in a main thoroughfare an hour before sundown. A hapless foreign religious minister was riddled with bullets, his head shattered into bits and pieces amidst the revelling of his executioners as they danced and laughed around their quarry, chanting the tune "Mutya Ka Baleleng", a popular regional folk song, kicking and scoffing at his prostrate, miserable, spiritless figure that was gasping its last. Seemingly unsatiated with the ignominy of their manslaughter, their leader picked up pieces of the splattered brain and mockingly displayed them before horrified spectators. Some accounts swear that acts of cannibalism ensued, although they were not sufficiently demonstrated. However, for their outrageous feat, the gangleader already earned the monicker "cannibal priest-killer" But, what is indubitable is that Fr. Tulio Favali 1 was senselessly killed for no apparent reason than that he was one of the Italian Catholic missionaries laboring in heir vineyard in the hinterlands of Mindanao. 2 In the aftermath of the murder, police authorities launched a massive manhunt which resulted in the capture of the perpetrators except Arsenio Villamor, Jr., and two unidentified persons who eluded arrest and still remain at large. Informations for Murder, 3 Attempted Murder 4 and Arson 5 were accordingly filed against those responsible for the frenzied orgy of violence that fateful day of 11 April 1985. As these cases arose from the same occasion, they were all consolidated in Branch 17 of the Regional Trial Court of Kidapawan, Cotabato. 6 After trial, the court a quo held WHEREFORE . . . the Court finds the accused Norberto Manero, Jr. alias Commander Bucay, Edilberto Manero alias Edil, Elpidio Manero, Severino Lines, Rudy Lines, Rodrigo Espia alias Rudy, Efren Pleago and Roger Bedao GUILTY beyond reasonable doubt of the offense of

Murder, and with the aggravating circumstances of superior strength and treachery, hereby sentences each of them to a penalty of imprisonment of reclusion perpetua; to pay the Pontifical Institute of Foreign Mission (PIME) Brothers, the congregation to which Father Tulio Favali belonged, a civil indemnity of P12,000.00; attorney's fees in the sum of P50,000.00 for each of the eight (8) accused or a total sum of P400,000.00; court appearance fee of P10,000.00 for every day the case was set for trial; moral damages in the sum of P100,000.00; and to pay proportionately the costs. Further, the Court finds the accused Norberto Manero, Jr. alias Commander Bucay GUILTY beyond reasonable doubt of the offense of Arson and with the application of the Indeterminate Sentence Law, hereby sentences him to an indeterminate penalty of imprisonment of not less than four (4) years, nine (9) months, one (1) day of prision correccional, as minimum, to six (6) years of prision correccional, as maximum, and to indemnify the Pontifical Institute of Foreign Mission (PIME) Brothers, the congregation to which Father Tulio Favali belonged, the sum of P19,000.00 representing the value of the motorcycle and to pay the costs. Finally, the Court finds the accused Norberto Manero, Jr., alias Commander Bucay, Edilberto Manero alias Edil, Elpidio Manero, Severino Lines, Rudy Lines, Rodrigo Espia alias Rudy, Efren Pleago and Roger Bedao GUILTY beyond reasonable doubt of the offense of Attempted Murder and with the application of the Indeterminate Sentence Law, hereby sentences each of them to an indeterminate penalty of imprisonment of not less than two (2) years, four (4) months and one (1) day of prision correccional, and minimum, to eight (8) years and twenty (20) days of prision mayor, as maximum, and to pay the complainant Rufino Robles the sum of P20,000.00 as attorney's fees and P2,000.00 as court appearance fee for every day of trial and to pay proportionately the costs. The foregoing penalties shall be served by the said accused successively in the order of their respective severity in accordance with the provisions of Article 70 of the Revised Penal Code, as amended. 7 From this judgment of conviction only accused Severino Lines, Rudy Lines, Efren Pleago and Roger Bedao appealed with respect to the cases for Murder and Attempted Murder. The Manero brothers as well as Rodrigo Espia did not appeal; neither did Norberto Manero, Jr., in the Arson case. Consequently, the decision as against them already became final. Culled from the records, the facts are: On 11 April 1985, around 10:00 o'clock in the morning, the Manero brothers Norberto Jr., Edilberto and Elpidio, along with Rodrigo Espia, Severino Lines, Rudy Lines, Efren Pleago and Roger Bedao, were inside the

eatery of one Reynaldo Diocades at Km. 125, La Esperanza, Tulunan, Cotabato. They were conferring with Arsenio Villamor, Jr., private secretary to the Municipal Mayor of Tulunan, Cotabato, and his two (2) unidentified bodyguards. Plans to liquidate a number of suspected communist sympathizers were discussed. Arsenio Villamor, Jr. scribbled on a cigarette wrapper the following "NPA v. NPA, starring Fr. Peter, Domingo Gomez, Bantil, Fred Gapate, Rene alias Tabagac and Villaning." "Fr. Peter" is Fr. Peter Geremias, an Italian priest suspected of having links with the communist movement; "Bantil" is Rufino Robles, a Catholic lay leader who is the complaining witness in the Attempted Murder; Domingo Gomez is another lay leader, while the others are simply "messengers". On the same occasion, the conspirators agreed to Edilberto Manero's proposal that should they fail to kill Fr. Peter Geremias, another Italian priest would be killed in his stead.8 At about 1:00 o'clock that afternoon, Elpidio Manero with two (2) unidentified companions nailed a placard on a street-post beside the eatery of Deocades. The placard bore the same inscriptions as those found on the cigarette wrapper except for the additional phrase "versus Bucay, Edil and Palo." Some two (2) hours later, Elpidio also posted a wooden placard bearing the same message on a street cross-sign close to the eatery. 9 Later, at 4:00 o'clock, the Manero brothers, together with Espia and the four (4) appellants, all with assorted firearms, proceeded to the house of "Bantil", their first intended victim, which was also in the vicinity of Deocades'carinderia. They were met by "Bantil" who confronted them why his name was included in the placards. Edilberto brushed aside the query; instead, he asked "Bantil" if he had any qualms about it, and without any provocation, Edilberto drew his revolver and fired at the forehead of "Bantil". "Bantil" was able to parry the gun, albeit his right finger and the lower portion of his right ear were hit. Then they grappled for its possession until "Bantil" was extricated by his wife from the fray. But, as he was running away, he was again fired upon by Edilberto. Only his trousers were hit. "Bantil" however managed to seek refuge in the house of a certain Domingo Gomez. 10Norberto, Jr., ordered his men to surround the house and not to allow any one to get out so that "Bantil" would die of hemorrhage. Then Edilberto went back to the restaurant of Deocades and pistol-whipped him on the face and accused him of being a communist coddler, while appellants and their cohorts relished the unfolding drama. 11 Moments later, while Deocades was feeding his swine, Edilberto strewed him with a burst of gunfire from his M-14 Armalite. Deocades cowered in fear as he knelt with both hands clenched at the back of his head. This again drew boisterous laughter and ridicule from the dreaded desperados. At 5:00 o'clock, Fr. Tulio Favali arrived at Km. 125 on board his motorcycle. He entered the house of Gomez. While inside, Norberto, Jr., and his co-accused Pleago towed the motorcycle outside to the center of the highway. Norberto, Jr., opened the gasoline tank, spilled some fuel, lit a fire and burned the motorcycle. As the vehicle was ablaze, the felons raved and rejoiced. 12

