FIRST DIVISION

[G.R. No. 120282. April 20, 1998.]

PEOPLE OF THE PHILIPPINES, plainti-appellee, vs. ROBERT

CASTILLO y MONES, accused-appellant.

The Solicitor General for plainti-appellee.

Salacnib F. Baterina and Ismael R. Baterina for accused-appellant.

SYNOPSIS

Appellant was charged with murder in connection with the fatal stabbing of
Antonio Dometita. He pleaded not guilty and interposed the defense of denial
and alibi claiming that he was then asleep in his house at the time of the
incident. Prosecution witness Eulogio Velasco testied that he was sitting outside
the pub house when appellant suddenly arrived and stabbed the victim on the
left side of the chest. Another prosecution witness, Melinda Mercado, testied
that although she did not see the actual stabbing, she saw appellant wrapping a
bladed weapon in his shirt. However, defense witness Edilberto Marcelino, a
tricycle driver, testied that he was about twenty-ve meters away from the
crime scene when he saw a group of persons ganging up on a person who was
later identied as the victim, and that appellant was not one of the assailants.
The trial court gave full credence to the testimonies of the two prosecution
witnesses and rendered judgment of conviction of the crime charged, with the
qualifying circumstance of abuse of superior strength. Hence, this recourse,
appellant questioning the credibility of the prosecution witnesses and the
partiality of the trial judge in favor of the prosecution as shown by his
participation in the examination of witnesses. SAHIaD

The Supreme Court held that the factual ndings of the trial court, as well as its
assessment of the credibility of witnesses, are entitled to great weight and are
even conclusive and binding, barring arbitrariness and oversight of some fact or
circumstance of weight and substance.
The allegation of bias and prejudice is not well-taken. It is a judge's prerogative
and duty to ask claricatory questions to ferret out the truth. The propriety of a
judge's queries is determined not necessarily by their quantity but by their
quality and, in any event, by the test of whether the defendant was prejudiced
by such questioning. In this case, appellant failed to demonstrate that he was
prejudiced by the questions propounded by the trial judge. In fact, even if all such
questions and the answers thereto were eliminated, appellant would still be
convicted.
The defense of alibi cannot overturn the clear and positive testimony of the
credible eyewitnesses who located appellant at the locus criminis and identied
him as the assailant. DCASIT

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 The Court, however, disagreed with the trial court that the killing was qualied
by abuse of superior strength. The prosecution did not demonstrate that there
was a marked dierence in the stature and build of the victim and the appellant
which would have precluded an appropriate defense from the victim. Not even
the use of a bladed instrument would constitute abuse of superior strength if the
victim was adequately prepared to face an attack, or if he was obviously
physically superior to the assailant.
Nonetheless, the killing was qualied by treachery. Where the accused appeared
from nowhere and swiftly and unexpectedly stabbed the victim just as he was
bidding goodbye to his friend. Said action rendered it dicult for the victim to
defend himself.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL

COURT, GENERALLY ENTITLED TO GREAT WEIGHT. The factual ndings of the
trial court, as well as its assessment of the credibility of witnesses, are entitled to
great weight and are even conclusive and binding, barring arbitrariness and
oversight of some fact or circumstance of weight and substance. The evaluation
of the credibility of witness is a matter that peculiarly falls within the power of
the trial court, as it has the opportunity to watch and observe the demeanor and
behavior of the witnesses on the stand. In this case, appellant failed to provide
any substantial argument to warrant a departure from this rule. CHEIcS

