G.R. No. L-26103. January 17, 1968
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ELMER ESTRADA, DEFENDANT-APPELLANT.
ANGELES, J.:
Convicted of murder for the killing of Alexander Almendras and sentenced to suffer an indeterminate prison
term of from twelve years and one day of reclusion temporal as minimum
to twenty years of reclusion temporal as maximum, to indemnify
the heirs of the offended party in the sum of three thousand pesos (P3,000.00),
and to pay one-sixth of the costs, Elmer Estrada, nicknamed Baby, appealed from
the decision to the Court of Appeals. Said court, however, found that the trial
court had erroneously applied the provision of the Indeterminate Sentence Law
in the imposition of the penalty which, in its opinion, should be reclusion
perpetua, accordingly certified the case to
this Tribunal pursuant to Section 17 of the Judiciary Act of 1948, as
amended. Hence, this review.
A few meters outside the door of the Insular Cafe at the corner
of Juan Luna and Martires Streets, Cebu City, at about 11:00 o’clock on the night of November
27, 1963, a flash of gunfire was seen from the direction of three men standing
in front of Alexander Almendras, nicknamed
Sonny. Almendras
reeled. More sounds of gunshots
followed; and Almendras fell to the ground. Informed of the shooting, members of the Cebu City Police Department rushed to the scene and when
they arrived at the Insular Cafe some minutes thereafter, they found the fallen
body of the victim being carried by a young man named Jorge Cordero who, upon
seeing them spontaneously exclaimed:
“Sonny gipusil ni
Baby Estrada, gukda ninyo.”[1]
Finding that the victim was already dead, the police officers immediately
pursued the gunwielders who have fled from the
place. One of them who stayed behind
ordered Cordero to put down the victim back on the pavement, then entered the
Insular Cafe and notified the Homicide Section of their Department by phone. Soon, the policemen who chased the killers
returned empty-handed. They decided to
proceed to the house of Baby Estrada and keep watch over the place.
When members of the Homicide Section of the Police Department
came to the scene still later, they found the lifeless body of Sonny Almendras into whose left breast a bullet had plowed 21
centimeters deep, still sprawled on the ground, lying on its belly. They took the body thereafter to the Cosmopolitan
Funeral Parlor at Junquera
Street where it was autopsied by Dr. Venerando Pilapil, Medical
Officer of the Cebu City Health Department at about 12:45 o’clock that same evening. His post-mortem findings described the wound
that snuffed out the life of Alexander Almendras as
follows:
“Chest:
1. Wound, gunshot, entrance, oval in shape,
diameter, widest 0.7 cm. shortest 0.6 cm., with contusion collar more on the
left side of the wound, located 3.5 cm. to the left of the anterior median line
at the level of the 2nd left rib, 5 cm. below the left clavicle, penetrating
the skin, subcutaneous tissue, muscles of the chest, 2nd left rib near its sternal attachment, perforating the ascending aorta,
penetrating upper lobe of the right lung, 3rd right intercostal
muscles posteriorly, muscles, of the chest, right
scapula up to the muscles posteriorly to the right
scapula where one slug was recovered marked VP at the tip and AA at the bottom,
directed posteriorly, medially to the right
side. x x x.”
For the death of Alexander Almendras,
Elmer Estrada alias Baby and Alberto Tejero were
later apprehended, and, together with a certain Yuli,
John Doe, Richard Doe, and Thomas Doe who have remained at large, were charged
before the Court of First Instance of Cebu with the
crime of murder, committed with conspiracy and the qualifying circumstance of
evident premeditation, and attended by the aggravating circumstances of night
time, grave abuse of superior strength and treachery both Elmer Estrada and
Alberto Tejero pleaded not guilty to the charge. They interposed a defense of alibi.
In the course of the trial, after the prosecution had rested its
case, the defense moved for the dismissal of the case on the ground of
insufficiency of evidence. The trial
court, after listening to the argument of the defense counsel and the private
prosecutor, denied the motion and ordered the defense to present its evidence.
After the trial, the court promulgated its decision on February 17, 1964. It acquitted Alberto Tejero
on reasonable doubt, and found Elmer Estrada guilty of the offense charged.
After serving notice of his intention to appeal from the decision
to the Court of Appeals, Baby Estrada filed a petition with the trial court
praying that order issue setting the amount of bail for his provisional liberty
pending appeal which the court granted on February 25, 1964.
He was ordered released on February
29, 1964, after posting an appeal bond of P20,000.00. But a few days thereafter, Elmer (Baby)
Estrada was rearrested by members of the Cebu City
Police Department when he was found illegally possessing a 45-Cal. pistol with
magazine and six rounds of ammunition tucked to his waist, and upon complaint
filed by the Assistant City Fiscal of Cebu, the trial
court ordered Elmer Estrada reincarcerated. His appeal bond was cancelled by the lower
court on March 3, 1964.
Elmer Estrada then prosecuted his appeal to the Court of
Appeals. For failure of the Solicitor
General to submit the People’s brief after several extensions granted by the
court, the case was ordered submitted for decision solely on appellant’s
brief. A subsequent motion for bail
Filed by the appellant on February 28,
1966, was denied by the said court on April 22, 1966.
And, as aforestated, the Court of Appeals upon
review of the records of the case, was of the opinion that the penalty
imposable is reclusion perpetua and resolved
to certify the case to this Court.
A reexamination of the evidence revealed the contrast between the
theory of the prosecution and that of the appellant.
