PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CARLITO ESWAN, PEDRO ESWAN, ELIGIO ESWAN AND CARLOS CASTRO, JR., ACCUSED-APPELLANTS.

An information for murder was filed on March 23, 1983 against Carlito Eswan, Pedro Eswan, Moises Eswan,
Eligio Eswan, Diego Sabaldo, Carlos Castro, Jr., William Navarro and Egod Arevalo.  The
information reads:

“That on or about January 20, 1983, in the evening thereof, at
barangay Palani,
Municipality of Balud, Province of Masbate, Philippines, within the jurisdiction of this
court, the said accused confederating together and helping one another, with
intent to kill, evident premeditation, treachery, superiority of strength and
taking advantage of nighttime, did then and there willfully, unlawfully and
feloniously attack, assault, stab with knife and shoot with a gun one policeman
Arestedes Pajimola, hitting
the latter on the different parts of the body, thereby inflicting wounds which
directly caused his instantaneous death.” (Original Record, p. 10)

Of the aforementioned accused, William Navarro and Egod Arevalo remained at
large.  Benedicto
Eswan, one of the members of the group, died before
the action was commenced while Moises Eswan died during the pendency of
the case so that trial proceeded against the remaining accused only.  Upon arraignment, they pleaded not guilty to the charge of murder.

After weighing the evidence presented by both the prosecution and the
defense, the Regional Trial Court of Masbate rendered
a decision on May 4, 1988
acquitting Diego Sabaldo for absence of proof of
guilt, while Carlito Eswan,
Pedro Eswan, Eligio Eswan, and Carlos Castro,
Jr. were found guilty as charged.  The
dispositive portion of said decision reads:

“WHEREFORE, from the presentation of the evidence of both the
prosecution and the defense, the court is convinced beyond reasonable doubt
that Carlito Eswan, Pedro Eswan, Eligio Eswan
and Carlos Castro, Jr. are guilty beyond reasonable doubt of the crime of
murder, and since they were acting in confederacy, the act of one is the act of
all as shown in their action
which is concerted and shows planning. 
For this finding, since there are no mitigating circumstances in order
to lower the penalty of the crime committed, they are hereby sentenced to
suffer the penalty of reclusion perpetua to be served
at the National Penitentiary at Muntinlupa, Rizal.

As to the guilt of Diego Sabaldo, since
no proof was presented to show a guilt beyond
reasonable doubt, he is hereby acquitted of the charge.  As to the two accused, William Navarro and Egod Arevalo, and the court not
having acquired jurisdiction over their persons and at the same time no
evidence was ever presented in order that they could be convicted of murder,
they are hereby exculpated from the crime of murder.

The accused are hereby ordered to pay an indemnity of THIRTY THOUSAND (P30,000.00) PESOS in a joint and solidarity (sic) capacity to be paid in favor of the heirs of
Patrolman Pajimola in the form of damages, and to pay
the cost of the suit”.  (Rollo, pp. 30-31)

The case is now before us on
joint appeal by the four accused, specifically assigning the following
as errors of the trial court:

I

“THE LOWER
COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF
PROSECUTION’S PRINCIPAL WITNESS JOEL VILLARUEL.

II

THE LOWER COURT
ERRED IN FINDING THAT ACCUSED-APPELLANTS ACTED IN CONFEDERACY IN THE CRIME OF
MURDER AGAINST COMPLAINANT.

III

THE LOWER COURT
ERRED IN NOT APPRECIATING THE JUSTIFYING CIRCUMSTANCE OF DEFENSE OF A RELATIVE
IN FAVOR OF CARLITO ESWAN, ELIGIO ESWAN AND PEDRO ESWAN.

IV

THE LOWER COURT
ERRED IN ADMITTING AFFIDAVIT OF CARLOS CASTRO, JR. AS EVIDENCE FOR THE
PROSECUTION.

V

THE LOWER COURT
ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIME OF MURDER BEYOND
REASONABLE DOUBT.” (Rollo, p. 48)

Interposing the defense of alibi, the accused-appellants present
their version of the incident as follows:

“Pedro Eswan testified during his
direct and cross-examination on the following matters:

He was in his house together with his son Eligio
Eswan in the evening of January 20, 1983; both of
them did not leave the whole
evening of January 20, 1983, (t.s.n., June 25, 1986,
pp. 3-4); Joel Villaruel is not his relative, (t.s.n., June 25, 1986, p. 7); he slept at around 8:00
o’clock in the evening of November 20, 1983 and woke up early in the morning
while Eligio slept with his mother, (t.s.n., June 25, 1986, p. 12).

