The decision of the Regional Trial Court of Cagayan, Branch 12, in Criminal Case No. 1078-S(80) convicting appellants of murder and imposing the death penalty upon each of them, is before us on review.

On the basis of a criminal complaint^[1] filed by the Integrated National Police of Sanchez Mira, Cagayan charging appellants jointly with Froilan Pacris with having caused the death of Rogelio Lim, the 2nd Municipal Circuit Court in Sanchez Mira, Cagayan issued a warrant for the arrest of appellants.  No bail was recommended, the crime charged being murder.  On 28 May 1980, all the accused filed a petition asking that they be admitted to bail.  The Provincial Fiscal of Cagayan interposed no objection to the petition; the Municipal Circuit Court fixed the bail bond of each of the accused at P40,000.00.  The accused all complied by posting bail bonds; separate orders of release on provisional liberty were then issued.

The Provincial Fiscal then filed the following information:

"That on or about April 30, 1980, in the municipality of Sanchez Mira, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Valeriano M. Pacris, Nestor M. Pacris, Froilan Pacris, Benito Pacris and Mauricio Galzote, together with several John Does who were not identified, armed with la] sharp pointed instrument, and pieces of wood and bamboo, conspiring together and helping one another, with intent to kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and feloniously assault, attack, club and stab one Rogelio Lim y Quina, inflicting upon him several wounds on his body which caused his death.

Contrary to law."^[2]

The accused all pleaded not guilty on arraignment.^[3]

The trial court summarized the people's evidence and that of the defense as follows:

"Briefly stated, [from] the evidence for the prosecution [it] appears that at about 5:00 o'clock to 6:00 o'clock in the morning of April 30, 1980 one Rogelio Lim together with four (4) companions, namely, Ernesto Monje, Samson Adolfo, Elmo Blanco and Tomas Natividad were resting in front of the shade 'apar' owned by Rogelio Lim located at the southern bank of the Masisit River at Masisit, Sanchez Mira, Cagayan having just taken their breakfast when they saw many people about fifty (50) more or less in number catching bangus fry.  Thinking that these people were under Rogelio Lim's employ, the latter and his four (4) companions went to see them, going eastward passing through the northern bank of the river.  Upon seeing that they were not his employees, Rogelio Lim inquired from them why they were catching fry in his concession.  Somebody answered that they were sent by Valeriano Pacris to gather bangus fry in that area.  While Rogelio Lim was facing southwest talking with the bangus fry catchers, Nestor Pacris and Valeriano Pacris coming from the east direction silently approached him from behind and without any warning, Nestor Pacris clubbed said Rogelio Lim on the head with a boat paddle.  When Rogelio turned to face his assailant, Nestor Pacris again hit Rogelio Lim on the right side of his face causing the latter to fall on the ground face up.  While Rogelio was in such position, Valeriano Pacris knelt by his side and stabbed him with a pointed iron, hitting him on the right side of his forehead, then searched his (Rogelio's) waist and shouted to his companions, 'come and we will kill Gil Lim' and immediately, Benito Pacris, Froilan Pacris and Mauricio Galzote and some other persons catching bangus fry all numbering about ten (10) picked up clubs, surrounded Rogelio Lim and simultaneously clubbed him (nagaaduanda) mercilessly even as he lay helpless on the ground.  Ernesto Monte and Samson Adolfo who were with Rogelio wanted to pacify those who were clubbing the latter but Valeriano fired a short firearm at them forcing the two to scamper and run towards their apar taking different routes chased by two persons.  When Ernesto and Samson finally met at the apar, they boarded their jeep and went to the Centro to report the incident.  Pat. Usita, Pat. Cabulisan, Ernesto Monje and Samson Adolfo returned to the scene of the crime but everything was quiet and there were no more persons in the place so they went back to the Centro at the Sanchez Mira Bazar where they were informed that Rogelio Lim was already dead.  Ernesto Monje, Samson Adolfo, Elmo Blanco and Tomas Natividad proceeded to the Police Department to give their statements to the authorities concerned relative to the incident but Pat. Sacramed was very busy so that they waited until their statements were taken that day, April 30, 1980.  Rogelio died of cerebral hemorrage and cerebral concussion.

