Accused-appellant Jaime Reyes y Arogansia seeks the reversal of the decision^[1] of Branch 27 of the Regional Trial Court in Sta. Cruz, Laguna, dated October 5, 1994, declaring him guilty beyond reasonable doubt of the crime of murder as then punished under Article 248 of the Revised Penal Code, before its amendment by Republic Act No. 7659.

By way of backdrop, appellant was arrested by agents of the National Bureau of Investigation in Parañaque pursuant to a warrant of arrest^[2] issued by the Municipal Trial Court of Sta. Cruz, Laguna, and was turned over to the custody of the Philippine National Police of said province. On May 2, 1990, appellant was admitted to bail. The criminal complaint was later amended to change his middle name stated therein from "Bautista" to "Arogansia."^[3]

Appellant failed to submit his counter-affidavit as ordered by the municipal trial court, hence he was deemed to have waived his right to preliminary investigation. The records of the case were then forwarded to the Office of the Provincial Prosecutor of Laguna which filed an information on July 2, 1990 charging herein appellant with murder and alleging

"That on or about February 15, 1990, in the municipality of Santa Cruz, province of Laguna, Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused while conveniently armed with a handgun and motivated by hate and revenge with intent to kill, with evident premeditation, by means of treachery, did then and there willfully, unlawfully and feloniously attack, assault and shoot at MEYNARDO ALTOBAR y MENGUITO with the said weapon, thereby the latter suffered gunshot wound which directly caused his death to the damage and prejudice of his surviving heirs.

That in the commission of the crime the qualifying circumstances were present: (1) evident premeditation & treachery."^[4]

During his arraignment with the assistance of his counsel de oficio, appellant pleaded not guilty to the crime charged.^[5] The pre-trial conference was terminated on November 28, 1990 and, thereafter, trial proceeded. In the course of the proceedings, the bail of appellant was cancelled and he was ordered arrested by virtue of a bench warrant for failure to appear on a scheduled hearing.

Prosecution witness Iluminado Broas testified that on or about 7:00 o'clock in the evening of February 15, 1990, he and the victim, Meynardo "Jun Boy" Altobar, Jr., together with another prosecution witness, Joel Apundar, were seated in front of the sari-sari store of Edwin Laborde at M.H. del Pilar Street, Sta. Cruz, Laguna. They were talking with each other when suddenly a "bemoustached" man approached them and asked Altobar, Jr., "Ikaw ba si Jun Boy?" When the latter replied by nodding his head, the man, who was later identified as herein appellant, immediately pulled out a gun from something which looked like a book tightly held under his left armpit and shot the victim, hitting him in the neck.

Broas was able to push the wounded victim aside before the assailant pulled the trigger for a second shot. Thereafter, appellant pointed the gun at the group and pulled the trigger , but the gun jammed and did not fire. Appellant thereupon ran towards the opposite direction, obviously to avoid being caught or identified by them.^[6] The group rushed to the aid of the victim who sat slouched on the pavement, bathed in his own blood, about a meter away from where they were seated. They hailed a tricycle and brought the victim to the hospital where he expired.^[7]

Prosecution witness Joel Apundar corroborated the testimony of Broas in its material points. He testified further that when appellant escaped by running towards the direction of the P. Guevarra Memorial High School, he shouted, "Habulin ninyo iyan, habulin ninyo!" which was heard by several persons within the vicinity.^[8] Broas and Apundar both testified that the man was wearing a piece of lady's stocking as a mask, RayBan type sunglasses, a"sure-fit" cap,^[9] black pants and a white t-shirt.^[10]

Another prosecution witness, Johnny Abao, testified that at around 7:00 o'clock in the evening of February 15, 1990, he was in the company of Felix Herbosa and Jun Laborte at Del Pilat Street in the same town. They heard two gunshots and somebody shouted, "Habulin ninyo." Then he saw a man running away from the direction where the gunshots and shout emanated and going towards them. Their group was about 30 meters away from the Laborte store. The man ran along Del Pilar Street, turned right to Kamatoy Street, and then right to P. Guevarra Street. As he ran after the man, he picked up something for his defense. He only gave up the chase when he saw that the man had boarded a slow moving tricycle waiting along P. Guevarra Street. He later helped witnesses Apundar and Broas in bringing the victim to the hospital on board a tricycle driven by Martin Buena.^[11]

Dr. Guia G. Abad, a medico-legal officer, conducted an autopsy on the body of the victim. Her findings were set forth in a Medico Necropsy Report, marked as Exhibit "G" by the prosecution, as follows:

"1. One circular wound measuring 2 mm x 2 mm penetrating located 2 cm above the medial insertion of the left clavicle directed rightwards to a wound with irregular edges measuring 1 cm x 1 cm located 12 cm from midspinal on right upper back at a level 4 cm below the lower border of nape, just above the upper edge of right scapular bond.