Eligio Eswan
testified during his direct and cross-examination that:

He was in their house in the evening of January 20, 1983; he slept at about 7:30 p.m. on that same night and woke up at 7:30 a.m. on the following day (t.s.n., June 25,
1986, pp. 18-20);

Carlos Castro, Jr. testified during the direct and cross-examination
that:

He was sleeping in his house at Sitio Salipsip, Balud, Masbate at 11:00 o’clock p.m. on January 20, 1983 (t.s.n., July 30, 1986, pp. 2-3); he did not go out of the
house that night and woke up at about 6:00 o’clock in the morning, (t.s.n., July 30, 1986, p. 3); Joel Villaruel
has a grudge on him.  (t.s.n., July 30,
1986, pp. 6-7)

Diego Sabaldo testified on the following
matters during his direct and cross-examination:

He was fishing at the seashore in Palani
from 7:00 o’clock p.m. of January 20, 1983 to 3:00
o’clock a.m. on the next day; he
does not know the Eswans, (t.s.n.,
August 4, 1986, p. 9).

Carlito Eswan
testified during his direct and
cross-examination on the following matters:

He passed by the public plaza of Palani, Balud, Masbate at about 10:00
o’clock p.m. of January 20, 1983; he saw Jesus Pabeto,
Jose Beruela, Benedicto Eswan and Pajimola drinking
whisky at a store outside the plaza and Pajimola
asked him to drink with them, (t.s.n., August 5,
1986, pp. 2-3); Jesus dropped the glass which he offered to Benedicto;
an argument between the two followed and Pajimola
drew his gun; Benedicto embraced Pajimola
to pacify him but the latter pushed Benedicto (t.s.n., August 5, 1986, p. 5); Benedicto
fell down and was shot by Pajimola thrice when Benedicto was about
to stand up; Benedicto was hit at his back and Carlito grabbed the gun of Pajimola
and shot Pajimola when the latter followed, (t.s.n., August 5, 1986, pp. 6-7); Barangay
Captain Andrade intervened and grabbed the gun so Carlito
lifted Benedicto and proceeded to the pumpboat going to Mandaon, (t.s.n., August 5, 1986, pp. 8-10); he did not see Pedro, Eligio, Moises, Diego nor Carlos
during the time that he was at the public plaza on the same evening of January
20, 1983, (t.s.n., August 5, 1986, pp. 9-10); he presented a death
certificate evidencing the death of his brother Benedicto,
(t.s.n., August 5, 1986, p. 11); Pajimola was responsible for
the gun report and not him as testified earlier by Joel Villaruel
and Mamerto Bañez, (t.s.n., August 5, 1986, p. 13); he did not see Joel Villaruel and Mamerto Bañez when he arrived at the plaza up to the
time of the incident of January 20, 1983, (t.s.n.,
August 5, 1986, pp. 14-15); he saw Pajimola already
drunk at the time of his arrival at the plaza, (t.s.n.,
August 5, 1986, p. 21).” (Appellant’s Brief, pp. 8-10)

The prosecution on the other hand presents its version, thus:

