THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANTONIO GARCIA Y CABARSE ALIAS “TONY MANOK” AND REYNALDO ARVISO Y REBELLEZA ALIAS “RENE BISUGO”, DEFENDANTS-APPELLANTS.

This is an appeal from the decision of April 17, 1969 by the Circuit Criminal Court at Pasig, Rizal,
which found the accused guilty of murder and sentenced them to the death
penalty.

The legal verdict hinges on the testimony of the lone eyewitness
for the prosecution, Mrs. Corazon Dioquino Paterno, sister of the deceased, Apolonio
Dioquino, Jr. 
She testified that at the time of the incident, she resided at Ventanilla Street, Pasay City.  She lived at Pasay City
for about five months before moving to another dwelling at Timog Avenue, Quezon
City.  While
residing at Pasay City, she conceived a child and during this
period, it was not unusual for her, accompanied by her husband, to step out of
the house in the wee hours of the morning. 
They set out on these irregular walks about five times.

During her residence at Pasay City,
her brother Apolonio visited her family for about
twenty times.  Sometimes her brother
would stay instead at their parents’ house at Muntinlupa,
Rizal.  He
usually spent his weekends in his residence at Bo. Balubad,
Porac, Pampanga.  Apolonio and her
husband were very close to each other; whenever Apolonio
paid them a visit, he usually slept in the house and sought their help on
various problems.

Before the incident which gave rise to this case, Corazon’s husband informed her that he saw Apolonio engaged in a drinking spree with his gang in front
of an establishment known as Bill’s Place at M. de la
Cruz Street, Pasay
City.  In her sworn state­ment before the
Pasay City Police executed on November 3, 1968, Corazon surmised that her
husband must have been painting the town red (“nag good time”) in
that same place.  Upon learning this
information from her husband, Corazon obtained permission to leave the house at
3:00 a. m. so she could fetch her
brother.  At that time, she had not been
aware that Apolonio was in Pasay City;
she had been of the belief that he was with his family in Pampanga.  She went to fetch him because she wanted him
to escape the untoward influence of his gang. 
In explaining the rationale for her noctural
mission, she employed in her sworn statement the following language:  “Dahil itong si Junior
ay meron na kaming nabalitaan na naaakay ng
barkada niya sa paggawa ng
hindi mabuti.”

On her way, as she rounded the corner of P.
C. Santos Street, Corazon saw her brother fleeing
a group of about seven persons, including the two accused, Antonio Garcia and
Reynaldo Arviso. 
She recognized the two accused because they were former gang-mates of
her brother; in fact, she knew them before the incident by their aliases of
“Tony Manok” and “Rene Bisugo,” respectively.

Corazon saw that the chase was led by the two accused, with
Antonio carrying a long sharp instrument. 
Later, in the course of giving her sworn statement before the Pasay City police on November 3, 1968, Corazon positively
identified Antonio and Reynaldo, who were then at the office of the General
Investigation Section, Secret Service Division, Pasay
City Police Department.  She also stated
that if she saw the other members of the group again, perhaps she could
likewise identify them.  At the trial,
Corazon likewise pointed out the two accused. 
During the incident, she exerted efforts to identify the other group
members, taking care to conceal herself as she did so.  She heard a gunshot which caused her to seek
cover.

When she ventured to look from where she was hiding, about 20
meters away, she saw the group catch up with her brother and maltreat him.  Some beat him with pieces of wood, while
others boxed him.  Immediately afterwards,
the group scampered away in different directions.  Antonio was left behind.  He was sitting astride the prostrate figure
of Apolonio, stabbing the latter in the back with his
long knife.  Corazon was not able to
observe where Antonio later fled, for she could hardly bear to witness the
scene.

When Corazon mustered the courage to approach her brother, she
saw that he was bathed in a pool of his own blood.  The incident threw her in a state of nervous
confusion, and she resolved to report the incident to her younger sister, who
lived at Lakandula Street,
Pasay City.  Her sister in turn decided to break the news
to their father at Muntinlupa.

