PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MAGNO GUPO Y GAYETA, FLAVIO GUPO Y RAMOS AND RUDY NAZUL, (AT LARGE), DEFENDANTS-APPELLANTS.

In this appeal, father and son, Magno and Flavio Gupo, seek a
reversal of the decision of the Regional
Trial Court of
Batangas City
convicting them .of the crime of murder and sentencing them to suffer the
penalty of reclusion perpetua and to
indemnify the heirs of Miguel Atienza in the amount of P12,000.^[1]

On June 14, 1978,
the following information for murder was filed against Magno Gupo, Flavio Gupo
and Rudy Nazul:

“That, on or about the 10th day of November, 1977 at about 8:00 o’clock in the evening, in Barangay Piña, Municipality
at Taysan, Province of Batangas, Philippines.
and within the. jurisdiction at this Honorable Court, the two (2) above-named  accused, together with one Rudy Nazul alias
Rodolfo Tongga, alias Rodolfo Moralejo who is still at .large, conspiring and
confederating together, and acting in common accord, armed with’ lethal
sharp-pointed instrument, commonly known as ‘tres cantos’, bolo and lead pipe,
with intent to kill, with the qualifying circumstance of either treachery or
evident premeditation, did then and there, wilfully, unlawfully and
feloniously, attack, assault and stab with the said weapons, one Miguel Atienza
y Perez, suddenly and without warning, .thereby inflicting upon the latter
multiple stabbed and cut wounds and abrasions causing massive internal
hemorrhage secondary to stab wounds, which directly caused his death.

“That in the commission of the offense, the aggravating
circumstance of the accused having taken advantage of superior strength was
present.”

At their arraignment on December. 17, 1979, the accused pleaded
“not guilty” to the crime charged and thereafter, the prosecution.
presented their version of the crime which is as follows:

At around 8:00 o’ clock
on that fateful night of November 10,
1977, Miguel .Atienza was riding on the service jeepney owned and
driven by Pablo Acob. Riding with them at the front seat, was Patrolman
Estelito Africa.  Seated at the back were
Eufronio Lontok and Danilo Sabado. 
Coming from barangay Dagatan, they were bound for Bacao, Taysan,
Batangas where Patrolman Africa resided.

When they arrived at .sitio Duhat, barangay Piña, also in Taysan,
they saw a group of men holding bolos and a lead pipe.  Patrolman Africa
alighted from the jeepney and asked the group why, they were in the middle of
the road armed with bolos.  Magno Gupo
replied that, they had just come from the construction of a house.

Then, Magno punched Miguel. Reacting, Miguel alighted from the
jeepney and fought back. A fistfight ensued. Patrolman Africa
separated the protagonists and told the .group of Magno to go
home.  The men in the jeepney then proceeded to Bacao where .they left
Patrolman Africa at his house.

On their way back, they were “waylaid”
(“hinarang”) by Magno’s group near the house of a certain Felipe
where there was a mahjong. session. According to prosecution witness Eufronio
Lontok, Flavio Gupo, who was then with .Magno, Rudy Nazul (or Nazul) and one
Juan Magtibay, stopped the jeepney on which they were riding by flailing his
right hand in a stopping gesture. Upon seeing that Magno was holding a lead
pipe and acting suspiciously,
Eufronio alighted from the jeepney and tried to pacify Magno.

Eufronio saw Flavio as the latter grabbed and pulled Miguel from
inside the jeepney.  Rudy Nasul embraced
Miguel from behind and stabbed him twice, at the chest arid .at the armpit. As
Rudy Nasul loosened his hold on Miguel who, although staggering, ran towards
Eufronio, Flavio hacked Miguel at the nape with a bolo while Magno delivered a
blow on Miguel with the lead pipe.^[2]

According to another eyewitness, Pablo Acob, after Flavio pulled
Miguel from the jeepney, Rudy positioned himself behind Miguel, placed his left
hand on top of Miguel’s left shoulder and delivered two stab wounds on Miguel
with his right hand which was holding a sharp instrument. Rudy then Left while
Miguel. staggered to the .jeepney. 
Flavio saw Miguel and hacked him at his fontanelle with a bolo. Miguel
was still standing when Magno, armed with a lead pipe, dealt him a blow on the
nape.^[3]

Miguel fell flat on .his belly near the canal.^[4]
Pablo, a nephew of Miguel, then moved the jeepney backward and called for his
companions.  Danilo and Eufronio. The two
carried Miguel to the jeepney.  They
brought him to the Batangas Regional
Hospital where he was pronounced
dead on arrival.  Pablo later proceeded
with Danilo to the Fortune Cement to report the incident to the police.^[5]

The postmortem examination report reveals that Miguel, who was
thirty-five years old when he died, sustained the following wounds:

“1.     Multiple abrasion
– external periorbital, and zygomatic prominence in the left side.

