FIRST DIVISION

[G.R. No. 250043. December 2, 2020.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEX

NIDERA y SINGZON, accused-appellant.

NOTICE

Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution
dated December 2, 2020 which reads as follows:
"G.R. No. 250043 (People of the Philippines, Plaintiff-Appellee, v.
Alex Nidera y Singzon, Accused-Appellant). — In this appeal, accused-
appellant assails the Decision dated 17 December 2018 1 promulgated by
the Court of Appeals (CA) in CA-G.R. CEB-CR HC No. 02314, which affirmed
the ruling of the Regional Trial Court (RTC) finding accused-appellant guilty
of the murder of Jerson Delos Santos (Jerson).
Antecedents
Accused-appellant was charged with murder under Article 248 of the
Revised Penal Code (RPC) in an Information stating:
That on or about the 5th day of June 2009 in the Municipality of
Capoocan, Province of Leyte, Philippines and within the jurisdiction of
the Honorable Court, the said accused, with intent to kill, armed with
a stone and bladed weapon, with treachery and evident
premeditation did then and there willfully, unlawfully and feloniously
attack, assault, hack and stab to death Jerson Delos Santos inflicting
upon said Jerson Delos Santos fatal wounds which cause (sic) his
direct death.
CONTRARY TO LAW. 2
Trial on the merits ensued after accused-appellant entered a plea of
"not guilty." 3
The factual milieu of the case, according to the version of the
prosecution, was quoted by the CA in the following manner:
The first witness was SPO3 Gary Zaldy Ligutan [who] testified in
this wise: On June 6, 2009 he was assigned at the Capoocan Municipal
Police Office. On that day, and while on duty, Benjamin Delos
Santo[s] and Ronald Brazil arrived and reported a stabbing incident
which transpired at 8:30 o'clock that morning. He, SPO2 Arturo
Micmic, PO2 Rodolfo Mercolita and PO2 Charlie Nartea, accompanied
by their confidential agent proceeded to the house of Alex Nidera in
order to arrest him. When they arrived at the house of the latter and
after calling his name, Alex Nidera peacefully surrendered himself to
them. Alex Nidera also turned over to SPO2 Arturo Micmic a kitchen
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 knife. They then returned to their station and upon arrival thereat, he
turned over the accused and the bladed weapon to the investigator.
In connection with this case, he and his fellow responding officers
executed a joint affidavit of arrest.
The second witness was SPO1 Arturo Micmic whose testimony
could be summarized thus: He is a policeman who was assigned at
the Capoocan Municipal Police Station starting in the year 1999. He
was about to start his duty at the said station on June 6, 2009 when
they received a report about a stabbing incident in which the suspect
was Alex Nidera. He and three other police officers on duty,
accompanied by one Benjamin Delos Santos proceeded to the house
of Alex Nidera in order to arrest him. When they arrived at the house
of the latter and after calling his name, Alex Nidera surrendered
himself to them. When he asked Alex Nidera where was the knife
used in the incident, the latter returned to his house and when he
came back, he carried a kitchen knife and turned over to them. They
returned to their station and upon arrival thereat, he turned over the
accused and the bladed weapon to their investigator. In connection
with his case, he and his fellow responding officers executed an
affidavit. However, he has no knowledge about the stabbing incident.
Benjamin Delos Santos, while mentioned in their affidavit, has not
executed any affidavit in connection with the case. He has not placed
any distinguishing mark on the knife surrendered by the accused to
them.
The third witness was SPO2 Enrique Delgado whose testimony
was dispensed with after the defense stipulated with the prosecution
about the gist of his testimony which is to identify the entries in the
police blotter logbook.
The fourth witness to be presented was Dr. Bibiana O.
Cardente. However, her testimony was dispensed [with] after the
parties stipulated with the prosecution regarding the purposes for
which her testimony was being offered.
The fifth witness was Mr. Ervin Flores, who was presented to
give an eyewitness account. He recalls that at 8:45 o'clock in the
evening of June 5, 2009, he was in the company of his kuya Jerson
and kuya Edmar walking the length of the National Highway after
whiling away the time at the Carnival Fair in Poblacion, Capoocan,
Leyte. Jerson placed both his arms on their shoulders while they were
walking. Suddenly, a stone coming from behind them hit Jerson,
causing him to fall face down to the ground. They also stumbled to
the ground. While his kuya Jerson was still slumped in the ground,
Alex Nidera stabbed Jerson using a small bolo, hitting the left side of
the body. When Jerson turned around, he was stabbed again and was
hit at the abdominal part of his body. Jerson fell to the ground on his
back. Alex Nidera delivered more blows and then mounted himself on
top of Jerson and tried to slash the neck of Jerson. When Jerson was no
longer moving, Alex Nidera stood up and casually walked away. He
has known Alex Nidera prior to the incident.
On cross-examination, he admitted that his kuya Jerson was
already tipsy when the latter urged him and his kuya Edmar to go
home. It was while they were walking along the National Highway in
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 Brgy. Buti, Capoocan, Leyte when somebody from behind hit his kuya
Jerson with a stone, hitting his kuya Jerson on the left side of his head.
He then ran away. From where he was, [he] saw that many persons
surrounded Jerson while the latter was being stabbed by Alex Nidera.
The latter however did not harm him even if he was just some three
meters away. His kuya Jerson died trying to defend himself from the
blows of Alex Nidera.
The last witness to testify was Mrs. Delia Delos Santos.
However, her testimony was dispensed with after the defense
stipulated with the prosecution regarding the amount of actual
damages incurred for the [embalment], wake and interment. 4
Accused-appellant did not take the stand and the testimonies of SPO4
Gary Zaldy Ligutan and SPO2 Enrique Delgado were dispensed with after the
parties stipulated on the gist of their supposed statements, which centered
on the fact of accused-appellant's surrender as reflected in the police blotter.
5

