SECOND DIVISION

[G.R. No. 102596. December 17, 1999.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICASIO

ENOJA @ "Nick", JOSE ENOJA @ "Moros", ANTONIO GALUPAR @
"Tony", RONNIE ENOJA @ "Bud-oy", and YOLLY ARMADA ,
accused-appellants.

The Solicitor General for plaintiff-appellee.

Sixto Dimaisip for accused-appellants.

Santos B. Aguadera for movant Genoveva Catilo.

SYNOPSIS

The five appellants here, all farmers and residents of Barangay Caraudan, Janiuay,
Iloilo, are related to each other. The victim, Siegfred G. Insular, was a suspected
commander of the "New People's Army" (NPA). The provincial fiscal filed an
information for murder against herein appellants and their three companions who
remained at-large. They were arraigned and entered pleas of not guilty. The trial
court rendered a decision finding appellants herein guilty as charged. The trial court
did not give credence to the claim of self-defense and found conspiracy in
committing the crime. The appellants filed this appeal before the Supreme Court. DIETcH

In this case, circumstances indubitably showed that appellants acted concertedly to

kill Siegfred. Here, the Supreme Court found that the trial court did not err in
finding that conspiracy was present in this case. Both the victim and the assailant
knew each other and the victim gave no provocation in the attack. Clearly the
qualifying circumstance was present in this case. The defense of alibi did not prosper
when the appellants failed to prove the physical impossibility of their presence at
the crime scene at the time of its commission. The decision of the Regional Trial
Court was affirmed with modification that the award of actual damages was
deleted.

SYLLABUS

1. CRIMINAL LAW; EXTINGUISHMENT OF CRIMINAL LIABILITY; DEATH; PRESENT

IN CASE AT BAR. — The records show that appellant Antonio Galupar died pending
appeal. Pursuant to our ruling in People v. Bayotas , 236 SCRA 239, the death of
appellant Galupar pending appeal extinguished his criminal liability as well as his
civil liability ex delicto in senso strictiore.

2. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL OF JUDGMENT; DEEMED

ABANDONED IN CASES WHERE APPELLANT ESCAPES OR REFUSES TO SURRENDER
TO PROPER AUTHORITY; CASE AT BAR. — Appellant Yolly Armada escaped from the
New Bilibid Prison on September 25, 1996. As a result, his appeal was dismissed and
the judgment against him became final and executory. Entry of judgment was
made on January 9, 1997. In the meantime, appellant Jose Enoja jumped bail,
which also resulted in the dismissal of his appeal. Judgment against him became
final and executory, and entry of judgment was made on March 21, 1997. An
appellant who escapes or refuses to surrender to the proper authorities is deemed to
have abandoned his appeal, hence, the judgment against him becomes final and
executory. EITcaD

3. CRIMINAL LAW; CONSPIRACY; PROOF OF AN AGREEMENT TO COMMIT THE

CRIME; NOT NECESSARY. — On the matter of conspiracy, the Court has consistently
held that conspiracy need not be shown by direct proof of an agreement by the
parties to commit the crime. The conduct of the malefactors before, during or after
the commission of the crime is sufficient to prove their conspiracy. Once proved, the
act of one becomes the act of all. All shall be answerable as co-principals regardless
of the extent or degree of their participation.

4. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NO STANDARD

BEHAVIORAL RESPONSE WHEN CONFRONTED BY A STRANGE, STARTLING OR
FRIGHTFUL EXPERIENCE. — Paterna's crying does not impair her credibility.
Witnesses of startling occurrences react differently depending upon their situation
and state of mind, and there is no standard form of human behavioral response
when one is confronted with a strange, startling or frightful experience. Her powers
of observation could even be heightened by the startling event to imprint the
details in her memory. The Court has gone over the records and find her testimony
clear, credible and consistent with the testimony of Salamanca.

5. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY; PRESENT WHEN

THE VICTIM GAVE NO PROVOCATION FOR THE ATTACK; CASE AT BAR. — There was
nothing in the behavior of Armada that could have forewarned the victim of an
impending danger. Both the victim and Armada knew each other. Armada even
acknowledged the greeting of the victim. The latter was walking along the ricefield
with his wife when he was suddenly gunned down by the appellants. The victim
gave no provocation for the attack. The essence of treachery is the sudden and
unexpected attack without the slightest provocation on the part of the person
attacked. Clearly, the qualifying circumstance of treachery is present in this case.

6. ID.; AGGRAVATING CIRCUMSTANCES; ABUSE OF SUPERIOR STRENGTH;

WHEN ABSORBED BY TREACHERY. — Considering the number of the armed
assailants against the lone unarmed victim, there was also abuse of superior
strength. Since treachery absorbs the aggravating circumstance of abuse of superior
strength this aggravating circumstance need not be appreciated separately.

7. ID.; IMPOSSIBLE CRIME; IRRECONCILABLE WITH ALIBI; CASE AT BAR. — As

an alternative defense, appellants present the theory that even assuming they
participated in the killing of Siegfred, they should only be held liable for the
commission of an impossible crime under Article 4, Par. 2 of the Revised Penal Code,
penalized under Article 59 thereof. Appellants theorize that the shots fired by
Armada already resulted in the death of the victim, and hence, their subsequent
shooting of the victim merely constitutes the impossible crime of killing an already
dead person. The proposition not only completely contradicts their defense of alibi
and denial, it is also speculative as to cause of death. The defense of impossible
crime is irreconcilable with alibi.

8. REMEDIAL LAW; EVIDENCE; ALIBI, AS A DEFENSE; PHYSICAL IMPOSSIBILITY

TO BE AT THE CRIME SCENE AT THE TIME OF THE COMMISSION MUST BE PROVED;
RATIONALE; NOT PRESENT IN CASE AT BAR. — For alibi to prosper as a defense, the
accused must show that he was so far away that he could not have been physically
present at the place of the crime, or its immediate vicinity at the time of its
commission and that his presence elsewhere renders it impossible for him to be the
guilty party. In this case, Nicasio admitted he was within the vicinity of the crime
but presented the lame excuse that he was inside Salamanca's rice mill at the time
of the shooting. His son, Arnold, corroborated this testimony. But it was put in doubt
by the testimony of Salamanca, who stated that no milling of palay in his ricemill
was going on at the time of the shooting. Alibi, especially when it is corroborated
mainly by relatives and friends of the accused, is held by this Court with extreme
suspicion for alibi is easy to fabricate and concoct.

9. ID.; ID.; ID.; CANNOT PREVAIL OVER THE CLEAR AND POSITIVE
IDENTIFICATION OF THE ACCUSED; CASE AT BAR. — Both Paterna and Salamanca
positively identified Nicasio Enoja as one of those who took part in the shooting
incident. Paterna categorically pointed to Ronnie Enoja as the person who shot her
husband in the right eye. Appellants could not attribute any motive against these
witnesses to falsely testify against them. In the light of positive identification by
witnesses who have no motive to falsely testify, the feeble defense of alibi cannot
prevail over the clear and positive identification of the accused as the perpetrators
of the crime.

10. CRIMINAL LAW; MURDER; IMPOSABLE PENALTY; CASE AT BAR. — At the

time of the commission of the crime, on July 2, 1987, the penalty for murder under
Article 248 of the Revised Penal Code was reclusion temporal in its maximum
period to death. There being no mitigating nor aggravating circumstance, with
respect to Nicasio Enoja's culpability, the trial court correctly imposed the penalty
for murder in its medium period, which is reclusion perpetua. With respect to
appellant Ronnie Enoja, who was born on February 21, 1970, and was below 18 at
the time of the commission of the crime, the trial court correctly appreciated the
privileged mitigating circumstance of minority. Thus, the penalty next lower in
degree was imposed on him in its proper period pursuant to Article 68, second
paragraph of the Revised Penal Code, which is prision mayor maximum to reclusion
temporal medium. Applying the Indeterminate Sentence Law, the maximum
penalty to be imposed upon appellant Ronnie Enoja shall be taken from the medium
period of the imposable penalty, which is reclusion temporal minimum or twelve
(12) years and one (1) day to fourteen (14) years and eight (8) months, while the
minimum shall be taken from the penalty next lower in degree, which is prision
correccional maximum to prision mayor medium or four (4) years and two (2)
months to ten (10) years. Consequently, the trial court correctly imposed upon
Ronnie Enoja the indeterminate sentence of six (6) years and one (1) day of prision
mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as
maximum. cIADTC

