EN BANC

[G.R. No. 139177. August 11, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ALVIN VILLANUEVA, appellant.

D E C I S I O N

CORONA, J.:

For automatic review is the decision[1] of the Regional Trial Court, Branch 32, stationed in Agoo, La Union, finding appellant guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of death and to indemnify the heirs of the victim in the amounts of P50,000 as civil indemnity, P600,000 for actual damages and P1,000,000 for lost earnings.

The information that charged appellant for the offense alleged:

That on or about the 16th day of November, 1996, in the Municipality of Rosario, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, evident premeditation and treachery and being then armed with a knife, did then and there wilfully, unlawfully and feloniously attack, assault and stab with said knife one OTO-LEO BINAY-AN BRABANTE from behind, inflicting three (3) stab wounds upon the latter, one of which penetrated his heart, which directly resulted to (sic) his death, to the damage and prejudice of his heirs.

CONTRARY TO LAW.[2]

On arraignment, appellant pleaded not guilty to the charge. Forthwith, trial on the merits ensued. While the prosecution was adducing its evidence, appellant escaped from detention on October 9, 1997. The lower court thus proceeded with the trial of the case in absentia in accordance with Section 14(2), Article III of the 1987 Constitution.

The facts follow.

On November 15, 1996, at around 12 midnight, Marife Brabante was attending to her duties as cashier of the Highlander Store owned by her mother, Rita Binay-an, at Barangay Saitan, Camp 1, Rosario, La Union. She was assisted by Cheryl Dapiaoen and George Bautista. They were about to close the store when appellant, together with a certain Jerry, Teddy and an unidentified person, arrived.  They occupied one of the tables and started drinking the liquor which they brought with them. Appellant then asked Marife if they could stay until 5:00 a.m. but Marife refused since they were unruly. When the group was about to leave, Cheryl asked appellant to pay the amount of P35 as cover charge. At this point, appellant became angry and threw two bottles of gin on the floor. Marifes brother, Orland, who was sleeping in one of the rooms of the store, was awakened by the noise. He went out and told appellant not to create trouble. But appellant shoved him and left with a warning that he would return to kill somebody. Appellant got on his tricycle and bumped the door of the store while his companions threw rocks at it.

Meanwhile, Marifes other brother, Otoleo, got up from his bed and asked Cheryl to go with him to buy balut at the nearby Seven Star Store, which was only eight meters away from their store. After 30

minutes, appellant returned to Highlander Store with a knife. He walked past Marife and told her that she was not the one he was going to kill. Appellant went toward the Seven Star Store where Otoleo and Cheryl were then buying balut. Upon reaching the store, appellant suddenly stabbed Otoleo at the back. The victim turned to face appellant but the latter again stabbed him twice on the left armpit.  Otoleo fell to the ground and appellant ran away. Marife, who was outside the Highlander Store, rushed to the bloodied body of her brother and hugged him. She brought the victim to the Rosario District Hospital in Rosario, La Union where he was declared dead on arrival.

Dr. Godofredo Garcia of the Rosario District Hospital, La Union conducted a post mortem examination on the cadaver of Otoleo and prepared his findings and the death certificate showing the following:

Rigor mortis, stabbed (sic) wound, 2 cm. arm, clavicular area (L), 3 inches deep 2 cm. arm posterior aspect (L), axilla 2 inches; penetrating wound thru the 5th intercostal space, anterior axillary line with hemothorax (L) lung with clotted blood; penetrating wound, lung (L), pericardial sac with hematoma, penetrating (L) auricle and ventricle.[3]

Rita Binay-an, mother of the victim and owner of the Highlander Store, testified on the civil aspect of the case. She claimed to have spent the amount of P600,000 in connection with the death of her son. According to Rita, Otoleo was a second lieutenant in the Philippine Marines at the time of his death.

As earlier noted, appellant escaped from prison before the prosecution had completed the presentation of its evidence. Hence, he was deemed to have waived his right to present his evidence to dispute the charge.[4]

After trial on the merits, a decision was rendered by the trial court on November 20, 1997 convicting appellant of the offense charged:

WHEREFORE, in view of all the foregoing considerations, the accused ALVIN VILLANUEVA is hereby found GUILTY of the crime of MURDER as charged in the Information. He is hereby sentenced to DEATH, and to pay P50,000.00 for the death of the victim, indemnify the heirs of the victim in the amount of P600,000.00 actual damages, P1,000,000.00 in loss of earning and to pay the cost of the proceedings.

SO ORDERED.[5]

In his Brief, appellant insists that the trial court erred:

I

IN GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE AND HIGHLY INCONSISTENT, IF NOT CONFLICTING, TESTIMONIES OF THE PROSECUTION WITNESSES ANENT THE INCIDENT IN QUESTION.

II

IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.

III

IN CONVICTING HIM OF MURDER SINCE THE QUALIFYING CIRCUMSTANCES OF TREACHERY, EVIDENT PREMEDITATION AND NIGHTTIME ARE WANTING AND IN ERRONEOUSLY CONSIDERING FURTHER THE ACCUSED-APPELLANTS ESCAPE AS AN AGGRAVATING CIRCUMSTANCE, THUS THE PENALTY IMPOSED UPON HIM MUST BE ACCORDINGLY REDUCED.[6]

We shall jointly discuss the assigned errors since they are interrelated.

Appellant questions the credibility of prosecution witnesses Marife Brabante and Cheryl Dapiaoen as their testimonies were patently inconsistent and conflicting on material details. Appellant points out the following inconsistencies and contradictions in the testimonies of Marife and Cheryl:

(1) Marife first testified that appellant and his group arrived at the Highlander Store at around 12 midnight[7] but later on declared that they arrived at around 12:45 a.m.[8]

(2) Marife stated on direct examination that her brother, Orland, did not go out of his room when appellant became unruly.[9] On cross-examination, however, she admitted that Orland went out of his room.[10]

(3) Marife averred that appellant had three companions when he entered the Highlander Store. [11] On the other hand, Cheryl testified that appellant had four companions at that time.[12]

(4) Marife insisted that appellants companions were nearby and laughing when he stabbed Otoleo.[13] This was contrary to Cheryls testimony that appellants companions were merely observing the incident .[14]

(5) Marife claimed that she rushed to help her brother, Otoleo, when he fell down, [15] while Cheryl declared that she had to call Marife to inform her that Otoleo was stabbed by appellant.[16]

While the testimonies of the two prosecution witnesses differed in some respects, the aforementioned inconsistencies and discrepancies referred to collateral and minor matters. The details cited by appellant such as the exact time of their arrival at the store, the number of companions he had at the time he entered the store and the demeanor of his companions when he stabbed Otoleo, are all insignificant and inconsequential considering that they had nothing to do with the main scope of the inquiry the murder allegedly committed by appellant. Further, a miscalculation of time is too flimsy a reason to discredit a witness, especially where the exact hour is not an essential element of the offense, as in this case. Likewise, since several months had passed before Marife and Cheryl recounted their story before the trial court, it was impossible for them to have a total recall of the incident.

Indeed, neither inconsistencies on trivial matters nor innocent lapses affect the credibility of witnesses and the veracity of their declarations. On the contrary, they may even be considered badges of truth on material points in the testimony. [17] The testimonies of witnesses must be considered and calibrated in their entirety and not in truncated portions or isolated passages. [18] In the instant case, the testimonies of Marife and Cheryl were clearly consistent vis-a-vis the substantial aspects of the crime, i.e., the identification of appellant as the perpetrator of Otoleos death and the manner by which the crime was committed.

Although it is incumbent on the prosecution to establish the guilt of the accused beyond reasonable doubt, to justify acquittal based on such ground, the doubt should relate to the facts constitutive of the crime charged.[19]Discrepancies should touch on significant matters crucial to the guilt or innocence of the accused. Conversely, inconsistencies in details irrelevant to the elements of the crime are not grounds for acquittal.[20] Besides, as held in numerous decisions, when there is no evidence that the principal witness for the prosecution is moved by improper motives, such witness is entitled to full faith and credit.

[21] Certainly, Marife and Cheryl, in identifying appellant as the assailant, had no other motive than to seek justice for the death of Otoleo.

It should also be noted that the testimonies of Marife and Cheryl were corroborated on material points by the expert testimony of Dr. Garcia who conducted the post mortem examination on the body of Otoleo Brabante. He declared:

PROECUTOR CATBAGAN:

Q: And what was your finding in the person of the victim?

A: Post mortem examination reveals that the victim is already rigor mortis. There is stabbed (sic) wound in the arm, clavicular area left armpit. And the most fatal wound is in the armpit. The penetrating wound entering the heart and the lungs. There is a presence of clotted blood in the left lung. And the pericardial sac with hematoma, the cause of heart cardiac, left uricle and ventricle.

Q: How many wounds were there, doctor?

A: There were three wounds.

Q: And how deep are those wounds?

A: The two wounds in the left is 3 inches deep and the left axillary penetrating and almost left the heart and fatal wound. So that caused the death.

Q: Could you determine by those wounds what was the weapon used?

A: Sharp bladed weapon, sir.

COURT:

Q: Is it bladed?

A: Yes, sharp pointed bladed weapon, sir.

PROSECUTOR CATBAGAN:

Q: By the location of the wounds, could you determine the position of the assailant at the time he hit the victim?

A: The assailant is at the back because of the posterior arm, while this axilla, the fatal wound is on the side. So when the assailant is raising hand he thrust and injured him at the side. Supposing the assailant is right handed the possibility is in front or on the side.[22]

Clearly, the physical evidence amply reinforced the testimonies of Marife and Cheryl that appellant stabbed Otoleo with a hunting knife, once at the back and twice at the side. Physical evidence is a mute but eloquent testimony of the truth and rates high in the hierarchy of trustworthy evidence.[23]

The case of the prosecution was greatly strengthened by appellants escape from confinement during trial and by his failure to turn himself in despite subsequent conviction by the trial court.  It was only on November 2, 1998, one year after the trial court had promulgated its decision, when appellant was finally recaptured.[24] It is well-established that the flight of an accused is competent evidence of guilt and culpability, and, when unexplained, flight is a circumstance from which an inference of guilt may be drawn.[25] It must be stressed nonetheless that appellants conviction in this case was premised not on this legal inference alone but on the overwhelming evidence presented against him. The witnesses positive identification of appellant and narration of the circumstances of the victims death were sufficiently corroborated by the testimony of the physician who examined the victims body, and by the autopsy

report. These considerations convince the Court beyond reasonable doubt that appellant was the perpetrator of the crime.

The trial court, in imposing the death penalty on appellant, found that treachery, evident premeditation and nighttime attended the commission of the crime. It also considered appellants escape from detention as an aggravating circumstance.

The court a quo properly appreciated treachery against appellant which qualified the crime to murder, as evidenced by the salient parts of Marifes testimony, thus:

COURT:

Q: Did you see Alvin Villanueva was armed when he approached you?

A: Yes, sir.

Q: What is that arm or what kind of arm is that?

A: Rambo knife, sir.

Q: Can you describe this Rambo knife?

A: The length is long, like this (Witness demonstrating the length more than a foot and bladed knife).

ATTY. SAN JUAN:

Q: So when you saw them running towards your brother, what happened next?

A: He suddenly stabbed him at the back, sir.

Q: What else happened?

A: And he also stabbed at the left armpit.

COURT:

Q: Demonstrate how? (Witness going down from the witness stand and demonstrate (sic) how the accused stabbed Otoleo Brabante. Witness thrusting the knife).

A: Then Alvin Villanueva stabbed Otoleo at the back with his right hand. Then the brother turned to face the assailant and the assailant thrust the victim at the left armpit.[26]

It was clearly established that appellant attacked the victim suddenly, without warning and from behind, and when the unarmed victim tried to face appellant, the latter stabbed him again twice on his left armpit, thus giving the victim no time to flee or to prepare for his defense or enable him to offer the least resistance to the sudden assault. Treachery exists when the means, method or manner of attack employed by the accused assures no risk to himself from any defensive or retaliatory act which the victim might take.[27]

We do not, however, agree with the trial court that evident premeditation attended the commission of the crime in this case. The qualifying circumstance of evident premeditation must be established with equal certainty and clearness as the criminal act itself. It must be based on external acts which are evident, not merely suspected, and which indicate deliberate planning. In this case, no sufficient evidence exists to show that the requisites of evident premeditation were present, to wit: (a) the time when the offender decided to commit the crime; (b) an act manifestly indicating that he held on to his determination to commit it; and (c) a sufficient lapse of time between determination and execution to allow him to reflect upon the consequences of his act and for his conscience to overcome the resolution of his will after he decided to hearken to its warnings.[28] This circumstance cannot be appreciated against appellant as no

evidence was adduced to show that the killing was the result of meditation, calculation or resolution on his part. There was no proof that, when appellant went to the Highlander Store, he already had plans to kill Otoleo. Neither was there any evidence of the time when the intent to commit the crime was engendered in the mind of appellant. Likewise, the time interval of 30 minutes between the altercation at the Highlander Store and the actual assault on Otoleo was too brief to have enabled appellant to ponder over the consequences of his intended act.

The trial court also erred in appreciating nighttime as an aggravating circumstance.  At the outset, it should be noted that the circumstance of nighttime was not alleged in the information as mandated by Section 8, Rule 110 of the Revised Rules of Criminal Procedure. And even if alleged, nighttime cannot properly be considered in this case because, although the crime was committed late at night, there was no evidence that nighttime facilitated the commission of the crime, or that it was specially sought by the offender to ensure the commission thereof, or that the offender took advantage of it for impunity. [29] The record does not show that appellant deliberately sought the cover of darkness when he assaulted Otoleo Brabante. The prosecution established no more than the simple fact that the crime was committed at night.

Moreover, the lower court improperly considered appellants escape from detention as an aggravating circumstance. The enumeration of aggravating circumstances under Article 14 of the Revised Penal Code is exclusive[30]and flight is certainly not one of those specified in said article.

The penalty for murder under Article 248 of the Revised Penal Code as amended by RA 7659 is reclusion perpetua to death. Inasmuch as the crime was not attended by any aggravating circumstance, the penalty to be imposed upon appellant must be the lesser penalty of reclusion perpetua.[31]

The award of P50,000 as civil indemnity should be upheld without need of proof, the same being in accordance with prevailing jurisprudence and the policy of the Court.[32]

However, we do not find the grant of P600,000 for actual damages to be properly substantiated by evidence. The trial court based its award mainly on the testimony of the victims mother and on the submitted list of expenses allegedly incurred in connection with the death, wake and burial of the victim. The award of actual damages may not be made on the basis alone of a handwritten enumeration of the supposed expenses incurred.

The recent case of People vs. Abrazaldo [33]  allows the grant of temperate damages in the amount of P25,000 if there is no evidence of burial and funeral expenses. This is in lieu of actual damages as it would be unfair for the victims heirs to get nothing, despite the death of their kin, for the reason alone that they cannot produce any receipts. We also ruled there that temperate and actual damages are mutually exclusive in that both may not be awarded at the same time, hence, no temperate damages may be granted if actual damages have already been granted.

In the present case, only the amount of P13,100 was supported by receipts.[34] Ordinarily, this is all Otoleo Brabantes heirs should be entitled to by way of actual damages. However, we find this anomalous and unfair because the victims heirs who tried but succeeded in proving actual damages to the extent of P13,100 only, would be in a worse situation than, say, those who might have presented no receipts at all but would now be entitled to P25,000 temperate damages.

We therefore rule that when actual damages proven by receipts during the trial amount to less than P25,000, as in this case, the award of temperate damages for P25,000 is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual damages proven exceeds P25,000, then temperate damages may no longer be awarded; actual damages based on the receipts presented during trial should instead be granted.

Likewise, we cannot sustain the grant of P1,000,000 for loss of earnings. No document whatsoever was submitted to support such an award. The indemnification for loss of earning capacity partakes of the

nature of actual damages, which must be duly proven. [35] In this case, Rita Binay-an, mother of the victim, merely declared that her son was a second lieutenant in the Philippine Marines but gave no statement of her sons monthly salary. Thus, the trial court simply presumed the amount of Otoleos earnings. Since the prosecution did not present any evidence of the current income of the victim, the indemnity for lost earnings was speculative and must be rejected.

Moral damages cannot also be awarded because no evidence, testimonial or otherwise, was presented by the prosecution to support it. As to exemplary damages, the law is clear that they can be recovered in criminal cases only when the crime is committed with one or more aggravating circumstances, [36] none of which was present in this case.

WHEREFORE, the decision of the court a quo is hereby AFFIRMED with MODIFICATION. Appellant Alvin Villanueva is found guilty of murder and is accordingly sentenced to reclusion perpetua. He is also ordered to pay the heirs of the victim the amounts of P50,000 as civil indemnity and P25,000 as temperate damages. The award for the loss of earning capacity of the deceased is deleted.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

Callejo, Sr., J., on leave.

EN BANC

[G.R. No. 146308. July 18, 2002]

PEOPLE OF THE PHILIPPINES, appellee, vs. SIXTO PARAGAS y DELA CRUZ and AMADO PARAGAS y ABALOS, appellants.

D E C I S I O N

PANGANIBAN, J.:

Under the present Rules on Criminal Procedure, qualifying and aggravating circumstances must be alleged or specified in the Information. Otherwise, even if they are proven, they cannot be appreciated in determining the nature of the crime and imposing the penalty.

Statement of the Case

For automatic review by this Court is the September 14, 2000 Decision[1] of the Regional Trial Court (RTC) of Pasig City, Branch 263, in Criminal Case No. 105201, finding Sixto Paragas y dela Cruz and Amado Paragas yAbalos guilty of murder beyond reasonable doubt and sentencing them to death. The dispositive portion of the Decision reads as follows:

WHEREFORE, the Court finds both the accused Sixto Paragas and Amado Paragas GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized in Art. 248 of the Revised Penal Code,

as amended. Accordingly Sixto Paragas and Amado Paragas are hereby sentenced to suffer the penalty of Death.

Moreover, they are ordered to indemnify, jointly and severally, the heirs of the victim the following:

1. The sum of P50,000.00 for the death of the victim;2. The sum of P100,000.00 as moral damages.

Costs against the accused.[2]

Appellants were charged in the Information[3] dated March 15,1994, in these words:

That on or about the 4th day of March 1994 in the Municipality of Tag[u]ig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, armed with a bladed weapon, with intent to kill and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and stab with said bladed weapon one Ferdinand Gutierrez on the left side of his chest, thereby inflicting upon the latter [a] mortal wound which caused his death.[4]

Duly assisted by their counsel,[5] appellants pleaded not guilty to the charge during their arraignment on April 26, 1994.[6] After due trial, the court a quo rendered the assailed Decision.

The FactsVersion of the Prosecution

In its Brief,[7] the Office of the Solicitor General (OSG) presents the prosecutions version of the facts as follows:

Ferdinand Gutierrez, single and residing at PNR Site, Bicutan, Metro Manila, operates a watch repair stall at LMR Tenement Market, Taguig, Metro Manila. Appellant Amado Paragas is a market stall owner at the LMR Tenement Market and serves as board director of the Western Vendor Multi-Purpose Cooperative. His co-appellant, Sixto Paragas, is his cousin/caretaker/salesman. Both appellants reside at the LMR Tenement Market, Taguig, Metro Manila which is five (5) minutes away by car from the place where the criminal incident happened.

Prior to the subject incident, co-appellant Sixto filed against witness Lilia Serranos son, Allan, a complaint for Highway Robbery allegedly committed on January 23, 1994. In relation to this complaint, Ferdinand Gutierrez became a witness for Allan and executed on February 22, 1994 a sworn statement before the Asst. Provincial Prosecutor of Pasig where he attested that Allan was not among those whom Sixto had a fistfight with on January 23, 1994.

On March 4, 1994, at around 7:30 in the evening, Ferdinand Gutierrez and prosecution witnesses, namely: Robert Venturado, Alejandro Malila, Virgilio Mabbun and Eduardo Peralta, were at the Caltex gasoline station located near the Bliss, FTI Compound, Taguig, Metro Manila. They were waiting for a public transportation. Except for Malila and Mabbun who were co-workers, the rest were strangers to one another. Momentarily, a well-lighted passenger jeepney bound for Tanyag, Taguig, Metro Manila stopped at the gasoline station to pick up passengers. The aforenamed witnesses all boarded the vehicle. Ferdinand Gutierrez and appellants were among the first to board the jeepney. Ferdinand seated himself in the front

seat of the vehicle, between the jeepney driver and a lady passenger. On the other hand, co-appellant Sixto, who was wearing short pants, sleeveless shirt and with a towel tied on his forehead sat behind the driver and Ferdinand. Appellant Amado, who was wearing long sleeves sat on the opposite bench, near the rear door of the vehicle.

The jeepney cruised inside the FTI Compound in Taguig for about ten (10) minutes. As they were passing under a bridge, co-appellant Sixto was seen glancing at Amado as if waiting for a response. When appellant Amado nodded his head, his co-appellant Sixto rose from his seat and grabbed Ferdinand by the neck. With his left arm, co-appellant Sixto stabbed Ferdinand on the left chest with a bladed weapon. Thereafter, co-appellant Sixto immediately alighted from the jeepney and fled towards the direction of the LMR Tenement Market. The other passengers namely: Mabbun, Peralta and Venturado, immediately rose from their seats to chase the assailant but they were prevailed upon by appellant Amado to stay put in their places as he told them that he will be the one to chase co-appellant Sixto. Appellant Amado directed them to assist and bring the victim to the hospital. However, it was observed that appellant Amado simply walked away and did not run after Sixto.

The jeepney driver, together with Mabbun, Peralta, Malila and Venturado, brought Ferdinand to the Paraaque Medical Center Hospital where he died upon arrival. In his autopsy report, Dr. Antonio Vertido, NBI Medico-Legal Officer stated that the victim died of cardiac tamponade secondary to stab wound in the chest. That same night of March 4, 1994, Malila executed a sworn statement about the incident.[8] (Citations omitted)

Version of the Defense

Resorting to the defense of denial, appellants narrate in their Brief[9] their version of the facts as follows:

Accused AMADO PARAGAS expressed absolute disavowal of the crime charged. On May 11, 1994, at around 6:00 oclock in the morning, he started his routinary chore of vending fruits and vegetables in his stall at the LMR Market, Taguig, Metro Manila, together with his cousin and helper, Sixto Paragas. At around 12:00 noon of the same date, some policemen, led by a certain Graciano Cangco, invited them for a salu-salu at Block 1. After eating their lunch, the policemen suddenly put handcuffs on their wrists and hit his stomach. Sixto Paragas was likewise hit and kicked by the policeman. The two of them were then brought by the policemen at a police mini-station in Taguig and locked them inside a cell, without showing them any warrant for their arrest nor informing them of its cause. It was only during the night of March 11, 1994 when the jail warden informed them that they were suspects in a stabbing incident that occurred on March 4, 1994. He flatly denied this accusation.

On March 4, 1994, he started his day by vending fruits and vegetables at his stall. At around 4:00 oclock in the afternoon, he proceeded to a meeting called by his cooperative, the Western Bicutan Multi-Purpose Cooperative, held at the East Service Road, Western Bicutan. The meeting lasted between 4:00 oclock in the afternoon until 7:30 in the evening and was attended by at least twenty (20) members of the organization, though only about eighteen (18), including himself, had signed the attendance sheet and the minutes of the meeting. Accused Amado Paragas surmised that they were being implicated in the stabbing incident for the reason that the victim, Ferdinand Gutierrez, was a witness for the accused in a criminal case instituted by his cousin and co-accused, Sixto Paragas, against a certain Alan Serrano.

The testimony of accused Amado Paragas as to his whereabouts relative to the time between 4:00 oclock PM to 7:45 in the evening of March 4, 1994 was corroborated by witness NENITA TUMOL. The said witness is the secretary of the Western Bicutan Vendors Multi Purpose Cooperative where the accused, Amado Paragas, is a Board of Director. On March 4, 1994, Amado Paragas arrived for the meeting of the cooperative at around 4:35 PM. As secretary, she required those present at the said meeting, including Amado Paragas, to sign the attendance sheet. The witness likewise reiterated that Amado Paragas actively participated on the issues being deliberated during the meeting.

The testimonies of the first two witnesses for the defense, relative to the presence of accused Amado Paragas at the meeting of the cooperative, between 4:00 PM to 7:45 PM of March 4, 1994, was further corroborated byFELINO ILAGAN, the chairman of the Western Vendor Multi Purpose Cooperative. The witness further testified that after the adjournment of the meeting at around 7:45 P.M. of March 4, 1994, he, together with the accused Amado Paragas proceeded to the stall of the latter at the LMR Market to further discuss their agenda. There, he saw Sixto Paragas taking care of the stall of Amado Paragas.