Ruling of the RTC

The RTC rendered judgment on 31 March 2016 convicting accused-
appellant for murder, to wit:
WHEREFORE, premises well considered, judgment is hereby
rendered, finding the accused ALEX NIDERA y Singzon GUILTY
beyond reasonable doubt of Murder, qualified with Treachery.
Accordingly, the said accused is also ordered to indemnify the Heirs
of Jerson Delos Santos the amount of Php75,000.00 as civil
indemnity; Php50,000.00 for moral damages; Php30,000.00 for
exemplary damages and Php30,000.00 for actual damages.
SO ORDERED. 6

The trial court gave credence to the testimony of the prosecution

witnesses as corroborated by the medico legal report on the victim. The
eyewitness was able to squarely identify accused-appellant as the
perpetrator of the crime. It also found the presence of the qualifying
circumstance of treachery when accused-appellant stabbed the victim from
behind after the latter fell down from the impact of the stone thrown at him.
7

Ruling of the CA
On 17 December 2018, the CA promulgated the assailed decision
affirming accused-appellant's conviction, viz.:
ACCORDINGLY, the assailed Judgment dated 31 March 2016
rendered by the Regional Trial Court, Branch 36 of Carigara, Leyte in
Criminal Case No. 5103 is hereby AFFIRMED with MODIFICATION that
accused-appellant is sentenced to suffer the penalty of reclusion
perpetua, without eligibility for parole; and to pay the heirs of the
victim, Jerson Delos Santos, the amounts of P75,000.00 as civil
indemnity, P75,000.00 by way of moral damages, P75,000.00 as
exemplary damages and [P]50,000.00 as temperate damages; all
with interest at the legal rate of six percent (6%) per annum this date
until fully paid.

