PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AVELINO ATENCIO, CONRADO CARDENAS AND ANTONIO GALLO, ACCUSED-APPELLANTS.

In Criminal Case No. 850 of the Court of First Instance of
Northern Samar, Avelino Atencio, Conrado Cardenas and
Antonio Gallo were found guilty beyond reasonable doubt of the murder of
Leonardo Franzuela, and were each sentenced to suffer
the penalty of reclusion perpetua, with the
accessory penalties of the law, and to indemnify the heirs of the deceased in
the sum of P12,000.00 without subsidiary imprisonment in case of
insolvency.  In Criminal Case No. 851 —
which was consolidated with
Criminal Case No. 850 — Atencio and Cardenas were
also found by the same Court guilty beyond reasonable doubt of the murder of
Isidro Moreno, for which they were each condemned to suffer another, penalty of
reclusion perpetua, with the accessory
penalties of the law, and to indeminify the heirs of
the deceased in the sum of P12,000.00 without subsidiary imprisonment in case
of insolvency.^[1]

The convictions, pronounced in a consolidated decision rendered
on July 11, 1983, were
predicated upon the following factual findings:

“In a house situated in the corner of Del Pilar
and Magsaysay Sts. in the poblacion
of Catarman, N. Samar, just
across the Exel Theater, two families stay.  Accused Avelino Atencio and his family reside in the kitchen of said house
while the deceased Leonardo and his family reside in the main house.  The residence of both is separated only by a
wall partition.  A meter away from said
house is a travelling store where Isidro Moreno stay(s).

“At about 7:00 o’clock
in the evening of October 11, 1978
Avelino Atencio, Antonio
Gallo and Conrado Cardenas went downstairs from the
other end of the house where Avelino Atencio is residing.

“Antonio Gallo parted from his two companions and went towards
the door of the house where spouses Leonardo Franzuela
and Pascualita Dalmacio
were staying.  Leonardo Franzuela was then sitting at the door of their house.  Pascualita Dalmacio was then at the window of their former travelling store trying to call her children to partake
their supper.  Upon reaching the door of
the house Antonio Gallo immediately slashed Leonardo Franzuela
who was sitting at the door of the house hitting the latter on the
forehead.  Leonardo Franzuela
fell down.

“Almost simultaneously, Conrado
Cardenas and Avelino Atencio
approached the travelling store where Isidro Moreno
was.  Conrado
Cardenas pulled out Isidro Moreno from the door of the travelling
store and Avelino Atencio
immediately stabbed Isidro Moreno hitting the latter on the chest.  Isidro Moreno slumped down.

“Avelino Atencio
and Conrado Cardenas went to the place where Antonio
Gallo and Leonardo Franzuela were grappling for the
possession of the bolo.  They helped
Antonio Gallo and took turns in stabbing Leonardo Franzuela.  Antonio Gallo and Leonardo Franzuela while in the process of grappling for the
possession of the bolo fell down and at this moment Antonio Gallo pulled out a
small bolo locally known as ‘depang’ from his leg and
stabbed Leonardo Franzuela.

“While in this act policemen Riatas
and Cablay arrived and Conrado
Cardenas and Avelino Atencio
scampered away and while in the process of scampering away Avelino
Atencio lost hold of his bolo which was picked up by
the policemen.  The policemen overtook
Antonio Gallo while he was still on top of Leonardo Franzuela.  The bolo and another small bolo known as ‘depang‘ were taken by the police including that bolo
dropped by Avelino Atencio.  Antonio Gallo was brought outside the fence
by the policemen and Leonardo Franzuela who was left
fallen on the ground was taken to the hospital including Isidro Moreno.  Leonardo Franzuela
died on the way so with Isidro Moreno.

” * * *.”1

All the accused perfected an appeal from the consolidated
verdict.2 Antonio Gallo has however since escaped from jail.3 Hence, his appeal should be as it is hereby dismissed,
conformably with the provisions of Section 8, Rule 124 of the Rules of Court of
1964 and the 1985 Rules on Criminal Procedure.

Both appellants argue that the Trial Court erred in (1) holding
that all three accused conspired to kill the two victims in both cases; (2)
convicting them in the two cases; and (3) not acquitting them.4 They insist that the prosecution witnesses who
identified them and described the slaying of Franzuela
and Moreno were mistaken or lying;
they could not have done the heinous deed ascribed to them because they were
not there at the place and time of the commission of the crime.

