FIRST DIVISION

[G.R. Nos. 122976-77. November 16, 1998.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REGANDO

VILLONEZ y PASCASIO, RUEL SANTOS y LAPADA, JOHN DOE,
PETER DOE, ELMER DOE, and ROY DOE, accused, vs.
EDUARDO N. SANTOS @ "EDDIE," REYNALDO N. SANTOS @
"REY," FERNANDO N. SANTOS @ "DEDE," EMERLITO N.
SANTOS @ "ELMER," and RUDY N. SANTOS @ "BUDDA,"
accused, REGANDO VILLONEZ y PASCASIO, EMERLITO N.
SANTOS, and RUEL SANTOS, accused-appellants.

Public Attorney's Office for accused-appellants.

Gerardo L. Dean and Wilfredo I. Imperial for R. L. Santos.

SYNOPSIS

Prosecution witness Edgar Jimenez testified that the victim Gerardo

Longasa was hit by appellant Emerlito Santos with a piece of wood and
simultaneously, Regando Villonez and Ruel Santos struck Longasa with bottles.
Rudy Santos and Eddie Santos then stabbed Longasa several times even as two
persons named Rey and Budda held Longasa's arms. Longasa then fell to the
ground. cdasia

The trial court, finding conspiracy among all the accused and rejecting
their defense of denial and alibi, convicted them of murder, qualified by taking
advantage of superior strength.
It is well-settled that a trial court's assessment of a witness's testimony is
entitled to great respect on appeal. Our perusal of the transcript of the
testimony of prosecution witness, Jimenez confirms his trustworthiness. Thus, in
the face of the positive identification of the accused, the defense of alibi must
fail. Further, the finding of conspiracy among the accused is supported by
evidence. However, we hold that treachery qualified the killing because the
victim had engaged in a fight previous to the killing and was thus forewarned of
an attack against him. The abuse of superior strength is absorbed in treachery.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; FINDINGS OF

TRIAL JUDGE, RESPECTED. — The judge had the distinct advantage of having
personally heard the testimonies of the witnesses and observed their
deportment and manner of testifying during the trial. It is settled that the trial
judge's findings on the credibility of witnesses will not generally be disturbed
unless said findings are arbitrary, or facts and circumstances of weight and
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 influence have been overlooked, misunderstood, or misapplied by the trial
judge which, if considered, would have affected the result of the case. None of
the exceptions have been shown to exist in the instant case. acHITE

2. ID.; ID.; ID.; ID.; UPHELD IN CASE AT BAR. — Our perusal of the
transcript of the testimony of witness Edgar Jimenez confirms his
trustworthiness. He told a consistent story throughout his two turns at the
witness stand. He corrected misimpressions by the trial judge and examining
counsel, and he satisfactorily explained the apparent lapses in his testimony.
He was frank about his dark history as a drug user who was once the subject of
a criminal case in court. It must be noted that a criminal record does not
necessarily make one an incredible witness. Edgar's honesty in revealing his
past without hesitation bolster his credibility.

3. ID.; ID.; ID.; ID.; NOT AFFECTED BY INCONSISTENCIES BETWEEN HIS

TESTIMONY AND SWORN STATEMENT; IN WHICH CASE, THE FORMER PREVAILS.
— The inconsistencies between Edgar's testimony and sworn statement given
to the police were likewise adequately explained. In any case, a sworn
statement or affidavit, being taken ex-parte by a person other than the witness,
is almost always incomplete and often inaccurate, sometimes from partial
suggestion or for want of suggestions and inquiries. Omissions and
misunderstandings by the writer are not infrequent, particularly under
circumstances of hurry and impatience. The infirmity of affidavits as a species
of evidence is a matter of judicial experience. As such, an affidavit taken ex-
parte is generally considered to be inferior to testimonies made in open court.
4. ID.; ID.; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF
ACCUSED. — In the face of the positive identification of the accused by Edgar,
the defense of alibi is worth nothing. Besides, accused-appellants were unable
to prove that it was physically impossible for them to be at the crime scene at
the time the crime was committed. The alibi which is sufficient to acquit an
accused of a criminal charge must be that which shows it was physically
impossible for him to be at the crime scene at the time of the commission of
the crime.
5. CRIMINAL LAW; CONSPIRACY; WHEN PRESENT; CASE AT BAR. — For
conspiracy to exist, it is not required that there be an agreement for an
appreciable period prior to the occurrence. It is sufficient that at the time of the
commission of the offense, the accused had the same purpose and were united
in its execution. The agreement to commit a crime may be gleaned from the
mode and manner of the commission of the offense or inferred from the acts of
the accused which point to a joint purpose or design, concerted action, and
community of intent. In this case, the accused simultaneously attacked
LONGASA, with two of them holding the victim's hands or arms. Some struck
LONGASA with a piece of wood or bottles and two others stabbed him. The
attack continued until LONGASA fell dead. These acts clearly point to a joint
purpose to accomplish the desired end.

