In an amended information dated 29 July 1986, Ramir, Ricardo, Reynaldo and Pompeo, all surnamed Carizo, together with one Tobias Abarrientos, were charged with Robbery with Homicide allegedly committed as follows:

"That on June 21, 1986, at about 1:00 o'clock in the morning, at Barangay Guruyan, Municipality of Juban, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another and with intent to gain through force and violence, did then and there willfully, unlawfully and feloniously take, steal, rob and carry away from the person of one FRANK P. SAN JOSE against the latter's consent the following personal properties:

One (1) wrist watch worth………………….. P 600.00

One (1) ring worth…………………………… 500.00

One (1) pair of shoes worth………………… 150.00

One (1) jungle knife worth………………….. 120.00

One (1) gun, pistol caliber 32……………… P3,000.00 and

Cash amount of…………………….………. 2,000.00

Total……. P6,370.00

with a total and aggregate value of SIX THOUSAND THREE HUNDRED SEVENTY (P6,370.00) PESOS, Philippine Currency, to the damage and prejudice of the said Frank P. San Jose in the said aforestated total amount; that on the occasion of the said robbery and for the purpose of enabling the above-named accused to take, steal and carry away the articles above-mentioned, the herein accused in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation and taking advantage of their superior number and strength and with the use of sharp bladed instruments, treacherously attack, assault and stab said Frank P. San Jose, inflicting upon the latter various injuries on the different parts of his body, which injuries were the direct cause of his instant death, to the damage and prejudice of his legal heirs.

That the accused Reynaldo Carizo y Llosala is a recidivist, he having been previously convicted by final judgment of the offense of Robbery penalized under Article 299 of the Revised Penal Code on the 18th day of November, 1976 by the Circuit Criminal Court of Legaspi City, an offense embraced in the same title of the Revised Penal Code as that of which he is now presently charged." ^[1]

Ricardo, Reynaldo and Pompeo Carizo were arraigned on 18 February 1987, and each of them entered a plea of not guilty. Subsequently, Ramir Carizo was arrested on 9 April 1987 in Valenzuela, Metro Manila. He was brought back to Juban, Sorsogon to face trial. On 7 May 1987, upon arraignment, he entered a plea of guilty. The trial court appraised him of the consequences of his plea but allowed him to prove mitigating circumstances. Tobias Abarrientos, up to this day, has remained at large.

On 11 April 1990, the Regional Trial Court of Sorsogon, Branch 51, rendered a decision^[2] the dispositive part of which states:

"ACCORDINGLY, accused Ramir Carizo is hereby convicted of robbery with homicide aggravated by treachery and is hereby sentenced to suffer imprisonment of reclusion perpetua and to restitute to the heirs of the deceased-victim P6,370.00 for the unrecovered loot.

Accused Pompeo Carizo, Ricardo Carizo and Reynaldo Carizo are hereby convicted for murder and are hereby each sentenced to suffer imprisonment of reclusion perpetua.

All the accused to pay pro rata the heirs of the victim P30,000.00 for death indemnity and P50,000.00 for moral damages and funeral expenses.

Pursuant to Article VII, Section 5, Phil. Constitution, transmit the entire records of this case to the Supreme Court for automatic review considering the penalty imposed.

The case against Tobias Abarrientos is hereby archived as he is still at-large." ^[3]

xxx xxx xxx

The evidence for the prosecution disclosed the following facts:

Salvador Cortez, a resident of Guruyan, Juban, Sorsogon, testified that in the late afternoon of 20 June 1986, he went to the poblacion in Juban, Sorsogon to buy some utensils. At around 6:00 p.m., he met a friend and together they decided to have a few drinks. Their conversation lasted up to about 8:30 p.m., after which he decided to go home.

At that time, there were no more available means of transportation going to Guruyan, so Cortez decided to negotiate on foot the approximately twelve (12) kilometer distance from the poblacion to barrio Guruyan.

