329 Phil. 126
KAPUNAN, J.:
GUNSHOT WOUNDS;On July 5, 1989, an information for murder was filed against Bennie Sotes, Deogracias Ape alias "Joe Joe" and one alias "Buroburo" before the Regional Trial Court of San Carlos City, Negros Occidental, Branch 58. The indictment[8] reads:
1) Head - Entrance wound - nuchal area; Exit - none.
2) Lumbar area right - Entrance wound - right lateral flank;
Exit wound - lower back.
* Severing psoas muscles blood vessels and Lumbo-Sacral vertebra.
* Contusion-Hematoma:
1) Forehead
2) Epigastric area.[7]
That on or about the 19th day of May, 1989, in the municipality of Escalante, province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the first above-named accused, in company of his co-accused Joejoe Ape and another one, whose true name is still unknown and herein designated only as Alias "BUROBURO," both of whom are still at large, armed with M16 rifle, a single shot rifle with M16 ammunitions and a revolver, conspiring, confederating and mutually helping one another, with evident premeditation and treachery, taking advantage of their superior strength, with intent to kill, did then and there, wilfully, unlawfully and feloniously attack, assault, strike, hit and shoot one VICENTE LUMAYNO, SR., thereby inflicting multiple injuries upon the body of the latter, which caused the death of said victim.On arraignment held on August 9, 1989, accused Bennie Sotes entered a plea of "not guilty" to the offense charged.[10] Deogracias Ape, however, was arrested later on and was arraigned only on February 7, 1990. He, likewise, entered a plea of "not guilty."[11] "Buroburo" remains at large.
Contrary to law.[9]
WHEREFORE, FINDING the accused Deogracias Ape and Bennie Sotes, both GUILTY of the crime of Murder punished under Art. 248 of the Revised Penal Code, the Court hereby sentences them to LIFE IMPRISONMENT to indemnify the heirs of the deceased the sum of P30,000.00 and to pay costs of suit.Obviously aggrieved by the ruling, the accused interposed the present appeal predicated on this sole assignment of error, viz:
The .38 cal. revolver surrendered by accused Bennie Sotes to the INP, San Carlos City, is hereby confiscated as instrument of the crime and shall be disposed with in accordance with law.
SO ORDERED.[12]
THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANTS DEOGRACIAS APE AND BENNIE SOTES Y CUNAHAP GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.[13]We affirm the findings of the trial court and sustain the conviction of herein appellants.
The foregoing testimony of Flocerfida Sante was substantially corroborated by another eyewitness, Simplicio Abibas, who testified in this wise:
"x x x x x x xxx Q. On May 19, 1989, at 2:00 o'clock dawn, can you recall where were you? A. I was at the dance hall. Q. Where is this dance hall located? A. Sitio Lawis, Brgy. Alimango, Escalante, Negros Occidental. Q. Why did you go in that place? A. Because my daughter was one of the candidates for princessita. x x x x x x xxx Q. Could you tell us, more or less, what time in the evening did the coronation start? A. Twelve o'clock (12:00) in the evening. Q. Up to what time was the coronation finished? A. About 1:30. Q. After the coronation could you tell us if there was still a dance? A. Yes, sir. Q. At about 2:00 o'clock dawn of May 19, 1989, where were you? A. I was still there because we were watching the dance. Q. While you were watching the dance, could you recall of any unusual incident? A. Yes, Sir. Q. Will you please tell the Honorable Court what was the unusual incident about? A. I saw the 2 accused, Bennie Sotes and Buroburo who entered the dance hall and mauled Virgilio Lumayno, Sr., while Joejoe Ape was already at the gate when the 2 accused entered the dance hall. xxx xxx xxx Q. Will you please demonstrate to us, how Bennie Sotes mauled Virgilio Lumayno Sr.? A. Witness is demonstrating to us, how Bennie Sotes whipped the barrel of the armalite to Virgilio Lumayno, Sr., and Buroburo struck Virgilio Lumayno, Sr., with the barrel of his gun. xxx xxx xxx Q. In the course of the mauling, what did Virgilio Lumayno, Sr., do when being mauled by the 2 accused? A. He attempted to run but he was shot by Buroburo at the back of his waistline. xxx xxx xxx Q. What happened to Virgilio Lumayno, Sr.? A. He fell down and when he was on the ground he was shot again and was hit at the buttocks. Q. Who fired the second shot? A. Buroburo. Q. After he was hit by Buroburo, what did Virgilio Lumayno, Sr. do? A. Bennie Sotes fired his armalite to Virgilio, but it stucked up so he got his gun from his waist and shot Virgilio which was hit at the upper right side of his nape. xxx xxx xxx Q. Could you tell us where is this Virgilio Lumayno, Sr. now? A. Already dead. Q. Could you tell us, if you know, what was the cause of his death? A. Gunshot wounds. xxx xxx xxx Q. Is it not that when the melee begun, the people scampered? A. The people ran away. Q. When these people ran away, you were also one of them who ran away in this incident? Is it not? A. I was not able to run because my daughter was there and carrying a bag so I have to stay.[15]
