PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE MACALINO Y LAGMAN, NELSON BAUTISTA ALIAS NELSON INTSHIK AND DOMINADOR ROBLES ALIAS DOMING, DEFENDANTS-APPELLANTS.

Jose Macalino, Nelson Bautista alias
“Nelson Intshik” (or “Intsik“) and Dominador
Robles alias “Doming” were charged with murder in Criminal Case No. C-16360 (81)
before the Regional Trial Court, National Capital Region, Branch 121 (Caloocan City)
in an information dated November 12,
1981 which alleged:

“That on or about the 11th day of August, 1981 in Kalookan Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused conspiring
together and mutually helping one another, with deliberate intent to kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, stab and hack with the use of an axe on the
different vital parts of his body one Renato Chavez y
Chavez, thereby inflicting upon the latter serious physical injuries, which
injuries caused the victim’s death at the Kalookan
City General Hospital.”^[1]

Upon being arraigned, the three accused pleaded “not
guilty”.

The evidence for the prosecution shows that at about three o’clock in the afternoon of August 11, 1981 at Isla San Juan, Tambakan, Maypajo, Caloocan
City, Renato
Chavez, twenty-five years old, married, and doormat maker, was stabbed at an
alley by the three accused.  He died
several hours later at the Caloocan
General Hospital
from multiple stab wounds.

The stabbing incident (“saksakan“)
was witnessed by Carlito de Leon, twenty-seven years
old, jobless, who was then on his way to the house of Chavez to have the socket
of his flat iron repaired by the latter.  Nearing his destination and about two arms
length from the scene of the assault, De Leon
noticed Chavez talking with Macalino.  The latter was holding a knife.  They seemed to be arguing but from where De Leon
stood, he could not understand what they were saying.  Nelson Bautista and Dominador
Robles, two companions of Macalino, stood in front and at the right side of Chavez, respectively.  Suddenly, Bautista, who was facing Chavez,
stabbed the latter, hitting him in the front part of his body.  Chavez turned around and ran away but his
attackers pursued him.  Then Bautista
axed him (“pinalakol“), striking him at the
back.  Robles and Macalino
also stabbed the victim.^[2]

People scampered away.  De Leon
became frightened.  He stepped farther
back and tried to hide himself (“tumabi“).^[3]

Chavez fell to the ground. 
His three assailants then fled from the scene.  Soon after, several persons came to help Chavez.  De Leon himself was not able to help as he
was shocked by what he had just seen.^[4]

At the time of the stabbing, Chavez’s wife, Nelia
Lopez, about nineteen years old, was at home, sick.  She heard a girl shouting that her husband
was being stabbed.  She ran out of the
house and almost collided with Chavez who was bloodied and could not
speak.  She went out to call her
brother-in-law, Restituto Chavez.^[5]

Restituto, the brother of the deceased
Chavez, was then cleaning inside the church at J.P. Rizal St. when he was summoned
by Nelia, the victim’s wife.  He proceeded at once to the residence of his
wounded brother whom he found to be very pale, with eyes almost closed, and
immediately rushed him to the hospital. 
On the way, on board a tricycle, the victim told Restituto
that his attackers were Jojo Calcal
(also known as Jose Macalino), Nelson Bautista and Dominador Robles.  Restituto knew the trio personally.  At one time, they were together in a welcome
party of the “cursillo“.^[6]

At the Ospital ng
Kalookan, Chavez was examined by resident physician
Dr. Lorenzo R. Bernal.  Bernal noted that
Chavez was bleeding profusely and his face was pallid.  There was no heartbeat and blood pressure was
“zero-zero”.  Efforts to revive
the victim were futile.  Bernal
pronounced him dead on arrival.^[7]

The medico-legal certificate dated January 31, 1983 indicated the following injuries
sustained by Chavez:

“- Punctured wd. 0.3 cm. parasternal
area level of 2nd ICS (R).

– Stabbed wd. 1 cm. ant. lumbar (L); 1.5 cm. 7th ICS (L).

– Multiple lac. wd.
ranging 1-2 cm. No. 2 dorsal hand (L).

