An amended information for Double Murder with Assault Upon Agents of Persons In Authority was filed on 15 February 1988 with the Regional Trial Court of Kalookan City charging the accused Rolando Dural, also known as Ronnie Javelon and Bernardo Itucal, Jr. as follows:

"That on or about the 31st day of January, 1988 at Caloocan City, Metro-Manila, Philippines and within the jurisdiction of the Honorable Court, the above-named accused, conspiring together, confederating and mutually aiding one another, without any justifiable cause and with intent to kill with treachery, evident premeditation and abuse of superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the persons of TSGT CARLOS PABON PC and CIC RENATO MANGLIGOT PC, as duly appointed and qualified members of the Philippine Constabulary, CAPCOM, Camp Bagong Diwa, Bicutan, Taguig, while the latter were engaged in the performance of their official duties, knowing the said TSGT CARLOS PABON PC and CIC RENATO MANGLIGOT PC, to be agents of persons in authority by then and there shooting TSGT. CARLOS PABON, PC and CIC RENATO MANGLIGOT PC, on the different parts of their bodies, thereby inflicting upon the latter serious physical injuries, which eventually caused their death.

Contrary to law."^[1]

The case was docketed as Criminal Case No. C-30112 and assigned to Branch 131 of the said court. Both accused entered a plea of not guilty upon their arraignment on 14 March 1988.^[2] Pre-trial was conducted on 30 March 1988^[3] and, thereafter, the trial on the merits ensued.

The witnesses who testified for the prosecution were Rodrigo Pascual, Sgt. Douglas Tagapulot, Cpl. Angel Floranda, Guillermo Jaramilla, Vicente Rosadiño, Pfc. Juanito Abella, Edwin Balag, Rener Ramos, Dennis Santos, Erlinda Pabon and Erlinda Mangligot. The parties agreed to dispense with the testimony of Dr. Desiderio Moralida, whose autopsy reports on the victims were admitted by the defense. The witnesses who testified for the defense were Carmelita Aldaya, Lorelie Itucal, Armando Amba, Nilda Maravilla, Bernardo Itucal, Grace Guevarra and Rolando Dural.

On 31 August 1988, the trial court promulgated a decision^[4] finding the accused guilty as charged. The dispositive portion thereof reads as follows:

"WHEREFORE, the prosecution having proven the guilt of the accused ROLANDO DURAL otherwise known as RONNIE JAVELON and BERNARDO ITUCAL, JR. y BALDERAS beyond reasonable doubt, this Court finds both accused GUILTY of the crime of DOUBLE MURDER qualified by treachery with ASSAULTS UPON AGENTS OF PERSONS IN AUTHORITY and hereby sentences each of them to suffer the penalty of double RECLUSION PERPETUA; to indemnify jointly and severally the heirs of the deceased T/Sgt. Carlos Pabon PC and CIC Renato Mangligot PC in the sum of P30,000.00 each as death indemnity; to pay Mrs. Erlinda Pabon the sum of P23,299.00 representing the amount she spent for the burial and wake of her husband T/Sgt. Carlos Pabon; to pay Mrs. Erlinda Mangligot the sum of P29,550.00 representing the expenses she incurred for the wake and burial of her husband CIC Renato Mangligot; and to pay the costs.

It appearing that both accused are detention prisoners, the period of preventive imprisonment they underwent shall be given full credit in their favor.

SO ORDERED."^[5]

The evidence for the prosecution upon which the judgment of conviction is anchored is summarized by the trial court in this wise:

"Two prosecution eye witneses (sic) Rener Ramos and Dennis Santos when presented to (sic) the witness stand corroborated each other's testimony more specifically on material points and testified that:

