SECOND DIVISION

[G.R. No. 128361. November 16, 1999.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . MOROY "SONNY"

GALLO , accused-appellant.

The Solicitor General for plaintiff-appellee.

Augusto M. Macam for accused-appellant.

SYNOPSIS

Appellant was charged with murder committed against Ignacio Elarmo on August
18, 1986. Appellant who evaded arrest for ve years pleaded not guilty and interposed the
defense of denial claiming that he was merely a spectator watching the brawl. However, he
was positively identi ed by Amelita, wife of the deceased, who declared that appellant,
together with four other armed men, suddenly blocked their way, surrounded his husband,
Ignacio, and took turns in hitting him with their weapons. The trial court rendered judgment
of conviction with the aggravating circumstance of abuse of superior strength. Hence, this
appeal which assailed the credibility of the prosecution witnesses on the ground of
relationship and discrepancies on the weapons used and the supposed parts of the
victim's body which were hit by the blows.
The Court ruled that ight is an indication of guilt as the failure of law enforcers to
serve the warrant of arrest for ve years mean that accused disappeared after the
incident; that the defense of denial is worthless in the face of positive identi cation; that
mere relationship of the victim did not tarnish the testimony of the prosecution in the
absence of showing of improper motive; that minor inconsistencies do not affect
credibility; and the fact that some of the malefactors did not in ict injuries on the victim
did not negate liability where their presence lent moral encouragement and sense of
security to the others indicating conspiracy, hence, all were regarded as co-principals to
the crime.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; DENIAL; WORTHLESS IN FACE OF

POSITIVE IDENTIFICATION. — Moroy's defense of denial is worthless in the face of
positive identi cation by the prosecution witnesses. If his claim that he was not in any way
involved in the crime were true, he should have tried to substantiate the same. At the very
least, he should have presented the numerous witnesses who as he alleged saw the
incident. Instead, he relied solely on his own uncorroborated testimony.
2. ID.; ID.; ID; RELATIONSHIP; DOES NOT AUTOMATICALLY TARNISH
TESTIMONY OF WITNESS. — It is settled that mere relationship to the victim does not
automatically tarnish the testimony of the witness. When there is no showing of improper
motive on the part of the witness for testifying against the accused, her relationship to the
victim does not render her testimony less worthy of full faith and credit. On the contrary,
her natural interest in securing the conviction of the accused despite the lapse of six years
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 would prevent her from implicating persons other than the culprits.
3. ID.; ID.; ID.; NOT AFFECTED BY INCONSISTENCIES IN MINOR DETAILS. —
Accused-appellant makes much of the alleged inconsistent testimonies of the prosecution
witnesses. Although we are not unmindful that the testimonies of the prosecution
witnesses differ in some respects, e.g ., the weapons used by the ve (5) culprits and the
supposed parts of the victim's body hit by the blows, we cannot however consider this a
su cient basis to negate Moroy's culpability. As correctly pointed out by the trial court,
"these con icting statements of the witnesses do not affect their credibility since the
inconsistency refers to minor details." The testimonies of the various witnesses should not
be expected to be identical and coinciding with each other. It is enough that the principal
points covered by such testimonies are established although they may not dovetail in all
details. It would be a tall order, indeed, to require the witnesses to recall every minute
detail of an incident especially so when the events transpired in rapid succession and in
the urry and excitement of the moment. This observation becomes even more relevant
when the testimonies were given several years, six (6) years to be precise, after the killing.
cICHTD

