PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICASIO ENOJA @ "Nick", JOSE ENOJA @ "Moros", ANTONIO GALUPAR @ "Tony", RONNIE ENOJA @ "Bud-oy", and YOLLY ARMADA, accused-appellants. ULANDU

This is an appeal from the decision dated October 31, 1990, of the Regional Trial Court, Iloilo City, Branch 26, in Criminal Case No. 31550, convicting accused-appellants Nicasio Enoja @ "Nick", Jose Enoja @ "Moros", Antonio Galupar @ "Tony", Ronnie Enoja @ Bud-oy", and Yolly Armada of the crime of murder, and sentencing them as follows:

The five appellants, all farmers and residents of Barangay Caraudan, Janiuay, Iloilo, are related to each other. Jose Enoja @ "Moros", Ronnie Enoja @ "Bud-oy", and Yolly Armada, are the brother, son and first cousin, respectively, of appellant Nicasio Enoja, while Antonio Galupar is a "kumpadre." Three other accused, Joel Enoja @ "Mike", Melvin Castor, and Antonio Enoja, remain at-large.

The victim, Siegfred G. Insular, was a suspected commander of the "New People’s Army" (NPA). A day before the incident, the house of Romulo Enoja, brother of the Enojas, was allegedly sprayed with bullets by the NPA, killing Romulo’s daughter and son. Before that, the house of Catelina Enoja, mother of the Enojas, at Barangay Caraudan, was allegedly burned by the NPA.

The facts are not in dispute. In their consolidated brief, appellants adopted the factual findings of the trial court, as follows:2 [Id. at 48-49.]

On March 11, 1988, Provincial Fiscal Vicente E. Aragona filed an Information3 [Records, p. 1.] for murder against appellants and their three companions who were still at-large. The Information alleged:

On August 5, 1988, appellants were arraigned and entered their respective pleas of not guilty.

During trial, the prosecution presented the following witnesses: Teodoro Salamanca, an eyewitness to the shooting; Paterna Insular, widow of Siegred; Dr. Tito D. Doromal, medico-legal officer who did the autopsy; Pfc. Juan O. Gañon, and Pfc. Moises C. Reiteracion, Integrated National Police officers who responded to the shooting incident. Mis-edp

Dr. Doromal testified that the victim suffered five (5) gunshot wounds in the head and neck area, six (6) gunshot wounds in the thoraco-abdominal regions, and two (2) gunshot wounds in the extremities. The cause of death was maceration of the brain, secondary to gunshot wounds.4 [TSN, January 9, 1989, p. 3.]

Pfc. Juan O. Gañon stated that he entered the incident in the police blotter.5 [TSN, July 3, 1989, pp. 3-4.] Pfc. Moises C. Reiteracion said he was part of the team which responded to the report of the shooting incident. The team found the body of the victim still lying on the same spot the following morning. They recovered empty shells of different calibers and a homemade short firearm near the left arm of the victim.6 [Id. at 5-8.] Pfc. Reiteracion and two companions brought the body of the victim to the funeral home.7 [Id. at 11.]

For the defense, appellants presented Atty. David Tubongbanua, 4th Assistant Provincial Prosecutor of Iloilo, who recommended the dismissal of the case but was overturned by the Provincial Fiscal. Appellants themselves testified and, except for Armada, interposed the defense of denial and alibi.

Appellant Armada pleaded self-defense in shooting Siegfred. He claimed that while he was on his way from Barangay Quipot to Caraudan, to attend the wake of his niece and nephew, he heard gunshots near the chapel. When he went to the place, he saw Galupar lying wounded on the ground, shot by Siegfred. Siegfred then attempted to shoot Armada, but the latter beat him to the draw. Armada fired successive shots at Insular with his M-2 automatic carbine. He did not see Paterna in the vicinity. After the shooting, Salamanca, Nicasio and Arnold came out of the rice mill. Salamanca asked what happened and Armada answered that Siegfred shot Antonio and so, he shot Siegfred. Armada then left and surrendered to the PC station at Jibolo, Janiuay, Iloilo City.8 [TSN, July 18, 1990, pp. 4-10.]

The other appellants admitted being in the vicinity of the crime, but categorically denied any participation in the shooting.