Upon seeing his motorcycle on fire, Fr. Favali accosted Norberto, Jr. But the latter simply stepped backwards and executed a thumbs-down signal. At this point, Edilberto asked the priest: "Ano ang gusto mo, padre (What is it you want, Father)? Gusto mo, Father, bukon ko ang ulo mo (Do you want me, Father, to break your head)?" Thereafter, in a flash, Edilberto fired at the head of the priest. As Fr. Favali dropped to the ground, his hands clasped against his chest, Norberto, Jr., taunted Edilberto if that was the only way he knew to kill a priest. Slighted over the remark, Edilberto jumped over the prostrate body three (3) times, kicked it twice, and fired anew. The burst of gunfire virtually shattered the head of Fr. Favali, causing his brain to scatter on the road. As Norberto, Jr., flaunted the brain to the terrified onlookers, his brothers danced and sang "Mutya Ka Baleleng" to the delight of their comrades-in-arms who now took guarded positions to isolate the victim from possible assistance. 13 In seeking exculpation from criminal liability, appellants Severino Lines, Rudy Lines, Efren Pleago and Roger Bedao contend that the trial court erred in disregarding their respective defenses of alibi which, if properly appreciated, would tend to establish that there was no prior agreement to kill; that the intended victim was Fr. Peter Geremias, not Fr. Tulio Favali; that there was only one (1) gunman, Edilberto; and, that there was absolutely no showing that appellants cooperated in the shooting of the victim despite their proximity at the time to Edilberto. But the evidence on record does not agree with the arguments of accused-appellants. On their defense of alibi, accused brothers Severino and Rudy Lines claim that they were harvesting palay the whole day of 11 April 1985 some one kilometer away from the crime scene. Accused Roger Bedao alleges that he was on an errand for the church to buy lumber and nipa in M'lang, Cotabato, that morning of 11 April 1985, taking along his wife and sick child for medical treatment and arrived in La Esperanza, Tulunan, past noontime. Interestingly, all appellants similarly contend that it was only after they heard gunshots that they rushed to the house of Norberto Manero, Sr., Barangay Captain of La Esperanza, where they were joined by their fellow CHDF members and co-accused, and that it was only then that they proceeded together to where the crime took place at Km. 125. It is axiomatic that the accused interposing the defense of alibi must not only be at some other place but that it must also be physically impossible for him to be at the scene of the crime at the time of its commission. 14 Considering the failure of appellants to prove the required physical impossibility of being present at the crime scene, as can be readily deduced from the proximity between the places where accused-appellants were allegedly situated at the time of the commission of the offenses and the locus criminis, 15 the defense of alibi is definitely feeble. 16 After all, it has been the consistent ruling of this Court that no physical impossibility exists in instances where it would take the accused only fifteen to twenty minutes by jeep or tricycle, or some one-and-a-half hours by foot, to traverse the distance between the place where he allegedly was at the time of commission of the offense and the scene of the

crime. 17 Recently, we ruled that there can be no physical impossibility even if the distance between two places is merely two (2) hours by bus. 18 More important, it is wellsettled that the defense of alibi cannot prevail over the positive identification of the authors of the crime by the prosecution witnesses. 19 In the case before Us, two (2) eyewitnesses, Reynaldo Deocades and Manuel Bantolo, testified that they were both inside the eatery at about 10:00 o'clock in the morning of 11 April 1985 when the Manero brothers, together with appellants, first discussed their plan to kill some communist sympathizers. The witnesses also testified that they still saw the appellants in the company of the Manero brothers at 4:00 o'clock in the afternoon when Rufino Robles was shot. Further, at 5:00 o'clock that same afternoon, appellants were very much at the scene of the crime, along with the Manero brothers, when Fr. Favali was brutally murdered. 20 Indeed, in the face of such positive declarations that appellants were at the locus criminis from 10:00 o'clock in the morning up to about 5:00 o'clock in the afternoon, the alibi of appellants that they were somewhere else, which is negative in nature, cannot prevail. 21 The presence of appellants in the eatery at Km. 125 having been positively established, all doubts that they were not privy to the plot to liquidate alleged communist sympathizers are therefore removed. There was direct proof to link them to the conspiracy. There is conspiracy when two or more persons come to an agreement to commit a crime and decide to commit it.22 It is not essential that all the accused commit together each and every act constitutive of the offense. 23 It is enough that an accused participates in an act or deed where there is singularity of purpose, and unity in its execution is present. 24 The findings of the court a quo unmistakably show that there was indeed a community of design as evidenced by the concerted acts of all the accused. Thus The other six accused, 25 all armed with high powered firearms, were positively identified with Norberto Manero, Jr. and Edilberto Manero in the carinderia of Reynaldo Deocades in La Esperanza, Tulunan, Cotabato at 10:00 o'clock in the morning of 11 April 1985 morning . . . they were outside of the carinderia by the window near the table where Edilberto Manero, Norberto Manero, Jr., Jun Villamor, Elpidio Manero and unidentified members of the airborne from Cotabato were grouped together. Later that morning, they all went to the cockhouse nearby to finish their plan and drink tuba. They were seen again with Edilberto Manero and Norberto Manero, Jr., at 4:00 o'clock in the afternoon of that day near the house of Rufino Robles (Bantil) when Edilberto Manero shot Robles. They surrounded the house of Domingo Gomez where Robles fled and hid, but later left when Edilberto Manero told them to leave as Robles would die of hemorrhage. They followed Fr. Favali to Domingo Gomez' house, witnessed and enjoyed the burning of the motorcycle of Fr. Favali and later stood guard with their firearms ready on the road when Edilberto Manero shot to death Fr. Favali. Finally, they

