People of the Philippines vs. Santiago Clementer, et al.

Abuse of superiority qualifies a killing as murder where the armed accused, aided by companions, takes advantage of superior strength over an unarmed victim who is reduced to helplessness; positive eyewitness identification prevails over an alibi that does not establish the impossibility of the accused’s presence at the crime scene.

Concordio Saraos and Dalmacia Melgar were spouses residing with their eight children and a nephew at Sitio Kiawal, Barrio Base Camp, Maramag, Bukidnon. The Clementer brothers—Federico, Santiago, Carlito, Eliseo, and Dominador—were known to Saraos for about five years and had been his friends. A grudge existed between the Clementer family and Saraos because Andres Clementer, an elder brother of Eliseo, had been killed by Washington Basadre, a nephew of Saraos, and the Clementers suspected that Saraos had concealed Manuel Basadre, another nephew involved in that killing. Washington later pleaded guilty.

At about ten or eleven o’clock in the evening of November 23, 1969, Concordio Saraos, his wife Dalmacia Melgar, their eight children, and a nephew were resting in their house at Sitio Kiawal, Barrio Base Camp, Maramag, Bukidnon. The children were asleep, but Saraos and Dalmacia were still awake talking about life’s trials. They heard their dog bark. Saraos peeped through a horizontal slit in the wall of their two-story house, measuring eighteen inches long and three inches wide, and saw eight persons in the yard. He recognized among them the five Clementer brothers—Federico (Piding), Santiago (Tiago), Carlito, Eliseo (Esing), and Dominador (Doming)—whom he had known for five years and who used to be his friends. They were only three meters from the house, and a bright moon illumined their figures, enabling Saraos to recognize them. Federico shouted that they should come down, that they would not be harmed, that this was the authority, and that there was a warrant of arrest. When Saraos asked who they were, Federico answered, “This is Noning,” pretending to be a policeman, and urged Saraos to leave the house. Saraos replied that Noning should come near so they could talk, as they had no fault. Irritated, Federico told him he talked too much and to come down if he did not want to die. When Saraos still did not go down, Federico threatened to shoot him and fired at the place where he sensed Saraos was stationed, using a long gun similar to the homemade gun marked Exhibit A.

Dalmacia then suggested that she go down to answer their questions because, as a woman, they would not harm her; she did not want her eight children, all below fifteen years of age, to be hurt, and thought she could mediate and pacify the malefactors. Saraos said nothing. She went down and was immediately seized by Eliseo Clementer. Her plea for mercy was not heeded. Eliseo dragged her to the nearby dinog tree, where Saraos’s carabao was tethered, tore her blouse so that she was naked above the waist, and tied her hands behind her back with the carabao’s rope. Eliseo then shot her at the back. After his wife was shot, Saraos left the place where he was peeping. Federico fired at him, hitting him on the wrist, right thigh, and right hip. Saraos took his brother’s gun and fired back at Federico but missed. Federico’s companions ran away. After the malefactors left, Saraos went down and found his half-naked wife prostrate on the ground with a fatal gunshot wound at her back; she was already dead.

The killing was reported to the municipal authorities the next day, November 24, 1969. The chief of police and his policemen went to Saraos’s house, and a photographer took pictures of Dalmacia Melgar’s body and the scene of the crime. Doctor Consuelo Mendoza-Lagahit, the municipal health officer, examined the body of the thirty-seven-year-old Dalmacia. She found that the body was almost naked, with no dress on the upper portion and the white skirt pushed as far as the symphisis pubis; both hands were tied together at the back at the wrists and were cyanotic due to the tightness of the rope; and the victim was barefooted. She also found a punctured, contused, depressed, lacerated wound of entrance at the right side of the lower portion of the back, 2-1/4 centimeters from the median line to the right and 1 foot below the seventh cervical vertebrae, measuring 1.8 centimeters in diameter and 11 centimeters deep, directed upwards to the left, penetrating and destroying the vertebral column at the lumbosacral region, the lower portion of the ribs of the left and right back, part of the right but most of the left lungs and heart. There was no wound of exit, the skin around the wound was burned to a distance of 2 centimeters, powder grains were embedded in the skin around the wound to a distance of 2 centimeters, and one small pellet was recovered from the body. There were hematomas at the tip of the nose and both sides of the forehead just above both eyebrows. Doctor Lagahit concluded that the cause of death was hemorrhage secondary to the gunshot wound of entrance. She clarified that the wound of entry was at the back, below the right shoulder near the waistline; the pellet was found in the hole of the wound; death was instantaneous; and the burning of the skin around the wound indicated that the victim was shot at close range or at a distance of twenty-five centimeters.