11. ID.; CIVIL INDEMNITY; ACTUAL DAMAGES; SHOULD BE DULY SUPPORTED BY

RECEIPTS; NOT PRESENT IN CASE AT BAR. — Pursuant to prevailing jurisprudence,
the award of P30,000.00 as indemnity should be increased to P50,000.00. However,
the award of actual damages in the amount of P19,000.00 should be deleted.
Credence can only be given to claims, which are duly supported by receipts. The
testimony alone of the widow, that her sister-in-law incurred about P20,000.00
expenses in connection with the death of the victim, is insufficient basis to award
actual damages.

DECISION

QUISUMBING, J : p

This is an appeal from the decision dated October 31, 1990, of the Regional Trial
Court, Iloilo City, Branch 26, in Criminal Case No. 31550, convicting accused-
appellants Nicasio Enoja @ "Nick", Jose Enoja @ "Moros", Antonio Galupar @ "Tony",
Ronnie Enoja @ Bud-oy", and Yolly Armada of the crime of murder, and sentencing
them as follows: cdrep

". . . Nicasio Enoja @ Nick, Jose Enoja @ "Moros", and Antonio Galupar alias
"Tony", each to suffer the penalty of reclusion perpetua; Yolly Armada to
suffer an indeterminate prison sentence ranging from ten (10) years and
one (1) day of prision mayor as minimum to eighteen (18) years, eight (8)
months and one (1) day reclusion temporal as maximum, and Ronnie Enoja
alias "Bud-oy" to suffer indeterminate prison sentence ranging from six (6)
years and one (1) day of prision mayor as minimum to twelve (12) years and
one (1) day of reclusion temporal as maximum and all the said accused, to
pay, jointly and severally, the heirs of the deceased Siegfred Insular the sum
of P30,000.00 for his death and P19,200.00 as actual damages representing
expenses, without subsidiary imprisonment in case of insolvency together
with all the accessory penalties provided for by law and to pay the costs." 1

The five appellants, all farmers and residents of Barangay Caraudan, Janiuay, Iloilo,
are related to each other. Jose Enoja @ "Moros", Ronnie Enoja @ "Bud-oy", and Yolly
Armada, are the brother, son and first cousin, respectively, of appellant Nicasio
Enoja, while Antonio Galupar is a "kumpadre." Three other accused, Joel Enoja @
"Mike", Melvin Castor, and Antonio Enoja, remain at-large.

The victim, Siegfred G. Insular, was a suspected commander of the "New People's
Army" (NPA). A day before the incident, the house of Romulo Enoja, brother of the
Enojas, was allegedly sprayed with bullets by the NPA, killing Romulo's daughter
and son. Before that, the house of Catelina Enoja, mother of the Enojas, at
Barangay Caraudan, was allegedly burned by the NPA.

The facts are not in dispute. In their consolidated brief, appellants adopted the
factual findings of the trial court, as follows: 2

". . . [I]n the afternoon of July 2, 1987, at around 4:30 o'clock, while Siegfred
Insular and his wife, Paterna, were on their way home from the market
walking along the ricefield at Barangay Caraudan, Janiuay, Iloilo, they saw
Yolly Armada with a long firearm in hand, walking on the other side of the
field towards the same direction where the couple were going.

Paterna did not at first recognize Yolly Armada as the man on the other side
of the ricefield, and so, she called the attention of her husband saying that
the man was carrying a firearm. Recognizing the man, however, Siegfred
told his wife: "never mind, he is Yolly Armada". The spouses Insular and Yolly
Armada continued walking until they met ways in front of the ricemill of
Teodoro Salamanca near the chapel. Siegfred greeted Armada by nodding
his head to which Armada responded by also nodding his head. Siegfred
then said "We will leave" but as he and his wife were about to proceed on
their way, Armada blocked the couple and pointed his firearm to Siegfred
with the barrel of the gun touching the left side of the body of the latter.
Suddenly, Armada fired his gun and as Siegfred turned his back to run,
Armada fired successive shots at him causing him to fall to the ground,
wounded.

