FIRST DIVISION

[G.R. Nos. 103604-05. September 23, 1993.]

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

VALERIANO Y TUMAHIG, MACARIO E. ACABAL @ "MOMONG,"
JUANITO RISMUNDO, ABUNDIO NAHID and JOHN DOES,
accused. MACARIO E. ACABAL, JUANITO RISMUNDO and
ABUNDIO NAHID, accused-appellants.

The Solicitor General for plaintiff-appellee.

Marcelo G. Flores for accused-appellants.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; JUDGMENT OF

CONVICTION; RULE FOR VALIDITY THEREOF; SUBSTANTIALLY COMPLIED WITH
IN CASE AT BAR. — We find that the decision substantially complies with the
Rules of Court on judgments as it did sentence the accused-appellants to
reclusion perpetua. A judgment of conviction shall state (a) the legal
qualification of the offense constituted by the acts committed by the accused,
and the aggravating or mitigating circumstances attending the commission, if
there are any; (b) the participation of the accused in the commission of the
offense, whether as principal, accomplice or accessory after the fact; (c) the
penalty imposed upon the accused; and (d) the civil liability or damages caused
by the wrongful act to be recovered from the accused by the offended party, if
there is any, unless the enforcement of the civil liability by a separate action
has been reserved or waived. As we earlier observed, the challenged decision
does not contain the usual dispositive portion. The last two paragraphs of the
decision merely embody its conclusions that: (1) the appellants are guilty of
murder, and (2) taking into account the "attendant qualifying aggravating
circumstances of nighttime, use of fire by burning the house of the victim, . . .
the abuse of superior strength," "the penalty imposable . . . will be in its
maximum degree, that is reclusion perpetua" considering that "the penalty now
for murder is reclusion temporal to reclusion perpetua." While the decision
leaves much to be desired, it nevertheless contains the court's findings of facts,
the law applicable to the set of facts and what it believes to be the imposable
penalty under the law, that is, reclusion perpetua which is actually the penalty
imposed on the accused-appellants. It is obvious that they clearly understood
that they were found guilty beyond reasonable doubt of the crime of murder
and were sentenced to suffer the penalty of reclusion perpetua in Criminal Case
No. 4585. Were it otherwise, they would not have declared in open court their
intention to appeal immediately after the promulgation of the decision and
would not have subsequently filed their written notice of appeal.
2. ID.; ID.; ID.; NOTICE OF APPEAL FILED BEFORE THE PROMULGATION
THEREOF WILL NOT DIVEST THE COURT'S JURISDICTION OVER THE PERSON OF
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 THE ACCUSED; CASE AT BAR. — Accused-appellants contend that the trial court
did not impose any sentence and so cannot cancel anymore their bail bonds
and direct their arrest and immediate commitment because it already lost
jurisdiction over their persons when they perfected their appeal. In connection
with Section 3, Rule 114 of the Revised Rules of Court on bail, we ruled in
People vs. Cortez that: ". . . an accused who is charged with a capital offense or
an offense punishable by reclusion perpetua, and is thereafter convicted of the
offense charged, shall no longer be entitled to bail as a matter of right even if
he appeals the case to this Court since his conviction clearly imports that the
evidence of his guilt of the offense charged is strong." We have already said
that the decision did impose the penalty of reclusion perpetua. Since the order
cancelling their bail bonds and directing their arrest is contained in the decision
itself, it is apparent that their abovementioned contention is highly illogical. At
the time the order in question was made, the trial court still had jurisdiction
over the persons of the accused-appellants. For too obvious reasons, their
notices of appeal which they claim have put an end to the trial court's
jurisdiction over them could not have been filed before the promulgation of the
decision. The order is therefore valid and enforceable. Also, it may be recalled
that the accused-appellants had earlier raised this issue before us in a petition
for habeas corpus dated 16 January 1992 and docketed as G.R. Nos. 103602-
03. We dismissed that petition on 17 February 1992 for failure to comply with
requirement no. (2) of Revised Circular No. 1-88 and Circular No. 28-91 on
forum shopping. Their motion for reconsideration was denied on 27 May 1993.
3. ID.; EVIDENCE; BURDEN OF PROOF IN CRIMINAL CASES; LIES WITH
THE PROSECUTION. — The testimony of the other witnesses for the prosecution
likewise do not provide sufficient proof of the accused-appellant's guilt.
Visitacion Silvano's testimony that she saw and identified the accused-
appellants at the scene of the crime taxes the imagination. It was humanly
impossible for her to see the accused-appellants even if she were aided by the
light from the truck as she herself said that she was then in her house, three
kilometers away from the house of her parents-in-law. Wilson Silvano did not
testify at all that he saw the persons who hacked and killed his mother. In
conclusion, because of reasonable doubt as to their guilt, the accused-
appellants must be acquitted. Every accused is presumed innocent until the
contrary is proved; that presumption is solemnly guaranteed by the Bill of
Rights. The contrary requires proof beyond reasonable doubt, or that degree of
proof which produces conviction in an unprejudiced mind. Short of this, it is not
only the right of the accused to be freed; it is even the constitutional duty of
the court to acquit him. Accordingly, unless the prosecution discharges its
burden of proving the guilt of the accused-appellants beyond reasonable doubt,
they need not even offer evidence in their behalf. The weakness of their
defense of alibi thus becomes irrelevant.

4. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; WHEN ALLEGED

AS GENERIC AGGRAVATING CIRCUMSTANCES, COURT CANNOT ELEVATE THE
SAME AS QUALIFYING CIRCUMSTANCES. — The trial court, however, erred in
considering nighttime, use of fire and abuse of superior strength as "attendant
qualifying aggravating circumstances." The information in Criminal Case No.
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 4585 alleged only treachery and evident premeditation as qualifying
aggravating circumstances. Nighttime, band, use of fire, craft, fraud or disguise
and ignominy were alleged as generic aggravating circumstances only. The trial
court cannot elevate the status of any of the generic aggravating
circumstances and consider them as qualifying circumstances for the crime of
murder. Moreover, nighttime is not a qualifying circumstance under Article 248
of the Revised Penal Code.
5. ID.; MURDER; IMPOSABLE PENALTY. — It was an error for the trial
court to state that "the penalty now for murder is reclusion temporal to
reclusion perpetua." The penalty for murder remains to be reclusion temporal
maximum to death. But in view of paragraph (1), Section 19, Article III of the
Constitution prohibiting the imposition of the penalty of death, where death
would have been the proper penalty instead of reclusion perpetua.
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; TRIAL IN ABSENTIA; WHEN
AVAILABLE. — The trial court further erred in holding that no penalty could be
imposed on accused Engracio Valeriano in Criminal Case No. 4584 because he
"is nowhere to be found, hence, not brought to the bar of justice, he being a
fugitive or at large." The court ignored the fact that Engracio jumped bail after
he had been arraigned, just before the retaking of evidence commenced.
Paragraph (2), Section 14, Article III of the Constitution permits trial in absentia
after the accused has been arraigned provided he has been duly notified of the
trial and his failure to appear thereat is unjustified. One who jumps bail can
never offer a justifiable reason for his non-appearance during the trial.
Accordingly, after the trial in absentia, the court can render judgment in the
case and promulgation may be made by simply recording the judgment in the
criminal docket with a copy thereof served upon his counsel, provided that the
notice requiring him to be present at the promulgation is served through his
bondsmen or warden and counsel.

DECISION

DAVIDE, JR., J : p

In two separate informations dated 28 February 1981 and filed with the
then Court of First Instance, now Regional Trial Court, of Negros Oriental,
Engracio Valeriano, Juanito Rismundo, Macario Acabal, Abundio Nahid and
several John Does were charged with the crimes of Murder and Frustrated
Murder. The accusatory portion in the information for murder, 1 docketed as
Criminal Case No. 4585, reads as follows:
"That sometime in the evening of the 28th of January, 1980, at
Nagbinlod, Municipality of Sta. Catalina, Province of Negros Oriental,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, including several 'John Does', conspiring and
confederating with one another, with intent to kill, and with treachery
and evident premeditation and being then armed with bolos and
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 'pinuti', did then and there willfully, unlawfully and feloniously attack,
assault and use personal violence on the person of one Rizalina Apatan
Silvano while the latter was about to leave her house and inflicting
upon her injuries, to wit: 'right leg amputated below the knee; left leg
hacked behind the knee; abdomen hacked with viscerae evacerated,'
and did then and there set the house on fire while the aforementioned
Rizalina Apatan Silvano was inside said house trying to escape
therefrom, and allowing her to be burned inside said house which was
burned to the ground, thereby causing upon said Rizalina Apatan
Silvano her death and burning her beyond recognition.
That the crime was committed with attendant aggravating
circumstances of nighttime, by a band, by means of fire, craft [,] fraud
or disguise employed; and that means have been employed which
brought added ignominy to the natural effects of their acts.
Contrary to Article 248 in relation to Article 14 of the Revised
Penal Code."

The information for frustrated murder, 2 docketed as Criminal Case No.

4584, alleged that in the evening of the 28th of January 1980 — immediately
after the commission of the murder charged in Criminal Case No. 4585 — the
accused hacked and struck Wilson Silvano, son of the victim in the murder
case, with bladed weapons such as bolos and pinuti thereby inflicting upon him
multiple hack wounds which would have produced the crime of murder were it
not for the timely and able medical assistance given to him. It further alleged
that the crime was committed with the qualifying circumstance of alevosia or
treachery and the aggravating circumstances of nighttime, by a band, with the
aid of armed men or persons who insure or afford impunity, and that craft,
fraud or disguise were employed.

At the arraignment, all the accused, except the John Does who remained
unidentified and at large, pleaded not guilty in both cases. 3 Thereafter, upon
agreement of the parties, joint trial was ordered by the trial court. 4
Trial on the merits was conducted by Branch 37 of the court a quo
presided over by Judge Temistocles B. Diez. But on 16 May 1987, a fire gutted
the building where Branch 37 was located and the records of these two cases
were burned. The records were subsequently reconstituted upon petition of the
prosecuting fiscal. 5 The testimonies of the witnesses were retaken, however,
before it could commence, accused Engracio Valeriano jumped bail and the
warrant for his arrest issued on 16 November 1987 was returned unserved
because he could not be found. 6 An alias warrant for his arrest was issued on
26 June 1989, 7 but he remains at large up to the present.

The evidence for the prosecution, as disclosed by the testimonies of its

witnesses, is as follows:

Antonio Silvano, then the barangay captain of Barangay Nagbinlud, Sta.