Subsequently, Corazon learned that the police authorities were
searching for her brother’s gangmates for having
killed him.  She also learned that the
suspects were in hiding.  On the same day
– October 19, 1968 –
accompanied by her family, she went at 2:00
p. m. to the Police Department to inquire about her brother’s corpse.  They were directed to the Funeraria
Popular, where an autopsy was held. 
Sometime later, on November 1,
1968, she transferred residence to Quezon City.

Dr. Mariano Cueva, Jr. testified that
he conducted a post-mortem examination on the cadaver of the decedent Apolonio, and that he pre­pared the corresponding Necropsy
Report.  Dr. Cueva
found that the deceased suffered 22 stab wounds in the different portions of
his hips; in the front portion of the chest and neck; in the back portion of
the torso; and in the right hand.  He
testified that the wounds sustained by the deceased brought about a massive hemmorhage which caused death.  He also testified that it is possible that
the instrument marked as Exhibit “B” could have been used in
inflicting the multiple stab wounds sustained by the deceased, except the stab
wounds on the neck.

Both the accused took refuge in the defense of alibi.  Antonio Garcia claimed that at that time of
the incident – starting with the chase and ending with the victim’s death – in
the morning of October 19, 1968,
he was at a place called Pacita’s Canteen which
adjoins Bill’s Place at M. de la Cruz Street.  Reynaldo Arviso
claimed that in the evening of the preceding night (October 18, 1968) he went on a drinking spree
with his friends at Pacita’s Canteen.  He went home at 10:30 p. m. and slept up to 7:00
a. m. of October 19, 1968.  From 7:00
a. m. of that day, he performed his duties as a bus conductor by calling for
passengers near Pacita’s Canteen.

The trial court pinpointed the issue as revolving around the
identity of the persons who participated in the killing of the deceased.  It banked on the testimony of the witness,
Corazon Dioquino, who positively identified the
accused as participants in the attack.  Noting that “the defense did not even
attempt to present any evil motive on the part of the witness,” the court
concluded that “the two accused took part in the perpetuation of the crime
charged.” It gave short shrift to the defense of alibi presented by the
two accused, noting that, by their own admission, the two accused were
residents of the vicinity of the crime.

In respect of the circumstances attending the crime it said:

But considering the aggravating circumstances of nighttime;
superior strength; and treachery, which three aggravating circumstances had
been sufficiently established by the prosecution, the same cannot be offset by
said voluntary surrender to a person in authority or his agent, plus the
uncontested fact that deceased, Apolonio Dioquino, Jr. suffered no less than 22 stab wounds,
convincing evidence of the apparent criminal perversity of the accused, the
court, therefore, has no alternative but to impose the supreme penalty.

And rendered judgment as follows:

“IN VIEW OF THE FOREGOING, the Court finds the accused,
Antonio Garcia y
Cabarse and Reynaldo Arviso
y Rebelleza, GUILTY, beyond reasonable doubt, of the
crime of Murder under Article 248, of the
Revised Penal Code, as charged under Article 248, of the Revised Penal Code, as
charged in the information, and considering the aggravating circumstances surrounding
the commission of the crime, each one of them is hereby sentenced to suffer the
penalty of DEATH.

The two accused are further ordered to indemnify the heirs of the
deceased, Apolonio Dioquino,
Jr. in the amount of TWELVE THOUSAND (P12,000.00)
PESOS, jointly and severally; and to pay their proportionate share of the
costs.”

In their Brief, the accused contended that the lower court
erred:  in not considering nighttime and
superior strength as absorbed in treachery: 
in finding nighttime as an aggravating circumstance despite absolute
absence of evidence that nighttime was purposely sought to insure the execution
of the crime; in finding superior strength as an aggravating circumstance
despite absence of evidence to sustain such a finding; in finding treachery as
an aggravating circumstance despite absence of evidence to that effect; in not
stating the qualifying circumstance of the alleged crime; in holding that the
accused Reynaldo Arviso stabbed and hit the victim
when there is no evidence as to the
participation of the said accused Arviso in the
execution of the alleged crime; and in failing to consider the material
inconsistencies, prejudice and other circumstances in the uncorroborated
testimony of the only eyewitness, rendering said testimony not worthy of
belief.

