THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SALVADOR SADIA, JR., JOSE ALLORDE Y PENOBLAR, AND MARIO OPEÑA ALIAS “KA ELMO,” ACCUSED, SALVADOR SADIA, JR., ACCUSED-APPEL…

The accused, Salvador Sadia, Jr., Jose Allorde y Penoblar
and Mario Opeña alias “Ka
Elmo,” were charged with the crime of murder in Criminal Case No. 2591
before the Regional Trial Court, 5th Judicial Region, Branch 12, Ligao,
Albay.  The information filed in said
case reads (p. 10, Rollo):

“That at or about 11:30 A.M. of the 18th day of November,
1986, at Barangay Herrera, Municipality of Ligao, Province of Albay,
Philippines, and within the jurisdiction of this Honorable Coort (sic), the above-named
accused, together with two (2) other undindentified (sic) persons, all of them
armed with guns and with intent to kill, did then and there, conspiring and
confederating with each other with treachery, taking advantage of superior strength and with the aid of armed men, wilfully, unlawfully
and feloniously attack, assault and shot one JOSE C. LOPEZ inflicting fatal
wounds which caused his death (sic) to the damage and prejudice of his legal
heirs.

“That the offense was committed by a band.

“ACTS CONTRARY TO LAW,”

Only Salvador Sadia, Jr. and Mario Opeña
alias “Ka Elmo” were apprehended whereas Jose Allorde y Penoblar
remains at large.  Thereafter, trial on
the merits proceeded against Sadia, Jr. and Opeña.  On January
31, 1990, the trial court rendered its decision, the dispositive
portion of which, reads (pp. 27-27-A, Rollo):

“PREMISES CONSIDERED, the court finds the two accused herein MARIO
OPEÑA, alias “KA ELMO” and SALVADOR SADIA, JR., alias “KA
JUN”, GUILTY, as principal in the
killing of JOSE LOPEZ y CLAVERIA, attended by the qualifying circumstances
(sic) of superior (sic) strength (sic), with the generic aggravating circumstance of having (been) committed by a
band.  As such the accused are hereby sentenced to suffer the penalty of
RECLUSION PERPETUA, and to suffer the accessory penalties provided for by law.  They
are ordered solidarily to indemnify the heirs of the victim the amount of P30,000.00 for the fact of death of Jose
Lopez; P50,000.00 as moral damages; and P21,500.00, aw (sic) actual damages, as evidenced by receipts marked as
Exhibits D, D-1 and D-2.

“SO ORDERED.”

Hence, the present appeal by Salvador
Sadia, Jr.

The antecedent facts, as stated in the plaintiff­-appellee’s
brief are, as follows (pp. 88-93, Rollo):

“At around 11:30 a.m.
on November 18, 1986,
Danilo Chavez, a farmer, was working on the farm of Jose Lopez at Barangay
Herera (sic), Ligao, Albay (p. 7, tsn, Oct. 26, 1989).  Chavez arrived at the landholding of Jose
Lopez at about 6:00 o’clock in the
morning of November 18, 1986.  He came along with Lopez himself and they
rode (on) the motorcycle of Lopez. 
Nobody was still (sic) around at that time.  Then they proceeded to the farm.  At about 8:30 a.m., people began to
arrive (pp. 8-9, tsn, Id.).

“Among those who arrived at the farm were appellant, Jose
Allorde and Mario Opeña @ Ka Elmo (pp. 9-10, tsn, Id.).  At the time these persons arrived, Lopez was
in his fishpond with Chavez cleaning it. 
The three persons, appellant, Allorde and Opeña, were to clean the
fishpond of Allorde (pp. 10-11, tsn, Id.).  The fishpond of Lopez and Allorde were about
20 meters apart (p. 12, tsn, Id.).

“After Lopez had brought Chavez to the fishpond, he told
Chavez that he would go back to Guinobatan (p. 12, tsn, Id.).  However, at
around 11:30 of the day, Lopez came back to the fishpond while Chavez was
cooking his lunch at the side of the fishpond (p. 13, tsn, Id.).

