THE PEOPLE OF THE PHILIPPINES, PLAINTIFF/APPELLEE, VS. CONRADO GABATIN AND RICHARD GABATIN – AT LARGE, DEFENDANTS, CONRADO GABATIN, DEFENDANTS-APPELLANT.

Conrado Gabatin
appeals from a decision of the Regional Trial Court of Aparri
Cagayan, Branch 10, finding him guilty of murder and
sentencing him to reclusion perpetua and to pay
damages to the heirs of the deceased victim, Danilo Oreña.

Appellant was charged in Criminal Case No. X-85-58 in an
information, dated 19 February 1985,
which reads:

“The undersigned Acting Provincial Fiscal, accuses Richard Gabatin and Conrado Gabatin of the crime of Murder, defined and penalized under
Article 248 of the Revised Penal Code, committed as follows:

That on or about March 17 1984, in the municipality of Sta. Teresita, province of Cagayan,
and within the jurisdiction of this Honorable Court, the said accused, Richard Gabatin and Conrado Gabatin, together with one Pepe
Sebastian who is already dead, armed with sharp pointed instruments and bottle
of beer, conspiring together and helping one another, with intent to kill, with
evident premeditation and with treachery, did then and there wilfully, unlawfully, and feloniously assault, attack,
throw bottle of beer and stab on, Danilo Oreña, inflicting upon the latter wounds on his body which
caused his death.

Contrary to law.^[1]

Only Conrado Gabatin
was arraigned as his co-accused, Richard Gabatin, was
still at large at the commencement of the trial and so far as the record shows,
remains at large to date.

On arraignment, appellant pleaded not guilty and after trial, the
trial court found him guilty as charged in a decision, dated 24 May 1988, the dispositive
portion, of which reads:

“WHEREFORE, the” Court finds Conrado
Gabatin guilty beyond reasonable doubt of the crime
of murder qualified by treachery as defined and penalized under Article 248 of
the Revised Penal Code, and there being no aggravating or mitigating
circumstances, is hereby sentenced to suffer the penalty of Reclusion Perpetua, with all the accessory penalties provided
for by law; to indemnify the heirs of Danilo Oreña the sum of P30,000.00; and to pay costs.

As the accused Richard Gabatin is still
at large, the case against him is ordered archived without prejudice to its
reinstatement if warranted.

SO ORDERED.”^[2]

Appellant is now before this Court alleging that the trial court
erred in finding that there was “implied conspiracy” among appellant,
Richard Gabatin and Pepe
Sebastian.^[3]

The prosecution presented Dominador Oreña, Fernando Decilos and Ceferino Castro whose testimonies may be summarized as
follows:

On the evening of 17
March 1984 Danilo Oreña
attended a dance held, at Caniugan, Sta. Teresita, Cagayan,^[4]
where he was requested by the Kabataang Barangay to sell “social boxes”.^[5]  While the deceased was going around the
dancing floor soliciting bids for the “social boxes” Conrado Gabatin, without any
warning nor known motive,^[6]
started throwing bottles at Danilo Oreña.^[7]  One of the bottles hit Danilo
Oreña on the face causing him to fall on the floor^[8]and
even before he could stand up, Conrado Gabatin shouted to his son, Richard Gabatin,
and his brother-in-law, Pepe Sebastian, “Take
out his life”.^[9]  Upon hearing those words, Richard Gabatin and Pepe Sebastian
started stabbing the victim.^[10]  The assailants
then immediately left the scene.^[11]

The prosecution also presented Dr. Felipe Arellano, the Municipal
Health Officer who conducted the autopsy, whose report described the injuries
sustained by the deceased as follows:

“xxx   xxx      xxx

1.     
Conglumerated contuso-lacerated wounds at the right  face;

2.     
Stab wound of the chest, penetrating located at
the right anterior chest, 4.5 cms. at its entrance
and directed posteriorly and a little downward and
medially;

3.     
Stab wound at the chest, penetrating at the
right anterior chest a little below and almost parallel to wound No. 2,
measuring 3.5 cms. at its entrance and directed posteriorly and a little upward and medially; and

4.     
Stab wound of the left forearm at its distal
third, through and through, measuring 4 cms. at its entrace and 2 cms. at its
exit.”^[12]

Dr. Arellano stated in his testimony that the cause of death is
“shock secondary to massive internal and external hemorrhage due to
multiple stab wounds on the chest”.^[13]