The assignment of errors by the accused is anchored on their
attempt to discredit the lone eyewitness for the pro­secution, a function
which, if successfully undertaken, would totally obliterate the nexus between
the accused and the crime.  The defense
vigorously maintained that the testimony of the only eyewitness is a
fabrication, and that she was in fact absent
from the scene which she described in both her sworn statement and in
her testimony at the trial.

The defense asserted that Corazon Dioquino’s
testimony was riddled by material inconsistencies.  The defense sought to capitalize on the
discrepancy of a sketch made by Corazon and the sketch made by Pasay City Electrical Engineer Jaime Arriola.  Corazon’s sketch
shows Juan Sumulong Elementary School
to be right in front of P. C. Santos Street;
while Arriola’s sketch shows that the school is about
135 meters from the corner of the street. 
The defense contended that the discrepancy was a deliberate falsehood on
the part of the witness.

Corazon testified that she was near the corner of P.
C. Santos Street when she saw her brother under
chase in front of the school, and that she met the group in front of the school
in a matter of five seconds, more or less. 
The defense assailed her
testimony on this point as incredible on the ground that the distance between
the point where she saw her brother being chased, up
to the point where she met them, is 135 meters, and no human being can cover
that distance in five seconds.  More­over,
Corazon testified that she was 20 meters away from the place where the accused
caught up with her brother.  Again, the
defense criticized her testimony in this respect by pointing out that the true distance is 175 meters.

The defense insisted that Corazon’s
sketch of the locale of the crime (Exhibit “1”) constitutes “the
high point of falsity of her
testimony.” The defense sought to substantiate this claim by arguing that
from her sketch, it appears that she never crossed paths with her brother or
his pursuers.  The witness testified that
she saw her brother at the point which is four to five meters from the corner
of P. C. Santos Street.  Yet she also testified that she saw the
incident from 20 meters.  The witness
claimed she hid after hearing the shot at a point which is 170 meters from the
scene of the crime.  The defense argued
that she could not have covered the distance in such a short time, and that
this belies her claim that she was only 20 meters from the scene of the
crime.  The defense pointed out that Arriola’s sketch (Exhibit “2”) shows that the
school is 135 meters from the scene of the crime, and the point where the
witness claimed she viewed the crime is 170 meters from the scene of the crime,
thus giving the lie to her claim that she was 20 meters away.

The alleged inconsistencies in Corazon’s
testimony – which the defense makes much of – are not irreconcilable with the
physical facts.  At the outset, it should
not be overlooked that Corazon was testifying as an eyewitness to the traumatic
incident by which her brother met a violent death at the hands of a mob.  Naturally, Corazon can not be expected to
deliver a testimony which passes microscopic scrutiny and scrupulous armchair
analysis of the facts, conducted under circumstances far removed from the
turbulence and emotional color of the event as it actually transpired.  Al contrario,
if Corazon’s testimony were meticulously accurate
with respect to distance covered and the time taken to negotiate it, an
impartial observer would wonder whether such exactitude were not the product of
previous rehearsal, if not of fabrication. 
In times of stress, the human mind is frequently overpowered by the ebb
and flow of emotions in turmoil; and it is only judicious to take into
consideration the natural mani­festations of human conduct, when the physical
senses are subdued by the psychological state of the individual.

Corazon was a resident of Pasay City
for only about five months.  She
testified that she is not familiar with the streets along M.
de la Cruz Street. 
Moreover, Corazon did not categorically testify that she covered the
distance of 135 meters in five seconds. 
More accurately, she testified that she walked for a period of from five
to ten seconds, more or less.  Put in
this way, the period was sufficient to allow her to negotiate the
distance.  Moreover, Corazon did not stay
rooted to one spot while the incident was taking place, but surreptitiously
edged her way up to Magtibay
Street, which is closer to the place of the
killing.