Nicasio claimed that he was with his son, Arnold, and Salamanca inside the latter’s ricemill, milling palay when the shooting occurred.9 [TSN, November 22, 1989, pp. 3-7; TSN, December 15, 1989, pp. 5-6.] However, Salamanca testified that at the time of the incident, there was no palay milling going on.10 [TSN, October 19, 1988, pp. 24-25.] Mis-oedp

Ronnie testified that he was doing household chores in their house at Barangay Caraudan, where his brother Rowel and sister Annelyn were lying in state, when he heard explosions coming from the direction of the ricemill.11 [TSN, November 22, 1989, pp. 27-28.] Shortly thereafter, Arnold arrived and told them that Antonio was shot by Siegfred and requested that a hammock be brought to the scene so that Antonio could be brought to the hospital. Ronnie, Jose, and Jonathan Lazo, Ronnie’s first cousin, immediately brought the hammock to the scene of the incident.12 [Id. at 29-30.] Ronnie thereafter saw Paterna arrive and cry upon seeing her slain husband. Ronnie and his companions placed Antonio in the hammock, boarded him in a tricycle, and rushed him to the hospital.13 [Id. at 31.] On the way, Ronnie heard explosions and when he looked back, he saw his uncle Joel Enoja alias "Mike" and his friend, Melvin, shooting the prostrate body of Siegfred.14 [Id. at 33.14

Jose testified that he was at his house, about 300 meters from the scene of the crime. He was weeding in his yard when he heard gunfire. After a short while, Arnold arrived and asked him to bring a hammock to the scene of the incident.15 [TSN, February 9, 1990, pp. 3-5.]

Galupar related that he had just finished plowing his farm and was resting in his house in Barangay Caraudan when he heard explosions. He remained at home the whole night and only learned of the death of Siegfred the following morning. He claimed that he was implicated in the case because he refused to act as witness for the prosecution.16 [TSN, June 20, 1990, pp. 10-12.]

On October 31, 1990, the trial court rendered a decision17 [Records, pp. 225-237.] finding appellants guilty as charged. The trial court did not give credence to Armada’s claim of self-defense inasmuch as policemen recovered several empty bullet shells from firearms of different calibers at the scene of the crime. The short homemade firearm found near the left arm of the victim could not have been used by the victim since it only had one empty shell in its chamber, not to mention that the victim was right-handed. Lastly, the trial court found it highly suspicious that Antonio, who was allegedly shot by the victim and who could have corroborated Armada’s story of self-defense, went into hiding and had not surfaced up to the present.

In this appeal, in their joint brief,18 [Rollo, p. 47.] appellants raise the following errors: Ed-pm-is

The records show that appellant Antonio Galupar died pending appeal. Pursuant to our ruling in People v. Bayotas, 236 SCRA 239, the death of appellant Galupar pending appeal extinguished his criminal liability as well as his civil liability ex delicto in senso strictiore.

Appellant Yolly Armada escaped from the New Bilibid Prison on September 25, 1996.19 [Letter dated October 17, 1996 from Action Officer Homobono Lachica, Jr., of the Bureau of Corrections, Muntinlupa City, Rollo, p. 167.] As a result, his appeal was dismissed and the judgment against him became final and executory. Entry of judgment was made on January 9, 1997.20 [Id. at 198.]

In the meantime, appellant Jose Enoja jumped bail, which also resulted in the dismissal of his appeal. Judgment against him became final and executory, and entry of judgment was made on March 21, 1997.21 [Id. at 192.] An appellant who escapes or refuses to surrender to the proper authorities is deemed to have abandoned his appeal,22 [People v. Quiritan, 197 SCRA 32, 35 (1991); People v. Codilla, 224 SCRA 104 (1993)] hence, the judgment against him becomes a final and executory. Nonetheless, the appeal proceeds as to the remaining appellants, Nicasio Enoja and Ronnie Enoja, who are now detained at the New Bilibid Prison, Muntinlupa City. Our present review, therefore, concerns only these two appellants.

