THE PEOPLE OF THE PHILIPPINES, PETITIONER, VS. THE INTERMEDIATE APPELLATE COURT AND ANGELITO ALIVIA Y ABALOS, RESPONDENTS.

This is a petition for review on certiorari of the decision
of respondent Intermediate Appellate Court (IAC), now Court of Appeals (CA), in
AC-G.R. No. SP-01320-22 promulgated January 24, 1984, granting the petition for bail of accused
Angelito Alivia y Abalos and nullifying the Orders of the trial court, dated
February 23, 1983 and
May 13, 1983 in Criminal
Cases Nos. 1272-74, entitled People of the
Philippines vs.
Angelito Alivia y
Abalos.  Said orders of the trial court denied accused’s application for bail holding that the accused
Angelito Alivia is charged with three (3)
capital offenses, the evidence of guilt of which, in each case, is strong.

Accused Angelito Alivia y Abalos was charged before
the then CFI of Isabela with the crimes of (1) assault
upon on agent of person in authority with murder with the use of illegally
possessed firearm, with respect to the killing of Lt. Cesar Rumbaoa, (Crim. Case No. 1272),
(2) assault upon an agent of person in authority with murder with use of
illegally possessed firearm (Crim. Case No. 1274) and
(3) murder of Atty. Norberto Maramba with the use of
illegally possessed firearm, (Crim. Case No.
1273).  The trial court ordered the consolidation of the three (3)
criminal cases since they arose from the same incident.  The
Provincial Fiscal recommended no bail for the accused in the three
aforementioned cases.  Accused filed an omnibus motion praying
among other things that he be allowed bail contending that the evidence of his
guilt is not strong, but said motion was denied by the trial
court.  Upon denial of his Motion for Reconsideration, accused
filed with the IAC a petition for certiorari questioning the decision of
the trial court on his motion for bail.  After considering the
records of the criminal cases which were transmitted to it from the trial court,
the IAC promulgated a decision granting petitioner bail and
nullifying the Orders of the trial court dated February 23, 1983 and May 13, 1983 and fixing the amount of bail at Eighty
Thousand Pesos (P80,000.00).  After denial of petitioner’s motion
for reconsideration, the present petition was filed.

The facts as found by the trial court, which facts were adopted by
respondent IAC,^[1] are as follows:

“At the recently concluded barangay
elections for barangay Saranay, Cabatuan, Isabela, two candidates ran for the position of Barangay Captain thereat, namely accused Angelito Alivia and one Antonio
Bogauisan.  Herein accused lost in that
election, but he filed with the Municipal Circuit Court of Cabatuan, an election protest.  Antonio Bagauisan was duly proclaimed and he assumed office
accordingly.  The late former Municipal Judge of Cabatuan, Atty. Norberto Maramba
(Criminal Case No. 1273) was counsel for the protestee.  (tsn.,
pp. 27-28, November 16,
1982).

“The hearing of the election protest was set in the morning of
June 4, 1982, but was
postponed.  After which, at about 10:00 o’clock that same morning,
the late Atty. Maramba invited witness Virgilio Yanuaria, the late Police
Lt. Cesar Rumbaoa (Criminal Case No. 1272), Antonio
Bagauisan and others to play bowling/billiards at the
Cabatuan Recreation Center.  They played
up to 2:00 o’clock in the afternoon of
the same day with the bet that the loser will pay the beer they will
order.  (tsn., pp. 28-29,
ibid).

“Later, the late Atty. Maramba, Police Lt.
Rumbaoa and witness Virgilio
Yanuaria (Antonio Bagauisan
did not join them) proceeded to the Azarcon Restaurant
at the public market, Cabatuan, Isabela, for lunch.  They occupied round table
No. 2 (see sketch).  The late Police Lt. Rumbaoa was seated on chair No. A, facing west, the late
Atty. Maramba, on chair No. B, facing south and
witness Virgilio Yanuaria in chair No. C, facing east.  They
ordered lunch and three (3) bottles of beer, but Atty. Maramba did not drink, because he joined the group of
accused Angelito Alivia.
(tsn., pp. 20, 29-34, ibid)

“It appears that the group of the accused Angelito Alivia arrived at the
Azarcon Restaurant much earlier, and the members of
the group are (1) Angelito Alivia, accused herein; (2) Municipal Judge Estanislao Cudal; (3) Feliciano
Gaspar; (4) Pat. Elpidio
Sogun; (5) Pat. Danilo
Rosario; (6) Engr. Charlie Martin; (7-8) a newly
married couple, not identified.  The late Patrolman Elpidio Sagun and witness Pat.
Danilo del Rosario also went to the Azarcon Restaurant to buy pansit
noodles, but were invited by the accused to join them in their group while
drinking beer with chaser (pullutan). 
Accused Angelito Alivia told Pat. del Rosario to drop by his house and get
ammunition for pistol Cal. 38 and Pat. Elpidio Sagun for the armalite
magazine.  (tsn., pp. 88-93, November 17, 1982).

