PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. (EMBAS) JOSE TIU, SANTOS AROCHA, RODOLFO LEAL – DECEASED, LUIS (LICAROS) DENOLAN, ACCUSED-APPELLANTS.

As the carabao lowed in protest at the tugging rope, the killers
struck. One of the victims dropped dead
with a bullet in his spine while the other crawled to hide with his bloodied
leg. The darkness soon engulfed the
killers as they fled. But not before
their faces were seen by the witnesses to the gory deed, by the light of the
lamp and the moon and the stars.

On July 27, 1981, two informations for murder and frustrated
murder were filed against Jose (Embas) Tiu, Santos Arocha, Rodolfo Leal and
Luis Licaros Denolan, for the killing of Warlito Jumangpang and the wounding of
his father, Otillo Jumangpang. The
cases were docketed as Criminal Cases Nos. 2682 and 2675, respectively, in the
Court of First Instance of Zamboanga del Norte, and by agreement of the parties
jointly tried on the merits.

At their arraignment, all the accused pleaded “not
guilty.” On November 20, 1984, the trial court dismissed the case against
Rodolfo Leal, who had died on July 9, 1984. On December 18, 1985, Judge Celso L. Conol rendered a joint decision,^[1]
the dispositive portion of which read as follows:

WHEREFORE, finding accused Jose Tiu, Santos Arocha, Rodolfo Leal
and Luis Denolan, guilty beyond reasonable doubt of the crime of Murder in
Criminal Case No. 2682, qualified by treachery and there being no other
aggravating or mitigating circumstance present in the commission thereof, the
Court hereby sentences the said accused to suffer the penalty of reclusion
perpetua, with the accessories of the law, to indemnify the heirs of
accused Warlito Jumangpang in the amount of P30,000.00, plus P10,000.00 as
moral and exemplary damages without subsidiary imprisonment in case of
insolvency and to pay the costs.

In Criminal Case No. 2675, accused Jose Tiu, Santos Arocha, Rodolfo
Leal and Luis Denolan are, likewise, found guilty beyond reasonable doubt of
the crime of Frustrated Murder, qualified by treachery, and there being no
attendant aggravating or mitigating circumstance present in the commission
thereof and applying the Indeterminate Sentence Law, are hereby sentenced to
suffer an indeterminate penalty of imprisonment from SIX (6) YEARS and ONE (1)
DAY of Prision Mayor, as minimum, to TWELVE (12) YEARS, FIVE (5) MONTHS
and ELEVEN (11) DAYS of Reclusion Temporal, as maximum, to indemnify the
offended party, Otillo Jumangpang, in the amount of P5,000.00 for actual
damages, plus P10,000.00 for moral and exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs.

SO ORDERED.

Negligently, the decision also convicted the deceased Rodolfo
Leal.

Tiu, Arocha and Denolan all appealed. Tiu died on May 16, 1988, resulting in the dismissal of the case
against him on November 28, 1988.

The prosecution presented three eyewitnesses, viz., Otillo
Jumangpang, his wife Vivencia, and their daughter Lourdes. They testified that on April 30, 1981, at
about 2:00 a.m., Otillo, who was sleeping with his wife Vivencia and their
seven children, was awakened by a noise outside their house in Sitio Pigan,
Barangay Disakan of the Municipality of Manukan, Zamboanga del Norte. With a flashlight, he saw that it was a
carabao that was causing the noise. He
told Warlito to tie the animal. Warlito
had difficulty in doing so and asked his father to help him. Otillo went down. While he and Warlito were pulling the carabao, shots were fired
from the direction of the road. Otillo
was hit on the right ankle joint and fell down. He crawled towards the back of the house near the kitchen. While lying flat on the ground, he saw Embas
Tiu, Santos Arocha, Rodolfo Leal, and Luis Licaros coming from the road.^[2]

When the four men reached the front ladder of their house, they
trained a flashlight on the body
of Warlito, who was sprawled motionless on the ground.^[3]

Santos Arocha and Rodolfo Leal proceeded to the back of the house
and went upstairs. Otillo heard them ask his wife where
he was. Silently, he crawled toward the
bushes about 20 meters from their house. Santos and Rodolfo ordered Vivencia and the children to go down, past
Embas Tiu and Luis Licaros who were standing near the rear ladder, carrying
long firearms. Embas fired a warning
shot and ordered them to lie flat on the ground. He asked them where Otillo was but everyone kept silent. They remained lying on the ground until 6:00
a.m. when they sensed that the men had left.^[4]

Vivencia now called for Otillo who had lain hidden all the
while. Seeing him wounded, she immediately
took him to the hospital, together with Warlito, with the aid of
neighbors. Warlito was already beyond
help. The autopsy of his body revealed
the cause of his death as “severed spinal cord secondary to fractured
vertebral column secondary to gun shot wound.”^[5]

The defense presented three of the surviving accused who all
pleaded alibi. They all testified that
on the night of April 29, 1981, they were in the camp at Datagan, Disakan,
Manukan, Zamboanga del Norte, together with several other persons (who were not
presented in court).^[6] Their
testimonies were corroborated by their friend, Baro Magawa.^[7]

Emiliano de los Reyes, who was the detachment commander-in-charge
of the Civil Home Defense Force, testified that on April 30, 1981, up to the
time he left, he received no report of abuses committed by the herein
accused. He learned for the first time
later that year that the accused had been charged with murder and frustrated
murder. He conducted an investigation
but found that there was no evidence to support the charges. He admitted, however, that the investigation
was limited to interrogation of the accused. The family of the victim was not questioned. He also failed to present a copy of the investigation report,
claiming it had been misplaced.^[8]