After passing the concrete bridge leading to Guruyan proper, he felt the call of nature and he moved to the shoulder of the road. While urinating, he heard the sound of a motorcycle engine coming from the direction of the bridge. He turned his head and saw the headlight of a motorcycle approaching his direction. When the motorcycle passed by him, he immediately recognized the rider to be ex-Mayor Frank San Jose.

As he continued his trek towards Guruyan, and the motorcycle was some fifteen (15) meters ahead of him, he suddenly saw Ramir Carizo, Ricardo Carizo, Reynaldo Carizo, Pompeo Carizo and another person barge out from a thicket (commonly known in the locality as "lupi") portion of the road shoulder. The light emanating from the motorcycle's headlight enabled him to recognize these men.

As the motorcycle approached the five men, Cortez saw Ramir Carizo suddenly strike Frank San Jose with a wooden pole causing the latter to be thrown on the road. Thereafter, Ramir Carizo proceeded to tie the hands of San Jose. While being tied, San Jose was again hit on the face with the same piece of wood, this time, by Ricardo Carizo.

With his both hands tied, they carried San Jose towards a nearby ricefield in a direction east of Guruyan.

Terrified by what he had witnessed, Cortez ran away from the scene and headed for home. The following morning, he learned that the body of Frank San Jose was found at a creek far from the ambush site. Forthwith, he went to the said creek and there he saw the investigators examining the lifeless body of Frank San Jose still hogtied and marked with stab wounds.

It was only after the burial of San Jose that he reported the ambuscade and revealed the identity of the assailants because, according to him, he was very much afraid of the suspects but then his conscience prevailed upon him to divulge what he had witnessed.^[4]

Benjamin Celso, also a resident of Guruyan, testified that at about 4:00 a.m. in the morning of 21 June 1986, he went near a canal at a nearby creek beside his house to defecate. While defecating, he saw Ramir Carizo and Reynaldo Carizo pass by near him (about 2 arms length). He allegedly heard Ramir Carizo utter to Reynaldo "No more problem, we already killed Purawas" (referring to Frank San Jose's moniker in Juban). The two (2) were followed by three (3) other men whose identities he did not recognize as he stooped to the ground when he heard Ramir Carizo's remark. He stated that Ramir Carizo and his companions were then headed towards the Carizo residence which is about sixty (60) meters away from his own house.

Celso also stated that the Carizos were living on the land owned by Mrs. San Jose while his house is located on the land owned by the late mayor (Frank San Jose).^[5]

The prosecution next introduced the testimonies of Salvador Duque, a school teacher in Guruyan, Jaime Gredonia, a compadre of Frank San Jose, and Romeo Gramos, a neighbor of the Carizos, to establish the fact of the Carizos' bitter feud with the late mayor.

Salvador Duque testified that way back in 1984, he witnessed a heated argument between Frank San Jose and the Carizo family before the Barangay Captain of Guruyan regarding San Jose's allegation that the Carizos were stealing coconuts on his land. On that occasion, he heard Pompeo Carizo threaten San Jose that "it is the day of San Jose and we will kill someday", that was followed up by his son Ricardo in the dialect, "sae kami maodong hasta makabalos." (We will not stop until we get even with Frank San Jose).^[6]

Jaime Gredonia testified that sometime in May 1986, in a conversation with San Jose when the latter visited him in his house, he asked San Jose regarding the rumor in town that he would be ambushed. San Jose allegedly confirmed the rumor and said that if something happens to him, there would be no one responsible but the Carizo family.^[7]

Romeo Gramos, a neighbor of the Carizos, corroborated Jaime Gredonia's story as he too was informed by San Jose sometime in May 1986 of the threat against the latter's life.^[8] Remedios San Jose, the victim's wife, likewise testified that she knew that the Carizo family had a standing grudge against her husband. She presented in court a letter^[9] threatening her and her children's life.

Frank San Jose was reported as missing to the police (INP) of Juban, Sorsogon in the early morning of 21 June 1986 by Jose Lorilla, a resident of Guruyan who found his motorcycle immediately after the bridge from Bolos to Guruyan. Thereafter, another resident from Guruyan, and a tenant of Frank San Jose, Danilo Habla, reported to the police that San Jose was found dead, handtied with a string, with several stab wounds in his body, in Sitio Binayan, Guruyan, Sorsogon.