“The relative positions and sitting arrangements of the two groups
as found in the ocular inspection conducted in the morning of November 17, 1982,
at the Azarcon Restaurant, Cabatuan are the following (pp. 130-131,
record, Crim. Case No. 1272)

“The group of accused Angelito Alivia was the first to arrive at the Azarcon Restaurant, and this group joined two small square
tables, identified as square tables Nos. 5 and 6, to form a
rectangle.

There are eight (8) of them, namely: (1) accused Angelito Alivia, who seated
himself on a stool marked (AA) north of square table No. 5; (2) Pat. Danilo Rosario, was seated on a stool marked (DR) left of
accused Alivia, who was facing south, square table No.
5; (3) a man, unknown, occupied a stool marked (UK); (4) further left, by
Feliciano Gaspar, occupied a stool marked (FG);
(5) exactly opposite the accused, was seated Municipal Judge Estanislao Cudal, marked (EC) on
square table No. 6; (6) on his left, was seated the late Pat. Elpidio Sagun, on a stool marked
(ES) in square table No. 6; (7) left of Elpidio Sagun, was seated, Engr. Charlie
Martin, marked (CM) on table No. 6; and (8) on his left, was the woman, unknown,
on square table No. 5, (tsn., pp. 24-29, November 17, 1982).

“The three member group of the late Atty. Maramba, who arrived later, occupied round table NO. 2,
namely: (1) the late Police Lt. Cesar Rumbaoa, facing
west, occupied chair A; (2) the late Atty. Maramba,
facing south, occupied chair B; and (3) witness Virgilio Yanuaria, facing east,
occupied chair C. (tsn., pp. 22-23, November 17,
1982).

“The distance from chair B, occupied by the late Atty. Maramba, in round table No. 2, to the tip of square table
No. 6, where Judge Cudal was seated is 90 centimeters,
and the distance from the seat of accused Angelito
Alivia, north of square table No. 5, to the stool of
Judge Cudal, which was later occupied by the late
Atty. Maramba is around 189 centimeters. (tsn., pp. 19-21, ibid)

“Upon arrival at the Azarcon restaurant,
the late Atty. Maramba, engaged Municipal Judge Estanislao Cudal in a conversation
on topics, among which was about the barangay
election.  Thereafter, Judge Cudal and
Feliciano Gaspar left and proceeded to the municipal
building.  When Judge Cudal and Gaspar left, the late Atty. Maramba seated himself on the stool formerly occupied by
Judge Cudal and engaged the accused Angelito Alivia who was seated
opposite north of square table No. 5, at a distance of 189 centimeters facing
each other, in a conversation on matters the witness can not remember. 
(tsn., pp. 30-31, November 17, 1982; tsn., pp. 94-97, November 17, 1982).

“Meanwhile, Pat. del Rosario noticed
accused Angelito Alivia go out from the Azarcon
Restaurant thru the main door (No. 1) towards the west of the restaurant, where
his car was parked three (3) meters from the main door, east (west) side of the
restaurant.  (tsn., pp. 98-100, November 17, 1982).

“Later, Angelito Alivia returned to his former place.  In a
little while, Patrolman Danilo del Rosario stood up
and went to the municipal building, while the late Patrolman Elpidio Sagun remained inside the
restaurant.  (tsn., pp. 103-104,
November 17,
1982)

“The lunch ordered by the group of the late Atty. Maramba being ready, the late Police Lt. Cesar Rumbaoa called for Atty. Maramba
to join them and eat (‘kakain na tayo“).  Hence, the late Atty. Maramba stood up from where he was then seated with the
group of accused Angelito Alivia.  However, he was not able to reach
round table No. 2 to eat, because he was suddenly shot on the chest (Dr. Angobung) by accused Angelito
Alivia using a firearm identified as Llama Automatic
Pistol Super 38, SN-532937 (Exh. “K”) causing him to
fall to the cemented floor.  (tsn., pp.
32-34, November 17,
1982)

