PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PETER HATAGUE AND ORLANDO MIRADOR, ACCUSED-APPELLANTS.

Accused-appellants interposed the present appeal from the judgment of the Regional Trial
Court, Branch 164 in Pasig, Metro Manila, finding them guilty of the crime of
murder and imposing on them “the penalty of reclusion perpetua;
and to reimburse the funeral
expenses incurred by Miguela B. Abad, the mother of the victim, in the amount
of P13,000.00; and to indemnify the heirs of the victim in the amount of
P30,000.00 pro indiviso.”^[1]

For purposes which will hereinafter be explained, we deem it
necessary to quote from the information, under which the appellants were
charged and tried, the particulars of how the felony was allegedly committed:

“That on or about the 2nd day of October, 1989 in the
Municipality of Marikina, Metro Manila, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping and aiding each other, with intent
to kill, evident premeditation and treachery, did then and there willfully,
unlawfully and feloniously stab one Guillermo Abad y Botardo on the different
parts of his body, thereby inflicting upon him multiple stab wounds which
directly caused his death.”^[2]

The summary of the evidence for the prosecution,^[3]
upon which the trial court based its finding of guilt beyond reasonable doubt,
shows that at around 12:15 o’clock in the early morning of October 2, 1989,
Abad and his companions, Carlito Mitra and Edilberto Niegos, went out for an
evening of fun after a hard day’s work. They went to Jerez Restaurant located along Marcos Highway, corner
Tuazon Street, Marikina, Metro Manila. There, they settled themselves at
a table in the second floor of the restaurant and ordered a round of
drinks for each of them. Niegos then
called appellant Hatague, a waiter in the same restaurant, and asked the latter
if he could get a woman companion for them. Hatague obliged and momentarily brought a female receptionist named
Millet to their table. Millet drank
with the three (3) customers and even danced with them.^[4] After
a while, Millet excused herself and went downstairs. She complained to the floor manager that her drink was sprinkled
with “vetsin” (monosodium glutamate) or ashes.^[5]

Niegos denied Millet’s accusation and stated that they were
leaving, whereupon they hastily paid their bill and prepared to go. Abad and Mitra went down to the first floor
ahead of Niegos. Abad proceeded to the
comfort room and Mitra went in after him. When Mitra came out, he saw Abad walking toward the front door of the
restaurant. As Mitra approached the
same door, two men, later identified as appellants Hatague and Mirador, brushed
past him while rushing outside as if they were out to catch someone. Mitra saw that the object of their chase was
Abad. Mitra was not able to follow Abad
because Virgilio Masanque, the owner of the restaurant, blocked his way and
poked a gun at his head. He saw from
the door that when appellants caught up with Abad, they hit him with a barrage
of blows which knocked him down. Appellant Mirador repeatedly swung a two-feet long steel bar while
Hatague, who was armed with a pointed instrument, stabbed the victim several
times.^[6]

Still, Abad managed to get up and feebly tried to flee. Mirador returned to the restaurant while
Hatague continued chasing Abad. After
catching up with the victim, Hatague again stabbed him till he collapsed. Hatague then walked back to the club. The floor manager Benigno Albitos, met him
and asked whether he had stabbed the customer, to which Hatague replied in the
affirmative.^[7]
Meanwhile, the victim was aided and rushed by Niegos to the hospital where the
former expired shortly after his arrival.

A postmortem examination, conducted by Dr. Dario L. Gajardo of
the PC/INP Crime Laboratory Services on the cadaver of the victim, shows that
he died of cardio-respiratory arrest due to shock and hemorrhage after
sustaining multiple blows on the head and legs and multiple stab wounds on
different vital parts of the body caused by
a pointed instrument.^[8]