Almost simultaneously, several armed men appeared and took turns in firing
at Siegfred. Among these armed men were Nicasio Enoja alias "Nick", Jose
Enoja alias "Moros", Antonio Galupar alias Tony," and Ronnie Enoja alias "Bud-
oy". The body of the victim jerked as the accused took turns in shooting
him.

After shooting Siegfred Insular, the accused turned to his wife, Paterna, and
attempted to shoot her but Paterna Insular hugged Teodoro Salamanca who
was then and there present, thus prompting the latter to shout to the
accused: "do not include the girl." The accused heeded the plea of Teodoro
Salamanca and refrained from shooting Paterna Insular.

Jose Enoja then turned to his brother Antonio Enoja and fired at the latter
hitting him on the thigh. Thereafter, Jose Enoja approached Siegfred Insular
who was then lying on the ground and placed the gun he used in shooting
his brother, Antonio, near the hand of Siegfred Insular. Then Jose Enoja
placed some live bullets into the pocket of Siegfred Insular. Jose Enoja called
for a hammock and, in no time at all, there was a hammock brought to the
place where Antonio Enoja was loaded and, thereafter, brought to the
hospital. The body of Siegfred Insular was, however, left lying on the ground
at the scene of the incident. LLpr

Nicasio Enoja announced that they would bring Paterna Insular and Teodoro
Salamanca to the ricefield where they would be made to spend the night but
Paterna pleaded to Nicasio Enoja to just bring them to the house of Patria
 Alcantara about five meters away from the scene of the incident. The
accused granted the request of Paterna and brought her and Teodoro
Salamanca to the house of Patria Alcantara where they were told to stay
with the warning not to get out or they would be shot. It was only the
following morning, after policemen and PC soldiers had arrived that Paterna
and Salamanca were able to go out of the house of Alcantara.

The shooting incident reached the police station of Janiuay, Iloilo upon the
report of one Alfredo Galupar, and so, a joint PC-INP team under P.C. Lt.
Pangina and police station commander, Sgt. Reynaldo Soroñgon went to
Barangay Caraudan and conducted investigation of the incident. That was
already around 8:00 o'clock in the morning of July 3, 1987. The policemen
were able to recover several empty shells of different caliber of firearms
from the crime scene. One short homemade firearm caliber .30, with one
empty shell inside the chamber was likewise found and recovered from the
ground near the left arm of the victim."

On March 11, 1988, Provincial Fiscal Vicente E. Aragona filed an Information 3 for
murder against appellants and their three companions who were still at-large. The
Information alleged:

"The undersigned Provincial Fiscal accuses NICASIO ENOJA alias "Nick", JOSE
ENOJA alias "Moros", ANTONIO GALUPAR alias "Tony", RONNIE ENOJA alias
"Bud-oy" and YOLLY ARMADA of the crime of Murder committed as follows:

That on or about July 2, 1987, in the Municipality of Janiuay, Province of Iloilo,

Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually helping one another
with JOEL ENOJA alias "Mike", MELVIN CASTOR and ANTONIO ENOJA, who
are still at large, armed with firearms and taking advantage of superior
strength to better realize their purpose, with treachery and evident
premeditation and with intent to kill, did then and there wilfully, unlawfully
and feloniously attack, assault and shoot one SIEGFRED INSULAR with said
weapon with which they were then provided, thereby inflicting upon the
latter gunshot wounds on the vital parts of his body which caused his death
thereafter.

CONTRARY TO LAW."

On August 5, 1988, appellants were arraigned and entered their respective pleas of
not guilty.

During trial, the prosecution presented the following witnesses: Teodoro Salamanca,
an eyewitness to the shooting; Paterna Insular, widow of Siegfred; Dr. Tito D.
Doromal, medico-legal officer who did the autopsy; Pfc. Juan O. Gañon, and Pfc.
Moises C. Reiteracion, Integrated National Police officers who responded to the
shooting incident.

