VOL.

349, JANUARY 513

18, 2001

People vs. Givera

G.R. No. 132159. January 18, 2001. *

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR GIVERA y

GAROTE, accused-appellant.

Witnesses; A few discrepancies and inconsistencies in the testimonies of witnesses

referring to minor details and not in actuality touching upon the central fact of the crime do
not impair the credibility of the witnesses.—

_______________

* SECOND DIVISION.

514

514 SUPREME
COURT REPORTS
ANNOTATED

People vs. Givera

In any event, these discrepancies are minor and insignificant and do not detract from
the substance of her testimony. This Court has time and again said that a few discrepancies
and inconsistencies in the testimonies of witnesses referring to minor details and not in
actuality touching upon the central fact of the crime do not impair the credibility of the
witnesses. Instead of weakening their testimonies, such inconsistencies tend to strengthen
their credibility because they discount the possibility of their being rehearsed testimony.

Criminal Law; Murder; Evidence; From the fact that the victim died and that the accused
and his companions were the last persons seen with the victim before he died, it can be
concluded that they were responsible for the victim’s death.—All things considered, we think
the trial court correctly dismissed accused-appellant’s claim and gave credence to the
testimonies of the prosecution witnesses. From the fact that the victim died and that accused-
appellant and his companions were the last persons seen with the victim before he died, it
can be concluded that they are responsible for the victim’s death.

Same; Same; Conspiracy; In conspiracy, it is not necessary to show that all the
conspirators actually hit and killed the victim—what is important is that all participants
performed specific acts with such closeness and coordination as to unmistakably indicate a
common purpose or design to bring about the death of the victim, the act of each conspirator
in furtherance of the common purpose being in contemplation of law the act of all.— The
evidence thus clearly and convincingly shows a coordinated action by the group in the
execution of the crime. In conspiracy, it is not necessary to show that all the conspirators
actually hit and killed the victim. What is important is that all participants performed
specific acts with such closeness and coordination as to unmistakably indicate a common
purpose or design to bring about the death of the victim. The act of each conspirator in
furtherance of the common purpose is in contemplation of law the act of all. Consonant with
this legal principle, accused-appellant is guilty of the crime of murder as if he himself dealt
the deathblow that sent the victim to his grave.

Same; Same; Same; Aggravating Circumstances; Evident Premeditation; Where

conspiracy is directly established, with proof of the attendant deliberation and selection of the
method, time and means of executing the crime, the existence of evident premeditation can be
appreciated, but in an implied conspiracy, evident premeditation cannot be appreciated in the
absence of proof as to how and when the plan to kill the victim was hatched or what time
elapsed before it was carried out.—However, evident pre-

515

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People vs. Givera

meditation cannot be appreciated in this case. Where conspiracy is directly established,

with proof of the attendant deliberation and selection of the method, time and means of
executing the crime, the existence of evident premeditation can be appreciated. But in an
implied conspiracy, such as in this case, evident premeditation cannot be appreciated in the
absence of proof as to how and when the plan to kill the victim was hatched or what time
elapsed before it was carried out, so that it cannot be determined if the accused had “sufficient
time between its inception and its fulfillment dispassionately to consider and accept the
consequences.” There should be a showing that the accused had the opportunity for reflection
and persisted in effectuating his criminal design which the prosecution failed to establish in
the case at bar.

Same; Same; Aggravating Circumstances; Treachery; For treachery to be appreciated, it

must be shown to be present at the inception of the attack, otherwise, even if present at a
subsequent stage, it cannot be considered.— Treachery is the deliberate and unexpected
attack on the victim, without any warning and without giving him an opportunity to defend
himself or repel the initial assault. For treachery to be appreciated, it must be shown to be
present at the inception of the attack, otherwise, even if present at a subsequent stage, it
cannot be considered. In the instant case, the victim cannot be said to have been totally
oblivious of the impending attack by all the group of accused-appellant. He thus had every
opportunity to escape from the attack. In fact, his daughter Milagros testified that prior to
the stoning incident, the victim had been threatened with harm by accused-appellant the
moment he went out of his house, which is why she stayed beside her father to make sure he
did not go out of the house. Indeed, the victim had been forewarned of the danger posed by
accused-appellant and his group.

Same; Same; Same; Same; The fact that the victim may have been surprised because he
had not expected that he would be outnumbered when he saw two other attackers awaiting
him under the bridge is not sufficient to show that the victim was completely unaware of the
attack that might come from his assailants.—Moreover, by coming out of his house and
running after two of the assailants, the victim showed that he was prepared for the attack by
accused-appellant and his gang and could have been hardly surprised when he was actually
attacked. Treachery must be proven by convincing evidence. The fact that the victim may
have been surprised because he had not expected that he would be outnumbered when he
saw two other attackers waiting for him under the bridge is not sufficient to show that the
victim was completely unaware of the attack that might come from his assailants.

