Art 248 To 270 Full Text Cases

Criminal law 2 cases Full Text
G.R. No. 74433 September 14, 1987

That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1 xxx xxx xxx
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant.
SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows: xxx xxx xxx
On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows: Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984). On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not
The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows:

able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.). The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2 On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows: xxx xxx xxx
WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila.

SO ORDERED. 3 xxx xxx xxx These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have
The accused-appellant assigns the following errors committed by the court a quo: I. IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE; II. IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 4 The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under exceptional circumstances, complexed with double frustrated murder. Article 247 reads in full: ART. 247. Death or physical injuries inflicted under exceptional circumstances. Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

been influenced by external factors. The killing must be the direct byproduct of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said: xxx xxx xxx would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx
As may readily be seen from its provisions and its place in the Code, the above-quoted article, far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be is punished only with destierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation
We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. ... 7 xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case.

to the extent of her injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her recovery period.) 12 For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellant arresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13
The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accusedappellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accusedappellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10 that is not enough a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as
WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs.
IT IS SO ORDERED.
ART. 248 MURDER G.R. No. L-32103 September 28, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and ERNESTO JOSON, defendantsappellants.
MELENCIO-HERRERA, J.: This is an appeal from the Decision of the then Court of First Instance of Bataan, sitting in Balanga, in Criminal Case No. 6182, convicting Jose BUENSUCESO, Rodolfo AGUILAR, Conrado IZON and Ernesto JOSON, all members of the police force of Dinalupihan, Bataan, of Murder, and sentencing "said accused each to suffer the penalty of RECLUSION PERPETUA; to jointly and severally indemnify the heirs of the deceased Pariseo Tayag in the amount of P12,000.00; and each to pay the proportionate costs." 1
After pleas of not guilty and after due trial, accused BUENSUCESO SUCESO, AGUILAR, IZON and JOSON were found guilty of Murder and, as aforestated, were sentenced to suffer reclusion perpetua.
MALLARI and DE LA CRUZ were both absolved on reasonable doubt. 3
Three separate Briefs were filed: the first was for IZON and JOSON; the other was for BUENSUCESO; and the third one was for AGUILAR. The Solicitor General filed a consolidated Brief.
The Information filed against said four accused together with two other policeman, Eduardo MALLARI and Fidel DE LA CRUZ, charged them with Murder as follows:
The prosecution synthesized the occurrence as follows: Between 5:00 and 6:00 o'clock in the afternoon of April 21, 1967, while prosecution witness Apolonio Salvador was in his small store beside the market near the municipal building of Dinalupihan Bataan, he saw Patrolman Rodolfo Aguilar and Pariseo Tayag con. conversing as they were walking side by side, each resting his hand on the shoulder of the other, going towards the municipal building (pp. 22-24, tsn, July 25, 1967). Pat. Aguilar was trying to take the fan knife of Tayag, but could not take it because Tayag prevented him from taking it by gripping it with his right hand and swaying it left and right as ff playing (p. 24, tsn, Id.). Tayag did not want to , the give knife because he was not making any trouble (p. 25, tsn., Id.). At the suggestion of Pat. Aguilar, Tayag readily agreed to go to the office of the chief of police (pp. 25, 26, tsn, Id.).
That on April 21, 1967 at about 5:00 o'clock in the afternoon at Dinalupihan, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by conspiring, confederating and helping one another, with intent to kill, treachery and by taking advantage of their official positions and superior strength, using their service revolvers did then and there willfully, unlawfully and feloniously shoot one PARESEO TAYAG Y ANGELES hitting him in the different parts of his body inflicting upon his person several gunshot wounds which caused his death to the damage and prejudice of his heirs. 2

When they arrived in the said office, there were two persons there, namely, Enrique Mallo and Pat. Eduardo Mallari (p. 27, t.s.n. Id.). Pat. Mallari was then the municipal guard and in uniform (p 8, tsn., July 26, 1967). Subsequently, a heated argument took place between Pat. Aguilar and Tayag arising from the latter's refusal to give his fan knife to the former (p. 28, tsn July 25, 1967). later on, Pat. Fidel de la Cruz appeared at the doorway (pp. 30, 32, tsn Id.). Thereafter , when Tayag was about to leave the office, Chief of Police Adriano Canlas arrived and inquired what the trouble was an about (p. 31, tsn, Id.). Pat. Aguilar answered that the two of them (Aguilar and Canlas) had been cursed by Tayag (p. 32, tsn Id.). Tayag asserted that he did not curse either of them, but that Aguilar was to force him to give up his knife (p. 32, tsn, Id.). Thereafter Tayag hurriedly left the office. He was followed by Pat. Aguilar, Mallari and de la Cruz who walked fast, with Aguilar and Mallari holding guns (p. 33, tan, Id.). After having gone out of the building, Pat. Aguilar fired his gun upward (p. 34, tsn, Id.).
After the commotion, Tayag was seen lying prostrate near the back of a jeep parked at the corner of Rizal and San Juan Streets, about 60 meters away from the municipal building (p. 38, tsn. Id.). Pat. de la Cruz took the knife from Tayag and gave it to Pat. Jose Buensuceso (p. 39, tsn, Id.), who at the precise moment had his revolver tucked in its holster (p. 42, tsn, Id.). Pat. Conrado Izon and Pat. Ernesto Jose were also seen in the immediate vicinity of the crane scene by witness Apolonio Salvador (Id.). Witness did not know, however, where Pat. Izon and Joson came from (p. 45, tsn, Id.). Both had their guns in their holsters (Id.).
Hearing the shot, Tayag turned about, then retreated backwards until he reached the fence of the plaza (Id.). When Tayag was near the wooden fence about a knee high, Pat. Aguilar aimed his gun at Tayag and fired, hitting him above the right knee (pp. 34, 36, tsn, Id.). Tayag continued to run towards his house followed by de la Cruz without a gun (p. 36, tsn, Id.). Pat. Mallari went to the waiting shed to intercept Tayag (Id.). Pat. Mallari had a gun at that time (p. 37, tsn, Id.). Pat. Aguilar followed Mallari in the shed and they took opposite sides of the road, that is, Rizal Street, in front of the Catholic Church (Id.). Then there were several successive gun shots, more or less nine in number (p. 39 tsn, tsn, Id.).
Later, at about 5:50 that afternoon of April 21, 1967, Sgt. RomualdoEspiritu of the P.C. stationed at Balanga Bataan, arrived at the corner of Rizal and San Juan Bautista streets in Dinalupihan (pp. 1, 2, tsn, July 26, 1967). He noticed a commotion in the plaza and as a peace officer he inquired from people around what was going on (p. 2, tsn, July 26, 1967). He was told that a certain person was shot (Id.). He went to the place where people were converging and found Pariseo Tayag dead lying down on a pool of blood, some 10 to 15 yards from the corner of Rizal and San Juan Bautista Streets (Id.). He ordered that deceased be brought to the municipal health center where a cursory inspection of the cadaver was made by the Municipal Health Officer, Dr. Sta. Maria (Id.) and photographs (Exhs. "F" and "G", p. 6, tan, Id.) taken of the deceased (p. 5, tsn, Id.). Thereafter, he proceeded to the municipal building and investigated (p. 2, tsn, Id.). Upon learning that some police officers were involved he investigated the suspects. He first saw Pat. Aguilar who was then recounting the incident to Pat. de la Cruz (Id.). He asked for his

service pistol inspected the cylinder and found three (3) empty shells and three (3) live ammunitions (Id.). He smelled the barrel Of the gun and found out that it had been fired (Id.). Then he proceeded to the office of the chief of police (p. 3, tsn, Id.) Moments later, Pat. Buensuceso arrived (Id.). He asked for Buensuceso's service revolver, inspected the cylinder, and found four (4) empty shells and two (2) live ammunitions (Id.). He smelled the barrel of the gun and found that it also had been fired. He also asked for the service revolver of Pat. de la Cruz but the latter manifested that he had no firearm at the time but pointed to Pat. Mallari from whom he (Pat. de la Cruz) got a pistol while they were on the ground door of the municipal building (Id.). Sgt. Espiritu then proceeded to the Patrol base or detachment of the 161st PC Co. at Layac Dinalupihan, Bataan and from there he reported the incident by calling up headquarters in Balanga, Bataan (Id.), and at the same time asked for investigators to come over (Id.). Later on, while Sgt. Espiritu was preparing an on-the-spot report in the office of the Dinalupihan Police Dept. Capt. Antonio Resurreccion of the 161st PC Co. arrived with his investigators (Id.). Sgt. Espiritu turned over to Capt. Resurreccion the revolvers of Aguilar and Buensuceso, which are both Smith and Wesson Cal. 38, Sgt. Espiritu Identified in court as Exhibit "C"a Smith and Wesson cal. 38 revolver, with Serial No. K-617092 as belonging to Pat. Buensuceso, and as Exhibit 'D' the other revolver with Serial No. C-73130, Cal. 38, as belonging to Pat. Aguilar (p. 4, tsn, July 26, 1967). Jose Penaflor, Acting Chief of Police of Dinalupihan, Bataan (pp 12, 13, 14, tsn, Id.) and the municipal treasurer, Ludovico Simpao (pp. 17, 18, tsn, Id.), testified that on the basis of the memorandum receipt and records in their offices (Exhibits "H", "I", "J"), the respective firearms issued to the policemen of Dinalupihan, Bataan, bear the following serial numbers:
Eduardo Mallari Serial No. L- 597615 (Exh. H-1; J-4)
Rodolfo Aguilar Serial No.C 73130
Jose Buensuceso (Exh H-3; J-3)
Serial No. K-617092
Ernesto Joson Serial No. K-617201 (Exh. H-4; J-3)
Conrado Izon (Exh. H-5; 1-1)
Serial No. 73534
The deceased Pariseo Tayag died of gunshot wounds as found by Dr. Ceferino Cunanan, a medico-legal officer of the National Bureau of Investigation. His findings and conclusions are reflected in his necropsy report No. N-67-445 (Exh. L; p. 5, tsn., Aug. 15, 1967), as follows:

Wound No. 1 was inflicted on the victim. Wound No. 3 is located on the lower extremity which is movable part of the body and could be inflicted on the victim assuming different positions. Wound No. 4 could be inflicted when the victim was lying down and assailant was in a lower position than the victim both standing erect face to face. Wounds No. 1 and 2 were fatal. Wound No. 1 involves the heart and lungs and Wound No. 2 involves the lungs, spleen and the liver (pp. 9, 10, tsn, Id.).
1. Entrance located at the scapular region, left, directed forward slightly upward and medially; ...
2. Entrance located at the infrascapular region, left, * * * directed forward, upward and medially; * * * ...
3. Entrance located at the thigh, right, distal 3rd, antero-lateral aspect, *** directed backward, downward and laterally; ...
Lunges diphenylamine tests were made on the dorsal aspect of both hands of the accused from the wrist joint to the fingertips, which produced the following results, to wit:
4. Entrance located at the leg, right, proximal ward, anterolateral aspect * * * directed upward, backward and laterally; * * * fracturing communitedly the upper 3rd of the tibia and a slug was recovered at a point at the level of the knee, * * *
Chemistry Report No. G-67-204-Conrado Izon
Left Hand Positive Dr. Cunanan testified that gunshot wound No. 4 is not a through and though wound, but instead the bullet was recovered with its course at Exhibits Q-3 and S (pp. 7, 8, tsn, Aug. 15, 1967). The bullet is preserved in their office and the photo of the slug is shown in Exhibits T and T-1 (p. 8, tsn, Id.). He explained that gunshot wounds Nos. 1 and 2 were inflicted by a .38 caliber bullet (p. 8, tsn, Id.), while wound No. 3 may have been inflicted by a .32 or .38 cal. bullet. Wound No. 1 must have been fired by an assailant behind and to the left of the victim (p. 9, tsn, Id.). The shot causing Wound No, 2 must have been fired by an assailant while in the same position when
Right Hand Negative
Chemistry Report No. G-67-203-Fidel de la Cruz
Negative results

"Y-2" and "Y-3" were fired from the revolver marked Exh. "C" (Id.). The three empty shells, Exhs. "Y-4", "Y-5" and "Y-6" were fired from a Smith and Wesson revolver, Cal. 38, with Serial No. C-73130 (pp. 123, 124, tsn., April 18, 1969) marked Exh. "D" (p. 4, tsn., July 26, 1967). 4
Chemistry Report No. G-67-202-Ernesto Joson
Left Hand Positive The testimony of one of the accused, Eduardo MALLARI, in his defense was summarized by the Trial Court thus:
Right Hand Negative
Chemistry Report No. G-67-200 Eduardo Mallari
Negative results.
Filemon Mamaril, Supervising Ballistician and Chief, Forensic Ballistic of the National Bureau of Investigation, who conducted a ballistic examination of the firearms and shells and ammunitions received from the office of the provincial fiscal of Bataan in connection with this case, rendered his Ballistic Reports Nos. B-41867 and B-44-867 (Exh. V, pp. 4, 5, tsn, April 17, 1968).
Exhibit W which is a deformed jacketed bullet which was received from Dr. Cunanan (p. 6, tsn, Id.), showed that it was fired from the Smith and Wesson revolver, Cal. 38, bearing Serial No. K-617092 (p. 7, tsn, Id.). He also found that the empty shells, Exhs. "Y", "Y-1" and
In his defense, the accused Eduardo Mallari testified that at about 5:30 o'clock in the afternoon of April 21, 1967, he closed the office of the Chief of Police on the 2nd floor of the municipal building. Then he went down to the office of the Deputy Chief of Police on the ground floor. While descending to the ground floor, he saw a person in the office of the Deputy Chief of Police facing Cpl. Aguilar. The person was holding a knife and cursing the Chief of Police. Suddenly the person raised his right hand with the knife stating, "You can only get this from me, Aguilar, when I am already dead." Then the person and Aguilar pursued one another around the table, the person with a knife as the pursuer. He saw the person pushed aside Aguilar and stabbed him but Aguilar was not hit. Thereupon Aguilar ran towards the outside of the building. The person followed Aguilar. At this juncture Pat. Fidel de la Cruz arrived. De la Cruz asked Mallari what happened. As De la Cruz and Mallari were conversing, Mallari heard a shot fired outside the building. Thereupon, De la Cruz grabbed Mallari's gun and rushed outside the building. Mallari also ran outside of the building. He saw the person, whom he later recognized as Pariseo Tayag, running away. He heard other shots, not less than five of them. He was short distance from the main door of the
10

municipal building and he saw a commotion of the people. Fidel de la Cruz returned Mallari's gun after the shooting and when they were already inside the building. Thereafter Sgt. Romualdo Espiritu of the P.C. arrived. Sgt. Espiritu got Mallari's gun from De la Cruz, smelled it, then handed it back to De la Cruz, saying: "It was not fired".
II
Another defense witness, Corazon Cruz, a waitress, testified that the deceased together with some companions had drunk beer inside Freddie's Restaurant before the shooting incident. After her testimony, the defense without presenting the other accused on the witness stand, offered its evidence and submitted the case for decision.
THE LOWER COURT LIKEWISE ERRED IN FINDING THE APPELLANTS IZON AND JOSON AS CO. PRINCIPAL IN THE COMMISSION OF THE CRIME.
2)
By BUENSUCESO:
I Accused-appellants, in their respective Briefs, assigned the following errors: THE LOWER COURT ERRED IN GIVING UNDUE CREDENCE TO THE NECROPSY REPORT EXHIBIT L) OF DR. CEFERINO CUNANAN AND THE BALLISTICS REPORT (EXHIBIT V) OF THE BALLISTICIAN FILEMON MAMARIL, AS WELL AS THEIR TESTIMONIES AND IN RELYING THEREON OR MAKING THE SAME AS ITS BASIS FOR CONCLUDING THAT THE SLUG (EXHIBIT W) WHICH WAS ALLEGEDLY RECOVERED FROM THE KNEE OF THE ALLEGED VICTIM WAS FIRED FROM THE REVOLVER (EXHIBIT C) OF THE APPELLANT JOSE BUENSUCESO.
1)
By IZON and JOSON:
THE LOWER COURT ERRED IN HOLDING THE APPELLANTS CONRADO IZON AND ERNESTO JOSON GUILTY OF THE CRIME CHARGED IN THE INFORMATION PENALIZED UNDER ARTICLE 248 OF THE REVISED PENAL CODE.
II
11