Dr. Doromal testified that the victim suffered five (5) gunshot wounds in the head
and neck area, six (6) gunshot wounds in the thoraco-abdominal regions, and two
(2) gunshot wounds in the extremities. The cause of death was maceration of the
brain, secondary to gunshot wounds. 4

Pfc. Juan O. Gañon stated that he entered the incident in the police blotter. 5 Pfc.
Moises C. Reiteracion said he was part of the team which responded to the report of
the shooting incident. The team found the body of the victim still lying on the same
spot the following morning. They recovered empty shells of different calibers and a
homemade short firearm near the left arm of the victim. 6 Pfc. Reiteracion and two
companions brought the body of the victim to the funeral home. 7

For the defense, appellants presented Atty. David Tubongbanua, 4th Assistant
Provincial Prosecutor of Iloilo, who recommended the dismissal of the case but was
overturned by the Provincial Fiscal. Appellants themselves testified and, except for
Armada, interposed the defense of denial and alibi.

Appellant Armada pleaded self-defense in shooting Siegfred. He claimed that while

he was on his way from Barangay Quipot to Caraudan, to attend the wake of his
niece and nephew, he heard gunshots near the chapel. When he went to the place,
he saw Galupar lying wounded on the ground, shot by Siegfred. Siegfred then
attempted to shoot Armada, but the latter beat him to the draw. Armada fired
successive shots at Insular with his M-2 automatic carbine. He did not see Paterna in
the vicinity. After the shooting, Salamanca, Nicasio and Arnold came out of the rice
mill. Salamanca asked what happened and Armada answered that Siegfred shot
Antonio and so, he shot Siegfred. Armada then left and surrendered to the PC
station at Jibolo, Janiuay, Iloilo City. 8

The other appellants admitted being in the vicinity of the crime, but categorically
denied any participation in the shooting.

Nicasio claimed that he was with his son, Arnold, and Salamanca inside the latter's
ricemill, milling palay when the shooting occurred. 9 However, Salamanca testified
that at the time of the incident, there was no palay milling going on. 10

Ronnie testified that he was doing household chores in their house at Barangay
Caraudan, where his brother Rowel and sister Annelyn were lying in state, when he
heard explosions coming from the direction of the ricemill. 11 Shortly thereafter,
Arnold arrived and told them that Antonio was shot by Siegfred and requested that
a hammock be brought to the scene so that Antonio could be brought to the
hospital. Ronnie, Jose, and Jonathan Lazo, Ronnie's first cousin. immediately
brought the hammock to the scene of the incident. 12 Ronnie thereafter saw
Paterna arrive and cry upon seeing her slain husband. Ronnie and his companions
placed Antonio in the hammock, boarded him in a tricycle, and rushed him to the
hospital. 13 On the way, Ronnie heard explosions and when he looked back, he saw
his uncle Joel Enoja alias "Mike" and his friend, Melvin, shooting the prostrate body
of Siegfred. 14

Jose testified that he was at his house, about 300 meters from the scene of the
crime. He was weeding in his yard when he heard gunfire. After a short while,
Arnold arrived and asked him to bring a hammock to the scene of the incident. 15

Galupar related that he had just finished plowing his farm and was resting in his
house in Barangay Caraudan when he heard explosions. He remained at home the
whole night and only learned of the death of Siegfred the following morning. He
claimed that he was implicated in the case because he refused to act as witness for
the prosecution. 16

On October 31, 1990, the trial court rendered a decision 17 finding appellants guilty
as charged. The trial court did not give credence to Armada's claim of self-defense
inasmuch as policemen recovered several empty bullet shells from firearms of
different calibers at the scene of the crime. The short homemade firearm found near
the left arm of the victim could not have been used by the victim since it only had
one empty shell in its chamber, not to mention that the victim was right-handed.
Lastly, the trial court found it highly suspicious that Antonio, who was allegedly shot
by the victim and who could have corroborated Armada's story of self-defense, went
into hiding and had not surfaced up to the present. cdll

In this appeal, in their joint brief, 18 appellants raise the following errors:

I. THE LOWER COURT ERRED IN FINDING CONSPIRACY;

II. THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS

GUILTY;

III. ASSUMING THEM GUILTY, THE LOWER COURT ERRED, EXCEPT FOR
APPELLANT YOLLY ARMADA, IN NOT FINDING THAT THE OFFENSE
COMMITTED WAS ONLY AN IMPOSSIBLE CRIME.