6. ID.; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT

EVEN IF VICTIM WAS FOREWARNED THAT WHAT IS DECISIVE IS THE
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 IMPOSSIBILITY TO DEFEND ONESELF. — Treachery may still be appreciated
even when the victim was forewarned of danger to his person. What is decisive
is that the execution of the attack made it impossible for the victim to defend
himself or to retaliate. The overwhelming number of the accused, their use of
weapons against the unarmed victim, and the fact that the victim's hands were
held behind him preclude the possibility of any defense by the victim. The other
qualifying circumstance of abuse of superior strength, which the trial court
appreciated, will no longer be taken against accused-appellants, for it is
absorbed in treachery.
7. ID.; ID.; PENALTY ABSENT ANY MITIGATING OR AGGRAVATING
CIRCUMSTANCES IS RECLUSION PERPETUA. — The penalty for the murder is
reclusion perpetua to death pursuant to Article 248 of the Revised Penal Code
as amended by R.A. No. 7659. There being no mitigating or aggravating
circumstance proved in favor of or against EMERLITO and REGANDO, the trial
court correctly imposed the penalty of reclusion perpetua. TaHIDS

8. ID.; ID.; PENALTY WHERE OFFENDER IS A MINOR. — As to accused

RUEL, who was only 16 years old when the offense in question was committed,
the trial court correctly appreciated in his favor the privileged mitigating
circumstance of minority. Pursuant to paragraph 2 of Article 68 of the Revised
Penal Code, the penalty next lower to that prescribed by law shall be imposed;
in this case the penalty shall be reclusion temporal. Again, there being no proof
of any modifying circumstance, said penalty shall be imposed in its medium
period. Since RUEL is entitled to the benefits of the Indeterminate Sentence
Law, he shall be sentenced to suffer an indeterminate penalty whose minimum
shall be within the range of prision mayor and whose maximum shall be within
the range of reclusion temporal. The penalty imposed upon him by the trial
court, i.e ., ten years of prision mayor as minimum to seventeen years of
reclusion temporal as maximum, is therefore correct. aSHAIC

DECISION

DAVIDE, JR., J : p

Accused-appellants REGANDO VILLONEZ, 1 RUEL SANTOS, 2 and

EMERLITO SANTOS pray for a reversal of their conviction for MURDER decreed
in a Joint Decision 3 rendered on 23 November 1995 by the Regional Trial Court
(RTC) of Malabon, Metro Manila, Branch 170, in Criminal Cases Nos. 14943-MN
and 15506-MN. cda

The information 4 in Criminal Case No. 14943-MN charged REGANDO and

RUEL with the crime of murder allegedly committed in the following manner:
That on or about the 3rd day of May 1994 in Malabon Metro
Manila, and within the jurisdiction of this Honorable Court, the
abovenamed accused [Regando Villonez y Pascasio, Ruel Santos y
Lapada, John Doe, Peter Doe, Elmer Doe and Roy Doe], conspiring
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 together and mutually helping one another, without any justifiable
cause, with deliberate intent to kill, with treachery, taking advantage of
superior strength, and being armed with bladed weapons, did then and
there wilfully, unlawfully and feloniously attack, assault and stab one
GERARDO LONGASA on the different parts of the body, thereby
inflicting upon the latter serious physical injuries, which caused his
death.
CONTRARY TO LAW.

The case was assigned to Branch 170 of the RTC of Malabon, Metro Manila.
Upon arraignment, REGANDO and RUEL entered a plea of not guilty.5

Meanwhile, accused-appellant EMERLITO, together with Eduardo,

Reynaldo, Fernando, and Rudy, all surnamed Santos, was likewise charged with
murder in an information, 6 which was later docketed as Criminal Case No.
15506-MN. The crime was allegedly committed as follows:
That on or about the 3rd day of May, 1994, in the Municipality of
Malabon, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused [Eduardo N. Santos @
Eddie, Reynaldo N. Santos @ Rey, Fernando N. Santos @ Dede,
Emerlito N. Santos @ Elmer, and Rudy N. Santos @ Budda], conspiring,
confederating with Regando P. Villonez and Ruel Santos who were
already charged for the same crime under Criminal Case No. 14943
and without any justifiable cause, with deliberate intent to kill, with
treachery taking advantage of superior strength and being armed with
a [sic ] bladed weapons, did then and there willfully, unlawfully and
feloniously attack, assault and stab one GERARDO LONGASA on the
different parts of the body, thereby inflicting upon the latter serious
physical injuries, which caused his death.

