For the killing of a certain Amando Mandane, brothers Wilson Villanueva and Edgar Villanueva, together with three others who are at large, namely John Doe, Peter Doe and Edwin Doe were charged with murder, as follows:

"That on or about the 1st day of March 1985 in the Municipality of Donsol, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with treachery and evident premeditation, armed with boloes, did then and there wilfully, unlawfully and feloniously attack, assault and hack one Amando Mandane while the latter was not in a position to defend himself, inflicting upon the latter the following injuries, to wit:

- Hack wound 5 1/2 inches long at the lower portion of the neck gaping 2 inches wide, cutting the clavicle throat and esophagus;

- Five hack wound on the nape of the neck 5 inches long and gaping 2 inches wide cutting the cerebelum including the brain tissues and bones of the neck (cervical vertebrates);

- Hack wound cutting the gastrocnenious muscle, 3 inches long and gaping 2 1/2 inches wide of the middle portion of the right lower leg;

- Hack wound cutting back the gastrocnenious of the middle portion of the leg gaping 2 inches wide, 3 inches long

which injuries caused the instant death of said Amando Mandane, to the damage and prejudice of his legal heirs.

Contrary to law."

Upon arraignment on July 18, 1985, accused-appellants through counsel pleaded not guilty to the offense charged. After trial, the Regional Trial Court of Sorsogon, Branch 52 rendered judgment on April 1, 1993 finding accused Wilson Villanueva guilty beyond reasonable doubt as principal of the crime of murder and meted on him the penalty of reclusion perpetua with accessories and accused-appellant Edgar Villanueva guilty beyond reasonable doubt as accomplice and sentenced him to suffer the indeterminate penalty of 4 years, 2 months and 1 day of prision correcional as minimum to 10 years of prision mayor as maximum. Both were ordered to indemnify and pay jointly and severally the heirs of the victim Amando Mandane in the amount of P50,000.00, actual and compensatory damages of P7,000.00 and moral damages of P30,000.00.

On appeal before this Court, under date of July 9, 1993, accused-appellant Wilson Villanueva filed an urgent petition to use the same bailbond in the amount of P25,000.00. We resolved to deny and cancel the same for lack of merit in our resolution of July 26, 1993. Subsequently in our resolution of September 29, 1993, we resolved to order the bondsman to surrender accused-appellant Wilson Villanueva within ten days from notice to the court of origin and to inform this Court of the fact of surrender within the same period. Judge Eudarlio B. Valencia of the RTC-Sorsogon, Branch 52 was required to order the transmittal of accused-appellants to the Bureau of Corrections, within five days from the time of surrender and if accused-appellants are not surrendered within the said period of five days, for Judge Valencia to issue an order of arrest against them.

On February 7, 1994, Asst. Director Jesus Villanueva informed this Court in its First Indorsement that Wilson has no record of confinement in the New Bilibid Prisons.

On June 8, 1994, this Court issued a resolution dismissing the appeal of accused-appellant Wilson Villanueva for abandonment. Entry of judgment was made on July 25, 1994. However, the dismissal of the appeal did not include Edgar Villanueva whose degree of culpability in the commission of the crime has still to be determined by this Court.

The facts, as found by the trial court, are as follows:

"x x x at about 6:30 o'clock in the evening of March 1, 1985, Amando Mandane, Ronald Aviso and accused Edgar Villanueva were heading towards the house of accused Wilson Villanueva, Edgar's brother, located uphill of Tres Marias, Donsol, Sorsogon upon Edgar's invitation to drink on the occasion of the latter's birthday. Wilson and Edgar have separate houses. Wilson was not in his house when they arrived thereat They nevertheless proceeded to drink Edgar brought out two bottles of gin and two bottles of beer. The three of them partook of the gin even as Ronald and Amando were the only ones who drank the beer. Edgar went out to the kitchen while Ronald and Amando were drinking the beer and returned after the two had consumed the beer. Edgar then invited the two to attend the dance at the plaza of Donsol on the occasion of the canvassing being undertaken preparatory to the celebration of the town fiesta. Ronald and Amando agreed and they (Edgar, Ronald and Amando) went downhill of Wilson's house heading towards the plaza. It was already around 9:00 o'clock in the evening. Upon reaching Tres Marias Drive, a road leading to and about 200 meters from Donsol Emergency Hospital, or 150 meters to the Municipal Building of Donsol and about 60 meters distant to the nearest house owned by the family of Analyn Abuyan, the three walked side by side at one arms length apart, Edgar Villanueva at the left, Amando Mandane at the middle and Ronald Aviso at the right.

