THE PEOPLE OF THE PHILIPPINES, PLAINTIFF, VS. NARCISO ATIENZA Y PERALTA, DEFENDANT-APPELLANT.

YAP, J.:

August 22, 1981 was the natal day of Rodelio Refran.  It was
also a fatal day for him.  Around 10:30 o’clock in the evening of that day, upon
returning home after celebrating his birthday with friends with whom he had a
drinking spree in a nearby house, Rodelio Refran was hacked and stabbed to death
right at the back of his house, by the alley leading to Juan Luna Street, Tondo,
Manila.

He was brought to Mary Johnston Hospital where he was pronounced
dead on arrival.  An autopsy conducted by Dr. Marcial G. Cenido, Medico-Legal
Officer at the Western Police District, showed that two wounds were inflicted on
him, one a hacking wound on his right forehead and another, a penetrating stab
wound on the left upper quadrant of his abdomen.^[1] According to Dr. Cenido, the wound in the
victim’s forehead was not fatal; it was the deep abdominal stab wound which
caused the victim’s death.^[2]

Sworn statements of two neighbors
and the victim’s mother were taken by the police on August 24, 1981.  Edmundo
Alba, a twenty-one year old neighbor of the victim who was with him earlier at
the drinking session, stated that from the back of his house, he saw the
assailants of Rodelio Refran, one by the name of Boy Hapon who lived in the
neighborhood, and a companion whom he could not identify.  It was the latter who
hacked the victim in the head, while Boy Hapon followed suit by stabbing him in
the stomach.^[3]

Adelina
Panambitan-Lara, also a neighbor, made a similar declaration, but stated that
she did not recognize the assailants; however, she described their physical
appearance and declared that if she sees them, she can identify them.^[4]

Bienvenida Refran, mother of the
victim, stated in her sworn statement that she did not see the stabbing of her
son, but that when she opened the back door of her house, she saw Rudy Hapon
together with another man going out of the alley leading to Juan Luna
Street.^[5]

Boy Hapon was
identified by police investigator Pfc. Isagani Tolentino as Rodolfo Ramirez in
his “Advance Report” dated August 23, 1981.^[6] According to Pfc. Tolentino, police
informers with whom he tried to talk were afraid to give out information on Boy
Hapon, who had a notorious reputation in the neighborhood because his family
wielded some influence in the vicinity.^[7]

More than three months after the
incident, or on November 27, 1981, at about 8:00 a.m., appellant Narciso Atienza
was arrested by police operatives led by Pfc. Tolentino while walking along
Reina Regente, based on the information supplied by an unidentified informant
brought to the police station by Eugenio Estrella, a brother-in-law of the
deceased.  Appellant was pinpointed as the one “who hacked the victim to
death”.  The appellant submitted to the arrest without any resistance and was
brought to the police station of the Western Police District.  When
investigated, appellant refused to give any written statement but denied his
participation in the killing of the deceased.^[8]

The following day, Edmundo Alba,
Bienvenida Refran, and Adelina Panambitan-Lara were summoned to the police
headquarters.  There, they identified Narciso Atienza in separate police
line-ups as the “very person who hacked the victim on the head with the jungle
bolo”.  These witnesses executed identical sworn statements,^[9] all dated November 28, 1981, although
obviously of the three, Bienvenida Refran could not have identified Narciso
Atienza as the person who hacked her son because in her previous statement on
August 24, 1981, she stated that she did not see her son hacked.

In an
information dated December 7, 1981, Narciso Atienza was indicted for Murder and
Frustrated Murder, committed as follows:

“That on or about August 22, 1981, in the City of Manila,
Philippines, the said accused, conspiring and confederating together with two
others, whose true names, real identities and present whereabouts are still
unknown and helping one another, and taking advantage of superior strength, did
then and there wilfully, unlawfully, and feloniously, with intent to kill, and
with treachery and evident premeditation, attack, assault and use personal
violence upon one RODELIO REFRAN Y DE LA PENA, by then and there hacking the
latter on the head with a jungle bolo and stabbing him on the abdomen with a
bladed weapon, thereby inflicting upon the said Rodelio Refran y de la Pena
mortal wounds which were the direct and immediate cause of his death
thereafter.

Contrary to law.”

Arraigned on January 18, 1982, the accused pleaded not
guilty.

Rodolfo Ramirez, alias Boy Hapon, was never apprehended
nor brought to trial, although a separate information was filed against him
(Criminal Case No. CCC-VI-96 (82) of the defunct Circuit Criminal
Court).

On November 13, 1983, the trial court rendered a judgment
convicting the accused, the dispositive portion of which reads:

“WHEREFORE, the Court finds the accused, Narciso Atienza y
Peralta, guilty beyond reasonable doubt of the crime of murder, qualified by
treachery, and there being no aggravating or mitigating circumstances, hereby
sentences him to suffer the penalty of RECLUSION PERPETUA; to pay the
heirs of the deceased, Rodelio Refran the following sums:  P12,000.00 for the
death of the latter, P11,000.00 representing actual expenses incurred during the
wake and the funeral, P20,000.00 by way of moral damages, and P10,000.00 by way
of corrective damages by way of example or correction for the public good; and
to pay the costs.

SO ORDERED.”