Appellant Conrado Gabatin,
for his part denied having taken part in the crime.  He interposed the defense of alibi claiming
that he stayed in his house the whole night of 17 March 1984.^[14]  He claims that only his son, Richard Gabatin attended the said dance.^[15]  While on the witness stand, appellant claimed
that prosecution witnesses Fernando Decilos and Ceferino Castro, testified against him because they were Danilo Oreña’s (the victim)
relatives.^[16]

The defense also presented Johnny Laguatan
who testified that he went to the dance and stayed there for three hours before
the incident but did not see Conrado Gabatin.^[17]  On cross-examination the witness stated that
he was not able to see who participated in the commotion as he left immediately
after it started.^[18]

The pivotal question in this present case is the nature of
appellant’s participation in the killing of Danilo Oreña.  It should be
noted that appellant did not actually deliver any of the stab blows which
caused Danilo’s death; however, the trial court found
that the assailants had acted in conspiracy with one another, and therefore
appellant was held liable for the acts of his co-conspirators.

Appellant is now challenging the trial court’s finding that he
had acted in conspiracy with Richard Gabatin and Pepe Sebastian, to wit:

“Does positive and conclusive evidence exists to prove
implied, conspiracy?  The facts
established convincingly show that accused Conrado Gabatin suddenly threw a beer bottle at Danilo
which hit the right side of the letter’s face, at the same-time uttered ‘kill
him.’  Then without much ado, Richard Gabatin and Pepe Sebastian with
their respective knives stabbed the deceased Danilo Oreña.  Richard’s
knife thrust hit the chest and forearm of Danilo,
while Pepe’s knife found its mark on the chest of Danilo, according to the testimony of prosecution witnesses
Fernado (sic) Decilos, Ceferino Castro and . Dominador Oreña.  The wounds
inflicted upon Danilo by Richard and Pepe Sebastian jibes with and are confirmed substantially by
the postmortem examination on the cadaver of Danilo
by Dr; Felipe Arellano, whose findings are shown in his postmortem, examination
report, Exh. ‘A’. 
The acts of Conrado Gabatin,
Richard Gabatin and Pepe
Sebastian evinces certainly a concerted action, unity of purpose and intention
to kill Danilo Oreña.  Thus, evidence of implied conspiracy is
convincingly and sufficiently established. Existence of conspiracy is inferred
from concerted action.  Conspiracy having
been established, the act of one is the act of all.  Consequently, Conrado
Gabatin is liable for the murder of Danilo Oreña,”^[19]

claiming that there is insufficient evidence to support the
finding of conspiracy.

While the Court agrees with appellant that a finding of
conspiracy must be supported by evidence constituting proof beyond reasonable
doubt, it is equally true that such evidence need not be direct evidence.  Thus, in People v. Arroyo^[20]
it was held that:

“A conspiracy in the statutory language exists when two or
more persons come to an agreement concerning the commission of a felony and
decide to commit it.  The objective then
on the part of the conspirators is to perform an act or omission punishable by
law.  What is required is assent to the
perpetration of such misdeed.  That must
be their intent.  There is a need for
concurrence of wills or unity of action or purpose, or common and joint purpose
and design.  At times, reference is made
to previous concert of criminal design. 
Its manifestation could be shown by united and concerted action.  Thus, a conspiracy need not be proved by
direct evidence.  It may be deduced from
the mode and manner in which the offense was perpetrated.  The conditions attending its commission and
the acts executed may be indicative of the common design to accomplish a
criminal purpose and objective.  If there
is a chain of circumstances to that effect, then, conspiracy has been
established.  If such be the case, then
the act of one is the act of all the others involved and each is to be held to
the same degree of liability as the others.“  (Citing People v. Taaca,
et al., 178 SCRA 56 [1989]) (underscoring supplied)^[21]

In the present case, the acts of the accused, starting when Conrado Gabatin threw the bottle
and uttered the command or urging “Kill him” and continuing until
Richard Gabatin and Pepe
Sebastian delivered the fatal knife thrusts, all show a common design to snuff
out the life of Dominador Oreña.

Appellant claims that there is a question as to the identity of
the person, who threw the bottle at the victim^[22]
as there is an inconsistency between Dominador Oreña’s affidavit which stated that Pepe
Sebastian was the one who threw the bottle at the deceased and Dominador’s oral testimony in court stated that it was Conrado Gabatin who threw the
bottle.  However, the discrepancy was
explained and corrected by Dominador in the following
manner:

Q.   Who actually threw the
bottle at your brother, was it Conrado Gabatin or Pepe Sebastian?

A.    Conrado
Gabatin, sir.

Q.   Why did you state in your
affidavit that it was Pepe Sebastian who threw the
bottle at your brother?

A.    Yes, sir, because I was
not yet able to regain my shock feelings, sir.

Q.   And why did you state in
your affidavit that it was Pepe Sebastian who threw
the bottle and now you testified that it was Conrado Gabatin who threw bottle at your brother?

