PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ELESEO CHENG, ALEJANDRO MALUBAY, AND SALVADOR SIOCO, ACCUSED. ELESEO CHENG, ACCUSED-APPELLANT.

Convicted on two counts of murder are appellant Eleseo Cheng and
co-accused Salvador Sioco (who later escaped from detention) in a judgment, the
dispositive portion of which reads:

WHEREFORE, in the light of the foregoing considerations, the Court
finds¾

1. In Criminal Case No.
89-73804 ¾ the accused, ELESEO CHENG
and SALVADOR SIOCO, guilty beyond reasonable doubt of the crime of MURDER, as
defined and penalized under Article 248, Paragraph 1, Revised Penal Code, and
as charged in the aforequoted information and, accordingly, hereby sentences
each of them to suffer the penalty of reclusion perpetua with the
accessory penalties provided by law, both to pay, subsidiarily and jointly; to
the heirs of Esperanza Viterbo represented by her mother, Esperanza Viterbo,
Sr., the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil
indemnification and the additional amount of TEN THOUSAND PESOS (P10,000.00)
as moral damages, without subsidiary imprisonment in case of insolvency; and
each to pay one-third (1/3) of the costs.

2. In Criminal Case No.
89-73805 ¾ the accused, ELESEO CHENG
and SALVADOR SIOCO, guilty beyond reasonable doubt of the crime of MURDER, as
defined and penalized under Article 248, Paragraph 1, Revised Penal Code, and
as charged in the aforequoted information and, accordingly, hereby sentences
each of them to suffer the penalty of reclusion perpetua with the
accessory penalties provided by law and each to pay one-third (1/3) of the
costs.

Because no heir/relative of the deceased, Yehia Aburawash Mohammed
was presented to testify on the civil aspect of the case, the Court reserves to
his heirs the right to file suit for civil indemnification and/or damages.

Finally, in the service of their sentences, the two accused
aforenamed shall be credited with the full time during which they underwent
preventive imprisonment provided they voluntarily agreed in writing to abide by
the same disciplinary rules imposed upon convicted prisoners; otherwise, they
shall be credited to only four-fifths (4/5) thereof (Article 29, Revised Penal
Code, as amended by Republic Act No. 6127).

3. In both Criminal
Cases Nos. 89-73804 & 89-73805 ¾
the Court finds the accused, ALEJANDRO MALUBAY, NOT GUILTY of the crime of
MURDER, as defined and penalized under Article 248, Paragraph 1, Revised Penal
Code, and as charged in the aforequoted two informations and, accordingly,
hereby ACQUITS him thereof for insufficiency of evidence, with one-third (1/3)
costs de oficio in these two cases.

The Prison Officer, City Jail of Manila is ordered immediately upon
receipt of a copy of this Decision, to release from his custody the person of
accused Alejandro Malubay unless there is other legal ground or cause for his
further detention.

SO ORDERED.

(pp. 68-68a, Rollo.)

The herein criminal cases were commenced with the filing of two
Informations for the crime of murder against herein accused-appellant Eleseo
Cheng, Alejandro Malubay, and Salvador Sioco, pertinently reading as follows:

Criminal Case No. 89-73804

That on or about February 21, 1989, in the City of Manila,
Philippines, the said accused conspiring and confederating together and helping
one another did then and there willfully, unlawfully and feloniously with
intent to kill and with treachery and evident premeditation, and with the use
of superior strength on the victim who was alone and unarmed, attack, assault
and use personal violence upon one Esperanza Viterbo, by then and there
shooting her three (3) times with an unknown caliber thereby inflicting upon
her mortal and fatal gunshots wounds,
which were the direct and immediate cause of her death thereafter.

Contrary to law.

(p. 2, Rollo.)

Criminal Case No. 89-73805

That on or about February 21, 1989, in the City of Manila,
Philippines, the said accused conspiring and confederating together and helping
one another did then and there willfully, unlawfully and feloniously with
intent to kill and with treachery and evident premeditation, and with the use
of superior strength on the victim who was alone and unarmed, attack, assault
and use personal violence upon one Yehia Abu Rawack Mohamad an Egyptian
national, by then and there shooting the latter three (3) times, hitting him in
the head with an unknown caliber thereby inflicting upon him mortal and fatal
gunshots wounds, which were the direct and immediate cause of his death
thereafter.

Contrary to law.

(p. 3, Rollo.)

At the arraignment on August 11, 1989, accused-appellant and his
co-accused Salvador Sioco, then assisted by their counsel de parte,
Atty. Arsenio de Leon, entered a plea of “not guilty” to the charges
against them. Similarly, accused
Alejandro Malubay, then assisted by counsel de parte, Atty. Augusto
Jimenez, pleaded “not guilty”.