This is the theory of the prosecution as testified to by the
witnesses for the State:
Months before November
27, 1963, bad blood already existed between appellant Elmer
Estrada, nicknamed Baby, and the deceased Alexander Almendras,
nicknamed Sonny. Thus, on June 8, 1963, at about 3:00 o’clock a.m., Sonny Almendras
chased Baby Estrada and stabbed him in the back and stomach at the Elite Restaurant,
Cebu City. The wound was serious and could have produced
death were it not for the timely medical treatment. It required an emergency operation and Estrada
had to be confined at the Cebu
City Hospital
for more than a month. Sometime in
September of the same year, the same part of his body had to be operated on
again because his abdomen was still weak.
He was finally released from the hospital in the latter part of
October. But for all these sufferings,
Baby Estrada did not file any complaint against Sonny Almendras. He showed clear indications that he would
want to even up the score with Sonny Almendras. He gave warning to a former friend, Mike
Arriba, to stop going with Almendras or he will meet
an accident. On another occasion late in
October 1963, Baby Estrada and his companions threatened Sonny with death near
the Center Theatre, Cebu
City, Almendras
ran and sought protection from Patrolman Gingoyon. When Baby Estrada and his friends saw Almendras coming with the policeman, they hoarded a
taxi. Before they left, Alberto Tejero who was with Estrada at the time, said to Almendras: “You
are about to die; you are lucky this evening because Presio,
is with you.”
At about 10:00 o’clock
on the night of November 27, 1963,
Alexander Almendras and his friends, Carding Manceo, Luis Topacio, Fred Sugatan and Maximino Perez
arrived at the Insular Cafe. There, they
met Jorge Cordero with two companions, Jesse Navarro and a certain Doy. At the invitation
of Almendras, the two groups joined and occupied one
table. They started drinking
liquor. At about 11:00 o’clock, Jorge Cordero received information from Virgilio Malig-on, a security
guard at the Insular Cafe, that the enemies of Sonny Almendras
had just passed by in a taxi. Cordero relayed
the warning to Almendras who was then in the comfort
room, but Sonny dismissed the warning, saying that “anyway they will not
come inside the cafe.” Cordero returned to the table. He gave the same information to Luis Topacio who, upon receipt of the news started looking, for Almendras. Just then
people standing near the door of the Insular Cafe were running inside. Somebody shouted that Baby was there and
Sonny should watch out. Luis Topacio who was looking for Almendras
to warn him went outside the door and there he saw Sonny standing before
Alberto Tejero, Elmer (Baby) Estrada and a certain
Fred. He heard Sonay
Almendras remarked:
“Let us talk this over, Bert.” Gunfire was the immediate answer
from the direction of the three men.
Jorge Cordero who followed Almendras was at
the door of the cafe at that precise moment.
He also saw the flash and heard the sound of the gunshot from the
persons in front of Almendras, one of whom he
recognized to be baby Estrada. There
were two other men standing a little farther away. More shots followed from the same direction. Almendras reeled, then fell to the ground face
downward. Luis Topacio
hid behind the wall, while Jorge Cordero turned back inside the cafe and sought
shelter behind the door. The assailants
then fled in a taxi together. When
Cordero came out of the door after the gunwielders
were gone, he saw the body of Alexander Almendras on
the ground. He came to his rescue, and
Sonny told him he was hit. He tried to
carry the body of Almendras with the aid of other
people, with the intention of taking him to a hospital, but before he could do
so, members of the Cebu City Police Department
arrived at the scene. He hied them to pursue Baby Estrada who shot Almendras and fled in a taxi, whereupon, the policemen
immediately gave chase. A policeman who
stayed behind examined the body of Sonny Almendras,
and seeing him dead, notified the Homicide Section of the Department. They came later with a medical officer who
took the lifeless body of Almendras to the
Cosmopolitan Funeral Parlor and conducted its autopsy. Meanwhile, the police officers who pursued
the killers soon returned without bagging the object of their manhunt. Led by Detective Ricardo Ybañez,
they proceeded to the house of Baby Estrada at Junquera Street, just opposite
the Cosmopolitan Funeral Parlor where the body of Alexander Almendras
had been taken. Detective Ortiz went up
the Estrada home to see if Baby was there.
He was met by Emma, Estradats sister, at the
door of the house who told him, that Baby Estrada was not there, although she
knew that she had just met him coming up the house just a few minutes before.
Earlier that evening, Cresencio Laput was driving his taxi near the waterfront of Cebu City. A passenger hailed him, and four persons
boarded his taxi. One of them ordered
him to follow a Snow White taxi ahead of them.
The Snow White taxi stopped near the Esso
gasoline station at the corner of Juan Luna and Martires
Streets, while the other taxi carrying the four passengers proceeded a little
farther, beyond the Insular Cafe on the other side of the same street and
stopped. Three of the four passengers
got out of the taxi, while the fourth stayed and remained seated beside the
driver. In about five minutes, the
driver heard, two shots from the direction of the Insular Cafe, and when he
looked back towards the place, he saw a taxi drove away from the scene. He started his car to leave the place, but
the fellow sitting beside him, held his steering wheel and told him to wait for
his companions. Soon the three
passengers returned with two others; they boarded the taxi and ordered the
driver to proceed. At the corner of Sikatuna and Bonifacio Streets,
five of the passengers disembarked. The
sixth remained inside the taxi and ordered the driver to proceed to Sanciangco Street, where the
taxi bumped the car of a certain Mr. Bonpua as the
taxi was going at a high speed from the time it left the Insular Cafe. At this moment, the last passenger got out of
the taxi and hurriedly walked away without paying.
