THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARVIN MILLORA AND JUSTO MILLORA, ACCUSED-APPELLANTS.

This is a murder case.  According
to the prosecution, between ten and eleven o’clock in the evening of April 27,
1972, while Arnulfo Benitez, 25, Isabelo
Pagdanganan, Jessie Escaño,
Roger Rosario and others were conversing in front of the Virgen
Milagrosa Hospital, Bonifacio
Street, San Carlos City, Pangasinan, a red jeep
driven by Marvin Millora, 22, who was accompanied by
his brother Justo (Tito), 14, and by Feliciano Muñoz (Tony), 24, stopped near the group.  The three were members of the security squad
of City Mayor Cayabyab.  The headlights of the jeep were still on after
it had stopped.

The Millora brothers, grandnephews of
the city mayor (189 tsn) and Tony alighted from the
jeep.  Marvin was armed with a .45
caliber pistol, Tito with an armalite and Tony with a
carbine.  Benitez, an
engineering student, who had a misunderstanding with Marvin, sensed immediately
that the trio were going to liquidate him.

Impelled by the instinct of self-preservation, he ran and sought
refuge inside the hospital.  Tito and
Tony pursued him.  Marvin remained on the
street.  The companions of Benitez
dispersed.

Benitez did not stay long in the hospital.  Feeling trapped inside the hospital and
having probably noted that Tito and Tony had followed him there, Benitez (whose
residence was on the other side of the street across the hospital), emerged
from his hiding place and returned to Bonifacio Street, where Marvin,
as in an ambuscade, intercepted him by shooting him.

Benitez fell, then stood up and walked towards the gate of Pagdanganan’s residence a few meters away but Tony and
Tito, who were following him, shot him. 
He dropped to the ground.  Tito
got the balisong knife of Tony and stabbed Benitez
(No. 18, Exh. A).

The three assailants loaded Benitez in the jeep which proceeded
in the direction of Dagupan
City.  The next day the corpse of Benitez was found
on a ricefield in Barrio Duyong,
Calasiao, Pangasinan.  (See Exh.
E to G and 1 and 2.) The motive for the killing was revenge:  Benitez on a prior occasion had struck Marvin
on the head (Nos. 16 and 24, Exh. A).

The autopsy disclosed that Benitez had an entrance gunshot wound
on his left forehead and an exit gunshot wound on the right part of his
forehead.  His brain was out.  He had also an entrance gunshot wound near
the sternum (parasternal region) and an exit gunshot
wound in the thoracic region, a stab wound in the chest and multiple incised wounds on the cheek and neck (Exh.
D).

Understandably, the city
police did not file any charge against the three malefactors.  The case was investigated by the
Constabulary.  About four months after
the killing, Tony Muñoz was arrested.  He executed a confession (Exh.
A) wherein he implicated the Millora
brothers, the sons of lawyer Manuel B. Millora and Encarnacion Cayabyab, the city
mayor’s niece (189 tsn).

The city fiscal in an information dated February 26, 1973 charged Muñoz
and the Millora brothers with murder aggravated by
treachery, abuse of superiority and evident premeditation.  At the trial, the Millora
brothers pleaded the alibi that they were in their residence at Roxas Boulevard, San Carlos
City at the time the shooting occurred. 
That place is about one and a half kilometers from the scene of the
crime.  Marvin was allegedly playing
mahjong while Tito was collecting the tong and serving food to the players.

Tony Muñoz
testified that at the time the killing was perpetrated he was in the residence
of his cousin, Ricardo Muñoz, at Caloocan City.

The trial court rejected the alibis of the accused.  It convicted Marvin and Tony of murder
qualified by treachery and sentenced them to “life imprisonment” and
to pay solidarily to the heirs of Benitez an
indemnity of twelve thousand pesos (Criminal Case No. 0180, Circuit Criminal
Court at Dagupan
City).

Tito Millora (born on February 28, 1958) was only fourteen
years, one month and twenty-nine days old when the crime was committed.  The trial court found that he acted with
discernment.  It suspended his sentence
and ordered his commitment to the Vicente
Madrigal Rehabilitation
Center at Tanay,
Rizal until he reached the age of majority.  (Actually, Tito was already in the custody of
Brigadier General Tomas P. Diaz of Camp
Olivas by
reason of the decision dated November
26, 1973 in two other criminal cases.  P. 197, Record.  See People vs. Muñoz, 107 SCRA 313, 338).