A.    I was not yet able to
regain my shock feelings before, sir.^[23]

Also, if there is an inconsistency between the affidavit and the
testimony, the latter is to be given more weight since affidavits, being taken ex-parte, are almost always incomplete and
inaccurate.  Thus, in People v. Loveria,^[24]
the Court held:

“x x x.  The appellant further claims that Richard
Bales did not implicate him in his affidavit but pointed to him on the witness
stand.  Affidavits, taken ex-parte, are generally considered to be inferior to the
testimony given in open court (People v. Pacola, G.R.
No. L-26647, August 14, 1974, 58 SCRA 370). 
The Court has consistently held that an affidavit taken ex-parte, is almost always incomplete and inaccurate,
sometimes from partial suggestions, sometimes from want of suggestions and
inquiries, without the aid of which the witness may be unable to recall the
connected collateral circumstances necessary for the correction of the first suggestions
of his memory and for his accurate recollection of all that belongs to the
subject (People v. Tan, 89 Phil, 337 (1951); People v. Gonzales, G.R. No. L-40727,
September 11, 1980, 99 SCRA 697; People v. Avanzado,
Jr., G.R. No. 73116, February 29, 1988, 158 SCRA 427).”^[25]
(Underscoring supplied)

Appellant also claims that there are inconsistencies in the
testimonies of prosecution witnesses.  He
points out that Fernando Decilos, who was nearer to
the scene of the crime, never stated he had seen Conrado
Gabatin throw the bottle.^[26]  Appellant also cites Ceferino
Castro’s testimony which made no mention that Conrado
Gabatin was the thrower of the bottle or that Conrado had uttered any words at all.^[27]

It has been held that witnesses, “possessed with different
capacities for observation, cannot be expected to recall with accuracy or
uniformity matters connected to the main overt act.”^[28]  Thus, one witness may remember seeing who
threw the bottle but the others cannot. 
What is important is that one of the prosecution witnesses, Dominador Oreña, whose
credibility had not been successfully assailed by petitioner, had positively
identified appellant as the person who had thrown the bottle at the deceased,
starting the rapid sequence of acts which culminated in death for Danilo Oreña.

Appellant also tries to make out an inconsistency between the
testimony of Fernando Decilos which stated that Conrado Gabatin had uttered the
imperative “Kill him!” and that of Dominador
Oreña who put appellant’s words as “Take out his
life.”  Appellant claims that these
two sentences are not the same nor do they sound the same.^[29]  As pointed out above, because of the
different capacities for observation of differing persons, it may also happen
that different witnesses hear the same utterance differently.  We need only note that the sentences in question
carry the same import, that is, the taking of a person’s life.

Appellant, moreover, contends that mere presence without
knowledge that a crime was going to be committed does not make him a
conspirator.^[30]
Appellant cannot, however, claim he was a mere bystander, since he had in fact
started the whole series of overt acts resulting in the death of Oreña.

Appellant, having acted in concert with Richard Gabatin and Pepe Sebastian in the
slaying of Danilo Oreña,
must be held liable for the acts of his co-conspirators.

The next question the Court must address is whether or not the
qualifying circumstance of treachery was present.

In People v Lasanas,^[31]
the Court discussed the conditions necessary to support a finding that the
criminal act was qualified by treachery:

“We come to the question of treachery.  It is familiar doctrine that two conditions
need to be satisfied for treachery to be found properly: (a) the employment of
means, method or manner of execution which would ensure the offender’s safety
from defensive or retaliatory acts on the part of the victim, no opportunity
being given to the latter to defend himself or to retaliate; and (b) such
means, method or manner of execution were deliberately or consciously
chosen.  In the instant case, the victim Benigno Ricaforte had no
opportunity to defend himself from the sudden and unexpected attack by the
accused.  He had no reason to expect
danger from the accused as his prior relationships with them had been at least
civil and perhaps cordial.  True, the
victim had with him, or more precisely, behind him, companions who might have
defended him.  But those companions were
themselves caught by surprise and, more importantly, were unarmed.  While the suddenness of an attack might not
itself be enough to constitute treachery, such suddenness is, however, enough
to qualify an act as treacherous if such suddenness were, as here, consciously
adopted to ensure the commission of the planned killing without risk to the
perpetrators.”