– Stabbed wd. 1.5 cm.
middle 3rd post. (L) forearm;
4 cm. ant. aspect middle 3rd (L) forearm; 2.5 cm. posterior lateral aspect
proximal 3rd upper arm (L.); 1 cm. lat. lumbar (L); post acillary
line (L) level of 9-10 ICS 1.5 cm.”^[8]

Dr. Bernal opined that the fatal wounds could have been the ones
on the chest (parasternal area) and at the anterior
lumbar area or left side of the abdomen because they were deep penetrating
wounds and could have perforated a vital organ. 
From the nature and number of wounds, he concluded that several weapons
were used and they were all sharp
ones.^[9]

Sergeant Renato Balbin
of the Northern Police district investigated the August 11, 1981 stabbing incident.  After seeing the cadaver of Chavez at the
hospital, Sergeant Balbin proceeded to the crime
scene at Tambakan, conducted an ocular inspection of
the alley and questioned several eyewitnesses, including Godofredo
Mariano, a brother-in-law of the victim. 
He gathered from them that while Chavez was walking home in the
afternoon of August 11, 1981,
his way was blocked by Jojo Calcal
(Jose Macalino). 
He was “boloed” by Macalino.  At this
juncture, Bautista came from behind and stabbed Chavez.  Chavez fled but Macalino
chased him and stabbed him, causing him to reel and fall.  Then Dominador
hacked the victim with an axe and thereafter the accused left him for dead.^[10]

Many of the people then present were markedly reluctant to tell
Sergeant Balbin what they had seen.  They also refused to testify.  Thus the police officer did not bother
anymore to take down their names.  It was
only Mariano who gave a statement.^[11]
He told the police that Macalino became angry at
Chavez because Chavez reported to the police that it was Macalino
who had stabbed Mariano the previous day, August 10th.^[12]
For reasons not shown in the records, Mariano did not appear in court despite
repeated service of subpoena.

The defense presented a totally different picture of the killing
of Chavez.  Its basic theory was that
Chavez met his death at the hands of a
rival Tondo gang during a rumble.

Accused Dominador Robles, a twenty–one
year old tailor, testified that on August
11, 1981 at three in the afternoon, he was then in front of a store
at Tambakan, which, as the name denotes, is a garbage
dump area.  He was talking with the two
other accused, Nelson Bautista and Jose Macalino.^[13]

He noticed four persons approaching.  He recognized one of them as Romy, an acquaintance from Tondo.  Then pandemonium broke loose as two warring
gangs, one from Tondo, led by Romy,
and the other group from Tambakan, headed by the
victim Chavez or “Rene,” tangled with one another.^[14]

The appellants lost no time in joining the free-for-all.  Since “Rene” was from their place,
they rallied behind him.  They picked up
stones and threw
these at the outsiders.  When the latter
tried to flee, they ran after them but failed to catch any one.  The whole thing was over in fifteen minutes,
after which the accused went home.  They
did not know what happened to Chavez because they were then pursuing the rival group from Tondo. 
It was only after an hour later that they were told that Chavez
had been stabbed and taken to the hospital.^[15]

The other accused, Jose Macalino, a calamansi vendor, then about eighteen years old,
corroborated the story of Robles.  He
testified that he did not witness the actual killing of Chavez.^[16]

The third accused, Nelson Bautista, was not presented as a
witness because, according to the defense, his testimony would only be
corroborative.^[17]

Unconvinced by the version of the defense, the trial court rendered
judgment on June 13, 1986,
the dispositive portion of which reads:

“WHEREFORE, the Court finds the accused JOSE MACALINO y
LAGMAN, NELSON BAUTISTA alias ‘Nelson
Intsik’ and DOMINADOR ROBLES alias ‘Doming’ GUILTY
beyond reasonable doubt and as principals,
of the crime of MURDER as defined and penalized under Article 248 of the Revised Penal Code, and there being
no attendant mitigating nor aggravating circumstances, hereby sentences them to
suffer imprisonment of RECLUSION PERPETUA to jointly and severally indemnify
heirs of the deceased Renato Chavez in the sum of
thirty thousand pesos (P30,000.00) as actual and compensatory damages, fifty
thousand pesos (P50,000.00) as moral damages plus costs of the suit.”^[18]

On behalf of the three accused, their counsel de oficio
appealed to this Court.  It should be
noted however that as to Jose Macalino, the appeal is
considered abandoned by reason of the fact that he is presently at large,
having escaped from confinement in the local city jail during the pendency of the trial in the lower court on June, 19, 1984.^[19]

Appellants contend that the court a quo erred in (1) not finding that the
prosecution witness Carlito de Leon was a perjured
witness; (2) in finding that the victim made a dying declaration; and (3) in not
finding that the prosecution failed to prove their guilt beyond reasonable
doubt.