“Suddenly, Chavez heard gunshots and when Chavez turned to
look where the shots came from, he saw Ka Elmo, Allorde, appellant and two
others (whom) he failed to identify.  The
group was about 20 meters away from Chavez (p. 13, tsn, Id.).  Chavez saw the group fire at Lopez whose two
arms were raised and he was asking the group to stop shooting and for them to
talk over whatever wrong doings (sic) he may have committed.  Lopez was about 15 meters away from where the
group was shooting at him.  Opeña used a
long barrel gun and even fell into the
fishpond while he was firing at Lopez (p. 14, tsn, Id.).  Chavez could not tell what kind of gun the
others were using.  Chavez was not able
to notice if appellant was holding a gun because what he saw was that the five
of them were in a group (p. 15,
tsn, Id.).  Besides, while the group was
firing at Lopez, he was looking at Lopez (p. 51, tsn, Id.).  After the firing, Lopez ran towards the
irrigation shouting at Chavez to take care of himself (p. 15, tsn, Id.).  Lopez fell face down on the irrigation by the
roadside and Ka Elmo and another in the
group fired two more shots at him.  Then
they went near Lopez, kicked him and shot him at the right temple.  At that time, Chavez was about 10 meters away
and was running away to report the incident to the Barangay Captain of Herera
(sic).  Appellant and Allorde then rode
(on) a tricycle and fled while Ka Elmo and the 2 others took the motorcycle of
Lopez (pp. 16-17, tsn, Id.).  After this incident, Chavez did not work
anymore at the landholding of Lopez because he learned that he was being hunted
by the group who shot Lopez to death (p. 19, tsn, Id.).

“The body of Lopez was autopsied in the evening of November 18, 1986 at Nuestra Sra. de Salvacion Funeral Parlor at
Guinobatan, Albay by Dr. Domingo Vergara, Jr., Chief, Rapu-Rapu District
Hospital (p. 10, tsn, Oct. 25,
1989).  The following wounds were found on
the body of Lopez:

1) 
Through and through gunshot wound, head area, entrance-right ear with
pinnal laceration:  exit ear

– this wound, if not medically attended,
could cause immediate death

2) 
Gunshot wound, entrance at the right infra-scapular area (right side at the back, the bone area at the back of
the body

3) 
Gunshot wound, entrance at the right costo-vertebral angle (right side
of the body near the angle of the rib case)

– fatal area because the liver sustained
lacerations that caused bleeding

4) 
Gunshot wound, entrance at the right buttocks, lateral side (right hip
fleshly area)

– fatal wound

5) 
Gunshot wound, entrance at the medial side of the thigh, proximal 3rd, posterior, right
(inner side of the thigh)

– fatal wound

6)  Gunshot
wound, exit at the parasternal area, left side, level of the first ICS)

7) 
Gunshot wound, exit at the medial side of the left thigh, middle 3rd
(pp. 11-12, 17-21, tsn, Oct. 25, 1989)

“The cause of death was: 
hypovolenic shock secondary to multiple gunshot wounds, fatal (p. 21,
tsn, Id.).

“In the early morning of the day when Lopez was shot, a
conference was called by one Ka Daniel of the CPP-NPA Pasabilis Section at
Sitio Baruc-barucan Barangay Herera (sic), Ligao, Albay.  In that conference, a decision was reached
that somebody was going to be killed. 
Among the 8 or 9 persons present at the said conference, were Mansueto
Lucio, Benjamin Sta. Maria, Ka Elmo and appellant, alias Ka Jun Sadia.  It was agreed that it was already time to
‘deliver’ Lopez.  Assigned to kill Lopez were six
members with appellant and Ka Elmo as triggermen.  The reason given for killing Lopez was
because he was against the CPP-NPA organization meaning that he did not give
“taxes” to the NPA.  Ka Elmo
carried a carbine while Ka Jun had a .45 caliber.  The group parted at around 7:00 a.m.  At past 11:00 o’clock of the same day, Lopez was
killed (pp. 4, 9-10, 12, 14, 16-21, tsn, Dec. 12, 1989; pp. 7-8, tsn, Dec. 13,
1989).

“At the time of his death, Lopez had a rice farm and fishpond.  Every three months he harvested more than
1,000 tilapia from his fishpond (p. 21, tsn, Dec. 13, 1989).  After his death, his family could not attend
anymore to their fishpond at Herera (sic). 
Lopez was also engaged in buying and selling palay.  He left three children with ages 10, 5 and
1.  For funeral expenses, his wife spent
P15,000.00 (p. 22, tsn,
Id.).”

