424 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

‫٭‬
G.R. Nos. 149028-30. April 2, 2003.

THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO

CABALLERO, RICARDO CABALLERO, MARCIANO
CABALLERO, JR., and ROBITO CABALLERO, accused.
ARMANDO CABALLERO, RICARDO CABALLERO, and
MARCIANO CABALLERO, JR., appellants.

Criminal Law; Murder; Conspiracy; Direct proof of person in

agreement to commit a crime is not necessary; It is not enough that at the
time of the commission of a crime, all the malefactors have the same
purpose and are united in their execution; Once established, all the
conspirators are

_______________

‫٭‬ EN BANC.

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VOL. 400, APRIL 2, 2003 425

People vs. Caballero

criminally liable as co-principals regardless of the degree of participation

of each of them for in contemplation of the law, the act of one is the act of
all.—The trial court correctly found that all the appellants conspired to kill
Eugene and assault Arnold; hence, they are criminally liable for the death of
Eugene and for the injuries sustained by Arnold. Article 8 of the Revised
Penal Code provides that there is conspiracy when two or more persons
agree to commit a felony and decide to commit it. Conspiracy is always
predominantly mental in composition because it consists primarily of a
meeting of minds and intent. Conspiracy must be proved with the same
quantum of evidence as the crime itself, that is, by proof beyond reasonable
doubt. However, direct proof is not required. Conspiracy may be proved by
circumstantial evidence. Conspiracy may be proved through the collective
acts of the accused, before, during and after the commission of a felony, all
the accused aiming at the same object, one performing one part and another
performing another for the attainment of the same objective, their acts
though apparently independent were in fact concerted and cooperative,
indicating closeness of personal association, concerted action and
concurrence of sentiments. The overt act or acts of the accused may consist
of active participation in the actual commission of the crime itself or may
consist of moral assistance to his co-conspirators by moving them to execute
or implement the criminal plan. Direct proof of a person in agreement to
commit a crime is not necessary. It is enough that at the time of the
commission of a crime, all the malefactors had the same purpose and were
united in their execution. Once established, all the conspirators are
criminally liable as co-principals regardless of the degree of participation of
each of them for in contemplation of the law, the act of one is the act of all.
Same; Same; Same; Co-conspirators are criminally liable only for acts
done pursuant to the conspiring on how and what are the necessary and
logic consequence of the intended crime.—Criminal conspiracy must always
be founded on facts, not on mere inferences, conjectures and presumptions.
Mere knowledge, acquiescence to or approval of the act without cooperation
or agreement to cooperate, is not enough to constitute one party to a
conspiracy absent the intentional participation in the act with a view to the
furtherance of the common objective and purpose. Moreover, one is not
criminally liable for his act done outside the contemplation of the
conspirators. Co-conspirators are criminally liable only for acts done
pursuant to the conspiring on how and what are the necessary and logic
consequence of the intended crime.
Same; Same; Same; All appellants by their simultaneous collective acts
before and after the commission of the crimes were united in one common
objective, to kill Eugene, and cause injuries to Arnold for trying to intervene
and prevent bloodshed; Hence, all the appellants are criminally liable for
the death of Eugene and for the injuries of Arnold.—In this case,

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426 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

when appellant Armando asked Eugene at the store of Wilma whether the
latter was going to buy something from the store, Eugene was peeved and
remonstrated that he and Armando had no quarrel between them. Appellant
Armando was likewise irked at the reaction of Eugene because from the
store, appellant Armando stationed himself by the gate of the Mondragon
Compound near the sari-sari store of Wilma. Appellants Ricardo, Marciano,
Jr. and Robito joined their brother, appellant Armando at the gate. Appellant
Ricardo and accused Robito were armed with knives. When Eugene passed
by the gate to the compound, appellant Armando pulled Eugene to the gate
but when the latter resisted, all the appellants ganged up on Eugene.
Appellant Armando took the wooden support of the clothesline and hit
Eugene with it. Eugene was stabbed three times on his chest even as he tried
to parry the thrusts. When Arnold rushed to the situs criminis to pacify the
appellants and accused Robito, appellant Ricardo stabbed him on the left
side of his body. The other appellants and accused Robito joined appellant
Ricardo and ganged up on Arnold. They stabbed Arnold anew twice on his
forearm. Teresito Mondragon, the father-in-law of appellant Ricardo
intervened and forthwith, all the appellants, including accused Robito
returned to the Mondragon Compound. Patently, all the appellants by their
simultaneous collective acts before and after the commission of the crimes
were united in one common objective, to kill Eugene, and cause injuries to
Arnold for trying to intervene and prevent bloodshed. Hence, all the
appellants are criminally liable for the death of Eugene and for the injuries
of Arnold. It does not matter who among the appellants stabbed Eugene or
inflicted injuries on Arnold. The act of one is the act of the others.
Same; Same; Treachery; Even a frontal attack is treacherous if it is
sudden and the victim is unarmed; The essence of treachery is a swift and
unexpected attack on the unarmed victim.—In Criminal Case No. RTC-
1218, the appellants are guilty as co-principals by direct participation of
murder, qualified by treachery. In order that treachery may be considered as
a qualifying circumstance, the prosecution is burdened to prove that: . . . .
(1) the employment of means of execution that give the person attacked no
opportunity to defend himself or to retaliate; and (2) the means of execution
was deliberately or consciously adopted. Even a frontal attack is treacherous
if it is sudden and the victim is unarmed. The essence of treachery is a swift
and unexpected attack on the unarmed victim. In this case, Eugene was
unarmed. He had no inkling that he would be, waylaid as he sauntered on
his way to his girlfriend Susana’s house. On the other hand, appellant
Armando was armed with a wooden pole while appellant Ricardo and
accused Robito were armed with knives. The attack on the hapless Eugene
was swift and unannounced. Undeniably, the appellants killed Eugene with
treachery.

