PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMING SILONG, BOY SA-OY, REGO DARAGOS, ESTER ALABAT, ELNORA PADILLA, ROGER REMOJO, METRING CATURSE, RUDY CATURSE, EDUARDO PIS…

An information for murder with frustrated murder was filed against herein accused for the ambush-killing
of Angel Ellaga, Alejandro Camahalan, Cesario Davis, Gildo Doguitom, and Zosimo
Ellaga, and for inflicting wounds on Ceferino Asocinas (who died later after
the filing of the information) and Miguel Alcopera, “in a concerted act in
mutually helping each other and taking advantage of their superior strength
with intent to kill by means of treachery and with evident premeditation”
(p. 5, Rollo).

Only Jesus “Bebe” Comaling, Timoteo Alabat (alias
“Toming”), Carlos Relativo, Antonio
Amahan, Rufo “Boy” Pangilinan, and Teodulo Abuyas were apprehended
and brought to trial. The other accused
are still at large.

Upon arraignment, all apprehended accused, pleaded not guilty,
and following trial on the merits, the court a quo, the
Honorable Josephine K. Bayona presiding, rendered its decision on September 7,
1992 disposing:

WHEREFORE, the prosecution having proved the guilt of all these
accused beyond a reasonable doubt, the accused JESUS “Bebe” COMALING,
TIMOTEO ALABAT alias “Toming”, ANTONIO AMAHAN, RUFO (Roco) PANGILINAN
alias “Boy”, TEODULO ABUYAS and CARLOS RELATIVO, are found by this
Court GUILTY of MULTIPLE MURDER WITH FRUSTRATED HOMICIDE as charged and each is
sentenced to suffer the penalty of RECLUSION PERPETUA and to pay the heirs of
ALEJANDRO CAMAHALAN, Cesario Davis, Angel Ellaga, Zosimo Ellaga, Miguel
DOGUITON, jointly and severally, the amount of FIFTY THOUSAND (P50,000.00)
PESOS each without subsidiary imprisonment in case of insolvency and to pay the
costs.

The records will show that all the herein accused have been
detained since the time of their respective arrests. The Court grants them full credit for their preventive imprisonment, provided that they
abide by all the rules and regulations imposed by Article 29 of the Revised
Penal Code.

(pp. 48-49, Rollo.)

From said decision, only Jesus “Bebe” Comaling, Timoteo
Alabat, and Antonio Amahan have appealed and pray for the reversal of said
judgment on the ground that the trial court erred in rejecting their alibis and
in finding them guilty of multiple murder beyond reasonable doubt.

The facts of the case, as summarized by Solicitor General Raul I.
Goco, Assistant Solicitor General Magdangal M. de Leon, and Associate Solicitor
Ethel U. Odrunia, are as follows:

On April 21, 1988, a group of sixteen (16) copra laborers went to
the coconut land of a certain Sergio Baltazar, located in the mountains of
Barangay Manarog, Javier, Leyte, to gather coconuts for the making of
copra. The copra laborers were divided
into two (2) groups. The first group
consisted of six (6) persons while the second group called the
“Tiklos” group consisted of ten (10) persons (tsn., J. Zamora, June
26, 1991, pp. 11-13; tsn., D. Azucenas, July 26, 1989, p. 4).

The following day, April 22, 1988, at about 8:00 a.m., the first
group consisting six (6) persons were gathering coconuts which were already
harvested. In the meantime, the second
group of ten (10) persons were then on their way to the land of the Baltazars,
passing through the land of a certain Rufino Cua (tsn., F. Narca, Sept. 5,
1989, pp. 4-6; tsn., J. Alcoser, Oct. 9, 1990, p. 17; tsn., J. Zamora, June 26,
1991, pp. 5-7).

All of a sudden, a group of about thirty three (33) armed men
ambushed the copra laborers and rained bullets on all of them. The volley of shots came from the upper
level of the terrain and were aimed at the group which was below it. Some of the laborers ran for cover behind
coconut trees but the others were not so lucky. After the firing ceased, some members of the group were fatally
shot, among whom where Alejandro Camahalan, Angel Ellaga, Zosimo Ellaga, Gildo
Doguiton, and Cesario Davis. Some were
killed on the spot while Ceferino Azucenas died later in the hospital (tsn., D.
Azucenas, July 26, 1989, pp. 5-6; tsn., F. Narca, Sept. 5, 1989, pp. 6-8; tsn.,
J. Alcoser, Oct. 9, 1990, pp. 17-18; tsn., J. Zamora, June 26, 1991, pp. 6-8).