Catalina, Negros Oriental, testified that at about 8:30 o'clock in the evening of
28 January 1980, or two nights before the 30 January 1980 local election, three
men entered his yard. He recognized these men as Juanito Rismundo, his
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 neighbor since 1964, Engracio Valeriano, also another neighbor, and Macario
Acabal, his sub-barangay captain. 8 The three men called him, but he did not
answer. Instead, his wife, Rizalina, did and she told them that he was attending
a meeting "in the town." They did not believe her and replied that they just saw
Antonio enter the house. Juanito asked her whether they (Antonio and Rizalina)
were selling their votes because they will buy them but Rizalina answered in
the negative. Juanito then said, "You choose, if you want something to happen
to you or not [sic]." Another man, Abundio Nahid, asked Antonio to come down
because they have something to tell him. As Antonio was about to kick the door
open, he saw the men outside his house increasing in number and were armed
with bladed weapons (pinuti). When he turned around, Antonio smelled
gasoline and he saw Abundio Nahid set fire to his store located at the right side
of his house. 9 He and his wife Rizalina escaped to the roof of the kitchen while
the other members of their family who were in that house — their son Elmer
Silvano and eldest daughter Celsita Legaspina with her two children - escaped
towards the sugarcane field which was about thirty meters away. When Rizalina
fell from the roof to the floor, Macario Acabal, Juanito Rismundo and Engracio
Valeriano hacked her. Each of them delivered a single blow with Abundio Nahid
hitting her four times. 10

On cross-examination, Antonio Silvano admitted that, as barangay captain

of Nagbinlud, Sta. Catalina, and as trusted man of Mrs. Clotilde Carballo in
whose land his house is built, he supported the latter as the official candidate
of the KBL for Mayor of Sta. Catalina, as well as the other candidates of her
party for the local election of 30 January 1980, including Lorenzo Teves, the
KBL's candidate for Governor of the Province of Negros Oriental. On the other
hand, the accused supported and campaigned hard for Mrs. Carballo's
opponent, a certain Jose Napigkit who was a candidate of the Pusyon Bisaya
and who eventually won in the election. In his barrio, Mrs. Carballo lost heavily
to Napigkit. 11 He further admitted that although he first reported the incident
to the Philippine Constabulary (PC) which investigated him, he cannot
remember if he was made to sign anything by the PC investigator. On 15
February 1980, he was again investigated but this time in the office of
Governor Teves. There, he was made to subscribe and swear to an affidavit 12
that, as admitted by the prosecuting fiscal, was made the basis for the filing of
the information. No statement by the PC was presented to the fiscal. 13
Visitacion Silvano, wife of Wilson who is the son of Antonio and Rizalina,
testified that she heard the shouts for help of her mother-in-law 14 so she woke
up Wilson. He then went down the house and turned on the headlights of the
truck parked in front of their house facing his parents' house which was located
three kilometers away. He ran towards the burning house of his parents but
before he reached it, he was met by Engracio Valeriano and the latter hacked
him. When he ran away, Engracio's companions, Juanito Rismundo, Macario
Acabal and Abundio Nahid, chased him until he reached the sugarcane fields. 15
Visitacion stayed in her house and saw Engracio Valeriano hack her husband.
She also saw the other accused-appellants in the vicinity of the house of her
parents-in-law. 16

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 Dr. Avelino Torres, Chief of Hospital of Bayawan District Hospital,
examined the body of Rizalina Silvano at 1:00 o'clock in the early morning of 29
January 1980 and was presented as a witness for the prosecution. According to
him, the body was burned and charred beyond recognition but the parts thereof
were still intact. It was still warm and smelt of freshly burned flesh. 17 He found
the following "evidence of hacking:"
"(1) right leg amputated below the knee;
(2) left leg hacked behind the knee;

(3) abdomen hacked with viscerae eviscerated." 18

He concluded that the wounds were inflicted before the body was burned.19
He also examined Wilson Silvano at about 1:30 o'clock that same morning
and found seven hack wounds on Wilson. He testified at the trial that without
medical attention, Wilson could have bled to death. 20
Atty. Castulo Caballes, then the Clerk of Court of the Court of First
Instance of Negros Oriental, stated in court that on 7 February 1980, he was
fetched from his house by someone from the office of Governor Lorenzo Teves
and was asked to assist the Governor in taking the affidavit of Juanito
Rismundo. 21 After the latter "admitted that was his affidavit," he "subscribed
to him the oath and so [he] signed as a notary public." 22 In this affidavit,
Rismundo implicated Jose Napigkit as having ordered the kidnapping and killing
of KBL leaders and the burning of their houses.
Also on 7 February 1980, according to Atty. Elson Bustamante, then
Assistant Provincial Attorney, he was called by Governor Teves to assist in the
taking of the statements also of Juanito Rismundo. The Governor himself
propounded the questions to Juanito who was accompanied by the son of Mrs.
Carballo and a PC soldier named Lodove. Bustamante heard Mrs. Carballo's son
tell the Governor that Juanito went to their (Carballos') house and "confessed"
to a certain incident which happened in Sta. Catalina on 28 January 1980, and
since there were PC soldiers still assigned to the Carballos' residence at that
time, they brought Juanito to Governor Teves, the Provincial Chairman of the
KBL. 23