427

VOL. 400, APRIL 2, 2003 427

People vs. Caballero

Same; Frustrated Homicide; Elements.—In Criminal Case No. RTC-

1219, the appellants are guilty of frustrated murder under Article 248 in
relation to Article 6, first paragraph of the Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator. The essential elements of a
frustrated felony are as follows: Elements: 1. The offender performs all the
acts of execution; 2. All the acts performed would produce the felony as a
consequence; 3. But the felony is not produced; 4. By reason of causes
independent of the will of the perpetrator.
Same; Attempted Crime; Words and Phrases; To be an attempted
crime, the purpose of the offender must be thwarted by a foreign force or
agency which intervenes and compels him to stop prior to the moment when
he has performed all the acts which should produce the crime as a
consequence, which act it is his intention to perform.—In the leading case
of United States v. Eduave, Justice Moreland, speaking for the Court,
distinguished an attempted from frustrated felony. He said that to be an
attempted crime the purpose of the offender must be thwarted by a foreign
force or agency which intervenes and compels him to stop prior to the
moment when he has performed all the acts which should produce the crime
as a consequence, which act it is his intention to perform.
Same; Same; In an attempted crime, the offender does not arrive at the
point of performing, all of the acts of execution which should produce the
crime; He stopped short of that point by some cause apart from his
voluntary desistance.—The subjective phase in the commission of a crime is
that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by the
offender which, with prior acts, should result in the consummated crime.
Thereafter, the phase is objective. In case of an attempted crime, the
offender never passes the subjective phase in the commission of the crime.
The offender does not arrive at the point of performing all of the acts of
execution which should produce the crime. He is stopped short of that point
by some cause apart from his voluntary desistance.
Same; Frustrated Crime; Words and Phrases; A crime is frustrated
when the offender has performed all the acts of execution which should
result in the consummation of the crime.—On the other hand, a crime is
frustrated when the offender has performed all the acts of execution which
should result in the consummation of the crime. The offender has passed the
subjective phase in the commission of the crime. Subjectively, the crime is
complete. Nothing interrupted the offender while passing through the
subjective phase. He did all that is necessary to consummate the

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428 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

crime. However, the crime is not consummated by reason of the intervention

of causes independent of the will of the offender. In homicide cases, the
offender is said to have performed all the acts of execution if the wound
inflicted on the victim is mortal and could cause the death of the victim
barring medical intervention or attendance.
Same; Intent to Kill; Elements.—If one inflicts physical injuries on
another but the latter survives, the crime committed is either consummated
physical injuries, if the offender had no intention to kill the victim or
frustrated or attempted homicide or frustrated murder or attempted murder if
the offender intends to kill the victim. Intent to kill may be proved by
evidence of: (a) motive; (b) the nature or number of weapons used in the
commission of the crime; (c) the nature and number of wounds inflicted on
the victim; (d) the manner the crime was committed; and (e) words uttered
by the offender at the time the injuries are inflicted by him on the victim.
Same; Same; Appellants performed all the acts of execution but the
crime was not consummated because of the timely medical intervention.—In
this case, appellant Armando was armed with a wooden pole. Appellant
Ricardo and accused Robito used knives. Dr. Quisumbing, who attended to
and operated on Arnold, testified that the stab wound sustained by Arnold
on the left side of his body was mortal and could have caused his death were
it not for the timely and effective medical intervention. x x x It cannot be
denied that the appellants had the intention to kill Arnold. The appellants
performed all the acts of execution but the crime was not consummated
because of the timely medical intervention.
Same; Alibi; Alibi as a defense is inherently weak for it is easy to
fabricate and difficult to disprove.—Equally barren of merit is appellants'
defense of alibi. Alibi as a defense is inherently weak for it is easy to
fabricate and difficult to disprove. To merit approbation, the appellants were
burdened to prove with clear and convincing evidence that at the time the
crimes were committed, they were in a place other than the situs of the
crimes such that it was physically impossible for them to have committed
said crimes. The appellants dismally failed in this respect. They testified that
they were at the house of appellant Ricardo, which was conveniently near
the place where Eugene was killed and Arnold was assaulted. Moreover, the
records show that Marciano, Jr. was treated for his superficial injuries on
August 4, 1996, a day after the incident. This belies the claim of appellants
Ricardo and Armando that they were allegedly in the hospital at the time of
the incident.
Same; Same; Abuse of superior strength, concurring with treachery is
absorbed by treachery.—The trial court imposed the death penalty on
appellants in Criminal Case No. RTC-1218 on its finding that treachery

429

VOL. 400, APRIL 2, 2003 429

People vs. Caballero

and abuse of superior strength were attendant in the killing of Eugene. The
Solicitor General does not agree with the trial court and contends that abuse
of superior strength was absorbed by treachery; hence, should not be
considered as a separate aggravating circumstance in the imposition of the
penalty on the appellants. The Court agrees with the Solicitor General.
Abuse of superior strength, concurring with treachery is absorbed by
treachery.

