PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DANILO LAZO ALIAS “DANNY” AND BERTING ARELLANO Y SABALO, ACCUSED-APPELLANTS.

These are two appeals separately interposed by Danilo Lazo alias
“Danny” and Berting Arellano from the
decision of the Regional Trial Court, Branch XII, Sanchez Mira, Cagayan, in Criminal Case No. 1212-S (81) dated January 21,
1986, finding them both guilty of murder with frustrated murder and sentencing
them to reclusion perpetua and to indemnify jointly
and severally the widow of the deceased
in the amount of P12,000.00 and to pay the costs.^[1]

Between 6:30 and 8:00
o’clock in the evening of October
13, 1979, Felipe Garcia, his wife Felicidad,
Bernardo Ventura, Cresencio Garcia, Emma Ventura,
Margarita Ventura, Annong Garcia, Abba and Tony
Arellano, a farmhand, were taking their supper inside the kitchen at the ground
floor of Felipe’s house located in Sitio Macugay, Barangay Abulug, Cagayan.  The kitchen was lighted by three (3) improvised lamps locally called
“sinulbong” with wicks fueled by
kerosene.  The lamps were placed on top
of the dining table, one on each end of the table and the third at the center.  Antonio
“Tony” Arellano was seated on a bench immediately facing
Felipe Garcia whose back was to the door.^[2]

Suddenly, the kitchen door opened.  Since Tony Arellano was facing the door to
his north, he immediately saw the face of the intruder.  It was Berting
Arellano whom he had already known for about nine (9) years.  About one (1) meter behind Berting was Danilo Laso who was holding a carbine rifle.  Tony, aided by the glow of the lights
emanating from the improvised lamps, was able to identify the two persons.^[3]

Then, without any preliminaries,
Danilo
fired his rifle in two successive bursts at the occupants.  The first shot hit the kitchen wall while the
second shot fatally hit Felipe
Garcia after which it grazed the left leg of Tony Arellano.  Felipe shouted, “I am shot” and
then fell on the floor.  Stunned, Tony
could only stare at the two assailants. 
The others, who were either too old or too young, were petrified with fear.

 It was Tony who carried
the mortally wounded victim to the second floor of the house.  Subsequently, Felipe was rushed to a hospital
in nearby Ballesteros where he died seven or eight
hours after an emergency operation.^[4]

The attending physician, Dr. Anselmo Talla, issued a medical certificate.  His findings were:

“Fatal Gunshot Wound through and through with an entrance
wound 1 cm. in diameter left lumbar and exit wound 2 cm. in diameter left subcostal region.

“Operative findings:

“(1) Massive left
kidney injury;

“(2) One penetrating
wound at the transverse colon;

“(3) Ten penetrating
wounds at the left intestine;

“(4) Massive hematoma at the mesentery of the descending colon.”^[5]

On the same day, Dr. Talla also treated
Tony Arellano for a “bullet wound at the left leg, anterior aspect”
which would “incapacitate or require medical attendance of nine (9)
days.”^[6]

It was only on the following morning, October 14, 1979 that Tony
Arellano revealed the identities of the assailants to the victim’s widow, Felicidad Garcia, at the hospital.  They were Danilo Lazo and Berting Arellano.  On that same day, Tony reported the fatal
shooting to the members of the Integrated National Police of Abulug, Cagayan, who immediately
proceeded to the scene of the crime. 
Recovered in the kitchen of Felipe Garcia’s house were two (2) empty
.30-caliber shells and two (2) slugs. 
Also found just 10 meters
from the bamboo fence of Garcia’s house was a handkerchief with the name
“Danny” or “Dony” embroidered on it.^[7]

On the basis of the preliminary examination by the municipal
judge on October 26 and 27, 1979, the two accused were ordered arrested and
detained without bail.  In two separate complaints, Danilo Lazo and Berting Arellano were
charged with murder with frustrated murder (Criminal Case No. 1766) and Danilo Lazo alone with illegal
possession of firearm and ammunitions (Criminal Case No. 1768).