4. CRIMINAL LAW; CONSPIRACY; ACCUSED WHO DID NOT LAY HANDS ON

VICTIM BUT LENT MORAL ENCOURAGEMENT AND SECURITY TO COMRADES WHO
DEALT FATAL BLOW, LIABLE. — We are inclined to believe, in the light of the postmortem
report, that only one or two, but not all, of the malefactors actually in icted the injuries on
the victim. Nonetheless, this would not exonerate the others who did not or were not able
to lay their hands on the deceased where there is showing that their armed presence lent
moral encouragement and sense of security indicating community of purpose with their
comrades who actually dealt the fatal blow. All their overt acts, taken collectively, show
that they conspired to kill Ignacio.
5. ID.; ID.; HOW ESTABLISHED. — To establish conspiracy it is not essential that
there be previous agreement to commit the crime; it is su cient that there be a common
purpose and design, concerted action and concurrence of the interest and the minds of the
parties meet understandingly so as to bring about a deliberate agreement to commit the
offense charged, notwithstanding the absence of a formal agreement. Where the
assailants, including Moroy, surrounded and in a concerted fashion assaulted the fallen
unarmed victim, no better proof could show that they intentionally and voluntarily acted
together for the realization of a common criminal intent to kill Ignacio. Granting arguendo
that Moroy did not strike the victim, his conduct nonetheless indicated cooperation with
the other malefactors, as when his armed presence unquestionably gave encouragement
and moral support to the latter. His liability is clearly that of a co-conspirator. In a similar
vein, even if not all the malefactors laid hand on the victim, the others would still be liable
for conspiracy if there is a showing that the latter performed overt acts which indicate
unity or purpose in accomplishing the criminal design. There being a conspiracy, evidence
as to who in icted the fatal wound becomes irrelevant; all shall be regarded as co-
principals since the act of one is the act of all.
6. REMEDIAL LAW; EVIDENCE; FLIGHT; AN INDICATION OF GUILT. —
Parenthetically, the failure of the law enforcers to serve the warrant of arrest for ve (5)
years was for no other reason than that Moroy disappeared after the incident. Flight is a
circumstance tending to establish guilt thus giving truth to the maxim, "the wicked eeth,
even when no man pursueth, whereas the righteous is as brave as a lion."
7. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; ABUSE OF SUPERIOR
STRENGTH; ARMED APPELLANTS AGAINST UNARMED VICTIM. — The trial court was
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 correct in appreciating the qualifying circumstance of abuse of superior strength as
alleged in the Information. Where the armed assailants, including accused-appellant,
seized upon their greater number and superior power to overwhelm the unarmed victim
Ignacio Elarmo, the aggression must be considered as having been attended with abuse of
superior strength.
8. CIVIL LAW; DAMAGES; P50,000 INDEMNITY AND P50,000 MORAL DAMAGES
TO HEIRS OF DECEDENT. — Comformably with recent jurisprudence, the amount of
P50,000.00 for civil indemnity and P50,000.00 for moral damages shall be awarded to the
heirs of the decedent. Pursuant thereto, the moral damages awarded by the trial court is
reduced to P50,000.00.
9. ID.; ID.; ACTUAL DAMAGES; COMPETENT PROOF REQUIRED. — Actual
damages shall be awarded only when there is competent proof that the same have been
suffered and evidence of the actual amount thereof. And this prosecution failed to do.
Consequently, no actual damages shall be awarded.

DECISION

BELLOSILLO , J : p

Accused-appellant Moroy Gallo also known as "Sonny" was convicted by the trial
court 1 of murder and sentenced to reclusion perpetua. He was also ordered to pay
P100,000.00 for moral damages without subsidiary imprisonment in case of insolvency.
Accused-appellant now assails the decision of the court a quo alleging that it erred in
giving full faith and reliance on the absurd, incredible and unnatural testimony of the
prosecution witnesses. 2
On 18 August 1986 at around 10:00 o'clock in the evening Amelita Elarmo
accompanied by her husband Ignacio was on her way home from the house of her sister in
Barangay Talaban, Himamaylan, Negros Occidental, when ve (5) persons armed with
assorted weapons suddenly blocked their way and surrounded Ignacio. The couple were
just about fteen (15) paces away from their house. Amelita easily recognized their
assailants to be the Dequito brothers — Boy, Kano and Elliot — together with Crisanto Gallo
and his son Moroy "Sonny" Gallo because they were all neighbors. Forthwith Boy stabbed
Ignacio in the chest with a tres cantos or a three-edged knife which sent the latter falling to
the ground. Taking their cue from Boy, the others — Kano, Elliot, Crisanto Gallo and his son
Moroy Gallo — took turns in hitting the victim with their weapons. Ignacio Elarmo could not
do anything except to parry the incoming blows but in vain. According to Amelita, Moroy
struck Ignacio with a barateya 3 while Crisanto hacked him on the head with a bolo. Elliot,
for his part, threw a stone at the prostrate victim. Amelita however could not tell the exact
involvement of Kano because at that time the ve (5) malefactors were ganging up on her
husband. She desperately shouted for help but nobody came to their rescue. Upon seeing
that Ignacio was already unconscious and bleeding to death, the culprits scurried away. cdrep