In People v Estillore,^[32]
the Court held that an attack was treacherous if the victim had no chance to
raise any form of defense:

“x x x.  Appellant came from behind the victim, who
was reading a newspaper, looked closely at the victim’s face and then suddenly
stabbed the victim once at the stomach thus giving the victim no time to
prepare for his defense.  The victim’s
act of trying to shield himself with a small table came after the
stabbing.  It was impossible for the victim
to flee or make defense before the fatal blow.^[33]

As noted above, appellant suddenly triggered the attack against
the unarmed Danilo Oreña
while the latter was engaged in an otherwise peaceful activity of selling
“social boxes” in a dance.  As
soon as Danilo Oreña had
fallen on the dance floor, the other assailants immediately started stabbing
him.  We consider that the slaying was
qualified by treachery as the victim was not able to offer the least resistance
to the sudden assault and the manner of attack tended to avoid every risk to
the assailants arising from any defense which the deceased might have taken.

Appellant claims that the prosecution had failed to establish any
motive on the part of Conrado Gabatin
for committing the crime.  However, it is
settled that motive is immaterial where the identity of the criminal had been established^[34]
such as in the instant case.  The trial
court found that all the malefactors had been positively identified:

“x x x It
is usual in dances in rural barangays that the place
is always well-lighted.  There could then
be no possible mistake in their identifying the accused.  They reside in one barangay
– Caniugan – and neighbors at that.  All are well-acquainted with each other.  All the three prosecution witnesses were only
a few meters away at the very spot where the accused Conrado
stood when he threw the beer bottle at Danilo’s face
which caused him to fall down, heard Conrado’s words
to kill Danilo and actually saw with their naked eye
the brutal slaying of a defenseless and helpless victim – Danilo
Oreña. x x x“^[35]

Neither does the Court find any error in the trial court’s
dismissal of the defense of alibi interposed by appellant.  It is too well settled to require extensive
documentation that alibi cannot prevail over the positive identification of the
accused by the prosecution witnesses.^[36]  For such defense to prosper,, the appellant
must show that it was physically impossible for him to have been in the scene
of the crime.^[37]  In the present case the trial court expressly
ruled that:

“The defense of alibi set up by Conrado
Gabatin must be rejected.  The crime scene as estimated by Conrado when made to point an object or 400 meters away
from his house as testified to by him where he claims he was at the time of the
incident.  His physical presence at the
crime scene was not at all an impossibility.”^[38]

WHEREFORE, all
premises considered, the Decision of the Regional Trial Court of Cagayan Branch 10 is hereby AFFIRMED with the modification
that the civil indemnity for the slaying is hereby INCREASED to P50,000.00.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino
and Medialdea, JJ., concur.

^[1]
Records, p. 1.

^[2]
Decision, p. 15.

^[3]
Appelant’s Brief, p.4.

^[4]
TSN, 12 November 1987,
p.2.

^[5]
Id., p.9.

^[6]
Id.
pp.8-9.

^[7]
Id., 3 and 9.

^[8]
Id., p.3.

^[9]
Id.
p.4.

^[10]
Id., p.3; 10 January 1987, p.8.

^[11]
Id., p. 5.

^[12]
Records, p.12.

^[13]
TSN, 28 November 1986,
p.6.

^[14]
TSN, 10 March 1988, p.2.

^[15]
Id., p.3.

^[16]
Id., pp.4 and 6.

^[17]
TSN, 11 April 1988 p.9.

^[18]
Id., p.10.

^[19]
Decision, pp.12-13; citations omitted.

^[20]
G.R. No. 99258, Promulgated 13
September 1991.

^[21]
People vs. Arroyo, supra at 13.

^[22]
Appellant’s Brief, p.6.

^[23]
TSN, 12 November 1987,
pp.14-15.

^[24]
187 SCRA 42 (1990).

^[25]
187 SCRA at 58-59.

^[26]
Appellant’s Brief, p.6.

^[27]
Id., p.7.

^[28]
People v. Balane, 123 SCRA 614 (1983).

^[29]
Appellant’s Brief, p.6.

^[30]
Id., p.8.

^[31]
152 SCRA 27 (1987).

^[32]
141 SCRA 456 (1986).

^[33]
141 SCRA at 460-461.

^[34]
People v. Dino, 160 SCRA 197 (1988).

^[35]
Decision, p.11.

^[36]
People v. Madriaga, IV, 171 SCRA 103 (1989).

^[37]
People v. Somera, 173 SCRA 684 (1989).

^[38]
Decision, p.14; Rollo,
p.50.