516

516 SUPREME
COURT REPORTS
ANNOTATED

People vs. Givera

Warrants of Arrest; Unless specifically provided in the warrant, the same remains
enforceable until it is executed, recalled or quashed—the tenday period provided in Rule 113,
§4 is only a directive to the officer executing the warrant to make a return to the court.—
Accused-appellant claims that his arrest at the East Avenue Medical Center on May 4, 1996
was made without a warrant. This is not true. He was arrested by virtue of a warrant issued
by the court on April 27, 1995. However, as the records show, the warrant of arrest was
returned unserved by the arresting officer on June 7, 1995 as accused-appellant could not be
found. He was finally found only on May 4, 1996. Now, no alias warrant of arrest is needed
to make the arrest. Unless specifically provided in the warrant, the same remains enforceable
until it is executed, recalled or quashed. The ten-day period provided in Rule 113, §4 is only
a directive to the officer executing the warrant to make a return to the court.

Same; Any objection involving a warrant of arrest or procedure in the acquisition by the
court of jurisdiction over the person of an accused must be made before he enters his plea,
otherwise the objection is deemed waived.—At any rate, accused-appellant must be deemed
to have waived his right to object thereto because he failed to move for the quashal of the
information before the trial court, entered a plea of not guilty and participated in the trial.
As this Court has held, any objection involving a warrant of arrest or procedure in the
acquisition by the court of jurisdiction over the person of an accused must be made before he
enters his plea, otherwise the objection is deemed waived.

Criminal Procedure; Evidence; Witnesses; Right of Confrontation; Hearsay; The

testimony of the medico-legal taken in an earlier case involving three other accused for the
death of the same victim is inadmissible in the other case involving another accused where the
latter did not have the opportunity to cross-examine the said witness.—On the matter of the
admissibility of the testimony of the medico-legal taken in the first case, involving the three
other accused for the death of the same victim, offered in evidence in the case at bar, this
Court must declare the same inadmissible. As correctly contended by the defense, because
they did not have the opportunity to cross-examine Dr. Baltazar, his testimony cannot be
used in evidence against accused-appellant. Indeed, where the opposing party failed to cross-
examine a witness, this Court in several cases held: Oral testimony may be taken into account
only when it is complete, that is, if the witness has been wholly cross-examined by the adverse
party or the right to cross-examine is lost wholly or in part thru the fault of such adverse
party. But when cross-examination is not and cannot be done or

517

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JANUARY 18,
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People vs. Givera

completed due to causes attributable to the party offering the witness, the uncompleted
testimony is thereby rendered incompetent.

Criminal Law; Murder; Damages; Aside from the award of P50,000.00 as indemnity, the
heirs of the victim are entitled to an award of P50,000.00 as moral damages irrespective of
proof thereof.—The award of damages by the trial court in favor of the victim should be
modified. Aside from the award of P50,000.00 as indemnity, the heirs of Eusebio Gardon are
entitled to an award of P50,000.00 as moral damages irrespective of proof thereof.

APPEAL from a decision of the Regional Trial Court of Quezon City, Br. 102.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.

Public Attorney’s Office for accused-appellant.

MENDOZA, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 102, Quezon
1

City finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio

Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with
the accessory penalties prescribed by law, to indemnify the heirs of the deceased in
the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and
to pay the costs of the suit.

The information in this case, dated April 10, 1995, charged as follows:

That on or about the 2nd day of May, 1993, in Quezon City, Philippines, the said accused
[CESAR GIVERA], conspiring together, confederating with EPEFANIO GAYON y
GERALDE and ARTURO GAYON y GERALDE, and mutually helping one another who were
2

charged with the same offense at the Regional Trial Court of Quezon City, Branch 104, and
docketed as Criminal Case No. Q-93-44315, did, then and there, willfully, unlawfully and
feloniously, with intent to kill, taking advantage of supe-

_______________

1 Per Judge Perlita J. Tria Tirona.

 2 Also referred in the Records as Efipanio Gayon.

518

518 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

nor strength, with evident premeditation and treachery, attack, assault, and employ personal
violence upon the person of EUSEBIO GARDON y ARRIVAS, by then and there stabbing
him with a knife hitting him on the different parts of his body, and striking him with a piece
of stone on the head, thereby inflicting upon him serious and mortal wounds which were the
direct and immediate cause of his untimely death, to the damage and prejudice of the heirs
of EUSEBIO GARDON y ARRIVAS.

CONTRARY TO LAW. 3

Accused-appellant pleaded not guilty during his arraignment on 10, 1996, whereupon
he was tried.

Accused-appellant’s companions, namely Epifanio Gayon, Arturo Gayon, and

Maximo Givera, were separately prosecuted and found guilty of murder by the
Regional Trial Court, Branch 104, Quezon City in a decision, dated June 6, 1994, in
Crim. Case No. Q-93-44315. The three were sentenced to suffer the penalty
of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the
heirs of the deceased the sum of P100,000.00 without subsidiary imprisonment in
case of insolvency and to pay the costs of the suit. On appeal to this Court, the decision
of the trial court was affirmed with modification. The dispositive portion of the
decision reads:

WHEREFORE, the judgment appealed from is MODIFIED. We instead find accused-

appellants EPIFANIO GAYON, ARTURO GAYON and MAXIMO GIVERA guilty beyond
reasonable doubt of MURDER committed with grave abuse of superior strength and imposes
upon each of them the penalty of reclusion perpetua with the accessory penalties provided by
law, and ordering them to indemnify the heirs of the deceased Eusebio Gardon in the amount
of P100,000.00. Costs against accused-appellants. 4

For the prosecution, the victim’s daughter Milagros Gardon and his niece Melinda
Delfin were presented as witnesses. On the other hand, only accused-appellant
testified in his defense.

