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[G.R. No. L-37933. April 15, 1988.]
FISCAL CELSO M. GIMENEZ and FEDERICO B.
MERCADO, petitioners, vs. HON. RAMON
E. NAZARENO, Presiding Judge, Court of First
Instance of Cebu and TEODORO DE LA VEGA,
JR., respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
JURISDICTION; HOW ACQUIRED. In criminal cases,
jurisdiction over the person of the accused is acquired either by
his arrest for voluntary appearance in court.
2. ID.; ID.; ID.; CONTINUES UNTIL THE TERMINATION OF
THE CASE. Jurisdiction once acquired is not lost upon the
instance of parties but continues until the case is terminated.
Where the accused appears at the arraignment and pleads not
guilty to the crime charged, jurisdiction is acquired by the court
over his person and this continues until the termination of the
case, notwithstanding his escape from the custody of the law.
3. ID.; ID.; TRIAL IN ABSENTIA; REQUISITES. A trial in
absentia may be had when the following requisites are present:
(1) that there has been an arraignment; (2) that the accused has
been notified; and (3) that he fails to appear and his failure to do
so is unjustified.
4. ID.; ID.; ID.; COURT DUTY BOUND TO RULE UPON
EVIDENCE ON TERMINATION THEREOF. Upon the
termination of a trial in absentia, the court has the duty to rule
upon the evidence presented in court. The court need not wait for
the time until the accused who escape from custody finally
decides to appear in court to present his evidence and cross-
examine the witnesses against him. To allow the delay of
proceedings for this purpose is to render ineffective the
constitutional provision on trial in absentia.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS;
PRESUMPTION OF INNOCENCE; NOT VIOLATED BY
RENDITION OF JUDGMENT AFTER TRIAL IN ABSENTIA.
The contention of the respondent judge that the right of the
accused to be presumed innocent will be violated if a judgment is
rendered as to him is untenable. He is still presumed innocent. A
judgment of conviction must still be based upon the evidence
presented in court. Such evidence must prove him guilty beyond
reasonable doubt.
6. ID.; ID.; DUE PROCESS; NOT VIOLATED WHERE THE
ACCUSED HAD THE OPPORTUNITY TO BE HEARD.
Also, there can be no violation of due process since the accused
was given the opportunity to be heard.
7. ID.; ID.; RIGHTS TO CROSS-EXAMINE AND TO
PRESENT EVIDENCE IN HIS BEHALF, WAIVED IN
TRIAL IN ABSENTIA. An escapee who has been tried in
absentia retains his rights to cross-examine and to present
evidence on his behalf. By his failure to appear during the trial of
which he had notice, he virtually waived these rights. This Court
has consistently held that the right of the accused to confrontation
and cross-examination of witnesses is a personal right and may be
waived. In the same vein, his right to present evidence on his
behalf, a right given to him for his own benefit and protection,
may be waived by him. An escapee who has been duly tried in
absentia waives his right to present evidence on his own behalf
and to confront and cross-examine witnesses who testified against
him.

D E C I S I O N

GANCAYCO, J p:
Two basic issues are raised for Our resolution in this petition
for certiorari and mandamus. The first is whether or not a court
loses jurisdiction over an accused who after being arraigned,
escapes from the custody of the law. The other issue is whether or
not under Section 19, Article IV of the 1973 Constitution, an
accused who has been duly tried in absentia retains his right to
present evidence on his own behalf and to confront and cross-
examine witnesses who testified against him.
The following facts are not in dispute:
On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula,
Fernando Cargando, Rogelio Baguio and the herein private
respondent Teodoro de la Vega, Jr., were charged with the crime
of murder.
On August 22, 1973 all the above-named accused were arraigned
and each of them pleaded not guilty to the crime charged.
Following the arraignment, the respondent judge, Hon. Ramon
E. Nazareno, set the hearing of the case for September 18, 1973 at
1:00 o'clock in the afternoon. All the accused, including private
respondent, were duly informed of this.
Before the scheduled date of the first hearing the private
respondent escaped from his detention center and on the said date,
failed to appear in court. This prompted the fiscals handling the
case (the petitioners herein) to file a motion with the lower court
to proceed with the hearing of the case against all the accused
praying that private respondent de la Vega, Jr. be tried in
absentia invoking the application of Section 19, Article IV of
the 1973 Constitution which provides:
"SECTION 19. In all criminal prosecutions,
the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to
be informed of the nature and cause of the
accusation against him, to have a speedy,
impartial, and public trial, to meet the
witnesses face to face, and to have
compulsory process to secure the attendance
of witnesses and the production of evidence
in his behalf. However, after arraignment
trial may proceed notwithstanding the
absence of the accused provided that he has
been duly notified and his failure to appear
is unjustified. (Emphasis supplied.) *
Pursuant to the above-written provision, the lower court
proceeded with the trial of the case but nevertheless gave the
private respondent the opportunity to take the witness stand the
moment he shows up in court. 1
After due trial, or on November 6, 1973, the lower court rendered
a decision dismissing the case against the five accused while
holding in abeyance the proceedings against the private
respondent. The dispositive portion is as follows:

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"WHEREFORE, insofar as the accused
Samson Suan, Alex Potot, Rogelio Mula,
Fernando Cargando, and Rogelio Baguio are
concerned, this case is hereby dismissed.
The City Warden of Lapu-Lapu City is
hereby ordered to release these accused if
they are no longer serving sentence of
conviction involving other crimes.
The proceedings in this case against the
accused Teodoro de la Vega, Jr. who has
escaped on August 30, 1973 shall remain
pending, without prejudice on the part of the
said accused to cross-examine the witnesses
for the prosecution and to present his
defense whenever the court acquires back
the jurisdiction over his person." 2
On November 16, 1973 the petitioners filed a Motion for
Reconsideration questioning the above-quoted dispositive portion
on the ground that it will render nugatory the constitutional
provision on "trial in absentia" cited earlier. However, this was
denied by the lower court in an Order dated November 22,
1973. llcd
Hence, this petition.
The respondent court, in its Order denying the Motion for
Reconsideration filed by the herein petitioners, expressed the
opinion that under Section 19, Article IV of the 1973
Constitution, the private respondent, who was tried in
absentia, did not lose his right to cross-examine the witnesses for
the prosecution and present his evidence. 3 The reasoning of the
said court is that under the same provision, all accused should be
presumed innocent. 4 Furthermore, the lower court maintains that
jurisdiction over private respondent de la Vega, Jr. was lost when
he escaped and that his right to cross-examine and present
evidence must not be denied him once jurisdiction over his person
is reacquired. 5
We disagree.
First of all, it is not disputed that the lower court acquired
jurisdiction over the person of the accused-private respondent
when he appeared during the arraignment on August 22, 1973 and
pleaded not guilty to the crime charged. In criminal cases,
jurisdiction over the person of the accused is acquired either by
his arrest or voluntary appearance in court. Such voluntary
appearance is accomplished by appearing for arraignment as what
accused-private respondent did in this case.
But the question is this was that jurisdiction lost when the
accused escaped from the custody of the law and failed to appear
during the trial? We answer this question in the negative. As We
have consistently ruled in several earlier cases, 6 jurisdiction once
acquired is not lost upon the instance of parties but continues until
the case is terminated.
To capsulize the foregoing discussion, suffice it to say that where
the accused appears at the arraignment and pleads not guilty to
the crime charged, jurisdiction is acquired by the court over his
person and this continues until the termination of the case,
notwithstanding his escape from the custody of the law.
Going to the second part of Section 19, Article IV of the 1973
Constitution aforecited a "trial in absentia" may be had when the
following requisites are present: (1) that there has been an
arraignment; (2) that the accused has been notified; and (3) that
he fails to appear and his failure to do so is unjustified.
In this case, all the above conditions were attendant calling for a
trial in absentia. As the facts show, the private respondent was
arraigned on August 22, 1973 and in the said arraignment he
pleaded not guilty. He was also informed of the scheduled
hearings set on September 18 and 19, 1973 and this is evidenced
by his signature on the notice issued by the lower court. 7 It was
also proved by a certified copy of the Police Blotter 8 that private
respondent escaped from his detention center. No explanation for
his failure to appear in court in any of the scheduled hearings was
given. Even the trial court considered his absence unjustified.
The lower court in accordance with the aforestated provisions of
the 1973 Constitution, correctly proceeded with the reception of
the evidence of the prosecution and the other accused in the
absence of private respondent, but it erred when it suspended the
proceedings as to the private respondent and rendered a decision
as to the other accused only.

