People vs. Borja

Conspiracy may be established by the accused's concerted acts before, during, and after the crime, and once established, treachery is considered against all the conspirators, including one physically absent at the moment of the killing; the aggravating circumstances of band or aid of armed men, use of means to weaken the defense, and advantage of superior strength, as well as craft, fraud, and disguise, are absorbed by treachery and may not be appreciated independently, while a promise or reward proven at trial but not alleged in the information may still be considered a generic aggravating circumstance, though not a qualifying one.

Pedro Borja held the rank of a full colonel and served as the head of the Anderson Fil-American Guerrillas (AFAG) for the entire Bicol region, an organization said to have some 36,000 members; many AFAG members were also adherents of the religious sect known as Watawat Ng Lahi, whose bahay-pulungan at Barrio Buragwis, Legaspi City, was used for the organization's meetings. Santiago Gancayco, Jr., managed Hacienda San Miguel, a 1,700-hectare estate on San Miguel Island across the bay from Tabaco, Albay, and was a scion of a prominent family; Alejo Balimbing, an AFAG sergeant, had for months pressed against Gancayco the grievance that the latter had killed Balimbing's cousin at Rawis, Tabaco, and had ordered the bulldozing of camote plantations belonging to hacienda squatters related to Balimbing. The case reached the Supreme Court on appeal from a consolidated judgment rendered after the accused were tried in two separate proceedings, Borja having been tried apart from his co-accused.

Pedro Borja held the rank of full colonel and served as the head of the Anderson Fil-American Guerrillas (AFAG) for the entire Bicol region, an organization said to have 36,000 members; many AFAG members were also adherents of the religious sect known as Watawat Ng Lahi. Santiago Gancayco, Jr., managed Hacienda San Miguel, a 1,700-hectare estate on San Miguel Island across the bay from Tabaco, Albay, and Alejo Balimbing, an AFAG sergeant, had for months pressed a grievance against him — that Gancayco had killed Balimbing's cousin at Rawis, Tabaco, and had ordered the bulldozing of camote plantations belonging to hacienda squatters related to Balimbing.

On December 18, 1958, the AFAG held a general meeting at the bahay-pulungan of the Watawat Ng Lahi at Barrio Buragwis, Legaspi City, the locale having been chosen because many AFAG members were also Watawat members. Borja presided over the gathering of more than a hundred members and announced that their backpay was forthcoming at the rate of P36,000.00 for a ranking officer and lesser amounts for those of lower rank. When the meeting ended, Borja called an exclusive conference among selected officers and members — Rufino Pavia, Inocencio Demen, Pedro Fustigo, Felipe Benavides, Dominador de los Santos, Alejo Balimbing, and Tito Oljina — at which Balimbing proposed a raid the following morning at Hacienda San Miguel. That evening Demen cleaned a .45 caliber pistol, and the eight men slept in the bahay-pulungan.

Early the next morning, December 19, 1958, the eight men conferred again, and Balimbing aired his grievances against Gancayco. They then left by bus for Tabaco via Legaspi City, armed as follows: Borja carried two pistols tucked in a shoulder holster, Pavia a .45 caliber pistol, Balimbing a hunting knife with a scabbard, and Fustigo a pistol. In Tabaco they proceeded to Barrio San Jose and took breakfast at the house of de los Santos' brother; on Borja's instruction, Balimbing hired a motorboat operated by Mariano Burac, who observed that the eight men acted suspiciously and conferred sotto voce among themselves. After crossing the bay and disembarking at the hacienda, the group agreed at a seashore conference to pose as Philippine Constabulary soldiers ostensibly on a mission to inspect the hacienda's firearms, and Borja began to wear a pair of white gloves.