CONTRARY TO LAW.

Only EMERLITO was arrested; his co-accused have remained at large.

Evidently, the killing involved in Criminal Case No. 14943-MN was the
same as that in Criminal Case No. 15506-MN. Hence, the second case was
transferred from Branch 72 to Branch 170 of the RTC of Malabon, Metro Manila,
and was consolidated and jointly tried with the first case pursuant to the Order 7
of 22 March 1995.

At his arraignment, EMERLITO entered a plea of not guilty.8

The witnesses for the prosecution were Edgar Jimenez and Dr. Ronaldo
Mendez, a Medico-Legal Officer of the National Bureau of Investigation; and the
witnesses for the defense were the accused-appellants, as well as Arthur
Aquino and Conrado Gungon.

Edgar Jimenez testified that on 3 May 1994, at around 9:00 p.m., while he
was resting inside his store at Hulo, Malabon, Metro Manila, a certain Tonton
informed him that his close friend GERARDO LONGASA had a fistfight with one
"Rudy," alias "Dede," 9 at Liwayway Street, Baritan, Malabon. Edgar proceeded
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 to the area to mediate, since LONGASA and Rudy were both his friends. Edgar
passed through Javier II Street in going to Liwayway Street. At Javier II Street, a
group of seven armed men, including accused-appellants, attacked Edgar.
RUEL hit Edgar on his forehead and back with a bottle. Edgar was able to
escape from his attackers. While fleeing, he ran past LONGASA, who seemed
drunk. When Edgar called LONGASA, the attackers were already upon
LONGASA. 10

While he was about eight arms' length away from LONGASA, Edgar saw
EMERLITO hit LONGASA with a 2 x 2 inches piece of wood. Simultaneously,
REGANDO and RUEL struck LONGASA with bottles. Rudy Santos and Eddie
Santos then stabbed LONGASA seven and eight times, respectively, even as
two other persons named Rey and Budda held LONGASA's arms. LONGASA fell
to the ground. Edgar saw all these because the scene of the incident was
illuminated by a big fluorescent lamp located about three arms' length away.
Edgar rushed to LONGASA's house and reported the incident to the latter's
parents. 11
Dr. Ronaldo Mendez conducted an autopsy on LONGASA's corpse. His
findings are as follows:
Abrasions: 1.0 x 0.6 cms., forehead, left side; 6.0 x 4.0 cms.,
zygomatic area, left; 3.6 x 1.1 cms., nasal area, right side; 4.0 x 2.0
cms., maxillary area, left; 2.0 x 0.6 cms., infranasal area, left side; 0.5
x 0.4 cms., mandibular area. left side; 6.6 x 4.2 cms., left upper
quadrant, abdomen, 5.0 x 3.0 cms., anterior aspect, upper third, arm,
left; 2.5 x 1.3 cms., left lumbar area; 5.0 x 2.5 cms., elbow, left.

Contusions, purplish: 7.4 x 6.2 cms., anterior chest wall, left side;
4.4 x 2.3 cms., anterior aspects, upper third, arm, right.

Lacerated wounds: 1.1 cms., supraorbital ridge, right; 1.2 cms.,

posterior aspect, upper third, forearm, left.

Stab wounds:
1) 3 in number, sizes ranging from 0.5 to 1.6 cms., elliptical
clean-cut edges, with one extremity sharp and the other
blunt, located at the anterior chest wall, left side, over an
area of 15.0 cms., x 7.0 cms., the farthest is located 10.0
cms., from the anterior median line, while the nearest is
located 3.0 cms., from the anterior median line, directed
backwards, upwards, downwards and medially, involving
the soft tissues, perforating the right ventricle and
penetrating the lower lobe of the left lung with an average
depth of approximately 7.5. cms.
2) 1.4 cms., elliptical, clean cut edges, with sharp medial
extremity and blunt lateral extremity, located at the
posterior chest wall, left side, 7.0 cms., from the posterior
median line, directed forwards, upwards and laterally,
involving the soft tissues only with an approximate depth
of 3.0 cms.

