Upon arraignment on 7 March 1977, the accused, then assisted by counsel de officio, entered a plea of not guilty.

I

THE COURT A QUO ERRED IN HOLDING THAT THE EVIDENCE PRESENTED BY THE PROSECUTION IS SUFFICIENT TO SUPPORT THE CONVICTION OF APPELLANT “OF THE CRIME OF MURDER, QUALIFIED BY TREACHERY AND EVIDENT PREMEDITATION COMMITTED DURING THE NIGHTTIME WHICH HE PURPOSELY SOUGHT THE BETTER TO ACCOMPLISH HIS CRIMINAL INTENT”.

II

THE COURT A QUO ERRED IN FINDING APPELLANT GUILTY OF THE CRIME CHARGED AND IN CONVICTING THE APPELLANT.

The operative facts and circumstances surrounding the commission of the crime charged are summarized by the trial court as follows:

EVIDENCE FOR THE PROSECUTION

The evidence in chief for the prosecution is articulated through eight (8) witnesses, namely: Rosalie Zafra, Nenita Tolentino, Dr. Angelo Singian, Alexander Roman, Antonio Villegas, Renato Abaya, Eduardo Sison and Pfc. Florencio Munar. Shorn of its unnecessary details, the said evidence tends to prove the following facts:

The Victim. — The deceased, Magdalena Juliano y Sultan who was nicknamed Maggie, 30 years old and single, was employed as a service attendant at the Coffee Shop of the Philippine Plaza Hotel. She has been working there since the said hotel opened on September 27, 1976. She had for her closest friends among her co-workers, Rosalie Zafra who was the receptionist in the coffee shop, and Nenita Tolentino, another service attendant with whom she boarded in an apartment located at 1827 Tiago Street in Sta. Cruz, Manila. Her friendship with these two, Rosalie Zafra and Nenita Tolentino, was such that she has confided to them her past; that she once lived with the accused, Cipriano Barba, nicknamed Perry, without the benefit of marriage, but that she has separated from him because she has found out that Perry was a married man and with children, and because wherever Perry who was a heavy drinker, got drank, he would maltreat her. She further confided that she was avoiding Perry who was then insisting that they resume their living together.

The death of Maggie. — On the night of February 9, 1977, the two boardmates, Magdalena Juliano and Nenita Tolentino, went home together after their tour of duty ended at about 11:30 o’clock. They actually left the premises of the Philippine Plaza Hotel at about 12:00 o’clock, midnight, in an owner-type jeep with one, Exequiel Yuzon, a suitor to Magdalena and another named Caloy who was driving the jeep. Upon reaching the corner of Isagani and Tiago streets, the two girls alighted and walked home. Exequiel and Caloy then drove away.

The two girls arrived at their apartment at about 12:55 o’clock a.m. Five minutes later, while still on the ground floor thereof, they heard successive knocks on their door, accompanied by a man’s voice who (sic) introduced himself as “JIM”. Nenita and Magdalena refused to open the door as house rules forbade them to accept visitors at that late hour and when they told the caller that they did not know anyone by that name, the insistent caller continued to knock on the door and announced that he was “PERRY”. . . . (The caller peeped through the glass jalousie window, moved the curtain aside through the missing jalousie and was thus recognized by Nenita to be Perry Barba who was then wearing a white polo.) . . . The knocking continued but the girls ignored the same. Nenita then told Magdalena to go upstairs, which the latter did, while she went to the comfort room (at the ground floor). While there Nenita sensed that somebody went downstairs and opened the door which slammed with a loud noise when it closed. (Even while in the comfort room, Nenita could hear Magdalena and Perry quarreling outside.) Getting out of the comfort room, Nenita went upstairs and saw Magdalena’s ring, wrist watch and college ring on the latter’s empty bed. Through the open window she heard Perry and Maggie talking in loud voices and a little later, she heard shouts from Maggie asking for help like “Aray! Aray! Tulungan ninyo ako!” and other words to that effect. Looking out of the window facing the street, she saw Perry and Maggie on the sidewalk just outside the gate leading to the apartment, with Perry (apparently) slapping both sides of Maggie’s face with the latter shouting “Aray! Aray! until her view of them became obstructed by the gate. Then she heard people shouting to the effect that Maggie was stabbed, so she and her other roommates who were awakened by the shouts, ran downstairs and to the street where they saw Maggie sprawled and bloodied just outside the gate. The dying Maggie was brought to the Chinese General Hospital in a jeep where she was pronounced dead on arrival.