2.       Abrasion two streaks
4 inches below nipple – right side.

3.       One (1) inch
clean-cut wound at level of ear lobe mastoid area diagonally situated.

4.       Clean-cut wound
cutting all layers of scalp 2 inches long running diagonally to the coronal section of the
occipito-frontal section scalp.

5.       Stab wound triangular
in shape about 1 inch below level of the nipple at the anterior chest wall a
little to the right at the anterior midline. 
When probed found to be directed upward backward to a depth of about 5
inches.

6.       Stab wound level of
the nipple at the anterior axillary line when probed found to be directed
upward and medially to a depth of 3 inches.”^[6]

The death certificate indicates that Miguel died of massive
internal hemorrhage due to multiple stab wounds.^[7]

On the other hand, the defendants denied having perpetrated the
crime.  Like the prosecution, they
pointed to Rudy Nasul as the culprit who stabbed Miguel. They alleged that two
unidentified persons aided Rudy in his dastardly act.

Flavio testified that Rudy Nasul and his two companions whom he
did not know, arrived at his House at around 2:00
o’clock in the afternoon of November 10, 1977. Rudy, who was his “bilas”_,
their wives being sisters, wanted to know where he could buy dogs. Flavio
accompanied them to the place where a “sibi” a shade used for wadding
ceremonies, was being built. There, they met Narciso Gupo who had been looking
for Flavio because he wanted to sell the cow in Flavio’s care
(“paiwi”).  They’ stayed near
the ‘”sibi” until around 8:00 o^’clock
in the evening.  With them were Juan,
Magtibay and several other persons.

When they were leaving the place, a jeepney stopped and a
policeman loudly asked them why they were still ‘out that late at night.  The policeman added, “Don’t you know that it
is martial law.” They shouted back telling the policeman that they came
from the construction of a “sibi.”

As Rudy approached the jeepney, Miguel Atienza boxed him and they
exchanged blows. Miguel alighted tram the” jeepney and a fistfight
fallowed. The policeman held Miguel by the arm caused him to board the jeepney
and told Flavio’s group to go home. After the jeepney had left, FIavio, Narcisa
Gudo, Juan Hagtibay, Rudy and his
two companions stayed by the roadside.

When Flavio asked Rudy why he was boxed by Miguel, Rudy replied
that they had a. misunderstanding regarding the purchase of: dogs. They then
went to the “madyungan” of one Felipe in sitio Duhat. At around 9:00 o’clock, the jeepney arrived and someone
from inside the jeepney yelled asking if Rudy was still around.  Rudy himself shouted back, “Narini”
(I am here).  The jeepney then moved
backward towards the place where Rudy was. 
After the three occupants of the jeepney had alighted, Flavio heard a
“tagupakan” (exchange of fist blows), and a commotion ensued.  Flavio overheard someone say, “Patawarin
mo ako, Rudy.” Rudy retorted, “Mamatay ka nang putang inamo ka.”

At that instance, Magno arrived and informed Flavio that his wife
had stomachache.  They were about to go
home when Flavio saw the jeepney as it moved backwards.  Through the headlight of the jeepney, .he saw
a man lying on the canal.  The men on the
jeepney carried the man “lying flat on the canal” to the jeepney and
it proceeded towards the direction of Batangas
City.^[8]

For his part, Magno, who was 54 years old when the incident,
occurred, testified .that at about the time when the crime was committed, he
was. at home.  His grandson, the son at
Flavio, arrived and informed him that his mother, Rosario, was having a stomachache.  His grandson relayed to Magno his
daughter-in-law’s request that Flavio should be fetched and that Magno should
buy medicine for her.

Acceding to that request, Magno went to the place where a
“sibi” was being erected.  Not
finding Flavio there, Magno went to the “madyungan” where-he saw,
Flavio a “curious onlooker” (“nanonood”) to what was
happening in the place.  There were
people milling around a .man lying on the ground.  When he asked Flavio what happened, Flavio
told him that there had been a fight between Rudy and Miguel.

