People vs Pacificador : 126515 : February 6, 2002 : J. Pardo : First Division

FIRST DIVISION

[G.R. No. 126515. February 6, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ASSEMBLYMAN ARTURO F. PACIFICADOR (At Large), SGT. DOMINGO DALMACIO, SGT. ENRICO CABAÑERO, C2C REYNALDO ALIPALA, PFC VICENTE VEGAFRIA, P/CPL. HECTOR FULLON, and PAT/ LORENZO MINGOTE, accused.

SSGT. DOMINGO DALMACIO, C2C REYNALDO ALIPALA, PFC VICENTE VEGAFRIA, PCPL. HECTOR FULLON and PAT. LORENZO MINGOTE, accused-appellants.

D E C I S I O N

PARDO, J.:

Accused S/Sgt. Domingo Dalmacio, C2C Reynaldo Alipala, PFC Vicente Vegafria, PCpl. Hector Fullon and Pat. Lorenzo Mingote, appeal from the decision[1] of the Regional Trial Court, Branch 11, San Jose, Antique finding them guilty beyond reasonable doubt of multiple murder committed against Clemente Samulde, Rhium Sanchez, Plaridel Sanchez IV, Aldrick Sanchez, Mamerto Zaldivar, Jr., Armelito Tamboong and Abner Varon and frustrated murder committed against Luna Sanchez, and sentencing each to seven (7) reclusion perpetua and to indemnify the heirs of the seven (7) victims jointly and solidarily in the amounts of P350,000.00, P37,000.00,[2] P20,000.00,[3] P39,000.00,[4] P35,000.00,[5] P22,510.00,[6] and P70,000.00,[7] and to an indeterminate prison term of nine (9) years, four (4) months and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, and to indemnify, jointly and severally the victim Luna Sanchez in the amount of P60,000.00 for medical and hospitalization costs.[8]

On April 16, 1986, senior state prosecutor Tirso C. Velasco filed with the Regional Trial Court, Antique, San Jose, Branch 11 an amended information for multiple murder and frustrated murder against Arturo F. Pacificador, S/Sgt. Domingo Dalmacio PC, Sgt. Enrico Cabañero PC, C2C Reynaldo Aliupala PC, Pfc Vicente Vegafria PA, Cpl. Hector Fullon INP, and Pat. Lorenzo Mingote INP, which reads:

“That on or about May 13, 1984 in the evening, at the Municipality of Sibalom, Province of Antique, Philippines, a place within the jurisdiction of this Honorable Court, accused Assemblyman ARTURO F. PACIFICADOR, his military security men: S/SGT. DOMINGO DALMACIO PC, SGT. ENRICO CABAÑERO PC, C2C REYNALDO ALIPALA PC, PFC VICENTE VEGAFRIA PA, CPL. HECTOR FULLON INP and PAT LORENZO MINGOTE INP, whose military jurisdiction over their case had been waived by the President of the Philippines pursuant to P. D. 1952 in favor of the civil court, conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and feloniously, with intent to kill, treachery, and evident premeditation, attack, assault and shoot Rhium Sanchez, Plaridel Sanchez IV, Aldrick Sanchez, Mamerto Zaldivar, Jr., Clemente Samulde, Abner Varon and Pat. Armelito Tamboong with the use of armalite rifles and explosives thus inflicting gunshot wounds on vital parts of their bodies which caused their death as a consequence, and the wounding of Luna Sanchez on vital parts of his body which ordinarily would cause his death thus performing all the acts of execution which should have produced the crime of murder as a consequence but nevertheless did not produce it by reason of cause independent of his will, that is, by the timely and able medical assistance rendered to Luna Sanchez which prevented his death.

“CONTRARY TO LAW with aggravating circumstances of nighttime, by a band, with evident premeditation or treachery, superior strength and by means of motor vehicle.

“Manila for San Jose, Antique, April 16, 1986.”[9]

In 1986, accused Arturo F. Pacificador fled and turned fugitive from justice.

On April 21, 1986, accused Domingo Dalmacio, Enrico Cabañero, Reynaldo Alipala, Vicente Vegafria, Hector Fullon and Lorenzo Mingote, assisted by their counsels Atty. Avelino T. Javellana, Atty. Anecito J. Baluyot, and Atty. Francisco Cabaluna Jr., pleaded not guilty upon arraignment. The other accused Arturo F. Pacificador was not arraigned because he was at large. Thereafter, trial ensued.

May 14, 1984 was the day set for election of members of the Batasang Pambansa. Arturo F. Pacificador, incumbent Assemblyman representing the lone district of Antique, was running for reelection under the banner of Kilusang Bagong Lipunan (KBL). Pacificador’s reelection bid was threatened by the all-out support given by Antique Governor Enrique Zaldivar to Pacificador’s opponent, Evelio Javier, a young charismatic leader, who was a candidate for assemblyman of the Nationalista Party, Roy Wing.[10]

On May 13, 1987, the NP Chairman of Antique, Col. Rhium Sanchez, and his companions, namely: Luna Sanchez, his son Aidrick Sanchez, Plaridel Sanchez, his nephew Mamerto Zaldivar, his cousin Clemente Samulde, Armelito Tamboong and Abner Varon were busy campaigning for candidate Javier in every town of Antique which they passed coming from the town of Pandan en route to San Jose, Antique. They rode on Governor Zaldivar’s Toyota tamaraw jeep.[11]

While passing Lindero, Lawauan, Antique, Luna Sanchez noticed the pick-up vehicle of Pacificador, loaded with armed men. It overtook their vehicle. Upon reaching Brgy. Guisijan, Luna saw the same pick-up by the roadside. When they passed by, one of the armed men on board the pick-up pointed his rifle at them.[12] Upon reaching Bugasong, Antique, Pacificador’s pick-up overtook their vehicle once again. As the pick-up was overtaking them, Luna saw a person in the front seat of the vehicle using a two-way radio.[13] Thereafter, they proceeded to San Jose, Antique.