Accused SIXTO PARAGAS, testifying on his behalf, corroborated the testimony of co-accused Amado Paragas. Accordingly, on March 11, 1994, at around 10:30 in the morning, a certain Lilia Serrano, together with some companions, approached him while he was peddling fruits at a stall inside the Tenement Market, Taguig, Metro Manila. Mrs. Serrano pleaded [with] him to withdraw a case which he had filed against some of her children. When he replied that the case was already filed in court, Mrs. Serrano and her companions threatened that they would implicate him in a case, even if he is innocent. The womans companions, who turned out to be policemen, then invited him to the police precinct near the Tenement Market in the guise of celebrating their Lieutenants birthday. The policemen, however, prevented him from getting out of the precinct even after he had partook of the food served by the birthday celebrant. A policeman in uniform named Tangco, then came, and frisked and handcuffed him. Queried whether they had a warrant for his arrest, the policemen retorted that he would just be asked questions at the Taguig Municipal Hall, where he was sent inside a cell. At around midnight, he was blindfolded and brought out of the cell. He felt that many people were in the vicinity and that somebody was pointing at him. He then heard somebody says: iyan si Sixto Paragas. He surmised that the voice sounded like that of Lilia Serranos. The people around him then asked him to admit a murder charge against him and he was beaten for about three (3) hours.

NATIVIDAD LAUREANO, another vendor of the LMR Market, Taguig, Metro Manila, testified that accused Amado Paragas and Sixto Paragas were at their stall from 7:00 AM to 8:00 P.M. of March 4, 1994.[10] (Citations omitted)

Ruling of the Trial Court

The trial court gave full faith and credence to the testimonies of the four (4) prosecution witnesses, who had been aboard the jeepney where the stabbing incident occurred. It ruled that their testimonies had corroborated each other on every material point and clearly established the identities of appellants as the culprits.[11]

The RTC rejected appellants alibi, which had failed to show that it was physically impossible for the two to be at the scene of the crime at the time of the stabbing incident. It also concluded that conspiracy could be inferred from their acts. Finally, it held that the prosecution was able to establish the elements of evident premeditation as a qualifying, and treachery as an aggravating, circumstance.

Hence, this automatic review.[12]

Issues

Appellants assign three alleged errors for our consideration:

I

The Court a quo gravely erred in giving undue credence to the alleged positive identification of the accused by the prosecution witnesses as the perpetrators of the crime charged;

II

The Court a quo gravely erred in finding both the accused guilty of the crime of murder despite the insufficiency of evidence adduced to prove the qualifying circumstances thereto;

III

The Court a quo committed a reversible error in not imposing the proper penalty for the crime allegedly proven.[13]

In sum, the issues boil down to two: (1) sufficiency of the prosecution evidence and (2) proper penalty for the crime proven.

The Courts Ruling

The appeal is partly meritorious; appellants are guilty of homicide only, not murder.

First Issue:Sufficiency of Prosecution Evidence

Appellants contend that the RTC erred in giving credence to the identification made by the prosecution witnesses. They argue that since the witnesses had only a fleeting observation of the stabbing incident, the latter could not have positively identified the perpetrators.[14] We are not convinced.

Well-settled is the rule that the assessment by the trial court of the credibility of witnesses is accorded great respect.[15] This is because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude.[16] It is aided by various indicia that are not readily apparent from the records: the candid answer, the hesitant pause, the nervous voice, the undertone, the befuddled look, the honest gaze, the modest blush, or the guilty blanch reveal if they are telling the gospel truth or just spinning a web of lies.[17] Hence, its findings on such matters are binding and conclusive on appellate courts, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.[18]

In the present case, the RTC found the testimonies of the four passenger-witnesses to be credible, coherent and straightforward accounts of what had transpired inside the passenger jeepney on the night of March 4, 1994.[19]Prosecution Witness Roberto Venturado narrated the circumstances surrounding the stabbing incident as follows:

Q Mr. Venturado, do you remember where you were at around 7:30 in the evening of March 4, 1994?

A I was at the Caltex on my way home to Bicutan, sir.

x x x x x x x x x

Q You said you were on your way to your home, why were you there?

A I was on my way home and the jeepney passed by.

Q When the jeepney passed, what did you do?

A We rode the jeepney, sir.

Q So that was the jeep that you took on your way home to Bicutan?

A Yes, sir.

Q While you were on the jeep, do you remember of anything unusual that happened inside?

A Yes, sir, there is.

Q What was it?

A When the jeepney went around the FTI and when it passed under the bridge, when I was getting my fare from my pocket.

Q While you were getting that fare, what happened?

A When I was getting my fare from my pocket, this suspect looked at the back at the side and he nodded his head, tumango.

Q After this man who nodded his head or tumango what happened[?]

Atty. Ilagan

Thats leading, your Honor.

COURT

Witness may answer.

A When the other suspect was tumango to the other suspect, the other suspect suddenly put his arm around the victims neck.

x x x x x x x x x

Q After putting his arm or placed his arm around the neck of the victim, what else happened, if any?

A After putting his arms on the victim, he drew out a bladed weapon and then stabbed the victim.

Q Where was the victim seated inside that jeepney?

A Beside the driver, sir.

Q How far was Sixto Paragas from the victim?

A Sixto was sitting at the back of the driver.

Q How many times if you know did Sixto Paragas stab the victim?

A That is the one I do not know, sir.

Q After he stabbed the victim, what happened?

A After stabbing the victim, we were about to run after the suspect and we were about to go down and run after the suspect but Amado Paragas stopped us and told us that he will be the one to run after the suspect.

Q So, you mean to say that after stabbing, Sixto Paragas hurried out of the passenger jeep thats why you had to chase him?

Atty. Ilagan

Its leading your Honor.

Q Okay, you said you were to chase Sixto Paragas, where was he when you started to go down and chase and attempted to chase him?

A He was a little bit far from the jeepney already when we were about to run after him, sir, when we were stopped by Amado Paragas and said thatwag na raw kaming humabol at siya na lang ang bahala.

Q When Amado Paragas stopped you telling you that he will be the one to chase Sixto Paragas, what did you do?

A What we did was we just help the victim to the hospital, sir.

x x x x x x x x x

Q Did you see what Amado Paragas did after he told you that he will be the one to run after Sixto Paragas?

A He ran after Sixto Paragas but his running was slower than the running of a dog, sir.[20]

Further, Prosecution Witness Alejandro Malila was certain as to the identities of appellants, as shown during his cross-examination which proceeded in this manner:

Q Would you inform the Honorable Court aside from Mabun, if you come to know the name of the passengers at the back?

A No, sir.

Q As a matter of fact, you do not/or you did not recognize anyone of them?

A By name, sir, no, sir.

Q But you saw their faces, is that what you want us to understand?

A Yes, sir.

Q Because you were looking at them sternly?

A Yes, sir.

Q Why, do you do that everytime you are riding a jeepney?

A Nakasanayan ko na pon iyon, sir. Kada pagsakay ko ng jeep, tumitingin po ako sa mga pumapasok, at least kung may vacant pa, puwede mong ituro sa kanila po.[21]

The testimonies of the prosecution witnesses more than sufficiently established the fact of the killing and the identities of the persons responsible therefor.[22]

First, the witnesses had a clear view of the stabbing incident, because they were seated next to one another while on board a passenger jeepney. Besides, the jeepney was lit, and the light from a Meralco post further illumined the scene.[23] As witnesses of violence, their most natural reaction was to strive to look at the appearance of the perpetrators of the crime and observe the manner in which it was committed.[24] Most often the faces and the body movements of the assailants create lasting impressions that cannot be easily erased from memory.[25]

Second, the witnesses recollections of the specific details of the crime[26] -- the fact that the victim was stabbed on the chest, the use of a knife in stabbing him, and the position of the assailant -- were corroborated by the medicolegals testimony[27] and the Autopsy Report.[28] A detailed testimony acquires greater weight and credibility when confirmed by autopsy findings. [29] In addition, the usually stressful condition of the witnesses can serve as a catalyst for their recollections.[30]

Third, there is no evidence to indicate that the witnesses for the prosecution were moved by improper motive and, thus, their testimonies are entitled to full faith and credit.[31]

It is a well-settled rule that the positive identification of the accused -- where categorical, consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter -- prevails over alibi and denial.These lines of defense, if not substantiated by clear and convincing evidence, are deemed to be negative and self-serving.[32]

Appellants Alibi

Appellant Sixto Paragas insists that he was at the LMR Market, tending the stall of Amado Paragas from 5:00 a.m. to 7:30 p.m. on the day of the stabbing incident. [33] The latter claims to have attended a meeting of the Western Bicutan Vendors Multipurpose Cooperative from 4:35 p.m. to 7:45 p.m.[34]

Basic is the rule that alibi is always viewed with suspicion, because it is inherently weak and unreliable.[35] Like denial, it amounts to nothing more than negative and self-serving evidence undeserving of any weight in law.[36]Alibi assumes significance or strength only when it is amply corroborated by a credible witness.[37] For it to prosper, the accused must be able to prove (a) that they were in another place at the time of the perpetration of the offense, and (b) that it was physically impossible for them to be at the scene of the crime at the time it happened.[38]

In the case at bar, the alibis of appellants fail to meet the requisites for a valid defense. [39] While their presence at another place at the time of the perpetration of the offense was tried to be established by the defense witnesses, the latter failed to raise any scintilla of doubt about the physical impossibility of the formers presence at the locus criminis or its immediate vicinity at the time of the incident. [40]

In fact, Sixto Paragas admitted that the flea market, where he allegedly was at the time of the incident, was near the Food Terminal Incoporated (FTI) compound -- the crime scene. [41] Thus, there still existed the possibility of his leaving the LMR stall and being physically present at the crime scene or its immediate vicinity.[42] Amado Paragas, during his cross- examination, likewise admitted that the distance of the FTI complex from the place where the meeting was held was more or less one kilometer. [43] It was therefore not physically impossible for him to be at the locus criminis and then go back to the meeting place.[44]

Thus, appellants alibis, being inherently weak, must fail vis--vis the witnesses confirmation of their presence at the crime scene.[45] Between appellants negative defenses and the witnesses positive testimonies, there is no doubt that the latter are entitled to credence.[46]

Second Issue:Crime and Punishment

Evident PremeditationNot Proven

Appellants argue further that the RTC erred in appreciating the qualifying circumstance of evident premeditation, which the prosecution had failed to establish.[47] We agree. To show the elements of evident premeditation, the trial court held as follows:

A perusal of the statement given by Ferdinand Gutierrez shows that it exculpates the sons of Lilia Serrano from the charge imputed to them by the accused Sixto Paragas. This statement may have impelled the accused to kill the victim so that he may no longer testify in court. The victim gave the statement on February 22, 1994 which the Court infers to be the time when the accused had determined to eliminate his victim. The fact that he was later positively identified as the killer of Mr. Gutierrez indicates that he had clung to his determination to kill him. Considering further that it took the accused thirteen days within which to kill his victim shows that he had sufficient time to reflect on his course of action.[48]

Like any other circumstance that qualifies a killing as murder, evident premeditation must be established by clear and positive evidence;[49] that is, by proof beyond reasonable doubt.[50] Essentially, premeditation is present if, during a space of time sufficient to arrive at a calm judgment, cool thought or reflection upon the resolution to carry out the criminal intent precedes the execution of the act[51] Indispensable to proving premeditation is showing how and when the plan to kill was hatched or how much time had elapsed before it was carried out.[52]

The following are the elements of this qualifying circumstance: (1) the time when the accused decided to commit the crime; (b) the overt act manifestly indicating that they clung to their determination; and (c) a sufficient lapse of time between the decision and the execution, allowing the accused to reflect upon the consequences of their act.[53]

In the case at bar, it cannot be presumed that Sixto Paragas decided to kill the victim when the latter, in his court testimony, exculpated the sons of Lilia Serrano. Premeditation must be based on external acts that are not merely suspicious but also notorious, manifest, evident and indicative of deliberate planning.[54] Even assuming that Sixto had intended to commit the crime, no convincing evidence was presented by the prosecution to prove when and how he and Amado had concocted the plan to kill, or clung to their determination to kill, the victim.[55] Neither does it appear that their decision to kill prior to the moment of its execution was the result of meditation, calculation, reflection, or persistent attempts. [56] Without such evidence, mere presumptions and inferences will not suffice.[57]

Hence, because the prosecution failed to establish the presence of all the elements of evident premeditation, it cannot be appreciated to qualify the killing as murder. [58] Thus, appellants can be convicted of homicide only,[59]for which the imposable penalty under the Revised Penal Code is reclusion temporal.[60]

Conspiracy Proven

Conspiracy exists when two or more persons come to an agreement and decide on the commission of a felony.[61] Well-settled is the rule that the existence of conspiracy cannot be presumed. [62] Thus, like any other element of the crime, it must be established and proven beyond reasonable doubt. [63] There is no necessity for direct proof that the co-conspirators had a prior agreement to commit the crime; proof that they acted in concert to pursue the same objective is sufficient. [64] Thus, criminal conspiracy must be founded on facts, not on mere surmises or conjectures.[65]

In the instant case, as correctly found by the RTC, the prosecution was able to show that appellants had conspired to kill the victim,[66] as shown by the following facts:

First, Sixto glanced at Amado and the two nodded at each other before Sixto stabbed the victim. Second, Amado immediately and successfully prevented the other passengers from pursuing Sixto by volunteering to go after Sixto instead. Third, Mr. Venturado characterized the pursuit made by Amado to be half-hearted while Mr. Peralta testified that both accused were simply walking and not running. Fourth, by their actions, the accused were able to successfully consummate the crime with the least resistance from the other passengers. From these facts, the Court can conclusively infer the presence of a concerted action and a community of interest.[67]

The foregoing acts of appellants before, during and after the crime clearly indicated joint purpose, concerted action and concurrence of sentiments.[68] Since their collective and individual acts demonstrated the existence of a common design for the accomplishment of the same unlawful purpose, conspiracy was evident; thus, all the perpetrators should be held liable as principals. [69] All in all, the prosecution satisfied the quantum of evidence required in a criminal prosecution, and the trial courts finding that appellants committed the crime beyond reasonable doubt was indubitable and logical under the circumstances.[70]

Treachery ImproperlyAppreciated by the Lower Court

Appellants aver that the RTC erred in appreciating the aggravating circumstance of treachery, as it was not alleged in the Information -- either as a qualifying or as an aggravating circumstance. We agree.

Under the old Rules on Criminal Procedure, only qualifying circumstances were required to be alleged in the Information. On the other hand, aggravating circumstances, even if not alleged, could still be appreciated except in cases wherein they would result in the imposition of the death penalty.[71] However, the 2000 Rules on Criminal Procedure require that both qualifying and aggravating circumstances must be specifically alleged in the Information. [72] Sections 8 and 9 of Rule 110 now provide as follows:

SEC 8. Designation of the offense. The complaint or information shall state the designation of the offense given by statute, aver the acts or omission 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.

Even if treachery were duly established by the prosecution, it cannot be held to qualify or aggravate the offense charged because it was not alleged in the Information. [73] This principle is now applicable to all criminal cases, not only to those in which aggravating circumstances would increase the penalty to death.[74]

The Information in the present case did not allege the presence of treachery.  Hence, this circumstance cannot be appreciated in determining the crime committed and the penalty to be imposed.

Article 249 of the Revised Penal Code prescribes reclusion temporal as the penalty for homicide. There being no aggravating or mitigating circumstance, the imposable penalty on appellants is the medium period, pursuant to Article 64(1) of the same Code; or 14 years, six (6) months and one (1) day to 17 years and four (4) months. Applying the Indeterminate Sentence Law, the penalty imposable is six (6) years and one (1) day of prision mayormedium, as the minimum penalty; to 14 years, eight (8) months and one (1) day of reclusion temporal medium, as maximum penalty.

WHEREFORE, the Decision of the RTC of Pasig City (Branch 263) is MODIFIED. Appellants are CONVICTED of homicide and SENTENCED to suffer the indeterminate sentence of six (6) years and one (1) day of prision mayor medium, as minimum; to 14 years, eight (8) months and one (1) day of reclusion temporal medium, as maximum. They are also ORDERED TO PAY the heirs of the victim the amount of P50,000 as indemnity ex delictoand another P50,000 as moral damages pursuant to current jurisprudence.[75] No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Acting C.J.), Puno, Vitug, Kapunan, Mendoza, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.

Davide, Jr., C.J., on leave.

EN BANC

[G.R. No. 140897. February 19, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EFIPANIA DELA CRUZ GO (at large) and RIZ JARLOS Y MATEO, accused.

RIZ JARLOS Y MATEO, accused-appellant.

D E C I S I O N

QUISUMBING, J.:

For automatic review is the decision[1] dated August 31, 1999 of the Regional Trial Court of Marikina City, Branch 272, in Criminal Case No. 98-2397-MK, which found the accused-appellant Riz Jarlos y Mateo guilty of the murder of Ronald Beda Pillejera [2] and sentenced him to suffer the supreme penalty of death. He was also ordered to pay the victims heirs P47,500 actual damages, P50,000 indemnity and P50,000 moral damages and to pay the costs of suit.

The facts of the case are as follows:

In an Information dated March 20, 1998, Jarlos, together with his co-accused Go, were charged with the crime of murder allegedly committed as follows:

That on or about the 20th day of November 1997, in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, armed with a gun, with intent to kill abused [sic] of superior strength, evident premeditation and treachery did then and there willfully, unlawfully and feloniously attack, assault and shot one Ronald Beda Pillejera, thereby inflicting upon the latter gun shot wounds which directly caused his death.

CONTRARY TO LAW.[3]

Accused Efipania dela Cruz Go remains at large. But accused-appellant Riz Jarlos y Mateo was arraigned on May 19, 1998, and with assistance of counsel, pleaded not guilty. Trial on the merits ensued thereafter.

Arman Gunio, the lone prosecution eyewitness, testified that at around 8:45 P.M. [4] of November 20, 1997, he was standing on the street in front of his residence in Calderon Street, Calumpang, Marikina, having a conversation with his neighbors.[5] Around twelve (12) meters away,[6] a white Mitsubishi Lancer was traveling down the road, when it was suddenly cut by a maroon Mitsubishi Space Wagon. Shouts were exchanged, then the driver of the maroon vehicle alighted, positioned himself at the drivers side of the white car and shot its driver. The body of the driver was slightly exposed outside the vehicle and so the assailant shot him again. Four (4) successive shots were heard and the eyewitness and neighbors ran for cover.[7] But before witness Gunio ran, the assailant turned his face towards him and the witness was able to see the assailants face, which was illuminated by the white cars headlights. [8] The driver of the maroon vehicle was later identified as the appellant Riz Jarlos and the driver of the white car, the victim Ronald Beda Pillejera.

Dr. Anthony Llamas, Medico-Legal Officer of the Philippine National Police Crime Laboratory, conducted the autopsy of Pillejeras remains and found the following gunshot wounds:

1) Gunshot wound, thru and thru, point of entry, right pre-auricular region, measuring 0.8 x 0.8 cm, 142 cm from the anterior midline, 135 cm from the vertex, with an area of tattooing measuring 12 x 12 cm, 14 cm right of the anterior midline, and a contusion collar measuring 0.2 cm inferiorly and 0.1 cm others, directed posteriorwards, upwards and to the left, fracturing the right temporal bone and the left parietal bone, lacerating both cerebral hemisphere and making a point of exit at the left parietal region, measuring 2.5 x 1 cm, 7 cm from the midsagittal line.

xxx

3) Gunshot wound, point of entry, right ear, measuring 0.6 x 0.6 cm, 9.5 cm from the posterior midline, 11.5 cm from the vertex, directed posteriorwards, upwards and to the left point of re-entry, right post-auricular region, measuring 0.8 x 0.8 cm, 11.5 cm from the posterior midline, 11.3 cm from the vertex directed posteriorwards, upwards and to the left, fracturing the right temporal bone and lacerating through both cerebral hemispheres with 5 metallic fragments recovered thereat.

4) Gunshot wound, point of entry, right temporal region, measuring 0.6 x 0.6 cm, 7 cm from the posterior midline, 11 cm from the vertex, with a contusion collar measuring 0.3 cm laterally and inferiorly, directed posteriorwards, upwards and to the left, fracturing the right temporal bone and lacerating both cerebral hemispheres, with 4 metallic fragments recovered thereat.

xxx

8) Gunshot wound, thru and thru, point of entry, left suprascapular region, measuring 0.8 x 0.8 cm, 4.5 cm from the posterior midline, 14.5 cm from the vertex, with a contusion collar measuring 0.3 cm medially and superiorly, directed anteriorwards, downwards and lateralwards, fracturing the first left posterior rib and lacerating the upper lobe of the left lung, making a point of exit at the left infraclavicular region, measuring 2.3 x .3 cm, 5 cm from the anterior midline.

9) Gunshot wound, point of entry, left shoulder, measuring 1 x 1 cm, 17 cm from the posterior midline, 15 cm from the vertex, with a contusion collar measuring 0.5 cm laterally and superiorly, directed anteriorwards, downwards and medialwards, fracturing the acromion process of the left scapula and lacerating both lobes of the left lung with a slug recovered in the thoracic cavity.

10) Gunshot wound, point of entry, middle 3rd of the right arm, measuring 1 x 0.9 cm, 0.3 cm inferiorly, directed anteriorwards, upwards and medialwards, fracturing the right humerus, with a slug recovered must beneath the skin of the right shoulder.

xxx

12) Gunshot wound, thru and thru, point of entry, proximal 3rd of the left forearm, measuring 1 x 1 cm, along its posterior midline, with a contusion collar measuring 0.3 cm laterally, directed slightly anteriorwards, slightly upwards and medialwards, lacerating the underlying soft tissues, making a point of exit, proximal 3rd of the left forearm, measuring 1.8 x 1.67 cm lateral to its posterior midline making a point of re-entry at the left costal region, measuring 1 x 0.8 cm, 202 cm from the anterior midline, 130 cm from the heel, with a uniform contusion collar measuring 0.3 cm, directed slightly upwards and to the right, passing thru the 9th intercostal space, lacerating the diaphragm and the spleen, with a slug recovered at the 11th intercostal space.

xxx

16) Gunshot wound, superficial, distal 3rd of the left leg, measuring 1.8 x 1 cm, along its anterior midline, 5 cm from the heel.[9]

Dr. Llamas testified that the first shot hit the victim on the left trunk. Based on the angle of the wound, the gun was pointed slightly downwards, meaning that the victim was most probably seated with the assailants gun level with the victim when fired.[10] He opined that the last shot made was aimed at the head, hitting the victim on the right side of the head before the ear, and based on the tattooing, [11] it was fired at close range or at least six (6) inches to two (2) feet away from the victim. [12] However, he stated that even before the last wound was inflicted, the victim was already dead because of two (2) earlier shots to the head[13] and an aggregate of six (6) fatal wounds.[14]

Expert witness Police Inspector Maritess Bugnay testified that she conducted a ballistic examination of the eight (8) fired cartridge cases[15] and three (3) metallic fragments[16] found at the scene of the crime. She compared these to the three (3) test bullets[17] of the 9-mm pistol[18] retrieved from Jarlos. Her findings were that all of these matched and they led to the conclusion that these were fired from one and the same pistol.[19]

Prosecution witness Romeo de Guzman, a Firearms and Explosives Officer of the Philippine National Police, testified that appellant Jarlos was a registered firearm holder of the pistol used in the crime. Appellant had authority to possess the pistol,[20] as shown by the certificate[21] and license[22] issued by Firearms and Explosives office, according to the witness.

Appellant invoked self-defense. He alleged that the vehicle he was driving was bumped from behind. He went out of his vehicle to confront the offending driver. But instead he saw a hand poke out from the front passengers seat window, wielding a gun which fired at him. [23] Appellant said he then crawled back to his car and retrieved his own gun. He heard the drivers car door open and saw the driver run away.[24] He then exchanged fire with the gunman in the white car, and when the latter fell down, he recognized him to be victim Pillejera, with whom he earlier had two altercations. [25] Appellant added Pillejera had previously filed a case against appellant for grave threats,[26] and had been calling appellants home, threatening to kill appellant and his family.[27] Appellant believed Pillejera was jealous because appellant and co-accused Efipania Go were former sweethearts while Pillejera was her current lover. [28]

The trial court found for the prosecution, and accordingly convicted appellant as follows:

WHEREFORE, foregoing premises considered, the accused RIZ JARLOS y MATEO is hereby found GUILTY of the crime of Murder for the killing of Ronald Beda Pillejera qualified by treachery and evident premeditation and is sentenced to suffer the penalty of DEATH by lethal injection. The accused is further ordered to indemnify the heirs of the victim in the amount of P50,000.00; to pay the amount of P47,500.00 as funeral expenses, the amount of P50,000.00 as moral damages and to pay the costs of the suit. The case against the accused Efipania Dela Cruz Go is ordered archived.

