PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LUCILO BERNARDO Y MENDOZA AND ANTONIO FABOR Y BUCOY, ACCUSED-APPELLANTS.

This is an appeal from the judgment of the Regional Trial Court,
Branch 13, Zamboanga City, convicting Lucilo Bernardo and Antonio Fabor in
Criminal Case No. 2581 of murder and in Criminal Case No. 2582 of frustrated
murder.

The Information filed in Criminal Case No. 2581(9739)
reads as follows:

“That on or about February 18, 1990, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a Batangas knife, conspiring and confederating
together, mutually aiding and assisting with one another, by means of treachery
and with intent to kill, did then and there wilfully, unlawfully and
feloniously, assault, attack and stab with the use of said weapon that they
were then armed with, at the person of ARMANDO A. MARCOS, thereby inflicting
mortal stabbed wounds upon the latter’s person which directly caused his death
to the damage and prejudice of the heirs of said victim.”

“CONTRARY TO LAW.”

The information in Criminal Case No. 2582(9740)
reads as follows:

“That on or about February 18, 1990, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a Batangas knife, conspiring and confederating
together, mutually aiding and assisting with one another, with treachery and
with intent to kill, did then and there, wilfully, unlawfully and feloniously,
assault, attack and stab with the use of the said weapon that they were armed
with, the person of ARTEMIO FERNANDO y ILACIO, thereby inflicting upon the
latter’s person serious stab wound which ordinarily would cause his death,
thus, performing all the acts of execution which would have produced the crime
of MURDER, as a consequence, but which nevertheless did not produce it by
reason of some cause or causes independent of the will of the above-named
accused, that is, said Artemio Fernando y Ilacio was able to run away from the
scene of the incident, and by the timely and proper medical attention rendered
to him which prevented his death, to the latter’s damage and prejudice.”

“CONTRARY TO LAW.” (Rollo, p. 15-16)

Both the accused pleaded “not guilty” to the offenses
charged in the two informations. After
a joint trial, the trial court rendered judgment, with the following decretal
portions:

“WHEREFORE, in view of all the foregoing, the Court finds both
the accused LUCILO BERNARDO y MENDOZA and ANTONIO FABOR y BUCOY guilty beyond
reasonable doubt as principals of the crimes in both Informations for MURDER
and FRUSTRATED MURDER and hereby sentences each of
them to suffer the following penalties:

“1).    For the
Crime of Murder in Crim. Case
No. 2581(9739)

Reclusion Perpetua or Life Imprisonment and to indemnify in
proportionate amount the heirs of the deceased-victim ARMANDO MARCOS in the sum
of P30,000.00.

2).    For the Crime of FRUSTRATED MURDER in Crim. Case No. 2582(9740)

The indeterminate penalty of EIGHT (8) YEARS and TWENTY (20) DAYS
of PRISION MAYOR as the minimum to FOURTEEN (14) YEARS, TEN (10) MONTHS and
TWENTY (20) DAYS of RECLUSION TEMPORAL as the maximum

and to pay the costs in both cases.”
(Decision, pp. 7-8; Rollo, pp. 21-22)

We accept as correct the operative facts as found by the trial
court and as stated by the appellee in his brief. These facts are:

“A barrio dance was held in the evening of February 17, 1990
at Barangay Cabaluay, Zamboanga City. Among those present were private complainant Artemio Fernando and his
cousin Armando Marcos. The appellants
Lucilo Bernardo and Antonio Fabor were also present in the said dance. Around midnight, Artemio Fernando and
Armando Marcos left the dance and proceeded to go home. After walking for about 100 meters from the
dance place, they were taken aback
as they were waylaid by Lucilo Bernardo and Artemio Fabor whom Fernando easily
recognized. Bernardo and Fabor, for no
reason at all, hurled sharp stones at them and Fernando was instantly hit at
his lower back portion. Noticing that
Fabor was armed with a bladed weapon, Fernando ran but Fabor chased him and
stabbed him hitting the lower left portion of his nape. When he turned, he saw his cousin Armando
Marcos being held by Bernardo pleading for his life. He ran as fast as he could until he reached a billiard hall where
he sought help. Afterwhich he proceeded
to a doctor for treatment. (TSN, May
16, 1990, pp. 7-16)

PFC Quiterio Cuatrocruz, an investigator stationed in Manicahan
Police Sub-Station was also presented by the prosecution. He testified that immediately after
receiving reports regarding the stabbing incident he proceeded to the scene of
the crime. They found thereat the body
of Armando Marcos with stab wounds on different parts of his body. He then had the body taken for a post-mortem
examination. Thereafter, he proceeded
to the place of Lucilo Bernardo having been earlier tipped that Bernardo was
responsible for the crime. Cuatrocruz
was able to talk to the mother of the accused but she refused to surrender her
son to him. Cuatrocruz therefore sought
the assistance of the Barangay Captain of that place (TSN, May 17, 1990, pp.
3-7).