Sgt. Aurelio, a member of the investigating team dispatched to the scene of the crime, testified that they recovered two (2) wooden clubs (a bamboo club and a wooden club)^[10] at the ambush site near the area of the fallen motorcycle. They then proceeded to the reported area where the body of San Jose was allegedly sighted, and there they found San Jose's body, his hands still tied behind his back. After taking pictures^[11] of the body, they brought the same to the Juban Police Station for autopsy.

The following day, Sgt. Aurelio joined the police team led by police Lieutenant Paloma which went to the Carizo residence. They recovered a bloodstained maong jacket and pants hanging on a makeshift clothesline tied to the ground floor of the house. These articles were sent to the CIS laboratory for blood examination.

Dr. Zacarias Frivaldo, the Municipal Health Officer of Irosin, Sorsogon who performed the autopsy on the body of the victim, testified on the following injuries sustained by the late mayor.

"1.     Lacerated wound with severe contusion-forehead;

2.      Left back thru and thru to the right chest (wounds 2 and 9 of chart);

3.      Right side about 6 inches transversing laterally to the right non-penetrating;

4.      Back lower transversing laterally 6 inches in length;

5.      Thru and thru left arm distally;

There were four stab wounds in front;

6.      Left chest inch from sternum transversing laterally to the left injuring the left lung;

7.      Right hypochondriac region non-penetrating transversing laterally about 6" in length;

8.      Right chest penetrating the heart and right lun (sic) 6" in length;

9.      Exit of wound number 2 on the back (Exh. "A"). The cause of death was shock secondary to hemorrhage due to multiple stab wounds."^[12]

In Dr. Frivaldo's opinion, the weapon used in stabbing San Jose was a sharp pointed instrument more than six (6) inches long. He noted that no previous struggle ensued between the assailant and the victim while the wounds were being inflicted. He opined that the assailant was in a kneeling position while inflicting the injuries on the victim who lay flat on the ground; and San Jose's injury on the forehead was caused by a blow from a hard object that could cause unconsciousness to the victim.^[13]

For the defense, only the accused Pompeo Carizo testified on his own behalf. He admitted that on 17 June 1986, Lt. Paloma and his men went to the house of Ramir Carizo which is adjacent to his house. However, no search warrant was presented by the said investigators as they seized a maong jacket and pants belonging to Ramir Carizo inside the latter's house. He admitted having seen Tobias Abarrientos when the latter was in Guruyan but could not remember the date and added that he does not know him personally.

When he was directly confronted regarding his participation in the killing of Frank San Jose, he vehemently denied the charge.^[14]

From the judgment of conviction by the court a quo, accused-appellants plead the following assignment of errors in their appellants' brief:

I.

THE COURT A QUO ERRED IN RELYING HEAVILY ON THE TESTIMONIES OF THE PROSECUTION [SIC] PRINCIPAL WITNESSES SALVADOR CORTEZ AND BENJAMIN CELSO INSPITE OF THEIR EVIDENT IMPROBABILITY, INCREDIBILITY, INCONSISTENCY, AND FALSITY.

II.

THE COURT A QUO ERRED IN GIVING PROBATIVE VALUE TO THE TESTIMONIES OF PROSECUTION WITNESSES SALVADOR DUQUE, JAIME GREDONIO AND ROMEO GUAMOS.

With respect to the testimony of Salvador Cortez, the defense argues that, under ordinary circumstances, it is hard to believe that Cortez and his friend consumed only two (2) bottles of beer in two (2) and one-half (1/2) hours since there was nothing important to converse about between them, as they claim that Cortez already knew beforehand that he might not be able to find a ride home.