The meleè was witnessed by Narciso Esperal from the coffee shop of his in-laws
about ve (5) arms-length away. He was alone as the coffee shop was at that time already
closed. Narciso testi ed that he saw Boy stab Ignacio twice on the stomach while
Crisanto struck him thrice on the head with a piece of wood. Moroy threw a stone at
Ignacio hitting him on the neck. Kano then beat the victim at the back with a piece of wood
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 while Elliot although armed with a bolo only served as the lookout.
Amelita, with the help of her niece Marilou Esperal, brought Ignacio to the
Himamaylan Hospital for treatment. However, after three (3) days, Amelita decided to
transfer Ignacio to another hospital in Bacolod as the Himamaylan Hospital was not well
equipped to perform an operation to remove the tres cantos still embedded in victim's
chest. However, on 24 August 1986 Ignacio died before he could be operated on.
On 25 August 1986, Dr. Jansen Vergara, then resident physician of Corazon Locsin
Montelibano Regional Hospital, autopsied the cadaver of the victim. He issued a Certificate
of Death (Exh. "A") where he re ected his ndings at the back thereof to wit: 4 "External
Findings: Old stab wound shape (R) parasternal line along level of 3rd intercostal space. At
the head: Old lacerated wound (R) occipito-pareital area, 4 cm. long. Internal Findings:
massive hemorrhage at the mediastinum secondary to laceration anterior wall of superior
venacava, 1 cm. long, 1 inch above the right atrium with retained pointed 3 sharp-edged
metallic foreign body about 6 inches long at the mediastinum moderate hemothorax (R)
lung secondary to laceration at the medial and lower portion of upper lobe of (R) lung,
anterior aspect."
On 1 September 1986 a criminal complaint for murder was led against Moroy
Gallo, Crisanto Gallo, and the Dequito brothers-Boy, Kano and Elliot. The warrant for their
arrest issued on 17 September 1986 by the Municipal Trial Court of Himamaylan, Negros
Occidental, having remained unserved, the case was archived in the meantime and
pursuant thereto an alias warrant of arrest was issued pending their apprehension. Five (5)
years later, i.e., on 13 November 1991, Moroy "Sonny" Gallo was arrested by the police and
turned over to the warden of the Bacolod City jail. Proceedings were then set in motion for
the prosecution and trial of Moroy Gallo.
On the witness stand Moroy testi ed that on the early evening of 18 August 1986 he
was at his house together with his father Crisanto and Boy drinking tuba. Shortly after,
Ignacio passed by and was invited by Crisanto to join them. He courteously declined and
continued his way towards home. A little later Ignacio returned together with his brother-
in-law. Ignacio shouted, "Boy, get out from there." As soon as Boy stepped out of the house
Ignacio approached him and a free-for-all ensued. According to Moroy, he was "surprised
that there was a rumble and that the brothers (Kano and Elliot) were already there." 5 While
the protagonists grappled, Moroy and his father simply stood in front of their house. A
little later, they heard Boy shouting at Amelita who was in her house "to take her husband
because he is (sic) already nished." 6 After uttering those ominous words, Boy went
home. Kano and Elliot followed suit. Moroy and Crisanto, afraid that they might get
involved, went "upstairs." 7
On cross-examination, Moroy revealed that he and the Dequito brothers were rst
cousins and that they worked as lumber sawers in Binalbagan. According to him, when he
and his father arrived home at around 6:00 o'clock in the evening they invited Boy for a
drink and that at around 9:00 o'clock that evening Ignacio passed by. Fifteen (15) minutes
later Ignacio accompanied by a brother-in-law again passed by heading towards the
direction of his house. But before Ignacio could reach his house he was waylaid by Boy. 8
At that point, Kano and Elliot joined their brother Boy in mauling the victim. Moroy denied
having anything to do with the killing of Ignacio as he (Moroy) was merely standing in his
yard all the while that the brawl was going on. 9
In an attempt to extricate himself from the sti ing evidence of the prosecution,
accused-appellant interposes the following defenses in this appeal:
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 First. He denies any involvement in the killing of the victim. He emphatically claims
that at the time of the incident he was a mere passive spectator.
Second. He questions the inconsistent testimonies of the prosecution witnesses,
particularly with respect to the weapons used by the attackers and the parts of the victim's
body supposedly hit by the numerous blows.
Lastly. He points out the disparity between the bodily injuries sustained by the victim
as reflected in the autopsy report, and the supposed number of blows allegedly inflicted by
the five (5) assailants. He rationalizes thus — 1 0
If the foregoing declarations of the prosecution witnesses are any
yardstick to sustain the prosecution evidence, we can more than speculate on the
number and types of injuries that the victim would have sustained after having
been "swarmed" by ve (5) men armed as they were with various pointed and
heavy objects. One can just imagine the resulting bodily injuries when a person is
hacked on the head with a bolo, thrown on the neck or body with a stone, struck
on the head and body with a "barateya" (piece of wood).