Magno watched as; three persons helped each other lift Miguel and
carried him to the jeepney.  After the
jeepney had left, Magno, Flavio and Narciso Gupo proceeded to the store to buy
medicine and, finding it closed, they went home.

When they arrived at the house of Flavio, they found Rudy and his
two companions preparing to leave.  The
three were all covered with blood.  When
Magno asked him why he quarrelled with Miguel who used to be Rudy’s business
partner in buying dogs.  Rudy answered that they had parted ways
because Miguel was “makulit.” Rudy added that Miguel apologized to
him but he replied, “Mamatay ka na, Miguel.”

After Rudy’s group had left, Magno and Flavio conversed with the
latter’s wife, looked for herbs to cure Rosario’s
ailment and then went to bed.  At around 4:00 o’clock in the morning, Magno and Flavio
were awakened by Rosario who told them that the police were looking for
Rudy.  When they did not find Rudy, the
police invited Magno and Flavio for an investigation.  At first, Magno objected, telling the police
that they had “nothing to do about” the incident.  Nonetheless, Flavio accompanied the police to
Libio to look for Rudy.

Together with Juan Magtibay, Magno and Flavio were investigated
at the police station.  Flavio was even
tortured the police aIlegedly poured wine over his nostrils.^[9]

Narciso Gupo, who was 78 years old when he testified, was the
only witness presented by the defense to corroborate the testimonies of Magno
and Flavio Gupo. A second cousin of Magno, Narciso added that after the first
encounter of the two groups, someone from the jeepney remarked, “Kami’y
babalik” (we’re coming back).^[10]
He also stated that when the jeepney returned, Miguel asked Rudy why he was
still in the vicinity.  As the jeepney
moved backward to the place where Rudy was, the “light of the jeep was put
off”, the passengers alighted and Narciso saw six men fighting each other (“nagpanggarote”).  The three men from the jeepney were holding
“panggarote” which ‘they used beating their opponents.

The protagonists were moving while fighting until they were
behind the jeepney.  After one minute,
two men boarded the jeepney, started the engine and switched on the headlight
which revealed one man lying on the ground. 
That man was lifted by the two from the jeepney and then they went
towards the direction of the poblacion.

Thereafter, together with Magno and Flavio, Narciso went to the
house of Flavio where they found Rudy and his two companions.  Rudy was hit on his forehead while his two
companions were respectively hit on the left wrist and the back.  The three were packing their things before
leaving for Quezon for treatment.^[11]

Finding that the accused conspired with each other in killing
Miguel Atienza, that the “attacks were made in a sudden and successive
manner while the victim was defenseless and unaware, of any ill-plan against
his life” and hence in a treacherous manner, and that no other modifying
circumstances attended the execution of the crime, the court imposed the
aforementioned penalty.  It recommended
executive, clemency for Magno on account of his poor health and advanced age
(he was 64 years old when the decision was promulgated on August 6, 1984). 
It also exhorted the Philippine Constabulary and the Integrated National
Police to exert their best efforts, in arresting Rudy Nasul alias Rodolfo
Tungga alias Rodolfo Moralejo.

Defendants Magno and Flavio Gupo interposed this appeal
professing innocence of the crime for which they were convicted.

We hold that, the prosecution has-proven beyond reasonable doubt
the culpability of the herein appellants in the killing of Miguel Atienza.  They were positively identified as the
perpetrators of the crime together with the still at-large Rudy Nazul.

The stand of the defense on the impossibility of identifying the
culprits on account of the weather condition then which was dark, moonless and
starless, crumbles in the face of the positive identification of the defendants
as the ones responsible for hacking and beating Miguel Atienza by prosecution
eyewitnesses Acob and Lontok.  While it
might have been true that the headlights of the jeepney were switched on only
after the assault on Miguel, the testimony of Lontok that there was light in
the jeepney^[12]
was not satisfactorily rebutted by the defense. 
Coupled with this is the fact that both eyewitnesses, who were also
residents of Taysan, had known the Gupos for a long time.^[13]
It is a fact that when one meets a person known to him, identification takes
place at first sight.^[14]

The defense tried to demolish the credibility of Patrolman Africa
by presenting proof that he had, so to speak, an ax to grind against the Gupos
because Magno’s daughter, who used
to be Africa’s helper, refused to return to his household and that Flavio who
also used to be a worker in Africa’s “atisan”, did not do his job to
Africa’s satisfaction.^[15]
Granting that these testimonies are true, the prosecution’s solid evidence
against the Gupos has not been dented thereby inasmuch as Africa^:‘s
testimony does not relate to the fatal assault on Miguel.  In fact, Africa was
already home when it occurred.  No
evidence, however, was offered by the defense to impeach the credibility of
eyewitnesses Acob and Lontok or that they were impelled by improper motives in
testifying against the Gupos.^[16]
Consequently, said eyewitnesses identification of the Gupos should be given
full credit.^[17]