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 3) 1.5 cms., elliptical, clean-cut with sharp medial extremity and
blunt lateral extremity, located at the posterior chest wall,
left side, 9.0 cms., from the posterior median line, directed
forwards, upwards and medially, involving the soft tissues,
from the 6th intercostal space, into the left thoracic cavity
penetrating the upper lobe of the left lung with an
approximate depth 5.0 cms.
4) 1.6 cms., elliptical, clean cut edges, with sharp lateral
extremity and blunt medial extremity, located at the
anterior chest wall, right side, 3.0 cms., from the posterior
median line, directed forwards, upwards and medially,
involving the soft tissue only with an approximate depth of
2.0 cms.
Hemopericardum, 230 cc.
Hemothorax, left, 1095 cc.
Other visceral organs, pale.
Stomach is almost empty.
CAUSE OF DEATH:
STAR WOUNDS. 12

Dr. Mendez explained that the abrasions were caused by hard, rough
surface, possibly cement or a piece of wood. The contusions and lacerations
were caused by a blunt object, which could have been a piece of wood, a
bottle, a pipe, or any other hard object. The incise wounds or stab wounds
were caused by a sharp-bladed or sharp-edged instrument. Of the six stab
wounds suffered by LONGASA, stab wounds numbered 1 and 3 on
LONGASA's chest caused the latter's death. 13
The testimony of LONGASA's mother was dispensed with after the State
and the defense agreed that Longasa's family incurred P8,500 in funeral
expenses. 14

REGANDO interposed alibi and denial. He claimed that on 3 May 1994,

between 7:30 and 8:00 p.m., he was having a conversation with Arthur Aquino
at the premises of RUEL's house. Someone passed by the house and reported a
slaying incident at Javier II Street. Curious, REGANDO and Aquino went to the
scene of the incident and there found LONGASA lying in a pool of his own blood.
REGANDO recognized LONGASA because the latter was a barber at REGANDO's
neighborhood. He believed that the victim already dead, since the latter did not
seem to be breathing. When policemen arrived, REGANDO moved away from
the scene; he did not want to be asked about the incident, as he knew nothing
about it. On 7 May 1994, he was arrested by Malabon policemen after Edgar
Jimenez identified him as one of the assailants. He opined that Edgar implicated
him in the crime because they had an altercation during a basketball game,
which altercation could have erupted into a fistfight had they not been pacified.
15

Arthur Aquino, REGANDO's "gangmate," corroborated the latter's

testimony and declared that it was impossible for REGANDO to have taken part
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 in the killing, since he was with REGANDO before and after the incident. When
they arrived at Javier II, they saw many people, none of whom were known to
him. He asked the people milling around LONGASA's body who the killer was,
but no one could tell him. 16
RUEL, who was 16 years old at the time the crime in question was
committed, also put up the defense of alibi. According to him, when the
incident was taking place he was at his grandmother's house in Javier II
changing clothes, for he had just taken a bath. He heard screams from outside
of the house reporting that a killing had occurred at the corner of Javier II
Street. Out of curiosity, he immediately went to the reported scene of the
incident. There he saw a bloodied body lying on the ground, which he later
found to be LONGASA's cadaver. RUEL was not questioned by the authorities
during the investigation. However, on 7 May 1994, while he and co-accused
REGANDO were watching television at his grandmother's house, they were
arrested by the police on the basis of Edgar's information that they were
among LONGASA's assailants. 17
EMERLITO also relied on alibi for his defense. He declared that at the time
of the incident he was at Javier II to borrow P500 from his mother. On his way to
his mother's place, someone informed him that his brother Fernando Santos,
alias Dede, was involved in a fight at Liwayway Street. He rushed to the scene
of the reported fight. There, he found his brother being ganged up on by Edgar
Jimenez and another person. EMERLITO grabbed Edgar and boxed him, but the
latter retaliated. They exchanged punches until Edgar ran towards a nearby
alley. EMERLITO gave chase but failed to catch Edgar, as the latter jumped into
a river. EMERLITO waited for Edgar to come up for air. After ten to fifteen
minutes, EMERLITO got impatient and went back to Liwayway Street. After
seeing no one in the area, he went to Javier II Street. Along the way he saw
people running, and then someone shouted: "Mang Emer, iyong kapatid ninyo
nakasaksak namatay" (Mang Emer, your brother stabbed and killed a man).
Another person advised him not to proceed to the scene of the incident and to
go home instead. EMERLITO followed the advice. He did not take his brother to
the authorities because not one of his brothers was at home when he got there.
Neither did he go to the police to "explain" the incident, as he did not know
much about it. 18
Conrado Gungon attempted to bolster EMERLITO's account by claiming
that at the time of the incident, he saw Fernando Santos and a certain Rey
chasing LONGASA at Javier II. He followed the three to a corner near General
Luna Street. There he saw Fernando and Rey stab LONGASA; after which the
assailants ran towards General Luna Street. The two attackers had no other
companion. Conrado went home after the incident. 19
In its Joint Decision, 20 the trial court found Jimenez's testimony to be
credible and supportive of the theory of conspiracy among the accused. It
found the following circumstances to be more than sufficient to prove that the
accused-appellants and their co-accused had common design to kill LONGASA
and were united in its execution: (1) their simultaneous acts and concerted
effort in surrounding the victim; (2) all of them carried weapons, which they
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 used against the victim; (3) they took turns in disabling the victim with blows
administered with a piece of wood and bottles; (4) the victim's arms were
restrained when the death blows were inflicted; (6) none of the accused-
appellants tried to dissuade their companions from delivering fatal wounds on
the victim; as a matter of fact, they continued attacking the victim until the
latter was already down and gasping for breath; and (7) the number of wounds
inflicted on the victim was a mute testimony of the vengeful fury and brutality
of the deadly attack upon him. Conspiracy having been established, the act of
one was the act of all.