Arraignment of the accused in the aforementioned cases was set on
November 15, 1979 before
the office of the municipal judge.  Danilo and Berting entered a plea
of not guilty and waived their right to the second stage of preliminary
investiga­tion.  The two cases were then
forwarded to the then Court of First Instance for the filing of the appropriate
information.  Criminal Case No. 1768 (for
illegal possession of firearm) was subsequently dismissed on October 22, 1980 for insufficiency
of evidence.^[8]

Meanwhile, the information accusing Danilo
and Berting of murder with frustrated murder for the
death of Felipe Garcia and wounding of Tony Arellano was filed on February 24, 1981.  It reads:

“That on or about October 13, 1979, in the municipality of Abulug, province of Cagayan, and
within the jurisdiction of this Honorable Court, the said accused Danilo Lazo alias Danny and Berting Arellano y Sabalo, armed
with a gun, conspiring together and helping each other, with intent to kill,
with evident premeditation and with treachery, did then and there wilfully, unlawfully and feloniously assault, attack and
shoot Felipe Garcia and Tony Arellano, inflicting wounds on the body of said
Felipe Garcia which caused his death, and wound on the left leg of Tony
Arellano.

“That the accused had performed all the acts of execution
(with respect to the victim Tony Arellano) which would have produced the crime
of Murder as a conse­quence but which, nevertheless, did not produce it by
reason of causes independent of their will.”^[9]

Alleging that they have been under detention for more than one
year because no bail was recommended for their provisional release, Danilo and Berting applied for
and was granted bail at P40,000.00 each on February 27, 1981.^[10]

At their arraignment on August
11, 1981 before the trial court, Danilo
and Berting pleaded not guilty.  After due hearing, the lower court rendered a
judgment of conviction, the dispositive part of which
reads as follows:

“IN VIEW OF THE FOREGOING, the Court finds the accused Berting Arellano and Danilo Lazo guilty beyond reasonable doubt of the
crime of Murder with Frustrated Murder and considering the absence of any
mitigating circumstances and with the presence of the aggravating circumstance
of dwelling, nighttime and treachery, the Court hereby imposes the penalty of
imprisonment of Reclusion Perpetua and to indemnify
jointly and severally the widow of the deceased Felipe Garcia the amount of
P12,000.00 and to pay the costs of the proceedings.”^[11]

In adjudging Danilo and Berting guilty as charged, the lower court relied
principally on the eyewitness account of Tony Arellano, 29 years old and a farm
helper of the Garcias for about seven years.  Tony was directly facing the kitchen door
when it was flung open by the malefactors. 
The same bullet that felled Felipe grazed his left leg.  Of the several occupants of the kitchen that
Saturday night, it was only Tony who came forward to name Danilo
and Berting as Felipe’s killers.

The widow, Felicidad, a retired public
school teacher, admitted that she did not see who actually shot her
husband.  But she spoke on the possible
motive behind the killing.  While Felipe
was still a councilor in the locality, he accidentally shot Domingo Lazo, the father of Danilo.  Also, about a month before Felipe’s death, Prisco Garcia and Juan Garcia (Felipe’s brother and nephew
respectively) were accused in court of stealing the carabao
of Domingo.  Felipe’s active intervention
in the conflict thwarted efforts at settlement between the parties.  Two days after the dismissal of the case
against Prisco Garcia, Felipe was fatally shot.^[12]

As earlier noted, the two accused filed separate appeals.  Danilo assailed the
trial court for giving credence to the unreliable testimony of alleged
eyewitness Tony Arellano, for not appreciating his defense of alibi and in not
acquitting him on reasonable doubt.  For
his part, Berting contended that he was denied due
process of law when the information for murder with frustrated murder was filed
against him in the absence of a valid
preliminary investigation and representation by counsel.  He likewise maintained that he was elsewhere
when the crime was committed.