Upon the other hand, the totality of the evidence for the defense is to the effect that in the morning of April 30, 1980 at about 5:00 o'clock Valeriano Pacris was at the northern bank of the Masisit River together with Mauricio Galzote, Felino Pacris and Jerry Tabian and others from Pamplona, Luna and Claveria teaching his men who were new the techniques of selecting bangus fry.  While there he looked around and saw Rogelio Lim walking towards him:  that when Rogelio reached his place, the latter asked in a belligerent manner if Valeriano and his men had much catch and he answered that they have gathered a little; that Rogelio told Valeriano 'you are really foolish because you let your men come down to catch fry inspite of my prohibition'.  Valeriano answered Rogelio that he pities the people as it is their only means of livelihood and as he straightened his aching waist, Rogelio boxed him and he fell down; that Rogelio kicked Valeriano while on the ground and when he wanted to kick him again for the second time.  Valeriano took hold of his foot and got up.  Rogelio immediately drew his gun and aimed at him but Valeriano parried the gun with his right hand and the gun went off.  Valeriano immediately grappled for the possession of the gun and when he heard the shout of Mauricio Galzote saying, 'Manong at your back', he turned and saw Samson Adolfo with a club aimed at him so he immediately went near Rogelio ducked and put his head on the latter's stomach and Rogelio was clubbed instead; that whenever Samson Adolfo would club Valeriano he would duck and Rogelio would be the receiver of the blows; that when Valeriano's men about 10 to 20 of them went to his rescue, Samson Adolfo ran away while he (Valeriano) ordered his companions, most of them new and whose names he could not remember, to box Rogelio to weaken him.  When Valeriano was already in possession of Rogelio's gun, the latter was already weak that when he knelt to wash his face, he fell to the river bank face down.  So Valeriano ordered his men to carry Rogelio to the raft, brought him to the other side of the river then carried him to a jeep parked in their house then he and others brought the body of Rogelio Lim to the municipal building.  Valeriano surrendered the gun of Rogelio to a policeman and told the latter to see the body of Rogelio Lim inside the jeep if he is still alive and to bring him to a doctor.  Valeriano was put to jail then brought to Curva, Pamplona, Cagayan to the P.C. Headquarters thereat."^[4]

Not persuaded by the defense interposed by the accused Valeriano Pacris, Benito Pacris, Nestor Pacris and Mauricio Galzote, but giving credence in particular to the defense of alibi of accused Froilan Pacris, the trial court rendered a decision^[5] on 1 October 1984 with the following dispositive portion:

"WHEREFORE, in view of the foregoing, the Court hereby finds the guilt of the accused Valeriano Pacris, Nestor Pacris, Benito Pacris and Mauricio Galzote to have been proved beyond cavil of doubt of the commission of the crime of Murder and hereby sentences each of them to suffer the maximum penalty of DEATH and to jointly indemnify the heirs of the deceased in the amount of TWELVE THOUSAND (P12,000.00) PESOS and to pay the costs.  The accused Froilan Pacris is hereby acquitted for insufficiency of evidence and his bailbond is hereby cancelled.

SO ORDERED."

Considering that the death penalty is no longer enforceable under the 1987 Constitution,^[6] the death sentences of appellants were automatically commuted to reclusion perpetua.  Appellants signified their intention to continue with their appeals, in compliance with the Resolution^[7] of the Court dated 13 January 1988.

The following errors were assigned by the appellants in their brief:^[8]

1. The lower court erred in considering the presence of the qualifying aggravating circumstances in the commission of the crime charged.
   