The defense contends,^[9] on
the other hand, that appellant Hatague arrived at Jerez Restaurant at about
midnight of October 2, 1989. He first
rested in one of the rooms on the second floor of the club with Benigno
Albitos. Shouts were heard from the
restaurant and Albitos went out of the room and approached a table where three
customers were being confronted by receptionist Millet. Later, Hatague again heard shouts so he went
down to the ground floor and saw Benigno Albitos poking a gun at two customers. Hatague further testified that a certain
Eric Albitos, a former waiter in the restaurant and brother of Benigno Albitos,
was chasing another customer whom he later identified as the victim, Guillermo
Abad. Later, after the reported
stabbing incident, Benigno Albitos returned to the restaurant and instructed
everyone to tell investigators that the trouble happened between club
customers. Hatague denied having
stabbed Abad. During the investigation
by the National Bureau of Investigation (NBI), Hatague claimed he could not do
anything when Benigno Albitos insisted on pointing to him as Abad’s assailant.^[10]

On his part, appellant Mirador allegedly reported for work at
Jerez Restaurant in the late evening of October 2, 1989. He was attending to customers at the ground
floor when a commotion occurred at the second floor of the club and customers
from that floor rushed outside. Benigno
Albitos ordered that the door of the club be closed and he did not allow
customers to go out. Mirador was
unaware of what happened outside as he continued attending to customers. He asserted that Benigno Albitos and Eric
Albitos were Abad’s assailants as they were the ones who chased the customers
involved in the commotion.^[11]
Irineo Antazo, Jr., claiming that he was one of the companions of Abad,
corroborated Mirador’s testimony and testified that Mirador continued attending
to the customers’ orders during the commotion outside the restaurant.^[12]

Cecilia Abad, widow of the victim Guillermo Abad, testified for
the defense and declared that she was informed by William Vista and Irineo
Antazo, Jr. that her husband was killed by Eric Albitos and Benigno
Albitos. On October 16, 1989, she filed
a complaint with the NBI charging Eric Albitos for the killing of Guillermo
Abad. However, during the investigation
wherein appellants Hatague and Mirador were being charged, she failed to inform
the fiscal that these two were supposedly not responsible for the
incident. This was allegedly due to the
fact that her relatives advised her to go into hiding.^[13]
No effort was made by her to pursue the case against Eric and Benigno Albitos
and it was only during the trial that she insisted on her accusations against
the Albitos brothers.

Furthermore, as found by the trial court, this witness admitted
that she executed an affidavit of desistance in favor of herein appellants because
of the pleas of the relatives of one of them and she further admitted that she
executed said affidavit not because these appellants are guiltless but because
she had forgiven them for causing the death of her husband.^[14]
This is reflected in the corres­ponding transcript of her testimony on this
point,^[15]
and betrays her unreliability as a witness.

After trial, as earlier stated, the court a quo
found both appellants guilty as charged and rendered the assailed
judgment. Feeling aggrieved with the
decision, appellants are now before this Court and contend that the trial court
erred (a) in giving full weight
and credit to the testimonies of the prosecution witnesses and in disregarding
the evidence for the defense, and (b) in convicting accused-appellants despite
the absence of evidence required to prove their guilt beyond reasonable doubt.^[16]

Apparently, the resolution of the issues raised by appellants
hinges on the credibility of the testimony of the prosecution and defense
witnesses. In this regard, we are
constrained to once again reiterate the well-settled rule in our jurisdiction
that the findings of the trial court on the credibility of witnesses are
accorded great weight and respect by the appellate courts in the absence of any
showing that the trial court has overlooked some substantial and material
facts.^[17]

Corollarily, the Court has also consistently ruled that
credibility is a matter that peculiarly falls within the province of the trial
judge who had first-hand opportunity to watch and observe the demeanor and
behavior of witnesses, both for the prosecution and the defense, at the time of
their testimony.^[18]

We find no cogent reason in the case at bar to deviate from the
aforestated rulings. The findings of
the trial court are well supported by evidence, both testimonial and
documentary, adduced during the trial. As further held by said court, neither does it appear that the
prosecution witnesses had any untoward motives or reasons to falsely testify
against appellants.

Moreover, the defense of appellants is anchored on denial and
alibi. Alibi, according to settled
jurisprudence, is the weakest defense that can be availed of by the accused
because it can easily be manufactured and fabricated.^[19]
For this defense to prosper and warrant acquittal, it is not enough that the
accused was somewhere else when the crime was committed but he must also be
able to demonstrate that it was physically impossible for him to be at the
scene of the crime.^[20]

Applying the rule to the case at bar, we find appellants’ pretensions
to be unavailing. Firstly, appellants
do not deny that they were in the very place where the killing occurred. They merely denied their participation
therein. Secondly, the appellants were
positively identified by the prosecution witnesses as the assailants of the
victim.

