On December 9, 1994, accused-appellant Pablo Lansang, along with Noel Murial and Victor Mendez, were charged with murder committed as follows:

That on the 3rd day of November 1994, at about 9:45 o'clock in the evening, more or less, in barangay Pandan, municipality of Sogod, province of Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping each other, with intent to kill, evident premeditation and treachery, did then and there wilfully, unlawfully and feloniously attack, assault, hack and stab one Vidal Larita with the use of two (2) long sharp-pointed bolo and one (1) hunting knife, which the accused had provided themselves for the purpose, thereby inflicting upon the victim the following injuries:

x x x x x x x x x

which injuries caused the instantaneous death of the victim, to the damage and prejudice of his heirs and of social order.

CONTRARY TO LAW.^[1]

The case was docketed as Criminal Case No. 1812 of the Regional Trial Court of Maasin, Southern Leyte, Branch 25.

All of the three accused entered a plea of "not guilty."^[2] Subsequently, however, Victor Mendez and Noel Murial, with the assistance of their counsel de officio, withdrew their negative plea and pleaded guilty to the lesser offense of homicide.^[3] Thereafter, trial ensued against accused-appellant Pablo Lansang.

The prosecution established that on November 3, 1993 at 6:00 p.m., while the victim, Vidal Larita, was visiting his son, Antonio Larita, in Barangay Pandan, Sogod, Southern Leyte, Pablo Lansang and his wife passed by and invited them to attend the seventh day novena prayer for his mother-in-law, the wife of Nene Mendez. Vidal Larita declined since he was avoiding Nene Mendez, with whom he had an altercation the week before. Lansang's wife was persistent, so the victim went with his son. He attended the prayer and partook of the food and drinks that were served thereafter. Antonio left his father at Mendez's house still engaged in a drinking spree.^[4]

Two hours later, Antonio heard Lansang's voice shouting, "Ayaw paikyasa." (Don't let him escape.) Immediately, he went to Mendez's house and found his father being attacked by Lansang, Nene Mendez, Victor Mendez and others. His father was able to run away, while Antonio returned to his house.^[5]

Meanwhile, Vidal Larita went to the house of Sulpicio and Juana Olaco and recounted to them that he had been in a fight with Nene Mendez. Moments later, Lansang and Murial arrived, carrying unsheathed bolos. They greeted Larita good evening, which the latter acknowledged. Suddenly, Murial hacked Larita's arm with his bolo. Lansang then stabbed the victim several times. The victim ran away while his assailants pursued him. When he was about ten meters away, the victim fell.^[6]

Dr. Myrna C. Tan, who conducted the post-mortem examination of the victim, found that he was stabbed and hacked with a sharp-edged instrument and sustained a total of fifteen wounds on different parts of his body.^[7]

The defense presented the testimonies of Noel Murial and Victor Mendez. Accused-appellant Pablo Lansang did not testify.

Noel Murial testified that the victim, Vidal Larita, stabbed Nene Mendez on the chest so he and Victor Mendez retaliated by killing Vidal Larita. He claimed that Pablo Lansang took no part in the killing as he was with Nene Mendez at Sogod Emergency Hospital.^[8]

Victor Mendez, likewise, admitted that he and Noel Murial killed Vidal Larita and that Pablo Lansang was at the Sogod Emergency Hospital when the killing took place.^[9]

On August 25, 1997, the trial court rendered judgment as follows:

WHEREFORE, judgment is hereby rendered finding the accused PABLO LANSANG GUILTY beyond reasonable doubt of MURDER, the crime charged, and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and its accessories as provided by law, and to pay the proportionate costs.

In addition, accused is jointly and severally liable with convicts Noel Murial and Victor Mendez in the amount of P50,000.00 as death indemnity.^[10]

Accused-appellant interposed this appeal assigning the following errors:

I.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT PABLO LANSANG FOR THE CRIME OF MURDER DESPITE THE REASONABLE DOUBT OF HIS PRESENCE IN THE CRIME SCENE.

II.

ASSUMING THAT ACCUSED-APPELLANT PARTICIPATED IN THE KILLING OF VICTIM VIDAL LARITA, HE COULD ONLY BE GUILTY OF HOMICIDE, MITIGATED BY THE IMMEDIATE VINDICATION OF A RELATIVE.^[11]

We are not persuaded.

Accused-appellant's defense that he was not at the crime scene deserves no credence, in light of his positive identification by two witnesses as one of the killers. It was shown that both of these witnesses, Juana Olaco and Barangay Tanod Cecilio Cabales, have personally known accused-appellant for a reasonable length of time and can even trace his relations to some persons belonging to their community. One of the accused, Noel Murial, admitted that Juana Olaco was present when the killing took place.

Hence, accused-appellant's defense of alibi must fail. The trial court was correct in stating that the positive identification of the accused-appellant by the prosecution witnesses cannot simply be overcome by the defense of alibi.^[12] Moreover, the place where accused-appellant claimed to have been staying at the time of the commission of the crime was so near the crime scene that it was not physically impossible for him to have been present at the place of the crime at the time of its commission.^[13]

Accused-appellant's second assignment of error lacks merit. The justifying circumstance of defense of a relative can only be raised where there is a concurrence of the requisites of unlawful aggression, reasonable necessity of the means employed to repel the aggression and that the person making the defense had no part in the provocation.^[14]

In the case at bar, the prosecution witnesses testified that after the fight between Vidal Larita and Nene Mendez, Larita immediately ran away. The unlawful aggression ceased from that moment. Therefore, accused-appellant's use of force was completely unjustified as there was no more hostility to be repelled.
However, we take exception to the trial court's finding of treachery, to wit:

There was treachery in this case and this is supported by the evidence on record when Noel and Pablo tried to be friendly with Vidal and deceivingly respectful when they first greeted him a "Good Evening" which the latter answered also in a respectful way. Then, all of a sudden, Noel hacked Vidal and Pablo followed suit, without giving Vidal a fair chance to defend himself.^[15]

Treachery exists when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof which tend directly and specifically to ensure its execution, without risk to himself arising from the defense that the offended party might make.^[16] In People vs. Lab-eo, (G.R. No. 133438, January 16, 2002) it was held that:

The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape.