Another prosecution witness, Jufelinito Pareja, then Provincial Fiscal of

Negros Oriental, told the court that on 18 February 1980, accused Macario
Acabal was brought to his office. Acabal subscribed and swore to a statement
before him. The latter first read it to Acabal and after ascertaining that Acabal
voluntarily executed the statement, he administered the oath to said affiant. 24
This sworn statement also implicated Jose Napigkit.
Accused-appellants put up the defense of alibi. They allege that they were
in different places when the incident in question occurred. Macario Acabal was
in sitio Canggabok, Nagbinlud, Sta. Catalina, attending the wake for deceased
barangay captain Filomeno Cumahig. 25 On 29 January 1980, he was arrested
by military men in the house of his aunt at the breakwater of Poblacion Sta.
Catalina. One of them struck him three times on his left and right chest with an
armalite rifle. Thereafter, he was loaded into a pick-up truck owned by Mrs.
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 Clotilde Carballo and taken to her house. On 7 February 1980, he was brought
to Bayawan and was again manhandled, causing injuries to him which required
treatment at the Bayawan District Hospital, as certified by Dr. Torres. From the
hospital, he was brought to the municipal jail of Bayawan and then to the
Provincial Jail in Dumaguete City. Later, he was taken to the office of the
Governor and was forced to sign an affidavit (Exhibit "F"). Prior to 28 January
1989, he did not know the other accused in this case. 26
Juanito Rismundo was in Sitio Dinapo, Bgy. Alangilan, Sta. Catalina,
graining corn in the house of Alfreda Ortega. 27 On 6 February 1980, he met a
PC soldier named Boy Gudobe (Lodove), who was then stationed in Bgy.
Kawitan, Sta. Catalina, accompanied by Diosdado Silvano, grandson of Antonio
Silvano, at the Sta. Catalina market. Gudobe allegedly hit him and, together
with Diosdado and a Boy Carballo, the son of Mrs. Clotilde Carballo, brought him
to the Capitol Building in Dumaguete City. While there, he averred that he was
forced by a lawyer to sign an affidavit (Exhibit "D") in the office of the Governor
after he was struck with the handle of a revolver at the back of his head. 28
Abundio Nahid was in his house in Sugong Milagros, Sta. Catalina, Negros
Oriental, about 20 kilometers from Nagbinlud. He charged that Wilson Silvano
testified against him because the Silvanos supported Mrs. Carballo of the KBL
while he led the supporters of Mrs. Carballo's opponent Jose Napigkit of the
Pusyon Bisaya. 29
The prosecution presented on rebuttal Mrs. Clotilde Carballo and Fiscal
Wilfredo Salmin. The former testified that on 7 February 1980 accused Juanito
Rismundo voluntarily surrendered to her at her residence in Sta. Catalina and
told her that he wanted to see the Governor. She then asked her son to bring
Juanito to Dumaguete City. 30
Fiscal Wilfredo Salmin belied the claim of Acabal that he (Salmin) went to
the Provincial Jail on 10 February 1980 and forced Acabal to sign a document.
He alleged that on 16 February 1980, not on 10 February 1980 as claimed by
Acabal, Acabal came to his office at the Provincial Attorney's Office and
executed a sworn statement, but Acabal did not sign the same upon the advice
of Atty. Geminiano Eleccion. 31
After the completion of the re-taking of the testimonies of the witnesses in
Branch 37, Criminal Cases Nos. 4584 and 4585 were re-raffled to Branch 33 of
the trial court, then presided over by Judge Pacifico S. Bulado. 32
The decision 33 of the trial court, per Judge Pacifico S. Bulado, dated 31
October 1991 but promulgated on 20 December 1991, contained no specific
dispositive portion. Its rulings are found in the last two paragraphs which read
as follows:
"The elements of murder in this case, Criminal Case No. 4585 for
the killing of Rizalina Apatan-Silvano having been proved by the
prosecution beyond doubt, the accused JUANITO RISMUNDO, MACARIO
ACABAL and ABUNDIO NAHID, considering the attendant qualifying
aggravating circumstances of nighttime, use of fire by burning the
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 house of victim Rizalina Apatan-Silvano in order to forcibly drive her
out of her house and hack her to death, the abuse of superior strength,
the penalty impossable [sic] here will be in its maximum degree, that is
reclusion perpetua taking into account Article 248 of the Revised Penal
Code, the penalty now for murder is Reclusion Temporal to Reclusion
Perpetua, and for all the accused to indemnify the heirs of the victim
the sum of Thirty Thousand (P30,000.00) Pesos since this case
occurred [sic] in 1980. For the wounding of the victim Wilson A.
Silvano, this Court believes that simple frustrated homicide only is
committed by the accused Engracio Valeriano only. But since the
person who actually inflicted the injuries of victim Wilson Silvano,
accused Engracio Valeriano only is nowhere to be found, hence, not
brought to the bar of justice, he being a fugitive or at large, no penalty
could be imposed on him since he is beyond the jurisdiction of this
court to reach. All the other two (2) accused, JUANITO RISMUNDO and
ABUNDIO NAHID are hereby ordered and declared absolved from any
criminal responsibility from frustrated homicide.
The bail bond put up by the three accused, namely: Juanito
Rismundo, Macario Acabal and Abundio Nahid are hereby ordered
cancelled and let a warrant of arrest be issued for their immediate
confinement." 34

The trial court rejected the defense of alibi because "[i]t was not shown
by plausible and convincing evidence . . . that it was physically impossible for
them to go to the scene of the crime and to return to the place of residence
(People vs. Solis, 182 SCRA 182)." Upon the other hand, it ruled that "the
prosecution witnesses . . . clearly, positively identified them as the culprits,
they being neighbors for a long time and co-workers." 35

