People v. Oliva

SECOND DIVISION

[G.R. No. 106826. January 18, 2001.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. OSCAR OLIVA @ Ka Ambot, EDGAR MANLAPAZ, BOCOY SEACHON, METCHEL IBAYA, JOEL CINCO, AMY INOPIA @ Ka Jinky, Ka Nelly, JOHN DOE and PETER DOE, Ka Yoli, Ka Gerson, NOLI SALCEDO @ Ka Tony, BOGOY MANLAPAZ, VIRGILIO PANGUILINAN @ Ka Ariel, Ka Riza, Ka Liza, accused,

OSCAR OLIVA and NOLI SALCEDO, accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Appellants, together with several other co-accused, in an amended information were charged with kidnapping with murder committed against Jacinto Magbojos. Appellants interposed the defense of alibi who claimed that they were in Metro Manila at the time the crime was committed. No eyewitness saw the actual killing of the victim, but appellants were convicted of murder on the basis of several circumstantial evidence deduced from the testimonies of three (3) prosecution witnesses. Arturo Inopia testified that in the early morning of the day of the incident, appellants, together with the other accused, armed with long firearms, represented themselves to be NPA members and told him that their mission is to get the victim; that according to the deceased wife, Erlinda, four armed men forcibly took her husband who was then wearing white short pants with green lining and red Adidas shirts; that Elpidio Labajata saw the accused inside the house of Inopia and the victim hogtied by coralon rope and appeared very weak and with abrasions on his face. The victim was wearing the same attire as that described by the victim's wife. The victim was never seen alive, and when a shallow grave was dug, a skeleton with red shirt and white short this appeal. aTADcH

It was held that in the absence of a showing that accused were engaged in rebellion, the crime of kidnapping with murder must be treated separately; that the totality of the circumstantial evidence taken together constitute one unbroken chain leading to the fair and reasonable conclusion that appellants, to the exclusion of others, are responsible for the victim's death; that alibi is unavailing in the face of positive identification; and that in the absence of evidence on how the killing was executed, the crime committed is only homicide, not murder. AIDTSE

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; IN THE ABSENCE OF EVIDENCE THAT ACCUSED WAS ENGAGED IN REBELLION, COMMISSION OF OTHER CRIMES TREATED SEPARATELY. — Oliva's contention that he should have been charged with and tried for rebellion lacks factual and legal basis, hence, bereft of merit. True, one can be convicted only of rebellion where the murders, robberies and kidnapping were committed as a means to or furtherance of rebellion. Corollarily, offenses which were not committed in furtherance of the rebellion, but for personal reasons or other motives, are to be punished separately even if committed simultaneously with the rebellious acts. In the instant case, there was no evidence at all to show that the killing of Jacinto Magbojos, Jr. was in connection with or in furtherance of their rebellious act. Besides, it was not indubitably proved that Oliva was indeed a member of the New People's Army.

2. ID.; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; REQUISITES TO SUSTAIN CONVICTION. — It is settled that conviction may be based on circumstantial evidence provided that the following requisites must concur: (a) there is more that one circumstance: (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Circumstantial evidence is of a nature identically the same with direct evidence. It is equally direct evidence of minor facts of such a nature that the mind is led intuitively or by a conscious process of reasoning of the conviction that from them some other fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct. In either case, what is required is that there be proof beyond reasonable doubt that the crime was committed and that the accused committed the crime. Concededly, there were no eyewitnesses who testified regarding the actual killing of the victim. Nonetheless, the abovecited circumstances taken together constitute in our view one unbroken chain leading to the fair and reasonable conclusion that appellants, to the exclusion of others, are responsible for the victim's death. cITaCS

3. ID.; ID.; PRESENTATION OF ITS WITNESSES, PREROGATIVE OF PROSECUTION. — Appellants also insist that the prosecution should have presented in court Levelito Tubieron who was allegedly the one tasked by the perpetrators to bury the body of the victim. In our view, this failure is not fatal to the case of the prosecution. The prosecution has discretion to determine whom it should present as its witness. AIaDcH

4. ID.; ID.; ALIBI; REQUISITE FOR DEFENSE TO PROSPER. — In order that alibi will 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 were somewhere else.