However, the report of the medico-legal o cer revealed a different story

and exposed the absurdity and incredulity of the witnesses' testimonies on how
the victim could have sustained the wounds during the attack. The external
ndings of the medico-legal o cer showed that the victim sustained only two
wounds — a stab wound at the chest and a 4-cm laceration at the head. In short,
the physical evidence consisting of bodily injuries, as testi ed to by the medico-
legal officer, directly contradicts the testimonies of the prosecution witnesses.
cda

There is no merit in the appeal. Moroy's defense of denial is worthless in the face of
positive identi cation by the prosecution witnesses. If his claim that he was not in any way
involved in the crime were true, he should have tried to substantiate the same. At the very
least, he should have presented the numerous witnesses who as he alleged saw the
incident. 11 Instead, he relied solely on his own uncorroborated testimony.
Moroy cannot also question the credibility of Amelita Elarmo because of her
relationship with the deceased. It is settled that mere relationship to the victim does not
automatically tarnish the testimony of the witness. When there is no showing of improper
motive on the part of the witness for testifying against the accused, her relationship to the
victim does not render her testimony less worthy of full faith and credit. On the contrary,
her natural interest in securing the conviction of the accused despite the lapse of six years
would prevent her from implicating persons other than the culprits. 12
Accused-appellant makes much of the alleged inconsistent testimonies of the
prosecution witnesses. Although we are not unmindful that the testimonies of the
prosecution witnesses differ in some respect, e.g., the weapons used by the ve (5)
culprits and the supposed parts of the victim's body hit by the blows, we cannot however
consider this a su cient basis to negate Moroy's culpability. As correctly pointed out by
the trial court, "these con icting statements of the witnesses do not affect their credibility
since the inconsistency refers to minor details." 1 3 The testimonies of the various
witnesses should not be expected to be identical and coinciding with each other. It is
enough that the principal points covered by such testimonies are established although
they may not dovetail in all details. 1 4 It would be a tall order, indeed, to require the
witnesses to recall every minute detail of an incident especially so when the events
transpired in rapid succession and in the urry and excitement of the moment. This
observation becomes even more relevant when the testimonies were given several years,
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 six (6) years to be precise, after the killing.
Finally, Moroy cites the disparity between the post-mortem report and the
testimonies of the prosecution witnesses on how Ignacio was ruthlessly killed. Apparently,
he is proceeding from an erroneous premise. The testimonies of the prosecution
witnesses are admittedly wanting in accuracy. But this cannot overturn the fact that Moroy
was positively identi ed as one of the armed malefactors who encircled and attacked the
victim. His presence at the locus criminis, not as a mere passive spectator but as an active
participant in the cabal, was adequately established by the prosecution. In fact Amelita
was consistent in her testimony that the ve (5) named assailants surrounded and ganged
up on her husband. In the darkness of the night, the witnesses could not have possibly
observed every single detail of the incident. This is especially so since they were made to
recount an event long past. Such is the limitation of human memory.
We are inclined to believe, in the light of the post-mortem report, that only one or
two, but not all, of the malefactors actually in icted the injuries on the victim. Nonetheless,
this would not exonerate the others who did not or were not able to lay their hands on the
deceased where there is showing that their armed presence lent moral encouragement
and sense of security indicating community of purpose with their comrades who actually
dealt the fatal blow. All their overt acts, taken collectively, show that they conspired to kill
Ignacio. prLL