In proof of this defense of alibi, Cardenas and his witness,
Jorge Dublas, gave testimony that on October 10,
1978, a day before the murders were perpetrated in the poblacion of Catarman,
Cardenas had been invited by Dublas to go to Barangay Cabayhan to help harvest
the rice on the latter’s land, which is 12 kilometers away; that Cardenas had
accepted the invitation and gone to Cabayhan in the morning of October 11, after breakfast,
actually arriving there at about 8 o’clock
in the morning; that on October
12, he (Cardenas) had met the son of Antonio Gallo, who asked him to go to the poblacion as Antonio
Gallo was in the hospital.1

Atencio, on the other hand, testified
that on the day of the killings, he was not at his residence but in that of his
aunt, Anastacia de la Cruz, in the poblacion’s Canlubang
District, his aunt being ill at that time; he had stayed at his aunt’s house up
to 9 o’clock in the evening; and when Patrolman Amado
Velarde had gone to his house to investigate him in
connection with the murders, he was already asleep,2 a fact
also attested to by his witness, Eleodoro Collamar.3

The appellants’ defense of alibi must fail.  The established doctrine is that for such a
defense to be sustained it must affirmatively appear not only that the accused
was at some other place at the time of the perpetration of the offense but also
that the circumstances are such as logically to generate the conclusion that it
was physically impossible for him to be present at the scene of the crime at
the time of its commission.4 Moreover,
the defense must be rejected in the face of positive identification of the
perpetrators by otherwise credible witnesses.5 Apart
from the fact that the appellants had been definitely and directly identified
by two (2) eyewitnesses, Pascualita Franzuela and Rogelio Moreno, the record fails to disclose
any adequate proof of circumstances rendering it impossible for either Cardenas
or Atencio to be at the site of the crime when it was
committed.  The house of Atencio’s ailing aunt, where he claims he was at the time,
was only a kilometer away.6 And as
regards Cardenas, his testimony that in the morning of that fatal day, October
11, he was at a locality 12 kilometers distant does not, without more,
demonstrate that in the evening of that day, which is the time when the offense
was actually perpetrated,7 it was physically impossible for him to
have been at the crime scene.

The appellants impugn, too, the eyewitnesses’ credibility,
grounded on their supposed bias, the first being the widow of one of the
victims, Leonardo Franzuela, and the second, a son of
the other victim, Isidro Moreno.  Their
arguments cannot also be accorded any cogency or persuasiveness.  The fact of relationship by consanguinity or
affinity, standing alone, obviously cannot have any effect on the credibility
of a witness, it being at best indicative merely of a need for a little more care
in the appraisal of his testimony.  But
it is apparent that by any rational standard, that relationship alone cannot
justify withholding or diminution of credit to a witness.  The testimony of such a witness must be
judged on its own merits, and if not otherwise destroyed or neutralized by other
more credible evidence on record or any other revealed intrinsic defect, it may
and should be given credit.8 In
the case at bar the Court a quo found “the testimony of the
prosecution witnesses ** (to be) clear and positive and not contrary to the ordinary
course of events and things.”9 This
assessment this Court will uphold on the basis of its own review of the record,
as well as in light of the well settled rule that where the issue is one of
credibility of witnesses, appellate courts will not generally disturb the
findings of the trial court unless it has plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case.1 Of such an oversight, it might be added, there is
absolutely no indication in the record.

There is, to be sure, the appellants’ further claim that the
testimony of the widow, Pascualita Franzuela, is colored by her resentment against Atencio resulting from his refusal to vacate the house
occupied by him despite the former’s demand therefor.  The
rejection of this claim by the Court a quo has not been shown to be
incorrect.  Furthermore, as the Trial
Court observes, the evidence given by Pascualita is
corroborated on material points by other witnesses, including Patrolman Pedro
Raitas.2

Gallo’s attempt to exculpate his co-accused by owning sole
responsibility for the killings was also properly cast aside by the Trial Court
because clearly and completely at odds with the recorded proofs.

The Trial Court’s conclusion of the existence among the accused
of a conspiracy to kill the victims also has to be confirmed.  It is justified by the evidence.  The community of purpose, the unity of design
in the acts simultaneously or contemporaneously performed by the defendants,
has been satisfactorily shown.  The three
accused, Antonio Gallo, Conrado Cardenas and Avelino Atencio, together went to
the houses of the victims; without warning they launched a simultaneous attack
against their unsuspecting prey with bladed weapons, Gallo assaulting Leonardo Franzuela, and Cardenas and Atencio
pouncing upon Isidro Moreno; and after Isidro had been laid low, Cardenas and Atencio had both gone to the assistance of Gallo who was
showing more fight than Isidro.3 Corroboration is furnished by the fact that Franzuela’s wounds had been caused by two different
weapons.4 Proof of such a concerted action, along with corroborative
collateral events, should suffice to prove conspiracy among the persons shown
to have participated therein.5

The Trial Court’s characterization of the killings as murder is
also proper.  There is sufficient
evidence of alevosia, considering that the
attack on the victims was sudden and unexpected, carried out in such a manner
as to permit the attainment of the appellants’ nefarious objective without risk
to themselves arising from any defense that the victims might make.6

In fine, no error has been shown in the judgment of the Court a
quo save only a minor one, and that is its failure to appreciate in favor
of Conrado Cardenas the mitigating circumstance of
voluntary surrender.  It declined to
credit Cardenas with it simply on
the ground that his surrender took place after eleven (11) days from the
issuance of the warrant for his arrest.7 Evidently
overlooked however was that the surrender was not only voluntary and made
before a person (or an agent of a person) in authority, but was also done
before Cardenas had been actually
arrested, and that therefore, all the elements constitutive of the mitigating
circumstance were present.1 This
modifying factor should have been taken into account in the imposition of the
penalties on Cardenas.