In this appeal, the accused-appellant raises the following
assignment of errors:

1. the trial court erred in finding him guilty of murder on the
basis of the testimonies of alleged co-conspirators, prosecution witnesses
Mansueto Lucio and Benjamin Sta. Maria; and

2.  the trial court erred in
appreciating band as an aggravating circumstance and in imposing the penalty of
reclusion perpetua against him.

The accused-appellant asseverates that the trial court
disregarded material inconsistencies in the testimonies of Lucio, Sta. Maria
and Chavez.  Lucio and Sta. Maria, in
their respective testimonies at the hearing on December 12, 1989 and December
13, 1989, claimed that at a conference called by a certain Ka Daniel among the
operatives of the New People’s
Army in the area, the accused-appellant and Opeña were given the assignment of liquidating Lopez.  However, at the hearing held on October 26,
1989.  Chavez testified that, of the five
(5) men he saw in the vicinity during the shooting — the accused-appellant,
Opeña, Allorde and two (2) John Does, he saw only Opeña and the two (2) John
Does shoot Lopez.  In fact, Chavez did
not even notice whether or not the accused-appellant and Allorde had a
gun.  Moreover, even Chavez’ positive
identification of the accused-appellant as among those he saw with the group
who shot Lopez is rebutted by the testimony of Reynaldo Maristela, a barangay
tanod, that after the shooting, when he asked
Chavez who shot Lopez, Chavez replied that “he does not know.”

The alleged inconsistencies do not exist.  Although Chavez saw only Opeña and the two
(2) John Does shoot Lopez and he failed to notice whether or not the accused-appellant,
in particular, held a gun (p. 51, tsn, October 26, 1989), his
(accused-appellant) presence at the scene of the crime during the time Lopez was killed was sufficiently
proven.  Chavez testified that (pp.
12-13, ibid):

“x x x.

“Q:  Then,
what transpired when (sic) Jose Lopez was working in his fishpond?

“A:   At
that time when Mr. Lopez brought me to the fishpond to work, Mr. Lopez told me
that he will just take me to Herera (sic) and he will go back to Guinobatan,
but at around 11:30 Mr. Lopez (sic) arrived and I was and even cooking already
for the midday meal and then I heard the (sic) gunshot.  These five people were there when Mr. Lopez
was shot.

“x x x.

“Q:  When
you heard (a) gunshot, what did you do?

“A:   After
I heard the (sic) gunshot I turned my face and looked at these five, this Ka
Elmo, Allorde, Sadia and the other two whom I was not able to identify.

“x x x.”

Chavez could not have been mistaken in
identifying the accused-appellant because he has known him even prior to the
shooting incident (p. 11, ibid):

“x x x

“Q:  How
about this Salvador Sadia, Jr., do you know (sic) him before November 18, 1986?

“A:   Yes, sir, because he has a sari-sari
store in Herera (sic) and I used to buy cigarette and viand when(ever) I work
there in Herera (sic).

“x x x.”

It bears emphasis that the trial court found the accused-appellant guilty of the crime charged, on the basis
of conspiracy (pp. 26-27, Rollo):

“In the case at bar, the court is of the honest opinion that
conspiracy was duly established.  There was
direct proof of the existence of conspiracy. 
There was that conference at Burucburucan in the mroning (sic) of
November 18, 1986, between the hours of 6:00 and 7:00, where the killing of
Jose Lopez was agreed upon.  The accused
Ka Elmo and Salvador Sadia, Jr. were present and were among those ordered to kill Lopez.  When conspiracy is established, the act of
one is the act of all.  In order to hold
an accused guilty as co-principal by reason of conspiracy, it must be
established that he perform (sic) an overt act in furtherance of the
conspiracy, either by actively participating in the actual commission of the
crime or by biding (sic) moral assistance to his co-conspirators by being
present at the scene of the crime (Pp. vs. Peralta, 25 SCRA 759).  Accused Sadia may not have fired a shot as it
was not shown that he was holding a gun. 
He was however present during the killing.”