DEFENDANT AGUILAR THAT WOULD QUALIFY THE CRIME TO MURDER. THE TRIAL COURT ERRED IN RULING THAT THE TWO FATAL WOUNDS WHICH CAUSED THE INSTANTANEOUS DEATH OF THE ALLEGED VICTIM WERE INFLICTED BY BULLETS FIRED FROM THE GUNS OF THE APPELLANTS JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and ERNESTO JOSON.
II
III
THE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED AGUILAR THOUGH ACTING INDEPENDENTLY SHOULD BE LIKEWISE HELD LIABLE AS THE REST OF THE ACCUSED FOR THE DEATH OF THE VICTIM.
THE COURT BELOW ERRED IN CONVICTING THE APPELLANT JOSE BUENSUCESO FOR MURDER NOTWITHSTANDING ITS OWN FINDING THAT THERE WAS NO CONSPIRACY ESTABLISHED BY THE PROSECUTION, ASIDE FROM THE FACT THAT THERE WAS ABSOLUTELY NO EVIDENCE ON RECORD TO SHOW THAT HE ACTUALLY PARTICIPATED IN THE KILLING OF THE VICTIM.
III
THE LOWER COURT ERRED IN NOT HOLDING THAT DEFENDANT WAS MERELY ACTING IN LEGITIMATE SELFDEFENSE WHEN HE INFLICTED THE WOUND ON THE VICTIM.
3)
By AGUILAR: The assigned errors find no support from the evidence on record.
I Firstly, all four appellants were seen by Apolonio Salvador, one of the prosecution eyewitnesses, to have been present at the crime scene at the nine of the incident, armed with .38 caliber service revolvers. 5
THE LOWER COURT ERRED IN HOLDING THAT THERE WAS TREACHERY, MORE SPECIFICALLY ON THE PART OF
12
Secondly, the autopsy conducted on the body of the victim showed that he died as a result of four (4) gunshot wounds, 6 two of which were fatal. 7 The examining physician testified that the wounds were inflicted by .38 cal. revolvers and that a deformed bullet, also .38 cal., which caused wound No. 4, was recovered (Exhibit "W" ).
Chemistry Report No. G-67-204 Conrado Izon
Left Hand Positive
Thirdly, upon an on-the-spot inspection by PC Sgt. Romualdo Espiritu soon after the incident, he found that the service pistol of AGUILAR had been fired and that its cylinder contained three (3) empty shells and three (3) live ammunitions. Similarly, he smelled the barrel of BUENSUCESO's revolver and found that it, too, had been fired and that its cylinder had four (4) empty shells, and two live ammunitions. 8
Right Hand Negative
Chemistry Report No. G-67-203 Fidel de la Cruz
Negative Results.
Fourthly, ballistic examination disclosed that the deformed jacketed bullet recovered from the knee of the victim was fired from a .38 cal. Smith & Wesson revolver, with Serial No. K-617092, (Exhibit "C") issued to BUENSUCESO; that the four (4) empty shells (Exhibits "Y", "Y-1", "Y-2", and "Y-3") were fired also from BUENSUCESO's firearm; while the three (3) other empty shells (Exhibits "Y-4", "Y-5", and "Y-6") were fired from AGUILAR's Smith & Wesson revolver, cal. 38, with Serial No. C-73130 (Exhibit "D"). 9
Chemistry Report No. G-67-202 Ernesto Joson
Left Hand Positive
Right Hand Negative
Fifth, the Chemistry Reports on the paraffin tests showed the following results, particularly in respect of IZON and JOSON:
Chemistry Report No. G-67-200 Eduardo Mallari
13

Negative Results. 10 (Emphasis ours) All told, there is ample evidence establishing that AGUILAR, BUENSUCESO, IZON, and JOSON had fired their guns at the victim hitting him on different parts of his body. True, it has not been established as to which wound was inflicted by each accused. However, as this Court has held, where the victim died as a result of wounds received from several persons acting independently of each other, but it has not been shown which wound was inflicted by each assailant, all of the assailants are liable for the death of the victim. 11
The positive finding, insofar as IZON and JOSON are concerned, confirm prosecution witness Apolonio Salvador's declaration that they were in the vicinity of the crime at the time of its occurrence. Although they had their guns in their holsters when Salvador saw them the fact remains that, upon examination, their left hands were positive for nitrates.
AGUILAR's plea of self-defense is evidently unmeritorious. AGUILAR followed the victim right after the latter hurriedly left the office of the Chief of Police. Once outside the building, AGUILAR fired his gun upward. And when the victim turned around and retreated backwards, AGUILAR fired upon him hitting him above the right knee.
If, as contended, the victim had thrust his knife at AGUILAR inside the Municipal Building malting the former the unlawful aggressor, to be sure, the incident would have happened there and then and not some 60 meters away from the building. We discredit AGUILAR's testimony that it was the victim who had pursued him rather than the other way around.
The crime is Murder, qualified by treachery. The victim was already retreating backwards until he reached the fence of the town plaza when AGUILAR fired his revolver at the former hitting him above the right knee. 12 Notwithstanding that he was already hit and wounded, and possibly immobilized, he was still subjected to successive shots as shown by the wounds that he had received, even at his back. Certainly, the means employed by the accused-appellants tended directly and specially to insure the execution of the crime without risk to themselves arising from any defense which the victim might have made. 13
The killing of the victim was aggravated by abuse of superior strength as shown by the number of assailants, which circumstance, however, is absorbed by treachery. 14 No other circumstances modify the commission of the crime.
BUENSUCESO's contention that there is serious doubt that the body autopsied was that of the victim hardly deserves even passing consideration.
14

WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to the victim's heirs is hereby increased to P30,000.00. 15 With proportionate costs. of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda.
SO ORDERED.
G.R. No. L-74324 THE PEOPLE appellee, vs.
November 17, 1988 OF THE PHILIPPINES, plaintiff-
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants. The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants. MEDIALDEA, J.: For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows:
That the crime was committed with the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation and superior strength, and the means employed was to weaken the defense; that the wrong done in the commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite, Philippines, and within the jurisdiction
15

WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion perpetua together with the accessories of the law for both of them. The accused are solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P5,000.00. 1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.
Let the preventive imprisonment of Pugay be deducted from the principal penalty.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo).
Cost against both accused.
The antecedent facts are as follows:
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by the court a quo:
The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his friend
16

Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood. and five other persons to the Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody.
Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him.
After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of the decision of the court a quo to be without merit.
The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame.
It bears emphasis that barely a few hours after the incident, accusedappellants gave their written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense.
The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof.
While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense.
The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the two accused
17

Thus, while it is true that the written statements of the accusedappellants were mentioned and discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records). Besides, the matter as to whom to utilize as witness is for the prosecution to decide.
Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience.
Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the deliberate non- presentation of these persons raises the presumption that their testimonies would be adverse to the prosecution.
There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as prosecution witnesses in the information filed. Considering that their testimonies would be merely corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797).<re||an1w>
Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them.
In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he noticed a commotion.
18

A. However, explaining this testimony on re-direct examination, Gabion stated: Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour gasoline unto him? Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading comics? Yes, sir.
A.
I do not know that would be that incident.
A. I put down the comics which I am reading and I saw what they were doing.
Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually?
Q. According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with Pugay, is that correct?
A.
Because I pity Bayani, sir.
A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so.
Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani?
Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not to pour gasoline. That is what I want to know from you, if that is true?
A.
I was not told, sir.
Q. Did you come to know..... how did you come to know he was going to pour gasoline that is why you prevent him?
19

It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire.
A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline.
Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that correct?
A.
Yes, sir.
Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick up the can of gasoline.
A.
I saw him pouring the gasoline on the body of Joe.
However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accused-appellants immediately before the commission of the crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).
Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the body of Bayani?
A.
Yes, sir (Tsn, July 30, 1983, pp. 32-33).
The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable
20

consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows: On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make.
A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury.
The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree.
There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended.
There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the incident.
As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact
21

from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 1617).<re||an1w>
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODORO BASAY @ "DORO" and JAIME RAMIREZ @ "NEBOY", accused, JAIME RAMIREZ @ "NEBOY" accused-appellant. The Solicitor General for plaintiff-appellee. Public Attoney's Office for accused-appellant.
The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum.
The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00.
DAVIDE, JR., J.: Teodoro Basay and Jaime Ramirez were charged with Multiple Murder with Arson in a criminal complaint 1 filed on 24 March 1986 with the Municipal Circuit Trial Court (MCTC) of Pamplona-AmlanSan Jose in the Province of Negros Oriental for having allegedly killed the spouses Zosimo and Beatrice Toting and their six-year old daughter, Bombie, and for having burned the said spouses' house to conceal the crime; as a consequence of such fire, the spouses' other daughter, Manolita, was burned to death.
Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the court a quo.
Accordingly, the judgment is affirmed with the modifications aboveindicated. Costs against the accused-appellants.
SO ORDERED.
On 31 March 1986, the MCTC issued a warrant for the arrest of the accused; no bail was recommended. 2 It appears, however, that the accused had earlier been apprehended on 6 March 1986 by elements of the Philippine Constabulary (PC) and Civilian Home Defense Forces (CHDF) and were detained at the Pamplona municipal jail.
G.R. No. 86941
March 3, 1993
22

On 15 April 1986, the accused filed a Waiver of Preliminary Investigation 3 which prompted the MCTC, the following day, to order the clerk of court to forward the records of the case to the Office of the Provincial Fiscal. 4 long, 3" depth, hack wounds, left upper back 3" long, 4" depth, stab wound, thru and thru, lower abdomen, 4" width, exit lower back 1" width, 90% 2nd and 3rd degree burns of the body, and which wounds caused the death of said Zosimo Toting, Sr., immediately thereafter; one BEATRICE TOTING, thereby inflicting upon the victim hacking (sic) wound, neck posterior area, 5" long, 6" depth, incised wound, epigastric area 11" long, 4" depth, exposing vital organs, lower abdomen, 11" long, 4" depth exposing intestines, 90% 2nd and 3rd degree burns of the body, and which wounds caused the death of said Beatrice Toting immediately thereafter; one BOMBIE TOTING, thereby inflicting upon the victim infected hack wound from the right anterior lumber area transecting mid-abdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle, and which wounds caused the death of said Bombie Toting shortly thereafter; and in order to cover-up the heinous crime committed, the above-named accused, conspiring and confederating together and acting in common accord, did then and there willfully, unlawfully and feloniously set to fire the house of the aforesaid victim (sic) spouses Zosimo Toting, Sr. and Beatrice Toting, thereby razing it to the ground, and as a consequence thereto MANOLITA TOTING suffered Third degree burns, all burn (sic) body, head, extremities or 100% burns, and which wounds caused the death of said Manolita Toting immediately thereafter and also causing injuries to MANOLO TOTING, to wit: 20% 2nd and 3rd degree burns on the upper extremity bilateral, posterior shoulder, left and back, and which wounds would have caused the death of victim Manolo Toting, thus performing all the over acts of execution which would have produced the crime of Murder as a consequence, but nevertheless did not produce it by reason of causes independent of the will of the perpetrator, that is, the timely medical assistance extended to said Manolo Toting which prevented his death.
Meanwhile, on 14 August 1986, the Integrated National Police (INP) Station Commander of Pamplona amended the complaint by including therein the name of another victim, Manolo Toting, who suffered second and third degree burns because of the burning of the house. 5
On 11 December 1986, the Second Assistant Provincial Fiscal of Negros Oriental filed with the Regional Trial Court (RTC) of Negros Oriental an Information for Multiple Murder and Frustrated Murder with Arson 6 against the accused. The accusatory portion of the Information reads:
. . . That on or about March 4, 1986, at sitio Tigbao, Barangay Banawe, Pamplona, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and acting in common accord, with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously assault, attack, stab and hack with the use of a bolo and sickle, with which the accused were then respectively armed and provided, one ZOSIMO TOTING, SR., thereby inflicting upon the victim hack wound, neck posterior area 5"
23

this Court hereby finds said accused Teodoro Basay NOT GUILTY and orders his immediate release from detention. Contrary to Article 248 in relation to Articles 6, 48 and 50 of the Revised Penal Code. The prosecution has proven the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated Murder With Arson against accused Jaime Ramirez (sic), this Court finds him GUILTY to (sic) said crime and hereby sentences him to suffer the penalty of life imprisonment and to indemnify the heirs of the victims in the sum of Thirty Thousand (P30,000.00) Pesos as his civil indemnity.
The case was docketed as Criminal Case No. 7411 and was raffled off to Branch 40 of the said court.
After both accused entered a not guilty plea during their arraignment on 23 February 1987, 7 trial on the merits ensued. The prosecution presented Dr. Edgardo Barredo, MCTC Judge Teopisto Calumpang, Jaime Saguban, Sgt. Reynaldo Tabanao, Dr. Edgar Gantalao and Dr. Lucio Togonon as its witnesses for the evidence in chief, and Judge Calumpang and Elpedio Catacutan in rebuttal; for its surrebuttal, Pfc. Urbano Cavallida was presented. On the other hand, the accused testified for the defense together with witnesses Joven Lopez and Maxima Basay. Accused Ramirez took the witness stand again in surrebuttal.
SO ORDERED. 9
The evidence for the prosecution upon which the decision is based is summarized in detail in the trial court's decision and is further condensed in the Appellee's Brief 10 as follows:
On 15 December 1988, the trial court promulgated its Decision, dated 14 December 1988, acquitting accused Teodoro Basay but convicting accused Jaime Ramirez. 8 It s dispositive portion reads:
WHEREFORE, the prosecution having failed to prove the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated Murder With Arson against the accused Teodoro Basay,
On March 6, 1986, Zosimo Toting Jr. reported to the Nabalabag Philippine Constabulary Patrol at Pamplona, Negros Oriental, that his parents had been killed and their house at Tigbaw, [Pamplona] Negros Oriental, burned. This prompted PC Sgt. Reynaldo Tabanao, Sgt. Nestorio Rubia, Jaime Saguban and three members of the Civilian Home Defense Force to go to Tigbaw, [Pamplona] Negros Oriental, to investigate the incident (TSN, January 20, 1988, p. 5).
24

