PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SALVADOR ALACAR @ BADONG OR BUDDY, RIC ESGUERRA, CONRADO ALACAR AND TEOFILO TULIAO, JR., ACCUSED-APPELLANTS.

This appeal from the decision of the Regional Trial Court, First
Judicial Region, Branch 40, Dagupan City sprang from two separate informations
for attempted homicide and for murder.

The information for the case of attempted homicide docketed as
Criminal Case No. D-1995 reads:

“That on or about the 9th day of May, 1978, in the City of
Dagupan, Philippines, and within the jurisdiction of this Honorable court, the
above-named accused SALVADOR ALACAR @ Badong or Buddy, RIC ESGUERRA, CONRADO
ALACAR and TEOFILO TULIAO, JR., with intent to kill one GERARDO P. CENTINO,
confederating together, acting jointly and helping one another, did then and
there, wilfully, unlawfully and criminally, attack, assault and use personal
violence upon one Gerardo P. Centino, by boxing, throwing stones and hitting
him several times on the different parts of his body, thereby inflicting upon
the latter physical injuries, the said accused having thus commenced the
commission of a felony directly by overt acts, and did not perform all the acts
of execution which should have produced the felony by reason of some cause or
accident other than their own spontaneous desistance; that as a consequence
thereof, the herein offended party sustained damages.” (Rollo, p. 5)

The other information in Criminal Case No. D-1996 charges
Salvador Alacar and Ric Esguerra with murder committed as follows:

“That on or about the 9th day of May, 1978, in the City of
Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused SALVADOR ALACAR and RIC ESGUERRA, with evident
premeditation and treachery, and with intent to kill one TEOFILO G. SUAREZ,
confederating together, acting jointly and helping each other, did then and
there, wilfully unlawfully and criminally, attack, assault and use personal
violence upon one TEOFILO G. SUAREZ by striking him with a stone, boxing and
hitting him, thereby causing his death shortly thereafter due to ‘Brain injury,
severe, sec.’ to massive intracranial hemorrhage’, as per Autopsy Report and Certificate
of Death, both issued by Dr. Otto Raguindin, PPH, this City, to the damage and
prejudice of the legal heirs of the deceased TEOFILO G. SUAREZ, in the amount
of not less than P12,000.00.” (Rollo, p. 7)

At the arraignment in Criminal Case No. D-1995 held on January
28, 1982, all the accused-appellants with the assistance of counsel pleaded not
guilty. In Criminal Case No. D-1996,
accused-appellant Salvador Alacar and his co-accused Ric Esguerra likewise entered
pleas of not guilty when arraigned on January 5, 1982.

Joint trial on the merits ensued after which the trial court, on
May 20, 1983, rendered its decision with the following dispositive portion:

“In view of the foregoing, this Court, in Criminal Case No.
D-1995 for Attempted Homicide, finds the accused Salvador Alacar, Ric Esguerra,
Teofilo Tuliao, Jr. and Conrado Alacar all guilty of the offense of Attempted
Homicide qualified by treachery and superior strength and hereby sentences them
to an indeterminate penalty of six (6) years and and one (1) day of prision
mayor and to pay P3,000.00 to Gerardo Centeno (should be Centino), jointly and
severally, and to pay each the proportionately costs.

“With regards to the crime of Murder in Criminal Case No. D-1996, this Court hereby finds Salvador
Alacar guilty of Murder beyond reasonable doubt and judgment is hereby rendered
qualified by treachery (sic) and hereby sentences him to reclusion perpetua and
to pay P12,000.00 to the heirs of Teofilo Suarez and to pay 1/2 of the costs.

“And with regards to Ric Esguerra, the Court hereby orders his
acquittal on ground of reasonable doubt. With 1/2 cost de oficio.” (Rollo, p. 20)

The antecedent facts as presented in detail by the Solicitor
General in his brief are as follows:

“Sometime prior to May 9, 1978, Gerardo Centeno (should be
Centino), the complainant in Criminal Case No. D-1995, Attempted Homicide, was
one of those who complained about the use of association funds by Teofilo
Tuliao, Jr., one of the accused, who was then president of an association in Caranglaan
District, Dagupan City. Tuliao ‘used
the funds of the association together with his friends …..’ (p. 21, tsn,
Centino, March 2, 1982). Teofilo
Suarez, the deceased in Criminal Case No. D-1996, Murder, was commonly known in
the community as a peaceful man, although once he had a quarrel with accused
Ric Esguerra and Salvador Alacar over a mahjong game, but the deceased had not
started it, ‘he was not the one who made the first move’ (p. 18, tsn, P.
Suarez, March 15, 1982).

“About a month previous to the above-mentioned date, or on
April 9, 1978, Centino was hit by a stone, although he did not know then who
the stonethrower was (p. 20, tsn, Centino,
February 15, 1982).

