PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO GO-OD (Deceased) NESTOR GO-OD, SANCHO GO-OD, RUFO GO-OD and EMPE GO-OD, accused, NESTOR GO-OD, accused-appellant. Acctä mis

Accused-appellant Nestor Go-od appeals the decision1 [Penned by Judge Henry B. Basilla, dated April 15, 1998.] of the Regional Trial Court of Cataingan, Masbate (Branch 49), finding him guilty of murder and sentencing him as follows:

In an information3 [OR, p. 1.] dated August 9, 1991, accused-appellant Nestor Go-od, together with his father Alejandro, his cousins Sancho and Empe, and his younger brother Rufo, all surnamed Go-od, were charged with murder committed as follows: Sâ djad

Assisted by counsel, only Nestor and Alejandro Go-od were arraigned on October 9, 19914 [OR, p. 19.], wherein both entered a plea of not guilty. Trial thus ensued as to them. The other accused, namely, Sancho, Empe and Rufo Go-od all remained at large. Alejandro died before judgment on May 6, 1997 while in detention at the Matiporon Provincial Jail in Milagros, Masbate.5 [OR, pp. 202-203.]

The trial court summarized the evidence for the prosecution as follows: Sppedscâ

As to the cause of death, the death certificate (Exh. "C") reads:

To rebut the prosecution’s strong and positive evidence, accused-appellant interposed denial and non-participation as his defense. The trial court summarized the evidence for the defense as follows:

In meting out the judgment of conviction, the trial court relied chiefly on the positive identification of two eyewitnesses to the incident, Anecia Monsalud and Gaudioso Suson. The trial court found the testimony of Anecia Monsalud as positive and straightforward and that of Gaudioso Suson as free from any impropriety or falsehood. It likewise gave bearing to the findings in the post mortem examination report, which indicate, from the nature and number of wounds on the victim’s body, that different sharp instruments were wielded by more than one person in inflicting the reported injuries. CÓ alrsc

After careful study and weighing of the evidence, the trial court found the existence of conspiracy among the assailants. According to the trial court, their method of attacking the victim was synchronized indicating a common criminal design.8 [OR, p. 220.] The trial court declared further that the killing was characterized by "treachery with abuse of superior strength" because "the accused had consciously adopted a mode of attack by ganging up on the victim followed by simultaneous and merciless hacking until the victim who was not in a position to defend himself fell and lie(sic) dead on the ground."9 [OR, p. 221.] It did not appreciate evident premeditation which was also alleged in the information.

In his appeal, accused-appellant contends:

Based on the record and evidence at hand, we find that the guilt of accused-appellant has been established beyond reasonable doubt in consequence of the fact that he has been positively identified by prosecution witnesses Anecia Monsalod and Gaudioso Sison. The bare denial and defense of non-participation of accused-appellant is not sufficient to overcome the positive identification by prosecution witnesses.11 [People vs. Nazareno, 260 SCRA 256 (1996)]

Accused-appellant capitalizes on the testimonies of prosecution witnesses Anecia Monsalod and Gaudioso Suson that the victim was able to wrestle the bolo from one of the accused and fatally wounded him thus disabling him from further participating in the assault. The testimony of Anecia Monsalod on this point is as follows:

In relation to the foregoing, accused-appellant draws our attention to the testimony of Dr. Judy Lee, Chief of Hospital, Catangian National District Hospital, that based on the medical record, the two (2) centimeter (cm.) stab wound below the right nipple which penetrated the thoracic cavity and punctured the lung of accused-appellant would have been fatal were it not for the timely medical attention which the latter received.14 [TSN dated January 14, 1998, pp. 5-6.] Accused-appellant would have us conclude that after being fatally wounded by Aladino Ygot he had no participation anymore in the killing of the latter.

The argument of accused-appellant is clearly flawed because conspiracy was proven as clearly as the crime itself. Conspiracy was shown to exist when the accused-appellant together with his companions ganged up on the victim, hacking and stabbing him to death. Witness Anecia Monsalod narrated in detail thus: Calrspä ped

Gaudioso Suson corroborrated the testimony of Anecia Monsalod. He testified that at around half past 5 o’clock in the afternoon of May 8, 1991, he was atop a coconut tree gathering tuba when he saw Nestor, Alejandro, Sancho, Pepe and Rufo gang up on Aladino Ygot and hack him.16 [TSN dated April 8, 1992, p. 3.] He saw the five accused armed with bolos and a spear. He said that he was at a distance of about fifty (50) meters from where the incident occurred and that he knew all the accused since they are his nephews.17 [Ibid., p. 4.]

The acts of accused-appellant and his companions as narrated by Anecia Monsalod and Gaudioso Suson manifestly disclose their joint purpose and design, concerted action and community of interest. The malefactors’ actions of helping or assisting each other in simultaneously stabbing or inflicting wounds on the victim are clear and indubitable proofs of a concerted effort to bring about the death of the victim, thus they are equally liable for the crime.18 [People vs. Baniel, 275 SCRA 472 (1997)] Edâ p

The fact that the victim, in the course of the assault against him, was able to stab accused-appellant and disabled him does not exculpate the latter from criminal responsibility. The prosecution established that the death of the victim occurred after the concerted hacking and stabbing perpetrated by accused-appellant and his companions. Whether or not it was specifically accused-appellant who inflicted the fatal wound is of no moment inasmuch as once conspiracy has been established, it is unnecessary to pinpoint who among the accused inflicted the fatal blow.19 [People vs. Obello, 284 SCRA 79 (1998)] All the conspirators are liable as co-principals regardless of the extent and character of their participation, because the act of one is the act of all.20 [People vs. Narvasa, 298 SCRA 637 (1998)] Hence, the acts of accused-appellant’s companions were also his.