While halfway traversing Pangpang Bridge, in Sibalom, Antique, Luna saw a vehicle coming from the opposite direction enter the south end of the bridge. Rhium Sanchez, who was then seated beside Luna in the front seat of the Tamaraw, instructed Aidrick Sanchez who was driving to stop and signal the oncoming vehicle not to proceed. The oncoming vehicle moved back from the bridge, but Luna’s vehicle had to stop as three (3) vehicles parked in the middle of the road past the bridge blocked the road. Shortly, two (2) armed men in fatigue uniform approached their vehicle. One of the men shouted “inspection.” One proceeded to the left side of the Tamaraw jeep; the other armed men went to the right side. The two (2) armed men peeped inside the Tamaraw jeep after which they returned to their respective vehicle. Luna identified the two men in fatigue uniform as accused Vegafria and Alipala.[14]

As soon as Vegafria and Alipala reached their vehicle, successive rounds of gunfire coming from both sides of the road rained on the Tamaraw jeep, which lasted for about ten (10) minutes. Two (2) big explosions were also heard. When the firing stopped, two to three men approached the Tamaraw jeep. Luna, who was hit in the right arm kept quiet and still. He heard three (3) men approach their vehicle, one of whom uttered “Patay silang lahat.[15]” Thereafter, the men returned to their vehicle and sped away onboard their vehicles headed towards San Jose, Antique.[16]

After the assailants had left, Luna Sanchez found his son, Aldrick still alive but seriously wounded. Rhium, who was seated at the front between him and Aldrick, was dead. His companions who were seated at the back of the Tamaraw jeep were all dead. He told Aldrick to get out of the vehicle and flee, but the latter told his father that his legs were badly hit. Nonetheless, Aldrick slid out of the vehicle while Luna went out through the window of the Tamaraw jeep. Luna stood by the road. He shouted for his companions at the back of the jeep but no one answered. He crossed to the other side of the vehicle where Aldrick was lying. He told his son that they must go to a safer place. Aldrick answered that he could not walk. After taking a few steps, Luna fell to the ground. He tried in vain to stand up but failed. He was too weak. He crawled to where his son was lying under a kapok tree. There they waited for about thirty (30) minutes.[17]

Shortly, a firetruck, with its flashing lights, arrived, followed by a Balaraw jeep. The headlights of the firetruck illuminated the place. Two (2) men with flashlights scanned the vicinity, one of whom said “dalawa dito patay” (two persons here dead).[18] One of them came near where they -lay. Luna called for help. The man introduced himself as a policeman from Sibalom and told him not to be afraid. The man tried to assist him, but out of nowhere, a shot suddenly rang out. The man released his hold on Luna and ran towards the road and left.[19]

Meanwhile, Aldrick told his father to escape; otherwise, both of them would die. Luna at first did not agree, but left after Aldrick insisted that he should go. Luna had just moved about ten (10) meters from his son when he heard bursts of gunfire. He heard his son groan signaling that the latter was mortally hit and a voice saying, “Dalawa yan kanina.” Again, shots were fired in his direction but he was not hit. The men tied Aldrick and dragged him towards the road.[20]

The men on board the fire truck saw Luna when searchlights were beamed on the spot where he laid. Someone shouted in tagalog, “may isa dyan patay” (there is someone there dead). One of the men went down to get him, tied his right ankle and dragged him towards the road. Luna managed to tell the man that he was still alive and asked that he be brought to a hospital. Another man wearing a fatigue uniform advised the men not to harm him. Thereafter, Luna was brought to Angel Salazar Memorial General Hospital for medical attention. It was about 2:00 in the morning when Luna was brought to the hospital. The ambush took place between 11:00 and 12:00 midnight.[21]

At about 10:00 in the evening of May 13, 1984, while prosecution witness Rodelo Aleries, a resident of Alangan, Sibalom, Antique, was on duty as watchman of the Hanaber Construction Firm stationed at the southern end portion of the Pangpang Bridge, Sibalom Antique, from a distance of twenty (20) meters, he saw three (3) vehicles[22] parked at the southern end portion of the single-lane Pangpang Bridge. Rodelo recognized the three (3) vehicles as the vehicles of Arturo Pacificador, which he used whenever he went on his political campaigns.[23]

About twelve persons, some of who were familiar to him alighted from the vehicles.[24] As the moon was bright and the light coming from the compound of Hanaber Construction Firm further illuminated the place,[25] he recognized S/Sgt. Domingo Dalmacio, Sgt. Enrico Cabañero, Pat. Lorenzo Mingote, C2C Reynaldo Alipala, Pfc. Vicente Vegafria and Cpl. Hector Fullon. He was able to identify them because they were the security men of Assemblyman Arturo F. Pacificador during political meetings. They were carrying armalite rifles. Thereafter, they went towards the canal and took cover.[26]

Minutes later, Rodelo saw the headlights of a vehicle coming from the other side of the bridge. When the vehicle was midway the bridge, the white Nissan vehicle, one of the vehicles parked at the southern end drove and entered the single-lane bridge. But it did not proceed; instead, it moved backed and stopped at about ten (10) meters from the foot of the bridge. Meanwhile, the vehicle coming from the northern end of the bridge, moved forward. By this time, the distance between the two (2) vehicles was approximately five (5) meters.[27]

Suddenly, gunshots rained from the nearby canal, directed against the vehicle which came from the northern part of the bridge which lasted for about ten (10) minutes. While lying prone Rodelo heard the engine of the vehicles moved towards the direction of San Jose, Antique. Seized with fear, Rodelo went home.[28] The following morning, Rodelo reported the incident to his office. When the military conducted an investigation at the scene where the shooting took place, empty gun shells were found near the canal.[29]

Prosecution witness Efren Rangos, whose house was about forty (40) meters from the bridge of Sibalom, Antique testified that at about 10 o’clock in the evening of May 13, 1984, he was on his way home after fishing in the river along Pangpang Bridge, Sibalom, Antique. He took the footpath between Palmares Compound and the national highway. Upon reaching the southern end of Pangpang Bridge, Efren saw two (2) jeeps parked on both sides of the highway. There, Efren met and greeted Assemblyman Arturo F. Pacificador. Pacificador told him, “Boy or To, whatever you see and whatever you know, just keep silent (hipos lang ikaw).”[30] Assemblyman Pacificador had a two-way radio handset and an armalite rifle slung on his shoulder. The men inside the jeeps were carrying rifles while other armed men positioned themselves by the roadside. Thereafter, Efren went home and took supper.[31]