Barangay Captain Hipolito Solis
for his part testified that he was able to convince Bernardo’s mother to
surrender his son to him. When he spoke
to Bernardo, the latter admitted having stabbed Marcos with a knife. He voluntarily turned over the knife to
Solis. Having named Antonio Fabor as
his companion, Bernardo accompanied Solis to the house of Fabor. Solis spoke to Fabor who at first denied
participation in the crime but when he saw Bernardo, he finally admitted to
Solis that he was indeed with Bernardo during the incident. Solis then asked Fabor to dress up and if
possible for him to use the same t-shirt he had on during the incident. When Fabor returned, he informed the
Barangay Captain that he could not wear the same shirt as it was soaked with
blood. They then proceeded to the
Manicahan Police Sub-Station. (TSN, May
17, 1990, pp. 30-38)

Lastly, the prosecution presented Assistant City Health Officer
Efren Apolinario who conducted the post-martem examination on the body of
Armando Marcos. He testified that
Marcos’ death was caused by internal hemorrhage secondary to multiple stab
wounds. He further stated that the
deceased sustained twelve stab wounds.”
(Appellee’s Brief, pp. 5-8; Rollo, pp. 83-86)

In their appeal, appellants simply reiterated the denials they
made in open court of the charges against them, thus:

“Atty. Castillo:

Q. Mr. Bernardo, you are accused of the crime of murder and attempted
murder, please tell this Honorable Court, Mr. Bernardo did you or did you not
kill Mr. Armando Marcos?

A.    No,
sir.

Atty. Castillo:

Q.   We
have no further question your Honor.

x x x                      x x x                 x x x

Atty. Castillo:

Q. Mr. Fabor, you are accused of the crimes of Murder and Frustrated
Murder, please tell this Honorable Court?

A.    Yes,
sir.

Atty. Castillo:

Q.   Tell
this Honorable Court, did you or did you not stab Mr. Artemio Fernando?

A.    No,
sir.

Atty. Castillo:

Q.   Did
you or did you not kill Armando Marcos?

A.    No,
sir.

Atty. Castillo:

Q.   We
have no further question Your Honor.”

(TSN, May 23, 1990, pp.
10-13)

In their Brief, appellants fault the trial court:

I

“X X X IN FINDING THE EXISTENCE OF
TREACHERY WHICH QUALIFIED THE OFFENSE TO MURDER.

II

X X X IN CONVICTING ANTONIO FABOR FOR
FRUSTRATED MURDER.

III

X X X IN ACCEPTING THE TESTIMONY OF ARTEMIO
FERNANDO AS GOSPEL TRUTH WHEN HIS EARLIER DECLARATION TO THE POLICE
INVESTIGATOR, WHICH IS PART OF THE RES GESTAE MATERIALLY AND SERIOUSLY
CONTRADICT HIS TESTIMONY.

IV

X X X IN FINDING THE EVIDENCE OF THE
PROSECUTION SUFFICIENT TO ESTABLISH BEYOND REASONABLE DOUBT THE GUILT OF BOTH ACCUSED FOR THE
CRIMES CHARGED, AND, IN CONVICTING THEM THEREFOR.

V

X X X IN FINDING THE EXISTENCE OF
CONSPIRACY BETWEEN THE ACCUSED IN THE INSTANT CASE.” (Appellant’s Brief pp.
1-2; Rollo, pp. 35-36)

We shall first discuss the last three assignments of errors,
which all deal with the credibility of the complaining witness, Artemio
Fernando.

To discredit the testimony of Artemio Fernando, the defense
pointed out before the trial court that in his affidavit, Exhibit
“1,” executed before the police, Fernando stated that he saw Armando
Marcos being chased by appellant Bernardo while in open court, he testified
that Marcos was held by said appellant. The defense also contended that Fernando reported to the police
investigator, Quiterio Cuatrocruz that it was appellant Bernardo who killed
Marcos but in his sworn statement, Exhibit 2, he stated that it was appellant
Fabor who was the assailant. (Appellants’ Brief, pp. 12-14; Rollo, pp. 46-48) The trial court dismissed as “not crucial” the alleged
inconsistency between Fernando’s testimony in open court on one hand and his
affidavit, Exhibit 1, and the police report, Exhibit 2, on the other
hand, attributing it to the inaccuracy of the translation of Fernando’s
testimony in the Chavacano dialect to English. (Decision, p. 7; Rollo, 21) Besides, Fernando’s statement in the
affidavit that he saw Marcos being chased by appellant Bernardo and his
statement in open court that he saw Marcos being held by said appellant, can be
reconciled inasmuch as it referred to sequential actions, i. e.
the victim was chased first and after being overtaken, was held by appellant
Bernardo.

