People vs. Abitona

A conviction may rest on circumstantial evidence forming an unbroken chain consistent with guilt and inconsistent with innocence. Treachery not alleged in the information cannot qualify a killing as murder; it is only a generic aggravating circumstance, and nighttime and superior strength are absorbed in it.

At around 7:00 o’clock in the evening of September 27, 1984, Arsenito Dagacay and his family were having supper at their house in Linangcayan, Naawan, Misamis Oriental, when they heard agitated sounds of the pigs outside. Nine-year-old Arcie Dagacay noticed the nozzle of a gun resting on the rail of the wall pointed at his father; before he could react, a burst of gunfire suddenly exploded and the whole family crouched on the floor. Arcie and his sister Gina were wounded, but Arsenito was slain.

Although hit in the head, Arcie managed to rise to seek help from his grandfather, Felix Dagacay, who lived a mere 100 meters away. As he was passing through the kitchen door, he saw three armed persons coming from below their house; the moon was out and all the lights in the house were on. From a distance of about seven meters, one of the men glanced at him sideways, and Arcie recognized him as Alex Abitona, known to him by face because they sometimes met at the Naawan municipal hall and by name because his father once described Abitona as one of the bodyguards of then Naawan mayor Sulpicio Laranjo. Abitona was carrying an armalite rifle. Arcie omitted to inform his “Tatay” Felix of the suspect’s identity but told his mother, Conchita, that Alex Abitona was responsible for the shooting. The shots were heard by the victims’ neighbors.

Felix Dagacay was resting at his balcony when the shots rang out; after a while, his grandson Arcie, drenched in blood, came asking for help, and Arsenito was already dead when they found him. Felix sought the assistance of Barangay Captain Tirso Perpetua, whose wife Leonisa accompanied him to the police detachment at the municipal hall of Naawan to report the incident; because the police did not take any action, he proceeded to the parish church to borrow a vehicle to convey Arcie and Gina to the hospital at Iligan City. Another neighbor, Lydia Dagiaposo, was already hiding after hearing the shots when she saw three armed persons coming from the direction of the shots, from the house of Arsenito Dagacay; one of the men was walking casually, while the other two, whom she identified as Abitona and Lito Cruz, were hurriedly walking. Although she helped bring the children to the hospital, she did not tell anyone about what she saw earlier; it was only after Arsenito was buried that she told Felix what she observed that night, and that was the first time Felix learned of the identity of the suspects.

Felix’s attempts to follow up his complaint were futile because Chief of Police Badal did not act on it, prompting Felix to seek assistance from the National Bureau of Investigation. The complaints were filed on July 14, 1986 by NBI Justiano O. Parras, but the informations for murder and two frustrated murders were filed only on October 16, 1987.

Abitona denied any participation in the shooting of Arsenito, Arcie, and Gina Dagacay. He claimed that at the time of the incident he and co-accused Lito Cruz were at the municipal building of Naawan, a mere two kilometers from Linangcayan, which by the account of the other defense witnesses may be reached by jeep within ten minutes; Cruz, a member of the Civilian Home Defense Force, and Abitona, a stay-in utility man, were among those required to remain in the municipal building at that time because of a standing threat of attack by New People’s Army insurgents. Abitona also denied that he was Mayor Laranjo’s bodyguard, yet he admitted that he was allowed to carry firearms and go with the army, police, or PC to critical areas. Chief of Police Hilario Badal and then Naawan mayor Sulpicio Laranjo, who were both billeted at the municipal building at that time owing to the red alert situation, corroborated Abitona’s alibi. The RTC found Arcie a credible witness.

• Exoneration of Co-Accused: Abitona argued that he should be acquitted on the basis of the exoneration of his co-accused Lito Cruz, since the evidence relied upon by the court in convicting him was the same as that used in acquitting Cruz.
• Lack of Direct Evidence: Abitona argued that he was never seen firing a gun.
• Credibility of Child Witness: Abitona argued that Arcie’s testimony should not have been given much weight on account of the tender age of the boy at the time of the incident and the lapse of four years before he actually testified.
• Intent to Kill and Gunshot Wounds: Abitona contended that the prosecution failed to establish intent to kill Arcie and Gina Dagacay as well as the fact that they sustained gunshot wounds.

• Exoneration of Co-Accused: Whether Abitona should be acquitted because his co-accused Lito Cruz was acquitted on the same evidence.
• Credibility of Child Witness: Whether Arcie Dagacay’s testimony should be given weight despite his tender age at the time of the incident and the lapse of four years before he testified.
• Alibi: Whether Abitona’s alibi, corroborated by the chief of police and the former mayor, can prevail over the prosecution evidence placing him at the crime scene.
• Circumstantial Evidence and Intent to Kill: Whether the absence of direct evidence that Abitona fired a gun and of medical proof of gunshot wounds negates his participation and intent to kill Arcie and Gina Dagacay.
• Crime Classification and Aggravating Circumstances: Whether Abitona should be convicted of murder and two frustrated murders, or only of homicide and two frustrated homicides, based on evident premeditation, treachery, nighttime, superior strength, and dwelling.