Immediately after the promulgation of the decision, counsel for the

accused manifested in open court their intention to appeal the decision. On the
same day, counsel for accused Abundio Nahid filed a notice of appeal with a
motion for the immediate release of his client, which was opposed by the
prosecution. The court a quo denied the motion also on the same day. 36
On 31 December 1991, all the convicted accused filed a motion for the
reconsideration of the denial of the motion for immediate release. The later
motion was denied on 3 January 1992. A day earlier or on 2 January 1992,
accused Macario Acabal and Juanito Rismundo had filed their notice of appeal.
37

The records of both cases were transmitted to us and we accepted the

appeal on 26 February 1992.
The accused-appellants raise in their Brief 38 the following assignment of
errors:
"I. THAT THE HONORABLE LOWER COURT ERRED IN
CANCELLING THE BAIL BONDS OF ACCUSED-APPELLANTS AND
ORDERING THEIR IMMEDIATE ARRESTS WHEN THE ONLY PENALTY
IMPOSED BY IT FOR ALL THE ACCUSED IS "TO INDEMNIFY THE HEIRS
OF THE VICTIM THE SUM OF THIRTY THOUSAND (P30,000.00) PESOS.

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 II. THE HONORABLE LOWER COURT GRAVELY ERRED IN
FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MURDER AS DEFINED AND PUNISHED UNDER
ARTICLE 248 OF THE REVISED PENAL CODE.
III. THE HONORABLE COURT GRAVELY ERRED IN FINDING
THAT THE PROSECUTION WITNESSES (ANTONIO SILVANO, WILSON
SILVANO, AND VISITACION SILVANO), HUSBAND AND CHILDREN,
RESPECTIVELY, OF THE DECEASED RIZALINA APATAN-SILVANO, HAVE
POSITIVELY IDENTIFIED THE ACCUSED AS THE CULPRITS WHEN ONLY
ANTONIO SILVANO TESTIFIED AS TO WHO ALLEGEDLY KILLED HIS WIFE,
AND WHILE OTHER TWO (2) WITNESSES ONLY TESTIFIED AS TO THE
WOUNDING OF WILSON SILVANO BY ENGRACIO VALERIANO AND ALL
THESE WITNESSES WERE VERY VOCAL IN THEIR SILENCE AS TO THE
IDENTITIES OF THE ACCUSED FOR A LONG TIME.
IV. AND, THAT THE HONORABLE LOWER COURT GRAVELY
ERRED IN NOT ACQUITTING ALL THE ACCUSED FOR INSUFFICIENCY OF
EVIDENCE AND/OR AT LEAST ON THE HYPOTHESIS OF REASONABLE
DOUBT."

In support of the first assigned error, they claim that: (a) the trial court
could not have ordered the cancellation of their bail bonds and their arrest and
immediate confinement because the only penalty it imposed on them was "to
indemnify the heirs of the victim the sum of thirty thousand (P30,000.00)
pesos" without imposing any sentence; it merely suggested that ". . . the
penalty impossable [sic] here will be in its maximum degree, that is reclusion
perpetua . . ."; and (b) since they already perfected their appeal immediately
after the promulgation of the sentence, the trial court lost jurisdiction over the
case and could not validly cancel their bail bonds and order their arrest. 39
In its Brief, 40 the Appellee asserts that the judgment appealed from is
valid and enforceable. Although the word "impossable" [sic] is "imprecise," it is
clear that what the judge actually meant was that the penalty of reclusion
perpetua was what the law allowed or mandated him to impose. As to the grant
of bail, since they committed a capital offense and the court had already found
that the evidence of their guilt is strong, the accused-appellants should not be
entitled to bail.
We find that the decision substantially complies with the Rules of Court on
judgments as it did sentence the accused-appellants to reclusion perpetua. A
judgment of conviction shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or
mitigating circumstances attending the commission, if there are any; (b) the
participation of the accused in the commission of the offense, whether as
principal, accomplice or accessory after the fact; (c) the penalty imposed upon
the accused; and (d) the civil liability or damages caused by the wrongful act to
be recovered from the accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate action has been reserved or
waived. 41 As we earlier observed, the challenged decision does not contain the
usual dispositive portion. The last two paragraphs of the decision merely
embody its conclusions that: (1) the appellants are guilty of murder, and (2)
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 taking into account the "attendant qualifying aggravating circumstances of
nighttime, use of fire by burning the house of the victim, . . . the abuse of
superior strength," "the penalty imposable . . . will be in its maximum degree,
that is reclusion perpetua" considering that "the penalty now for murder is
reclusion temporal to reclusion perpetua." While the decision leaves much to be
desired, it nevertheless contains the court's findings of facts, the law applicable
to the set of facts and what it believes to be the imposable penalty under the
law, that is, reclusion perpetua which is actually the penalty imposed on the
accused-appellants. It is obvious that they clearly understood that they were
found guilty beyond reasonable doubt of the crime of murder and were
sentenced to suffer the penalty of reclusion perpetua in Criminal Case No.
4585. Were it otherwise, they would not have declared in open court their
intention to appeal immediately after the promulgation of the decision and
would not have subsequently filed their written notice of appeal.
Accused-appellants contend that the trial court did not impose any
sentence and so cannot cancel anymore their bail bonds and direct their arrest
and immediate commitment because it already lost jurisdiction over their
persons when they perfected their appeal.
In connection with Section 3, Rule 114 of the Revised Rules of Court on
bail, we ruled in People vs. Cortez 42 that:
". . . an accused who is charged with a capital offense or an
offense punishable by reclusion perpetua, and is thereafter convicted
of the offense charged, shall no longer be entitled to bail as a matter of
right even if he appeals the case to this Court since his conviction
clearly imports that the evidence of his guilt of the offense charged is
strong."