“On May 9, 1978, at around 5:00 o’clock in the afternoon,
Teofilo Tuliao, Ric Esguerra, Salvador Alacar, Conrado Alacar, and Ernesto
Gomez, being friends and barriomates, were having a drinking spree with a
certain Boy Ablog, also a mutual friend and barriomate, at the latter’s house
(pp. 4-6, tsn, Gomez, April 14, 1982). In the course of conversation, Salvador Alacar mentioned that he was the
one ‘who actually stoned Gerardo Centino’ previously, and Salvador Alacar,
Conrado Alacar, Teofilo Tuliao and Ric Esguerra ‘talked and agreed that they
would maul and kill Gerardo Centino’ (pp. 6-7, Ibid). Ernesto Gomez tried to discourage the four
accused. ‘I tried to pacify them but
they did not heed me’ (p. 21, Ibid.)

“At around 8:00 o’clock in the evening, Gomez decided to go
home, and on his way home dropped by the store of Loreta Gutierrez. ‘It so happened that they [Salvador Alacar,
Conrado Alacar, Teofilo Tuliao and Ric Esguerra] also followed me and about to
go to the store also.’ (p. 8. Ibid.) to buy cigarettes (p. 3, tsn,
Esguerra, July 14, 1982; p. 3, tsn, S. Alacar, September 8, 1982). At about the same time, Gerardo Centino went
to the same store also to buy cigarettes (pp. 6-7, tsn, Centino, February 15,
1982; pp. 10-11, tsn, Zarate, March 17, 1982; p. 9, tsn, Gomez, April 14,
1982).

“Whereupon, in a ‘quarrelsome’, ‘ferocious’ voice, Salvador
Alacar addressed Centino thus: ‘labi
kuya’ [i.e., ‘good evening, elder brother]. Centino was surprised and replied: ‘balon igalang mo ac natan‘ [‘it
is strange that you now greet me’], adding ‘I was surprised why you greeted
me’. Salvador followed up with: ‘What is the question if I greet you?’
Centino replied: ‘I am really surprised
that you greeted me.’ Salvador continued: ‘Why, didn’t you know that I was the one who threw stones [at you] on
that incident before?’ Centino: ‘I did
not expect that ‘you were ‘the one who stoned me.’ Salvador then told Centino
that if Centino did not believe what Salvador just said, ‘Come with me and go
to the house of Auring [a neighbor] to confirm that I was really the one who
stoned you’ (pp. 7, 9-10, tsn, Centino, February 15, 1982; pp. 11-12, tsn,
Zarate, March 17, 1982; pp. 9-11, tsn, Gomez, April 14, 1982).

“I did not expect that they have bad intention against me’ or
not suspecting any ill-intention on the part of Salvador Alacar, Conrado
Alacar, Teofilo Tuliao and Ric Esguerra,
Centino went with the four accused to go to Auring’s house, with Salvador
walking by his side while the other three accused walked behind him, on the
right side of the road. Ernesto Gomez
also went with the whole group (pp. 10, 22, 23, 34, tsn, Centino, February 15,
1982; p. 12, tsn, Zarate, March 17, 1982; p. 11, tsn, Gomez, April 14, 1982).

“When the group was about to reach a junction of the road,
Salvador Alacar, unnoticed by Centino, stepped forward, picked up a stone, and
suddenly ‘smashed it against Centino ….. his left lower jaw’ and Conrado
Alacar, Teofilo Tuliao and Ric Esguerra ‘delivered fist blows’ on Centino’s
breast, stomach, shoulders. All the
accused ‘ganged up upon him.’ Ernesto Gomez tried to pacify the accused (pp.
10-12, 25, tsn, Centino, February 15, 1982; p. 24, tsn, Suarez, March 15, 1982;
pp. 13-14, tsn, Zarate, March 17, 1982; pp. 12-13, 27, tsn, Gomez, April 14,
1982)

“Realizing that he ‘could not fight against them’, Centino was
able to run ‘towards the other side of the street.’ This was his first attempt
to escape. The four accused chased
Centino (p. 12, Centino, February 15, 1982). At this stage, barangay councilman Perfecto Suarez, who was then
watching television inside his house, was attracted by the commotion outside
and went out and tried several times to pacify the accused. His pleas, ‘What is that?’ went unheeded
(pp. 4-5, tsn, Suarez, March 15, 1982). The four accused caught up with Centino and stoned and boxed him several
times, hitting him in the breast, arms and back. Centino fell down (p. 13, tsn, Centino, February 15, 1982; pp.
5-6, tsn, Suarez, March 15, 1982; pp. 13-14, tsn, Gomez, April 14, 1982). ‘In the course of struggling, he was able to
free himself’ (p. 6, tsn, Suarez, March 15, 1982) and sensing ‘that they are
going to kill me really, I ran away .… towards the north,’ in a second attempt
to escape (p. 13, Centino, February 15, 1982). However, while running towards the north, Centino stumbled down, face
down, and as he stood up, the four accused caught up with him. ‘Ric Esguerra boxed me, several times’ and
the other three ‘were throwing stones at me.’ Centino fell down (p. 13, tsn, Centino, February 15, 1982; pp. 6-7, tsn,
Suarez, March 15, 1982; p. 14, tsn, Zarate, March 17, 1982; pp. 14-15, tsn,
Gomez, April 14, 1982). Centino ‘was
not feeling alright anymore.’ He
crawled on the ground and in a last attempt to escape, when ‘I was able to
stand up, I ran away again’ and ‘entered the house of Peping Callanta’ (p. 14,
tsn, Gomez, February 15, 1982; p. 7, tsn, Suarez, March 15, 1982; p. 16, tsn,
Zarate, March 17, 1982; p. 15, tsn, Gomez, April 14, 1982).