Upon arriving at Tigbaw, they found a burned house and several dead bodies. The trial court identified the four (4) fatalities and their injuries as follows: Manolo Toting did not die but suffered 20% second and third degree burns on the upper extremity bilateral, posterior shoulder, left and back. (Records. p. 213).
(1)
Zosimo Toting, Sr., with hack wound neck, posterior
area, . . . hack wound, left upper back, . . . stab wound, through and through, lower abdomen, . . . 90% second and third degree burns of the body;
Zosimo Toting, Sr. Beatrice Toting, Manolita Toting and Manolo Toting were found near the vicinity of the burned house. About forty (40) meters away, the investigating officers found six year old Bombie Toting suffering from serious hack wounds (TSN, January 20, 1988, p. 18). The young girl said that she had been in this condition for one and a half days already.
(2) Beatrice Toting, hack wound, neck posterior area . . . incised wound, epigastric area . . . exposing vital organs, lower abdomen, . . . exist (sic) lower back, 90% second and third degree burns of the body;
Bombie Toting related to Sgt. Tabanao that on March 4, 1986 at 7:00 o'clock in the evening, appellant and Teodoro Basay killed her parents and burned their house (TSN, January 20, 1988, p. 18, Records, p. 9).
(3) Bombie Toting, inflicted hack wound from the anterior lumbar area transecting mid-abdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle;
On the same day the investigating officers went to the appellant's house. They saw appellant fixing the roof of his house and when appellant saw them, he went down and tried to ran (sic) away (TSN, January 20, 1988, p. 22). Appellant was turned over to the Pamplona Police Station (TSN, January 20, 1988, p. 25).
(4) Manolita Toting, third degree burns, all burned body, head, extrimities (sic) or 100% burns. Bombie Toting was brought to the hospital but due to the gravity of her injuries she died on March 7, 1986 at 1:40 P.M. (Records, p. 12, Exhibit I).
25
Appellant was brought into the chamber of Judge Teopisto Calumpang, the municipal circuit trial judge of Pamplona, Amlan, and San Jose, on March 14, 1986. He was accompanied by Mr. Elpedio Catacutan who acted as appellant's counsel (TSN, June 6, 1988, p. 6). They brought with them an affidavit previously typed by a police investigating officer. The Judge then made the court interpreter translate the allegations of the sworn statement into the local dialect for appellant (TSN, June 6, 1988). Thereafter, in the presence of the Judge, appellant and Mr. Catacutan signed the affidavit. (TSN, January 20, 1988, p. 14). Appellant and counsel also signed the vernacular translation of Exhibit F (Records, p. 12).
Queried on the "Joint Waiver", this witness said he did not read it because he did not know how to read. When it was read to him, he did not understand it because it was read in English. Elpedio Catacutan was not his lawyer and he did not know him (TSN, March 5, pp. 3, 5-6, 9-10).
On cross-examination, this witness said he reached Grade II and knows how to write his name. He was alone at the time he was arrested. He was arrested ahead of Teodoro Basay and those who arrested him where (sic) not the same persons who arrested Teodoro Basay.
Upon the other hand, the evidence for accused Jaime Ramirez is substantially summarized in the Appellant's Brief 11 in this wise:
Evidence for the Defense:
xxx
xxx
xxx
He first saw Elpedio Catacutan in the Pamplona Municipal Hall when Elpedio was going upstairs. When he signed Exhibit "F", Catacutan was in front of him. They did not converse with each others (sic). He did not engage Catacutan to assist him, nor solicit his services. He does know (sic) any one who solicited Catacutan's services for him. He did not ask the Judge (Calumpang) that a lawyer be designated to help him in connection with the affidavit. The Pamplona Judge did not offer to give him a lawyer to assist him in the execution of the affidavit (TSN, October 4, 1988, p. 4). 12
Accused Jaime Ramirez testified that he was cooking food for the pig when the armed uniformed men arrested him on March 5, 1986 and was brought (sic) to the Nabalabag PC Detachment where he was maltreated. Later, he was brought to Municipal (sic) Jail where he stayed for one month and 23 days.
Jaime Ramirez is a farmer and at the time he testified on 8 March 1988, was nineteen (19) years old and single. 13 The prosecution did not rebut his claim that he had only finished Grade II and that he
26

does know how to read. He, however, understands the Cebuano dialect. 14 as flight which is indicative of guilt Ramirez's running away when he saw the law enforcers on 6 March 1986. It further ruled that the latter signed the extra-judicial confession voluntarily and in the presence of Elpedio Catacutan, the COMELEC registrar of Pamplona "a barister (sic) who appeared as counsel for accused Jaime Ramirez;" hence it is admissible against the latter. 19
The Exhibit "F" referred to above is the Sworn Statement, 15 in English, of accused Jaime Ramirez taken in the Pamplona police station on 7 March 1986 and subscribed and sworn to only on 14 March 1986 before Judge Teopisto L. Calumpang of the MCTC of Pamplona-Amlan-San Jose. The trial court described this document as the Extra-Judicial Confession 16 of Ramirez.
The Joint Waiver (Exhibit "G") mentioned in the testimony of Jaime Ramirez is in the Cebuano dialect and was signed by accused Basay and Ramirez on 7 March 1986. Both accused state therein that for their safety and security, they voluntarily decided to be detained and that they killed the spouses Zosimo Toting and Betty Toting and thereafter burned the spouses' house; this fire resulted in the death of one and the hospitalization of two Toting children. 17
On the other hand, the trial court did not admit the statement of Bombie Toting as a dying declaration but merely as part of the res gestae because the prosecution failed to prove two (2) of the requisites for the admissibility of a dying declaration, viz., that the statement was given under consciousness of an impending death and that Bombie Toting is a competent witness. 20
The trial court disregarded this Joint Waiver insofar as it tended to incriminate the accused "because when they signed said Joint Waiver, they were not represented by counsel;" thus, the same was prepared in violation of "Section 12, Article 3 of the Bill of Rights of the 1987 Constitution." 18 There being no other evidence against Basay, the trial court acquitted him. However, it admitted in evidence the so-called extra-judicial confession of Jaime Ramirez, considered as part of the res gestae the alleged statement given by Bombie Toting to PC Sgt. Reynaldo Tabanao and Jaime Saguban identifying Ramirez and Basay as the perpetrators of the crime and considered
Accused Jaime Ramirez neither filed a notice of appeal nor orally manifested his intention to appeal. However, on 31 January 1989, the trial court handed down an order directing the clerk of court to transmit to this Court the entire records of the case because in view of the penalty imposed life imprisonment "such Decision is subject for automatic review by the Supreme Court." 21 This of course is erroneous as, pursuant to Section 10, Rule 122 of the Rules of Court, the automatic review of a criminal case is applicable only where the penalty of death has been imposed which, nevertheless, is now banned under Section 19 (1), Article III of the 1987 Constitution.
In the interest of justice, however, We accepted the appeal in the Resolution of 8 May 1989. 22
27

On the other hand, it is maintained by the People, in the Appellee's In his Appellant's Brief, 23 Jaime Ramirez, hereinafter referred to as the Appellant, imputes upon the trial court the commission of this lone error: Brief 27 submitted by the Office of the Solicitor General, that the appellant executed the extra-judicial confession voluntarily and without duress; in signing such confession, he was accompanied by a certain Mr. Catacutan, a non-lawyer, inside the chambers of Judge Calumpang "an environment . . .other than vindictive and oppressive which the courts desired to guard against in Miranda vs. Arizona, 384 US 436." 28 As to Bombie's statement, it is claimed that the same should be considered as a dying declaration.
THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY AS CHARGED ON THE BASIS OF EXHIBIT "F" (AFFIDAVIT) WHICH WAS EXECUTED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND ON THE BASIS OF HEARSAY EVIDENCE AND ON THE PRESUMPTION OF GUILT.
We find merit in the appeal. Appellant contends that his so-called extra-judicial confession Exhibit "F", was executed in blatant disregard of his constitutional right to counsel and to remain silent during custodial investigation. It is therefore inadmissible in evidence. 24 Without the said confession, the only piece of evidence which seems to point to his guilt is the alleged statement of Bombie Toting. Appellant asserts, however, that the said statement was "very doubtful and . . . no reasonable mind would conclude that she was candidly truthful; "hence, her statement, besides being hearsay as it came from a person who was not presented in court to testify, should not have been taken at "face value against any of the accused, much less against the appellant." 25 Besides, the appellant asserts that same statement was not used against his co-accused Basay who was, unlike him, acquitted by the trial court. As to his having run away upon seeing the armed law enforcers, appellant claims that he did so out of fear as the latter were armed. 26
1. Jamie Ramirez's sworn statement or extra-judicial confession was prepared on 7 March 1986 at about 11:00 o'clock in the morning in the Pamplona police station. Pertinent portions thereof read as follows:
xxx
xxx
xxx
PRELIMINARY MR. JAIME RAMIREZ, you are now under investigation in connection with the death of the couple and the burning of their house, ZOSIMO TOTING and BEATRICE TOTING alias BETTY TOTING on March 4, 1986 at about 7:00 o'clock in the evening at sitio Togbao, Barangay Banawe, Pamplona, Negros Oriental. You are also informed that under our new constitution you
28

have the right to remain silent and not to answer questions which will incriminate you and to have a counsel of your own choice to assist you in this investigation, do (sic) you aware of this? Answer Jaime Ramirez y Tano, 19 years old, single, Filipino, farmer and a resident of sitio Palale, Barangay San Isidro, Pamplona, Negros Oriental.
ANSWER Yes.
xxx
xxx
xxx
Q You are also informed that whatever statement you may offer in this investigation it (sic) might be used as evidence in your favor or against you in the future, do (sic) you aware of this this (sic)?
11.
Q What more can you say?
A No more. I proved that my statement is correct I signed this 7 March 1986 (sic), at Pamplona, Negros Oriental. A Yes. (Sgd.) JAIME T. RAMIREZ Q After you have informed (sic) of your rights are you willing to proceed with this investigation of yours even if you have no counsel of your own choice that will assist you in this investigation? (TYP) JAIME T. RAMIREZ Affiant
A Yes. I don't need any counsel in this investigation because I will just tell the truth.
NOTE: ASSISTED BY: (Sgd.) ELPEDIO B. CATACUTAN
1. Question If so, please state your name, age, and other personal circumstances?
(TYP) ELPEDIO B. CATACUTAN Counsel of the accused
29

SUBSCRIBED AND SWORN to before me this 14th day of March 1986, at Pamplona, Negros Oriental, Philippines. guaranteed by Section 20, Article IV of the 1973 Constitution the governing law at that time. Said section reads:
(Sgd.) TEOPISTO L. CALUMPANG (TYP) TEOPISTO L. CALUMPANG Mun Trial Circuit Judge
Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.
CERTIFICATION The source of this provision is Miranda vs. Arizona; 30 in connection therewith, this Court stated in People vs. Caguioa 31 that:
I HEREBY CERTIFY that I have personally examined the affiant and that I am satisfied that he voluntarily executed and understood his affidavit.
(Sgd.) TEOPISTO L. CALUMPANG (TYP) TEOPISTO L. CALUMPANG Mun Trial Circuit Judge 29
We do not hesitate to rule that this confession belonging to appellant Jaime during custodial interrogation was taken in right to counsel, to remain silent and to be
purported extra-judicial Ramirez and obtained blatant disregard of his informed of such rights,
. . . The landmark opinion of Miranda vs. Arizona, decided in 1966, as noted above, the source of this constitutional provision, emphasized that statements made during the period of custodial interrogation to be admissible require a clear intelligent waiver of constitutional rights, the suspect being warned prior to questioning that he has a right to remain silent, that any utterance may be used against him, and that he has the right to the presence of a counsel, either retained or appointed. In the language of Chief Justice Warren: "Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean
30

questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does not make (sic) may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." (citations omitted) 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.
This was reiterated in People vs. Galit. 33
Then, in Morales vs. Enrile, 32 this Court, in the light of the said Section 20, prescribed the procedure to be followed by peace officers when making an arrest and when conducting a custodial investigation. Thus:
In People vs. Nicandro, 34 this Court declared that one's right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Thus, it is not enough for the interrogator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the 1973 Constitution, now Section 12, Article III of the 1987 Constitution; the former must also explain the effects of such provision in practical terms e.g., what the person under
31

interrogation may or may not do and in a language the subject fairly understands. The right "to be informed" carries with it a correlative obligation on the part of the police investigator to explain, and contemplates effective communication which results in the subject's understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence and other relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him at his request. 35 If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel. 36 That counsel must be a lawyer. 37 xxx xxx xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
The adjectives competent and independent, which qualify the kind of counsel an accused is entitled to during investigation, were not found in the previous Constitution. Their incorporation in the 1987 Constitution was thus meant to stress the primacy of this right to counsel.
The foregoing pronouncements are now synthesized in paragraphs 1 and 3, Section 12, Article III of the 1987 Constitution, to wit:
A close scrutiny of the questioned extra-judicial confession in the case at bar reveals all possible violations of the appellant's right to remain silent, to counsel and to be informed of such rights, and of the safeguards prescribed by this Court for the holding of custodial interrogations.
Sec. 12(1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
(a) The interrogation was conducted and the confession was written in English a language the appellant, a farmer in a remote barangay of Pamplona, cannot speak and does not understand; he only finished Grade II. There is no evidence to show that the interrogator, who was not even presented as a witness and remains unidentified, translated the questions and the answers into a dialect known and fairly understood by the appellant.
32

(b) Appellant was not told that he could retain a counsel of choice and that if he cannot afford to do so, he could be provided with one. Q Do you recall having signed as a witness of an affidavit of one Jaime (sic) T. Ramirez which affidavit is now marked as Exhibit "F"?
(c) He did not sign any waiver of his right to remain silent and to counsel.
Yes.
Q (d) He was not assisted by any counsel during the investigation. Instead, a certain Elpedio Catacutan, who claimed to have appeared for him as a "friend-counsel," 38 was present only at the time that appellant was brought to the office of Judge Calumpang for the preparation of the jurat. It was precisely for this reason that the following notations were inserted above the jurat of the so-called extra-judicial confession:
Can you tell the court where did you sign that Exhibit "F"?
A I signed this affidavit in the office of the Municipal Judge of Pamplona. 39
Moreover, it is to be observed that the appellant does not even know the said Elpedio Catacutan. 40 NOTE: ASSISTED BY: (Sgd.) ELPEDIO B. CATACUTAN (TYP) ELPEDIO B. CATACUTAN (e) Assuming arguendo that Elpedio Catacutan, may have been summoned to act as appellant's counsel, he was, nevertheless, not present during the custodial interrogation which, by the way, was conducted exactly a week before he appeared or more correctly, was made to appear before Judge Calumpang. His presence before the latter did not change the situation. As this Court stated in People vs. Burgos, 41 the securing of counsel to help the accused when the latter subscribed under oath to his statement at the Fiscal's Office was too late and had no palliative effect; it did not cure the absence of counsel at the time of the custodial investigation when the extra-judicial statement was being taken.
In reality, Catacutan signed not as counsel, but only as a witness. Thus:
33
(f) Furthermore, Elpedio Catacutan is not a lawyer; according to the trial court, he is "a barister (sic)." In fact, he candidly admitted that he is not a lawyer but that he obtained a law degree from the Siliman University in 1959. Unfortunately, however, he failed in three Bar Examinations. 42
Q So it was not the Judge who made the translation, is that what you mean?
The translation was course (sic) through the interpreter. 44
(g) There is no showing that the so-called extra-judicial confession, which is in English, was correctly explained and translated to the appellant by Judge Calumpang. Although the latter claimed in his testimony on direct examination that he translated the same in the local dialect to the appellant before the latter affixed his signature thereto, 43 Elpedio Catacutan categorically declared that it was the interpreter, one Pedro Rodriguez, who translated it to the appellant. Thus:
(h) Finally, the kind of "advice" proffered by the unidentified interrogator belongs to that stereotyped class a long question by the investigator informing the appellant of his right followed by a monosyllabic answer which this Court has condemned for being unsatisfactory. The investigator gave his advice perfunctorily or in a pro-forma manner, obviously to pay mere lip service to the prescribed norms. As this Court observed in People vs. Newman, 46 this stereotyped "advice":
Who is the interpreter who made the translation?
Pedro Rodriguez.
. . . has assumed the nature of a "legal form" or model. Its tired, punctilious, fixed and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free and unconstrained giving up of a right is missing.
Were you there when the translation was made? Consequently, Exhibit "F", which is indisputably an uncounselled confession or admission, is inadmissible in evidence. The trial court, therefore, committed a fatal error in admitting it.
Sure.
34