5. ID.; ID.; ID.; UNAVAILING WHERE ACCUSED ARE POSITIVELY IDENTIFIED. — Oliva and Salcedo were positively identified as among the perpetrators of the crime. Accordingly, their alibis must fail. HSEcTC

6. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; CONDITIONS. — To appreciate treachery, two conditions must be present, to wit: (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or consciously adopted. THIAaD

7. ID.; ID.; ID.; MUST BE PROVED AS KILLING ITSELF. — The settled rule is that treachery cannot be presumed but must be proved by clear and convincing evidence or as conclusively as the killing itself. In the case at bar, although the fact of death and the identity of the victim and the identity of the perpetrators were established, there is no proof at all on how the killing which the aggression commenced or how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated. DCcHIS

8. ID.; ID.; EVIDENT PREMEDITATION AND USE OF SUPERIOR STRENGTH; CANNOT BE APPRECIATED WHERE THERE IS NO EVIDENCE TO PROVE THE SAME. — Similarly, the circumstances of evident premeditation and use of superior strength alleged in the information cannot be appreciated as there is no evidence on record sufficient to prove the same. TAIaHE

9. ID.; HOMICIDE; KILLING WITHOUT ANY QUALIFYING CIRCUMSTANCE. — Since no qualifying circumstance was proved in this case, the crime committed is only homicide, not murder. HDCTAc

D E C I S I O N

QUISUMBING, J p:

On appeal is the decision rendered on June 17, 1992, by the Regional Trial Court of Masbate, Masbate, Branch 48, in Criminal Case No. 5132, finding appellants guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to solidarily pay the heirs of the victim P50,000 as civil indemnity.

On November 17, 1986, Assistant Provincial Fiscal Jesus Castillo filed an information for kidnapping which reads:

The undersigned 2nd Assistant Provincial Fiscal accuses Edgar Manlapaz (at large), Bogoy Seachon (at large), Metchel Ibaya (at large), Joel Cinco, Amy Inopia alias 'Ka Jinky' (at large), Alias Ka Ambot, Alias Ka Nelly, John Doe and Peter Doe of the crime of Kidnapping, committed as follows:

That on or about May 26, 1986, in the morning thereof, at barangay Mapeña, Municipality of Masbate, Province of Masbate, Philippines, within the jurisdiction of this court, the above-named accused confederating together and helping one another with the used of force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap, detain and keep one Jacinto Magbojos alias 'Dagoy' against the latter's will.

Contrary to law. 1

First to be arraigned was Joel Cinco who entered a plea of not guilty to the abovequoted charge. On March 31, 1987, upon motion of the prosecution and with consent of Cinco, the trial court ordered the provisional dismissal of the case. The case against the rest of the accused who were at large was ordered archived.

On October 21, 1988, the prosecution filed a motion to reinstate the case with motion to amend and admit amended information charging Oscar Oliva alias Ka Ambot as one of the co-accused in the kidnapping. 2 The trial court admitted the amended information. On February 1, 1989, Oscar Oliva was arraigned and entered a plea of not guilty.

On March 1, 1989, the remains of the victim were exhumed. On May 9, 1989, Assistant Provincial Prosecutor Juan Gallego filed a second motion to admit amended information, this time, charging the accused with kidnapping with murder. The trial court admitted the said information which reads:

The undersigned 4th Asst. Prov'l. Prosecutor accuses Oscar Oliva alias 'Ka Ambot', Edgar Manlapaz, Bocoy Seachon, Metchel Ibaya, Joel Cinco, Amy Inopia alias 'Ka Jinky', alias 'Ka Nelly', John Doe, and Peter Doe, 'Ka Yoli', 'Ka Gerson', Noli Salcedo alias 'Ka Tony', Bogoy Manlapaz, Virgilio Panguilinan alias 'Ka Ariel', 'Ka Riza', 'Ka Liza', of the crime of Kidnapping with Murder, committed as follows:

That on or about May 26, 1986, in the morning thereof, at Barangay Mapeña, Municipality of Masbate, Province of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together, confederating with and mutually helping one another with the use of force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap, detain and keep one Jacinto Magbojos alias 'Dagoy' against the latter's will, and with intent to kill, with treachery, evident premeditation and use of superior strength, did then and there willfully, unlawfully and feloniously took turns in stabbing and shooting the victim in the different parts of his body causing his instantaneous death.

