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THIRD DIVISION

[G.R. Nos. 112716-17.  December 16, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO S. HERBIAS alias “EDDIE” accused-appellant.

D E C I S I O N

BELLOSILLO, J.:

JEREMIAS SALADIO drove his PUJ-type jeepney at around 7:30 in the morning of 30 November 1992 towards Plastic City in Valenzuela where he worked.  Seated with him in front were his sister Amparo Saladio Labrador and his nephew Julie Capillo; at the back were some of their co-workers.  While cruising along Santiago Street Jeremias slackened his speed in front of the gate of Meyer Steel Pipe Corporation in Lingunan due to vicious potholes on the way.  As he slowed down, two men on board a motorcycle suddenly appeared on the left side of his jeepney and without any warning the man behind the driver of the motorcycle fired at Jeremias and hitting him several times.  Julie Capillo jumped out of the jeepney on the right followed by Jeremias’ sister Amparo.  Although already wounded.  Jeremias managed to leapfrog out of his vehicle and instinctively threw his lunch bag at his assailants.  Then he plunged himself at the driver of the motorcycle and pulled him down to the ground while the other assailant continuously fired at Jeremias until he ran out of bullets.  The assailants driver then hastily threw his gun to the triggerman who again turned to Jeremias to finish him off.  The duo thereafter nonchalantly boarded their motorcycle and drove away leaving behind Jeremias lying prostrate on the ground.  He sustained five (5) gunshot wounds:  on his forehead, at the back of his head, on his face, on his left arm and on his right buttocks.  The two head wounds were instantaneously fatal.[1] Amparo and Julie boarded the lifeless body of Jeremias in their jeepney.  It was at this juncture that they discovered that Edgardo Manansala, one of their co-workers who was with them in their jeepney, was hit in the abdomen.

The ghastly killing was reported to the police and Eduardo Herbias was subsequently apprehended while the motorcycle used in the perpetration of the crime was impounded.  Eduardo Herbias was later identified in a police lineup by Amparo Labrador and Julie Capillo as the driver of the motorcycle.

On 16 November 1992 Eduardo Herbias y Sellote alias “Eddie” together with a certain “John Doe” was charged with murder[2] and frustrated murder[3] before the Regional Trial Court of Valenzuela, Metro Manila.  On 28 September 1993 the trial court found the accused Herbias “guilty beyond reasonable doubt of the crime of Murder in Crim. Case No. 1927-V-92 and hereby sentences him to suffer the penalty of reclusion temporal in its maximum period to reclusion perpetua and to indemnify the heirs of the victim Jeremias Saladio the amount of P50,000.00 x x x x”  The court likewise found the same accused “guilty beyond reasonable doubt of the crime of frustrated murder and hereby sentences him to suffer the penalty of reclusion temporal in its maximum period.”[4]

Appellant Herbias now seeks the reversal of his conviction and claims that the testimonies of the prosecution witnesses are full of inconsistencies and contrary to human experience hence unworthy of credence and belief.

Jurisprudence is settled that findings of fact of the trial court command great weight and respect unless patent inconsistencies are ignored or where the conclusions reached are clearly unsupported by evidence.[5] But these exceptions are unavailing.  The imputed inconsistencies in the testimonies of the prosecution witnesses refer only to minor details which reinforce, rather than weaken, their credibility as they erase any suspicion of a rehearsed testimony.  In People v. Ramos[6] we ruled that the witnesses testifying on the same event do not have to be consistent in every detail as differences in recollection, viewpoint or impressions are inevitable.  Total recall or perfect harmony is not required.  As long as the witnesses concur on material points, slight differences in details do not reflect on the essential veracity of their testimonies.

Neither do we subscribe to appellant’s supposition that inconsistencies between the sworn statements of the witnesses executed before the police authorities and their testimonies in court are an indicium that they were lying.  Such inconsistencies, if indeed they are , do not necessarily destroy their credibility.  Sworn statements are often taken right after the harrowing event such that the witness has not yet regained sufficient composure to accurately recall every detail of the incident.  The affidavits executed before the police authorities cannot be expected to contain all the details of the occurrence.  Testimonies given in open court carry more weight, especially when the witness was made to withstand a protracted and grueling cross-examination.

Appellant postulates that it was not physically possible for Jeremias to plunge himself at the driver of the motorcycle after being wounded taking into consideration the testimony of the NBI Medico-Legal Officer that the gunshot wounds on the head sustained by the victim were instantaneously fatal.  The argument is baseless.  No determination was made as to which of the five (5) gunshot wounds was first inflicted.  There was no conclusive evidence to show that the first bullet which hit the victim immediately caused his death.  Of the five (5) wounds, two (2) were considered fatal.  We can only surmise at this point that the first bullet which hit the victim did not instantaneously cause his death thereby enabling him to run towards accused-appellant.