For the defense of herein appellant, the following evidence was
presented to establish alibi:
As a result of the stab wound Sonny Almendras
inflicted on Baby Estrada on June 8, 1963,
the latter was operated on and confined in the Cebu City Hospital
for more than a month. The operation had
to be repeated in September and he was confined again until his final release therefrom on October
21, 1963. But even during
his confinement, hospital personnel received phone calls urging them to release
Baby Estrada immediately so that Sonny Almendras
could finish him. Because of such
threats, Baby Estrada had since then feared Sonny Almendras. Thus, after his discharge from the hospital on
October 21, 1963, Baby stayed in his house and avoided night clubs for fear
that he might meet Almendras and be killed by
him. But on November 26, 1963, a friend of his informed him
that Sonny was in Manila. He was happy because he could go out and enjoy
himself. So, on the night of the killing
of Almendras on November 27, 1963, he went out. He tried to borrow money from a friend upon
the security of his Corsican jacket but failed.
He tried another place where he met a friend named Claudio. The latter informed Baby that a certain Cesar
was coming with a bottle of wine. Cesar
did come a little while after with the wine, and Baby Estrada and he proceeded
to Emmanuel’s Store across the street.
Claudio stayed behind and refused to join them. At the place, Cipriano
Gabica saw them and the three of them partook of the
wine. Later, they transferred to Amado’s place nearby where a natural brother of Estrada
also joined in their drinking. The group
dispersed before 10:00 o’clock. Baby Estrada invited his natural brother to
join him to the Insular Cafe after that, but the latter did not go with
him. So, Baby Estrada had to go
alone. He rode a rig and stopped at the
corner of Juan Luna and Lapulapu Streets, about 30
meters from the Insular Cafe. He walked
towards the place. Just as he was about
to reach the Insular Cafe across the street, he saw Sonny Almendras
with Bill Malig-on at the door of, said night
club. He was scared and immediately
turned back. He walked some distance
along Lapu lapu Street
before he boarded a taxi which took him back to the place where he and his
friends drank liquor earlier. His
friends were no longer there at the time, so he went straight home. At the stairs of the house, he met his
sister, Emma whom he greeted. Baby went
up the house end slept, while Emma went down to buy some typewriting
paper. That was about 10:30 o’clock in the evening. About 10:35
or 10:40, while Emma was still downs
airs talking with the store owner, two men with sidearms
came along. They spoke to two other
young men standing near the, store – they were looking for Baby Estrada. The armed men then continued their way. One of the young men near the store to whom
they spoke commented before they left:
“Just slow, Bay, we might be hit.” Hearing that the armed men
were looking for her brother, Emma went upstairs and closed the door. She looked inside the room and saw her
brother in bed. She looked out of the
window and watched. Around 10 minutes later, or at about 11:00 o’clock in the evening, a jeep parked beside their
house and several men jumped out of it.
They surrounded their house. One,
of them came up the house. She met him
at the door. The man was looking for her
brother. Fearing that he may harm Baby
Estrada, she lied, and told the man that Baby was not there. The man left after that. About midnight,
she noticed that people were in a sort of commotion in the road gathered at the
Cosmopolitan Funeral Parlor across their house.
She knew something was wrong for it was usual that people flock at the
Cosmopolitan Parlor when incidents happen.
She did not sleep that evening.
She watched the men who were, around their house. She recognized one of them to be Carding Ybañez, a detective.
At about 3:00 a.m., the men
around their house left.
In the morning, Emma went down to buy bread. She heard people talking that Alexander Almendras was shot the night before and was taken to the
Cosmopolitan Funeral Parlor. She learned
from these people also that it was her brother who shot Sonny Almendras. So, upon
her return to the house, she informed her mother who was in the kitchen, about
the news she heard, and together they entered the room of her brother, Baby Estrada,
and woke him up. They asked Baby if it
was true that he was the one who shot Sonny Almendras
at the Insular Cafe the night before, and Baby gave indication of being
surprised. He admitted having been to
the insular Cafe earlier that evening, but went straight home when he saw Sonny
Almendras outside the door of the cafe because he was
afraid of him. As a matter of fact, he
was seen by his sister, Emma, at the stairs of the house at about past 10:00 o’clock that evening when he came
home. The assurance given by Baby
Estrada that he had nothing to do with the killing of Almendras
the night before, notwithstanding, the family worried because it had been
broadcasted over the radio and it was already the talk of the town that Baby
Estrada shot Sonny, so they decided to seek protection for Baby from the
Philippine Constabulary. Baby’s mother
went to Opon, Cebu
and sought the help of Estrada’s uncle, and when they returned to the house,
they (mother and uncle of Baby) were already accompanied by two PC
soldiers. Baby Estrada was later taken
to the PC headquarters. There, Baby Estrada
requested for a paraffin test. The PC
called the offices of the NBI and the CIS but said agencies answered that their
technicians were not present, so the PC told him that it was not
necessary. Soon Estrada was fetched by a
police officer from the PC headquarters.
His lawyer accompanied him there too.
Once again, he requested for a paraffin test, and again he was told that
their technicians were not around.