The cadaver was autopsied by Dr. Angelo S. Singian, Chief, Medico-Legal Officer of the Western Police district, who reported the following Postmortem Findings as contained in Exhibit “H”.

EXTERNAL FINDINGS:

1) Stab wound of the face piercing the right ala nasi as the point of entry going obliquely backwards, upward and lacerally to the left zygomatic area traversing a path of 5 cm. in length in the subcutaneous tissue.

2) a) Point of Entry measures 1.7 cm. x 0.5 cm.

b) Point of exit measures 1.7 cm. x 0.4 cm.

Stab wound of the face immediately below the left nostril and measuring 1.2 cm. x 0.3 cm. x 1 cm. piercing deep into the bone in a right angle trajectory.

3) Stab wound, neck, right anterior, level of the cricoid cartilage and measuring 3.4 cm. x 0.5 cm. x 9.5 cm. and course is slightly downwards, backwards, and medially cutting the right common carotid artery.

4) Stab wound, thru and thru, proximal 3rd of right arm, lateral as the point of entry going obliquely upwards, slightly forwards and medially, traversing a path of 6 cm. in length in the subcutaneous tissue.

a) Point of entry measures 2.5 cm. x 0.8 cm.

b) Point of exit measures l.7 x 0.8 cm.

5) Penetrating stab wounds of the chest, right level of the 4th intercostal space lateral to the right, midelavicular line and measuring 2 cm. x 0.8 cm. x 11 cm. Course is obliquely backwards and slightly downwards and medially cutting 4th rib and piercing the lower lobe of the right lung.

6) Penetrating stab wound of the chest, left, level of the 4th intercostal space, lateral to the left parasternal line and measuring 2.3 cm. x 0.8 cm. x 10 cm. Course is obliquely backwards and slightly downwards and laterally perforating the diaphragm.

7) Stab wound, left arm, distal 3rd, anterior measuring 2 cm. x 0.7 cm. x 11.5 cm. Course is obliquely upwards, slightly backwards and medially piercing the bicep muscle.

8) Stab wound, thru and thru proximal 3rd of the left forearm, anterior as the point of entry going obliquely downwards, slightly backwards and medially traversing a path of 5 cm. in length piercing through the anterior muscle of the left forearm.

9) Incise wound, right hypothenar surface and measuring 1 cm. x 0.5 cm. involving the subcutaneous tissue.

10) Stab wound, right arm, middle 3rd, lateral and measuring 2.5 cm. x 0.8 cm. x 12 cm. Course is obliquely downwards, forwards and medially.

11) Incise wound, right forearm, distal 3rd, posterior and measuring 4 cm. x 1.3 cm. involving the subcutaneous tissue.

12) Stab wound, left arm, proximal 3rd, lateral and measuring 3 cm. x 1.3 cm. x 11.5. Course is obliquely downwards, forwards and slightly medial piercing the left deltoid muscle.

13) Stab wound, thru and thru middle 3rd, lateral and a little posterior as the point of entry going traversely inwards and slightly upwards, traversing a path of 6 cm. in length piercing the tricep muscle.

a) Point of entry measures 3.5 cm. x 1 cm.

b) Point of exit measures 2.4 x 0.5 cm.

14) Penetrating stab wound of the chest, left midaxillary line, 6th left intercostal space and measuring 3 cm. x 0.7 em. x 11 cm. Course is obliquely downwards, forwards and medially perforating the left dome of the diaphragm with evisceration of the portion of the descending colon.

15) Non-penetrating stab wound of the posterior chest wall, 3 cm. left of the midline, level of the inferior angle of the left scapula and measuring 1.8 cm. x 0.5 cm. x 4 cm. Course is obliquely upwards, slightly forwards and medially piercing the muscle of the left inter scapular area.

16) Non-penetrating stab wound, of the posterior chest wall, 5 cm. x left (sic) of the midline, level of the 12th thoracic vertebra and measuring 2 cm. x 0.5 cm. x 7.5 cm. Course is obliquely upwards slightly forwards and medially and piercing the muscle superficially.