Upon the termination of a trial in absentia, the court has the duty
to rule upon the evidence presented in court. The court need not
wait for the time until the accused who escaped from custody
finally decides to appear in court to present his evidence and
cross-examine the witnesses against him. To allow the delay of
proceedings for this purpose is to render ineffective the
constitutional provision on trial in absentia. As it has been aptly
explained:
" . . . The Constitutional Convention felt the
need for such a provision as there were quite
a number of reported instances where the
proceedings against a defendant had to be
stayed indefinitely because of his non-
appearance. What the Constitution
guarantees him is a fair trial, not continued
enjoyment of his freedom even if his guilt
could be proved. With the categorical
statement in the fundamental law that his
absence cannot justify a delay provided that
he has been duly notified and his failure to
appear is unjustified, such an abuse could be
remedied. That is the way it should be, for
both society and the offended party have a
legitimate interest in seeing to it that crime
should not go unpunished." 9
The contention of the respondent judge that the right of the
accused to be presumed innocent will be violated if a judgment is
rendered as to him is untenable. He is still presumed innocent. A
judgment of conviction must still be based upon the evidence
presented in court. Such evidence must prove him guilty beyond
reasonable doubt. Also, there can be no violation of due process
since the accused was given the opportunity to be heard.
Nor can it be said that an escapee who has been tried in
absentia retains his rights to cross-examine and to present
evidence on his behalf. By his failure to appear during the trial of
which he had notice, he virtually waived these rights. This Court
has consistently held that the right of the accused to confrontation
and cross-examination of witnesses is a personal right and may be
waived. 10 In the same vein, his right to present evidence on his

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behalf, a right given to him for his own benefit and protection,
may be waived by him. cdll
Finally, at this point, We note that Our pronouncement in this
case is buttressed by the provisions of the 1985 Rules on Criminal
Procedure, particularly Section 1 (c) of Rule 115 which clearly
reflects the intention of the framers of our Constitution, to wit:
" . . . The absence of the accused without
any justifiable cause at the trial on a
particular date of which he had notice shall
be considered a waiver of his right to be
present during that trial. When an accused
under custody had been notified of the date
of the trial and escapes, he shall be deemed
to have waived his right to be present on
said date and on all subsequent trial dates
until custody is regained. . . ."
Accordingly, it is Our considered opinion, and We so hold, that
an escapee who has been duly tried in absentia waives his right to
present evidence on his own behalf and to confront and cross-
examine witnesses who testified against him. 11
WHEREFORE, in view of the foregoing, the judgment of the trial
court in Criminal Case No. 112-L in so far as it suspends the
proceedings against the herein private respondent Teodoro de la
Vega, Jr. is reversed and set aside. The respondent judge is
hereby directed to render judgment upon the innocence or guilt of
the herein private respondent Teodoro de la Vega, Jr. in
accordance with the evidence adduced and the applicable law.
No pronouncement as to costs.
SO ORDERED.


