SYLLABI/SYNOPSIS

 FIRST DIVISION

[G.R. No. 126143.  June 10, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO BADON, ARNOLD ARELLANO and NILO CAFINO, accused.  ALFONSO BADON and ARNOLD ARELLANO, accused-appellants.

D E C I S I O N

MELO, J.:

In an Information dated August 11, 1983, Alfonso Badon, Arnold Arellano, and Nilo Cafino, were charged with the crime of murder, thusly:

That on or about 8:00 o’clock in the evening of June 17, 1983 at Barangay Cabangahan, in the municipality of Siaton, province of Negros Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one another, with superior strength, and armed with deadly weapons with which all the accused were armed at that time, with treachery and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault, stab, hack and shot the victim, EDWIN GOMEZ inflicting upon the victim the following injuries, to wit:

1.  Hacking wound, 5 inches in length, fronto-parietal area;

2.  Hacking wound, 2 ½ inches in length, neck, lateral, right;

3.  Hacking wound, 4 inches in length, neck, right cutting the esophagus, both carotid vein and artery, trachea and cervical vertebra;

4.  Hacking wound, 3 inches, neck, right;

5.  Hacking wound, 2 ½ inches in length, distal third, arm, right lateral;

6.  Hacking wound, 2 ½ inches in length, proximal third, forearm right;

7.  Hacking wound, 1 1/3 inches in length, distal third, forearm;

8.  Hacking wound, 3 inches in length, occipital area, right;

9.  Hacking wound, ¾ inch, distal third, arm, left;

10. Hacking wound, 1 inch, forefinger;

11. Bullet wound, right scapular area;

12. Bullet wound, about 2 inches above the level of public bone, right;

13. Slough-off wound, 3” x 4”, right shoulder;

14. Stab wound, 1 ¼ x 1 ½ non-penetrating, right upper quadrant of the chest;

15. Hacking wound, 6 inches in length, cutting the 6th to the last ribs, right chest;

16. Bullet wound, about 3 inches below the left clavicle;

17. Stab wound, 1 ¾ inches x ½ inch, non-penetrating, 3 inches above the umbilicus;

18. Stab wound, 2 inches x 8 inches, epigastric area, penetrating;

19. Stab wound, ¾ x ¾ inches, non-penetrating, right lower quadrant, abdomen;

20. Stab wound, ¾ x 3 inches, non-penetrating, chest, lateral;

which injuries caused the immediate death of the victim EDWIN GOMEZ.

(pp. 37-38, Rollo.)

In an order dated June 20, 1985, the trial court directed the separate trial of Alfonso Badon and Arnold Arellano from that of accused Nilo Cafino as the last named accused was then, as he still remains, at large.

Upon arraignment, accused-appellants Alfonso Badon and Arnold Arellano entered a plea of not guilty and trial thereafter ensued.

The Office of the Solicitor General summarized the facts as viewed by the prosecution witnesses, to wit:

Edwin Gomez was a bus conductor and inspector working at the Ceres Bus Company (p. 12, TSN, August 28, 1990).  His wife, Florencia, and their children live with him in Barangay Cabangahan, Negros Oriental (pp. 6-8, Id.).  Among their neighbors is Demetrio Macayan, Sr. whose house is about thirty (30) meters away from the common residence of Restituto Elma Arellano, his son, Arnold (herein appellant), and his stepson, Alfonso Badon (herein appellant).  (p. 5, TSN, December 4, 1990; pp. 3-4, TSN, February 18, 1994).  Alfonso is the nephew of Glicerio Badon, the barangay captain at Cabangahan (p. 7, TSN, November 4, 1986).

On June 17, 1983, at half past 7:00 o’clock in the evening, Demetrio was downstairs in his house when he suddenly heard gun shots (p. 5, TSN, December 4, 1990).  Shortly, Edwin appeared at Demetrio’s doorstep, asking for help because Restituto had shot him when he (Edwin) passed by the house of Restituto (Ibid.).  Demetrio readily obliged and decided to go to their barangay captain for assistance.  On their way to Glicerio’s house, Edwin related to Demetrio that while he was passing the house of Restituto, the latter accused Edwin as the assassin hired by Remigio Asenas Quiqui a.k.a. Baloloy to kill him.  Then, Restituto shot Edwin.  Confirming Edwin’s story is the wound on his breast which Demetrio saw (p. 6, Id.).