The defense also points out that since Cortez was not drunk at that time, it was unnatural for him not to walk faster than his usual pace. They claim that the Court should take judicial notice that "folks walk briskly faster than the residents in the poblacion." Therefore, it is highly improbable to accept that it took him about four-and-a-half (4­-1/2) hours, or from 8:30 p.m. to 1:00 a.m. to traverse the distance of twelve (12) kilometers from the poblacion to Barrio Guruyan.

Even Cortez' supposed response to the call of nature is disputed by the defense. They claim that Cortez should not have bothered to move himself to the shoulder of the road to urinate, but to do the thing right on the spot where he stopped considering that he was all alone by the road without anybody watching him.

And when thereafter Cortez recognized that it was Frank San Jose who was driving the motorcycle that passed him by, the defense deems it incredible why Cortez did not even bother to call the former to ask for a ride nor even greeted the former mayor when he in fact admitted that he knew the former mayor as he worked for the latter as a hired laborer.

As to the supposed ambush, the defense points that with the claimed distance of fifteen (15) meters away from the scene of the crime, it was highly improbable that accused-appellants "boldly performed their evil design" without even noticing that there was an eyewitness nearby (Cortez). Hence, in the mind of the defense, it hardly inspires credence that Cortez was really able to observe the details of the incident, including the piece of wood which was used by the suspects to hit San Jose, but, he allegedly failed to recognize or even describe the sole person who carried the body of San Jose towards the rice field, when the body of a person is very much larger than the piece of wood allegedly used to hit the victim.

In other words, the defense maintains that Cortez is a rehearsed witness, who never actually witnessed the incident. Moreover, Cortez' actuation after the incident of not immediately reporting the matter to the police and instead reported the same after the burial of San Jose is, according to the defense, not in accordance with ordinary human behavior.

With respect to the testimony of Benjamin Celso, the defense argues that it is highly improbable that Ramir Carizo would utter such incriminating statement ("No more problem, we already killed Purawas.") at the very time they passed near the creek (sapa) where Celso was defecating, at the risk of being overhead by the said witness and reported to the authorities. It is claimed that this is not the way of criminals. For under normal circumstances, assuming that Ramir and Ricardo really killed Frank San Jose, there was "no need for Ramir to carelessly and loudly utter the words to his brother on their way home." Instead, it was but natural for them to have kept silent, assuming that indeed, they had just committed a crime.

Like Cortez, the defense questions Celso's actuation in not reporting what he knew immediately to the family of San Jose or to any of the several policemen he saw and heard at the creek investigating the murder of San Jose.

Anent the second assignment of error, the defense points out that the common allegations regarding the Carizo's threat to Frank San Jose as well as Frank San Jose's premonitions before his abduction, were all hearsay to establish that a crime was indeed committed and the identity of the perpetrators or suspects thereof, "that even on the assumption that such statements would tend to prove the existence of motive on the part of the accused for killing Frank San Jose," the same cannot be sufficient proof of guilt because mere proof of motive is not enough to support a conviction "if there is no other reliable evidence from which it may be reasonably deduced that the accused was the malefactor."

At the outset, the Court notes from the records of the case that Ramir and Reynaldo Carizo escaped from detention during the trial of the case.^[15] While the latter has been re-arrested, Ramir Carizo, who earlier entered a plea of guilty to the information against him, has since been reported killed in a shooting encounter with policeman from Valenzuela, Metro Manila shortly after he and his companions held up a passenger jeepney somewhere in McArthur Highway, Marulas, Valenzuela on 5 February 1990.^[16]

However, for the rest of the accused-appellants (Reynaldo, Pompeo and Ricardo), the determination of their guilt hinges on the credibility of prosecution witness Salvador Cortez whose testimony they assiduously assail as riddled with improbabilities and equivocations.

The trial court which concededly was in the best position to test the credibility of the prosecution witnesses, did not see it that way. Similarly, this Court is not persuaded by the defense's conjectural reasoning.

