SECOND DIVISION

[G.R. Nos. 115247-48. December 1, 2000]

People of the Philippines, plaintiff-appellee, vs. Gaspar S. Sinda, Romeo S. Sinda and Ernesto S. Sinda, accused-appellants.

D E C I S I O N

Buena, J.:

For the death of Felix and Rogelio Salacut, herein appellants – brothers Gaspar, Romeo and Ernesto – all surnamed Sinda, were tried before, and convicted by, the Regional Trial Court of Dumaguete City, Branch 30, of murder, and were each sentenced to suffer the penalty of reclusion perpetua and to jointly and severally indemnify the respective heirs of the victims in the amount of P50,000.00.

The two informations filed against the appellants read:

“CRIMINAL CASE NO. 11074:

“That on or about 10:00 o'clock in the evening of September 16, 1993, at brgy. Tambuhangin, Amlan, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another, with intent to kill, with treachery and abuse of superior strength, with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, did then and there willfully, unlawfully and feloniously attack, assault, and strike Felix Salacut with huge stones, and later stab said victim with a sharp-bladed instrument, thereby causing various injuries on the body of said victim, which injuries caused the instantaneous death of said victim, to the damage and prejudice of the heirs of said Felix Salacut."

“CRIMINAL CASE NO. 11075:

"That on or about 10:00 o'clock in the evening of September 16, 1993, at barangay Tambuhangin, Amlan, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another, with intent to kill, with treachery and abuse of superior strength, with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, did then and there willfully, unlawfully, and feloniously attack, assault, and strike Rogelio Salacut with huge stones, and later stab said victim with a sharp-bladed instrument, thereby causing various injuries on the body of said victim, which injuries caused the instantaneous death of said victim, to the damage and prejudice of the heirs of said Rogelio Salacut."

On the basis of these allegations, the prosecution sought to establish that at around 7 o'clock in the evening of September 16, 1993, the three (3) appellants, together with the two (2) victims Felix and Rogelio Salacut, Benceslao Silorio, and Diony Riasol, were having a drinking binge of "guhang" (a local wine) at the latter's store in Tambuhangin, Amlan, Negros Oriental. About an hour later, the group, with the exception of Eulogio Silorio and Diony Riaso, proceeded to the house of the appellants' parents where they continued imbibing 1 1/2 gallons more of "guhang" at the yard.

Felix Salacut then announced his intention of going home but not before repeatedly asking appellant Gaspar where his bolo was. Apparently irked, appellant Gaspar punched Felix on the right side of his body causing the latter to fall flat on his back. The three (3) appellants then threw stones at the fallen Felix hitting him on the face and on different parts of his body.

They then turned their ire on Rogelio Salacut, who was lying down on the ground near the kitchen, by stoning him like what they did to Felix. Rogelio's pleas for the assault to stop fell on deaf ears, as the three (3) appellants continued pelting him with stones which found their mark on different parts of his body. The incident was witnessed by one of the drinkers, Benceslao Silorio, who, out of fear, hurriedly left for home. He returned to the crime scene the following morning where he saw the lifeless bodies of Felix and Rogelio Salacut on the ground bathed in blood.¹ TSN, November 23, 1993, pp. 18-23.1

The autopsy report of Dr. Anita Ygonia on the cadavers of Felix and Rogelio Salacut revealed the following:

"Felix Salacut

"The body is in a state of rigor mortis after 10 1/2 hours after death, and is lying on its back with face directed to the left side, with blood coming out from the nostrils, ears, and mouth and the lower extremities are flexed.

“ 1. Lacerated wound 2 cm x 1 cm x 0,5 cm along the right parietal region with depressed fracture of the same;

“ 2. Face markedly deformed due to a comminuted fracture of the same;

“ 3. Stab wound 4 cm x 1cm x 11 cm depth at the base of the right side of the neck directed downwards toward the right side;

“ 4. Incised wound at the following areas:

a) right side of neck 2 cm superficial 1 cm above wound no. 3

b) right forearm 1 1/2 cm, superficial dorsal portion, middle third.