joined Norberto Manero, Jr. and Edilberto Manero in their enjoyment and merriment on the death of the priest. 26 From the foregoing narration of the trial court, it is clear that appellants were not merely innocent bystanders but were in fact vital cogs in perpetrating the savage murder of Fr. Favali and the attempted murder of Rufino Robles by the Manero brothers and their militiamen. For sure, appellants all assumed a fighting stance to discourage if not prevent any attempt to provide assistance to the fallen priest. They surrounded the house of Domingo Gomez to stop Robles and the other occupants from leaving so that the wounded Robles may die of hemorrhage. 27Undoubtedly, these were overt acts to ensure success of the commission of the crimes and in furtherance of the aims of the conspiracy. The appellants acted in concert in the murder of Fr. Favali and in the attempted murder of Rufino Robles. While accused-appellants may not have delivered the fatal shots themselves, their collective action showed a common intent to commit the criminal acts. While it may be true that Fr. Favali was not originally the intended victim, as it was Fr. Peter Geremias whom the group targetted for the kill, nevertheless, Fr. Favali was deemed a good substitute in the murder as he was an Italian priest. On this, the conspirators expressly agreed. As witness Manuel Bantolo explained 28 Q Aside from those persons listed in that paper to be killed, were there other persons who were to be liquidated? A There were some others. Q Who were they? A They said that if they could not kill those persons listed in that paper then they will (sic) kill anyone so long as he is (sic) an Italian and if they could not kill the persons they like to kill they will (sic) make Reynaldo Deocades as their sample. That appellants and their co-accused reached a common understanding to kill another Italian priest in the event that Fr. Peter Geremias could not be spotted was elucidated by Bantolo thus 29 Q Who suggested that Fr. Peter be the first to be killed? A All of them in the group. Q What was the reaction of Norberto Manero with respect to the plan to kill Fr. Peter? A He laughed and even said, "amo ina" meaning "yes, we will kill him ahead." xxx xxx xxx Q What about Severino Lines? What was his reaction? A He also laughed and so conformed and agreed to it. Q Rudy Lines. A He also said "yes". Q What do you mean "yes"?

A He also agreed and he was happy and said "yes" we will kill him. xxx xxx xxx Q What about Efren Pleago? A He also agreed and even commented laughing "go ahead". Q Roger Bedao, what was his reaction to that suggestion that should they fail to kill Fr. Peter, they will (sic) kill anybody provided he is an Italian and if not, they will (sic) make Reynaldo Deocades an example? A He also agreed laughing. Conspiracy or action in concert to achieve a criminal design being sufficiently shown, the act of one is the act of all the other conspirators, and the precise extent or modality of participation of each of them becomes secondary. 30 The award of moral damages in the amount of P100,000.00 to the congregation, the Pontifical Institute of Foreign Mission (PIME) Brothers, is not proper. There is nothing on record which indicates that the deceased effectively severed his civil relations with his family, or that he disinherited any member thereof, when he joined his religious congregation. As a matter of fact, Fr. Peter Geremias of the same congregation, who was then a parish priest of Kidapawan, testified that "the religious family belongs to the natural family of origin." 31 Besides, as We already held, 32 a juridical person is not entitled to moral damages because, not being a natural person, it cannot experience physical suffering or such sentiments as wounded feelings, serious anxiety, mental anguish or moral shock. It is only when a juridical person has a good reputation that is debased, resulting in social humiliation, that moral damages may be awarded. Neither can We award moral damages to the heirs of the deceased who may otherwise be lawfully entitled thereto pursuant to par. (3), Art. 2206, of the Civil Code, 33 for the reason that the heirs never presented any evidence showing that they suffered mental anguish; much less did they take the witness stand. It has been held 34 that moral damages and their causal relation to the defendant's acts should be satisfactorily proved by the claimant. It is elementary that in order that moral damages may be awarded there must be proof of moral suffering. 35However, considering that the brutal slaying of Fr. Tulio Favali was attended with abuse of superior strength, cruelty and ignominy by deliberately and inhumanly augmenting the pain and anguish of the victim, outraging or scoffing at his person or corpse, exemplary damages may be awarded to the lawful heirs, 36 even though not proved nor expressly pleaded in the complaint, 37 and the amount of P100,000.00 is considered reasonable. With respect to the civil indemnity of P12,000.00 for the death of Fr. Tulio Favali, the amount is increased to P50,000.00 in accordance with existing jurisprudence, which should be paid to the lawful heirs, not the PIME as the trial court ruled. WHEREFORE, the judgment appealed from being in accord with law and the evidence is AFFIRMED with the modification that the civil indemnity which is increased from

P12,000.00 to P50,000.00 is awarded to the lawful heirs of the deceased plus exemplary damages of P100,000.00; however, the award of moral damages is deleted. Costs against accused-appellants. SO ORDERED. Cruz, Padilla and Grio-Aquino, JJ., concur. # Footnotes 1 "Tulio" is variably spelled as "Tullio" in certain parts of the records. Incidentally, the name "Fr. Peter Geremias" is likewise interchangeably referred to as "Fr. Peter Geremia." 2 TSN, 24 October 1985, pp. 55-56. 3 Docketed as Crim. Case No. 1881 for the murder of Fr. Tulio Favali. Those charged are Norberto Manero, Jr., Edilberto Manero, Elpidio Manero, Severino Lines, Rudy Lines, Efren Pleago, Rogelio Bedao and Rodrigo Espia. 4 Docketed as Crim. Case No. 1884 for the attempted murder of Rufino Robles. Those charged are the same accused in Crim. Case No. 1881 except Arsenio Villamor, Jr., John Doe and Peter Doe. 5 Docketed as Crim. Case No. 1883 for arson for the burning of the motorcycle of Fr. Tulio Favali. The lone accused is Norberto Manero, Jr. 6 See Records, p. 445. 7 Penned by Judge Benjamin M. Estaol, Regional Trial Court, Branch 17, Kidapawan, Cotabato; Records, pp. 860-61. 8 See Note 2. 9 Id., pp. 68-70. 10 Id., pp. 70-79. 11 Id., pp. 57-60. 12 Id., pp. 82-89. 13 TSN, 4 October 1985, pp. 91-108; TSN, 6 November 1985, pp. 68-78. 14 People vs. Pugal, G.R. No. 90637, 29 October 1992. 15 All accused-appellants allege that they were in Tulunan, Cotabato, the town where the offenses were committed, albeit not at the very scene of the crime in Km. 125. 16 People vs. Baez, G.R. No. 95456, 18 September 1992, citing People v. Sabater, No. L-38169, 23 February 1978, 81 SCRA 110. 17 People v. De Guzman, G.R. No. 105964, 4 November 1992. 18 People v. Abuyan, Jr., G.R. Nos. 95254-55, 21 July 1992. 19 People v. Antud, G.R. No. 95684, 27 October 1992. 20 Decision, p. 36; Rollo, p. 230. 21 People v. Serdan, G. R. No. 87318, 2 September 1992. 22 People v. Hasiron, G.R. No. 100797, 15 October 1992, citing Art. 8, Revised Penal Code.

