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THIRD DIVISION

G.R. No. L-32751 December 21, 1988

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. OMEDE ORONGAN and AQUILINO LOPEZ, Accused-Appellants.

FERNAN, C.J.:

This is another sad spectacle of a family feud which ended tragically. For the killing of Marcelino Arnado, 53 years old, farmer and a resident of Canlim-ao, Tabuelan, Cebu on August 22, 1969, accused-appellants Diomede (Diomedes) Orongan and Aquilino Lopez, with two other John Does, were charged with the crime of murder in an information filed with the Criminal Circuit Court, 14th Judicial District of Cebu (CCC-XIV-No. 251). Said information alleged:

That on or about the 22nd day of August 1969, in the municipality of Tabuelan, province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, together with two other John Does who will be separately prosecuted later on as soon as their Identities are known, with treachery and known premeditation, conspiring and confederating together and armed with sharp bladed weapons, taking advantage of their superior strength and the darkness of the night and waiting for the deceased Marcelino Amado in ambush in a secluded place, did then and there wilfully, criminally, unlawfully and feloniously attack, assault and stab Marcelino Arnado, inflicting upon the latter several multiple wounds on the different parts of his body and as a result thereof the said Marcelino Amado died instantly.chanroblesvirtualawlibrary chanrobles virtual law library

All contrary to law, and with the qualifying circumstance of alevosia and the aggravating circumstances of known premeditation, superior strength and nighttime. ¹chanrobles virtual law library

Upon arraignment on February 2, 1970, both accused, assisted by their counsel de oficio, pleaded not guilty. ² The lower court, however, after trial found them guilty as charged and accordingly rendered judgment on September 30, 1970, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Aquilino Lopez and Diomedes Orongan guilty beyond reasonable doubt of the crime of murder charged in the information punishable under Article 248 of the Revised Penal Code and there being no aggravating nor mitigating circumstance present, both accused DIOMEDES ORONGAN and AQUILINO LOPEZ are hereby sentenced to suffer the penalty of RECLUSION PERPETUA, to pay the heirs of the deceased Marcelino Amado jointly and severally the sum of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. Let the accused be credited with their preventive imprisonment in the service of their sentence as provided by law. ³chanrobles virtual law library

The case is now before us on appeal.chanroblesvirtualawlibrary chanrobles virtual law library

The evidence for the prosecution, as culled from the testimony of principal eyewitness Rosario Damos Arnado, shows that in the morning of August 22, 1969, the deceased Marcelino Amado and his wife, Rosario Damos Arnado, 47 years old, went to the office of District State Prosecutor Benecio L. Arzadon at the Capitol Building in Cebu City to discuss the possibility of an amicable settlement of a robbery in band case which Marcelino had filed against his brothers, sisters and nephews, and which included Aquilino Lopez, his parents, as well as the parents of Diomede Orongan. ⁴chanrobles virtual law library

The robbery case originated from a land dispute between Marcelino, on the one hand, and his mother, brothers, sisters and nephews, on the other. Although the trial court resolved the dispute in favor of his relatives, Marcelino refused to vacate and surrender the ownership and possession of the land. The strained relations further worsened when Marcelino filed the robbery case against his relatives, accusing them of harvesting the corn which he claimed he had planted on the land in question. All the accused, with the exception of Aquilino Lopez and his mother, Rosario Amado Lopez, (who successfully evaded arrest) were apprehended and detained at the provincial jail.chanroblesvirtualawlibrary chanrobles virtual law library

Marcelino and his wife waited for the defendants' relatives and the latter's lawyer, Atty. Gregorio Flores, from eight in the morning until noon at Fiscal Arzadons office but none of them showed up. At twelve o'clock, the Amado spouses were told by Fiscal Arzadon to go home. ⁵chanrobles virtual law library

From the Capitol Building, the Amados went to Lapu-lapu City to fetch Rosario's niece, Luzviminda Balingcasag. From there they all proceeded to Mandaue City. At two in the afternoon, they boarded a J.D. truck (No. 222) bound for Bogo. ⁶ chanrobles virtual law library