The Court entertains no doubt that the two eyewitnesses actually saw how Lumayno, Sr. was slain and who performed the deed. Though there is no proof of a previous agreement by the three assailants to commit the crime, conspiracy is evident from the manner of its perpetration. It is a settled rule that conspiracy need not be proved by direct evidence of prior agreement on the commission of the crime as the same can be inferred from the conduct of the accused before, during, and after commission of the crime, showing that they acted in unison with each other, evincing a common purpose or design.[17]
Q.Could you recall as to where were you in the evening of May 18, 1989? A. Yes, sir. Q. Where were you in the evening of May 18, 1989? A. I was there at about 9:00 o'clock. Q. You said, "I was there". Where? A. At the dance hall. Q. Where is that dance hall situated? A. Sitio Lawis, Brgy. Alimango, Escalante, Negros Occidental. Q. What was your purpose in going to the dance hall? A. I was there because my grandson was one of the escort of the princessitas. xxx xxx xxx Q. While at the dance hall, you said you went there. What time? A. About 9:00 o'clock after supper. Q. When you were there, did you have any chance to see or meet the accused, Deogracias Ape alias Joejoe? A. Yes, sir. Q. What was he doing when you first saw him? A. He was doing foolishness at the dance hall. Q. What was he doing? A. He was holding a revolver and brandishing it. Q. x x x, what happened while Deogracias Ape alias Joejoe was brandishing his revolver? A.Virgilio Lumayno, Sr., advised him to stop. Q. After that what happened next? A. He grumbled. Q. Where did he go? A. I don't know. xxx xxx xxx Q. Were there no policemen at that time? A. No, sir. Q. Were there unusual incident that happened after the barangay captain went home (after the coronation)? A. Yes, Bennie Sotes, Joejoe Ape and Buroburo went to the dance hall. Q. When you said Joejoe Ape, Bennie Sotes and Buroburo, you mean the 3 accused in this case? A. Yes, sir. Q. When you entered the dance hall, what did you see on these 3 accused, Bennie Sotes, Joejoe Ape and Buroburo? A. They went inside the dance hall with firearms. Q. When you said, "they went inside the dance hall carrying firearms", do you know the firearms they were carrying? A. Yes, sir. Q. What was the firearm of Bennie Sotes? A. Armalite. Q. How about Deogracias Ape, what was he carrying? A. A revolver. Q. How about the accused Buroburo? A. Witness is demonstrating the firearm Buroburo is carrying which is more or less 2-1/2 feet in length. Q. When these 3 accused entered the dance hall, could you tell us, where did Deogracias Ape station himself? A. Deogracias Ape stayed at the gate of the dance hall. Q. What was his weapon? A. A revolver. Q. How about Bennie Sotes? A. An armalite. Q. How about Buroburo? A. He was bringing along with him a long arm which is about 2 1/2 feet. Q. When Bennie Sotes and Joejoe Ape entered the dance hall, what transpired? A. They went to Virgilio Lumayno, Sr., and mauled him. Q. What did they use in mauling Virgilio Lumayno, Sr.? A. The barrel of the firearm. Q. Was Virgilio Lumayno, Sr., provided with weapon at that time? A. No, he has no gun. Q. x x x, in the course of mauling Virgilio Lumayno, Sr., what did you witness? A. What I saw with Joejoe Ape was a revolver. Q. x x x, what did Virgilio Lumayno, Sr., do when the accused Bennie Sotes and Buroburo mauled him because according to you, he was not provided with weapon at that time? A. He tried to defend himself with his hands up. Q. What else happened? A. Buroburo thrust the barrel of his gun and at the same time pulling the trigger. Q. Did the gun fire? A. Yes, sir. Q. Was Virgilio Lumayno, Sr., hit when the gun fired? A. Yes, he was hit at the back. Q. After Virgilio Lumayno, Sr., was hit at the back, what happened to Virgilio Lumayno, Sr.? A. Virgilio Lumayno, Sr., fell on the ground. Q. When he fell to the ground, what happened? A. He was shot again and was hit at the buttocks. Q. After Buroburo shot Virgilio Lumayno, Sr., and was hit at the buttocks, what did Virgilio Lumayno, Sr., do? A. Virgilio Lumayno, Sr., tried to get up but Bennie Sotes got his revolver and fired him at the head. Q.Was Virgilio Lumayno, Sr., hit? A. Yes, sir. Q. In what portion of his body was he hit? A. He was hit at the back portion of his head. Q. What happened to Virgilio Lumayno, Sr., when he was shot by Buroburo and was fired again by Bennie Sotes? A. He died. Q. While Bennie Sotes and Buroburo were mauling Virgilio Lumayno, Sr., and ultimately fired shots, where was Joejoe Ape? A. He was near them, and was preparing for a fire to anybody who will get near them. Q.How do you know that Joejoe Ape would fire a shot to anybody who will get near them? A. Because he shouted, "Don't intervene, anybody who is not involved." Q. Who shouted, "don't intervene, anybody who is not involved?" A. Joejoe Ape.[16]