23 People v. Sabornido, G.R. No. 102141, 18 September 1992. 24 People vs. Martinado, G.R. No. 92020, 19 October 1992. 25 Accused-appellants together with two (2) other unidentified persons. 26 Decision, p. 30; Rollo, p. 224. 27 TSN, 28 August 1986, pp. 93-94. 28 TSN, 4 October 1985, p. 118. 29 TSN, 6 November 1985, pp. 36-43. 30 People v. de los Reyes, No. L-44112, 22 October 1992, citing People v. Degoma, G.R. Nos. 89404-05, 22 May 1992. 31 See TSN, 28 August 1986, p. 51. 32 Simex International (Manila), Inc. v. Court of Appeals, G.R. No. 88013, 19 March 1990, 183 SCRA 360. 33 Art. 2206 (3) provides: "The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased." 34 Raagas v. Traya, 130 Phil. 846 (1968). 35 Darang v. Belizar, No. L-19487, 31 January 1967, 19 SCRA 214. 36 Art. 2230 provides: "In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party" (Civil Code); see alsoDempsey v. RTC, Br. 75, G.R. No. 77737-38, 15 August 1988, 164 SCRA 384, and People v. Marciales, G.R. No. 61961, 18 October 1988, 166 SCRA 436. 37 Singson v. Aragon, 92 Phil. 514 (1953); PAL v. CA, G.R. Nos. 50504-05, 13 August 1990, 188 SCRA 461, citing Kapoe v. Masa, G.R. No. 50473, 21 January 1985, 134 SCRA 231.

Republic of the Philippines SUPREME COURT Manila G.R. No. 90319 October 15, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO BRIONES, GERARDO JAVIER and EUSEBIO ALLIED, accused. MARIO BRIONES & GERARDO JAVIER, accused-appellants. The Solicitor General for plaintiff-appellee. Public Attorney's Ofrtce for accused-appellants. PARAS, J.:p The accused-appellants are questioning their conviction by the Regional Trial Court, Third Judicial Region, Branch 54, Macabebe, Pampanga of robbery with double homicide. The contend that the trial court erred in holding that the crime committed is robbery with double homicide despite insufficiency of evidence, in not holding that the evidence obtained against them is inadmissible for violation of their constitutional rights to remain silent, to counsel and against self-incrimination during custodial investigation, and in not holding that their guilt was not proved beyond reasonable doubt. They likewise argue that their arrest was illegal for having been made without a warrant. The information filed in said case reads: That on or about the 23rd day of April 1988, at Barangay Dela Paz, municipality of San Simon, province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused MARIO BRIONES y GUINTO, GERARDO "JERRY" JAVIER y ALLIED and EUSEBIO ALLIED y GALICIO alias "KIKOY", conspirating, confederating and mutually helping one another, with intent of gain, and with force and violence against persons, entered the house of spouses Felicisimo B. Gutierrez and Florencia Diaz-Gutierrez and once inside, did then and there willfully, unlawfully and feloniously take, steal and carry away with them cash money amounting to P60,000.00, Philippine currency, and assorted jewelries valued at P50,000.00 or a total amount of P110,000.00, belonging to the said spouses, to the damage and prejudice of said spouses, in the total amount of P110,000.00, Philippine Currency, and on the occasion thereof, in pursuance of their act of conspiracy, with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack, strike and hit said spouses on the head, face and different parts of their body with the use of hard objects and bladed objects or instruments, inflicting mortal and fatal injuries upon spouses which caused their instantaneous death. ALL CONTRARY TO LAW. (pp. 19-20, Rollo)

After trial on the merits involving only appellants Mario Briones and Gerardo Javier as accused Eusebio Allied was at large, the trial court, rendered its decision, the dispositive portion of which reads: WHEREFORE, the Court, finding both accused guilty as principal beyond reasonable doubt for the crime of robbery with homicide, hereby renders judgment sentencing the accused Mario Briones and Gerardo Javier, as follows: 1. To each suffer the penalty of RECLUSION PERPETUA and the accessories of the law. 2. To indemnify the heirs of the late Felicisimo Gutierrez and Florencia Diaz Gutierrez in the amount of P40,000.00 as moral damages and P20,000.00 as exemplary damages. SO ORDERED. (p. 26, Rollo) The antecedent facts, as stated in the plaintiff-appellee's brief, are as follows: In the evening of April 23, 1988, Pantaleon Francisco, 31 years old, was tending his sari-store in Barangay Dela Paz, San Simon, Pampanga (pp. 10, 13, tsn, July 12, 1988). At about 11:30 p.m., appellants Gerardo Javier and Eusebio Allied came to Francisco's store and ordered beer (p. 16,Ibid). They drank four bottles of beer (p. 17, Ibid). Appellant Mario Briones arrived and was offered beer by Gerardo Javier and Eusebio Allied. Mario Briones declined and left (pp. 17-18, Ibid). After about 30 minutes, appellants Gerardo Javier and Eusebio Allied also left the store (p. 19, Ibid). About eight meters away from Pantaleon Francisco's store was the house of spouses Felicisimo Gutierrez and Florencia Diaz Gutierrez at the ground floor of which was also a store (p. 11, tsn, July 1988; p. 12, tsn, July 26, 1988). At the street near the store was a lighted 100-watt electric bulb (p. 25, July 12, 1988). A tall coconut stood between the houses of Pantaleon Francisco and the Gutierrezes (p. 35, Ibid), At past 11:00 o'clock, Pantaleon Francisco closed his store when all his customers had left. Not long after, he heard the barking of dogs from the Gutierrez residence (p. 21, tsn, July 12, 1988). Feeling something untoward was taking place, Pantaleon Francisco went of his store (p. 22, Ibid). Pantaleon Francisco saw appellants Mario Briones and Gerardo Javier, together with Eusebio Allied, under the electric bulb, mauling Florencia Diaz Gutierrez who was lying prostrate on the ground ( 25-28, tsn, July 12, 1988). The three later dragged Florencia Diaz Gutierrez inside her house and closed the door (pp. 31-32, Ibid). While Mario Briones, Gerardo Javier and Eusebio Allied were inside the Gutierrez residence, the lights on the second floor of house were