The trial court ruled against the presence of treachery, since LONGASA
was engaged in a fight with the accused before the fatal attack and was,
therefore, sufficiently warned of the assault against him. However, it
appreciated against the accused the qualifying aggravating circumstance of
taking advantage of superior strength because of the superior number of the
accused, most of whom were armed with weapons; while the victim was alone,
with his arms held behind him by two of the assailants.
The trial court rejected the defense of alibi for failure of accused-
appellants to prove that they were so far away from the scene of the crime as
to be physically impossible for them to be there when the crime was
committed. cdphil

The trial court thus ruled that the crime committed was murder and
decreed; thus:
WHEREFORE, all considered, the Court finds all the three (3)
accused GUILTY beyond reasonable doubt of the crime of MURDER and
sentences each of them as follows:

a) Accused REGANDO VILLONES y PASCASIO and EMERLITO N.

SANTOS, there being no aggravating and mitigating
circumstance, to suffer the penalty of RECLUSION
PERPETUA;
b) Accused RUEL N. SANTOS, appreciating the privileged
mitigating circumstance of minority in his favor, being 16
years old at the time of the commission of the offense, to
suffer an indeterminate penalty of TEN (10) YEARS of
prision mayor as minimum, to SEVENTEEN (17) YEARS of
reclusion temporal as maximum.
Likewise, all the accused are hereby ordered to indemnity, jointly and
severally, the heirs of GERARDO LONGASA in the amount of P8,500.00
as actual damages, and the additional sum P50,000.00, as civil
indemnity for the death of the said victim, and the costs of suit.

Accused-appellants REGANDO, RUEL, and EMERLITO seasonably appealed

to us. 21

In their Brief, accused-appellants REGANDO and EMERLITO, represented

by the Public Attorney's Office, contend that the trial court committed the
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 following errors:
I
. . . IN GIVING FULL WEIGHT AND CREDENCE TO THE OTHERWISE
UNCORROBORATED, INCREDIBLE AND FABRICATED TESTIMONY OF
PROSECUTION WITNESS EDGARDO JIMENEZ.
II
. . . IN FINDING ACCUSED-APPELLANT REGANDO VILLONES GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.
III
. . . IN FINDING THAT THERE EXISTS CONSPIRACY IN THE CASE AT BAR.

In his separate Brief, accused-appellant RUEL imputes upon the trial court
the following errors:
I.
. . . IN NOT HOLDING THAT EDGAR JIMENEZ IS NOT COMPETENT TO
TESTIFY ON THE PARTICIPATION OF RUEL SANTOS CONSIDERING HE
WAS NOT AN EYEWITNESS AND HIS TESTIMONY IS, THEREFORE,
HEARSAY.
II.

. . . IN HOLDING THAT ACCUSED RUEL SANTOS WAS IN CONSPIRACY

AMONG THE OTHER ACCUSED IN THE KILLING OF GERARDO LONGASA.