Tony Muñoz did not appeal.  The Millora
brothers appealed.  Their father, as
counsel, contends that the trial court erred in holding that his sons were
positively identified by prosecution eyewitnesses, Isabelo
Pagdanganan, Felipe Canilang
and Manuel Magali, a councilor, notwithstanding their
contradictory testimonies, and in not acquitting the accused on the ground that
their guilt was not proven beyond reasonable doubt.

The Solicitor General in his brief meticulously refuted the arguments
of the appellants in support of their contentions.

Appellants assail the credibility of the said prosecution
eyewitnesses because they did not report immediately to the authorities what
they allegedly knew about the killing.  Canilang and Pagdanganan executed
their affidavits on October 27 and December
13, 1972 before Constabulary Sergeants M. Galsim
and Romeo B. Colet, respectively (Exh.
1 and 2).  They testified that their
statements were delayed because they were afraid of Marvin Millora
and his gang.

We find that the delay was satisfactorily explained and that it
did not destroy the probative value of their testimonies.  The fact is that the policemen did not bother
to make any thorough investigation of the case most pro­bably because they were
also afraid of the accused.  The
Constabulary officers stationed at Lingayen had to
undertake the investigation.

Appellants’ counsel mentions certain contradictions in Canilang’s testimony and some discrepancies in the
testimony of Pagdanganan when correlated with the tes­timony
of the chief of police.  Although there
may be inconsistencies in the testimonies of Canilang
and Pag­danganan on some details, it is,
nevertheless, undeniable that their testimonies consistently identify the
appellants and Muñoz as the killers of Benitez.  That is the main point and on that point their testimonies jibe and
are compa­tible and harmonious.  Their
affidavits are clear, convincing and credible.

Appellants impugn the testimony of Councilor Magali,
who had allegedly been convicted of estafa and who,
as a neighbor of Benitez, had taken an unusual interest in the case.  Magali testified
that shortly before the killing he met the Millora
brothers and Muñoz at the police out­post about fifty
meters away from the scene of the crime. 
That testimony is not a prevarication.

Appellants’ last contention is that their alibis generate
reasonable doubt as to their guilt. 
Considering that the two prosecution eyewitnesses indubitably identified
the Millora brothers and Muñoz
as the killers of Benitez, the unavoidable conclusion is that their alibis
appear to be brazen concoctions.

The trial court did not err in holding that the crime committed
is murder.  It is qualified by abuse of
superiority and not by treachery.  Abuse
of superior strength absorbs nocturnity.  The use of a motor vehicle is not aggravating
in this case even if a jeep was used in con­cealing the victim’s corpse.  The jeep was not used as a means for the
commission of the assassination.  Evident
premeditation is not aggravating.

The penalty imposable on Marvin Millora
is reclusion perpetua, or the medium
period of the penalty for murder.* As to
Tito Millora, inasmuch as he is now more than
twenty-four years old or no longer below sixteen years of age, he is not
entitled to a suspended sentence (People vs. Celes­para,
82 Phil. 399; People vs. Lingcuan and Mauti, 93 Phil. 9; People vs. Doria,
L-26188, Jan­uary 31, 1974, 55 SCRA 435).

Tito is entitled to the privileged mitigating circumstance of
minority or to a two-degree reduction of the penalty.  The maximum term of his penalty should be
taken from prision correccional
maximum to prision mayor medium.

WHEREFORE, the trial court’s judgment is affirmed as to
Marvin Millora with the slight modification that
instead of “life imprisonment”, the penalty imposed on him should be
designated as reclusion perpetua.  That is the penalty which carries with
it the corresponding accessory penalties.

The commitment of Tito Millora to a
correctional institution is set aside. 
He is sentenced to an indeter­minate penalty of six months of arresto mayor as minimum to four years, two
months and one day of prision correccional as maximum.  He is solidarily
liable for the payment to the heirs of Arnulfo
Benitez of the indemnity of P12,000.  Costs de oficio.

SO ORDERED.

Makasiar, De Castro, and Escolin, JJ., concur.

Concepcion, Jr., and Guerrero, JJ., no part.

Abad Santos, J., concur with the recommendation as therein and Tito Millora chanced be given executive clemency.

* Note that Marvin Millora and Muñoz are accused of
three murders in L-38968-70 now pending appeal in this Court.  The Millora
brothers and Muñoz are accused of murder in Criminal
Case No. 0172 (D-575), transferred to Pasay City CFI,
and also of illegal possession of firearms in Criminal Case No. D-3849.  The Millora brothers were convicted of homicide in Criminal
Case No. SCC-191, a case appealed to the Court of Appeals.  Tito and Tony were convicted of murder in People vs. Muñoz,
107 SCRA 313.