Balimbing tried to open the bamboo gate of the fence surrounding the manager's house but was accosted by Emilio Lanon, a security guard and barrio lieutenant who later became a principal prosecution eyewitness. Balimbing, who knew Lanon, introduced his companions as PC soldiers, identifying Borja as a major and Pavia as a sergeant. On Lanon's advice, Balimbing proceeded to the office and emerged with Salustiano Isorena, the hacienda overseer, who directed Lanon to inform Gancayco of the visitors. On Pavia's advice, he and Isorena went to the house, where Isorena told Mrs. Gancayco about the visitors; on her suggestion the group repaired to the office to await Gancayco, who arrived later. Gancayco shook hands with Borja and Pavia and offered Borja a pack of cigarettes, from which the latter took one stick. Informed of the group's alleged mission, Gancayco instructed Isorena to present the firearms license, but Isorena could not find it in the office, so Gancayco went to the house to look for it and instructed his wife to prepare a meal for the guests. He returned to the office, gave the license to Isorena, and left. Isorena presented the license to Borja, who remarked that it listed only five firearms against reports received at the headquarters in Albay that the hacienda had ten; Borja then ordered Isorena to produce the firearms for inspection. Lanon fetched a carbine, whose magazine he removed, and a shotgun, but on his way back he met de los Santos and Oljina, who took the firearms and the magazine from him. Isorena again sent Lanon for the other firearms; Lanon sent Jaime Rawit for the grease-gun in Lanon's house while he himself went to Gancayco's house for another grease-gun without a magazine, and there Rawit and Lanon met and, as Lanon was carrying the two grease-guns, Demen and Benavides took them away. The group thus obtained four of the five firearms, failing to get the last only because it was with an hacienda employee guarding cattle some kilometers away.

An atmosphere of menace descended on the hacienda as the men loaded the firearms and took a hostile stance. An apprehensive Isorena asked Gancayco for instructions but was merely cautioned to remain calm and to deal courteously with the group, Gancayco having already sent someone to Tabaco to request police assistance. Meanwhile, Balimbing interrogated Lanon inside the bodega, surrounded by Balimbing with a hunting knife, Pavia with a .45 caliber pistol, and Benavides with a grease-gun; in the course of the interrogation Balimbing told Lanon that they were going to kill Gancayco, Isorena, Lanon, and one Pablo Balimbing, chief herder of the hacienda, because these employees were bootlickers to the Gancaycos, and then pushed Lanon out of the bodega. Gancayco and Isorena were talking at the balcony of the house when Demen, carrying a grease-gun, and Oljina, carrying a shotgun, approached them, while de los Santos posted himself with a carbine under the citrus tree near the water tank in front of the house. Gancayco asked Demen and Oljina to show him a search warrant, and they referred him to Borja; Gancayco and Isorena descended and inquired for the warrant from Borja, who was standing in front of the house. Instead of replying, Borja talked to Pavia near the guardhouse, then called Balimbing and, referring to Gancayco and Isorena, ordered him to "fix them up" since it was already getting on towards noon. Borja herded the other hacienda men inside the bodega, where they were guarded by Benavides with a grease-gun and Fustigo with a pistol, and faced the hacienda personnel holding his two pistols in readiness, with Lanon standing in front of him facing out of the bodega.

Balimbing, Pavia, Demen, de los Santos, and Oljina escorted Gancayco and Isorena towards the office. Isorena went up the stairs and turned around when he reached the top, behind him de los Santos holding a carbine in a ready position. Benavides asked Gancayco for the magazine of the grease-gun he was holding; when Gancayco answered that it had none, Benavides accused him of lying and sideswiped him with the grease-gun, then left for the bodega. The men surrounded Gancayco in front of the office: facing him was Balimbing swinging his hunting knife; to Balimbing's right was Pavia, whose jacket draped over his left arm concealed his right hand holding a .45 caliber pistol; to Pavia's right was Demen aiming the grease-gun at Gancayco; and slightly behind Demen, Oljina aimed the shotgun at Gancayco. Balimbing accused Gancayco of killing his cousin and demanded that he produce the .45 caliber pistol allegedly used, and when Gancayco explained that it was Solon Demetrio who had accidentally shot the cousin and that he had no such pistol, Pavia interjected that it was unbelievable for the manager of the hacienda not to have one; Gancayco insisted there was none. Unarmed, Gancayco stood with his back towards the foot of the stairs, surrounded by the four men about two meters away, while de los Santos stood guard with a carbine in ready position in the balcony slightly behind Isorena, the two groups being about four meters apart.