2. JUDICIAL ETHICS; JUDGES; IT IS A JUDGE'S PREROGATIVE AND DUTY TO ASK

CLARIFICATORY QUESTIONS; PROPRIETY OF QUERIES DETERMINED WHETHER
THE DEFENDANT WAS PREJUDICED BY SUCH QUESTIONING. It is a judge's
prerogative and duty to ask claricatory questions to ferret out the truth. On the
whole, the Court nds that the questions propounded by the judge were merely
claricatory in nature. Questions which merely clear up dubious points and bring
out additional relevant evidence are within judicial prerogative. Moreover,
jurisprudence teaches that allegations of bias on the part of the trial court should
be received with caution, especially when the queries by the judge did not
prejudice the accused. The propriety of a judge's queries is determined not
necessarily by their quantity but by their quality and, in any event, by the test of
whether the defendant was prejudiced by such questioning.
3. ID.; ID.; ID.; ID.; CASE AT BAR. In this case, appellant failed to demonstrate
that he was prejudiced by the questions propounded by the trial judge. In fact,
even if all such questions and the answers thereto were eliminated, appellant
would still be convicted. As correctly observed by the Solicitor General, "there
was no showing that the judge had an interest, personal or otherwise, in the
prosecution of the case at bar. He is therefore presumed to have acted regularly
and in the manner [that] preserve[s] the ideal of the 'cold neutrality of an
impartial judge' implicit in the guarantee of due process (Mateo, Jr. vs. Villaluz,
50 SCRA 18)." That the trial judge believed the evidence of the prosecution more
than that of the defense, does not indicate that he was biased. He simply
accorded greater credibility to the testimony of the prosecution witnesses than to
that of the accused. acADIT

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 4. REMEDIAL LAW; EVIDENCE; CREDIBILITY; ALIBI; REQUISITE TO PROSPER AS A
DEFENSE. For the defense of alibi to prosper, the accused must prove not only
that he was at some other place at the time the crime was committed, but that it
was likewise physically impossible for him to be at the locus criminis at the time
of the alleged crime. This the appellant miserably failed to do. Appellant contends
that he was then asleep in his house at the time of the incident. This was
supported by his mother who stated that he was asleep from 9:00 p.m. to 6:00
a.m. the next day and by Rosemarie Malikdem who said that she visited the
accused on the night of May 24, 1993 to counsel him, which was her task in the
Samahang Magkakapitbahay. Appellant failed to demonstrate, however, the
distance between the crime scene and his house. Indeed, he testied that his
house was "near" the crime scene. In any event, this defense cannot overturn
the clear and positive testimony of the credible eyewitnesses who located
appellant at the locus criminis and identies him as the assailant.
5. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; WHEN
APPRECIATED; CASE AT BAR We likewise agree that the prosecution was
unable to prove the aggravating circumstance of evident premeditation. For this
circumstance to be appreciated, there must be proof, as clear as the evidence of
the crime itself, of the following elements: 1) the time when the oender
determined to commit the crime, 2) an act manifestly indicating that he clung to
his determination and 3) a sucient lapse of time between determination and
execution to allow himself time to reect upon the consequences of his act.
These requisites were never established by the prosecution. We hold that the
killing was qualied by treachery. "Treachery is committed when two conditions
concur, namely, that the means, methods, and forms of execution employed
gave the person attacked no opportunity to defend himself or to retaliate[;] and
that such means, methods, and forms of execution were deliberately and
consciously adopted by the accused without danger to his person." These
requisites were evidently present in this case when the accused appeared from
nowhere and swiftly and unexpectedly stabbed the victim just as he was bidding
goodbye to his friend, Witness Velasco. Said action rendered it dicult for the
victim to defend himself. The presence of "defense wounds" does not negate
treachery because, as testied to by Velasco, the rst stab, fatal as it was, was
inicted on the chest. The incised wounds in the arms were inicted when the
victim was already rendered defenseless. cDTIAC