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[G.R. No. L-66469. July 29, 1986.]
PEOPLE OF THE PHILIPPINES and ALFREDO
QUIJANO, petitioners, vs. HON.
BERNARDO SALAS (In his capacity as Presiding
Judge of RTC, Cebu, Branch VIII), MARIO
ABONG, ALFREDO DE LEON, ERIWADWIN
MONTEBON, ROMEO DE GUZMAN, &
EDUARDO MABUHAY, respondents.
Mario Abong was originally charged with homicide in the Court
of First Instance of Cebu but before he could be arraigned the
case was reinvestigated on motion of the prosecution. 1 As a
result of the reinvestigation, an amended information was filed,
with no bail recommended, to which he pleaded not guilty. 2 Trial
commenced, but while it was in progress, the prisoner, taking
advantage of the first information for homicide, succeeded in
deceiving the city court of Cebu into granting him bail and
ordering his release; and so he escaped. 3 The respondent judge,
learning later of the trickery, cancelled the illegal bail bond and
ordered Abong's re-arrest. 4 But he was gone. Nonetheless, the
prosecution moved that the hearing continue in accordance with
the constitutional provision authorizing trial in absentia under
certain circumstances. 5 The respondent judge denied the motion,
however, and suspended all proceedings until the return of the
accused. 6 The order of the trial court is now before us
on certiorari andmandamus. 7
The judge erred. He did not see the woods for the trees. He
mistakenly allowed himself to be tethered by the literal reading of
the rule when he should have viewed it from the broader
perspective of its intendment.
The rule is found in the last sentence of Article IV, Section 19, of
the 1973 Constitution, reading in full as follows:
"Section 19. In all criminal prosecution, the
accused shall be presumed innocent until the
contrary is proved and shall enjoy the right
to be heard by himself and counsel, to be
informed of the nature and cause of the
accusation against him, to have a speedy,
impartial and public trial, to meet the
witnesses face to face, and to have
compulsory process to secure the attendance
of witnesses and the production of evidence
in his behalf. However, after arraignment,
trial may proceed notwithstanding the
absence of the accused provided that he has
been duly notified and his failure to appear
is unjustified."
The purpose of this rule is to speed up the disposition of criminal
cases, trial of which could in the past be indefinitely deferred, and
many times completely abandoned, because of the defendant's
escape. The old case of People v. Avancea 8 required his
presence at certain stages of the trial which as a result, had to be
discontinued as long as the defendant had not reappeared or
remained at large. As his right to be present at these stages was
then held not waivable even by his escape, such escape thus
operated to the fugitive's advantage, and in mockery of the
authorities, insofar as the trial could not proceed as long as he had
not been recaptured.
The doctrine laid down in that case has been modified by Section
19, which now allows trial in absentia, Now, the prisoner cannot
by simply escaping thwart his continued prosecution and possibly
eventual conviction provided only that: a) he has been arraigned;
b) he has been duly notified of the trial; and c) his failure to
appear is unjustified.
The respondent judge was probably still thinking of the old
doctrine when he ruled that trial in absentia of the escapee could
not be held because he could not be duly notified under Section
19. He forgets that the fugitive is now deemed to have waived
such notice precisely because he has escaped, and it is also this
escape that makes his failure to appear at his trial unjustified.
Escape can never be a legal justification. In the past, his escape
"rewarded" him by postponing all further proceedings against him
and in effect ultimately absolving him of the charge he was
facing. Under the present rule, his escape will, legally speaking,
operate to his disadvantage by preventing him from attending his
trial, which will continue even in his absence and most likely
result in his conviction.
The right to be present at one's trial may now be waived except
only at that stage where the prosecution intends to present
witnesses who will identify the accused. 9 Under Section 19, the
defendant's escape will be considered a waiver of this right and
the inability of the court to notify him of the subsequent hearings
will not prevent it from continuing with his trial. He will be
deemed to have received due notice. The same fact of his escape
will make his failure to appear unjustified because he has, by
escaping, placed himself beyond the pale, and protection, of the
law.
Trial in absentia was not allowed in Borja v. Mendoza 10 because
it was held notwithstanding that the accused had not been
previously arraigned. His subsequent conviction was properly set
aside. But in the instant case, since all the requisites are present,
there is absolutely no reason why the respondent judge should
refuse to try the accused, who had already been arraigned at the
time he was released on the illegal bail bond. Abong should be
prepared to bear the consequences of his escape, including
forfeiture of the right to be notified of the subsequent proceedings
and of the right to adduce evidence on his behalf and refute the
evidence of the prosecution, not to mention a possible or even
probable conviction.
We admonish against a too-literal reading of the law as this is apt
to constrict rather than fulfill its purpose and defeat the intention
of its authors. That intention is usually found not in "the letter that
killeth but in the spirit that vivifieth," which is not really that
evanescent or elusive. As judges, we must look beyond and not be
bound by the language of the law, seeking to discover, by our
own lights, the reason and the rhyme for its enactment. That we
may properly apply it according to its ends, we need and must use
not only learning but also vision.
The trial judge is directed to investigate the lawyer who assisted
Mario Abong in securing bail from the city court of Cebu on the
basis of the withdrawn information for homicide and to report to
us the result of his investigation within sixty days.
WHEREFORE, the order of the trial court dated December 22,
1983, denying the motion for the trial in absentia of the accused
is set aside. The respondent judge is directed to continue hearing
the case against the respondent Mario Abong in absentia as long
as he has not reappeared, until it is terminated. No costs.

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SO ORDERED.
Yap (Chairman), Narvasa, Melencio-Herrera and Paras,
JJ., concur.
||| (People v. Salas, G.R. No. L-66469, July 29, 1986)



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[G.R. No. 116511. February 12, 1997.]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. COLOMA TABAG, SARENAS
TABAG, MARCELINO TABAG, FERNANDO
MAGLINTE, JR. ARTEMIO AWOD, LAUREO
AWOD, ROMEO AGUIPO, LEOPOLDO
LEONCIO and ERNESTO
MAWANG, accused. COLOMA TABAG * and
SARENAS TABAG, accused-appellants.
SYLLABUS
1. REMEDIAL LAW; WEIGHT AND SUFFICIENCY;
ACCUSED-APPELLANT'S ROLE AS MASTERMIND OF
THE MASSACRE OR THE PRINCIPAL BY INDUCEMENT;
ESTABLISHED WITH MORAL CERTAINTY BY WEIGHTY
CIRCUMSTANTIAL EVIDENCE; CASE AT BAR. We have
held time and again that conspiracy need not be established by
direct proof. It may be deduced from the mode and manner in
which the offense was perpetrated, or inferred from the acts of the
accused themselves when such acts point to a joint purpose and
design, concerted action, and community of intent. It must,
however be shown to exist as clearly and as convincingly as the
offense itself. Indeed, Sarenas was not at the scene of the
massacre at the time it was committed. His alibi was firmly
established not only through his evidence but also by the
testimony of prosecution witness Pablo Oca. That fact,
notwithstanding, we are convinced that Sarenas was not just a co-
conspirator; he was the mastermind of the massacre or the
principal by inducement. His role was established with moral
certainty by weighty circumstantial evidence. Under Section 4,
Rule 133 of the Rules of Court, circumstantial evidence is
sufficient for conviction if (a) there is more than one
circumstance; (b) the facts from which the inferences are derived
are proven; and (c) the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt. As
jurisprudentially formulated, a judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances
proven constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused, to the exclusion of
all others, as the guilty person, i.e., the circumstances proven
must be consistent with each other, consistent with the hypothesis
that the accused is guilty, and at the same time, inconsistent with
any other hypothesis except that of guilty. In the instant case, the
following circumstances were duly proven: 1. Sarenas was the
leader of the ICHDF team in Barangay Buan, Asuncion, Davao.
2. Before the massacre in question, members of Sarenas' family
were massacred by person whom he believed were members of
the NPA. Sarenas suspected the Magdasals to be members of the
NPA. 3. Prosecution witness Pablo Oca and the other accused
were members of Sarenas' team; as such, they took orders from
Sarenas. On his cross-examination, Sarenas proudly admitted of
his authority to give orders. 4. At about 9:00 p.m. of 11 March
1984, Sarenas' team met at the ICHDF Detachment in Barangay
Buan where Sarenas gave a briefing to his son Marcelino and
brother Coloma. 5. After the briefing, Sarenas instructed the team
to form on patrol in New Visayas and "some distance away."
Marcelino and Coloma led the team. 6. The area of operation of
Sarenas' team is comprised of the barangays of Buan, New
Visayas, and Sunlon, all of Asuncion, Davao. 7. Somewhere
along the way, instead of patrolling their area of operation,
Marcelino proceeded toward Sitio Candiis, Barangay Cabidianan,
Asuncion, Davao. 8. Pablo asked Marcelino where they were
going, but the latter kicked the former in his buttocks and told
him just to keep quiet and to follow. 9. Upon reaching Sitio
Candiis, the team proceeded to the house of the victims.
Marcelino Tabag ordered Pablo Oca to serve as "look-out," while
Marcelino, Coloma Tabag, Fernando Maglinte, Laureo Awod,
Artemio Awod, and Romeo Aguipo fired their garands toward the
victims' house. Then Marcelino, Coloma, Laureo, and Artemio
went up the house and started stabbing Welbino's wife and
children. 10. After the massacre, the team returned to its
detachment in Barangay Buan. Upon arrival thereat, Sarenas
asked his son Marcelino whether it was finished, and the latter
answered in the affirmative. 11. After Marcelino made the report
to his father that "it [was] finished," the members of the team
were gathered. Sarenas forthwith warned them against squealing,
otherwise the squealer would be shot. From the foregoing, it is
clear that Sarenas had the motive to eliminate Welbino Magdasal,
Sr., and his family. The briefing was on a matter which he could
neither openly discuss nor entrust to others who were not of his
confidence. He thus chose for the purpose no less than his son
Marcelino and brother Coloma. Then, as the subsequent
developments showed, the briefing turned to none other than an
instruction to get rid of the Magdasal family or "to finish" them
off. If it were otherwise, Marcelino would not have led the team
to a place outside of its area of operation, or to sitio Candiis of
Barangay Cabidianan, in another municipality, where the house
of the victims was located. Sarenas knew exactly where
Marcelino should lead the team and what it was expected to do.
He even waited at the detachment in Barangay Buan for the
team's return, and upon its return he asked Marcelino whether "it's
finished." When Marcelino assured him that was, Sarenas warned
the other members of the team not to talk about or reveal the
massacre, otherwise the squealer would be killed. None did, not
until nearly a year later. All told, the concordant combination and
cumulative effect of the foregoing circumstances more than
satisfy the requirements of Section 4. Rule 133 of the Rules of
Court.
2. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES;
FULFILLMENT OF A DUTY OR LAWFUL EXERCISE OF A
RIGHT OR OFFICE; NOT APPLICABLE IN CASE AT BAR.
In no way can Sarenas claim the privileges under paragraphs 5
and 6, Article 11 of the Revised Penal Code, for the massacre of
the Magdasals can by no means be considered as done in
fulfillment of a duty or in the lawful exercise of an office or in
obedience to an order issued by a superior for some lawful
purpose. Other than "suspicion." there is no evidence that
Welbino Magdasal, Sr., his wife Wendelyn, and their children
were members of the NPA. And even if they were members of the
NPA, they were entitled to due process of law. On that fateful
night of 11 March 1984, they were peacefully resting in their
humble home expecting for the dawn of another uncertain day.
Clearly, therefore, nothing justified the sudden and unprovoked
attack, at nighttime, on the Magdasals. The massacre was nothing
but a merciless vigilante-style execution.
3. ID.; AGGRAVATING CIRCUMSTANCES; NIGHTTIME
AND BAND; ABSORBED IN TREACHERY. The trial court
likewise erred in appreciating nighttime and band as generic
aggravating circumstances. Under the facts of this case, nighttime
or nocturnity was absorbed in treachery, since it was evidently an
integral part of the peculiar treacherous means and manner
adopted to ensure the execution of the crimes, or that it facilitated