Accused-appellant likewise underscores the fact that there was no police lineup and that he was picked up without the benefit of a warrant of arrest.  For sure there is no law requiring a police lineup before a suspect can be identified as the culprit.  The fact that Amparo and Julie pointed to appellant Herbias as the one driving the motorcycle and who passed on his gun to his back rider after the latter had exhausted his bullets is more than sufficient identification.  Besides, it is too late for appellant to question any irregularity in his arrest.  He is deemed to have abandoned this right the moment he submitted himself upon arraignment to the jurisdiction of the court.  As we held in People v. Lozano[7] -

Accused-appellant Lozano’s allegation in his first assigned error that the trial court did not acquire jurisdiction in trying his case and that decision rendered by him (sic) should be declared null and void, does not merit any consideration.

The record shows that the issue of jurisdiction in the trial court was not raised by the accused-appellant Lozano, so much so that if the issue be raised at this point in time it would be useless and futile because the question of jurisdiction over the person which was not raised in the trial court cannot be raised on appeal.  (Vda. De Alberto v. Court of Appeals, 173 SCRA 436 [1989]).

Besides, a party is estopped from assailing the jurisdiction of a court a quo after voluntarily submitting himself to its jurisdiction.  (Tejones v. Geronella, 159 SCRA 100 [1988]).  Accused-appellant Lozano’s appearance in the arraignment and pleading not guilty to the crime charged, is a sign that he voluntarily submitted himself to the jurisdiction of the court, so that jurisdiction has been acquired by the court over his person and continues until the termination of his case.

Lastly, appellant asserverates that the court below misapplied the doctrine that alibi is of no moment in the face of positive identification, taking into account the failure of the prosecution to discharge its burden of proving his guilt beyond reasonable doubt.  On the contrary, we find that the prosecution has proved his guilt beyond cavil.  His identification by the two (2) prosecution witnesses was never in doubt.  Amparo Labrador and Julie Capillo had no reason to lie nor to falsely testify against Herbias.  Hence, the defense of alibi crumbled under the sheer weight of the witnesses’ positive identification of the accused.

Conspiracy to kill Jeremias Saladio was adequately established.  There was unity of design and purpose as shown by the fact that appellant gave his gun to the other assailant when the latter ran out of bullets.  After the execution of their criminal act they left the crime scene together.  Consequently, although it was not appellant who actually shot the victim, he and his cohort are equally liable for the crime.  When there is conspiracy the act of one is the act of all.

Alevosia was properly appreciated by the lower court.  The means and methods employed in the cold-blooded killing tended directly and especially to insure its execution without risk from the defense which the victim might have made.  Assailants deliberately chose the spot near the gate of Meyer Steel Pipe Corporation to ensure the murder of their quarry as the vehicles passing thereby usually slowed down due to the vicious potholes on the road.  However, the aggravating circumstance of abuse of superior strength is deemed absorbed in treachery.[8]

The evidence on the existence of evident premeditation does not appear conclusive as it can only be presumed where conspiracy is directly established.  But when conspiracy is only implied, as in this case, evident premeditation may not be appreciated if there is no showing as to when the plan to kill the victim was hatched or how much time elapsed before it was carried out.[9] In the present case, conspiracy was not directly established.  It may only be inferred from the manner by which the two (2) malefactors executed their sinister design.  No evidence was presented to show how appellant and his cohort planned and prepared to slay their victim or when their plan was first conceived.[10] Thus in People v. Custodio[11] we declared –

Under normal conditions, where the act of conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time, and means of executing the crime, the existence of evident premeditation can be taken for granted.  In case before us, however, no such evidence exists; the conspiracy is merely inferred from the acts of the accused in the perpetration of the crime.  There is no proof how and when the plan to kill Melanio Balancio was hatched, or what time elapsed before it was carried out; we are therefore, unable to determine if appellants enjoyed sufficient time between its inception and its fulfillment dispassionately to consider and accept the consequences.  In other words, there is no showing of the opportunity for reflection and the persistence in the criminal intent that characterize the aggravating circumstance of evident premeditation.

The use of motor vehicle may likewise be considered as an aggravating circumstance that attended the commission of the crime.  The records show that assailants used a motorcycle in trailing and overtaking the jeepney driven by Saladio after which appellant's back rider mercilessly riddled with his bullets the body of Jeremias.  There is no doubt that the motorcycle was used as a means to commit crime and to facilitate their escape after they accomplished their mission.

Although use of motor vehicle was not alleged in the Information, it may still be considered as a generic aggravating circumstance once proved, as in this case.  In Unites States v. Campo[12] we held that although the information contains no allegation as to the fact that the commission of the crime charged was marked with one or more of these generic aggravating circumstances, nevertheless, that fact may be proved at the trial, and once proved, must be taken into consideration in imposing the penalty.

Article 248 of the Revised Penal Code prescribes the penalty of reclusion temporal in its maximum period to death for the crime of murder.  Although the attendant circumstances of treachery and evident premeditation were found by the lower court to exist, either one may be sufficient to qualify the crime to murder while the other may be treated as a generic aggravating circumstance.  It was error therefore for the court below to impose the penalty of “reclusion temporal to its maximum period to reclusion perpetua.”  It should have instead imposed a specific penalty, otherwise, there would have been difficulty in implementing the same.  However, based on the foregoing, and in view of the constitutional proscription, the trial court should have imposed properly the penalty of reclusion perpetua.