The killing was provoked by a grudge the Clementer family harbored against Saraos. On November 19, 1969, four days before Dalmacia was shot, Andres Clementer, an elder brother of Eliseo, was killed by Washington Basadre, a nephew of Saraos. The Clementer brothers suspected that Saraos had concealed Manuel Basadre, also a nephew of Saraos and a brother of Washington, who was involved in that killing. Washington later pleaded guilty. On the night of November 23, 1969, when the Clementer brothers appeared in Saraos’s yard, Federico shouted to Saraos that he was the one who hid the person who killed in Base Camp.

Eliseo Clementer, thirty-five years old, testified that at the time Dalmacia Melgar was shot he was in his own house with his brothers Carlito and Federico, where a novena was held for his dead brother Andres. He prepared the refreshments; after the prayers, games of verso and bordon were played until one o’clock in the morning of November 24; and he and his two brothers never left the house because he was attending to visitors. He admitted knowing Saraos for some time and knowing where Saraos’s house was located, about two kilometers from his own house. His alibi was corroborated by Tomas Capuno, the barrio captain, and Eladia Gotal, who acted as prayer-leader in the novena. Appellant’s theory was that the eight persons in Saraos’s yard wore masks and were concealed behind trees; that Saraos logically concluded they were the Clementer family because they were looking for Manuel Basadre; that because the malefactors threatened to kill Dalmacia, Saraos fired at them, provoking retaliation; and that the killers were Dominador Clementer, Rudy Menaje, a police character who was wounded, and Romeo Cornelia, all of whom disappeared after the shooting.

On November 26, 1969, the chief of police filed a complaint for murder against the five Clementer brothers, Rudy Menaje, and John Doe. At the preliminary examination, Saraos described how he and his wife were shot, and Jovencio, his fifteen-year-old son, also testified regarding the shooting. Santiago, Eliseo, Federico, and Carlito were arrested that day and waived the second stage of the preliminary investigation. On December 24, 1969, a Special Counsel filed an information for murder in the Court of First Instance, and the case was transferred to the Circuit Criminal Court. After trial, the lower court found Eliseo Clementer guilty of murder, sentenced him to reclusion perpetua, and ordered him to indemnify the heirs of Dalmacia Melgar in the sum of P12,000; it acquitted Santiago, Federico, and Carlito. The trial court gave credence to Saraos and Jovencio, rejected Eliseo’s alibi, noted that according to the calendar there was a full moon on November 24, 1969 and a round moon on the preceding night, and found that abuse of superiority qualified the killing while evident premeditation and cruelty were not proven.

• Credibility of Prosecution Witnesses: Appellant Eliseo Clementer contended that the trial court erred in giving credence to the testimonies of Concordio Saraos and his son Jovencio and in not believing his alibi.
• Alibi: Appellant maintained that at the time Dalmacia Melgar was shot he was in his own house with his brothers Carlito and Federico during a novena for his dead brother Andres, that he prepared refreshments and attended to visitors, that games of verso and bordon were played until one o’clock in the morning of November 24, and that he never left the house; his alibi was corroborated by Tomas Capuno and Eladia Gotal.
• Inconsistencies and Conduct: Appellant pointed to alleged inconsistencies in Saraos’s testimony, such as his claim that he did not know how to handle guns yet was able to fire the homemade gun Exhibit A, and his contradictory statement as to the use of the bow and arrow; he also argued that Saraos’s lack of visible reaction after the shooting and Dalmacia’s failure to shout the assailant’s name were unusual.
• Alternative Theory of the Killing: Appellant theorized that the assailants wore masks and hid behind trees, that Saraos fired at them after they threatened Dalmacia and thereby provoked retaliation, and that the actual killers were Dominador Clementer, Rudy Menaje, and Romeo Cornelia, who disappeared after the shooting.

• Credibility and Alibi: Whether the trial court erred in giving credence to the testimonies of Concordio Saraos and Jovencio Saraos and in rejecting Eliseo Clementer’s alibi.
• Abuse of Superiority: Whether abuse of superiority qualified the killing of Dalmacia Melgar as murder.
• Aggravating Circumstances: Whether treachery, nocturnity, disregard of sex, evident premeditation, and cruelty were properly appreciated, absorbed, or proven.
• Penalty and Preventive Imprisonment: Whether the penalty of reclusion perpetua was proper and whether Eliseo Clementer is entitled to full credit for preventive imprisonment.