The incident took place at about 4 p.m. on May 2, 1993 at Purok IV, Area 5, Laura
St., Old Balara, in Diliman, Quezon City.
_______________
 3 Rollo, p. 9.

4 People v. Gayon, 269 SCRA 589 (1997).

519

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People vs. Givera

Milagros Gardon testified on

direct examination: 5

Q: Particularly
about 4:00 p.m.,
were you at
your residence
at that time?

A: Yes, sir.

Q: And what were

you doing there
at that time?

A: I was in the
house because I
was watching
my father, sir.

Q: What was your

father doing at
that time?

A: I let him go to
sleep because he
was a little bit
drunk, and I was
watching him so
that he will not
go outside.

Q: Why do you say

you were
 watching him so
that he would
not anymore go
out?

A: Because he was
warned by
[accused-
appellant Cesar
Givera] that if
he goes outside,
he will kill my
father.

Q: At that time and

place while you
were watching
your father,
what else
happened if
any?

....

A: [O]ur house was

being stoned.

Q: Who was
stoning your
house? Could
you tell us who
was throwing
stones to your
house?

....

COURT:

She mentioned
that because her
father was not
coming out of
the house, the
 accused started
stoning the
house.

Q: Who was
stoning your
house?

A: Cesar Givera,
sir.

Q: Was he alone at
that time?

A: They were in a
group, sir, but
he was the only
one stoning the
house. And the
other one, who
was already
arrested, by the
name of Onying
went inside the
house.

Q: You said a
while ago that
there was
somebody with
Cesar who went
to your house,
could you recall
that somebody?

A: Onying
[Epifanio
Gayon], sir.

Q: You said he was

already
“nakakulong”?

A: Yes, sir.
 Q: Now, what
happened after
this person
Cesar and the
other one
Onying went
inside the
house?

_______________

5 TSN, pp. 4-9, 11, Aug. 9, 1996.

520

520 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

A: Onying asked my father

to go out of the house
while Cesar was stoning
the house. Onying led
my father out of the
house, and when they
were already outside,
Cesar was waiting for
them. Then Cesar
scampered away and my
father followed him.
Cesar caused my father
to run after him until
they reached the place
where there was another
person, and that person
stabbed my father.

Q: So how many persons in

all have you seen?
A: They were four in all,
sir.

....

Q: What did these 4

persons do when her
father was with them if
any?

....

A: Cesar was stoning the

house. Then Onying got
my father from the
house. Turing [Arturo
Gayon] told the other
one to stab my father
while the one who
stabbed my father was
waiting under the
bridge.

....

Q: What happened to your

father after you said he
was stabbed or mauled?

A: After he was stabbed,

the person who stabbed
him ran away, sir.

On cross-examination,
Milagros Gardon said:6

Q: Who else were with you

at that time?

A: My brother and sister,

sir.
Q: They were Laura
Gardon and Leonardo
Gardon, correct?

A: Yes, sir.

Q: And your father inside

the house because he
was already resting after
having been from a
drinking spree, correct?

A: Yes, sir.

....

Q: And you were watching

TV at that time, correct?

A: Yes, sir.

Q: And then suddenly you

heard stones being
thrown on the roof of
your house, is that
correct?

A: Yes, sir.

_______________

6 TSN, pp. 12-16, 18-20, 22-24, Aug. 9, 1996.

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People vs. Givera

....

Q: This Onying
[Epifanio
Gayon]
 suddenly
entered your
house, correct?

A: Yes, sir.

Q: He was alone
when he entered
your house,
correct?

A: Yes, sir.

Q: How did he
effect his
entrance in your
house?

A: He went inside
directly, sir.

....

Q: At that time
were you in a
position so as to
see him actually
effect his
entrance
through the
front door?

A: Yes, sir.

Q: Why? Where
were you at that
time?

A: I was in the
sala, sir.

Q: You were in the

sala right next
 to your father,
is that correct?

A: Yes, sir.

Q: And likewise
with your two
other
companions
Laura and
Leonardo, they
were situated
right near to
your father,
correct?

A: Yes, sir.

....

Q: Now, when this

Onying entered
the house, did
he call out the
name of your
father if you can
remember?

A: Yes, sir.

Q: And your
father, did he
give any
response
thereto?

A: Yes, sir.

Q: What was his

response if any?

A: He asked
Onying if he
need anything.
And Onying
 asked him to go
out with him.

....

Q: And your father

stood up and
joined Onying
in going out of
the house?

A: Yes, sir.

....

Q: Then you
together with
your two other
companions got
back to
watching the
television show
is that correct?

A: No, sir.

Q: But you stayed

inside the
house, you and
your two other
companions?

A: No, sir.
522

522 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

Q: Now, thereafter you

heard stones thrown
 again towards your
house, is that correct?

A: Yes, sir.

Q: But just the same, you

did not peep out through
any opening of your
house for safety?

A: We were already outside

when they were stoning
the house.

We followed him
outside.

....

Q: Was Onying also hit by

any of those stones?

A: No, sir. Only my father

and my sister.