As regards the crime of frustrated murder in Crim. Case No. 1926-V-92, we do not find accused-appellant guilty.  The rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy.  For acts done outside the contemplation of the conspirators only the actual perpetrators are liable.[13] There is no proof that the assailants intended to kill or injure Edgardo Manansala.  The evidence only shows conspiracy to kill Jeremias and no one else.  Amparo Labrador and Julie Capillo, although in the line of fire, were deliberately left unharmed.  Both did not see who actually fired at Manansala who took cover inside the jeepney.  It was not even known that the assailants were aware of the presence of Manasala inside the vehicle because when the first shot was fired all the other passengers at the back of the jeepney appeared to have scampered away for safety.

In short, Manansala was just a star-crossed bystander who was accidentally hit in the process.  Herbias never even fired a single shot.  His only participation was to drive their getaway vehicle and to lend his firearm to his back rider so that the latter could finish off Jeremias.  Absent any conspiracy to kill or injure Manansala, accused-appellant cannot be held liable for the crime of frustrated murder.  Consequently, only appellant’s companion should be held accountable for frustrated murder.  In People v. Cerna[14] we held –

However, appellant Sulpicio cannot be held liable for the killing of Casiano Cabizares, notwithstanding a conspiracy between him and Serapio Maquiling.  The conspiracy was to kill Rafael only and no one else.  Nothing was said or agreed upon about the members of Rafael’s family.  In fact, in executing their plan appellants let the two women inside Demetrio’s house leave unhurt and they did no harm to the remaining companions of Rafael in the house.  Their target was solely Rafael Cabizares.  And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy.  For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable.  Here, only Serapio killed Casiano Cabizares.  The latter was not even going to the aid of his father Rafael but was fleeing when shot.

In the instant case, the assailants focused their attack on Jeremias Saladio only.  Amparo Labrador and Julie Capillo were intentionally left unhurt.  Both did not even know how Manansala came to be wounded.  Thus accused-appellant is only liable for murder qualified by treachery.  Under Art. 248 of the Revised Penal Code, the imposable penalty is reclusion temporal in its maximum period to death.  In the case before us the proper imposable penalty is still reclusion perpetua despite the attendant generic aggravating circumstance of use of motor vehicle considering the constitutional proscription on the imposition of the death penalty when the crime was committed.

WHEREFORE, the decision appealed from is MODIFIED.  Accused-appellant EDUARDO HERBIAS y SELLOTE alias “Eddie” is found guilty of Murder and is sentenced to reclusion perpetua.  He is ordered to indemnify the heirs of Jeremias Saladio in the amount of P50,000.00, and to pay the cost.  Accused-appellant is however ACQUITTED of frustrated murder.

SO ORDERED.

Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.



[1] TSN, 12 April 1993, pp. 8-10.

[2] Docketed as Crim. Case No. 1927-V-92.

[3] Docketed as Crim. Case No. 1926-V-92.

[4] The trial court should have imposed specific penalties for “reclusion temporal in its maximum period to reclusion perpetua"”in Crim. Case No. 1927-V-92, and for "“reclusion temporal in its maximum period"”in Crim. Case No. 1926-V-92.  Note however that the penalties imposed by the lower court were still erroneous.  See Rollo, pp. 16-20.

[5] People v. Quinevista Jr., G.R. No.110808, 31 May 1995, 244 SCRA 586, citing People v. Gumahin., No. L-22357, 31 October 1967, 21 SCRA 729.

[6] G.R. No. 103631, 8 June 1993, 223 SCRA 298.

[7] G.R. No. 90801, 13 February 1992, 206 SCRA 234, citing Vda. De Alberto v. Court of Appeals, No. L-29759, 18 May 1989, 173 SCRA 436 and Tejones v. Gironella, No. L-35506, 21 March 1988, 159 SCRA 100.

[8] People v. Parangan, G.R. No. 99057, 22 April 1994, 231 SCRA 682.

[9] Reyes, Luis B., The Revised Penal Code, Bk. I, 13th ed., p. 391.

[10] People v. Apolonia, G.R. No. 111707, 4 August 1994, 235 SCRA 124, citing People v. Salvador, G.R. No. 101215, 30 July 1993, 224 SCRA 819; People v. Wenceslao, G.R. No. 95583, 12 August 1992, 212 SCRA 560; People v. Mallari, G.R. No. 94229, 21 August 1992, 212 SCRA 777; and, People v. Florida, G.R. No. 90254, 24 September 1992, 214 SCRA 227.

[11] 97 Phil. 698 (1955) and companion cases.

[12] 23 Phil. 373 (1912).

[13] People v. Cerna, No. L-20911, 30 October 1967, 21 SCRA 569.

[14] Id., p. 586.