Pending review, accused-appellant Danilo
Lazo was released on temporary liberty by reason of
ill health.  Berting
is presently confined at the New Bilibid Prison in Muntinlupa.^[13]

In denying his participation in the killing of Felipe Garcia, Danilo Lazo, 30 years old, farmer
and a resident of Macugay, Guiddam,
Abulog, Cagayan, told the
trial court that from October 11 to
14, 1979, he was staying at the clinic of Municipal Health Officer
Dr. Gregorio Farin in Ballesteros,
Cagayan, which is about fourteen (14) kilometers from
Macugay.  His
wife, Maribel, was confined in that clinic because of
profused bleeding due to threatened abortion.  Danilo and his wife
had earlier left Macugay at about 5:00 o’clock in the afternoon
of October 11, 1979.  Because of Maribel’s
delicate condition, Dr. Farin ordered her immediate
confinement.  Thus from the afternoon of
October 11, 1979 until 2:00 p.m. of October 14, 1979 when Maribel
was discharged, Danilo was constantly by her side
except briefly in the morning of October 14th when Danilo
went to Macugay to get additional money.  According to Danilo,
their meals and other provisions were brought to them by his mother-in-law who
lived about a kilometer away from the clinic. 
And except for the occasional visits of his mother-in-law, he and his
wife were left to themselves.^[14]

Danilo sought to destroy the credibility
of Tony as the prosecution’s sole eyewitness by pointing to allegedly patent
inconsistencies in his testimony. 
According to Danilo, Tony contradicted himself
when he tried to describe the kind of weapon used in shooting Felipe.  Tony also wavered when asked about the
distance between the assailants and their victims.  It is also incredible and contrary to human
nature that after the first gun report, Tony did not seek cover and instead
just stared at the gunmen.  Likewise, it
is utterly unbelievable that despite having been shot on the leg, Tony, by
himself, could bodily lift Felipe and bring him to the second floor of the
house.

Danilo, moreover, cautioned against blind acceptance of Tony’s
testimony.  In 1978, Tony had an
altercation with Berting over a stoning incident and
it was quite possible that Tony could still harbor a grudge against Berting.  Moreover,
it should be expected that Tony would be a biased witness because he was a farmhelper of the deceased for many years.

We hold that the trial court did not err in believing Tony’s
narration.  Despite its seeming
inconsistencies, it is a fairly accurate account of the crime in question and
dovetails with the postmortem report and the findings of the investigating
officers who repaired to the scene for an on-the-spot assessment.

It is a well-established rule that the testimony of a single
witness, if positive and credible, is sufficient to support a conviction.^[15]
We see no reason to deviate from the trial court’s observation that Tony’s
testimony bore “the earmarks of truth and sincerity” x x x “having been delivered
spontaneously, naturally and in a straightforward manner.”^[16]

The Court seriously doubts the defensive claim of Danilo that on the night Felipe was gunned down, Danilo was at the bedside of his ailing wife, at the clinic
of Dr. Farin, fourteen kilometers away.  First, the distance between Ballesteros and Macugay, the
scene of the crime, can be negotiated in an hour.  So there is no impossibility of access.

Second, while Dr. Farin might have confirmed
Danilo’s presence in his residence-cum-clinic, there
were no pieces of evidence like medical records or hospital receipts to
substantiate Danilo’s four-day stay in the clinic
except for the medical certificate which Dr. Farin
issued on November 4, 1979
or three weeks later, upon the request of Danilo’s
wife.  In his testimony, Dr. Farin declared that he did not keep any medical records of
his patients treated outside of his regular office, the rural health unit.^[17]
For a doctor, this is highly irregular. 
Records are indispensable in monitoring the medical history of patients,
including drugs administered in the course of their treatment.

Third, Danilo’s answers during
cross-examination were evasive and uncertain. 
He practically groped for words when asked to elaborate on the physical
layout of the clinic, the alleged lack of medical equipment and toilet
facilities, and whether or not a nurse or midwife attended to his wife.  It also strikes the Court as strange that Danilo chose to bring his bleeding wife to Dr. Farin’s clinic, fourteen kilometers away, when there were
nearby clinics in Macugay.  It was also
a fact that Danilo’s wife had a physician-uncle who
resided near the house of his mother-in-law.^[18]