switched on (p. 34, tsn, July 12, 1988). The dogs continue to bark (p, 35, Ibid). When the wife of Pantaleon Francisco arrived from Barangay Libutad, San Simon, where she attended a fiesta, at about 4:00 a.m., Pantaleon Francisco told her about what he witnessed (p. 37, tsn, July 12, 1988). In the morning of April 24, 1988, Pantaleon Francisco went to the house of the Gutierrezes. He found it in disarray, with the spouses sprawled dead on the first floor near the store (pp. 38-39, tsn, July 1988). Informed of the crime, Pat. Emerito Maniago, Chief Investigation of the San Simon Police Force, formed a team of investigators proceeded to the scene (p. 8, tsn, July 26, 1988). They found Felicisimo Gutierrez and Florencia Diaz Gutierrez lying dead in the sala with broken bottles of soft drinks were scattered all over (p. 10, tsn, July 1988). They also noticed blood stains at the gate before the door of house (pp. 9, 42, tsn, July 26, 1988). Pantaleon Francisco disclosed to the police officers the Identity of the perpetrators of the crime on April 25, 1988 at 9:00 a.m. (p. 40, July 13, 1988). Acting on the information supplied by Pantaleon Francisco, Pat. Maniago and his team went to the house of Ofelia Javier, a sister of appellant Gerardo Javier, at Hulo, Malabon, Metro Manila, where appellants Mario Briones and Gerardo Javier were working as construction workers. They came upon Mario Briones as he was going to the house of Ofelia Javier (p. 23, tan, July 26, 1988). At first Mario Briones denied having anything to do with the crime (p. 25, Ibid). But when a necklace and two bracelets belonging to the victims were found in his possession (pp. 26-28, tsn, Ibid), he admitted his complicity and revealed that his two companions in the commission of the crime were Eusebio Allied and Gerardo Javier (p. 25, tsn, July 26, 1988). On the basis of the disclosure of Mario Briones that Gerardo Javier had some relatives in Daang Hari, Bicutan, Taguig, Metro Manila, Pat. Maniago and his team proceeded to the place. They found Gerardo Javier sleeping in the house of a relative (pp. 29-30, tsn, July 26, 1988). Mario Briones and Gerardo Javier were brought to San Simon, Pampanga. On April 26, 1988, Pantaleon Francisco was invited to the police precinct to Identify the culprits. From among the persons present at the precinct, he readily pointed to Mario Briones and Gerardo Javier as the culprits (p. 46, tsn, July 12, 1988) and Identified them by name (p. 47, Ibid). In the course of the investigation, Mario Briones disclosed the place where they hid their loot (p. 28, tsn, July 26, 1988). Part of the loot, consisting of coins, was dug up at the back of a school building in Dela Paz, San Simon, Pampanga, which Mario Briones indicated (p. 33, tsn, July 26, 1988). The loot was placed in a bag and jute sack (p. 34, Ibid). It

was valued at P4,000.00 (p. 35, Ibid)." (pp. 5-11, Brief for PlaintiffAppellee; p. 49, Rollo) It is the contention of the accused-appellants that it was difficult, if not impossible, for Pantaleon Francisco, the sole prosecution eyewitness, to Identify the persons who mauled Florencia Diaz Gutierrez since a coconut tree, a barbed wire, and flower pots obstructed his vision (p. 13, Appellant's Brief). The accused-appellants try to destroy the credibility of Pantaleon Francisco by asserting that: 1) said witness did not report what he saw the morning immediately following the incident; 2) he gave inconsistent answers as to how long he had been residing in Barangay Dela Paz, San Simon, Pampanga; 3) on the one hand, he claimed that on April 26,1988 he worked in Makati, but on the other hand, he declared that he was called to the police precinct; and 4) if he was inside his store he could not see the store of the spouses, but if outside his house he could see it. (pp. 13-14, Appellant's Brief). It is likewise their contention that conspiracy was not established and their constitutional rights to remain silent, to counsel and against self-incrimination were violated (pp. 16 & 18, Appellant's Brief), that the alleged stolen articles were not formally offered in evidence (p. 15, Ibid.), and that their arrest was illegal because it was made without the warrant of arrest prescribed by law. The issues raised in the appeal, being closely interrelated, will be discussed jointly. After reviewing the evidence as shown by the records of this case, We find no reason to deviate from the well-settled doctrine that the findings of facts of the trial judge on the credibility of witnesses deserve respect by the appellate court in view of its privilege of examining the demeanor of the witnesses as they testify and in the absence of grave abuse of discretion. (People v. Alcantara, 151 SCRA 326; People v. Adones, 144 SCRA 364) We are convinced that Pantaleon Francisco was certain that the culprits were appellants, Briones and Javier, and Eusebio Allied. Before the incident, Francisco had known Briones for some seven (7) years (p. 12, tsn, July 12, 1988) and Javier, a relative of Allied, for about a week already (p. 16, tsn, July 12, 1988). Immediately before the incident, Javier and Allied drank four bottles of beer in Francisco's store (p. 16, Ibid). When Briones arrived, they offered him beer but he refused. Briones, Javier and Allied stayed for about thirty more minutes in Francisco's store, giving the latter more opportunity to recognize the appellants and Allied before they robbed and killed his neighbors some eight meters away. Besides, under a 100-watt electric light, Francisco could readily recognize the culprits. To quote a portion of his testimony, Q When you were already outside your store, what did you see? A I saw three persons Mario Briones, Gerry Javier and Eusebio Allied, sir. Q Where did you see these three persons whose names you have just mentioned?

A They were near the door of the store of the spouses Felicisimo Gutierrez and Florencia Gutierrez, sir. Q What were they doing, I am referring to these three persons whose names you mentioned when you saw them near the door of the store of the Gutierrez? A I saw them assaulting a person who was already lying prostrate on the ground. Q When you said you saw them assaulting, how were they assaulting a person lying prostrate on the ground? A They were boxing, sir. Q What was the position of that person they were boxing when you saw them? A Yes, sir, the person they were assaulting was already lying on the ground. Q Did you recognize that person they were mauling that evening. A Yes, sir. Q Who is he? A She is Florencia Diaz, sir. Q And you said you recognized that person they were mauling to be that of the person of Florencia Diaz, are you referring to Florencia Diaz Gutierrez the wife of Felicisimo Gutierrez your neighbor? A Yes, sir. Q Could you tell us Mr. Francisco as it was about past 11:00 o'clock in the evening when this incident took place how were your able to recognize Florencia and the three persons mauling her? A There was a light outside the house which was on, sir. Q What kind of a light was that? A An electric light which was bright, sir, maybe about 100 watts. Q In relation to the place where you saw the three accused mauling the late Florencia Gutierrez where was the electric bulb? A It is almost above them, sir. (pp. 22-26, tsn, July 12, 1988) (pp. 14-16. Brief for plaintiff-appellee; p. 49, Rollo) If the court has previously held that the light of stars (People v. Vacal, 27 SCRA 24) or moon (People v. Pueblas, 127 SCRA 746), flames from an oven (People v. de la Cruz, 147 SCRA 359), wick lamp or "gasera" (People v. Aboga, 147 SCRA 404) can give ample illumination to enable a person to identify or recognize another, then with more