III.
. . . IN DISREGARDING THE TESTIMONY OF EMERLITO SANTOS.
IV.
. . . IN DISREGARDING THE TESTIMONY OF CONRADO GUNGON.

All accused-appellants attack the credibility of lone eyewitness Edgar

Jimenez. REGANDO and EMERLITO wonder why Edgar took a longer route
through Javier II Street to get to Liwayway Street instead of just crossing the
bridge that separated Duhat from Liwayway Street, which was shorter route.
Another thing which they find illogical was Edgar's failure to shout for help and
to do anything to save his friend LONGASA. As to Edgar's testimony that he was
mauled by the accused, accused-appellants theorize that Edgar could have
been a participant in "the rumble," which made him a biased and unreliable
witness. Moreover, Edgar could not have witnessed the crime, as he was then
running away from the scene to escape further injuries. Additionally, no one
corroborated Edgar's testimony; hence, it is self-serving.

RUEL claims that Edgar Jimenez committed inconsistencies on material

points, especially on who actually stabbed LONGASA and how many times he
was so stabbed. Edgar was, likewise, unable to make up his mind whether he
was running away from the crime scene or staying at a safe distance from the
incident. RUEL finds illogical and incredible the story of Edgar that accused
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 attacked him when he was merely looking for LONGASA, and that while Edgar
was originally the target of the accused's aggression, they inexplicably vented
their ire on LONGASA and allowed Edgar to witness everything and walk away
untouched. RUEL also stresses that the prosecution did not disprove
EMERLITO's testimony that Edgar was in a river near Liwayway Street while the
incident was taking place; hence, he could not have witnessed the crime.
Besides, Edgar's testimony was disproved by Gungon, who testified that
Reynaldo and Fernando Santos were the ones who stabbed LONGASA, and that
the said assailants had other companions.
Accused-appellants insist on the credibility of the testimony of the
defense witnesses. They further claim that they were able to explain their
whereabouts during the perpetration of the offense, and that they had other
witnesses to corroborate their respective versions.
Finally, accused-appellants assert that there is no sufficient proof of
conspiracy. The short interval between the attack on Edgar and the attack on
LONGASA precluded the existence of a preconceived plan among the accused
to so assault LONGASA. Additionally, if there was indeed conspiracy among the
accused, all should have stabbed LONGASA, not just that some of them hit the
victim with bottles or a piece of wood.
In the Consolidated Brief for the Appellee, the Office of the Solicitor
General (OSG) maintains that the alleged lapses in Edgar Jimenez's testimony
were duly explained and the alleged inconsistencies were too trivial to impair
his straightforward account of the crime. His failure to help his friend while the
latter was under attack was understandable considering that the aggressors
had the strength of number. At any rate, the trial court found Edgar credible. It
is well-settled that a trial court's assessment of a witness's testimony is entitled
to great respect on appeal.
As to RUEL's claim of lack of logic in the version of Edgar, the OSG argues
that it is of judicial knowledge that persons have been assaulted for no
apparent reason whatsoever. 22
The OSG considers Gungon's testimony undeserving of consideration.
Gungon failed to explain why he gave his account of the crime only on 1 August
1995 or fifteen months after the incident in question. His long unexplained
silence makes one suspicious of his motives; hence his testimony is unworthy
of belief. 23

Finally, the OSG agrees with the trial court's rejection of accused-
appellants' defense of alibi and with the finding of conspiracy. It argues that
there was no showing of physical impossibility for the accused to be at the
crime scene when the crime was committed; besides, they were positively
identified by Edgar Jimenez as among LONGASA's attackers. As to conspiracy,
the same can easily be deduced from the manner of the commission of the
offense and from the concerted acts of the accused to obtain a criminal
objective. 24

As often happens in criminal cases on appeal, we are asked to disregard

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 the testimony of a prosecution witness for being incredible, and to give full
credence to those of the defense and decree accused-appellants' acquittal.
Among the discrepant accounts of the same incident, we choose to believe the
one certified by the trial judge to be credible, in this case, the testimony of
Edgar Jimenez. The judge had the distinct advantage of having personally
heard the testimonies of Edgar and the witnesses for the defense, and observed
their deportment and manner of testifying during, the trial. It is settled that the
trial judge's findings on the credibility of witnesses will not generally be
disturbed unless said findings are arbitrary, or facts and circumstances of
weight and influence have been overlooked, misunderstood, or misapplied by
the trial judge which, if considered, would have affected the result of the case.
25 None of the exceptions have been shown to exist in the instant case.