'At about 12:00 in the afternoon of January 31, 1988 both of them (prosecution witnesses Rener Ramos and Dennis Santos) were at the Macaneneng Street in Bagong Barrio, Caloocan City as they were supposed to go a (sic) 'tupadahan' however, they were not able to arrive at the tupadahan because while on their way or from a distance of twelve (12) arms-length they heard successive gunfires (sic) so they run (sic) and hid themselves in a concrete fence near a store; from the place they were hiding or from a distance of ten (10) arms-length they saw three (3) men each of them armed with .45 (sic) pistol, firing upon at (sic) the two Capcom soldiers on board a Capcom mobile car which was then on a full stop although its engine, was still running; two of the gunmen positioned themselves beside each of the side of the mobile car while the third gunman whom they identified as accused Rolando Dural otherwise known as Ronnie Javelon (Dural for brevity) climbed the hood of the mobile car and positioned himself in front of the car; after the two Capcom soldiers were immobilized, the gunman standing near the driver's seat opened the left front door of the car and got the .45 (sic) service pistol and armalite of the Capcom soldiers; thereafter, the three gunmen left; during the shooting incident they also noticed the presence of two persons, one was inside an owner jeep while the other one whom they identified as accused Bernardo Itucal, Jr. (Itucal for brevity) was standing near the scene of the incident with one of his arm (sic) raised while one of his hand (sic) was holding a .45 caliber pistol; immediately after the three gunmen who fired at the Capcom soldiers left; (sic) the man who was riding on the owner jeep told accused Itucal that he was leaving and instructed Itucal to take care of everything; witness Dennis Santos even quoted the very word (sic) of the man on board the owner jeep 'Pare, bahala ka na diyan'; after that, the accused Itucal walked away; two days after the incident or on February 3, 1988 eyewitnesses Ramos and Santos voluntarily went at (sic) the Capcom headquarters at Dagat-Dagatan, Caloocan City to narrate what they have witnessed, consequently the investigator brought them at (sic) the Capcom headquarters at Bicutan then at (sic) Camp Panopio Hospital; at the said hospital, they saw one of the three gunmen (referring to accused Dural) who shot the two Capcom soldiers; then they went back at (sic) Bicutan headquarters where they gave their respective statements (Exhs. 'D' and 'E').'"^[6]

Both Itucal and Dural denied authorship of the crime charged and interposed the defense of alibi. The former, a student of the Guzman Institute of Technology and a choir member of the Muling Pagkabuhay Church located at Rosario Street, Bagong Barrio, Caloocan City, claims that at about 12:00 noon of 31 January 1988, while he was eating inside his house at 63 Rosario Street, Bagong Barrio, Caloocan City, he heard gun reports and shouts and when he peeped through the window, he saw people running or scampering away. He and his sister, Lorelie, wanted to go to nearby Macaneneng Street from where the gun reports came, but they were not able to reach it because of the presence of many onlookers at the scene of the shooting incident. Before 12:00 noon or in the morning of 31 January 1988, he was at the Chapel conversing with some people there.

Accused Rolando Dural, a.k.a. Ronnie Javelon, who admitted that his real name is Rolando Dural, testified thus: that he stayed in his sister's house at Block 10, Lot 4, South City Homes, Biñan, Laguna from 29 November 1987 up to 31 January 1988; two (2) days before 1 February 1988, he told his sister, Agnes Javelon, that his stomach and chest were aching and although he was suffering for quite a long time, it was only on 1 February 1988 when he experienced severe pain; as a consequence, his sister got in touch with Dr. Jeremias de la Cruz; the said doctor first brought him to the latter's clinic in Quezon City where his cyst was removed and his wound at the left side of his body was sutured; then he was brought to the St. Agnes Hospital where he was admitted under the name Ronnie Javelon for the reason that it was his sister who will be shouldering his hospital bills and expenses.^[7]

The trial court rejected the defense of alibi on the ground that eyewitnesses Rener Ramos and Dennis Santos, whose testimonies "were logical, straightforward and probable", and whose "credibility was not shaken in any manner by the rigorous examination to which they have been exposed," positively identified the accused.^[8] It appreciated against the accused only the qualifying circumstance of treachery.

Not satisfied with the lower court's decision, accused Dural and Itucal, hereinafter referred to as the Appellants, filed their notice of appeal on 1 September 1988.^[9]

Appellants interpose the following assignment of errors in their Brief:^[10]

"1. The lower court erred in finding conspiracy among and between the accused.

2. The lower court erred in giving weight to the testimonies of the prosecution's witnesses notwithstanding their inconsistencies on relevant and material points.