Assailing the legality of his conviction, appellant alleges
that:  1) the decision of the trial court violated Rule 120 of the 1985 Rules of
Criminal Procedure in that it does not “contain clearly and distinctly a
statement of the facts proved or admitted by the accused”; and 2) there was no
sufficient basis for convicting appellant, even assuming that there was a valid
judgment.

The first allegation of the appellant has no merit.  The trial
court’s decision sums up the evidence for the prosecution consisting of the
testimonies of Edmundo Alba, Bienvenida Refran, Adelina Panambitan-Lara, Pfc.
Isagani Tolentino and Dr. Marcial G. Cenido.  The decision also summarizes the
testimonies of the three witnesses for the defense, Esmundo Jovinar, Danilo
Calma and the accused, Narciso Atienza.  From the evidence, the trial court
makes the following findings:

“From the foregoing evidence on record, it is clear that the
accused, Narciso Atienza, was present at the scene of the crime when the victim,
Rodelio Refran was hacked and stabbed to death.  Two prosecution witnesses,
Edmundo Alba and Adelina Lara declared that it was he who hacked the victim and
that it was Rudy Hapon whose real name is Rodolfo Ramirez, who stabbed the
deceased.  On the other hand, the accused declared that it was Rodolfo Ramirez
who hacked and stabbed Rodelio Refran and that he even tried to prevent Rodolfo
from further attacking Rodelio by wresting away Rodolfo’s jungle bolo.

The Court is of the opinion and so holds that the story told by
the prosecution witnesses is nearer to the truth, that is, that accused Narciso
Atienza hacked the victim on the head with a jungle bolo and that Rodolfo
Ramirez (who is charged in Crim. Case No. CCC-VI-96(82) of the defunct Circuit
Criminal Court of Manila, but had not been arrested up to the present) stabbed
said victim on the upper quadrant of the abdomen.

First, Rodolfo Ramirez
was already known to the witnesses even before the killing and in fact, it was
only said Rodolfo Ramirez, alias “Rudy Hapon” among the three suspects,
whose name was reported to the police (See Exh. J, Advance Report).  When
accused Narciso Atienza, whose name was unknown at the time of the killing was
identified by police informants and was apprehended, he was duly identified by
the eyewitnesses, and thereby have no ill motive in imputing upon him a grave
crime which involves the penalty of death.

Secondly, by his own
admission, the accused himself disposed of the bolo by throwing it away on his
way home after the killing.

And thirdly, the prosecution’s witnesses
testified in a calm and straightforward manner, answering all questions clearly
and with candor, which are the earmarks of sincerity and spontaneity.  They
weathered extensive and intensive cross-examination from defense counsel and
were even able to describe the clothing worn by the accused and his companion,
Rodolfo Ramirez, at the time of the killing.

Thus, the accused must be
held guilty of the crime of murder, qualified by treachery, for having acted in
concert with another or others in killing Rodelio Refran who was attacked so
suddenly such that he had no chance of putting up any defense which he may have
minded to make in order to avoid or parry the attack.”

There is therefore no basis for the charge that the trial
court’s decision does not conform to the requirements prescribed by Rule 120 of
the 1985 Rules of Criminal Procedure.

Anent the second assignment of
error, we find no reason to disturb the findings of the trial court, except as
to its finding that treachery attended the commission of the offense since the
accused “acted in concert with another or others in killing Rodelio Refran who
was attacked so suddenly,” giving him no chance to put up any defense.  Acting
in concert with another in committing an offense cannot be taken as proof of
treachery, nor would the suddenness of the attack — assuming the same is shown
by the evidence — be sufficient to constitute treachery.  Treachery or
alevosia may not be simply deduced from presumption as it is necessary
that the existence of this qualifying circumstance should be proven as fully as
the crime itself.^[10] The qualifying
circumstance should be established by positive evidence, which is absent in the
case at bar.  The prosecution witnesses did not testify as to the details of the
assault and no evidence was offered to prove the circumstance of
alevosia.  As a matter of fact, the evidence in this case indicates
that the victim was attacked frontally, as shown by the fact that the wounds
inflicted on him were all in the front part of his body.  There is no evidence
that the accused rushed toward the victim and attacked him suddenly.  Even if it
were shown that the attack was sudden, such circumstance is not sufficient to
prove treachery.  It must be shown that the mode of attack was knowingly adopted
by the assailants to ensure the accomplishment of their criminal purpose without
risk to themselves arising from any defense that the victim might offer.^[11] Lacking such proof, the conviction of the
accused for murder cannot be sustained.  The crime is
homicide.

WHEREFORE, the judgment appealed from is
modified and the appellant declared guilty of homicide and sentenced to an
indeterminate penalty of eight (8) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal as maximum, and to pay the heirs of Rodelio
Refran the amount of P30,000.00 as indemnity for the latter’s death and
P11,000.00 for actual damages.  No costs.

SO
ORDERED.

Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco,
and Sarmiento, JJ., concur.

^[2] T.S.N., October 25, 1982, page
9.

^[3] Exhibit E.

^[4] Exhibit I.

^[5] Exhibit H.

^[6] Exhibit J.

^[7] T.S.N., October 27, 1982, page
18.

^[8] Exhibit L.

^[9] Exhibits F, H and M.

^[10] People v. Ardisa, 55 SCRA 245;
People v. Villaruel 87 Phil. 826.

^[11] People v. Doral, 92 Phil. 877;
People v. Noble, 77 Phil. 92; People v. Pengzon, 44 Phil. 224.