Appellants assail the testimony of Carlito
de Leon on the ground that he is not a credible witness as shown by the following
circumstances:  (1) De Leon is a Sputnik
gang member; (2) he was not really an eyewitness since he did not actually hear
the subject matter of the alleged argument between the victim and the accused Macalino; (3) he
was indifferent to the investigation in that he did not promptly report to the
authorities that he had actually
witnessed the fatal attack on Chavez, and (4) he made a mockery of the trial when he was
noted to have laughed on two occasions while he was being cross-examined on the
witness stand.

And what if De Leon
belongs to the dreaded Sputnik gang? 
Appellants have not presented a single piece of proof to show that as a member thereof, De Leon
has engaged himself in activities which are likely to affect his integrity and
credibility.  On the other hand, it has
equally been established that De Leon is a member of the Damayan
Magkakapitbahay, a neighborhood association involved
in civic work.^[20]

While De Leon
was admittedly two arms length from the scene, this would not make his
eyewitness account any less credible.  It
is not important that he should have heard the conversation between Macalino and the victim. 
From where he stood, he could clearly see the acts of the accused.  He sensed that there would be an ugly
confrontation because Macalino was holding a
knife.  While he was afraid, he could not
contain his curiosity.  He watched as the
three assailants delivered the fatal blows that would kill Chavez.

The alleged apathy or indifference of De Leon
to the ensuing police investigation is not unusual.  It is not uncommon for ordinary people to
refrain from getting involved.  This is
of judicial notice.^[21]
Sometimes, the fear of possible reprisals compels them to remain silent especially if the personalities involved are
known notorious characters in the neighborhood. 
Macalino, for one, is a member of the Commando group which is an adversary of the
Sputnik gang to which the deceased Chavez belonged.  He has also been in jail once for theft.^[22]

The trial court did not err in believing De Leon’s
narration.  Despite its inconsistencies
and Del Leon’s deplorable behavior at the witness stand, it is a fairly
accurate description of how Chavez was killed.

As for the defense, its explanation of the death of Chavez is
hardly plausible and is highly speculative. 
By their admission, neither one of the appellants saw
the actual stabbing of the deceased. 
The positive identification made by De Leon
of the three accused as the perpetrators of the crime cannot be overcome by the
mere denial of the accused who conjectured that the stabbing came from the Tondo
group but without pinpointing the actual knifewielders.

Not only that.  The defense
has also unsuccessfully refuted the condemnatory ante mortem statement made by
the victim in which he named the accused as his assailants.  The
appellants assail the admissibility of such statement on the ground that the
prosecution failed to show that it was
uttered under consciousness of
an impending death.  Appellants contend
that the declarant should have categorically stated
at the time he implicated the accused that he knew that his death was imminent.

This is untenable and downright absurd.  For the dying declaration to be admissible,
it is not necessary to prove that the declarant
stated that he is at the brink of death. 
It suffices if, judging from the nature and extent of his injuries, the
seriousness of his condition is so apparent to the victim that it may safely be
inferred that such ante mortem declaration was made under consciousness of impending death.^[23] That his demise came swiftly upon his
arrival at the hospital further emphasizes the victim’s realization of the
hopelessness of his recovery.

Counsel for appellants would want this Court to believe that his
clients are innocent as shown by the fact that they did not attempt to leave
the locality after the incident.  While in proper cases that may indicate lack
of guilt, it may also be interpreted to mean that the appellants, notorious as
they are, felt complacent that their neighbors would be cowed into keeping quiet.  In this regard they were probably right.  For despite the many onlookers and
bystanders, only a handful had the gumption to reveal what they had witnessed, as disclosed by the police investigator.

Appellants were positively identified   by an eyewitness.  They were
also implicated in the ante mortem statement made by the victim.  These crucial pieces of evidence sufficiently
negate the alibi and denials proferred by the
appellants, more so when the latter have not shown that the murder charge and
the testimonies in court were impelled by ill motive.  Appellants’ guilt has been established to a
moral certainty and that guilt or culpability is imputable to all appellants in
equal degrees because they acted in
unison in snuffing out the life of Chavez. 
The existence of a conspiracy can be inferred from the fact that the
three felons ganged up on the deceased and took turns in stabbing him.  They also fled together after accomplishing
their violent mission.^[24]

Contrary to the finding of the trial court, the fatal assault on
Chavez was not characterized by treachery.