Thereafter, trial on the merits ensued, following which, judgment
was rendered convicting accused-appellant and Salvador Sioco, and acquitting
co-accused Alejandro Malubay for insufficiency of evidence.

Accused-appellant and Salvador Sioco filed separate motions for
reconsideration of said decision, with the former raising the following
grounds: (1) that because he was a member of the Integrated National Police on
his tour of duty on the date and time of the incident as charged, jurisdiction
over the offense and authority to hear, try, and decide the case against him is
conferred on a court martial, not a civil court, and (2) in the alternative,
that assuming ex gratia that the court has jurisdiction, the prosecution
evidence engendered reasonable doubt in many aspects, thus, his conviction is
erroneous. The motion, as well as its
supplement, were denied by the trial court in its order dated November 7, 1994.

On December 8, 1994, accused-appellant seasonably filed a notice
of appeal. Much earlier, however, on
January 1, 1993, convicted felon Salvador Sioco escaped from Camp General Ricardo
G. Papa, Sr., Bicutan, Taguig, Metro Manila. For this reason, and also because his notice of appeal was filed four
days late, the trial court denied his appeal.

Now, to the background facts as supported by the record:

On February 20, 1989, jail guards Edwin Ramos and Redentor Lamiao
were in the night shift at Gate 1 of the Manila City Jail, their tour of duty
commencing at 7 P.M. and ending at 7 A.M. the following day. Early in the morning
of February 21, 1989, Ramos allowed Yehia Aburawash, an Egyptian national who
had been previously detained in the city jail, to enter the premises together
with a female companion. Before 4 A.M.,
Aburawash and his companion went out of the jail and some time thereafter, or
at about 4 A.M., accused-appellant who was then on duty on the night shift
escorted out co-accused and then a detainee in the said city jail, Patrolman
Alex Malubay, without any authorization from the desk officer or platoon
commander on duty. Jail Guard Ramos
asked accused-appellant to secure the approval of the desk officer but
accused-appellant simply ignored Ramos and continued on his way out.

At about 4:30 o’clock that same morning, Emma Ruth Ilocso and her
companions Catalina Balboa, and Marivic Policarpio, having just come from a
disco joint, were at the corner of Claro M. Recto Avenue and Quezon Boulevard,
right outside the vicinity of Manila City Jail. Ilocso decided to pass by the city jail to see her brother who
was detained thereat. She, however,
stopped at a nearby Burger Machine stand to have the P100.00 she
intended to give her brother broken to smaller denominations.

It was while she was at the burger stand that Ilocso witnessed
the commission of the crime. Ilocso saw
the Egyptian national, Yehia Aburawash, at the center island of Quezon
Boulevard. She recognized him because
she had previously seen him while the latter was detained at the same city jail
for swindling. She also saw Aburawash’s
female companion who was later identified to be Esperanza Viterbo. Ilocso observed that Aburawash and Viterbo
were then engaged in an argument with accused-appellant, Sioco, and a third
man. Thereupon, she heard the first
gunfire from accused-appellant which caused Aburawash to fall to the
ground. Two shots then quickly
followed, one from Sioco, and another from accused-appellant. Afterwards, accused-appellant and Sioco went
after Viterbo who ran towards the burger stand. Accused-appellant and Sioco told Viterbo that she would be
brought to a waiting cab. However, when
the two were already beside her, they both shot her, after which the two ran
towards the direction of the Central Market.

At about 5:20 that morning, Patrolman Nelson Sarsonas, an
investigator of the Homicide Section of the Western Police District, received a
report from PC/Sgt. Alejandro Lopez of the Criminal Investigation Service that
there were two dead bodies found near Quezon Boulevard and Claro M. Recto
Avenue. After notifying several other
concerned agencies, Pat. Sarsonas proceeded to the scene of the crime to
investigate.

The two dead bodies were brought to the National Bureau of
Investigation for autopsy. Dr. Maximo
Reyes, who performed the examination, testified during the trial that the three
gunshot wounds on Aburawash were all fatal as they involved the brain. He likewise testified that the gunshot
wounds of Viterbo at the neck, face, and head were all fatal because they
involved vital organs. He also observed
that the sizes of the wounds concerned were different, prompting him to opine
that at least two firearms were used, and that it was possible that more than
one assailant was involved.