Indeed, our perusal of the transcript of the testimony of Edgar Jimenez

confirms his trustworthiness. He told a consistent story throughout his two
turns at the witness stand. He corrected misimpressions by the trial judge and
examining counsel, and he satisfactorily explained the apparent lapses in his
testimony. He was frank about his dark history as a drug user who was once the
subject of a criminal case in court. It must be noted that a criminal record does
not necessarily make one all incredible witness. 26 Edgar's honesty in revealing
his past without hesitation bolsters his credibility.

The inconsistencies between Edgar's testimony and sworn statement

given to the police were likewise adequately explained. In any case, a sworn
statement or affidavit, being taken ex parte by a person other than the witness,
is almost always incomplete and often inaccurate, sometimes from partial
suggestion or for want of suggestions and inquiries. Omissions and
misunderstandings by the writer are not infrequent, particularly under
circumstances of hurry and impatience. The infirmity of affidavits as a species
of evidence is a matter of judicial experience. As such, an affidavit taken ex-
parte is generally considered to be inferior to testimonies made in open court.
27

Furthermore, as the OSG correctly opined, the findings of medico-legal

officer Dr. Ronaldo Mendez served to corroborate Edgar's testimony.
LONGASA's injuries, recorded in Dr. Mendez's report, reflected the severe
beatings LONGASA suffered at the hands of the accused as narrated by Edgar.

The bromidic defense of alibi cannot benefit accused-appellants. In the

face of the positive identification of the accused by Edgar, such defense is
worth nothing. 28 Besides, accused-appellants were unable to prove that it was
physically impossible for them to be at the crime scene at the time the crime
was committed. On the contrary, REGANDO and RUEL admitted that in just a
short time they were able to get to the crime scene by walking. For his part,
EMERLITO acknowledged his involvement in a fight which preceded LONGASA's
killing, and he conceded that he was able to return to the crime scene, or near
the crime scene, at or about the time of the commission of the offense. The
alibi which is sufficient to acquit an accused of a criminal charge must be that
which shows it was physically impossible for him to be at the crime scene at the
time of the commission of the crime. 29
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 As to the trial court's finding of conspiracy among the accused, we find
the same to be supported by evidence. For conspiracy to exist, it is not
required that there be an agreement for an appreciable period prior to the
occurrence. It is sufficient that at the time of the commission of the offense, the
accused had the same purpose and were united in its execution. The
agreement to commit a crime may be gleaned from the mode and manner of
the commission of the offense or inferred from the acts of the accused which
point to a joint purpose or design, concerted action, and community of intent.
30 In this case, the accused simultaneously attacked LONGASA, with two of

them holding the victim's hands or arms. Some struck LONGASA with a piece of
wood or bottles and two others stabbed him. The attack continued until
LONGASA fell dead. These acts clearly point to a joint purpose to accomplish
the desired end. LLjur

However, we do not share the assessment of the trial court that there was
no treachery in this case because the victim had engaged in a fight previous to
the killing and was thus forewarned of an attack against him. Treachery may
still be appreciated even when the victim was forewarned of danger to his
person. What is decisive is that the execution of the attack made it impossible
for the victim to defend himself or to retaliate. 31 The overwhelming number of
the accused, their use of weapons against the unarmed victim, and the fact
that the victim's hands were held behind him preclude the possibility of any
defense by the victim.