Regarding the incident at the Elite Restaurant on June 8, 1963,
where Sonny Almendras stabbed Baby Estrada in the
back and in the stomach, end for which Estrada was operated on and confined in
the hospital for more than a month, it was explained that Estrada tried and
wanted to file a criminal complaint against Sonny Almendras
but had no witnesses. One of the
eyewitnesses who saw the attack on Estrada was also later on shot by Almendras and hospitalized.
The police also informed him that no waitress of the Elite Restaurant
was willing to testify against Almeldras, hence, the
non-filing of any complaint against Almendras.
From the foregoing conflicting theories, the trial court deduced
that Baby Estrada and his companions conspired to kill Alexander Alrendras; that they resolved to kill Almendras
on a vendetta – to vindicate the wrong committed on Estrada by Almendras when the latter stabbed the former at the Elite
Restaurant on June 8, 1963; and that the attending circumstances of the case
convincingly show evident premeditation on the part of the conspirators. It, therefore, convicted herein appellant,
Baby Estrada, of the crime of murder for the killing of Almendras.
Appellant first assails the finding of the lower court that
conspiracy existed between him and his co-accused in the killing of Alexander Almendras. In
support of his stand, he argues as follows:
“It was fully established that a certain Fred was the one who
fired the fatal shot (Decision, p. 20; Tsn-La Paz, p.
51) that felled Almendras. That, standing alone makes Fred liable for
his acts, for
‘In the absence of a previous plan or agreement to commit a crime,
the criminal responsibility arising from different acts directed against one
and the same person is individual and not collective, and each of the
participants is liable only for the acts committed by himself.’ [U. S.
vs. Magcomot, 13 Phil. 386-]
For the killing, only Fred and Fred alone
is solely responsible.”
We are more inclined to reject this theory. The evidence, it is true, shows that the first
flash of gunfire was seen in front of Sonny Almendras,
and the persons standing in front of him at the time were Alberto Tejero, Baby Estrada, and a certain Fred,[2]
but the evidence is not clear as to who among them fired the fatal shot.[3]
According to the eyewitnesses, Fred was standing in front of Sonny Almendras at a point situated in an oblique direction from
Sonny’s right, while Alberto Tejero stood in an
oblique direction from Sonny’s left with Baby Estrada standing behind Alberto Tejero.[4]
Sonny was heard addressing Alberto Tejero: “Let us talk this over, Bert.”[5]
Immediately after the remark, Fred fired “Bang Bang,”[6]
and Sonny Almendras reeled and fell to the ground
after the shot.[7]
These facts do not justify an inference, however, that the bullet that killed Almendras came from the direction of Fred, for according to
the postmortem findings of the medical officer who autopsied the body of Almendras, the entrance of the wound in the chest of the
victim was abut 3.5 cm. left of the center of the body at the level of the
2nd left rib, penetrating the anterior muscles of the chest and the 2nd left
rib, perforating the ascending aorta of the heart, penetrating the right lung
and the posterior muscles of the chest to the right scapula where the slug was
recovered directed posteriorly to the right side,[8]
tending to show that the bullet came from an oblique direction towards Sonny’s
left. We do not lose sight of the fact,
also established, that the first shot came soon after the address of Almendras “Let us talk this over, Bert” to
Alberto Tejero,[9]
who was standing in front of Almendras in an oblique
direction from the left of the latter.[10]
The logical conclusion under the circumstances would therefore be this: either the first shot came from the direction
of Alberto Tejero or Baby Estrada who was behind him
if that first shot was really, the one that felled Almendras,
or, it, was one of the other shots that followed the first shot,[11]
coming from the same direction where Bert Tejero and
Baby Estrada stood, which fatally hit Almendras. The position of the three men in relation to
that of Almendras, and the point of entrance of the
wound, detracts from appellant’s theory that it was Fred who fired the, fatal
shot. At any rate, assuming that it was
really Fred who fired the shot that killed Sonny Almendras,
and herein appellant did not fire any of the other succeeding shots, still he
is liable as a co-conspirator to the killing of Sonny Almendras
as will be shown hereafter.
Appellant would insist that the trial court fell into error when
it held that all the accused had acted “with concert and in unison in
obedience to a plan or prior agreement,”[12]
and hence, “Estrada is liable for the killing of Almendras
to the same extent as Fred,”[13]
inspire of its finding that “no witness was presented to establish any
previous agreement between them to commit murder.”[14]
We are not impressed with this argument either.
There is competent evidence to the effect that at about 10:00 o’clock on
the night of November 27, 1963, four (4) persons boarded a taxi near the pier
area of Cebu City and directed the driver to follow a
Snow White taxi ahead of them to’ the corner of Juan Luna and Martires Streets.
There the Snow White taxi stopped near the Esso
Gasoline Station along Juan Luna Street,
while the other stopped near the Insular Cafe on the other side of the same
street.[15]
Three of the four passengers of the twit near the Insular Cafe disembarked,
while the fourth stayed inside the car.