AUTOMATIC REVIEW of a decision of the Regional Trial Court of

San Carlos City, Negros Occidental, Br. 57.

The facts are stated in the opinion of the Court.

          Public Attorney’s Office and Ulpiano S. Madamba for
accused-appellants.
     Emiliano S. Mariano for Armando Caballero.

CALLEJO, SR., J.:

1
Before the Court on automatic review is the Decision of the
Regional Trial Court of San Carlos City, Negros Occidental, Branch
57, convicting appellants Armando Caballero, Ricardo Caballero
and Marciano Caballero, Jr. of murder in Criminal Cases Nos. RTC-
1217 and RTC-1218 and meting on each of them the supreme
penalty of death and ordering them to pay damages; and of
frustrated murder in Criminal Case No. RTC-1219 and imposing on
them the penalty of reclusion perpetua.

The Antecedents

Teresito (Dodong) Mondragon and his family lived in a compound

surrounded by a barbed-wire fence at New Sumakwel, Broce Street,
San Carlos City, Negros Occidental. Living in the same compound
were Ricardo Caballero and his family; and Myrna Bawin, the sister
of Eugene Tayactac, and her family. Beside the compound was the
house of Leonilo Broce, a nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito
(Bebot) and Marciano, Jr. (Jun), all surnamed Caballero, were
having a drinking spree in the house of their brother Ricardo in the
Mondragon Compound. At about 7:00 p.m. of said date, Eugene
Tayac-

_______________

1 Penned by Acting Presiding Judge Roberto S. Javellana.

430

430 SUPREME COURT REPORTS ANNOTATED

 People vs. Caballero

tac and Arnold Barcuma arrived in the sari-sari store of Wilma

Broce which was across the Mondragon Compound. Eugene had
dinner in the store while Arnold proceeded to the house of Susana
Broce, Eugene’s girlfriend, for a chat. Susana’s house was about 15
meters away from the store of Wilma. Momentarily, Armando
arrived in the store and asked Eugene in an angry tone: “Gene
mopalit ka?” (Gene, will you buy?). Eugene replied: “What is this
all about? We don’t have any quarrel between us.” Armando left the
store but stood by the gate of the barbed-wired fence of the
Mondragon Compound. His brothers Ricardo, Robito and Marciano,
Jr. joined him. Ricardo and Robito were armed with knives. When
Wilma told Eugene that she was closing the store already, he stood
up and left the store on his way to Susana’s house. At that time,
Myrna Bawin, who was standing by the window of their house saw
her brother Eugene going out of the store and proceeding to the
house of Susana. She called out to him and advised him to go home.
Myrna then left the window to pacify her crying baby.
As Eugene walked by the gate of the Mondragon Compound,
Armando suddenly grabbed Eugene towards the compound. Eugene
resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined
Armando and assaulted Eugene. Armando took the wooden pole
supporting the clothesline and hit Eugene with it. The latter tried to
parry the blows of the Caballero brothers, to no avail. In the process,
Eugene was stabbed three times. As Eugene was being assaulted,
Myrna returned to the window of her house and saw the Caballero
brothers assaulting Eugene. She shouted for help for her hapless
brother. Wilma, who witnessed the whole incident, was shocked to
immobility at the sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion
and rushed to the scene to pacify the protagonists. Arnold told the
Caballero brothers: “Bay, what is the trouble between you and
Eugene?” However, Ricardo accosted Arnold and stabbed the latter
on the left side of his body. Forthwith, Robito, Marciano, Jr. and
Armando ganged up on Arnold. Two of them stabbed Arnold on his
forearm. Arnold fled for his life and hid under the house of a
neighbor.
For his part, Leonilo rushed from his house to where the
commotion was. He was, however, met by Robito who stabbed him
on the chest. Wounded, Leonilo retreated and pleaded to his uncle
Lucio Broce for help: “Tio, help me because I am hit.” The
commotion

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People vs. Caballero
stopped only upon the arrival of Teresito Mondragon who was able
to pacify the Caballero brothers. They all returned to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the
injured Eugene, Leonilo and Arnold to the Planters Hospital for
medical treatment. Eugene and Leonilo eventually died from the
stab wounds they sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of
Eugene. He signed a postmortem report containing the following
findings:

POST-MORTEM EXAMINATION

Name: Eugenio Tayactac, 22 years old, male, single

Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: August 3, 1994 @ 8:30 P.M.
Date & Time Examined: August 3, 1994 @ 10:40 P.M.

Post-Mortem Findings:

= Stab wound (L) anterior chest 2 cm. 5th ICS MCL

directed postero laterally, lacerating (L) auricle of the heart,
and the (L) pulmonary artery and the left middle lobe of the
lungs;
= Stab wound (R) anterior chest 2 cm. long 5th ICS
parasternal line directed posteriorly;
= Stab wound (R) posterior chest level 7th ICS 2 cm. long
directed anteriorly.

CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab

2
wounds with Massive Hemothorax (L) and Hemopneumothorax (R).

He testified that the stab wounds could have been caused by a sharp-
edged single-bladed or double-bladed instrument, or by three
3
instruments.
Dr. Jose Carlos L. Villarante performed an autopsy on the
cadaver of Leonilo. He signed a postmortem report containing the
following findings:

_______________

2 Records, Criminal Case No. RTC-1218, p. 8.

3 TSN, December 5, 1996, pp. 5-6 & 20.

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432 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero
 POST-MORTEM EXAMINATION

Name: Leonilo Broce, 22 years old, male, married

Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.
Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.

