PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TITO CABALLERO, JAIME CABALLERO, ROGELIO CABALLERO, JOSE CABALLERO BENNY GONZALES AND WENCIL ESQUILONA, ACCUSED, ROGELIO CABAL…

This is an appeal from the decision of the Regional Trial Court,
Masbate, Masbate, in Criminal Case No. 5560, finding Rogelio Caballero and Jose
Caballero, guilty beyond reasonable doubt of kidnapping and sentencing them
“to suffer the penalty of Reclusion Perpetua or life imprisonment, to pay
the family of Noe Albao the amount of Thirty Thousand (P30,000.00) Pesos,
without subsidiary imprisonment in case of insolvency and to pay the
cost” (Decision, p. 6; Rollo, p. 18).

In the information filed in Criminal Case No. 5560, Tito
Caballero, Jaime Caballero, Rogelio Caballero and Jose Caballero were charged
with kidnapping committed as follows:

“That on or about July 20, 1988, in the evening thereof, at
Barangay Lagta, Municipality of Baleno, Province of Masbate, Philippines,
within the jurisdiction of this Honorable Court, the said accused armed with
guns, confederating, conspiring and helping one another, by means of violence
and intimidation, did then and there, wilfully, unlawfully and feloniously
kidnap one Noe Albao by forcibly taking him away from his house after mauling
the latter and detain (sic) him to an unknown place up to the present, thereby
depriving said
Noe Albao of his liberty” (Rollo, p. 60).

Only Rogelio Caballero and Jose Caballero were arrested,
arraigned and tried. Tito Caballero has not been arrested and remains
at-large. Jaime Caballero died on
February 9, 1990 and the case against him was dismissed. Accused Benny Gonzales, a policeman, and
Wencil Esquilona, a PC soldier, were tried separately by the National Police
Commission in Legaspi City.

This Court has reviewed the findings of fact of the trial court
and has found them substantiated by the evidence. The trial court found:

“That on July 20, 1988 at about 10:00 at night at Barangay Lagta,
Baleno, Masbate, while the family of Noe Albao was sleeping, they heard the pounding and banging of the bamboo
door of their house. The door was
struck about seven times until it was destroyed and the four (4) Caballero
brothers and Benny Gonzales and Wencil Esquilona entered the house. Tito and Jaime Caballero went inside the
room where Nida and her husband Noe Albao were sleeping and they forced Noe
Albao out while the others were
watching. Tito Caballero was dragging
Noe Albao by the arm while Jaime was
pushing the back of Noe, and
when they went out, they mauled and maltreated
Noe. His wife Nida pleaded with them
not to harm her husband but they did not listen. When they were able to drag and push Noe, they ordered the victim
to lay flat on the ground face
downward. Then Noe cried and pleaded
but he was tied and was brought
away. The victim was dragged and
loaded in a red Ford Fierra. At first, the Fierra would not
start and it was pushed by the four accused in civilian clothes while the
victim who was moaning and asking
for help, the driver, and the two in
military uniform were
inside the Fierra. The following
morning Nida, the wife, and her mother Clemencia one after the other went to the police station at
poblacion Baleno and reported
to Pat. Decina that her husband Noe Albao was kidnapped by the four Caballero
brothers, PC soldier Wencil Esquilona and Pat. Benny Gonzales. From the Baleno Police Station, they went to
the PC Detachment at Bari-is, Aroroy, Masbate to inquire about her husband,
Noe, but they did not find him there ” (Rollo, pp. 13-14).

Both
appellants put up the defense of alibi. Appellant Jose
Caballero claims that on the night of July 20, 1988, he was at Barangay
Bari-is, Aroroy, Masbate,
attending to his store
and waiting for his six boarders
to return home. Appellant Rogelio
Caballero, on his part, claims
that on the night of the incident he was confined at his house at the poblacion
of Baleno, Masbate, suffering from a serious attack of asthma.

Appellants
must prove that at the time the crime was committed, they were at such a
place that it was physically impossible for them to have been at the crime scene (People v. Aniñon, 158 SCRA
701 [1988]; People v. Mendoza, 163 SCRA 568 [1988]; People v. Sato, 163 SCRA
602 [1988]).

The Municipality of Aroroy, where appellant Jose Caballero
resided, adjoins the Municipality of Baleno. The distance between the poblacion of Baleno and Barangay Lagta
in Aroroy where Noe Aldao was kidnapped, is only four kilometers. The distance between the poblacion of
Baleno, where Rogelio Caballero resided and Barangay Lagta of the same town, is
only five kilometers. While appellant
Rogelio Caballero may have suffered an asthmatic attack on the night of July
20, 1988, his own witness, Dr. Conchita Ulanday, admitted that his attacks did
not immobilize him and that he could still move around.

Appellants were positively identified by Nida Salcedo Albao and
Clemencia Albao, the wife and the mother respectively of the victim. The two eyewitnesses saw the crime committed
at close range. At that time, a gas lamp
was lit in the house. Nida Albao was in
the bedroom when appellants’ co-accused barged inside and forcibly brought Noe
Albao outside. Clemencia Albao, who was
awakened when the accused destroyed the door of the house, went out of her room
and saw her son being dragged away by the accused. She pleaded with them to let go of her son and not to harm him.

Appellants and Nida Salcedo Albao were not only province mates
but belonged to feuding families. When
the father of appellants was hacked, two brothers of Nida were prosecuted for the offense but were
acquitted. Since this incident, the
Caballero family had been
seeking
vengeance on the Salcedo family.

Alibi cannot prevail over the positive identification made by credible witnesses (People v.
Plaza, 140 SCRA 277 [1985]; People v. Pigon, 173 SCRA 607 [1989]; People v.
Serrano, 170 SCRA 663 [1989]).

The trial court sentenced appellants to suffer the penalty of
“Reclusion Perpetua or life imprisonment.” For crimes penalized under
the Revised Penal Code, the proper penalty to impose is “Reclusion
Perpetua” and not life imprisonment (People v. Ramos, 203 SCRA 327
[1991]).

Likewise, the trial court ordered appellants to pay the heirs of
Noe Albao the amount of P30,000.00. The
civil indemnity for the death of the victim has been increased to P50,000.00
(People v. Sison, 189 SCRA 643 [1990]).

WHEREFORE, in view of all the foregoing, the decision
appealed from is AFFIRMED with the modification that the penalty to be imposed
on appellants is Reclusion Perpetua and the civil indemnity is
increased to P50,000.00.

SO ORDERED.

Cruz, (Chairman), Griño-Aquino, and
Bellosillo, JJ., concur.