6. ID.; AGGRAVATING CIRCUMSTANCES; ABUSE OF SUPERIOR STRENGTH;

ASSAILANT MUST PURPOSELY USE EXCESSIVE FORCE OUT OF PROPORTION TO
THE DEFENSE AVAILABLE TO THE PERSON ATTACKED. On the other hand, we
disagree with the trial court that the killing was qualied by abuse of superior
strength. "To properly appreciate the aggravating circumstance of abuse of
superior strength, the prosecution must prove that the assailant purposely used
excessive force out of proportion to the means of defense available to the person
attacked." (People vs. Ruelan, 231 SCRA 650, April 19, 1994; People vs. Casingal,
243 SCRA 37, March 29, 1995) The prosecution did not demonstrate that there
was a marked dierence in the stature and build of the victim and the appellant
which would have precluded an appropriate defense from the victim. Not even
the use of a bladed instrument would constitute abuse of superior strength if the
victim was adequately prepared to face an attack, or if he was obviously
physically superior to the assailant.
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 7. CIVIL LAW; DAMAGES; ACTUAL AND MORAL DAMAGES; MUST BE SUPPORTED
BY PROOF. The trial court awarded indemnity and actual and moral damages
to the heirs of the victim. We sustain the award of indemnity in the amount of
P50,000, but we cannot do the same for the actual and moral damages which
must be supported by proof. In this case, the trial court did not state any
evidentiary basis for this award. We have examined the records, but we failed to
nd any, either.

DECISION

PANGANIBAN, J : p

The trial court judge is not an idle arbiter during a trial. He can propound
claricatory questions to witnesses in order to ferret out the truth. The
impartiality of a judge cannot be assailed on the mere ground that he asked such
questions during the trial. cdrep

The Case
This is an appeal from the Decision 1 dated December 23, 1994 of the Regional
Trial Court of Quezon City, Branch 88, in Criminal Case No. Q-93-45235
convicting Robert Castillo y Mones of murder and sentencing him to reclusion
perpetua. 2
On July 23, 1993, an amended Information 3 was led by Assistant City
Prosecutor Ralph S. Lee, charging appellant with murder allegedly committed as
follows:
"That on or about the 25th day of May, 1993, in Quezon City, Philippines,
the above-named accused, with intent to kill[,] qualied by evident
premeditation, use of superior strength and treachery did then and there,
willfully, unlawfully and feloniously assault, attack and employ personal
violence upon the person of one ANTONIO DOMETITA, by then and there
stabbing him with a bladed weapon[,] hitting him on his chest thereby
inicting upon him serious and mortal wounds, which were the direct and
immediate cause of his untimely death, to the damage and prejudice of
the heirs of the said ANTONIO DOMETITA.
CONTRARY TO LAW."

Upon arraignment, Appellant Castillo, assisted by Counsel Salacnib Baterina,

entered a plea of not guilty. 4 After trial in due course, appellant was convicted.
The dispositive portion of the assailed Decision reads:
"WHEREFORE, premises considered, accused ROBERTO CASTILLO y
MONES is found guilty beyond reasonable doubt of the crime of Murder
and [is] hereby sentenced to suer [the] penalty of reclusion perpetua.
He is likewise ordered to pay the heirs of the deceased Antonio Dometita
actual damages in the sum of P60,000.00, the sum of P50,000.00 by
way of indemnity for the death of the victim and moral damages in the
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 sum of P100,000.00. He is likewise ordered to pay costs.
SO ORDERED." 5

Hence, this appeal. 6

The Facts
Evidence for the Prosecution
The Appellee's Brief 7 presents the facts as follows:
"On May 25, 1993, around one o'clock in the morning, Eulogio Velasco,
oor manager of the Cola Pubhouse along EDSA, Project 7, Veteran's
Village, Quezon City, was sitting outside the Pubhouse talking with his co-
worker, Dorie. Soon, Antonio "Tony" Dometita, one of their customers,
came out of the pubhouse. As he passed by, he informed Eulogio that he
was going home. When Tony Dometita was about an armslength [sic]
from Eulogio, however, appellant Robert Castillo suddenly appeared and,
without warning, stabbed Tony with a fan knife on his left chest. As Tony
pleaded for help, appellant stabbed him once more, hitting him on the left
hand.

