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SECOND DIVISION

G.R. No. L-38169 February 23, 1978

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. AURELIO SABATER, TRAN-QUILINO SABATER, VICTORINO CUENCA and ESTANITO CRISOSTOMO, accused. VICTORINO CUENCA and ESTANITO CRISOSTOMO alias TALIG accused-appellants.

AQUINO, J.:

This is a murder case. According to the evidence of the prosecution, at around eight o'clock in the evening of December 16, 1974 Maximo Papa, at twenty-five year old jeepney driver, and his seven-year old son, Maximo Papa, jr., residing at the corner of Rodriguez Avenue and General Lacuna Street, Bangkal, Makati Rizal, stepped out of their house in order to buy food.chanroblesvirtualawlibrarychanrobles virtual law library

Upon reaching the street, father and son encountered Aurelio Sabater, Tranquilino Sabaster, Victorino Cuenca and Estanito Crisostomo. The four were apparently waiting for Maximo Papa. They dragged him to a nearby warehouse of the Gilman Enterprises located at the corner of Rodriguez Avenue and General Vicente Lim Street. Thereafter, a gunshot was heard from the warehouse. Maximo Papa was seen running out of the warehouse followed by the four malefactors.chanroblesvirtualawlibrarychanrobles virtual law library

Maximo Papa fell on the ground near the street corner, Cuenca shot him four or five times, Cuenca and Aurelio Sabater fled in the direction of General Vicente Lim Street. Tranquilino Sabater and Estanito Crisostomo reentered the warehouse.chanroblesvirtualawlibrarychanrobles virtual law library

The Makati policeman brought Maximo's body to the morgue. The medico-legal officer of the National Bureau of Investigation (NBI), who conducted an autopsy, found that thje victim sustained six entrance gunshot wounds. The bullets injured his vital organs, such as the brain, heart and liver. The wounds caused his death (Exh. B).chanroblesvirtualawlibrarychanrobles virtual law library

The tragic occurence was witnessed by the victim's sons and wife. Mrs. Papa, who had been informed by a person named Pol, the owner of the jeepney being driven by her husband, that some persons were mad at her husband, had followed him at a distance after he had gone out of the house. She had some premonition that something might happen to him. She had known the accused for more than twelve years because they were her neighbors. Her statement was taken by the police on January 8, 1964 (should be 1965) (Exh. A).chanroblesvirtualawlibrarychanrobles virtual law library

On January 8, 1965 the police filed a complaint for murder against the four accused in the municipal court of Makati. They couild not be apprehended. It was only almost eight years after the killing or, on November 15, 1972, when Cuenca surrendered voluntarily. Two days later, Crisostomo also surrendered. On December 8, 1972 the fiscal filed an information for murder against Cuenca and Crisostomo in the Court of First Instance of Rizal, Pasig Branch. The Sabater brothers have not been arrested.chanroblesvirtualawlibrarychanrobles virtual law library

After trial, the lower court convicted Cuenca and Crisostomo of murder, sentenced each of them to "life imprisonment" and ordered them to indemnify the heirs of the victim in the sum of P15,000, The accused appealed to this Court.chanroblesvirtualawlibrarychanrobles virtual law library

They contend that the trial court erred in giving credence to the evidence for the prosecution and in not upholding their defense of alibi.chanroblesvirtualawlibrarychanrobles virtual law library

Cuenca, a 43-year old mechanic, residing at 3422 General Vicente Lim Street, Bangkal, Makati, testified that on December 16, 1964 (when the killing was penetrated he was in his house because he had to repair the jeepney of Poe Caballero, a resident of Las Pinas, Rizal. He said that he heard the gunshots. He learned that a driver named Susing was shot. Caballero corroborated Cuenca's testimony.chanroblesvirtualawlibrarychanrobles virtual law library

The alibi of Crisostomo, a 41-year old fisherman allegedly residing at Bay, Laguna, is that he knew nothing about the shooting of Papa because he was in his residence when Papa was shot. He admitted that Tranquilino Sabater and Aurelio Sabater are his mother's brothers. Cuenca testified that Crisostomo was his friend and that on some occasions the), were together (28-29 tsn, April 12, 1973). The defense through Cirilo Nonato, a 42-year old mason residing in Bangkal, tried to prove that Papa was shot by Aurelio Sabater. The trial court did not believe Nonato's testimony house he never reported to the police that Papa was shot by Aurelio Sabater Nonato admitted that he was a friend of the accused. Since Aurelio Sabater was killed later by Makati policemen, it would seem that the defense found it convenient to make a dead man responsible for the killing of Papa.chanroblesvirtualawlibrarychanrobles virtual law library