At about the same time, trailing them at a distance of about five arms length were Pacifico Herrera, Jr. (alias 'Oyo', 'Liot' or 'Eliot') and Romeo Balane alias 'Bontiago' who had just come from Temostocles Alim's farm at Burabod, a sitio of Barangay Topas, Donsol, Sorsogon adjoining Bororan, to ask for coconuts and chicken. Alim is a resident of Topas, while Balano of Barayong Baras which is about ten kilometers from the poblacion of Donsol. They are each other's friends. Balano requested Herrera or 'Oyo' to accompany him to Alim's farm because Balano did not know the place and he had to see Alim.

While they (Edgar, Ronald, Amando, Herrera and Balano [sic]) in the position and order above indicated were in the progress of their walk, accused Edgar Villanueva suddenly lighted his lighter and not long thereafter his co-accused brother Wilson Villanueva appeared from nowhere and hacked Amando Mandane who instinctively cried 'aray' upon being hit and then slumped on the ground as a result of the injury he sustained. Accused Edgar Villanueva then rushed to the side of his co-accused brother and joined the latter. Ronald Aviso who was steps ahead of the fallen Amando heard the latter's 'aray' cry about (sic). He then saw Wilson hacking the helpless Amando. Ronald went back for Amando and tried to lift him up from the ground but Wilson hacked him (Ronald) on his right shoulder, followed by Edgar who struck him on the right side of his waist determined to finish him too, so, he ran for his life.

Pacifico Herrera, Jr., who was walking out quite far behind of Edgar, Ronald and Amando, also noticed the lighting of the lighter and heard the hacking immediately thereafter which he thought to be just a thud or sound of one boxing another. He likewise observed persons running away after the thud. However, as he and his companion Balano approached the place where the thud came from, he saw a person lying on the ground and when he stooped to investigate who it was, the accused brothers Wilson and Edgar Villanueva, at a distance of about a meter from them, aimed their bolos and motioned to hack him and Balano. This sent them (Herrera and Balano) scampering to safety. They ran towards the ricefield and then went separate ways. Herrera, still afraid, went home and changed clothes so that he could not be recognized and proceeded to the plaza to attend the dance where he heard people talking about a dead person at the Municipal Building. He went there to verify and recognized the dead man to be Amando Mandane, son of Pat. Mandane.

Shortly after the incident, spouses Osias Gabarda and Elena Gabarda were taking Tres Marias Drive on their way to the Donsol Emergency Hospital to bring their son Anecito for treatment of fever. From their residence at Barangay Boang, Donsol, Sorsogon, two and half kilometers from the town proper. Osias had with him a two-battery flashlight. Upon reaching a certain portion of the road leading to the hospital, Osias noticed three persons along the way one of whom he recognized to be Wilson Villanueva. Osias then focused his flashlight towards and he saw Wilson holding a bolo and a dead man lying on the road. Wilson told him to lower his flashlight which he did. Shortly, thereafter, Osias and his wife decided to go home because of fear. The place where they saw the dead man and Wilson holding a bolo was more or less 150 meters from the Municipal Building."

The accused-appellant filed his brief and the Office of the Solicitor General filed a manifestation and motion in lieu of its brief recommending the acquittal of Edgar Villanueva on the ground that his guilt as an accomplice was not proven beyond reasonable doubt.

Accused-appellant Edgar Villanueva raised as the sole assigned error that the trial court erred in declaring that he was an accomplice of his brother Wilson Villanueva in the crime of murder.

In its decision, the trial court ruled out the existence of conspiracy and declared the absence of evidence to show a planned assault, but nonetheless held appellant guilty as an accomplice. The Court's ratio decidendi is as follows:

"Edgar's contemporaneous acts, however, of activating his lighter which gave Wilson and his companions to launch the attack and Edgar's taking sides with his brother, somehow incurred for him criminal responsibility. Although, as already pointed out, there is no evidence that the assault was planned, the acts themselves, in relation to the hacking of Amando Mandane and Ronald Aviso, show complicity on the part of accused Edgar Villanueva. First, the latter had no reason to have and bring a lighter not only that he was then a non-smoker (per his own assertion) but also he had no use of it because he or they (Edgar, Amando and Ronald) could clearly see their way while walking at the Tres Marias Drive going to the plaza because of the moon. Second, the attack netted only Amando Mandane and Ronald Aviso. Amando got killed and Ronald seriously injured, while Edgar was unscathed. Lastly, Edgar knew all along who the assailants were because just as soon as Amando was hacked by Wilson, he took his brother's side and joined his group. He would not have switched company had he not known the identity of that with whom he sided with. That's suicide considering that the attackers were armed. Personal safety and survival, above all, comes first. That's instinct.