17) Non-penetrating stab wound of the posterior chest wall, right posterior axillary line, level of the inferior angle of the right scapula and measuring 3.5 cm. x 1 cm. x 9 cm. Course is obliquely forwards, upwards and medially and piercing the right scapular muscle.

18) Non-penetrating stab wound of the posterior chest wall, right posterior axillary line, level of the 10th thoracic vertebra and measuring 2 cm. x 11 cm. Course is obliquely downwards, slightly forwards and medially and piercing the muscle superficially.

INTERNAL FINDINGS:

1) Cut right common carotid which is completely severed.

2) Fractured 4th right rib at anterolateral surface.

3) Stabbed wound of the lower lobe of the right lung at the anterior surface.

4) Stabbed wound of the diaphragm at the left anterior and lateral portions.

5) Left hemothorax — 750 cm.

6) Right hemothorax — 400 cm.

CAUSE OF DEATH:

Shock and hemorrhage secondary to multiple (18) stab wounds of the body, face and upper extremities lacerating the right common carotic artery and right lung.

Dr. Singian also issued a death certificate for the deceased Magdalena Juliano (See Exhibit G).

The assailant. — The death of Magdalena Juliano was reported to the Crimes and Persons Section, Investigation Division, of the Western Police District at about 1:00 o’clock a.m., February 10, 1977, by Pfc. Cesar Yanco of the Traffic Division, and Pfc. Florencio Munar was assigned as officer of the case. Through interviews with persons who brought the dying Magdalena to the Chinese General Hospital, particularly, Nenita Tolentino, who was Magdalena’s roommate, Pfc. Munar came to know the name of the suspect: Cipriano D. Barba nicknamed Perry Barba, a Meralco employee. Aside from Nenita, Munar also questioned Eduardo Sison, Alexander Roman and Romy Liongson, who declared that while walking home along Tiago Street, they noticed a man and a woman quarreling near the gate of a house until the woman fell to the ground, with the man bending over her and moving his arm up and down as if boxing her with his fists. The three further told Munar that when they approached the man and the woman, the man ran away and when pursued by one of them, he threatened the pursuer (See Exhibit “I”) with his knife, saying “Huwag kang makialam!” Statements of Nenita Tolentino and Eduardo Sison (See Exhibits “C” and “I”) were taken by Pfc. Munar later during the day. Munar also interviewed Antonio Villegas, barangay chairman who turned over to him a ball pen with the engraved name “PERRY BARBA” which he claimed was given to him by one, Renato Abaya with the information that the latter found the same in the premises of the killing. Proceeding to the scene of the crime at 1827 Tiago St., Pfc. Munar further made inquiries and was able to interview residents in the vicinity like Renato Abaya who found the afore-described ball pen and Antonio Villegas himself.

With the suspect having been identified as Cipriano D. Barba, the police flashed a teletype message to all police stations for his apprehension (See Exhibit “K”). On February 24, 1977, at about 7:00 o’clock, p.m., the suspect, accompanied by one, Atty. Rafael Bueno, presented himself to the offices (sic) of the Homicide Section of the Manila Police where he was identified in a police line-up by Nenita Tolentino as PERRY BARBA, the man who knocked at their apartment door on the early morning hours of February 10, 1977, and with whom the deceased Magdalena Juliano had a quarrel a few minutes later. A picture showing Nenita Tolentino pointing to Perry Barba was taken by the police on the said occasion (See Exhibit “L”).

Sworn statements were taken from Rosalie Zafra (Exhibit “O”), Nenita Tolentino (Exhibit “D”), Alexander Roman (Exhibit “M”), and Renato Abaya (Exhibit “N”).

Motive for the killing. — The motive for the killing of Magdalena Juliano, nicknamed Maggie, is suggested by prosecution witnesses Rosalie Zafra and Nenita Tolentino, her closest friends and co-workers at the Philippine Plaza Hotel, the former being the receptionist in the coffee shop where they worked and the latter being her co-attendant in the same coffee shop as well as her roommate in their boarding house besides (sic). Both Rosalie and Nenita, testified among others on Maggie’s love life with Perry Barba; her living with him without the benefit of marriage; her discovery that he was a married man and with children; her separation from him; how she has been avoiding him; the insistence of Perry that they resume their living together; and the fear which she entertained whenever he is known to be waiting for her to leave the Philippine Plaza Hotel after her tour of duty late in the evening.