reason a 100-watt bulb is sufficient to enable Francisco to Identify appellants at a distance of about eight meters. Also, Francisco's testimony that appellants and Allied boxed Florencia Gutierrez outside her house and later dragged her inside is corroborated by physical evidence (the blood stain near the gate and before the house) noted by the police investigators (pp. 9 and 42, tsn, July 26, 1988). The appellants likewise stress heavily Francisco's failure to report the incident to the authorities in the morning of April 24, 1988. We tend to believe that such silence is not an unexpected reaction to the murder which had taken place and which Francisco was unfortunate enough to have witnessed. Francisco and his wife were afraid of appellants and Allied who were then still at large. Be it noted, however, that on the second day he disclosed to the authorities the Identity of the culprits since his conscience bothered him. Next, the matters where Francisco allegedly gave inconsistent answers refer to minor details which are usual among witnesses and do not affect his overall credibility. As aptly stated by the appellee, Francisco's answers refer to his recollection of time, and whether he stayed in De la Paz, San Simon, for seven or nine years at the time he testified or whether (on April 26, 1988) he went to Makati or remained in De La Paz are things which do not touch upon the occurrence of the crime. The said inconsistencies merely show that Francisco had not acquired a keen ability to estimate time or recall dates. What is important is that Francisco steadfastly testified that he had witnessed the actual commission of the crime that evening and gave positive Identification of the perpetrators thereof. Relative to the defense of alibi, all that the appellants stated was that they were at the San Pablo Libutad attending a jamboree with the children of Briones. The trial court rejected the said excuse reiterating that alibi is one of the weakest defenses that can be resorted to by an accused (People v. dela Cruz, 76 Phil. 601). We agree. "As a minimum requirement for the theory of alibi to be accepted, the accused must also demonstrate that it was physically impossible for him to be in the scene of the crime." (People v. Sambangan, 125 SCRA 726). Noteworthy is the fact that the place of the incident was a walking distance from the place where the appellants allegedly were. Since the appellants and Allied were positively Identified by Francisco, and it was not shown that the latter had any evil motive to implicate the former, the defense of alibi cannot be accepted. We also support the trial court's finding of conspiracy. It is undisputed that apellants and Allied were together in the store of Francisco prior to the incident. It was established the they mauled and manhandled Florencia Gutierrez, and thereafter dragged her inside her house. Their concerted acts in the perpetration of the offense show that conspiracy is present. It has been consistently held that conspiracy need not be proved by direct evidence but can be inferred from the acts of the accused showing concerted action and community of design (People v. Pineda, 157 SCRA 71; People v. Batahan, 157 SCRA 215; People v. Roncal, 79 SCRA 616, People v. Pagaduan, 29 SCRA 54). Coming now to the constitutional rights of the appellants to remain silent and to counsel, the same cannot be held to have been violated. It is not disputed that the appellants were

investigated by the police. However, it is important to note that the confession, admission or evidence obtained from the appellants was never offered in evidence by the prosecution. Their conviction was not based on said confession or admission but on the strength of the testimony of the lone eyewitness. Furthermore, appellants' claim of police brutality cannot be given weight as their allegation of torture was neither formally complained the police nor confirmed by any medical report. Finally, on appellants' claim that since their warrrantless arrest is void, all the other proceedings, including their conviction, are also void, We find such claim undeserving of merit. It is unequivocally clear that no valid arrest was made on the accused-appellants, the arrest having been made without any warrant at all. Neither can the appellants' arrest qualify as lawful arrest without a warrant under Sec. 5 (b) of Rule 113 of the Rules on Criminal Procedure because the police officer effected the arrest indubitably had no personal knowledge of facts indicating that the person to be arrested has commited the crime. It is eyewitnesses Francisco who had such personal knowledge. In like manner, We cannot accept appellee's allegation that Briones was a fugitive from justice at the time of the latter's arrest because it is not supported by the evidence on record. In sum, therefore, the warrantless arrest of the appellants is illegal. Nevertheless, such unavailing technicality cannot render all the other proceedings, including the conviction of the appellants, void. It cannot deprive the state of its right to convict the guilty when all the facts on record point to their culpability. In this regard, the case of De Asis v. Romero,41 SCRA 235 finds application. Thus, In the reported decisions of this Court is a fairly excellent catalogue of dissertations on the previous position of personal freedom as part of the nation's heritage and the country's political consciousness. But although the existing legal order guarantees to every individual security against any non-due process type or form of restrain detention, it nonetheless leaves it to and expects him to initiate assertion of his corresponding right, in conformity with rules laid down or expounded by the institution which the people themselves, their sovereign capacity, have by covenant established. One of the most important of these settled rules is that any objection to the procedure followed in the matter of the acquisition by a court of jurisdiction over the person of the accused must be opportunely raised before he enters his plea, otherwise the objection is deemed waived. (De Asis v. Romero, et al., 41 SCRA 235, citing People Romero, et al., 41 SCRA 235, citing People v. Marquez, 27 SCRA 808). (Emphasis supplied) Immediately after their arrest, appellants Briones and Javier could have objected to the legality thereof due to the failure of the police officer to secure first a warrant for their arrest. Not only that, without having questioned the legality of their arrest they even pleaded, on arraignment, to the information filed against them. Appellant's acts constitute a clear waiver of their right against unlawful restraint of liberty. Besides, it would be

impractical, if not ridiculous to order the court a quo to set the appellants free then issue a warrant for their arrest, and try them all over again when appellants themselves have waived their right to object to such irregularity and when their conviction is truly based on overwhelming evidence. ACCORDINGLY, the decision of the trial court convicting the appellants Mario Briones and Gerardo Javier of the crime robbery with homicide is hereby AFFIRMED, with the modification that the death indemnity to the heirs is increased to P50,000.00 for each of the victims, in accordance with the policy adopted by the Court en banc on August 30, 1990. The award of moral and exemplary damages are also AFFIRMED. SO ORDERED. Padilla and Regalado, JJ., concur. Melencio-Herrera, (Chairperson), J., is on Leave.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 78774 April 12, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINADOR SALCEDO y RUBI, DIOSCORO SALCEDO, JR. y RUBI, and OSCAR RABINO y DIMANARIG,accused-appellants. The Solicitor General for plaintiff-appellee. Daniel M. Salvadora for accused-appellants.

That the accused took advantage of their superior strength and the offense was committed at nighttime to better facilitate the commission of the crime. That as a consequence of the death of the said Ignacia Quingquing y Catangui, her heirs suffered damages in the total amount of P20,000.00 Pesos, Philippine Currency. CONTRARY TO LAW. [Record, p. 122]. Upon arraignment, the accused-appellants pleaded "Not Guilty" [Id. at p. 123]. After trial, the court a quo rendered judgment finding the accused guilty beyond reasonable doubt of the crime of murder and accordingly sentenced them to suffer the penalty of reclusion perpetua and to jointly and severally indemnify the heirs of the victim in the amount of P30,000.00 and to proportionately pay the costs [Rollo, p. 38]. The accused moved for reconsideration of the trial court's decision, but their motion was denied [Record, p. 301]. Hence, the instant appeal, in which error is attributed to the court a quo: 1. IN GIVING WEIGHT TO PROSECUTION'S WEAK AND INCREDIBLE EVIDENCE; 2. IN FINDING CONSPIRACY AND USE OF SUPERIOR STRENGTH; 3. IN ADMITTING AND RELYING ON THE EXTRAJUDICIAL CONFESSION OF ACCUSED DOMINADOR SALCEDO; 4. IN NOT CONSIDERING THE DEFENSE OF ALIBI IN THE FACE OF UNCLEAR IDENTIFICATION OF SUPPOSED ASSAILANTS. [Rollo, p, 54]. What transpired on that fateful night, as culled from the testimony of witnesses, was summarized by the Solicitor General, as follows: This incident happened at Barangay de los Angeles, Municipality of Buhi, Province of Camarines Sur (TSN, Oct. 30, 1981, p. 4). On March 26, 1981 at around 11:00 o'clock in the evening, Plaridel Manaog saw three (3) men (the herein appellants) coming out of the