SO ORDERED.[29]

The trial court ruled out self-defense because no exchange of gunfire between appellant and his victim was established. Moreover, the nature and number of wounds inflicted on the victim contradicted appellants theory of self-defense.[30] The trial court found that treachery attended the killing as shown by the clear and convincing testimony of the eyewitness that the accused suddenly and unexpectedly shot the victim at a close distance,[31] thus qualifying the killing to murder.

The lower court also found that there was evident premeditation to kill the victim.  The appellant himself had, according to the court, admitted that before the shooting incident, he and the victim met several times and in all those times, confrontations between them ensued, one which led to the drawing of guns between them and he [the appellant] was sued for grave threats. [32] With this circumstance aggravating the offense, the court imposed on appellant the penalty of death.

Now before us on automatic review, appellant assigns the following errors:

1) THE TRIAL COURT GRAVELY ERRED IN FINDING THAT TREACHERY AND EVIDENT PREMEDITATION HAVE QUALIFIED THE KILLING,

2) THE CAPITAL PUNISHMENT AS IMPOSED BY THE TRIAL COURT IS NOT WARRANTED.[33]

We find relevant for resolution two issues: (1) Was the killing qualified by treachery and aggravated by evident premeditation? (2) Did the trial court err in sentencing appellant to death?

Appellant prays that he be held guilty only of homicide, not murder. He argues that there was no treachery because their previous encounters were sufficient to negate surprise and suddenness of any attack. When he got down from his van his face was fully illuminated by the beaming headlight of the victims car. The victim then had every chance to identify him and recall that their previous meetings were marked with animosity, thus he should have been forewarned of the appellants ominous hostility.[34]

Appellant stresses that there was no clear showing that the victim could not defend himself when attacked, and the shooting was not sudden or unexpected. He adds that the deceased had all the opportunity to neutralize him or defend himself. The fact that the wounds inflicted were multiple, said the

appellant, did not per se make the attack treacherous. [35] He points out that nowhere in the eyewitness testimony did the witness mention that appellant suddenly and unexpectedly shot the victim.[36]

The appellee, through the Office of the Solicitor General (OSG), contends that there was treachery in the killing. The OSG argues that it may be inferred from the surrounding circumstances that the mode of attack was consciously adopted. By the act of suddenly and unexpectedly shooting the victim at close range, said the OSG, the appellant deliberately employed means, methods or forms in the execution of the crime which tended directly to insure the execution of his criminal design without risk to himself arising from the defense which the victim might make.[37]

We find for the appellee. To establish treachery, two elements must concur: (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 of attack employed.[38]

What the eyewitness, Arman Gunio, testified to as a sudden act was the maroon cars suddenly cutting in front of the white car, and not the act of shooting itself. However, after appellants vehicle suddenly cut in front of the white car, blocking its path, amidst exchanges of shouts, appellant alighted, positioned himself in front of the victim and shot him. The victim was unarmed, seated behind the wheel. As held by the trial court, if there was really an exchange of fire between the appellant and victim, then police investigators who were at the scene of the crime should have recovered evidence [39] that the victim fired a gun. No such piece of evidence was found. The trial court concluded that the victim was not armed and did not pose a threat to the appellant at that specific instance. According to the trial court, in fact, the victim tried to sneak out through the passenger side in an effort to escape and save his life.  This proved to be futile, said the trial court, because the appellant riddled the victims body with bullets, and the victim died even before the last shot was fired at the victims right temple at close range to ensure he stayed dead. As the evidence shows, according to the trial court, not only was Pillejera taken by surprise, but appellants mode of attack was consciously adopted, as could be inferred from the surrounding circumstances.[40]

As held in People v. Cabande,[41] treachery exists where the manner of the attack speaks only too well of the victims inability to defend or avoid the attack. The mere fact there was an existing feud between the appellant and the victim does not necessarily prove that the attack was expected. The appellant cannot pre-empt the appreciation of aleviosa by threatening the victim in advance. What is decisive is that the suddenness of the attack made it impossible for the victim to retaliate, flee or defend himself.[42] There being treachery, the killing is qualified to murder. But should appellant be sentenced to death?

Appellant contends that evident premeditation could not be held to aggravate the killing because the prosecution did not show direct evidence of the planning, much less any preparation to kill when a plan was conceived. Previous altercations between the two protagonists was insufficient to rule that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time, sufficient to arrive at a calm judgment, says appellant.  The prosecution had not shown that in between the appellant made plans or sought the deceased to kill him, he adds. There is not even an iota of evidence when and how appellant planned and prepared for the killing of the deceased, he avers. No act was shown, he says, indicating that appellant persisted in his plan, nor even any lapse of time between the determination and execution of the plan. [43] In this regard, the OSG agreed with appellants submission that the facts at hand are insufficient to satisfy the requisites of evident premeditation.[44]

Evident premeditation requires proof showing: (1) the time when the accused decided to commit the crime; (2) the overt act manifestly indicating that he clung to his determination; (3) a sufficient lapse of time between the decision and the execution, allowing the accused to reflect upon the consequences of his act.[45] Such proof must be based on external acts that are not merely suspicious but also notorious,

manifest, evident and indicative of deliberate planning. The evidence must show the decision to kill prior to the moment of its execution was the result of meditation, calculation, reflection or persistent attempts. Absent such evidence, mere presumptions and inferences are insufficient.[46] Evident premeditation may not be appreciated where there is no proof as to how and when the plan to kill was hatched or the time that elapsed before it was carried out. The premeditation must be evident and not merely suspected. [47]

In this regard, we agree that the prosecution failed to show conclusive proof of evident premeditation. Previous altercations are insufficient to prove evident premeditation. On record, there is no showing that the appellant meditated and reflected on his intention between the time the plan to kill was conceived and the time the crime was actually perpetrated.[48]

Under Article 248 of the Revised Penal Code,[49] murder is punishable with the penalty of reclusion perpetua to death. Since neither aggravating nor mitigating circumstance is shown, the lesser penalty of reclusion perpetua should be imposed on the appellant, following Article 63(2) of the Revised Penal Code.[50]

Considering the facts of this case, particularly the number of wounds inflicted on the victim, the amount of P50,000 awarded by the trial court as moral damages together with another P50,000 as civil indemnity is in order.[51]With regard to actual damages, the victims heirs presented official receipts [52] for funeral expenses amounting to P47,500, hence the award of compensatory damages in that amount is proper.

WHEREFORE, the decision of the Regional Trial Court of Marikina City, Branch 272, in Criminal Case No. 98-2397-MK finding appellant RIZ JARLOS Y MATEO GUILTY beyond reasonable doubt of the crime of murder is AFFIRMED, with the MODIFICATION that the penalty imposed on him is hereby reduced to reclusion perpetua. He is also ordered to pay the heirs of the victim P50,000.00 as civil indemnity, P50,000.00 as moral damages, andP47,500.00 as compensatory damages. Costs de oficio.

SO ORDERED.

FIRST DIVISION

[G.R. No. 125397. August 10, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NESTOR MOLINA Y GATUS, accused-appellant.

D E C I S I O N

PUNO, J.:

This is an appeal from the Decision of the RTC of Malabon, Metro Manila, Branch 170 convicting accused-appellant Nestor Molina of the crime of murder qualified by treachery.[1]

The Information[2] against Molina states:

"That on or about the 11th day of October 1994, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, conspiring, confederating and mutually helping with (sic) one another, with intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said gun one

HERMINIO JORGE Y PERALTA, hitting the victim on his body, thereby inflicting upon the victim gunshot wounds, which caused his immediate death.

Contrary to law.[3]

Molina pled not guilty and underwent trial. The prosecution relied heavily on the eyewitness account of Ernesto Mandia, a pedicab driver who plies the route of Bayan Malabon and Sipac, Navotas.  He testified that on October 11, 1994 at about 4:40 A.M., he parked his pedicab at the corner of Baradero and M. Naval Street, Navotas. He was resting while waiting for passengers. He then noticed Molina, alias "Etoy," with two companions. Molina was talking with one while the other stood across the street.

At 5:20 A.M., a passenger jeepney driven by Herminio Jorge came from the direction of Manila. It was flagged down by one of Molina's companion and it stopped at the corner of Baradero Street. Molina, with a gun in his hand, and one of his companions approached Jorge. Molina went to the right side of the driver's seat while the other positioned himself on the left side. From a distance of an arm's length, Molina fired four (4) times at Jorge who was sitting at the driver's seat. Thereafter, they walked away casually from the scene of the crime.[4]

Jorge died immediately. The autopsy conducted by Dr. Florante F. Baltazar revealed that Jorge sustained eight (8) external injuries - four (4) gunshot wounds, two (2) abrasions and two (2) lacerations. He also suffered from some fractures.[5] The shooting was investigated by SPO4 Jose Andrade.

The amount of fifteen thousand pesos (P15,000.00) was spent for the funeral of Jorge. The family likewise spent for the food during the wake and for a band.[6]

The accused-appellant proffered the defense of alibi. He said that as of August 17, 1994, his family has already transferred residence from Dulong Tangos, Navotas to Sta. Lucia, San Miguel, Bulacan. They lived in the house of Ricardo Sioson, his father-in-law. He admitted that he knew Jorge as they were previous neighbors. He was unaware of any reason why the family of Jorge charged him with the crime at bar.[7]

Accused-appellant's wife Luzviminda and his father-in-law corroborated his alibi. Both testified that he was in their house in San Miguel, Bulacan on the day and time of the shooting of Jorge.

As aforestated, the trial court convicted the accused-appellant. He was sentenced to suffer the penalty of reclusion perpetua together with all its accessory penalties. He was also ordered to indemnify the heirs of Jorge the amounts of fifteen thousand (P15,000.00) as actual damages, fifty thousand pesos (P50,000.00) as civil indemnity and the cost of suit.

In this appeal, accused-appellant contends:

I

"THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCREDIBLE AND UNCORROBORATED TESTIMONY OF PROSECUTION WITNESS ERNESTO MANDIA.

II

"THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED."

We find no merit in the appeal.

First. Accused-appellant was positively identified by Mandia. There is no reason to disbelieve the testimony of Mandia. He witnessed the incident from a distance of two arm's length. He has known the accused-appellant some seven to eight months before the incident. Like Mandia, accused-appellant also drove a tricycle.[8]

The attempt of accused-appellant to impute ill-motive against Mandia is futile. He urges us to deduce this ill-motive from the fact that Mandia denied that accused-appellant's picture was shown to him for identification. This little detail hardly matters. As discussed above, Mandia could not have erred in identifying accused-appellant as they knew each other. The records also belie accused-appellant's claim. Contrary to his allegation, Mandia admitted that the brother of Jorge showed appellant's picture to him.[9]Neither can ill-motive be deduced from the failure of Mandia to report the crime immediately to the authorities. Mandia satisfactorily explained the 26-day delay. He said that he was "stunned" by the incident and was still fearful when he reported to the police authorities.[10] There is another reason why Mandias testimony is credible. His eyewitness account is corroborated by the autopsy report.[11] As observed by the trial court:

"In the instant case, the court noted that the testimony of lone eyewitness Ernesto Mandia was straightforward and candid and unshaken on cross examination by the defense counsel. The main thrust of the testimony of Mandia is to the effect that he saw accused Molina shot (sic) Herminio Jorge in the early hours of October 13, 1994. His detailed and graphic account of the actual shooting and killing conforms with the undisputed medico legal findings of Dr. Baltazar. Mandia declared that he saw accused Molina coming from the back side of the passenger jeepney went (sic) directly towards the driver's seat at its rightside. At the distance of two arms length away, accused fired upon the victim four (4) times. Dr. Baltazar testified that HERMINIO Jorge sustained four (4) gunshot wounds. As far as gunshot wound no. 2 is concerned, Dr. Baltazar stated that the relative position of the assailant would be in front but more on the right side which position would be the same with respect to gunshot wound no. 3 if the extremities would reflect on the other side. The medico legal report (Exhibit 'H') reveals that gunshot wound no. 5 is directed downwards, forwards and existing (sic) at the anterior middle 3rd of the right forearm whereas gunshot wound no. 6 is directed downwards, forwards and existing (sic) at the anterior distal 3rd of the same forearm. Taking into account the trajectory of the bullets and point of entries and exists (sic), gunshot wounds no. 5 and 6 would not have found their marks on the forearm of the victim had not the assailant been at his right facing him. In addition, Dr. Baltazar said that the absence of tattooing only indicates that the distance of the muscle (sic) of the gun from the entry points of the injuries sustained by the deceased would only be 24 inches and above."[12]

This is not all. Accused-appellant's alibi cannot prosper for he failed to demonstrate the physical impossibility for him to be at the situs of the crime. As pointed out by the trial court, Navotas to San Miguel Bulacan can be negotiated in two to three hours by public utility vehicle.

Second. We find the penalty imposed on accused-appellant in accord with law.

The commission of the crime was attended by treachery. 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 ensure its execution without risk to himself arising from the defense which the offended party might make.[13] For treachery to be appreciated, two conditions must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) that said means of execution be deliberately and consciously adopted.[14]

Both conditions are present in this case. The victim was shot while seated on the driver's seat. The shooting was sudden. The accused-appellant was about an arm's length away when he shot the victim. Settled is the rule that the suddenness of the attack without the slightest provocation on the part of

the victim who was unarmed and had nary an opportunity to repel the aggression or defend himself, ineluctably qualifies the killing with alevosia.[15]

Evident premeditation can not however be appreciated since the prosecution failed to establish that the appellant killed the victim pursuant to a preconceived plan. Nevertheless, the crime committed is still murder qualified by treachery.

All considered, the prosecution has proved the guilt of appellant beyond reasonable doubt. Murder is defined and punished under Article 248 of the Revised Penal Code which prescribes the penalty of reclusion perpetua to death. Since neither mitigating nor aggravating circumstances are present in the commission of the crime, the lesser penalty of reclusion perpetua should be applied.

IN VIEW WHEREOF, the Decision of the trial court is affirmed in toto. Cost against the accused-appellant.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

SECOND DIVISION

[G.R. No. 134485. October 23, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. OSCAR PEREZ, appellant.

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal from the Decision[1] dated May 15, 1998 of the Regional Trial Court of Malolos, Bulacan, Branch 85, in Criminal Case No. 747-M-95, finding appellant Oscar Perez guilty beyond reasonable doubt of the crime of murder for the killing of Ildefonso Balite, imposing on him the penalty of reclusion perpetua and ordering him to indemnify the heirs of the victim the sum of P50,000.

The Antecedents

The Spouses Ildefonso Balite and his wife Rowena lived in a tenement housing unit located at Maria Ramona Subdivision, Barangay Tabang, Plaridel, Bulacan.[2] The Spouses Artemio and Emerencia Santos and their son-in-law Oscar Perez occupied the unit next door. Rowena Balite was the niece of the Spouses Santos.

The unit of the Santos Spouses had no electrical services. They shared their electrical power supply with the Balite Spouses through an improvised electrical extension wire plugged into an electrical socket inside the latters unit. The two families shared the payment of the electric bills.

At about 9:00 p.m., on April 28, 1995, Ildefonso came home with two companions, Gardo and Dolphy.[3] He noticed an electrical spark from the overloaded electrical socket that supplied electrical power to the Santoses.[4] He immediately proceeded to their unit and asked permission from Emerencia if he could temporarily disconnect their electric power supply to forestall any

untoward incident.[5] Emerencia, however, flatly refused.[6] She thereupon proceeded to Oscars room to wake him up.[7] In the meantime, Gardo and Dolphy left the place.[8] Momentarily, Oscar, with his wife in tow, went outside and confronted Ildefonso.[9] The latter pleaded and explained that it would only be temporary but Oscar was not convinced.[10] Shortly, the two exchanged heated words and grappled with each other.[11] Artemio arrived and intervened. He advised the protagonists to forget their differences. Ildefonsobacked off and proceeded to his mother-in-laws house.[12] Oscar, however, refused to be pacified.

Ildefonso, followed by his wife Rowena, went out of the gate of the tenements compound, while Oscar surreptitiously followed.[13] Ildefonso passed by Maricel Santos, Rowenas younger sister,[14] who was in a store nearby chatting with friends.[15] Maricel saw Ildefonso being trailed closely by Oscar.[16]

Oscar called out and told Ildefonso to wait up. Ildefonso did and faced Oscar. Suddenly, Oscar drew out the gun which was tucked in his waist and aimed it at Ildefonso. Petrified, Ildefonso raised his hands.[17] Oscar shotIldefonso on the chest.[18] The latter fell to the ground.[19] Oscar came closer and shot the victim anew on the head.[20] Rowena was so shocked at the turn of events and could only cry out, Huwag, huwag, all to no avail.[21] Thereafter, Oscar fled from the scene.[22] With the help of Jeffrey de Vera and some other neighbors, Ildefonso was boarded on a jeep and brought to the County Hospital, Plaridel, Bulacan, where he was declared dead on arrival.[23]

Dr. Alberto Bondoc of the Provincial Health Office of Malolos, Bulacan, conducted an autopsy on the cadaver.[24] He found that Ildefonso sustained two fatal gunshot wounds.[25] The first was on the right side of the temple, with a point of entry, around 8 x 10 mm., surrounded by gunpowder tattooing with a diameter of 31 mm., directed medially, superiorly and slightly anteriorly, lacerating the anterior pole of the right frontal lobe of the cerebrum, lacerating the anterior lips of the sella turcica and lacerating the left parietal lobe of the cerebrum and finally fracturing the left parietal bone. This wound had no exit point as the slug was found and extracted at the left portion of the victims skull. The second gunshot wound was in the left side of the chest, directed posteriorly and slightly superiorly and medially, puncturing the left ventricle of the heart.[26]

Elucidating on his report, Dr. Bondoc explained that gunpowder tattooing occurs when a person is shot at close range. He said that the gunpowder tattooing found on the victims cadaver was small only 31 mm., a finding compatible with the theory that the victim was shot at close range.  He opined that the muzzle of the gun could have been fired at a distance of about four to six inches.  Dr. Bondoc, however, could not say with certainty which of the two wounds was first inflicted on the victim. The immediate cause of death was brain injuries and hemorrhagic shock due to gunshot wounds in the head and chest.[27]

The following afternoon or on April 29, 1995, Rowena went to the Plaridel Police Station and executed before PO3 Reynaldo S. Rivas a statement regarding the shooting incident. [28] Five days thereafter, Maricel Santos likewise executed her statement about the killing incident.[29]

On June 28, 1995, an Information for murder was filed against Oscar. The accusatory portion of the Information reads:

That on or about the 28th day of April, 1995, in the Municipality of Plaridel, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill one Ildefonso Balite y Bautista, did then and there willfully, unlawfully and feloniously, with treachery and evident premeditation, with the use of a firearm, attack, assault and shoot the said Ildefonso Balite y Bautista, hitting the latter on his head and chest, thereby causing him gunshot wounds which directly caused his death.

Contrary to law.[30]

At his arraignment on October 30, 1995,[31] Oscar, assisted by his counsel, entered a plea of not guilty to the charge.

The Evidence of the Accused

Oscar denied the charge. Oscar testified that Ildefonso was a good neighbor, and a person with whom they had no misunderstanding.[32] He testified that at about 9:00 p.m. on April 29, 1995, he was at home sleeping whenEmerencia, his mother-in-law, woke him up to check out their sudden lack of electrical power.[33] The house was in total darkness.[34] As he stepped out of their unit, he saw Ildefonso with his two burly[35] companions reeking of alcohol.[36] He asked Ildefonso what had happened and the latter wryly explained that he disconnected the electric power because they were not paying their share.[37] Oscar pleaded to Ildefonso to reconnect the power and offered to pay their share of the electric bills the next day. Ildefonso refused. Thereupon, Ildefonso, with his two companions, approached Oscar and uttered, Pare lumigpit ka na at baka maligpit ka pa.[38] (You better lay aside, or else you will be laid to rest.) Suddenly, Ildefonsos two companions ganged up on Oscar, kicking and boxing him.[39] Oscar managed to evade the fist blows. Oscar saw Ildefonso pull out a gun.[40] Fearing for his life, Oscar lunged atIldefonso and grappled with him for the guns possession. The two rolled on the ground and wrestled.[41] A gunshot rang out and hit the victim. At that moment, Oscar was left too stunned to recall who had actually squeezed the trigger.[42] Oscars parents-in-law, the Santos spouses, however, added that they did not see who fired the shot.[43]

On May 15, 1998, the trial court rendered a decision convicting the accused of murder qualified by treachery, the decretal portion of which reads:

In view of the foregoing, this Court finds accused Oscar Perez GUILTY beyond reasonable doubt of the crime of murder qualified by treachery for the killing of Ildefonso Balite. There being no mitigating or aggravating circumstance attendant in this case, he is hereby sentenced to suffer an imprisonment of reclusion   perpetua  and ordered to indemnify the heirs of the deceased Ildefonso Balite the amount of P50,000.00, and to pay the costs.

SO ORDERED.[44]

The appellant asserts that based on the evidence presented by the prosecution, he could be convicted only of homicide, and not of murder. He avers that the victim was amply forewarned of any impending attack since there was a previous heated altercation between them before the killing. This, according to the appellant, would discount the finding of treachery:

10 That considering the versions of the two (2) parties, the prosecution and the defense, in analyzing the incident, it is humbly submitted that the accused-appellant did not provoke the quarrel, that the accused-appellant was not holding any gun as no one had testified where the gun came from since the killing of the deceased resulted from the altercation, it is submitted that the accused-appellant is not guilty of Murder and should only be charged of the crime of Homicide because of the quarrel, there is no alevosiacommitted by the accused-appellant as they confronted each other face to face. It was just lucky for the accused-appellant not to be killed considering the number of the victim and his companions was able to survive from the quarrel as there were three (3) attackers against the accused-appellant. [45]

We do not agree. Given the factual milieu of the case, this Court is in accord with the trial courts finding that the killing of Ildefonso was attended by alevosia.

There is treachery (alevosia) when the offender commits any of the crimes against the person, 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.[46]

The two elements that must be proved to establish treachery are:  (1) the employment of means of execution which would ensure the safety of the offender from defensive and retaliatory acts of the victim, giving the victim no opportunity to defend himself, and (2) the means, method and manner of execution were deliberately and consciously adopted by the offender.[47] The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor without the slightest provocation on the part of the victim.[48]

In the case at bar, there is no question that the elements of alevosia were proved by the prosecution. As vividly narrated by the two prosecution witnesses, the victim, Ildefonso, had absolutely no opportunity to defend himself from the appellants aggression. The attack was sudden. The victim was clueless of the impending attack. He was on his way home, with the appellant surreptitiously following from behind. At a distance of two meters, the appellant called his name. When the victim faced the appellant, the victim raised his hands. The appellant suddenly shot him. Ildefonso had no opportunity to anticipate the imminence of the appellants attack; nor was he in a position to defend himself or repel the aggression because he was unarmed. The appellant shot the victim again on the head after the latter had already fallen to the ground, mortally wounded by the first shot.

That the appellant deliberately and consciously adopted the means to ensure his criminal purpose without risk to himself was undoubtedly also proven by the prosecution. The appellant obviously left the tenement armed with a gun. The victim was fatally shot on the chest at an assured range, and by way of a coup de grace, the appellant shot the victim on the head. The appellants overt acts in conjunto are irrefragable evidence of the appellants intention to kill the victim. Only a killer without compunction would shoot such a defenseless and innocent victim.

As a rule, there can be no treachery when an altercation ensued between the appellant and the victim. However, the evidence on record shows that after the altercation, Ildefonso left the scene to go back home. He was unaware that the appellant had followed him and was armed with a deadly weapon.

That the victim was shot facing the appellant, as contended by the latter, does not negate treachery. The settled rule is that treachery can exist even if the attack is frontal, as long as the attack is sudden and unexpected, giving the victim no opportunity to repel it or to defend himself.  What is decisive is that the execution of the attack, without the slightest provocation from an unarmed victim, made it impossible for the latter to defend himself or to retaliate.[49]

The Information alleged two other modifying circumstances, namely, evident premeditation and the use of a firearm, but the trial court found that the prosecution failed to prove evident premeditation. Neither did it consider the appellants use of an unlicensed firearm in the commission of the crime.

We agree with the trial court.

For evident premeditation to be appreciated, it is necessary that the prosecution must prove the following elements: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused clung to their determination to commit the crime; and (3) the lapse of a sufficient period of time between the decision and the execution of the crime, to allow the accused to reflect upon the consequences of the act.[50] And like other qualifying circumstances, the elements of evident premeditation must be established with equal certainty and clarity as the criminal act itself before it can be appreciated as a qualifying circumstance.[51] None of these elements could be gathered from the

evidence on record. The appellant shot the victim shortly after their altercation. There was no evidence that the appellant had sufficient time to reflect on the consequence of killing the victim.