After taking his supper, Efren went out. Along the way, he saw a vehicle coming from the north pass the bridge. At the same time, Efren saw a jeep traveling from the opposite direction towards the bridge. The jeep coming from the south stopped and moved back. The vehicle coming from the north moved on. Momentarily, Efren heard bursts of gunfire coming from the right shoulder of the road facing the municipality of San Jose, Antique. He was about 80 meters away. He observed that the gunshots were all directed against the vehicle that came from the north. No gunshots came from the vehicle that came from the north.[32] The firing lasted for about ten (10) minutes. Thereafter, the three vehicles left and headed towards San Jose, Antique.[33] Efren recognized the three (3) vehicles as the same vehicles which Arturo F. Pacificador used in during his election campaign.[34]

Dr. Fernando Febrero, senior resident physician at Angel Salazar Memorial General Hospital, attended to Luna Sanchez and had the following findings:

“DIAGNOSIS/LESIOS/FINDINGS:

1. Contusion, right infra-orbital area.

2. Wound, gunshot, POE- 1 inch diameter, muscle deep, face, right POX-

None,

3. Wound, gunshot, POE- 2 inches diameter, muscle deep, medial aspect, left

leg, beside the knee, POX- None.

4. Wound, incised, 1 cm. long, subcutaneous deep, with swelling,

temporal area, right.

5. Multiple punctured wounds, proximal and middle 3^rd forearm, right.

6. Wound, gunshot, POE- 1 cm. diameter, subcutaneous deep, right chest,

level of 10th rib, POX- None.

7. Punctured wound, at per-umbilical area.

8. Wound, lacerated, 1 inch long, subcutaneous deep, epigastrium.

9. Wound, lacerated, 1 cm. long, muscle deep, left chest, level of 5^th

intercostals space.

10. Wound, lacerated, o.5 cm. long, muscle deep, left face.

11. Wound, gunshot, POE- o.5 cm. diameter, muscle deep, deltoid region,

right upper extremity, POX- None.

12. Wound, gunshot, POE- ½ cm. diameter, muscle deep, middle 3rd humerus, left upper extremity, POX-None.

OPERATION PERFORMED, IF ANY: None

REMARKS: Wound #3 sutured.”[35]

Dr. Rodolfo Garfin, provincial health officer of Antique, conducted an autopsy on the cadavers of Rhium Sanchez, Mamerto Zaldivar, Jr. and Aldrick Sanchez.[36] Based on the autopsy report, the victims sustained the following injuries:

RHIUM SANCHEZ:

“DIAGNOSIS/FINDINGS:

1. Body in state of primary flaccidity.

2. Multiple splinter wounds, varying in sizes from ¼ to ½cm. with smudging of the edges, subcutaneous tissue depth, scattered around the face, upper chest, dorso-lateral aspects of the upper extremities, bilateral, abdomen, antero-lateral aspect, left thigh and both hands.

3. Wound, lacerated, 2 inches longs, muscle deep, anterior portion, middle 3^rd left thigh.

4. Wound, lacerated, ½inch long, muscle deep, lateral aspect, proximal 3^rd, left leg, 2 inches below the left knee joint.

5. Multiple lacerated wounds, 1 inch to 1 ½inches diameter with smudging edges located at the left thumb, distal phalanges of 2nd 3rd, 4th and 5th fingers, left hand.

6. Wound, lacerated, scalp deep, 1 cm. diameter, parietal portion, left head, 3 inches above the left ear.

7. Gaping lacerated wound, 1 inch diameter, located at the suprascapular area, left back, 2 inches above the left posterior axillary fold, directed medially involving the 2^nd posterior rib, producing a compound, comminuted fracture, producing a lacerated wound, 4 inches long, at the lung substance, posterior lobe, left lung.

8. Wound, gunshot, circular in shape, 1 inch diameter, proximal 3^rdleft arm, directed medially, producing a compound, comminuted fracture of proximal portion of the humerus.

9. Wound, gunshot, oblong in shape, ¾ inch diameter, ½ inch below wound #8, directed medially and producing a compound, comminuted fracture of the left distal portion of the humerus.

10. Hemothorax with collapses of the left lung, approximately 1 liter with blood clots.

CAUSE OF DEATH:

Hemorrhage, severe, secondary to gunshot and lacerated wounds.”[37]

MAMERTO T. ZALDIVAR, JR.

“DIAGNOSIS/FINDINGS:

1. Wound, gunshot, (entrance) roughly oval in shape, measures about 0.3 inches in diameter, located at right cheekbone, piercing the skin and zygomatious muscle.

2. Wound, blasted, measures about 8 cm. x 7 cm. in diameter with fracture and chipping of the mandibular bone, left.

3. Wound, multiple, gunshot, roughly oval in shape six (6) in number with flame zone. Four (4) of these are superficial, skin deep, while the remaining two (2) measure about 0.5 inches in diameter, located at the anterior chest wall, above the superior aspect of the manibrum sterni, directed posteriorly and downwards piercing the skin, gnawing the first rib, entering the thoracic eye, penetrating and perforating the arch of aorta, right, middle, right lung. Hemothorax- 2,000 cc.: Paleness of visceral organs; heart big blood vessel empty.

4. Wound, gunshot, roughly oval in shape, measures about 0.7 cm. in diameter located at the infraclavicular region, along the mid-axillary line, left, directed forwards to downwards, penetrates the skin, soft tissues and upper portion, left lobe of the lung. Metal fragments recovered flowint (sic) at the posterior thoracic cavity.

5. Wound, lacerated, measures 7 cm. x 5 cm. in diameter, located at the shoulder region involving the skin and the deltoid muscle, left.

6. Wound, gunshot, roughly oval in shape, measures 5 cm. in diameter, located at the lateral aspect, middle 3^rd of the thigh, penetrates the skin and vasus lateralis.

7. Wound, lacerated, measures 7 x 5 cm. in diameter, located about an inch along the left lateral malleolus of the left leg, involving skin, ligaments, complete compound, comminuted fracture of the tibia.