We hold that the appeal is devoid of merit. The appellants were positively Identified by the victim's widow and son who made separate sketches of the scene of the crime which was wenlighted (Exh. X and Y). Those sketches gave verisimilitude to their testimonies. The widow testified that she was paralyzed (natigilan) with fear when she saw the killing of her husband being consumated in her presence. She could not do anything. Moreover, the accused went into hiding for nearly eight years to avoid being prosecuted. Flight is an indicium of guilty.chanroblesvirtualawlibrarychanrobles virtual law library

The appellants admitted that they were unaware Of any reason why the victim's and son would frame them up. They argued that the wife was not an eyewitness because she testified that she was merely informed by a person named Pol that her husband was killed.chanroblesvirtualawlibrarychanrobles virtual law library

The fact is that the wife in her statement to the police three weeks after the killing declared that Pol had warned her that her husband might be liquidated and that she witnessed the killing because she followed her husband when the latter went out of their residence (Exh. A).chanroblesvirtualawlibrarychanrobles virtual law library

Appellants' assertion that Pol was their witness, Poe Caballero, is false because, as already stated, Pol was the victim's employer who had alerted Mrs. Papa to the contingency that her husband might be killed by his enemies (No. 8, Exh. A). Mrs. Papa told the police that five days before the shooting her husband had informed her that their neighbor. Tranquilino Sabater (the uncle of appellant Crisostomo), had harbored some resentment against Papa.chanroblesvirtualawlibrarychanrobles virtual law library

The appellants impugn the testimony of the victim's son on the ground that he was only seven news old when he witnessed the shooting, and that he testified eight years later or long after that extraordinary event. That contention is not valid.chanroblesvirtualawlibrarychanrobles virtual law library

The court in several cases had given credence to the testimony of children who had witnessed the of their parents. In the case of Maximo, Jr., the horrible manner in which his father was killed must have been indelibly engraved in his uncluttered memory so much so that the passage of time could not efface it. When he testified, he was already fifteen years old and a third year high school student. He was certainly a competent witness.chanroblesvirtualawlibrarychanrobles virtual law library

Cuenca's alibi is a glaringly feeble defense. His residence was only a short distance from the scene of the crime. Mrs. Papa's allegation in her statement that Cuenca after the shooting fled in the direction of General Vicente Lim Street could mean that he went home since his residence was located on that street.chanroblesvirtualawlibrarychanrobles virtual law library

The trial court did not err in disbelieving Crisostomo's alibi for being uncorroborated and because he was indubitably Identified by the victim's widow and son. His participation in the killing shows that he conspired with his uncles and with Cuenca, the gunwielder in encompassing Papa's death.chanroblesvirtualawlibrarychanrobles virtual law library

It may be noted that Cuenca, Crisostomo and the three Sabater brothers (including Epifanio) were charged with murder in the Court of First Instance of Rizal sala of Judge Pedro Navarro, in connection with the killing of Donato Sarte on January 5, 1965 (Exh. P, Cr Case No. 14374). (The killing in the instant case was perpetrated on December 16, 1964). That other case was dismissed provisionally because the prosecution witnesses had "disappeared" (Exh. P-1).chanroblesvirtualawlibrarychanrobles virtual law library

In the instant case, the Makati municipal court issued on January 9, 1965 a warrant for the arrest of the Sabater brothers, Cuenca and Crisostomo. Cuenca and Crisostomo surrendered voluntarily to the municipal judge on November 15 and 17, 1972, respectively, or more than seven years after the issuance of the warrant of arrest.chanroblesvirtualawlibrarychanrobles virtual law library

Under those circumstances, voluntary surrender to the authorities cannot be considered mitigating. The surrender was not spontaneous. The appellants surrendered because after having been fugitives from justice for more than seven years, they found it impossible to live in hostility and resistance to the authorities, martial law having been declared (See People vs. They wanted to avoid the fate of their comrade, Aurelio Sabater, who was killed in an encounter with Makati policemen.chanroblesvirtualawlibrarychanrobles virtual law library

Premeditation, treachery and abuse of superiority were alleged as qualifying circumstances in the information. Premeditation was not proven. But treachery and abuse of superiority attended the killing The four asants unexpectedly grabbed the unarmed victim and brought him to the warehouse so that they could kill him with impunity. They utilized their combined strength to overpower the helpless victim.chanroblesvirtualawlibrarychanrobles virtual law library

There being no generic mitigating and aggravating circumstances, the penalty of reclusion temporal maximum todeath for murder should be impose in its medium period ,which is reclusion perpertua Arts 'L4[15 and 161,64[l] and 248, Revised Penal Code.)chanrobles virtual law library

WHEREFORE, the lower court's judgment is affirmed with * the slight modification that the penalty on each of the *accused should be * termed decision perpetua and that they are *solidarity liable for the indemnity. Costs against the appellants.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

* Sakam 61 Phil. 27; 49-51 tsn April 12, 1973).