THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EUGENIO GASPER Y ESPERANZA ALIAS “OHEN”, JOELITO GASPER Y LAGANHON ALIAS “JOELIE” AND ALBERTO AHITO (AT LARGE), ACCUSED-AP…

Accused-appellants Eugenio Gasper alias “Ohen” and
Joelito Gasper alias “Joelie” were charged with the crime of Murder
before the Regional Trial Court of Cadiz City, Branch 60, docketed as Criminal Case No. 565-C. In a decision* dated 25
October 1991, the trial court found them
guilty, as charged, and each of them was sentenced to suffer the penalty
of reclusion perpetua and to indemnify
jointly and severally the heirs of Amado Olano, Jr. in the amount of
P30,000.00.

The facts are as follows:

Amado Olano, Jr. alias “Leloy” (hereinafter referred to
as Olano) and Reynaldo Carpio were both residents of Bacolod City. They agreed to meet in the afternoon of 18
November 1987 at sitio Campo Santiago in Sagay, Negros Occidental, to haul and
transport the charcoal bought by Olano from Siwahon II, at Bgy. V.F. Gustilo in
Cadiz City.

At about 1:00 o’clock in the afternoon of 18 November 1987,
Reynaldo Carpio arrived at their designated meeting place. Carpio waited for an hour for Olano. But when the latter failed to arrive, Carpio
decided to proceed by foot to Siwahon II which is about three (3) kilometers
from sitio Campo Santiago, leaving his cargo truck parked in a coffee shop at
sitio Campo Santiago.

On his way to Siwahon II at about 2:45 o’clock in the afternoon
and at a distance of about twenty-five (25) meters away, Carpio saw Olano
outside the house of Alberto Ahito. Olano was engaged in a heated conversation with Eugenio Gasper, Joelito
Gasper, Alberto Ahito and three (3) other unidentified persons who were
armed. Seeing that Olano and the group
of accused-appellants were engaged in a heated discussion, Carpio did not
proceed towards them but instead he stayed where he was.

While they were arguing, Eugenio Gasper hit Olano on the head and
body with a three (3) feet long 2×2 piece of wood. When Olano fell, with his face to the ground, Joelito Gasper
immediately grabbed a piece of stone of about one (1) foot in diameter and
bashed it on the back of Olano’s head.^[1]

For fear of getting involved, Carpio who witnessed the mauling of
Olano immediately retreated and returned to Campo Santiago where his truck was parked.

On 22 December 1987 at about 2:00 o’clock in the afternoon, a dead body
in a state of decomposition was found by the police authorities at Sitio
Siwahon II, Bgy. V. F. Gustilo,
Cadiz City. Joselito Olano identified
the dead body as that of his brother Amado Olano, Jr.

On 7 January 1988, Dr. Ricardo H. Jaboneta, an NBI medico legal officer of Region VI (Iloilo City),
performed an autopsy of the skeletal remains of the body of Amado Olano,
Jr. Four (4) fractures were found on
the remains. They are as follows:

“Depressed fracture: right occipital, right sphenoid, right
zygomatic and right ethnoid bones with fragments missing; there was also a
linear extension to left sphenoid, petrious and left temporal bones; there is
also a petrious and left temporal bones, oval in shape, 1.7 x 3.2 cms.,
scapula, infra-spinous region; another fracture in the infra-spinous region
with distal end and there was also another fracture, ramus of the mandible,
both sides with distal fragments missing; that there were four (4) fractures
found on the remains of Amado Olano, Jr. and they could have been caused by a
blunt instrument; they are found on the left shoulder back and right shoulder
back and right scapula and on the left
and right mandible; that the most possible cause of the death of the victim is the
depressed fracture on the skull and the force must be strong enough to cause
this kind of a fracture.”^[2]

On 13 January 1988, Carpio was investigated by T/Sgt. Jeny
Andrade of the Office Investigation Section, Headquarters of the 334th PC
Company in Sagay, Negros Occidental in connection with the killing of Olano,
Carpio related under oath the incident he witnessed involving the mauling of
Olano by the accused-appellants on 18 November 1987, which resulted in the
death of the latter.