There was a brief stopover in the town of Carmen where the passengers took their merienda. While they were in Carmen, they spotted Diomede Orongan who was inside a Palma truck which had arrived ahead of them. Before they left Carmen at past three in the afternoon, the Palma truck had already driven off. ⁷chanrobles virtual law library

Upon reaching Tinobdan (popularly known as Goyong's Place) at around five that afternoon, Marcelino, Rosario and Luzminda got off the truck. From there they had to walk to their place of residence in the mountains of Quimod, Canlim-ao, Tabuelan which is about seven (7) kilometers following a narrow footpath. ⁸chanrobles virtual law library

The trio stayed for sometime in Goyong's Place to buy some commodities. Rosario went to a dress shop to get the dress she ordered to be made. It was almost sunset when they resumed their long trek home. ⁹chanrobles virtual law library

At Cabulihan, they stopped by a small store where Marcelino drank tuba and chatted briefly with a friend. They left Cabulihan just as the radio announced that it was seven in the evening. They walked single file, with Marcelino ahead, followed by his niece Luzminda and then Rosario at the rear. ¹⁰chanrobles virtual law library

At about eight in the evening, they reached the land of Emiliano Ruiz in Quimod, with the familiar well where they usually drew water and the bamboo grove, with its poles bent over the footpath due to a recent typhoon. The surrounding cornfield had been cleared during the harvest. As the trio were about to pass under the bamboo branches, barely a kilometer away from their residence, Marcelino stopped dead on his tracks and shouted: "Hoy, there is a man!" Whereupon, he backstepped, poised to retreat, but he was suddenly struck on his left forearm and the basket he was carrying fell to the ground. Luzminda fled. ¹¹chanrobles virtual law library

After Marcelino was hit, one of his attackers, later Identified by Rosario as Aquilino Lopez, turned to Rosario and hit her twice on her left forearm. The other accused, Diomede Orongan clubbed her twice on the head. She fell down on her knees. Wounded and reeling from her head blows, Rosario crouched under the bamboo bush. Fearful for her life and utterly defenseless, she remained there, despite the pained cries for help of her beleaguered husband . ¹²chanrobles virtual law library

It was a moonlit night. From her vantage point, about five (5) meters away, Rosario saw in the open space four (4) men, naked from the waist up and armed with pieces of wood and hunting knives, repeatedly club and stab her husband. She could only recognize the two of them: accused Aquilino Lopez and Diomede Orongan, as the other two wore masks. It was Diomede Orongan who had a hunting knife. As Marcelino pitched forward, Diomede held him by the hair and then made a downward stabbing motion toward the base of the victim's neck . ¹³chanrobles virtual law library

After Marcelino collapsed on the ground, almost lifeless, Rosario heard Aquilino say: "Come on Diomede, let us find her and kill her" (referring to Rosario), to which Diomede answered" Come on, let us run away, because there are people who heard us." Soon thereafter, the four assailants left. ¹⁴chanrobles virtual law library

Coming out of the bamboo thicket, Rosario immediately ran to her husband who was lying prostrate and bleeding on the cornfield. Held in her arms, Marcelino told Rosario that he was going to die and that he recognized two of his attackers: "I have clearly seen Aquilino Lopez and Diomede Orongan and the others I do not know." Then he died. ¹⁵chanrobles virtual law library

Early the next morning, Rosario reported the incident to the police authorities of Tabuelan. She informed the chief of police that she and her husband were able to recognize Aquilino Lopez and Diomede Orongan as two of their attackers. She saw Diomede Orongan who had earlier surrendered to a Tabuelan policeman. ¹⁶chanrobles virtual law library

On August 24, 1969 at nine-thirty in the morning, an autopsy examination of the victim's bloated cadaver was conducted by Dr. Macario L. Cortes, the municipal health officer of Tabuelan His necropsy report disclosed multiple lacerated and stab wounds at different parts of the body including the head and the extremities of the deceased. Death was due to "(i)rreversible shock cause(d) by severe hemorrhage secondary to multiple stab wounds hitting the carotid artery, (r)ight lung and other blood vessel." ¹⁷chanrobles virtual law library