2. We harbor very serious doubts about the alleged statement given by Bombie Toting to Sgt. Tabanao and Jamie Saguban identifying the appellant and Teodoro Basay as the perpetrators of the heinous crime. In the first place, the trial court itself ruled that Bombie was not a competent witness. We agree with such a conclusion, not necessarily because she was only six (6) years old, but because her condition at the time she supposedly gave her statement made it impossible for her to have communicated effectively. She suffered the following injuries: told the doctor as to who were the perpetrators of the crime; neither did she tell her own brother, Zosimo Toting, Jr. that it was the accused, Teodoro Basay and Jaime Ramirez who killed her parents and her brother and sisters and burned their house. . . . The Court cannot understand why P.C. Sgt. Tabano did not ask Bombie Toting questions concerning the commission of the crime by the accused. Neither did the P.C. or (sic) the police take any statement from her on her way to the hospital or at the hospital. Surprisingly, Bombie Toting did not even tell her own brother, Zosimo Toting, Jr. that it was the accused who committed the crime. Had the statement of Bombie Toting been made to the doctor or to the barangay captain or to any reputable member of the community where the incident happened, the Court will have to put weight and consider her statement as a dying declaration. Our experience has shown that persons in authority are prone to fabricate or misrepresent the facts to serve their own purpose. Innocent people had been charged in Court simply by the false statements of peace officers. The Court therefore has to be cautious when these peace officers testify in Court. 49
Infected hack wound from the right anterior lumbar area transecting mid abdomen, inguinal area left to the medial thigh left through and through, with necrotic transected muscle. 47
She was taken from the crime scene only on 6 March 1986, or two (2) days after the commission of the crime, and died in the hospital on 7 March 1986. The doctor who first attended to her when she arrived at the Provincial Hospital, a certain Dr. Sy, was not presented as a witness. On the other hand, the doctor who attended to her before she died, Dr. Edgar Cantalao, testified that when he last saw Bombie alive, she could not talk. 48 It was this inability to talk which led the trial court to express its doubts on the veracity of the latter's supposed statement:
In the second place, as a result of the foregoing observations, the trial court completely disregard Bombie Toting's so-called statement as against Teodoro Basay. We therefore see neither rhyme nor reason for the trial court's admission of the same as against the appellant.
. . . Although persons of tender age are prone to tell the truth, however, the Court must be cautious in appreciating said testimony where the person had a serious wound and had not eaten for one day and one night. There is no evidence to show that Bombie Toting
3. While it may be true that the appellant ran away when he first saw the armed law officers, he did so merely out of fear of them. This act should not be considered as the flight which is indicative of
35

guilt. The appellant had not left his house or barangay since 4 March 1986, the day the crime was committed. If he were indeed one of the perpetrators and had the intention to flee in order to avoid arrest, he should have vanished sooner and should not have remained in his house. Besides, if indeed his running away could be construed as flight, it could only be considered as circumstantial evidence. Such evidence would still be insufficient for a conviction. Under Section 4, Rule 133 of the Rules of Court, in order that circumstantial evidence may sustain a conviction, there must, be inter alia, be more than one (1) circumstance. No other circumstance was established in this case. of Manolita and the injuries sustained by Manolo as a consequence of the burning of the house. The aforementioned Section 5 reads:
Sec. 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed.
Hence, the appellant's guilt was not established with moral certainty. He should be acquitted.
Also, the information that was filed is clearly duplicitous and thus vulnerable to a motion to quash under Section 3(e), Rule 117 of the Rules of Court. No such motion leaving been filed, appellant is deemed to have waived the defect.
We cannot, however, close this case without making some observations about the legal conclusion of the trial court anent the crimes committed and the penalty imposed. The facts indisputably establish that Zosimo Toting. Sr., Beatrice Toting and Bombie Toting were stabbed and hacked before their house was burned. Zosimo and Beatrice died immediately while Bombie lived for a few days. As a matter of fact, the thesis of the prosecution is that the house was burned to conceal the stabbing and hacking. As a result of this fire, Manolita Toting and Manolo Toting suffered burns which caused the death of the former; the latter, however, survived due to timely medical attention. Four (4) crimes were therefore committed, viz.: three (3) separate murders under Article 248 of the Revised Penal Code 50 for the deaths of Zosimo, Beatrice and Bombie, and arsonas punished under Section 5 of P.D. No. 1613 51 for the death
Finally, We have time and again said that life imprisonment is not a penalty provided for in the Revised Penal Code and is not the same as reclusion perpetua. 52 Unfortunately, the trial court still disregarded this pronouncement. It is hoped that it will not happen again.
WHEREFORE, the challenged Decision in Criminal Case No. 7411 of Branch 40 of the Regional Trial Court of Negros Oriental is REVERSED and appellant JAIME RAMIREZ alias "NEBOY" is hereby ACQUITTED with costs de oficio. His immediate release from detention is hereby ordered.
36

SO ORDERED. use personal violence on MARCIANA ABUYO-SALUFRANIA, the lawfully wedded wife of the accused, by then and there boxing and stranging her, causing upon her injuries which resulted in her instantaneous death; and by the same criminal act committed on the person of the wife of the accused, who was at the time 8 months on the family way, the accused likewise did then and there willfully, unlawfully, and feloniously cause the death of the child while still in its maternal womb, thereby committing both crimes of PARRICIDE and INTENTIONAL ABORTION as defined and punished under Art. 246 and Art. 256, paragraph I, of the Revised Penal Code, to the damage and prejudice of the heirs of said woman and child in the amount as the Honorable Court shall assess.
ARTICLE 257 UNINTENTIONAL ABORTION

G.R. No. L-50884 March 30, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FILOMENO SALUFRANIA, defendant-appellant.
CONTRARY TO LAW
PADILLA, J.:
Upon arraignment, the accused, assisted by counsel de officio, pleaded not guilty to the offenses charged.
In an information, dated 7 May 1976, Filomeno Salufrania y Aleman was charged before the Court of First Instance of Camarines Norte, Branch I, with the complex crime of parricide with intentional abortion, committed as follows:
After trial the lower court rendered a decision ** dated 9 August 1978, the dispositive part of which states:
That on or about the 3rd day of December, 1974, in Tigbinan, Labo, Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court the accused Filomeno Salufrania y Aleman did then and there, willfully, unlawfully, and feloniously attack, assault and
WHEREFORE, finding the accused Filomeno Salufrania y Aleman guilty beyond reasonable doubt, of the complex crime of Parricide with Intentional Abortion, he is hereby sentenced to suffer the penalty of DEATH, to indemnify the heirs of the deceased Marciano Abuyo in the sum of P12,000.00 and to pay the costs. "For unselfish,
37

valuable and exemplary service rendered by counsel de oficio, Atty. Marciano C. Dating, Jr., a compensation of P500.00 is hereby recommended for him subject to the availability of funds his findings of injuries into writing. (Exhibit "A"), which, together with their probable cause, as testified to by him, are as follows:
Injury SO ORDERED. Cause The accused having been sentenced to suffer the penalty of death, this case is on automatic review before this Court. 1) Multiple abrasions with At the trial in the court a quo, the prosecution presented the following witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania and Narciso Abuyo.
"Blunt object or friction by
Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay, Camarines Norte, testified that, after passing the Board Examination, he was employed as a Resident Physician of La Union Provincial Hospital, then as Junior Resident Physician of Bethane Hospital in San Fernando, La Union and that later, he joined the government service, starting from 1968 up to the time of the trial; that as a Doctor of Medicine, he had performed about ten (10) post mortem examinations; that he was called upon by the Municipal Judge of Talisay to examine the corpse of Marciana AbuyoSalufrania that was exhumed from its grave in the Municipal Cemetery of Talisay at around 11:00 o'clock in the morning of 11 December 1974; that his post mortem examination lasted from 12:30 o'clock to 2:00 o'clock in the afternoon of the same day. He reduced
contusion, left leg, middle part,
hard object" (tsn., Aug. 20, posterior
covering an area of
1976, p. 7)
38

about 2 & 1/2 by 5 inches. wounds, right face, starting
(tsn., Aug. 20, 1976, p. 7) 2) Abrasions, 1/2 by 2 from the side of the right eye Friction on a hard object"
inches, medial side of the cubi down to mandibular bone (tsn., Aug. 20, 1976, p. 7)
tal fossa (back left leg) (right check)
3) Multiple pinhead sized 4) Upper right eyelid Hard pinhead sized material
39

No cause given
more prominent than the left 5) Tongue protruding bet
Usually, the main cause of eyelid ("the right upper eyelid a ween the lips, about 1 inch teeth
protruding tongue during little bit bulging than the left line.
death is (by) strangulation. eye "and" sort of "swollen") (tsn.,
(tsn., Aug. 20, 1976, p. 8) Aug. 20, 1976, pp. 7-8)
40

6) Deceased is pregnant the basis of the information relayed by a certain Leonila Loma to his nurse before the burial, without mentioning the cause of death; that the cause of death, as cardiac arrest, was indicated on said death certificate only after the post mortem examination on 11 December 1974.
with a baby boy about 7-8
months old (tsn., Aug. 20,
The other witness for the prosecution was Pedro Salufrania, son of herein appellant and of the deceased. The lower court's decision states that, by reason of interest and relationship, before Pedro Salufrania was allowed to testify against his father-accused Filomeno Salufrania, he was carefully examined by the prosecuting officer and the defense counsel under the careful supervision of the court a quo, to determine whether, at his age of 13 years old, he was already capable of receiving correct impressions of facts and of relating them truly and, also, whether he was compelled and/or threatened by anybody to testify against his father-accused. 1
1976, p. 8).
Dr. Dyquiangco testified examination, he issued a issued a death certificate Abuyo-Salufrania, bearing
that after conducting the post mortem certification thereof (Exhibit "A"); that he (Exhibit "B") for the deceased Marciano the date of 5 December 1974, made on
The lower court found Pedro Salufrania to be determined and intelligent. He convincingly declared that he was not threatened by any of his uncles on his mother's side to testify against his father, because it was true that the latter killed his mother. Then, formally testifying as the prosecution's lone eyewitness, he stated that his father Filomeno Salufrania and his mother Marciana Abuyo quarrelled at about 6:00 o'clock in the evening of 3 December 1974, in their small house at a far away sitio in barrio Tigbinan, Labo, Camarines Norte; that during said quarrel, he saw his father box his pregnant mother on the stomach and, once fallen on the floor, his father strangled her to death; that he saw blood ooze from the eyes
41

and nose of his mother and that she died right on the spot where she fell. seven (7) months pregnant when she died; that he first came to know about his sister's death on 4 December 1974 thru his nephews Pedro and Alex Salufrania who first informed him that their mother died of stomach ailment and headache; that he went to Tigbinan to request for the body of his sister so that it may be buried in Talisay, Camarines Norte and, as intended, Marciana Abuyo was buried in the Talisay Cemetery on 6 December 1974.
Pedro Salufrania further testified that after killing his mother, the accused- appellant went out of the house to get a hammock; that his brother Alex and he were the only ones who witnessed how the accused killed their mother because his sister and other brothers were already asleep when the horrible incident happened; that his brothers Celedonio, Danilo and sister Merly woke up after the death of their mother and kept watch at their mothers body while their father was away; that their father arrived early the next morning with the hammock and after placing their dead mother on the hammock, the accused carried her on his shoulder and brought the cadaver to the house of his sister Conching, located at a populated section of Tigbinan that from Tigbinan the corpse was transferred to Gabon, Talisay, Camarines Norte for burial.
Continuing his testimony, Pedro Salufrania stated that he is now living with his uncle Eduardo Abuyo and had refused and still refused to live with his father-accused, because the latter has threatened to kill him and his other brothers and sister should he reveal the true cause of his mother's death.
Narciso Abuyo also declared that after the burial of Marciana Abuyo, the three (3) children of his deceased sister went to his house and refused to go home with their father Filomeno Salufrania; that when asked for the reason why, his nephew Alex Salufraa told him that the real cause of death of their mother was not stomach ailment and headache, rather, she was boxed on the stomach and strangled to death by their father; that immediately after learning of the true cause of death of his sister, he brought the matter to the attention of the police authorities of Talisay, Camarines Norte, who investigated Alex and Pedro Salufirania and later, to that of the Office of the Provincial Fiscal of Camarines Norte.
The defense had for witnesses Geronimo Villan, Juanito Bragais, Angeles Liling Balce and the accused Filomeno Salufrania.
The third witness for the prosecution was Narciso Abuyo, a resident of Gabon, Talisay, Camarines Norte. He testified that the accused Filomeno Salufrania and his sister, the deceased Marciana Abuyo, were lawfully wedded husband and wife as evidenced by a marriage contract (Exhibit "C"). He declared that his sister was more or less
Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania. He declared that Marciana Abuyo died at around 6:00 o'clock in the morning of 4 December 1974 in her house at Sitio Kapagisahan Tigbinan Labo, Camarines Norte; that he happened to pass by said house because his attention was attracted by the bright
42