CONTRARY TO LAW. 3

Upon arraignment, appellants Oliva and Salcedo, assisted by their respective counsel, entered a plea of not guilty to the charge. Thereafter, trial on the merits ensued. Subsequently, the trial court rendered judgment, convicting Oliva and Salcedo of murder but acquitting Joel Cinco of the offense charge, thus:

WHEREFORE, the Court finds the accused Oscar Oliva alias Ka Ambot and Noli Salcedo alias Ka Nelly GUILTY of the crime of murder established by proof beyond reasonable doubt and hereby sentences said accused both Oscar Oliva and Noli Salcedo the penalty of RECLUSION PERPETUA and to pay jointly and solidarily the amount of P50,000.00 to the heirs of the late Jacinto Magbojos, Jr. without subsidiary imprisonment in case of insolvency and to pay the costs.

WHEREFORE, the Court finds no sufficient evidence to warrant the conviction beyond reasonable doubt against accused Joel [C]inco and hereby renders a judgment of ACQUITTAL in favor of accused JOEL CINCO. His immediate release is hereby ordered unless he is legally detained for another distinct crime.

SO ORDERED. 4

The prosecution evidence, upon which the finding of guilt beyond reasonable doubt was based, is summarized by the trial court as follows:

. . . In the early morning of May 26, 1986, Jacinto Magbojos Jr. left their house to count coconuts at his father's coconut land uphill. At about 8:00 o'clock that same morning, Joel Cinco, Michell Ibaya both out-of-school youth came to the house of the latter. After being informed by one of the Magbojos children that Jacinto went uphill for an errand, Joel Cinco and his companions immediately left. At about 10:30 o'clock that morning, Jacinto Magbojos Jr. arrived home. At about that time, Mrs. Magbojos was cooking. Suddenly, four persons arrived and entered the house. A few minutes later, her husband Jacinto was hogtied by tying his hands at his back and Mr. Magbojos was told by the group to go out. The group with Jacinto Magbojos Jr. passed through the kitchen door while Mrs. Magbojos and the children passed the other door to the apple tree downstairs. The group took Jacinto Magbojos Jr. away and they walked towards the western direction. DACcIH

Earlier that day, Arturo Inopia, a farmer and also a resident of barangay Mapeña, Masbate, had visitors in his house at about 8:30 or 9:00 o'clock in the morning, namely: "Ka Ambot", who turned to be Oscar Oliva, "Ka Nelly" who was later identified as Noli Salcedo, "Ka Jinky" and Jun Pangilinan who were all in green (fatigue) uniforms and armed, and Bogoy Manlapaz and Joel Cinco - the latter two being unarmed and without uniforms. Arturo Inopia asked why they were in his house, and "Ka Ambot" replied that they have a mission to get Jacinto Magbojos Jr. After hearing the report of Jun de los Reyes, the group of "Ka Ambot" left for the barangay center of Mapeña, Masbate but only after "Ka Ambot" gave a stern warning to Arturo Inopia not to report to the police authorities, otherwise, he (Inopia) will be killed. Later, at about noon of that same day, May 26, 1986, he was informed by his brother-in-law, Julito Soler, that they got Dagoy Magbojos.

Elpidio Labajata, likewise a farmer, a resident of and a neighbor to Jacinto Magbojos Jr., that same morning of May 26, 1986, also went to the mountain to collect the corn he loaned to Jose Balatucan. In going to Balatucan's house, he passed by the residence of Arturo Inopia where he saw several persons, four of whom were in fatigue uniforms and carrying firearms. In the group were Jun Pan[g]ilinan, Joel Cinco, Oscar Oliva and Noli Salcedo. When he returned home that same day, he met six (6) persons, two of whom were Jacinto Magbojos Jr. and Julio (Bagoy) Seachon. He noticed that Jacinto Magbojos Jr. was hogtied by coralon ropes and appeared very weak and with abrasions on both sides of his face and can hardly talk. He recalled that at that time, Jacinto Magbojos Jr. was wearing white shorts with green linings and a red T-shirt. He was investigated by Oscar Oliva and he was asked where he resides and whether he knew Jacinto Magbojos Jr. When he answered affirmatively, he was also hogtied by Oscar Oliva. However, he pleaded for his life and fortunately, he was released but with the condition that he will leave Mapeña, Masbate.