Alevosia, to be qualifying, should
indicate that the attack was deliberate and unexpected.  It is not present where the victim, before
being attacked, had a heated
argument with one of the malefactors. 
That must have placed him on his guard. 
Furthermore, he was standing face to face with them so that the initial assault
was not sudden or unforseen.  As a matter of fact, all but one of the stab
wounds sustained by Chavez were in front of his body which would demonstrate
that the assault on him was frontal.^[25]
If at all, the element of suddenness was only the reaction on the part of the
eyewitness.^[26]

But the commission of the felony was attended by abuse of
superiority in number.  Chavez was killed
by three persons who were all armed and who took advantage of their combined
strength to consummate the offense. 
Against their clearly
superior power, it was impossible for the lone victim to resist and defend
himself.^[27]

It follows that the crime committed is not murder but homicide, modified by the generic aggravating
circumstance of abuse of superior force. 
There being no mitigating circumstance to offset the aggravating
circumstance, the penalty to be imposed upon the accused is the maximum period
of the penalty prescribed under Article 249 of the Revised Penal Code which is reclusion temporal in its maximum period.

WHEREFORE, the
judgment  of the court a quo is modified in that accused-appellants Nelson Bautista alias
“Nelson Intshik” and Dominador
Robles alias “Doming” are found guilty of homicide.  They are hereby sentenced to an indeterminate
penalty of six (6) years and one (1) day of prision mayor as minimum to eighteen
(18) years of reclusion temporal as maximum, and to
pay the heirs of the victim jointly and severally the reduced amount of P10,000.00 as moral damages, the award of P50,000.00 moral
damages by the trial court being excessive. 
With respect to accused Jose Macalino and the
civil indemnity of P30,000.00 to be paid jointly and
severally by the three (3) accused, the judgment is AFFIRMED.  Costs against the
appellants.

 SO
ORDERED.

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

^[1]
Records, p. 1.

^[2] TSN, July 27, 1983, pp. 41-43.

^[3] TSN, July 27, 1983, p. 43.

^[4] TSN, July 27, 1983, p. 44.

^[5]
TSN, June 27, 1983, p. 33.

^[6] TSN, January 31, 1983, pp. 3-4.

^[7] TSN, January 31, 1983, pp. 10-13.

^[8] Records, Exh.
A.

^[9] TSN, January 31, 1983, pp. 17, 22.

^[10] TSN, June 6, 1983, pp. 27-29;
Records, Exh. C.

^[11] Records, Exh.
B.

^[12] TSN, June 6, 1983, p. 30.

^[13] TSN, October 18, 1983, pp. 62-63.

^[14] TSN, October 18, 1983, pp. 63-64.

^[15] TSN, October 18, 1983, pp. 63-64, 68.

^[16] TSN, December 20, 1983, pp. 74-77.

^[17] TSN, December 20, 1983, p. 84.

^[18] Records, p. 146.

^[19] Records, p. 138.  See Resolution dated November
10, 1988 in G.R. No.
57718, entitled “People v. Patajo“.

^[20] TSN, July 27, 1983, p. 56.

^[21] People vs. Pacabes, G.R. No. 55417, June 24, 1985, 137 SCRA 158.

^[22] TSN, December 20, 1983, p. 79.

^[23] People vs. Elefano, Jr., No. L-32573, November
25, 1983, 125 SCRA 702; People vs. Jacinto, G.R. No. 51908, November 29, 1984, 133 SCRA 498.

^[24] See People vs. Bacho,
G.R. No. 66645, March 29, 1989.

^[25] People vs. Canete, 44 Phil. 478; People vs. Casiguran, No. L-45387, November 7, 1979, 94 SCRA 244; People vs. Dacanay, No. L-33240, November 21, 1979, 94
SCRA 383.

^[26] People vs. Camilet, G.R. No. 70392, June
30, 1986, 142 SCRA 402.

^[27] People vs. Baul,
39 Phil. 846; People vs. Villamora, 86 Phil.
287; People vs. Bacho, G.R. No. 66645, March
29, 1989.