At about the same time, inside the Insular Cafe where Sonny Almendras and his friends were drinking liquor, one of them
named Jorge Cordero, received warning from a security guard that the enemies of
Almendras just passed by in a taxi,[16]
which warning he relayed to Sonny Almendras and to
another companion, Luis Topacxio.[17]
And no sooner had the presence of the feuding protagonists – Almendras and his friends on the one hand against Baby
Estrada and his group on the other – manifested itself in the excitement of
the people standing near the door of the Insular Cafe at the time. Knowing that bad blood existed between them,
people at the door of the cafe became apprehensive of the tenseness of the
situation and went inside running, shouting that Baby was there and Sonny
should watch out.[18]
Two among the friends of Almendras inside the cafe
went outside the door and saw Almendras standing at
the time in front of three men near him, one of whom they recognized to be Baby
Estrada.[19]
Two other men were seen standing a little farther away aside from the three in
front of Sonny Almendras.[20] Almendras addressed one of the men in front of him: “Let us talk this over, Bert.”[21]
Immediately, gunfire flashed in front of Sonny Almendras
who, thereafter reeled.[22]
The driver of the waiting taxi from which the three men previously disembarked,
heard the gunshots from the Insular Cafe,[23]
and when he looked at the place, he saw the other taxi scampered away from the
place. “He started his car to leave
the place also, but the fourth passenger who remained inside the taxi beside
him, held the steering wheel of the car and told him to wait for his
companions,[24]
who arrived later with two other men with them.
They boarded the taxi and told the driver to go fast, directing him’ to
turn left, then right until they reached the corner of Sikatuna
and Bonifacio Streets where five of the passengers
disembarked, the sixth ordering the driver to take him to Sanciangco
Street.[25]
Before they reached the place, however, the taxi bumped the car of another,[26]
during witch distraction, the last passenger hurriedly slipped away without
paying the taxi fare.[27]
Back at the Insular Cafe, the police soon arrived at the scene of the
shooting. They found the body of Sonny Almendras being carried by Jorge Cordero who, upon seeing
them spontaneously exclaimed that Baby Estrada has shot Sonny Almendras and urged them to pursue him.[28]
These circumstances, woven together, convincingly show that herein appellant
and his companions had conspired together to attain a common purpose – to kill
Sonny Almendras.
While admittedly, the driver of the get-away taxi failed to identify
herein appellant to be one of his passengers who disembarked near the Insular
Cafe at the time of the shooting, nor did he see them going to the said nightclub,
from the fact that herein appellant was positively identified to be one of the
men standing in front of Sonny Almendras when the
latter was fired upon, coupled with the circumstance that people standing near
the door of the cafe became frantic when they saw Estrada and his companions there,
and the further circumstance that Sonny Almendras
appears to have gone out of the door of the cafe to see or meet them upon the
information of the security guard who relayed the news that his enemies were
seen in the taxi than passed by shortly before the shooting, it follows that he
was one of the men who alighted from the taxi that stopped near the Insular
Cafe telling the driver to wait and then, barely five minutes thereafter
boarded back the waiting taxi with two other men immediately after the shooting
and hurriedly fled from the scene. This
conclusion sustains the holding of the trial court that herein appellant and
his companions that evening, had acted with concert and in unison in obedience
to a plan or prior agreement – to kill Sonny Almendras. Their agreement or conspiracy is manifested
in their acts. To establish conspiracy,
it is not necessary to prove previous agreement to commit a crime if there is
proof that the malefactors have acted in consort and in pursuance of the same
objective.[29]
This Court has repeatedly decided that conspiracy may be inferred from the acts
of the accused themselves when such acts point to a joint purpose and design.[30]
Their action must be judged by what they do and not altogether by what they
say; for what men do is the best index of their intention.[31]
Thus, this Court has ruled in a similar situation:[32]
“Although there is no direct proof of conspiracy between the
appellants, the simultaneous presence of both at the scene of the crime, the
shot fired by appellant Timoteo Cruz, immediately
after Valencia had been shot by Felipe de la Cruz, and the circumstance that,
forth with thereafter the latter boarded the former’s
car, which was there ready for the get away, leave no room for doubt as to the
existence of unity of action and purpose between them.”
Further, appellant argues that he was not present at the Insular
Cafe at the precise time the shooting of Almendras ocurred, pointing out that even the alleged eyewitnesses to
the shooting were not agreed as to his position in relation to Almendras when they saw him.[33]
He vehemently maintains that he could not have been there because at the time
of the shooting he was already at home fast asleep, having left the Insular
cafe earlier in the evening upon seeing Almendras there
for he was afraid of him. The suggestion
should be rejected. It is true, as
pointed out by herein appellant, that in the course of his testimony witness
Jorge Cordero had said that he saw him (Baby Estrada) in front of
Almendras at the time of the shooting,[34]
which witness Luis Topacio said at one instance in
his testimony that Estrada was behind Almendras,[35]
but such inconsistency may be overlooked.
Both witnesses were required during the course of the trial, to re-enact
the position of the assailants and the deceased and to indicate in separate
sketches their relative positions as they saw them, and both illustrations show
that herein appellant was in front of Almendras.[36]
This is in addition to their other statements that they saw Baby Estrada
standing in front of Sonny when the latter was shot.[37]
The alleged inconsistency, therefore, cannot justify an inference that herein
appellant was not at the scene of the crime at the time. And so with the alibi he proffers. No jurisprudence in criminal cases is more
settled than the rule that alibi is the weakest of all defenses and that the
same should be rejected when the identity of the accused has been sufficiently
and positively established by eyewitnesses to the crime.[38]
Such should be the rule for as a defense alibi is easy too concoct, and
difficult to disprove.[39]
And for alibi to prosper, it is not enough to prove that defendant was
somewhere else when the crime was committed, but he must, likewise, demonstrate
that it was physically impossible for him to have been at the scene of the
crime at the time.[40]
Herein appellant’s alibi does not meet this standard. In the first place, appellant admits having
been to the Insular Cafe on the night of the shooting, although he claims to
have left at about 10:00 o’clock upon
seeing that Almendras was there,[41]
because he was afraid of him.[42]
Secondly, appellant’s sister, Emma, declared that she met him (appellant
Estrada) coming up the stairs of their house at about 10:30 or past that night while she was going down the
house to buy writing paper.[43]
Shortly thereafter, while she was still downstairs at the store, two men
carrying firearms passed by looking for Baby Estrada.[44]
She then went up the house and closed the door.
