G.R. No. 85735 January 18, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIO LUG-AW and ROGELIO BANNAY alias JUNIOR BANNAY, defendant-appellants.

FACTS

Carlos Pal-loy was shot to death on December 12, 1985, in Sitio Kalipkip, Sto. Niño, Maddela, Quirino, while fencing the boundary of the communal forest land he was farming, which was disputed with his neighbor, Conchita Tipon (Nipol). His 13-year-old daughter, Sonia, witnessed the shooting from a distance of about four meters after hearing gunshots. She saw appellants Julio Lug-aw (son-in-law of Conchita Tipon) and Rogelio Bannay (Tipon’s nephew); she specifically saw Lug-aw shoot her father as he was about to draw his bolo. Pal-loy, before dying, identified Lug-aw and Bannay as his assailants to his wife, Carmen. The autopsy revealed Pal-loy died from severe hemorrhage due to gunshot wounds. An information for murder, alleging treachery and evident premeditation, was filed against both appellants. They pleaded alibi: Lug-aw claimed he was plowing his farm 16-17 kilometers away, and Bannay claimed he was at home peeling peanuts. The trial court convicted both of murder and sentenced them to reclusion perpetua. They filed a motion for new trial based on alleged newly discovered evidence (affidavits from Carmen Pal-loy and others suggesting a frame-up) and ineffective assistance of counsel, which was denied. Hence, this appeal.

ISSUE

1. Whether the guilt of appellants Julio Lug-aw and Rogelio Bannay was proven beyond reasonable doubt.
2. Whether the qualifying circumstances of treachery and evident premeditation were present.
3. Whether conspiracy between the appellants was established.
4. Whether the motion for new trial should have been granted.

RULING

1. The guilt of Julio Lug-aw was proven beyond reasonable doubt. The positive identification by eyewitness Sonia Pal-loy, who had no ill motive to testify falsely, prevails over his alibi, which was not physically impossible. However, the guilt of Rogelio Bannay was not proven beyond reasonable doubt. The evidence only showed his presence at the scene; there was no proof of any overt act to establish conspiracy. His alibi, corroborated by the barangay captain, was credible given the distance and terrain between his location and the crime scene. Thus, Bannay is acquitted.
2. The qualifying circumstances of treachery and evident premeditation were not proven. Treachery requires that the means of execution were deliberately adopted without risk to the assailant. The attack was frontal, and the victim was about to draw his bolo, indicating he was alerted to the danger. Evident premeditation requires proof of planning and preparation; none was established.
3. Conspiracy was not established. Mere presence at the scene of the crime, without proof of a common criminal design or overt act, is insufficient. Bannay was merely hiding and did nothing; thus, he cannot be held liable as a co-conspirator.
4. The motion for new trial was properly denied. The affidavits presented did not constitute newly discovered evidence as they could have been presented during trial with reasonable diligence. The claim of ineffective counsel is not a ground for new trial.
The crime committed by Julio Lug-aw is Homicide, not Murder, due to the absence of qualifying circumstances. Applying the Indeterminate Sentence Law and considering no mitigating or aggravating circumstances, he is sentenced to an indeterminate penalty of ten (10) years and one (1) day of prision mayor maximum as minimum to seventeen (17) years and four (4) months of reclusion temporal medium as maximum, and ordered to indemnify the heirs of Carlos Pal-loy in the amount of Fifty Thousand Pesos (P50,000.00). Rogelio Bannay is ACQUITTED and ordered released immediately.