The records show that appellant Antonio Galupar died pending appeal. Pursuant to
our ruling in People v . Bayotas, 236 SCRA 239, the death of appellant Galupar
pending appeal extinguished his criminal liability as well as his civil liability ex
delicto in senso strictiore.

Appellant Yolly Armada escaped from the New Bilibid Prison on September 25,
1996. 19 As a result, his appeal was dismissed and the judgment against him
became final and executory. Entry of judgment was made on January 9, 1997. 20

In the meantime, appellant Jose Enoja jumped bail, which also resulted in the
dismissal of his appeal. Judgment against him became final and executory, and
entry of judgment was made on March 21, 1997. 21 An appellant who escapes or
refuses to surrender to the proper authorities is deemed to have abandoned his
appeal, 22 hence, the judgment against him becomes a final and executory.
Nonetheless, the appeal proceeds as to the remaining appellants, Nicasio Enoja and
Ronnie Enoja, who are now detained at the New Bilibid Prison, Muntinlupa City. Our
present review, therefore, concerns only these two appellants.

Appellants assail the trial court's finding of conspiracy by pointing out alleged
inconsistencies in the testimonies of the prosecution witnesses Salamanca and
Paterna. Appellants contend that while Salamanca testified that it was only after
Armada shot the victim that the other appellants came "one after the other" and
fired at the victim, Paterna testified that appellants fired successive shots at the
victim, implying that all appellants were already in the crime scene when Armada
fired at Siegfred. However, close perusal of the pertinent transcript of stenographic
notes (TSN) shows no inconsistencies in the two testimonies. Paterna actually
testified that after Armada fired at her husband, the other appellants arrived one
after the other ("nag-arabot abot"), 23 and continued to fire at the prostrate body of
her husband. The two testimonies constitute cumulative evidence on who
participated in the shooting of Siegfred. Both witnesses pointed to all five accused-
appellants.

On the matter of conspiracy, we have consistently held that conspiracy need not be
shown by direct proof of an agreement by the parties to commit the crime. The
conduct of the malefactors before, during or after the commission of the crime is
sufficient to prove their conspiracy. Once proved, the act of one becomes the act of
all. All shall be answerable as co-principals regardless of the extent or degree of their
participation. 24 In this case, circumstances indubitably show that appellants acted
concertedly to kill Siegfred. First, after appellant Armada fired at the victim
incapacitating the latter, the other accused arrived "almost simultaneously" and
took turns in shooting the victim. The successive shots riddled the victim's body
with bullets. Several empty cartridges from guns of different calibers found in the
scene and the numerous wounds of the victim indicate plurality of assailants. 25
Second, appellant Jose Enoja thereafter fired a shot at the thigh of his brother
Antonio to make it appear that the shooting was in self-defense. Third, Jose planted
a short firearm near the body of the victim and placed bullets in the pocket of the
victim. Fourth, strangely after Antonio was brought to the hospital, he conveniently
disappeared and could no longer be located by the authorities. The aforementioned
acts of the appellants clearly point to their common purpose, concert of action, and
community of interest. 26

Appellants suggest that since Paterna was crying at the time of the shooting, she
could not have clearly witnessed the commission of the crime. This contention is
disingenuous, to say the least. Paterna's crying does not impair her credibility.
Witnesses of startling occurrences react differently depending upon their situation
and state of mind, and there is no standard form of human behavioral response
when one is confronted with a strange, startling or frightful experience. 27 Her
powers of observation could even be heightened by the startling event to imprint
the details in her memory. We have gone over the records and find her testimony
clear, credible and consistent with the testimony of Salamanca.