“’Teofilo Tuliao and Conrado Alacar stood by the door of the
house of Callanta waiting for Gerardo Centino to come out’ while Salvador
Alacar and Ric Esguerra ‘followed each other going South.’ At this stage, the deceased Teofilo Suarez was also proceeding towards south,
‘towards the store of his mother.’ Half-walking and half-running; Salvador
Alacar and Ric Esguerra were able to catch up with Teofilo Suarez remarking
‘you are also one,’ Salvador Alacar ‘immediately got hold of a stone and
immediately hit Teofilo Suarez on the forehead,’ adjacent to the right temple,
and Ric Esguerra followed up this attack by boxing Teofilo Suarez on the
chest. Teofilo Suarez ‘fell down on a
lying position.’ Whereupon, Salvador Alacar and Ric Esguerra ran away,
proceeding southward. Upon seeing what
Salvador Alacar and Ric Esguerra did to Teofilo Suarez, Teofilo Tuliao and
Conrado Alacar, who had been waiting for Gerardo Centino to come out from the
house of Callanta, also ran away, in the opposite
direction, northward. From May
10, 1978, Esguerra ‘permanently resided in Amacoro, Binmaley, Pangasinan.’ Also, right after the May 9, 1978 incident,
Conrado and Salvador Alacar lived in Pampanga and after ‘about a year’ Salvador
transferred to Manila.’ (pp. 9-14,
33-34, tsn, Suarez, March 15, 1982; pp. 19-21, 35-44, tsn, Zarate, March 17,
1982; p. 19, tsn, Esguerra, August 12, 1982).

“After going to the Pangasinan Provincial Hospital for
treatment, Gerardo Centino reported the incident that occurred to him to the
Dagupan City Police Station. On the
other hand, after causing Teofilo Suarez to be brought to the hospital,
barangay councilman Perfecto Suarez reported also the whole incident to the
police authorities (p. 16, tsn, Centino, February 15, 1982; pp. 14-15, tsn,
Suarez, March 15, 1982; Exhibit “G” and “F” for the
Prosecution).

“The medico-legal certificate as to the injuries sustained by
Gerardo Centino contains the following findings:

– Contusion 1 x 1.5 cms. upper lip right
side.

– Linear abrasions (2) 2 cms. each at the
level of 6th rib anterior right.

– Confluent abrasions (3) 2 x 2 cms. each
and chest middle left.

– Confluent abrasion 1.5 x 2 cms. with
erythema and cross chest, lower right.

– Confluent abrasions 2 x 3 cms. forearm,
medial aspect right.

– Linear abrasion 1 cm. proximal third of
forearm, left.

“The autopsy report on Teofilo Suarez contains the following:

Date and time of
autopsy : May 10, 1978, 10:00 o’clock p.m.

External physical findings : Head-lacerated wound, 5 cms. superorbital right.

Internal physical findings : Head-linear fracture, frontal bone. Intracranial hemor­rage, massive frontal area.

Probable cause of death  : Brain injury, severe, second to massive intracranial hemor­rage.

(Exhibit “E”,
Prosecution)

“‘Sometime on the first month of 1982,’ Benita Alacar, mother
of Salvador Alacar and Conrado Alacar twice approached Dr. Antonio Pastoral for
the latter to set a meeting or appointment between Perfecto Suarez and her sons
to ‘determine whether it will be possible to settle the case now in Court” (pp.
5, 6-7, 11, tsn, Pastoral, January 13, 1983).” (Appellee’s Brief, pp.
4-10)

On the other hand, the presentation of the facts of the
consolidated cases from the viewpoint of the appellants is found in their
brief, to wit:

“I.
ABSTRACT OF THE TESTIMONY OF THE ACCUSED SALVADOR ALACAR.