Rosalie Zafra also testified about phone calls she received as receptionist from a caller who identified himself as Perry Barba of Meralco who wanted to talk with Maggie, his sweetheart. In several of these calls, Perry was angry because he was told that service attendants are prohibited from answering calls over the telephone. On one occasion, Perry has berated Rosalie for hiding Maggie from him in the following manner: “Putang ina mo, bakit itinatago mo si Maggie!” (You son of a bitch, why are you hiding Maggie!). On another occasion he asked Rosalie to tell Maggie “Bago siya mapakinabangan ng iba, papatayin ko muna siya!” which, loosely translated, means, “Before any one else can have her, I will kill her first.”

Rosalie Zafra testified further about an occasion when, before finishing her tour of duty one night in January, 1977, one of the lady security guards in the employees’ exit and entrance door called on her, saying that a drunken man was outside who wanted to talk to Maggie over the intercom. Rosalie gave permission for Maggie to talk over the intercom and when Maggie was through, she told Rosalie that she was going to sleep in the hotel because she was afraid of Perry who was waiting for her outside. On this occasion, when Rosalie went home at 11:00 o’clock, p.m., and as her bag was being inspected, the lady security guard who conducted the inspection pointed to Perry seated in a taxi cab parked in the parking lot. On her way to her taxi which was waiting for her, she passed by Perry’s taxi and saw the face of the man for the first time.

On the other hand, the accused, relying mainly on his testimony and that of Augusto Carlos, who admitted in open court that he testified after having been requested to do so by the accused’s wife, interposed the defense of alibi. Their testimonies were summed up by the trial court as follows:

EVIDENCE FOR THE DEFENSE

x x x x x xx x x

On February 9, 1977, at about 5:00 o’clock, p.m., the accused and his friend Augusto Carlos, took a taxi cab at corner (sic) T. Alonzo and Claro M. Recto, for the LTB Terminal in Pasay City. They were bound for Nagcarlan, Laguna to visit the parents of the accused. Augusto was without any clothing except those which he had on (and an extra t-shirt). At around 6:00 o’clock, they boarded an LTB bus and arrived at San Pablo City at about 8:30 o’clock. They took a jeepney for Nagcarlan, arriving thereat at about 9:30 o’clock. They spent the night in the house of Perry’s grandmother located in the poblacion and at about 8:00 o’clock the following morning, February 10, 1977, they proceeded to Barrio Kanluran Lasaan where Perry’s parents lived. Said Barrio is about 7 to 8 kilometers away from the poblacion of Nagcarlan, part of which is accessible by motor vehicles and part on foot. They arrived in the barrio at about 11:00 o’clock, a.m.

Augusto stayed in barrio Kanluran Lasaan for four days during which he went to the hinterlands with friends of the accused to hunt. On the fourth day, February 13, 1977, a Sunday, he left for Manila but Perry was left behind to help his parents make copra.

Perry came back to Manila on February 23, 1977 . . . only to be informed by his wife that police authorities were looking for him. Spending the night with his family, he called up his uncle, Atty. Rafael Bueno, on the next day, February 24, 1977, and asked him to verify why he was wanted by the police. When he came to know the cause, he gave himself up at the headquarters of the homicide section of the Manila Police, accompanied by his uncle, Atty. Bueno.

Cipriano D. Barba, nicknamed Perry, further declared that he came to know the deceased. Magdalena Juliano, way back in 1972 who was introduced to him by a co-employee of his at the Meralco offices. Since then, he saw Magdalena going to the Meralco offices every now and then and in the course of time, he came to know that Magdalena was married to a Muslim. In January, 1977, he also came to know that Magdalena was employed in a hotel but did not know the name of the hotel. One day during the same month, as he stepped out of his office at Claro M. Recto Street opposite the Arranque Market, he saw Magdalena and Nenita Tolentino waiting for him. This was the first time that he was meeting Nenita and on that occasion, he talked with them for about 30 minutes at a restaurant where he invited them. This was also the occasion when he last saw Magdalena Juliano.