light in the fireplace and he saw Filomeno Salufrania boiling "ikmo" and garlic as medicine for his wife who was about to deliver a child; that he helped the accused by applying "ikmo" to the different parts of the body of Marciana Abuyo and by administering the native treatment known as "bantil", that is, by pinching and pulling the skin with two fingers of his closed fist; that when the condition of Marciana Abuyo worsened, he told Filomeno Salufrania to go and get Juanita Bragais who is known as a healer but the latter arrived at about 7:00 o'clock in the morning of 4 December 1974 and that at that time Marciana Abuyo was already dead. The accused Filomeno Salufrania admitted that he was that lawful husband of the deceased Marciana Abuyo; that at around 9:00 o'clock in the morning of 3 December 1974, Marciana arrived home from Talisay where she had earlier stayed for about a week; that she was hungry upon her arrival, so he allegedly cooked their food and after eating their lunch, he proceeded to his work while his wife rested in their house; that when he returned home at 3:00 o'clock in the afternoon of that same day, his wife complained to him of stomach pain and he was told to prepare the beddings because she was already sleepy; that at about 4:00 o'clock in the morning of 4 December 1974, he was awakened by his wife who was still complaining of stomach pain, and that she asked for a drink of hot water; that while he was boiling water, Geronimo Villan arrived and assisted him in administering to his wife the native treatments known as "hilot" or massaging and "banti" that Geronimo Villan and Francisco Repuya alternately applied "bantil" to his wife but when her condition worsened, he woke up his children, Pedro and Alex to fetch Rico Villanueva who might be able to ,save the life of their mother; that his children left and returned without Rico Villanueva but the latter arrived a little later.
Witness Juanita Bragais testified that he was fetched by Felipe Salufrania, another son of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974. He further testified that when he reached the house of the Salufranias, Marciana Abuyo was already dead so he just helped Filomeno Salufrania in transferring the body of his wife to the house of the latter's brother-in-law at Tigbinan, Labo, Camarines Norte.
Angeles Liling Balce, who claimed to be a former resident of Kapagisahan Tigbinan, Labo, Camarines Norte testified that she arrived in the house of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974 after being called by one of the latter's sons; that she saw Marciana still in a coma lying on the lap of her husband who informed her that Marciana was suffering from an old stomach ailment.
Accused-appellant then went on to say that he sent for Juanito Bragais but the latter was not able to cure his wife, since the latter was already dead when he arrived; that after the death of his wife, he ordered his children to get the hammock of Kaloy Belardo whose house was about two (2) kilometers away from their house, and upon the arrival of the hammock, he placed the body of his wife thereon and brought it to the house of his sister Consolacion Salufrania in Tigbinan; that while the corpse of Marciana Abuyo was at Tigbinan he sent Chiding and his elder son to inform the brothers and sisters of his wife at Talisay about her death and that Leonila Abuyo and
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Salvador Abuyo came; that he informed the Barangay Captain of Tigbinan of the cause of death of his wife; that upon the suggestion of the brothers and sisters of Marciana Abuyo, especially Salvador Abuyo, the body of their sister was brought home to Talisay and thereafter buried at the Talisay Cemetery; that there was no quarrel between him and his wife that preceded the latter's death, and that during the lifetime of the deceased, they loved each other; that after her burial, his son Pedro Salufrania was taken by his brother-in-law Narciso Abuyo and since then, he was not able to talk to his son until during the trial; and that at the time of death of his wife, aside from the members of his family, Geronimo Villan Francisco Repuya and Liling Angeles Balce were also present. RULE THAT THE ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS SHOWN BEYOND ANY REASONABLE DOUBT.
II
ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE PROSECUTION IS CREDIBLE AND SUFFICIENT, THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE COMPLEX CRIME OF PARRICIDE WITH INTENTIONAL ABORTION.
The case was considered submitted for decision by the trial court on 18 July 1978. As aforestated, the trial court found the appellant guilty of the crimes charged and sentenced him to the penalty of death.
III
The appellant assigns the following errors allegedly committed by the trial court:
THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR THE ACCUSED.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND ON INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE PROSECUTION, THEREBY VIOLATING THE
Appellant alleges that the trial court failed to determine the competence of Pedro Salufrania before he was allowed to testify. Since Pedro was allegedly a child of tender age, being only thirteen (13) years old when he testified, and only eleven (11) years old when the offense charged occurred, he is presumed incompetent under Rule 130 Sec. 19 (b) of the Revised Rules of Court, which includes among those who cannot be witnesses:
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Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving correct impressions of the facts respecting which they are examined, or of relating them truly.
Q.
No, I was not forced by my uncle.
xxx
xxx
xxx
Therefore, according to appellant, for failure of the trial court to determine Pedro's competence, the presumption of incompetency was not rebutted and Pedro's testimony should not have been admitted. Moreover, appellant stresses that there is no basis for the trial court's finding that Pedro is intelligent.
A.
The accused is your father?
Q.
Yes, sir.
Appellant's contention is without merit. The record shows that the trial court determined Pedro Salufrania's competency before he was allowed to testify under oath. 2 The trial court's conclusion that Pedro was intelligent and competent is fully supported by Pedro's responsiveness to the questions propounded to him when he was already under oath:
A.
Do you love him?
Q.
No, sir.
A.
Did you go here in court to testify voluntarily?
A. Your father is accused now of crime which carries the penalty of death, are you still willing to testify against him?
Q.
Yes, Your Honor.
xxx
xxx
xxx
A.
Were you not forced by your uncle to testify in his case?
Q.
Why did you say that you don't love your father
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Q. Isn't it that your uncle threatened you with bodily harm if you will not give statement before the police? A. Because he killed my mother.
A. Q. And that is the reason why you hate your father now?
No, sir.
xxx A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976).
xxx
xxx
Pedro's strong sense of moral duty to tell the truth, even though it should lead to his father's conviction, shows that he fully appreciated the meaning of an oath, which likewise proves that he was no longer a child of tender years at the time of his testimony.
Q. But later you actually went with your uncle to the police because you were threatened by him with bodily harm if you will not follow him?
A. Appellant also alleges that, since Pedro changed his answer from no to yes when he was asked whether he was threatened by his uncle to testify against his father, shows that Pedro was lying and proves that he did not appreciate the meaning of an oath at all. 3
Yes, sir.
Q. Is it true that your uncle threatened you with bodily harm if you will not give statement to the police?
Again, this contention is without merit, Pedro became confused when the trial court ordered that the original question be reformed. Pedro's confusion is apparent from the fact that when asked the third time, he affirmed his first answer,
A.
No, sir. (tsn., pp. 6, 7, Nov. 12, 1976)
Appellant next lists the following alleged inconsistencies to discredit the testimony of Pedro. First, Pedro testified on direct examination that his mother died in the evening of December 3. while on crossexamination he said that she died in the morning of December 4. It
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must be noted that he affirmed twice during cross-examination that his mother died on December 3, just as he had testified during direct examination. Significantly, he did not mention December 4 as the date when she died, as appellant would make it appear. Pedro merely answered 'yes' to the question "And isn't it that your mother died in the early morning on that day (December 4) and not on the evening of December 3?" 4 Thus, Pedro's answer could have resulted only from a misapprehension of the a question, and for no other reason. hammock so that your mother may be brought to Tigbinan what time was that?
A.
About 12:00 o'clock noon. (Tsn, p. 16, Nov. 12, 1976)
Second, appellant alleges that Pedro testified on direct examination that he saw appellant leave the house to get a hammock after strangling the victim and then came back the following morning. However, upon cross-examination, Pedro testified that appellant left at noon or in the afternoon of December 4. Moreover, Pedro allegedly testified on re-direct that he saw appellant sleep beside the dead body of his mother. Again Pedro misapprehended the question propounded to him. Ajudicious reading of the transcript will bear this out:
One may discern that the court itself noticed that there was a missapprehension when it commented "that maybe when the body was brought to Talisay" after Pedro answered "In the afternoon". When Pedro answered "about 12:00 noon' he must have been referring to the time when appellant carried his dead wife to Tigbinan. It must be noted that the question was so worded that it could have misled Pedro to think that what was being asked was the time when appellant brought his dead wife to Tigbinan. In fact, there is nothing inconsistent with Pedro's testimony that he saw his father leave in the evening of December 3 and again saw him asleep and thus not noticed appellant's coming back after securing a hammock and sleeping beside the deceased. Pedro was therefore telling the truth when he said that, upon waking up, he saw his father sleeping beside his dead mother. By then, appellant had already returned with the hammock.
Q.
When did your father leave to get the hammock? Third, Pedro allegedly testified on direct examination that the corpse was carried to Tigbinan in the morning of December 4, while on cross-examination, he said it was in the evening. 5 It must be pointed out that Pedro merely answered "yes" to a question purportedly mentioning the time when the victim's body was transferred to Tigbinan. The question is as follows: "The corpse of your mother was brought to the Tigbinan proper when the vigil was had in the evening
A.
In the afternoon.
Q. That may be when the body was brought to Talisay. When your father, rather, when you said that your father left to get a
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of December 4, is that right?" It is to be noted that the question's thrust is whether or not the victim's body was brought to Tigbinan. The time it was brought was merely incidental. Thus, Pedro may not have paid attention to the part of the question involving time. Moreover, the phrase "in the evening" may have referred either to the time of transport of the body or to the vigil, which could have definitely confused Pedro. Appellant alleges that he does not believe that it was fear of him that caused the delay in Pedro's divulging the real cause of his mother's death until 10 December 1974. According to appellant, such fear could no longer have influenced Pedro from December 6, the date he started to live separately from him. This contention is untenable. Even though Pedro started to live separately from his father from December 6, it cannot be said that the influence of appellant's threat suddenly ceased from that time. It must be noted that Pedro was young and was still very much under appellant's influence and control. The thought and memory of his father's viciousness were still too fresh even after three days from his mother's death. The fear that he too could be killed by appellant in like manner must have deterred him from divulging the truth earlier.
Fourth, Pedro allegedly testified on direct examination that he, together with his brothers and sister, kept vigil beside their mother's dead body that night, while on cross-examination, he testified that they just kept lying down and pretended to sleep. 6 There is nothing inconsistent here. The children could have kept vigil while lying down with their deceased mother.
Appellant further cites other alleged improbabilities to discredit Pedro's testimony. Appellant contends that it was improbable for Pedro to have seen the attack on his mother since he testified that the room was dimly lighted, and that, while the attach was going on, he closed his eyes pretending to sleep. 7 This contention is without merit. Even though the room was dimly lighted, Pedro was only two (2) meters away from his parents; thus, he could easily see, as he saw, the attack on his mother. 8 Also, although he pretended to be asleep, it was unlikely that he kept his eyes closed all the while, as he was aware that a fight was going on. Rather, it was to be expected that he had his eyes open and, thus, he saw the heinous crime unfold and ultimately consumated.
Appellant also alleges that it was improbable for Pedro to have just watched the killing of his mother. This contention is untenable. At that moment, when his mother was being assaulted and strangled, Pedro must have been so shocked as to be rendered immobile and powerless to do anything. This is a normal reaction in such a situation. Besides, it is a fact of life that different people react differently to the same types of situations. 9 One cannot overlook that there is no standard form of behaviour when one is confronted by a shocking occurrence. 10
Appellant next alleges that since the prosecution has failed without satisfactory explanation to present Pedro's brother Alex who is alleged to be also an eyewitness to the killing of the victim, it is presumed that Alex's testimony would be adverse to the prosecution if presented. This contention is without merit. First, Alex, who is
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younger than Pedro by 3 years, may not have been competent to testify due to his tender age. Second, even assuming that he was competent to testify, his testimony could be merely corroborative. Corroboration is not necessary in this case because the details of the crime have already been testified to by Pedro with sufficient clarity. The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely corroborative. 11 Witnesses are to be weighed, not numbered, and it is a well established rule that the testimony of a single witness, even if uncorroborated, but positive and credible, is sufficient to support a conviction. 12 In any event, it is not for the appellant to say how many witnesses the prosecution should have presented. 13 ... The testimony of eye-witness Pedro Salufrania, 13-year old son of the victim Marciana Abuyo and her killer-spouse Filomeno Salufrania, appears to be very clear, convincing and truthful. It is vivid as to the details of the horrible occurence that took place at about 6:00 o'clock in the evening of December 3, 1974 in their small house at a far away sitio of Tigbinan, Labo, Camarines Norte, resulting in the untimely and cruel death of her (sic) mother. He and his brother Alex were the only eyewitnesses to the gory crime committed by their father. The credibility of this witness (Pedro Salufrania) and his testimony was invested when, despite rigid crossexamination, the veracity of his testimony in chief was not impeached. He remained firm and on the verge of crying, when he pointed an accusing finger at his father during the trial. He was unshaken notwithstanding a long and detailed cross-examination. And, there is reason to bestow complete credence to his testimony because he had the opportunity to closely observe how his father had deliberately and cruelly ended the life of his mother. Despite his tender age and apparent childish innocence, this Court believes that he can clearly perceive and perceiving, make known his perception, precluding the possibility of coaching or tutoring by someone. His declaration as to when, where and how the horrible incident complained of happened is the believable version. 15
The inconsistencies magnified by appellant in the testimony of Pedro Salufrania have been satisfactorily explained. In fact, some of them are not material since they neither touch upon the manner of death of the victim nor question the identity of the killer, both of which were unwaveringly testified upon by Pedro. Thus, with the alleged inconsistencies and improbabilities explained away, Pedro's testimony remains unperturbed. Even if there were discrepancies, such discrepancies were minor and may be considered as earmarks of verisimilitude. 14
The trial court's assessment of Pedro's testimony, as quoted hereunder, deserves more than passing consideration:
Appellant questions the competence of Dr. Dyquiangco as an expert witness, since this is the first time that the doctor conducted an autopsy on a cadaver which had been buried for about a week. It must be noted, however, that although this was the doctor's first autopsy under circumstances present in this case, he had, however, conducted similar post-mortem examinations on ten (10) other occasions. This would constitute sufficient experience. Significantly, appellant did not object to the doctor's expression of medical
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opinions during the trial. Being an expert in his field, the doctor is presumed to have taken all pertinent factors into consideration with regard to the autopsy, including embalming and the state of the cadaver's decomposition. Dr. Juan Dyquiangco Jr., was a disinterested witness in the case, and a reputable public official in whose favor the presumption of regularity in the performance of official duties must be applied. defense version, as hereunder quoted, are tenable and sound. Thus
Appellant further alleges that the findings of Dr. Dyquiangco and the testimony of Pedro Salufrania do not tally. Suffice it to say that the Court finds no inconsistencies between the findings of Dr. Dyquiangco and Pedro Salufrania's testimony. Both are consistent on material points. Thus, the Court sees no reason to disturb the conclusions reached by the trial court insofar as their credibility and the appellant's guilt are concerned.
Appellant's third assignment of error alleges that the trial court erred in discrediting his evidence simply because the testimonies of the defense witnesses were consistent on material points. Moreover, there is no showing, according to the appellant, that said testimonies were rehearsed so as to dovetail with each other.
This contention is without merit. The Court notes, first of all, that appellant did not even bother to discuss his defense in order to refute the massive evidence against him. This is tantamount to an admission that he could not adequately support his version of Marciana Abuyo's death. The trial court's reasons for rejecting the
On the contrary, the testimonies of defense witnesses Geronimo Villan, Angeles Liling Balce and the accused Filomeno Salufrania suspiciously dove-tailed in every detail as to when, where and how .Marciana Abuyo died at 6:00 o'clock in the morning of 4 December 1974, in their house at sitio Kapagisahan Tigbinan Labo, Carnarines Norte, of stomach pain. On these points, these witnesses and the accused made statements which seemed to be very fresh and clear in their minds, despite the lapse of four long years. Their exact and uniform declarations on these points, their phenomenal recollections, without sufficient special or uncommon reason to recall, rendered their testimonies unconvincing. If at all, their testimonies appeared to this Court to be an eleventh hour concoction. And, as defense witnesses, after observing them and their declarations on the witness stand, they appeared to the Court to be untruthful and unreliable. For, despite the synchronization of time when, the place where and how the incidence happened, their testimonies on other material points revealed their tendency to exaggerate and their propensity to falsehood, thus-Aside from the accused Filomeno Salufrania, there are three other witnesses for the defense Geronimo Villan Angeles Liling Balce and Juanita Bragais. There is nothing in the testimony of Juanito Bragais because he did not witness how and when Marciana Abuyo died. Francisco Repuya, who was also alleged by Filomeno Salufrania to be present when Marciana Abuyo died, did not testify. Accused Filomeno Salufrania never claimed that he summoned for Angeles Liling Balce. According to him Angeles Liling Balce was not present during the moment of death of Marciana Abuyo, for she was fetched by him only after the death of his wife. Logically, therefore, there is no basis for the presentation of Angeles Liling Balce that she
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was present during the moment of death of Marciana Abuyo. She was merely play-acting. Geronimo Villan who claimed he passed-by the house of Filomeno Salufrania and saw the latter boiling water with "ikmo" and garlic, as medicine for his wife Marciana Abuyo, who was about to give birth was discredited by accused himself who declared he was merely boiling water for the hot drink of his wife, who was suferring from her old stomach ailment. In like manner, witness Geronimo Villan discredited the accused Filomeno Salufrania, about the presence of Francisco Repuya, who allegedly alternated with Geronimo Villan in applying the native treatments of 'hilot' and 'bantil' to Marciana Abuyo, when throughout his testimony he (Geronimo Villan) never mentioned the presence of Francisco Repuya. disturb the findings of the trial court on the credibility of witnesses, in view of its advantage in observing first hand their demeanor in giving their testimony. 16 Such rule applies in the present case.
Lastly, appellant alleges that, assuming he indeed killed his wife, there is no evidence to show that he had the intention to cause an abortion. In this contention, appellant is correct. He should not be held guilty of the complex crime of Parricide with Intentional Abortion but of the complex crime of Parricide with Unintentional Abortion. The elements of Unintentional Abortion are as follows:
1. After closely observing defense witnesses Geronimo Villan and Angeles Liling Balce, this Court is convinced that their testimonies and accounts of the incident are fabricated, untruthful and not worth of credence. Certainly, they were not present immediately before and during the moment of death of Marciana Abuyo. ...
That there is a pregnant woman.
2. That violence is used upon such pregnant woman without intending an abortion.
3. Added to these, there is one scandalous circumstance, which to the mind of this Court, betrays the guilty conscience of the accused. If there was nothing revealing in the face of the deceased Marciana Abuyo, why was her face covered by a piece of cloth by the accused. ...
That the violence is intentionally exerted.
4. That as a result of the violence the foetus dies, either in the womb or after having been expelled therefrom. 17
Trial judges are in the best position to ascertain the truth and detect falsehoods in the testimony of witnesses. This Court will normally not
The Solicitor General's brief makes it appear that appellant intended to cause an abortion because he boxed his pregnant wife on the
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stomach which caused her to fall and then strangled her. We find that appellant's intent to cause an abortion has not been sufficiently established. Mere boxing on the stomach, taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause an abortion. In fact, appellant must have merely intended to kill the victim but not necessarily to cause an abortion. WHEREFORE, as modified, the judgment appealed from is AFFIRMED. Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The indemnity of P12,000. 00 awarded to the heirs of the deceased Marciana Abuyo is increased to P30,000.00 in line with the recent decisions of the Court. With costs against the appellant,
SO ORDERED. The evidence on record, therefore, establishes beyond reasonable doubt that accused Filomeno Salufrania committed and should be held liable for the complex crime of parricide with unintentional abortion. The abortion, in this case, was caused by the same violence that caused the death of Marciana Abuyo, such violence being voluntarily exerted by the herein accused upon his victim.
ARTICLE 257 UNINTENTIONAL ABORTION