The appellants use of a firearm to consummate the crime cannot likewise be considered as a special aggravating circumstance because there was no allegation in the Information that the appellant had no license to possess the same, as mandated by Section 9, [52] Rule 110 of the Rules of Criminal Procedure. The lack of a license to possess firearms is an essential element of the crime of violation of P.D. No. 1866, as amended by Republic Act No. 8294, whether as an independent crime or as an aggravating circumstance in murder or homicide.[53] Hence, such circumstance cannot aggravate the crime of murder and the penalty therefor; otherwise, the appellant would be deprived of his right to be informed of the nature of the charge against him. Although the crime was committed before the effectivity of the said Rule, the same should be applied retroactively as it would be favorable to the appellant.[54]

The penalty for murder under Article 248 of the Revised Penal Code, as amended by Rep. Act No. 7659, is reclusion perpetua to death. Since aside from the qualified circumstance of treachery, no other modifying circumstance was attendant in the commission of the crime, the proper penalty therefor is reclusion perpetua, conformably to Article 63(2) of the Revised Penal Code, as amended.

The trial court correctly ordered the appellant to pay to the heirs of the victim Ildefonso Balite the amount of P50,000 as civil indemnity ex delicto, in accord with current jurisprudence.[55] We cannot, however, award moral damages in the absence of proof of mental or physical suffering on the part of the heirs of the victim.[56] Lastly, given the attendance of the qualifying circumstance of treachery, an award of exemplary damages to the heirs of the victim in the amount of P25,000,[57] in accordance with Article 2230 of the Civil Code,[58] is in order.

WHEREFORE, the Decision dated May 15, 1998 of Branch 85 of the Regional Trial Court of Malolos, Bulacan, in Criminal Case No. 747-M-95, finding appellant Oscar Perez GUILTY beyond reasonable doubt of the crime of murder is AFFIRMED WITH MODIFICATION. The appellant is ordered to pay to the heirs of the victim Ildefonso Balite P50,000 as civil indemnity and P25,000 as exemplary damages.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

EN BANC

[G.R. No. 128114. October 25, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER CANDO Y PAGDANGANAN, ARNEL VARGAS Y MAGTANGOB, AND WILBERTO RAPCING Y BROOLA, accused-appellants.

D E C I S I O N

QUISUMBING, J.:

On automatic review is the decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 95-142748, convicting appellants of the crime of robbery with homicide, sentencing them to death, ordering them solidarily to indemnify the heirs of the victim the amount of P50,000.00, and to return the personal belongings taken from the victim and other offended parties. In a related case, Criminal Case No. 95-142749, appellants were acquitted of the charge of carnapping.

Appellants Cando and Rapcing, aged 40 and 28 respectively, were employed as candlemakers at the Rosarian Candle Factory located in Paco, Manila. Appellant Vargas, aged 20, was employed as a delivery boy. The victim, Luis D. Remoriata, was the caretaker (katiwala) in said factory.

The facts based on the records are as follows:

In the afternoon of May 13, 1995, Vargas, Rapcing and one Nonoy Sayson were having a drinking session at a canteen in front of the factory. At around 9:30 P.M., Cando joined the group. Upon the prompting of Vargas, Cando went to the factory to get his salary. Cando came back angry because he was unable to get his salary from the secretary, nor was he able to get a loan of P100.00 from the caretaker. Apparently, Cando already had previous misunderstandings with the caretaker, so this time, he threatened to kill the caretaker. The group continued their drinking session.[1]

At around 11:00 P.M., Vargas, Rapcing, and Cando, armed with two knives and carrying a shoulder bag, climbed the fence of the factory. They walked on the galvanized iron roof towards the other building. One by one, they slipped through a narrow window at the side of the building. The trio proceeded to the victims room, which was lighted by a fluorescent lamp. Cando picked a piece of lead pipe and told Vargas to pull open the door where the victims mosquito net was attached. When Vargas pulled open the door, the mosquito net snapped and Cando struck the victim on the head with the lead pipe. The victim awakened and Cando demanded money from him. When the victim replied that he had no money, Cando struck him again with the lead pipe. Blood oozed from the victims head. Cando asked the victim if he recognized him. The victim weakly replied Yes, You are Roger (Cando).Thereafter, Cando repeatedly hit him with the lead pipe until he became unconscious. Cando placed the victims radio cassette in his bag. He went upstairs to get more items and the keys of the Cimarron van. Thereafter, the trio went downstairs to where the van was parked. Vargas, the only one who knew how to drive, sat on the drivers seat. Cando and Rapcing opened the gate, then pushed the van outside. Once they were out of hearing range, Vargas gunned the motor and the two clambered into the van. Cando sat on the passenger side while Rapcing sat at the back. Cando prevailed upon the group to proceed to Quiapo to visit his girlfriend, but they could not locate her so they just drove around until daybreak. When they reached Hemady Street in Quezon City, they abandoned the van. The trio boarded a jeep going to Taft Avenue and went their separate ways.[2] It was then already early morning of May 14, 1995.

At around 6:00 A.M., Mrs. Norma Chu, the factory owner, discovered the dead body of Luis Remoriata. The factory van was also missing. A hysterical Mrs. Chu called the Barangay Captain, who in turn reported the incident to the police. Upon investigation, the police found a bakawan firewood stained with blood some ten meters away from the victims body. The police also called a funeral parlor to get the body of the victim.[3]

In the meantime, the van was discovered by Barangay Kagawad Mejia, who called up the telephone number posted at the side of the van. The owner, Mrs. Chu, arrived with three NBI Agents who took pictures of the van and lifted fingerprints from it.[4]

The very next day, May 15, 1995, Mrs. Chu lodged a complaint [5] with the National Bureau of Investigation (NBI). Based on her complaint, the NBI dispatched a team of agents to the crime scene. The NBI recovered a bloodstained steel pipe behind the door of the room. Upon learning from Mrs. Chu that appellants Cando and Vargas had previous skirmishes with the victim, on May 16, 1995, the NBI agents picked up Vargas from the factory and brought him to their office for questioning.[6]

Vargas readily admitted his participation and pinpointed appellants Cando and Rapcing as his co-perpetrators. He likewise executed an extrajudicial admission[7] and waiver of his rights under Articles 124 and 125 of the Revised Penal Code.[8]

Acting on the lead, the NBI agents picked appellant Cando at his house in Libis St., Caloocan City. Appellant Cando invoked his right to remain silent.[9] He executed a waiver of rights under Articles 124 and 125 of the Revised Penal Code.[10]

Thereafter, appellant Rapcing was also arrested at his house in Cristobal St., Looban, Paco, Manila.[11] Rapcing admitted complicity in the crime, and executed an extrajudicial admission[12] corroborating the story of Vargas. He also executed a waiver of his rights under Articles 124 and 125 of the Revised Penal Code.[13]

During custodial investigation, the three were assisted by Atty. Isidro T. Gamutan, a lawyer who happened to be at the NBI because he was following up a case.

On May 17, 1995, appellant Vargas executed a second extrajudicial admission [14] stating that Cando gave him the bag containing the stolen items for safekeeping and that he brought the bag to his sister-in-laws house in Kahilum, San Andres Bukid, Manila. He accompanied the NBI agents to the house and gave them the bag which bore Candos name.[15]

On May 23, 1995, appellants were charged with the crime of Robbery with Homicide under the following Information:[16]

The undersigned accuses ROGER CANDO y PAGDANGANAN, ARNEL VARGAS y MAGTANGOB and WILFREDO RAPCING y BROOLA of the crime of Robbery with Homicide, committed as follows;

That on or about May 13, 1995, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one another, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation, to wit: by hitting one LUIS D. REMORIATA with steel pipe and wood on the head several times and at the same time forcibly taking away from him the following, to wit:

One (1) Brown wallet valued at P 120.00

containing cash money of . 1,000.00

Cash money in the amount of 10,000.00

Three (3) wrist watches, all valued 1,000.00

One (1) Radio casette (STD) ... 1,200.00

Assorted clothing, not less than 500.00

or in the total amount of P13,820.00 belonging to said Luis D. Remoriata and under his personal care, to the damage and prejudice of the said owner in the aforesaid amount of P13,820.00, Philippine Currency; that on the occasion of the said robbery and by reason thereof, the herein accused, in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon the said LUIS D. REMORIATA, and as a result thereof, he sustained physical injuries which were the direct and immediate cause of his death.

Contrary to law.

ALEJANDRO G. BIJASA

Asst. City Prosecutor

On August 29, 1995, upon arraignment, appellants entered their respective pleas of not guilty.[17] Joint trial ensued.

The prosecution presented the following witnesses: (1) Norma C. Chu, the factory owner; (2) NBI Agents Serafin Gil, Mario Garcia, Gregorio Tomagan; (3) NBI Photographer Cecilio Datinguinoo; (4) NBI Fingerprint Examiner Elter Yano; (5) Dr. Manuel Lagonera, medico-legal officer; (6) Atty. Isidro Gamutan, counsel of appellants during custodial investigation; (7) Barangay Kagawad Alejandro Mejia.

Mrs. Norma Chu testified that when she discovered the body of the victim, the quarters was in disarray, and the victims clothes and radio were missing. Later, her husband and son informed her that their wallets which they placed on top of the TV in the sala upstairs, and two other wristwatches were missing. She also identified the van which was recovered from Hemady St. in Quezon City as the one belonging to the factory.[18]

Serafin Gil testified that he took down the statement of Mrs. Chu and supervised the custodial investigation of appellants.[19] Mario Garcia took down the statements of Vargas and Rapcing.[20] Gregorio Tomagan testified that he was present during the taking of the two statements of appellant Vargas dated May 16 and 17, 1995.[21] Cecilio Datinguinoo testified that he took pictures of the van while the NBI agents were lifting fingerprints from the van.[22]Elter Yano testified that he managed to lift six (6) fingerprints from the cimarron van, tagged as Q-1 to Q-6. He testified that Q-1 which was lifted from the air freshener found in the van was identical to the left index fingerprint of appellant Vargas (Exh. DD). Likewise, Q-2 which was lifted from the victims stereo cassette was identical to the right ring fingerprint of Cando (Exh. EE). The other prints were unidentifiable.[23]

Dr. Manuel Lagonera testified that the cause of death was blunt head injuries and that the victim sustained the following injuries:[24]

1. Triangular lacerated wound, with contussions at the periphery, measuring 3x2.8x2.5 cms, right forehead.

2. Deep lacerated wound, right forehead, above the right eyebrow, measuring 7x1.9 cms.

3. Lacerated wound, right zygomatic region, measuring 4.2x1.5 cms.

4. Deep lacerated wound, left frontal region, measuring 7x2.5cms.

5. Lacerated wound, left fronto-temporal region, measuring 2.5x2 cms.

6. Deep lacerated wound, angle of the mouth, right, measuring 4.5x2 cms.

7. Hematoma, both upper eyelids.

8. Deep lacerated wound, vertex, measuring 9x3 cms.

9. Lacerated wound, left occipital region, measuring 7x3 cms.

10. V-shaped lacerated wound, right external ear, measuring 3x2.5 cms.

11. Abrasion, right anterior shoulder, measuring 4x1.8 cms.

12. Semi-circular contussion, right supra-clavicular region, measuring 3.5x3.2 cms.

INTERNAL FINDINGS:

1. There was extensive sub-aponeurotic hematoma with multiple fractures of the cranial vault. Epidural hematoma over the left parietal lobe of the brain with massive sub-arachnoid hemorrhage.

2. Right anterior and middle cranial fossae were fractured.

3. The stomach was empty.

Atty. Isidro T. Gamutan testified that he happened to be at the NBI when the three accused were scheduled for custodial investigation. The Chief of the Anti-Carnapping Unit requested him to give legal assistance to the three accused. He asked the accused why they were being investigated, and explained to them their rights. When he was satisfied that the accused understood their rights, he assisted them in executing their extrajudicial statements.[25]

Alejandro Mejia, Barangay Kagawad at Barangay Kristong Hari, Quezon City testified that he found the abandoned van with a flat tire. He contacted the owner through the telephone number printed on the side of the van. The owner arrived with three NBI agents who examined the van.[26]

For the defense, appellants testified. Appellant Cando stated that he finished Grade III, cannot read, but can write his name. He denied any participation in the killing, but claimed that Vargas and Rapcing knew about the incident. He said that on May 13, 1995, he reported for work at the factory at 2:00 P.M. until 10:00 P.M. He went home in Libis St. Caloocan City, where he slept until around 11:00 A.M. the following day. He denied joining the drinking session. On May 14, 1995, he reported for work at around 12:00 NN until 2:00 P.M.. He identified as his the bag containing the stolen items. He further identified the contents of the bags, the air freshener which was taken from the van, the two wristwatches belonging to the son and daughter of Mrs. Chu. He admitted that he and the other two appellants offered to pay to the widow of the victim damages for his death.[27]

Appellant Vargas, for his part, admitted participation in the killing, but claimed that he was forced by Cando at knife point to participate. He further claimed that it was only Cando who killed the victim by hitting him with an iron bar. He admitted, however, that he agreed to drive the Cimarron because he wanted to practice driving.[28]

Appellant Rapcing recanted his extrajudicial admission. He denied any knowledge or participation in the killing since he was stone drunk (lasing na lasing). He claimed that he just slept inside a Tamaraw pick-up parked outside the factory. Further, he claimed that the finding of guilt is inconsistent with the fact that he never went into hiding after the alleged incident.[29]

On December 27, 1996, the trial court rendered its decision [30] convicting the three (3) appellants of Robbery with Homicide with the aggravating circumstances of evident premeditation and treachery, and sentencing them to suffer the penalty of death. Appellants were acquitted of the charge of carnapping.

Hence, the present automatic review. In their consolidated brief,[31] appellants raise the lone assignment of error that -

THE TRIAL COURT ERRED IN FINDING THAT THE AGGRAVATING CIRCUMSTANCES OF EVIDENT PREMEDITATION AND TREACHERY ATTENDED THE COMMISSION OF THE CRIME CHARGED.

In praying for the reduction of the sentence from death to reclusion perpetua, appellants contend that the prosecution failed to prove evident premeditation, as there was no time for cool reflection since their

minds were hazy with the influence of liquor. Appellants further dispute the existence of treachery since the killing of Remoriata was merely on the spur of the moment.

The Solicitor General, on the other hand, contends that evident premeditation clearly attended the commission of the crime but said aggravating circumstance, being inherent in the crime of robbery with homicide, should not be appreciated separately.[32] Treachery qualified the killing since the victim was sleeping at the time he was attacked. In addition, the generic aggravating circumstances of nighttime and dwelling should be appreciated.

The principal issue for resolution is whether the aggravating circumstances of treachery and evident premeditation attended the commission of the offense? Secondarily, we must also determine whether all the elements of robbery with homicide were proved beyond reasonable doubt.

There is treachery when the offender commits any of the crimes against the person, 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. [33] The conditions which must concur before treachery can be appreciated are: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) that said means of execution be deliberately and consciously adopted. [34] The essence of treachery lies in the adoption of ways that minimize or neutralize any resistance which may be put up by the offended party.[35] The killing of the sleeping victim herein was attended by treachery since he was in no position to flee or defend himself.[36]

The presence of treachery, though, should not result in qualifying the offense to murder, for the correct rule is that when it obtains in the special complex crime of robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance, robbery with homicide being a case of a composite crime with its own definition and special penalty in the Revised Penal Code.[37]

For evident premeditation to exist, the prosecution must prove with clear and convincing evidence the following elements: (1) the time when the offenders decided to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) sufficient lapse of time between the determination and execution to allow them to reflect upon the consequences of their act and allow their conscience to overcome the resolution of their will.[38] Evident premeditation is inherent in crimes against property, but it may be considered in robbery with homicide if there is premeditation to kill besides stealing.[39] The prosecution clearly proved the intention to rob and to disable the victim, but not the intention to kill him. As Vargas testified, the victim was still alive when they left him rolling on the floor.[40] Thus, evident premeditation can not be appreciated where the prosecution failed to establish that the accused killed the victim pursuant to a preconceived plan.[41]

The alternative circumstance of intoxication, however, should be considered as mitigating, it having been sufficiently shown that (1) at the time of the commission of the criminal act, they have taken such quantity of alcoholic drinks as to blur their reason and deprive them of certain degree of control, and (b) that such intoxication is not habitual, or subsequent to the plan to commit the felony. [42]

As to the crime committed, the prosecution amply established the following elements of robbery with homicide: (a) the taking of personal property is perpetrated by means of violence or intimidation against a person, (b) the property taken belongs to another, (c) the taking is characterized by intent to gain or animus lucrandi, and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, in its generic sense, is committed.[43] It matters not that the victim was killed prior to the taking of the personal properties of the victim and the other occupants of the house. What is essential in robbery with homicide is that there be a direct relation, and intimate connection between robbery and the killing, whether the latter be prior or subsequent to the former or whether both crimes be committed at the same time.[44] The rule is well-established that whenever homicide has been committed as a consequence of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty

as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide. [45] While Cando was bashing the head of the victim, and placing the personal items in his bag, nary a peep could be heard from Vargas and Rapcing. Their act of simply watching Cando shows their moral assent and complete acquiescence to the commission of the crime.

Appellant Vargas claims that he was threatened at knife point to join appellant Cando in the commission of the crime. He is in effect invoking the exempting circumstance of compulsion of an irresistible force under Article 12, par. 5 of the Revised Penal Code. We have held that the compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense. [46] Vargas had several opportunities to prevent the killing and to escape, but he chose to remain with his co-conspirators, and even willingly drove the get-away vehicle.

As to appellant Rapcing, the fact that he did not go into hiding after the alleged incident does not make him an innocent man. We have long ruled that flight is an indicium of guilt, but non-flight is not necessarily an indicium of innocence.[47]

Under Article 294 of the Revised Penal Code, as amended by Section 9 of R.A. No. 7659, the penalty for robbery with homicide is reclusion perpetua to death. There being one mitigating circumstance of intoxication, and one aggravating circumstance of treachery, the penalty to be imposed is reclusion perpetua.[48] The existence of one aggravating circumstance merits the award of exemplary damages under Art. 2230 of the New Civil Code.

We likewise order that the personal properties which are in custodia legis be returned to the offended parties.

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 95-142748 is hereby MODIFIED as follows: appellants ROGER CANDO Y PAGDANGANAN, ARNEL VARGAS Y MAGTANGOB, and WILBERTO RAPCING Y BROOLA are hereby found guilty of the crime of Robbery with Homicide, and sentenced to suffer the penalty of  reclusion perpetua, and ordered solidarily to pay the heirs of the victim P50,000.00 as civil indemnity and P10,000.00 as exemplary damages, and to return to the owners thereof the cash and the vehicle and other effects taken by the appellants, as well as to pay the costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Vitug, J., see separate opinion.Melo, J., join Justice Vitug in his separate opinion.Kapunan, J., on leave.

SEPARATE OPINION

VITUG, J.:

It does seem that the prosecution has been able to establish the guilt of accused-appellants on their involvement in the crime charged. But I find myself unable to subscribe to the idea of having treachery taken as a generic aggravating circumstance in the crime of robbery with homicide.  While I am not unaware of the past pronouncements which supports this conclusion, I believe it to be high time, however, for the Court to re-examine the doctrine.Robbery with homicide is a special complex crime where homicide is committed by reason or on occasion of robbery. In the same way that alevosia will not

result in qualifying the offense to murder, where the original and real intent of the accused is robbery, so, also, must treachery be ignored in aggravating this special crime. Robbery with homicide is an offense against property under Title Ten, Book Two, of the Revised Penal Code, and treachery is an aggravating circumstance obviously applicable only to crimes against persons under Title Eight, Book Two, of the same Code.

EN BANC

[G.R. Nos. 127759-60. September 24, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 NOEL FELICIANO, accused-appellant.

D E C I S I O N

QUISUMBING, J.:

For automatic review is the consolidated decision dated September 19, 1996, [1] of the Regional Trial Court of Isabela, Basilan, Branch 1, in Criminal Cases Nos. 2211-142, 2213-145, and 2214-146, finding appellant PO3 Noel Feliciano guilty of three counts of murder and sentencing him in Criminal Cases Nos. 2211-142 and 2213-145 to suffer the penalty of death and in Criminal Case No. 2214-146, to suffer the indeterminate penalty of imprisonment from twelve (12) years and one (1) day as minimum to fourteen (14) years and eight (8) months of reclusion temporal as maximum.

The Informations filed by the Provincial Prosecutor read:

In Criminal Case No. 2211- 142,

That on or about the 29th day of September, 1994, and within the jurisdiction of this Honorable Court, viz., at the Isabela Police Station, Marketsite, Barangay, Municipality of Isabela, Province of Basilan, Philippines, the above-named accused, armed with a .38 Cal. revolver, with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully, and feloniously assault, attack and shoot P/Inspector Edgardo L. Miguel with the said firearm, thereby inflicting gunshot wound on the chest of the latter, which caused his instantaneous death.

Contrary to law.[2]

In Criminal Case No. 2213-145,

That on or about the 29th day of September, 1994, and within the jurisdiction of this Honorable Court, viz., at the Isabela Police Station, Marketsite Barangay, Municipality of Isabela, Province of Basilan, Philippines, the above-named accused, armed with an Armalite (M16) rifle and a shot gun, with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully and feloniously

shoot PO3 Roberto Arabejo with the use of said firearms, thereby inflicting multiple gunshot wounds on the different parts of the body of the latter, which caused his death.

Contrary to law.[3]

In Criminal Case No. 2214-146,

That on or about the 29th day of September, 1994, and within the jurisdiction of this Honorable Court, viz., at the Isabela Police Station, Marketsite Barangay, Municipality of Isabela, Province of Basilan, Philippines, the above-named accused, armed with an Armalite (M16) rifle and a shot gun, with treachery and evident premeditation and with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack and shoot SPO4 Santiago Miguel with the use of said firearms, thereby inflicting multiple gunshot wounds on the different parts of the body of the latter, which caused his death.

Contrary to law.[4]

When arraigned, appellant pleaded not guilty to all the charges. A joint trial followed.

SPO3 RUPERTO HUPIDA was the first witness for the prosecution. He testified that on September 29, 1994, past midnight, after their patrol, appellant PO3 Noel Feliciano, SPO1 Danilo Lubaton, PO3 Wilfredo[5] Arguelles[6] and he returned to their station. As he was entering the radio room to prepare his beddings he heard SPO4 Santiago Miguel shouting at appellant, who was then sitting on a long bench near the traffic table. SPO4 Miguel was shouting invectives in Chavacano, "Coo voz nana voz, dao puerco y dao bata diutay vos ta llora, hende vos puede comigo. [7] (Vulva of your mother. You are like a pig and a small child crying. You cannot do that to me.) SPO4 Miguel grabbed his rifle and pointed it at appellant. Immediately, said SPO3 Hupida, he disarmed SPO4 Miguel. Meanwhile, P/Inspector Edgardo Miguel who heard the disturbance rushed in and disarmed appellant. The protagonists, however, continued their verbal tirade. P/Insp. Miguel then ordered SPO1 Danilo Lubaton and PO3 Roberto Arabejo to bring appellant home. When the two returned after a few minutes, Hupida remembered seeing P/Insp. Miguel go out of the office. After a few seconds Hupida heard a shot coming from outside the station. He looked out of the window and saw P/Insp. Miguel clutching his chest. He told SPO1 Lubaton to go out and check on P/Insp. Miguel. Lubaton rushed to P/Insp. Miguel. Hupida recalled that as he was on his way out, he saw appellant near the door of the station pointing a .38 caliber gun at him and Lubaton. Lubaton let go of P/Insp. Miguel and he and Hupida instinctively took cover behind a police car. After appellant entered the station, they helped P/Insp. Miguel who was still alive get into the patrol car. They again saw appellant pointing a rifle at them and they jumped back inside the patrol car. Appellant then aimed at the radio room. Hupida said that he heard four or five shots from an automatic M16 rifle, later discovered to be the M16 rifle issued to PO3 Arabejo who left it on top of the traffic desk during the confusion. Hupida added he borrowed a vehicle and reported the shooting to the Provincial Director of the Philippine National Police, who sent an alert team in a Hummer vehicle. In the station, Hupida saw appellant voluntarily surrendering to the Chief of Police. He was also told to check on the condition of P/Insp. Miguel and Arabejo at the Basilan Community Hospital. He later found out that the two died on arrival at the hospital.