Arriving at the house of Glicerio, Edwin requested that he be brought to a hospital so his wound may be treated (pp. 6-7, TSN, December 4, 1990).  Since there was no available transportation, Glicerio with some companions went to the house of Crispin Encontad to borrow his pedicab.  Crispin agreed and when they returned to the house of Glicerio to pick up Edwin (Ibid; pp. 8-9, TSN, June 7, 1991), Crispin saw a bullet wound on the chest of Edwin who told him he was shot (pp. 10, 12-13, TSN, June 7, 1991).  Thereafter, Edwin was seated on the passenger side of the pedicab and ready to be taken to the hospital.  However, Alfonso and Arnold, together with Nilo Cafino, came rushing in (p. 7, TSN, December 4, 1990; p. 13, TSN, June 7, 1991).  With a bolo two (2) feet long, Alfonso stabbed Edwin who, luckily, was able to parry the thrust which instead landed on the pedicab roofing that was torn as a result (p. 14, TSN, July 7, 1991).  Edwin was not as lucky the next time as Alfonso succeeded in stabbing him on the breast.  As Edwin cried out, he disembarked from the pedicab and tried to walk away.  But Arnold and Nilo followed and shot Edwin with a .38 caliber pistol (p. 8, TSN, December 4, 1990; pp. 14-15, TSN, June 7, 1991).  Edwin fell to the ground and lay prostrate.  As Nilo left the scene, Alfonso and Arnold took turns in hacking Edwin many times with a bolo.  Finally, they walked away leaving their victim dead (pp. 8-12, TSN, December 4, 1990; pp. 15-18, TSN, June 7, 1991).

Meanwhile, Demetrio and the other neighbors either scampered away or inconspicuously retreated from the scene of the crime out of fear (p. 13, TSN, November 4, 1986; p. 19, TSN, December 4, 1990).  On the other hand, Glicerio sought assistance from barangay Malo whose barangay captain reported the incident to the Siaton Police Station (p. 13, TSN, November 4, 1986).  Responding to the report, SPO3 Donaldo Gadingan and other policemen went to Cabangahan and found the dead body of Edwin lying along the highway near Glicerio’s house.  The police investigated the incident and requested a medico legal to conduct an autopsy of Edwin (pp. 14-15, TSN, November 4, 1986; pp. 6-9, TSN, August 29, 1995).  Subsequently, a municipal health officer at the Siaton District Hospital issued the certificate of death of Edwin (pp. 8-9, 12, TSN, October 24, 1989).

(pp. 4-7, Brief for the Plaintiff-Appellee.)

Based on the death certificate issued by Health Officer Rodolfo P. Jalalon, Edwin Gomez died of shock, hemorrhage, and stab and bullet wounds (p. 282, Record).

Accused-appellants denied killing the victim.  In their Brief, they present their own account of the incident as follows:

That at around 8 o’clock in the evening of June 17, 1983, Restituto Arellano, father of accused Arnold Arellano and step-father of accused Alfonso Badon was bagging copra (filling copra inside the sack) in his house at Cabangahan, Siaton, Negros Oriental; and while accused Alfonso Badon was lying in a bed in the piggery nearby.

Edwin Gomez arrived in the house of Restituto Arellano riding on a bicycle and after parking his bicycle in the fence nearby, he (Edwin) went to the house of Restituto Arellano and asked the latter whether he is hauling the copra the following day.

Edwin in an angry manner told that he (Arellano) should haul his copra the following day.  And so Arellano answered Edwin by saying:  “Why should you dictate me?  And Edwin raised his shirt and said:  “Do you know what is this?; and Arellano saw a .38 caliber pistol on the waistline of Edwin.