Prosecution witness Benigno Albitos, the floor manager of the
restaurant, testified:

“Q And will you please tell us what is that unusual incident?

A One of our customers, Sir, had a fight
with some of our waiters.

Q And do you know where they were fighting?

A After I went out, I already saw, Sir, that
they were chasing to (sic) each other to the direction of a corner street.

Q Will you please tell us the person whom
they are (sic) chasing?

A I do not know, sir.

Q And who were chasing at the time?

A Peter Hatague and Orlie Mirador, Sir.

x x x

Q Why do you know the names of these two
accused?

A Because they were co-employees of mine,
Sir.”^[21]

This testimony was corroborated by another prosecution witness, Carlito
Mitra, thus:

“Q And what is the name of the person who stabbed Guillermo Abad?

A The person who stabbed
Guillermo was Peter Hatague, Sir.^[22]

Finally, as earlier stated, witness Albitos established without
any refutation by the defense that appellant Hatague definitely admitted his
complicity in the alleged murder, as follows:

“ATTY. TURIANO:

Q And after your conversation with Liza, what did you do, if any?

A I ran upstairs, Sir.

Q While you were upstairs, what happened?

A I immediately talked or informed Peter and
asked him, ‘Peter, sinaksak mo nga ba ang customer?’ Peter, did you really
stabbed (sic) the customer?

Q What was the answer of Peter Hatague?

A ‘Oo, kuya Boy. Sobra na sila.’”^[23]

Appellants Hatague and Mirador, in a last-ditch effort to absolve
themselves from liability, sought to ascribe the liability for the killing to
Eric and Benigno Albitos. Withal, no
evidence whatsoever was adduced in their behalf to prove such imputation. William Vista, the person alleged by the defense
to have seen the incident, was never presented as a witness. On the other hand, the testimony of Irineo
Antazo, Jr., the person whom Cecilia Abad referred to as her husband’s
companion, belies the theory espoused by the defense.

As found by the court below, Antazo did not make any averment in
his testimony that he was with Abad on the night that the latter was
killed. It even appears that he does
not personally know the victim. He
never testified that it was Eric or Benigno Albitos who killed Abad. Moreover, he was not able to personally
witness the alleged incident because, as claimed by him, he was inside the
restaurant when the killing occurred. He could not, therefore, have informed Abad’s widow that Eric and
Benigno Albitos killed her husband.^[24]

Also of significance are the admitted facts that appellant
Hatague remained silent when the killing was attributed to him and that, when
he was arrested, he was found to be in possession of a fan knife, which
admissions unsatisfactorily tried to explain away in this manner:

“FISCAL:

Q    And
it was Benigno Albitos who pointed to you as one of the persons who stabbed the
victim?

A     Yes,
sir.

Q     And despite being pointed to by Benigno
Albitos, you did not protest or make any action to prove that that is not true?

A      I could not do anything about that matter,
sir, because you see when I was investigated at the NBI, he insisted and
pointed out to me as the person responsible for the crime.

Q     In fact, do you agree with me that when you
were arrested by the NBI, a fan knife was also found in your possession?

A      Yes, sir, they did find a fan knife in my
person yet that is not mine. It was Boy
Albitos’, sir.

x x x

Q     Now, with respect to the fan knife which
was allegedly found in your possession, why is (sic) it found in your
possession?

A      That fan knife, sir, was given to me by
Albitos after the incident as a sort of a weapon for my self-protection.”^[25]

We do not have to belabor the ridiculous explanation of said
appellant for his failure to protest or deny Albitos’ attribution to him of
such a grave felony. We also agree with
the trial court that the excuse given by Hatague regarding his possession of
the knife was absurd because if he really knew that it was Eric and/or Benigno
Albitos who killed Abad, he would never have accepted it, knowing full well
that it could have been the very same knife used by them in stabbing the
victim.