CAUSE OF DEATH:

Shock due to hemorrhage due to penetrating wound."^[12]

Another prosecution witness Manolito A. Manuel testified that, while riding on his racer-type bicycle passing along P. Guevarra Street on his way home to Barangay Sto. Angel Sur in the same town, he heard two gunshots which he ignored. Upon reaching the corner of P. Guevarra and Kamatoy Streets, he fell from his bicycle because he was nearly sideswiped by a passenger jeep. While sprawled on the street with his bicycle, he saw a man running towards a slow-moving tricycle and who then boarded the same. Inside the tricycle, the man removed his mask and put a gun on the passenger seat.^[13] When Manuel stood up and rode his bicycle again, he noticed that the man was staring at him. He was more or less five meters away from the said tricycle and the place was illuminated by the lamppost.

Just as he reached the big bridge, he noticed that the said tricycle, with the same driver and passenger, was moving behind him. Upon reaching a street corner, he made a full stop and again noticed the driver and the passenger of the said tricycle giving him an intimidating look. He thereafter proceeded towards his home and he tricycle went in the direction of Patimbao.^[14] He later identified the passenger as appellant,^[15] and the driver as Ernan Reyes, a son of Ely Reyes who is a cousin of appellant.^[16]

Appellant, as expected, denied having killed Altobar, Jr. He testified that on the date and time in question, he was at the Parañaque Cockpit owned by Rolly Ligon, together with Obet Legasto and Raul Reyes, on a painting job. The said cockpit is reportedly 85 to 90 kilometers away from Sta. Cruz, Laguna and it would take more than two hours to travel from one place to the other.^[17]Appellant's alibi was corroborated by his relative, Raul Reyes, who testified that he and appellant were together the whole night of February 15, 1990 and they never left the cockpit compound.^[18]

However, the prosecution presented two rebuttal witnesses, Serafin Nepomuceno and Eleodoro Anibersaryo to refute this alibi of appellant. Witness Nepomuceno testified that at around 5:30 in the afternoon of February 15, 1990, he was at the house of witness Anibersaryo at Green Village Subdivision, also in Sta. Cruz. They were having a celebration when appellant arrived together with Felix Mercado, Anibersaryo's half brother. Appellant left after drinking a bottle of beer. The celebration did not last long because the group had to attend to important matters in the public market. On their way thereto aboard an owner-type jeep, they saw appellant walking along Taleon Street^[19] which was a few blocks away from the scene of the crime.

The other rebuttal witness, Eleodoro Anibersaryo, corroborated the testimony of Nepomuceno. He testified that they saw appellant on February 15, 1991 at around 5:30 in the afternoon, first, when appellant arrived in Anibersaryo's house and, second, when appellant was walking along Taleon Street.^[20] In fact, their group greeted appellant but could not accommodate him in their jeep which was already full.^[21]

Based on the evidence introduced by the prosecution vis a vis what was adduced by the defense, which will hereafter be discussed, the trial court concluded that it was appellant Jaime Reyes who shot and killed victim Meynardo Altobar, Jr. Thus,on October 5, 1994, the court below rendered the following judgment:

"WHEREFORE, premises considered, the Court finds the accused JAIME REYES y AROGANSIA guilty beyond reasonable doubt of the crime of Murder qualified by evident premeditation defined and penalized under Art. 248 of the Revised Penal Code with the attendant generic circumstance of nocturnity and hereby sentences said accused to suffer the penalty of reclusion perpetua with all its accessory penalties, to indemnify the heirs of the victim Meynardo Altobar y Menguito the amount of P90,000.00 for and as actual and compensatory damages inclusive of expenses incident to the burial, P100,000.00 for and as moral damages, P50,000.00 for and as exemplary damages and the further sum of P20,000.00 for expenses of litigation inclusive of attorney's fee, all without subsidiary imprisonment in case of insolvency and to pay the costs.