Rosario was also examined and then treated for the minor injuries she sustained during the assault. The medical certificate issued by Dr. Cortes dated August 23, 1969 showed a lacerated wound near the left ear and a superficial abrasion near the right elbow. ¹⁸ chanrobles virtual law library

The other principal prosecution witness, Luzminda Balingcasag, 19 years old, married, housekeeper, recounted that in the evening of August 22, 1969, she was with the victim, Marcelino, and his wife, Rosario. They were on their way home and were trudging along the narrow footpath leading to Canlim-ao. The moon was directly overhead. ¹⁹ As they were passing underneath the drooping branches of the bamboo trees, Marcelino suddenly shouted at her: "You run because somebody is here." Then she saw a man pursuing Marcelino. She did not recognize the man. Gripped with fear, she started to run away. She heard Marcelino crying for help. ²⁰chanrobles virtual law library

Luzminda was more than half a kilometer away from the bamboo grove when she was accosted by the accused Diomede Orongan at the top of the hill ("tagaytay"). Orongan told her: "Me, just go home, you have nothing to do with this, I have killed Marcelino." ²¹chanrobles virtual law library

In her testimony in court, Luzminda admitted that she did not witness the actual killing of Marcelino. If Orongan had not overtaken her, she would not have known that Marcelino had been slain and that Orongan was responsible therefor. ²²chanrobles virtual law library

Providing the motive for the fatal attack, the prosecution stressed the unrefuted fact that there was deep enmity between Marcelino (with his wife) and his close relatives which included the accused-appellants. As earlier mentioned, the dispute was rooted in a piece of farmland being claimed by both sides. Although the court had declared Marcelino's mother to be the rightful owner thereof, Marcelino adamantly refused to relinquish possession and insisted on staying on the land and living off its produce to the total exclusion of his relatives. Contempt charges were filed against Marcelino but to no avail. Recriminations after recriminations were hurled back and forth until things came to a head when Marcelino filed the criminal case for robbery in band against his brothers, sisters and nephews. Before the case could be tried however, Marcelino was killed in the evening of August 22, 1969 by four persons. Only two had been Identified. They were believed to be accused-appellants Diomede Orongan and Aquilino Lopez . ²³chanrobles virtual law library

Accused Aquilino Lopez, farmer, married, 24 years of age, denied any involvement in the killing of Marcelino and alleged that he was being accused as one of the killers because the widow Rosario "hated" him. Aquilino interposed the defense of alibi. He claimed that since August 21, 1969, he and his mother, Rosario Amado Lopez (Marcelino's sister), were in Cebu City trying to raise money for their bailbond. A warrant had been issued for their arrest in connection with the aforementioned robbery case. ²⁴chanrobles virtual law library

In the afternoon of August 22, 1969, he and his mother, accompanied by their lawyer, Atty. Gregorio Flores, went to the residence of Congressman Sybico to seek his assistance in securing bail. His mother was able to talk with the solon only at nine in the evening since there were many visitors. From there they proceeded to the house of Henry Espina and spent the night there. Aquilino could not remember the name of the street where the Espina house was located. The next morning, they went to the house of Mrs. Urbana Maglasang, also at the same street, where they remained until they returned to Canlim-ao on August 26, 1969. ²⁵chanrobles virtual law library

Diomede Orongan, also a farmer, married, 20 years old, admitted having killed Marcelino but claimed having done it alone and in self-defense. On August 22,1969, he went to Cebu City to visit his parents who were in prison. He left the city at two in the afternoon and took a Palma truck for Canlim-ao, Tabuelan. He disembarked at Goyong's Place. Taking the same footpath used by Marcelino, his wife Rosario and Luzminda, Diomede overtook the trio at Quimod. It was about seven in the evening. ²⁶chanrobles virtual law library