3. The lower court erred in not considering the defense of alibi interposed by both accused.

4. The lower court erred in not considering the illegality of the arrest of both accused, in favor of their defenses.

5. The lower court erred in considering the qualifying circumstance of treachery."^[11]

In the first assigned error, appellants challenge the trial court's finding that conspiracy existed among the accused, with Itucal acting as the lookout. They allege that the evidence for the prosecution failed to establish that the appellants knew of the criminal intent of their alleged two (2) unidentified companions.

The People^[12] maintains, however, that conspiracy was established by the presence of the appellants and their companions at the scene of the crime and their participation in the killing of the victims. Witnesses Ramos and Santos testified that they saw Dural go atop the hood of the CAPCOM car and fire a shot at one of the CAPCOM soldiers seated in the front seat. One Edwin Balag, a witness for the prosecution and a neighbor of Itucal, testified that he had witnessed the shooting of the CAPCOM soldiers and thereafter saw Itucal go atop the hood of the CAPCOM car^[13] and shout "Mabuhay ang Sparrow."

A conspiracy exists when two (2) or more persons come to an agreement concerning the commission of a felony and decide to commit it.^[14] Direct proof is not essential to prove conspiracy; it may be shown by acts and circumstances from which may be logically inferred the existence of a common design among the accused to commit the crime charged.^[15] It is sufficient that the malefactors shall have acted in concert pursuant to the same objective.^[16] Confederacy was established beyond cavil in this case among appellant Rolando Dural, a.k.a. Ronnie Javelon, and the two (2) other gunmen. Armed with deadly weapons, they arrived together, each proceeding directly to a pre-assigned spot from where they suddenly and unexpectedly shot their victims. They then fled together toward the same direction after divesting the victims of their firearms. All these acts are eloquent proof of a common plan and design deliberately and carefully executed with precision through coordinated action.

There is no doubt in Our minds as to the participation of appellant Dural -- the evidence for the prosecution sufficiently established his guilt with moral certainty.

Appellant Itucal, however, deserves a different treatment. The trial court held him liable as a co-conspirator because of its finding that he acted as the look-out and was armed with a .45 caliber pistol. Our evaluation of the evidence yields no factual foundation for such a finding. It is based on claims, bordering on speculation, of prosecution witnesses Rener Ramos and Dennis Santos that from what they saw, Itucal must have been a look-out. They did not categorically declare that Itucal was such. They only presumed or speculated that he was. The following is the testimony on direct examination of Rener Ramos:

"Q Now aside from the persons that you have mentioned firing at the soldiers inside the capcom car, were there any other persons if any?

x x x

A Yes, sir.

Q What were they doing?

A I saw two persons, sir, one was inside the owner jeep and the other one was standing near the scene of the incident.

Q How far was this owner jeep parked from the capcom car?

A More or less 2 to ½ armslength (sic) away, sir.

Q What about this other person whom you saw standing near the car, how far was he from the capcom car?

A More or less two armslength (sic) away, sir.

Q What was this person, standing near the car doing at that time?

A He was standing there and he had his arm raised and one of his hand (sic) was holding a 45 caliber pistol.

Q Will you tell us what was his participation in the killing?

x x x

A From I what saw, sir, he must have been the look-out.

x x x

Q Now, you said, where are these two Persons that you have mentioned, the one you said was seated on the driver seat of the owner jeep and the one holding a 45 caliber firearm, which (sic) according to you acted as a look-out, if ever you will see them again would you be able to identify them?

A Yes sir.

Q Will you please look around the courtroom, and see if they are around, and if they are around please point to them?

A Only is here (sic), sir.

Q Please point to him?

A That person, sir.

(Witness pointing to prisoner on left, stood up and gave his name as Bernardo Itucal).

Q Now, was he the one holding the firearm standing near the capcom car, mobile car, which refers (sic) to be the look out?

A Yes sir.

Q Now, after these three persons who actually fired upon the soldiers' car left, what did the other two do, if any?

A The one who was riding at the owner jeep told the other person who was standing outside he was leaving the said person to take care of everything.

Q To whom (sic) this person addressing?