To establish conspiracy it is not essential that there be previous agreement to

commit the crime; it is su cient that there be a common purpose and design, concerted
action and concurrence of interest and the minds of the parties meet understandingly so
as to bring about a deliberate agreement to commit the offense charged, notwithstanding
the absence of a formal agreement. Where the assailants, including Moroy, surrounded and
in a concerted fashion assaulted 1 5 the fallen unarmed victim, no better proof could show
that they intentionally and voluntarily acted together for the realization of a common
criminal intent to kill Ignacio. Granting arguendo that Moroy did not strike the victim, his
conduct nonetheless indicated cooperation with the other malefactors, as when his armed
presence unquestionably gave encouragement and moral support to the latter. His liability
is clearly that of a co-conspirator. 1 6 In a similar vein, even if not all the malefactors laid
hands on the victim, the others would still be liable for conspiracy if there is a showing that
the latter performed overt acts which indicate unity of purpose in accomplishing the
criminal design. There being a conspiracy, evidence as to who in icted the fatal wound
becomes irrelevant; all shall be regarded as co-principals since the act of one is the act of
all.
As recounted by Amelita Elarmo in her testimony — 1 7
A: He used a piece of wood or "barateya."

Q: What did this Moroy Gallo do with his barateya?

A: He struck my husband with that piece of wood.
Q: Was your husband hit?
A: Yes, sir.
Q: Have you seen or did you see where was your husband hit when he was
struck by that barateya?
A: He was hit in the head.
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 Q: How many times did Moroy or Sonny Gallo strike your husband with that
piece of wood?
A: Only once because they were surrounding my husband.

Q: How about Crisanto Gallo, what did this Crisanto Gallo do?
A: He used a bolo.
Q: What did he do with his bolo?
A: He used his bolo in hacking the head of my husband.
Q: How many times did this Crisanto Gallo hack your husband?

A: Only once and he was hit in the head.

Q: How about Elliot Dequito?
A: He used a stone and threw it to my husband.
Q: Was your husband hit by the stone thrown by Elliot?
A: He was hit on his body.

Q: How about Kano Dequito, what did Kano Dequito do?

A: I cannot exactly tell because at that time they ganged up on us.
Q: How about Boy Dequito have you seen him; what did he do?
A: He stabbed my husband with a 3-edged weapon at the breast.

Q: Who struck your husband rst of those mentioned by you, Moroy using a
piece of wood, Crisanto Gallo using a bolo or Boy Dequito stabbing your
husband hitting him on the chest. Who did the first act?
A: The first one who did the first act was Boy Dequito.
Q: While these ve (5) persons were ganging up your husband, what did you
do, if any?
A: I was shouting and we fell to the ground.

