In an information filed with the Court of First Instance of South Cotabato, Branch II, which was docketed as Criminal Case No. 1482, Philippine Army Draftee Frank Quintos was charged with the crime of murder committed as follows:

xxx                xxx                   xxx

"That on or about April 3, 1978, around 5:30 in the afternoon at Calumpang, Makar, General Santos City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with evident premeditation, did then and there wilfully, unlawfully and feloniously maul and club with a piece of wood one James Angeles on the different parts of his body and as a result of which mauling and clubbing, said James Angeles died.

"CONTRARY TO LAW, with aggravating circumstances of cruelty, taking advantage of his public position and that the wrong done was augmented by another wrongful act not necessary for the commission of the first wrong, that is throwing the deceased on a pathway naked." (Record, p. 29) (At pp. 6-7, Rollo)

xxx                xxx                   xxx

The accused pleaded not guilty to the charge.  After due trial, the trial court rendered a decision with the following dispositive portion:

xxx                xxx                   xxx

"ACCORDINGLY, finding Franklin Quintos guilty beyond reasonable doubt of the crime of MURDER, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased James Angeles in the sum of P20,000.00 as actual, moral, and exemplary damages and to pay the costs." (At p. 20, Rollo)

xxx                xxx                   xxx

The accused, Frank Quintos has appealed from said judgment.

The facts as summarized in the People's brief are as follows:

"Sometime in the last week of March, 1978, the deceased, James Angeles, an eighteen-year (18) old farmer and a resident of Silway 8, Polomolok, South Cotabato went to Carmen, North Cotabato to ask for food from relatives.  (p. 44, tsn, Sept. 12, 1978)

"On April 3, 1978, his cousin, Efraim Madrid gave him a sack of rice and P200.00.  The deceased and Romulo de Leon, rode on a 'Maguindanao' bus bound for General Santos City.  At around 2:30 P.M., they arrived in General Santos City.  They unloaded their sack of rice from the bus and loaded it in a Ford Fiera that was bound for Silway 8.  As they were hungry at that time, they went to a restaurant to eat.  While eating at the restaurant, the accused, Franklin Quintos, a draftee of the Philippine Army assigned with the 16th Batallion, who was drinking beer at that time, in fatigue uniform, approached the deceased and de Leon and began investigating them.  He asked the deceased where he came from, the persons he knew in Polomolok, South Cotabato and demanded from the deceased that he show his residence certificate.  Meantime, de Leon went to check the sack of rice in the Ford Fiera.  When he returned to the restaurant, the deceased and the accused were no longer there.  He departed at once and went back to Carmen, North Cotabato.  He informed Efraim Madrid about the incident that had taken place in the restaurant.  (pp. 51-54, tsn, Sept. 12, 1978)

"It appears that after the investigation in the restaurant, the accused ordered the deceased to ride with him on a tricycle.  He took the deceased to the ranch of one Felomino Lamoy in Calumpang, General Santos City which was two (2) kilometers from the Army Headquarters and 150 meters from the highway.  They arrived in said place at around 5:00 P.M.  The accused alighted first, immediately pulled the deceased (sic), gave him a series of fist blows and kicks and whipped him with the buckle of his belt.  Thereafter, the accused took the deceased to the water pump, all the while kicking and boxing the deceased.  Melanie Lanoy, a tuba gatherer asked the compadre of the accused 'Pare, what is the fault of that man, why are you mauling him?' The accused answered, 'This is a rebel pare.' Lanoy, said, 'Pare, if he is a rebel, do not bring him in the civilian area but bring him to your camp.' The accused then said, 'No pare, because I will bring this person to Siguil and cut his neck.' As his (Lanoy) efforts proved futile to dissuade his compadre, he went home.  (pp. 30-22, tsn, Sept. 12, 1978)

"The accused then ordered the deceased to take off his clothes and take a bath.  After the deceased took a bath, the accused ordered him to put on his clothes.  The accused again gave kicks and fist blows to the deceased.  Still dissatisfied, he picked a piece of wood and beat the deceased up until the latter fell unconscious.  (pp. 9-10, 14, 17, 22- 24, tsn, Sept. 12, 1978)

"On April 4, 1978, Policeman Valentino Asetre of General Santos City received information that a cadaver had been found in Calumpang, General Santos City.  Together with Cpl. Coronia and Patrolman Tating, Asetre went to Calumpang.  There, they saw a cadaver on the ranch of Felomino Lanoy, naked, its body and face black with multiple abrasions and contusions amid thorny grasses.  After taking photographs, they took the cadaver to Funeraria Villa.  (pp. 69-71, tsn, Sept. 12, 1978)

"Dr. Jose L. Alvadaro, City Health Officer of General Santos City conducted a post mortem examination of the cadaver and assigned as cause of death:

'1.    Multiple and severe contusions and ecchymotic area all over the thorax, causing intrathoracic hemorrhage

2.  Multiple fractures of several ribs.

3.  Severe contusions and multiple lacerations all over the head, causing cerebral hemorrhage.

4.  Multiple and severe contusions, lacerations and ecchymotic area all over the extremities, back and abdomen.' (pp. 5-8, tsn, Sept. 12, 1978)

"On April 6, 1978, Shirley Angeles identified the cadaver as that of her brother, James Angeles.  (p. 71, tsn, Sept. 12, 1978)" (People's Brief, pp. 3-6)

The trial court found the accused guilty of murder qualified by evident premeditation.  It also considered two aggravating circumstances, namely taking advantage of public position and unnecessary cruelty, but which aggravating circumstances were offset by two mitigating circumstances, voluntary surrender and passion and obfuscation.

The accused does not actually deny culpability for the offense charged.  His brief simply attempts to reduce such culpability and the penalty that should be imposed.