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the treacherous character of the attack. Band or cuadrilla was
likewise absorbed in treachery. LLphil
4. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY
SURRENDER; APPLICABLE IN CASE AT BAR. Aside
from disregarding nighttime and band as aggravating
circumstances, we also give accused Sarenas Tabag the benefit of
the mitigating circumstance of voluntary surrender. For, as
evidenced by a certification issued by Judge Napy Agayan,
Sarenas Tabag voluntarily surrendered himself before the warrant
or his arrest was served on him.
5. ID.; MURDER; QUALIFYING CIRCUMSTANCES;
TREACHERY QUALIFIED THE KILLINGS IN CASE AT
BAR. As to the crime committed, we agree with the trial court
that in killing Welbino Magdasal, Sr., his wife Wendelyn and
their children Welbino, Jr., and Melisa, the accused committed
four separate crimes of murder, which are charged in the
information. There was no challenge thereon on the ground that
the information charges more than one offense. Accordingly, the
accused could be properly convicted of four counts or murder. As
to the circumstance which qualified the killings to murders, we
differ with the view of the trial court. It should be treachery, not
evident premeditation, as ruled by the latter. The evidence for the
prosecution failed to satisfy two of the three requisites of evident
premeditation, viz., (a) the time when Sarenas determined to
commit the crime, (b) a sufficient lapse of time between such
determination and execution to allow him to reflect upon the
consequences of his act. On the other hand, treachery was
established beyond cavil. Accused Marcelino Tabag, Coloma
Tabag, Fernando Maglinte, Laureo Awod, Artemio Awod and
Romeo Aguipo suddenly fired their high-powered firearms
toward Welbino Magdasal, Sr., and thereafter, they went upstairs
and stabbed his wife Wendelyn and his children Welbino, Jr., and
Melisa. The victims, all unarmed, were caught by surprise and
were in no position to offer any defense. There can be no doubt in
any one's mind that the accused employed means, methods, or
forms on the execution of the killings which tended directly and
specially to ensure their execution, without risk to themselves
arising from the defense which the offended party might make.
6. ID.; CIVIL LIABILITIES; THE AWARD OF P400,000.00
"AS MORAL DAMAGES" IS NOT CORRECT; CASE AT
BAR. As to the civil liabilities the award of P400,000.00 "as
moral damages" is not correct. Current case law fixes the
indemnity for death at P50,000.00. Moral damages may also be
recovered in criminal cases under Article 2219 of the Civil Code.
Marciana Magdasal, mother of Welbino Magdasal, Sr., left to the
discretion of the trial court the qualification of her sufferings
caused by the death of her son, daughter-in-law, and two
grandchildren. Since Marciana's husband did not testify as to his
moral suffering, any award for moral damages must be in favor of
Marciana only, and an award of P10,000.00 in each of the four
counts of murder is adequate. Hence, the total indemnity to be
awarded to the heirs of the victims shall be P200,000.00 and the
aggregate moral damages to be awarded to Marciana Magdasal
shall be P40,000.00.

7. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF
THE ACCUSED; RIGHT TO BE PRESENT; ESCAPE OF THE
ACCUSED AFTER ARRAIGNMENT IS DEEMED A WAIVER
THEREOF; CASE AT BAR. The trial court erred in not
proceeding with the case against Laureo Awod and Artemio
Awod after their successful escape on 19 October 1989 while in
preventive detention. They had already been arraigned. Therefore,
pursuant to the last sentence of paragraph (2), Section 14, Article
III of the Constitution, trial against them should continue and
upon its termination, judgment should be rendered against them
notwithstanding their absence unless, of course, both accused
have died and the fact of such death is sufficiently established.
Conformably with our decision in People vs. Salas, their escape
should have been considered a waiver of their right to be present
at their trial and the inability of the court to notify them of the
subsequent hearings did not prevent it from continuing with their
trial. They were to be deemed to have received notice. The same
fact of their escape made their failure to appear unjustified
because they have, by escaping, placed themselves beyond the
pale and protection of the law. This being so, then pursuant
to Gimenez vs. Nazareno, the trial against the fugitives, just like
those of the others, should have been brought to its ultimate
conclusion. Thereafter, the trial court had the duty to rule on the
evidence presented by the prosecution against all the accused and
to render its judgment accordingly. It should not wait for the
fugitives re-appearance or re-arrest. They were deemed to have
waived their right to present evidence on their own behalf and to
confront and cross-examine the witnesses who testified against
them. LexLib
D E C I S I O N
DAVIDE, JR., J p:
At about 10:00 p.m. of 11 March 1984 in Sitio Candiis, Barangay
Cabidianan, New Corella, Davao, the spouses Welbino Magdasal,
Sr., and Wendelyn Repalda Magdasal, together with their children
Welbino, Jr., and Melisa, were massacred in their home allegedly
by members of the Integrated Civilian Home Defense Force
(ICHDF).
On 14 March 1984, Aniceto Magdasal and Marciana Magdasal,
parents of Welbino Magdasal, Sr., reported the incident to the
Municipal Mayor of Asuncion, Davao, and to the police
authorities of New Corella. They executed a joint affidavit on that
date "to request the authorities concerned to follow up said
incident and to conduct proper investigation to the end in view
that justice will prevail." 1 Later, they, together with one Lucrecio
Dagohoy, executed sworn statements before the police authorities
of New Corella. 2 Yet, the identities of the killers remained
unknown.
The first light on the case was shed on 27 February 1985 when
Sergio Doctolero, barangay captain of Buan, Asuncion, Davao,
executed a sworn statement 3 declaring that a member of the
ICHDF, Romeo Guipo, had confessed to him that it was the team
led by Sarenas Tabag that massacred the Magdasals. The real
break came three days before the first anniversary of the massacre
when Ernesto Mawang, a member of that team, gave his sworn
statement 4 naming those involved in the massacre. Not long
after, another member thereof, one Pablo Oca, likewise gave a
sworn statement 5 corroborating Mawang's statements.
On 15 July 1985, an information for murder against accused
Coloma Tabag, Sarenas Tabag, Marcelino Tabag, Fernando
Maglinte, Jr., Artemio Awod, Romeo Aguipo, Leopoldo Leoncio,
and Ernesto Mawang was filed with the Municipal Trial Court

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(MTC) of New Corella, Davao. 6 Accompanying the information
were the above mentioned joint affidavit, sworn statements, and
death certificates of the victims. The information was docketed as
Criminal Case No. 897. 7
After examining, through searching questions, witnesses Pablo
Oca and Sergio Doctolero, Judge Napy Agayan issued a warrant
for the arrest of the accused. No bond was recommended for their
temporary liberty, since they were charged with a capital offense
and the evidence of guilt was strong. 8
On 21 August 1985, accused Sarenas Tabag surrendered to Judge
Agayan. 9 The others could not be arrested; hence, an alias
warrant for their arrest was issued. 10
Sarenas Tabag waived submission of his counter-affidavit and
preliminary investigation. Finding probable cause against him, the
MTC ordered on 28 August 1985 the transmittal of the record of
the case to the Office of the Provincial Fiscal and the commitment
of Sarenas at the Provincial Jail. 11
After appropriate proceedings, an information 12 was filed with
the Regional Trial Court (RTC) of Tagum, Davao, charging the
above named accused with the crime of multiple murder. The
accusatory portion thereof reads as follows:
That on or about March 11, 1984, in the
Municipality of New Corella, Province of Davao,
Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused,
all members of the ICHDF, conspiring,
confederating and mutually helping with Coloma
Tabag, Marcelino Tabag, Fernando Maglinte, Jr.,
Artemio Awod, Laureo Awod, Romeo Aguipo,
Leopoldo Leoncio and Ernesto Mawang, who are
all still at large, with treachery and evident
premeditation and with intent to kill, armed with
garand, armalite and carbine, did then and there
wilfully, unlawfully and feloniously attack, assault
and shoot Welbino Magdasal, Sr., Wendelyn
Magdasal, Welbino Magdasal, Jr. and Melisa
Magdasal, thereby inflicting upon them injuries
which caused their death and further causing
actual, moral and compensatory damages to the
heirs of the victims.
The commission of the foregoing offense is
attended by the aggravating circumstance of
superior strength, nighttime and in band
committed with the aid of armed men.
Contrary to law.
The case was docketed as Criminal Case No. 6364 and raffled to
Branch 2 of the said court.
Since the other accused had remained at large, the court
proceeded with the case against Sarenas Tabag only. At his
arraignment on 11 December 1985, he entered a plea of not
guilty. 13
On 3 March 1987, the prosecution filed a motion to dismiss the
case as against Ernesto Mawang because it found after a thorough
re-assessment of the prosecution's evidence that he "does not only
appear to be less guilty, but he appears not responsible in any way
in the commission of the crime charged. . . [He] has not
participated in the killing of the victims, he has not fired any shot
nor has lunged any bolo to the victims, and his presence in the
crime scene was not voluntary on his part." 14 The court granted
the motion and ordered the immediate release of Mawang from
detention. 15 lexlib
In the meantime, accused Coloma Tabag, Artemio Awod,
Laureo Awod, and Romeo Aguipo were arrested. 16 All of them
entered a plea of not guilty at their arraignment. 17
On 19 October 1989, accused Laureo Awod and Artemio Awod,
together with three others, escaped from the Provincial Jail. Upon
being informed of this incident, 18 the trial court continued the
proceedings as against Sarenas Tabag, Coloma Tabag, and
Romeo Aguipo only. 19
The witnesses presented by the prosecution were Pablo Oca,
Sergio Doctolero, Aniceto Magdasal, Pablo Babagonyo (a
member of the Philippine National Police [PNP]), Marciana
Magdasal, and Enrique Bermejo (Administrative Officer of the
PNP of New Corella, Davao), with Doctolero recalled as rebuttal
witness. On its part, the defense presented Sarenas Tabag, Romeo
Aguipo, Coloma Tabag, and Alfredo Galocino, with Sarenas
Tabag and one Ricardo Agrade called as sur-rebuttal witnesses.
On 7 January 1992, the trial court promulgated its
decision, 20 dated 19 December 1991, the dispositive portion of
which reads:
WHEREFORE, finding the accused Sarenas
Tabag, Coloma Tabag and Romeo Aguipo or
Guipo guilty beyond reasonable doubt of the
crime of four (4) counts of Murder defined and
penalized under Article 248 of the Revised Penal
Code, for the deaths of Welbino Magdasal, Sr.,
Wendelyn Magdasal, Welbino Magdasal, Jr. and
Melisa Magdasal, each of them is sentenced to
suffer four (4) indivisible prison terms
of RECLUSION PERPETUA, to suffer all the
accessory penalties provided for by law and to pay
the costs.
They are further condemned to jointly and
severally indemnify the heirs of their victims in
the total sum of FOUR HUNDRED THOUSAND
(P400,000.00) PESOS as moral damages; SIX
THOUSAND (P6,000.00) as attorney's fees to
Marciana Magdasal, mother of the late Welbino
Magdasal, Sr., and FOUR THOUSAND
(P4,000.00) PESOS as actual and compensatory
damages. 21
The material operative facts established by the evidence for the
prosecution was summarized by the Office of the Solicitor
General in the Brief for the Appellee as follows:
On March 11, 1984, at around 9:00 o'clock in the
evening, Pablo Oca was in the CHDF detachment
in Barangay Buan, Asuncion, Davao. (p. 5, TSN,
September 10, 1986) Also present were
Marcelino Tabag, appellant Sarenas Tabag,
appellant Coloma Tabag, Artemio Awod,
Laureo Awod, Ernesto Mawang, Romeo Guipo
and Fernando Maglinte, all members of the
CHDF. (p. 6, Ibid.) While there, appellant
Sarenas talked to his son, Marcelino Tabag, and
his brother, appellant Coloma Tabag (Ibid.)
Thereafter, Sarenas told the group to go on
patrol. (pp. 7 and 14, Ibid.) Pablo asked

