FACTS:

The case involves the death of Jeonito Araque and the injuries sustained by Marlon Araque during an assault. The accused, Agapito Listerio and Samson dela Torre, were charged with Murder and Frustrated Murder. Listerio pleaded not guilty while dela Torre escaped and was not tried. The trial proceeded and Listerio was found guilty, sentenced to reclusion perpetua for the murder and an additional term for the attempted murder. Listerio appealed, arguing that his guilt was not proven beyond reasonable doubt and that there was no proof of conspiracy and treachery. The prosecution presented testimonies that Listerio and his co-accused attacked the Araque brothers with weapons, resulting in Jeonito's death and Marlon's injuries. Marlon testified and identified Listerio as one of the assailants. The trial court found Marlon's testimony credible and convicted Listerio based on it. Listerio disputes the sufficiency of Marlon's testimony to establish guilt. Marlon narrated that he and his brother were attacked by Listerio, dela Torre, and others, sustaining injuries and witnessing his brother's death. Marlon denied defense's claim of provocation prior to the incident.

ISSUES:

1. Whether accused-appellant is liable for the crime of murder based on conspiracy.

2. Whether the aggravating circumstance of abuse of superior strength is present.

3. Whether the defense of alibi is valid and sufficient to warrant acquittal.

4. Whether accused-appellant should be convicted for frustrated homicide or attempted homicide in Criminal Case No. 91-5843.

5. Whether the crime committed is an attempted or frustrated felony.

6. Whether the intent to kill is evident in the acts of the offenders.

7. What is the proper penalty for the frustrated felony?

8. Whether the awards made by the trial court for the civil aspect of the case are proper.

9. Whether the award for moral damages for the pain and sorrow suffered by the victim's family in connection with his untimely death should be affirmed.

10. Whether the award for exemplary damages should be affirmed.

11. Whether the claim for loss of income or earning capacity of the deceased should be granted.

12. Whether the award for moral damages for Marlon Araque should be affirmed.

13. Whether the award for exemplary damages for Marlon Araque should be retained.

14. Whether accused Samson dela Torre should be convicted despite not being included in the trial court's judgment.

RULING:

1. Accused-appellant is liable for the crime of murder based on conspiracy. The court held that even if it was unclear who delivered the fatal blow to the victim, accused-appellant, as a conspirator, is equally liable for the crime. The act of one conspirator is the act of all.

2. The aggravating circumstance of abuse of superior strength is present. Accused-appellant and his companions were not only numerically superior to the victims but also armed with bladed weapons and lead pipes. They knowingly used force out of proportion to the means of defense available to the victims.

3. The defense of alibi is not valid and sufficient to warrant acquittal. Accused-appellant failed to establish that he was present at another place at the time of the crime. The positive identification of accused-appellant by the prosecution eyewitness prevails over his weak and fabricated alibi.

4. Accused-appellant should be convicted for attempted homicide in Criminal Case No. 91-5843. The court clarified that the distinction between frustrated and attempted crimes lies not in the gravity of the wounds inflicted but in the subjective phase of the commission of the offense. Since accused-appellant was stopped from completing the offense due to external causes, the subjective phase was not passed and it is considered an attempt rather than frustration.

5. The crime committed is a frustrated felony. The distinction between an attempted and frustrated felony lies in the intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all the acts have been performed which should result in the consummated crime. In the case at hand, the attackers believed that the victim was already dead and fled after inflicting injuries that caused the victim to lose consciousness. Therefore, the crime is considered a frustrated felony and not an attempted offense.

6. The intent to kill is evident in the acts of the offenders. They were armed with bladed weapons and lead pipes, which are unmistakably calculated to produce the death of the victim.

7. The proper penalty for the frustrated felony is prision mayor in its maximum period, which ranges from ten (10) years and one (1) day to twelve (12) years. This penalty is one degree lower than reclusion temporal, the penalty for homicide, as provided by Article 250 of the Revised Penal Code.

8. The awards made by the trial court for the civil aspect of the case are proper. The expenses incurred for the wake, funeral, and burial of the deceased are substantiated by receipts, and thus, the award for actual damages is affirmed. The award of P50,000.00 as civil indemnity ex delicto is also sustained as it requires no proof other than the fact of death of the victim and the assailant's responsibility therefor.

9. The award for moral damages for the pain and sorrow suffered by the victim's family in connection with his untimely death should be affirmed.

10. The award for exemplary damages should be affirmed.

11. The claim for loss of income or earning capacity of the deceased should be denied due to lack of factual basis.

12. The award for moral damages for Marlon Araque should be struck down as there was no testimony from the victim himself as to the moral suffering he sustained.

13. The award for exemplary damages for Marlon Araque should be retained.

14. Accused Samson dela Torre should be convicted despite not being included in the trial court's judgment.

PRINCIPLES:

• Direct proof of conspiracy is rarely found, it may be inferred from the acts of the accused before, during, and after the commission of the crime.

• Conspiracy may be established by facts and circumstances that logically infer the existence of a common design among the accused to commit the offense charged.

• Conspiracy need not be established by direct evidence, but may be proven by a number of indefinite acts, conditions, and circumstances.

• The existence of conspiracy must be shown as clearly and convincingly as the crime itself, through direct or circumstantial evidence.

• In the absence of direct proof, conspiracy may be deduced from the mode, method, and manner in which the offense was perpetrated, or inferred from the acts of the accused indicating joint purpose and design, concerted action, and community of interest.

• To establish conspiracy, overt acts must be performed by a conspirator as a direct or indirect contribution to the execution of the planned crime. The overt act may be active participation in the actual commission of the crime or moral assistance to co-conspirators.

• Conspiracy transcends mere companionship and denotes intentional participation in the transaction with a view to furthering the common design and purpose.

• Conspiracy can exist without an agreement for an appreciable period prior to the occurrence, as long as the accused had the same purpose and were united in its execution.

• In conspiracy, the act of one conspirator is the act of all.

• The aggravating circumstance of abuse of superior strength exists when the offenders are not only numerically superior but also use force out of proportion to the means of defense available to the victims.

• Alibi is generally considered with suspicion and always received with caution due to its ease of fabrication.

• The distinction between frustrated and attempted crimes lies in the subjective phase of the commission of the offense. Frustration occurs when the offender has performed all acts of execution that would produce the felony but is not produced due to causes outside of the offender's control. Attempt occurs when the offender is stopped from completing the offense due to external causes. The gravity of the wounds inflicted is not a determining factor.

• Compensation for lost income or earning capacity requires unbiased proof of the deceased's average income.

• Award for moral damages requires competent proof of moral suffering sustained.

• Exemplary damages may be awarded when the crime is committed with one or more aggravating circumstances.

• Accused tried in absentia may still be convicted based on the evidence presented by the prosecution.