An information dated 22 February 1988 was filed by the City
Fiscal’s Office, Cadiz City, Negros Occidental before the Regional Trial Court
of Cadiz City, Branch 60, charging accused-appellants
with the crime of Murder, as follows:

“The undersigned City Fiscal hereby accuses Eugenio Gasper @
“Ohen” y Esperanza, Joelito Gasper
@ “Joelie” y Laganhon and Alberto Ahito of the crime of
“Murder”, committed as follows:

That at about 3:00 o’clock in the afternoon of November 18, 1987,
at Siwahon II, Brgy. V.F. Gustilo,
Cadiz City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and help­ing one
another, without any justifiable cause or motive, being then armed with a stone and a piece
of wood, with intent to kill, and by means of treachery and with evident
premeditation, did then and there, wilfully, unlawfully and feloniously,
assault, attack and strike with a stone and a piece of wood one, Amado Olano,
Jr. @ “Leloy”, thereby inflicting upon the latter “compatible
with massive intracranial hemorrhage with multiple skull fracture” which
were the direct and immediate cause of his death to the damage and prejudice of
the heirs of the said victim in the following amount to wit:

1. P 12,000.00 – as indemnity for the death of the victim.

2. P 10,000.00 – as moral damage for mental
anguish or such amount to be fixed by law.

3. P144,000.00 – as indemnity for
loss of earning capacity or such amount
to be fixed by the court.

Act contrary to law.”^[3]

Upon arraignment, both
accused-appellants Eugenio Gasper and Joelito Gasper entered pleas of not guilty, while the other accused,
Alberto Ahito has remained at large.^[4]
During the trial, the
prosecution presented three (3) witnesses, namely: Reynaldo Carpio, the eyewitness, Dr. Ricardo H. Jaboneta, the NBI
medico legal officer and Erlinda Son, the
sister of Olano.

After the prosecution rested its case on 7 July 1989, the defense counsel filed a Demurrer to
Evidence, contending that the prosecution
failed to prove the existence of the elements of the crime of murder and
the existence of any circumstance of treachery and/or evident premeditation
which would qualify the crime
to murder.^[5] In an order dated 19 July 1989, the
trial court denied the Demurrer to Evidence
filed by the accused-appellants.^[6]

Accused-appellants
appealed the denial by the trial court
of their Demurrer to Evidence to the
Court of Appeals. In a decision^[7] dated
9 November 1990, the appellate court dismissed said appeal and remanded the
case to the trial court for further proceedings.

Instead of presenting evidence, on 5 September 1991,
accused-appellants filed a motion to dismiss the criminal case against them on
the ground that the evidence of the prosecution was insufficient to prove their guilt beyond reasonable doubt and submitted the case for decision.^[8]

On 25 October 1991, the trial court rendered the aforecited
decision^[9]
based on the evidence presented,
convicting accused-appellants for the murder of Olano. Hence, this appeal.

In assailing the decision of the trial court, accused-appellants
have raised the following issues: credibility of the witnesses for the prosecution; identity of the human
skeletal remains found by the police authorities on 22 December 1987 at Siwahon II; lack of substantial proof to
establish the guilt of accused-appellants beyond reasonable doubt for the crime charged; lack of proof of the existence of treachery or evident premeditation to qualify
the crime to murder.