The defense also claims that the delay which Corazon allowed to
transpire, before reporting the crime to the authorities and giving her sworn
statement (on November 3, 1968),
is indicative of fabrication.  The
killing took place before dawn of October
19, 1968.  In the afternoon
of the same day, Corazon and her family went to the Police Department to
inquire about the remains of her brother. 
Corazon already knew that the police were taking steps to round up the
killers.  She incurred no fault in
waiting until the culprits were arrested before confronting them and giving her
statement.  It would have been the better
part of legal procedure if she had given her statement earlier; but since she
was only a 22-year old housekeeper at that time, she can not be held to a
higher standard of discretion.

The defense further contends that the failure to present Corazon’s husband in court indicates that Corazon was not
actually at the scene of the crime at 3:00
o’clock in the morning.  If
the defense felt that the husband had a contribution to make in the cause of
truth, there was nothing which prevented them from compelling his process by
summons.  This they failed to do; and
their omission should not be taken to reflect adversely on the prosecution, who
evidently believed that the husband’s testimony was unnecessary.

Finally, the defense claims that it was unnatural for Corazon,
after viewing her brother’s body, to proceed to her sister’s house one
kilometer away, instead of returning to her own house, which was just a block
or so away.  It is not unnatural for a
witness to a gruesome event, to choose to confer with a person bound to her by
ties of consanguinity, even if such a conference necessitates that she traverse
a longer distance.  The exercise of
judgment, on the spot, should not be gauged by reason applied in hindsight with
a metrical yardstick.

The next major burden which the defense undertook to assume was
to contend that the accused Reynaldo Arviso is
innocent because there is no evidence as to his participation in the execution
of the crime.  It is claimed that there
is absolute absence of evidence to show that Reynaldo was a direct participant
and that the only evidence against him is that he was seen pursuing the victim.  However, the finding of Reynaldo’s guilt
stems, not from his direct participation in the criminal execution, but from
his participation in the cons­piracy to kill the deceased.  His participation in the conspiracy is
supported by Corazon’s testimony that he and Antonio
were the leaders of the pack following closely at the heels of the victim.

It is well established that conspiracy may be inferred from the
acts of the accused themselves, when such acts point to a joint purpose and
design.  A concerted assault upon the
victim by the defendants may indicate conspiracy.  (PP v. Monroy
& Idica, L-11177, Oct. 30, 1958, 104 Phil. 759).  Conspiracy exists if, at the time of the
commission of the offense, the defendants had the same criminal purpose and
were united in its execution.  (PP v. Datu Dima
Binahasing, L-4837, April 28, 1956, 98 Phil. 902).  Those who are members of the band of
malefactors by which a murder is committed and are present at the time and
place of the commission of the crime, thus contributing by their presence to
augment the power of the band and to aid in the successful realization of the
crime, are guilty as principals even if they took no part in the material act
of killing the deceased.  (US v. Abelinde, No. 945, Dec. 10, 1902,
1 Phil. 568; People v. Carunungan, L-13283, Sept. 30,
1960, 109 Phil. 534).  To
establish conspiracy, it is not essential that there be proof as to previous
agreement to commit a crime.  It is
sufficient that the malefactors have acted in concert, pursuant to the same
objective.  (PP v. San
Luis, L-2365, May 29, 1950, 86 Phil. 485).