Q: What is the name of that

sister of yours who was
also hit?

A: Laura Gardon, sir.

....

Q: And where was Laura

hit?

A: At her left shoulder, sir.

Q: And how many stones if

you know hit Laura?

A: Only one, sir, because

while they were stoning
they were running away.
Q: Who were these people
running away?

A: Onying and Cesar, sir.

Q: Are you saying that

Onying also stoned your
father?

A: No, sir.

Q: Because he was right

next by your father at
that time, that is why he
was not at all stoning
your father, correct?

A: He was boxing him.

....

Q: You saw Cesar Givera

actually stoning towards
the direction of your
father, is that what you
mean?

A: Yes, sir.

....

Q: And your father

followed Cesar Givera,
is that what you mean?

A: Yes, sir.

Q: Likewise, with Onying,

he followed Cesar
Givera?

A: Yes, sir.

Q: And they ran quite a

distance, correct?
A: Yes, sir.

Q: And then you lost sight

of them yes or no?

A: No, sir.
523

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People vs. Givera

Q: But you stayed

in the house,
correct?

A: No, sir. I was

outside the
house. When
the incident
happened, I was
already outside
the house.

Q: But because
you did not
state that you
also followed
your fa- ther as
he ran after
Cesar, does that
mean that you
just stayed in
front of your
house?

A: We stopped
because we
already saw the
place where my
father was
stabbed, that is
 why we did not
follow them.

Q: How far did

they get, using
as reference the
front door of
your house?
How far did
they get as they
ran away?

A: About fifteen
meters away,
sir.

Q: Did they not

turn corners?

A: It is straight,
sir. They only
made a turn
after the
stabbing
incident, sir.

Q: They turned a
corner after
your father was
stabbed?

A: Yes, sir,
because they
ran away, sir.

Q: Only one of the

accused stabbed
your father,
correct?

A: Yes, sir.

Q: And who was

this?
 A: Bingo Givera
[Maximo
Givera], sir.

Q: Did you
actually see
him stab your
father?

A: Yes, sir.

On re-direct examination,
Milagros said:
7

Q: Madam
witness, you
said a while ago
that you saw
while your
father was
stabbed, and the
name of that
person is
Onying who
stabbed your
father?

A: Maximo
Givera, sir.

....

Q: Now, when you

saw Maximo
Givera stab
your father,
where was
Cesar at that
time?

....
 A: He was also at
the same place,
sir.

Q: And the other 3

accused Arturo
Gayon and
Efipanio
Gayon, could
you tell us
where they
were when
Maximo was
stabbing your
father?

A: They were also

at that place,
sir.

_______________

7 TSN (Milagros Gardon), pp. 26-27, Aug. 9, 1996.

524

524 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

Melinda Delfin, niece of the victim, corroborated the testimony of Milagros Gardon.
She said: 8

Q: At about 4:00 p.m. of

May 4, 1993, could you
tell us where you were at
that time?

A: Yes, sir, I was about to

reach the house of
Eusebio Gardon.
Q: What was your purpose in
going there?

A: Eusebio Gardon called

me up because he has just
come from Bicol and he
will give me rice.

Q: You said you were about

to arrive at the residence
of Eusebio Gardon at
4:00 p.m. on May 4,
1993, what did you notice
or obs erve when you
were about to arrived at
that place of his
residence?

A: I saw “Onying” [Epifanio

Gayon] with his hand on
the shoulder of Eusebio
Gardon going out of their
yard. (Nakita ko si
Onying akbay akbay si
Eusebio Gardon palabas
sa bakuran nila.)

....

Q: What else did you notice?

A: When I came out of the

gate I saw Cesar Givera
boxed Eusebio Gardon.

(Paglabas ko ng bakuran
nakita ko si Cesar na
sinalubong ng suntok si
Eusebio Gardon.)

....

Q: What else did you see

aside from the fact that
 you saw Cesar Givera
boxing Eusebio Gardon?

A: Cesar boxed him and also

Onying boxed him, they
both helped each other in
boxing Eusebio Gardon,
and then they back to the
house of Eusebio Gardon
and my uncle followed
them. Not quite far,
Bingo [Maximo Givera]
and Turing [Arturo
Gayon] were there.

....

Q: And what happened when

you said this Bingo was
there?

A: Onying and Cesar gave

fistic blows to Eusebio
Gardon and he was also
stabbed by Bingo, and
they were also kicking
Eusebio Gardon.

Q: Eusebio Gardon was

boxed by Onying and
Cesar Givera?

A: Yes, sir.

_______________

8 TSN (Melinda Delfin), pp. 5-9, 14-15, 18-19, 21-24, Aug. 12, 1996.

525

VOL. 349, 525

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18, 2001
People vs. Givera

Q: And stabbed
by?

A: Bingo, sir.

Q: Actually, how
many persons
were there
when [Eusebio]
Gardon was
stabbed and
being boxed?

A: I saw four of
them, sir.

Q: Would you
made these four
(4)?

A: Turing, Bingo,
Cesar and
Onying.

....

Q: And what
happened to
Eusebio
Gardon, whom
you said was
boxed, mauled
and then
stabbed?

A: He was lying
down under the
bridge for
about thirty
(30) minutes,
and then his
 children
arrived.