The Court completely relies on the lower court’s findings on the
.credibility of the witnesses.  After
all, the matter of credibility of witnesses is within the province of the lower
court which, having heard and seen the witnesses as they testified, is in a
better position to observe their demeanor and gauge their credibility.^[18]

Inconsistencies which may be noticed upon close scrutiny of the
prosecution eyewitnesses testimonies like the discrepancies in Acob’s and
Lontok’s versions as to what particular parts of the body of Miguel were hacked
or beaten, are not fatal to the prosecution’s case if viewed from the quick
succession of events resulting in the mortal wounding of Miguel.  A fact that one eyewitness may have seen at a
particular moment may not have been seen by or may have created a different impression
on another eyewitness.  This does not
mean, however, that the latter witness was not present at all during the
commission of the crime.^[19]
As long, as they do not detract from the substantial truthfulness and
credibility of the prosecution evidence, inconsistencies and contradictions in
testimonies, may not be considered material.^[20]
It should be noted, moreover, that the wounds of the victim as revealed by the
postmortem examination report aforequoted, are reflective of the manner of
inflicting them as testified to by eyewitnesses Acob and Lontok.

Magno Gupo’s defense of alibi is shattered not only by his
positive identification by the prosecution witnesses^[21]
but also by his own admission that, the distance between Flavio’s house where
he was allegedly at the time of the commission of the crime, and the vicinity
of the “madyungan” where the crime was committed, was more or less
fifty meters which distance could be negotiated in five to ten minutes time.^[22]To
succeed as a defense, alibi, which is the weakest of defenses and the easiest
to fabricate, must be propped up not only by proof that the accused was at some
other place at the crucial time but that it was physically impossible for him
to have been at the crime scene.^[23]
The defense failed to present these requisites.

Anent appellants’ contention that the prosecution suppressed the
testimonies of Nelia Manalo, the wife of the victim who would have testified on
the relationship between Miguel and Rudy, and Danilo Sabado, who was also
allegedly, wounded during the incident,^[24]
we hold that even if duly presented, these testimonies would have been merely
cumulative evidence which would, not have adversely affected the prosecution’s
case. At any rate, the non-presentation of some witnesses is a prerogative of the prosecuting fiscal.^[25]
Furthermore, as correctly observed by the Solicitor General, the failure of the
prosecution to present in evidence the weapons used in the assault is at no
moment considering that the postmortem examination report substantially established
that some of the wounds sustained by Miguel were caused by hacking and beating.^[26]

We agree with the lower court that, a conspiracy existed among
Rudy Nasul, Flavio Gupo and Magno Gupo. 
Their respective acts of stabbing, hacking and beating the victim show a
unity of action, and a singleness of purpose which is to inflict physical harm
on Miguel Atienza.^[27]
It is not necessary that there be evidence of a previous plan or agreement to
commit the assault.  It is sufficient
that at the time of the aggression, all the accused manifested by their acts a
common intent or desires to attack so that the act of one accused becomes the
act of all.^[28]

We find, however, that treachery is not present to qualify the
killing as murder.  Under Article 14 of
the Revised Penal Code and the ruling in People vs. Samonte,^[29]
to appreciate treachery, there must be concurrence of the following conditions:
(1) the employment of means, method or manner of execution which would insure
the offender’s safety from any defensive or retaliatory act on the part of the
offended party, which means that no opportunity is given the latter to defend
himself or to retaliate, and (2) that such means, method or manner of execution
was deliberately or consciously chosen.

On the contrary, there is no treachery where the victim saw the
four malefactors as they approached him.^[30]
Neither may treachery be appreciated where the attack was preceded by a quarrel
and a heated discussion because the victim was placed on his guard.^[31]
In the case at bar, Miguel Atienza was forewarned by the boxing incident which
took place between him and Rudy Nasul an hour earlier.  On their trip back, Miguel’s group saw how
Flavio stopped their jeepney.  In fact,
Lontok got off the jeepney when he saw Magno holding a lead pipe.  Lontok even tried to pacify Magno.^[32]
Miguel^’s group, therefore, being equipped with a motor vehicle, had
all the opportunity to insure their safety from the attacks of the defendants.