The qualifying aggravating circumstance of treachery which was alleged in the information was correctly relied upon by the trial court to elevate the killing to murder. However, the trial court erred in appreciating abuse of superior strength in addition to treachery. It is well-settled that where treachery qualifies the crime to murder, it absorbs abuse of superior strength and the latter cannot be appreciated even as a generic aggravating circumstance.21 [People vs. Sancholes, 271 SCRA 527 (1997)] The aggravating circumstance of abuse of superior strength, manifested by the presence of five armed assailants against an unarmed victim, cannot be appreciated independently because it is considered absorbed in alevosia.22 [People vs. Datun, 272 SCRA 380 (1997)] Incidentally, evident premeditation can not be considered for lack of evidence that accused-appellant preconceived the crime.23 [People vs. Apelado and Bacani, G.R. No. 114937, October 11, 1999.]

Treachery clearly attended the commission of the crime. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.24 [Revised Penal Code, Article 14, paragraph 16.] The treacherous manner in which the accused perpetrated the crime was shown by the sudden, deliberate and unexpected attack upon the unsuspecting Aladino Ygot. The five accused hid behind the cover of the banana plants, then suddenly and unexpectedly jumped on Aladino Ygot who was unarmed and totally caught by surprise. Armed with bolos, spears and a knife, the accused hacked him in different parts of his body. Miä sedp

The fact that the victim was able to grab one of the bolos after he had already been hit and used the same to stab one of his assailants does not negate the presence of treachery in the commission of the crime. The characteristic and unmistakable manifestation of treachery is the deliberate and unexpected attack on the victim without any warning and without giving him the opportunity to defend himself or repel the initial assault. For treachery to be appreciated, it must be present at the inception of the attack, and if absent and the attack is continued, even if present at a subsequent stage it is not to be considered.25 [People vs. Badon, G.R. No. 126143, June 10, 1999.] It indubitably appears from the testimonies of the prosecution witnesses that Aladino Ygot stabbed Nestor Go-od after he himself had already been wounded by the attack which as we have already mentioned was so sudden and unexpected that it did not give Aladino Ygot an opportunity to offer an effective defense nor to repel the initial attack.

The murder was committed prior to the effectivity of R. A. 7659 on December 31, 1993.26 [People vs. Godoy, 250 SCRA 676 (1995)] The applicable provision is Art. 248 of the Revised Penal Code which penalizes murder with reclusion temporal in its maximum period to death. The trial court correctly sentenced him to reclusion perpetua, the medium period of the imposable penalty.27 [People vs. Andales, G. R. No. 130637, August 19, 1999.]

As regards the civil liability, the amount of P50,000.00 for civil indemnity is upheld as it conforms with prevailing jurisprudence.28 [People vs. Robles, G.R. No. 124300, March 25, 1999; People vs. Piamonte, G.R. No. 91999, February 25, 1999.] Actual damages cannot be awarded since the records show that the prosecution failed to substantiate the bare testimony of the widow, Paulino Ygot, with other corroborative evidence. The Court can only grant such amount for expenses if they are supported by receipts.29 [People vs. Gutierrez, Jr., G.R. No. 116281, February 8, 1999.] Moral damages in the amount of P30,000.00 awarded by the trial court is reasonable considering the pain30 [TSN dated April 21, 1992, p. 5.] suffered by the victim’s widow. Moral damages, which include mental anguish, serious anxiety and wounded feelings, may be recovered in criminal offenses resulting in the victim’s death.31 [People vs. Gonzales, G.R. No. 130507, July 28, 1999.] However, the award of exemplary damages should be deleted. Exemplary damage is awarded in criminal offenses when the crime was committed with one or more aggravating circumstances.32 [People vs. Apelado, et al., G.R. No. 114937 (October 11, 1999)] There is none in this case. Misoedpâ

Finally, we must also modify the award for loss of earning capacity. Paulina Ygot, wife of the deceased Aladino Ygot testified that the latter was thirty-one (31) years old at the time of his death on May 8, 1991 and earning P4,000.00 per month as a security guard employed with the Defender’s Security Agency.33 [TSN dated April 21, 1992, pp. 4-5.] Loss of earning capacity is computed based on the following formula:34 [People vs. Verde, G.R. No. 119077, February 10, 1999.]

..................Net Earning Capacity = P 792,000.00

WHEREFORE, the decision appealed from is hereby MODIFIED, and accused-appellant Nestor Go-od is found guilty of MURDER and sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the heirs of the victim the amount of P50, 000.00 as indemnity for death in accordance with current jurisprudence; P30,000.00 as moral damages.; and P 792,000.00 for loss of earning capacity.

Melo, (Chairman), Vitug, and Panganiban, JJ., concur. 6/5/00 3:17 PM

Purisima, J., abroad - no part.