Sometime in early 1989, Renato Magbojos, a policeman assigned to INP, Dimasalang, Masbate and an elder brother of Jacinto Magbojos Jr., met Levelito Tubieron, a resident of barangay Cancahurao, Baleno, Masbate, on board the "MV Misamis Occidental". Levelito Tubieron was bound for Manila and told Renato that he knew the place where his brother Jacinto Jr. was buried. Tubieron further told Renato Magbojos that he was present when Jacinto Jr. was buried because he was the one who was asked by the group of Oscar Oliva to accompany them to the burial site - in the land owned by Jeremias Bello at sitio Cabuluan, Barangay Cancahurao, Baleno, Masbate. On March 1, 1989, the remains of Jacinto Magbojos Jr. were exhumed from a shallow graveyard, a dry sand beside the hill at sitio Cabuluan. The digging itself of the grave was done by Levelito Tubieron, assisted by Tito Bello, PTA president, and witnessed by no less than Elena Bello, the acting barangay captain of Cancahurao, police officers led by Sgt. Gener Magbojos and Pat. Virgilio Cabuhat and some barangay residents. Recovered from the graveyard were human bones, a T-shirt, a pair of short pants, coralon rope, a brief and black rubber band. On the witness stand, these personal belongings were identified to be those worn by the victim Jacinto Magbojos Jr. on that fatal day of May 26, 1986 by no less than his (ex) wife, Erlinda Gonzaga. After they were examined by Dr. Emilio Quemi, the remains of the late Jacinto Magbojos Jr. were buried at the Masbate New Cemetery. 5

Appellant Oliva claimed that he had no participation in the commission of the crime. In summary, he testified that:

[He] has been in Manila since last week of December 1985. He boarded the ship from Masbate in the company of one Natividad Querbo, a resident of Nabangig, Palanas, Masbate, and went with her to Valenzuela, Bulacan. He stayed with Natividad Querbo in the house of the younger brother of the latter at Kinalagan, Valenzuela, Bulacan. After the EDSA revolution, he came home to Masbate and stayed in the third district as NPA commanding officer. Earlier, in 1982 or 1983, Oscar Oliva has been a territorial commander. In 1988, he was promoted and handled the so called REFO RECOM V organization tasked to unite Masbateños in the labor front, with the restaurant of Q-Mart, Makati and Manila as their centers of activities. This lasted for one (1) month. Later, Oscar Oliva was summoned by one Sotero Llamas to report to Bicol. He was reprimanded sometime in June 1986. In July 30, 1988, he surrendered to Lt. Colonel Pansepane of the 2nd Infantry Brigade, Philippine Army at Matacon, Polangui, Albay and thereafter stayed at Mahayahay, Talusan, Zamboanga del Sur where his wife has an elder sister. From there, they went to Manila, then Navotas. Oscar came back to Masbate to follow up his application papers for amnesty. During that period, he was granted by the Philippine Constabulary a safe conduct pass for one (1) month. While transacting with the local office of the Department of Social Welfare and Development, he was invited by the commanding officer of the PC-INP command through Lt. Poses. He reported to the PC camp and it was there where he was informed that a case has been filed against him. He was not, however, showed a copy of the warrant for his arrest. Oscar Oliva admitted on the witness stand that when he was promoted to the position of Intelligence Officer, his entire jurisdiction is the entire Masbate territory. It was during the ceasefire agreed by and between the government and the CPP-NPA insurgents that he was able to reach barangay Mapiña and to conduct "pulong-pulong". He likewise stated in open court that Levelito Tubieron is in the list of "shoot-to-kill" order, while Arturo Inopia is allegedly a member of the (dreaded) group called "Walang Patawad", having pretended as an NPA member for business extortion. 6

Appellant Salcedo also maintained his innocence. He gave his own version of the story as follows:

On May 26, 1986, he was in Metro Manila working as a furniture polisher in the shop owned by a certain Captain Condor. He left Masbate for Manila sometime in 1985, and returned to Masbate in 1987 to visit his parents, after which he again went to Manila. In 1988, he came home to Masbate, and engaged himself in farming at Lagta, Baleno. He said he had no knowledge of the incident involving Jacinto Magbojos Jr. and he does not know him, nor does he know Oscar Oliva neither Joel Cinco. He was apprehended on August 5, 1988 at the house of his cousin Arturo Sulat, neighbor of Ben Albao, likewise a cousin, at barangay Kinamaligan, Masbate, Masbate. On that day he was arrested, Noli Salcedo was on his way to Baleno. When he was already on board the police vehicle, he jumped out and attempted to escape from his captors. Unfortunately, he fell outbalanced and the police officers fired several shots at him and he was hit at the right foot and on the left thigh. He was brought to the Masbate Provincial Hospital where he was treated for about three (3) months. He stated that he has not gone to barangay Mapeña which is about five (5) kilometers away from Lagta, Baleno, and would take approximately five hours walking. 7