Post-mortem findings:

= Stab wound, (R) post chest, about the level of the 6th and
7th RICS, post. axillary line.

CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ

4
injury.

Dr. Edgardo B. Quisumbing attended to and operated on Arnold

Barcuma. He signed a medical certificate stating that Arnold
sustained the following injuries:

= Lacerated wound 2 cm. (R) forearm middle 3rd

= Incised wound 2 inches (L) forearm middle 3rd
= Stabbed wound, 2 inches in length (L) chest, anterior
axillary line at the level of the 7th intercostal space,
penetrating thoracic cavity and abdominal cavity.

5
...

On the witness stand, Dr. Quisumbing testified that the wounds

sustained by Arnold could 6
have been caused by three different
sharp-pointed instruments. He further testified that Arnold would
have died because of the stab wound on his chest, were it not for the
timely medical intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito,
were charged with Murder for the death of Leonilo Broce. The
Information, docketed as Criminal Case No. RTC 1217 reads:

“That on or about 8:00 o’clock P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, and
with intent to kill, with treachery and evident premeditation,

_______________

4 Records, Criminal Case No. RTC-1217, p. 8.

5 Id., at p. 202.
6 TSN, December 8, 1996, p. 8.

433
 VOL. 400, APRIL 2, 2003 433
People vs. Caballero

did, then and there, willfully, unlawfully and feloniously, with the use of
said weapons, attack, assault and use personal violence upon the person of
one LEONILO BROCE, by striking the latter with the use of pieces of wood
and stabbing him, thereby inflicting upon said Leonilo Broce physical injury
described as follows:

= Stabbed wound (R) chest penetrating thoracic cavity.

and which injury caused massive hemorrhage which resulted to the death
of Leonilo Broce.
That an aggravating circumstance of abuse of superior strength is
attendant in the commission of the offense.
7
CONTRARY TO LAW.”

They were also charged with the same crime for the death of Eugene
Tayactac in an Information docketed as Criminal Case No. RTC-
1218, which reads:

“That on or about 8:00 o’clock P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, and
with intent to kill, with treachery and evident premeditation, did, then and
there, willfully, unlawfully and feloniously, with the use of said weapons,
attack, assault and use personal violence upon the person of one EUGENE
TAYACTAC, by striking the latter with the use of pieces of wood and
stabbing him thereby inflicting upon said Eugene Tayactac physical injuries
which resulted to the death of the latter.
That an aggravating circumstance of abuse of superior strength is
attendant in the commission of the offense.
8
CONTRARY TO LAW.”

Another Information was filed against the Caballero brothers for

frustrated murder for the injuries of Arnold Barcuma. Docketed as
Criminal Case No. RTC-1219, it reads:

“That on or about 8:00 o’clock P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, with
intent to kill, with treachery and evident premeditation, did, then and there,
willfully, unlawfully and feloniously attack, assault and

_______________

7 Id., at pp. 1-2.

8 Records, Criminal Case No. RTC-1218, p. 1.
 434

434 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

use personal violence upon the person of one ARNOLD BARCUMA, by

striking him with the use of pieces of wood and stabbing him, thereby
inflicting upon the latter physical injuries which would have resulted to the
death of said Arnold Barcuma, thus performing all the acts of execution,
which would have produced the crime of “Murder”, as a consequence, but
nevertheless did not produce it, by reason of causes independent of the will
of the accused that is, the timely medical assistance rendered to said Arnold
Barcuma.
That an aggravating circumstance of abuse of superior strength is
9
attendant in the commission of the offense.”

Ricardo, Armando and Marciano, Jr., assisted by counsel, were

arraigned on September 15, 1994. They pleaded not guilty to all the
charges. Robito Caballero remained at-large.
Ricardo, Armando and Marciano, Jr. invoked the defenses of
denial and alibi. They adduced evidence that Ricardo was employed
as electrician in the Office of the City Engineer of San Carlos City.
Armando was a motor cab driver. Robito resided in H.C. Rigor
Street, San Carlos City while Marciano, Jr. was a resident of Don
Juan Subdivision, San Carlos City and was employed with the
Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and
went to Bacolod City. Armando went to the house of his brother
Ricardo to help in the construction of the latter’s house and to take
care of Ricardo’s fighting cocks while he was in his office. Ricardo
arrived home at 8:00 p.m. and had dinner with his family and
Armando. Momentarily, their sister Mila and their younger brother
Marciano, Jr. arrived in the house of Ricardo. Marciano, Jr. allegedly
was mauled by a group of men and sustained an abrasion, a
contusion and swelling of the left side of his face. Ricardo and
Armando brought their brother Marciano, Jr. to the hospital for
treatment. On August 4, 1994, Marciano, Jr. was treated for:

= Linear abrasion (L) scapula region;

= Contusion (R) lower lip lateral side;
= Swelling left face.
10
No. of days of healing: 5-7 days barring complication.