As the Solicitor-General correctly observes: there is nothing unusual in the number of beer bottles consumed by Salvador Cortez and his friend, since "it was never established that they were heavy drinkers" nor were they then engaged in a drinking spree. "Salvador Cortez, in fact, explained that the reason why it took them that long was because of their conversation."^[17]

The Court also notes that the approximation of four and a half (4 1/2) hours for Cortez to travel the twelve (12) kilometer distance from the poblacion to Guruyan was made by Cortez himself who testified that he had no watch nor can he accurately read the exact time in a clock.^[18]

What is not disputed is that the road going to barangay Guyuran is rough. One cannot, therefore, be expected to walk faster than the usual pace. Also, the manner in which Cortez attested to the call of nature cannot be characterized as unusual, for it is common nature for people to always look for a more private place to respond to a call of nature. And, as to the failure of Cortez to call the attention of the victim to ask for a ride, this was satisfactorily explained by Cortez during cross-examination.

"Q - You said, Mr. Witness, that when you urinated you went to the side of the road, is that correct?

A - Yes, that's correct.

Q - Why did you say now that you were blurred by the light when you were at the side of the road?

A - Naturally when the motorcycle passed by me I saw his back and that was the time when I recognized the one driving the motorcycle to be the late mayor San Jose.

Q -You said also that at that time you heard the motorcycle, the motorcycle was running slowly because the road was rought [sic], is that correct?

A - Yes, that Correct.^[19]

Precisely, Frank San Jose had already passed Salvador Cortez when he was suddenly ambushed by the accused-appellants. At a distance of approximately fifteen (15) meters, it is not incredible that assailants boldly executed their plan within the seeing distance of Cortez and without the latter himself being seen and chased by the assailants. Nor should we assume that every eyewitness to a gruesome crime should be seen by each and every malefactor. That would be stretching the argument too far.

As to the reason why Cortez categorically identified the piece of wood (Exhibit "O") used in the commission of the crime but did not recognize the person who carried the victim to the ricefield, this was adequately explained when he testified that he was able to identify the said instrument because of the light coming from the motorcycle and that, during the trial, he recognized it as the same piece of wood as recovered by the authorities and that "the said piece of wood had never changed."^[20]

On the other hand, he was not exactly sure who among the five (5) ambushers carried the body of Frank San Jose as admittedly he did not know one of the assailants who was only later identified as Tobias Abarrientos. All he was sure of was that he recognized the identity of four (4) of them - Ramir, Ricardo, Reynaldo and Pompeo.

Finally, as the Solicitor General correctly observes, "considering that his town mates were involved in the commission of the crime, his fear of reprisal from them is understandable" (People vs. Catubig, 203 SCRA 643 [1992] and a valid excuse for his momentary silence. (People vs. Peran, 215 SCRA 152, [1992]). After all, delay in reporting the occurrence of a crime or other unusual events in rural areas is well-known. (People vs. Belen, 194 SCRA 447 [1991], thus, "it cannot be taken against the said witness."^[21]

Further, the Court observes that his (Cortez') eyewitness account is credible as it jibes with the autopsy findings. (People vs. Molina, 213 SCRA 52 [1992].^[22]

Turning now to the testimony of Benjamin Celso, who allegedly heard the incriminating statement uttered by Ramir Carizo to his brother Ricardo, while defecating beside a creek near his house, the defense suggests that this testimony is incredible since the natural tendency of criminals is to keep silent about the crime they had just perpetrated. This is non-sequitur.

The Carizo brothers at that time were not then aware of the presence of Benjamin Celso in the vicinity. And the fact that they were positively identified by Celso lends credence to the latter's testimony which the defense has not shown to be tainted with evident bias, partiality, or motive to falsely implicate the Carizos, considering that it has been established that the Carizos were his neighbors.

The testimonies of prosecution witnesses Salvador Duque, Jaime Bredonio and Romeo Guamos are not hearsay evidence since "they all had personal knowledge of the subject matter of their testimonies as to the motive of the Carizos to kill the victim (San Jose)."^[23] As a rule, proof of motive is not even necessary when there is positive identification of the accused.^[24] Nonetheless, it strengthens the prosecution's evidence with respect to the identification made by Cortez of the assailants.