“Cause of Death

“Shock secondary to hemorrhage due to fracture of the face and stab wound at the base of right side of the neck."² Record, p. 10.2

"Rogelio Salacut:

"The body is in a state of rigor mortis after 10 ½ hours after death. The body is lying on its left side in a flexed position, with both upper and lower extremities flexed.

“1. Multiple lacerated wound at the following parts of the body:

a) right parietal region 3 cm x 1 cm x 0,5 cm with depressed fracture of the same

b) right temporal region 2 cm x 1 cm x 0.3 cm;

c) left parietal region 3 cm x 1 cm x 0.5 cm;

d) left temporal region 1 1/2 cm x 1 cm x 0.5 cm;

e) left side of forehead 5 cm x 0.5 cm x 0.5 cm vertical position just above the left eyebrow, with depressed fracture of the same;

“2. Incised wound 6 cm x 2 1/2 cm x 4 cm depth at the base of the head, right side;

“3. Incised wound 3 cm x 1 cm x 10 cm at the left inframandibular area;

“4. Multiple abrasions with contusion at the following parts of the body:

a) right scapular region, at the upper half 2 cm x 2.5 cm;

b) right side of knee 3 cm x 3 cm;

c) left lumbar area 3 cm x 2 cm, 5 cm above the iliac bone;

d) left elbow region;

e) lateral side of chest 2 cm below the right axillary region.

“Cause of Death:

“Shock secondary to hemorrhage due to multiple lacerated wounds of the head with fractured portion of skull and incised wound at the left inframandibular area, and base of head at right side."³ Records, p. 12.3

The three (3) appellants do not deny that they and the victims were having a drinking session at their parent's house on the night in question. They nonetheless tell a story of self-defense.

Appellant Gaspar admitted killing the victims, but in self-defense. He claimed that after Felix Salacut found his bolo which he was looking for, Rogelio remarked: "You hack him." At that instance, Felix faced appellant Gaspar with a raised bolo and advanced towards him, poised to strike him with the bolo. Appellant Gaspar moved back, picked up a stone and threw it at Felix, hitting the latter on the right side of his forehead. Felix fell to the ground, losing hold of his bolo. Appellant Gaspar then picked the bolo up and thrust it on the right side of Felix's neck. Meanwhile, Rogelio Salacut approached appellant Gaspar, poised to beat the latter with a chair. Upon seeing this, appellant Romeo threw a stone at Rogelio hitting the latter on the face. Rogelio fell to the ground. Appellant Gaspar then slashed the latter’s neck with the same bolo he was holding.

Appellant Romeo narrated that after drinking in the place of Diony Riasol, he and his brother appellant Gaspar went to their mother's house where they resumed drinking. Ten minutes later, Felix, Rogelio and Benceslao arrived and joined them. Felix signified his intention to leave and asked for his bolo from appellant Gaspar who denied having it. Failing to find the bolo, appellant Gaspar went upstairs to look for a bigger lamp to illuminate the premises. The bolo was found under the table where Felix picked it up. At this point, Rogelio remarked: "You hack him." So, Felix lunged at appellant Gaspar but the latter picked up a stone and threw it at Felix, hitting the latter on the forehead. Felix fell to the ground, losing hold of the bolo. Appellant Gaspar took the bolo and slashed Felix's neck. Upon seeing this, Rogelio got the seat of a bench and poised to strike Romeo who moved back and picked up a stone. He threw the stone at Rogelio hitting the latter on the right cheek. Rogelio fell to the ground. Thereupon, appellant Gaspar slashed the neck of Rogelio with the bolo despite Rogelio's plea. Appellant Romeo went upstairs to comfort his mother who was crying.

For his part, appellant Ernesto declared that after delivering half cavan of corn grains to his mother at about 6 o'clock in the evening of September 16, 1993, he went to sleep. He was awakened by his mother at about 10 o'clock telling him that there was an ongoing quarrel downstairs among appellant Gaspar and Romeo, Felix and Rogelio. So, appellant Ernesto took his mother out of the house and went to the safety of the house of his uncle Gaudioso Sinda. He stayed there until the following morning.

The trial court did not believe appellants' exculpatory story and, instead, gave full faith and credence to the prosecution's version which led to their conviction.