The testimony of the victim’s sister, Erlinda Son, established the motive of
accused-appellants in killing Olano. The witness testified that their family owned the land planted by the
accused-appellants with peanuts; accused-appellants had refused to give Olano a
share in the produce of the
land; accused-appellants bore a grudge against Olano.^[10]

The testimony of
Dr. Ricardo H. Jaboneta, the NBI medico legal officer who examined the skeletal
remains of the victim established the physical injuries suffered by the victim
which caused his death. Dr. Jaboneta
testified that the body of the victim suffered four (4) fractures found at the
back of the head or skull, shoulder,
jaw and cheekbones; and that the most possible cause of the death of the victim
was
the depressed fracture
on the skull caused by a strong force.^[11]

The testimony of Reynaldo Carpio, the only eyewitness to the
incident, established the manner, means and method used by the
accused-appellants in killing Olano. Carpio related that on 18 November 1987 on his way towards Siwahon II,
from a distance of twenty-five (25) meters, he saw Olano engaged in a heated
conversation with Eugenio Gasper, Joelito Gasper, Alberto Ahito and three (3)
unidentified men. While they were
arguing, Eugenio Gasper hit Olano on the head and body with a 2×2 piece of wood
of about three (3) feet long. When
Olano fell on his face to the ground, Joelito Gasper bashed the back of the
head of the victim with a stone.^[12]

In the matter of
credibility of witnesses, this Court has set the guiding rules. They are as follows: (1) the appellate court will not disturb the factual findings of
the lower court, unless there is a showing that it had overlook­ed,
misunderstood, or misapplied some fact or circumstance of weight and substance
that would have affected the result of the case; (2) the findings of the trial
court pertaining to the credibility of witnesses are entitled to great respect
since it had the opportunity to examine their demeanor as they testified on the
witness stand, and (3) a witness who testified in a categorical, straightforward,
spontaneous and frank manner and remained consistent on cross-examination is a
credible witness.^[13]

After
carefully reviewing the records of the case, we find the testimony of
the witnesses for the prosecution to be straightforward and consistent. There is no basis to overturn the findings
of the trial court as to the veracity of the testimonies of said witnesses.

The testimonies of Reynaldo Carpio that Olano was hit by Eugenio
Gasper on the head and body with a 2×2
piece of wood and thereafter hit with a stone on the head by Joelito Gasper,
coincide with the finding of the medico legal officer as to the fractures found
on the skull, shoulder,
cheekbone and jaw of the victim.

The fact that Carpio retreated when he saw his friend, Olano,
being mauled and assaulted, without extending him any help and his failure to
immediately report the incident to the police authorities was explained by him
as due to the fact that he did not want to get involved in the
investigation. It is a matter of common
observation and knowledge that the reaction or behavior of persons when
confronted with a shocking incident varies.^[14] Eyewitnesses are commonly
reluctant to get involved in criminal investigations. If these witnesses do not come forward immediately, the fact of
delay should not, by itself, be considered as seriously affecting their
credibility. Credibility should be
assessed independently on the basis of the substance of the testimony offered
and the surrounding circumstances.^[15]

Carpio properly identified accused-appellants as the assailants
of Olano. Although Carpio was about
twenty-five (25) meters away from the scene of the crime, the incident occurred
in broad daylight. The accused-appellants
were known to the witness who had met them at least three (3) times when he
came for a visit to Campo Santiago. Hence, it was not impossible for him to be able to identify the
accused-appellants even at a distance of twenty-five (25) meters.

As to the second issue raised by accused-appellants, the identity
of the skeletal remains found by the police authorities at Siwahon II on
22 December 1987 was duly established
as belonging to Olano. Aside from the fact that the remains of
Olano were identified by his own brother Joelito Olano, the osteology report of
Dr. Jaboneta which is determinative of the injuries suffered by the victim as
well as the testimony of Reynaldo Carpio abundantly establish the identity of
the skeletal remains of Olano and the fact of his death.

However, while the
prosecution was able to prove that Olano was killed by accused-appellants, it failed
to show that treachery or evident premeditation intervened in the commission of
the offense as to qualify the killing to murder.