In the service of his sentence, the accused shall be credited in full with the period of his preventive imprisonment."^[22]

Hence, this appeal wherein appellant imputes four supposed errors to the trial court, namely, (1) in finding that treachery attended the killing of the victim Meynardo Altobar, Jr.; (2) in appreciating the aggravating circumstance of evident premeditation to qualify the crime to murder; (3) in appreciating nocturnity as an aggravating circumstance in the commission of the crime; and (4) in convicting him of the crime charged despite the failure of the prosecution to prove his guilt beyond reasonable doubt.^[23]

Appellants faults the trial court for holding that the killing of victim Altobar, Jr. was attended by treachery. He contends that when he openly approached the victim and asked him, "Ikaw ba si Jun Boy?" the latter must already been alerted and forewarned of an impending attack. Moreover, the attack was frontal as shown by the fact that the victim was hit near the neck^[24] above the left clavicle. The Court disagrees.

The prosecution evidence meets the requisites for appreciating alevosia in the commission of the crime, viz.: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) appellant consciously and deliberately adopted the particular means, methods or forms of the attack employed by him. The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the letter of any real chance to defend himself and thereby ensuring its commission without risk to himself.^[25]

As argued by the prosecution, the fact that appellant approached the victim and asked him if he was "Jun Boy" could not have served as a warning to the victim of an impending harm. It could not have taken appellant more than three seconds to ask the question and immediately after getting a positive response, he fired at the victim.^[26] This is sustained by reliable witness accounts.

Prosecution witness Iluminado Broas lucidly explained:

"Q:  Do you recall of (sic) any unusual incident which happened on that particular occasion while in the process of telling stories among yourselves?

A:   Yes, sir.

Q:   Will you tell the Court what happened?

A:   While we were telling stories at that time, a certain man came and then asked who this Jun Boy is.

Q:   Will you tell the Court if you recall the exact words of this man, what was (sic) the exact words?

A:   The exact words by the man was (sic) "ikaw ba si Jun Boy?" and then he pulled out a gun from something like a book pressed between his left armpit and then he fired a shot at Jun Boy.

Q:   Was Jun Boy hit by that first shot?

A:   He was hit, sir.

Q:   Did you notice on what part of his body as Jun Boy hit?

A:   Jun Boy was hit near the neck.

Q:   Before he was shot by this man, was Jun Boy able to answer or utter any remarks?

A:   Yes, sir.

Q:   What was his answer?

A:   He just nodded his head.

Q:   After Jun Boy nodded if as you mentioned that he was the Jun Boy being sought by this man, this man suddenly pulled out a gun from what appeared to be a book pressed between his left armpit, is that what you mean?

A:   Yes, sir."^[27]

This was corroborated by witness Joel Apundar:

"Q:  While you were there at that time in the store of this Laborde, do you recall of (sic) any unusual incident that happened?

A:   There was.

Q:   What happened?

A:   We were sitting on a wooden bench and while we were sitting on a wooden bench, somebody approached us and asked who among us is Jun Boy and after knowing who was Jun Boy, he immediately fired a gun at us."^[28]

We can infer from the foregoing testimonies of these prosecution witnesses that the suddenness and mode of the attack adopted by appellant placed the victim in a situation where it would be impossible for him to foresee any impending harm and to resist the attack or defend himself. It has repeatedly been held that even if the attack on the victim was immediately preceded by a cry or signal from the accused, such attack is no less treacherous^[29] since the immediacy of the assault prevents the victim from evading the same or defending himself therefrom. Even a frontal attack can be treacherous when it is sudden and unexpected and the victim was unarmed,^[30] as what happened in the case at bar.

Apropos to the foregoing, the rule is that the aggravating circumstance of nocturnity is ordinarily deemed absorbed in treachery^[31] because it forms part of the treacherous means and manner specifically employed by the accused to insure the execution of his criminal act. Nocturnity is appreciated as an aggravating circumstance only when it is purposely sought by or affords some degree of impunity to the offender, which does not appear to be so in this case. The prosecution witnesses testified that although the crime was committed at around 7:00 o'clock in the evening, the locus criminis was well lighted^[32] and the face of appellant could easily be seen through his transparent mask.^[33] The circumstances of treachery and nocturnity may well be regarded then as complementing each other, with the latter absorbed by treachery thus creating a single circumstance qualifying the killing as murder.

It is also worth mentioning that while appellant reportedly had a sort of a mask and was using sunglasses, these clumsy accouterments could not constitute the aggravating circumstance of disguise. Legally, disfraz contemplates a superficial but somewhat effective dissembling to avoid identification. Here, even if it is true that he assumed that masquerade, appellant was readily recognizable because his face could easily be seen together with the identifying feature of his mustache. Thus, there was no mention of his having used a disguise, whether in the information or by the trial court, the prosecution or the Solicitor General. Why appellant resorted to that juvenile gaucherie is an example of the delusive quirks of the criminal mind which defy rational explanation.