A The person who was standing, sir, and holding the 45 caliber.

Q You were referring to accused Bernardo Itucal?

A Yes sir.

Q And afterwards what happened?

A The person who was carrying 45 pistol walked away, sir and we left, sir, because we fell (sic) nervous at that time, sir."^[17]

The pertinent portion of the direct testimony of Dennis Santos on the same point is as follows:

"Q Now, aside from these persons including Rolando Dural whom you saw firing their gun, were there other persons there aside from the three?

A Yes sir, there were still other (sic).

Q How many?

A Two (2), sir.

Q What were they doing at that time?

A One was boaring (sic) a vehicle and he was sporting a violet overall attire and the other one was standing near the basketball court and from what I saw he acted as a look out, sir.

Q How far was this look out from from (sic) the capcom car?

A About two armslength (sic) away, sir.

Q How about the owner jeep how far was it parked in relation to the capcom car?

A The same distance, sir.

Q What did that look out do if, any, that you have mentioned?

A The person who was inside the owner jeep shouted in a loud voice and said, 'Pare bahala ka na diyan.' And the one who acted as a look out followed the three gunmen who entered Rosal Street, sir.

Q Now, was this look out that you have mentioned armed at that time or not?

A I did not notice, sir.

Q If ever you will see this look out again, would able (sic) to identify him?

A Yes, sir.

Q Will you please look around the courtroom and see if he is inside, and if he is inside please point to him.

A Witness pointing to the other prisoner stood up and gave his name as Bernardo Itucal.

Q What about the driver of the said owner jeep is he inside the courtroom?

A No, sir he was not present."^[18]

On cross-examination, Rener Ramos categorically admitted that it was only when the three (3) gunmen had swiftly walked away toward Rosal Street that he saw Itucal for the first time:

"Q In other words, there was only or it was only after the gunmen have fled that you were able to see Bernardo Itucal, isn't?

Fiscal:

That would be misleading, your honor. Not fled.

x x x

Q You stated a while ago that after the gunmen have taken the 45 caliber and the armalite of the soldier, they ran away, isn't?

A They walked away fast, sir?

Q Away from the sight (sic) where the killing took place, isn't?

A Yes sir, they were turning their heads towards a street (sic) Rosal.

Q And it was at that point that you were saying that you saw Bernardo Itucal standing with a 45 on his hand and very near the incident, isn't?

A Yes, sir.

Q And this was the first time that you saw Bernardo Itucal, isn't?

A Yes sir."^[19]

Dennis Santos also admitted on cross-examination that he saw Itucal for the first time only after the gunmen had left the scene, thus:

"Q You said, that the look out was accused Bernardo Itucal, you have seen Bernardo Itucal only after the gunmen have went (sic) away from the scene of the incide (sic), isn't?

A Yes sir."^[20]

and that the only basis for his belief that Itucal was the lookout was the following parting statement of the driver of the owner-type jeep addressed to Itucal: "Pare, bahala ka na diyan." Thus:

"Q Why did you say that, Mr. Witness, that Bernardo Itucal was a look out?

A Because I heard the passenger of the owner jeep bid goodbye, sir, so I gathered that he was his companion and he remarked, 'Pare, bahala ka na diyan.'"^[21]

If Itucal was the lookout, he had to come either ahead of or simultaneously with the gunmen. By the very nature of his duty or task, a lookout should not come to the scene of the crime after its consummation. There is absolutely no evidence that Itucal came ahead of or simultaneously with the gunmen; on the contrary, as shown above, he was seen for the first time only after the gunmen had walked away. That he was armed which could have enhanced the prosecution's theory that he was a co‑conspirator, was not likewise sufficiently proven. While Rener Ramos testified that he was, his companion, Dennis Santos, who similarly focused his eyes on Itucal and the others and witnessed almost everything that took place, did not notice any weapon in Itucal's possession. According to Rener Ramos, Itucal "had his arm raised and one of his hand (sic) was holding a 45 caliber pistol." If such were indeed the fact, Dennis Santos would not have failed to see it. That is not all to it. Another prosecution witness, Edwin Balag -- who even testified that he had seen Itucal, his neighbor whom he had known for more than two (2) years,^[22] climb atop the hood of the CAPCOM car after the gunmen shot the soldiers and shout "mabuhay ang sparrow" -- did not state that Itucal was armed.^[23] The prosecuting Fiscal did not attempt to extract any information or testimony to that effect from him. It was the court which asked the appropriate question after the re-direct examination of Balag, but the witness categorically admitted that Itucal was not armed at that time, thus:

"COURT:

Itucal was not armed at that time?