Pleading for their acquittal, accused-appellants now come to this Court arguing that the court a quo erred:

I. …in concluding that there was conspiracy on the part of the accused-appellants anent the incident in question.

II. …in not giving due weight and credence to the evidence adduced by the accused-appellant Ernesto Sinda.

III. …in convicting the accused-appellants guilty of murder and not homicide.

On the first assigned error, they argue that the assailed incident arose out of a simple misunderstanding between Felix and appellant Gaspar. It was totally unexpected and not a premeditated one. Prior to the incident, there was no proof that appellants Gaspar and Romeo had agreed to kill the victims. It was the victims themselves who went to the house of the appellants and engaged them in a drinking spree. There was nothing to indicate that appellants had an axe to grind against the victims as to embolden them to carry out their common objective, in particular, the very crucial stage wherein appellants agreed on the manner by which their intended victims would be waylaid. Neither was it proven that an agreement was hatched among appellants anent the place where their plan to assault victims would be carried out, the exact time of committing the same and their respective goals.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. It comes to life at the very instant the plotters agree, expressly or implied, to commit the felony and forthwith, to actually pursue it.⁴ See Article 8, Revised Penal Code; People vs. Quitlong, 292 SCRA 360, 378 [1998].4 Conspiracy need not be proved by direct evidence. It may be inferred from the concerted acts of the accused, indubitably revealing their unity of purpose, intent and sentiment in committing the crime.⁵ People vs. Albao, 287 SCRA 129 [1998]; People vs. Leangsiri, 252 SCRA 213 [1996]; People vs. Salison, Jr., 253 SCRA 758 [1996]; People vs. Sumampong, 290 SCRA 471 [1998].5 Thus, it is not required that there was an agreement for an appreciable period prior to the occurrence, it is sufficient that the accused acted in concert at the time of the commission of the offense and that they had the same purpose or common design, and that they were united in its execution. ⁶ People vs. Hubilla, Jr., 252 SCRA 471 [1996]; People vs. Obello, 284 SCRA 79 [1998].6

We have carefully reviewed the record of the case and agree with the trial court's ruling that appellants acted in conspiracy. While there is no evidence of a previous agreement between the appellants to kill the victims, their simultaneous acts in stoning the victims indubitably show unity of purpose, and intent to harm the victims. These circumstances were positively established by the testimony of the prosecution witness Benceslao Silorio. Thus,

"Q Tell us how this quarrel started?

“A Felix looked for his bolo because he wanted to go home.

“Q When you say "Felix" you are referring to Felix Salacut, one of your companions?

“A Yes.

“Q At this moment when Felix Salacut asked for his bolo because he wants to go home, where was Rogelio Salacut?

“A He was sleeping.

“Q Where was Rogelio Salacut sleeping?

“A On the ground.

“Q You said that Felix Salacut was looking for his bolo, from whom did he inquire about his bolo?

“A From Gaspar because Gaspar inserted the bolo at his back.

“Q When you say "Gaspar", you are referring again to Gaspar Sinda?

“A Yes.

“Q You mean that Gaspar inserted the bolo of Felix Salacut at the back or the waist portion of his pants?

“A Yes, at the back.

“Q And what happened after Felix Salacut inquired about his bolo from Gaspar Sinda?

“A In the course of their conversation Felix was boxed by Gaspar.

“Q Was Felix hit?

“A Yes.

“Q Where was Felix Salacut hit?

“A He was hit at his side.

“Q Which side?

“A (Witness pointing to his right side).

“Q What happened to Felix upon being hit by Gaspar?

“A He fell down.

“Q On the ground?

“A Yes.

“Q And what happened right after Felix Salacut fell down on the ground?

“A When Felix Salacut fell down Gaspar Sinda, Romeo Sinda and Ernesto Sinda threw stones at him.

“Q When you say Gaspar Sinda, Romeo Sinda and Ernesto Sinda you are referring again to the accused in this case?

“A Yes.

“Q How big were the stones thrown by these 3 accused towards Felix Salacut who was on the ground?

“A Some are as big as my fists, some are as big as both of my fists combined.