On the basis of the evidence presented by the prosecution, the court found Oliva and Salcedo guilty beyond reasonable doubt of murder, not kidnapping with murder. However, Joel Cinco was acquitted. Hence, insisting on their innocence, Oliva and Salcedo instantly appealed. 8

In his brief, Oliva raises the following errors allegedly committed by the trial court:

[I]

THE HONORABLE LOWER COURT COMMITTED A REVERSIBLE ERROR IN TRYING THE ACCUSED-APPELLANT OSCAR OLIVA OF THE CRIME OF KIDNAPPING WITH MURDER AND CONVICTING HIM OF MURDER, CONSIDERING ITS FULL KNOWLEDGE OF THE PROSECUTION AS WELL AS DEFENSE EVIDENCE THAT SAID OSCAR OLIVA IS A MEMBER OF THE COMMUNIST PARTY OF THE PHILIPPINES AND A COMMANDER OF THE NEW PEOPLES ARMY. GRANTING WITHOUT ADMITTING THAT HE CAN LAWFULLY BE PRESUMED AS THE KILLER OF THE VICTIM. ALTHOUGH THE SAME IS NOT ALLOWED BY THE CONSTITUTION AND THE RULES OF COURT AND JURISPRUDENCE, AND ABOVE ALL, NOT WARRANTED BY EVIDENCE, IF AT ALL HE SHOULD BE PROSECUTED FOR A CRIME, HE MAY BE SO PROSECUTED FOR THE CRIME OF REBELLION WHICH ABSORBS THE CRIME OF KIDNAPPING OR MURDER, HENCE, THE DECISION APPEALED FROM SHOULD BE SET ASIDE.

[II]

THAT GRANTING WITHOUT ADMITTING THAT THE ACCUSED-APPELLANT OSCAR OLIVA COULD BE SEPARATELY PROSECUTED FOR THE CRIME OF KIDNAPPING WITH MURDER WHICH CRIMES ARE ABSORBED BY THE CRIME OF REBELLION AND COMMITTED IN FURTHERANCE THEREOF, THE HONORABLE LOWER COURT COMMITTED A REVERSIBLE ERROR IN CONVICTING HIM OF THE CRIME OF MURDER BASED MERELY ON ALLEGED CIRCUMSTANTIAL EVIDENCE, AND WHICH, MISERABLY, DOES NOT PROVE BEYOND REASONABLE DOUBT THAT HE WAS THE ONE WHO KILLED THE VICTIM, SINCE THE ALLEGED WITNESS TO THE KILLING AND/OR BURIAL OF THE VICTIM IN THE ALLEGED PERSON OF LEVILITO TUBIERON WAS NEVER PRESENTED BY THE PROSECUTION TO TESTIFY IN COURT IN ORDER TO CONFIRM THE HEARSAY TESTIMONY OF PAT. RENATO MAGBOJOS. 9

For his part, Salcedo imputes only one error on the trial court, as follows:

THE COURT A QUO ERRED IN FINDING ACCUSED APPELLANT NOLI SALCEDO GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. 10

The issue for resolution is whether or not the trial court erred in giving credence to the prosecution evidence and convicting appellants for the crime of murder, then sentencing them to reclusion perpetua.

First, Oliva asserts that he should have been charged with rebellion instead of kidnapping with murder considering that he is a member of the Communist Party of the Philippines and a Commander of the New People's Army. He claims that the killing was committed in furtherance of rebellion, hence, it should be absorbed in rebellion.

Oliva's contention that he should have been charged with and tried for rebellion lacks factual and legal basis, hence, bereft of merit. True, one can be convicted only of rebellion where the murders, robberies and kidnapping were committed as a means to or furtherance of rebellion. Corollarily, offenses which were not committed in furtherance of the rebellion, but for personal reasons or other motives, are to be punished separately even if committed simultaneously with the rebellious acts. 11 In the instant case, there was no evidence at all to show that the killing of Jacinto Magbojos Jr. was in connection with or in furtherance of their rebellious act. Besides, it was not indubitably proved that Oliva was indeed a member of the New People's Army.