The gun, .38 caliber pistol, shown by Edwin to Arellano (Exh. “1”) is the same gun which he (Edwin) used to carry with him before the incident.

Thereafter, Edwin was pulled by his companion, a certain Susing Alama and while they were talking on the national highway, Susing Alama told Edwin that Al (Alfonso Badon) is there in the piggery lying down.  So Edwin said:  “Let’s go”; and both of them proceeded toward the piggery where Al (Alfonso Badon) was lying.

When Edwin and Susing were walking towards Alfonso Badon, they were chased by a barking dog which jumped at Edwin.  Edwin fired his gun towards where Al was located and Al jumped down to the ground.  Edwin shouted to Al:  “Isang bala ka lang”, which means “you are only good for one bullet”.

Edwin proceeded to the place where Al was and at the same time, the dog continued barking at him (Edwin) and Al was able to hold the gun of Edwin and they (Edwin and Al) wrestled with which each other and the gun fired for two (2) times.

While Edwin and Al were wrestling, Al fell to the ground; and while Edwin was on top of Al, Susing Alma fired his gun, and Edwin said in the local dialect: “Yawa Bay, naigo ko”, which means:  “Yawa Bay, I am hit:!

After the two (Edwin and Al) were separated, Edwin went to a coconut tree and hid thereat.  While hiding on said coconut tree, Edwin touched his breast and his blood from his breast was wiped by him (Edwin) on the trunk of the coconut tree (Exhs. “6” to “6-A”).  After few minutes, Edwin left the coconut tree and went to the road and said:  “You wait because I will get bullets”.

After Edwin promised to come back as soon as he gets the bullets, Al (Alfonso Badon) prepared himself inside their house with a “spear, a stone and a bolo”.  Alfonso Badon did NOT go out anymore that night outside the perimeter of their house, although he learned later on that Edwin Gomez died that evening near the house of Barangay Captain Glicerio Badon.

Accused Arnold Arellano have not left their house that evening of June 17, 1983.

After Edwin left the perimeter of the house of Restituto Arellano and promised to come as soon as he gets bullets, Edwin had a fight with accused Nilo Cafino as testified to by Restituto Arellano.  But when Edwin drew his gun, Nilo Cafino ran.  After the lapse of around seven (7) minutes, Restituto Arellano saw Demetrio Macayan stabbed Edwin several times.

Thereafter, Edwin went to the house of Barangay Captain Glicerio Badon which is around one hundred meters (100) away from the house of Restituto Arellano where herein accused Alfonso Badon and Arnold Arellano were preparing themselves just in case Edwin Gomez would fulfill his promise to come back when he had already several bullets.

When Edwin Gomez reached the house of the Barangay Captain, he (Edwin) requested to be brought to the hospital; the Barangay Captain saw Edwin carrying the gun.

(pp. 5-8, Brief for the Accused-Appellants.)

On July 16, 1996, the trial court promulgated its judgment of conviction and accordingly disposed:

WHEREFORE, judgment is hereby rendered finding accused Alfonso Badon and Arnold Arellano guilty beyond reasonable doubt of the crime of Murder and imposes upon each of said accused the penalty of Reclusion Perpetua, with all the accessory penalties provided by law.

Each of said accused is directed to pay the heirs of the deceased Edwin Gomez the sum of P50,000.00 as civil indemnity for death, P6,829.35 as burial expenses and P15,000.00 as, and for, attorney’s fees, plus proportionate cost.

The property bond posted for accused Alfonso Badon on September 20, 1993, as well as the bond posted for accused Arnold Arellano on November 15, 1993, are ordered cancelled and both accused are ordered immediately committed to the custody of the Provincial Warden.

Issue the corresponding warrant for the apprehension of accused Nilo Cafino who is at large, the same to be served by the PNP Police Force in the Siaton Police Station and by the NBI Manila, which warrant need not be returned to this Court until said accused is apprehended.

The effects and instruments of the crime are ordered confiscated in favor of the government.

SO ORDERED.

(pp. 59-60, Rollo.)

We affirm.