Appellants further insist that the trial court erred in finding that treachery
accompanied the killing, considering that the victim was already forewarned of the
impending danger when he saw appellant Armada carrying a firearm. Appellants
contend that for treachery to exist, the offended party is completely denied of the
opportunity to defend himself, but it is not so in this case.

As the Solicitor General correctly pointed out, there was nothing in the behavior of
Armada that could have forewarned the victim of an impending danger. Both the
victim and Armada knew each other. Armada even acknowledged the greeting of
the victim. The latter was walking along the ricefield with his wife 28 when he was
suddenly gunned down by the appellants. The victim gave no provocation for the
attack. The essence of treachery is the sudden and unexpected attack without the
slightest provocation on the part of the person attacked. 29 Clearly, the qualifying
circumstance of treachery is present in this case.

Considering the number of the armed assailants against the lone unarmed victim,
there was also abuse of superior strength. Since treachery absorbs the aggravating
circumstance of abuse of superior strength this aggravating circumstance need not
be appreciated separately. 30

As an alternative defense, appellants present the theory that even assuming they
participated in the killing of Siegfred, they should only be held liable for the
commission of an impossible crime under Article 4, Par. 2 of the Revised Penal Code,
penalized under Article 59 thereof. 31 Appellants theorize that the shots fired by
Armada already resulted in the death of the victim, and hence, their subsequent
shooting of the victim merely constitutes the impossible crime of killing an already
dead person. The proposition not only completely contradicts their defense of alibi
and denial, it is also speculative as to cause of death. The defense of impossible
crime is irreconcilable with alibi.

Appellants Nicasio and Ronnie Enoja claim that they were elsewhere during the
offense. For alibi to prosper as a defense, the accused must show that he was so far
away that he could not have been physically present at the place of the crime, or its
immediate vicinity at the time of its commission 32 and that his presence elsewhere
renders it impossible for him to be the guilty party. 33 In this case, Nicasio admitted
he was within the vicinity of the crime but presented the lame excuse that he was
inside Salamanca's rice mill at the time of the shooting. His son, Arnold,
corroborated this testimony. But it was put in doubt by the testimony of Salamanca,
who stated that no milling of palay in his ricemill was going on at the time of the
shooting. Alibi, especially when it is corroborated mainly by relatives and friends of
the accused, is held by this Court with extreme suspicion for alibi is easy to fabricate
and concoct. 34

Both Paterna and Salamanca positively identified Nicasio Enoja as one of those who
took part in the shooting incident. Paterna categorically pointed to Ronnie Enoja as
the person who shot her husband in the right eye. 35 Appellants could not attribute
any motive against these witnesses to falsely testify against them. In the light of
positive identification by witnesses who have no motive to falsely testify, the feeble
defense of alibi cannot prevail over the clear and positive identification of the
accused as the perpetrators of the crime. 36

At the time of the commission of the crime, on July 2, 1987, the penalty for murder
under Article 248 of the Revised Penal Code was reclusion temporal in its maximum
period to death. 37

There being no mitigating nor aggravating circumstance, with respect to Nicasio

Enoja's culpability, the trial court correctly imposed the penalty for murder in its
medium period, 38 which is reclusion perpetua.

With respect to appellant Ronnie Enoja, who was born on February 21, 1970, and
was below 18 at the time of the commission of the crime, the trial court correctly
appreciated the privileged mitigating circumstance of minority. Thus, the penalty
next lower in degree was imposed on him in its proper period pursuant to Article 68,
second paragraph of the Revised Penal Code, which is prision mayor maximum to
reclusion temporal medium. Applying the Indeterminate Sentence Law, the
maximum penalty to be imposed upon appellant Ronnie Enoja shall be taken from
the medium period of the imposable penalty, which is reclusion temporal minimum
or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months,
while the minimum shall be taken from the penalty next lower in degree, which is
prision correccional maximum to prision mayor medium or four (4) years and two
(2) months to ten (10) years. Consequently, the trial court correctly imposed upon
Ronnie Enoja the indeterminate sentence of six (6) years and one (1) day of prision
mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as
maximum. prLL

Pursuant to prevailing jurisprudence, the award of P30,000.00 as indemnity should

be increased to P50,000.00. However, the award of actual damages in the amount
of P19,000.00 should be deleted. Credence can only be given to claims, which are
duly supported by receipts. 39 The testimony alone of the widow, that her sister-in-
law incurred about P20,000.00 expenses in connection with the death of the victim,
is insufficient basis to award actual damages.