“While in that lying position, again he was shot on the neck. 
Both gunshot wounds caused his instantaneous death.  Before
the second gun report when Virgilio Yanuaria was about to run, the late Patrolman Elpidio Sagun who was on his left
pushed Virgilio Yanuaria to
save him, using his right hand pressing the left shoulder of Yanuaria.  AFter
which, Yanuaria walked crouching passing thru the
inside door (No. 3) and went out thru door No. 2, and proceeded to the municipal
building to report the incident, after hearing successive gun reports, the
number he cannot remember. (tsn., pp. 20-22, 34-35,
November 17,
1982)

“Witness Virgilio Yanuaria reported the incident to Cpl. Jose Pascual in the presence of Pat. Danilo del Rosario saying “Lito
Alivia shot Atty. Maramba“.
Immediately, four policemen, namely, Pat. Danilo del
Rosario, Pat. Jose Pascual, Pat. Jose Angangan and another one, went to the crime scene. 
They were later followed by Pat. Celestino
Apaya and Pat. Ricardo Pedro.  Thereat,
they saw the body of the late Police Lt. Rumbaoa
(dead already) at the main door (door No. 1) lying face upward, and inside they
saw the body of the late Atty. Maramba (dead already)
face downward and that of the late Pat. Sagun (still
breathing) face upward (tsn., pp. 45-49),
November 17,
1982)

“Meanwhile, Dr. Benedicto Acosta, the
incumbent Municipal Mayor of Cabatuan, arrived from
Ilagan, at about 3:10, afternoon of June 4, 1982.  In front of his business
residence at Centro, Cabatuan, he was informed by
Dr. Rolando Dacuycuy, a brother-in-law of
the accused, about the shooting incident.  Because he was then
riding on his car, he invited him to see the incident, but Dr. Dacuycuy did not get inside the restaurant, while Mayor
Acosta went inside to investigate the matter, in his capacity as Chief Executive
of the town.  (tsn., pp. 237-238,
September 21,
1982)

“Inside the restaurant, he saw the owner of the restaurant
Mrs. Azarcon, two maids and two dead bodies,
identified as those of the late Atty. Maramba
and Police Lt. Rumbaoa.  He did not see
the body of the late Pat. Elpidio Sagun because he was informed that he was then still alive
and was rushed to the emergency hospital in Cauayan
but died at the junction at Luna, Isabela. 
In his ocular inspection of the crime scene, he picked up five (5) empty
shells (Exhs. “K-2”, “K-3”, “K-4” “K-5” and “K-6”),
the four inside the restaurant, while the other one was recovered outside just
in front of the main door.  He likewise recovered inside the
restaurant one (1) deformed lead/slug (Exh. “K-8”) and
two (2) lead cores (Exhs. “K-9” and “K-10”). 
He asked the owner Mrs. Delia Azarcon who shot
and killed the late Atty. Maramba and Police Lt. Cesar
Rumbaoa and she said it was Angelito Alivia who shot
them.  Being a doctor himself, he examined the two bodies and found
that the late Atty. Maramba suffered two gunshot
wounds, one at the left occipital region on the head and one at the interior
surface of the scapula (chest) with a bore at his T-shirt.  In the
case of the late Police Lt. Cesar Rumbaoa, he suffered
a gunshot wound at the left maxilla surrounded by blackening discolorations and
another wound at the left lateral surface, both of the neck and also a gunshot
wound at the right lateral root of the neck.  (tsn., pp. 238-250,
ibid)

“When Pat. Pedro Constancio arrived, Mayor
Acosta directed him to call for a photographer and also Dr. Juan
Rigor, Jr., the Rural Health Officer of Cabatuan.  Photographer de la Cruz
took the pictures and Dr. Rigor examined the cadavers of the two bodies. 
The pictures taken were developed and Mayor Acosta identified the
pictures of the late Police Lt. Cesar Rumbaoa, as
Exhs. “P”, “P-1”, “P-2”, and “P-3”, appearing on Pages
35-36-A, record, in Criminal Case No. 1272.  Similarly, pictures
were taken of the dead body of the late Atty. Maramba,
duly identified by Mayor Acosta (Exh. “Q”, p. 22,
record, Crim. Case No. 1273).  Later
Mayor Acosta called for Pat. Miguel Orodio, INP,
Investigator, Cabatuan, Isabela.  He also found inside the restaurant
one, revolver, inside a tuck in holster.  He likewise noticed three
(3) bullet marks, one beside the fallen body of Atty. Maramba, another just beneath the head of Police Lt. Rumbaoa and the other at the left side wall of the
restaurant.  (tsn., pp. 250-274,
ibid)