The facts of the case according to the accused, Salvador Alacar,
are as follows:

“That at or about 4:00 p.m. of May 9, 1978, accused and Ric
Esguerra went to the house of Boy Ablog;

“That together with the latter, they gathered vegetables,
returned to the residence of Boy Ablog and cooked their supper;

“That after it was cooked, Teofilo Tuliao, followed by Ernesto
Gomez, arrived;

“That Salvador Alacar greeted him, but Gerardo Centino coldly
remarked that it was now that he greeted him;

“That after Salvador Alacar explained himself, Gerardo Centino
accused the former of having stoned him but was denied, so that the latter
grabbed his collar and proceeded to drag him towards the place of Auring
Cabrera;

“That on the way, Salvador Alacar struggled to free himself,
boxing Gerardo Centino in the process;

“That they exchanged blows, and Ric Esguerra separated them;

“That he urged Salvador Alacar to go home;

(Source: TSN, S. Alacar, p. 4)

“That Gerardo Centino lunged at him and boxed him several
times, so Salvador Alacar grappled with him, and both fell to the ground, with
the former on top of him;

“That Ric Esguerra pulled Gerardo Centino away from Salvador
Alacar;

“That Teofilo Tuliao, Jr., was not there anymore the second
time Salvador Alacar and Gerardo Centino grappled with each other;

“That Perfecto Suarez and Ernesto Gomez held Salvador Alacar,
and when he was able to stand up, he saw someone intercept his brother Conrado
Alacar;

(Source: TSN, S. Alacar, p. 5)

“That this incident took place infront of the store of Tayaba,
about 20 meters away from the store of Loreto Gutierrez;

“That Perfecto Suarez and Ernesto Gomez released him, and
Salvador Alacar saw them approach his brother Conrado Alacar;

“That in the meantime, Gerardo Centino struggled to free
himself from Ric Esguerra so that he can resume his fight with Salvador Alacar,
but could not do so easily, so he instead fought with Ric Esguerra;

“That he went near his brother Conrado Alacar and saw Perfecto
Suarez pick up another stone which he threw at him, but missed;

(Source: TSN, S. Alacar, p. 7)

“That the stone which missed him hit someone at his back, but he
was not able to identify him because Ernesto Gomez, Gerardo Centino and
Perfecto Suarez, rained him with stones;

“That he also picked up stones and threw it at them, but the two
ran to the house of Iping Callanta;

“That his brother Conrado Alacar also picked up a stone and
faced Ernesto Gomez;

“That they threw stones at their adversaries to drive them
away in self defense;

“That at that time, Conrado Alacar was on his right side about
2 or 3 meters away.

(Source: TSN, S. Alacar, p. 8)

“That after driving them away, they proceed (sic) to go back
to their respective house, but Ernesto Gomez and Gerardo Centino came running after them with clubs;

“That Perfecto Suarez also joined the group in chasing them;

“That for fear of being mauled, they ran home with their
adversaries close on their heels;

(Source: TSN, S. Alacar, pp. 9)

“That they shouted to the mother of Salvador Alacar to let
them out, but when nothing happened, they left.

“That Salvador Alacar denied having plotted nor conspired with
all of his co-accused to kill or harm Gerardo Centino;

“That he also denied that they (all defendants) confederated
and helped one another in mauling complainant Gerardo Centino;

(Source: TSN, S. Alacar, p. 10)

“II.
ABSTRACT OF THE TESTIMONY OF ACCUSED CONRADO ALACAR.

x x x    x x x    xxx

The following testimony of Conrado Alacar supplemented that of
Salvador Alacar as follows:

“That at or about 6:15 of May 9, 1978, Conrado Alacar went to
the house of Loreta Gutierrez to play mahjong (TSN, C. Alacar, pp. 12-13);

“That when he left their house on his way he passed by the
store of Vivencio Suarez and saw Gerardo Centino and Ernesto Gomez drinking
beer (TSN, pp. 15-16, C.
Alacar);

“That when he was playing mahjong inside the house of Loreta
Gutierrez, both Gerardo Centino and Ernesto Gomez arrived and inquired from him
the whereabouts of his brother, Salvador Alacar;

“That when asked why he was looking for him, he replied that it
was his brother Salvador Alacar who stoned him the night before, according to
Auring, and that he threatened to spank him if he sees him;

“That thereafter, both of them left the place;

“That not long after, he heard shouts saying that his brother
and Gerardo Centino were fighting;

(Source: TSN, C. Alacar, pp. 16-17)

“Conrado Alacar unequivocally pointed to Perfecto Suarez,
uncle of the deceased Teofilo Suarez, as the person who caused the death of the
latter when he missed his target, Salvador Alacar, which instead hit the
deceased (TSN, C. Alacar, p. 20, May 26, 1982).

“Winding up his direct examination, Conrado Alacar denied any
participation in mauling Gerardo Centino.” (TSN, C. Alacar, p. 29).

“III.
ABSTRACT OF THE TESTIMONY OF RIC ESGUERRA.