• Exoneration of Co-Accused: No. The SC rejected the argument as untenable and sustained Abitona’s conviction based on the evidence against him, including the testimony of Arcie and Dagiaposo and the circumstantial evidence placing him at the scene.
• Credibility of Child Witness: Yes. The SC held that Arcie’s age did not cloud the veracity and accuracy of his testimony; children make the best witnesses because of their power of observation and recall, as well as their innocence, as long as they understand the oath.
• Alibi: No. Alibi must fail in light of the testimony of Arcie and Dagiaposo placing Abitona at the crime scene immediately after the shooting, and the municipal building was only two kilometers away, a ten-minute jeep ride.
• Circumstantial Evidence and Intent to Kill: No. Direct evidence of firing is not required; circumstantial evidence forming an unbroken chain can establish participation. Intent to kill was established by the use of a high-powered automatic weapon, and the testimonies showed Gina and Arcie were wounded.
• Crime Classification and Aggravating Circumstances: The convictions were modified to homicide and two frustrated homicides. Evident premeditation was not proven; treachery was not alleged as qualifying and is only generic; nighttime and superior strength are absorbed in treachery; dwelling is generic.

• Exoneration of Co-Accused: The SC stated that Abitona’s arguments are untenable. It did not treat Cruz’s acquittal as exonerating Abitona; it assessed the evidence against Abitona and found that Arcie’s testimony and Dagiaposo’s observation placed him at the scene immediately after the shooting. The SC also relied on the circumstantial evidence of his flight with an armalite rifle.
• Credibility of Child Witness: The SC deferred to the trial judge’s factual findings because his appreciation of the evidence was firsthand, having personally heard and observed the witnesses when they testified. The RTC found Arcie credible, and the SC agreed that Arcie’s age at the time of the incident did not cloud the veracity and accuracy of his testimony. His presence of mind in seeking help after being hit in the initial burst of gunfire lent more credence to his testimony. The SC reiterated that children make the best witnesses because of their power of observation and recall, as well as their innocence, and that as long as they fully understand the import of an oath, their narration of events they witnessed should be given absolute acceptance.
• Alibi: The SC acknowledged that Abitona denied any role in the shooting and that his alibi was corroborated by the police chief and former mayor of Naawan. Such defense had to fall in the light of the testimony of Arcie and Dagiaposo placing him at the crime scene immediately after the shooting, and the admission by all defense witnesses that the municipal building where Abitona and Cruz supposedly were during the shooting was only two kilometers from the crime scene, a mere ten-minute ride by jeep, which made it not quite impossible for him to have been at the place of the incident at around 7:00 o’clock in the evening of September 27, 1984.
• Circumstantial Evidence and Intent to Kill: The SC noted that nobody saw Abitona actually firing a gun, but it remained undisputed that he was seen by two witnesses fleeing from the scene of the crime, “hurriedly walking” immediately after the shooting, coming from the lower portion of Arsenito Dagacay’s house at the back, and carrying a long firearm, an “armalite,” in the words of Arcie. These observations, taken in their natural and rational order as an unbroken chain of circumstances, were enough to establish Abitona’s participation in the offenses charged. The SC quoted that where the proved circumstances are consistent with guilt and inconsistent with innocence, such evidence may surpass direct evidence in its effect. Intent to kill was adequately established by the use of a high-powered automatic weapon upon an unsuspecting family; the combined testimonies of the prosecution witnesses showed that Gina and Arcie were wounded, and the absence of other evidence of gunshot wounds and the failure to put Gina on the stand did not mean that no crime was committed against them.
• Crime Classification and Aggravating Circumstances: The SC noted that the only qualifying circumstance indicated in the three informations was evident premeditation, which was not proven. Treachery was present because Arsenito Dagacay and his family were eating supper when the perpetrators, hiding under cover of night, suddenly and unexpectedly shot them with an automatic rifle; after the deed, they took advantage of nighttime in trying to flee, and it was purely by chance that Abitona was identified by two witnesses. The use of a high-powered automatic weapon showed that the offenders took advantage of superior strength over unarmed targets caught unawares. Nighttime and superior strength are absorbed in treachery, which may be treated only as a generic aggravating circumstance because it was not alleged in the informations. Dwelling attended the crimes because the shooting was committed in violation of the sanctity of the victims’ house even though the offenders may have been outside at the time. These aggravating circumstances being merely generic, Abitona can only be convicted of homicide, punishable by reclusion temporal in its maximum period, and two counts of frustrated homicide, each punishable by reclusion temporal in its medium period.