_______________

9 Id., at pp. 403-404.

10 Records, Criminal Case No. RTC-1217, p. 387.
 435

VOL. 400, APRIL 2, 2003 435

People vs. Caballero

Ricardo, Armando and Marciano, Jr. denied killing Eugene and

assaulting Arnold. They also denied having any altercation with the
victims. They also denied stabbing Leonilo. They had no idea why
Wilma, Arnold and Myrna would implicate them for the deaths of
Leonilo and Eugene and for the injuries of Arnold.
After due proceedings, the trial court rendered judgment on May
7, 2001 finding all the three accused, now appellants, guilty beyond
reasonable doubt as principals of the crimes charged, the decretal
portion of which reads:

“WHEREFORE, accused Armando Caballero alias “Baby”, Ricardo

Caballero alias “Ricky” and Marciano Caballero, Jr. alias “Jun”, having
been found GUILTY beyond reasonable doubt of the offenses charged them
as principals, are hereby sentenced to suffer:

1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce,

there being no mitigating circumstance present, with the attendant
aggravating circumstances of treachery and abuse of superior
strength, the maximum penalty of death and to pay the heirs of
Leonilo Broce the sum of P75,000.00 as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or
Eugenio Tayactac, there being no mitigating circumstance present,
with the attendant aggravating circumstances of treachery and
abuse of superior strength, the maximum penalty of death; and to
pay the heirs of Eugene Tayactac the sum of P75,000 as indemnity;
and
3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having
seriously inflicted injuries upon the person of Arnold Barcuma
which nearly resulted to his death, there being no mitigating
circumstance present, an imprisonment of twelve (12) years, as
minimum, to seventeen (17) years, four (4) months and one (1) day,
with no award as to damages, no evidence having been introduced
to establish, the same; and
4. To pay the costs in all three (3) cases.
11
SO ORDERED.”

In convicting the accused, the trial court found that all of them
conspired to kill Eugene and Leonilo and cause injuries to Arnold.
While the trial court stated that it was only appellant Armando who
stabbed Eugene, and only the accused Robito who stabbed Leonilo,
however, it concluded that all of them were equally liable for the
deaths of Leonilo and Eugene and for the injuries of Arnold.
_______________

11 Id., at pp. 415-416.

436

436 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

In their Brief, the accused, now appellants assail the decision of the
trial court contending that:

THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-

APPELLANTS IN CRIMINAL CASES NOS. 1217-1219 DESPITE THE
FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE

AGGRAVATING CIRCUMSTANCES OF TREACHERY AND ABUSE
OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED
ACCUSED-APPELLANTS KILLED THE VICTIMS.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH

PENALTY UPON ACCUSED-APPELLANTS ON THE ASSUMPTION
12
THAT INDEED THEY KILLED THE VICTIMS.

The Court will delve into and resolve the first two assignments of
errors.
The appellants aver that the prosecution failed to prove beyond
reasonable doubt their respective guilt for the deaths of Eugene and
Leonilo and for the injuries sustained by Arnold. They assert that the
trial court committed reversible error in rejecting their defenses of
denial and alibi. They claim that at the time of the incident they were
in the San Carlos Hospital for the treatment of the injuries of
appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the appellants conspired to
kill Eugene and assault Arnold; hence, they are criminally liable for
the death of Eugene and for the injuries sustained by Arnold. Article
8 of the Revised Penal Code provides that there is conspiracy when
two or more persons agree to commit a felony and decide to commit
it. Conspiracy is always predominantly mental in composition
because it consists primarily of a meeting of minds and
_______________

12 Rollo, pp. 68-69.

437

VOL. 400, APRIL 2, 2003 437

People vs. Caballero

13
intent. Conspiracy must be proved with the same quantum of
evidence as the crime itself, that is, by proof beyond reasonable
14
doubt. However, direct proof is not required. Conspiracy may be
proved by circumstantial evidence. Conspiracy may be proved
through the collective acts of the accused, before, during and after
the commission of a felony, all the accused aiming at the same
object, one performing one part and another performing another for
the attainment of the same objective, their acts though apparently
independent were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence
15
of sentiments. The overt act or acts of the accused may consist of
active participation in the actual commission of the crime itself or
may consist of moral assistance to his co-conspirators by moving
16
them to execute or implement the criminal plan. Direct proof of a
person in agreement to commit a crime is not necessary. It is enough
that at the time of the commission of a crime, all the malefactors had
17
the same purpose and were united in their execution. Once
established, all the conspirators are criminally liable as co-principals
regardless of the degree of participation of each of them for in
18
contemplation of the law, the act of one is the act of all.
Criminal conspiracy must always be founded on facts, not on
19
mere inferences, conjectures and presumptions. Mere knowledge,
acquiescence to or approval of the act without cooperation or
agreement to cooperate, is not enough to constitute one party to a
conspiracy absent the intentional participation in the act with a view
20
to the furtherance of the common objective and purpose. Moreover,
one is not criminally liable for his act done outside the
contemplation of the conspirators. Co-conspirators are criminally
liable only for acts done pursuant to the conspiring on how and

_______________

13 People v. Medina, 292 SCRA 436 (1998).

14 Fernandez v. People, 341 SCRA 277 (2000).
15 See note 13, supra.
16 People v. Ponce, 341 SCRA 352 (2000).
17 People v. Sualog, 344 SCRA 690 (2000); People v. Buluran, 325 SCRA 476
(2000).
18 See note 16, supra.
 19 People v. Campos, 202 SCRA 387 (1991).
20 People v. Bragaes, 203 SCRA 555 (1991).