....

Q: You said earlier

that you saw
Cesar Givera
and Epifanio
Givera threw
stones towards
the victim’s
house, is that
true?

PROSECUTOR CONCHA:

Excuse me,
Your Honor,
the witness said
she saw that
fellow by the
name of
Onying and
Cesar boxing -
-?

WITNESS:

“Suntok, bato
at sipa.”

ATTY. MASCALAS:

Q: Where did you

see them doing
these acts on
Eusebio?

A: Outside the
premises, sir.

Q: Whose
premises?
A: The premises
of Eusebio
Gardon, sir.

Q: Did you not say

earlier that
Onying came
out with
Eusebio
Gardon from
the latter’s
house?

A: I saw Onying,
“akbay-akbay
niya . . .”

Q: You even saw

Onying
embracing
Eusebio
Gardon,
correct?

A: Yes, sir.

....

Q: Were there
stones being
hurled to
Onying and
Eusebio?

A: Yes, sir.

Q: Did you see

who were
throwing those
stones?

A: It was Cesar,
sir.
 ....

Q: Did you see if

Gardon was hit
by any of these
stones?

A: Yes, sir.
526

526 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

Q: And you also saw

Onying hit by stones,
correct?

A: No, sir.

....

Q: Who boxed your uncle?

A: Cesar, sir.

Q: Are you saying that

Cesar while throwing
stones to your uncle was
so close to him that he
was able to box him?

A: Because they were

advancing towards my
uncle and Onying. They
were going towards
them.

....

Q: And when they were

able to come near, how
 near did Cesar get to
your uncle?

A: Maybe three to four

meters, sir.

Q: That was when Cesar

boxed your uncle?

A: Not yet, sir.

Q: When did Cesar box

your uncle?

A: When they come near to

my uncle.

....

Q: And then Cesar Givera

ran away and your uncle
gave chase?

A: Yes, sir.

Q: And upon reaching the

bridge which is about
fifteen (15) meters away
from the victim’s house,
you saw Bingo stabbed
your uncle?

A: Yes, sir.

Q: There were only—You

said that there were only
four (4) persons in that
place where your uncle
was stabbed and those
persons do not include
Milagros Gardon?

A: No, sir.
Q: Because Milagros
Gardon was still in their
house?

A: She was already outside

their house.

Q: She was outside their

house—although outside
their house shewas still
inside the premises of
their lot?

A: She was still inside, but

she saw the incident.

Q: And that premises of the

victim was about 15
meters away from the
bridge where the alleged
incident took place?

A: Yes, sir.

Q: Were you also with

Milagros Gardon at the
time that stabbing was
done?

A: We were not together

but I was approaching
their house.
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VOL. 349, 527

JANUARY
18, 2001

People vs. Givera

....

Q: So you were
also about 15
 meters away
from the bridge
where the
alleged incident
took place?

A: Yes, sir.

Q: And that is your

distance when
you were
claiming that
you saw this
incident?

A: It was just a
little less.

(Makalampas
lang ng konti).

....

Q: It was Turing
Gayon [Arturo
Gayon] whom
you heard
shout:

“Sige, todasin
na van!”

A: Yes, sir.

Q: And it was
Bingo [Maximo
Givera] whom
you saw
stabbed your
uncle?

A: Yes, sir.

....
 Q: You said that it
was Bingo who
stabbed the
victim Eusebio
Gardon. You
said that you
saw it?

A: Yes, sir.

Q: What was Cesar

Givera doing
when the victim
was stabbed by
Bingo?

A: They were
kicking and
boxing my
uncle.

Q: Givera was
doing that? I
was asking you
about Cesar
Givera?

A: He was boxing
and kicking my
uncle.

Q: Who, Eusebio
Gardon, the
victim?

A: Yes, sir.

To prove the fact and cause of death of Eusebio Gardon, the prosecution presented in
evidence the testimony of medico-legal officer, P/Maj. Florante Baltazar, given in
9

Criminal Case No. Q-93-44315. The testimony shows that the victim sustained one
fatal stab wound possibly caused by a single bladed weapon. In addition, he
10

sustained abrasions in his lower chin, possibly hitting a rough surface, as well as an
incised wound caused by a bladed weapon, on his posterior middle left arm. The stab
11

wound appears
_______________

9 RTC Records, pp. 107-126; Exh. E.

10 RTC Records, pp. 117-118.

11 Id., pp. 113, 115, 120-121.

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528 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

to be fatal because it pierced the pericardium and left ventricle of the heart, which
could be the immediate effect of hemorrhage, shock and eventual death of the
victim. A death certificate evidencing the death of the victim was presented by the
12 13

prosecution.