It was about 10:35 or 10:40 at the time.[45]
She watched out side from the window and according to her, “about 10 or 5
minutes later” a jeep parked near their house; men jumped out of it and
encircled their residence. One of them
with a firearm came running up their house; she met him at the door; and when
the armed man inquired for her brother (Baby), she lied and told him that Baby
Estrada was not there.[46]
Around midnight, she noticed people
flocking at the Cosmopolitan Funeral Parlor just across their house. She stayed awake that whole evening, and noticed
that at around 3:00 a.m. the jeep near
their house left although some men continued watching their house.[47]
In the morning, she went down the house to buy bread and she heard people
talking that the body of Sonny Almendras, shot the
night before by her brother, was brought to the Cosmopolitan Funeral Parlor.[48]
That was the time she informed her mother about the news, and together they
entered Baby Estrada’s room and questioned him about the incident, which herein
appellant denied having anything to do with the killing of Almendras. But the trial court did not believe the
story, and upon the other evidence on record, concluded that Baby Estrada
(appellant) and his gang went to the Insular Cafe that evening on a vendetta.[49]
And We find no compelling reason to disturb this finding of the lower
court. The defense of alibi is an issue
of fact that hinges on credibility; the credibility of an alibi depends so much
on the credibility of the witnesses who seeks to establish it; and in this
respect, the relative weight which the trial judge assigns to the testimony of
said witnesses must, unless patently and clearly inconsistent with the evidence
on record, be accepted. For, as is well
recognized, his proximate contact with those who take to the witness chair places
him, compared to appellate Justices, in the more competent position to
discriminate between the true and the false.[50]
Moreover, from the foregoing narration of events by appellant’s sister, We
note that barely some 5 or 10 minutes after Baby Estrada came up their house,
two armed men were already following his trail; and soon after the lapse of
another 5, 10 or 15 minutes, a jeep-load of men were already seen surrounding
their residence, one of whom came running up the house and inquired from her if
herein appellant was there. Such
proximity in time between appellants alleged arrival in the house and the
immediate coming of the police officers pursuing him, belies the claim of
herein appellant that he had left the Insular Cafe earlier that evening and
could not have been there at the time of the shooting. Finally, the Court cannot simply accept
without mental reservation the veracity of here in appellants sister that she
and her mother questioned Baby Estrada if he had anything to do with the
shooting of Almendras only the following morning
after she heard the news from other people and over the radio that her brother
was the principal suspect in the shooting of Almendras
the previous night. Under the tenseness
of the situation – having seen and heard two men carrying firearms inquiring
for her brother barely 5 or 10 minutes after she saw Baby Estrada came up the
house; seeing a group of men among them Detective Ricardo Ybañez
surrounding their house a few minutes thereafter; having met another armed man
(Detective Ortiz) who came running up the stairs of the house and inquired if
her brother was there; and having taken note thereafter of the commotion at the
Cosmopolitan Funeral Parlor across their house which admittedly, she know takes
place only when, incidents happen – it is quite unnatural, may unbelievable, that
she stayed up the whole evening watching the movement of the men who he
surrounded their house without asking her brother then and there where he
really had been before coming home that evening, when the natural thing to do
under the circumstances, would either be to have asked those armed men
inquiring about the whereabouts of her brother why they were looking for him,
why Detective Ricardo Ybañez (their neighbor) and his
men were surrounding their house, or to have informed her mother and ask Baby
Estrada about the situation. It is
highly probable under the circumstances that Baby Estrada had confessed or
told her sister, Emma of his Involvement in the shooting of Almendras
before the coming of the police to their house; and in her desire to conceal or
protect herein appellant denied his presence in the house when Detective Ortiz
went up the house that evening and inquired if Baby Estrada was there.
Appellant next assails the holding of the lower court that the
statement of Jorge Cordero to the police immediately after the shooting of
Sonny Almendras,[51]
was admissible as part of the res gestae.
Apparently, the trial court finds to consider that the principle of res gestae, being
an exception to the hearsay rule, is not applicable when, as in this case, the
person speaking about a startling event or occurence
testifies in court, for then the truth of his assertions may be tested through
cross-examination. At any rate, this
holding of the court is a harmless error, since the witness reiterated in his
testimony before the court the event that he had witnessed. What the trial court correctly considered as
part of the res gestae
was the warning given by the people present near the door of the Insular Cafe
at the time who, in their excitement, shouted “that Baby was there, and
Sonny should watch out.” And although herein appellant would insist that
what was heard was only the word “Baby” and not “Baby
Estrada”, the conclusion of herein appellant that it could have been
another “Baby” referred to and not he, fades into insignificance in
the light of the testimony of eyewitnesses that he (Baby Estrada) was seen
standing in front of Sonny Almendras when the
shooting occurred.