“At around 9:00 o’clock
in the evening of January 20, 1983,
Balud INP Patrolman Arestedes
Pajimola, in company of Mamerto
Bañez, went to Barangay Palani, Municipality
of Balud,
Masbate, on official mission
to watch and observe a public dance being held at the public plaza (tsn, July 24, 1984,
pp. 19-20).  The place was well lighted
by electric fluorescent lamps (tsn, January 11, 1984, p. 6; July 24, 1984, p. 20).  On arrival at the plaza, Patrolman Pajimola and Bañez settled
themselves by sitting on a bench made of cut-off coconut trunk (tsn, July 24, 1984,
p. 20).  While thus seated, they heard a gun report (tsn,
January 11, 1984, pp. 6-7; July 24, 1984, p. 20).  It was accused Carlito
Eswan who fired a shot towards the ground (tsn, January 11,
1984, p. 6-7).  Patrolman Pajimola stood up to verify what was the gun report about
and found that it was accused Carlito Eswan who fired a shot (tsn,
January 11, 1984, pp. 6-7; July
24, 1984, p. 21).  Patrolman Pajimola tried to get Carlito Eswan’s handgun and arrest him (tsn,
January 11, 1984, p. 7; July 24, 1984, p. 21) but Benedicto
Eswan, brother of Carlito Eswan, intervened, telling the policeman not to be strict
with his brother (tsn, January 11, 1984, p. 7; July
24, 1984, p. 22).  When Patrolman Pajimola insisted on apprehending Carlito
Eswan, Benedicto Eswan immediately pushed the policeman and without any
warning stabbed him on the stomach (tsn, January 11,
1984, pp. 9-10; July 24, 1984, p. 22). 
Patrolman Pajimola, realizing that he was
stabbed, pulled his service pistol tucked at his waist and fired at Benedicto Eswan who was hit at
the back (tsn, January 11, 1984, p. 10; July 20,
1984, p. 22).  Accused Carlito Eswan, upon seeing that
his brother Benedicto
Eswan was fired upon by Patrolman Pajimola,
approached the policeman and, using his own handgun, shot the policeman hitting
him three times (tsn, January 11, 1984, pp. 18-19;
July 24, 1984, p. 2; July 22, 1984, pp. 12-13). 
At that moment, several persons, namely: 
accused Pedro Eswan, Moises
Eswan, Eligio Eswan and Carlos Castro, Jr.’s
respective knives left embedded on the body of Patrolman Pajimola, while accused Diego Sabaldo boxed and hit the policeman on the head with a
flashlight (tsn, January 11, 1984, pp. 19-24; July
24, 1984, pp. 23-25).  Thereafter,
William Navarro and Egod Arevalo
arrived and both boxed Patrolman Pajimola while the
latter was lying down (tsn, January 11, 1984, p. 24).  Patrolman Pajimola
died almost instantaneously (tsn, January 11, 1984, pp. 25-26; July 24, 1984, p. 24).

The necropsy report (Exhibit ‘B’) on the autopsy conducted on the body of Patrolman Pajimola revealed that the deceased sustained three (3)
gunshot wounds on the chest and stomach which penetrated the lung and other
internal organs, and eight (8) stab wounds on the head, chest and stomach which
pierced the heart, liver and other internal organs, with his death attributed
to severe hemorrhage secondary to multiple gunshot and stab wounds (tsn, May 22, 1984, pp. 9-10, 13-16).” (Appellee’s Brief, pp.
2-5)

As can be gathered
from the narration of facts of the appellants, their defense is mainly alibi.  As held in People v. Tamayo,
et al., G.R. Nos. 79418-21, March
20, 1990, it is commonplace learning that alibi is a weak defense because it can be so easily manufactured.  Because of the positive testimony pinpointing
his direct participation in a killing, the accused must not only show that he
was at some other place at the time that the crime occurred but also that it
was physically impossible for him to
have been at the scene of the crime in order to sustain his
defense.  In fact, Carlito
Eswan testified that he passed by the plaza where Benedicto, Pajimola and some
other persons were drinking.  The rest of
the appellants testified that they were either in their respective houses or
fishing.

The fact remains that the witnesses saw the accused appellants shoot,
stab, and gang-up on the victim, Pajimola.  The positive testimony of the prosecution
witnesses who actually saw the incident at close range and who have no reason
at all to testify falsely against the
accused, established beyond reasonable doubt the culpability of the
latter.  The positive identification
established the guilt of the accused to a moral certainty.  (People v. Besa, G. R. No. 78899, March 22, 1990).

The appellants assail the trial court for giving credence to the testimony of prosecution
witnesses, Joel Villaruel and Mamerto Bañez.  They contend
that their testimonies were inconsistent. 
Said inconsistencies, as the
records show, are merely on collateral matters which are not
material nor fatal to the prosecution’s case (People v. Bautista, 148
SCRA 155 [1987]).  In fact, they bolster
the truth that indeed these witnesses were present during the incident and in
the confusion, excitement and
horror of what they were
witnessing, cannot anymore accurately recount each little detail of the incident
(People v. Obando, et al., G. R. No. 72742, February
12, 1990) as when Villaruel said Pedro Eswan stabbed the victim but when asked about the position
of Pedro Eswan, he could not recall it.

The evidence, as borne out by the records clearly manifests the
appellants’ guilt.

The question of kinship between prosecution witness Villaruel and the victim Pajimola
has likewise been raised by the appellants. 
There is nothing in the records
which shows any improper motive on the part of the prosecution witness, Villaruel to testify falsely against the accused.  This court has time and again held that mere
relationship of the witnesses to the victim is not sufficient to affect their
credibility (People v. Paras, 147 SCRA 594
[1987]; People v. Masangkay, 155 SCRA 133 [1987];
People v. Atencio, 156 SCRA 242 [1986].