Accused-appellant testified in his behalf. He was a resident of Laura St., Old

Balara, Quezon City at the time of the incident. He denied any involvement in the
killing of the victim who was his relative by affinity.
14

Accused-appellant claimed that at the time of the incident on May 2, 1993, at

around 4:00 p.m., he was having a drink in his cousin’s house, some 30 meters away
from the victim’s house. On the other hand, Maximo Givera and Arturo Gayon were
in the victim’s house also having drinks. Accused-appellant said he was fetched by
his cousin, Recto Gardon, because Maximo and the victim Eusebio Gardon were
having an altercation. He went to pacify the protagonists and then led the victim to
his house. Without his knowledge, however, Eusebio went back and again engaged
Maximo in a fist fight, as a result of which the victim Eusebio was knocked down.
Accused-appellant said he was going to help the victim get up, but he saw the victim’s
son, Ronilo Gardon, coming with a bolo. He, therefore, ran away and left the victim
behind. He added, that he did not see if his three companions did anything more than
box the victim. Accused-appellant said he learned that the victim had died only two
15

days after the incident. 16

Accused-appellant was arrested on May 4, 1996 at the East Avenue Medical

Center. He stated that the children of the victim implicated him in the killing of
Eusebio Gardon only because he was present when the incident happened. 17

_______________

12 Id., p. 119.

13 Exh. B.
 14 TSN (Cesar Givera), p. 4, Oct. 17, 1996.

15 Id., pp. 5-9; TSN (Cesar Givera), pp. 3-7, 9, Oct. 22, 1996.

16 TSN (Cesar Givera), p. 10, Oct. 17, 1996.

17 Id., pp. 11-13.

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People vs. Givera

On August 29, 1997, the trial court rendered its decision finding accused-appellant
guilty of murder. The dispositive portion of its decision reads: 18

WHEREFORE, judgment is hereby rendered finding the accused Cesar Givera guilty beyond
reasonable doubt of the crime of murder as charged.

The accused is hereby sentenced to reclusion perpetua, with the accessory penalties of the
law, and to indemnify the heirs of the deceased in the amount of P50,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

Hence, this appeal. Accused-appellant’s sole assignment of error is that—

DUE TO THE PRESENCE OF REASONABLE DOUBT, THE COURT A QUO HAS

COMMITTED AN ERROR IN CONVICTING THE ACCUSED-APPELLANT OF THE
CRIME CHARGED.

The appeal has no merit.

First. The prosecution presented evidence which shows beyond reasonable doubt
that accused-appellant and his companions (Epifanio Gayon, Arturo Gayon, and
Maximo Givera), all of whom were convicted of murder in another case, were
responsible for the killing of Eusebio Gardon on May 2, 1993. Milagros Gardon’s
testimony, an excerpt from which is quoted at the beginning of this opinion, is
spontaneous, detailed, and consistent. The defense tried to discredit it through cross-
examination, but, as shown earlier, the defense only succeeded in enabling her to give
further details of her testimony in chief. There are apparent lapses in the testimony
of Milagros, as when she testified that she knew at the very beginning that it was
accused-appellant who was stoning their house when in fact, as she admitted, she
only knew this because the victim said so. Moreover, it may be doubted whether the
victim’s other daughter, Laura, was hit by the stones hurled by accused-appellant as
she came out of their house, since the door of the house was so
_______________

18 Rollo, p. 23.

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530 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

narrow that only one person at a time could pass through it. Nonetheless, a close
reading of the records will show that indeed it was accused-appellant who was stoning
the house because when the witness followed the victim outside, she saw accused-
appellant throwing stones at their house. She then saw accused-appellant hitting the
victim with stones. In the proems, Laura was also hit.

In any event, these discrepancies are minor and insignificant and do not detract
from the substance of her testimony. This Court has time and again said that a few
discrepancies and inconsistencies in the testimonies of witnesses referring to minor
details and not in actuality touching upon the central fact of the crime do not impair
the credibility of the witnesses. Instead of weakening their testimonies, such
inconsistencies tend to strengthen their credibility because they discount the
possibility of their being rehearsed testimony.
19

Thus, according to Milagros Gardon, accused-appellant taunted the victim and

challenged him to come out of the house. After succeeding in drawing the victim out
of his house, accused-appellant and his companions ganged up on him, kicking and
pummeling him and finally stabbing him.

Milagros’ testimony belies accused-appellant’s claim that he was merely trying to

pacify the victim and Maximo Givera and that he ran away because the victim’s son,
armed with a bolo, charged at him (accused-appellant). There was no reason for the
victim’s son to want to attack accused-appellant, if the latter was merely trying to
help the victim.

Nor is it probable that accused-appellant did not see what his companions did to
the victim aside from giving him fist blows and kicks, because according to accused-
appellant, he ran away shortly after they had attacked the victim. As accused-
appellant said he saw the assailants run away, this could only be after they had been
done with their victim.

The defense also tries to discredit the testimony of the other prosecution witness,
Melinda Delfin. It is contended that, contrary
_______________
 19 People v. Barera, 262 SCRA 63 (1996); See People v. Claveria, 221 SCRA 34 (1993).

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VOL. 349, JANUARY 531

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People vs. Givera

to her claim, she was not really present at the incident. For this purpose, it is pointed
out that she failed to give a sworn statement regarding said incident to the police.

The contention has no merit. As Melinda explained, she did not give a statement
to the police because she was told they would call on her later for her statement.
Melinda testified: 20

Q: The police did not get

your statement because
you did not tell them that
you were an eyewitness
and if it is true, correct?

A: No, sir.

Q: You were only asked by

your relatives—You
testified in this case in the
sala of Judge Asuncion
after the children of the
victim asked you to?
Correct?

A: They did not tell me. I

voluntarily testified, sir,
because I saw the
incident.