On rebuttal, the prosecution presented three (3) witnesses, namely, Nenita Tolentino, Pfc. Florencio Munar and Servando Malabute, whose testimonies are summarized by the trial court, thus:

x x x x x xx x x

On the claim of the accused that he never went to the Philippine Plaza Hotel where she and the deceased worked, Nenita declared the same to be untrue as in fact, the accused even fetched her and the deceased from the same hotel once, and brought them in a taxi to the corner of Tiago and Isagani Streets which was near their apartment.

On the claim of the accused that on February 9, 1977, he left for Nagcarlan, Laguna, with the knowledge and permission of his wife and came back to Manila only on February 23, 1977, Pfc. Munar declared the same to be untrue for the reason that when he interviewed his wife, Dr. Neriza Barba, . . . on February 10, 1977, that is, the following morning after the killing, Dr. Barba gave the information that her husband, Cipriano Barba, has not gone home for quite some time and at the time of the interview, she did not know the whereabouts of her husband.

Servando Malabute, a member of the team which investigated the killing of Magdalena Juliano, also debunked the claim of the accused that his trip to Nagcarlan, Laguna was known to his wife for the reason that when said wife, a dentist at the Tondo Puericulture Center, was interviewed at her office, she gave the information that she did not know the whereabouts of her husband and even gave a written authority (See Exhibit “Q”) for the police officers to enter her home located at 1207 Castañas Street. On the strength of said authority, the investigation team went to 1207 Castañas Street and the maid gave them the information that Mr. Barba does not sleep in the house as he is not frequenting the place.

In convicting the appellant of the crime charged, the trial court, after discussing the defense of alibi, concluded:

Furthermore, the cause or reason that moved and induced him to commit the crime has been clearly and sufficiently shown by the evidence adduced by the prosecution. The refusal of the deceased to resume living with him; her acts which tended to avoid him whenever he wanted to see her; the fact that another suitor is after her and who even brought her home immediately before he killed her — all these became the moving power, the impelling and insuperable force which drove him into committing the dastardly act imputed to him in the instant information.

It, however, credited the appellant with the mitigating circumstance of voluntary surrender.

In not giving weight to the defense of alibi, the trial court took into account: (a) the clear and positive identification of the accused by Nenita Tolentino who had seen him at least three (3) times before 9 February 1977 and (b) the lack of sufficient corroboration by persons who could be in a position to convince the court as to its truth and veracity. More concretely, the trial court held that:

It will be readily seen that the thrust of the defense is anchored on alibi, considered as one of the weakest defenses for it is easy of fabrication (sic) (People v. Raagas, 44 SCRA 152; People v. Mori, 55 SCRA 382; People v. Derejo, 56 SCRA 554; and People v. Sapatero, 58 SCRA 450), and which must be looked upon with suspicion (People v Bondoc, 85 Phil. 545). It cannot be sustained in the face of a clear and positive identification of the accused (People v. Mabuyo, 63 SCRA 532; People v. Calli, 65 SCRA 24; People v. Bautista, 65 SCRA 460; People v. Moises, 66 SCRA 151; and People v. Tizon, 66 SCRA 372), as in this case, where the accused, Cipriano Barba y Doria was positively identified by Nenita Tolentino who has seen him at least three times before that fateful night of February 9, 1977, twice at close range: when Magdalena introduced her to him at the premises of the Meralco and invited them to eat in a restaurant, a fact which the accused himself admitted, and when he fetched her and Magdalena from the Philippine Plaza Hotel and conveyed them in a taxi to the corner of Tiago and Isagani Streets.

Moreover, the defense of alibi set up by the accused is not sufficiently corroborated by persons who could be in a position to convince this court as to its truth and veracity. For instance, his grandmother, his parents, his friends who supposedly invited Augusto Carlos to hunt in the hinterlands of Nagcarlan, or his wife. The fact is, his wife, Dr. Neriza Barba, gave the information to the police investigators Munar and Servando Malabute on the day following the killing that she did not know the whereabouts of her husband as he has not gone home for quite sometime.

x x x x x xx x x

In support of the assigned errors, appellant submits the following arguments:

1) The evidence of the prosecution does not establish beyond reasonable doubt that appellant was the assailant. On the one hand, the two eyewitnesses, Alexander Roman and Eduardo Sison, who saw the assailant at a close distance and with a full and unobstructed view when they passed by the assailant, could not assert that the appellant was the assailant. Furthermore, while it is true that Nenita Tolentino pointed to appellant as the assailant, her testimony is unreliable as it contains inconsistencies and betrays contradictions, improbabilities and a lack of persuasiveness.