8. Wound, blasted, measures about 10 cm. x 4 cm. located at the lateral and medial aspect of the left planar surface, involving the skin, tendons, muscles and tarsal and metatarsal bones.

9. Wound, gunshot, roughly oval in shape, measures about 0.7 cm. in diameter, located about 30 cm. above the right ankle, just skin deep with small metallic fragments recovered.

10. Wound, gunshot, roughly oval in shape, measures about 0.6 cm. in diameter, located at the right inner, lower quadrant of the gluteal region, muscle deep.

11. Wound, gunshot, roughly oval in shape, measures about 0.7 cm. in diameter, located at the coccyxgeal region, skin deep.

CAUSE OF DEATH:

Internal and Expernal (sic) hemorrhage due to Multiple gunshot wounds.”[38]

ALDRICK G. SANCHEZ:

“DIAGNOSIS/FINDINGS:

1. Wound,. gunshot, (entrance) roughly oval, measures about 5 inches in diameter, located at the right lateral posterior aspect of the neck, about 2 inches from the right ear, directed forwards, penetrating the scalp and oranium with fracture of the occipital bond and base of the skull, producing laceration of the brain stem, making an exit after graving the nasal bones, fracture of the frontal bone, fracture of the left maxillary bone with avulsion of the left eyeball (exit).

2. Wound, gunshot, roughly oval, measures .5 incles in diameter, piercing the skin, producing fracture of the sub-mandibular bones.

3. Wound, gunshot, (entrance) roughly oval, measures 0.5 inches in diameter, located at the middle 3^rd lateral aspect of the right arm, directed forwards and medially penetrating the skin, brachialis muscles, producing comminuted fracture of the humerus bone and the triceps muscles at the medial aspect (exit).

4. Wound, lacerated, measures about 1 and 3/4 inches in diameter, directed forwards and inwards at the right upper chest wall along the anterior axillary line, penetrating the skin, pectorialis major and minor muscles, producing comminuted fracture of the 2nd right anterior rib, piercing both upper lobes of the lungs. Hemothorax: 250 cc.

5. Wound, lacerated, measures about 1 and ½inches in diameter, located at the left anterior axillary fold, directed forwards and medially, penetrating the skin, pectorialis major and minor muscles, graving the lower border of the 1^st rib, left, and penetrating the upper lobe of the left lung. Hemothorax: 200 cc.

6. Wound, gunshot, (entrance) roughly oval, measures about 0.3 inches in diameter, located at the middle 3rd, anterior aspect of the thigh, left, directed forwards and downwards, penetrating the skin and rectus femoris muscles.

7. Wound, lacerated, (entrance) measures about 2 inches in diameter, located at the lateral aspect, middle 3^rd of the thigh, left penetrating skin and the vastus lateralis muscles.

8. Wound, gunshot, roughly oval, measures about 0.3 inch, skin deep, located at the right leg, lower 3^rd, media aspect from where three (3) metallic fragments were recovered.

9. Presences for multiple black spots at the parietal area, left with break of scalp tissues.

“CAUSE OF DEATH:

Shock secondary to hemmorhage (sic), massive, external and internal, due to multiple gunshot wounds.”[39]

Dr. Gibeleo Noblez, senior resident physician of Angel Salazar Memorial General Hospital autopsied the cadaver of Armelito Tamboong, with the following findings:

“DIAGNOSIS/FINDINGS:

1. Wound, gunshot, lacerated, 2 inches ion length, scalp deep with contusion collar at left parietal region, anterior portion.

2. Wound, gunshot, 2 inches in diameter, scalp deep with contusion

collar, left occipital region.

3. Wound, gunshot, POE- 4 inches in diameter, with contusion collar at lower 3^rd of right forearm and compound comminuted fracture of distal 3^rd right radius and ulna, POX- None.

4. Wound, gunshot, POE- 2 inches in diameter, muscle deep with contusion collar, located at right posterior axillary line just above the axillary region, POX- None.

5. Wound, gunshot, POE- 1 inch in diameter, muscle deep, with contusion collar, 1 cm in diameter, above wound #4, POX- None.

6. Wound, gunshot, POE- inch diameter with contusion collar at the back of the thoracic cavity, right side of thoracic cavity, right side of thoracic spinal column at the level of the ₄th intercostals rib, right, penetrating thoracic cavity, POX- None.

7. Multiple gunshot wound, six (6) in number, 1 inch in diameter at the right scapular region with contusion collar, hitting the scapular bone and lodge, POX- None.

8. Wound, gunshot, POE- 2 inches in diameter, muscle deep, back of the right leg, postero-lateral location, 1 ½ inches in diameter with contusion collar, POX- None.

9. Wound, gunshot POE- 2.5 cm. in diameter, muscle deep, with contusion at the back of the right lateral malleolus, POX- None.

INTERNAL FINDINGS:

Wound, gunshot, POE- 1 inch diameter, penetrating inner wall of the thorasic cavity, right, at the level of the ₄th inter-costal rib, at the back and the right lung was perforated and collapse, blackish discoloration with clotted blood evacuated about 2 liters.

CAUSE OF DEATH:

Hypovolemic shock secondary to multiple gunshot wound (External and internal hemorrhage).”[40]

Dr. Honesto O. Magdaug, Jr., medical specialist at Angel Salazar Memorial General Hospital conducted an autopsy on the cadavers of Abner C. Biadora Varon and Clemente Samulde. Based on the autopsy reports, the victims sustained the following injuries:

ABNER C. BIADORA VARON:

“DIAGNOSIS/FINDINGS:

“EXTERNAL FINDINGS: In-state of rigor Mortis.