In connection with the third assignment of error, appellant
laments the holding of the lower court that he had a powerful motive to commit
the crime. He contends that motive on
his part should not be considered for the reason that the evidence for the
prosecution points to a certain Fred as the person who mortally shot Almendras. The claim
is without merit. It is true that motive
is not necessary where there is no doubt that the defendant was the one who
caused the death of the victim.[52]
But as earlier explained, We are not even convinced that it was Fred who fired
the shot that killed Almendras for the reason that
the medical findings tend to show that the bullet that entered the body of the
deceased, came from an oblique direction towards the left chest of the victim,
contrary to the evidence that Fred stood and fixed from an oblique direction
towards the right of Almendras. Appellant herein was convicted on a finding
of conspiracy without defining any act of his that directly contributed to the
ultimate act that killed the deceased.
Motive, is here material, for it gives the reason why he participated in
the conspiracy.
Likewise, the right of the prosecution to call at the trial
witnesses other than those listed in the complaint or information may not be
seriously questioned. This right is
supported by the rules and jurisprudence on the matter.[53]
While the accused in a criminal prosecution is entitled to know the nature and
cause of the accusation against him,[54]
yet it does not mean that he is entitled to know in advance the names of all
the witnesses for the prosecution. The
success of the prosecution might be endangered if such right be granted to an
accused, for the known witnesses might be subjected to pressure or coerced not
to testify. The time for the accused to
know all the witnesses against him is when they take the witness stand.[55]
And from the fact that the witnesses here objected to are members of the
police department of Cebu
City, it does not necessarily
follow that the danger to the success of the prosecution above-contemplated is
totally obliterated.
Finally, appellant contends that the trial court erred in
believing witness for the prosecution, Jorge Cordero, and in not believing
appellant and his witness. He would
capitalize on the statement made by Cordero to the police immediately after the
shooting urging them to arrest him as an act of vengeance against him because
Cordero was a long time friend of Almendras and an
enemy of his. He concludes that as the
facts proven tend to show that it was not herein appellant who shot Almendras, Cordero’s testimony is suspicious and is not
worthy of belief. The contention is not
well taken. Cordero appears to have made
the statement to the police immediately after the shooting, the dying victim in
his arms, He urged the police to chase herein appellant spontaneously, without
time to reflect. And the fact is, he saw
Baby Estrada with two other men in front of Almendras
when the shooting occured, and because he did not
recognize the two other men, he told the police to pursue herein
appellant. His statement grew out of his
nervous excitement, and may not fully be in accord with the facts subsequently
proved, but We cannot subscribe to the suggestion of herein appellant that
Cordero, under such a startling occurence, could have
been influenced by any evil motive against herein appellant. Moreover, the rule is well settled that where
the issue in a case is the credibility of witnesses, appellate courts do not
generally disturb the findings of the trial court, the judge thereof being in a
much better position to decide the question, having seen and heard the
witnesses himself and observed their deportment and manner of testifying,
unless it is shown that it has overlooked certain facts of substance and value
that, if considered, might affect the result of the case.[56]
This case does not fall under the exception.
By and large, therefore, We find the conclusion of the lower
court legally sound – that herein appellant is liable for the killing of
Alexander Almendras on the night of November 27, 1963. We also find no justifiable reason to disturb
the holding of the court that the aggravating circumstance of night time
cannot be considered for there is authority to the effect that for nocturnity to be aggravating, it must appear that it has
been purposely sought by the offender to facilitate the commission of the
crime.[57]
Nor did the court err in not appreciating the aggravating circumstance of
treachery for as correctly observed by the trial judge: “It would appear that the shooting was
preceded by a verbal altercation, as shown by the remark of Sonny Almendras to them, ‘Let us talk this matter over, Bert.’ When he uttered said words, he was facing
Fred, Estrada and others. Besides, he
was observed to insert his hand in his pocket a gesture which might have been
considered as an act of hostility – considering his previous homicidal
proclivities and his being ‘trigger happy’.” And so with the aggravating
circumstance of taking advantage of superior strength which was not appreciated
for, mere superiority in number of assailants does not prove it.[58]
Lastly, the trial court was correct in appreciating the presence
of evident premeditation in the killing.
Soon after the appellant had nursed for more than a month the stab wounds
which Sonny Almendras inflicted upon him, said
appellant showed clear indications that he would even up the score with
Sonny. He forewarned a friend to stop
going with Almendras or he might meet an accident.[59]
His resolution to carry a vendetta was known to his friends who fraternized
with his cause, in as much the same way that Almendras
knew and felt that the day of reckoning was coming soon. Thus, when by chance they met one evening, Almendras frantically ran away and sought protection from a
policeman, on which occasion, one of herein appellant’s companions gave stern
warning to Sonny – even in the, presence of the peace officer – that his death
was near.[60]
Appellant and his friends who conspired with him, had more than sufficient time
to reflect upon the consequences of their resolve, but they did not inhibit
themselves. Their determination to kill
is indicated by their simultaneous arrival at the scene of the crime on the
light of the killing, their immediate attack upon the victim, and their departure
together in the same getaway car that was made to wait for them after carrying
out their evil plan.[61]
Such evident premeditation qualifies the killing to murder.
Murder is punishable by reclusion temporal in its
maximum period to death. When, as in
this case, no mitigating or aggravating circumstances attended the commission
of the crime, the penalty should be imposed in its medium period which is reclusion
perpetua.[62]
Obviously, therefore, the trial court fell into error in sentencing herein
appellant to an indeterminate prison term by applying the provisions of the
Indeterminate Sentence Law which is not applicable when the person convicted of
an offense is punished with death penalty or life imprisonment.[63]
Consequently, the said prison sentence should be modified accordingly.