Pavia suddenly jerked his right hand upward and fired point-blank with his .45 caliber pistol at Gancayco, who, hit, stooped to hold the pit of his stomach and cried, "Aray ko po." He instinctively stepped backward and was turning around when Demen fired at him with a grease-gun; he ran away in a crouching position towards the citrus plantation while Demen continued firing at him. Demen then aimed rapid fire at Isorena, who fell flat on the balcony floor, and Demen's line of fire accidentally caught de los Santos in the forehead. At the outburst of gunfire Borja rushed out of the bodega, saw Gancayco running towards the citrus plantation, and shouted, "Habulin! Habulin!" The men carrying their firearms gave chase, led by Demen and including de los Santos, running along the road towards a cluster of houses in the northern part of the hacienda but stopping in front of the house of Estrella Cortezano, who gave Balimbing a negative answer when asked whether she had seen where Gancayco went. Gancayco traversed the citrus plantation and reached the cluster of houses; bleeding profusely, he managed to cross the road and open the gate by removing one of the bamboo railings, then turned towards the trail winding through the abaca plantation at the left side of the road. Lanon left the bodega by the back door and went to Gancayco's house, where Mrs. Gancayco told him to close all the windows and take the children downstairs; he complied, then left and found Gancayco in the abaca plantation, climbing a small hill towards another cluster of houses at the hilltop, bleeding profusely in the breast.

Gancayco, his wife and children, Isorena, and some other hacienda personnel rendezvoused at the seashore and boarded a waiting motorboat for Tabaco in the hope of taking the wounded men to the hospital there, but en route Gancayco died in the arms of his wife. His body was brought to Manila and examined and autopsied by the National Bureau of Investigation; Dr. Rizalino Reyes, Chief of the Medico-Legal Division, testified that death was due to hemorrhage, severe, secondary to multiple gunshot wounds of the body, with traumatic shock as a contributory cause. Isorena, although seriously wounded, survived; he received first-aid treatment at the Tabaco Hospital and was airlifted the next day to Manila, where he was confined first at the North General Hospital and then at the National Orthopedic Hospital, and Dr. Casiano Flaviano, a resident physician there, testified that Isorena would have died from his injuries had he not received immediate medical attention.

Meanwhile the eight men reached the seashore and chanced upon a motorboat anchored there. Balimbing wrapped the four firearms in some anahaw leaves, and when the men discovered that the motorboat did not have enough gasoline they looked for another and dragooned Bienvenido Taller into transporting them; Taller observed that the eight men were excited and apprehensive, and Balimbing told him with some braggadocio that they had just killed Gancayco and Isorena. The men alighted at the lighthouse at Malinao, and Taller immediately reported to the police authorities of that town, who advised him to report instead to the police of Tabaco, which had jurisdiction over the case. The eight men reached the poblacion of Malinao, where on Borja's orders they bought a jute sack in which they placed the firearms; Borja then instructed Pavia and Demen to make their separate way towards Barrio Buragwis, and before leaving with Demen, Pavia left his .45 pistol with Balimbing. The remainder of the group boarded a passenger bus bound for Tiwi. As the bus stopped near the market at Tiwi, another car overtook it and policemen from Tabaco headed by Chief of Police Ceferino Firaza alighted and surrounded the bus; Firaza in a loud voice called for the surrender of all those responsible for the killing at Hacienda San Miguel, and was suddenly fired upon by Borja and then by Balimbing. The fusillade hit Firaza on the right cheek and he ordered his men to return fire. The encounter, which took place in the afternoon of December 19, 1958, resulted in the deaths of Balimbing and Oljina, the capture of Benavides and de los Santos, and the escape of Borja and Fustigo; Lt. Melanio Rey of the Tabaco police confiscated the firearms, magazines, and ammunition taken from the hacienda, the .45 caliber pistol and its shell, the hunting knife and scabbard from Balimbing's dead body, and other paraphernalia from the bodies of Balimbing and Oljina. The rest of the band fell one by one into the hands of the law — Pavia, Demen, and Fustigo were arrested, and Borja, the last to fall, was captured on February 27, 1959 after a nationwide manhunt.

At trial, the five accused who were separately tried from Borja admitted all the facts leading to the shooting but interposed the common defense of fear of Borja, whom they claimed had threatened disobedient AFAG members with death; the trial judge discounted this as "an after-thought to save their respective skins" and found instead that they participated in the killing "because they were inspired by the juicy thought or promise of an enormous amount of backpay for each." Borja, who was still at large when the five were tried, had a separate trial and washed his hands of any complicity in the killing, which he sought to lay at the door of the deceased Balimbing; the trial court refused to believe that Balimbing, a mere sergeant, had openly defied Borja, the commanding officer of eight AFAG regiments in the entire Bicol region, and declared that Borja was the leader of the group that raided Hacienda San Miguel and the very one who ordered the liquidation of Gancayco and Isorena. The five accused also freely and voluntarily re-enacted the crime at the hacienda in the presence of the trial judge, and the re-enactment proceedings, which were photographed and tape recorded, bore out the version testified to by the prosecution eyewitnesses Isorena and Lanon.