The facts from the viewpoint of the appellant are summarized by the trial court as follows:

"Franklin Quintos, 20 years old, single, testifying for his defense, denied the voluntariness of the execution of his confession although he admitted most of the answers therein which were apparently favorable to him.  It is his story that on April 3, 1978, at about 3:30 o'clock in the afternoon, he was with his companions Rico Aranilla and Mario Rosario waiting for a ride to return to Calumpang.  His two companions, though, went home ahead of him and he was left alone when he noticed a person who seemed to be a rebel because he pretended to be a military, wearing a belt and a hat, but afraid of soldiers.  He bumped him so he asked him where he came from and if he was a soldier.  He answered that he came from Carmen, North Cotabato, and that he is a soldier.  Asked to what unit he belongs, the answer was 26th IB and that his Commanding Officer is Romeo Panes.  It occured therefore to him that he was a rebel because this Romeo Panes is publicly known as leader of the rebel forces.  He arrested him, boarded a tricycle and brought him to their headquarters.  When they were about to reach their headquarters, the man refused to go with him.  While he was lighting his cigarette, the deceased boxed him, hitting him on his stomach.  They exchanged blows as a result of which, the man lost consciousness.  When he regained, he directed him to be brought to the headquarters for interrogation but he still refused.  At that time Rico Aranilla and Mauro Rosario passed by so he asked them to help him bring the victim to their headquarters, but the duo refused to do so because it was already time and that they will just send somebody to help him.  While waiting, the deceased ran away so he chased him at a distance of about two (2) kilometers.  He overtook him and asked him why he was not going with him to the headquarters when he was not harming him.  The deceased answered that he has no fault, at the same time boxing him, hitting his breast.  They exchanged blows again.  As the deceased was at the losing end of the fist fight, tried to get a piece of stick (seventeen inches long and a little bit smaller than his forearm), he grappled with him.  When he had wrested it, he struck him with it on his head, causing him to fall to the ground.  Unconscious, he left him and reported to Lt. Licodine, his Platoon Leader, that he had mauled a civilian suspected to be a rebel.  He was placed inside the stockade.  He had confidential mission given to him by one Capt. Blanco and that mission includes even the license to kill.  x x x." (Rollo, pp. 17-18)

The appellant states that the trial court made the following errors:

I

"THE TRIAL COURT ERRED IN FINDING THE ACCUSED­-APPELLANT GUILTY OF MURDER INSTEAD OF HOMICIDE.

II

"THE TRIAL COURT ERRED IN CONSIDERING THE AGGRAVATING CIRCUMSTANCES OF TAKING ADVANTAGE OF PUBLIC POSITION AND UNNECESSARY CRUELTY." (Brief for Appellant, p. 1)

We agree with the petitioner that the qualifying circumstance of evident premeditation is not present in the instant case.

For evident premeditation to be considered, it is necessary that the following elements are established:  (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that he has clung to his determination; (3) sufficient lapse of time between determination and execution to allow him to reflect upon the consequences of his act.  (People of the Philippines v. Wilfredo Talla and Tolito Talla, G.R. No. L-44414, January 18, 1990)

In the instant case, the victim and the accused casually met in the restaurant in General Santos City at around 2:30 P.M.  It was only after the accused and the deceased arrived at Calumpang which must be between 3 and 5 o'clock that said accused uttered "No, Pare, I will bring him to Siguil to cut his neck." At that time, the victim was already being mauled and the mauling continued until the victim lost consciousness and later died.  The resolution to kill was therefore, made only upon the utterance of the accused.  When the victim lay unconscious, the accused left and went to their headquarters.  He reported to his superior that he had mauled a civilian and left him unconscious.  The whole evening, the accused just stayed in their headquarters.  Under these circumstances, evident premeditation is clearly not present.  The time when the accused determined to commit the crime was not established nor was there sufficient time and opportunity for the accused to deliberate on the meaning and the consequences of his act.  (People of the Philippines v. Jesus Francisco, G.R. No. 69580, February 15, 1990)

The aggravating circumstances of cruelty and taking advantage of public position were, however, correctly appreciated by the trial court.

At the time of the incident, the accused was an army draftee and was in full army fatigue uniform.  It was on account of his being an army man that he arrested the victim on the pretext that the latter was a rebel and brought him to the ranch of Felomino Lanoy where the victim was mauled to death.

Cruelty was clearly present considering that the accused deliberately prolonged the suffering of the victim by boxing and kicking him in a malevolent manner.  He even ordered the victim to strip naked and take a bath.  With the contusions and abrasions on the victim's body and the mental torment that must have accompanied this unusual order in the midst of a beating, the bath surely caused him excruciating pain.  Not contented with this, the accused continued to inflict on the victim after the bath, a barrage of fist blows and kicks.

Considering that the qualifying circumstance of evident premeditation was not sufficiently proved, the crime committed by the accused is therefore, only homicide with the aggravating circumstances of cruelty and taking advantage of public position and with the mitigating circumstances of voluntary surrender and the analogous circumstance of passion and obfuscation because of an outraged feeling, believing the deceased to be a rebel.  (p. 15 Decision)

The penalty prescribed for the offense of Homicide is reclusion temporal or a period of twelve (12) years and one (1) day to twenty (20) years.  Applying the Indeterminate Sentence Law, the penalty to be imposed upon the accused should be from eight (8) years and one (1) day of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum.  The indemnity to be paid to the heirs of the victim shall also be increased to P30,000.000 in line with the recent decisions of the Court on the matter.

WHEREFORE, the judgment of conviction appealed from is hereby AFFIRMED with the following modifications.  The penalty imposed on the accused-appellant is reduced to a penalty of eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum while the indemnity to be paid to the heirs of the victim is increased to P30,000.00.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, and Bidin, JJ., concur.
Cortes, J., no part.