• Alibi — For alibi to prosper, the accused must prove that it was physically impossible for him to be at the crime scene. Abitona’s alibi, though corroborated by the chief of police and former mayor, failed because the municipal building was only two kilometers away and a ten-minute jeep ride from the scene, so it was not impossible for him to be there.
• Credibility of Child Witness — Children are considered the best witnesses because of their power of observation and recall, as well as their innocence; as long as they fully understand the import of an oath, their narration of events they witnessed should be given absolute acceptance. Arcie’s age at the time did not cloud the veracity and accuracy of his testimony.
• Circumstantial Evidence — Circumstantial evidence is sufficient for conviction when the proved circumstances are consistent with the guilt of the defendant and inconsistent with his innocence, forming an unbroken chain. Abitona’s being seen fleeing the scene immediately after the shooting, coming from the lower portion of the house, and carrying an armalite rifle established his participation even without direct evidence of firing.
• Intent to Kill — Intent to kill may be established by the use of a high-powered automatic weapon upon an unsuspecting family. The SC found intent to kill adequately established for the shooting of Arsenito, Arcie, and Gina.
• Qualifying and Generic Aggravating Circumstances — A qualifying circumstance must be alleged in the information; if not alleged, treachery cannot qualify the killing as murder and may be treated only as a generic aggravating circumstance. The only qualifying circumstance alleged was evident premeditation, which was not proven.
• Absorption of Aggravating Circumstances — Nighttime and superior strength are absorbed in treachery. Dwelling remains a separate generic aggravating circumstance when the shooting violates the sanctity of the victims’ house even if the offenders were outside.
• Successive Service of Penalties — Under Article 70 of the Revised Penal Code, the three penalties must be served successively unless the accused has been detained for other crimes or pardoned. The SC ordered the sentences to be successively served.

• “The court a quo found Arcie a credible witness. We agree that Arcie’s age at the time of the incident did not cloud the veracity and accuracy of his testimony.” — The SC upheld the RTC’s credibility finding and rejected the objection based on Arcie’s tender age.
• “The Court has also constantly maintained that children make the best witnesses because of their power of observation and recall, as well as their innocence. As long as they fully understand the import of an oath, their narration of events they witnessed should be given absolute acceptance.” — This is the SC’s canonical formulation of the child-witness credibility rule applied to Arcie.
• “While it is true that nobody saw Abitona actually firing a gun, it remains undisputed that he was seen by two witnesses fleeing from the scene of the crime, "hurriedly walking" immediately after the shooting, coming from the lower portion of Arsenito Dagacay's house at the back, and carrying a long firearm, an "armalite," in the words of Arcie.” — The SC used this passage to explain that circumstantial evidence can establish participation even without direct evidence of firing.
• “Nighttime and superior strength are, however, absorbed in treachery which may be treated now only as a generic aggravating circumstances because it was not alleged in the informations.” — The SC used this to explain why treachery could not qualify the killing as murder and why nighttime and superior strength did not aggravate separately.

• People vs. Pedrosa, G.R. No. 56457, January 27, 1989, 169 SCRA 545 — Cited in support of the SC’s ruling on child-witness credibility.
• People vs. Mesias, G.R. No. 67823, July 9, 1991, 199 SCRA 20 — Cited in support of the SC’s ruling on child-witness credibility.
• Bowie vs. State, 185 Ark. 834, 49 S.W. (2d) 1049, 83 A.L.R. — Cited for the rule that circumstantial evidence consistent with guilt and inconsistent with innocence may surpass direct evidence.
• People vs. Pascual, G.R. No. 42769, December 5, 1991, 204 SCRA 618 — Cited on treachery as a generic aggravating circumstance when not alleged in the information; the SC noted it cites People vs. Mori, 55 SCRA 382.
• People vs. Ompad, 136 Phil. 114 — Cited on dwelling as an aggravating circumstance.

• Article 70, Revised Penal Code — Applied to require that the three penalties be served successively unless Abitona has been detained for other crimes or pardoned.
• Indeterminate Sentence Law — Applied in fixing the minimum and maximum terms: twelve years of prision mayor to twenty years of reclusion temporal for homicide, and six years of prision correccional to twelve years of prision mayor for each frustrated homicide.
• Revised Penal Code provisions on homicide and frustrated homicide — Applied in modifying the convictions from murder and frustrated murder to homicide and frustrated homicide and in imposing reclusion temporal in its maximum period for homicide and reclusion temporal in its medium period for each frustrated homicide.
• Revised Penal Code provisions on aggravating circumstances — Applied in treating treachery, nighttime, superior strength, and dwelling as generic aggravating circumstances; evident premeditation was not proven.