Accused-appellants contend that their guilt has not been proved beyond reasonable doubt.  They assert that the instant case was not wholly heard and tried by the judge who rendered the decision, and thus, was not in a position to ascertain the credibility of prosecution witnesses, mainly Crispin Encontad and Demetrio Macayan.  They consequently maintain that the general rule of according great weight and respect to the findings of the trial court finds no application in the case at bar.

On the contrary, however, even if, as pointed by accused-appellants, the ponente of the assailed decision did not have the fullest opportunity to weigh conflicting testimony, having heard only the testimony of all witnesses for the defense and the rebuttal evidence of the prosecution, the Court finds no misappreciation of facts committed by him.  The circumstance alone that the judge who wrote the decision had not heard the testimony of the prosecution witnesses would not taint his decision (People vs. Folina, 247 SCRA 28 [1995]).  In the case at bar, the full record was available to Judge Alfonso P. Briones and a perusal of his decision readily shows that it was duly based on the evidence presented during the trial, including the stenographic notes.  It is evident that he thoroughly examined the testimonial and documentary evidence before him and carefully assessed the credibility of the witnesses with the perceptiveness he has developed as a trial judge.  While the judge who presided over the entire trial of the case would be in a better position to ascertain the truth or falsity of the testimony of all the witnesses, it does not follow that a judge who only took over from a colleague who had earlier presided over the trial cannot render a valid and just decision.  The decision of a judge who did not try the case is not by that reason alone erroneous (People vs. Gazmen, 247 SCRA 414 [1995]).  In the case at hand, Judge Briones was indeed aware of his duties and responsibilities as a judge who had taken over another in midtrial.  His words deserve to be quoted:

The trial of the case shifted hands.  It passed, as the records show, from Judge Eleuterio E. Chiu (Branch 32), to Judge Jose M. Estacion, Jr. (Branch 44), to Judge Temistocles B. Diaz (Judge-Designate for Branch 38), then to Judge Enrique B. Inting (Branch 38), back to Judge Eleuterio E. Chiu (Acting Judge of Branch 38), and finally to this Presiding Judge who completely heard the testimony of all witnesses for the defense and the rebuttal evidence of the prosecution.

The effort is laborious, but this case no less demands a conscientious evaluation of the respective contentions of the parties.  Confronted with the antecedents of the proceedings, this Court meticulously examined the records, reviewed the transcripts with utmost perceptiveness, so that a verdict could be arrived at by judicial conscience.  On October 30, 1995, and within thirty (30) days therefrom, the Court, seeking a useful aid in resolving controversial issues, directed the prosecution and the defense to submit simultaneously their respective memoranda on the merits, but until February 28, 1996 when the case was declared submitted for decision no memorandum was submitted by either party.

On May 20, 1996, this Presiding Judge sought written permission from the Honorable Deputy Court Administrator to extend the period for one (1) month, counted from May 28, 1996, to decide the case.  This request was prompted by the fact that another case, also for Murder (Crim. Case No. 9950, entitled:  “PP vs. Marlon Zuniega), was also declared submitted for decision on February 28, 1996.  This case, like the Zuniega case, underwent a similar history where trial landed at different judges.

The record shows (page 8) that the initial trial in this case was conducted on June 20, 1985, during which one Crispin Encontad was presented as the first witness for the prosecution.  He finished his direct testimony, but no transcript thereof is found as among the reconstituted records of the case.  Upon motion of the prosecution under date of March 25, 1991 (pages 255-256, Records), the Court, thru Judge Enrique B. Inting, allowed the retaking of the testimony of said witness (page 257, Records).  The records also show that up to the conclusion of trial, accused Nilo Cafino remained at large.

(p. 39, Rollo.)

Be that as it may, the Court, however, is not precluded from making its own assessment of the probative merit and value of the testimony of the witnesses on the basis of the transcript of the stenographic notes thereof (People vs. Compendio, Jr., 258 SCRA 254 [1996]).