CORTES, J.: Accused-appellants were charged with the crime of murder under the following information: That on or about the 26th day of March, 1981 at about 11:00 o'clock in the evening at barangay De Los Angeles, municipality of Buhi, province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the said accused, armed with a home made "Indian Arrow", with intent to kill and with treachery and evident premeditation, conspiring and confederating together and mutually helping one another, did then and there wilfully, unlawfully and feloniously, attack, assault and shot [sic] with the said "Indian Arrow", one IGNACIA QUINGQUING Y CATANGUI, thereby inflicting upon the latter mortal wounds on the different parts of her body, which directly caused the death of said Ignacia Quingquing y Catangui. That in the commission of the crime the following aggravating circumstances were present:

house of Ignacia Quingquing (the herein victim). Appellants were dragging a person whom he (Plaridel Manaog) recognized as the victim (TSN, May 5,1983, pp. 12 and 14). The victim was bleeding (TSN, Dec. 3, 1982, p. 10). She was on the ground (on her back) while her two arms were held by Dioscoro Salcedo, who was dragging her out of the house (TSN, Dec. 3, 1982, p. 12). At the same time, Oscar Rabino stood at the feet of the victim, while Dominador Salcedo stood at the victim's side (TSN, Dec. 3, 1982, p. 12). Appellants stopped dragging the victim three (3) meters away from her house (TSN, May 5, 1983, p. 15). There, he (Plaridel Manaog) heard the victim pleading for mercy but she was ignored by appellants (TSN, Dec. 3, 1982, p. 13; TSN, May 5, 1983, p. 14). Instead, Dominador Salcedo asked the victim "Where is Angeles, where is Angeles?" (TSN, Dec. 3, 1982, p. 13). Dominador Salcedo was then armed with an Indian arrow while Dioscoro Salcedo and Oscar Rabino had bolos tucked on their waists (TSN, May 5,1983, p. 3). The victim did not answer (TSN, Dec. 3, 1982, p. 13). A few moments after the victim was asked where her son Angeles Quingquing was, she died (TSN, Dec. 3,1982, p. 13). Appellants carried her body away from her house (TSN, May 5, 1983, p. 17; Oct. 30, 1981, p. 4). When Angeles Quingquing arrived at around 1:00 o'clock in the morning of March 27, 1981, he looked for his mother (Ignacia Quingquing) who he found was not inside the house (TSN, Oct. 27, 1983, p. 6). He saw the victim lying dead on the pathway, about 50 meters from their house, with an Indian arrow embedded on the left side of her back (TSN, Oct. 27,1983, p. 7). Suddenly, Angeles Quingquing heard Oscar Rabino say: "Angeles is here already, he will be the next one. We will kill him next" (TSN, Oct. 27, 1983, p. 8). Fearing for his life, he ran away to his sister's house which was about 300 meters away from the crime scene. Together, Angeles Quingquing, his sister and his brother-in-law went back to where the victim was, but appellants were no longer there (TSN, Nov. 18, 1983, pp. 5-6). His brother-in-law then went to the Barangay Captain to report the incident (TSN, Nov. 18,1983, p. 6). An autopsy was conducted by Dr. Damiana Claveria, Municipal Health Officer of Buhi, Camarines Sur. She Identified four (4) wounds on the victim's body. Wound No. (1) was a punctured wound located in the left armpit caused by a sharp pointed and small instrument. The other wounds were abrasions caused by friction against a rough surface (TSN,

August 28, 1981, pp. 5-8). The punctured wound (Wound No. 1), according to Dr. Claveria, would cause the death of the victim one (1) hour after its infliction (TSN, Aug. 28, 1981, p. 8). It was learned that prior to the incident, (at around 10:00 p.m. of March 26,1981), Dominador Salcedo engaged Angeles Quingquing in a fistfight in front of the chapel of De los Angeles, Buhi, Camarines Sur (TSN, Oct. 27, 1983, p. 4). [Rollo, pp. 84-88]. 1. Accused-appellants were convicted on the basis of circumstantial evidence. No direct evidence was adduced to prove that they were the ones who killed Ignacia Quingquing, as no witness testified to the actual commission of the crime, although Pat. Palermo Manaog, who investigated the killing, surmised that it was the accused Dominador Salcedo who shot the victim with an "Indian arrow" (TSN, October 30, 1981, p. 4]. The rule is that circumstantial evidence is sufficient to convict if: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt [Sec. 5, Rule 133 of the Revised Rules of Court]. The circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilt [People v. Ludday, 61 Phil. 216 (1935); People v. Contante, G.R. No. L-14639, December 28,1964,12 SCRA 653; People v. Trinidad, G.R. No. L-38930, June 28, 1988]. In the instant case, the Court is of the considered view that the following proven circumstances, taken together, support a finding that the accused-appellants are guilty beyond reasonable doubt for the killing of Ignacia Quingquing: a. On March 26, 1981, at about ten o'clock in the evening, a fistfight between Angeles Quingquing, son of Ignacia Quingquing, and accused Dominador Salcedo took place in the vicinity of the barangay chapel [TSN, October 27,1983, p. 4; October 7,1985, pp. 3-4]. b. At about eleven o'clock that same evening, Plaridel Manaog, saw, from a distance of 10 to 15 meters, the accused-appellants dragging the victim, who was bleeding and pleading for mercy, out of her house. Accused Dioscoro Salcedo was holding the victim's arms while Oscar

Rabino and Dominador Salcedo were standing by her feet and right side, respectively [TSN, December 3, 1982, pp. 10-12, 14]. Manaog was then on his way to Quingquing's store to buy some medicine for his ailing grandfather when he witnessed the incident [Ibid., at pp. 8-9]. c. Manaog then heard Dominador Salcedo ask the victim "Where is Angeles, where is Angeles?," but there was no answer from the victim. Oscar Rabino then told the other accused-appellants "Let's bring her outside," as the victim was already dead. The accused-appellants proceeded to carry the victim's body outside her yard towards the eastern direction [Ibid at pp. 13-14]. At this juncture, Manaog ran home and narrated the incident to his mother, who advised him to switch off the lights of the house as he could have been followed by the accusedappellants. The next day, he informed Luz, the victim's daughter, what he had witnessed [TSN, May 5,1983, pp. 17-20]. d. At the time of the incident Dominador Salcedo was armed with a "pana" or "Indian arrow" (dart) in a rubber sling and Dioscoro Salcedo and Oscar Rabino with bolos tucked in their waists, according to witness Plaridel Manaog [Ibid., at p. 3]. e. When Angeles Quingquing returned home at around one o'clock after attending to his carabao, he found the lifeless body of his mother on the pathway some fifty (50) meters from their house with an "Indian arrow" embedded on her back. Then he heard Rabino say "Angeles is here already, he will be the next one. We will kill him next." [TSN, October 27, 1983, pp, 6-8.] Thereupon, he ran to his sister's house as he feared for his life and, upon arriving there, told her that their mother was dead. Angeles, his sister and his brother-in-law then returned to where Ignacia Quingquing's body lay. Thereafter, his brother-in-law reported the matter to the Barangay Captain [TSN, November 18,1983, p. 4-6]. f. Pat. Palermo Manaog, the investigating policeman, found the lifeless body of Ignacia Quingquing some fifty (50) meters from her residence, with an "Indian arrow" embedded on the left side of her body [TSN, October 30, 1981, p. 4]. g. Dr. Damiana Claveria, the Municipal Health Officer who conducted the autopsy on the body of Ignacia Quingquing, found that she had a punctured wound near the left armpit which could have been the cause of death [TSN, August 18,1981, pp. 5, 7].