The other qualifying circumstance of abuse of superior strength, which

the trial court appreciated, will no longer be taken against accused-appellants,
for it is absorbed in treachery. 32
The penalty for the murder is reclusion perpetua to death pursuant to
Article 248 of the Revised Penal Code as amended by R.A. No. 7659. There
being no mitigating or aggravating circumstance proved in favor of or against
EMERLITO and REGANDO, the trial court correctly imposed the penalty of
reclusion perpetua. 33
As to RUEL, who was only 16 years old when the offense in question was
committed, the trial court correctly appreciated in his favor the privileged
mitigating circumstance of minority. Pursuant to paragraph 2 of Article 68 of
the Revised Penal Code, the penalty next lower to that prescribed by law shall
be imposed; in this case the penalty shall be reclusion temporal. 34 Again, there
being no proof of any modifying circumstance, said penalty shall be imposed in
its medium period. 35 Since RUEL is entitled to the benefits of the Indeterminate
Sentence Law, he shall be sentenced to suffer an indeterminate penalty whose
minimum shall be within the range of prision mayor and whose maximum shall
be within the range of reclusion temporal. The penalty imposed upon him by
the trial court, i.e., ten years of prision mayor as minimum to seventeen years
of reclusion temporal as maximum, is therefore correct.
The awards of P50,000 as indemnity for the death of LONGASA and of
actual damages of P8,500 are in conformity with current case law and with the
agreement of the parties, respectively.
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 WHEREFORE, we DISMISS the appeal and AFFIRM the challenged Joint
Decision of 23 November 1995 of Branch 170 of the Regional Trial Court of
Malabon, Metro Manila, in Criminal Cases Nos. 14943-MN and 15506-MN
convicting accused-appellants REGANDO P. VILLONES, EMERLITO N. SANTOS,
and RUEL L. SANTOS of the crime of murder and sentencing the first two
accused to suffer the penalty of reclusion perpetua and the third accused, to an
indeterminate penalty of ten (10) years of prision mayor as minimum to
seventeen (17) years of reclusion temporal as maximum; and ordering all
accused-appellants to pay the heirs of the victim GERARDO LONGASA P50,000
as death indemnity and P8,500 as actual damages.

No pronouncement as to costs.
SO ORDERED.

Bellosillo, Vitug, Panganiban and Quisumbing, JJ ., concur.

Footnotes

1. His surname is alternately spelled Villones and Villonez in the various issuances
by the lower court and the transcripts of stenographic notes but Villonez in
the Information in Criminal Case No. 14943-MN (Original Record [OR],
Criminal Case No. 14943-MN, 1) and the Joint Decision (Id., 331-341).
However, he signed his name as R. Billiones in his motion for reinvestigation
(id ., 7-8) and notice of appeal (id ., 347).

2. He is referred to as Ruel in all the pleadings; however, in his certificate of live

birth (id ., 117 ), his first name is spelled Rowell.
3. OR, Criminal Case No. 14943-MN, 331-341, Rollo , 21-31. Per Judge Benjamin T.
Antonio, Henceforth, all references to the original record are to that in
Criminal Case No. 14943-MN, unless otherwise specified.

4. Id., 1.
5. OR, 25.

6. Id., Criminal Case No. 15506, 1.

7. Or, 7.

8. Id., 16.

9. Witnesses for the defense, however, stated that Dede Santos was the alias of
Fernando Santos (TSN, 18 July 1995, 3; TSN, 1 August 1995, 4).
10. TSN, 8 November 1994, 2-13; TSN, 10 November 1994, 2-5, 9-15.

11. Id., 5-17.

12. OR, 70.

13. TSN, 24 November 1994, 5-12.

14. Id., 12-13.

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 15. TSN, 6 February 1995, 2-15.

16. TSN, 9 February 1995, 2-7.

17. TSN, 13 February 1995, 3-15.

18. TSN, 18 July 1995, 2-10.

19. TSN, 1 August 1995, 2-5.

20. Supra note 3.

21. OR, 346, 347.

22. Citing People v. Ilaoa , 233 SCRA 231 [1994].

23. Citing People v. Ompad, 233 SCRA 62 [1994].

24. Citing People v. Silong , 232 SCRA 487 [1994].

25. People v. Leoterio , 264 SCRA 608, 617 [1996]; People v. Balamban , 264 SCRA
619, 629 [1996].

26. See Sec. 20, par. 2, Rule 130, RULES OF COURT.

27. People v. Ong Co , 245 SCRA 733, 742-743 [1995]; People v. Bayani , 262 SCRA
660, 680 [1996]

28. People v. Alshaika , 261 SCRA 637, 646 [1996]; People v. De Guzman , 265
SCRA 228, 245 [1996].

29. People v. Quijada , 259 SCRA 191, 214 [1996]; People v. Balamban , supra note
25, at 631.

30. People v. Sequiño , 264 SCRA 79, 101-102 [1996]; People v. Tabag , 268 SCRA
113, 127 [1997].

31. People v. Landicho , 258 SCRA 1, 28 [1996]; People vs. Tobias , 267 SCRA 229,
255-256 [1997].
32. People v. De Leon, 248 SCRA 609, 624 [1995]; People v. Landicho , supra note
31, at 29.

33. Art. 63, par. 2, REVISED PENAL CODE.

34. Art. 61, par. 2, REVISED PENAL CODE.

35. Art. 64, par. 1, REVISED PENAL CODE.

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