x x x    x x x    x x x

“Briefly stated, Ric Esguerra testified that that night of May
9, 1978, it was Gerardo Centino who started the fight by accusing Salvador
Alacar of having stoned him; that in order to prove to the latter that what he
said was true, he held Salvador Alacar by the collar and dragged him towards
the house of Auring Cabrera who informed him of such fact; that on the way,
Salvador Alacar struggled to free himself, and both exchanged blows; that Ric
Esguerra intervened to pacify them; that Perfecto Suarez and Ernesto Gomez held
Salvador Alacar, while he pulled Gerardo Centino away; that the brawl expanded
(sic) and much later, Perfecto Suarez and Ernesto Gomez began to fight both
Salvador Alacar and Conrado Alacar by throwing stones at them; that Ric Esguerra
also exchanged blows with Gerardo Centino; that a stone thrown by Perfecto
Suarez at Salvador Alacar missed, hitting the deceased Teofilo Suarez in the
head; that thereafter, Gerardo Centino, Ernesto Gomez and Perfecto Suarez
chased them with clubs to their respective houses; that to avoid any further
trouble, the mother of accused Ric Esguerra advised him to leave the place;
that he did not know that something serious happened until after a few days;
and that accused Ric Esguerra and his co-accused went to a lawyer, attended the
preliminary investigation and appealed the ruling of the fiscal to the Ministry of Justice (TSN, Ric Esguerra, pp.
2-13, July 12, 1982; TSN, pp. 19-24, 25, August 12, 1982; TSN, p. 20, September
10, 1982; Exhibit 5).

x x x    x x x     x x x

“ABSTRACT
OF THE TESTIMONY OF TEOFILO TULIAO, JR.

“The testimony of accused Teofilo Tuliao is very brief,
because he left when Salvador Alacar and Gerardo Centino were just beginning to
fight. (TSN, T. Tuliao, pp. 32)

“He testified, however, that he was with Ric Esguerra,
Salvador Alacar, Ernesto Gomez who left earlier, and Boy Ablog, in the house of
the latter in the late afternoon and up to about 8:00 p.m. of May 9, 1978 in
Caranglaan, Dagupan City, when they went to the store of Loreta Gutierrez to
buy cigarettes.

“While in the store, they saw Gerardo Centino drinking beer,
and when accused Salvador Alacar greeted him, Gerardo Centino expressed
surprise. After an exchange of a few
words, Gerardo Centino accused Salvador Alacar of stoning him which, however,
the latter denied. Gerardo Centino then
insisted that he was the one who stoned him, then he took hold of his collar
and dragged him towards the place of Auring Cabrera, because the latter was the
one who allegedly told him of it.

“He went with the group to find out if there is any truth to
what Gerardo Centino said, but on the way, Salvador Alacar struggled to
extricate himself, and both exchanged blows. Witness Teofilo Tuliao tried to pacify them, but Gerardo Centino warned
him not to interfere least (sic) he be harmed, so he left them (TSN, T. Tuliao,
pp. 21-33)

“Witness also denied having participated in mauling
complainant Gerardo Centino (TSN, T. Tuliao, p. 33).” (Appellants’ Brief,
pp. 4-12)

In this appeal, the accused-appellants interpose the following
assignment of errors.

I

THE COURT ERRED IN GIVING CREDENCE TO THE THEORY OF THE
PROSECUTION.

II

THE COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF WITNESSES
FOR THE PROSECUTION.

III

THE COURT ERRED IN
CONSIDERING THE ACT OF BENITA TULIAO IN EXPLORING THE POSSIBILITY OF A
SETTLEMENT AS AN ADMISSION OF GUILT OF THE ACCUSED.

IV

THE COURT ERRED IN CONSIDERING THE FLIGHT OF ACCUSED FOR SAFETY AS
AN ADMISSION OF GUILT.

V

THE COURT ERRED IN HOLDING THAT THE CRIMES COMMITTED ARE ATTEMPTED
HOMICIDE AND MURDER, RESPECTIVELY.

VI

THE COURT ERRED IN NOT ACQUITTING THE DEFENDANTS. (Appellants’ Brief, p. 1-2)

These cases were transferred to the Third Division on August 24,
1987 and reassigned to the undersigned ponente for report on March 2, 1992.

An analysis of the assigned errors pigeonholes them into two
basic issues namely: (1) credibility of
the witnesses presented; and (2) sufficiency of the evidence in support of a
judgment of conviction.

On the issue of credibility of witnesses, the accused-appellants
find fault with the prosecution evidence by alleging that the testimonies of
the eyewitnesses namely Perfecto Suarez, Loreta Zarate and Ernesto Gomez
contain serious inconsistencies and contradictions on material details. They state that the credibility of the
witnesses remains tainted on account of their close relationship with the
offended parties. Moreover, the
accused-appellants claim that the narration of the attendant facts by the
alleged eyewitnesses in relation to the crimes subject of this appeal defies
human experience and the laws of nature.

In their brief, the accused-appellants maintain that Gerardo
Centino’s claim that he was mauled and pummelled with stones is belied by the
medical certificate (Exhibit “A”) issued by Dr. Dominador Manzano who
described Centino’s injuries as either abrasion or contusion thus, only minor
ones (Appellants’ Brief, p. 17); that the testimonies of both prosecution
witnesses Perfecto Suarez and Loreta Zarate locating the fatal wound suffered
by the deceased Teofilo Suarez at the right temple do not coincide with the
finding of Dr. Otto Raguindin in his autopsy report (Exhibit “E”) on
the said victim placing the mortal wound above the right eyebrow of the
forehead (Ibid, p. 19); that Perfecto Suarez’ testimony that the
accused-appellant smashed a stone in the right temple of the deceased Teofilo
is not supported by the statement of the latter in the hospital before he lost
consciousness saying that he was hit by a stone thrown at him (Ibid, pp. 47­-48);
that there is a variance on material points in the declarations made in court
and the affidavits executed by prosecution witnesses Gerardo Centino (Exhibit
“H”), Perfecto Suarez (Exhibit “I”), Ernesto Gomez (Exhibit
“J”) and Loreta Zarate (Exhibit “K”), hence, their
credibility is impaired (Ibid, pp. 32-34, 36-37, 50-51 and 71-72).