“The empty shells and slugs were given to Cpl. Jose Pascual and the latter submitted them to the Police
Investigator.  These empty shells, cartridge and deformed slugs,
together with the Llama automatic pistol Cal. 38 with magazine were
later submitted to the NBI, Manila, for ballistic examination, which were
examined by Feliciano S. Lunasco, NBI, Supervising
Ballistician, and testified in Court that the empty shells, deformed slugs,
cartridge and lead cores were fired from the same firearm (Exh. “K”).  (tsn.,
pp. 285-288, September 21,
1982; tsn., pp. 203-210, December 15, 1982)

“Dr. Ruben Angobung, NBI, Medico Legal
Officer, testified that he conducted the autopsy examination on the cadaver of
the deceased Atty. Norberto Maramba, Police Lt. Cesar
Rumbaoa and Pat. Elpidio
Sagun upon request of their
relatives.  The cause of death of each of the three (3) victims was
hemorrhage due to gun shot wounds.  It was possible that deceased
Atty. Maramba and Police Lt. Cesar Rumbaoa were likewise shot when they have
already fallen on the cemented floor as evidenced by the gunshot wounds on their
heads.  He found marks on the head of Police Lt. Rumbaoa which shows that the assailant was shot at close
range and the muzzle of the gun used was at a distance of not more than 24
inches from the head.  From the trajectory of the gunshot wounds on
the head of the deceased Atty. Maramba and Police Lt.
Cesar Rumbaoa, it was possible that the assailant was
then at the back of said victims (Testimony of Dr. Angobung). (tsn., pp. 86-148,
December 1,
1982)

“Immediately after the shooting, the accused Angelito Alivia, accompanied by
his uncle and counsel de parte, Atty. Artemio
Alivia, voluntarily surrendered to the Provincial
Commander, Col. Oscar. M. Florendo, at the PC
Headquarters, Calamagui, Ilagan, Isabela.  The
accused verbally admitted to Col. Florendo that he
shot to death the late Atty. Maramba, Police Lt. Cesar
Rumbaoa and Pat. Elpidio
Sagun, at the Azarcon
Restaurant, located at the public marker, Cabatuan,
Isabela.  In the process, the accused
surrendered the firearm, Llama automatic Pistol SN532937 (Exh. “K”) which he used in the killing of the three (3)
victims.  (tsn., pp. 158-167, December 15, 1982)

“In addition to this, the accused executed an extra-judicial
confession (Exhs. “J”, “J-1” and “J-2”), taken by
M/SGT Severino Goday, Jr.,
PC, in that same afternoon of June 4,
1982, at PC, Headquarters in the presence of his lawyer uncle. 
He freely and voluntarily admitted having shot to death Atty. Norberto
Maramba at Centro, Cabatuan,
Isabela, Police Lt. Cesar Rumbaoa and Pat. Elpidio Sagun, both of INP, Cabatuan, at
around 2:00 o’clock P.M. of June 4, 1982, inside the Azarcon Restaurant, located inside the public market of
Cabatuan, Isabela with the
use of Llama automatic pistol Ca. 38, SN-532937 (Exh.
“K”).  (Testimonies of Col. Oscar M. Florendo and M/Sgt. Severino Goday, Jr., PC). (tsn., pp.
218-225, September 21,
1982)

“C. FACTUAL
ANALYSIS

“Counsel for the defense admits that the offenses with which the
accused was charged are capital offenses, which carry the supreme penalty of
death.

“Eyewitness Virgilio Yanuaria testified that the accused Angelito Alivia suddenly shot the
late Atty. Norberto Maramba, when the latter stood up
to eat lunch upon call by the late Police Lt. Cesar Rumbaoa.  The first gun shot wound was fatal
and the victim Atty. Maramba fell to the cemented
floor.  There is evidence that the accused again shot the victim
while lying down.

“Meanwhile, the late Pat. Elpidio Sagun, who was on his left side, pushed Virgilio Yanuaria on the shoulders
to save him and the latter escaped crouching towards the inside door (door No.
3) and exited thru door No. 2, southern portion of the restaurant. 
He heard several gun reports thereafter, while he proceeded to the
municipal building to report the incident to Cpl. Jose Pascual in the presence of Pat. Danilo del Rosario, both INP of Cabatuan, Isabela, and based on
this report, police investigators repaired to the scene of the crime immediately
thereafter.