Responding to Tony's cry for help, Eulogio placed a chair between Tony
and appellant to stop appellant from further attacking Tony. He also
shouted at Tony to run away. Tony ran towards the other side of EDSA,
but appellant pursued him.
Eulogio came to know later that Tony had died. His body was found
outside the fence of the Iglesia ni Cristo Compound, EDSA, Quezon City.
Dr. Bienvenido Munoz, the medico-legal ocer who autopsied Tony's
cadaver, testied that the proximate cause of Tony's death was the stab
wound on his left chest. Tony also suered several incised wounds and
abrasions, indicating that he tried to resist the attack." 8

Version of the Defense

On the other hand, the defense viewed the facts in this way: 9

"On May 25, 1993, the late Antonio Dometita was found dead by the
police ocers at the alley on the right side of the Iglesia ni Cristo Church
at EDSA in Bago Bantay.
It is the theory of the prosecution that the deceased Antonio Dometita
was stabbed by the accused Robert Castillo y Mones as testied to by
Leo Velasco. The corroboration of Leo Velasco's testimony is that of
Melinda Mercado who (tsn Oct. 11, 1993) stated that Leo Velasco
informed her that Dometita was stabbed. Robert Castillo was walking
away from the pubhouse with the bladed weapon. Leo Velasco himself
detailed the way Castillo stabbed the deceased Antonio Dometita.
On the other hand the defense claims that the deceased died in the alley
at the right side of the church. That decedent Dometita was attacked by
two malefactors as testied to by Edilberto Marcelino, a tricycle driver
who saw two people ganging up on a third. The same witness saw the
victim falling to the ground. (tsn January 5, 1994, page 8). A report of
Edilberto Marcelino to the Barangay Tanod's Oce was made in the
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 blotter of the Barangay and the extract (xerox of the page) was marked
as Exhibit '2'."

The Trial Court's Ruling

The court a quo gave full credence to the testimonies of the two prosecution
witnesses, who positively identied the appellant as the killer. It explained:
"From the testimonies of the witnesses of the prosecution and the
defense, it can be gleaned that the accused, to exculpate himself from
the liability, clung to the defense of alibi[,] saying that he was not at the
place where the incident took place at the time of the killing. This was
supported by the testimony of his mother and his neighbor and guide
Malikdem. This, however, is contradicted by the testimonies of the two
eyewitnesses of the prosecution who positively identied accused as the
person who stabbed the victim. While the testimony of Mercado is to the
eect that she did not actually see the accused hit the victim, she
however, saw him walking away and carrying a bladed weapon at the
scene of the crime. Velasco on the other hand, actually saw him lunged
[sic] his fan knife at the victim. These were further strengthened by the
ndings of the medico-legal ocer that the weapon used in killing the
victim [was] similar to a balisong." 10

The trial court also found that the killing was qualied by abuse of superior
strength, because "the accused used a deadly weapon in surprising the victim
who [was] unarmed." Although treachery was present, the trial court held that
this was absorbed by abuse of superior strength.
The Issues
The appellant raises the following assignment of errors: 11

"I

That the trial court failed to appreciate the evidence presented by the
accused that there was a stabbing/mauling incident at the side street near
the Iglesia ni Cristo Church at Edsa-Bago Bantay, Quezon City (at about
the time of the alleged stabbing of victime [sic] Antonio Dometita
according to the prosecution version), the same evidence for the
accused being butressed and supported by the barangay blotter, marked
Exhibit '2.'
II
That the trial court failed to appreciate the implications of: the medical
nding that the heart and the lungs of the victim were impaled; that
according to the testimony of the prosecution witness, PO3 Manolito
Estacio, the victim was found at the side street near the Iglesia ni Cristo
Church; and that the side street distant from the place the witnesses for
the prosecution stated the victim was stabbed. These matters create
reasonable doubt as to the guilt of the accused and cast distrust on the
testimony of the witness Eulogio Velasco who allegedly witnessed the
stabbing of the victim.
III

That the trial court in many instances showed its prejudice against the
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 accused and in several instances asked questions that [were] well within
the duty of the prosecution to explore and ask; it never appreciated other
matters favorable to the accused, like the frontal iniction of the mortal
wound and the presence [of] "defense wounds" which negate treachery
and superiority.
IV

That the trial judge was bias[ed] against the accused hence the judgment
of conviction."