• Reduction of Penalty: The five accused — Fustigo, Demen, Pavia, Benavides, and de los Santos — did not deny their culpability for the offenses charged and prayed in their brief for the reduction of the penalty from death and its accessory penalties to reclusion temporal and its accessory penalties, conceding that the trial court's findings of fact were a faithful narration of the incident as related during trial and during the two ocular inspections of the premises.
• Aggravating Circumstances: The five accused contended that the trial court should have appreciated only three aggravating circumstances, reasoning that any of the alleged aggravating circumstances should necessarily be absorbed to qualify the crime of murder, thereby leaving only four, and that the aggravating circumstance of promise of backpay was not alleged in the information and should not be taken as an aggravating circumstance.
• Mitigating Circumstances: The five accused claimed three mitigating circumstances in their favor — lack of instruction, fear of Pedro Borja, and lack of motive — and further argued that the "undiplomatic attitude of Gancayco and Isorena, bordering on provocation" should be considered as another mitigating circumstance.
• Lack of Conspiracy: The five accused asserted that "the alleged premeditated conspiracy to kill Gancayco was not clearly revealed in the records of the case."
• Separate Trial and Single Decision (Borja): Borja contended that since a separate trial was held for him, the trial court erred in rendering a single decision in which the findings of fact respecting him, based on evidence adduced during his separate trial, were not distinctively set forth, thereby prejudicially impairing his substantial rights.
• Credence and Incompetent Evidence (Borja): Borja contended that the trial court erred in not according credence to his defense, in finding him guilty on the basis in part of allegedly incompetent evidence adduced not at his separate trial but at that of his co-accused, and in not acquitting him upon the ground that his guilt was not proven beyond reasonable doubt.
• Conspiracy (Borja): Borja contended that the trial court erred in finding that a conspiracy existed between him and his co-accused.
• Qualifying and Aggravating Circumstances (Borja): Borja contended that, assuming his criminal liability, the trial court erred in appreciating the qualifying circumstances of treachery and evident premeditation, and the generic aggravating circumstances of band or aid of armed men, use of means to weaken the defense, and craft, fraud, and/or disguise.
• Voluntary Surrender (Borja): Borja contended that, assuming he is criminally liable, the trial court erred in not according him the benefit of the mitigating circumstance of voluntary surrender.

• Conspiracy: Whether conspiracy among all the accused was established beyond reasonable doubt.
• Treachery and Evident Premeditation: Whether the qualifying circumstances of treachery and evident premeditation were properly appreciated, and whether Borja's physical absence from the scene of the shooting exonerates him.
• Aggravating Circumstances — Absorption and Promise of Reward: Whether band or aid of armed men, use of means to weaken the defense, advantage of superior strength, and craft, fraud, and disguise may be appreciated independently of treachery, and whether the promise of backpay, not alleged in the information, may be considered an aggravating circumstance.
• Mitigating Circumstances: Whether lack of instruction, fear of Pedro Borja, lack of motive, and the alleged provocation by Gancayco and Isorena should be appreciated in favor of the five accused.
• Voluntary Surrender: Whether Borja is entitled to the mitigating circumstance of voluntary surrender.
• Separate Trial and the Single Decision: Whether the trial court erred in rendering a single decision that did not distinctively set forth the findings of fact respecting Borja, and in relying on evidence adduced at the trial of his co-accused.
• Penalty: Whether the death penalty should be imposed in Criminal Case No. 2578.