“There is no eyewitness presented on the shooting of the other two
victims, namely: the late Police Lt. Cesar Rumbaoa and
the late Pat. Elpidio Sagun.  However, there is evidence that said
two victims were likewise shot by the accused Angelito
Alivia.  The cadavers were examined and
the autopsy reports reveal that the cause of death of said two victims was
hemorrhage due to gun shot wounds.  The five (5) empty shells
(Exhs. “K-2”, “K-3”, “K-4”, “K-5”, and “K-6”) and the
two lead cores (Exhs. “K-9” and “K-10”), all recovered
at the crime scene (Azarcon restaurant), were
subjected to ballistic examination at the NBI,
Manila.  Witness
Feliciano Lunasco, NBI, Supervising Ballistician,
Manila, testified that the empty
shells, deformed slugs, cartridge and lead cores were fired from the same gun,
Llama automatic pistol, Cal. 38 (Exh. “K”).

“Mrs. Delia Azarcon, the owner of the
restaurant, when interviewed by Mayor Benedict Acosta who arrived at the
restaurant upon being informed of the incident that same afternoon not long
after the shooting, told the Mayor, that it was the accused Angelito Alivia who shot the three
(3) victims, whose bodies lay prostrate on the cemented floor. 
There were three (3) bullet marks on the cemented floor, one beside the
fallen body of the late Atty. Maramba, another just
beneath the head of the late Police Lt. Rumbaoa, and
the other at the left side wall of the restaurant.  Pictures were
taken of the cadavers of the late Atty. Maramba (Exh. “Q”) and that of the late Police Lt. Rumbaoa (Exhs. “P”, “P-1”, “P-2”
and “P-3”, p. 2, and pp. 36-36-A, respectively, record, Crim. Case No. 1272).

“To top it all, accused Angelito Alivia, duly assisted by his lawyer-uncle, immediately after
the incident, left for Ilagan and voluntarily
surrendered to Col. Oscar M. Florendo, Provincial
Commander, PC, Ilagan.  In the process,
accused surrendered the firearm used, Llama automatic pistol, Cal. 38
(Exh. “K”), and orally admitted to Col. Florendo advised the accused in the presence of his lawyer
to have his oral confession reduced in writing, which the accused and counsel
agreed.  M/Sgt. Severino Goday, Jr., PC Investigator, was tasked to get the statement
of the accused, who, when called to testify in Court told the story that the
extra-judicial confession (Exh. “J”, p. 7, record,
Crim. Case No. 1272) was freely and voluntarily given
by the accused duly assisted by his counsel.

“There are present, two (2) mitigating circumstances which may be
credited in favor of the accused, namely:  (1) voluntary surrender
and (2) drunkenness probably not habitual, but at this stage of the proceedings
as they relate to the legal incident in question, such circumstances may
not sway to mitigate the question on bail in favor of the accused. 
Persuasively, said two mitigating circumstances may have great weight
after trial on the merits.” (pp. 10-20, Rollo)

Notwithstanding said findings of facts, the IAC ruled that accused
is entitled to bail in the amount of P80,000.00 thus nullifying the Orders of
the trial court, dated January 23,
1983 and May 15,
1983.  Hence, this petition with the following assigned
alleged errors:

“I. Respondent Intermediate Appellate Court gravely erred in holding
that the evidence of guilt of accused is not strong, contrary to the findings of
the trial court.

II. Respondent Intermediate Appellate Court gravely erred in
holding that Lt. Cesar Rumbaoa and Pat. Elpidio Sagun were not in the
official performance of their duties as peace officers at the time of the
incident; and

III. Respondent Intermediate Appellate Court gravely erred in
relying on the resolution in the case of “Montano vs. Ocampo” which is
not controlling.

(p. 21, rollo)

The contentions of petitioner are well-taken.  The
crimes charged are clearly capital offenses as the phrase is defined in Sec. 5
Rule 114 of the Rules of Court.  An offense is capital, if it may
be punished by death under both the law prevailing at the time of its commission
and that prevailing at the time of the application for bail, even if after
conviction a penalty less than death is imposed.  In its assailed
decision, respondent IAC concurred with the trial court that the charges against
accused are capital offenses and that the evidence of guilt of the accused is
strong.  However, the respondent Court ruled that while the
evidence clearly established that the petitioner^[2] “was responsible for the shooting of Atty.
Maramba, Lt. Rumbaoa and
Patrolman Sagun and he so admitted responsibility for
their death in his confession” the crime is ostensibly that of homicide merely,
not murder.