Those who were able to run for cover and survived the ambush saw
and positively identified some of the ambushers.

Witness Dominga Azucenas, who was the wife of the victim Ceferino
Azucenas, was about twenty (20) meters away from the perpetrators of the crime
when she saw appellant Antonio Amahan carrying a carbine rifle, co-accused
Carlos Relativo carrying an armalite rifle, appellant Timoteo Alabat carrying a
garand rifle and co-accused Rufo Pangilinan carrying a homemade shot gun, all
of them spraying bullets on the hapless victims (tsn., D. Azucenas, July 26,
1989, pp. 6-8, 18).

Witness Felipe Narca, one of the laborers who survived the
incident, was only fifteen (15) meters away from the group of ambushers when he
positively saw appellants Jesus “Bebe” Comaling, Timoteo Alabat alias
“Toming”, and Antonio Amahan, and co-accused Carlos Relativo, Rufo
Pangilinan and Teodulo Abuyas spraying bullets on the laborers. He was familiar with appellants since they
were his neighbors in Barangay Binulho and he knew them since childhood (tsn.,
F. Narca, Sept. 5, 1989, pp. 3-4, 8-9).

Witness Joel Alcoser, who was only ten (10) meters away from the
ambushers, positively saw appellants Jesus Comaling, Timoteo Alabat and Antonio
Amahan, and co-accused Carlos Relativo and Rufo Pangilinan as among those who
fired shots at them. He had known
appellants for a long time already (tsn., Joel Alcoser, Oct. 9, 1990, pp.
16-22).

Witness Johnny Zamora, immediately after the shots were fired,
looked up and recognized some of the ambushers, among whom were appellants
Jesus “Bebe” Comaling, Antonio Amahan, Timoteo Alabat, and co-accused
Rufo Pangilinan, Carlos Relativo and Teodulo Abuyas, as they were only about
ten (10) to fifteen (15) meters away from him. They were carrying firearms like carbines, garands, and M-16 armalite
rifles. He recognized the firearms they
were carrying as he used to be a member of the Alsa Masa. After firing the shots, the ambushers stood
up and calmly walked away (tsn., J. Zamora, June 26, 1991, pp. 6-9).

After the ambush, witnesses Joel Alcoser and Johnny Zamora went to
Barangay Binulho, Javier, Leyte to notify the family of the victims regarding
the incident. Thereafter, they informed
Patrolmen Papalid and Culaban and the barangay captain regarding the ambush and
the identity of the culprits. Then, the
policemen proceeded to the scene of the crime (tsn., J. Alcoser, Oct. 9, 1990,
pp. 21-22; tsn., J. Zamora, June 26, 1991, p. 9).

Copra gatherers Alejandro Camahalan, Cesario Davis, Angel Ellaga,
Zosimo Ellaga and Gildo Doguiton were confirmed dead as a result of the ambush
(Exhs. “A” to “J”, Records, pp. 19-23, 131-135).

(pp. 4-8, Appellee’s Brief.)

The only defense interposed by accused-appellants is alibi. Accused-appellants Comaling and Alabat
testified that on April 22, 1988, they were in Mamono, Barangay Maslog, Baybay,
Leyte, together with other persons, working at the landholding of Arnulfo
Banoc; that they left their residence in Barangay Bitanjuan, Baybay, Leyte at
about seven-thirty in the morning of that day and stayed at their place of work
until 4 o’clock that afternoon; and that at no time on that day did they leave
their place of work. Accused?appellant
Amahan, for his part, testified that he spent the night of April 21, 1988 in
the house of one Guillermo Pestadero in Sitio Hurubsan, Brgy. Binulho, Javier,
Leyte and stayed there until eleven in the morning of the following day or
April 22, 1988, the day of the ambush.

Alibi is one of the weakest defenses that can be resorted by an
accused, not only because it is inherently weak and unreliable but also because
it is easy of fabrication without much opportunity at checking or rebutting it
(People vs. Devaras, 205 SCRA 676[1992]; People vs. Martinado,
214 SCRA 712 [1992]; People vs. Calope and Torres, G.R. No. 97284,
January 21, 1994).

