G.R. No. 121377 -

Ruling

WHEREFORE, finding the evidence for the prosecution convincing and credible, this Court hereby declares both accused Joseph Gelera alias "Saki" and Rogelio Fernandez alias "Timboy" guilty beyond reasonable doubt of the crime of Murder committed by means of superior strength, evident premeditation, grave abuse of confidence, qualified with (sic) treachery." Plainly, treachery was the only qualifying circumstance used by the trial court in convicting appellant of murder. It is not disputed that treachery as a qualifying circumstance was alleged in the Information. Abuse of superior strength, abuse of confidence and evident premeditation were appreciated by the trial court as mere generic aggravating circumstances. Generic aggravating circumstances may be proven even if not alleged in the information. [12] II We now pass upon the propriety of the trial court's appreciation of the qualifying circumstance of treachery and the aggravating circumstances of abuse of confidence, superior strength and evident premeditation. For treachery to be appreciated, the prosecution must prove: (1) that at the time of the attack, the victim was not in a position to defend himself, and (2) that the offender consciously adopted the particular means, method or form of attack employed by him. From the evidence on record, we find that treachery was not proved by clear and convincing evidence. The trial court merely relied on the testimony of Amid Jamandron, the lone eyewitness in the killing of Daniel, to wit: Q Can you describe to us how the four (4) of you were positioned in walking home that evening of December 4, 1991? A Daniel, Timboy and Saki were walking with arms over each other's shoulders. Q What about you in relation to the three (3) of them? Where were you situated, in front of them or behind them? A I was at the back. Q While you were in that situation with the three (3) of them walking with their arms over their shoulders and you were at the back, do you remember if there was any unusual incident that happened? A Yes. Q What was that unusual incident? Please tell us. A At first he was punched. Q Who was punched? A Daniel. Q You are referring to the victim in this case? A Yes. Q And who boxed Daniel? A Timboy Q And you are referring to the accused you pointed out awhile ago? A Yes. Q What happened to Daniel Udto when he was boxed by Rogelio Fernandez alias "Timboy"? A He fell down. Q When Daniel Udto fell down, what happened next, if any? A He was struck with a stone in the neck. Q Who struck Daniel Udto? A Saki. Q When you said Saki, you are referring to Joseph Gelera, one of the accused in this case? A Yes. Q Was Daniel Udto hit when Saki struck him with a stone? A Yes." [13] Amid's testimony lacks details on what immediately preceded the punching of Daniel. We cannot fairly deduce from his scant testimony that the attack was sudden and unexpected. Even if the blow on Daniel was sudden, this fact alone would not constitute treachery. We have ruled time and