   
2. The lower court erred in its finding that the accused conspired to kill the victim.
   
   
3. The lower court erred in giving credence to the testimony of prosecution witnesses Ernesto Monje and Tomas Natividad.
   
   
4. The lower court erred in convicting the accused of the crime charged beyond reasonable doubt.
   
   
5. The lower court erred in not considering the justifying circumstance of self-defense in favor of accused Valeriano Pacris.
   
   
6. The lower court erred in not appreciating the mitigating circumstance of voluntary surrender in favor of accused Valeriano Pacris.

Appellant Valeriano Pacris claims he is entitled to the justifying circumstance of self-defense.  He alleges that while quietly catching bangus fry together with some companions at the Masisit River in Sanchez Mira, Cagayan, the deceased Rogelio Lim confronted him for allowing his (Valeriano Pacris') men to fish there.  Valeriano Pacris contends he replied to Rogelio Lim in a casual manner that he was sorry for his (Valeriano Pacris') men who had no other means of livelihood and that they were fishing anyway outside the concession area awarded to Rogelio Lim.  A few moments later and without any provocation, Rogelio Lim kicked Valeriano Pacris, hitting him twice in the body.  Rogelio Lim then drew his gun from his jacket and aimed it at Valeriano Pacris but the latter parried the gun.  While they were struggling for the possession of the gun, Valeriano Pacris heard his co-accused Mauricio Galzote shout that a companion of Rogelio Lim was about to club him (Valeriano Pacris) on the back.  He ducked and the blow fell on Rogelio Lim instead; this happened more than once.  Responding later to the call for help of Mauricio Galzote, Valeriano Pacris' men came to his succor.

The trial court gave no credence to the claim of self-defense put up by Valeriano Pacris, and we agree with the trial court on this point.  No unlawful and unprovoked aggression on the part of Rogelio Lim was shown by the defense.  Accepting Valeriano Pacris' testimony at its face value, we do not believe that the two (2) kicks to the body allegedly administered by Rogelio Lim to Valeriano Pacris could be regarded as such aggression.  Valeriano Pacris himself claimed that when Rogelio Lim drew his gun from his jacket, he (Valeriano) adroitly parried the gun and that, immediately thereafter.  Rogelio Lim received blows intended for, but avoided by, Valeriano.  There was, therefore, no reasonable necessity for the murderous and concerted attack upon Rogelio Lim which immediately ensued and which resulted in Rogelio Lim's sustaining twenty-one (21) wounds or injuries, not less than eight (8) of which were fatal according to the post mortem autopsy report on Rogelio Lim prepared and submitted by Dr. Ruben Angobung, medico-legal officer of the National Bureau of Investigation, Manila.

The trial court found that all of Valeriano's co-accused, except Froilan Pacris, had been positively identified by the prosecution witnesses to have participated in the killing of Rogelio Lim.  The trial court described the testimony of the prosecution witnesses as direct, frank, unfaltering and in unison,^[9] especially in respect of Nestor Pacris' twice hitting Rogelio Lim in the head with a wooden paddle and Valeriano Pacris stabbing Rogelio Lim on the forehead with a pointed iron instrument, as Rogelio lay on the ground.  The iron tool penetrated the frontal bone of Rogelio's cranium five (5) centimeters deep and lacerated the brain.  Witness Ernesto Monje narrated what he personally saw as follows:

"Q.	While Mr. Rogelio Lim was talking to that person, how far were you from him?
A.	About 10 meters or less, sir.
Q.	Now to what direction was Rogelio Lim facing to (sic) when he was talking according to you to that person who was one of the persons catching bangus fry?
A.	He was facing southwest, sir.
Q.	And while he was facing . . . while he was conversing with that person what transpired if any?
A.	That was when I saw Nestor Pacris clubbed him on the head, sir.
Q.	With what did (sic) or what instrument did Nestor Pacris club Rogelio Lim?
A.	A wooden paddle, sir.
Q.	On what part of the body of . . . Now, in relation to the late Rogelio Lim where was Nestor Pacris when according to you he clubbed him?
A.	With that paddle, sir? From his back more on the left side from the back coming from the east.
Q.	And what happened to Rogelio Lim when he was clubbed on the head by Nestor Pacris with that paddle?
A.	He turned around and faced the person who clubbed him, sir.
Q.	And as Rogelio Lim turned around to face the person who clubbed him what happened next?
A.	He again hit him . . . clubbed him, sir.
Q.	What part of the body of Rogelio Lim did the club landed when according to you he turned around and clubbed him?
A.	On the right side of his face, sir.
Q.	And what happened to Rogelio Lim when he was hit on that portion of his face?
A.	He fell down, sir.
Q.	And what was his position when he fell down?
A.	He fell down with his head towards the west, sir.
Q.	Face upward or face down?
A.	Face upward, sir.
Q.	And as soon as Rogelio Lim fell face up, what happened next?
A.	Valeriano Pacris knelt by his side and stabbed him with a piece of iron . . . pointed iron, sir.
Q.	What part of the body was hit when according to you Valeriano Pacris stabbed him with the pointed piece of iron?
A.	Here, sir.
COURT INTERPRETER:
	Witness pointed to his forehead more on the right side.
ATTY. PASCUA:
Q.	By the way, before Rogelio Lim according to you was clubbed by Nestor Pacris from behind was there any conversation or exchange of words between the two?
A.	None Sir.
Q.	Now, . . . by the way you said that when Rogelio Lim fell, Valeriano Pacris knelt beside him and stabbed him with a pointed piece of iron. Why, when Nestor Pacris clubbed Rogelio Lim, where was Valeriano Pacris?
A.	They were besides (sic) each other, sir.
Q.	You mean to say that Valeriano Pacris was just besides (sic) Nestor Pacris?
A.	Yes, sir.
Q.	And do you want the Honorable Court understand that both were besides (sic) Rogelio Lim?
A.	Yes, sir."[10]

Unlike in the case of Valeriano Pacris and Nestor Pacris, the prosecution witnesses did not specify the precise mode or extent of participation of Benito Pacris and Mauricio Galzote in the clubbing and mauling of Rogelio Lim unto death.  That Benito Pacris and Mauricio Galzote were both present and responded to the call of Valeriano Pacris to come and kill Rogelio Lim and joined in the assault on Rogelio, was, however, testified to by the prosecution witnesses Ernesto Monje and Tomas Natividad.^[11]

The trial court found the presence of conspiracy.  There was, of course, no direct evidence showing that all the accused had previously agreed to kill Rogelio Lim.  There was, however, no doubt that the accused did join and act in concert with one another in attacking, assaulting and wounding unto death Rogelio Lim.  The trial court said:

"The prosecution witnesses declared that Nestor Pacris hit the head and right face of Rogelio Lim with a boat paddle and when he lay flat on the ground, Valeriano hit him with a pointed iron on his forehead right side and when he was lying helpless.  Valeriano called for his companions about 10 in number to kill the victim and among those who responded were Benito Pacris, and Mauricio Galzote, all armed with clubs and simultaneously clubbed the victim.  This fact is fully corroborated by the findings of the two doctors who found several contused wounds and contused abrasions, lacerated wounds, fractures, hemorrhages and concussions.  So it is clear that all the accused joined one another in assaulting and attacking the victim, hence, they are all responsible for the crime committed as principals by direct participation, that they have conspired to kill the deceased and that the killing was premeditated.