G.R. No. L-50884 March 30, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FILOMENO SALUFRANIA, defendant-appellant.
It has also been clearly established (a) that Marciana Abuyo was seven (7) to eight (8) months pregnant when she was killed; (b) that violence was voluntarily exerted upon her by her husband accused; and (c) that, as a result of said violence, Marciana Abuyo died together with the foetus in her womb. In this afternoon, Article 48 of the Revised Penal Code states that the accused should be punished with the penalty corresponding to the more serious came of parricide, to be imposed in its maximum period which is death. However, by reason of the 1987 Constitution which has abolished the death penalty, appellant should be sentenced to suffer the penalty of reclusion perpetua.
PADILLA, J.: In an information, dated 7 May 1976, Filomeno Salufrania y Aleman was charged before the Court of First Instance of Camarines Norte, Branch I, with the complex crime of parricide with intentional abortion, committed as follows: That on or about the 3rd day of December, 1974, in Tigbinan, Labo, Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court the accused Filomeno Salufrania y Aleman did then and there, willfully, unlawfully, and feloniously attack, assault and use personal violence on MARCIANA
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ABUYO-SALUFRANIA, the lawfully wedded wife of the accused, by then and there boxing and stranging her, causing upon her injuries which resulted in her instantaneous death; and by the same criminal act committed on the person of the wife of the accused, who was at the time 8 months on the family way, the accused likewise did then and there willfully, unlawfully, and feloniously cause the death of the child while still in its maternal womb, thereby committing both crimes of PARRICIDE and INTENTIONAL ABORTION as defined and punished under Art. 246 and Art. 256, paragraph I, of the Revised Penal Code, to the damage and prejudice of the heirs of said woman and child in the amount as the Honorable Court shall assess. CONTRARY TO LAW Upon arraignment, the accused, assisted by counsel de officio, pleaded not guilty to the offenses charged. After trial the lower court rendered a decision ** dated 9 August 1978, the dispositive part of which states: WHEREFORE, finding the accused Filomeno Salufrania y Aleman guilty beyond reasonable doubt, of the complex crime of Parricide with Intentional Abortion, he is hereby sentenced to suffer the penalty of DEATH, to indemnify the heirs of the deceased Marciano Abuyo in the sum of P12,000.00 and to pay the costs. "For unselfish, valuable and exemplary service rendered by counsel de oficio, Atty. Marciano C. Dating, Jr., a compensation of P500.00 is hereby recommended for him subject to the availability of funds SO ORDERED. The accused having been sentenced to suffer the penalty of death, this case is on automatic review before this Court. At the trial in the court a quo, the prosecution presented the following witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania and Narciso Abuyo. Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay, Camarines Norte, testified that, after passing the Board Examination, he was employed as a Resident Physician of La Union Provincial Hospital, then as Junior Resident Physician of Bethane Hospital in San Fernando, La Union and that later, he joined the government service, starting from 1968 up to the time of the trial; that as a Doctor of Medicine, he had performed about ten (10) post mortem examinations; that he was called upon by the Municipal Judge of Talisay to examine the corpse of Marciana AbuyoSalufrania that was exhumed from its grave in the Municipal Cemetery of Talisay at around 11:00 o'clock in the morning of 11 December 1974; that his post mortem examination lasted from 12:30 o'clock to 2:00 o'clock in the afternoon of the same day. He reduced his findings of injuries into writing. (Exhibit "A"), which, together with their probable cause, as testified to by him, are as follows: Injury 1) Multiple abrasions with contusion, left leg, middle part, covering an area of about 2 & 1/2 by 5 Cause "Blunt object or friction by hard object" (tsn., Aug. 20, posterior 1976, p. 7)
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inches. 2) Abrasions, 1/2 by 2 inches, medial side of the cubi tal fossa (back left leg) line. 3) Multiple pinhead sized wounds, right face, starting from the side of the right eye down to mandibular bone (right check) 4) Upper right eyelid more prominent than the left eyelid ("the right upper eyelid a little bit bulging than the left eye "and" sort of "swollen") (tsn., No cause given Hard pinhead sized material (tsn., Aug. 20, 1976, p. 8) (tsn., Aug. 20, 1976, p. 7) 6) Deceased is pregnant with a baby boy about 7-8 months old (tsn., Aug. 20, 1976, p. 8). Dr. Dyquiangco testified that after conducting the post mortem examination, he issued a certification thereof (Exhibit "A"); that he issued a death certificate (Exhibit "B") for the deceased Marciano Abuyo-Salufrania, bearing the date of 5 December 1974, made on the basis of the information relayed by a certain Leonila Loma to his nurse before the burial, without mentioning the cause of death; that the cause of death, as cardiac arrest, was indicated on said death certificate only after the post mortem examination on 11 December 1974. The other witness for the prosecution was Pedro Salufrania, son of herein appellant and of the deceased. The lower court's decision states that, by reason of interest and relationship, before Pedro death is (by) strangulation. Friction on a hard object" (tsn., Aug. 20, 1976, p. 7) ween the lips, about 1 inch teeth protruding tongue during Aug. 20, 1976, pp. 7-8) 5) Tongue protruding bet Usually, the main cause of
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Salufrania was allowed to testify against his father-accused Filomeno Salufrania, he was carefully examined by the prosecuting officer and the defense counsel under the careful supervision of the court a quo, to determine whether, at his age of 13 years old, he was already capable of receiving correct impressions of facts and of relating them truly and, also, whether he was compelled and/or threatened by 1 anybody to testify against his father-accused. The lower court found Pedro Salufrania to be determined and intelligent. He convincingly declared that he was not threatened by any of his uncles on his mother's side to testify against his father, because it was true that the latter killed his mother. Then, formally testifying as the prosecution's lone eyewitness, he stated that his father Filomeno Salufrania and his mother Marciana Abuyo quarrelled at about 6:00 o'clock in the evening of 3 December 1974, in their small house at a far away sitio in barrio Tigbinan, Labo, Camarines Norte; that during said quarrel, he saw his father box his pregnant mother on the stomach and, once fallen on the floor, his father strangled her to death; that he saw blood ooze from the eyes and nose of his mother and that she died right on the spot where she fell. Pedro Salufrania further testified that after killing his mother, the accused- appellant went out of the house to get a hammock; that his brother Alex and he were the only ones who witnessed how the accused killed their mother because his sister and other brothers were already asleep when the horrible incident happened; that his brothers Celedonio, Danilo and sister Merly woke up after the death of their mother and kept watch at their mothers body while their father was away; that their father arrived early the next morning with the hammock and after placing their dead mother on the hammock, the accused carried her on his shoulder and brought the cadaver to the house of his sister Conching, located at a populated section of Tigbinan that from Tigbinan the corpse was transferred to Gabon, Talisay, Camarines Norte for burial. Continuing his testimony, Pedro Salufrania stated that he is now living with his uncle Eduardo Abuyo and had refused and still refused to live with his father-accused, because the latter has threatened to kill him and his other brothers and sister should he reveal the true cause of his mother's death. The third witness for the prosecution was Narciso Abuyo, a resident of Gabon, Talisay, Camarines Norte. He testified that the accused Filomeno Salufrania and his sister, the deceased Marciana Abuyo, were lawfully wedded husband and wife as evidenced by a marriage contract (Exhibit "C"). He declared that his sister was more or less seven (7) months pregnant when she died; that he first came to know about his sister's death on 4 December 1974 thru his nephews Pedro and Alex Salufrania who first informed him that their mother died of stomach ailment and headache; that he went to Tigbinan to request for the body of his sister so that it may be buried in Talisay, Camarines Norte and, as intended, Marciana Abuyo was buried in the Talisay Cemetery on 6 December 1974. Narciso Abuyo also declared that after the burial of Marciana Abuyo, the three (3) children of his deceased sister went to his house and refused to go home with their father Filomeno Salufrania; that when asked for the reason why, his nephew Alex Salufraa told him that the real cause of death of their mother was not stomach ailment and headache, rather, she was boxed on the stomach and strangled to death by their father; that immediately after learning of the true cause of death of his sister, he brought the matter to the attention of the police authorities of Talisay, Camarines Norte, who investigated Alex and Pedro Salufirania and later, to that of the Office of the Provincial Fiscal of Camarines Norte. The defense had for witnesses Geronimo Villan, Juanito Bragais, Angeles Liling Balce and the accused Filomeno Salufrania. Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania. He declared that Marciana Abuyo died at around 6:00
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o'clock in the morning of 4 December 1974 in her house at Sitio Kapagisahan Tigbinan Labo, Camarines Norte; that he happened to pass by said house because his attention was attracted by the bright light in the fireplace and he saw Filomeno Salufrania boiling "ikmo" and garlic as medicine for his wife who was about to deliver a child; that he helped the accused by applying "ikmo" to the different parts of the body of Marciana Abuyo and by administering the native treatment known as "bantil", that is, by pinching and pulling the skin with two fingers of his closed fist; that when the condition of Marciana Abuyo worsened, he told Filomeno Salufrania to go and get Juanita Bragais who is known as a healer but the latter arrived at about 7:00 o'clock in the morning of 4 December 1974 and that at that time Marciana Abuyo was already dead. Witness Juanita Bragais testified that he was fetched by Felipe Salufrania, another son of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974. He further testified that when he reached the house of the Salufranias, Marciana Abuyo was already dead so he just helped Filomeno Salufrania in transferring the body of his wife to the house of the latter's brother-in-law at Tigbinan, Labo, Camarines Norte. Angeles Liling Balce, who claimed to be a former resident of Kapagisahan Tigbinan, Labo, Camarines Norte testified that she arrived in the house of Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974 after being called by one of the latter's sons; that she saw Marciana still in a coma lying on the lap of her husband who informed her that Marciana was suffering from an old stomach ailment. The accused Filomeno Salufrania admitted that he was that lawful husband of the deceased Marciana Abuyo; that at around 9:00 o'clock in the morning of 3 December 1974, Marciana arrived home from Talisay where she had earlier stayed for about a week; that she was hungry upon her arrival, so he allegedly cooked their food and after eating their lunch, he proceeded to his work while his wife rested in their house; that when he returned home at 3:00 o'clock in the afternoon of that same day, his wife complained to him of stomach pain and he was told to prepare the beddings because she was already sleepy; that at about 4:00 o'clock in the morning of 4 December 1974, he was awakened by his wife who was still complaining of stomach pain, and that she asked for a drink of hot water; that while he was boiling water, Geronimo Villan arrived and assisted him in administering to his wife the native treatments known as "hilot" or massaging and "banti" that Geronimo Villan and Francisco Repuya alternately applied "bantil" to his wife but when her condition worsened, he woke up his children, Pedro and Alex to fetch Rico Villanueva who might be able to ,save the life of their mother; that his children left and returned without Rico Villanueva but the latter arrived a little later. Accused-appellant then went on to say that he sent for Juanito Bragais but the latter was not able to cure his wife, since the latter was already dead when he arrived; that after the death of his wife, he ordered his children to get the hammock of Kaloy Belardo whose house was about two (2) kilometers away from their house, and upon the arrival of the hammock, he placed the body of his wife thereon and brought it to the house of his sister Consolacion Salufrania in Tigbinan; that while the corpse of Marciana Abuyo was at Tigbinan he sent Chiding and his elder son to inform the brothers and sisters of his wife at Talisay about her death and that Leonila Abuyo and Salvador Abuyo came; that he informed the Barangay Captain of Tigbinan of the cause of death of his wife; that upon the suggestion of the brothers and sisters of Marciana Abuyo, especially Salvador Abuyo, the body of their sister was brought home to Talisay and thereafter buried at the Talisay Cemetery; that there was no quarrel between him and his wife that preceded the latter's death, and that during the lifetime of the deceased, they loved each other; that after her burial, his son Pedro Salufrania was taken by his brother-in-law Narciso Abuyo and since then, he was not able to talk to his son until during the trial; and that at the time of death of his wife, aside from the members of his family, Geronimo Villan Francisco Repuya and Liling Angeles Balce were also present.
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The case was considered submitted for decision by the trial court on 18 July 1978. As aforestated, the trial court found the appellant guilty of the crimes charged and sentenced him to the penalty of death. The appellant assigns the following errors allegedly committed by the trial court: I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND ON INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE PROSECUTION, THEREBY VIOLATING THE RULE THAT THE ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS SHOWN BEYOND ANY REASONABLE DOUBT. II ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE PROSECUTION IS CREDIBLE AND SUFFICIENT, THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE COMPLEX CRIME OF PARRICIDE WITH INTENTIONAL ABORTION. III THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR THE ACCUSED. Appellant alleges that the trial court failed to determine the competence of Pedro Salufrania before he was allowed to testify. Since Pedro was allegedly a child of tender age, being only thirteen (13) years old when he testified, and only eleven (11) years old when the offense charged occurred, he is presumed incompetent under Rule 130 Sec. 19 (b) of the Revised Rules of Court, which includes among those who cannot be witnesses: Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving correct impressions of the facts respecting which they are examined, or of relating them truly. Therefore, according to appellant, for failure of the trial court to determine Pedro's competence, the presumption of incompetency was not rebutted and Pedro's testimony should not have been admitted. Moreover, appellant stresses that there is no basis for the trial court's finding that Pedro is intelligent. Appellant's contention is without merit. The record shows that the trial court determined Pedro Salufrania's competency before he was 2 allowed to testify under oath. The trial court's conclusion that Pedro was intelligent and competent is fully supported by Pedro's responsiveness to the questions propounded to him when he was already under oath: A. Did you go here in court to testify voluntarily? Q. Yes, Your Honor. A. Were you not forced by your uncle to testify in his case? Q. No, I was not forced by my uncle. xxx xxx xxx A. The accused is your father?
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Q. Yes, sir. A. Do you love him? Q. No, sir. A. Your father is accused now of crime which carries the penalty of death, are you still willing to testify against him? xxx xxx xxx Q. Why did you say that you don't love your father A. Because he killed my mother. Q. And that is the reason why you hate your father now? A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976). Pedro's strong sense of moral duty to tell the truth, even though it should lead to his father's conviction, shows that he fully appreciated the meaning of an oath, which likewise proves that he was no longer a child of tender years at the time of his testimony. Appellant also alleges that, since Pedro changed his answer from no to yes when he was asked whether he was threatened by his uncle to testify against his father, shows that Pedro was lying and 3 proves that he did not appreciate the meaning of an oath at all. xxx xxx xxx Q. But later you actually went with your uncle to the police because you were threatened by him with bodily harm if you will not follow him? A. Yes, sir. Q. Is it true that your uncle threatened you with bodily harm if you will not give statement to the police? A. No, sir. (tsn., pp. 6, 7, Nov. 12, 1976) Appellant next lists the following alleged inconsistencies to discredit the testimony of Pedro. First, Pedro testified on direct examination that his mother died in the evening of December 3. while on crossexamination he said that she died in the morning of December 4. It must be noted that he affirmed twice during cross-examination that his mother died on December 3, just as he had testified during direct Again, this contention is without merit, Pedro became confused when the trial court ordered that the original question be reformed. Pedro's confusion is apparent from the fact that when asked the third time, he affirmed his first answer, Q. Isn't it that your uncle threatened you with bodily harm if you will not give statement before the police? A. No, sir.
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examination. Significantly, he did not mention December 4 as the date when she died, as appellant would make it appear. Pedro merely answered 'yes' to the question "And isn't it that your mother died in the early morning on that day (December 4) and not on the 4 evening of December 3?" Thus, Pedro's answer could have resulted only from a misapprehension of the a question, and for no other reason. Second, appellant alleges that Pedro testified on direct examination that he saw appellant leave the house to get a hammock after strangling the victim and then came back the following morning. However, upon cross-examination, Pedro testified that appellant left at noon or in the afternoon of December 4. Moreover, Pedro allegedly testified on re-direct that he saw appellant sleep beside the dead body of his mother. Again Pedro misapprehended the question propounded to him. Ajudicious reading of the transcript will bear this out: Q. When did your father leave to get the hammock? A. In the afternoon. Q. That may be when the body was brought to Talisay. When your father, rather, when you said that your father left to get a hammock so that your mother may be brought to Tigbinan what time was that? A. About 12:00 o'clock noon. (Tsn, p. 16, Nov. 12, 1976) One may discern that the court itself noticed that there was a missapprehension when it commented "that maybe when the body was brought to Talisay" after Pedro answered "In the afternoon". When Pedro answered "about 12:00 noon' he must have been referring to the time when appellant carried his dead wife to Tigbinan. It must be noted that the question was so worded that it could have misled Pedro to think that what was being asked was the time when appellant brought his dead wife to Tigbinan. In fact, there is nothing inconsistent with Pedro's testimony that he saw his father leave in the evening of December 3 and again saw him asleep and thus not noticed appellant's coming back after securing a hammock and sleeping beside the deceased. Pedro was therefore telling the truth when he said that, upon waking up, he saw his father sleeping beside his dead mother. By then, appellant had already returned with the hammock. Third, Pedro allegedly testified on direct examination that the corpse was carried to Tigbinan in the morning of December 4, while on 5 cross-examination, he said it was in the evening. It must be pointed out that Pedro merely answered "yes" to a question purportedly mentioning the time when the victim's body was transferred to Tigbinan. The question is as follows: "The corpse of your mother was brought to the Tigbinan proper when the vigil was had in the evening of December 4, is that right?" It is to be noted that the question's thrust is whether or not the victim's body was brought to Tigbinan. The time it was brought was merely incidental. Thus, Pedro may not have paid attention to the part of the question involving time. Moreover, the phrase "in the evening" may have referred either to the time of transport of the body or to the vigil, which could have definitely confused Pedro. Fourth, Pedro allegedly testified on direct examination that he, together with his brothers and sister, kept vigil beside their mother's dead body that night, while on cross-examination, he testified that 6 they just kept lying down and pretended to sleep. There is nothing inconsistent here. The children could have kept vigil while lying down with their deceased mother.