2) The court should not have considered the testimonies of Rosalie Zafra and Nenita Tolentino as to the alleged past relations of the appellant and the deceased from which an alleged motive for killing was deduced as such are patently hearsay testimonies.

3) The court should not have disregarded the corroborative testimony of Augusto Carlos as there is nothing unusual or ridiculous for one to bring along only one spare T-shirt on a trip to a nearby province for only a few days.

4) The crime proved is homicide and not murder because the evidence does not show the presence of any qualifying circumstance. There is no basis for the finding that the stabbing was “sudden, concerned and unprovoked” as it was established by the prosecution witnesses themselves that a heated quarrel between the assailant and the deceased preceded the stabbing. Moreover, the fact that the place where the stabbing occurred was outside the gate and the deceased was even able to shout for help for several minutes, thereby enabling passers-by to come to her succor and chase the assailant, negates the attendance of treachery.

5) There is no sufficient basis for the court’s finding of evident premeditation. The court relied solely on the alleged telephone conversation of the appellant with Rosalie Zafra where the former supposedly said “Instead of others taking her, I will just kill her.” It must be pointed out that this utterance, even if true, was made only once.

6) Nighttime cannot be considered as a generic aggravating circumstance in the case at bar because the evidence shows that the assailant did not take advantage thereof for purpose of impunity. The assailant first knocked at the door of the boarding house. If the assailant had intended to take advantage of nighttime to facilitate the commission of the crime or to escape, there would have been no reason for him to first knock at the door and later on engage the deceased in a heated argument, thereby attracting the attention of passers-by and other people in the neighborhood.

On rebuttal, Nenita Tolentino, however, confirmed the testimony of the appellant that she met the latter only once, thus:

Q Miss Tolentino, in the testimony of the accused, he, testifying in his own behalf, stated that he knows you but that he only met you once and that was sometime in January 1977, is that true or not?

Nevertheless, also on rebuttal, clarifying this, she categorically declared:

Q Now, he said that he only saw you once and that was in January, 1977, is that not true or not?

ATTY. LEE:

Answered already. She said that is true.

A He met me.

Q Once, and that was only January?

A Yes, sir.

Q How about you, how many times have you seen him?

A Twice.

Q Besides January 1977?

A Yes, sir.

Q And where were these two occasions that you saw him after meeting him in January 1977?

A That was when he went to the Philippine Plaza and fetched my friend.

x x x x x xx x x

Q Who is that friend?

A The deceased.

Q The victim herein?

The foregoing minor inconsistencies neither destroy the witness’ credibility nor cast doubt on her definite and positive identification of the appellant. There is, therefore, no reason to disregard her testimony.

Having settled the matter of appellant’s participation in the killing of Maggie Juliano, We now address the issue of whether or not the killing was attended by the qualifying circumstances of treachery and evident premeditation and the generic aggravating circumstance of nighttime.

Paragraph 16, Article 14 of the Revised Penal Code provides:

There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

In the instant case, the trial court anchors its findings of treachery on the alleged suddenness of the attack on the unarmed Maggie Juliano. The People submits as additional proof thereof the number of wounds — eighteen (18) in all — some of which appellant inflicted on the victim as he continued his attack even as she was already lying on her back.

That the victim sustained eighteen (18) wounds does not by itself prove treachery. They could have been inflicted after an expected frontal attack preceded by what seemed to be, according to witness Roman, a quarrel, by a man who was moved by hate after having been rebuffed in his bid to revive an illicit affair.

We agree, however, with the trial court and the People that the qualifying circumstance of evident premeditation was convincingly established by the prosecution.

As also correctly summarized by the People in its Brief:

Thus, the penalty which may be imposed upon the appellant should be the medium of that prescribed as above-stated, which is reclusion perpetua.