For alibi to offset the evidence of the prosecution showing his
guilt, the accused must establish not only that he was somewhere else when the
crime was committed but also that it was physically impossible for him to have
been at the scene of the crime at the time it was committed (People vs.
Penillos, 205 SCRA 546 [1992]; People vs. Rendoque, 205 SCRA 783
[1992]). Accused-appellants, by their
own admission, were only about one and a half (1 1/2) to three (3) kilometers
away from the site of the ambush, and, therefore, it was clearly not physically
impossible for them to be present at the scene of the crime at the time it was
perpetrated.

Furthermore, alibi cannot prevail over the positive
identification of the accused by prosecution witnesses (People vs. Catubig,
205 SCRA 643 [1992]; People vs. Rendoque, 205 SCRA 783 [1992]). In the case at bench, no less than four (4)
witnesses positively identified accused-appellants as among the ambushers. These four witnesses, Domingo Azucenas,
Felipe Narca, Joel Alcoser, and Johnny Zamora, were with the group of copra
laborers who were ambushed and were present at the scene and time of the
ambush. They could have been killed or
at least wounded, together with the other victims of the ambush, had these
witnesses not succeeded in gaining cover behind coconut trees, from which
shelter, they clearly saw and recognized the ambushers who were only meters
away. Among the ambushers were
accused-appellants whom the witnesses recognized with absolute certainty as
accused-appellants were residents of neighboring barrios and have been known to
the witnesses since childhood. Said
witnesses positively, categorically, and unhesitatingly identified
accused-appellants as among the ambushers. The record does not disclose that said witnesses were impelled by ill
motives to impute to accused-appellants the commission of the grave crime of
murder. Consequently, their testimony
should be given utmost evidentiary weight.

Accused-appellants impugn the testimony of said prosecution witnesses,
citing alleged inconsistencies therein, which nonetheless pertain only to minor
and trivial matters and cannot impair the credibility of the witnesses. Moreover, inconsistencies and discrepancies
on minor details serve to strengthen the credibility of the prosecution
witnesses (People vs. Buka, 205 SCRA 567 [1992]).

Finally, accused-appellants contend that not one of the
qualifying circumstances of treachery, abuse of superior strength, and evident
premeditation alleged in the information was proven. The evidence on record does not support the contention of
accused-appellants. On the contrary,
the evidence clearly shows that accused-appellants and their unapprehended
cohorts (there were 33 ambushers in all) waited in ambush from the vantage point
of an elevated place, for the victims and their companions. Accused-appellants were fully armed with
M-16 rifles, armalites, shotguns, carbines, garands, and M-203s. The victims and their fellow copra laborers
were unarmed, completely oblivious of the impending danger awaiting them. While the victims and their companions were
gathering coconuts, accused-appellants and their co-accused suddenly and
without warning, fired, initially killing Angel Ellaga, Alejandro Camahalan,
Cesario Davis, Gildo Doguiton, and Zosimo Ellaga, and wounding Miguel Alcopera
and Ceferino Asocinas (who later died in the hospital where he was
brought). Plainly, under the foregoing
facts, the existence of treachery cannot be gainsaid. There is treachery when the offender commits any of the crimes
against persons, employing means, methods, and forms in the execution thereof
which tend directly and specially to insure its execution without risk to
himself arising from the defense which the offended party might take (People
vs. Devaras, 205 SCRA 676 [1992]). The means employed by accused-appellants and their co-accused
undoubtedly insured the execution of the crime without any risk to
themselves. They were all armed and they
waited in ambush for the victims, who if it must be repeated, were unarmed and
utterly unaware of the impending danger awaiting them.

Likewise, under the established facts of the case,
accused-appellants and their co-accused acted in conspiracy. Conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit
it (People vs. Villanueva, 211 SCRA 403 [1992]). Conspiracy may be deduced from the mode and
manner in which the offense was committed (People vs. Dela Cruz, 207 SCRA 632 [1992]), and the concerted acts
of the accused to obtain a common criminal objective signify conspiracy (People
vs. Villanueva, supra). The acts of
accused-appellants, in the case at bench, as established by the evidence, show
concerted action and unity of purpose manifestly indicating conspiracy – they
waited in ambush for the victims and without warning, simultaneously fired at
them.