Quite interestingly, the only evidence for the defense was the testimony of Pompeo Carizo who merely denied having any participation and knowledge of the crime. He did not even proffer any strong alibi that would negate his complicity in the ambush-slaying of Frank San Jose. At best, his denial is a self-serving negative evidence that cannot be given greater weight than the declaration of credible witnesses who testified on affirmative matters.^[25]

The trial court was correct in ruling out the robbery aspect of the case, as the same was not conclusively proved by the prosecution. But the killing of Frank San Jose was indeed attended by treachery which qualified the crime committed to murder. The attack from behind of an unsuspecting San Jose by accused-appellants was so swift and sudden that he never had a chance to defend himself. Instead of killing him on the spot, accused-appellants hogtied him and thereafter tortured him before they stabbed him to death and then mercilessly dumped his body in a distant creek. This is clearly depicted in the pictures (Exhibit "C", "D", and "E") submitted in evidence by the prosecution.

We also agree that accused-appellants conspired to kill San Jose as plainly inferable from the moment they barged out together from a thicket (lupi) with wooden poles to ambush the latter from behind while riding a motorcycle, tied up his hands and thereafter carried him away.

It has long been held that where the acts of the accused collectively and individually clearly demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident. Regardless of the fact, as in this case, where the consequent killing of San Jose may have been done only by one (1) or two (2) of the accused, the rest would still be liable as principals because the evidence does not show that any one of them tried to prevent the assault and the killing,^[26] but instead were all last seen carrying the body of the victim from the ambush site to be eventually killed elsewhere with extreme cruelty.

WHEREFORE,except as to Ramir whose death appears from the records of this case to have occurred sometime on 3 February 1990, the decision of the Regional Trial Court of Sorsogon, Sorsogon in Criminal Case No. 2224, dated 11 April 1990, convicting herein accused-appellants of the crime of MURDER is AFFIRMED in toto. The award of moral damages is hereby deleted but the death indemnity imposed on accused-appellants is increased to P50,000.00

Cost against accused-appellants.

SO ORDERED.

Narvasa, C.J., (Chairman), Regalado, Puno, and Mendoza, JJ., concur.

---

^[1] Rollo, p. 24

^[2] Per Judge Simon D. Encinas

^[3] Rollo, p. 35

^[4] TSN, July 1, 1987, pp. 1 - 16

^[5] Tsn, September 23, 1987, pp. 5-16

^[6] TSN, December 2, 1987, pp. 3 - 8

^[7] Ibid, pp. 9-12

^[8] TSN, January 6, 1988, pp. 3 - 5

^[9] Exhibit F, F-1, F-2 for the prosecution p. 281, Original Records; Exhibit J is the letter sent by Ramir Carizo while he was in the provincial jail of Sorsogon; pp. 288-289, Original Records. It is Exhibit F that contained the threats on Mrs. San Jose's life. This letter was also used by the investigator in tracking down Ramir Carizo's whereabouts in Valenzuela, Bulacan which led to his arrest.

^[10] Exhibit "O", "P", for the prosecution

^[11] Exhibit "C", "D" and "E"

^[12] Rollo, pp. 103-104

^[13] TSN, May 7, 1987, pp. 6-18

^[14] TSN, January 22, 1990, pp. 3-7

^[15] TSN, March 30, 1988, p. 2

^[16] Rollo, p. 53

^[17] Appellee's Brief, p. 9, Rollo, p. 129

^[18] TSN, July 1, 1987, p. 37

^[19] Ibid., pp. 26-27

^[20] Ibid., p. 34

^[21] Appellee's Brief, pp. 13-14, Rollo, pp. 133-134.

^[22] Ibid., p. 18, Rollo, p. 138

^[23] See Rule 130, Sec. 20, Revised Rules of Evidence.

^[24] People v. Sarino, 222 SCRA 234

^[25] People v. Marti, 193 SCRA 57, People v. Antud, 215 SCRA 190

^[26] People v. Condemena, G.R. No. L-22426, 29 May 1968