“RIGHT LOWER EXTERMITY

1. Multiple shrapnel wounds #3, dorsum of right foot, with fracture of right middle metatarsal and right big toe.

2. Sharphal wounds, multiple, right leg and right thigh.

“LEFT LOWER EXTREMITY-

1. Wound, gunshot, POE- 1 cm. diameter #3, muscle deep, directed downwards, lower thigh, medial aspect, POX- Noe.

2. Abrasion, 1 x 1 1/2inches diameter, close to the wound in #1.

3. Wound, gunshot, POE- 1 cm. diameter #2, muscle deep, upper 3rd thigh, left, medial apect, POX- None.

“RIGHT UPPER EXTREMITY-

1. Wound, gunshot, POE- 1.5 cm. diameter, arm, right, middle 1/3 with fracture of the humerus, POX- None.

“LEFT UPPER EXTREMITY-

1. Wound, lacerated, muscle, 7 inches long with comminuted fracture of the radius and ulna, upper 2/3.

2. Wound, gunshot, POE- 1 ½ inches diameter, upper 1/3, arm, mediolateral aspet with fracture of the humerus, POX- 1 ¾ inches diameter, with averted edges located posteriorly just above the level of the POE.

“FACE- Abrasions, left cheek.

“BODY:

1. Wound, gunshot, POE- 2 inches diameter, muscle deep, right pubic area, POX- None.

2. Multiple shrapnel wounds, right and left, iliac region.

3. Wound, gunshot, POE- 1 ½ inches diameter, subcutaneous deep, directed downwards, left lumbar region, POX- None.

4. Wound, gunshot, POE- 1 inch diameter, left posterior axillary line level of the nipple, directed downwards, fracturing 7^th, 8^th and 9^thribs penetrating thorasic cavity and abdominal cavity, POX- None.

5. Wound, gunshot, POE- 1 cm. diameter, left lumbar region along the left paravertebral line, POC- None.

INTERNAL FINDINGS:

1. Fracture of the 7^th, 8^th, 9^th ribs at the left posterior axillary line, penetrating diaphragm, perforating greater curvature of the stomach with contents coming out.

2. Penetrating thorasic cavity, hitting the lower lobe of the left lung, perforating the left ventricle of the heart at 2 points, thru and thru, with severe intrathorasic hemorrhage, left.

CAUSE OF DEATH:

Shock secondary to severe external and intrathorasic hemorrhage due to multiple gunshot wounds.”[41]

CLEMENTE L. SAMULDE:

“DIAGNOSIS/FINDINGS:

“EXTERNAL FINDINGS:

In-state of Rigor Mortis

“RIGHT LOWER EXTREMITY:

1. Wound, lacerated, 2 x 2 ½ inches in diameter with fracture of 5th metatarsal bone, dorsum, foot, right.

2. Wound, lacerated, 2 inches in diameter, subcutaneous deep, dorsum, foot, right.

3. Wound, gunshot, POE- ½ cm. in diameter, medial aspect, right knee, POX- None. Shrapnel extracted underneath the skin and lateral to the wound #3.

4. Wound, gunshot, POE- 1 cm. in diameter, posterior aspect, lower 3^rd thigh, POX- None.

5. Multiple shrapnel wounds.

“LEFT LOWER EXTREMITY-

1. Wound, gunshot, POE- 2 ½ inches in diameter, posterior to the lateral mallelous with crack fracture of the tibia, directed medially, POX- 2 ½inches in diameter, medial portion.

2. Wound, gunshot, POE- ½ cm. in diameter, posterior aspect, middle 3^rd thigh, left, POX- None.

3. Wound, gunshot, POE- 1 cm. in diameter, popliteal fossa, directed medially anteriorly, POX- 3 ½ inches in diameter with maceration of the muscles.

“LEFT UPPER EXTREMITY-

1. Wound, gunshot, POE- 1.5 cm. in diameter, forearm, proximal 1/3, posterior aspect, directed medially, fracturing the upper end of the ulna, POX- None.

“BODY:

1. Abrasions, multiple at the left iliac region.

2. Wound, gunshot, POE- 2 inches in diameter, muscle deep, left buttock with maceration of muscles.

3. Wound, gunshot, POE- 1 cm. in diameter, right paravertebral area, level of the right scapular, directed slightly anteriorly upwards, POX- None.

4. Wound, gunshot, POE- 1.5 cm. in diameter, just below the left shoulder, directed medially slightly downwards and posteriorly penetrating thorasci cavity.

“INTERNAL FINDINGS:

Fracture of the 2^nd rib, penetrating the thorasic cavity and hitting the left upper lobe of the left lung with severe intrathorasic hemorrhage at the left hemithorax.

“ABDOMINAL CAVITY: No injury seen.

“CAUSE OF DEATH:

Shock secondary to severe external and intrathorasic hemorrhage due to multiple gunshot wounds.”[42]

Dr. Julito Osunero, Jr., chief of the Ramon Maza, Sr. Memorial Hospital, Sibalom, Antique, conducted an autopsy on the cadaver of Plaridel Sanchez, IV and found the following:

“FINDINGS:

“EXTERNAL FINDINGS:

1. Gunshot wound 1-inch diameter anterior portion right POE and POX posterior right 3 inches diameter.

2. Gunshot wound at the right cheek muscle depth.

3. Gunshot wound middle 3^rd clavicle POE inch diameter anterior and POX 2 inches diameter back shoulder middle clavicular line.

4. Gunshot wound POE 1 inch diameter left shoulder anterior portion and POX 2 inches diameter shoulder back.

5. Gunshot wound POE 1 inch volar surface POX palmar portion 2 inches and fracture of the metatarsal bone ring finger compound.

6. Avulsive wound POE 1 inch lateral and POX 3 inches medial portion left 4 inches long.

7. Gunshot wound POE 1 inch lateral and POX 3 inches medial portion left leg lower 3rd

8. Gunshot wound POE 1 inch diameter anterior portion POX 4 inches posterior portion POX 4 inches posterior portion right leg lower 3^rd.

9. Gunshot wound abdomen lower quadrant left anterior axillary line POE ½ inch diameter and POX back lumbar area left 1 inch diameter (POE-1-2-3 adjacent to each other and POX).

10. Gunshot wound right knee POE medial side 1 inch diameter POX popliteal area right 2 inches diameter.

11. Gunshot wound mid-scapular area right POE 1 inch diameter, POX 2 inches diameter axillary line at the level of the nipple right.