Under the facts of the case and with accused-appellants having
acted in conspiracy and with treachery and the victims having been killed not
by one shot but by a volley of shots, each accused-appellant is guilty of as
many separate crimes of murder as there are victims killed (People vs.
Pascual, 81 SCRA 548 [1978]; People
vs. Johnny Lago, G.R. No. 96090,
March 30, 1993). Six persons were
killed, namely Angel Ellaga, Alejandro Camahalan, Cesario Davis, Gildo
Doguitom, Zosimo Ellaga, and Ceferino Asocinas (who died after the information
was filed). However, only the killing
of Ellaga, Camahalan, Davis, and Doguitom was charged in the information; the
killing of Ceferino Asocinas was not charged in the information, only the
infliction of wounds upon him was charged. Therefore, accused-appellants cannot be convicted of murder for the
killing of Ceferino Asocinas but only of frustrated murder. Where there is variance between the offense
charged in the complaint or information, and that proved or established by the
evidence, and the offense as charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the offense proved included
in that which is charged, or of the offense charged included in that which is
proved (Sec. 4, Rule 120, Rules of Court). The death of Ceferino Asocinas was a supervening fact and the
prosecution could, and should have amended the information to allege the
supervening fact of the death and killing of Ceferino (Melo vs. People,
85 Phil 766 [1950]). But it did not, so
accused-appellants can be convicted only of frustrated murder for inflicting
wounds on Ceferino and not for murder for his subsequent death. Therefore, each accused-appellant is guilty
of five separate crimes of murder qualified by treachery and two separate
crimes of frustrated murder.

The penalty for murder is reclusion temporal in its
maximum period to death. There being no
aggravating nor mitigating circumstances, the penalty that should be imposed
upon accused-appellants for each murder should be the medium period of said
penalty, or reclusion perpetua.

With regard the frustrated murder committed, pursuant to Article
50 of the Revised Penal Code, the penalty next lower in degree than that
prescribed by law for the consumated felony shall be imposed upon the
principals in a frustrated felony. One
degree lower to that imposed for consummated murder is ten (10) years and one
(1) day of prision mayor to seventeen (17) years and four (4) months of reclusion
temporal (Reyes, L.B., The Revised Penal Code, Eleventh Ed., p.
991). Applying the Indeterminate
Sentence Law, the minimum
penalty that may be imposed shall be within the range of the penalty next lower
to that prescribed by the Revised Penal Code for the offense, or in case of
frustrated murder the penalty next lower in degree is four (4) years, two (2)
months and one (1) day of prision correccional to ten (10) years of prision
mayor (Ibid., pp. 986, 991)).

Therefore, the penalty that should be imposed upon
accused-appellants for the frustrated murder is four (4) years, two (2) months
and one (1) day of prision correccional, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal as maximum.

One last point, although accused-appellants were charged only
with frustrated murder with regard to Ceferino Asocinas and as the Revised
Penal Code does not specify the amount of civil liability, but because victim
Ceferino subsequently died, the civil indemnity to be awarded to his heirs
should be the same amount as that to be awarded to the heirs of the other dead
victims.

WHEREFORE,    the
appealed decision is hereby modified as follows:

(a) Each accused-appellant
is hereby found guilty beyond reasonable doubt of five (5) crimes of murder and
each is sentenced to suffer five (5) penalties of reclusion perpetua;

(b) Each
accused-appellant is hereby found guilty beyond reasonable doubt of two (2) crimes
of frustrated murder and each is hereby sentenced to an indeterminate penalty
of four (4) years, two (2) months, and one (1) day of prision correccional,
as minimum, to seventeen (17) years and four (4) months of reclusion
temporal, as maximum; and

(c)
Accused-appellants are hereby ordered to pay the heirs of Angel Ellaga,
Alejandro Camahalan, Cesario Davis, Gildo Doguitom, Zosimo Ellaga and Ceferino
Asocinas, jointly and severally, the amount of P50,000.00 each, and to Miguel
Alcopera, the amount of P20,000.00 likewise jointly and severally, as civil
indemnity, without subsidiary imprisonment in case of insolvency.

Costs against accused-appellants.

SO ORDERED.

Feliciano, (Chairman), Bidin, Romero, and Vitug, JJ., concur.