Conspiracy need not be established by direct evidence of acts
charged, but may and generally must be proven by a number of indefinite acts,
conditions and circumstances which vary according to the purpose to be
accomplished.  If it be proved that two
or more persons aimed by their acts towards accomplishment of the same unlawful
object, each doing a part so that their acts, though apparently independent,
were in fact connected and cooperative, indicating a closeness of personal
association and concurrence of sentiment, a conspiracy maybe inferred though no
actual meeting among them to concert is proven (PP v. Colman, L-6652-54, Feb.
28, 1958, 103 Phil. 6).  A conspiracy may
be entered into after the commencement of overt acts leading to the
consummation of the crime.  (PP v. Barredo, L-2728, Dec. 29, 1950, 87
Phil. 800).  Conspiracy implies
concert of design and not participation in every detail of execution.  (PP v. Carbonel,
L-24177, March 15, 1926, 48 Phil. 868; PP v. Danan, L-1766,
March 31, 1949, 83 Phil. 252).

When a group of seven men, more or less, give chase to a single
unarmed individual running for his life, and they overtake him and inflict
wounds on his body by means of shooting, stabbing, and hitting with pieces of wood,
there is conspiracy to kill; and it does not detract from their status as
conspirators that there is no evidence of previous agreement, it being
sufficient that their wills have concurred and they labored to achieve the same
end.

The defense submits that the failure of the lower court to
specify the qualifying circumstance in the crime of murder is violative of the Constitution and the Rules of Court.  We find no such infirmity.  Since the principle concerned is
“readily understood from the facts, the conclusion and the penalty
imposed, an express specification of the statute or exposition of the law is
not necessary.” (People vs. Silo, L-7916, May 25, 1956,
99 Phil. 216).  In the absence of
a specification by the trial court, the defense surmised that the qualifying
circumstance in this case is evident premeditation; but the defense argued that evident premeditation was not
shown.  We agree.  Under normal conditions, conspiracy generally
presupposes premeditation.  But in the
case of implied conspiracy, evident premeditation may not be appreciated, in
the absence of proof as to how and when the plan to kill the victim was hatched
or what time elapsed before it was carried out, so that it can not be
determined if the accused had “sufficient time between its inception and
its fulfillment dispassionately to consider and accept the consequences.”
There should be a showing that the accused had the opportunity for reflection
and persisted in executing his criminal design. 
(PP v. Custodio, L-7442, October 24, 1955, 97
Phil. 698; PP v. Mendoza and Sinu-ag, L-4146 and
L-4147, March 28, 1952, 91 Phil. 58; PP v. Yturiaga,
L-2816, May 31, 1950, 86 Phil. 534; PP
v. Lozada, No. 46998, Nov. 16, 1940, 70 Phil. 525; PP
v. Upao Moro, L-6771, May 28, 1957, 101 Phil. 1226;
PP v. Sakam, No. 41566, Dec. 7, 1934, 61 Phil. 27; PP
v. Peralta, L-19069, Oct. 29, 1968, 25 SCRA 759; PP v. Pareja,
L-21937, Nov. 29, 1969, 30 SCRA 693).

Even in the absence of evident premeditation, the crime of murder
in this case might still be qualified by treachery, which is alleged in the
information.  But the defense argued that treachery was not present.  We are so convinced.  It is an elementary axiom that treachery can
in no way be presumed but must be fully proven. 
(US v. Asilo, No. 1957, Jan. 30, 1905, 4 Phil.
175; US v. Arciga, No. 1129, April 6, 1903, 2 Phil.
110; PP v. Durante, No. 31101, Aug. 23, 1929, 53
Phil. 363; PP v. Pelago, L-24884, Aug. 31, 1968, 24
SCRA 1027).  Where the manner of the
attack was not proven, the defendant should be given the benefit of the doubt,
and the crime should be considered homicide only.  (Carpio,
83 Phil. 509; Amansec, 80 Phil. 424).