We have already said that the decision did impose the penalty of reclusion
perpetua. Since the order cancelling their bail bonds and directing their
arrest is contained in the decision itself, it is apparent that their
abovementioned contention is highly illogical. At the time the order in
question was made, the trial court still had jurisdiction over the persons of
the accused-appellants. For too obvious reasons, their notices of appeal
which they claim have put an end to the trial court's jurisdiction over them
could not have been filed before the promulgation of the decision. The order
is therefore valid and enforceable. Also, it may be recalled that the accused-
appellants had earlier raised this issue before us in a petition for habeas
corpus dated 16 January 1992 and docketed as G.R. Nos. 103602-03. We
dismissed that petition on 17 February 1992 for failure to comply with
requirement no. (2) of Revised Circular No. 1-88 and Circular No. 28-91 on
forum shopping. 43 Their motion for reconsideration was denied on 27 May
1993.
The trial court, however, erred in considering nighttime, use of fire and
abuse of superior strength as "attendant qualifying aggravating
circumstances." The information in Criminal Case No. 4585 alleged only
treachery and evident premeditation as qualifying aggravating circumstances.
Nighttime, band, use of fire, craft, fraud or disguise and ignominy were alleged
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 as generic aggravating circumstances only. The trial court cannot elevate the
status of any of the generic aggravating circumstances and consider them as
qualifying circumstances for the crime of murder. Moreover, nighttime is not a
qualifying circumstance under Article 248 of the Revised Penal Code.
It was likewise an error for the trial court to state that "the penalty now
for murder is reclusion temporal to reclusion perpetua." The penalty for murder
remains to be reclusion temporal maximum to death. But in view of paragraph
(1), Section 19, Article III of the Constitution prohibiting the imposition of the
penalty of death, where death would have been the proper penalty in a case,
the court must instead impose the penalty of reclusion perpetua. 44

The trial court further erred in holding that no penalty could be imposed
on accused Engracio Valeriano in Criminal Case No. 4584 because he "is
nowhere to be found, hence, not brought to the bar of justice, he being a
fugitive or at large." The court ignored the fact that Engracio jumped bail after
he had been arraigned, just before the retaking of evidence commenced.
Paragraph (2), Section 14, Article III of the Constitution permits trial in absentia
after the accused has been arraigned provided he has been duly notified of the
trial and his failure to appear thereat is unjustified. One who jumps bail can
never offer a justifiable reason for his non-appearance during the trial.
Accordingly, after the trial in absentia, the court can render judgment in the
case 45 and promulgation may be made by simply recording the judgment in
the criminal docket with a copy thereof served upon his counsel, provided that
the notice requiring him to be present at the promulgation is served through his
bondsmen or warden and counsel. 46

Having disposed of the first issue raised by the accused-appellants, we

now come to the second, third and fourth assigned errors which shall be
discussed jointly, considering that they are interrelated and deal with the
question of whether or not the guilt of the accused-appellants was proven
beyond reasonable doubt.
The accused-appellants contend that the trial court erred in relying on the
testimonies of prosecution witnesses Antonio Silvano, Wilson Silvano and
Visitacion Silvano and in concluding that they clearly and positively identified
the accused-appellants as the culprits. According to them, only Antonio Silvano
testified that he saw the accused burn his house, kill his wife Rizalina and drag
her into the fire. Neither Visitacion Silvano nor Wilson Silvano testified that they
saw what occurred in the elder Silvanos' house. But even the testimony of
Antonio Silvano is not reliable because it lacks truthfulness and validity. They
singled out his testimony that while the fire was raging, his wife told him to
save himself as she will also save herself, then the direction of the wind
changed and he jumped from the roof of the house into the bushes. They
concluded that he could not have seen who killed his wife. 47 Also, the ruling
that conclusions and findings of the lower court are entitled to great weight is
not applicable in this case because the judge who heard the testimonies of the
witnesses in its entirety was not the same judge who penned the decision. They
further stressed the delay incurred by Antonio in reporting the crime to the
authorities. The crime was committed on 28 January 1980 but he reported it to
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 the Office of the Governor of Negros Oriental in Dumaguete City only on 18
February 1980 or some 21 days after its commission. Finally, they maintain
that they have sufficiently established their defense of alibi.

On the other hand, the Appellee seeks the affirmance of the judgment
convicting the accused. The Appellee reasons out that the accused-appellants
were positively identified by prosecution witness Antonio Silvano; and that even
while it is true that only Antonio Silvano saw the murderers, Visitacion and
Wilson Silvano testified on the presence of the accused-appellants at the scene
of the crime.
As the Appellee admits, however, the most damning testimony against
the accused-appellants in this case is only that of Antonio Silvano who claimed
that he actually saw them hack and kill his wife. To us, whether such testimony
could be relied upon is altogether a different matter. Although it is a settled
rule that the findings of the trial court on the credibility of witnesses should be
given the highest respect because it had the advantage of observing the
demeanor of the witnesses and can discern if such witnesses are telling the
truth or lying through their teeth, 48 we cannot rely on that rule in this appeal
because the judge who heard the testimonies of the witnesses was not the
same judge who penned the decision. Judge Temistocles Diez of Branch 37
received and heard the testimonies of the witnesses but it was Judge Pacifico S.
Bulado who rendered the decision. The latter had no opportunity to observe the
witnesses' deportment and manner of testifying, which are important
considerations in assessing credibility. 49