The other accused, Berting Arellano, 30
years old, farmer, also claimed that he had an alibi.  He testified that on that fateful night of October 13,
1979, he was in Sta. Teresita, Cagayan, working as a farmhand of Mrs. Leonarda
Madayag, his cousin-in-law.  He had been Madayag’s
farmworker since 1978.  On October
17, 1979, he went to Macugay, Abulug, Cagayan to look for other
farmworkers to help in the transplanting of rice
seedlings.  While in Macugay,
he learned that his uncle Eping (Felipe Garcia), a
second degree cousin of his mother, had been shot and was then lying in state
at his residence.  Unable to find the
needed planters, Berting instead remained in Macugay to attend his uncle’s wake until the
interment.  After the burial, Berting, together with Danilo,
was apprehended as suspect in the killing of Felipe Garcia.^[19]

Berting’s alibi is an obvious
fabrication.  Any farmer worth his salt
must first assure himself that there are available farmhands before he starts
procuring rice seedlings.  The time element
is crucial.  These seedlings must be
transplanted within a definite time frame or else they will wilt and become
useless.  In the case of Berting, it was like placing the cart before the
horse:  he would like us to believe that
they bought the seedlings first, after which he was told by his cousins to
proceed to Macugay to hire workers for planting.

To corroborate his
exculpatory tale, Berting presented Leonarda Madayag, his first
cousin-in-law, as defense
witness.  Leonarda
testified that Berting was in Sta. Teresita on October
13, 1979 helping out in
the ricefield. 
She recalled that it was on October
17, 1979 when she and her husband sent Berting
to Macugay to look for farmhelpers.  But on cross-examination, Leonarda
could not fully account for the whereabouts of the accused during the night in question.  She could not state with certainty that it
was impossible for Berting to be in Macugay at the precise time that Felipe was murdered.  Moreover, she showed her bias in favor of Berting when she admitted that she and her husband were
very close to him and even considered him as their son and allowed him to stay
in their house.  The mother of Berting and Leonarda’s
mother-in-law were sisters.^[20]

Altogether, the alibi
offered by Berting was not only inherently weak; it
also lacked a strong corroboration.  The court a quo did not err when it gave more
evidentiary value to the positive identification made by Tony Arellano.  The crime scene was amply lighted.  Tony was familiar with the accused since they
were all barriomates. 
The defense was unable to conclusively establish that Tony was
ill-motivated when he denounced Danilo and Berting as his master’s
killers.

Perhaps in a final bid to gain a reversal, Berting assailed his
conviction from a procedural standpoint. 
Berting contended that he was denied due
process when the information for murder with frustrated murder was filed
against him and Danilo despite the absence of a valid
preliminary investigation and representation by counsel.^[21]

The argument is devoid of
merit.  The records of the case
reveal that Berting and Danilo
were duly informed of their right to preliminary investigation and to counsel
but it was they who chose to forego with the second stage of the
proceedings.  It must be stressed that
the right of an accused to a
preliminary investigation is a personal right and can be waived expressly or by
implication.  That the two accused
explicitly waived their right is shown in the certification and order issued by
the municipal judge on November 15,
1979 to the effect that:

“PRELIMINARY
INVESTIGATION

“After arraignment the accused were informed and made to
understand of their right to enter preliminary investigation under Rule 112 of
the Rules of Court and avail themselves of the services of a counsel.

“The accused waived their right to enter preliminary
investigation and reserved their right to present their evidence in the Court
of First instance.”

“Abulug, Cagayan,
November 15, 1979.

“EUSTAQUIO
M. LIZARDO

“Municipal Judge

“ATTESTED BY:

“DANILO
LAZO (SGD.)

“(Accused)

“BERTING
ARELLANO (SGD.)

“(Accused)”

“ORDER

“x x x When
these cases were called for hearing today, the accused Danilo
Lazo, alias
Danny, and Berting Arellano y Sabado
were duly arraigned and waived their right to enter the preliminary
investigation of the second stage in Criminal Case No. 1766.  x x x”.^[22]

But assuming arguendo that there was no
preliminary investigation, the right of the accused thereto had been forfeited
by their inaction and could no longer be invoked, for the first
time, at the appellate level.^[23]
The matter should have been raised before arraignment at the trial court.^[24]

Furthermore, at the then Court of First Instance, Berting and Danilo filed on February 24, 1981 a petition for bail
without raising the alleged lack of preliminary investigation.  We have ruled that in so doing, the accused
had waived whatever defect there was in the conduct of the preliminary
investigation and are considered to have recognized the legality of their
detention.