• Conspiracy: Yes. Conspiracy was established by the accused's concerted acts before, during, and after the crime, and proof of a previous agreement to commit it was therefore unnecessary.
• Treachery and Evident Premeditation: Yes. Treachery attended the killing because Gancayco was unarmed and surrounded by armed men, and evident premeditation was proved by the two secret conferences preceding the raid; Borja's absence from the bodega does not exonerate him, treachery being considered against all conspirators.
• Aggravating Circumstances — Absorption and Promise of Reward: No, as to independent appreciation. Band or aid of armed men, means to weaken the defense, superior strength, and craft, fraud, and disguise are absorbed by treachery; but the promise of reward, though not alleged in the information, was proven at trial and may be considered a generic aggravating circumstance.
• Mitigating Circumstances: No. Lack of instruction was unproved, fear is not among the mitigating circumstances under Article 13 of the Revised Penal Code, lack of motive is not so enumerated, and the alleged provocation was not borne out by the evidence.
• Voluntary Surrender: No. Borja did not surrender but was captured after a nationwide manhunt, with a price on his head and another killing committed while at large.
• Separate Trial and the Single Decision: No. The prosecution established the same facts in both trials through common witnesses, and no substantial right of Borja was impaired.
• Penalty: No. The death penalty was reduced to reclusion perpetua for lack of the necessary votes.

• Conspiracy: Borja's contention that no conspiracy existed was rejected as an excursion outside the perimeters of credibility. He was the AFAG commander for the Bicol region; after the second secret conference he donned spurious armed forces get-up, complete with uniform and two guns; when introduced to the hacienda personnel as a PC major in command of the group, he raised no protest. The evidence showed that he issued the order to Balimbing to "fix them up," referring to Gancayco and Isorena, and the order "Habulin! Habulin!" when Gancayco ran for his life. He consistently acted the leader: he led the dash for illicit freedom, led the group in fleeing the island, instructed that the firearms be secreted in a jute sack, and ordered his men to separate into two groups when his group was surrounded by Tabaco policemen near Tiwi, where he led the gunfight. He eluded his trackers for more than two months until his capture, and, as the Court observed, to flee the fold of the law is to admit that one has transgressed that law. His uncontested actions would be gratuitous and illogical unless located within the frame of conspiracy, which is their only reasonable context. Conspiracy having attached, it was no longer necessary to obtain proof of a previous agreement or decision to commit the crime.

• Treachery and Evident Premeditation: Borja's challenge to the appreciation of treachery and evident premeditation was held to fly in the face of the evidence. Treachery was present because Gancayco was killed while he was unarmed and surrounded by enemies with firearms, including two grease-guns; he was thus deprived of any means of defense while his enemies were exposed to no risk arising from the defense he might have made. Borja's physical absence from the scene does not exonerate him, for it was he who ordered the execution, and where there is conspiracy, treachery is considered against all the offenders. Evident premeditation was sufficiently proved, since prior to the shooting on December 19, 1958, the accused met in two secret conferences and discussed the raid on the hacienda in order to avenge themselves by exacting redress from Gancayco for allegedly killing Balimbing's cousin and bulldozing the camote plantations of Balimbing's relatives. The trial court correctly considered that either treachery or evident premeditation qualifies the crime to murder, and hence the other alternative circumstance should be considered as aggravating.

• Aggravating Circumstances — Absorption and Promise of Reward: The contention of the five accused that only three aggravating circumstances should be appreciated was rejected. While it is true that the aggravating circumstance of promise or reward was not alleged in the information, it was nevertheless proven during the trial and therefore could be considered a generic aggravating circumstance, though not a qualifying circumstance, pursuant to People vs. Navarro. Borja's contention that band or aid of armed men cannot be taken separately from the use of means to weaken the defense and advantage of superior strength was, however, well taken: all these circumstances are absorbed in treachery and may not be considered independently. It was likewise correctly pointed out that treachery absorbs the circumstance of craft, fraud, and disguise. What remained, therefore, were the aggravating circumstance of evident premeditation, applicable to all the accused, and the aggravating circumstance of promise of backpay, applicable to all except Borja. Thus, if treachery is the qualifying circumstance, two generic aggravating circumstances attended the commission of the two crimes with respect to the five accused: evident premeditation and promise or reward, the latter not applying to Borja.