“Q Was Felix Salacut hit?

“A Yes.

“Q Where was Felix Salacut hit?

“A Here (witness pointing to the right side of his face, his temple).

“Q How many times was Felix Salacut hit by the stones thrown by the 3 accused, if you can estimate?

“A I did not notice but there were plenty of stones thrown.

“Q And then in the course of the stoning of felix Salacut by the 3 accused, what transpired, what also happened?

“A They turned to Rogelio Salacut who was sleeping near the kitchen and threw stones at him.

“Q Was Rogelio Salacut able to wake up in the course of the stoning of Felix Salacut?

“A Yes, he stood up and he advised but they stoned him.

“Q Whom did Rogelio Salacut give advice?

“A The people who were quarrelling.

“Q You are referring to the 3 Sindas and Felix Salacut?

“A Yes,

“Q You said he was stoned after he gave an advice, was Rogelio hit?

“A The first one who threw stones was Gaspar Sinda, followed by Romeo Sinda and Ernesto Sinda.”⁷ TSN, November 23, 1993, pp. 20-22.7

It is clear from the foregoing testimony that at the time of the commission of the crime, they had the same purpose and were united in its execution. By simultaneously throwing stones at the victims, they had a common design to inflict harm on both victims. Thus, we agree with the court a quo's ruling, viz:

"Dr. Ygonia found on Felix Salacut five (5) injuries (Exhs. C-2-a, C-2-b, C-2-c, C-2-d and C-2-e) Rogelio Salacut sustained twelve (12) injuries (Exhs. D-2-a, D-2-b, D-2-c, D-2-d, D-2-e, D-2-f, D-2-g, D-2-h, D-3-a, D-3-b, D-3-c and D-3-e). And this means that said injuries were inflicted, not by only one but by several persons. This, therefore, proves the veracity of the testimony of Prosecution witness Benceslao Silorio that the three accused in a concerted action, pelted Felix Salacut and Rogelio Salacut with stones inflicting thereby the injuries found by Dra. Ygonia. The acts done by each and all of the three accused were moved by the same purpose-that is, to kill Felix Salacut and Rogelio Salacut. And the concerted action of all the three accused in the assault against the two victims in this case made them co-principals by direct participation and has established conspiracy among them. x x x"⁸ RTC Decision, pp. 15 - 1 6.8 (Underscoring supplied)

Appellants likewise argue that the crime committed was only homicide and not murder because it was not attended with aggravating circumstances. They claim there was no treachery because it was not established that appellants had deliberately and consciously adopted the means, method or manner of assaulting their victims- the incident having been committed at the spur of the moment.

There is treachery when the offender commits any of the crimes against the person, employing means, methods of forms in the execution thereof, which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make.⁹ Article 14,par. 16, Revised Penal Code; People vs. Lacao, Sr., 201 SCRA 317, 330 [1991]; People vs. Velaga, Jr. 199 SCRA 518, 523 [1991]; People vs. Aguilar, 292 SCRA 349, 357 [1998]; People vs. Molina, 292 SCRA 742, 775 [1998].9

The appellants, in waylaying the victims, obviously employed a mode of attack which was deliberately designed to insure the death of their victims without any risk they could have made against them. Felix and Rogelio were both unarmed at the time the appellants pelted the two with stones. It must be stressed that when the victims fell on the ground after the appellants threw stones at them, there was no danger on the part of the appellants of any attack from the victims. The victims were not in a position to defend themselves at the time appellant Gaspar hacked them on their necks. In other words, the method employed by the accused insured his safety from any defensive or retaliatory act on the part of the victims.¹⁰ People vs. Toribio, 198 SCRA 529, 540 [1991].10

Appellants further claim that the killing was sudden and purely accidental, thus, there was no treachery.

We do not agree.

The act of appellant Gaspar in hacking the victims was deliberately and consciously adopted to ensure the death of the victims. This can be inferred from appellant Gaspar's own testimony, to wit:

“COURT:

“Q After you threw stone on the forehead of Felix, what happened to him?

“A He fell down.

“Q What was his position when he fell down?

“A He fell down face up with his 2 arms spread out.