The attack by accused-appellants upon the person of the victim
was preceded by a heated argument. Alevosia
or treachery to be appreciated must spark an attack that is deliberate
and unexpected. Teachery is not present where the victim, before being attacked, had a
heated argument with one of the
assailants that must have placed him (victim) on his guard, especially when the victim was standing face to face with his assailants so much so that the initial
assault was not sudden or unforeseen.^[16]

Neither is evident
premeditation present in the case at bar. The elements of evident premeditation are: (1) proof of time when the
accused decided to commit the crime; (2) proof of an
overt act showing that the
accused had clung to his determination
to commit the crime; and (3) the lapse of time between the decision and the
execution of the crime,
sufficient to allow the accused to
reflect upon the consequences of his
act.^[17] Evident
premeditation cannot be appreciated in the case at bar considering that there
is no evidence of predetermination on the part of accused-appellants to attack
Olano, as they appear to have acted almost at the spur of the moment in the
course of a heated argument which ensued between them prior to the incident.

However, it is apparent from the evidence presented that
accused-appellants took advantage of their superior strength to ensure that
their victim would not be able to defend himself from their attack, which characterizes the crime as Murder. Olano was unarmed when he was attacked by Eugenio Gasper with a
2×2 piece of wood hitting him on the head and body. When the victim fell to the ground, Joelito Gasper took advantage
of the situation and bashed Olano’s head with a stone. Accused-appellants purposely used excessive force in their attack
on the unarmed Olano so that the latter would not have the opportunity of
defending himself. Abuse of superior
strength is present whenever there is a notorious inequality of forces
between the victim and the aggressor, assuming a situation of superiority of
strength notoriously advantageous for the aggressor selected or taken advantage
of by him in the commission of the crime.^[18]

The information alleged that accused-appellants conspired,
confederated and helped one another in killing Olano. Murder is committed where the killing is qualified by abuse of
superior strength and it is alleged in the information that the accused
committed the offense by “conspiring, confederating and helping one
another,” with both accused being armed as against the victim who was unarmed.^[19]

WHEREFORE, the judgment of the trial court
finding the accused-appellants guilty
beyond reasonable doubt of the crime of Murder
under Article 248 of the Revised Penal Code and sentencing each of them to suffer the penalty of reclusion perpetua is hereby AFFIRMED with the modifica­tion that the death indemnity to be
jointly and severally paid by
accused-appellants is increased from P30,000.00 to P50,000.00 in accordance with prevailing jurisprudence.

SO ORDERED.

Narvasa, C.J., (Chairman), Regalado, Nocon, and Puno, JJ., concur.

* Penned by Judge Adelino H.
Ledesma

^[1]
TSN of the 13
March 1989 hearing, Testimony of Reynaldo Carpio, pp. 3-6

^[2]
Rollo, pp. 39-40

^[3]
Signed by Fiscal Pedro Delfin, Records
p. 1

^[4]
Records, p. 11

^[5]
Ibid, pp. 82-86

^[6]
Ibid, p. 88

^[7]
Ibid, pp. 107-110

^[8]
Ibid, pp. 121-128

^[9]
Rollo, pp. 38-42

^[10]
TSN of the 27 June 1989 hearing,
Testimony of Erlinda Son, pp. 7-9

^[11]
TSN of the 23 August 1988 hearing, Testimony of Dr. Jaboneta, pp. 8-11

^[12]
TSN of 13 March 1989 hearing, Testimony of Reynaldo Carpio, pp. 5-6

^[13]
People v. Clores, G.R. No.
82362, 26 April 1990, 184 SCRA 638

^[14]
People v. Arroyo, G.R. No. 9958,
13 September 1991, 201 SCRA 616

^[15]
People v. Gonzales, G.R. No. 96928,
16 June 1992, 210 SCRA 44

^[16]
People v. Macalino, G.R. No. 79387, 31 August
1989, 177 SCRA 185

^[17]
People v.
Clamor, G.R. No. 83708, 1 July
1991, 198 SCRA 641

^[18]
People v. Cabiling, G.R. No.
38091, 17 December 1976, 74 SCRA 285; People v. Bigas, G.R. No. 94534,
20 July 1992, 211 SCRA 631

^[19]
People v. Arroyo, supra