Based on the record and evidence at hand, the Court finds that the guilt of accused-appellants has been established beyond reasonable doubt in consequence of the fact that they have been positively identified by prosecution witnesses Demetrio Macayan and Crispin Encontad.  The bare denial and weak alibi of accused-appellants are insufficient to overcome the positive identification by prosecution witnesses (People vs. Nazareno, 260 SCRA 256 [1996]).

According to Crispin Encontad, the victim was stabbed by Alfonso Badon and then shot by Nilo Cafino.  Afterwards, Alfonso Badon stabbed the victim several times.  Although Crispin testified that he was not sure whether Arnold Arellano was armed or not, Demetrio Macayan, on the other hand, testified earlier that Alfonso Badon stabbed the victim while he was inside Crispin’s pedicab and when the victim alighted therefrom, he was shot by Nilo Cafino and Arnold Arellano.  Thereafter, Nilo left the scene and Alfonso and Arnold took turns in hacking and stabbing the victim.

Accused-appellants endeavor to discredit the testimony of Demetrio and Crispin based on the lack of absolute harmony in their testimony.  However, this Court cannot and does not expect absolute uniformity in every detail, because witnesses react differently to what they see and hear depending upon their situation and state of mind.  It is of common experience that the perception of individuals may vary depending on their location and the extent of their peripheral vision.  To expect identical features in the testimony of witnesses cannot but generate the suspicion that the material circumstances testified to by them were integral parts of a well thought out and prefabricated story (People vs. De Castro, 252 SCRA 341 [1996]).

Probing into the whole testimony of Crispin and Demetrio would show that Crispin is not as incisive and keen as Demetrio.  There are matters which Crispin failed to recall, like who were with the barangay captain when the latter asked for his assistance, or whether Arnold was armed or not.  He could not remember that Demetrio, among other persons, was actually with the barangay captain.  Under the circumstances, however, this Court fully recognizes the difficulty of remembering what another would not otherwise forget.  It is not common experience for a person to witness the perpetration of a crime, and the startling experience usually perverts his normal pattern of reaction.  Crispin may not have been able to completely tell the tale but what is significant is that Demetrio was able to fill in the details.  He positively identified Arnold Arellano as one of the three assailants of Edwin Gomez.  Verily, inconsistencies in minor details do not impair the credibility of witnesses where there is consistency in relating the principal occurrence and positive identification of the assailants (People vs. Panganiban, 241 SCRA 91 [1995]).

Further, accused-appellants contend that Crispin Encontad falsely testified against them because they are members of Iglesia Ni Kristo while Crispin is a Roman Catholic.  The testimony of Crispin cannot be discredited on this basis alone, as indeed, accused-appellants failed to prove that their religious differences have reached such an intensity as to cause Crispin to falsely attribute a crime to them.

Anent Demetrio’s testimony, accused-appellants assert that this cannot be relied upon because he testified seven years after the occurrence of the incident.  But delay in revealing the names of the perpetrators of the crime does not necessarily render a witness less credible witness if such delay is sufficiently explained (People vs. Alcantara, 254 SCRA 384 [1996]).  Likewise, failure to volunteer what one knows to law enforcement officials does not necessarily impair a witness’ credibility (People vs. Alberca, 257 SCRA 613 [1996]).

Admittedly, Demetrio testified only on December 4, 1990.  However, it was established that a day after the victim was killed on June 17, 1983, Demetrio was told by the victim’s wife that he will testify as to what he witnessed.  He readily agreed and thus, he felt that there was no need for him to report what he saw that night.  The fact that he was put on the stand only on December 4, 1990 cannot be attributed to him.

Accused-appellants insists that they have sufficiently established their defense of alibi as they were far from the crime scene, which is around one hundred meters away from their house, and this fact was corroborated by their witness, who happens to be their father, Restituto Arellano.