In the instant case, treachery cannot be properly appreciated as the accused-appellant's attack against the victim was not unexpected or without warning. In fact, prosecution witness Cecilio Cabales testified that he warned the victim about the assailants, viz:

Q: What happened next?
A: I learned that Bidal Lareta (sic) had a quarrel so I advised him just stay put as I will go in the upper portion.

Q: While going towards the upper portion of Pandan what did you see, if any?
A: When I left 20 meters away from the house of Olaco I met Pablo Lansang and Noel Murial carrying a weapon which have (sic) no scabbard so I went back.

Q: Towards what?
A: I went back towards the house of Olaco.

Q: And what did you say, if any, when you went back towards the house of Olaco?
A: I told Lareta (sic) to watch out because you are the one being sought for.^[17]

We have repeatedly ruled that where a killing was preceded by an argument or quarrel, the qualifying circumstance of treachery can no longer be appreciated.^[18] The previous fight would have placed the victim on guard for any reprisal by the assailants.

In the case at bar, Vidal Larita had just been in a fight with accused-appellant and the other co-accused. In this connection, it is well to reproduce portions of Juana Olaco's testimony:

Q: What was the purpose of Bidal Lareta (sic) when he arrived to your house that evening?
A: He told us that he was boxed by Nene Mendez.

Q: And what else did he tell you?
A: That he stabbed Nene Mendez.

Q: What was your reply?
A: We told him that since you were able to stab Nene you must surrender to the police authority.^[19]

Furthermore, prosecution witness Antonio Larita, son of the victim, testified:

Q: At around past 9:00 o'clock what happened next, if you know, while you are in your house?
A: There was a commotion.

Q: Where did that commotion come from?
A: In the house of Nene Mendez.

COURT: How were you able to notice the commotion?

A: Because I heard a shout saying don't let him escape.

COURT: Did you come to know whose voice was that?

A: Yes.

COURT: Who?

A: That of Pablo Lansang.

x x x x x x x x x

COURT: Where did you go

A: Towards the house of Nene Mendez.

PROSECUTOR YU:

Q: And what did you observe?
A: I saw that there was a commotion and they confronted my father.

COURT: You are referring to whom when you said they?

A: Pablo Lansang, Nene Mendez, Victor Mendez and their companions.

x x x x x x x x x

Q: Upon seeing your father being confronted by the group of Murial, Victor Mendez and Pablo Lansang what did you do?
A: When I went down and going towards the house of Nene Mendez I met my father who was able to get out from the group.

Q: What did your father say, if any?
A: My father told me to back out because they were many.^[20]

The trial court also found that abuse of superior strength attended the commission of the crime. However, this circumstance was not specifically alleged in the information, hence, it cannot be appreciated either as a qualifying or an aggravating circumstance.^[21] Consequently, accused-appellant can only be held liable for Homicide, not Murder as found by the trial court.

The penalty for Homicide, as prescribed in Article 249 of the Revised Penal Code, is reclusion temporal, to be imposed in its medium period. Applying the Indeterminate Sentence Law, accused-appellant shall be sentenced to a penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) and one (1) day of reclusion temporal, as maximum.

Finally, we affirm the trial court's award of P50,000.00 as death indemnity to the heirs of the victim, Vidal Larita, pursuant to established jurisprudence.^[22]

WHEREFORE, in view of the foregoing, the appealed decision of the Regional Trial Court of Maasin, Southern Leyte, Branch 25, in Criminal Case No. 1812 is MODIFIED. Accused-appellant Pablo Lansang is found guilty beyond reasonable doubt of the crime of Homicide, instead of Murder, and is sentenced to an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) and one (1) day of reclusion temporal, as maximum. The appealed decision is AFFIRMED in all other respects.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, and Austria-Martinez, JJ., concur.

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^[1] Rollo, pp. 7-8.
^[2] Records, p. 21.
^[3] Ibid., p. 28.
^[4] TSN, 15 January 1997, pp. 3-7.
^[5] Ibid., pp. 10-14.
^[6] TSN, 27 June 1996, pp. 4-8; TSN, 21 August 1996, pp. 3-5.
^[7] TSN, 14 December 1995, p. 3.
^[8] TSN, 26 February 1997, pp. 5-6.
^[9] Ibid., pp. 17-19.
^[10] Rollo, p. 26.
^[11] Ibid., p. 46.
^[12] People v. Lachica, G.R. No. 143677, May 9, 2002.
^[13] People v. Cana, G.R. No. 139229, April 22, 2002.
^[14] People v. Babor, et al., 262 SCRA 359 (1996).
^[15] Rollo, p. 25.
^[16] People v. Obordo, G.R. No. 139528, May 9, 2002.
^[17] TSN, 27 June 1996, pp. 5-6; emphasis supplied.
^[18] People v. Lumintigar, G.R. No. 132557, January 15, 2002.
^[19] TSN, 21 August 1996, p. 4; emphasis supplied.
^[20] TSN, 15 January 1997, pp. 7-10; emphasis supplied.
^[21] Revised Rules of Criminal Procedure, Rule 110, Sections 8 and 9.
^[22] People v. Marquez, 136736, April 11, 2002.