The defense also makes capital out of the allegation in the
information that the two accused were “armed with a Batangas knife,”
meaning that there was only one weapon used in the killing. So the defense argues, in an apparent
attempt to get appellant Fabor exculpated, that if appellant Fabor chased
Fernando while Marcos was being held by appellant Bernardo and appellant Fabor
gave up the chase when he was about 40 meters from the place where appellant
Bernardo was holding Marcos, appellant Fabor could not have been the one who
inflicted the fatal wound on Marcos. The defense reasons out that Fernando was able to get the help of
several persons inside the billiard hall, who forthwith chased appellant Fabor,
and that the latter could not have inflicted the 12 wounds sustained by Marcos
while he was running away. (Appellants’
Brief, pp. 16-18; Rollo, pp. 50-52)

There is no need for the prosecution to pinpoint who of the two appellants inflicted the fatal wounds on
Marcos after it was established by evidence that a conspiracy existed between
appellants to inflict the injuries on the victims. Appellants waited for their victims, in a place which the latter
would pass on their way home. Appellants started throwing stones simultaneously after the victims
passed by the place where appellants were waiting. Each of the appellants performed his part to carry out the
criminal enterprise. While appellant
Bernardo held on to Marcos, appellant Fabor chased Fernando. The trial court, after hearing the testimony
of the prosecution witness, found that the appellants acted in concert to achieve
a common purpose.

In their first and second assigned errors, appellants seek to
negate the attendance of alevosia, which the trial court used to
qualify the offenses charged to murder and frustrated murder. (Appellant’s Brief, pp. 3-11; Rollo, pp.
38-45)

Entrenched in our jurisprudence is the rule that the
circumstances which would qualify the killing to murder must be indubitably
proven as the crime itself (People v. Vicente,
146 SCRA 347 [1986]). In alevosia,
it must first be proven that the offender consciously adopted the particular
means and methods to ensure the execution of the crime without risk to himself
(People v. Mabuhay, 185 SCRA 675 [1990]).

In the case at bar, appellants initiated their attack on their
victims by throwing stones at them. The
stoning therefore forewarned the victims of the impending attack and gave them
the chance to either prepare and defend themselves or to run away.

On cross-examination, Fernando testified that he was confident that he and Marcos could outrun their
aggressors and that they were not in any danger. (TSN, May 16, 1990, p. 14)

As testified to by Dr. Efren Apolinario, a medico?legal
expert, the wounds sustained by Marcos were on the front portion of his body
except for the wound sustained in his right forearm and right deltoid
region. (TSN, May 16, 1990, pp. 3-5)

Considering that Fernando testified that the stoning came from
behind them and the wounds sustained by Marcos were inflicted frontally, it can
be deduced that Marcos stopped on his tracks and turned about to face his
assailant, instead of running away.

With respect to the wound sustained by Fernardo, it appears that
the same did not incapacitate him for more than one day as he was able to
report the incident to the Manicahan Police Station shortly after being treated
at the Zamboanga General Hospital. (TSN, May 16, 1990, p. 12) If the wound was serious, Fernando could not
have run as fast and as far as he had described. Likewise, if appellant Fabor intended to kill Fernando, he could
have stabbed the latter more than once or could have pursued him with more
vigor.

In the absence of the qualifying circumstance of alevosia, appellants
can only be convicted of homicide and slight physical injuries. The penalty for homicide under Article 249
of the Revised Penal Code is reclusion temporal. There being no mitigating nor aggravating
circumstance present, the maximum penalty to be imposed on the appellants
should be within the range of reclusion temporal in its medium
period or 14 years, 8 months and 1 day to 17 years and 4 months. Applying the Indeterminate Sentence Law, the
minimum period shall be within the range of the penalty next lower to that
prescribed by the Revised Penal Code for homicide which is prision mayor
or 6 years and 1 day to 12 years.

The penalty for slight physical injuries under Article 266 of the
Revised Penal Code is arresto menor.

The indemnity of P30,000 should be increased to P50,000 (People
v. Yeban, 190 SCRA 409 [1990]).

WHEREFORE, this Court finds appellants guilty only of
homicide and sentences them to the indeterminate
penalty ranging from eight (8) years and one (1) day of prision mayor,
as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum, and to pay jointly
and severally the heirs of Armando
Marcos the sum of P50,000.00 as indemnity.

This Court also finds appellants guilty of the crime of slight
physical injuries, and sentences them to suffer the penalty of arresto menor.

SO ORDERED.

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