438

438 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

what are the necessary and logic consequence of the intended

21
crime.
In this case, when appellant Armando asked Eugene at the store
of Wilma whether the latter was going to buy something from the
store, Eugene was peeved and remonstrated that he and Armando
had no quarrel between them. Appellant Armando was likewise
irked at the reaction of Eugene because from the store, appellant
Armando stationed himself by the gate of the Mondragon
Compound near the sari-sari store of Wilma. Appellants Ricardo,
Marciano, Jr. and Robito joined their brother, appellant Armando at
the gate. Appellant Ricardo and accused Robito were armed with
knives. When Eugene passed by the gate to the compound, appellant
Armando pulled Eugene to the gate but when the latter resisted, all
the appellants ganged up on Eugene. Appellant Armando took the
wooden support of the clothesline and hit Eugene with it. Eugene
was stabbed three times on his chest even as he tried to parry the
thrusts. When Arnold rushed to the situs criminis to pacify the
appellants and accused Robito, appellant Ricardo stabbed him on the
left side of his body. The other appellants and accused Robito joined
appellant Ricardo and ganged up on Arnold. They stabbed Arnold
anew twice on his forearm. Teresito Mondragon, the father-in-law of
appellant Ricardo intervened and forthwith, all the appellants,
including accused Robito returned to the Mondragon Compound.
Patently, all the appellants by their simultaneous collective acts
before and after the commission of the crimes were united in one
common objective, to kill Eugene, and cause injuries to Arnold for
trying to intervene and prevent bloodshed. Hence, all the appellants
are criminally liable for the death of Eugene and for the injuries of
Arnold. It does not matter who among the appellants stabbed
Eugene or inflicted injuries on Arnold. The act of one is the act of
the others.
However, for the death of Leonilo, the Court believes that the
appellants are not criminally liable. The prosecution failed to adduce
evidence that the appellants and the accused Robito conspired to kill
Leonilo. The appellants did not actually see Leonilo rushing out
from his house to the situs criminis. They had no foreknowledge that
the accused Robito would stab Leonilo. There was no evidence
presented by the prosecution to prove that all the appel-

_______________
 21 People v. Flora, 334 SCRA 262 (2000).

439

VOL. 400, APRIL 2, 2003 439

People vs. Caballero

lants assisted the accused Robito in killing Leonilo. It must be

recalled that Leonilo rushed out of his house when he saw the
commotion, with the intention of aiding the victim or pacifying the
protagonists. He was, however, stopped by accused Robito who
suddenly stabbed him on the chest. Leonilo retreated and asked for
help. Wilma Broce testified that only the accused Robito stabbed
Leonilo:

Q After that, what happened next?

A Leonilo Broce came out of his house.
Q Where is the house of Leonilo Broce?
A Still located at Sumakwel.
Q In that case, the very house where Eugene Tayactac leaned on
when he was ganged up by the four?
A Yes.
Q What happened after that?
A When he came out from the house and saw that it was Eugene
Tayactac, he proceeded to approach them but he was not able to
approach them because he was met by Robit “Bebot” Caballero
and stabbed by Robito Caballero.
Q Was Leonilo Broce (sic) hit when he was stabbed by Robito
Caballero?
A Yes. He immediately ran back and said: “Tio, help me because I
am hit.”
INTERPRETER’S (observation)
  Witness demonstrating by holding her left armpit.
Q Was Eugene Tayactac able to escape from the attack (sic) of the
Caballero brothers?
A Not (sic).
Q Now what happened to Eugene Tayactac?
A He appeared very weak and he was staggering.
Q Do you know where Eugene Tayactac is now?
A Already dead.
Q What happened to Leonilo Broce, where is he now?
A The two of them were (sic) already dead.
Q Now, when did the trouble stop if it stopped?
A It stopped when Dodong Mondragon arrived.
Q What did the accused do after the trouble was stopped?
A They went inside the compound of his (sic) father.

440

440 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

Q What happened next?

22
A Nothing happened. Both of them were brought to the hospital.

In sum, the trial court committed reversible error in convicting the

appellants of murder for the death of Leonilo. As this Court held in
23
People v. Flora:

However, we cannot find Edwin Flora similarly responsible for the death of
Emerita Roma and the injury of Flor Espinas. The evidence only shows
conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the
contemplation of the conspirators, only the actual perpetrators are liable. In
People v. De la Cerna, 21 SCRA 569, 570 (1967), we held:

“. . . And the rule has always been that co-conspirators are liable only for acts done
pursuant to the conspiracy. For other acts done outside the contemplation of the co-
conspirators or which are not the necessary and logical consequence of the intended
crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano
Cabizares. The latter was not even going to the aid of his father Rafael but was
fleeing away when shot.”

To conclude, appellant Edwin Flora is guilty beyond reasonable doubt

only of the murder of Ireneo Gallarte. He has no liability for the death of
Emerita Roma nor the injuries of Flor Espinas caused by his co-accused
Hermogenes Flora.

Crimes Committed by Appellants

In Criminal Case No. RTC-1218, the appellants are guilty as co-

principals by direct participation of murder, qualified by treachery.
In order that treachery may be considered as a qualifying
circumstance, the prosecution is burdened to prove that:

. . . . (1) the employment of means of execution that give the person attacked
no opportunity to defend himself or to retaliate; and (2) the means of
24
execution was deliberately or consciously adopted.
Even a frontal attack is treacherous if it is sudden and the victim is
unarmed. The essence 25of treachery is a swift and unexpected attack
on the unarmed victim.