During cross-examination, Hupida added that appellant had returned to the station approximately ten minutes after being brought home after the altercation with SPO4 Miguel. [8] He categorically stated that he witnessed the killing of SPO4 Miguel and Arabejo.[9]

The second witness, SPO1 DANILO LUBATON, corroborated the entire story of Hupida and added that he, too, only heard a shot just before he looked out of the window and saw P/Insp. Miguel outside the

station, clutching his chest. He also recounted that appellant surrendered to his uncle-in-law, SPO4 Dereng Maldan. On cross-examination, he added that during the verbal exchange between appellant and SPO4 Miguel, he heard SPO4 Miguel utter, " No mas boz man alboroto, ta durmi ya di aton hepe, ta respeta lang boz con Hupida con migo hende. (Do not be noisy, our chief is already sleeping, you only respect Hupida, but me you don't.)[10] He said he also heard SPO4 Miguel taunt appellant, "Daw bata voz ta llora.[11] (You cry like a baby.)

PO3 WILFRIDO ARGUELLES, the third prosecution witness, likewise confirmed the story of SPO3 Hupida and SPO1 Lubaton. He recalled hearing SPO4 Miguel saying, "Keep quiet, you only respect SPO3 Hupida, Inspector Miguel is already sleeping. You are a pig, you cry like a child." [12] When asked why SPO4 Miguel shouted at appellant to keep quiet, PO3 Arguelles answered that they were noisy.[13] He said he witnessed appellant point a gun at SPO4 Miguel during the confrontation. [14] He also added that when appellant returned to the station after the latter was sent home, appellant got hold of PO3 Arabejo's armalite and pointed it at him, although appellant let him leave after he explained that he was not at fault.[15] PO3 Arguelles recalled that he ran outside towards Post 4, beside the Catholic church. At about nine to ten meters away from the station, he again heard automatic rifle gunfire and looked back. He saw appellant with an M16 rifle.[16] Thereafter, he borrowed a motorcycle, went to Senior Inspector Bensali Jabarani and reported that a police officer had run amuck. They rushed back to the station. Arguelles said that he found his shotgun on the floor of the station with five spent bullets.

SPO4 VICENTE ALCAYRA, the fourth witness, testified that he was on-duty in the radio room when he overheard the heated argument between SPO4 Miguel and appellant. After a while, P/Insp. Miguel entered and handed him two armalite rifles to be turned over to the Chief of Police. Later, he saw Arabejo, Lubaton, and appellant leave the station in the police patrol car. At around 1:30 A.M., P/Insp. Miguel told him he was stepping outside to answer a call of nature. Suddenly, he heard gunfire. Then he heard P/Insp. Miguel shout, "I was hit!" He looked out of the window and saw P/Insp. Miguel. As he ran out of the radio room to go to P/Insp. Miguel, he met Arabejo and SPO4 Miguel who were rushing in. He tried to re-enter the radio room but the two had locked it, so he dashed to the comfort room where he heard more gunshots. When the gunshots stopped, he stepped out of the comfort room and heard the voice of SPO4 Dereng Maldan. He did not see appellant but he saw SPO4 Miguel already dead while Arabejo was still alive. He helped bring Arabejo and P/Insp. Miguel to the hospital. When he returned he found the service revolver of P/Insp. Miguel in the radio room and gave it to the investigator. During cross-examination, he revealed that appellant's house was within walking distance to the station and only around 100 to 200 meters away.[17]

DR. JOSEPH GUEVARRA, a government physician, testified that he attended to the bodies of P/Insp. Miguel and PO3 Arabejo upon their arrival at the Basilan Community Hospital emergency room on September 29, 1994, at around 1:50 A.M.; that he issued the death certificates for all three police officers; that the three died from cardio-respiratory arrest due to gunshot wounds or multiple gunshot wounds;[18] and that he also examined appellant and found him positive for alcohol.[19]

PO3 CELSO TAN SANCHEZ testified that when the incident started he was sleeping inside the Investigation Room. He recounted that he heard several gunshots coming from the adjacent radio room. He stood up and overheard appellant call SPO4 Miguel, "Tiaging." Then, he heard more shots and sensed that appellant was trying to open the door of the Investigation Room but was unable to. Appellant started shouting and calmed down only when his uncle-in-law, SPO4 Dereng Maldan, arrived. PO3 Sanchez said that after things settled down, he was assigned to investigate the incident. During his testimony he identified the firearms used during the shootings. They were: (a) one US caliber 5.56mm M16 rifle with Serial No.137439, issued to PO3 Roberto Arabejo; (b) one 12-gauge Armscor shotgun with Serial No.1051259, issued to PO3 Wilfredo Arguelles; and (c) one caliber .38 Squires Bingham revolver with Serial No. 955815, issued to appellant.[20] He also verified that the investigating team recovered ten

fired .38 caliber cartridges, one .38 caliber misfired round, five 12-gauge cartridges, and forty-five 5.56mm spent rifle cartridges.

ANNABELLA MIGUEL, widow of P/Insp. Edgardo Miguel, testified that her husband was the sole breadwinner in their family with three children. She also claimed that she spent P28,000.00 for the coffin of her husband, evidenced by a receipt from the Basilan Memorial Chapel, P25,000.00 more or less for expenses during the vigil and prayer nights, P28,000.00 for the burial, P25,000.00 for the last prayer night or the Ultimo, and P20,000.00 for the tomb.[21]

ESTER M. ABAYON, widow of SPO4 Santiago Miguel, testified that she and her husband had been married for 24 years; that they have three children; and that she had incurred a total of P25,000.00 expenses to bury her husband.[22]

MA. SOCORRO ARABEJO, widow of SPO1 Roberto Arabejo, testified that she spent P25,000.00 for the coffin and interment of her husband, P5,000.00 for his tomb, and P25,000.00 during the wake and last night of prayers.[23]

ALET VIRTUCIO, Head of the Crime Laboratory and Ballistics, PNP, in Sotero, Cebu City, testified that sometime in February 1995, he received a request for ballistics examination on pieces of firearms and ammunitions from the PNP Crime Laboratory in Region 9 in Zamboanga. [24] The ballistics tests showed that the .38 caliber rounds found at the crime scene were fired from the Squires Bingham caliber .38 revolver with Serial No. 955815, while the shotgun cartridges were fired from the 12-gauge Armscor shotgun with Serial No. 1051259. All of the spent rifle rounds were fired from the M16 assault rifle with Serial No. 137439.[25]

SPO1 RODOLFO V. GRAFIA, of the laboratory unit in Zamboanga City, was tasked to mark the empty bullet shells, slugs, cartridges and firearms recovered at the crime scene. In his testimony, he identified these objects and admitted that he was the custodian of these pieces of evidence.

DR. ROSSANA PARAGUYA, a rural health physician of the Basilan Integrated Provincial Health Office, performed a post-mortem examination on the bodies of the three victims. She reported that: (1) P/Insp. Miguel sustained two fatal gunshot wounds in the center of his chest; (2) SPO4 Miguel sustained multiple gunshot wounds, with at least ten entry wounds and six exit wounds in various portions of his body; and (3) PO3 Arabejo suffered four gunshot wounds in different parts of his body.[26]

DR. RODOLFO M. VALMORIA, Chief Medico Legal Officer of the PNP Crime Laboratory of Regional Command No. IX, testified that he conducted an autopsy on the cadaver of P/Insp. Edgardo Miguel after a request to exhume the body of the deceased was allowed. He said that he recovered two slugs from a .38 caliber revolver embedded in the lungs of the deceased. He also described the result of the ballistics tests on the slugs and compared them with the slugs from the three firearms recovered from the scene of the shooting.[27]

SPO3 ARMANDO UDIN PELAEZ, one of the investigators, testified that he took pictures of the door and the room where SPO4 Miguel and PO3 Arabejo were found dead. He described in detail the holes and bullet marks on the windows and walls in the photographs of the room which he himself took.

For the defense, the first witness was appellant PO3 NOEL FELICIANO himself. He recounted that on the early hours of September 29, 1994, as he made preparations to sleep on a long bench near the traffic desk, SPO4 Santiago Miguel came out of the toilet, kicked his foot, and angrily shouted at him demanding why he was noisy. Appellant protested he was not, but SPO4 Miguel started cursing him repeatedly with such invectives as Baboy voz. (You are a pig.), Coo voz nana voz. (Vulva of your mother.),Torpe vos. (You are a fool.), Mangco vos. (Deformed arm.), Butot vos. (Big stomach.), Ichura puerco vos. (You look like a pig.), Bueno con vos man training ole. (It would be good for you to re-train.), and Nusirbi nada vos de pulis. (You are a useless policeman.).[28] Appellant claims that he kept quiet.

Appellant further testified that SPO4 Miguel, apparently piqued by appellants refusal to be perturbed, grabbed his M16 assault rifle from his table, cocked it and poked it at appellants head. The tip of the rifles barrel hit appellants temple. Appellant said he blacked out, stood up and was about to grab his rifle, when SPO4 Miguel repeated, Coo vos nana vos. Mata yo con vos. (Vulva of your mother, I will kill you.)[29] P/Insp. Miguel suddenly appeared and immediately grabbed appellants rifle while SPO3 Hupida disarmed SPO4 Miguel. P/Insp. Miguel then ordered appellant to go home. SPO1 Lubaton and PO3 Arabejo, who had earlier returned, drove appellant to his house near the police station. Appellant recounted that upon reaching home, he hurriedly got his .38 caliber Squires Bingham revolver and bullets. As he went downstairs, he met his uncle-in-law, SPO4 Dereng Maldan, who, sensing that something was wrong since he appeared distraught and weeping, tried to wrestle the handgun from him. Unable to control his anger, he said, he shoved Maldan out of his way and ran towards the front door. His mother and sister blocked the door to stop him from leaving the house, but he managed to leave through the back door and reach the police station in ten minutes.[30]

He recounted that as soon as he entered the PNP compound, he saw a man just outside the station building. He fired at this man, hitting him twice in the chest. He soon realized he mistook P/Insp. Edgardo Miguel for SPO4 Santiago Miguel, since both were tall and thin. [31] He ran inside the police station. He met SPO3 Hupida, SPO1 Lubaton, and PO3 Arguelles who were rushing out in response to the gunfire. He paid them no attention.[32] He remembered catching a glimpse of SPO4 Miguel running inside the radio room and closing the door. Instantaneously, he fired his .38 caliber revolver at SPO4 Miguel, using all the rounds left in the chamber of his handgun.[33] He then grabbed the M16 rifle near him and fired at the radio room. When he ran out of ammunition he took another armalite and fired again at the radio room. He then reloaded his revolver and resumed firing at the radio room where SPO4 Santiago Miguel, the object of his rage, was.[34] He then snatched the 12-gauge shotgun nearby and aimed at the radio room anew. He recalled that when he ran out of ammunition he kicked open the door of the radio room. Inside, he saw SPO4 Miguel and PO3 Arabejo already dead. Upon seeing Arabejo, he said he broke down in tears because SPO3 Arabejo was innocent and was his good friend.[35] A few minutes later, appellant's uncle-in-law, SPO4 Maldan, arrived. Appellant surrendered to SPO4 Maldan who turned him over to the Isabela PNP Station Commander.

Appellant explained that he did not intend to kill P/Insp. Miguel nor PO3 Arabejo. He said he mistook P/Insp. Miguel, who was outside, for SPO4 Miguel because of the darkness[36] and because of the similarity of their build.[37] Appellant stated that he did not know that PO3 Arabejo, his close friend, was inside the radio room when he fired at it. [38] Neither did he intend to kill Arabejo. Appellant pleaded passion and obfuscation for the killing of SPO4 Miguel because SPO4 Miguel insulted and poked an assault rifle at his head.[39]

SPO4 DERENG MALDAN, the second witness called by the defense, testified on July 25, 1995, and August 8, 1996. When he first testified, he essentially corroborated the testimonies of prosecution witnesses on the firearms that appellant used, confirmed the position of SPO4 Miguel and P/Insp. Miguel's bodies, and claimed PO3 Arabejo was still alive and was crying for help when he entered the radio room. He also narrated how he helped bring P/Insp. Miguel and PO3 Arabejo to the hospital.

The second time, he testified that upon his arrival at the station, appellant voluntarily handed him a shotgun. He took it and advised appellant to sit down and take a rest. When the latter did, he left appellant to the custody of another policeman. Maldan later on turned in appellant to the station commander.[40]

On September 19, 1996, the trial court rendered its consolidated decision finding appellant guilty beyond reasonable doubt for the murders of his three fellow police officers and sentencing him as follows:

a) In Criminal Case No. 2214-146 for Murder of SPO4 Santiago Miguel by taking into consideration the mitigating circumstances of passion and obfuscation and the provision of the Indeterminate Sentence

Law, hereby sentences said accused, Noel Feliciano, to suffer the penalty of TWELVE (12) YEARS and ONE (1) DAY as minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS as maximum which is the minimum period of Reclusion Temporal.

And to indemnify the heirs of SPO4 Santiago Miguel the sum of Fifty-Five Thousand (P55,000.00) Pesos as actual damages. In this case, no moral damages could be awarded to the heirs because the herein victim, SPO4 Santiago Miguel, has contributed to the cause which led the accused to commit these heinous crimes.

b) In Criminal Case No. 2213-145 for the Murder of PO3 Roberto Arabejo, by taking into consideration the aggravating circumstances of evident premeditation and the generic aggravating circumstance of treachery, hereby sentences the accused, Noel Feliciano, to suffer the extreme penalty of Death.

And to indemnify the heirs of PO3 Roberto Arabejo the amount of Fifty Thousand (P50,000.00) Pesos as actual damages and another amount of Two Hundred Fifty Thousand (P250,000.00) Pesos as moral damages.

c) In Criminal Case No. 2211-142 for the Murder of P/Inspector Edgardo Miguel, by taking into consideration the aggravating circumstances of evident premeditation and the generic aggravating circumstances of treachery and disregard on the respect due to the offended party, the immediate superior officer of the accused and his Commanding Officer at the PNP, Isabela Police Station at the time of the commission of the crime, hereby sentences the accused, Noel Feliciano, to suffer the extreme penalty of Death.

And to indemnify the heirs of the late P/Inspector Edgardo Miguel the amount of Seventy-Eight Thousand (P78,000.00) Pesos as actual damages and another amount of Five Hundred Thousand (P500,000.00) Pesos as moral damages.

xxx

Let these Judgments be done, as IT IS SO ORDERED.[41]

By reason of the two death sentences imposed upon appellant, the consolidated decision is now before this Court for automatic review.

In his brief, appellant assigns the following as sole error:

THE LOWER COURT ERRED IN RULING THAT THE KILLING OF POL/INSP. EDGARDO MIGUEL AND PO3 ROBERTO ARABEJO WERE ATTENDED WITH TREACHERY AND EVIDENT PREMEDITATION, WHICH RESPECTIVELY QUALIFY THEM TO MURDER WITH THE CORRESPONDING PENALTY OF DEATH.[42]

We shall now consider the following issues: (1) Was the killing of both police officers by appellant attended by the qualifying circumstances of treachery and evident premeditation? (2) Is the imposition of the death penalty on appellant for each killing appropriate?

On the question of treachery , appellant contends that the trial court erred in finding that alevosia qualified the fatal shooting of P/Insp. Miguel into murder. He avers that the prosecution failed to prove that appellant deliberately shot P/Insp. Miguel while the latter was relieving himself, thus ensuring that the victim would be unable to defend himself. Appellant insists that his shooting of P/Insp. Miguel was a simple case of mistaken identity.

Appellant also avers that the trial court erred in considering that the killing of PO3 Roberto Arabejo was likewise characterized by treachery. Appellant points out that it was shown during the trial that he did not know that Arabejo was inside the radio room when he fired at it after SPO4 Santiago Miguel closed the door. Hence, there was no intention at all on his part to kill Arabejo. The latter was accidentally shot when appellant fired at the radio room. Nowhere in the records is there a showing that appellant deliberately, suddenly and unexpectedly attacked Arabejo, thus leaving him no opportunity to defend himself.[43]

For the State, the Office of the Solicitor General argues that treachery was present in the killing of P/Insp. Miguel. The OSG points out that after appellant was ordered to go home by P/Insp. Miguel following an altercation between appellant and SPO4 Miguel, appellant returned to the police station armed with his service revolver. The OSG submits that the sudden and unexpected attack by appellant upon an unsuspecting person who was answering the call of nature, mistaken as SPO4 Miguel, constitutes treachery[44].

The Solicitor General likewise submits that the killing of PO3 Arabejo was also attended by treachery. The OSG contends that the suddenness of the attack on PO3 Arabejo as he rushed to the radio room, and the fact that the victim was unarmed and defenseless, clearly showed that appellant directly employed means to ensure the success of his attack without any risk from any defense that the victim could put up.[45]

The essence of treachery is the sudden and unexpected attack on an unsuspecting victim by the assailant,[46] depriving his victim of any chance to defend himself or repel the aggression, thereby insuring its commission without risk to the aggressor and without any provocation on the part of the victim.

As observed by the OSG, the police officers inside the Isabela police station believed that appellant had gone home after his verbal tussle with SPO4 Miguel. He was not expected to go back to the police station. However, he returned some ten minutes later, armed with a .38 caliber revolver, and at once shot P/Insp. Miguel who was then outside, mistaking him for SPO4 Miguel since the two had the same build. There is, without doubt, treachery in the manner of attack employed by appellant. He shot P/Insp. Miguel suddenly and unexpectedly, without the latter having had the opportunity to defend himself. P/Insp. Miguel, who was urinating, did no have any inkling of the fate that was to befall him.

Regarding the death of PO3 Arabejo, the trial court held that treachery was also present because he was completely defenseless and taken by surprise when he was shot by appellant. Was Arabejo taken completely by surprise? Recall that he sought cover in the radio room precisely because he was awakened by sudden gunfire. By finding cover inside the radio room like SPO4 Miguel, Arabejo was amply forewarned of brewing violence. Further, he knew of the earlier altercation between SPO4 Miguel and appellant. He saw appellant strafe the radio room when the latter caught a glimpse of SPO4 Miguel closing the door of the radio room. Thus, appellants fatal shooting of Arabejo, in our view, was not attended by alevosia.

Coming now to the aggravating circumstance of evident premeditation, the Solicitor General agrees with appellant that the trial court erred on this score.

Like treachery, the qualifying circumstance of premeditation must not only be evident but must also be proved with certainty as the crime itself and must be based on external acts indicating deliberate planning.[47] For evident premeditation to be considered, the following facts must be established: (1) the time when the accused determined to commit the offense; (2) the commission of an act manifestly indicating that the accused clung to his determination; and (3) the lapse of time between the moment the accused decided to commit the offense and its actual commission, sufficient for the aggressor to reflect on the consequences of his act.[48]

Here, appellant's intent to kill SPO4 Santiago Miguel became manifest only after provocative insults were hurled by the victim. Appellant had no set plan to commit the crime as a fruit of mature deliberation. Furthermore, as the OSG observed, no sufficient time had elapsed for appellant to weigh the consequences of his actions. We likewise find no showing of deliberate preparations by appellant to kill P/Insp. Miguel and PO3 Arabejo. Recall that appellant immediately returned to the police station armed with his service revolver after he was ordered to go home by his superior officer. When there is no showing how and when the plan to kill was decided or what time had elapsed before it was carried out, there is no evident premeditation.[49]

In a criminal case, an appeal throws open the entire case wide open for review, and the appellate court can correct errors, though unassigned, that may be found in the appealed judgment. [50] In this automatic review, although appellant did not allege that the trial court erred in finding that the killing of P/Insp. Miguel was aggravated by disregard of rank, we must agree with the Solicitor General that on this point, indeed the trial court erred. Not for the reason that appellant did not intend to insult the rank of a superior officer because he simply mistook P/Insp. Miguel for SPO4 Miguel, the intended victim, but for an entirely different reason. Section 8, Rule 110 of the Revised Rules of Criminal Procedure which took effect on December 1, 2000 states:

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.

Under said rule, the particular qualifying and aggravating circumstances must be specifically alleged. In this instant case, the trial court, in convicting appellant, took into consideration

"...the aggravating circumstances of evident premeditation and the generic aggravating circumstances of treachery and disregard on the respect due to the offended party, the immediate superior officer of the accused and his Commanding Officer at the PNP, Isabela Police Station at the time of the commission of the crime ...[51]

However, the information specifically alleged only two aggravating circumstances, namely treachery and evident premeditation. The circumstance of disregard of respect due to the offended party, not having been alleged in the information, cannot be appreciated to modify appellant's liability, [52] pursuant to Section 8 of Rule 110.

Further, we find that the trial court likewise erred in failing to appreciate the mitigating circumstances of voluntary surrender as well as of passion and obfuscation in appellant's favor.

For voluntary surrender to be appreciated, the following requisites must concur: (a) the offender has not actually been arrested; (b) the offender surrenders himself to a person in authority; and ( c) his surrender was voluntary .The records clearly show that after appellant had regained his senses, he meekly surrendered to SPO4 Maldan.

On the other hand, passion and obfuscation exists when (1) there is an act, both unlawful and sufficient to produce such a condition of the mind, and (2) the said 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 normal equanimity.[53] In the instant case, witnesses testified that the deceased SPO4 Miguel started the confrontation when he kicked appellant and hurled invectives at him, and aimed his rifle at appellant's temple. The witnesses also testified that immediately after said incident, appellant was driven home by his companions and appellant returned to the station within ten to 15 minutes. Under these circumstances, appellant is entitled to the mitigating circumstance of obfuscation.

There is passion and obfuscation when the crime was committed due to an uncontrollable burst of passion provoked by prior unjust or improper acts, or due to a legitimate stimulus so powerful as to overcome reason.[54]

In sum, we find that the trial court erred in qualifying the offenses of appellant on account of evident premeditation and disregard of rank for the death of P/Inspector Edgardo Miguel in Criminal Case No.2211-142, and by treachery and evident premeditation for the wrongful death of PO3 Roberto Arabejo in Criminal Case No.2213-145. The trial court correctly convicted appellant of murder for the death of P/Insp. Edgardo Miguel since treachery attended the killing. However, appellant's conviction for murder for the killing of PO3 Roberto Arabejo is erroneous. Absent any qualifying circumstance, the crime committed in this case was only homicide.

The imposition of the penalty of death on these two cases is also inappropriate. In Criminal Case No.2211-142, for the killing of P/Insp. Miguel, murder is punishable by reclusion perpetua to death under Article 248 of the Revised Penal Code. With the attendance of the mitigating circumstances of voluntary surrender and passion and obfuscation, however, the penalty that may be imposed is only reclusion perpetua, following Article 63(3) of the Revised Penal Code.

In Criminal Case No.2213-145, for the death of PO3 Arabejo, absent any qualifying circumstance, appellant may only be convicted of homicide. Under Article 249 of the Revised Penal Code, homicide is punished by reclusion temporal. Considering further the mitigating circumstances of voluntary surrender and passion and obfuscation, the imposable penalty under Article 64(5) of the Revised Penal Code is prision mayor. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed shall be taken from the medium period of prision mayor, while the minimum shall be taken from within the range of the penalty next lower in degree which is prision correccional. For the killing of PO3 Arabejo, then, the imposable penalty is imprisonment of from six years of prision correccional as minimum, to eight years and one day of prision mayor as maximum.

In Criminal Case No. 2214-146, we find that the trial court also erred in mitigating the wrongful death of SPO4 Santiago Miguel only with passion and obfuscation without including the mitigating circumstance of voluntary surrender. Accordingly, its sentence on appellant to suffer imprisonment from 12 years and one day as minimum to 14 years and eight months as maximum for the death of SPO4 Santiago Miguel is also erroneous.

As in the killing of PO3 Arabejo, there was no aggravating circumstance present in the killing of SPO4 Miguel. Similarly, two mitigating circumstances exist, namely, passion and obfuscation and voluntary surrender. Thus, the imposable penalty is the same as that imposed for the wrongful death of PO3 Arabejo, which is from six years of prision correccional as minimum, to eight years and one day of prision mayor as maximum.

Modifications on the damages awarded by the trial court are likewise in order.

In Criminal Case No. 2211-142, the lower court ordered appellant to pay to the heirs of the late P/Insp. Edgardo Miguel P78,000.00 as actual damages and P500,000.00 as moral damages. However, only a receipt of the Basilan Memorial Chapel for P20,000.00[55] was presented. Actual damages may only be awarded for expenses duly supported by receipts. [56] In this case then, actual damages should be only P20,000.00. Likewise, we find P500,000.00 for moral damages excessive. In line with prevailing jurisprudence, P50,000.00 should be adequate.[57] In addition, the sum of P50,000.00 as civil indemnity is also automatically awarded to the heirs without need of proof other than the fact of the commission of the crime.[58]

In Criminal Case No. 2213-145, the trial court awarded the heirs of the late PO3 Roberto Arabejo P50,000.00 as actual damages and P250,000.00 as moral damages. The award of P50,000.00 for actual damages was not justified by receipts and must be deleted. In its place, an award of P10,000.00 as

nominal damages is justified. The award of P250,000.00 for moral damages is likewise tempered to P50,000.00. In addition, the sum of P50,000.00 is awarded to the heirs as civil indemnity.