“Q What happened to the bolo when he fell to the ground?

“A The bolo also fell.

“Q How far from him did the bolo fall?

“A About ½ meter.

“Q Was it inside the scabbard or outside?

“A It was already outside the scabbard.

“Q Was he unconscious or still conscious?

“A He was still conscious.

“Q Did he talk to you while he was lying down on the ground?

“A No more.

“Q Was he moving?

“A He was jerking.

“Q Did you see blood on his face?

“A Yes.

“Q Did he attempt to stand up?

“A No more.

“Q And then what did you do, you picked up the bolo?

“A Yes.

“Q And you stabbed him on the neck as you said?

“A Yes.

“Q Why did you stab him on the neck?

“A Because I forgot myself.

“Q You intended to kill him?

“A No.

“Q Then why did you stab him on the neck?

“A Because he was very angry about the bolo and he was suspecting me that I kept his bolo.

“Q His anger was because he suspected you that you kept the bolo?

“A Yes.

“Q But at the moment you stabbed him, he was no longer attacking you?

“A No more because the bolo had already fallen after I threw stone at him.

“Q And he could not even fight you anymore because according to you he was jerking?

“A Yes.

“Q And yet you stabbed him on the neck?

“A Yes.

Q Because you wanted to kill him?

A I finished him because he was already wounded." ¹¹ TSN, March 7, 1994, pp. 14-15.11 (Underscoring supplied)

Appellant Gaspar gave the same explanation when he was asked why he stabbed Rogelio Salacut.

“Q You mean you wanted to kill him?

“A No, I wanted to finish him in order for them not to retaliate because my mother is sick.

“Q But at the moment you slashed his neck, he could not fight you anymore?

“A Yes.

“Q He had no more weapon?

“A None.

“Q the bolo was in your hand already?

“A Yes.” ¹² Ibid., p. 15.12 (Underscoring supplied)

There is no doubt that appellant Gaspar consciously adopted such mode to facilitate the perpetration of the killing of the victims without risk to himself.

Moreover, the wounds sustained by the victims indisputably show treachery. Felix Salacut sustained a fracture in the parietal area of the head and a comminuted fracture on the face. As testified to by Dr. Anita Ygoña, who conducted the post-mortem examination of the deceased, these injuries are fatal.

"FISCAL:

“Q This appears to be a depressed fracture, what do you mean by depressed fracture?

“A Depressed fracture is, there is a solution of the continuity of the bone along the parietal area, there is a break.

“Q What are the possible consequences of this kind of injury?

“A It could injure the brain.

“Q And what could be the resultant effect if the brain is injured?

“A It could cause death.

“Q So this is a fatal injury?

“A It is a fatal injury.

x x x x x x x x x

“Q Let us proceed to finding No. 2, doctor.

“A In finding No. 2, the face is markedly deformed due to a comminuted fracture of the same. I indicated it as No. 2 in the sketch.

x x x x x x x x x

FISCAL:

“Q You said here doctor, comminuted fracture, what do you mean by that?

“A The bones are cut into small pieces.

“Q This is located on the face, doctor?

“A Yes, the entire face. The face was soft already you can really feel the discontinuity of the bones, you can feel the crackling sound of portions of the bones that were already fractured.

“Q This could be a very fatal injury?

“A Yes. "¹³ TSN, November 23, 1993, pp. 6-7.13 (Underscoring supplied)

The injuries sustained by the deceased were caused by the hurling of stones by the accused-appellants.

"Q Tell us doctor, what could possibly be the instrument used in inflicting this kind of injury?

“A It could be a stone, the assailant must have used a stone in inflicting this kind of injury." ¹⁴ TSN, November 23, 1993, pp. 6-7.14

The self-defense claim of the appellants must also fail in the light of the foregoing circumstances. Assuming that Felix was poised to hack appellant Gaspar upon Rogelio’s prodding, self-defense can not be appreciated. While Felix at that instance was the unlawful aggressor, said aggression ceased when appellant Gaspar hit Felix with a stone, and the latter fell on the ground and lost grip of the bolo. At that instance, there was no longer any danger to appellant Gaspar. The latter even testified that Felix remained lying down on the ground and did not attempt to stand up.¹⁵ TSN, March 7, 1994, p. 15.15

Appellants also argue that the aggravating circumstance of cruelty cannot be appreciated against them because, while appellant Gaspar admitted having slashed the neck of his victims, it was not shown that he did it for the purpose of prolonging their suffering.