“x x x
appellants appear to have waived such right, because immediately after their
arrest, they filed bonds for their release and subsequently proceeded to trial,
without previously claiming that they did not have the benefit of a preliminary
investigation.”^[25]

The crime committed is the complex crime of murder with
frustrated murder since the death of Felipe Garcia and the wounding of Tony
Arellano were caused by a single bullet.^[26]
The trial court correctly concluded that the aggravating circumstances of
treachery, nocturnity and dwelling attended the
commission of the crime.  Under Article
48 of the Revised Penal Code,
the penalty to be imposed upon the accused in a complex crime shall be for the
most serious crime which is murder in the instant case, the same to be applied
in its maximum period or death.  However,
in view of the constitutional provision prohibiting the imposition of capital
punishment, the penalty of reclusion perpetua was
properly imposed upon the two accused-appellants and in equal degrees since
they acted in concert in killing Felipe Garcia and injuring Tony Arellano.  Conspiracy was evident from the coordinated
movements of the two felons.  Both armed
with deadly weapons, Berting was the first to barge
into the kitchen, followed closely by Danilo who then
opened fire at the occupants.

WHEREFORE, with the sole modification that the amount of indemnity to be paid jointly and
severally by the two accused-appellants Danilo Lazo and Berting Arellano to the
heirs of Felipe Garcia be increased to P50,000.00 in line with recent
jurisprudence, the judgment under review is hereby AFFIRMED.  With costs against the accused-appellants.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Davide, Jr.,
JJ., concur.

^[1]
Records, p. 431.

^[2]
TSN, September 2, 1982, pp.
3 and 19; June 28, 1982,
pp. 8-9.

^[3]
TSN, June 28, 1985, p. 5; August 3, 1982, pp. 12-14.

^[4]
TSN, September 2, 1982, pp.
4 and 22; June 22, 1983,
pp. 34 – 45.

^[5]
Exh. A.

^[6]
Records, p. 4.

^[7]
TSN, September 2, 1982, p.
6; March 2, 1983, pp. 4-5,
10-13 and 21.

^[8]
Annex B, Rollo, p. 76.

^[9]
Criminal Case No. 1212-S (81), Records, p. 41.

^[10]
Records, p. 41.

^[11]
Records, p. 431.

^[12]
TSN, September 2, 1982, pp.
2, 13, 26-28.

^[13]
Records, p. 446; Rollo, p. 87.

^[14]
TSN, August 15, 1984, pp. 3-4, 26-27, 30.

^[15]
People v. De la Cruz, G.R. Nos. 71044-45, March 16, 1987, 148 SCRA 582.

^[16]
Records, pp. 9 and 10.

^[17]
TSN, April 10, 1984, pp. 4,
9-10, 17-18.

^[18]
TSN, August 15, 1984, pp.
23-24, 33-34.

^[19]
TSN, April 10, 1984, pp.
27-32, 39.

^[20]
TSN, November 5, 1984, pp. 3-5, 11.

^[21]
It should be noted that under the old Criminal Procedure then in force,
preliminary investigation consisted of two stages:  (a) preliminary examination and (b)
preliminary investigation proper.  Now,
under Section 37 of BP Blg. 129 and Rule 112 of the 1985 Rules on Criminal
Procedure, the two stages have been integrated. 
See People v. Cierbo, G.R. No.
62887, August 29, 1986, 143
SCRA 689.

^[22]
Records, pp. 31 and 33.

^[23]
People v. Maghanoy, G.R. Nos. 67170-72, December 15, 1989; People v. Arbois, No. L-36936, August
5, 1985, 138 SCRA 24.

^[24]
Sanciangco v. People, G.R. No. 72830, March
24, 1987, 149
SCRA 1.

^[25]
People v. Selfaison, No. L-14732, January 28, 1961, 1 SCRA 235, 244.

^[26]
People v. Paculba, Nos. L-37366-67, August 31, 1983, 124 SCRA 383; People
v. Madali, G.R. Nos. 67803-04, July 30, 1990.