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Appellant further cites other alleged improbabilities to discredit Pedro's testimony. Appellant contends that it was improbable for Pedro to have seen the attack on his mother since he testified that the room was dimly lighted, and that, while the attach was going on, 7 he closed his eyes pretending to sleep. This contention is without merit. Even though the room was dimly lighted, Pedro was only two (2) meters away from his parents; thus, he could easily see, as he 8 saw, the attack on his mother. Also, although he pretended to be asleep, it was unlikely that he kept his eyes closed all the while, as he was aware that a fight was going on. Rather, it was to be expected that he had his eyes open and, thus, he saw the heinous crime unfold and ultimately consumated. Appellant alleges that he does not believe that it was fear of him that caused the delay in Pedro's divulging the real cause of his mother's death until 10 December 1974. According to appellant, such fear could no longer have influenced Pedro from December 6, the date he started to live separately from him. This contention is untenable. Even though Pedro started to live separately from his father from December 6, it cannot be said that the influence of appellant's threat suddenly ceased from that time. It must be noted that Pedro was young and was still very much under appellant's influence and control. The thought and memory of his father's viciousness were still too fresh even after three days from his mother's death. The fear that he too could be killed by appellant in like manner must have deterred him from divulging the truth earlier. Appellant also alleges that it was improbable for Pedro to have just watched the killing of his mother. This contention is untenable. At that moment, when his mother was being assaulted and strangled, Pedro must have been so shocked as to be rendered immobile and powerless to do anything. This is a normal reaction in such a situation. Besides, it is a fact of life that different people react 9 differently to the same types of situations. One cannot overlook that there is no standard form of behaviour when one is confronted by a 10 shocking occurrence. Appellant next alleges that since the prosecution has failed without satisfactory explanation to present Pedro's brother Alex who is alleged to be also an eyewitness to the killing of the victim, it is presumed that Alex's testimony would be adverse to the prosecution if presented. This contention is without merit. First, Alex, who is younger than Pedro by 3 years, may not have been competent to testify due to his tender age. Second, even assuming that he was competent to testify, his testimony could be merely corroborative. Corroboration is not necessary in this case because the details of the crime have already been testified to by Pedro with sufficient clarity. The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely 11 corroborative. Witnesses are to be weighed, not numbered, and it is a well established rule that the testimony of a single witness, even if uncorroborated, but positive and credible, is sufficient to support a 12 conviction. In any event, it is not for the appellant to say how many 13 witnesses the prosecution should have presented. The inconsistencies magnified by appellant in the testimony of Pedro Salufrania have been satisfactorily explained. In fact, some of them are not material since they neither touch upon the manner of death of the victim nor question the identity of the killer, both of which were unwaveringly testified upon by Pedro. Thus, with the alleged inconsistencies and improbabilities explained away, Pedro's testimony remains unperturbed. Even if there were discrepancies, such discrepancies were minor and may be considered as earmarks 14 of verisimilitude. The trial court's assessment of Pedro's testimony, as quoted hereunder, deserves more than passing consideration: ... The testimony of eye-witness Pedro Salufrania, 13-year old son of the victim Marciana Abuyo and her killer-spouse Filomeno Salufrania, appears to be very clear, convincing and truthful. It is vivid as to the
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details of the horrible occurence that took place at about 6:00 o'clock in the evening of December 3, 1974 in their small house at a far away sitio of Tigbinan, Labo, Camarines Norte, resulting in the untimely and cruel death of her (sic) mother. He and his brother Alex were the only eyewitnesses to the gory crime committed by their father. The credibility of this witness (Pedro Salufrania) and his testimony was invested when, despite rigid cross-examination, the veracity of his testimony in chief was not impeached. He remained firm and on the verge of crying, when he pointed an accusing finger at his father during the trial. He was unshaken notwithstanding a long and detailed crossexamination. And, there is reason to bestow complete credence to his testimony because he had the opportunity to closely observe how his father had deliberately and cruelly ended the life of his mother. Despite his tender age and apparent childish innocence, this Court believes that he can clearly perceive and perceiving, make known his perception, precluding the possibility of coaching or tutoring by someone. His declaration as to when, where and how the horrible incident complained of 15 happened is the believable version. Appellant questions the competence of Dr. Dyquiangco as an expert witness, since this is the first time that the doctor conducted an autopsy on a cadaver which had been buried for about a week. It must be noted, however, that although this was the doctor's first autopsy under circumstances present in this case, he had, however, conducted similar post-mortem examinations on ten (10) other occasions. This would constitute sufficient experience. Significantly, appellant did not object to the doctor's expression of medical opinions during the trial. Being an expert in his field, the doctor is presumed to have taken all pertinent factors into consideration with regard to the autopsy, including embalming and the state of the cadaver's decomposition. Dr. Juan Dyquiangco Jr., was a disinterested witness in the case, and a reputable public official in whose favor the presumption of regularity in the performance of official duties must be applied. Appellant further alleges that the findings of Dr. Dyquiangco and the testimony of Pedro Salufrania do not tally. Suffice it to say that the Court finds no inconsistencies between the findings of Dr. Dyquiangco and Pedro Salufrania's testimony. Both are consistent on material points. Thus, the Court sees no reason to disturb the conclusions reached by the trial court insofar as their credibility and the appellant's guilt are concerned. Appellant's third assignment of error alleges that the trial court erred in discrediting his evidence simply because the testimonies of the defense witnesses were consistent on material points. Moreover, there is no showing, according to the appellant, that said testimonies were rehearsed so as to dovetail with each other. This contention is without merit. The Court notes, first of all, that appellant did not even bother to discuss his defense in order to refute the massive evidence against him. This is tantamount to an admission that he could not adequately support his version of Marciana Abuyo's death. The trial court's reasons for rejecting the defense version, as hereunder quoted, are tenable and sound. Thus On the contrary, the testimonies of defense witnesses Geronimo Villan, Angeles Liling Balce and the accused Filomeno Salufrania suspiciously dovetailed in every detail as to when, where and how .Marciana Abuyo died at 6:00 o'clock in the morning of 4 December 1974, in their house at sitio Kapagisahan Tigbinan Labo, Carnarines Norte, of stomach pain. On these points, these witnesses and the accused made statements which seemed to be
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very fresh and clear in their minds, despite the lapse of four long years. Their exact and uniform declarations on these points, their phenomenal recollections, without sufficient special or uncommon reason to recall, rendered their testimonies unconvincing. If at all, their testimonies appeared to this Court to be an eleventh hour concoction. And, as defense witnesses, after observing them and their declarations on the witness stand, they appeared to the Court to be untruthful and unreliable. For, despite the synchronization of time when, the place where and how the incidence happened, their testimonies on other material points revealed their tendency to exaggerate and their propensity to falsehood, thus-Aside from the accused Filomeno Salufrania, there are three other witnesses for the defense Geronimo Villan Angeles Liling Balce and Juanita Bragais. There is nothing in the testimony of Juanito Bragais because he did not witness how and when Marciana Abuyo died. Francisco Repuya, who was also alleged by Filomeno Salufrania to be present when Marciana Abuyo died, did not testify. Accused Filomeno Salufrania never claimed that he summoned for Angeles Liling Balce. According to him Angeles Liling Balce was not present during the moment of death of Marciana Abuyo, for she was fetched by him only after the death of his wife. Logically, therefore, there is no basis for the presentation of Angeles Liling Balce that she was present during the moment of death of Marciana Abuyo. She was merely play-acting. Geronimo Villan who claimed he passed-by the house of Filomeno Salufrania and saw the latter boiling water with "ikmo" and garlic, as medicine for his wife Marciana Abuyo, who was about to give birth was discredited by accused himself who declared he was merely boiling water for the hot drink of his wife, who was suferring from her old stomach ailment. In like manner, witness Geronimo Villan discredited the accused Filomeno Salufrania, about the presence of Francisco Repuya, who allegedly alternated with Geronimo Villan in applying the native treatments of 'hilot' and 'bantil' to Marciana Abuyo, when throughout his testimony he (Geronimo Villan) never mentioned the presence of Francisco Repuya. After closely observing defense witnesses Geronimo Villan and Angeles Liling Balce, this Court is convinced that their testimonies and accounts of the incident are fabricated, untruthful and not worth of credence. Certainly, they were not present immediately before and during the moment of death of Marciana Abuyo. ... Added to these, there is one scandalous circumstance, which to the mind of this Court, betrays the guilty conscience of the accused. If there was nothing revealing in the face of the deceased Marciana Abuyo, why was her face covered by a piece of cloth by the accused. ... Trial judges are in the best position to ascertain the truth and detect falsehoods in the testimony of witnesses. This Court will normally not disturb the findings of the trial court on the credibility of witnesses, in view of its advantage in observing first hand their demeanor in giving 16 their testimony. Such rule applies in the present case. Lastly, appellant alleges that, assuming he indeed killed his wife, there is no evidence to show that he had the intention to cause an abortion. In this contention, appellant is correct. He should not be held guilty of the complex crime of Parricide with Intentional Abortion
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but of the complex crime of Parricide with Unintentional Abortion. The elements of Unintentional Abortion are as follows: 1. That there is a pregnant woman. 2. That violence is used upon such pregnant woman without intending an abortion. 3. That the violence is intentionally exerted. 4. That as a result of the violence the foetus dies, either in the womb or after having been expelled 17 therefrom. The Solicitor General's brief makes it appear that appellant intended to cause an abortion because he boxed his pregnant wife on the stomach which caused her to fall and then strangled her. We find that appellant's intent to cause an abortion has not been sufficiently established. Mere boxing on the stomach, taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause an abortion. In fact, appellant must have merely intended to kill the victim but not necessarily to cause an abortion. The evidence on record, therefore, establishes beyond reasonable doubt that accused Filomeno Salufrania committed and should be held liable for the complex crime of parricide with unintentional abortion. The abortion, in this case, was caused by the same violence that caused the death of Marciana Abuyo, such violence being voluntarily exerted by the herein accused upon his victim. It has also been clearly established (a) that Marciana Abuyo was seven (7) to eight (8) months pregnant when she was killed; (b) that violence was voluntarily exerted upon her by her husband accused; and (c) that, as a result of said violence, Marciana Abuyo died together with the foetus in her womb. In this afternoon, Article 48 of the Revised Penal Code states that the accused should be punished with the penalty corresponding to the more serious came of parricide, to be imposed in its maximum period which is death. However, by reason of the 1987 Constitution which has abolished the death penalty, appellant should be sentenced to suffer the penalty of reclusion perpetua. WHEREFORE, as modified, the judgment appealed from is AFFIRMED. Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The indemnity of P12,000. 00 awarded to the heirs of the deceased Marciana Abuyo is increased to P30,000.00 in line with the recent decisions of the Court. With costs against the appellant, SO ORDERED.
ARTICLE 266 A THE NEW ANTI RAPE LAW (RA 8353) G.R. No. 88724 THE PEOPLE appellee, vs. CEILITO ORITA alias "Lito," defendant-appellant. April 3, 1990 OF THE PHILIPPINES, plaintiff-
The Office of the Solicitor General for plaintiff-appellee. C. Manalo for defendant-appellant.
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MEDIALDEA, J.: The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo): exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her consent.
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
CONTRARY TO LAW.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo):
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present any
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.
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She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife still poked to her neck, they entered complainant's room.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid).
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
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She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid).
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck. Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant.
Breast Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states:
Vulva No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted.
Physical Examination Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per unambulatory.
As aforementioned, the trial court convicted the accused of frustrated rape.
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In this appeal, the accused assigns the following errors: al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted.
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into
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the mind of the Court that the accused had wronged her; had traversed illegally her honor. partitions of every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the same.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 6638788, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 5253, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the conditions therein is true (p. 54, Rollo):
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued. Common experience will tell us that in occasion of conflagration especially occuring (sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that: . . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the slightest difficulty, even in the manner as narrated. The
What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in
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her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view.
The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medicolegal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this statement.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1.
By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only.
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
xxx
xxx
xxx
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Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193). concern now is whether or not the frustrated stage applies to the crime of rape.
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as those which are frustrated and attempted, are punishable.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students:
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape. Our
. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is
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stopped short of that point by some cause apart from his voluntary desistance. penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eria case, supra, might have prompted the lawmaking body to include the crime of frustrated rape in the amendments introduced by said laws.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant
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case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results. Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply?
I inserted his penis into my vagina.
Q The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):
And was it inserted?
Yes only a little.
Was the penis inserted on your vagina?
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra).
It entered but only a portion of it.
xxx
xxx
xxx
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape.
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Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
G.R. No. 79011
February 15, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SEMION MANGALINO appellant. y LUMANOG, accused-
The Office of the Solicitor General for plaintiff-appellee. Adriatico T. Bruno for accused-appellant. SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Manila, 1 in which the accused was convicted of statutory rape under Article 335, paragraph 3 of the Revised Penal Code, 2 and sentenced to suffer the penalty of reclusion perpetua and to pay the offended parties the sum of P50,000.00 as moral damages. The complaint signed by the father of the victim, Tomas Carlos y Valente states:
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.
xxx
xxx
xxx
SO ORDERED.