Q. Did anybody come to help you after you shouted?

A: Nobody helped me.
Q: After you shouted for help and nobody came to help you, what did these
five (5) persons do?
A: They all ran away and they did not appear until morning.

Parenthetically, the failure of the law enforcers to serve the warrant of arrest for ve
(5) years was for no other reason than that Moroy disappeared after the incident. Flight is
a circumstance tending to establish guilt thus giving truth to the maxim, "the wicked eeth,
even when no man pursueth, whereas the righteous is as brave as a lion." prLL

The trial court was correct in appreciating the qualifying circumstance of abuse of
superior strength as alleged in the Information. 18 Where the armed assailants, including
accused-appellant, seized upon their greater number and superior power to overwhelm the
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 unarmed victim Ignacio Elarmo, the aggression must be considered as having been
attended with abuse of superior strength.
Considering that the murder was committed prior to the effectivity of R.A. 7659 on 1
January 1994, the applicable provision is Art. 248 of the Revised Penal Code which
penalizes murder with reclusion temporal in its maximum period to death. The imposable
penalty which has three periods, namely, minimum (reclusion temporal), medium (reclusion
perpetua) and maximum (death), makes Art. 64 of the Revised Penal Code applicable. In
this case the prosecution was able to establish the qualifying aggravating circumstance of
abuse of superior strength. In the absence of any other generic aggravating and mitigating
circumstance, the imposable penalty is reclusion perpetua, the medium period of the
penalty pursuant to Art. 64 of the Penal Code.
Conformably with recent jurisprudence, the amount of P50,000.00 for civil indemnity
and P50,000.00 for moral damages shall be awarded to the heirs of the decedent. 1 9
Pursuant thereto, the moral damages awarded by the trial court is reduced to P50,000.00.
Actual damages shall be awarded only when there is competent proof that the same have
been suffered and evidence of the actual amount thereof. 2 0 And this the prosecution
failed to do. Consequently, no actual damages shall be awarded.
WHEREFORE, the assailed Decision convicting accused-appellant Moroy "Sonny"
Gallo of the crime of murder and sentencing him to reclusion perpetua is AFFIRMED. He is
further ordered to pay the heirs of the deceased Ignacio Elarmo P50,000.00 for civil
indemnity and another P50,000.00 for moral damages. Costs against accused-appellant.
SO ORDERED. Cdpr

Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.

Footnotes
1. Decision penned by Judge Jose Y. Aguirre, Jr., RTC-Br. 55, Himamaylan, Negros
Occidental; rollo, pp. 15-24.
2. Id., p. 52.
3. A piece of wood usually about 2" x 2" x 4’ (or it can be any size)
4. Exh. "A," Original Records, p. 9.
5. TSN, 26 May 1993, p. 9.

6. Id., p. 10.
7. Id., p. 11.
8. TSN, 18 August 1993, p. 10.
9. Id., p. 11.
10. Rollo, pp. 61-62.
11. TSN, 26 May 1993, p. 12.
12. People v. Dominguez, G.R. No. 100199, 18 January 1993, 217 SCRA 170.
13. Rollo, p. 22.
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 14. People v. Alolod, G.R. Nos. 117506-07, 7 January 1997, 266 SCRA 157.
15. TSN, 15 July 1992, p. 10.
16. People v. Hubilla, Jr., G.R. No. 114904, 29 January 1996, 252 SCRA 471.
17. TSN, 15 July 1992, pp. 8-10.
18. Rollo, p.15.
19. People v. Verde, G.R. No. 119077, 10 February 1999.
20. Del Rosario v. Court of Appeals, G.R. No. 118325, 29 January 1997, 267 SCRA 159;
Lufthansa German Airlines v. Court of Appeals, G.R. No. 108997, 12 April 1995, 243
SCRA 600.

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