Another issue raised by the accused-appellants is the trial
court’s finding that they acted in confederacy with each other.  Carlito contends
that he could not have conspired with the rest even if he shot Pajimola since there is no evidence that he participated in
the ganging up.  Pedro and Eligio for their part contend that they could not have agreed to kill Pajimola
prior to the ganging up as they were dancing in the plaza.  Their only objective for ganging up on Pajimola, as they claim, is to defend the life of Benedicto.

The arguments of the accused-appellants are not meritorious.  The facts, as gathered from the records,
establish conspiracy and community of purpose. 
First, the appellants were all at the scene of the incident.  When Carlito was being arrested, Benedicto
intervened and pushed and stabbed Pajimola.  When the latter shot Benedicto,
Carlito shot Pajimola in return.  Pedro, Eligio and Carlos, on the other hand took turns in stabbing
Pajimola until he was lifeless, afterwhich,
they fled together.  All these acts
demonstrate community of purpose.  They
synchronized their actions towards the same objective which was the liquidation
of the victim x x x (People
v. Tan, et al., G.R. No. 75530, December 19, 1989).

“Direct evidence is not necessary to prove conspiracy.  It may be inferred from acts indicating
concerted action or community of purpose x x x.  To repeat the established doctrine, where the accused move in concert toward a common purpose, conspiracy
may be inferred from their joint acts and design, without need of direct
evidence of the criminal agreement xxx.” (People v. Asuncion and Aguinaldo, G.R. No.
83870, November 14, 1989 citing People v. Rojas, 147 SCRA 169).

The accused-appellants further question the trial court’s failure
to appreciate the justifying circumstance of defense of relative in favor of Carlito, Eligio, and Pedro; Benedicto being a brother of Carlito
and Pedro, and Eligio being a nephew of Benedicto.

They contend that the elements for appreciating the defense of
relative are present-that there was unlawful aggression on the part of Pajimola, when he shot Benedicto.  It must be remembered that it was Carlito who fired a shot which Pajimola,
as police officer, investigated.  It was
likewise Benedicto who first committed a felony by
stabbing Pajimola. 
The latter only fired his gun
after he was stabbed.  He had to defend
himself from his assailants as he was alone in contrast to the
accused-appellants.  At the instance when
Pajimola fired his gun, Carlito
shot him three times, afterwhich, the other
appellants took turns in stabbing Pajimola.

From the above circumstances, it cannot be concluded that Pajimola was the aggressor. 
He was only doing his duty.  He was assigned to maintain order during the
dance at the public plaza.

Carlito further claims that he employed
reasonable means to prevent his brother from being killed and he used the gun to shoot at Pajimola
as it was the only one available then.

Eligio and Pedro, on the other hand,
claim that they both acted on the belief that Benedicto
was the victim.

We cannot appreciate the justifying circumstance of defense of
relative in favor of the accused-appellants. 
There was no necessity at all of defending the brother since his life
was not actually in danger (People v. Lingatong, G.R.
No. 34019, January 29, 1990).

On the other hand,
we agree with appellants that the affidavit of Carlos Castro, Jr.
is inadmissible in evidence on account of the absence of a counsel during its
preparation.  However, there are other independent evidence pointing to him as one of the
assailants.  He was directly implicated as having stabbed the victim.

Thus, we find no cogent reason to overturn the trial court’s
finding of guilt of the accused.  For
one, Villaruel’s testimony jibes with the doctor’s testimony and his autopsy findings.  Further, there were several antagonists
against Pajimola and Pajimola
was the one who was first
attacked.  Lastly, the victim fired his
gun only in self-defense considering that he was already wounded and the assailants were many.

Once more, we apply the
oft-repeated rule that this Court will not disturb the findings of the trial
judge unless he has plainly overlooked certain facts of substance and value
that, if considered, might affect the
result of the case (People v. Javier, G.R. No. 77756, March 26, 1990; People v.
Miranda, G.R. No. 78900, March 21, 1990). 
There is no such showing in this case.

Insofar as William Navarro and Egod Arevalo are concerned, the trial court never acquired
jurisdiction over them and, therefore, it can neither convict nor exculpate
them.  References in the judgment as to
them are pure obiter with no binding
effect.

WHEREFORE, premises considered, the judgment appealed from
is hereby AFFIRMED except as to the exculpation from liability of WILLIAM
NAVARRO and EGOD AREVALO which is stricken
off, the trial court never having acquired jurisdiction over them.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, and Bidin, JJ., concur.

Cortes, J., no part.