Appellants assail the trial court’s finding of conspiracy by pointing out alleged inconsistencies in the testimonies of the prosecution witnesses Salamanca and Paterna. Appellants contend that while Salamanca testified that it was only after Armada shot the victim that the other appellants came "one after the other" and fired at the victim, Paterna testified that appellants fired successive shots at the victim, implying that all appellants were already in the crime scene when Armada fired at Siegfred. However, close perusal of the pertinent transcript of stenographic notes (TSN) shows no inconsistencies in the two testimonies. Paterna actually testified that after Armada fired at her husband, the other appellants arrived one after the other ("nag-arabot abot"),23 [TSN, November 23, 1988, p. 14.] and continued to fire at the prostrate body of her husband. The two testimonies constitute cumulative evidence on who participated in the shooting of Siegfred. Both witnesses pointed to all five accused-appellants. Jjs-c

On the matter of conspiracy, we have consistently held that conspiracy need not be shown by direct proof of an agreement by the parties to commit the crime. The conduct of the malefactors before, during or after the commission of the crime is sufficient to prove their conspiracy. Once proved, the act of one becomes the act of all. All shall be answerable as co-principals regardless of the extent or degree of their participation.24 [People v. Cantere, G.R. No. 127575, March 3, 1999, p. 12, citing People v. Hayahay, 279 SCRA 567 (1997)] In this case, circumstances indubitably show that appellants acted concertedly to kill Siegfred. First, after appellant Armada fired at the victim incapacitating the latter, the other accused arrived "almost simultaneously" and took turns in shooting the victim. The successive shots riddled the victim’s body with bullets. Several empty cartridges from guns of different calibers found in the scene and the numerous wounds of the victim indicate plurality of assailants.25 [People v. Caritativo, 256 SCRA 1 (1996)] Second, appellant Jose Enoja thereafter fired a shot at the thigh of his brother Antonio to make it appear that the shooting was in self-defense. Third, Jose planted a short firearm near the body of the victim and placed bullets in the pocket of the victim. Fourth, strangely after Antonio was brought to the hospital, he conveniently disappeared and could no longer be located by the authorities. The aforementioned acts of the appellants clearly point to their common purpose, concert of action, and community of interest.26 [People v. Andres, G.R. No. 122735, September 25, 1998, p. 23.]

Appellants suggest that since Paterna was crying at the time of the shooting, she could not have clearly witnessed the commission of the crime. This contention is disingenuous, to say the least. Paterna’s crying does not impair her credibility. Witnesses of startling occurrences react differently depending upon their situation and state of mind, and there is no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience. 27 [People v. Matubis, G.R. No. 109774, March 27, 1998, p. 9, citing People v. Paynor, 261 SCRA 615 (1996)] Her powers of observation could even be heightened by the startling event to imprint the details in her memory. We have gone over the records and find her testimony clear, credible and consistent with the testimony of Salamanca.

Appellants further insist that the trial court erred in finding that treachery accompanied the killing, considering that the victim was already forewarned of the impending danger when he saw appellant Armada carrying a firearm. Appellants contend that for treachery to exist, the offended party is completely denied of the opportunity to defend himself, but it is not so in this case.

As the Solicitor General correctly pointed out, there was nothing in the behavior of Armada that could have forewarned the victim of an impending danger. Both the victim and Armada knew each other. Armada even acknowledged the greeting of the victim. The latter was walking along the ricefield with his wife28 [TSN, November 23, 1988, p. 7.] when he was suddenly gunned down by the appellants. The victim gave no provocation for the attack. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person attacked.29 [People v. Noay, G.R. No. 122102, September 25, 1998, p.14; People v. Cogonon, 262 SCRA 693 (1996)] Clearly, the qualifying circumstance of treachery is present in this case.

Considering the number of the armed assailants against the lone unarmed victim, there was also abuse of superior strength. Since treachery absorbs the aggravating circumstance of abuse of superior strength this aggravating circumstance need not be appreciated separately.30 [People v. Gutierrez, Jr., G.R. No. 116281, February 8, 1999, p. 23.] Sc-jj

As an alternative defense, appellants present the theory that even assuming they participated in the killing of Siegfred, they should only be held liable for the commission of an impossible crime under Article 4, Par. 2 of the Revised Penal Code, penalized under Article 59 thereof.31 [Art. 4, No. 2 of the Revised Penal Code:

Art. 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. - When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos."] Appellants theorize that the shots fired by Armada already resulted in the death of the victim, and hence, their subsequent shooting of the victim merely constitutes the impossible crime of killing an already dead person. The proposition not only completely contradicts their defense of alibi and denial, it is also speculative as to cause of death. The defense of impossible crime is irreconcilable with alibi.