Article 248 of the Revised Penal Code prescribes the penalty of reclusion temporal in its maximum period to death for the felony of murder.  The elimination of the capital punishment by
the 1987 Constitution2 wrought a
change in that penalty, which must now be deemed to be reclusion temporal in its maximum period to reclusion perpetua.  Pursuant
to Article 77 of the Revised Penal Code,3 the
minimum period of such a penalty is 17 years, 4 months and 1 day to 18 years
and 8 months; the medium, 18 years, 8 months and 1 day to 20 years; and the
maximum, reclusion perpetua.  Now, in view of the appreciation in Cardenas’
favor of the mitigating circumstance of voluntary surrender, the penalty
prescribed shall be applied to him in the minimum period.4 Hence, the penalty properly imposable on Cardenas
is 17 years, 4 months and 1 day to 18 years and 8 months of reclusion temporal in its maximum period.  In the case of Avelino
Atencio, the prescribed penalty shall be imposed on
him in its medium period there being no mitigating or aggravating circumstance
affecting his liability.5 Hence,
the penalty properly imposable upon him is 18 years, 8 months and 1 day to 20
years, also of reclusion temporal in its maximum period.  Applying, too, the provisions of the
Indeterminate Sentence Law, the appellants should receive a penalty, the
maximum term of which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the Revised Penal Code; and the
minimum, within the range of the penalty next lower to that prescribed by the
Code for the offense.6 The
penalty next lower in degree to that prescribed (which is reclusion temporal in its maximum period to reclusion perpetua), is prision mayor in its maximum period to
reclusion temporal in its medium period;
this, in accordance with Article 61 of the Revised Penal Code pertinently
declaring that “(w)hen the penalty prescribed for the crime is composed of
one or two indivisible penalties and the maximum period of another divisible
penalty, the penalty next lower in degree shall be composed of the medium and
minimum periods of the proper divisible penalty and the maximum period of that
immediately following in said respective graduated scale.” Furthermore,
the appellants’ civil liability should be increased to P30,000.00 for each
victim pursuant to established jurisprudence.

WHEREFORE, the judgment of the Court a quo is affirmed in toto as
against Antonio Gallo.  That judgment is
also affirmed as regards Conrado Cardenas and Avelino Atencio, subject only to
the modifications made necessary by the findings and considerations set forth
in this opinion.  Accordingly, for the
two (2) murders of which Conrado Cardenas and Avelino Atencio have been found
guilty beyond reasonable doubt as co-conspirators, they are sentenced as
follows:  (1) Conrado
Cardenas, to two (2) indeterminate penalties of 14 years of reclusion
temporal as minimum, and
18 years and 8 months of reclusion temporal, as maximum, with the accessory
penalties of the law; and (2) Avelino Atencio, to two (2) indeterminate penalties of 16 years of reclusion temporal, as
minimum, and 20 years of reclusion temporal as maximum, with the accessory penalties of the law.  They are furthermore both solidarily sentenced to indemnify the heirs of Leonardo Franzuela in the sum of P30,000.00, and the heirs of Isidro
Moreno in the same amount, without subsidiary imprisonment in the event of
insolvency in either case, and to pay the costs.

Teehankee, C.J., Cruz, Paras, and Gancayco, JJ., concur.

^[1]
Rollo, pp. 30-31

1 Id.,
p. 25

2 Original record, pp. 141,145

3 Rollo,
p. 80

4 Id.,
pp. 83-84

1 Id.,
p. 27

2 TSN, June 15, 1983, pp. 5-6

3 Id.,
pp. 2-5

4 E.g., Peo. v. Pielago,
140 SCRA 419, 423 (1985)

5 E.g., Peo. v. Sinaw-ay, 138 SCRA 221 (1985)

6 TSN, June 15, 1983, p. 2

7 Rollo, p. 27

8 See Carandang v. Cabatuando, et al., 53 SCRA 383; Peo.
v. Surban,
123 SCRA 219

9 Rollo,
p. 30

1 E.g., Peo. v. Canamo, 138 SCRA 141

2 TSN, July 27, 1979, pp. 23-24, found in folder of TSN, May 4,
1979

3 TSN, May 3, 1979, pp. 15-20

4 Id.,
pp. 10-11

5 See Peo. v. Pueblas, 127 SCRA 746

6 See Peo. v. Ponuelos, 1356 SCRA 501

7 Rollo,
p. 30

1 See Peo.
v. Canamo,
138 SCRA 141; Peo. v. Hanasan, 29 SCRA 534

2 Art. III, Sec. 19 [1]

3 The article provides inter
alia that “Whenever the penalty prescribed
does not have one of the forms specially provided for in this Code, the periods
shall be distributed, applying by analogy the prescribed rules.”

4 ART. 64 (2), Revised Penal
Code

5 ART. 64 (1), Revised Penal Code

6 SEC. 1, Act No. 4103 as amended