In the appeal now before us, accused-appellant raises as his
first issue the question of jurisdiction. He contends that by virtue of Section 1 of Presidential Decree No. 1850,
the trial court had no jurisdiction to hear, try, and decide the cases against
him. He argues that on the date of the
commission of the crimes on February 21, 1989, he was still an active member of
the Integrated National Police and assigned as jail guard at the Manila City
Jail. He assails the trial court’s
finding that he was already dismissed from service when the two Informations
against him were filed in court on June 6, 1989, claiming that he received the
copy of the special order on his dismissal only on June 7, 1989. Besides, he claims that this order of
dismissal is still pending appeal before the Office of the Judge Advocate. For want of jurisdiction, he implores that
this Court dismiss the cases and declare the judgment of the court a quo
to be null and void.

We find the argument devoid of merit.

While it is true that jurisdiction over the subject matter of a
case cannot be waived and may be assailed at any stage in the proceedings, even
for the first time on appeal, this ruling presupposes that the factual basis
for determining such want of jurisdiction is extant in the record of the case
and is borne by the evidence.

Should there be nothing on record which may indicate lack of
jurisdiction, this Court will sustain the existence thereof.

Accused-appellant invokes Section 1, of Presidential Decree No.
1850, as amended, which provides:

Section 1. Court-Martial Jurisdiction over Integrated National Police and Members
of the Armed Forces. ¾
Any provision of law to the contrary notwithstanding – (a) uniformed members of
Integrated National Police who commit any crime or offense cognizable by the
civil courts shall henceforth be exclusively tried by courts-martial pursuant
to and in accordance with Commonwealth Act No. 408, as amended, otherwise known
as the Articles of War; (b) all persons subject to military law under Article 2
of the aforecited Articles of War who commit any crime or offense shall be
exclusively tried by courts-martial or their case disposed under the said Articles
of War. Provided, that, in either of
the aforementioned situations, the case shall be disposed of or tried by the
proper civil or judicial authorities when court martial jurisdiction over the
offense has prescribed under Article 38 of Commonwealth Act Numbered 48, as
amended, or court-martial jurisdiction over the person of the accused military
or Integrated National Police personnel can no longer be exercised by virtue of
their separation from the active service without jurisdiction having duly attached
beforehand unless otherwise provided by law. Provided, further, that the president may in the interest of justice,
order or direct, at any time before arraignment, that a particular case be
tried by the appropriate civil court.

The record reveals that on February 21, 1989, when the crimes
charged were committed, accused-appellant was undoubtedly in active
service. Under Paragraph (a) of the
above-quoted provision, exclusive jurisdiction over accused-appellant and the
offense should have pertained to the courts martial save only in the following
exceptions, namely: (1) when court martial jurisdiction over the offense has
prescribed under Article 38 of Commonwealth Act No. 48, as amended, or (2)
court-martial jurisdiction over the person of the accused military or
Integrated National Police personnel can no longer be exercised by virtue of
his separation from active service without jurisdiction having duly attached
beforehand unless otherwise provided by law; or (3) the president, in the
interest of justice, orders or directs at any time before arraignment, that the
particular case be tried by the appropriate civil court.

The evidence on record shows that the cases at bench fall under
the second exception. During the
hearing conducted on February 15, 1990 when accused-appellant was presented as
defense witness, he stated his personal circumstances as follows:

Pat. Eleseo Cheng y Bello, 36 years old, married, as of now jobless
but before I was with the Western Police District, residing at 870-C Norte
Street, Sta. Cruz, Manila.

(p. 8, tsn, Feb. 15, 1990)

And when the direct examination by his counsel de parte,
Atty. Arsenio de Leon, proceeded, the following questions and answers were
taken:

Q: Mr. Eleseo
Cruz. I heard you said that you are now
in jobless?
A: Yes, sir.

Q: Since when?
A: May 20, 1989,
sir.

(Ibid.)

There is here an express judicial admission by accused-appellant
that as of May 20, 1989, he was already separated from active service in the
INP. When accused-appellant raised the
issue of jurisdiction for the first time in his motion for reconsideration of
the judgment of conviction, he presented no further evidence. In fact, it was
the prosecution, during the hearing conducted on June 7, 1991 of said motion
for reconsideration, which presented a copy of Special Order No. 65-P to prove
that accused-appellant was dismissed from the police service with prejudice to
future re-entry into the INP effective as of May 18, 1989 (See: Exh. “A-Opposition”, p. 417,
Record). It was only then that accused-appellant
began claiming that he received a copy of the special order only on June 7,
1989, or a day after the filing of the Informations in the instant
cases. Verily, we find such posture by accused-appellant, who at that stage had
already replaced Atty. de Leon with Atty. Renato T. Paguio, as a mere
after-thought, to which the trial court correctly accorded no weight.