• Credibility and Alibi: No. The trial court did not err; positive eyewitness identification prevailed over an alibi that did not show it was impossible for appellant to be at the crime scene.
• Abuse of Superiority: Yes. Abuse of superiority qualified the killing as murder under Article 14(15) of the Revised Penal Code because the armed appellant, aided by seven companions, took advantage of superior strength over the unarmed victim.
• Aggravating Circumstances: Only abuse of superiority was properly appreciated. Treachery and nocturnity were absorbed in abuse of superiority, disregard of sex was absorbed in treachery, and evident premeditation and cruelty were not proven.
• Penalty and Preventive Imprisonment: Yes. Reclusion perpetua was properly imposed; appellant is entitled to full credit for preventive imprisonment if the conditions of Article 29 of the Revised Penal Code, as amended by Republic Act No. 6127, are satisfied.

• Credibility and Alibi: The principal eyewitness, Concordio Saraos, unerringly recognized and identified Eliseo Clementer, a person he had known for a long time, as the gunwielder who shot Dalmacia Melgar near the dinog tree. That identification could not be nullified by Eliseo’s manufactured alibi. The trial court noted that, according to the calendar, there was a full moon on November 24, 1969 and a round moon on the preceding night, when Dalmacia was shot, so Saraos’s testimony of a bright moon appeared truthful. Because Eliseo’s house was only two kilometers from the scene, it was easy for him to commit the crime and return home; to establish alibi, the accused must show that it was impossible for him to have been at the place where the crime was committed at the time of its commission (People vs. Resayaga). The alleged inconsistencies in Saraos’s testimony concerned trivial details, such as gun handling and the bow and arrow, and did not impair his credibility on the main testimony that he saw Eliseo grab his wife, tear her blouse, tie her hands, and shoot her near the dinog tree. Saraos’s behavior after the shooting was not unnatural: he thought discretion was the better part of foolhardy valor, knew the odds were against him, and feared for his eight children and nephew. Dalmacia’s failure to shout her assailant’s name was explained by the suddenness of the assault and the pitilessness of the unexpected attack; Saraos at least heard her pleading for mercy and asking that their house not be burned and that pity be shown to the children. Appellant’s theory that Dominador Clementer, Rudy Menaje, and Romeo Cornelia were the killers was implausible: since Eliseo and Dominador were brothers, Eliseo could have easily ascertained Dominador’s whereabouts and persuaded him to surrender and admit the crime, but he did not locate Dominador and did not even testify that those three were the killers; it is easy to impute a crime to fugitives from justice beyond the reach of the law.
• Abuse of Superiority: The information charged the Clementer brothers with murder and alleged evident premeditation, abuse of superiority, nocturnity, and cruelty, including that the victim was hogtied and undressed. The trial court appreciated only the qualifying circumstance of abuse of superiority and acquitted the other three Clementer brothers. Eliseo was emboldened to assault the victim with impunity because of the presence of his seven companions. Since the thirty-five-year-old Eliseo was armed and Dalmacia Melgar was unarmed and guilelessly approached the group of eight persons without the least inkling that any harm would befall her, abuse of superiority was employed in liquidating her, citing Article 14(15) of the Revised Penal Code, U.S. vs. Consuelo, and People vs. Quesada. She was not able to offer any resistance.
• Aggravating Circumstances: In a sense, there was treachery because Dalmacia was first reduced to helplessness before she was shot, citing U.S. vs. Elicanal and U.S. vs. Cañete. There was also disregard of sex because her blouse was needlessly removed, a circumstance absorbed in treachery, citing People vs. Mangsant and People vs. Limaco. Treachery and nocturnity were absorbed in abuse of superiority. As found by the trial court, evident premeditation and cruelty were not proven.
• Penalty and Preventive Imprisonment: There being no generic mitigating and aggravating circumstances, the penalty for murder, which is reclusion temporal maximum to death, was properly imposed in its medium period, which is reclusion perpetua, under Articles 64(1) and 248 of the Revised Penal Code. The trial court’s judgment was affirmed with the modification that Eliseo Clementer is entitled to full credit for preventive imprisonment if the conditions indicated in Article 29 of the Revised Penal Code, as amended by Republic Act No. 6127, are satisfied. The trial court, overlooking the amendatory law, erroneously gave him credit for only one-half of his preventive imprisonment. Costs were assessed against the appellant.