WHEREFORE, decision in this case as to the penalty is
modified, setting aside the sentence from twelve years and one day of reclusion
temporal as minimum, to twenty years of reclusion temporal
as maximum, and in its stead, the accused (appellant) is hereby sentenced to reclusion
perpetua and to indemnify the heirs of
Alexander Almendras, the sum of P6,000.00. As thus modified, the judgment is affirmed in
other respects.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Castro, and Fernando, JJ., concur.
[1] T.s.n. (La Paz),
pp. 21-22; Translated to English, the expression means: “Sonny was shot by Baby Estrada, go
chase him.”
[2] Tsn (La Paz) p.
51.
[3] Tsn (La Paz) pp.
51-52, 158-161.
[4] Tsn (La Paz) pp.
49-52; Records, pp. 106 & 117-Exhibits.
[5] Tsn (La Paz) p.
51.
[6] Tsn (La Paz) p.
24.
[7] Tsn (La Paz) p.
52.
[8]
Records, p. 85 (Autopsy Report)
[9] Tsn (La Paz) p.
51.
[10]
Records, p. 106 (Exhibit)
[11]
One of the witnesses said he heard 3 shots, another witness said he heard 6,
while still another witness heard only 2 (La Paz)
p. 61 &162; (Bornia) p. 117.
[12]
Decision, p. 21.
[13]
Decision, p. 24.
[14]
Decision, pp. 20-21.
[15] Tsn (Bornia) pp. 114-116.
[16] Tsn (La Paz) p.
155.
[17] Tsn (La Paz) pp.
41 & 156.
[18] Tsn (La Paz) pp.
157-158.
[19] Tsn (La Paz) pp.
49, 51 & 160.
[20] Tsn (Bornia) pp. 100-101.
[21] Tsn (La Paz) pp.
50 & 51.
[22] Tsn (La Paz) p.
52.
[23] Tsn (Bornia) p. 117.
[24] Tsn (Bornia) p. 120.
[25] Tsn (Bornia) pp. 120-121.
[26] Tsn (Bornia), p. 123.
[27] Tsn (Bornia), p. 123.
[28] Tsn (La Paz),
pp. 22 & 165.
[29]
People v. San Luis, 86 Phil. 485.
[30]
See, People v. Upao-Moro, L-6771, May 28, 1957; and cases cited
therein.
[31]
People v. Bautista, 49 Phil. 389, 395-396.
[32]
People v. Cruz, et al., L-15369, April
26, 1962.
[33]
See, appellant’s brief, p. 13.
[34] Tsn (La Paz) p.
160.
[35] Tsn (La Paz) p.
82.
[36]
Records, pp. 106 & 117 (exhibits).
[37] Tsn (La Paz),
pp. 51-53; (Bornia), pp. 160-161.
[38]
People v. Briz, L-11063, August 22, 1958; People v. Asmawil, L-18761, March
31, 1965; People v. Lumayag,
L-19142, March 31, 1965.
[39]
People v. Cunanan, L-17599, April 24, 1967, and cases cited
therein.
[40]
People v. Limpo, et al., L-13058, January 28, 1961; People v. Pelagio, et al., L-16177, May 24, 1967.
[41] Tsn (Bornia), p. 244.
[42] Tsn (Bornia), p. 243.
[43] Tsn (La Paz), p.
376.
[44] Tsn (La Paz), p.
377-378.
[45] Tsn (La Paz), p.
379.
[46] Tsn (La Paz),
pp. 379-380.
[47] Tsn (La Paz), p.
382; (Bornia) p. 176.
[48] Tsn (La Paz) p.
383; (Bornia) pp. 176-177.
[49]
Decision, p. 24.
[50]
People v. Constante, L-14639, December 28, 1964; People v. Berdida, et al., L-20183, June 30, 1966.
[51]
According to Cordero, what he said was:
“arrest Baby Estrada”, Tsn (La
Paz), pp. 165-166; while the policeman addressed to,
said, Cordero’s words were: “Sonny
was shot by Baby Estrada, go chase him”, Tsn (La
Paz) p. 21.
[52] U.
S. v. McMann,
4 Phil. 561.
[53]
Sec. 1, Rule 112, Rules of Court; People v. Santos,
L-7315, July 27, 1955;
People v. Manabat, 53 Of. Gaz.
6090; People v. Namoc, L-11877, Nov.
23, 1959; People v. Palacio, et
al., L-13933, May 25, 1960.
[54]
Section 1(17), Art. III, Constitution; Section 1(b), Rule 111, Rules of Court.
[55]
People v. Palacio, et al., supra.
[56]
People v. Bergonio, et al., L-10121, December 29, 1960; People v.
Tania, et al., L-18514, April 30, 1966.
[57]
See, People v. Matbagon, 60 Phil. 887; People vs.
Trumata & Baligasa, 49
Phil. 192.
[58]
People v. Devela, et al., 3 Phil. 625; People v.
Diokno, et al., 63 Phil. 601.
[59] Tsn (La Paz) p.
46.
[60] Tsn (La Paz) p.
246.
[61] Tsn (Bornia) 114-121.
[62]
Art. 64, Revised Penal Code; People v. Canitan
L-16498, June 29, 1963.
[63]
Sect. 2, Indeterminate Sentence Law; People v. Sepillo,
et al., 80 Phil. 805.