_______________

22 TSN, September 26, 1995, pp. 15-16.

23 See note 21, supra.
24 People v. Azugue, 268 SCRA 711 (1997).
25 People v. Floro, 316 SCRA 304 (1999).

441

VOL. 400, APRIL 2, 2003 441

People vs. Caballero

In this case, Eugene was unarmed. He had no inkling that he would

be, waylaid as he sauntered on his way to his girlfriend Susana’s
house. On the other hand, appellant Armando was armed with a
wooden pole while appellant Ricardo and accused Robito were
armed with knives. The attack on the hapless Eugene was swift and
unannounced. Undeniably, the appellants killed Eugene with
treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of
frustrated murder under Article 248 in relation to Article 6, first
paragraph of the Revised Penal Code which reads:

A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

The essential elements of a frustrated felony are as follows:

Elements:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;
3. But the felony is not produced;
26
4. By reason of causes independent of the will of the perpetrator.
27
In the leading case of United States v. Eduave, Justice Moreland,
speaking for the Court, distinguished an attempted from frustrated
felony. He said that to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he has
performed all the acts which should produce the crime as a
consequence, which act it is his intention to perform.
 The subjective phase in the commission of a crime is that portion
of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by
the offender which, with prior acts, should result in the
consummated crime. Thereafter, the phase is objective.

_______________

26 REYES, REVISED PENAL CODE, 1998 ed., Vol. I, p. 99.

27 36 Phil. 209.

442

442 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

In case of an attempted crime, the offender never passes the

subjective phase in the commission of the crime. The offender does
not arrive at the point of performing all of the acts of execution
which should produce the crime. He is stopped short of that point by
some cause apart from his voluntary desistance.
On the other hand, a crime is frustrated when the offender has
performed all the acts of execution which should result in the
consummation of the crime. The offender has passed the subjective
phase in the commission of the crime. Subjectively, the crime is
complete. Nothing interrupted the offender while passing through
the subjective phase. He did all that is necessary to consummate the
crime. However, the crime is not consummated by reason of the
intervention of causes independent of the will of the offender. In
homicide cases, the offender is said to have performed all the acts of
execution if the wound inflicted on the victim is mortal and could
cause the death of the victim barring medical intervention or
28
attendance.
If one inflicts physical injuries on another but the latter survives,
the crime committed is either consummated physical injuries, if the
offender had no intention to kill the victim or frustrated or attempted
homicide or frustrated murder or attempted murder if the offender
intends to kill the victim. Intent to kill may be proved by evidence
of: (a) motive; (b) the nature or number of weapons used in the
commission of the crime; (c) the nature and number of wounds
inflicted on the victim; (d) the manner the crime was committed; and
(e) words uttered by the offender at the time the injuries are inflicted
by him on the victim.
In this case, appellant Armando was armed with a wooden pole.
Appellant Ricardo and accused Robito used knives. Dr. Quisumbing,
who attended to and operated on Arnold, testified that the stab
wound sustained by Arnold on the left side of his body was mortal
and could have caused his death were it not for the timely and
effective medical intervention:

_______________

28 People v. Maguikay, 237 SCRA 587 (1994); People v. Sumalpong, et al., 284
SCRA 464 (1998).

443

VOL. 400, APRIL 2, 2003 443

People vs. Caballero

Q And how about the size and the depth of the wounds and how
big is each wound and how deep.
A The first wound is 2 cm. and the 2nd is about 2 inches and the
3rd is 2 inches in the left, penetrating the chest near the thorax
along the lateral line.
Q So, aside from the 3rd wound there are wounds which are not
really very serious?
A As I said before, the most serious is the 3rd wound.
Q So even without the other wounds the 3ld wound—it could be
the cause of the death of the victim?
29
A Yes, Sir.

It cannot be denied that the appellants had the intention to kill

Arnold. The appellants performed all the acts of execution but the
crime was not consummated because of the timely medical
intervention.
Treachery attended the stabbing of Arnold because he was
unarmed and the attack on him was swift and sudden. He had no
means and there was no time for him to defend himself. In sum, the
appellants are guilty of frustrated murder.
The appellants’ denial of the crimes charged in Criminal Case
Nos. RTC-1218 and RTC-1219 cannot prevail over Wilma’s and
Arnold’s positive and straightforward testimonies that the appellants
killed Eugene and stabbed Arnold. Moreover, Wilma and Arnold
had no motive to falsely implicate the appellants for the said crimes;
30
hence, their testimony must be accorded full probative weight.
Equally barren of merit is appellants' defense of alibi. Alibi as a
defense is inherently weak for it is easy to fabricate and difficult to
disprove. To merit approbation, the appellants were burdened to
prove with clear and convincing evidence that at the time the crimes
were committed, they were in a place other than the situs of the
crimes such that it was31 physically impossible for them to have
committed said crimes. The appellants dismally failed in this
respect. They testified that they were at the house of appellant
Ricardo, which was conveniently near the place where Eugene was
killed and Arnold was assaulted. Moreover, the records show that

_______________

29 TSN, December 5, 1996, pp. 9-10.

30 People v. Milliam, 324 SCRA 155 (2000).
31 People v. Blanco, 324 SCRA 280 (2000).

444

444 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

Marciano, Jr. was treated for his superficial injuries on August 4,

1996, a day after the incident. This belies the claim of appellants
Ricardo and Armando that they were allegedly in the hospital at the
time of the incident.