Q: What do you mean by

saying that you
voluntarily testified? Did
you just come to court
and asked the court to
take you as witness in this
case?
A: No, sir, because in the
police station the police
told me that they will not
take my statement. They
will just “ihahabol na
lang ako.”

Q: Did you not inquire from

them why your statement
will no longer be taken
and what do you mean by
that “ihahabol na lang
ikaw”?

A: I did not ask because I do

not know anything about
that. That was the first
time that incident
happened to my life.

It is noteworthy that both Milagros Gardon and Melinda Delfin knew accused-
appellant and the other assailants, and that in fact some of them are related to the
witnesses. Accused-appellant has not shown that these witnesses were motivated by
ill will against him. As correctly observed by the trial court: 21

[T]he court has no reason to doubt the testimonies of the prosecution witnesses.

_______________

20 TSN, pp. 13-14, Aug. 12, 1996.

21 Rollo, p. 66.

532

532 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

In the first place, accused Cesar Givera has not shown any motive on the part of the
prosecution witnesses to testify as they did against said accused.

Second, accused Cesar Givera and the other accused in this case are all residing within
the vicinity where the crime was committed, and are even related by affinity to the deceased.
There is, therefore, no reason to doubt their identification by the prosecution witnesses.
All things considered, we think the trial court correctly dismissed accused-appellant’s
claim and gave credence to the testimonies of the prosecution witnesses. From the
fact that the victim died and that accused-appellant and his companions were the last
persons seen with the victim before he died, it can be concluded that they are
responsible for the victim’s death.

Second. The allegations of conspiracy in the information have been established.

The victim was at home sleeping after coming from a drinking session, when the
accused-appellant and his companions stoned his house to force him to come out.
When they failed, one of them, Epifanio (Onying) Gayon, went inside the victim’s
house and told him to come out. Disoriented because he was drunk, the victim went
with Onying. Once the victim was outside, accused-appellant pelted him with stones,
while Onying started raining fistic blows on him. Then Onying and accused-appellant
ran away to lure him to go toward the bridge where the other two, Arturo Gayon and
Maximo Givera, were waiting. When the victim reached the place, he was attacked
by the gang. He was kicked and boxed by Onying and when Arturo shouted “Sige
todasin na yan!,” Maximo stabbed the victim.

The evidence thus clearly and convincingly shows a coordinated action by the
group in the execution of the crime. In conspiracy, it is not necessary to show that all
the conspirators actually hit and killed the victim. What is important is that all
participants performed specific acts with such closeness and coordination as to
unmistakably indicate a common purpose or design to bring about the death of the
victim. The act of each conspirator in furtherance of the common purpose is in
contemplation of law the act of all. Consonant with this legal principle, accused-
appellant is guilty of

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VOL. 349, JANUARY 533

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People vs. Givera

the crime of murder as if he himself dealt the deathblow that sent the victim to his
grave. 22

Third. However, evident premeditation cannot be appreciated in this case. Where

conspiracy is directly established, with proof of the attendant deliberation and
selection of the method, time and means of executing the crime, the existence of
evident premeditation can be appreciated. But in an implied conspiracy, such as in
23

this case, evident premeditation cannot be appreciated in the absence of proof as to

how and when the plan to kill the victim was hatched or what time elapsed before it
was carried out, so that it cannot be determined if the accused had “sufficient time
between its inception and its fulfillment dispassionately to consider and accept the
consequences.” There should be a showing that the accused had the opportunity for
reflection and persisted in effectuating his criminal design which the prosecution
failed to establish in the case at bar. 24

Nor can the qualifying circumstance of treachery be taken into account. The trial
court held: 25

. . . [T]reachery will also be deduced from the evidence on record. The deceased was unarmed
when he was stabbed by one Maximo Givera and boxed and kicked by accused Cesar Givera
and two other accused.

. . . From the evidence adduced, accused Givera and Epifanio Gayon taunted and provoked
the deceased by throwing stones at him and then lured him to run after them towards the
bridge where the other accused were lying in wait ready to pounce on the deceased without
risk to themselves as the deceased was then defenseless.

_______________

22 People v. Alib, G.R. No. 130944, Jan. 18, 2000, 322 SCRA 93.

23 People v. Cornejo, 28 Phil. 475 (1914); People v. Larion, 2 Phil. 476 (1903); People v. Maquiraya, 14

Phil. 243 (1909); People v. Camias, L-4617, May 29, 1953; People v. Timbang and Mallari, 74 Phil.
295 (1943).

24People v. Custodio, 97 Phil. 698 (1955); People v. Mendoza and Sinu-ag, 91 Phil. 58 (1952); People v.
Yturriaga, 86 Phil. 534 (1950); People v. Lazada, 70 Phil. 525 (1940); People v. Upao Moro, 101 Phil.
1226 (1957); People v. Sakam, 61 Phil. 27 (1934); People v. Peralta, 25 SCRA 759 (1968); People v.
Pareja, 30 SCRA 693 (1969).

