1. CRIMINAL LAW; ATTEMPTED MURDER; ACCUSED NOT SHOWN TO HAVE PERPETRATED ANY OVERT ACT MUST BE ACQUITTED. — We hold that Chavez had nothing to do with the wounding of Sante. That was the sole responsibility of De Leon Chavez did not perpetrate any overt act against Sante. Hence, Chavez should be acquitted of attempted murder.

2. REMEDIAL LAW; EVIDENCE; CONSPIRACY; SHOWN BY COMMUNITY OF DESIGN TO LIQUIDATE VICTIM. — Conspiracy was implied from the circumstance that De Leon and Chavez were together when they ambushed Andon. They had armed themselves and their ambuscade of Andon shows community of design to liquidate him.

3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY PRESENT CASE AT BAR; PENALTY FOR MURDER. — The fact that the assault was sudden and unexpected and that the victim was unarmed shows treachery which absorbs abuse of superiority. The killing of Andon was unquestionably murder. The trial court did not err in imposing the penalty of reclusion perpetua. The trial court credited Chavez with four-fifths of his preventive imprisonment. He should be given full-time credit unless there is proof that he did not abide by the disciplinary rules imposed upon convicted prisoners.

Romeo Chavez appealed from the decision of the Court of First Instance of Rizal, Pasay City Branch 29, (1) finding him and Roberto de Leon guilty of murder, sentencing them to reclusion perpetua and ordering them to pay solidarily the heirs of Dominador Andon damages amounting to P58,898.50 and (2) convicting him and De Leon of attempted murder, sentencing each of them to an indeterminate penalty of one year, six months and twenty-one days of prision correccional as minimum to six years and one day of prision mayor as maximum and to indemnify solidarily Wenceslao Sante in the sum of P3,400. De Leon withdrew his appeal.

The evidence of the prosecution shows that at about eight-thirty in the evening of April 19, 1971 Chavez, De Leon and three other persons named Gaerson Antonio, Jun Taba and Enchong suddenly assaulted Dominador Andon and Wenceslao Sante while the two, together with Carlos Caspe and Amador Yebra, were walking along the street at Pildera II, CAA Compound, Pasay City.chanrobles law library

Sante, 34, who was stabbed by De Leon in the back, jumped into the nearby canal. Andon, 30, was surrounded by the five malefactors. De Leon stabbed Andon in the back while Chavez stabbed him in the chest with a kitchen knife. When Caspe and Yebra tried to intervene, the five malefactors ran away.

Caspe brought Andon to the hospital where he died due to his four stab wounds, three in the back and one on the chest. Sante’s wound was not fatal. It was treated at the hospital. Yebra, a carpenter, knows De Leon and Chavez because he slept with them in Uldarico Alimosa’s house while it was under construction.

Chavez’s defense was an alibi. At the time of the alleged assault he was washing the car of Dometillo Abordo, a task which he allegedly finished at ten o’clock in the evening. He was a live-in-driver of Abordo. He did not take part in the waylaying of Andon and Sante. Abordo and Moises Ventuza, Jr. corroborated his alibi. Ventuza testified that the assailants were Gaerson, Jun Taba and Enchong.

The trial court did not give credence to Chavez’s alibi. His house was located near the scene of the crime although his alleged employer’s residence was in San Andres Bukid. Ventuza was his friend.

Antonio V. Agcaoili, appellant’s counsel de oficio, who submitted a well-written brief, contends that the trial court erred in finding (1) that Chavez’s guilt was established beyond reasonable doubt, (2) that he conspired with De Leon and the other accused and (3) that treachery was a qualifying circumstance.

We hold that Chavez had nothing to do with the wounding of Sante. That was the sole responsibility of De Leon. Chavez did not perpetrate any overt act against Sante. Hence, Chavez, 24, should be acquitted of attempted homicide.chanrobles law library

With respect to the killing of Andon, Sante testified that from the canal he saw Chavez hitting Andon frontally with a knife (7, 16, tsn March 1, 1973. See 4 tsn May 5, 1973). Doctor Alberto M. Reyes testified that Andon had a wound in the chest which penetrated his liver and was fatal.

Counsel de oficio argues that Doctor Reyes testified that the four wounds of Andon were caused by a "single bladed and sharp bladed weapon of the same kind." As explained by the Solicitor General, that does not mean that there was only one assailant. It means that the assailants used the same type of weapon: a bladed weapon. Sante, although in the canal, was not seriously wounded. That was why he saw the persons who stabbed Andon. In fact, after the assault, Sante went home in a tricycle.

Conspiracy was implied from the circumstance that De Leon and Chavez were together when they ambushed Andon. They had armed themselves and their ambuscade of Andon shows community of design to liquidate him. The fact that the assault was sudden and unexpected and that the victim was unarmed shows treachery which absorbs abuse of superiority. The killing of Andon was unquestionably murder. The trial court did not err in imposing the penalty of reclusion perpetua.

WHEREFORE, the trial court’s judgment convicting Chavez as a co-principal in the murder of Andon is affirmed. Its judgment convicting him of attempted murder as to Sante is reversed and set aside and he is acquitted of that charge.chanroblesvirtualawlibrary

The trial court credited Chavez with four-fifths of his preventive imprisonment. He should be given full-time credit unless there is proof that he did not abide by the disciplinary rules imposed upon convicted prisoners. Costs de oficio.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.