Penalties Imposable on Appellants

The trial court imposed the death penalty on appellants in Criminal

Case No. RTC-1218 on its finding that treachery and abuse of
superior strength were attendant in the killing of Eugene. The
Solicitor General does not agree with the trial court and contends
that abuse of superior strength was absorbed by treachery; hence,
should not be considered as a separate aggravating circumstance in
the imposition of the penalty on the appellants. The Court agrees
with the Solicitor General. Abuse of superior strength, concurring
32
with treachery is absorbed by treachery.
The penalty for murder under Article 248 of the Revised Penal
Code, as amended by Republic Act 7659, is reclusion perpetua to
death. Since aside from the qualified circumstance of treachery, no
other modifying circumstance was attendant in the commission of
the crime, the proper penalty for the crime is reclusion perpetua
conformably with Article 63 of the Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated murder, the
Solicitor General contends that the indeterminate penalty of from 12
years of reclusion temporal as minimum, to 17 years, 4 months and
1 day of reclusion temporal as maximum, imposed on the appellants
is not correct. The Court agrees with the Solicitor General. The
penalty for frustrated murder is one degree lower than reclusion
33
perpetua to death, which is reclusion temporal. The latter penalty
has a range of 12 years and 1 day to 20 years. The maximum of the
indeterminate penalty should be taken from reclusion temporal, the
penalty for the crime taking into account any modifying
circumstances in the commission of the crime. The minimum of the
indeterminate penalty shall be taken from the full range of prision
mayor which is one degree lower than reclusion temporal. Since
there is no modifying circumstance in the commission of frustrated
murder, the appellants should be meted an indeterminate penalty of
from nine (9) years and four (4) months of prision

_______________

32 People v. Riglos, 339 SCRA 562 (2000).

33 REVISED PENAL CODE, Article 61, par. 2.

445

VOL. 400, APRIL 2, 2003 445

People vs. Caballero

mayor in its medium period as minimum to seventeen (17) years and

four (4) months of reclusion temporal in its medium period, as
maximum.

Civil Liabilities of Appellants

The trial court ordered the appellants in Criminal Case No. RTC-
1218 to pay in solidum the heirs of the victim Eugene Tayactac, the
amount of P75,000 by way of indemnity. The trial court did not
award moral damages to said heirs. This is erroneous. Since the
penalty imposed on the appellants is reclusion perpetua, the civil
indemnity should be only P50,000. The heirs of the victim should
34
also be awarded the amount of P50,000 as moral damages.
In Criminal Case No. RTC-1219, the trial court did not award
moral damages to the victim Arnold Barcuma on its finding that the
prosecution failed to adduce any evidence to prove said damages.
The Court disagrees with the trial court. The victim Arnold Barcuma
35
himself testified on his injuries. He is entitled to moral damages in
36
the amount of P25,000. Having suffered injuries and undergone
medical treatment he is, as well entitled to actual damages, which in
the absence of evidence would, nevertheless, entitle him to an award
of temperate or moderate damages, herein fixed at P10,000.

The Verdict of the Court

IN LIGHT OF ALL THE FOREGOING, the Decision of the

Regional Trial Court of San Carlos City (Negros Occidental),
Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC-1219 is
AFFIRMED with the following MODIFICATIONS:
 1. In Criminal Case No. RTC-1217, the Court, finding the
appellants not guilty of the crime charged for failure of the
prosecution to prove their guilt beyond reasonable doubt,
REVERSES the judgment of the trial court and ACQUITS
them of the said charge.

_______________

34 People v. Marlon Delim, et al., G.R. No. 142773, January 28, 2003, 396 SCRA
386.
35 TSN, July 19, 1995, pp. 22-25; TSN, March 11, 1997, pp. 7-9, 26-28.
36 NEW CIVIL CODE, Article 2219, par. 1.

446

446 SUPREME COURT REPORTS ANNOTATED

People vs. Caballero

2. In Criminal Case No. RTC-1218, the appellants are found

guilty beyond reasonable doubt of murder under Article 248
of the Revised Penal Code, qualified by treachery, and are
sentenced to suffer the penalty of reclusion perpetua and
ordered to pay in solidum the heirs of the victim Eugene
Tayactac, the amounts of P50,000 as civil indemnity and
P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants are found
guilty beyond reasonable doubt of frustrated murder under
Article 248 in relation to Article 6, first paragraph of the
Revised Penal Code and are hereby sentenced to suffer an
indeterminate penalty of from nine (9) years and four (4)
months of prision mayor in its medium period, as
minimum, to seventeen (17) years and four (4) months of
reclusion temporal in its medium period, as maximum. The
appellants are hereby ordered to pay in solidum to the
victim Arnold Barcuma the amount of P25,000 as moral
damages and P10,000 as temperate or moderate damages.

Costs de oficio.
SO ORDERED.

          Davide, Jr. (C.J.), Bellosillo, Puno, Vitug, Mendoza,

Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales and Azcuna, JJ.,
concur.

Judgment affirmed with modifications.

 Notes.—There is conspiracy if at the time of the commission of
the felony, the defendants had the same criminal purpose and acted
in unison towards the execution of their common criminal design.
(People vs. Bacunawa, 356 SCRA 482 [2001])
Direct proof of previous agreement to commit a crime is not
necessary as it may be deduced from the mode in which the offense
was perpetrated or inferred from the acts of the accused which point
to a joint purpose and design. (People vs. Gonzales-Flores, 356
SCRA 722 [2001])

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447

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