Second, Oliva contends that there are no sufficient circumstances to prove beyond reasonable doubt that he took part in the commission of the crime. He claims that it was not conclusively established that he is KaAmbot. 12

For his part, Salcedo contends the trial court erred in ruling that he was one of the perpetrators of the crime. 13

The foregoing contentions are related and so we shall discuss these together. DaECST

True, there is no direct evidence as to who actually killed the victim. Nevertheless, direct evidence of the commission of the crime is not the only matrix whereby the trial court may draw its conclusions and findings of guilt. It is settled that conviction may be based on circumstantial evidence provided that the following requisites must concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Circumstantial evidence is of a nature identically the same with direct evidence. It is equally direct evidence of minor facts of such a nature that the mind is led intuitively or by a conscious process of reasoning to the conviction that from them some other fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct. In either case, what is required is that there be proof beyond reasonable doubt that the crime was committed and that the accused committed the crime. 14

As noted by the trial court and the Solicitor General, the evidence is replete with details to prove the fact of death of the victim and to sustain the guilt of appellants. These are:

(1) Arturo Inopia declared that at about 8:30 A.M. on May 26, 1986, Ka Ambot, Ka Nelly, Ka Jinky, Jun Panguilinan, who were all armed, Bogoy Manlapaz and Joel Cinco dropped by at his house in Mapeña, Masbate and told him that they have a mission to get Jacinto Magbojos Jr.. He later identified Oliva and Salcedo as the same persons whom he knew as Ka Ambot and Ka Nelly respectively. 15

(2) Erlinda Gonzaga, the victim's wife, testified that at about 10:30 A.M. on that day, four persons with long firearms entered their house, hogtied her husband, and forcibly took away the latter. She also stated that at that time her husband was wearing white short pants with green lining and red Adidas t-shirt. 16

(3) Elpidio Labajata testified that while he was on his way to the mountain in the morning of the same day, he saw Oliva, Salcedo, Jun Panguilinan, Joel Cinco and two others in the house of Inopia. He also said that four of them had long guns. He also declared that when he returned home in the afternoon, he met the victim and Julio Seachon in the custody of Oliva, Salcedo and two other persons. He noticed that the victim was hogtied by coralon rope and appeared very weak and with abrasions on both sides of his face. He recalled that the victim was wearing red t-shirt and white short pants with green lining. 17

(4) The victim was never seen alive again.

(5) The red shirt and white short pants together with the skeleton recovered from the shallow grave in Baleno, Masbate are the same clothing worn by the victim on the day he was abducted. The victim's brother also identified the bracelet recovered from the grave as one belonging to the victim. 18 Also recovered was the rope used to hogtie the victim.

(6) Dr. Emilio Quemi, a government physician, issued a certificate of death attesting to the death of Jacinto Magbojos Jr. 19

Concededly, there were no eyewitnesses who testified regarding the actual killing of the victim. Nonetheless, the abovecited circumstances taken together constitute in our view one unbroken chain leading to the fair and reasonable conclusion that appellants, to the exclusion of others, are responsible for the victim's death.

Appellants' claim that their identities were not positively established are belied by the testimonies of witnesses. Inopia had seen Ka Ambot, Ka Nelly, Ka Jinky and Jun Panguilinan three times prior to the incident. He used to give them food and he also attended the pulong-pulong conducted by Ka Ambot. In fact, even Oliva admits that he knows Inopia as one of the members of the group called Walang Patawad. 20 Certainly, Inopia knows Ka Ambot and Ka Nelly although earlier he did not know their real names. For his part, Labajata had seen Ka Ambot and Ka Nelly on several occasions before the incident. He saw them again in the morning on the day of the incident at the house of Inopia. In the afternoon, he met them again and this time, the victim was in their custody. He was also investigated and then hogtied though later released by Ka Ambot after pleading for his life. 21 For sure, Labajata had gained familiarity with Ka Ambot and Ka Nelly, hence, recognition was facilitated.

Appellants also insist that the prosecution should have presented in court Levelito Tubieron who was allegedly the one tasked by the perpetrators to bury the body of the victim. In our view, this failure is not fatal to the case of the prosecution. The prosecution has discretion to determine whom it should present as its witness. Note that what Tubieron told Patrolman Renato Magbojos, the victim's brother, is the location where the victim was buried. Note further that the victim's remains were later dug up and recovered in said place. The fact of death and the identity of the victim were established by other duly proved circumstances.