In Criminal Case No. 2214-146, actual damages payable to the heirs of the late SPO4 Santiago Miguel was set by the trial court at P55,000.00. Again, no receipts substantiate this award for actual damages. As in Criminal Case No.2213-45,P10,000.00 by way of nominal damages is sufficient.[59] We agree with the trial court that since the late SPO4 Miguel's provocation led accused to commit these crimes, his heirs are not entitled to moral damages. They are, however, entitled to P50,000.00 as civil indemnity.

WHEREFORE, the consolidated decision of the Regional Trial Court of Isabela, Basilan, Branch 1 in Criminal Cases Nos. 2211-142, 2213-145, and 2214-146, finding herein appellant PO3 NOEL FELICIANO, GUILTY beyond reasonable doubt for the wrongful deaths of P/Insp. Edgardo Miguel, PO3 Roberto Arabejo, and SPO4 Santiago Miguel, is AFFIRMED WITH MODIFICATION. Appellant NOEL FELICIANO is found GUILTY beyond reasonable doubt of MURDER for the killing of P/Insp. Edgardo Miguel, and he is sentenced to suffer the penalty of reclusion perpetua. For the killing of PO3 Roberto Arabejo and SPO4 Santiago Miguel, appellant NOEL FELICIANO is found GUILTY of two counts of HOMICIDE. For each count, he is sentenced to suffer an indeterminate penalty of imprisonment ranging from six (6) years of prision correccional as minimum to eight (8) years and one (1) day of prision mayor as maximum, with the accessory penalties provided by law.

In addition, in Criminal Case No. 2211-142, for the death of P/Insp. Edgardo Miguel, he is ordered to indemnify the heirs of the victim P28,000.00 as actual damages, P50,000.00 as civil indemnity, and P50,000.00, as moral damages, without subsidiary imprisonment in case of insolvency.

In Criminal Case No. 2213-145, for the death of PO3 Roberto Arabejo, he is ordered to pay the heirs of the victim P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P10,000.00 as nominal damages, without subsidiary imprisonment in case of insolvency.

In Criminal Case No. 2214-146, for the death of SPO4 Santiago Miguel, he is ordered to pay the heirs of the victim, P50,000.00 as civil indemnity and P10,000.00 as nominal damages, without subsidiary imprisonment in case of insolvency.

SO ORDERED.

EN BANC

[G.R. No. 148912. September 10, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. TIMOTEO ESCARLOS, alias Tomy, appellant.

D E C I S I O N

PANGANIBAN, J.:

By interposing self-defense, herein appellant admits authorship of the killing. Thus, shifted to him is the burden of proof showing that the killing was justified. Despite his failure to prove self-defense, he may be convicted only of homicide, not murder, because of the inability of the prosecution to establish any qualifying circumstance. Here, treachery is negated by the victims awareness of the impending attack.

The Case

For automatic review before the Court is the May 29, 2001 Decision [1] of the Regional Trial Court (RTC) of Urdaneta, Pangasinan (Branch 46) in Criminal Case No. U-10792, finding appellant guilty of murder beyond reasonable doubt and sentencing him to death. The dispositive portion of the Decision reads as follows:

WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused Timoteo Escarlos of the crime of Murder and the Court sentences him to suffer the penalty of DEATH; he is likewise ordered to indemnify the heirs of Antonio Balisacan the sum of P28,650.00 as actual damages, the sum of P50,000.00 as moral damages and the further sum of P50,000.00 as exemplary damages.

The Clerk of Court is hereby ordered to prepare the mittimus.

The Jail Warden, Bureau of Jail Management and Penology (BJMP) Urdaneta District Jail, Urdaneta City, is hereby ordered to deliver the living body of Timoteo Escarlos to the National Bilibid Prisons, Muntinlupa City, immediately upon receipt of this Decision.[2]

The Information[3] dated August 29, 2000, charged appellant as follows:

That on or about July 1, 2000, in the evening, at Barangay Dumanpot, Asingan, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, armed with a sharp pointed bladed weapon, with deliberate intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, hold and stab from behind Brgy. Kgd. Antonio Balisacan, inflicting upon him the following injuries:

External Findings:

(1) Stab wound located below right clavicle measuring 3 inches length and 8 inches depth.

(2) Stab wound located at left armpit measuring 4 [inches] length and 6 inches depth.

(3) Stab wound located at mid lumbar area measuring 3 inches length and 4 inches depth

(4) Stab wound located between right first and second finger measuring 3 inches length.

Internal Findings:

(1) Cutting of the upper and lower lobe of the right lung.

(2) Cutting of the lower lobe of the left lung.

which injuries directly caused the death of said Brgy. Kgd. Antonio Balisacan, to the damage and prejudice of his heirs.

Contrary to Art. 248, Revised Penal Code in relation to Republic Act No. 7659.[4]

During his arraignment on November 8, 2000, appellant, with the assistance of his counsel, [5] pleaded not guilty to the charge.[6] After trial in due course, he was found guilty by the lower court.

The FactsVersion of the Prosecution

The Office of the Solicitor General (OSG) narrates the factual version of the prosecution as follows:

Around 9 oclock in the evening of July 1, 2000, Antonio Balisacan went to the residence of Jaime Ulep in Domampot, Asingan, Pangasinan to attend a benefit dance which was near the place. In the benefit dance was his son Crisanto Balisacan, who attended the dance with his friends. Crisanto stood beside the emcee, Ceasario Escarlos, appellants brother. While Ceasario was calling the victim, Antonio Balisacan, to come to the the stage as he was a kagawad, Crisanto heard the people at his back shout Ay!. Five (5) to six (6) meters at his back, with the place [illuminated] by a 50 to 100 watts bulb, he saw appellant stab his father, Antonio, several times. Crisanto was momentarily shocked that he was not able to react. When appellant fled, Crisanto came to his senses and ran to Antonio. Antonio was still alive so he brought him to Urdaneta Sacred Heart Hospital where he expired a few minutes after arrival.

Jesus Dismaya was also beside Ceasario when Antonio Balisacans name was called. When he heard people shout, he turned around and saw from a distance of four (4) meters appellant stabbing Antonio four (4) times with a ten (10) inch-long knife. He then called Antonios brother, [Marcelo] Balisacan.

Within the vicinity was Antonios brother, Marcelo Balisacan. He was in the Asingan-Urdaneta road, which was about fifteen (15) meters outside Uleps yard when he heard people shout and run from the benefit dance. Wanting to know what was happening, he went to the benefit dance and saw that Antonio was stabbed. He went near Antonio, hugged him, and asked who stabbed him. He replied, Tomy Escarlos.

Meanwhile around 9:30 of the same evening of July 1, 2000. SPO1 Patricio Badua was on duty. He received a phone call about a stabbing incident in a benefit dance in Domampot, Asingan, Pangasinan. When he went to the scene of the crime, the victim, Antonio Balisacan was already in the hospital and appellant had already fled. He later learn[ed] that Antonio died.

Dr. Noemi Taganas conducted an autopsy on Antonios body and found:

External Findings:

(1) Stab wound located below the right clavicle measuring 3 inches length (in) and 8 inches (in) depth.

(2) Stab wound located at left armpit measuring 4 inches length and 6 inches depth.

(3) Stab wound located at mid lumbar area measuring 3 inches length and 4 inches depth

(4) Stab wound located between right first and second finger measuring 3 inches length.

Internal Findings:

(1) Cutting of the upper and lower lobe of the right lung.

(2) Cutting of the lower lobe of the left lung.

She later issued a death certificate. She stated in court that out of the four (4) stab wounds, Antonios second stab wound was fatal because the lungs were penetrated.

Dr. Ronald Bandonil, an NBI medico-legal officer confirmed Taganas autopsy report. He also conducted an autopsy on the exhumed body of Antonio. In his autopsy he found that Antonios first and second wounds were fatal as these caused his death due to hypovalmic shock or massive blood loss.[7] (Citations omitted)

Version of the Defense

Appellant, on the other hand, relates his version of the facts in this manner:

On the night of July 1, 2000, accused TIMOTEO ESCARLOS together with Rexie Yabes, Fredo Ramos, Erwin Ramos, Rowena Alamigo and others were at the yard of Jaime Ulep, in Purok Inanama, Domanpot Asingan, Pangasinan watching a benefit dance sponsored by Mr. & Mrs. Organization. He was invited to buy lechon during the benefit dance.

While thereat, Kgd. Antonio Balisacan who was then drunk, passed in front of accused and told him, You are here again to create trouble. Accused was offended so he answered back saying Why do you say that to me when I am not doing any trouble here.Antonio Balisacan told him, OKINNAM KETDI (vulva of your Mother) and without warning boxed him. Timoteo was hit on the forehead, which left a scar on his forehead about an inch above the right eyebrow. He intended to box back but he noticed that the victim was pulling out a kitchen knife, so for fear of his life, he grabbed the weapon from Antonio Balisacan and used the knife in stabbing the latter who was hit at the side below the left armpit. He stabbed him twice and when the victim was about to fall down, he was able to hit him for the third time.

The weapon that Timoteo was able to get from Antonio was a kitchen knife about 10 to 12 inches. Antonio drew the knife from his left side. Timoteo was able to get hold of the handle of the knife when he grappled for the same from the victim, by taking hold of the knife with his right hand and stabbed Antonio who was intending to stab him. Antonio was one (1) inch taller than accused.

Timoteos testimony was corroborated by an eyewitness, CESARIO ESCARLOS, the brother of Timoteo and president of the Mr. & Mrs. Association which sponsored the benefit dance on July 1, 2000.

On the night of July 1, 2000, Cesario Escarlos was at the yard of Jaime Ulep. At about 9:00 oclock in the evening of the said date, he saw his brother Timoteo Escarlos together with Dexie Yabis standing in a corner watching the dance. Several minutes later Kgd. Antonio Balisacan arrived and later on, while Cesario was on his way to urinate. He heard Antonio uttered to Timoteo ADDA CAYO MANEN NGA AGARAMED TI NILOLOCON. While relieving himself, he heard both Timoteo and Antonio arguing and before he could get near and pacify them, he saw them wrestling with each other. Many people were around but nobody pacified them. Next minute he saw Antonio bloodied and lying on the ground. There were at least 100 people then and might have seen the incident. He noticed that Jesus Dismaya was there but the latter did not do anything. Cesario, after the incident only stayed there for 3 minutes because he was looking for his three year-old daughter. In the meantime, nobody touched the body of the victim.[8]

The Ruling of the Trial Court

The trial court believed that the prosecutions evidence was sufficient to convict appellant of murder qualified by treachery. It rejected his plea of self-defense, because there had been no unlawful aggression on the part of the victim.

x x x. The established facts revealed that the victim was one of the persons who filed a case of malicious mischief against [appellant]. Said case was filed five (5) months before the instant case happened. To the mind of the Court, the accused only found a way of avenging what he felt towards the victim. He took advantage of that x x x particular time and place to let out his feelings in the presence of his barangay mates. Such hidden grudge by the accused against the victim, established the motive of the former.

x x x x x x x x x

The second element of self-defense is also lacking. The nature, location and the number of wounds inflicted on the victim belie and negate the accused[s] claim of self-defense. The post mortem findings of the autopsy report showed that the victim sustained four stab wounds.

If there is any truth to the accused[s] claim of self-defense, he would not have stabbed him several times. [Worse,] the location of the wounds suggested that the accused was at the back of the victim when the wounds were inflicted. It is therefore evident from the conduct of the accused that he was determined to kill the victim and did not just act to defend himself. In view of the foregoing, it is no longer necessary to discuss the third element.[9]

Hence, this automatic review.[10]

The Issues

Appellant assigns the following alleged errors for our consideration:

1. The honorable trial court erred in appreciating treachery as a qualifying circumstance despite failure of the prosecution to prove its attendance.

2. The honorable trial court erred in not finding that the testimony of the supposed eyewitnesses for the prosecution as to the attendance of treachery is flawed and unworthy of belief.

3. The honorable trial court erred in not giving exculpatory weight to the theory of self-defense interpose[d] by the accused-appellant.

4. The honorable trial court committed a grave and serious error in not finding that the victim [was] the first to assault accused.

5. The honorable trial court erred in considering motive to establish the guilt of the accused.

6. The honorable court erred in convicting the accused-appellant of murder instead of acquitting him or at most convicting him of homicide.[11]

These issues boil down to four: (1) sufficiency of the prosecutions evidence, (2) viability of self-defense, (3) appreciation of treachery as a qualifying circumstance, and (4) propriety of the penalty and the damages imposed by the trial court.

The Courts Ruling

The appeal is partly meritorious.

First Issue:Sufficiency of the Prosecutions Evidence

Although appellant did not directly raise the sufficiency of the prosecutions evidence as an issue, this Court nonetheless deliberated on it motu proprio, because an automatic appeal in a criminal action opens the whole case for review. Indeed, the strength of the prosecutions evidence must be passed upon, especially in cases in which the death penalty has been imposed by the trial court.[12] We have carefully examined the evidence for the prosecution and found that the fact of killing and the identity of the killer were duly established beyond reasonable doubt.

Prosecution Witness Crisanto Balisacan, son of the victim, testified on the stabbing incident, which had occurred during a benefit dance on that fateful night of July 1, 2000. The witness testimony is as follows:

COURT:

You go to the main point.

ATTY. VELASCO:

While there, did you observe or did you see if there was any unusual incident that took place?

A: Yes, your Honor.

Q: What was that unusual incident you have seen and observed?

A: Stabbing incident, your Honor.

COURT:

Who was stabbed?

ATTY. VELASCO:

Who was the victim of that stabbing?

A: My father.

Q: Who stabbed him?

A: Mr. Timoteo Tomy Escarlos, the accused in this case, your Honor.

Q: Will you please focus your eyes within this Honorable Court and tell us whether the person you said who stabbed your father by the name of Timoteo Escarlos is in the premises of this Honorable Court?

A: Yes, sir.

Q: Will you please stand up and point to him?

A: The first one, your Honor (Witness is pointing unto a person seated on the bench inside the courtroom, who, when his name was asked, he answered Timoteo Escarlos).

Q: How long have you been acquainted with the accused Timoteo Escarlos?

A: About ten years, your Honor.

Q: He is also from Domampot?

A: Yes, your Honor.

Q: Considering that it is already about 9:20-9:30 oclock in the evening when this stabbing incident took place, how can you be sure that it was Timoteo Escarlos who stabbed your father?

A: There was x x x light, your Honor.

Q: What kind of light are you trying to say?

A: 50100 watts bulb.

x x x x x x x x x

ATTY. VELASCO:

Did you see the spot where your father was actually stabbed?

A: Yes, sir.

Q: How far is this place where your father was stabbed in relation to the entrance of the dance arena.

A: About 5 to 6 meters at my back, your Honor.

Q: And at that distance, what happened next while you were watching?

A: I heard shouting.

Q: These shouting that you heard, where did they come from?

A: From my back.

x x x x x x x x x

COURT:

What is that shouting about?

ATTY. VELASCO:

You heard shoutin[g], according to you, what did you hear, if you know?

A: About the incident.

COURT:

Tell [us] exactly what you heard[.]

A: I heard shouting, Ay!

Q: How many people shouted, Ay?

A: Many, your Honor, because that was a benefit dance.

ATTY. VELASCO:

When you heard shoutin[g], what did you do, if any?

A: I turned my head to my back.

Q: When you focused your attention and sight at your back, what happened next?

A: I saw stabbing. I saw my father stabbed by Timoteo Escarlos, your Honor.[13] (Italics supplied)

Undoubtedly, the factual premises with regard to the killing and its commission by appellant are clear and undisputed. He did not at all deny the allegations against him and openly admitted that he had killed the victim.However, he interposes self-defense to seek his exoneration from criminal liability.

Second Issue:Plea of Self-Defense

In pleading self-defense, appellant asserts that it was the victim who initially approached and assaulted him. Allegedly, the former had no choice but to defend himself under the circumstances. In his testimony before the trial court, he described the confrontation that had led to the fatal killing as follows:

Q: And while you were there at the yard of Jaime Ulep on that night of July 1, 2000 do you remember having seen the person of one Kgd. Antonio Balisacan?

A: Yes, sir.

Q: And did he see you also?

A: Yes, sir.

Q: And did you happen to see him?

A: When he passed in front of me he uttered in a loud voice you are here again to create trouble (ADDA KA MANEN DITOY NGA AGARAMID TI NILILOKO).

Q: To whom did Antonio Balisacan utter these words?

A: I, sir.

Q: And you said it was uttered in a loud manner, how far were you when he uttered these words?

A: More or less 3 to 4 meters, sir.

Q: What did you say?

A: I was offended, sir.

Q: And do you know the physical appearance of Antonio Balisacan when he mentioned those words to you?

A: As if he was drunk, sir.

Q: What made you say that as if he was drunk?

A: I smell his breath, sir.

Q: How did you react later when Antonio Balisacan uttered those words to you?

A: I said: Why do you say that to me when I am not doing any trouble here.

Q: By the way, when Antonio Balisacan said those words to you, were you doing anything that time?

A: None, sir.

Q: What happened later on when you answered Brgy. Kgd. Antonio Balisacan?

A: He said: OKINNAM KETDI (vulva of your mother) and then he boxed me, sir.

Q: Were you hit?

A: Yes, sir.

Q: What part of your body was hit?

A: This one on my forehead, sir. (Witness is pointing on his forehead).

Q: Were you injured?

A: Yes, sir.

Q: What injury did you suffer?

A: My forehead was injured (Witness is pointing a [to] a scar on his forehead about an inch at the right above the right eyecrow).

Q: And what did you do after you were boxed by Antonio Balisacan?

A: When I intend to box him I noticed that he withdrew a balisong and I tried to grab and used the balisong in stabbing, sir.

x x x x x x x x x

COURT:

How many times did you stab him?

A: Two times but when he was about to fall down I was able to hit him once for the third time, sir.

Q: You said that he drew a knife, where did he draw the knife?

A: At his left side, sir.

Q: What kind of weapon did he draw?

A: I sized it to be a kitchen knife, sir.

Q: Could you tell the Honorable Court the length of that knife to include the handle?

A: 10 to 12 inches, sir.

Q: And how did you grapple for the possession of that knife?

A: I was able to hold the handle of the kitchen knife, sir.

x x x x x x x x x

Q: What prompted you to stab him considering that you already got hold [of] the knife from him?

A: Yes, sir, because he intend[ed] to stab me, so, when I had possession of the knife I stabbed him, sir.[14] (Italics supplied)

We stress that when the accused invokes self-defense, the burden of proof is shifted from the prosecution to the defense. Thus, the latter assumes the responsibility of establishing this plea by clear and convincing evidence.[15] Upon its shoulders rests the duty of proving, to the satisfaction of the trial court, the justifying circumstance of self-defense.[16]

The implications of pleading self-defense insofar as the burden of proof is concerned was explained by the Court in Macalino v. People,[17] from which we quote:

In pleading self-defense, petitioner in effect admitted that he stabbed the victim. It was then incumbent upon him to prove that justifying circumstance to the satisfaction of the court, relying on the strength of his evidence and not on the weakness of the prosecution. The reason is that even if the prosecution evidence were weak, such could not be disbelieved after petitioner admitted the fact of stabbing the victim.[18]

The accused who avers that the killing arose from an impulse of self-defense has the onus probandi of proving the elements thereof.[19] The essential requisites of self-defense are the following: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-defense.[20] Verily, to invoke self-defense successfully, there must have been an unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the attack.[21]

Unlawful Aggressionon the Part of the Victim

In the present case, appellant claims that there was unlawful aggression on the part of the victim when the latter unceremoniously boxed him on the forehead in the heat of their argument. Appellant adds that he had initially thought of hitting back when he noticed that the victim was pulling out a kitchen knife. Hence, to save his life, the former grabbed the weapon and used it to stab the latter.  Appellant insists that under the circumstances, he was legally justified in using the knife to ward off the unlawful aggression. For him to wait for the knife to be raised and to fall on him before acting to defend himself would be asking too much, he argues.

The contentions of appellant are untenable. While the victim may be said to have initiated the confrontation, we do not subscribe to the view that the former was subjected to an unlawful aggression within the legal meaning of the phrase.

The alleged assault did not come as a surprise, as it was preceded by a heated exchange of words between the two parties who had a history of animosity. Moreover, the alleged drawing of a knife by the victim could not have placed the life of appellant in imminent danger. The former might have done it only to threaten or intimidate the latter.

Unlawful aggression presupposes actual, sudden, unexpected or imminent danger -- not merely threatening and intimidating action.[22] Uncertain, premature and speculative was the assertion of appellant

that the victim was about to stab him, when the latter had merely drawn out his knife. There is aggression, only when the one attacked faces real and immediate threat to ones life. The peril sought to be avoided must be imminent and actual, not just speculative.[23]

Even assuming arguendo that there was an altercation before the stabbing incident and that some danger did in fact exist, the imminence of that danger had already ceased the moment appellant disarmed the victim by wresting the knife from the latter. After the former had successfully seized it, there was no longer any unlawful aggression to speak of that would have necessitated the need to kill the latter. Hence, appellant became the unlawful aggressor when he stabbed the victim.[24]

When an unlawful aggression that has begun no longer exists, the one who resorts to self-defense has no right to kill or even to wound the former aggressor.[25] To be sure, when the present victim no longer persisted in his purpose or action to the extent that the object of his attack was no longer in peril, there was no more unlawful aggression that would warrant legal self-defense on the part of appellant.[26] Undoubtedly, the latter went beyond the call of self-preservation when he proceeded to inflict excessive, atrocious and fatal injuries on the latter, even when the allegedly unlawful aggression had already ceased.

Reasonable Necessity of theMeans Employed to Preventor Repel the Attack

Appellant argues that in the heat of the encounter, he was not in a position to calculate or determine the effects of his blows, and that it was nevertheless necessary for him to inflict them in order to save his own life.

As correctly held by the trial court, the nature, the number and the location of the wounds inflicted upon the victim were important indicia disproving self-defense.[27] The claim of appellant that only two of the four stab wounds were fatal is of no moment, inasmuch as the means he employed was glaringly disproportionate to the perceived unlawful aggression. He admitted in his testimony that he had stabbed the victim for the third time, even when the latter was about to fall.

The means employed by a person invoking self-defense must be reasonably commensurate to the nature and the extent of the attack sought to be averted, as held by the Court in People v. Obordo:[28]

Even assuming arguendo that there was unlawful aggression on the part of the victim, accused-appellant likewise failed to prove that the means he employed to repel Homers punch was reasonable. The means employed by the person invoking self-defense contemplates a rational equivalence between the means of attack and the defense. Accused-appellant claimed that the victim punched him and was trying to get something from his waist, so he (accused-appellant) stabbed the victim with his hunting knife. His act of immediately stabbing Homer and inflicting a wound on a vital part of the victims body was unreasonable and unnecessary considering that, as alleged by accused-appellant himself, the victim used his bare fist in throwing a punch at him.[29]

Indeed, the means employed by a person resorting to self-defense must be rationally necessary to prevent or repel an unlawful aggression.[30]

Unlawful aggression is a conditio sine qua non for upholding the justifying circumstance of self-defense.[31] Unless the victim has committed unlawful aggression against the other, there can be no self-defense, complete or incomplete, on the part of the latter. If there is nothing to prevent or repel, the other two requisites of self-defense will have no basis.[32]

Third Issue:Appreciation of Qualifying Circumstances

The essence of treachery is the sudden and unexpected attack by an aggressor without the slightest provocation on the part of the victim, thus depriving the latter of any real chance to put up a defense, and thereby ensuring the commission of the attack without risk to the aggressor. [33] Treachery requires the concurrence of two conditions: (1) the employment of a means of execution that gives the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate and conscious adoption of the means of execution.[34]

There is no treachery when the assault is preceded by a heated exchange of words between the accused and the victim; or when the victim is aware of the hostility of the assailant towards the former. [35]

In the instant case, the verbal and physical squabble prior to the attack proves that there was no treachery, and that the victim was aware of the imminent danger to his life. [36] Moreover, the prosecution failed to establish that appellant had deliberately adopted a treacherous mode of attack for the purpose of depriving the victim of a chance to fight or retreat.[37]

Certainly, the victim knew that his scuffle with appellant could eventually turn into a violent physical clash. The existence of a struggle before the fatal blows were inflicted on the victim clearly shows that he was forewarned of the impending attack, and that he was afforded the opportunity to put up a defense.[38] Indeed, a killing done at the spur of the moment is not treacherous. Moreover, any doubt as to the existence of treachery must be resolved in favor of the accused.[39]

In People v. Cario,[40] we modified the trial courts decision and ruled that the crime committed was only homicide, because the qualifying circumstance of treachery had not been clearly established. Thus, the Court declared:

However, we agree with the OSGs recommendation that appellant be held liable only for homicide, not murder. In this case, the qualifying circumstance of treachery was not conclusively established. For treachery to exist, the following requisites must be met: (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. The facts show that Edmundo was placed on guard concerning a possible assault by Pedro. First, there was a heated argument between them at the place of the wake. Second, Edmundo was not unaware that he and Rolando were followed outside by appellant, who did not adopt any means to conceal himself or hide his intention of confronting Edmundo. Third, the abrasions and contusions on Edmundos face show that Edmundo was able to put up a fight before he was fatally stabbed. These circumstances negate the existence of treachery in the commission of the offense.[41]

As in People v. Cario, the Office of the Solicitor General recommended in this case that appellant be convicted of homicide only, inasmuch as the qualifying circumstance of treachery had not been sufficiently established.[42]

The trial court correctly ruled that the qualifying circumstance of evident premeditation was not present in the killing. Essentially, there is evident premeditation when the execution of a criminal act is preceded by cool thought and reflection upon the resolution to carry out a criminal intent within a space of time sufficient to arrive at a calm judgment. [43] Obviously, the acts of appellant in the present case can hardly be described as a product of reflective thought or deliberate planning towards a decisive resolve to kill the victim. On the contrary, the confrontation that escalated to a violent brawl was quite spontaneous, casual and incidental. Verily, the brutal killing was not the result of a previous plot or sinister design to end the life of the victim.