It must be stressed that the burden of proving lack of
jurisdiction is upon him who claims such. The Court significantly notes that accused-appellant presented no
competent and admissible evidence to show that as of June 6, 1989, the date of
the filing of the Informations, he was still in active service with the
INP. Accused-appellant’s claim that he
received his copy of Special Order No. 65-P relative to his summary dismissal
only on June 7, 1989 simply remained an allegation. We have consistently ruled that mere allegation is not evidence (Lagasca
vs. De Vera, 79 Phil. 376 [1947]), and such unproved allegation may not be
given any favorable consideration whatsoever. On the contrary, we have reason to believe that accused-appellant
received the copy of said Special Order No. 65-P on May 20, 1989 as he admitted
in his direct testimony.

In a similar manner, accused-appellant’s claim that he appealed
the order of dismissal to the Judge Advocate General has remained unsupported
by any proof. He claimed in his
supplemental motion for reconsideration that he wrote the Judge Advocate
General asking for certification as to the status of his appeal. No proof was ever presented to show that
said letter, if any, was in fact sent to and received by the Judge Advocate
General. More significantly, he claimed
that the Judge Advocate General sent a reply-letter dated June 5, 1991 to his
counsel, Atty. Paguio (See: p. 5 Supplemental Motion for Reconsideration; p.
430, Record) but the entire record is bereft of any copy of the said alleged
reply- letter. This being so,
accused-appellant’s claim that his dismissal effective May 18, 1989 had not yet
attained finality when the Informations were filed on June 6, 1989 deserves
scant consideration. It appears to be
another after-thought on the part of accused-appellant.

Thus, just like in the case of People vs. Dulos (237 SCRA
141 [1994]) this issue of jurisdiction may be disposed of by stating that while
it is true that Section 1, Presidential Decree No. 1850, as amended, vests exclusive jurisdiction upon courts
martial to try criminal offenses committed by members of the INP, whether or
not done in the actual performance of their official duties,
accused-appellant’s case falls under the second exception contained in the
proviso of the section which confers upon civil courts jurisdiction over the
person of the accused where he was discharged from active service without
military jurisdiction having duly attached over him before his separation. The court, a quo, therefore had
jurisdiction over accused-appellant for the offenses charged.

Accused-appellant also assails the credibility of Emma Ruth
Ilocso who rendered an eyewitness account of the killing of Esperanza Viterbo
and Yehia Aburawash Mohammed. Accused-appellant claims that there appear in the record some facts or
circumstances of weight and influence which were misappreciated by the trial
court. One is the alleged loose morals
of Emma Ruth Ilocso. Another such
factor would refer to the supposed inconsistencies in some of the details
between her declarations during the administrative proceedings and the trial of
the criminal case.

Accused-appellant’s efforts to discredit Emma Ruth Ilocso are
futile.

We stress that in this jurisdiction, loose morals per se is
not a ground to discredit a witness. There must be clear indications militating against her credibility other
than her being a person of ill repute. Otherwise stated, even a prostitute may be a competent witness to the
extent that even with her sole testimony an accused may be duly convicted,
provided that such witness is not coached and her testimony is not rehearsed
and on all other counts worthy of credence beyond reasonable doubt.

The all too sweeping contention in accused-appellant’s motion for
reconsideration that it is improbable that Ilocso will tell the exact truth
where there is the slightest motive for testifying falsely as she would
probably be willing to bring her evidence to market as she was ready to offer
her person for sale, presents a cynical and too dark an outlook of a human
person for acceptance. In the first
place, Ilocso has not been shown to be a person of ill repute. Then too, the reputation of this witness is
not germane to the case.

To further discredit Emma Ruth Ilocso, accused-appellant
capitalizes on the supposed discrepancies in her answers as to exactly where
she and her companions came from before they came to the city jail, or who her
companions were. He also points out her supposed lie concerning her personal
circumstances such as her educational background. Ilocso was forthright enough to say that some of her statements
in the administrative case are not correct and true. But she ascribes, which reason we believe, the same to her
constant fear as she was threatened by accused-appellant, a policeman whom she
knows could kill as he did kill the herein victims. In any event, the supposed untrue statements do not deal with
Ilocso’s positive identification of accused-appellant and his companion, Sioco,
both of whom Ilocso had known 2 years previous to the incident.

Under the foregoing consideration, there is no cogent reason for
the Court to depart from the well established doctrine that on questions of
credibility of witnesses, this Court will hold with high respect the factual
findings of the trial judge who actually observed the demeanor of the witnesses
at the witness stand.