A No, sir."^[24]

That Itucal shouted "mabuhay ang sparrow" and was told by the driver of the owner-type jeep: "Pare, bahala ka na diyan," do not conclusively prove that he was a co-conspirator in the absence of any evidence, as in this case, that he was a member of a subversive organization which operates the sparrow unit and that the driver of the owner-type jeep was also a co-conspirator. Even assuming for the sake of argument that he was a sympathizer of such a subversive organization, mere sympathy is not enough to prove his participation in the conspiracy. The parting statement of the driver of the owner-type jeep could be addressed to anybody at the scene and is susceptible of two (2) interpretations, one of which is inconsistent with the participation of Itucal either in the planning of the crime or in the execution of such plan. In the light of the presumption of innocence guaranteed by the Constitution, and in the absence of credible inculpatory evidence, that interpretation in his favor must prevail. While admittedly the alibi of Itucal is weak, the evidence of the prosecution against him is likewise feeble. The prosecution cannot use the weakness of Itucal's defense to enhance its case; it must rely on the strength of its own evidence.^[25] And considering that Itucal's culpability could only be anchored on his participation in a conspiracy, such participation must be proved by clear and convincing evidence. The prosecution has failed to successfully discharge that burden in this case, leaving this Court unconvinced, due to reasonable doubt, of the guilt of Itucal.

With the foregoing exposition, resolution of the second and third assigned errors is no longer necessary. However, for the satisfaction of accused Dural, let it be stated that the alleged inconsistencies in the testimonies of the prosecution witnesses as to whether there was a basketball game going on at the time the first gunfire was heard, who among the appellants climbed atop the hood of the CAPCOM car, and which of two (2) written statements of Ramos and Santos were first made, refer to trivial or minor points. Settled is the rule that discrepancies on minor matters do not impair the essential integrity of the prosecution's evidence as a whole or reflect on the witnesses' honesty.^[26] As a matter of fact, there is at all no inconsistency in the testimonies of the witnesses on the second issue. As correctly pointed out by the People, both appellants did in fact climb atop the hood. According to Ramos and Santos, Dural did so and fired at one of the soldiers seated in the front seat of the car.^[27] According to Balag, Itucal climbed atop the hood only after the three (3) gunmen had fired at their victims.^[28]

As to alibi, it is a fundamental juridical dictum that it cannot prevail over the positive identification of the accused.^[29] In the instant case, Dural was positively identified by the principal witnesses for the prosecution. It is equally settled that for alibi to prosper, it must not only be shown that the accused was at some other place at the time of the incident but that it was physically impossible for him to have been at the scene of the crime at the time of its commission.^[30] This was not proven by Dural.

The fourth assigned error is without merit. It is too late for the appellants to question the illegality of their arrests. The irregularity, if any, was cured when they submitted themselves to the jurisdiction of the trial court by filing a petition for bail,^[32] entering a plea of not guilty and actively participating at the pre-trial and trial.

Nor is there merit in the fifth assigned error. Per the testimonies of Rener Ramos and Dennis Santos, the victims who had no opportunity to defend themselves as they were still inside the CAPCOM car which was still maneuvering, were shot at close range immediately after the three (3) gunmen, one of whom is appellant Dural, surrounded the car with each positioning himself, at pre-assigned spots, i.e., the left, right and front portions of the car. The autopsy reports^[33] showed that both victims sustained gunshot wounds mostly in the head. The suddenness of the attack on the unwary victims and the simultaneous and coordinated gunfire trained at them insured the execution of the deed without risk to the gunmen arising from any defense which the victims might make. Treachery then attended the commission of the deed. The killing of the two (2) CAPCOM soldiers was thus qualified to murder under Article 248 of the Revised Penal Code. There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make.^[34]