Neither is the aggravating circumstance of abuse of superior
strength, which is alleged in the information, attendant in this case.  The lower court completely ignored it and
rightly so.  Abuse of superiority
cannot-be appreciated because the evidence does not show that the Gupos and-
Rudy Nazul cooperated in such a way as to secure advantage from their
superiority in number vis-a-vis their
only victim.^[33]

Absent any qualifying circumstance, the killing of Miguel Atienza
may only be considered a homicide, not murder. 
Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal.  There being no aggravating or
mitigating circumstances, the penalty should be imposed in its medium period.^[34]
Applying the indeterminate Sentence Law, the Court in its discretion fixes the
minimum term of the penalty at prision
mayor in its maximum period.

WHEREFORE, appellants
Magno Gupo and Flavio Gupo are hereby
convicted of homicide under Article 249 of the Revised Penal Code and
accordingly, they, are imposed the indeterminate sentence at twelve (12) years
of prision mayor maximum as
minimum penalty to seventeen (17) years and four (4) months of reclusion temporal medium as maximum
penalty.  They shall indemnify solidarity
the heirs of Miguel Atienza in the amount of thirty thousand pesos (P30,000).

The Court adopts the recommendation of the lower court for
executive clemency for appellant Magno Gupo. 
A copy of this decision shall be furnished the Office of the President.

SO ORDERED.

Gutierrez, Jr., Bidin, and Cortes, JJ., concur.

Feliciano, J., in the result

^[1]
CCC-VIII-799/781.

^[2]
TSN, July 7, 1980, 17-24.

^[3]
TSN, May 27, 1980, pp. 10-14.

^[4]
TSN, .supra,  p. TSN,
May 27, 1980.

^[5]
TSN, May 27, 1980, pp. 15-17.

^[6]
Exhibit B.

^[7]
Exhibit C.

^[8]
TSN, July 26, 1983, pp.
3-12; 15.

^[9]
TSN, July 27, 1983, pp. 3-12.

^[10]
TSN,
July 13, 1982. p. 4.

^[11]
TSN,
July 13, 1982,. pp.
4-8.

^[12]
TSN,
July 29, -1980, p. 15.

^[13]
TSN,
May 27, 1980, pp.
25-26; TSN, July 29,
1980, pp. 20-21.

^[14]
People
v. Aboga, G.R. No. 70255, January
29, 1987, 147 SCRA 404.

^[15]
TSN,
August 18, 1983, p. 7;
TSN, July 26, 1983, p. 33.

^[16]
See: People
v. Melgar, G.R. No. 75268,
January 29. 1988, 157 SCRA 718.

^[17]
People
vs. Dollantes, G.R. No. 70639, June 30,
1987, 151 SCRA 592.

^[18]
People
v. Bantac, G.R. No. 77115, November 8, 1988, 167 SCRA 109; People v, Turla,
G.R. No. 70270, November 11, 1988, 167 SCRA 278; People v. Francisco, G.R. No.
69580, February 15, 1990.

^[19]
People
v. Bautista, G.R. No. 68731, February
27, 1987, 148 SCRA 155.

^[20]
People
v. Ancheta, G.R. No. 70222, February
27, 1987, 148 SCRA 178.

^[21]
People
v. Guevarra, G.R. No. 63011, November 13, 1989.

^[22]
TSN,
July 27, 1983, p. 18.

^[23]
People
v. Reunir, G.R. No. 73605, January
29, 1988, 157 SCRA 686.

^[24]
Appellants’
.Brief, p. 15.

^[25]
People
v. Andiza, G.R. No. 71986-87, August,
19, 1989, 164 SCRA 642.

^[26]
Appellee’s
Brief, p, 15.

^[27]
People
v. Masangkay, G.R. No. 73461, January
25, 1988, 157 SCRA 320.

^[28]
People
v. Montealegre, G.R. No. 67948,
May 31, 1988, 161 SCRA
700.

^[29]
L-31223, June
11, 1975, 64, SCRA 319, 325-326.

^[30]
People
v. Casiguran, L-45387, November 7, 1979; 94 SCRA
244.

^[31]
Dacanay
v. People, L-33240, November
21, 1979, 94 SCRA 383.

^[32]
TSN,
July 7, 1980, pp. 7-8.

^[33]
People
v. Mabansag. G.R. No. 60039-40, March. 20, 1985, 135 SCRA 475.

^[34]
Art.
64[1], Revised ‘Penal Code.