The aforementioned inconsistencies and contradictions pinpointed
by the accused-appellants do not warrant our reversing the trial court’s
verdict of conviction as the same pertain to minor details.

In Criminal Case No. D-1995, there is overwhelming evidence in
support of the trial court’s factual finding that after a verbal argument
transpired between accused-appellant Salvador Alacar and the victim Gerardo
Centino, the said accused-appellant, together with the three other
accused-appellants Ric Esguerra, Teofilo Tuliao, Jr. and Conrado Alacar, ganged
up on Centino boxing him and throwing stones at him simultaneously. If it were true that there was no homicidal
intent on the part of the said accused-appellants, how come they pursued
Centino and persistently stoned and boxed him even as he scrambled for safety
and fell twice and they stopped mauling and stoning him only after Centino
sought refuge in the house of one Eping Callanta? Clearly, the accused-appellants did not simply intend to inflict
upon Centino minor physical injuries as the former would have us believe considering the manner
of concerted attack inflicted on the offended party.

In Criminal Case No. D-1996, prosecution eyewitnesses Perfecto
Suarez and Loreta Zarate positively identified accused-appellant Salvador
Alacar as the person who delivered the fatal blow on the deceased. Their testimonies in open court were
assessed to be straightforward, clear and sincere by the trial court which had
the full opportunity to observe their demeanor while testifying. The fact that both witnesses recalled having
seen the accused-appellant smash the deceased with a stone on his right temple
instead of at the right eyebrow of the forehead (described as 5 cm.
supraorbital, right in the autopsy report marked as Exhibit “E”)
cannot seriously affect the trial court’s finding of guilt. The alleged discrepancy is more apparent
than real as both situses pertain to the right part of the head.

In both cases, the alleged variances between the eyewitnesses’
testimonies in court and their affidavits ex-parte are
inconsequential. As opined by the trial
court, the same relate to minor matters which cannot affect the probative value
of their positive testimonies in court. Ex-parte affidavits are generally incomplete, hence,
inconsistencies between declarations of the affiants in their sworn statements
and those in court do not necessarily discredit them and the infirmity of
affidavits as an evidence is much a matter of judicial experience (People v.
Lagota, 194 SCRA 92 [1991]; People v. Patilan, 197 SCRA 354 [1991]).

Thus, whether or not the conversation between Gerardo Centino and
the accused-appellant Salvador Alacar was cordial or heated matters little if
not nil when we consider the proven fact that the verbal encounter between the
two resulted in the crime of attempted homicide with the four
accused-appellants as perpetrators. Whether or not the assault on the deceased Teofilo Suarez was frontal or
from behind does not affect the presence of treachery in the light of the
circumstance that the attack was sudden and consciously adopted by the accused
leaving the victim with no means to defend himself.

The accused-appellants further attempt to discredit the
prosecution eyewitnesses intimating that their testimonies are biased and
self-serving. They point out that
Perfecto Suarez is the uncle of the deceased Teofilo Suarez, and Ernesto Gomez
is the godson of the offended party Gerardo Centino (Appellants’ Brief, pp. 16
and 43). It is settled jurisprudence
that mere relationship of a party to the victim does not automatically taint
the former’s credibility when summoned on the witness stand in the absence of any
ill-motive on the part of the relative to testify against the accused. (People v. Genaro, et al, G.R. No. 89113,
November 29, 1991; People v. De Guzman, 194 SCRA 618 [1991]; People v. Paras,
147 SCRA 594 [1987]). The lower court
correctly disregarded the defense theory in this case that Perfecto Suarez
accidentally hit the deceased when he threw a stone at accused-appellant
Salvador Alacar so that he exhibited unusual interest in pursuing the case to
cover up his fault. The records are
further bereft of proof that Ernesto Gomez was motivated to distort the actual
facts of this case on account of his close relationship with Gerardo Centino.