In People vs. Metran (L-4205,
July 27, 1951, 89 Phil. 543), the aggravating circumstances of aid of armed
men, abuse of superiority, and nocturnity, were
considered as constituting treachery, which qualified the crime as murder,
since there was no direct evidence as to the manner of the attack.  However, in this case we believe that the
correct qualifying circumstance is not treachery, but abuse of
superiority.  Here we are confronted with
a helpless victim killed by assailants superior to him in arms and in
numbers.  But the attack was not sudden nor unexpected, and the element of surprise was
lacking.  The victim could have made a
defense; hence, the assault involved some risk to the assailants.  There being no showing when the intent to
kill was formed, it can not be said that treachery has been proven.  We believe the correct rule is found in People
vs. Proceso Bustos (No.
17763, July 23, 1923, 45 Phil. 9), where alevosia
was not appreciated because it was deemed included in abuse of superiority.

We find that abuse of superiority attended the offense, follow­ing
a long line of cases which made this finding on parallel facts.  Our jurisprudence is exemplified by the
holding that where four persons attacked an unarmed victim but there was no
proof as to how the attack commenced and treachery was not proven, the fact
that there were four assailants would constitute abuse of superiority.  (People v. Lasada, No. 6742, Jan. 26, 1912, 21 Phil. 287; US v. Bañagale, No. 7870, Jan. 10, 1913, 24 Phil. 69).  However, the information does not allege the
qualifying circumstance of abuse of superiority; hence, this circumstance can
only be treated as generic aggravating.  (People v. Acusar, L-1798, Dec. 29, 1948,
82 Phil. 490; People v. Beje, L-8245, July 19, 1956,
99 Phil. 1052; People v. Bautista, L-23303, May 20, 1969, 28 SCRA 184).

The offense took place at 3:00
o’clock in the morning.  It
may therefore be said that it was committed at night, which covers the period
from sunset to sunrise, according to the New Civil Code, Article 13.  Is this basis for finding that nocturnity is aggravating? 
The Revised Penal Code, Article 14, provides that it is an aggravating
circumstance when the crime is committed in the nighttime, whenever nocturnity may facilitate the commission of the
offense.  There are two tests for nocturnity as an aggravating circumstance:  the objective test, under which nocturnity is aggra­vating because it facilitates the
commission of the offense; and the subjective test, under which nocturnity is aggravating because it was purposely sought
by the offender.  These two tests should
be applied in the alternative.

In this case, the subjective test is not passed because there is
no showing that the accused purposely sought the cover of night­time.  Next, we proceed and apply the objective
test, to determine whether nocturnity facilitated the
killing of the victim.  A group of men
were engaged in a drinking spree, in the course of which one of them fled,
chased by seven others.  The criminal
assault on the victim at 3:00 a.m. was
invited by nocturnal cover, which handicapped the view of eyewitnesses and
encouraged impunity by persuading the malefactors that it would be difficult to
determine their identity because of the darkness and the relative scarcity of
people in the streets.  These
circumstances combine to pass the objective test, and we find that nocturnity is aggravating because it facilitated the
commission of the offense.  Nocturnity enticed those with the lust to kill to follow
their impulses with the false courage born out of the belief that they could
not be readily iden­tified.

The information alleges that the crime of murder was attended by
the two qualifying circumstances of treachery and evident premeditation.  Neither of these qualifying circumstances was
proved; hence, the killing can not be qualified into murder, and constitutes instead
the crime of homicide, which is punished by reclusion temporal.  It is not controverted
that the accused voluntarily surrendered to the authorities; they are therefore
entitled to the mitigating circumstance of voluntary surrender.  This lone mitigating circumstance, offset by
the two generic aggravating circumstances of abuse of superiority and nocturnity, produces the result that in the crime of
homicide, one aggravating circumstance remains.

WHEREFORE, the judgment of the court a quo
is hereby modified in that the two accused, Antonio Garcia y Cabarse and Reynaldo Arviso y Rebelleza, are sentenced to undergo an in­determinate
imprisonment of 10 years as minimum to 18 years as maximum, but in all other
respects affirmed.

SO ORDERED.

Fernando, C.J., Barredo, Makasiar, Antonio, Aquino, Concepcion, Jr., Santos, Fernandez, Guerrero, De Castro, and Melencio-Herrera,
JJ., concur.

Teehankee, J., took no part.