• Alibi — Alibi is a defense that the accused was elsewhere when the crime was committed. To prosper, it must show that it was impossible for the accused to have been at the place where the crime was committed at the time of its commission. In this case, Eliseo’s house was only two kilometers from the scene, so his alibi did not establish impossibility; positive eyewitness identification prevailed.
• Abuse of Superiority as a Qualifying Circumstance — Under Article 14(15) of the Revised Penal Code, abuse of superiority is present when the accused takes advantage of superior strength. It qualifies a killing as murder. The Court applied it because the armed Eliseo, aided by seven companions, overpowered the unarmed Dalmacia Melgar, who was reduced to helplessness and could not resist.
• Absorption of Aggravating Circumstances — Treachery and nocturnity are absorbed in abuse of superiority, and disregard of sex is absorbed in treachery. In this case, only abuse of superiority was appreciated as the qualifying circumstance; evident premeditation and cruelty were not proven.
• Full Credit for Preventive Imprisonment — Under Article 29 of the Revised Penal Code, as amended by Republic Act No. 6127, an accused may be entitled to full credit for preventive imprisonment if the statutory conditions are satisfied. The Court modified the trial court’s award of only one-half credit and held appellant entitled to full credit upon satisfaction of those conditions.

• "To establish an alibi, the accused should show that it was impossible for him to have been at the place where the crime was committed at the time of its commission (People vs. Resayaga, L-23234, December 26, 1974, 54 SCRA 350, 354)." — States the controlling rule on alibi, which the Court used to reject Eliseo Clementer’s defense because his house was only two kilometers from the crime scene.
• "Since the thirty-five-year old Eliseo Clementer was armed and Dalmacia Melgar was unarmed and she guilelessly approached the group of eight persons, without the least inkling that any harm would befall her, abuse of superiority was employed in liquidating her." — Articulates the ratio for the qualifying circumstance of abuse of superiority, based on the armed appellant’s advantage over the unarmed victim.
• "There being no generic mitigating and aggravating circumstances, the penalty for murder, which is reclusion temporal maximum to death, was properly imposed in its medium period, which is reclusion perpetua (Arts. 64[l] and 248, Revised Penal Code)." — States the basis for the penalty of reclusion perpetua in the absence of generic mitigating or aggravating circumstances.
• "The trial court's judgment is affirmed with the modification that appellant Eliseo Clementer is entitled to full credit for his preventive imprisonment if the conditions indicated in article 29 of the Revised Penal Code as amended by Republic Act No. 6127 are satisfied (66 0. G. 7796)." — Sets out the dispositive modification correcting the trial court’s award of only one-half credit for preventive imprisonment.

• People vs. Resayaga, L-23234, December 26, 1974, 54 SCRA 350, 354 — Cited for the rule that alibi must show impossibility of the accused’s presence at the crime scene; the Court used it to reject Eliseo’s alibi.
• U.S. vs. Consuelo, 13 Phil. 612 — Cited in support of abuse of superiority as a qualifying circumstance.
• People vs. Quesada, 62 Phil. 446 — Cited in support of abuse of superiority as a qualifying circumstance.
• U.S. vs. Elicanal, 35 Phil. 209, 218 — Cited for treachery where the victim was first reduced to helplessness before being shot.
• U.S. vs. Cañete, 44 Phil. 478, 480 — Cited for the same proposition on treachery.
• People vs. Mangsant, 65 Phil. 548 — Cited for disregard of sex as absorbed in treachery.
• People vs. Limaco, 88 Phil. 35 — Cited for disregard of sex as absorbed in treachery.

• Article 14(15), Revised Penal Code — Defines abuse of superiority as an aggravating circumstance; the Court applied it as the qualifying circumstance that raised the killing to murder because appellant took advantage of superior strength.
• Article 248, Revised Penal Code — Prescribes the penalty for murder, reclusion temporal maximum to death; the Court used it to affirm reclusion perpetua.
• Article 64(1), Revised Penal Code — Requires imposition of the penalty in its medium period when there are no mitigating or aggravating circumstances; applied to justify reclusion perpetua.
• Article 29, Revised Penal Code, as amended by Republic Act No. 6127 — Governs credit for preventive imprisonment; the Court held appellant entitled to full credit if its conditions are satisfied.

Zaldivar (Chairman), Fernando, Barredo, Antonio, and Fernandez, JJ., concur.