Anent the alleged attendance of evident premeditation in the
crime, the trial court correctly ruled that the same was not sufficiently
proved by the prosecution. No evidence
was adduced during the trial which shows the time when the offenders determined
to commit the crime, any act manifestly indicating that they clung to their
determination, and a sufficient lapse of time between the determination and
execution to allow them to reflect upon the consequences of their act.^[26]

Also, this time contrary to the findings of the trial court, we
find that the killing of Abad was likewise not attended by treachery. We have repeatedly ruled that treachery cannot
be presumed.^[27]
The existence thereof must be as indubitably proved as the crime itself.^[28]
To establish treachery against the accused, the prosecution must be able to
prove that, at the time of the attack, the victim was not in a position to
defend himself and that the offender consciously adopted the means, method or
form of attack employed by him.^[29]

It is quite apparent that the prosecution failed to prove that
the victim was deprived of any means of defending himself. True, the victim was unarmed when he was
attacked by appellants. However, the
mere fact that he was unarmed cannot by itself adequately sustain a finding of
treachery.^[30]
Moreover, the records show that the victim was chased before he was
attacked. He was even able to run for
another twenty-five (25) meters after the first stage of the felonious
assault. It must also be recalled that
prior thereto, there was an altercation between the victim and appellants and
this could have placed the former on his guard.^[31]

More importantly, there is no showing that appellants
deliberately or consciously adopted the particular mode of aggression that they
employed against the victim in order to ensure the accomplishment of their
criminal purpose without any risk to themselves. The killing was just a result of a casual encounter; the attack
was impulsively done; and appellants had no time to reflect on the method of
executing the crime.^[32] It
cannot, therefore, be said that treachery was adopted and employed in the
commission of the felony.

But this pronouncement notwithstanding, we find that the
modifying circumstance of taking advantage of superior strength attended the
killing of Abad. When it is shown that
the attack was not made with alevosia, the number of assailants and the
simultaneity of the attack upon a defenseless person may constitute abuse of
superior force.^[33]
Here, it is undeniable that, by reason of the synchronal attack on the victim
by two armed persons, the latter cooperated and intended to use or to secure
advantage from the superiority of their combined strength. This is especially manifest where, as in
this case, the victim was unarmed and trying to flee, while the two felons were
armed and used their weapons in perpetrating the crime.^[34]

Nonetheless, the abuse of superior strength, while constitutive
of a qualifying circumstance for murder,^[35] was
not alleged in the information filed in this case, as we have made evident by
reproducing the indictment at the outset of this opinion, although such
circumstance was proved by the prosecution. The rule is that qualifying circumstances must be pleaded and if not
pleaded but proved, the same shall be considered only as generic aggravating
circumstances.^[36]
Consequently, the fact that herein appellants took advantage of their superior
strength shall only aggravate their liability for simple homicide to determine
the period of the penalty therefor.

Coming now to the respective liabilities of appellants, we find
that the court below correctly appreciated
the existence of a conspiracy between them. Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.^[37]
To establish conspiracy, prior agreement between both accused to kill the
victim is not essential for the same may be inferred from their own acts
showing a joint purpose and design,^[38]
which was illustrated in this case by the concerted acts of appellants.

The evidence reveals that both appellants concurrently chased the
victim with physical assailment in mind. Mirador was armed with a steel bar while Hatague had a pointed
instrument. After catching up with
Abad, both of them inflicted blows on the latter. The autopsy report shows, and the eyewitnesses testified, that
Mirador hit Abad with the steel bar on the upper portion of his leg while
Hatague was lethally using his knife on him. While Mirador returned to the restaurant ahead of Hatague, this does not
affect or negate the findings of the trial court since the fatal wounds could
have been inflicted during the first or second attack. At any rate, conspiracy having been proven,
the acts of each appellant shall be considered and appreciated against the
other.

WHEREFORE, on the foregoing premises, the judgment
appealed from is ANNULLED and a new one is RENDERED finding accused-appellants
guilty of the crime of homicide with an aggravating circumstance of abuse of
superior strength, and imposing upon them an indeterminate sentence of ten (10)
years and one (1) day of prision mayor, as minimum, to seventeen
(17) years, four (4) months and one (1) day of reclusion temporal,
as maximum.