• Mitigating Circumstances: The claim of lack of instruction was based on the allegation that the five accused did not finish primary education, but the defense adduced no proof to establish the circumstance, leaving in full force the rule that extenuating circumstances must be proven positively and cannot be based on mere deduction or inference; if by "lack of instruction" the defense referred to illiteracy, that alone is not sufficient, for there must also be lack of intelligence. The claim of awe and fear of Pedro Borja likewise failed: the element of fear is not among those enumerated as a mitigating circumstance under Article 13 of the Revised Penal Code, and if the defense referred to the exempting circumstance of uncontrollable fear or duress under Article 12, the argument remained invalid because duress must be based on real, imminent, or reasonable fear for one's life or limb and should not be speculative, fanciful, or remote; no evidence supported the claim that Borja threatened any or all of the other accused. Lack of motive could not be discussed as a mitigating circumstance because Article 13 does not include it. Finally, the alleged "undiplomatic attitude" of Gancayco and Isorena bordering on provocation was not borne out by the evidence; on the contrary, Gancayco was pacific and counselled Isorena that "the best thing for us to do is to talk to them peacefully and follow them, whatever they want."

• Voluntary Surrender: The trial court did not err in denying Borja the mitigating circumstance of voluntary surrender. Borja did not surrender but was captured on February 27, 1959. His own witness, Captain Eliseo Farol of the Armed Forces of the Philippines, testified that he received a report that Borja was holed up at Barrio Sumakap, Cavinte, Laguna, and accordingly sent a ranger team which located the house and called on Borja to come down; as the house was surrounded by soldiers, Borja offered no resistance. Captain Farol also testified that while Borja was at large he killed a PC soldier in an armed encounter at Catanauan, Quezon, as a result of which he was indicted for murder in the Court of First Instance of that province, and that a prize of P2,000.00 was put on Borja's head for being a dangerous fugitive. These are not indicia of the personality seeking voluntary surrender.

• Separate Trial and the Single Decision: No impairment of Borja's substantial rights resulted from the rendition of a single decision covering both trials. The evidence showed that the prosecution established the same facts in the two separate trials: Isorena and Lanon testified as eyewitnesses to the incident of December 19, 1958; de los Santos testified as an eyewitness not only to the same incident but also to events before and after the shooting, showing conspiracy among the accused; and other persons testified in both trials to supply corroborating evidence. Borja's contention that he was convicted on the basis in part of incompetent evidence adduced at the trial of his co-accused was a blanket allegation that could be dealt with summarily, because the testimonies of common witnesses in both trials clearly established facts incriminatory to him.

• Penalty: The judgment of the lower court in Criminal Case No. 2590 was affirmed in toto. In Criminal Case No. 2578, the principal penalty was modified from death to reclusion perpetua for lack of the necessary votes, and the civil indemnity was increased from P6,000.00 to P12,000.00. The text of the decision supplies no further reasoning for the reduction beyond the absence of the required number of votes.

• Conspiracy proved by concerted action — Conspiracy need not be established by direct proof of a prior agreement; it may be inferred from the acts of the accused before, during, and after the commission of the crime, which disclose a common design and concerted action. Once conspiracy is established, it is no longer necessary to obtain proof of the previous agreement or decision to commit the crime. In this case, Borja's assumption of command over the group, his orders to Balimbing to "fix them up" and to the men to "Habulin! Habulin!", his leadership in the flight from the island, his instruction to secrete the firearms in a jute sack, his order to split the group, and his leading of the gunfight at Tiwi established his participation in the conspiracy notwithstanding his physical absence from the bodega when the shooting began.

• Flight as evidence of guilt — Flight from the law is evidence of a consciousness of guilt; to flee the fold of the law is to admit that one has transgressed it. Borja eluded his trackers for more than two months until his capture on February 27, 1959, and this, together with his other uncontested acts, placed his conduct within the frame of conspiracy.

• Treachery (alevosia) with an unarmed victim — Treachery attends the killing when the victim is unarmed and surrounded by armed assailants, so that he is deprived of any means of defense while his enemies are exposed to no risk arising from the defense he might have made. Gancayco was unarmed and surrounded by four men about two meters away, two of whom carried firearms, and was shot point-blank without warning.

• Treachery absorbs band, superior strength, craft, and disguise — The aggravating circumstances of band or aid of armed men, use of means to weaken the defense, and advantage of superior strength are absorbed in treachery and may not be considered independently; treachery likewise absorbs the circumstance of craft, fraud, and disguise. Only the aggravating circumstances of evident premeditation and promise or reward remained appreciable in this case.