For cruelty to be aggravating, it is essential that the wrong done was intended to prolong the suffering of the victim, causing him unnecessary moral and physical pain.¹⁶ People vs. Llamera, 51 SCRA 48, 60 [1973]; People vs. Luna, 58 SCRA 198, 209 [1974].16 It must be shown that the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act.¹⁷ People vs. Dayug and Bannaisan, 49 Phil. 423, 427 [1926].17

Such circumstance is absent in the case at bar. It was not convincingly shown that the appellants, for their pleasure and satisfaction, caused the victims to suffer slowly and painfully and inflicted on the victims unnecessary physical and moral pain. Thus, it was error on the part of the trial court to appreciate the generic aggravating circumstance of cruelty.

Appellants likewise assert that the trial court relied heavily on the uncorroborated testimony of Benceslao Silorio.

We have, time and again, said that the trial court's evaluation of the credibility of a testimony is accorded the highest respect, for the trial court has an untrammeled opportunity to observe directly the demeanor of a witness, and, thus, to determine whether he or she is telling the truth. Such assessment is generally binding on this Court, except when the same has been reached arbitrarily, or when the trial court has overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which could have affected the result of the case. We have perused the record of this case and find no reason to apply these exceptions.¹⁸ People vs. Obello, 284 SCRA 79, 88-89 [1998]; People vs. Magpantay, 284 SCRA 97, 101 [1998]. 18

In addition, the defense failed to impute any ill-motive on the part of Bencelao Silorio to testify falsely against them. The witness was related to them. Thus, it is reasonable to presume that it was only his desire to seek justice for the death of his friends which compelled him to testify before the court. He could not have accomplished that objective, nor rest with a clear conscience, were he to implicate innocent men in the commission of so grave a crime. Verily, if an accused had really nothing to do with a crime, it would be against the natural order of events and of human nature, and against the presumption of good faith, that a prosecution witness would falsely testify against him.¹⁹ People vs. Villamor, 292 SCRA 384 [1998]; People vs. Enciso, 223 SCRA 675, 686 [1993].19

Finally, appellants contend that appellant Ernesto did not participate in the killing of the victims because he was asleep at the time of the incident is unmeritorious.

We have likewise consistently held that alibi is the weakest of all defenses. It is a settled rule that for an alibi to prevail, the defense must establish by positive, clear and satisfactory proof that it was physically impossible for the accused to have been at the scene of the crime at the time of its commission, and not merely that the accused was somewhere else.²⁰ People vs. Dinglasan, 267 SCRA 26 [1997]; People vs. Navales, 266 SCRA 569 [1997]; People vs. Javier, 269 SCRA 181 [1997]; People vs. Quinao, 269 SCRA 495 [1997].20

In the case at bar, appellant Ernesto was only a few meters away from the scene of the crime. He was only inside his mother’s house while the crime was committed only at his mother’s yard. Thus, it was not impossible for appellant Ernesto to be at the scene of crime. Moreover, appellant Ernesto’s alibi crumbles in the face of the prosecution’s identification. Witness Benceslao Silorio positively identified Ernesto as one of the perpetrators of the crime. And as elsewhere discussed, the defense failed to establish any ill motive on the part of the witness to testify falsely against the appellants, the latter being his relative. Between a positive identification of the accused and an alibi, the former is given greater weight especially when the victim has no motive to falsely testify against the accused, such as the case.²¹ People vs. Montealto, 269 SCRA 755 [1997].21

WHEREFORE, the decision of the Regional Trial Court finding the appellants Gaspar S. Sinda, Romeo S. Sinda and Ernesto S. Sinda guilty beyond reasonable doubt of the crime of murder is hereby AFFIRMED. Cost against the appellants.

SO ORDERED.

Bellosillo, J. (Chairman), Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.