He said "Good evening" to Marcelino who was walking ahead of the other two. Instead of returning his greeting, Marcelino retorted: "What now, your father and mother is (sic) in jail, do you want to be included in this incident?" As Marcelino uttered those words in a raised voice, he lunged at Diomede and made a motion as if he were pulling something from his waist. Diomede saw what appeared to be an "arm." Afraid that he was going to be hurt by Marcelino, who was bigger and taller and whom he knew was good in karate and arnis, Diomede instantaneously retaliated, pulled out his hunting knife and stabbed Marcelino on the breast. Believing that his uncle wanted to kill him, Diomede stabbed him three more times until the deceased fell to the ground. Thereafter Diomede walked towards Tabuelan to give himself up to the barrio captain. The following morning, accompanied by the official, Diomede surrendered himself to the police chief. He also turned over his hunting knife. On August 25, 1969 he executed an affidavit claiming full responsibility for the death of Marcelino. ²⁷chanrobles virtual law library

In their brief, the accused-appellants contend inter alia that the trial court erred in relying on the sole testimony of the widow Rosario; in not giving credence to Aquilino's alibi in spite of the fact that the Identification of Aquilino is weak and unreliable; in not considering the mitigating circumstances of voluntary surrender and incomplete self-defense in favor of Diomede Orongan; and, in holding that the killing of Marcelino was accompanied by treachery.chanroblesvirtualawlibrary chanrobles virtual law library

The alibi of Aquilino is not worthy of belief Although it is corroborated by the testimonies of his mother, Rosario Amado Lopez, and Henry Espina, stating that Aquilino and his mother passed the night of August 22, 1969 in Espina's house at J.M. Cuenco Avenue in Cebu City, such declarations are inherently weak. Rosario Lopez is naturally biased in favor of her son while Espina, a senior law student, is equally prejudiced because both mother and son are his clients. Furthermore, the young Espina is the son of Bernardo Espina, the chief of police of Tabuelan who also happened to be a defense witness in the robbery case between Marcelino and his kin. ²⁸ Alibi is at best "a weak defense and easy of fabrication especially between parents and children, relatives and even those not so related." ²⁹chanrobles virtual law library

More importantly, the alibi of Aquilino Lopez cannot overcome the dying declaration of the victim and the damaging testimony of his widow.chanroblesvirtualawlibrary chanrobles virtual law library

Appellants have sought to impeach the testimony of the widow Rosario, the lone prosecution eyewitness to the merciless killing of Marcelino, by alleging conflicting facts and inconsistencies in her statements. They contend that having admitted that she hid herself beneath the bending bamboo branches, she could not have possibly seen the entire incident and discerned the faces of the killers.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court had closely observed the manner and demeanor of Rosario Damos Amado in the course of her testimony. While inconsistencies and flaws had been noted during the long period she was on the witness stand, the same did not detract from her categorical assertions that she was a helpless spectator to the brutal execution of her husband from its inception until the malefactors left, and that two of her husband's killers were the appellants.chanroblesvirtualawlibrary chanrobles virtual law library

The widow Rosario could not have been mistaken in her Identification of the appellants. As correctly observed by the court a quo:

Both accused are the nephews of her husband, known to her and are neighbors in the barrio. The widow, therefore, is not only familiar with their physical built, size and features, but also with their voices. Besides, the fact that the accused were addressed by their names during the conversation, Aquilino Lopez was recognized by the widow when the former hit her forearm. He was again seen and recognized by the widow when he, together with Diomedes Orongan and the two other persons ganged up, attacked and stabbed her husband five meters away from her in an open space under the light of the moon. Aside from this, when she held the deceased in her arms, he told her that he clearly recognized Aquilino Lopez and Diomedes Orongan as two of the four persons that attacked him after which he died. ³⁰chanrobles virtual law library

Moreover, after attacking Marcelino, the assailants tarried for a while, thus giving Rosario ample opportunity to recognize them. It was only when they heard voices of people approaching that they left the scene of the crime.chanroblesvirtualawlibrary chanrobles virtual law library

The claim of Orongan that he alone killed Marcelino is belied not only by the contrary declarations of the widow but also by the physical condition of the victim's body. According to the autopsy report, the victim sustained a total of nine wounds, some caused by sharp-bladed instruments, and the others by blunt instruments. Surely, Orongan could not have inflicted all those wounds by himself when he claimed that he was armed only with a hunting knife and that he stabbed Marcelino only thrice on the breast. Since he denied having stabbed Marcelino on the chin, face, shoulder, parietal region, forearm and near the spinal column at the back, the inescapable conclusion is that Orongan was not the lone assassin. As the Court noted in one case: "Numerous wounds in the body of the victim indicate plurality of assailants." ³¹chanrobles virtual law library