Appellants Nicasio and Ronnie Enoja claim that they were elsewhere during the offense. For alibi to prosper as a defense, the accused must show that he was so far away that he could not have been physically present at the place of the crime, or its immediate vicinity at the time of its commission32 [People v. Cañete, G.R. No. 120495, March 12, 1998, pp. 10-11.] and that his presence elsewhere renders it impossible for him to be the guilty party.33 [Id. at 10; People v. Villaruel, 261 SCRA 386, 396 (1996); People v. Acob, 246 SCRA 715, 723 (1995)] In this case, Nicasio admitted he was within the vicinity of the crime but presented the lame excuse that he was inside Salamanca’s rice mill at the time of the shooting. His son, Arnold, corroborated this testimony. But it was put in doubt by the testimony of Salamanca, who stated that no milling of palay in his ricemill was going on at the time of the shooting. Alibi, especially when it is corroborated mainly by relatives and friends of the accused, is held by this Court with extreme suspicion for alibi is easy to fabricate and concoct. 34 [People v. Cantere, G.R. No. 127575, March 3, 1999, p. 10.]

Both Paterna and Salamanca positively identified Nicasio Enoja as one of those who took part in the shooting incident. Paterna categorically pointed to Ronnie Enoja as the person who shot her husband in the right eye.35 [TSN, November 23, 1988, p. 16.] Appellants could not attribute any motive against these witnesses to falsely testify against them. In the light of positive identification by witnesses who have no motive to falsely testify, the feeble defense of alibi cannot prevail over the clear and positive identification of the accused as the perpetrators of the crime.36 [Id. at 11.]

At the time of the commission of the crime, on July 2, 1987, the penalty for murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death.37 [As amended by R.A. No. 7659, which took effect on December 31, 1993, murder is now punishable with reclusion perpetua to death.] S-jcj

There being no mitigating nor aggravating circumstance, with respect to Nicasio Enoja’s culpability, the trial court correctly imposed the penalty for murder in its medium period,38 [Article 64, Revised Penal Code.] which is reclusion perpetua.

With respect to appellant Ronnie Enoja, who was born on February 21, 1970, and was below 18 at the time of the commission of the crime, the trial court correctly appreciated the privileged mitigating circumstance of minority. Thus, the penalty next lower in degree was imposed on him in its proper period pursuant to Article 68, second paragraph of the Revised Penal Code, which is prision mayor maximum to reclusion temporal medium. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed upon appellant Ronnie Enoja shall be taken from the medium period of the imposable penalty, which is reclusion temporal minimum or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months, while the minimum shall be taken from the penalty next lower in degree, which is prision correccional maximum to prision mayor medium or four (4) years and two (2) months to ten (10) years. Consequently, the trial court correctly imposed upon Ronnie Enoja the indeterminate sentence of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum.

Pursuant to prevailing jurisprudence, the award of P30,000.00 as indemnity should be increased to P50,000.00. However, the award of actual damages in the amount of P19,000.00 should be deleted. Credence can only be given to claims, which are duly supported by receipts.39 [People v. Guillermo, G.R. No. 113787, January 28, 1999, p. 17.] The testimony alone of the widow, that her sister-in-law incurred about P20,000.00 expenses in connection with the death of the victim, is insufficient basis to award actual damages.

WHEREFORE, the decision of the Regional Trial Court of Iloilo City, Branch 26, in Criminal Case No. 31550, convicting accused-appellants Nicasio Enoja @ " Nick" and Ronnie Enoja @ "Bud-oy" of the crime of Murder is hereby AFFIRMED, with the MODIFICATION that accused-appellants are ordered to pay the heirs of the victim, jointly and severally, the amount of P50,000.00 as indemnity. The award of P19,200.00 as actual damages is deleted. Costs against appellants.