Jose Andata, another defense witness, testified that while a
member of the NPA, he attended a meeting held on April 30, 1981, in the house
of a certain Ogis, where it was decided to liquidate Otillo for having cut down
a narra tree in Commander Porsin’s land without permission. That same afternoon, Jose, together with the
groups of Commanders Porsin and Tirong, started for Otillo’s place, which was
about 7 hours walk from the house of Ogis. About 100 meters before they reached Otillo’s house, Jose and the group
of Tirong stopped and were ordered by Porsin to stand guard. Porsin’s group then proceeded to Otillo’s
house and and after a
few minutes Jose heard many gunshots. Porsin later reported to Tirong that Otillo was able to escape.^[9]

The attack which Jose claimed to have been made by the rebel
group was, if it really happened, one day late. Jose said the rebels reached Otillo’s place in the early morning
of May 1, 1981, by which time, Warlito was already dead and Otillo severely
wounded. They had been attacked hours
before in the morning of April 30, 1981.

The four accused were no strangers to the three eyewitnesses, who
knew them as CHDF members who used to pass by their house and ask for water.^[10]

Lourdes and Vivencia identified Arocha and Leal as the persons
who came up their house, which was lighted by a lamp or “tingkarol”
on top of the sewing machine that night of April 29, 1981. The moon and the stars were also shining
bright then.

Otillo recognized the four accused by the light from their
flashlights and also of the moon and the stars.

The denials of the accused-appellants, corroborated only by their
friend Magawa, cannot overthrow the positive and categorical testimony of the
prosecution eyewitnesses, who have not been shown to have any malicious motive
in testifying against them. Mere denial
cannot prevail against the unequivocal declaration of credible witnesses
testifying on affirmative matters as in the case at bar.

Alibi is also a weak
defense and cannot stand against the positive identification of the accused?appellants. Moreover, they have not shown that it was
impossible for them to have been present at Otillo’s place when the shooting occurred, in view of the
distance between that place and the place where they claimed to be that
morning.

Explaining her delay in reporting the crime, Lourdes said that
her grandfather went to the police of Manukan but was referred to the NBI. It is true that thirteen days elapsed from
the time of the incident before they revealed the identities of the accused-appellants
to the NBI. But that was because their
statements were not immediately taken and they were asked to come back later.

The accused were known members of the notorious Civil Home
Defense Force (which has since been disbanded for its record of violence). This was the reason for the natural
reluctance of ordinary individuals to participate in litigations involving that
organization. The failure of the prosecution witnesses to immediately report
the malefactors to the police officers who investigated the shooting is not
difficult to understand. Otillo and his
family feared for their lives as the killers of Warlito were still at large and
armed with the rifles they had used that morning.

There was conspiracy among the accused-appellants because they
were moved by the same desire when they went to Otillo’s house and shot him and
his son Warlito. It is plain that they
acted in concert when they executed the crimes they had agreed to commit.

We find that the trial court did not err in convicting Tiu, Arocha
and Denolan.

The conviction of Rodolfo Leal, who died on July 9, 1984, before
the promulgation of the decision on December 18, 1985, must be set aside as
null and void ab initio.

The criminal liability of Jose Tiu was extinguished by his death
on May 16, 1988, while his appeal was pending. However, his civil liability survived him and can be recovered against
his estate.

Treachery qualified the killing of Warlito Jumangpang to murder,
which was correctly punished with reclusion perpetua and all the accessory
penalties.

But the shooting of Otillo, also attended by treachery, was only
attempted murder because, although the intent to kill him was clearly
established, he was shot only in the ankle. The doctrinal rule is that where the wound inflicted on the victim is
not sufficient to cause his death, the accused not having performed all the
acts of execution that would have brought it about, the crime is only attempted
murder.^[11]

Under Article 248 and Article 51 of the Revised Penal Code, the
penalty for attempted murder is prision correccional in it
maximum period to prision mayor in its medium period. The medium period of this penalty should be the maximum under the
Indeterminate Sentence Law, there being no aggravating or mitigating
circumstance. One degree lower of the
penalty for attempted murder is arresto mayor maximum to prision
correccional medium. Thus, for
attempted murder, the accused Santos Arocha and Luis Denolan are sentenced to
suffer the indeterminate penalty of 4 months and 1 day of arresto mayor
as minimum to 8 years of prision mayor as maximum.

The P30,000.00 indemnification for the heirs of Warlito
Jumangpang should be increased to P50,000.00,
consistent with the current policy of this Court.

The motive of the killing has not been shown, but that is not
necessary in view of the clear identification of the killers. Still, one wonders what may have moved them
to the gory deed that felled the father and killed his son as they tugged at
the lowing beast in the light of the moon and the stars.

WHEREFORE, the appealed decision is AFFIRMED as above
modified, with costs against the accused-appellants. It is so ordered.

Padilla, Griño-Aquino, and
Bellosillo, JJ., concur.

^[1]
Rollo, pp. 12-21.

^[2]
TSN, April 30, 1982; March 17, 1983; April 21, 1983.

^[3]
TSN, April 30, 1982, p. 4.

^[4]
TSN, April 21, 1983, p. 11; Records of Criminal Case No. 2682, pp. 4-5.

^[5]
Records of Criminal Case No. 2682, p. 3.

^[6]
TSN, June 20, 1984; July 19, 1984; July 23, 1985.

^[7]
TSN, December 6, 1983, p. 29.

^[8]
Ibid., p. 25.

^[9]
TSN, November 20, 1984, pp. 6-7, 10.

^[10]
TSN, April 21, 1983, p. 5.

^[11]
People v. Trinidad, 169 SCRA 51; citing People v. Garcia, 96 SCRA
497 and People v. Pilones, 84 SCRA 167.