2. The accused-appellants assail the trial court's finding that they conspired to kill the victim. The rule is that where a conspiracy is proven, a showing as to who inflicted the fatal wound is not required to sustain a conviction [People v. Tala, G.R. Nos. 69153-54, January 30, 1986,141 SCRA 240]. A conspiracy must be shown to exist as clearly and convincingly as the commission of the crime itself [People v. Vicente, G.R. No. L-26241, May 21, 1969, 28 SCRA 247]. However, it need not be proved by direct evidence; it may be inferred from the acts of the accused [People v. Abueg, G.R. No. 54901, November 24,1986,145 SCRA 622]. The conduct of the accused-appellants before, during and after the commission of the crime may be considered to show the existence of a conspiracy [People v. Cabiltes, G.R. No. L-18010, September 25,1968, 25 SCRA 112]. Proof of a previous agreement to commit the crime is not essential to establish a conspiracy. It is sufficient that the accused be shown to have acted in concert pursuant to the same objective [People v. Abueg, supra]. In the instant case, the accused were shown to have acted as one in carrying out their common criminal design. They acted together in dragging the wounded victim from her house, carrying her body away from her yard after she died and lying in wait for Angeles Quingquing to return. The accused were shown to have performed specific acts incidental to the commission of the crime with such closeness and coordination indicative of a common purpose [People v. Petenia, G.R. No. 51256, August 12,1986,143 SCRA 361]. Consequently, the act of one in killing the victim becomes the act of all the accused. 3. Accused-appellants assail the alleged reliance of the trial court on the extrajudicial confession of Dominador Salcedo which they claim was extracted without observance of the requirements laid down by the Court in People v. Galit [G.R. No. 51770, March 20, 1985, 135 SCRA 465]. Thus, they contend, the confession is inadmissible in evidence. The Court, however, is in agreement with the Solicitor General's view that the admissibility of the confession is not at all an issue in this appeal, as there is nothing in the trial court's decision that alludes to the confession as the basis for the accusedappellants' conviction. It is clear from the decision that the conviction was based on the testimonies of the witnesses. [See Brief for the Appellee, p. 17; Rollo, p. 99.] 4. The trial court's rejection of the defense of alibi, which accusedappellants assail, is in accord with the facts and the law.

Alibi is an inherently weak defense as it is so easy to fabricate [People v. Badilla, 48 Phil. 718 (1926)]. Thus, it cannot prevail over positive identification [U.S. v. Garcia, 9 Phil. 434 (1907); People v. Ocaya, G.R. No. 75074, September 15,1986, 144 SCRA 165]. It is settled that for such defense to prosper it must be shown that it was physically impossible for the accused to have been at the scene of the crime or at the vicinity thereof at the time it was committed [People v. Oxiles, 29 Phil. 587 (1915); People v. Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Detuya, G.R. No. L-39300, September 30, 1987, 154 SCRA 410]. In the instant case, the defense of alibi raised by the accused is unavailing in the light of their positive Identification by witness Plaridel Manaog [TSN, December 3, 1982, pp. 1014]. Moreover, it has been established that the houses of the accused and the scene were only a short distance apart and were in fact in the same barangay[TSN, November 20, 1984, pp. 9-10; October 7, 1985, pp. 9-101. It was therefore not impossible for the accused to have been at the scene of the crime at the moment of its commission. 5. However, the Court finds that the trial court's conclusion that accusedappellants are guilty of murder, the crime charged, does not find support in the established facts and the law. There is no evidence to show that treachery and/or evident premeditation, the qualifying circumstances alleged in the information, attended the commission of the crime. It is well-settled that the circumstances that would qualify the crime to murder have to be proven as indubitably as the crime itself [People v. Vicente, G.R. No. L-31725, February 18,1986, 141 SCRA 347, citing U.S. v. Sellano, 10 Phil. 498 (1908) and U.S. v. Bisandre, 40 Phil. 78 (1919)]. Thus, in the absence of an qualifying circumstances, the crime committed was only homicide [Art. 249, Revised Penal Code]. 6. Also, the circumstance of abuse of superior strength [Art. 14, para. 15, Revised Penal Code], which was alleged as an aggravating circumstance in the information, cannot be appreciated in this case. For superior strength to qualify or aggravate a crime, it must be clearly shown that there was deliberate intent to take advantage of it [People v. Bello, G.R. No. L-18792, February 28,1964, 10 SCRA 298]. In the instant case, there is no evidence to show that the accused purposely sought to use their superior strength to their advantage. Moreover, in the absence of direct evidence on how the killing was actually done, the actual participation of each accused in the killing and who actually inflicted the fatal wound, a finding that there was abuse of superior strength cannot be sustained [People v. Tulagan, G.R. No. 68620, July 22,1986,143 SCRA 107].

Neither may nocturnity [Art. 14, para. 6 of the Revised Penal Code] be considered to aggravate the crime because, as correctly held by the trial court, the prosecution failed to show that the accused purposely sought to commit the crime at nighttime in order to facilitate the achievement of their objective, prevent discovery or evade capture [Rollo, p. 38]. WHEREFORE, the judgment of the trial court is MODIFIED, and the accused-appellants Dominador Salcedo y Rubi, Dioscoro Salcedo y Rubi, and Oscar Rabino y Dimanarig are found GUILTY beyond reasonable doubt of the crime of HOMICIDE. Applying the Indeterminate Sentence Law, and in the exercise of the Court's discretion pursuant thereto, the accused-appellants are hereby sentenced to suffer the indeterminate penalty of from eight (8) years and one (1) day of prision mayor to seventeen (17) years and four (4) months of reclusion temporal. The award of indemnity in the amount of P30,000.00, and costs is AFFIRMED. SO ORDERED. Fernan, C.J., Gutierrez, Jr. and Bidin, JJ., concur. Feliciano, J., is on leave.