In the main, appellant questions the trial judge's (1) assessment of the credibility
of the witnesses and their testimonies and (2) alleged partiality in favor of the
prosecution as shown by his participation in the examination of witnesses.
This Court's Ruling
The appeal is bereft of merit.
First Issue: Credibility of Witnesses
Time and again, this Court has adhered to the rule that the factual ndings 12 of
the trial court, as well as its assessment of the credibility of witnesses, 13 are
entitled to great weight and are even conclusive and binding, barring
arbitrariness and oversight of some fact or circumstance of weight and substance.
The evaluation of the credibility of witnesses is a matter that peculiarly falls
within the power of the trial court, as it has the opportunity to watch and
observe the demeanor and behavior of the witnesses on the stand. 14 In this case,
appellant failed to provide any substantial argument to warrant a departure from
this rule.
The testimony of Prosecution Witness Eulogio Velasco that he saw the appellant
stab the victim is clear and unequivocal. He was sitting outside the pub house
when the victim came out. Dometita, who was then only an arm's length away
from him, turned around to say goodbye when, suddenly, the accused came out
of nowhere and stabbed the victim. Velasco narrated further that the victim
asked him for help, so he responded by placing a chair between the victim and
the appellant to block the assault of the accused. 15 Thereafter, he told Dometita
to run away. The accused then chased the victim towards the other side of EDSA.
16 The relevant portions of Velasco's testimony are reproduced hereunder:

"Q Immediately thereafter, was there any unusual incident that

happened?

A When Dorie went inside the pub house, that was the time Tony went
out, sir.

COURT:
Q Who is this Tony?
A Antonio Dimatita alias Tony, Your Honor.
PROS. LEE: cdrep

Q When Antonio Dimatita [sic] alias Tony went out, what happened?

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 A Tony asked permission from me that he will go home, sir.
Q And what happened thereafter?
A When he ha[d] not gone far yet from me, Robert Castillo suddenly
attacked him and stabbed him, sir.

Q What happened to Antonio Dimatita [sic] alias Tony when he was

stabbed by accused Robert Castillo?
A He was taken aback. He was not able to cover up himself and he was
hit by the stab made by Robert Castillo, sir.
Q On what part of the body was he hit?
A On the left side of the chest, sir.
Q And did you see in what summer [sic] accused Robert Castillo stabbed
Antonio Dimatita [sic]?
A Like this, sir. (Witness demonstrating with his right arm above his
shoulder with downward stabbing position.)
Q As you stated, after Tony was hit on the left side of [his] chest, what
happened next?
A He was stabbed again and was hit on the arm, sir.

Q What arm? Left or right?

A On the left arm, sir. (Witness is pointing to his left arm in between the
1st and second nger.)

Q After he was hit on the left arm, what happened next?

A He went near me and asked for help, sir. I placed a bench on the middle
to block the way so that Robert Castillo [would] not be able to
reach him and I told Tony to run away, sir.

Q Did Tony run away thereafter?

A Yes, sir.
Q How about accused Robert Castillo, what was he doing the[n]?
A He chased, sir.
Q What happened next?

A I heard Tony was already dead, sir."

The testimony of Velasco that the accused stabbed the victim on the left side of
the chest and then on the left arm was conrmed by the medical ndings, 17
particularly the autopsy report of Dr. Munoz, who testied as follows: 18
"COURT
Q Can you tell the Court the relative position of the victim and the
assailant when the stab wound was inicted?
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 TRIAL PROS. RALPH S. LEE
Based on the wound, doctor.
WITNESS
A If the victim and the assailant were in a standing position, the assailant
and the victim would be facing each other and the fatal wound was
delivered from upward to downward, your honor."

Witness Velasco further testied that the accused used a bladed weapon which
looked like a fan knife. 19 This was also supported by Dr. Munoz, viz.: 20
"Q Dr. Munoz, in your learned medical knowledge, what could have
caused this stab wound marked as Exhibit "D"?
A This was inicted by a sharp pointed single bladed instrument like
kitchen knife or "balisong" or any similar instrument."