We have carefully read the transcripts of the testimony of Antonio

Silvano. We cannot give him full faith and credit for the following reasons:
1. Although he testified on cross-examination that he first reported the
incident to and was investigated by the PC, it is clear to this Court that it was
only on 15 February 1980, or on the eighteenth day after the incident that he
was investigated at the office of the Governor. Being the barangay captain of
Nagbinlud, the owner of a house that was intentionally set on fire, the father of
the man who was hacked several times and almost died, and the husband of
the murder victim whose body was charred beyond recognition, the compelling
call of duty and the mournful cry for justice cannot tolerate any delay in
reporting the incident to the proper authorities. The prosecution was hard put
for an explanation for this delay; it did not even attempt to make any. If
Antonio Silvano could offer no explanation therefor, it could only mean that he
was either unable to identify the real perpetrators of the crime against his
family or he was afraid to do so. For whichever reason, such failure only
bolsters the claim of the defense that the crime was committed by the
"Salvatore" group whose operations Antonio admitted he was very much aware
of, thus:
"Q As such barangay captain you remember that in the month of
January, 1980 there was such a group of armed men referred to
or commonly called as Salvatore, is that correct that used to
roam around in the interior part of Sta. Catalina?
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 A Yes, that is true.
Q And this group of men used to plunder or steal from houses, kill
certain persons and burn also houses, is that correct?

A Yes, that is true.

Q And this group of men known as 'Salvatore' continued to exist
even after January 1980?

A That was only up to 1980.

Q Yes, but after January 1980 this 'Salvatore' group continued to
exist for sometime up to or beyond the year 1980, is that
correct?

A They were only about 2 weeks because they were arrested by the
authorities.
Q That is two weeks after January 28, 1980?

A Yes." 50

Furthermore, it is doubtful whether Antonio did report the incident to the

PC as no PC personnel corroborated him thereon and according to him, he did
not sign any statement during the said investigation, which is unusual. The
fiscal himself admitted in open court that no statement taken by the PC was
submitted to his office. 51 If indeed Antonio was investigated by the PC, the
investigator should have formally taken his statement in view of its importance.
As no such statement was proved to exist, it is logical to presume that Antonio
did not or could not disclose to the investigator the names of the perpetrators.

2. Antonio admitted on cross-examination that he had no quarrel and

misunderstanding 52 or grudges 53 whatsoever with the accused-appellants. If
that were so, it is odd that he could not explain why he, a barangay captain who
was expected to attend to the requests and problems of his constituents,
deliberately chose not to respond to the alleged call of the accused-appellants
on the night of the incident and instead allowed his wife to lie to them by saying
that he was attending a meeting. Again, the only plausible explanation for his
behavior was that the men who came belonged to the "Salvatore" group and
this terrified him, for he knew that the group had been roaming around, killing
people and burning houses in his area.

3. Also, on cross-examination, Antonio affirmed as true the contents of

his sworn statement 54 taken two weeks after the incident. In it, he failed to
state the fact that he witnessed the killing of his wife and to identify her killers.
55 Since his sworn statement was precisely taken to obtain from him vital facts
relative to the incident, more specifically on the killing of his wife, and
considering that he had already stated therein that he saw the accused-
appellants, it is contrary to human nature and inconsistent with experience for
him to fail to identify them as the killers of his wife, if such is the fact. It has
been said that where the omission in the affidavit refers to a very important
detail such that the affiant would not have failed to mention it, the omission
could affect the affiant's credibility. 56 Verily, it was obvious from his answer to
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 Question No. 16 of the investigator that he had no opportunity to identify the
killers:
"Q Question No. 16, 'Q-What else did you do?', and you answered,
'A-My wife told me to just save myself because she will also save
herself. Thereafter the wind changed it(s) course and (the) fire
grew big and because of this, I had the occasion to jumped (sic)
from our house and thereafter I ran towards the bushes.' . . .

A Yes, sir, that is true.

Q How far is that bush to which you ran from your house which was
burning?

A It is about thirty (30) meters because it is a sugarcane field." 57

4. Antonio categorically declared that Engracio Valeriano, Juanito

Rismundo and Macario Acabal each hacked her once hitting her on the
forehead, right leg and left arm, respectively, while Abundio Nahid hacked her
four times, hitting her at the forehead, left arm, right leg and stomach. 58 In
other words, from his testimony, his wife sustained seven wounds. Yet, the
medical evidence belies this. Per the findings of Dr. Avelino Torres, 59 there
were only three "evidence" of hacking, viz.: at the right leg, left leg and
abdomen.

5. Nowhere in his sworn statement did Antonio mention the name of

accused-appellant Abundio Nahid. If in fact he saw the latter who he claimed in
his direct testimony hacked his wife four times, Nahid's name would have
occupied a prominent place in his sworn statement.

The testimony of the other witnesses for the prosecution likewise do not
provide sufficient proof of the accused-appellants' guilt. Visitacion Silvano's
testimony that she saw and identified the accused-appellants at the scene of
the crime taxes the imagination. It was humanly impossible for her to see the
accused-appellants even if she were aided by the light from the truck as she
herself said that she was then in her house, three kilometers away from the
house of her parents-in-law. Wilson Silvano did not testify at all that he saw the
persons who hacked and killed his mother.