Now, with regard to appellants' alibi. Oliva would like us to believe that he was in Metro Manila when the crime was committed. He said that he went there sometime in 1985 and returned to Masbate after the EDSA revolution. 22 Likewise, Salcedo claimed that from 1985 to 1987 he was in Metro Manila, working as a furniture polisher. He declared that he had no knowledge of the incident until he was apprehended. 23

In order that alibi will 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 were somewhere else. 24 This, appellants failed to show. As regards Oliva, his admission that he went back to Masbate after the EDSA revolution would not rule out his presence in the scene of the crime during its commission. Note that the EDSA revolution took place in the last week of February 1986. Hence, it was not impossible for him to be in the crime scene on May 26, 1986. With regard to Salcedo, aside from his own declaration that he was in Metro Manila at the time of the incident, no other evidence was presented to support his alibi. Besides, Oliva and Salcedo were positively identified as among the perpetrators of the crime. Accordingly, their alibis must fail.

However, we cannot agree with the finding of the trial court that the killing was qualified by treachery. To appreciate treachery, two conditions must be present, to wit: (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or consciously adopted. 25 The settled rule is that treachery cannot be presumed but must be proved by clear and convincing evidence or as conclusively as the killing itself. 26 In the case at bar, although the fact of death and the identity of the victim and the identity of the perpetrators were established, there is no proof at all on how the killing was done. Thus, absent any particulars as to the manner in which the aggression commenced or how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated. 27 Similarly, the circumstances of evident premeditation and use of superior strength alleged in the information cannot be appreciated as there is no evidence on record sufficient to prove the same.

To conclude, since no qualifying circumstance was proved in this case, the crime committed is only homicide, not murder. Under Article 249 of the Revised Penal Code, the applicable penalty for homicide is only reclusion temporal. As there were neither aggravating nor mitigating circumstances found by the trial court or shown after a review of the records, the penalty in this case shall be fixed in its medium period of reclusiontemporal, which ranges from a minimum of 14 years, 8 months and 1 day to a maximum of 17 years and 4 months. Further applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor as a minimum to reclusion temporal in its medium period as the maximum. The range of prision mayor is from 6 years and 1 day to 12 years. The span of reclusion temporal, medium, is from 14 years, 8 months and 1 day to 17 years and 4 months.

WHEREFORE, the assailed DECISION of the Regional Trial Court of Masbate, Masbate, Branch 48, in Criminal Case No. 5132, is hereby MODIFIED. Appellants Oscar Oliva and Noli Salcedo are hereby found GUILTY of HOMICIDE and sentenced to suffer a prison term of 10 years of the medium period of prision mayor, as minimum, to 15 years and 10 months and 1 day of the medium period of reclusion temporal, as maximum, with accessory penalties provided by law, to indemnify the heirs of the deceased Jacinto Magbojos Jr. in the amount of P50,000.00. and to pay the costs. SCHATc

SO ORDERED.

Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ ., concur.

 

Footnotes

1. Rollo, p. 3.

2. Records, pp. 54-57.

3. Rollo, p. 4.

4. Id. at 23.

5. Id. at 15-17.

6. Id. at 17-18.

7. Id. at 18.

8. Records, pp. 559-560.

9. Rollo, p. 49.

10. Id. at 77.

11. People vs. Fernando, 33 SCRA 149, 155-156 (1970).

12. Rollo, pp. 50-55.

13. Id. at 82.

14. People vs. Acuram, GR-117954, April 27, 2000, p. 7.

15. TSN, November 14, 1989, pp. 3-15.

16. TSN, October 26, 1989, pp. 15-24.

17. TSN, November 14, 1989, pp. 20-22.

18. TSN, October 26, 1989, p. 11.

19. RTC Records, p. 325.

20. TSN, February 13, 1991, p. 14.

21. TSN, November 14, 1989, p. 20.

22. TSN, February 13, 1991, p. 8.

23. TSN, February 14, 1991, p. 9.

24. People vs. Dinglasan, 267 SCRA 26, 43 (1997).

25. People vs. Azugue, 268 SCRA 711, 725 (1997).

26. People vs. Garma, 271 SCRA 517, 525 (1997).

27. People vs. Nalangan, 270 SCRA 234, 240 (1997).