“INTERNAL FINDINGS:

“CONCLUSIONS:

1. Complete compound fracture humerus middle 3^rd right.

2. Compete compound fracture clavicle left middle 3^rd.

3. Complete compound fracture humerus upper 3^rd right.

4. Complete compound fracture ulna lower 3^rd left.

5. Complete fracture tibia-fibula lower 3^rd right.

6. Complete compound fracture distal and femur right.

7. Gunshot wound POE mid-scapular area back 1 inch diameter perforating thorasic cavity. Penetrating right lung lower lobe POX axillary line level of the right nipple.

8. Intra-thorasic hemorrhage one liter clotted and no-clotted blood.

“CAUSE OF DEATH:

1. Hemorrhage massive secondary to multiple gunshot wounds on the body.”[43]

The defense tried to establish that the group of Luna Sanchez ambushed them and they just returned fire in defense and retaliation against the open gun firing.

Accused Enrico Cabañero testified that in the evening of May 13, 1984, he was one of the escorts of Assemblyman Arturo F. Pacificador. There were others who were with them namely, Sgt. Dalmacio, Pat. Mingote, Cpl. Fullon, Pfc Vegafria, C2C Alipala, Marcos Yee (driver), Oscar Sejas (driver) and Jonathan Gallo. Around 7:00 in the evening, their group left the assemblyman’s residence in Lapaz, Hamtic, and proceeded to Sibalom, Antique where accused Pacificador talked to Sibalom Mayor Edbert J. Lotilla. At about 10:00 that same evening, they went to Brgy. Sido and fetched Elizabeth Cuipan.[44] They brought her to Mayor Lotilla’s house, after which, they proceeded to Belison.[45]

When they reached the single-lane Pangpang Bridge in Sibalom, Antique, they stopped and parked their vehicle by the roadside about eight (8) meters from the south end of the bridge. There was an oncoming vehicle from the north and their lead vehicle, the Nissan jeep, had entered about thirty (30) meters inside the bridge and it had backed out. As their lead vehicle was backing out, he saw Jonathan Gallo guiding the Nissan jeep while the vehicle from the north was blowing its horn and blinking its headlights. Upon seeing what was taking place, Cabañero alighted from the XLT Ford Fiera followed by Dalmacio. Before reaching the south end of the bridge, the vehicle from the north end opened fire at the Nissan jeep, instantly hitting Jonathan Gallo who was standing at the right side of the Nissan jeep. He and Dalmacio fired back.[46]

While the gun fire was on going, Cabñero rolled to the canal and shouted “evacuate the boss.” He changed his position to avoid being hit by the bullets coming from the vehicle from the north. While in that position, he continued firing, consuming four (4) short magazines and one (1) long magazine. When the firing stopped, he ran across the road to the left side of the street facing north and positioned himself near the bridge. There, he was fired upon. He returned fire and took cover. In the process, he fell into the canal where he found Marcos Yee, wounded. He lifted Yee’s head and shouted to Alipala and Vegafria for help. Alipala and Vegafria lifted Yee and placed him on the Nissan jeep. He then told Vegafria to drive the Nissan jeep and bring Yee to the hospital. They brought Yee to Angel Salazar Memorial General Hospital. Thereafter, they proceeded to Lapaz, Hamtic to look for Pacificador, but they were told that Pacificador was in Sibalom. At the municipal building of Sibalom, he saw Pacificador with Fullon and Mingote.[47]

Accused Reynaldo Alipala testified that at about 7:00 in the evening of May 13, 1984, he, Sgt. Cabañero, Sgt. Dalmacio, Cpl. Fullon, Pat. Mingote, Oscar Sejas, Marcos Yee, Jonathan Gallo and Vicente Vegafria escorted Assemblyman Pacificador to Brgy. Sido, Sibalom, Antique after coming from the assemblyman’s house in Lapaz, Hamtic. They used two (2) vehicles a Nissan and an XLT Ford Fiera.[48] On board the Nissan were Yee, the driver, Jonathan Gallo, Pfc. Vegafria and himself. While on board the XLT Ford Fiera were Oscar Sejas, the driver, Assemblyman Pacificador, Sgt. Cabañero, Sgt. Dalmacio, Cpl. Fullon and Pat. Mingote. After Pacificador talked with Mayor Lotilla and Elizabeth Cuipan, they proceeded to Belison.[49]

Upon reaching Pangpang Bridge in going to Belison, the vehicle coming from the north blinked its lights and honked while entering the bridge, forcing them to stop. Jonathan Gallo alighted and guided the Nissan in backing out of the bridge while the vehicle from the north continued following the Nissan. When the Nissan reached the road, they parked it on the left side facing the north about eight (8) meters away from the south end of the bridge. Thereafter, he and Vegafria alighted from the Nissan and stood behind it. When the vehicle from the north was near the Nissan, gunfire came from the vehicle from the north and Gallo fell to the ground. He and Vegafria returned fire using their armalite rifles directed against the vehicle which came from the north. While the firing was taking place, Gallo crawled to their direction and told them that he was hit. He and Vegafria helped Gallo take cover behind the Nissan after which they resumed firing.[50]

When the XLT Ford Fiera was about to leave, Alipala and Vegafria helped Gallo board the vehicle. When Vegafria opened the left door of the Nissan jeep, Yee fell out of the Nissan. Thereafter, Cabañero shouted that they should board Yee in the Nissan.[51] He, Cabañero, Dalmacio, Vegafria and Yee went to Angel Salazar Memorial General Hospital where they brought Yee for admission and treatment. Afterwards they proceeded to Lapaz, Hamtic and looked for Assemblyman Pacificador.[52]

The testimonies of the other accused Vicente Vegafria, Domingo Dalmacio, Lorenzo Mingote and Hector Fullon contained the same material points as what their other co-accused testified to before the court.