Melinda Mercado, the other prosecution witness, corroborated the story of

Velasco. She testied that when she was inside the pub, she heard Velasco shout
that Antonio Dometita was stabbed. 21 She went out to verify and saw the
accused walking away. What she saw was not the stabbing incident itself, but the
accused wrapping a bladed weapon in his shirt. 22 This conrms the assertion of
Velasco that the accused was still holding the bladed instrument as he chased the
victim. 23
Clearly, the straightforward, detailed and consistent narrations of the
government witnesses show that the trial court did not err in giving credence to
the account of the prosecution.
Appellant contends that the trial court failed to appreciate the testimony of
Defense Witness Edilberto Marcelino who narrated a "stabbing/mauling incident"
on a side street that fateful night near the Iglesia ni Cristo Church, where the
victim's body was found. Said witness testied that he was driving his tricycle,
when he noticed a group ganging up on a man (pinagtutulungan). 24 He then saw
the person fall. 25 He did not notice if the assailants had weapons, as he was a bit
far from them, illumination coming only from the headlight of his tricycle. He
stated that the appellant, with whom he was familiar because he often saw him
selling cigarettes along EDSA, 26 was not one of those he saw ganging up on the
person who fell to the ground. He described one of the malefactors as long-haired
and lanky, and the other one as fair-complexioned with medium build, 27
descriptions which did not t the accused. Upon witnessing the incident,
Marcelino immediately proceeded to the barangay hall to report the matter.
The trial court did not accord weight to said testimony. We sustain this holding.
Marcelino admitted that he was about twenty-ve meters away from the place
of incident 28 and that said place was not lighted. Furthermore, his tricycle was
then moving because he was in a hurry. 29 Thus we agree with this statement of
the trial court: [C]onsidering that it was dark and the distance from where the
witness saw the incident [was] quite far, it could not have been possible for him
to recognize the victim and his attackers " 30
Appellant also asserts that the trial court failed to appreciate the implications of
the medical nding that the heart and lungs of the victim were impaled. He
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 argues that these wounds made it impossible for the victim to traverse the
distance from the pub house to the Iglesia ni Cristo Church area, where his body
was eventually found. However, the testimony of the medico-legal expert did not
rule out this possibility, as gleaned from the following:
"Q And if the stab wound was fatal, how long could have he [sic] lived
after the iniction of the wound? cdrep

A It would be very dicult to give the duration of survival because

dierent individual[s] would have dierent types of survival. Others
would [live] for ve minutes and others would survive for at least . .
. in shorter time.
Q But ve minutes doctor would be a long time already. It could be the
survival time of a person who has a strong constitution. Do you
agree with me?