The elements of evident premeditation are as follows: (a) the time when the accused decided to commit the crime; (b) an overt act manifestly indicating that the accused clung to the determination to commit the crime; and (c) the lapse of a period of time, between the determination and the subsequent execution of the crime, sufficient to allow the accused an opportunity to reflect upon the consequences of the act.[44] As found by the trial court, the prosecution failed to present sufficient evidence to establish any of the foregoing requisites. To be sure, when there is no showing how and when the plan to kill was decided or how much time had elapsed before the crime was carried out, there is no evident premeditation.[45]

In a criminal prosecution -- especially in cases involving the extreme penalty of death -- nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which the accused is charged must be established.[46]

Fourth Issue:Proper Penalty and Award of Damages

Under Article 249 of the Revised Penal Code, the penalty for homicide is reclusion temporal. There being neither mitigating nor aggravating circumstance, the appropriate penalty should be reclusion temporal in its medium period. Appellant is likewise entitled to the benefits of the Indeterminate Sentence Law.

The trial court awarded moral damages in the amount of P50,000, but failed to award P50,000 as civil indemnity for the death of the victim. Moral damages cannot be granted in the absence of proof therefor.[47] Unlike in rape cases, this type of award is not automatically given in murder or homicide.  The prosecution was, however, able to prove actual damages in the sum of P28,650. The award of exemplary damages should be omitted considering that no aggravating circumstance was duly proven.[48]

WHEREFORE, the assailed Decision is MODIFIED. Appellant is held guilty of homicide and sentenced to eight (8) years and one (1) day of prison mayor medium, as minimum; to fourteen (14) years, eight (8) months and (1) day of reclusion temporal medium, as maximum. He shall also pay the heirs of the victim the amounts of P50,000 as civil indemnity and P28,650 as actual damages, consistent with prevailing jurisprudence.[49] The grant of moral and exemplary damages is DELETED. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Callejo, Sr., JJ., concur.

Puno, and Azcuna, JJ., on official business.

EN BANC

[G.R. No. 123161. June 18, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LIBERATO DUKDUK SOLAMILLO and JULIAN SOLAMILLO, accused-appellants.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For automatic review is the Decision[1] dated September 20, 1995 of the Regional Trial Court, Branch 1, Isabela, Basilan, in Criminal Case No. 2099 declaring Liberato Dukduk Solamillo and Julian Solamillo guilty beyond reasonable doubt of the complex crime of robbery with homicide and sentencing them to suffer the penalty of death. They were also adjudged to pay Aleli P. Guiroy, the daughter of the victim, Alexander Guiroy, P500,000.00 as moral damages, P200,000.00 as exemplary damages, P20,000.00 as attorneys fee and P500.00 as costs.

On March 23, 1994, an Information[2] was filed with the said trial court charging brothers Liberato Dukduk and Julian Solamillo, appellants, together with Edgardo Ebarle and Eddie Angel Trumata, with the crime of robbery with homicide, committed as follows:

That on or about the 2nd day of March, 1994, and within the jurisdiction of this Honorable Court, viz., at Aguada Barangay, Municipality of Isabela, Province of Basilan, Philippines, the above-named accused, armed with a bolo, bakawan wood and wooden stool, conspiring and confederating together, aiding and assisting one with the other, with treachery and evident premeditation and with intent to kill and by means of force and violence upon person, did then and there willfully, unlawfully, and feloniously assault, club and hack at the person of Alexander Guiroy, proprietor of Liberty Bakery and Grocery, thereby inflicting hack wounds and bodily injuries on the different parts of the body of the latter, which caused his instantaneous death. That taking advantage that the victim, Alexander Guiroy, was already dead, and with intent to gain, the said accused forcibly took, stole and carted away the following described property belonging to the said Alexander Guiroy; viz., cash money equivalent to four-day income amounting to more or less P20,000.00, wristwatch Seiko Diver worth P3,000.00 and a wallet colored black, to the damages and prejudice of the legal heirs of the deceased Alexander Guiroy in the total amount of P23,000.00, Philippine Currency.

Contrary to law.

Upon arraignment with the assistance of counsel, appellant Liberato Dukduk Solamillo and Edgardo Ebarle pleaded not guilty, while appellant Julian Solamillo entered a plea of guilty. [3] Eddie Trumata was not arraigned as he has been at large.

The prosecution filed a motion praying that Edgardo Ebarle be discharged as an accused to be utilized as a state witness. However, he died before he could testify.[4]

During the trial, the prosecution presented the following witnesses: Aleli P. Guiroy, Dr. Teresita L. Dans, Emmanuel Guiroy, SPO4 Pedro Oreta, and PO3 Celso Tan Sanchez. Their testimonies are summarized below.

The victim owned the Liberty Bakery and Grocery located at Rizal Avenue, Isabela, Basilan.  His employees were appellant Julian Solamillo, Edgardo Ebarle and Eddie Trumata, who lived together in the bakery.[5]

On March 2, 1994, Edgardo Ebarle, Eddie Trumata and appellants were at the bakery. Aleli Guiroy, the victims daughter, saw them when she arrived at around 5:00 p.m. until she left at 6:10 p.m.[6]

The next morning, Aleli returned to the bakery but was unable to open the doors. She sought help from her uncle, Lorenzo Guiroy who, in turn, asked Warlito Gonoz to accompany her back to the bakery. When Warlito peeped through a window, he saw the victim lying on the floor.  Immediately, they reported the matter to the police.[7]

PO3 Celso Tan Sanchez arrived and found the victims dead body, a wooden stool, a bolo  and a piece of bakawan (firewood), all with blood. The table drawers were open and the bakery was in disarray.[8] Aleli informed PO3 Sanchez that her fathers P20,000.00, wallet and Seiko watch were missing.[9]

Dr. Teresita Dans examined the victims body. She confirmed her Post-Mortem Report[10] that the victim suffered 21 incised wounds, multiple contusion-hematoma and multiple abrasions which caused his death. According to her, the incised wounds were probably caused by a knife or bolo, while the multiple hematoma, contusions, and abrasions were caused by a blunt instrument, like a piece of wood or pipe.[11]

Aleli testified that she spent more than P20,000.00 for the funeral of her father.[12]

On March 4, 1994, or two days after the incident, the police of Lamitan, the neighboring town of Basilan, informed Emmanuel Guiroy, the victims brother, that they have apprehended Edgardo Ebarle. Forthwith, Emmanuel and SPO4 Pedro Oreta went to Lamitan. There the police turned over Edgardo to SPO4 Oreta. While on their way back to Isabela, Edgardo told Emmanuel that Eddie Trumata and appellants assaulted the victim, pulled him to the table and hit his head.[13]

On March 6, 1994, or four days after the incident, SPO4 Oreta arrested appellant Liberato Solamillo in Zamboanga City. While he was being investigated at the police station, SPO4 Oreta noticed that he was wearing a watch. Emmanuel confirmed that it belonged to the victim. SPO4 Oreta then asked appellant to open his traveling bag and found therein the victims missing wallet and money amounting to P48.00.[14]

Upon the other hand, appellants, and their brother Melanio Solamillo have a different story to tell.

On March 2, 1994, the day of the incident, at around 4:00 p.m., Liberato visited his brother Julian at the victims bakery. After about one hour, Liberato went to Melanios house.[15] Meanwhile, at past 6:30 p.m., Julian started preparing the flour needed for baking, while Edgardo Ebarle and Eddie Trumata cooked their supper. But before they could eat, the victim scolded Edgardo and Eddie for creating a mess in the bakery. He continued scolding the two as he sat down to feed his cat. Suddenly, Julian saw Eddie hitting the victims head with a piece of bakawan causing the latter to fall. He managed to get up and exchanged blows with Eddie. At this point, Edgardo got a bolo and attacked the victim. Julian could not intervene because Eddie threatened to kill him if he would do so.[16]

After beating the victim, Eddie and Edgardo ransacked the drawers and took the money.  They then asked Julian to leave. But before he could do so, he managed to take P995.00 from the money scattered on the floor. Eddie and Edgardo headed off to Lamitan, Basilan, [17] while Julian passed by Zamboanga City on his way to Dumaguete City where he intended to surrender. While in Zamboanga City, he met his brother Liberato, who was then looking for him. Thereafter, Julian proceeded to Dumaguete City. Liberato was supposed to head back to Isabela but was forced to spend the night in Zamboanga City because he missed the boat.[18]

The next day, March 6, Melanio accompanied Emmanuel Guiroy and SPO4 Oreta to Zamboanga to look for both appellants. On the same day, Liberato was arrested.[19] While he was being interrogated at the Tetuan, Zamboanga Police Sub-Station, SPO4 Oreta showed him a wallet, a watch and some money, stating that these are evidence against him. Liberato immediately denied having knowledge about the said items. Then, he was turned over to the Isabela police.[20]

Meanwhile, Julian surrendered to the police in Bacong, Dumaguete where he was detained until he was turned over to the Isabela police.[21] He pleaded guilty during the arraignment because a policeman named Bayabos threatened to kill him.[22]

On September 20, 1995, the trial court rendered a Decision, [23] the dispositive portion of which, reads:

WHEREFORE, premises considered, this Court finds the accused, Liberato Dukduk Solamillo and Julian Solamillo GUILTY as principals beyond the shadow of any doubt of committing the crime of Robbery with Homicide as charged in the Information, which crime is defined and penalized under Art. 248 (should be Art. 294) of the Revised Penal Code, as amended by Sec. 6 (should be Sec. 9) of Republic Act No. 7659, the commission of which was attended by the following circumstances, to wit:

1. Committed by a band, there were four (4) persons who committed the offense. (par. 6, Art. 14, Revised Penal Code);

2. Committed with evident premeditation. (par. 13, Art. 14, supra);

3. Committed by treachery. (par. 16, Art. 14, supra); and

4. Committed with deliberate cruelty, considering that the victim suffered twenty-one (21) hack and stab-wounds and contusion and abrasions on different parts of his body.

Without any mitigating circumstances to offset any of them, (this court) hereby sentences both and each of them to suffer the extreme penalty of DEATH and to pay the following damages to Miss Aleli Guiroy who in her youthful years has lost her father, upon whom her future security depends, to wit:

1. P500,000.00 as moral damages;

2. P200,000.00 as exemplary damages;

3. P20,000.00 as attorneys fee; and

4. P500.00 as judicial costs.

x x x

IT IS SO ORDERED.

Appellants Liberato and Julian Solamillo, in their brief, contend that the trial court erred in finding them guilty of the crime of robbery with homicide and in imposing upon them the death penalty.[24]

We disagree.

The trial court correctly convicted the appellants on the basis of the chain of circumstantial evidence established by the prosecution, thus:

1. Edgardo Ebarle, Eddie Trumata, and appellant Julian Solamillo worked and lived in the bakery owned by the victim. The other appellant, Liberato Solamillo, was also at the bakery in the afternoon of March 2, 1994. The following day, the victim was found dead;

2. After the commission of the crime, all four accused fled: Edgardo and Eddie to Lamitan, Basilan; Julian to Dumaguete City; and Liberato to Zamboanga City;

3. When Liberato was arrested in Zamboanga City, the victims wristwatch and wallet were found in his possession; and

4. Julian admitted that immediately after the victim was killed, he picked up P995.00 scattered on the bakery floor after Eddie and Edgardo ransacked the drawers containing money.[25]

Circumstantial evidence is sufficient basis for conviction as long as: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. [26] Thus, facts and circumstances consistent with guilt and inconsistent with innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court. [27] These facts and circumstances are present here and constitute sufficient evidence which warrants the conviction of both appellants.

Liberato denied having the victims personal effects in his possession, insisting that he saw these items for the first time when he was being interrogated.[28]

Section 3, Rule 131 of the Revised Rules on Evidence provides:

Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

x x x

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; x x x

We find that Liberato failed to overcome this presumption. He could not provide a satisfactory explanation why the victims belongings were in his possession. Moreover, he could not show any ill motive on the part of SPO4 Oreta that would impel the latter to fabricate evidence against him. SPO4 Oreta enjoys the presumption that he has regularly performed his official duty. [29] Liberato likewise failed to overthrow this presumption.

We find untenable Liberatos explanation that he went to Zamboanga City after the commission of the crime to look for his brother Julian. True, flight per se cannot prove the guilt of an accused, but if the same is considered in the light of other circumstances, it may be deemed as a strong indication of guilt.[30] His flight to Zamboanga City when linked with his presence at the bakery, the crime scene, and his possession of the victims effects upon his arrest, strongly indicate his participation in the commission of the crime. Thus, the trial court correctly held that the circumstances taken together point to the fair and logical conclusion that appellant Liberato Solamillo is guilty of the crime of robbery with homicide.

For his part, appellant Julian Solamillo maintains that the trial court erred in disregarding his tacit withdrawal of his guilty plea. He claims that policeman Bayabos threatened to kill him if he will plead not guilty.

Section 5, Rule 116 of the Revised Rules of Criminal Procedure, as amended, provides that (a)t any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. The tenor of the quoted provision is clear. There should be a categorical declaration from the accused that he is withdrawing his plea of guilty and substituting it with a plea of not guilty.

There is nothing in the records to show that Julian filed a motion to withdraw his plea of guilty or that he, in any manner, manifested unequivocally that he was withdrawing his plea.  He contends though that he made such manifestation when he testified on April 26, 1995, thus:

Q Mr. Witness, from what you testified before this Court, you want to impress this Court that your only participation is the robbing or taking of the money that was scattered on the store of Mr. Guiroy on March 2, 1994. Then why did you plead guilty to the offense during the arraignment?

A I pleaded guilty because while I was in the police station, I was instructed to plead guilty and if I will not plead guilty I will be killed. I have a lawyer, but he will not sleep with me in the police station. That is the reason why I pleaded guilty here.

Q You mentioned of threat, can you mention a police who threatened you?

A Yes, sir.

Q Who?

A Bayabos.[31]

The above testimony is not a positive and categorical declaration that appellant Julian was withdrawing his plea of guilty. Without any unequivocal act on his part, the trial court could not assume that he was withdrawing his original plea. Furthermore, by appellants own admission, he went to Dumaguete City with the intention of surrendering to the authorities. This belies his contention that he was threatened into entering a guilty plea for if he was truly innocent, why is it that his first instinct was to surrender?

Even assuming that Julian made an improvident plea of guilty and subsequently withdrew it, such fact does not operate to automatically exculpate him from criminal liability. Convictions based on an improvident plea of guilty are set aside only if such plea is the sole basis of the judgment.  If the trial court relied on sufficient and credible evidence to convict the accused, the conviction must be sustained because then it is predicated not merely on the guilty plea of the accused but on evidence proving his commission of the offense charged.[32]

In the instant case, the trial court, in determining the guilt of appellant Julian Solamillo, relied on the extensive evidence of the contending parties, not merely on his plea of guilty.  Indeed his conviction can be sustained based on independent evidence other than his plea. Thus, whether or not his plea of guilty was improvidently made is inconsequential for the simple reason that his conviction was based on other evidence proving his culpability for the offense charged.[33]

In the offense of robbery with homicide, a crime primarily classified as one against property and not against persons, the prosecution has to firmly establish the following elements: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed.[34]

In this case, the prosecution amply established the said elements. Appellant Julian Solamillos contention that he cannot be held liable for homicide because he only took money but did not participate in the victims killing is untenable. What is essential in robbery with homicide is that there is a direct relation and intimate connection between robbery and the killing, whether the latter be prior or subsequent to the former or whether both crimes be committed at the same time.[35]

In his own testimony, appellant Julian Solamillo placed himself squarely at the crime scene when the victim was attacked:

Q: So what happened at the time this Guiroy was scolding this Eddie Trumata and Edgardo Ebarle?

A After that, Mr. Guiroy fed his cat and he was murmuring and talking so many words while feeding his cat.

Q What was his position?

A He was sitting.

Q While he was sitting and feeding the cat and still murmuring to the two, what happened?

A Eddie hit him.

Q Hit him with his fist or what?

A With a piece of bakawan.

x x x

Q After he was hit on the head, what happened to Mr. Guiroy?

A He fell.

Q What happened next when he was already there down?

A Guiroy stood up and there was an exchange of blows with Trumata.

Q While they were exchanging blows with Trumata, what did this Edgardo Ebarle do?

A Edgardo Ebarle got a bolo and hacked Mr. Guiroy.

Q Can you still recall how many times he hacked Mr. Guiroy?

A I dont remember anymore because I dont know what to do at that time.

Q After mauling or the hitting of the bakawan and bolo of Mr. Guiroy, what happened to Mr. Guiroy?

A He died.[36]

While Edgardo Ebarle and Eddie Trumata were attacking the victim, appellant Julian Solamillo did nothing nor sought help to stop them. Instead, he admitted taking some of the money:

Q You said they took money, correct?

A Yes, sir.

Q Where did they take the money? From where?

A From the drawer.

Q What about you?

A I was able to get or pick-up money scattered on the floor.

Q Why did you pick-up the money?

A Because I dont have money for my fare and because I was told by them that, You will escape because you will be included in this incident.

Q How much money did you get?

A P995.00.

Q You just picked the money according to you?

A I just picked it up on the floor because the money were scattered on the floor.[37]

The rule is well-established that whenever homicide has been committed as a consequence of or on the occasion of the robbery, all those who took part as principals in the robbery shall also be held guilty as principals of the special complex crime of robbery with homicide whether or not they actually participated in the killing, unless it clearly appears that they endeavored to prevent the homicide.[38]

Appellant Julian Solamillo justifies his taking the money because he needed it for his fare.  Such an excuse is ridiculous and self-serving. By his own account, Edgardo Ebarle and Eddie Trumata were the ones who killed the victim. If this were so, why did he leave the bakery immediately after the incident? And why did he proceed to Dumaguete City to surrender? His conduct is certainly inconsistent with rational human behavior. For, if he were really guilt-free, he should have reported the incident to the authorities instead of taking the money and fleeing to Dumaguete City.

Julian insists that he did not participate in killing the victim and that he could not have prevented it since the other accused threatened to kill him if he interfered. [39] But he failed to show that the threat was of such character as to leave him no opportunity for escape or to prevent the homicide.  Accordingly and considering his self-admitted participation in the robbery, he is liable for the complex crime of robbery with homicide.

However, the trial court erred in appreciating against appellants the aggravating circumstances that the crime was committed: (a) by a band; (b) with evident premeditation; (c) with deliberate cruelty; and (d) with treachery.

The trial court declared that the crime was committed by a band because there were four (4) persons who committed the offense.[40] Paragraph 6, Article 14 of the Revised Penal Code, as amended, provides:

Art. 14. Aggravating circumstances. The following are aggravating circumstances:

x x x

6. That the crime be committed in the nighttime or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense.

Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band.

This aggravating circumstance requires that there should be at least four persons who commit the crime, all of whom should be armed. Even if there are four offenders, but only three or less are armed, it is not a band. Here, there is no evidence that all four accused were armed at the time of the perpetration of the crime. Hence, this circumstance cannot be appreciated against the appellants.

For evident premeditation to be considered as an aggravating circumstance, it must be shown that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal plan.[41] The requisites of evident premeditation are:

(1) the time the accused decided to commit the crime;

(2) an overt act manifestly indicating that he clung to his determination; and

(3) sufficient lapse of time between the decision and the execution to allow the accused to reflect upon the consequence of his act.[42]

When it is not shown how and when the plan to kill was hatched or what time had elapsed before it was carried out, evident premeditation cannot be considered. [43] Here, we cannot discern from the records the presence of the foregoing essential element.

The trial court held that the crime was committed with deliberate cruelty considering that the victim suffered twenty-one (21) hack and stab-wounds, contusions and abrasions on the different parts of his body. The number of wounds is not the criterion for the appreciation of cruelty as an aggravating circumstance.[44] The mere fact that wounds in excess of what is necessary to cause death were inflicted upon the body of the victim does not necessarily imply that such wounds were inflicted with cruelty. [45] It is necessary to show that the accused intentionally and deliberately increased the victim's suffering.  In this case, there is no evidence showing appellants intent to commit such cruelty.

Furthermore, in People vs. Lobitania,[46] we held that treachery is applicable only to crimes against persons. Inasmuch as robbery with homicide is a crime against property and not against persons, treachery cannot be validly considered x x x.

Under Article 294 of the Revised Penal Code, as amended by Section 9 of R.A. No. 7659, the prescribed penalty for robbery with homicide is composed of two indivisible penalties, reclusion perpetua to death. In the absence of any mitigating or aggravating circumstance, the proper penalty to be imposed upon appellants Liberato Dukduk Solamillo and Julian Solamillo is reclusion perpetua.[47]

Regarding damages, the trial court failed to award civil indemnity to the victims heirs.  When death occurs as a result of a crime, the heirs of the deceased are entitled to the amount of P50,000.00 as civil indemnity for the death of the victim without need of any evidence or proof of damages.[48]

As to Aleli Guiroys claim that she spent P20,000.00 for her fathers funeral expenses and that there was at least P20,000.00 in the bakerys secret compartment when the robbery occurred, we find the same unsubstantiated. InPeople vs. Abrazaldo,[49] we ruled that to be entitled to the award of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable to the injured party. While the prosecution failed to present any receipt to prove the claim for funeral expenses, however, we are aware that funeral expenses were incurred by the family of the deceased.

Temperate damages, in lieu of actual damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot be proved with certainty. [50] In Abrazaldo, we computed temperate damages at P25,000.00, or one-half of the current indemnity ex delicto, which is fixed at P50,000.00. We award the same in this case.

As for the award of P200,000.00 as exemplary damages, we find the same to be unjustified. Article 2230 of the Civil Code provides that in criminal offenses, exemplary damages as a part of civil liability may be imposed only when the crime was committed with one or more aggravating circumstances. Considering the absence of any aggravating circumstance in the commission of the crime charged, no exemplary damages may be awarded. And since there are no exemplary damages, the award of P20,000.00 as attorneys fee is also deleted.

As to the trial courts award of moral damages in the amount of P500,000.00, we find the same to be excessive. In similar cases,[51] we awarded the victims heirs the amount of P50,000.00 as moral damages. For verily, moral damages are not intended to enrich the victims heirs; rather they are awarded to allow them to obtain means for diversion that could serve to alleviate their moral and psychological sufferings.[52]

WHEREFORE, the Decision of the Regional Trial Court, Branch 1, Isabela, Basilan, in Criminal Case No. 2099, is AFFIRMED but with modification.

Appellants Liberato Dukduk Solamillo and Julian Solamillo are found GUILTY of the crime of ROBBERY WITH HOMICIDE, and are sentenced to suffer the penalty of RECLUSION PERPETUA. They are ordered to pay the heirs of the late Alexander Guiroy (a) P50,000.00, as civil indemnity; (b) P50,000.00, as moral damages; and (c) P25,000.00, as temperate damages.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Austria-Martinez, J., on official leave.

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.

D E C I S I O N

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 ACCUSED-APPELLANT 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.

FIRST DIVISION

[G.R. No. 134572. April 18, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIONISIO UMAYAM y CASTRO, accused-appellant.

D E C I S I O N

YNARES-SANTIAGO, J.:

This is an appeal from the decision[1] dated February 3, 1998 of the Regional Trial Court of Las Pias City, Branch 255, in Criminal Case No. 92-1638, finding accused-appellant Dionisio Umayam y Castro, alias Jawo, guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua.

On March 10, 1992, accused-appellant was charged with the crime of Murder in an Information which alleged:

That on or about the 7th day of February, 1992, in the Municipality of Las Pias, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill, with evident premeditation, and by means of treachery, did, then and there willfully, unlawfully and feloniously attack, assault, and stab with a bladed weapon one Emma Mendoza, thereby inflicting upon the latter serious and mortal stab wounds which directly caused her death.