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Marcelino where they were going but the latter
kicked him in the buttocks, and told him to "just
keep quiet and follow." (p. 15, Ibid.)
Marcelino led the group to Barangay Cadi-is,
Asuncion, ** Davao. (p. 7, Ibid.) The group
reached Cadi-is at 11:00 o'clock in the evening
(p. 17, Ibid.). Upon reaching the house of
Welbino Magdasal, the group stood to observe
for a while. (p. 12, TSN, January 18, 1988) Pablo
Oca was posted as lookout five meters away
from the house. (p. 17, Ibid. and p. 18, TSN,
September 10, 1986)
After some time, Fernando Maglinte went up the
house and knocked at the door. (p. 17, Ibid.) The
door was opened and Welbino Magdasal went
out of the house. (p. 17, TSN, January 13, 1988)
Marcelino ordered his companions to open fire at
Welbino. (p. 24, TSN, September 10, 1986) The
children who were inside the house started
shouting. (p. 10, Ibid.) Three men from
Marcelino's group went up the house and stabbed
to death Welbino's wife, Wendelyn, and their two
children, Welbino, Jr., and Melisa. (Ibid.)
After the massacre, Marcelino's group went back
to their detachment at Barangay Buan. (Ibid.)
Upon arrival, appellant Sarenas asked Marcelino,
"Is it finished" to which the latter answered,
"Yes, it is finished." (p. 11, Ibid.) Sarenas
inquired further, "Did you gather the CHDF?"
(Ibid.) Sarenas warned each member of
Marcelino's group to keep quiet about the
incident and threatened to shoot whoever will
squeal. (p. 11, and 16, Ibid.)
As a result of the massacre, the entire family of
Welbino died. Welbino's mouth was shattered
and his intestines protruded out. (p. 9, TSN, April
12, 1989) Wendelyn's left leg and left arm were
twisted. (Ibid.) Welbino, Jr. sustained wounds on
his face and stab wounds in his chest. (Ibid.)
Melisa was likewise wounded and died in the
hospital. (Ibid.) A total of thirty-two empty shells
of M16 spent bullets were recovered from the
scene of the massacre. (p. 4, TSN, January 5,
1990)
This summary is faithfully borne out by the transcripts of the
testimonies of the prosecution witnesses; hence, we adopt it
as our own.
It was further established through the testimony of Pablo Oca that
after talking to his son Marcelino and brother Coloma, Sarenas
called for the other members of the ICHDF and instructed them to
go on patrol. While on the way to New Visayas, Marcelino
separated from the others. The latter, nevertheless, followed him
to Sitio Candiis and then to the house of the victims. 22
Alibi and denial were the defenses interposed by accused Sarenas
Tabag, Coloma Tabag, and Romeo Aguipo.
Sarenas Tabag was the head of the ICHDF team in question. He
was enlisted into it when he was the barangay captain of Buan,
Asuncion, Davao. The team was to serve only in the municipality
of Asuncion; its specific "area of operation" were the barangays
of Buan, New Visayas, and Sunlon, all in Asuncion. All the
members of the team took orders from him. 23 On 11 March up
to 12 March 1984, he was with Cpl. Gafod on a military operation
of the 37th Infantry Battalion in New Visayas and Sunlon,
Asuncion, Davao. Aside from Cpl. Gafod, he was with Laureo
Awod, Artemio Awod, Marcelino Tabag, Ernesto Mawang,
Fernando Maglinte, Jr., Pepito Tabag, and Cortez Tabag. Sarenas
asserted that he could not have conducted a briefing, as some of
his men, particularly Coloma Tabag and Pablo Oca, were in
Mawab. 24 Sarenas likewise denied having asked Marcelino after
the killing, "Human na?" and having threatened those who
patrolled on that fateful night that anybody who squeals would be
shot with a clip of bullets. Sarenas also testified that Pablo Oca
could not have been at the detachment on the night of 11 March
1984, as he was relieved of his post as a member of the ICHDF as
early as 24 December 1983 for having discharged seven clips
from his garand rifle while drunk. 25 This then provided Oca's
motive to testify against him (Sarenas). 26 Sarenas further
declared that members of his family were massacred by suspected
members of the NPA. 27
Coloma Tabag declared that on 11 March 1984, he was in
Mawab, Davao del Norte, panning for gold. He went there on 4
March 1984 with his two children. Mawab is more than twenty
kilometers away from Barangay Buan, Asuncion, Davao del
Norte. 28
Romeo Aguipo testified that at 10:00 p.m. of 11 March 1984, he
was at the copra drier in Barangay Buan "watching the copra." He
said he was there from 9 March to 12 March 1984. The copra
drier was only two kilometers away from the ICHDF
detachment. 29
The trial court gave full faith to the version of the prosecution and
disregarded that of the defense. As to the motive of accused
Sarenas Tabag, the trial court stated:
Fourth: Sarenas Tabag also declared that his
family, sometime before March 11, 1984, was
massacred and his suspects were the members of
the New Peoples' Army.
The Magdasals, who first resided in Buan,
Asuncion, transferred to Sunlon, Asuncion,
which was infested with members of the New
Peoples' Army, according to Sarenas Tabag.
Sunlon being infested with members of the New
Peoples' Army, Welbino Magdasal, Sr. and/or his
family could easily be suspected or he and his
family must be members of the New Peoples'
Army.
Since the family of Sarenas Tabag was a victim
of a massacre by the New Peoples' Army, the
killing of Welbino Magdasal, Sr. and the
members of his family must be the retaliation of
Sarenas Tabag perpetrated through his men who
were CHDF members. 30
In support of its conclusion that four counts of murder were
committed, the trial court rationalized that
the deaths of Welbino Magdasal, Sr., Wendelyn
Magdasal, Welbino Magdasal, Jr. and Melisa
Magdasal resulted not [from] a single act
punishable as complex crime under Article 48 of