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 SO ORDERED. 8

As ruled by the CA, all the elements of murder were established by the
prosecution with moral certainty. It was accused-appellant who killed and
stabbed the victim, and the killing was attended by treachery. The
information against accused-appellant was also sufficiently worded for the
proper appreciation of the said qualifying circumstance. In any case,
accused-appellant failed to timely raise this issue prior to arraignment.
Lastly, the CA affirmed the RTC's refusal to consider voluntary surrender as a
mitigating circumstance. 9
Issues
The Court is now urged to determine whether accused-appellant's
conviction for murder was proven beyond reasonable doubt.
Accused-appellant insists on the insufficiency of the allegation of
treachery in the information against him. He argues there is an actual need
for the State to specifically aver the factual circumstances or particular acts
constituting the criminal conduct that qualifies or aggravates his liability for
the crime. The element of treachery was also not proven as this was simply
deduced from presumptions. Lastly, the courts erred when they failed to
consider the mitigating circumstance of voluntary surrender. 10
Ruling of the Court
The appeal is devoid of merit.
At the outset, the Court notes that accused-appellant does not
question the consistent finding of him killing Jerson. The purpose of his
appeal, as clearly stated in his prayer, 11 is to downgrade his conviction from
murder to homicide, and to have the mitigating circumstance of voluntary
surrender be appreciated in his favor. Hence, the Court's ruling will focus on
these issues.
The Information against accused-
appellant was defective. Nonetheless,
accused-appellant has already waived
his right to question said defect.
The Court, in the recent case of People v. Solar, 12 had definitively
declared "it is insufficient for prosecutors to indicate in an Information that
the act supposedly committed by the accused was done "with treachery" or
"with abuse of superior strength" or "with evident premeditation" without
specifically describing the acts done by the accused that made any or all of
such circumstances present."
In the present case, the Information against accused-appellant failed to
state the ultimate facts illustrating the aggravating circumstances attendant
to the crime as it merely used the general term "with treachery and evident
premeditation." Indeed, the nature and character of the crime charged are
determined by the facts alleged in the indictment and not the caption or
preamble of the information or complaint nor the specification of the
provision of law alleged to have been violated. This is in keeping with the
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 rule requiring a person of common understanding to know what offense is
intended to be charged. 13
Nonetheless, accused-appellant had already waived his right to
question the defects in the Information. In the same case of People v. Solar,
this Court ruled that failure of the accused to avail of any of the remedies
available to assail the Information, i.e., via a motion to quash or a bill of
particulars, constitutes a waiver to question the defective statement of
aggravating or qualifying circumstances in the Information.
Thus, as aptly stated by the CA, accused-appellant should have raised
this issue prior to his arraignment by filing a motion to quash. Instead,
accused-appellant voluntarily entered his plea during arraignment and
proceeded with the trial. Thus, he is deemed to have waived any of the
waivable defects in the Information, including the supposed lack of
particularity in the description of the attendant circumstances. 14
Treachery attended the killing of
the victim
Accused-appellant avers the prosecution failed to prove treachery as
this was borne merely from a deduction of presumptions.
The Court does not agree.
Treachery is defined as the direct employment of means, methods, or
forms in the execution of the crime against persons which tend directly and
specially to insure its execution, without risk to the offender arising from the
defense which the offended party might make. The essence of treachery is
that the attack is deliberate and without warning, done in a swift and
unexpected way, affording the hapless, unarmed and unsuspecting victim no
chance to resist or escape. 15
Here, Jerson was just walking with Ervin Flores and a certain Edmar
when a stone coming from behind hit him in the head causing him to
stumble to the ground. While still slumped on the ground, accused-appellant
stabbed him and hit the left side of his body. Jerson tried to turn around but
accused-appellant stabbed him again, this time, hitting the abdominal part of
his body. This caused Jerson to fall on his back. Meanwhile, accused-
appellant even mounted himself on top of Jerson's body and delivered more
blows, totally disabling the latter from putting up a defense. Clearly, Jerson
was utterly unaware that such attack was coming and had no opportunity to
defend himself. The assault was likewise executed in a methodical manner
since accused-appellant made it certain he gave the fatal blows while Jerson
was lying defenseless on the ground. The RTC and the CA were, thus, correct
in appreciating the aggravating circumstance of treachery.
Voluntary surrender, as a mitigating
circumstance, cannot be appreciated
in accused-appellant's favor
As to the claim of accused-appellant that he is entitled to the
mitigating circumstance of voluntary surrender, the same does not deserve
merit. For voluntary surrender to be appreciated, the following requisites
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 should be present: (1) the offender has not been actually arrested; (2) the
offender surrendered himself to a person in authority or the latter's agent;
and (3) the surrender was voluntary. The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up and submit
himself to the authorities either because he acknowledges his guilt or he
wishes to save the authorities the trouble and expense that may be incurred
for his search and capture. 16
In this case, there was no spontaneity on the part of accused-
appellant. Rather than personally surrendering himself to the authorities, it
was the police who sought him due to a stabbing incident report where he
was tagged as the suspect. Accused-appellant's failure to resist
apprehension and surrender of the weapon do not necessarily equate to
voluntary surrender. The voluntariness of one's surrender should denote a
positive act and not a mere compliant or submissive behavior in the
presence of authorities. 17
The Court, however, notes there is no need to qualify the penalty of
reclusion perpetua with the phrase, "without eligibility for parole," pursuant
to A.M. No. 15-08-02-SC. 18 In the absence of any mitigating or aggravating
circumstance, the proper penalty is reclusion perpetua. Likewise, the Court
sustains the award of damages in line with our pronouncement in People v.
Jugueta. 19
WHEREFORE, the appeal is hereby DISMISSED. The Decision dated
17 December 2018 promulgated by the Court of Appeals in CA-G.R. CEB-CR
HC No. 02314 is AFFIRMED with MODIFICATION that the sentence of
reclusion perpetua need not be qualified with the phrase "without eligibility
for parole."
SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENA

Division Clerk of Court

by:

MARIA TERESA B. SIBULO

Deputy Division Clerk of Court

Footnotes
1. Rollo , pp. 5-24; penned by Associate Justice Louis P. Acosta and concurred in by
Associate Justices Pamela Ann Abella Maxino and Dorothy P. Montejo-
Gonzaga of the Twentieth Division, Court of Appeals, Cebu City.
2. Id. at 6.
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 3. Id.

4. Id. at 6-8.
5. Id. at 9.
6. CA rollo, pp. 54-55.
7. Id. at 48-54.
8. Rollo , pp. 22-23.

9. Id. at 10-23.
10. CA rollo, pp. 31-42.
11. WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Court that the decision of the Regional Trial Court, Branch 36 of
Carigara, Leyte dated March 31, 2016 be REVERSED and SET ASIDE, and that
a new one be rendered CONVICTING accused-appellant of the lesser crime of
HOMICIDE and the mitigating circumstance of voluntary surrender be
appreciated in his favor. (Emphasis removed)
12. G.R. No. 225595, 06 August 2019 [Per J. Caguioa].
13. People v. Delector , G.R. No. 200026, 04 October 2017, 819 Phil. 310-325
(2017) [Per CJ. Bersamin].
14. People v. Solar , G.R. No. 225595, 06 August 2019 [Per J. Caguioa].
15. People v. Lagrita , G.R. No. 233194, 14 September 2020 [Per CJ. Peralta].
16. People v. Sabalberino, G.R. No. 241088, 03 June 2019 [Per CJ. Peralta].

17. Id.; see also People v. Mercado, G.R. No. 218702, 17 October 2018 [Per J.
Caguioa].

18. Guidelines for the Proper Use of the Phrase "Without Eligibility for Parole" in
Indivisible Penalties, 04 August 2015.

19. G.R. No. 202124, 05 April 2016 [Per CJ. Peralta].

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