• Alternative qualifying circumstances — Where either treachery or evident premeditation qualifies a killing to murder, the law requiring only one qualifying circumstance, the other alternative circumstance, if present, is considered as a generic aggravating circumstance.

• Promise of reward as a generic aggravating circumstance — While the aggravating circumstance of promise or reward must be alleged in the information to be considered a qualifying circumstance, it may be appreciated as a generic aggravating circumstance if it is proven during trial even though not alleged in the information. The promise of backpay in this case was so appreciated against all the accused except Borja.

• Mitigating circumstances must be positively proven — Extenuating or mitigating circumstances must be proven positively and cannot be based on mere deduction or inference. In particular, lack of instruction is not established by mere allegation that the accused did not finish primary education; if illiteracy is invoked, it is not sufficient, for there must also be lack of intelligence.

• Duress as an exempting circumstance — Uncontrollable fear or duress, to exempt an accused from criminal liability, must be based on a real, imminent, or reasonable fear for one's life or limb and must not be speculative, fanciful, or remote. No evidence supported the claim that Borja had threatened any of his co-accused.

• Voluntary surrender negated by capture — The mitigating circumstance of voluntary surrender is negated where the accused does not submit himself spontaneously to the authorities but is captured after a nationwide manhunt, with a prize on his head and another killing committed while at large.

• "To flee the fold of the law is to admit that one has transgressed that law." — This one-line formulation, drawn from People vs. Wilson, supplied the Court's evidentiary bridge between Borja's two-month flight and his consciousness of guilt, reinforcing the finding of conspiracy against him.
• "Hence, conspiracy attaches and it is no longer necessary to obtain proof as to the previous agreement or decision to commit the crime." — This passage states the ratio for rejecting Borja's challenge to the finding of conspiracy, and is the Court's canonical statement in the decision that concerted action, not direct proof of prior agreement, establishes the conspiracy.
• "Treachery was present because Gancayco was killed while he was unarmed, and surrounded by enemies with firearms, including two grease-guns. Thus, Gancayco was deprived of any means of defense while his enemies were exposed to no risk arising from the defense which the offended party might have made." — This is the Court's application of the treachery doctrine to the facts, and it also supplies the premise for holding that Borja's physical absence from the scene did not exonerate him.
• "while it is true that the aggravating circumstance of promise or reward was not alleged in the information, nevertheless, it was proven during the trial, and therefore can be considered as a generic aggravating circumstance, though not a qualifying circumstance." — This passage, citing People vs. Navarro, states the controlling distinction between the pleading requirement for a qualifying circumstance and the treatment of an unpleaded but proven generic aggravating circumstance.

• People vs. Navarro, L-20860, November 28, 1964, 12 SCRA 530 — Controlling authority for the holding that the aggravating circumstance of promise or reward, though not alleged in the information, may be considered a generic aggravating circumstance if proven during trial.
• People vs. Carandang, 54 Phil. 503 (1930) — Cited for the rule that where there is conspiracy, treachery is considered against all the offenders, including one not physically present at the killing; applied against Borja.
• People vs. Wilson, 52 Phil. 907 (1929) — Cited for the rule that flight from the law is an admission that one has transgressed it; applied to Borja's two-month evasion.
• People vs. Cadag, L-13830, May 31, 1961, 2 SCRA 388; People vs. Peralta, L-19069, October 29, 1968, 25 SCRA 759; People vs. Alcantara, L-26867, June 30, 1970, 33 SCRA 812 — Cited together for the rule that once conspiracy attaches, proof of a previous agreement or decision to commit the crime is unnecessary.
• U.S. vs. Estopia, 28 Phil. 97 (1914); U.S. vs. Oro, 19 Phil. 548 (1911); U.S. vs. Vitug, 17 Phil. 1 (1910); People vs. Sespene, 102 Phil. 199 (1957); People vs. Lumantas, 28 SCRA 764 (1969); People vs. Agustin, 16 SCRA 467 (1966); People vs. Layson, 30 SCRA 32 (1969) — Cited collectively for the rule that band or aid of armed men, use of means to weaken the defense, and advantage of superior strength are absorbed in treachery and may not be considered independently.
• People vs. Malig, 83 Phil. 803 (1949) — Cited for the rule that treachery absorbs the aggravating circumstance of craft, fraud, and disguise.
• People vs. Sakam, 61 Phil. 27 (1934) — Cited for the rule that extenuating circumstances must be proven positively and cannot be based on mere deduction or inference; applied to reject the claim of lack of instruction.
• People vs. Gorospe, 105 Phil. 184 (1959); People vs. Ripas, 95 Phil. 63 (1954); People vs. Semanada, 103 Phil. 790 (1958); People vs. Tengyao, 113 Phil. 465 (1961) — Cited together for the rule that illiteracy alone is insufficient to constitute lack of instruction, there being required as well a lack of intelligence.
• People vs. Quilloy, 88 Phil. 53 (1951) — Cited for the rule that duress must be based on real, imminent, or reasonable fear for one's life or limb and must not be speculative, fanciful, or remote; applied to reject the five accused's claim of fear of Borja.