25 Rollo, p. 67.

534

534 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

Treachery is the deliberate and unexpected attack on the victim, without any warning
and without giving him an opportunity to defend himself or repel the initial assault.
For treachery to be appreciated, it must be shown to be present at the inception of
the attack, otherwise, even if present at a subsequent stage, it cannot be
considered. In the instant case, the victim cannot be said to have been totally
26

oblivious of the impending attack by all the group of accused-appellant. He thus had
every opportunity to escape from the attack. In fact, his daughter Milagros testified
that prior to the stoning incident, the victim had been threatened with harm by
accused-appellant the moment he went out of his house, which is why she stayed
beside her father to make sure he did not go out of the house. Indeed, the victim had
been forewarned of the danger posed by accused-appellant and his group.
 Moreover, by coming out of his house and running after two of the assailants, the
victim showed that he was prepared for the attack by accused-appellant and his gang
and could have been hardly surprised when he was actually attacked. Treachery must
be proven by convincing evidence. The fact that the victim may have been surprised
because he had not expected that he would be outnumbered when he saw two other
attackers waiting for him under the bridge is not sufficient to show that the victim
was completely unaware of the attack that might come from his assailants. 27

However, the presence of the qualifying circumstance of abuse of superiority was

correctly appreciated in this case. The victim was unarmed and was clearly
outnumbered by the four assailants, with one of them armed with a knife. 28

Fourth. Accused-appellant claims that his arrest at the East Avenue Medical
Center on May 4, 1996 was made without a warrant. This is not true. He was arrested
by virtue of a warrant issued by the court on April 27, 1995. However, as the records
show, the warrant of arrest was returned unserved by the arresting officer on June
7, 1995 as accused-appellant could not be found. He

_______________

26 People v. Magallanes, 275 SCRA 222 (1997).

27 See People v. Ramiscal, 49 Phil. 103 (1926).

28 See People v. Magnayon, 122 SCRA 23 (1983).

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VOL. 349, JANUARY 535

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People vs. Givera

was finally found only on May 4, 1996. Now, no alias warrant of arrest is needed to
make the arrest. Unless specifically provided in the warrant, the same remains
enforceable until it is executed, recalled or quashed. The ten-day period provided in
Rule 113, §4 is only a directive to the officer executing the warrant to make a return
to the court. 29

At any rate, accused-appellant must be deemed to have waived his right to object
thereto because he failed to move for the quashal of the information before the trial
court, entered a plea of not guilty and participated in the trial. As this Court has
30

held, any objection involving a warrant of arrest or procedure in the acquisition by

the court of jurisdiction over the person of an accused must be made before he enters
his plea, otherwise the objection is deemed waived. 31
 On the matter of the admissibility of the testimony of the medico-legal taken in
the first case, involving the three other accused for the death of the same victim,
offered in evidence in the case at bar, this Court must declare the same inadmissible.
As correctly contended by the defense, because they did not have the opportunity to
cross-examine Dr. Baltazar, his testimony cannot be used in evidence against
accused-appellant. Indeed, where the opposing party failed to cross-examine a
witness, this Court in several cases held: 32

Oral testimony may be taken into account only when it is complete, that is, if the witness has
been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly
or in part thru the fault of such adverse party. But when cross-examination is not and cannot
be done or completed due to causes attributable to Hie party offering the witness, the
uncompleted testimony is thereby rendered incompetent.

_______________

29 2 F.D. REGALADO, REMEDIAL LAW COMPENDIUM 335 (2000).

30 People v. Galleno, 291 SCRA 761 (1998).

31 People v. Cabiles, 284 SCRA 199 (1998).

32 Bachrach Motor Co., Inc. v. CIR, 86 SCRA 27, 32 (1978). See also Ortigas, Jr. v. Lufthansa German

Airlines, 64 SCRA 610 (1975).

536

536 SUPREME COURT

REPORTS
ANNOTATED

People vs. Givera

Still and all, the fact and cause of death of the victim had been sufficiently proved by
the accounts of the two eyewitnesses, corroborated by the offer in evidence of the
death certificate of the victim.

Fifth. The award of damages by the trial court in favor of the victim should be
modified. Aside from the award of P50,000.00 as indemnity, the heirs of Eusebio
Gardon are entitled to an award of P50,000.00 as moral damages irrespective of proof
thereof. 33

WHEREFORE, the decision of the Regional Trial Court, Branch 102, Quezon City
finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon
y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the
accessory penalties prescribed by law is AFFIRMED with the MODIFICATION that,
in addition to the amount of P50,000.00 to be paid as indemnity, accused-appellant is
hereby ordered to pay to the heirs of Eusebio Gardon amount of P50,000.00 as moral
damages, plus the costs of the suit.

SO ORDERED.

Bellosillo (Chairman), Quisumbing, Buena and De Leon, Jr., JJ., concur.

Decision affirmed with modification.

Notes.—As a general rule, courts should not take judicial notice of the evidence
presented in other proceedings, even if these have been tried or are pending in the
same court, or have been heard and are actually pending before the same judge.
(People vs. Kulais, 292 SCRA 551 [1998])

The Court always advises caution in according probative value to the testimony of
an alleged co-conspirator, as the latter is deemed a polluted source. (Santiago vs.
Court of Appeals, 295 SCRA 334 [1998])

——o0o——

_______________

33 People v. Tolentino, 308 SCRA 485 (1999) citing People v. Prades, 293 SCRA 411 (1998).

537