While it is true that there is no direct evidence to show that all the accused have previously agreed to kill the victim it has been ruled by the Supreme Court that although no previous agreement to kill was evidently proven, the existence of conspiracy maybe inferred from the acts of the accused tending to show community of criminal purpose, and conspiracy need not be proved by direct evidence and maybe deduced from the mode and matter in which the offense was committed (People vs. Balane, 123 SCRA 614).  Conspiracy exists if at the time of the commission of the offense the accused had the same purpose and were committed into its execution (People vs. Sy, 113 SCRA, 297; People vs. Villamor, 115 SCRA, 716; People vs. Castro, 11 SCRA 699; People vs. Pagadduan, 29 SCRA 54).  Conspiracy is considered present when the pursuit and assault on the victim is simultaneous or at least contemporaneous (People vs. Nagaddatu, 124 SCRA 594) or when two or more persons act together in the commission of the crime (People vs. Acquiatan, 123 SCRA 501)."^[12]

We find no basis or reason for overturning the above finding and conclusion.

In their brief, appellants argue that the trial court erred in finding the presence of all four (4) aggravating circumstances of evident premeditation, treachery, taking advantage of superior strength and cruelty as circumstances that qualify the crime to murder.  The Solicitor General concedes, and this Court agrees with the Solicitor General, that the aggravating circumstance of taking advantage of superior strength should not have been considered by the trial court, it being absorbed by treachery.^[13] Cruelty, too, cannot be considered as qualifying in the instant case since it was not alleged in the information; at most, it may only serve as a generic aggravating circumstance.  But for cruelty to be appreciated as a generic aggravating circumstance, there must be positive proof that the wounds found on the body of the victim were inflicted while he was still alive in order unnecessarily to prolong physical suffering.^[14] As correctly pointed by appellants, the testimony of Dr. Ruben Angobung, who had exhumed and autopsied the remains of the deceased at the urging of appellants, relating to the ligature or the rope mark in the neck of the victim, is not the kind of evidence that can establish cruelty.  Dr. Angobung did not state that the accused had put a rope around the neck of Rogelio Lim while the latter was still alive and dragged him some thirty (30) meters onto a raft.

Evident premeditation, too, was not sufficiently established.  Evident premeditation cannot be inferred from the animosity that existed between the deceased Rogelio Lim and Valeriano Pacris resulting from the award by the municipality of the lease contract to Rogelio Lim of fishing rights in the Masisit River, which contract had been held in prior years by Valeriano Pacris.  The premeditation must be based upon external proven acts.^[15] No antecedent facts were shown by the prosecution which established (1) the time when appellants determined to commit the crime; (2) an act manifestly indicating that appellants had clung to their felonious determination; and (3) a lapse of time between the determination and execution, sufficient to allow appellants to reflect upon the consequences of their act.^[16] On the contrary, it was appellants, through Froilan Pacris, who tried to establish that prior to 30 April 1980, the deceased Rogelio Lim had harbored an intent to kill or injure the appellants.^[17]

The prosecution, however, did successfully plead the existence of treachery.  While the victim was facing southwest talking with one or more of the bangus fry catchers, Nestor Pacris and Valeriano Pacris coming from the east silently approached him from behind and without any warning, Nestor Pacris clubbed Rogelio Lim on the side of the head with a boat paddle.  When Rogelio Lim turned to face the assailant, Nestor Pacris again struck him on the head with the boat paddle, causing him to fall on the ground, face up.  It was at that instant that Valeriano Pacris dropped to the ground beside Rogelio Lim and stabbed him on the right side of his forehead with a pointed iron tool.^[18] The relative position of the parties involved (Valeriano Pacris and Nestor Pacris approached Rogelio Lim from behind) and the suddenness of the attack sufficiently indicated that Valeriano and Nestor had employed means which tended directly and specially to insure the execution of the crime with minimum risk to themselves.  We note also that Valeriano and Nestor were respectively armed with a pointed iron instrument and a boat paddle.  There was clearly no opportunity for Rogelio Lim to defend himself or repel the initial assault.