Accused-appellants are also hereby ordered, jointly and
severally, to pay Miguela B. Abad, the mother of the victim, the amount of
P13,000.00 representing the funeral expenses incurred by her, to indemnify the
heirs of the victim in the increased amount of P50,000.00 in accordance with
current jurisprudence, and to pay the costs.

SO ORDERED.

Melencio-Herrera, Acting C.J., (Chairman), Paras, and Nocon, JJ., concur.

Padilla, J., see separate
opinion.

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^[1]
Per Judge Apolonio R. Chavez; Rollo, 14-31.

^[2]
Original Record, 1.

^[3]
Appellee’s Brief, 2-4.

^[4]
TSN, May 9, 1990, 7-8.

^[5]
TSN, May 17, 1990, 16; May 30, 1990, 12.

^[6]
TSN, May 9, 1990, 4-7; May 17, 1990, 4-8.

^[7]
TSN, May 17, 1990, 8-9.

^[8]
TSN, May 23, 1990, 4-9; Exhibits E, F, G and H, Original Record, 77-80.

^[9]
Brief for the Accused-Appellants, 3-4.

^[10]
TSN, August 17, 1990, 2-9.

^[11]
TSN, July 3, 1990, 2-9.

^[12]
TSN, July 19, 1990, 2-12.

^[13]
TSN, June 14, 1990, 4-16.

^[14]
Rollo, 27-A.

^[15]
TSN, June 14, 1990, 12.

^[16]
Brief for the Accused-Appellants, 4.

^[17]
People vs. Espejo, et al., 36 SCRA 400 (1970); People vs. Realon,
et al., 99 SCRA 422 (1980); People vs. Payumo, 187 SCRA 64 (1990).

^[18]
People vs. Escabarte, 158 SCRA 602 (1988); People vs. Turla, 167
SCRA 278 (1988); People vs. De Jesus, G.R. No. 93852, January 24, 1992.

^[19]
People vs. Baniaga, 1 SCRA 283 (1961); People vs.
Pacada, Jr., et al., 142 SCRA 427 (1986); People vs. Loveria, 187 SCRA 47 (1990).

^[20]
People vs. Abaya, et al., 170 SCRA 691 (1989); People vs. Arceo,
187 SCRA 265 (1990); People vs. Ruedas, 194 SCRA 553 (1991).

^[21]
TSN, May 17, 1990, 4-5.

^[22]
TSN, May 9, 1990, 3.

^[23]
TSN, May 17, 1990, 9.

^[24]
Rollo, 27-A to 28.

^[25]
TSN, August 17, 1990, 7-8.

^[26]
People vs. Quintos, 186 SCRA 14 (1990); People vs. Nabayra, G.R.
No. 96368-69, October 17, 1991.

^[27]
People vs. Caldito, et al., 182
SCRA 66 (1990); People vs. Nabayra, supra.

^[28]
People vs. Diaz, et al., 167 SCRA 239 (1988); People vs. Tugbo,
Jr., 196 SCRA 133 (1991); People vs. Ramirez, G.R. No. 80747-48, October
17, 1991.

^[29]
People vs. Sabado, 168 SCRA 681 (1988); People vs. Mabubay, 185
SCRA 675 (1990).

^[30]
People vs. Raquipo, 188 SCRA 571
(1990).

^[31]
People vs. Cantre, 186 SCRA 76 (1990).

^[32]
People vs. Diaz, et al., supra; People vs. Bacho,
et al., 171 SCRA 458 (1989).

^[33]
U.S. vs. Lasada,
21 Phil. 287 (1912); People vs. Cantre, supra.

^[34]
People vs. Bustos, 51 Phil. 385 (1928); People vs. Diokno, et
al., 63 Phil. 601 (1963); People vs. Verzo, et al., 21 SCRA 1403 (1967).

^[35]
Article 248 (1), Revised Penal Code.

^[36]
People vs. Collado, 60 Phil. 610 (1934); People vs. Raquinio, 17
SCRA 914 (1966); People vs. Jovellano, et al., 56 SCRA 156 (1974).

^[37]
Article 8, Revised Penal Code.

^[38]
People vs. Tachado, et al., 170 SCRA 611 (1989).

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