There is no doubt in Our minds that appellant Dural and the two (2) other gunmen knew that the victims, T/Sgt. Carlos Pabon and C1C Renato Mangligot, were members of the Philippine Constabulary detailed with the CAPCOM as they were then in uniform and riding an official CAPCOM car. The victims, who were agents of persons in authority, were in the performance of official duty as peace officers and law enforcers. For having assaulted and killed the said victims, in conspiracy with the other two (2) gunmen, appellant Dural also committed direct assault under Article 148 of the Revised Penal Code. The crimes he committed, therefore, are two (2) complex crimes of murder with direct assault upon an agent of a person in authority. Pursuant then to Article 48 of the Revised Penal Code, the maximum of the penalty for the more serious crime, which is murder, should be imposed. The maximum of the penalty prescribed for murder under Article 248 of the Revised Penal Code is death, but in view of the prohibition on the imposition of the death penalty,^[35] the proper imposable penalty would be reclusion perpetua. The trial court correctly imposed on appellant Dural two (2) penalties of reclusion perpetua. In conformity with the prevailing jurisprudence, the indemnity for each death shall be increased from P30,000.00 to P50,000.00.

WHEREFORE, judgment is hereby rendered:

(1) AFFIRMING, insofar as accused-appellant ROLANDO DURAL (also known as RONNIE JAVELON) is concerned, the Decision of Branch 131 of the Regional Trial Court of Kalookan City in Criminal Case No. C‑30112, subject to the above modification of the death indemnity;

(2) ACQUITTING, on the ground of reasonable doubt, accused-appellant BERNARDO ITUCAL, JR.; and

(3) Ordering accused-appellant ROLANDO DURAL (also known as RONNIE JAVELON) to pay one-half (1/2) of the costs.

SO ORDERED.

Feliciano, (Chairman), Bidin, Romero, and Melo, JJ., concur.

---

^[1] Original Records (OR), 4-5. The original information was filed on 8 February 1988.

^[2] Id., 10.

^[3] Id., 23.

^[4] OR, 147-162; Rollo, 29-44. Per Judge Antonio J. Fineza.

^[5] Id., 162.

^[6] OR, 148-149; Rollo, 30-31.

^[7] OR, 152-153.

^[8] Id., 154.

^[9] Id., 169.

^[10] Rollo, 49-63.

^[11] Rollo, 49.

^[12] Brief for the Appellee; Id., 75-98.

^[13] Id., 84-85.

^[14] Article 8, Revised Penal Code.

^[15] People vs. Tingson, 47 SCRA 243 [1972]; People vs. Cabiling, 74 SCRA 285 [1976]; People vs. Cercano, 87 SCRA 1 [1978].

^[16] People vs. San Luis, 86 Phil. 485 [1950].

^[17] TSN, 11 May 1988, 5-7. Underscoring supplied for emphasis.

^[18] TSN, 11 May 1988, 23-24. Underscoring supplied for emphasis

^[19] Id., 13-14.

^[20] TSN, 11 May 1988, 26.

^[21] Id., 26-27.

^[22] TSN, 14 April 1988, 19.

^[23] Id., 6-7.

^[24] Id., 23.

^[25] People vs. Flores, 186 SCRA 303 [1990]; People vs. Malbago, 185 SCRA 311 [1990].

^[26] People vs. Bernardino, 193 SCRA 448 [1991].

^[27] TSN, 11 May 1988, 5; 23.

^[28] TSN, 14 April 1988, 6.

^[29] People vs. Mercado, 97 SCRA 232 [1980]; People vs. Clores, 184 SCRA 638 [1990]; People vs. Beringuel, 192 SCRA 561 [1990].

^[30] People vs. Nabor, 185 SCRA 615 [1990]; People vs. Florida, G.R. No. 90254, 24 September 1992.

^[32] OR, 18-19.

^[33] Exhibit "O" and "P"; Id., 74-75.

^[34] Article 14(16), Revised Penal Code.

^[35] Section 19(1), Article III, 1987 Constitution.