What is instead in issue is the aggravating circumstance of evident premeditation. Appellant claims that the trial court erred in appreciating this as another qualifying circumstance, on the ground that the prosecution failed to prove all the requisites thereof.^[34] Appellant is correct. The prosecution failed to prove (a) the time when the offender determined to commit the crime, (b) an act manifestly indicating that the culprit had clung to his determination and (c) a sufficient interval of time between the determination and execution of the crime to allow him to reflect upon the consequences of his act.^[35] These elements of evident premeditation must be established with equal certainty and clarity as the criminal act itself before it can be appreciated as a qualifying circumstance.

The testimony of prosecution witness Jonas Soriano that on February 7, 1990 Mercy Reyes, daughter of appellant, told him to inform the victim to be careful because appellant had a gun and was looking for him;^[36] and the testimony of Perla Ramos that on February 8, 1990, appellant went to her house looking for his daughter^[37]and, before leaving, he stated, "Huwag lang mayroong mangyayari sa anak ko wala kayong narinig, wala kayong nakita,"^[38] cannot be taken against appellant as evidence of his intent or plan to kill the victim.

Mere presumptions and inferences, no matter how logical and probable they might be, would not be enough to sustain a finding of this qualifying circumstance.^[39] For that matter, absent the elements thereof as earlier noted, neither can it be considered as an aggavating circumstance. Nonetheless, appellant is still liable for the crime of murder as the qualifying circumstance of treachery was present and proven by the prosecution.

Appellant faults the lower court in convicting him of the crime charged despite the failure of the prosecution to prove his guilt beyond reasonable doubt.^[40] This submission is not only too generalized an averment but is likewise devoid of merit. Although the prosecution's eyewitnesses, Broas and Apundar, initially failed to reveal or disclose the name of appellant in their preliminary affidavits, the physical description and identification of the gunman as narrated by them matches the identity of herein appellant.

Moreover, during the trial, appellant was positively identified by Broas and Apundar as the man who shot Altobar, Jr. Broas explained that the day in his disclosure of the name or identity of appellant was because he was afraid to mention the name of the person who shot the victim and he was so afraid because he definitely knew the assailant.^[41] Apundar, in turn, confessed that the delay in his revelation of the identity of appellant was because he was "afraid that Jaime might return" to him.^[42]

The failure of the prosecution witnesses to immediately name or identify herein appellant as the culprit is understandable. It is common for witnesses to delay or vacillate in disclosing the identity of the offender after the startling occurrence for fear of reprisal, more so since they were townmates and one of them is related to appellant. Incidentally, prosecution witness Manuel, on his part, positively identified appellant as the man who ran towards a slow-moving tricycle, boarded the same, placed his gun on the passenger seat, removed his mask., and gave him an intimidating look.^[43]

It is a jurisprudential doctrine of long standing that, aside from its intrinsic weakness, the defense of alibi and denial invoked by herein appellant cannot prevail over the positive identification by these prosecution witnesses who had no improper motive whatsoever to falsely testify against him.^[44] This decisional rule applies squarely to demolish appellant's pretensions.

As to the trial court's award of moral and exemplary damages to the heirs of deceased Meynardo Altobar, Jr., the Court finds the same to be excessive with respect to moral damages and unwarranted with regard to exemplary damages. Consistent with our jurisprudence, the award of moral damages in the present case has necessarily to be limited by the Court to the maximum amount of P50,000.00.^[45]

Exemplary damages may be awarded in criminal cases where the crime was committed with one or more aggravating circumstances.^[46] In the instant case, no aggravating circumstance is present to warrant the award of exemplary damages since treachery has been used to qualify the killing to murder, nocturnity has been absorbed by treachery, and evident premeditation has not been proved.

WHEREFORE, the appealed judgment is hereby AFFIRMED, but with MODIFICATION of the civil liability of accused-appellant Jaime Reyes. Conformably with the foregoing discussion, he is hereby ordered to pay the heirs of Meynardo Altobar, Jr. the sum of P50,000.00 as death indemnity, P90,000.00 as compensatory damages for funeral expenses, P50,000.00 by way of moral damages, and P20,000.00 as actual damages for litigation expenses inclusive of attorney's fees, all without subsidiary imprisonment in case of insolvency, and with costs against accused-appellant.

SO ORDERED.

Melo, Puno, Mendoza and Martinez, JJ., concur.

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