Valeriano Pacris and at least one of his co-accused, i.e., Mauricio Galzote, should nevertheless be credited with the mitigating circumstance of voluntary surrender.  That Valeriano surrendered to the Integrated National Police of Sanchez Mira, Cagayan is documented in the records.  Having killed Rogelio Lim, he loaded the body in his jeep and accompanied by his men went to the police station to surrender.  Of the four (4) co-accused, however, only Mauricio Galzote was identified as having accompanied Valeriano to the police station to surrender.^[19] The record does not show that Nestor Pacris and Benito Pacris were similarly present with Valeriano at the police station.  In any event, it was not just the body of the victim and Rogelio Lim's gun that Valeriano Pacris and Mauricio Galzote surrendered, but their own persons as well.  Pfc. Feliciano Valdez, witness for the prosecution, testified as follows:

"FISCAL BELLO:
Q:	When they arrived at the municipal building to surrender the cadaver of Gil Lim, what happened?
A.	He said we are going to bring the cadaver of Gil Lim here whom we killed but please bring us to Curva headquarters because we are safer there.
Q.	While he was telling those words in the Ilocano tongue what did you do?
A.	I asked where was the cadaver?
Q.	And what was the answer?
A.	He answered 'it is inside the jeep where we rode.'
Q.	And when they told you that the cadaver was in the jeep what did you do?
A.	I went to verify and the cadaver was in the jeep.
Q.	Did you put in writing what Valeriano Pacris said when he came to surrender the cadaver of Gil Lim?
A.	Yes, sir.
Q.	Where did you write the words?"[20]

WHEREFORE, the Decision of the Regional Trial Court of Cagayan, Branch 12, in Criminal Case No. 1078-S(80) is hereby MODIFIED to the following extent:

1. Accused Valeriano Pacris and Mauricio Galzote are credited with the mitigating circumstance of voluntary surrender.  Applying the Indeter­minate Sentence Law.  Valeriano Pacris and Mauricio Galzote are hereby SENTENCED to suffer imprisonment for an indeterminate period ranging from seventeen (17) years and four (4) months as minimum to twenty (20) years as maximum:
   
   
2. Since the death penalty is no longer enforceable under the 1987 Constitution, accused Nestor Pacris and Benito Pacris shall suffer the penalty of reclusion perpetua:
   
   
3. All the appellants are hereby ORDERED to indemnify, jointly and severally, the heirs of the late Rogelio Lim in the amount of P50,000.00 (instead of P12,000.00) by way of moral damages.

With the above modifications, the Decision of the trial court is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., (Chairman), Gutierrez, Jr., Bidin, and Davide, Jr., JJ., concur.

---

^[1] Records, p. 1.

^[2] Id., p. 107.

^[3] Id., p. 147.

^[4] Trial Court Decision, pp. 36-37.

^[5] Records, pp. 598-646.

^[6] Article III, Section 19 (1).

^[7] Rollo, p. 207.

^[8] Id., p. 87.

^[9] Decision of the trial court, p. 41:  Rollo, p. 128.

^[10] TSN, 25 January 1982, pp. 16-19.

^[11] TSN, 25 January 1982, pp. 20-22:  TSN, 1 March 1982, pp. 16-18.

^[12] Rollo, p. 133; emphases supplied.

^[13] People vs. Ramillano, 133 SCRA 201 (1984); People vs. Rosario, 134 SCRA 496 (1985).

^[14] People vs. Curiano, et al., 9 SCRA 323 (1963); People vs. Manzano, 58 SCRA 250 (1974).

^[15] U.S. vs. Ricafort, 1 Phil. 173 (1903).

^[16] People v. Obenque, 147 SCRA 488 (1987); People v. Manalo, 148 SCRA 98 (1987); People v. Cafe, 166 SCRA 704 (1988).

^[17] TSN, 20 August 1982, pp. 34-41.

^[18] Decision of the trial court, p. 36; Rollo, p. 48.

^[19] TSN, 23 March 1981, pp. 13 & 15.

^[20] TSN, 23 March 1981, pp. 15-16:  underscoring supplied.