Where alibi is established only by the accused and a relative, such defense deserves scant consideration, especially so in the face of affirmative testimony of credible prosecution witnesses (People vs. Corpus, 240 SCRA 203 [1995]).  Many times has this Court held that the defense of alibi can prosper only if it is shown that it was physically impossible for the accused to be at the scene of the crime or within its immediate vicinity at the time of its commission (People vs. De Roxas, 241 SCRA 369 [1995]).  This, accused-appellants failed to prove.  Needless to say, it was not physically impossible for accused-appellants to be at the crime scene when they were only one hundred meters away therefrom.  This distance could be covered by 1-minute leisurely walk or a dash of less than 30 seconds.  Withal, the defense of alibi by accused-appellants is worthless in the face of positive identification (People vs. Rivera, 242 SCRA 26 [1995]).

However, the Court disagrees with the trial court’s observation that although superior strength and treachery attended the killing of Edwin, superior strength can no longer be treated as a separate circumstance it being absorbed in treachery.  In the first place, treachery was not sufficiently established.

The characteristic and unmistakable manifestation of treachery is the deliberate, and unexpected attack on the victim, without any warning and without giving him an opportunity to defend himself or repel the initial assault.  For treachery to be appreciated, it must be present at the inception of the attack, and if absent and the attack is continuous, even if present at a subsequent stage it is not to be considered (People vs. Magallanes, 275 SCRA 222 [1997]).

In the instant case, victim Edwin Gomez cannot be said to have been totally oblivious of the impending attack by Alfonso against him because he had the opportunity to parry the thrust which instead landed on the roof of the pedicab that was torn as a result.  Accused-appellant Alfonso succeeded in stabbing him the next time, yet, Edwin was able to get out of the pedicab and escape his assailants.  The fact that he was simultaneously shot by accused-appellants while running away is of no moment.

Where the deceased was suddenly attacked, but he was able to retreat to avoid being hit by the hacking blows and was hit only when he was already in the act of defending himself against the attack of accused-appellants, there is no treachery (People vs. Diva, 23 SCRA 332, 340 [1968]).  Further, even if the deceased was shot while he was lying wounded on the ground, it appearing that the firing of the shot was a mere continuation of the assault in which the deceased was wounded, with no appreciable time intervening between the delivery of the blows and the firing of the shots, it cannot be said that the crime was attended by treachery (People vs. Peje, 99 Phil 1052 [1956]).

Nonetheless, the aggravating circumstance of abuse of superior strength beyond doubt attended the killing of Edwin.  Given the fact that the victim, himself unarmed, was simultaneously attacked by the two accused-appellants and the third accused who has remained at large, all of them with weapons, superior strength was clearly in attendance (People vs. Alitao, 194 SCRA 120, 128 [1991]).  The combined acts of accused-appellants Alfonso and Arnold, both armed with guns and bolos, in taking turns in stabbing the victim who was unarmed and already prostrate on the ground, administering to him a total of 20 stab and bullet wounds, certainly exhibit abuse of superiority.  Thus, the crime committed was murder, qualified by abuse of superior strength (People vs. Verzo, 21 SCRA 1403, 1410 [1967]).

Considering that the prosecution had proved one aggravating circumstance – abuse of superior strength – and in accordance with Article 2230 of the Civil Code, exemplary damages may be awarded in criminal cases as part of the civil liability if the crime was committed with one or more aggravating circumstances (People vs. Estares, 282 SCRA 524 [1997]).

One final note.  As aptly observed by the Solicitor General, while the trial court imposed the proper penalty of reclusion perpetua, it erred in holding that the law at the time the record of this case was reconstituted should apply in determining the imposable penalty.  On the contrary, the law at the time of the commission of the crime shall apply in determining the imposable penalty, unless such penalty has been reduced in the meantime.

WHEREFORE, the decision under review finding accused-appellants Alfonso Badon, and Arnold Arellano, guilty beyond reasonable doubt of Murder is AFFIRMED, with the modification above-stated.  Accused-appellants are hereby sentenced to suffer the penalty of reclusion perpetua and are each ordered to pay the heirs of the victim P50,000.00 as indemnity for death in accordance with current jurisprudence, P6,829.35 as burial expenses and P15,000.00 as and for attorney’s fees.  In addition, accused-appellants are likewise each ordered to pay the heirs of the victim P20,000.00 as exemplary damages.

SO ORDERED.

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