CONTRARY TO LAW.[2]

At his arraignment on October 28, 1992, accused-appellant pleaded not guilty[3] to the charge; whereupon, trial ensued.

The evidence, as culled from the testimony of prosecution witness Rodolfo Velasquez, is as follows:

Dionisio Umayam (accused-appellant) and Emma Mendoza (victim), were living as husband and wife in a shanty they erected inside the compound owned by Rodolfo Velasquez located at San Jose St., Ilaya, Las Pias City (p. 9, tsn, Feb. 10, 1993). This shanty is about ten (10) meters away from Velasquezs house located also within the compound (p. 4, tsn, supra) and where Velasquez maintains a poultry which he tends to everyday. Oftentimes, Velasquez entertains his friends/visitors within the compound and if too

drunk, passes the night at his house therein (p. 11, supra). Velasquezs family residence however, is about a kilometer and a half away.

During Umayam and Mendozas stay in the compound, Velasquez would notice them frequently quarreling (pp. 5 & 8, supra). On occasions, Mendoza would run to Velasquez for help for the beatings inflicted on her by Umayam (p. 6, supra). Velasquez would advise Mendoza to refer the matter to the barangay (p. 13, supra). Velasquez described Umayam and Mendozas relationship as magulo. (p. 5, supra).

At about 7:00 p.m. of February 7, 1992, while Velasquez was inside the compound entertaining some friends, Umayam, Mendoza and a certain Zenaida Anzo arrived amid went inside the shanty (p. 4, supra). Once inside, the radio was switched on a very loud volume which lasted until about 9:00 p.m. or 10:00 p.m., when Velasquez left the compound (pp. 10-11, supra). About noon of the following day, Velasquez went to his poultry to feed his chicken. Thereat, Velasquez noticed nobody at the shanty of the couple and its door was padlocked. Returning thereto on Sunday, Velasquez noticed a foul odor emanating from the couples shanty which he thought to be that of kaning baboy. (p. 13, supra). On Monday, Velasquez noticed that the foul odor from the couples shanty became intolerable forcing him to report the incident to the barangay captain who immediately requested for police assistance (p. 7, supra). The responding policemen decided to break the walls of the shanty and once inside, saw the decomposing body of Emma Mendoza.[4]

Dr. Valentin Bernales, a medico-legal officer of the National Bureau of Investigation, conducted a postmortem examination on the decomposing cadaver of the victim on February 10, 1992. His Autopsy Report yielded the following findings, to wit:

Body, in far advanced state of decomposition; with line maggots.

Contusion, reddish; arm, left, lower third, antero-lateral aspect, 3.0 x 2.0 cm. and antero medial aspect, 6.0 x 3.0 cm. knee, left, 4.0 x 3.5 cm.

Stab wounds, ovaloid in shape, modified by process of decomposition:

1) 1.0 cm., neck, left, antero-lateral aspect, 10.0 cm. From the anterior median line directed medially, upward and slightly anteriorly; involving among others the common carotid artery and jugular vein, with an approximate depth of 6.0 cm.

2) 1.0 cm., chest right, upper-outer quadrant, 17.0 cm. from the anterior median line, directed backward, downward and medially involving among others the lung, right, upper lobe, with approximate depth of 9.0 cm.

Hemothorax, right, 1000 c.c.Visceral organs, in far advanced state of autolysis.

Stomach, empty.[5]

Dr. Bernales concluded that the victims stab wounds on her neck and chest were fatal and caused by a sharp pointed bladed weapon, and that the death occurred within seventy-two (72) hours prior to the autopsy. Furthermore, he opined that a hard object, such as fist, may have caused the contusions on the arms, thigh and knee of the deceased.[6]

Accused-appellant, on the other hand, testified that from February 4 to 11, 1992, he was at the house of his sister, Nida Vargas, in Sto. Nio, Ilaya, Paraaque. On February 4, 1992, his wife Emma Mendoza left their rented house at Balete, Las Pias to visit her children at La Loma, and told him to wait for her to return and fetch him. Accused-appellant thus waited for Emma at his sisters house, but she never arrived. On February 11, 1992, two policemen came and informed accused-appellant that his wife had been killed. The policemen then brought him to the municipal jail of Las Pias.[7]

Nida Vargas corroborated accused-appellants testimony. She stated that accused-appellant stayed at her residence from February 4, 1992 until he was arrested on February 11, 1992. She testified that her brother never left her house during his stay there because he was too busy doing carpentry work at her residence. Neither did accused-appellant go to his rented house at Balete, Las Pias because according to him, Emma Mendoza would fetch him as soon as she arrived from Isabela.[8]

Lastly, Beatriz Estupia, a neighbor of Nida Vargas, also testified that sometime in the month of February 1992, she noticed the presence of accused-appellant doing carpentry works in the house of his sister. She recalled that accused-appellant was arrested sometime on February 11, 1992. She cannot recall any instance when accused-appellant left the house of Nida Vargas. [9] However, her testimony on cross-examination shows inconsistencies which led the trial court to conclude that she was lying, to wit:

Q: And you came to know that this accused Dionisio Umayam was charged before this court for murder in February 1992 yet, is it not?

A: Yes, Your Honor. That was the news.

Q: How come that it is only now, 1996, already June 1996 that you appeared before this court and volunteered to testify?

ATTY. MACINAS

This is the first time that we are presenting our evidence.

COURT Let the witness answer.

A: I did this because after so many years that he was incarcerated and I know he was not guilty so I appear (sic).

xxx xxx xxx

Q: You also stated earlier that you went to Bicol, when did you go to Bicol?

A: May 5, 1994.

Q: When did you go back to Paraaque?

A: At the end of 1994.

Q: Did you not state earlier that the reason why you did not come to know, why the accused Dionisio Umayam was arrested (sic) because according to you immediately you went to Bicol in February 1992?

A: What I stated earlier was that I do not know the reason why he was arrested so I was surprised when he was arrested.

Q: You were asked whether later on you came to know the reason and according to you, you did not know because you went to Bicol, did you state that?

A: Yes, Your Honor.

Q: So that it was not in 1994 that you went to Bicol but in 1992, is it not?

A: May 1994, Your Honor.

Q: So that when you stated earlier that the reason why you did not come to know why Dionisio Umayam was arrested because you went to Bicol is not true?

ATTY. MACINAS

Misleading. That is not the reason why.

COURT I know this witness is telling a lie.[10]

The testimony of Estupia was rejected by the trial court because while she claims to be the neighbor of accused-appellants sister and to have allegedly witnessed accused-appellants apprehension by the police in his sisters house in 1992, she only came to know the reason for accused-appellants arrest in 1995.[11]

After trial, the court a quo rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, and in the light of the foregoing, the Court finds the accused Dionisio Umayam y Castro GUILTY beyond reasonable doubt for the crime of Murder as charged in the information after applying the provisions of the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of Reclusion Perpetua; to suffer the accessory penalties provided for by law; to indemnify the heirs of the deceased Emma Mendoza the sum of P50,000.00; and to pay the costs.

SO ORDERED.[12]

Hence, this appeal anchored on the following assignment of errors:

I.

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME CHARGED DESPITE THE INSUFFICIENCY OF EVIDENCE TO WARRANT CONVICTING BEYOND REASONABLE DOUBT.

II.

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION.[13]

In the first assigned error, accused-appellant argues that his guilt has not been proven beyond reasonable doubt because there was no direct evidence linking him to the commission of the crime; rather, his conviction was based merely on the testimony of the prosecutions lone witness who did not actually see the killing.

Accused-appellants argument deserves no merit.

Well-settled is the rule that direct evidence of the commission of the crime is not the only matrix wherefrom a trial court may draw its conclusion and findings of guilt. Direct evidence of the actual killing is not indispensable for convicting an accused when circumstantial evidence can sufficiently establish his guilt.[14] If actual eyewitnesses are the only ones allowed to possibly identify a suspect or accused to the exclusion of others, then nobody can ever be convicted unless there is an eyewitness because of the rule that there can be no conviction until and unless an accused is positively identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of the crime is not the only matrix. Indeed, conviction can be had on the basis of circumstantial evidence if the established

circumstances constitute an unbroken chain leading to one fair and reasonable conclusion proving that the accused is the author of the crime to the exclusion of all others.[15]

However, to support a conviction based on circumstantial evidence, the following must be present: a) there is more than one circumstance; b) the facts from where the inferences are derived are proven; c) the combination of all circumstances is such as to produce a conviction beyond reasonable doubt.[16]

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.[17]

In the case at bar, the trial court considered the following circumstances in arriving at its conclusion that accused-appellant was the one who killed the victim to the exclusion of all others:

1. The tumultuous or stormy relationship between the accused-appellant and his deceased live-in partner when the latter was still alive.[18]

2. The presence of just the two of them, accused- appellant and his wife, in their house on that fateful evening of February 7, 1992 after their visitor Aida left the rented house of the live-in partners.[19] Accused-appellant was the last known companion of the deceased before her death.

3. The presence of the accused-appellant in the evening of February 7, 1992 in their house which was established by the testimony of Rodolfo Velasquez and his sudden disappearance from the same place the next day.

4. In addition, accused-appellants admission that he owns a cassette radio would logically lead to the conclusion that he played the radio very loud to stifle or deafen any sound coming from inside the shanty.

While, admittedly, there is no direct evidence that accused-appellant killed Emma Mendoza, the circumstances above-stated constitute an unbroken chain which are consistent with each other and with the hypothesis that accused-appellant is guilty, to the exclusion of other hypotheses that he is not. As we have ruled, when circumstantial evidence constitutes an unbroken chain of natural and rational circumstances corroborating each other, it cannot be overcome by inconcrete and doubtful evidence submitted by the opposing party.[20]

Notably, although nobody may have seen accused-appellant in the act of inflicting the mortal stab wounds on the victim, the unrebutted testimony of the witness for the prosecution points to no other culprit but accused-appellant. Also, while the testimony of the witness does not provide direct evidence that accused-appellant stabbed the victim, it nevertheless supplies proof of overwhelming circumstantial evidence pointing to the guilt of the accused-appellant. This was even bolstered by the fact that immediately after that fateful night when the victim was killed, accused-appellant immediately left their shanty and did not return until he was arrested in the house of his sister. Moreover, their shanty was locked in order to hide the body of the victim which was only discovered three days later in a decomposing state. Indeed, the flight of an accused from the scene of the crime removes any remaining shred of doubt on his guilt,[21] especially since his explanations on why he was not in their shanty after the crime was committed has been rejected by the trial court for being mere concoctions and fabrications.

Moreover, no ill motive can be attributed to the witness that will cast doubt on his testimony. The witness has known the live-in partners for quite sometime since they have stayed in his compound where they built their shanty. The rule is that, where there is no evidence to indicate that the prosecution witness was actuated by improper motive, the presumption is that he was not so actuated and that he would not prevaricate and cause damnation to one who brought him no harm or injury.[22]

We find merit in the second assigned error. The qualifying circumstances of treachery and evident premeditation were not established with concrete evidence.

First, the circumstantial evidence on record does not clearly show that there was any conscious and deliberate effort on the part of the accused to adopt any particular means, method or form of attack to ensure the commission of the crime without affording the victim any means to defend herself. The conclusion that there was treachery can hardly be gleaned because the victim and the accused-appellant were inside their shanty and no one witnessed how the killing took place. Notably, the medical findings of the victims cadaver show contusions on her arms and legs, indicating that there may have been a quarrel prior to the stabbing. This reasonably negates treachery.

Indeed, absent any particular as to the manner in which the aggression commenced or how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated. [23] It has been held that the qualifying circumstance of treachery must be based on some positive conclusive proof and not only upon hypothetical facts or on mere supposition or presumptions.[24] Where no particulars are known regarding the manner in which the aggression was made or how the act which resulted in the death of the victim began and developed, it cannot be established from mere supposition that an accused perpetrated the killing with treachery.[25] Treachery cannot be appreciated where the lone eyewitness to the killing was not able to see how the assault started.[26] It can never be presumed, it must be satisfactorily proved beyond reasonable doubt.[27] Where there is no eyewitness to the killing or evidence on the manner of its execution, like in the case at bar, treachery cannot be considered an aggravating circumstance. [28]

Likewise, the circumstance of evident premeditation cannot be appreciated. In the absence of clear and positive evidence proving the aggravating circumstance of evident premeditation, mere presumptions and inferences thereon, no matter how logical and probable, would not be enough. [29] In the case at bar, the records do not show that, indeed, accused-appellant planned the killing of the victim. Well-settled is the rule that evident premeditation, like other circumstances that qualify the killing to murder, must be established by clear and positive evidence[30] as conclusively and indubitably as the killing itself.[31]

It is not enough that evident premeditation is suspected or surmised. Criminal intent must be evidenced by notorious outward acts evidencing a determination to commit the crime. In order to be considered an aggravation of the offense, the circumstance must not merely be premeditation but must be evident premeditation.[32] To consider the qualifying circumstance of evident premeditation, it is necessary that the following requisites be present: (a) the time when the accused determined to commit the crime, (b) an act manifestly indicating that the accused has clung to his determination, and (c) a lapse of time, between the determination to commit the crime and the execution thereof, sufficient to allow him to reflect upon the consequences of his act.[33]

It should be remembered that aggravating circumstances must be established with the same quantum of proof as fully as the crime itself and any doubt as to their existence must be resolved in favor of the accused.[34] Hence, for failure of the prosecution to prove the attendance of the qualifying circumstances of treachery and evident premeditation, accused-appellant can only be guilty of homicide.

The penalty for homicide under Article 249 of the Revised Penal Code in reclusion temporal. The same shall be imposed in its medium period, there being no mitigating or aggravating circumstance. Accused-appellant is thus entitled to the benefits of the indeterminate Sentence Law, and is therefore sentenced to suffer the indeterminate penalty of eight (8) 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.

The award of civil damages by the trial court needs modification. Accused-appellant must pay the heirs of the deceased, Emma Mendoza, moral damages in the amount of P50,000.00, in addition to the civil indemnity in the amount of P50,000.00 awarded by the trial court in line with the policy of the Court to award moral damages in case of violent death without need of proof.[35]

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Las Pias City, Branch 255, in Criminal Case No. 92-1638, finding accused-appellant Dionisio Umayam y Castro, guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of  reclusion perpetua, is AFFIRMED with MODIFICATIONS. As modified, accused-appellant Dionisio Umayam y Castro is guilty beyond reasonable doubt of the crime of Homicide and sentenced to suffer the indeterminate penalty of eight (8) 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. Further, he is ordered to pay the heirs of the deceased, Emma Mendoza, civil indemnity in the amount of P50,000.00 and moral damages in the amount of P50,000.00.

SO ORDERED.

Puno, and Sandoval-Gutierrez, (Special Member), JJ., concur.Davide, Jr., C.J., (Chairman), Kapunan, and Austria-Martinez, JJ., on official leave.

EN BANC

[G.R. No. 135975. August 14, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONIFACIO ABADIES, accused-appellant.

D E C I S I O N

YNARES-SANTIAGO, J.:

What was supposed to be a merry yuletide season for the Roldan clan turned into a tragic Christmas Day when, in the early dawn of December 25, 1995, amidst the gaiety, family patriarch Cecilio Roldan was fatally shot at close range from behind before the horrified gaze of his wife and twelve year-old son.

Charged with Murder for the fatal shooting of Cecilio Roldan was his uncle, Bonifacio Abadies, a known neighborhood toughie. The Information against him reads:

That on or about the 25th day of December 1995, at around 2:00 early dawn, in Brgy. Cadaohan, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused BONIFACIO ABADIES, with treachery, evident premeditation and intent to kill, did then and there willfully, unlawfully and feloniously shot (sic) and hit with the use of an unlicensed firearm the person of the victim herein CECILIO ROLDAN, without giving the latter sufficient time to defend himself, thereby inflicting upon him a gunshot wound which caused his death. xxx.[1]

The case was docketed as Criminal Case No. 4756-O at the Regional Trial Court of Ormoc City, Branch 35. Upon arraignment, accused-appellant entered a plea of Not guilty.[2] After trial, the court a quo rendered judgment convicting accused-appellant of the crime charged and imposing on him the supreme penalty of death, to wit:

WHEREFORE, for all the foregoing considerations, the Court finds the accused Bonifacio Abadies GUILTY beyond reasonable doubt of the crime of Murder as the killing was with treachery and hereby sentences him, after having found the aggravating circumstance of evident premeditation in the

unrebutted testimony of Jose Manuel Roldan and no mitigating circumstances being present to offset the same, pursuant to Art. 63 of the Revised Penal Code, with the penalty of DEATH.

The Court further sentences the accused to pay the offended party the sum of P50,000.00 as indemnity; P25,000.00 as actual expenses; P50,000.00 as moral damages.

SO PROMULGATED.[3]

On automatic review before the Court, accused-appellant insists that the penalty of death should not have been imposed on him because

THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM PENALTY ON ACCUSED-APPELLANT DESPITE THE FACT THAT THE AGGRAVATING CIRCUMSTANCE OF EVIDENT PREMEDITATION WAS NOT PROVED BEYOND REASONABLE DOUBT.

On December 24, 1995, Cecilio Roldan, his wife Cynthia, their son Ronald and neighbor Salve Aligway were celebrating Christmas Eve at the balcony of their house at Barangay Cadaohan, Ormoc City. At 2:00 a.m. of Christmas day, Cynthia saw appellant Bonifacio Abadies, her husbands uncle, approached Cecilio from behind. Without warning, accused-appellant shot Cecilio with a short firearm about 8 inches in length.[4]

Cecilio was hit on the upper back and slumped to the floor. Salve Aligway rushed to his side. Cynthia saw accused-appellant rushing towards the back of their house since the balcony was lighted.[5]

Jose Manuel Roldan, Cecilios brother who lived next door, heard the gunshot. He immediately went out of his house and saw accused-appellant, his uncle, carrying a firearm and hurriedly entering his own house, about ten meters away. Jose Manuel rushed toward his brothers house fearing that he had been hurt. He recalled that in the morning of the previous day, accused-appellant had threatened to kill Cecilio Roldan because of a recent misunderstanding between them. Jose Manuel arrived at Cecilios house and found the latter wounded. [6]

Cecilio was rushed to the Ormoc District Hospital, where he eventually died.[7]

According to the victims widow, accused-appellant harbored a grudge against her husband because he was unable to give him the additional amount of P10,000.00 for the lease of a rice land owned by a certain Langkoy Fran in the month of December 1995, a few weeks before the shooting incident transpired.[8]

Dr. Jesus Castro, who conducted the post-mortem examination on Cecilio, found that he sustained a fatal gunshot wound at the back which hit the heart. The distance of the gun from the victim was more than one foot, judging from the absence of gunpowder in the body. [9] His post-mortem report indicated Cause of Death: CP arrest, 2 Massive and Profuse bleeding 2 to gunshot wound.[10]

Accused-appellant admits having shot Cecilio but claims that the shooting was accidental because the gun went off when he and Cecilio were grappling for its possession. He alleged that at around 11:00 p.m. of Christmas Eve, 1995, Cecilio invited him and his two sons to celebrate Christmas at his home. Accused-appellant and his sons arrived at Cecilios house and sat at the terrace, where they drank tuba and ate chicken with him. At about past midnight, Cecilio went to his bedroom. When he returned, he was carrying a gun. Eleodoro, accused-appellants son, shouted, Watch out Pa, you might be shot!"[11]

When he heard Eleodoros warning, accused-appellant got up and grabbed Cecilios hand.  While he and Cecilio grappled for possession of the firearm, they both fell down with Cecilio on top of him. Accused-appellant tried to twist Cecilios arm toward his back, when the gun suddenly went off. Immediately after the explosion, accused-appellant and his two sons fled leaving the victim alone. There were no other people present when the incident happened. At 7:00 a.m. the next morning, accused-appellant was arrested.[12]

We find no reason to reverse the trial courts ruling insofar as the nature of the crime is concerned. Between the two conflicting versions of the killing, we agree with the trial court that the prosecution witnesses were more worthy of credence. Their testimonies were found to be spontaneous, positive, forthright, and were not destroyed or rebutted throughout the trial.[13]

Murder is the unlawful killing of any person when qualified by any of the circumstances listed under Article 248 of the Revised Penal Code.[14] Treachery or alevosia, aptly alleged in the information, is one such qualifying circumstance.

Given the prevailing facts of the case, we agree with the trial court that the killing of Cecilio Roldan was attended by alevosia. 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.[15] The qualifying circumstance of treachery attended the killing as the two conditions for the same are present, 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.[16] The essence of treachery is the swift and unexpected attack on the unarmed victim without the slightest provocation on his part.[17]

In the case at bar, Cecilio Roldan was in the comforts of his home. He was eating, drinking and thoroughly engrossed in the gaiety of the yuletide season, while engaged in light banter with his wife and a neighbor. Suddenly and without warning, he was shot from behind by accused-appellant, his uncle. As in the recent case of People v. Herrera,[18] accused-appellant suddenly positioned himself at the back of the unsuspecting victim, pointed his gun at him and, without any warning, promptly delivered the fatal shot. The victim was unaware of the attempt on his life and the danger that lurked behind him. There was no way the victim could have defended himself, taken flight or avoided the assault.  Thus, the attendance of treachery qualified the killing to Murder.

However, we take exception to the finding of the trial court that the killing of Cecilio Roldan was premeditated. Like treachery, the elements of evident premeditation must be established with equal certainty as the criminal act itself, in order for it to be appreciated as a qualifying circumstance. [19] Thus, the following must be proved beyond reasonable doubt: (1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating that he clung to his determination to commit the crime; and (3) a sufficient lapse of time between the decision to commit the crime and the execution thereof to allow the accused to reflect upon the consequences of his act. [20] The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment. [21]

Evident premeditation must be based on external facts which are evident, not merely suspected, which indicate deliberate planning.[22] There must be direct evidence showing a plan or preparation to kill, or proof that the accused meditated and reflected upon his decision to kill the victim. [23] Criminal intent must be evidenced by notorious outward acts evidencing a determination to commit the crime. In order to be considered an aggravation of the offense, the circumstance must not merely be premeditation but must be evident premeditation.[24]

In the case at bar, none of the requisites of this aggravating circumstance can be inferred from the facts of this case. For one, the records do not show the time when accused-appellant resolved to commit

the crime. The date and, if possible, the time when the malefactor determined to commit the crime is essential, because the lapse of time for the purpose of the third requisite is computed from such date and time.[25]

The second requisite is likewise wanting. The fact that accused-appellant made threats to kill the victim does not necessarily prove evident premeditation without a showing that accused-appellant performed acts manifestly indicating that he clung to his determination. Accused-appellants threats, unsupported by evidence which would disclose his true criminal state of mind, will only be construed as casual remarks naturally emanating from a feeling of rancor and not a resolution of the character involved in evident premeditation.[26]

An expression of hatred does not necessarily imply a resolution to commit a crime. [27] Indeed, Jose Manuel Roldan, upon whose testimony the finding of evident premeditation is anchored, himself admitted he did not think accused-appellant would pursue his plan to kill Cecilio. [28] In fact, he even declared on re-cross examination, Nobody thought that he would carry out his plan.[29] Suffice it to state that without such evidence, mere presumptions and inferences, no matter how logical and probable they might be, would not be enough to sustain a finding of this aggravating circumstance.[30] In other words, the evidence falls short of proving the aggravating circumstance of evident premeditation.

There being no aggravating circumstance to be appreciated, the proper imposable penalty for the killing of Cecilio Roldan is reclusion perpetua. Under Article 248 of the Revised Penal Code, as amended by R.A. No. 7659, the penalty for Murder is reclusion perpetua to death. The lesser of these two indivisible penalties shall be imposed, pursuant to Article 63 (2) of the said Code.

Following prevailing jurisprudence, the Court finds the award of P50,000.00 as civil indemnity for the death of Cecilio Roldan proper without any need of proof other than the death of the victim.[31] Moral damages, pegged at P50,000.00 by controlling case law,[32] was also correctly awarded by the trial court taking into consideration the pain and anguish of the victims family brought about by his death. [33] The award of P25,000.00 as actual expenses incurred by the widow of Cecilio Roldan, which was duly proved,[34] is likewise affirmed.

WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Ormoc City, Branch 35, in Criminal Case No. 4756-O, finding accused-appellant Bonifacio Abadies guilty beyond reasonable doubt of the crime of Murder and ordering him to pay the heirs of the deceased the sums of P50,000.00 as civil indemnity for death, P50,000.00 as moral damages and P25,000.00 as actual damages, is AFFIRMED with the MODIFICATION that accused-appellant is sentenced to suffer the penalty of Reclusion Perpetua instead of Death.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, and Corona, JJ., concur.

Sandoval-Gutierrez, J., on leave.