Accused-appellant’s argument that conspiracy has not been
established in the instant case with the same quantum of evidence required for
conviction does not persuade us. The
unity of purpose of accused-appellant and co-accused Sioco was clearly
established by the plain and clear testimony of witness Ilocso. She saw the two co-accused engaged in an
argument with Aburawash before both accused shot the latter. Immediately thereafter, both accused went
after a defenseless woman, Viterbo, who ran towards the burger stand and there
they shot her too. There is no
indication whatsoever that either of them desisted from executing all the overt
acts necessary to perpetrate the two crimes of murder. Clearly, there was conspiracy.

Finally, on the last issue involving the existence of the
qualifying circumstances, we agree with the Solicitor General that treachery
attended the commission of the crime, qualifying the crimes to murder.

As correctly pointed out by the Solicitor General:

. . . There is treachery when the offender commits any of the
crimes against the person employing means, methods and forms in the execution
thereof which tend directly and specially to insure its execution without the
risk to himself arising from the defense which the offended party might make (Article
14, paragraph 16, Revised Penal Code). For the said circumstance to be present, two conditions must concur, to
wit: (a) the employment of a manner of execution which would insure the
offender’s safety from any defensive or retaliatory act by the offended party
such that no opportunity is given the latter to defend himself or retaliate and
(b) such means of execution was deliberately or consciously adopted (People
vs. Crisostomo, 222 SCRA 93).

Where the victim was without any opportunity to repel the aggression
or to escape, treachery can be appreciated to qualify the killing to murder (People
vs. Maestro, 222 SCRA 538). In
treachery, what is decisive is that the attack was executed in such a manner as
to make it impossible for the victim to retaliate (People vs. Buela, 227
SCRA 534).

(pp. 37-38, Appellee’s Brief.)

However, the trial court was in error when it took into
consideration evident premeditation and abuse of superior strength.

Evident premeditation was not proved by the evidence. The trial court erroneously surmised that
when accused-appellant followed Aburawash and Viterbo coming from inside the
premises of the city jail, co-accused Sioco was already outside waiting for
them. From this the court a quo concluded
that the act of shooting Aburawash in the head three times and forcibly
bringing out Viterbo from the burger stand where she sought refuge, telling her
that she will be brought to a waiting taxicab, but instead coldbloodedly
shooting her to death, confirmed that their assassinations were well planned. Hence, the conclusion that there was evident
premeditation (p. 34 Decision; p. 344, Record).

We do not agree. There
was no evidence directly showing any preconceived plan to liquidate or kill the
victims. What appears on record was
that the accused-appellant and Aburawash engaged in a heated argument before
the crime was committed. There is the
possibility that the decision to shoot the victims was made only there and
then. This consideration should at least
cast reasonable doubt as to the existence of a plan to kill the victims. For
evident premeditation to be appreciated against an accused, the prosecution
must prove the following: (1) the time when the offender determined to commit
the crime; (2) an act manifestly indicating that the culprit has clung to his
determination, and (3) sufficient lapse of time between the determination and
execution to allow him to reflect upon the consequences of his act (Par. 13, Art. 14, Revised Penal Code; People
vs. Cordero, 217 SCRA 1[1993]). These elements have not been shown in the instant case.

The trial court likewise erred in separately appreciating abuse
of superior strength which is already absorbed in the qualifying circumstance
of alevosia or treachery (People vs. Villanueva, 225 SCRA 353
[1993]; People vs. Borja, 91 SCRA 340 [1979]; People vs.
Pasilan, 14 SCRA 694 [1965]; People vs. Escalona, 1 SCRA 891
[1961]).

In sum, the killings in the instant case were qualified to murder
by treachery. The penalty imposed under
Article 248 of the Revised Penal Code is reclusion temporal in its
maximum period to death. There being no
aggravating circumstances present, the imposable penalty is the medium thereof
which is reclusion perpetua.

The trial court awarded civil indemnity payable jointly and
severally by accused-appellant and convicted felon Salvador Sioco to the heirs
of Esperanza Viterbo in the amount of P50,000.00 for her death, and the
additional amount of P10,000.00 as moral damages. The Court sustains the award of P50,000.00. However, finding no justification for the
additional amount of P10,000.00 from the judgment under review, the
Court is inclined to delete the same.

WHEREFORE, premises considered, the conviction of
accused-appellant by the trial court and the corresponding penalties imposed
are hereby AFFIRMED with the MODIFICATION that the award of moral damages is
deleted, with no special pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Romero, Francisco and Panganiban, JJ., concur.