A No, sir. In this particular case considering that the involvement here of
the heart is the left ventricle which is a very thick portion of the
heart. I don't think he would die in less than ve minutes because
the thick portion of the heart serves as a sealer once the
instrument is pulled out, the tendency of the thick muscle is to
close the injury so there is a much longer time for survival. " 31
(Emphasis supplied)
Second Issue: Partiality of the Trial Judge
Appellant declares that the trial judge was biased against him for propounding
questions that were well within the prerogative of the prosecution to explore and
ask. More pointedly, appellant alleges that the trial judge took over from the
prosecution and asked questions in a leading manner, 32 interrupted the cross-
examination to help the witness give answers favorable to the prosecution, 33
and asked questions which pertained to matters of opinion and allusions of bad
moral character, which could not be objected to by defense, counsel, because
they have been ventilated by the judge himself. 34 To substantiate the alleged
bias and prejudice of the judge, appellant in his brief cited several pages from the
transcript of stenographic notes. 35
The allegation of bias and prejudice is not well-taken. It is a judge's prerogative
and duty to ask claricatory questions to ferret out the truth. 36 On the whole,
the Court nds that the questions propounded by the judge were merely
claricatory in nature. Questions which merely clear up dubious points and bring
out additional relevant evidence are within judicial prerogative. Moreover,
jurisprudence teaches that allegations of bias on the part of the trial court should
be received with caution, especially when the queries by the judge did not
prejudice the accused. The propriety of a judge's queries is determined not
necessarily by their quantity but by their quality and, in any event, by the test of
whether the defendant was prejudiced by such questioning. In this case,
appellant failed to demonstrate that he was prejudiced by the questions
propounded by the trial judge. In fact, even if all such questions and the answers
thereto were eliminated, appellant would still be convicted.
As correctly observed by the solicitor general, "there was no showing that the
judge had an interest, personal or otherwise, in the prosecution of the case at bar.
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 He is therefore, presumed to have acted regularly and in the manner [that]
preserve[s] the ideal of the 'cold neutrality of an impartial judge' implicit in the
guarantee of due process (Mateo, Jr. vs. Villaluz, 50 SCRA 18)." 37 That the trial
judge believed the evidence of the prosecution more than that of the defense,
does not indicate that he was biased. He simply accorded greater credibility to
the testimony of the prosecution witnesses than to that of the accused. 38
Alibi
Appellant's defense of alibi and denial is unavailing. For the defense of alibi to
prosper, the accused must prove not only that he was at some other place at the
time the crime was committed, but that it was likewise physically impossible for
him to be at the locus criminis at the time of the alleged crime. 39 This the
appellant miserably failed to do. Appellant contends that he was then asleep in
his house at the time of the incident. This was supported by his mother who
stated that he was asleep from 9:00 p.m. to 6:00 a.m. the next day 40 and by
Rosemarie Malikdem who said that she visited the accused on the night of May
24, 1993 to counsel him, which was her task in the Samahang Magkakapitbahay.
41 Appellant failed to demonstrate, however, the distance between the crime
scene and his house. Indeed, he testied that his house was "near" the crime
scene. In any event, this defense cannot overturn the clear and positive
testimony of the credible eyewitnesses who located appellant at the locus
criminis and identied him as the assailant. 42
Aggravating Circumstances
The Court agrees with the trial court that appellant is guilty of murder for the
death of Antonio Dometita. We likewise agree that the prosecution was unable to
prove the aggravating circumstance of evident premeditation. For this
circumstance to be appreciated, there must be proof, as clear as the evidence of
the crime itself, of the following elements: 1) the time when the oender
determined to commit the crime, 2) an act manifestly indicating that he clung to
his determination, and 3) a sucient lapse of time between determination and
execution to allow himself time to reect upon the consequences of his act. 43
These requisites were never established by the prosecution.

On the other hand, we disagree with the trial court that the killing was qualied
by abuse of superior strength. "To properly appreciate the aggravating
circumstance of abuse of superior strength, the prosecution must prove that the
assailant purposely used excessive force out of proportion to the means of
defense available to the person attacked." 44 The prosecution did not demonstrate
that there was a marked dierence in the stature and build of the victim and the
appellant which would have precluded an appropriate defense from the victim.
Not even the use of a bladed instrument would constitute abuse of superior
strength if the victim was adequately prepared to face an attack, or if he was
obviously physically superior to the assailant.
Nonetheless, we hold that the killing was qualied by treachery. "Treachery is
committed when two conditions concur, namely, that the means, methods, and
forms of execution employed gave the person attacked no opportunity to defend
himself or to retaliate[;] and that such means, methods, and forms of execution
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 were deliberately and consciously adopted by the accused without danger to his
person." 45 "These requisites were evidently present in this case when the
accused appeared from nowhere and swiftly and unexpectedly stabbed the victim
just as he was bidding goodbye to his friend, Witness Velasco. Said action
rendered it dicult for the victim to defend himself. The presence of "defense
wounds" does not negate treachery because, as testied to by Velasco, the rst
stab, fatal as it was, was inicted on the chest. The incised wounds in the arms
were inicted when the victim was already rendered defenseless.
Damages
The trial court awarded indemnity and actual and moral damages to the heirs of
the victim. We sustain the award of indemnity in the amount of P50,000, but we
cannot do the same for the actual and moral damages which must be supported
by proof. In this case, the trial court did not state any evidentiary basis for this
award. We have examined the records, but we failed to nd any, either.
WHEREFORE, the appeal is hereby DENIED and the assailed Decision is
AFFIRMED, 46 but the award of actual and moral damages is DELETED for lack of
factual basis. Costs against appellant.
SO ORDERED. cdrep

Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ ., concur.