In other words, it might be true that prior to the attack Edgar did not know of Wilson's plan. But after the initial hacking made by Wilson upon Amando, who was hit on his neck cutting the throat and esophagus, it appeared clear to him his brother's evil motive to kill the victims. Such that his flaring his lighter and joining his brother's group demonstrated the previous and simultaneous acts which contributed to the commission of the offense as aid thereto physically and morally and manifested his cooperation with the intention of supplying material and moral support in the execution of the crime on an efficacious way." (People vs. Custodio, 47 SCRA 289, 303; People vs. Tamayo, 44 Phil. 38, 49).

In his appeal, accused-appellant asserted that the act of flicking the lighter did not make him an accomplice in the crime of murder committed by his brother Wilson Villanueva and his companions but that it was merely used in illuminating the road for it was dark and they could hardly see their way to the dance hall.

In order that a person may be considered an accomplice, the following requisites must concur:

(1)     community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose;

(2)    that he cooperates in the execution of the offense by previous or simultaneous acts, with the intention of supplying material and moral aid in the execution of the crime in an efficacious way; and

(3)     that there be a relation between the acts done by the principal and those attributed to the person charged as an accomplice.^[1]

An accomplice must therefore have knowledge of the criminal intention of the principal, and his complicity is evidenced by a simultaneous or previous act which contributes to the commission of the felony, as an aid thereto, whether physical or moral.^[2] In other words, the participation of an accomplice presupposes that the principal and the accomplice acted in conjunction and directed their efforts to the same end.^[3]

Accused-appellant Edgar Villanueva's participation in the crime as an accomplice was clearly established. His act of flicking his lighter was clearly a pre-arranged signal for his brother-accused Wilson Villanueva to attack them. Why should he be carrying a lighter when, by his own admission, he is a non-smoker? If it is to provide illumination, this is a weak excuse indeed for the way was clearly lit by the moon. Moreover, he actually participated in the killing as he followed his brother Wilson in hacking Ronald Aviso on the right side of his waist in a determined move to finish what his brother started. Obviously, he cooperated in the execution of the offense both by a previous and simultaneous act. We quote with approval the finding of the trial court on this point:

"Of course, one does not have to be very intuitive to sense that Edgar's gesture of lighting his lighter was a pre-arranged signal and cue to the assailant hovering in the unlighted place nearby that the persons with whom he was with were their target or quarry. (See People v. Barbosa, L-39779, November 7, 1978)."

Accused-appellant averred that there was no evidence to show that he sided with his brother Wilson after the hacking incident. The Solicitor General then tried to discredit the credibility of Ronald Aviso as an eyewitness.

The trial court, however, held that:

"It is to be recalled that the investigation of this case by the police authorities, and by the Municipal Judge for purpose of the preliminary investigation, took for quite some time or almost one and half month for the reason that the witnesses made themselves scarce to the police for fear of recrimination. Ronald Aviso, who was himself a victim on that fateful night, was recuperating from the injuries suffered. The resultant shock and nervousness could have led to his inability to recount everything he had seen to the police authorities and the Municipal Judge. Such memory lapse due to a traumatic experience of not only a witness to the killing but also of being a victim is understandable and does not impair the intrinsic credibility of the witness. (People vs. Santos, 121 SCRA 833; People vs. Jutie, G.R. No. 72975, March 31, 1989)."

WHEREFORE, the decision appealed from is hereby AFFIRMED. Costs against accused-appellant.
SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

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^[1] Reyes, The Revised Penal Code, Book I, p.515; People v. Jorge, 231 SCRA 693.

^[2] Padilla, Criminal Law, Revised Penal Code Annotated, Book I, 1987 Ed., p.700. See People v. Fronda, 222 SCRA 71 (1993).

^[3] Aquino, The Revised Penal Code, Vol. I, 1987 Ed.