The criterion to determine whether the offense charged is capital
is the penalty provided by the law regardless of the attendant
circumstances.  As pointed out by the petitioner in its memorandum,
the rationale of the provision lies in the difficulty and impracticability of
determining the nature of the offense on the basis of the penalty
actually imposable.  Otherwise, the test will require consideration
not only of evidence showing commission of the crime but also evidence of the
aggravating and mitigating circumstances.  Thus, there has to be
not only a complete trial, but the trial court must also already render a
decision in the case.  This defeats the purpose of bail, which is
to entitle the accused to provisional liberty pending trial.”^[3]

The posture taken by the respondent Court in granting bail to the
accused and in disregarding the findings by the trial court of the guilt of the
accused (respondent herein) is a clear deviation from Our ruling laid down in
the case of Bolanos vs. dela
Cruz, to wit:

“Under the Constitution, all persons shall, before conviction, be
bailable by sufficient sureties, except those charged
with capital offenses when evidence of guilt is strong.  It is
the trial court which is tasked to determine whether or not the evidence of
guilt is strong and it has determined the affirmative in this case after
consideration of the evidence already presented by the prosecution.  In the
absence of manifest abuse of discretion, We are not prepared to substitute our
judgment for that of the trial court.” Bolanos
vs. Dela Cruz, supra) (Underscoring supplied for
emphasis) (p. 164, rollo)

Anent the issue of whether or not the deceased Lt. Rumbaoa and Pat. Sagun were killed
while in the performance of their duties, the evidence shows that while both
were admittedly in civilian clothes during the incident in question they were in
the performance of their duties as police officers when fired upon and killed by
the bullets of the accused.  As peace officers, their initial
reaction to the shooting was to assert their authority in protecting and
covering civilians from the indiscriminate firing by the accused. 
Accused instead suddenly and without warning, successively shot Lt. Rumbaoa and Pat. Sagun to death
knowing fully well that they were peace officers.  Although both
were armed with their service guns, they were unable to offer resistance and put
up a defense due to the suddenness and close succession of the shots. 
This is indicated by the fact that a revolver still tucked in its holster
was found at the crime scene beside the bodies of the victims showing that one
of the victims was unable to pull out his gun.

The commission of the crimes charged was attended by treachery as
established by the testimony of the eyewitness Virgilio Yanuaria to the shooting
of Atty. Maramba and by strong evidence as to the
treacherous shooting of the two peace officers.  Virgilio Yanuaria testified that
accused suddenly and without warning shot the deceased Atty. Norberto Maramba when the latter turned his back towards the accused
and returned to his table to eat.  Atty. Maramba was fatally hit on the back of his head and fell to
the cement floor.  Atty. Maramba did not
sense any danger that he would be shot by the accused considering that he and
the accused knew each other personally and that, as respondent admitted,
there was no previous grudge or misunderstanding between him (accused) and Atty.
Maramba.  Successive shots hit the two
peace officers who were caught by surprise as a result of which they
died.  The deceased had no inkling that the accused was armed and
that he would be carried by passion to resort to violence considering his
prominent stature in the locality.  On these issues the trial court
ruled:

“There is treachery although the shooting was frontal, when the
attack was so sudden and unexpected that the victim was not in a
position to offer an effective defense (People vs. Cuadra, L-27973,
October 23, 1978), and when there was a deliberate surprise attack upon an
unarmed victim, the killing is murder qualified by treachery (People vs.
Alegria, L-40792, August 18, 1978), and furthermore, sudden, unexpected,
without warning, and without giving the victim the opportunity to defend himself
or repel the initial attack, the qualifying circumstance of treachery is evident
and the crime committed is murder (People vs. Candado, L-34089, -90,
August 9, 1979; People vs. Pay-an, L-39089-90, July 31,
1978).”

(p. 171, rollo)

WHEREFORE, judgment is hereby rendered giving due course to
the petition; the assailed decision of respondent IAC is hereby SET ASIDE and
the orders of the lower court court denying the
petition for bail are hereby REINSTATED.  If the accused is out on
bail, his bail bond is hereby cancelled and he is ordered committed to
prison.  This decision is immediately executory.

SO ORDERED.

Feria, (Chairman), Fernan, Alampay, and Gutierrez, Jr., JJ., concur.

^[2] Accused Angelito Alivia

^[3] Petitioner’s Memorandum, p. 162
& 163, Rollo.