On the accused-appellants’ argument that the prosecution version
as presented by its eyewitnesses is readily belied by human experience and the
law on physics taking into account the amount of physical evidence in the
instant case, we deem it sufficient to quote with favor the submissions made by
the Solicitor-General in his brief, to wit:

x x x                              x
x x                                 x x x

“By way of assailing the credibility of complainant Gerardo
Centino, the accused-appellants’ claim, that it is ‘not consistent with the
normal behavior of a man’ for Salvador Alacar, as narrated by Centino, to
declare in the presence of others at Loreta’s store that he, Salvador, was the
one who threw stones at Centino on a previous occasion (pp. 16, 29, Ibid.). This claim plainly lacks merit. On the contrary, Salvador’s open and public
admission of his feat of stoning Centino is merely indicative of Salvador’s
bravado and contempt for Centino. Earlier at a drinking spree, Salvador openly admitted to his friends his
feat of stoning Centino (p. 6, tsn, tsn, Gomez, April 14, 1982). Later, at Loreta’s store, Salvador openly
and unhesitantly repeated this vaunted claim, not only in the presence of his
drinking friends and of a woman, Loreta Zarate, but also in the very presence
of the victim himself, Gerardo Centino. Clearly, this incessant claim of Salvador is sheer braggadocio and is
only too human, ‘as the common experience and observation of mankind can
approve as probable under the circumstances’ (People v. Baquirin, 20 SCRA 451
[1967]).

x x x                              x
x x                                 x x x

“By way of assailing the credibility of prosecution witness
Ernesto Gomez, the accused-appellants claim that it is unbelievable that Gomez,
wedding godson of Centino, made no effort to warn Centino at Loreta’s store
that Salvador and Conrado Alacar, Ric Esguerra and Teofilo Tuliao had agreed to
kill Centino (pp. 16-17, 39-40, Appellants’ Brief). This claim deserves scant attention, as accused-appellants are
apparently unmindful of the predicament Gomez found himself in. Both the would be killers and the intended
victim were his friends, precisely for this reason one of them, the intended
victim, became his wedding ninong, and if the would be killers,
considering their proximity to Loreta’s store (about 10 meters) should know
that Gomez had warned Centino, they would have harmed Gomez. This is made clear by Gomez on the witness
stand on cross, thus:

“Atty. Llamas

Q.    And
you did not tell Gerardo Centino what these four accused would do against him?

A.    I
did not tell him because they are my friends, they might turn against me.

Q.    How
far away (sic) when you went down and walk, how far away were the four accused
from you?

A.    About
10 meters or more.

Q.    Did
you not know that they were proceeding precisely to the store of Loreta
Gutierrez for the purpose of greeting Gerardo Centino?

A.    I
do not know, but then later on they bought cigarette.

Q.    How
do you know that they will do some harm to you if you would tell Gerardo
Centino their motive when you said you were close friends?

A.    Even
if they are my friends, if I will reveal to Gerardo Centino they will hit me.

(p. 22, tsn, Gomez, April
14, 1982; emphasis supplied [sic])

“The fear entertained by Gomez as may be clearly gleaned from
the foregoing testimony is only too human a feeling and is ‘in conformity with
the common experience of mankind.’ (People v. Dayag, 56 SCRA 439)” (Appellee’s
Brief, pp. 12-13, 14-15)

Moreover, we reiterate our ruling in the case of People v.
Orlando Arbolante y Lagundi, et al. (G.R. No. 96713, October 17, 1991) that:

“x x x The
discrepancies in the declarations made in open court x x x can be readily explained on the basis of human experience
which shows that when two persons both claim witness to a certain incident,
each of them will have a different account as to the details of the same
incident, since it is not possible for their senses of perception to be
synchronized in such a way that
one sees or hears exactly as the
other does x x x. (At. pp. 9-10)

Hence, the fact that one witness testifies that the deceased fell
on his knees after he was successively hit on the right temple and chest (TSN,
March 15, 1982, p. 13) and another testified that the victim fell on his
buttocks then ended up in a lying position after the said successive blows
(TSN, March 17, 1982, pp. 19-20) instead of having fallen sidewards towards the
left since he was hit on the right side of the head as posited by the
accused-appellants (Appellants’ Brief, p. 20) is all a matter of perception
leaving no doubt that the victim had fallen after the blow which later turned
out to be fatal was cast on his person.

In the absence of any showing that the trial court overlooked
some substantial and material facts, the issue of credibility is preferably
addressed to the trial judge who is in a better position to weigh conflicting
testimonies having actually seen the witnesses testify and observed their
demeanor in court while testifying (People v. Peter Hatague, et al., G.R. No.
97308, April 7, 1992; People v. Ruben Lee y Amaso, G.R. No. 66848, December 20,
1991). In the case at bar, there are no
cogent reasons for us to disturb the trial court’s findings of fact in this
regard.

On the issue of whether or not there is sufficient evidence to
support a judgment of conviction as rendered by the trial court, the
accused-appellants insist that the prosecution has not shown any motive on
their part for them to commit the crimes imputed to them. (Appellants’ Brief, p. 20) They state that
since there is doubt as to the identity of the culprits as a result of the
affray that attended the incident in question, the prosecution should have
established the motive behind the imputed crimes (Appellants’ Brief, pp. 3-4).