• Article 248, Revised Penal Code — Defines and penalizes murder. The killing of Santiago Gancayco, Jr. was qualified as murder by treachery, which the Court found abundantly established.
• Article 13, Revised Penal Code — Enumerates the mitigating circumstances. The Court held that neither fear nor lack of motive is among those enumerated, and that lack of instruction was not proven positively.
• Article 12, Revised Penal Code — Enumerates the exempting circumstances, including uncontrollable fear or duress. The Court held that the element of duress requires real, imminent, or reasonable fear for one's life or limb and cannot rest on speculative, fanciful, or remote fear.
• Article 5, Revised Penal Code — Authorizes the court to recommend executive clemency. Pursuant to this provision, the trial court recommended to the President, through the Secretary of Justice, that clemency be extended to Dominador de los Santos, or that at least his death penalty be commuted to life imprisonment, because his testimony contributed in large measure to the pursuit of truth and justice in the cases.
• Article 64(4), Revised Penal Code, in relation to Article 248 — Cited in Justice Barredo's separate concurring opinion as mandating the death penalty where aggravating circumstances are not offset by any mitigating circumstance.
• Section 21, Bill of Rights — Cited in Justice Barredo's separate concurring opinion for the constitutional proscription against the infliction of cruel or unusual punishment, which he held operates ex propio vigore upon the legislature, the courts, and the executive.
• Section 8, Article X, Constitution of the Philippines — Cited in Justice Barredo's separate concurring opinion for the requirement that a member dissenting from a decision shall state the reasons for his dissent.

Fernando, C.J., Makasiar, Concepcion, Jr., Santos, Fernandez, Guerrero, De Castro, and Melencio-Herrera, JJ., concurred. Teehankee, J., voted for affirmance of the death penalty. Antonio and Aquino, JJ., took no part. Barredo, J., filed a separate concurring opinion.

Justice Barredo concurred in the result but explained that he voted for reclusion perpetua in Criminal Case No. 2578 notwithstanding that the record showed the commission of the offense to be attended by aggravating circumstances not offset by any mitigating circumstance, for which Article 64(4) of the Revised Penal Code in relation to Article 248 mandates the death penalty. He maintained that the imposition of the penalty in capital offenses is a matter of strict law and may not be based on the individual feelings of the Justices about the propriety or impropriety of the death penalty per se, and that no member of the Court may refuse to vote for death in appropriate instances unless he expressly makes an individual finding that the circumstances warranting its imposition do not appear. He observed that a general statement that life imprisonment is being imposed for lack of necessary votes does not reflect which Justices did not vote for death and their reasons, making it difficult to ascertain whether the legal norms established by the Code and jurisprudence were observed, and he invoked the constitutional injunction that a Member dissenting from a decision — non-conformity with the penalty imposed in the main opinion being a dissent — shall state the reasons for his dissent. On the merits of the penalty, he held that while the appellants unquestionably deserved the death penalty at the time they were sentenced by the trial court, the passage of so many years of mental torture under the deplorable conditions obtaining in the national penitentiary — all the appellants having been under detention for more than twenty years and living under the shadow of a death sentence since September 8, 1960 — had transformed that penalty into a cruel one within the contemplation of the constitutional proscription against cruel and unusual punishment. He noted that the delay was no fault of the appellants, that living under the shadow of a death sentence for more than ten years under such conditions is a life worse than death itself, and that no new legislation is needed because the prohibition operates ex propio vigore upon the legislature, the courts, and the executive. He recorded that he had proposed to the Court that this position be adopted as a general rule but was not heeded.