That he killed Marcelino in self-defense, or even in incomplete defense of self, is equally of doubtful veracity. Standing alone and without corroboration, his version is unconvincing, especially when coupled with the fact that Orongan, who was admittedly smaller than the victim, sustained no injury at all on his body while his opponent suffered nine wounds. The onus of proving self-defense is placed upon the accused and in this regard he failed miserably.chanroblesvirtualawlibrary chanrobles virtual law library

We hold that the guilt of the accused-appellants has been established to a degree of moral certainty. The trial court did not err in relying on the eyewitness account of the widow Rosario to show beyond any doubt appellants' direct participation and complicity in the death of Marcelino.chanroblesvirtualawlibrary chanrobles virtual law library

The crime is murder qualified by treachery. The sudden and unexpected stabbing and clubbing of Marcelino, who was unarmed, insured the killing without any risk to the assailants. It rendered the victim completely unable to defend himself. ³²chanrobles virtual law library

Abuse of superior strength, nighttime and band, although present, are deemed absorbed by alevosia.chanroblesvirtualawlibrary chanrobles virtual law library

Conspiracy has been demonstrated by the concerted action of the attackers who lay in wait at a secluded place for the unsuspecting victim to pass by. The presence of multiple stab wounds on the victim's body, both in front and at the back, indicates that there were several killers. They took turns in inflicting mortal injuries upon Marcelino. They also left together after accomplishing their homicidal mission. Such sequence of overt acts individually performed by the appellants and their unidentified companions shows their unity of purpose at the time of the offense and unity in its execution. We held in People v. Bravante, ³³ that such circumstance is indicative of a conspiracy. As co-conspirators, the act of one is the act of all.chanroblesvirtualawlibrary chanrobles virtual law library

The lower court correctly found that there was no evident premeditation despite the known feud between the protagonists. No clear proof was adduced by the prosecution as to the time the appellants had resolved to liquidate Marcelino to show without question that their action was the result of deliberate thought, reflection and persistence. ³⁴chanrobles virtual law library

The lower court however erred in not considering the extenuating circumstance of voluntary surrender in favor of appellant Diomede Orongan. The evidence discloses that immediately after the fatal stabbing of Marcelino, Orongan surrendered himself to the barrio captain and subsequently to the Tabuelan police authorities. ³⁵chanrobles virtual law library

In sum, the judgment of conviction is affirmed but the penalty must be modified in view of the abolition of capital punishment under the 1987 Constitution.chanroblesvirtualawlibrary chanrobles virtual law library

The penalty for murder is now reclusion temporal in its maximum period [i.e. seventeen (17) years, four (4) months and one (1) day to twenty (20) years] to reclusion perpetua. As to appellant Aquilino Lopez, in the absence of any modifying circumstances, the penalty is imposable in its medium period, or from eighteen (18) years, eight (81 months and one (1) day to twenty (20) years. ³⁶chanrobles virtual law library

Applying the Indeterminate Sentence Law, the penalty next lower to that prescribed by the Penal Code for murder ranges from prision mayor maximum as minimum to reclusion temporal medium as maximum, or from ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. ³⁷chanrobles virtual law library

As to Diomede Orongan, the penalty is reduced further to the minimum period by reason of the mitigating circumstance of voluntary surrender. ³⁸chanrobles virtual law library

WHEREFORE, the judgment appealed from is affirmed with modification in the respective penalties for the two accused-appellants. Aquilino Lopez is hereby sentenced to an indeterminate penalty of from twelve (12) years and one (1) day of prision mayor as minimum to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum. Diomede Orongan is sentenced to an indeterminate penalty of from ten (10) years 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. Both accused-appellants are ordered to pay solidarily the increased indemnity of P 30,000 to the victim's heirs. They should be given full credit for their preventive imprisonment. Costs de oficio.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.