WHEREFORE, the decision of the Regional Trial Court of Iloilo City, Branch 26, in
Criminal Case No. 31550, convicting accused-appellants Nicasio Enoja @ " Nick" and
Ronnie Enoja @ "Bud-oy" of the crime of Murder is hereby AFFIRMED, with the
MODIFICATION that accused-appellants are ordered to pay the heirs of the victim,
jointly and severally, the amount of P50,000.00 as indemnity. The award of
P19,200.00 as actual damages is deleted. Costs against appellants.

SO ORDERED. cdasia

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

Footnotes

1. Rollo, p. 81.

2. Id. at 48-49.

3. Records, p. 1.

4. TSN, January 9, 1989, p. 3.

5. TSN, July 3, 1989, pp. 3-4.

6. Id. at 5-8.

7. Id. at 11.

8. TSN, July 18, 1990, pp. 4-10.

9. TSN, November 22, 1989, pp. 3-7; TSN, December 15, 1989, pp. 5-6.

10. TSN, October 19, 1988, pp. 24-25.

11. TSN, November 22, 1989, pp. 27-28.

12. Id. at 29-30.

13. Id. at 31.

14. Id. at 33.

15. TSN, February 9, 1990, pp. 3-5.

16. TSN, June 20, 1990, pp. 10-12.

17. Records, pp. 225-237.

18. Rollo, p. 47.

19. Letter dated October 17, 1996 from Action Officer Homobono Lachica, Jr., of the
Bureau of Corrections, Muntinlupa City, Rollo, p. 167.

20. Id. at 198.

21. Id. at 192.

22. People v . Quiritan, 197 SCRA 32, 35 (1991); People v . Codilla, 224 SCRA 104
(1993).

23. TSN, November 23, 1988, p. 14.

24. People v . Cantere, G.R. No. 127575, March 3, 1999, p. 12, citing People v .
Hayahay, 279 SCRA 567 (1997).

25. People v. Caritativo, 256 SCRA 1 (1996).

26. People v. Andres , G.R. No. 122735, September 25, 1998, p. 23.

27. People v. Matubis , G.R. No. 109774, March 27, 1998, p. 9, citing People v.
Paynor, 261 SCRA 615 (1996).

28. TSN, November 23, 1988, p. 7.

29. People v . Noay, G.R. No. 122102, September 25, 1998, p. 14; People v .
Cogonon, 262 SCRA 693 (1996).

30. People v. Gutierrez, Jr., G.R. No. 116281, February 8, 1999, p. 23.
31. Art. 4, No. 2 of the Revised Penal Code:

"Art. 4. Criminal liability. — Criminal liability shall be incurred: . . .

2. By any person performing an act which would be an offense against

persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means."

Art. 59. Penalty to be imposed in case of failure to commit the crime

because the means employed or the aims sought are impossible. — When the
person intending to commit an offense has already performed the acts for the
execution of the same but nevertheless the crime was not produced by reason
of the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are essentially
inadequate to produce the result desired by him, the court, having in mind the
social danger and the degree of criminality shown by the offender, shall impose
upon him the penalty of arresto mayor or a fine from 200 to 500 pesos."

32. People v. Cañete, G.R. No. 120495, March 19, 1998, pp. 10-11.

33. Id. at 10; People v. Villaruel , 261 SCRA 386, 396 (1996); People v. Acob , 246
SCRA 715, 723 (1995).

34. People v. Cantere, G.R. No. 127575, March 3, 1999, p. 10.

35. TSN, November 23, 1988, p. 16.

36. Id. at 11.

37. As amended by R.A. No. 7659, which took effect on December 31, 1993, murder
is now punishable with reclusion perpetua to death.

38. Article 64, Revised Penal Code.

39. People v. Guillermo, G.R. No. 113783, January 28, 1999, p. 17.