The evidence on record as to the identity of the assailants is
conclusive and convincing. Our
pronouncement in the case of People v. Mario Aguiluz alias “Rock-Rock”,
(G.R. No. 91662, March 11, 1992) is significant, thus:

“x x x [M]otive
becomes relevant, and its absence may assume determinative significance, only
when the accused has not been positively identified, and proof thereof becomes
essential only when the evidence of the commission of a crime is purely
circumstantial or is inconclusive. This
Court has time and again ruled that lack of motive does not preclude conviction
when the crime and the participation of the accused therein are definitely
established.” (At p. 10, citing People v. Ballinas, 202 SCRA 516 [1991])

The quantum of proof required to establish proof beyond
reasonable doubt is satisfactorily met by the evidence on record. There is strong, compelling and positive
proof that the accused-appellants acted in concert in having attempted on the
life of Gerardo Centino. The trial
court committed no error in dismissing the accused-appellants’ pleas of self?defense. Likewise, for the killing of Teofilo Suarez,
there exists a reasonable and moral certainty that the accused-appellant Salvador
Alacar delivered the fatal blow. This
was categorically declared by the prosecution eyewitnesses, thereby making the
defenses of denial and alibi unavailing.

As regards the accused-appellants’ suppositions that the trial
court regarded the attempt of the mother of the accused-appellants Salvador and
Conrado Alacar to amicably settle the case and the subsequent flight of
accused-appellants Ric Esguerra and the Alacar brothers as “admissions of
guilt” (Appellants’ Brief, pp. 82-83, 87-88), we find that the said
suppositions are erroneous impressions caused by a careless perusal of the
trial court’s decision. The trial court
merely noted the fact of the unrealized “settlement” measures
as contemplated by the mother of the Alacars and the “flight” of the
three accused-appellants to avoid further complication or reprisal. The trial court did not consider the same as
the bases for its judgment of conviction.

We, however, note that with respect to the crime of attempted
homicide, evidence of treachery is wanting owing to the fact that the mauling,
stoning and chasing by the accused-appellants on Gerardo Centino resulted from
a verbal altercation between the victim and the assailants so that the victim
must have been forewarned of the impending brawl. This could have placed Gerardo Centino on his guard. In order that treachery may be established
against the accused, the prosecution must indubitably 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 (see People v. Peter Hatague, et al. supra citing People v. Sabado,
168 SCRA 681 [1988]; People v. Mabubay, 185 SCRA 675 [1990]). For as a general rule, treachery must be
present at the inception of the attack. (People v. Cantre, 186 SCRA 76 [1990])

The modifying circumstance of taking advantage of superior
strength, however, attended the commission of the crime of attempted
homicide. As held in People v.
Peter Hatague, (supra):

“x x x 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 force (US v. Lasada, 21 Phil. 287 [1912]; People
v. Cantre, supra.) Here, it is undeniable that, by reason of the
synchronal attack on the victim by two armed persons, the latter cooperated an
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.”
(Cited cases omitted; at p. 13)

Anent the crime of murder, we agree with the trial court’s
finding that treachery was duly established considering that the attack on the
deceased Teofilo Suarez was sudden and unexpected, without the slightest
provocation on his part. As found by
the trial court, when the accused-appellant Salvador Alacar saw the victim
walking towards the store of the latter’s mother, he, together with co-accused
Ric Esguerra (whom the trial court acquitted in the absence of conspiracy),
overtook Teofilo Suarez and said: “You are also one”, and the said accused-appellant mercilessly
smashed a stone on the deceased’s right temple (RTC Decision, p. 15). This is treachery the essence of which is a
sudden and unexpected attack without the slightest provocation on the part of
the hapless victim (People v. Carlito Alcantara, G. R. No. 95957, February 28,
1992 citing People v. Rey, 172 SCRA 149 [1989]; People v. Pablito Rendoque, et
al., G. R. No. 95541, February 4, 1992; and People v. Badilla, 185 SCRA 554
[1990]).

The dispositive portion of the trial court’s decision, through
inadvertence or oversight, found the accused-appellants in Criminal Case No.
D-1995 guilty of attempted homicide “qualified by treachery and superior
strength.” The word “qualified” should properly read
“aggravated.” Inasmuch as we have ruled out the presence of treachery
in the attempted homicide case, we only consider one aggravating circumstance
which is abuse of superior strength in computing the proper penalty. Hence, the accused-appellants should be
sentenced to the maximum period of the penalty prescribed by law as there is
only one aggravating circumstance present (Art. 64, paragraph [3], Revised
Penal Code). For an attempted crime, a
penalty lower by two degrees than that prescribed by law for the consummated
felony is imposable (Art. 51, Ibid.). Two degrees lower than reclusion temporal (the penalty
prescribed for homicide under Art. 249, Ibid.) is prision correctional. Applying the Indeterminate Sentence Law, the
accused-appellants must suffer the penalty of four (4) months and one (1) day
of arresto mayor as minimum to six (6) years of prision correccional
as maximum.

In Criminal Case No. D-1996, the amount of indemnity to the heirs
of the deceased is raised to P50,000.00 on account of recent jurisprudence.

WHEREFORE, subject to the above modifications, the
appealed decision of the trial court dated May 20, 1983 is AFFIRMED in toto.

SO ORDERED.

Feliciano, Bidin, Davide, Jr., and
Romero, JJ., concur.