The
positive identification of the accused-appellant by Chavez as among those
who shot Lopez was not rebutted by the testimony of Maristela that when he
asked Chavez who shot Lopez, Chavez replied that “he does not know.”
Chavez was then afraid to reveal the identity of the killers of Lopez.  After the incident, he stopped working in the
landholding of Lopez because he was being hunted by the persons who killed
Lopez (p. 19, tsn, October 26, 1989). 
And, as stated by the trial court, the information was prepared only in
1988 and filed in January, 1989, because aside from the fact that the culprits
were still at large, Chavez entertained fear that he might be liquidated by the
killers of Lopez should he testify (p. 22, Rollo).

Additionally, the accused-appellant alleges that the trial court
erred in considering the aggravating circumstance of band.  As testified to by Chavez, only three (3) of
Lopez’ killers were armed.  Under Article
14, No. 6, paragraph 2 of the Revised Penal Code, the indispensable elements of
band are:  1) there must be at least four
(4) malefactors; and 2) all of the four (4) malefactors must be armed.  At any rate, even if it were proven that the
accused-appellant is guilty of the crime charged, since the aggravating
circumstance of band cannot be appreciated against the accused, the penalty
imposable is only eighteen (18) years, eight (8) months and one (1) day to
twenty (20) years of reclusion temporal, and not reclusion
perpetua, as decreed by the trial court.

On the allegation that the trial court erred in appreciating the
aggravating circumstance of band in this case, We agree with the
accused-appellant.  The evidence of the
prosecution showed that among the five (5) members of the group who killed Lopez, only three (3) were armed (pp.
31, 50, tsn, October 26, 1989).  Article
14(6), paragraph 2 of the Revised Penal Code is explicit that “[w]henever more
than three armed malefactors shall have acted together in the commission of an offense, it
shall be deemed to have been committed by a band” (underscoring
supplied).  We regret, however, that
while We sustain this allegation of the accused-appellant, it will not help in
reducing the penalty to be imposed on him, as We shall discuss later.

We have thus limited Our disquisition on the aforementioned
issues.  The other issue in this appeal,
namely, whether the prosecution established that the killing of Lopez was in furtherance of rebellion or
murder, was never raised in the
proceedings before the trial court and cannot, therefore, be considered and
passed upon now (People v. Albior, et al., G.R. No. 75034, June 30, 1988, 163
SCRA 332; People v. Leoparte, G.R. No. 85328, July 4, 1990, 187 SCRA 190).

Abuse of superior strength qualified the killing of Lopez to
murder.  This circumstance was proven by
the testimony of Chavez (pp. 14-16, tsn, October 26, 1989);

“x x x.

“Q:  What did you see after you heard the
gun fired (sic)?

“A:   I
saw them shot (sic) at Mr. Jose Lopez (whose) both hands were raised and he was
telling the group to stop.  They will
talk over what(ever) misdeeds he has done but they did not stop firing at him.

“x x x.

“Q:  After
the firing, what happened to Mr. Lopez?

“A:   What
Mr. Lopez did was to run towards the irrigation and he shouted at me that I
just take care.  What I did is (sic) to
dive on the fishpond.

“Q:  After
Mr. Lopez ran, what happened to him?

“A:   While
Mr. Lopez was already lying face downward on the irrigation by the roadside
they even (sic) still fired two shoots.

“x x x.

“Q:  How
far was Ka Elmo when he fired coup de grace?

“A:   While
Mr. Lopez was lying down after they kicked them (sic) they fired another shoot
(sic) (witness indicating the right temple
of Mr. Lopez).

“x x x.”

Article 248 of the Revised Penal Code provides that the crime of
murder is punishable by reclusion temporal in its maximum period to death.  Inasmuch as there are neither aggravating nor
mitigating circumstances that attended its commission in this case, the penalty
that should be imposed on the accused-appellant is the medium period of the
penalty prescribed by said article (Article 64 of the Revised Penal Code), or reclusion perpetua, conformably with the doctrine adopted in
People v. Muñoz, et al., G.R. Nos. L-38969-70, February 9, 1989, 170 SCRA 107.  Notwithstanding Our previous finding that the
aggravating circumstance of band is not present in this case, the proper
penalty is still reclusion perpetua.

ACCORDINGLY, the decision appealed from is hereby
AFFIRMED, subject to the MODIFICATION that the trial court’s appreciation of
the aggravating circumstance of band is deleted and the civil indemnity for the
death of the victim is increased to P50,000.00.

SO ORDERED.

Narvasa, (Chairman), Cruz, and
Grino-Aquino, JJ., concur.