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the Revised Penal Code but [from] a series of
acts . . . with the qualifying aggravating
circumstances of either treachery, evident
premeditation, or superior strength having been
taken advantage of. 31
It opted to consider evident premeditation to qualify the
killing to "multiple murder" and considered treachery,
nighttime, and band as generic aggravating circumstances.32
From the judgment of conviction, only accused Sarenas Tabag
and Coloma Tabag filed their notice of appeal. 33
On 8 August 1995, after filing his Appellant's Brief, 34 accused
Coloma Tabag died at the Davao Prison and Penal
Farm. 35 Accordingly, in the resolution of 21 February 1996, we
ordered the dismissal of the case against him.
Only the appeal of accused Sarenas Tabag is left for our
determination.
In his Appellant's Brief, accused Sarenas Tabag contends that the
trial court erred in
1. CONVICTING THE ACCUSED-APPELLANT
SARENAS TABAG NOT BECAUSE OF THE
WEAKNESS OF THE PROSECUTION'S EVIDENCE
BUT BECAUSE OF THE WEAKNESS OF THE
DEFENSE'S EVIDENCE;
2. CONVICTING THE ACCUSED-APPELLANT
SARENAS TABAG AS CONSPIRATOR OR
CONFEDERATE, THE ALLEGATION OF
CONSPIRACY NOT HAVING BEEN ESTABLISHED
BEYOND REASONABLE DOUBT;
3. NOT ACQUITTING ACCUSED-APPELLANT
SARENAS TABAG ON THE GROUND THAT HE IS
EXEMPTED FROM CRIMINAL LIABILITY UNDER
ARTICLE 11, (5) & (6), OF THE REVISED PENAL
CODE.
The first assigned error is without basis. The trial court convicted
him primarily on the basis of the evidence for the prosecution. If
at all the trial court considered the weakness of the evidence of
the defense, it was merely to show that the massive proof of guilt
was not shakened by the "brazen and unmitigated lies of the
accused and their witnesses." 36
Regarding Tabag's second assigned error, we have held time and
again that conspiracy need not be established by direct proof. It
may be deduced from the mode and manner in which the offense
was perpetrated, or inferred from the acts of the accused
themselves when such acts point to a joint purpose and design,
concerted action, and community of intent. 37 It must, however,
be shown to exist as clearly and as convincingly as the offense
itself. 38
Indeed, Sarenas was not at the scene of the massacre at the time it
was committed. His alibi was firmly established not only through
his evidence but also by the testimony of prosecution witness
Pablo Oca. That fact, notwithstanding, we are convinced that
Sarenas was not just a co-conspirator; he was the mastermind of
the massacre or the principal by inducement. His role was
established with moral certainty by weighty circumstantial
evidence.
Under Section 4, Rule 133 of the Rules of Court, circumstantial
evidence is sufficient for conviction if (a) there is more than one
circumstance; (b) the facts from which the inferences are derived
are proven; and (c) the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt. As
jurisprudentially formulated, a judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances
proven constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused, to the exclusion of
all others, as the guilty person, i.e., the circumstances proven
must be consistent with each other, consistent with the hypothesis
that the accused is guilty, and at the same time, inconsistent with
any other hypothesis except that of guilty. 39
In the instant case, the following circumstances were duly proven:
1. Sarenas was the leader of the ICHDF team in
Barangay Buan, Asuncion, Davao.
2. Before the massacre in question, members of
Sarenas' family were massacred by persons
whom he believed were members of the NPA.
Sarenas suspected the Magdasals to be
members of the NPA. 40
3. Prosecution witness Pablo Oca and the other
accused were members of Sarenas' team; as
such, they took orders from Sarenas. On his
cross-examination, Sarenas proudly admitted
of his authority to give orders. 41
4. At about 9:00 p.m. of 11 March 1984, Sarenas'
team met at the ICHDF Detachment in
Barangay Buan where Sarenas gave a briefing
to his son Marcelino and brother Coloma.
5. After the briefing, Sarenas instructed the team to
go on patrol in New Visayas and "some
distance away." Marcelino and Coloma led the
team.
6. The area of operation of Sarenas' team is
comprised of the barangays of Buan, New
Visayas, and Sunlon, all of Asuncion, Davao.
7. Somewhere along the way, instead of patrolling
their area of operation, Marcelino proceeded
toward Sitio Candiis, Barangay Cabidianan,
Asuncion, Davao.
8. Pablo asked Marcelino where they were going,
but the latter kicked the former on his buttocks
and told him just to keep quiet and to follow.
9. Upon reaching Sitio Candiis, the team proceeded
to the house of the victims. Marcelino Tabag
ordered Pablo Oca to serve as "look-out,"
while Marcelino, Coloma Tabag, Fernando
Maglinte, Laureo Awod, Artemio Awod, and
Romeo Aguipo fired their garands toward the
victims' house. Then Marcelino, Coloma,
Laureo, and Artemio went up the house and
started stabbing Welbino's wife and
children. 42
10. After the massacre, the team returned to its
detachment in Barangay Buan. Upon arrival
thereat, Sarenas asked his son Marcelino