Footnotes

1. Rollo, pp. 13-17.

2. Penned by Judge Tirso D.C. Velasco.

3. Rollo, p. 5.

4. Records, p. 18.

5. Rollo, p. 17.
6. The case was deemed submitted for decision on February 6, 1997 upon receipt by
this Court of Appellee's Brief. The ling of a reply brief was deemed waived.

7. This Brief was signed by Assistant Solicitor General Carlos N. Ortega and Solicitor
Geraldine C. Fiel-Macaraig.
8. Appellee's Brief, pp. 3-5; Rollo, pp. 83-85.

9. Appellant's Brief, p. 1. This was signed by Attys. Salacnib Baterina and Ismael
Baterina.
10. Decision, p. 3; Rollo, p. 15.

11. Appellant's Brief, pp. (50) i-ii.

12. People vs. Sumbillo, G.R. No. 105292, April 18, 1997; People vs. Quinao, G.R. No.
108454, March 13, 1997; People vs. Nuestro, 240 SCRA 221, January 18, 1995.

13. People vs. Ombrog, G.R. No. 104666, February 12, 1997; People vs. Sumbillo,
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 supra; People vs. Ortega, G.R. No. 116736, July 24, 1997; People vs. de
Guzman, 188 SCRA 405, August 7, 1990.
14. People vs. Morin, 241 SCRA 709, February 24, 1995; People vs. Cogonon, 262
SCRA 693, October 4, 1996.

15. TSN, September 1, 1993, p. 12.

16. Ibid., p. 51.

17. TSN, September 1, 1993, p. 11.

18. TSN, August 12, 1993, p. 10.

19. TSN, September 1, 1993, p. 13.

20. TSN, August 12, 1993, p. 8.

21. TSN, October 11, 1993, p. 8.

22. Ibid., pp. 9-10.

23. TSN, September 1, 1993, p. 14.

24. TSN, January 5, 1995, p. 8.

25. Ibid., p. 16.

26. Id., p. 17.

27. Id., p. 18.

28. TSN, January 5, 1995, p. 27.

29. Ibid., p. 30.

30. Decision, p. 4; Rollo, p. 16.

31. TSN, August 12, 1993, p. 12.

32. Appellant's Brief, p. 7.

33. Ibid., p. 8.
34. Id., p. 11.

35. Appellant's Brief, pp. 6-13.

36. People vs. Tabarno, 242 SCRA 456, March 20, 1995; Ventura vs. Yatco, 105 Phil
287, March 16, 1959; People vs. Catindihan, 97 SCRA 196, April 28, 1980.

37. Appellee's Brief, p. 13; Rollo, p. 93.

38. People vs. Tabarno, supra.

39. People vs. Umali, 242 SCRA 17, March 1, 1995; People vs. Hortillano, 177 SCRA
729, September 19, 1989; People vs. Cabresos, 244 SCRA 362, May 26, 1995.

40. TSN, February 23, 1994, p. 4.

41. TSN, July 12, 1994, pp. 6-7.

42. People vs. Sumbillo, supra; People vs. Baydo, GR No. 113799, June 17, 1997.
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 43. People vs. Baydo, supra; People vs. Halili, 245 SCRA 340, June 27, 1995.

44. People vs. Ruelan, 231 SCRA 650, April 19, 1994; People vs. Casingal, 243 SCRA
37, March 29, 1995.

45. People vs. Maalat, GR No. 109814, July 8, 1997, per Romero, J.; People vs. Tuson,
GR No. 106345-46, September 16, 1996.

46. As discussed, however, the killing is qualied by treachery, not by abuse of

superior strength.

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