In conclusion, because of reasonable doubt as to their guilt, the accused-

appellants must be acquitted. Every accused is presumed innocent until the
contrary is proved; that presumption is solemnly guaranteed by the Bill of
Rights. The contrary requires proof beyond reasonable doubt, or that degree of
proof which produces conviction in an unprejudiced mind. Short of this, it is not
only the right of the accused to be freed; it is even the constitutional duty of
the court to acquit him. 60 Accordingly, unless the prosecution discharges its
burden of proving the guilt of the accused-appellants beyond reasonable doubt,
they need not even offer evidence in their behalf. 61 The weakness of their
defense of alibi thus becomes irrelevant.

WHEREFORE, the challenged Decision of Branch 33 of the Regional Trial

Court of Negros Oriental in Criminal Case No. 4585 is hereby REVERSED.
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 Accused-appellants MACARIO ACABAL, JUANITO RISMUNDO and ABUNDIO
NAHID are ACQUITTED on ground of reasonable doubt, and their immediate
release from confinement is hereby ordered, unless other lawful and valid
grounds exist for their further detention.
The trial court is directed to render judgment against accused-appellant
ENGRACIO VALERIANO in Criminal Case No. 4584.

No costs.
SO ORDERED.

Cruz, Bellosillo and Quiason, JJ ., concur.

Griño-Aquino, J ., is on leave.

Footnotes

1. Original Records (OR), 2.

2. OR, 38-39.

3. OR, 281-283; 285.

4. Id., 280.

5. Id., 35.

6. Id., 57, with annotation of the serving officer at the back.

7. Id., 276.

8. TSN, 4 March 1988, 12-13.

9. Id., 5-7.

10. TSN, 4 March 1988, 9.

11. TSN, 5 May 1988, 4-7.

12. Exhibit "1"-Nahid; TSN, 4 March 1988, 24.

13. TSN, 5 May 1988, 11-12.

14. TSN, 17 October 1988, 4.

15. TSN, 9 September 1988, 17-19.

16. TSN, 17 October 1988, 4.

17. TSN, 9 September 1988, 4.

18. Exhibit "A"; OR, 229.

19. TSN, 9 September 1988, 10.

20. Id., 8.

21. OR, 233-237. The affidavit is marked as Exhibit "D" and is in the Cebuano
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 dialect. Its English translation is marked as Exhibit "E" (Id., 238-241).
22. TSN, 24 November 1988, 6.

23. TSN, 24 November 1988, 27.

24. TSN, 9 January 1989, 4-11. The sworn statement is marked as Exhibit "F"
(OR, 242-247) and is in the Cebuano dialect. Its English translation is marked
as Exhibit "G" (Id., 247-251).

25. TSN, 9 June 1989, afternoon session, 6-7.

26. TSN, 9 June 1989, morning session, 24-29; afternoon session, 7-8.
27. TSN, 19 June 1989, morning session, 28-32.

28. Id., 24-25; 32-37; afternoon session, 37-41.

29. Id., afternoon session, 5-6.

30. TSN, 27 June 1989, 5-8.

31. Id., 11-14.

32. OR, 287.

33. Id., 296-312; Rollo, 27-43.

34. OR, 311-312; Rollo, 42-43.

35. OR, 310.

36. OR, 313; 318-319; 321-322.

37. Id., 323; 324-327; 332.

38. Rollo, 67, et seq.

39. Rollo, 81-83.

40. Id., 126, et seq.

41. Section 2, Rule 120, Revised Rules of Court, as amended.

42. G.R. No. 92560, 15 October 1991, Minute Resolution. See also
Administrative Circular No. 2-92 issued on 20 January 1992; People vs.
Fortes, G.R. Nos. 90643 and 91155, 25 June 1993.

43. See Rollo of G.R. Nos. 103602-03.

44. People vs. Muñoz, 170 SCRA 107 [1989]; People vs. Barba, 203 SCRA 436
[1991].

45. People vs. Salas, 143 SCRA 163 [1986]; Gimenez vs. Nazareno, 160 SCRA 1
[1988]; People vs. Mapalao, 197 SCRA 79 [1991].
46. Third paragraph, Section 6, Rule 120, Revised Rules of Court, as amended.

47. Appellant's Brief; Rollo, 88.

48. People vs. Santito, Jr., 201 SCRA 87 [1991]; People vs. Garcia, 209 SCRA
164 [1992].
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 49. People vs. Escalante, 131 SCRA 237 [1984]; People vs. Villapaña, 161 SCRA
72 [1988]; People vs. Capilitan, 182 SCRA 313 [1990]; People vs. Pido, 200
SCRA 45 [1991].

50. TSN, 5 May 1988, 3-4.

51. Id., 9; 11-12.

52. TSN, 5 May 1988, 6.

53. TSN, 6 June 1988, 4.

54. Exhibit "1"-Nahid; TSN, 4 March 1988, afternoon session, 14-24.

55. Id., 15-24.

56. People vs. Dumpe, 183 SCRA 547 [1990], citing People vs. Anggot, 105
SCRA 168 [1981].

57. TSN, 4 March 1988, 20.

58. Id., 9-11.

59. TSN, 9 September 1988, 4-5; Exhibit "A"; OR, 229.

60. People vs. Pido, 200 SCRA 45 [1991].

61. People vs. Garcia, 215 SCRA 349 [1992].

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