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whether it was finished, and the latter
answered in the affirmative. 43
11. After Marcelino made the report to his father
that "it [was] finished," the members of the
team were gathered. Sarenas forthwith warned
them against squealing, otherwise the squealer
would be shot. 44
From the foregoing, it is clear that Sarenas had the motive to
eliminate Welbino Magdasal, Sr., and his family. The briefing
was on a matter which he could neither openly discuss nor entrust
to others who were not of his confidence. He thus chose for the
purpose no less than his son Marcelino and brother Coloma.
Then, as the subsequent developments showed, the briefing
turned to none other than an instruction to get rid of the Magdasal
family or "to finish" them off. If it were otherwise, Marcelino
would not have led the team to a place outside of its area of
operation, or to Sitio Candiis of Barangay Cabidianan, in another
municipality, where the house of the victims was located. Sarenas
knew exactly where Marcelino should lead the team and what it
was expected to do. He even waited at the detachment in
Barangay Buan for the team's return, and upon its return he asked
Marcelino whether "it's finished." When Marcelino assured him
that it was, Sarenas warned the other members of the team not to
talk about or reveal the massacre, otherwise the squealer would be
killed. None did, not until nearly a year later.
All told, the concordant combination and cumulative effect 45 of
the foregoing circumstances more than satisfy the requirements of
Section 4, Rule 133 of the Rules of Court.
In his third assigned error, accused Sarenas Tabag
invokes paragraphs 5 and 6, Article 11 of the Revised Penal
Code, which provide for justifying circumstances. 46 He contends
that being a member of the ICHDF involved in the battle against
insurgency, he was in the performance of an official duty or
function duly authorized by law 47 and that he is, therefore,
exempt from criminal liability.
This assigned error is not predicated on a hypothesis that even
granting arguendo that he was a co-conspirator with the other
accused in the massacre of the Magdasals he would still be
"exempt" from any criminal liability because he was in the
performance of an official duty or function duly authorized by
law. Not being so, he thus admits that he was a co-conspirator.
The slip may be showing much, or that the conscience has
unwittingly told the truth. Yet, we shall not put Sarenas on a bind
or be too harsh to him for the imprecise formulation of this
assigned error. cdrep
In no way can Sarenas claim the privileges under paragraphs 5
and 6, Article 11 of the Revised Penal Code, for the massacre of
the Magdasals can by no means be considered as done in the
fulfillment of a duty or in the lawful exercise of an office or in
obedience to an order issued by a superior for some lawful
purpose. Other than "suspicion," there is no evidence that
Welbino Magdasal, Sr., his wife Wendelyn, and their children
were members of the NPA. And even if they were members of the
NPA, they were entitled to due process of law. On that fateful
night of 11 March 1984, they were peacefully resting in their
humble home expecting for the dawn of another uncertain day.
Clearly, therefore, nothing justified the sudden and unprovoked
attack, at nighttime, on the Magdasals. The massacre was nothing
but a merciless vigilante-style execution.
As to the crime committed, we agree with the trial court that in
killing Welbino Magdasal, Sr., his wife Wendelyn, and their
children Welbino, Jr., and Melisa, the accused committed four
separate crimes of murder, which are charged in the information.
There was no challenge thereon on the ground that the
information charges more than one offense. 48 Accordingly, the
accused could be properly convicted of four counts of murder.
As to the circumstance which qualified the killings to murders,
we differ with the view of the trial court. It should be
treachery, 49 not evident premeditation, 50 as ruled by the latter.
The evidence for the prosecution failed to satisfy two of the three
requisites of evident premeditation, viz., (a) the time when
Sarenas determined to commit the crime, (b) a sufficient lapse of
time between such determination and execution to allow him to
reflect upon the consequences of his act. 51 On the other hand,
treachery was established beyond cavil. Accused Marcelino
Tabag, Coloma Tabag, Fernando Maglinte, Laureo Awod,
Artemio Awod, and Romeo Aguipo suddenly fired their high-
powered firearms toward Welbino Magdasal, Sr., and thereafter,
they went upstairs and stabbed his wife Wendelyn and his
children Welbino, Jr., and Melisa. The victims, all unarmed, were
caught by surprise and were in no position to offer any defense.
There can be no doubt in any one's mind that the accused
employed means, methods, or forms in the execution of the
killings which tended directly and specially to ensure their
execution, without risk to themselves arising from the defense
which the offended party might make. 52
The trial court likewise erred in appreciating nighttime and band
as generic aggravating circumstances. Under the facts of this case,
nighttime or nocturnity was absorbed in treachery, since it was
evidently an integral part of the peculiar treacherous means and
manner adopted to ensure the execution of the crimes, or that it
facilitated the treacherous character of the attack. 53 Band
or cuadrilla was likewise absorbed in treachery. 54
Aside from disregarding nighttime and band as aggravating
circumstances, we also give accused Sarenas Tabag the benefit of
the mitigating circumstance of voluntary surrender. For, as
evidenced by a certification issued by Judge Napy Agayan,
Sarenas Tabag voluntarily surrendered himself before the warrant
for his arrest was served on him.
The penalty for murder at the time the accused committed the
four separate crimes of murder was reclusion temporal in its
maximum period to death. There being one mitigating
circumstance without any aggravating circumstance to offset it,
and applying the Indeterminate Sentence Law, the penalty
imposable in each case is prision mayor in its maximum period
to reclusion temporal in its medium period, as minimum,
to reclusion temporal in its maximum period, as maximum.
As to the civil liabilities, the award of P400,000.00 "as moral
damages" is not correct. Current case law fixes the indemnity for
death at P50,000.00. Moral damages may also be recovered in
criminal cases under Article 2219 of the Civil Code. Marciana
Magdasal, mother of Welbino Magdasal, Sr., left to the discretion
of the trial court the quantification of her sufferings caused by the
death of her son, daughter-in-law, and two grandchildren. Since
Marciana's husband did not testify as to his moral suffering, any
award for moral damages must be in favor of Marciana only, and
an award of P10,000.00 in each of the four counts of murder is
adequate. Hence, the total indemnity to be awarded to the heirs of
the victims shall be P200,000.00, and the aggregate moral

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damages to be awarded to Marciana Magdasal shall be
P40,000.00.
Finally, the trial court also erred in not proceeding with the case
against Laureo Awod and Artemio Awod after their successful
escape on 19 October 1989 while in preventive detention. They
had already been arraigned. Therefore, pursuant to the last
sentence of paragraph (2), Section 14, Article III of the
Constitution, 55 trial against them should continue and upon its
termination, judgment should be rendered against them
notwithstanding their absence unless, of course, both accused
have died and the fact of such death is sufficiently established.
Conformably with our decision in People v. Salas, 56 their escape
should have been considered a waiver of their right to be present
at their trial, and the inability of the court to notify them of the
subsequent hearings did not prevent it from continuing with their
trial. They were to be deemed to have received notice. The same
fact of their escape made their failure to appear unjustified
because they have, by escaping, placed themselves beyond the
pale and protection of the law. This being so, then pursuant
to Gimenez v. Nazareno, 57 the trial against the fugitives, just like
those of the others, should have been brought to its ultimate
conclusion. Thereafter, the trial court had the duty to rule on the
evidence presented by the prosecution against all the accused and
to render its judgment accordingly. It should not wait for the
fugitives' re-appearance or re-arrest. They were deemed to have
waived their right to present evidence on their own behalf and to
confront and cross-examine the witnesses who testified against
them.
It is obvious that the trial court forgot our rulings
in Salas and Nazareno. We thus take this opportunity to admonish
trial judges to abandon any cavalier stance against accused who
escaped after arraignment, thereby allowing the latter to make a
mockery of our laws and the judicial process. Judges must always
keep in mind Salas and Nazareno and apply without hesitation
the principles therein laid down, otherwise they would court
disciplinary action.
WHEREFORE, the appealed decision of Branch 2 of the
Regional Trial Court of Tagum, Davao, in Criminal Case No.
6364 is AFFIRMED, with the modification (1) sentencing
accused-appellant SARENAS TABAG in each of the four crimes
to an indeterminate penalty of Twelve (12) years and One (1) day
of reclusion temporal, as minimum, to Seventeen (17) years, Four
(4) months, and One (1) day of reclusion temporal, as maximum;
and (2) deleting the award of P400,000.00 as moral damages and
awarding, in lieu thereof, (a) P200,000.00 as indemnity for the
deaths of Welbino Magdasal, Sr., Wendelyn Repalda Magdasal,
Welbino Magdasal, Jr., and Melisa Magdasal, payable to the heirs
of the victims; and (b) P40,000.00 as moral damages, payable to
Marciana Magdasal.

The Resolution of 21 February 1996 dismissing the case as
against accused Coloma Tabag because of his death is hereby
reiterated.
The trial court is ordered to continue with the proceedings in
Criminal Case No. 6364 as against accused Laureo Awod and
Artemio Awod if they are still alive, in accordance with the
principles laid down in People v. Salas and Gimenez v. Nazareno.
Costs against accused-appellant Sarenas Tabag.
SO ORDERED.
Narvasa, C .J ., Melo, Francisco and Panganiban, JJ ., concur.
||| (People v. Tabag, G.R. No. 116511, February 12, 1997)