Sibalom Mayor Lotilla testified that at about 10:00 in the evening of May 13, 1984, while he was on his way home from Brgy. Sido, near the junction of the road of Villahermosa and San Juan, he heard bursts of gunfire. From the sound of it, he estimated that the gunfire came from the direction of the poblacion considering that he was then on the east of the poblacion. He immediately proceeded to his house. About five or ten minutes later, he received a word that assemblyman Pacificador was at the municipal building of Sibalom, Antique. When he arrived, the first person he met was the assemblyman who hugged and embraced him, thankful that he was saved from the ambush.[53]

P/Capt, Bonifacio E. Train, station commander of the Integrated National Police, San Jose Police Station, San Jose, Antique testified that at about 11:30 in the evening of May 13, 1984, accused Arturo F. Pacificador, accompanied by Fullon and Mingote, reported about the ambush in Pangpang Bridge, Sibalom, Antique.[54] Accused Pacificador requested that P/Capt. Train check on the condition of Jonathan Gallo who was brought for medical attention at the Ramon Maza Memorial Hospital.[55] Both Jonathan Gallo[56] and Marcos Yee[57] died.

On March 7, 1996, the trial court rendered a decision finding all the accused guilty beyond reasonable doubt of the crime charged. The dispositive portion of the decision reads:

“WHEREFORE, in view of the foregoing premises, the Court finds accused Domingo Dalmacio, Enrico Cabañero, Reynaldo Alipala, Vicente Vegafria, Hector Fullon, and Lorenzo Mingot guilty beyond reasonable doubt of the crime of multiple murder frustrated murder and hereby rendered judgment as follows:

“For Multiple Murder:

“Accused are hereby sentenced each to suffer seven (7) reclusion perpetua and to indemnify the heirs of the victims, jointly and solidarily, the following amounts:

a) 350,000.00 for the death of the seven (7) victims;

b) 37,000.00 as actual damages for victim Clemente Samulde;

c) P20,000.00 as actual damages for victim Rhium Sanchez;

d) P39,000.00 as actual damages for victim Plaridel Sanchez IV;

e) P35,000,00 as actual damages for victim Mamerto Zaldivar, Jr.;

f) P22,5 10.00 as actual damages for victim Armelito Tamboong; and

g) P70,000.00 for victim Aldrick Sanchez.

“For Frustrated Murder:

“Applying the Indeterminate Sentence Law and there being no mitigating circumstance to offset an aggravating circumstance, accused are hereby sentenced each to suffer an indeterminate prison term ranging from nine (9) years, four (4) months and one 91) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, and to indemnify, jointly and solidarily, the offended party in the amount of P60,000.00 for medicines and hospitalization.

“In the service of the sentence, unless otherwise disqualified pursuant to the provisions of Article 29 of the Revised Penal Code, as amended, accused are to be credited with all the preventive imprisonment they underwent.

“SO ORDERED.”[58]

The trial court found the testimonies of prosecution witnesses clear and profuse with details, heir combined narration showed how the accused planned and perpetrated the ambush against the group of Luna Sanchez in the evening of May 13, 1984 at Pangpang Bridge, Sibalom, Antique causing the death of seven (7) people from the group of Luna Sanchez, and two (2) from the group of the accused. The prosecution was able to substantiate and prove that it was the group of the accused who staged the ambush and started the shooting at Pangpang Bridge.

On May 17, 1996, accused Hector Fullon, Lorenzo Mingote, Reynaldo Alipala, Vicente Vegafria and Domingo Dalmacio filed a joint notice of appeal.[59] The case against accused Arturo F. Pacificador was tried separately.

At the time of the promulgation of the decision on March 7, 1996, accused Enrico Cabañero was dead. He died while in detention in San Jose, Antique.[60] Both his criminal and civil liability arising from the crime were extinguished by reason of his death.[61]

On March 6, 2000, accused-appellants filed their brief. Accused-appellants contend that the trial court erred in ruling that: (1) murder has been proved beyond reasonable doubt by the prosecution; (2) sufficient evidence existed to establish conspiracy; (3) the aggravating circumstances of treachery and evident premeditation were present. They reiterated that the group of Luna Sanchez was the first to fire against them and they merely fired back as an act of retaliation and in self-defense. Hence, they claim that it was erroneous for the trial court to find all of them guilty of multiple murder and frustrated murder and sentencing them accordingly.[62]

Accused-appellants anchor their defense on the theory that the group of the victims staged the ambush, and that they merely retaliated and fired back as an act of self-defense. In support of such theory, they presented evidence that all the deceased on the side of the prosecution were found positive for nitrates indicating that they fired guns, some of which are armalite rifles, others revolvers or pistols.

We find the submission untenable in light of the evidence extant on the record.

Generally, the burden of proof is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Having invoked self-defense as a justifying circumstance, however, accused-appellants are deemed to have admitted having killed the victims, and the burden of evidence is shifted on them to establish and prove their claim. To escape liability, they must show the concurrent presence of all the elements of self-defense, namely: (1) unlawful aggression on the part of the victims; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.[63]

Accused-appellants’ theory was demolished by prosecution’s evidence clearly showing that it was the group of accused-appellants that ambushed the group of Luna Sanchez at the south end portion of the single-lane Pangpang Bridge. Rodelo Aleries and Efren Rangos, both of whom had no reason to testify falsely against accused-appellants, categorically and positively stated in court that accused-appellants positioned themselves at the southern portion of the bridge, deployed themselves along the canal where they took cover, and waited for the arrival of the vehicle ridden by the victims. Except for the lone survivor of the attack, victim Luna Sanchez, all the other passengers died on the spot due to multiple gunshot wounds. Based on the number of bullet holes that pierced the Ford Tamaraw ridden by victims on the eve of May 13, 1984, which amounts to around 217 bullet holes,[64] it was highly improbable that the attack could have been initiated by the group of the victims, especially in light of the fact that the white Nissan vehicle used by accused-appellants merely had about 32 bullet holes.[65] This materially jibes with the way prosecution witnesses Rodelo Aleries and Efren Hangos described what happened on the night of the crime—that the group led by accused-appellants rained bullets on the Ford Tamaraw ridden by the victims.

Contrary to accused-appellants’ claim, only three (3) of the victims were armed with armalite rifles, namely: Clemente Samulde, Pat. Armelito Tamboong and Mamerto Zaldivar, Jr. Clemente and Armelito were armed because they were policemen of Pandan, Antique. The fact that some of the victims were found positive for nitrates does not conclusively show that they fired a gun. It is well settled in forensic evidence that nitrates are also found in substances other than gunpowder.[66] We noted that scientific experts concur in the view that the result of a paraffin test is not conclusive. While it can establish the presence of nitrates or nitrites on the hand, it does not always indubitably show that said nitrates or nitrites were caused by the discharge of firearm. The person tested may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco. The presence of nitrates, therefore, should be taken only as an indication of a possibility but not of infallibility that the person tested has fired a gun.[67]

Accused-appellant further questioned the trial court’s finding that the multiple killing was attended by the aggravating circumstances of conspiracy, treachery and evident premeditation.

Conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused, before, during, and after the commission of the crime, which, if all taken together, would reasonably be strong enough to show a community of criminal design.[68]

Prosecution witness Luna Sanchez, was present at the scene of the crime, he being one of the victims. He stated that during the election campaign trails on May 13, 1984, the group of Pacificador, escorted by the accused-appellants overtook their Ford Tamaraw vehicle several times, and the latter pointed their guns against them, making it very apparent that accused-appellants were tailing the group of Luna Sanchez. And ultimately, accused-appellants perpetrated their unlawful design against the group of Luna Sanchez when they strategically positioned themselves at the southern end of the single-lane Pangpang Bridge in Sibalom, Antique, parked their vehicle near the foot of the bridge making sure that the group of Luna Sanchez would not be able pass through and took cover in the nearby canal and waited for the arrival of their prey. The simultaneous acts of leaving, waiting for their victims to come out, tailing and firing at them continuously at close range, and escaping from the crime scene clearly establish a conspiracy among the malefactors.[69]

Hence, the trial court did not err when it ruled that conspiracy exists. Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as principals.[70]

With regard to the attendance of the qualifying circumstance of treachery, it is a basic precept that treachery must be proven as indubitably as the killing itself and it cannot be deduced from mere presumption or sheer speculation.[71]

The manner by which accused-appellants positioned themselves prior to the ambush demonstrated treachery. Not only were they armed with high-powered guns and greater in number than the group of Luna Sanchez; they took advantage of the stillness of the night and took cover at the nearby canal where they could not be seen, ensuring their own safety in case the group of Luna Sanchez acted in retaliation and fired back. Under Article 14, paragraph 16 of the Revised Penal Code, 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 specifically to insure its execution without risk to himself arising from the defense that the offended party might make.[72] The treacherous manner by which accused-appellants perpetrated the crime was shown not only by the sudden and unexpected attack upon the unsuspecting victims but also by the deliberate manner in which the attack was perpetrated.[73]

Furthermore, the trial court correctly ruled that the attack against the group of Luna Sanchez was evidently premeditated. From the evidence of the prosecution, accused-appellants knew beforehand the victims’ activities during the day .of May 13, 1984, such that on several occasion that day, accused-appellants seemed to be tailing the vehicle of the victims, at times overtaking them. At one instance, one of the men on board the accused-appellants’ vehicle pointed an armalite rifle in a threatening manner against the victims. The manner the victims were attacked at about 11:00 in the evening of the same day was evidently well planned and coordinated. Despite the lapse of several hours from the time accused-appellants became aware of the victims’ presence until the latter passed through the single-laned bridge, accused-appellants did not abandon their resolve to carry out their unlawful design. The essence of evident premeditation is that the execution of the criminal act is preceeded by cool thought and reflection upon the resolution to carry out criminal intent within a span of time sufficient to arrive at a calm judgment.[74]

As regards the claim that the testimony of prosecution witness Luna Sanchez was replete with inconsistencies and contradictions, hence should not be believed, we rule that minor inconsistencies, far from detracting from the veracity of the testimony, enhance the credibility of the witness, for they remove any suspicion that his testimony was contrived or rehearsed.[75] Moreover, the findings of the trial court on the credibility of testimony are generally not disturbed on appeal since “significant focus is held to lie on the deportment of, as well as the peculiar manner in which the declaration is made by the witness in open court.[76]

Lastly, accused-appellants question the imposition against them of multiple murder and frustrated murder considering that only one information has been filed. Invoking Article 48 of the Revised Penal, accused appellants claim that they should have been sentenced to suffer only one penalty for the graver offense, the same to be imposed in its maximum period.

This position is manifestly mistaken because of the inapplicability of Article 48, Revised Penal Code. As the multiple murder and frustrated murder resulted from the firing of several shots against the eight (8) victims, the crimes are not complex.[77] The injuries sustained by the victims were the consequences of volleys of gunshots.[78]

The conclusion is inescapable here, that each act of murder and frustrated murder should have been charged in separate informations because they are not covered by Article 48 of the Revised Penal Code, accused-appellants may no longer question, at this stage, the duplicitous character of the information, i.e., charging several separate offenses in one information, to wit: (1) seven (7) separate acts of murder; and (2) frustrated murder. This defect was deemed waived by their failure to raise it in a motion to quash before they pleaded to the information.[79]

Under Section 3, Rule 120 of the Rules of Court, when two or more offenses are charged in a single complaint or information and the accused fails to object to it before trial, the court may convict the accused of as many offenses as are charged and proved and impose on him the penalty for each of them.[80] Furthermore, Section 1, Rule 117 of the Rules of Court, states that the accused may move to quash the information “at any time before entering his plea.”

Accused-appellants did not, within the prescribed period, file such motion on the ground of duplicity. They are deemed to have waived the defect in the information. It is axiomatic that “when the accused fails, before arraignment, to move for the quashal of such information and goes to trial thereunder, he thereby waives the objection, and may be found guilty of as many offenses as those charged in the information and proved during the trial.”[81] Through accused-appellants’ failure to object to the duplicitous charges, they effectively waived their right against multiple offenses in a single information.

As the prosecution ably established the elements of murder in each of the seven (7) killings, as well as the elements of frustrated murder against Luna Sanchez, the trial court did not err in convicting accused appellants of seven (7) counts of murder and one (1) frustrated murder.

WHEREFORE, the Court hereby AFFIRMS in toto the March 7, 1996 decision of the Regional Trial Court, Branch 11, San Jose, Antique in Criminal Case No. 3174.

With costs.

SO ORDERED.

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

Puno, J., no part. Had participation in the case as Deputy Minister of Justice.

Kapunan, J., no part. Related to one of the parties.