That on or about March 7, 1984, in the city of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge of the undersigned complainant's daughter Marichelle, a minor, 6 years of age, against her will and consent.
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witness for the defense, testified that he did not hear or see the accused calling out to Marichelle and motioning her to go inside his bedroom or "sleeping quarters" at one end of the sala of the ground floor, opposite the kitchen.
Contrary to Law.
The following facts are fully supported by the evidence on record, mainly the testimonies of the victim herself and her mother, Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant Mario Oser, as well as the testimonies of the witnesses for the defense Ramil las Dulce, Linda Ayroso, and the accused himself.
Once inside the bedroom, the accused handed the girl a two peso bill (P2.00) 5 and told her not to tell anybody about his calling her to his bedroom. The girl assented. 6
At about 10 or 11 o'clock in the morning of March 7, 1984, Marichelle Carlos, 6 years old and a Grade I pupil at the Moises Salvador Elementary School, Manila, was playing "takbuhan" alone at the first level (ground floor) of the two-story apartment of the accused, Semion Mangalino, 53, married to 55-year old Laura Gasmin, childless, a security guard by occupation, and residing at 1597-D Honradez Street, Sampaloc, Manila. 3 At the time of the incident, Laura was in Balayan, Batangas, having left the day before the incident. The accused and Marichelle's parents (Tomas and Bernardine Carlos) are neighbors, their respective rented apartments being almost opposite each other.
The accused then laid Marichelle down, removed her jogging pants, and placed them beside her feet. 7 He kissed her and fondled her infantile breasts. 8 He inserted his finger into the private part of the victim, 9 and then forcibly and repeatedly introduced his sexual organ into her undeveloped genitalia, but in vain. 10
Meanwhile, the victim's mother, Bernardine Carlos, 27, and a plain housewife, was looking for her daughter, who should be leaving for school by that time. She was informed by her sister Agnes, who was living next door, that the adopted daughter of the accused, Cielito, had told her that Marichelle was in their apartment. 11 Immediately, Michael, Agnes' four-year old son, was dispatched to fetch Marichelle.
During the morning of March 7, 1984, Ramil las Dulce, a 16-year old high school student occupying the second floor of the apartment, for free and free board, too, a grandson of the accused (his mother, Edita Onadia who lived with him upstairs, being an adopted daughter of the accused), and Laura's nephew, Armando Ayroso, were allegedly playing chess 4 in the sala of the apartment. Ramil, a
Hearing the call of Michael, the victim put on her garments, and on the way home noticed that her jogging pants were wet. Upon reaching her house, Marichelle narrated to her mother what had
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happened, saying, "Si Mang Semion nilagay ang daliri niya sa pikpik ko," and "yong titi ni Mang Semion nilagay sa pikpik ko." 12 The confrontation between the victim and the accused took place when Staff Sergeant Mario Oser of the Waterfront Unit, Reaction Strike Force, Philippine Constabulary Metropolitan Command (P.C. Metrocom), who conducted the initial investigation, invited the accused to the P.C. Headquarters. There, Marichelle Identified Semion Mangalino as the man who had abused her.
At about 2:30 that same day, an enraged Bernardine submitted her daughter to a physical and genital examination, 13 the results of which National Bureau of Investigation (NBI) Medico Legal Officer Roberto V. Garcia certified as follows:
No evidence (or) sign of any extragenital physical injury noted on the body of the subject at the time of examination.
The accused vehemently denied having ever abused Marichelle. He argued that the bruises in the complainant's vestibular mucosa may have been self-inflicted. Marichelle, who was constantly running about, might have bumped her pelvis against a chair, which explained the absence of signs of contusions in the labia.
Hymen, intact and its orifice, narrow.
Sign of recent genital trauma, present.
Curiously, the young victim candidly testified that she felt no pain when the accused was allegedly trying to insert his penis into her vagina. She did not cry in pain nor shout for help when she was being abused. 15
Dr. Garcia opined that the vestibular mucosa contusion could have been caused by a hard object like an erected penis and such bruises at such part of the girl's vagina if caused by an erected penis would be an indication of an unsuccessful penetration. He discounted the probability of an accident, like bumping at an edge of a chair, or any blunt object, since there was no contusion of the labia. 14
Before the Court, the appellant assigned four errors in his brief which he claims the trial court committed, to wit:
ASSIGNMENT OF ERRORS
ERROR I
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ERROR IV THE TRIAL COURT ERRED IN NOT FINDING THAT, CONSIDERING THE PLACE, THE TIME, AND THE PRESENCE OF SO MANY PEOPLE WITHIN THE IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS COMMITTED, THE ACCUSED COULD NOT HAVE SEXUALLY ABUSED MARICHELLE G. CARLOS, THE COMPLAINING WITNESS HEREIN;
THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED IS GUILTY OF THE CHARGE ALLEGED IN THE INFORMATION, INSTEAD OF ACQUITTING HIM WITH COSTS DE OFFICIO. 16
ERROR II
THE TRIAL COURT ERRED IN NOT FINDING THAT THE BRUISES THROUGH THE VESTIBULAR MUCOSA OF THE PRIVATE PART OF MARICHELLE G. CARLOS IS THE RESULT OF AN ACCIDENT, CONSIDERING THAT ON MARCH 7,1984, SHE WAS IN THE GROUND FLOOR OF THE APARTMENT OF HEREIN ACCUSED PLAYING RUNNING AROUND "TAKBUHAN";
The defense vigorously argues against the probability of the rape having been committed on two points: 1) The commission of the crime was impossible, taking place as claimed, in broad daylight, and 2) there were at least eight persons including the accused and the complainant on the ground floor where the rape was supposedly consummated.
The commission of the crime, submits the defense, was impossible, considering that it was allegedly committed at noontime, which would have readily exposed the act of rape to anyone glancing in the direction of the place where the suspect was abusing the victim.
ERROR III On the second point, it is contended that the rape could not have been accomplished with so many persons present in the apartment. As it was, Ramil and Armando were playing chess near the front door of the apartment. Also, Linda Ayroso, 29, married to Armando, and a housewife, was washing laundry in the kitchen. Furthermore, the accused was cooking lunch also in the kitchen, and so could not have flitted from the kitchen to his room to execute his evil design without anyone noticing his absence.
THE TRIAL COURT ERRED IN ORDERING THE ACCUSED TO PAY THE OFFENDED PARTIES, MARICHELLE G. CARLOS AND HER PARENTS, TOMAS CARLOS AND BERNARDINE GANLAC CARLOS, THE SUM OF P50,000.00 AS AND FOR DAMAGES;
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years of age at the time, was raped. Beyond that, proof of intimidation or force used on her, or lack of it, is immaterial. The defense brings to our attention the physical layout of the apartment of the accused. The place where the alleged sexual abuse took place was not even a room, he asserts. The apartment had neither a door nor walls, and what divided the so-called room from the living room was a wooden folding divider which was full of holes, "butas-butas." 17
Finally, the accused assails the lower court's slapping of damages based on the claims of prosecution witnesses of suffering mental anguish, moral shock, and a "besmirched reputation." Since he did not commit the offense attributed to him, the award of P50,000.00 as moral damages is unwarranted. Consequently, he prays he must be exculpated.
The findings of Dr. Roberto V. Garcia, the NBI Medico Legal officer, who testified for the People, conclude that rape could have been perpetrated. To reiterate, he certified the existence of indications of recent genital trauma. Under normal condition, the color of the vestibular mucosa is pinkish. The doctor found the vestibular mucosa of the victim to be dark red. 19 The forcible attempt of an erected penis to have complete penetration caused the 3 1/2-centimeter contusion prior to the hymen. The government doctor further discounted the probability of an accident, such as bumping the edge of a chair, or violent contact with a blunt object, as there was no contusion of the labia.
We deny the appeal except the amount of the award of damages which we reduce to P20,000.00 conformably to prevailing jurisprudence.
We rule that statutory rape had been committed beyond the shadow of a doubt.
The penile-vaginal contact without penetration was due to the onecentimeter diameter opening of Marichelle's hymen. Usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible to, or easily penetrable by, an average-size penis. The victim being of a tender age, the penetration could go only as deep as the labia. 20 In any case, the Court has consistently held that for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. 21 Indeed, even the slightest penetration is sufficient to consummate the crime of rape.
The gravamen of the offense of statutory rape as provided in Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below 12 years of age. 18 Marichelle, a little over 6
The relationship between the offender and the victim as neighbors remains unrebutted. This relationship has an important bearing on
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the medico-legal finding, because it explains the absence of visible signs of physical injuries. 22 The close relationship of Semion Mangalino to Marichelle as a nearby neighbor of the Carlos family and the degree of respect that Semion may have had in Marichelle's life, helps explain why physical force was not employed. The mere size of the accused, a robust security guard, and 163 centimeters (five feet and four inches) in height, could have easily immobilized the victim who was at that time only one hundred eight centimeters tall and weighing 31.818 kilos (70 lbs.) q (Asst. Fiscal Mercedes C. Salvania) Now, while you were playing will you tell this Honorable court where did you go after that?
Witness (Marichelle)
While I was playing Mang Simeon called me madam.
The attempt to discredit the prosecution's version as shown by the fact that Marichelle did not cry out or struggle against her attacker deserves scant consideration. The absence of hymenal laceration adequately explains why Marichelle did not feel any pain during the attempted sexual intercourse. Why would she struggle, when she did not even know that her chastity was being violated? As her mother testified, it was only upon realizing that she had been defiled did her daughter cry. From then on, she became "matatakutin' and "hindi na kumakain", she became nervous and had no appetite for food symptoms of a state of anguish.
Court
Why, were you playing alone?
Witness
a The simplicity of the testimony of Marichelle convinces us that she was telling the truth about her having been sexually abused.
Yes, your Honor.
Fiscal Salvania
xxx
xxx
xxx
What were you playing?
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Witness a Yes, madam.
I was running around "takbuhan" madam.
Why did he called (sic) for you?
Court
Witness
Were you running outside or inside the house of the accused
He called me and told me to go to his bedroom madam.
Witness
Fiscal Salvania
Inside the house of Semion Mangalino, your Honor.
q When you were asked to go to his bedroom, did he give you anything?
Fiscal Salvania Witness q While you were playing inside the house of Semion Mangalino he called for you?
Yes madam.
Witness
What did he give to you?
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a He gave me P2.00, madam. q you? Now, when you went inside the higaan, what did he do to
Court a q Did you accept that P2.00? Fiscal Salvania Witness q a Yes, your Honor. Witness Fiscal Salvania a q When you were asked to go inside the higaan of Semion Mangalino, did you go? Yes, madam. You stated that you were wearing jogging pant? He inserted one of his fingers in my private part madam.
What happened to your jogging pant?
Witness
He first removed my jogging pant, madam.
Yes, madam.
q After removing your jogging pant, did he removed (sic) anything in his clothes?
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He did not removed (sic) anything in his clothes madam.
Fiscal Salvania
Court
What did he do with his finger?
q Beside the jogging pant you are (sic) wearing, were you also wearing a panty?
Court
She said he inserted. Witness q Was one of the fingers of the accused inserted in your private part?
Yes, your Honor.
Fiscal Salvania
Witness
What happen(ed) to your panty, did he remove?
Yes, your Honor.
Witness
What did he do?
He also removed my panty madam.
He kissed me your Honor.
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Witness q Where did he kissed (sic) you? a a In my breast your Honor. xxx Fiscal Salvania q q Did he remove your T-shirt? a Witness q Did the accused put-out his penis while he was inserting his finger in your private part and kissing you in the breast? a No madam. Yes, your Honor. Do you know what is penis? xxx xxx He did not removed (sic) his pant your Honor.
xxx
xxx
xxx
a He put-out his penis while he was kissing and his one fingers (sic) inserted in my private part, your Honor.
Court
What did he do with his penis?
Did Semion Mangalino removed (sic) his pant?
He is inserting his penis in my private part, your Honor.
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q Court a q part? Was the accused able to insert his penis into your private q Did you saw (sic) the penis of Semion Mangalino? I did not feel anything painful, your Honor. Did you feel pain?
Witness a Yes, your Honor.
He was not able, your Honor. q What was your position when Semion Mangalino was trying to insert his penis into your private part?
xxx
xxx
xxx Witness
q How do you feel or did you feel pain while the accused was trying to insert his penis into your private part? a I was lying down, your Honor.
Witness Court
I did not feel anything, your Honor. q Who put you lay (sic) down, was it yourself or what?
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Witness age and her little formal schooling, it is inconceivable for Marichelle to concoct a serious charge of rape, and to narrate, in unhesitating and simple terms, that she had been asked by the offender to go inside the room; that she was laid down after the accused had given her P2.00; that he removed her jogging pants and panty; that the accused kissed her and caressed her breasts, that "Mang Semion" inserted a finger into her genital, and later his sexual organ. At age 6, Marichelle would have been one of those "babes and sucklings" from whose mouths words of praise should have been perfected, but alas, she was instead compelled to relate in the presence of people, some of them complete strangers, in the police precinct and in court, her tragic story.
Semion Mangalino, your Honor.
Did you not cry?
I did not cry, your Honor.
Did you shout?
I did not shout, your Honor.
q Why, were there persons inside the house while Semion Mangalino was doing all these things to you?
a There were no other persons except myself and Semion Mangalino your Honor. 23
Marichelle was a Grade I pupil when she was violated. She was in Grade II when she took the witness stand. In view of her very tender
The heart of the matter is the violation of a child's incapacity to discern evil from good. As the behavior of the victim towards the accused during the commission of the crime and her testimony before police officers and in the court indicate, she had no awareness of the wrongfulness of the action of the accused who was old enough to be her grandfather. Her willingness to lie down on and accept the P2.00 given her by the accused, whom she looked up to as an elder person, a neighbor, and a friend of her family, indicate not naivete, but the absolute trust and confidence of the very young in an older person. She was incapable of reading malice or evil in his intentions. It is likely that it was only when she saw how distraught her mother was at her telling of her story and the flurry of police and judicial activity stirred up by her narration that her young and innocent mind was violently exposed to the reality of the existence of evil in the hearts of men. The moment of truth, dawning so violently upon young and innocent minds is contemptible. The older persons in the community should set themselves up as models of proper decorum and high moral purpose for young children; it is they who
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should guide the young, teach them, and nurture them in the way of the righteous. A 53-year-old man who instead corrupts and violates the purity and dignity of a minor is morally depraved and should be punished to the limits of the law. The contention of the accused that he never left the kitchen is flawed. The facility of a quick tap to his room can not be discounted considering that kitchen where he was supposed to have been cooking was only a few meters away. That the presence of Ramil and Armando who were allegedly playing chess in the kitchen made the commission of the crime impossible, even if were true, falls flat in the face of the game of chess being one that requires utmost concentration; that being so, it is logical for both players to be concentrating on the game when the accused lured Marichelle into the room. We hold that when Ramil, Armando, and Linda were engrossed in what they were doing, that the accused surreptitiously enticed Marichelle into his higaan, and that the short distance between the kitchen and the "room" a mere distance of 5 to 6 meters is no obstacle to the satiation of his carnal lusting after the child.
It is even more difficult to conceive of Mrs. Bernardine Carlos trumping up a charge of the rape of her daughter and subject herself and her daughter to humiliation, to fear, and anxiety, and community censure that she and her daughter will have to bear for the rest of their lives, 24 simply in consideration of P50,000.00, the amount asked for in moral damages.
The trial court's findings of facts which rely on the credibility of witnesses are entitled to respect, if not finality. A painstaking examination and review of the records of the case yield no fact or circumstance that would have contradicted the findings of the trial court.
The alleged inconsistencies refer to minor details and do not at all touch upon the basic aspects of the who, the how, and the when of the crime committed. Minor discrepancies in the testimonies of Marichelle and her mother are but natural, and even enhance their credibility as witnesses because these discrepancies indicate that the responses given were honest and unrehearsed. 25 In appreciation of the testimony of the victim, due regard must be accorded to her tender age.
The accused claims it was impossible for him to have raped the victim in the presence of other people, more so, in a place without privacy. We do not agree. Rape was in fact committed. It is quite possible for an experienced man, like the accused, to consummate rape in just one minute, without attracting the attention of the people inside the apartment. 26 Marichelle's complete innocence may have facilitated the perpetration of the clime, and the divider, although "butas-butas," was sufficient to conceal the commission of the bestial act.
In several instances, this Court held that rape can be committed even in places where people congregate: in parks, along the road side, within school premises, and even inside a house where there
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are other occupants. 27 The apartment of the accused was no exception. Lust is no respecter of time or place.
G.R. Nos. L-44859-60 THE PEOPLE appellee, OF
April 27, 1984 THE PHILIPPINES, plaintiff-
In fine, we hold that the trial court did not commit any reversible error in finding the accused-appellant guilty beyond reasonable doubt of the crime of statutory rape.
vs. ABELARDO BALBUENA and JUANITO TORRES, accused-appellants.

The Solicitor General for plaintiff-appellee. Luciano D. Valencia for accused-appellants.
No amount of money can soothe the pain and anguish suffered by a victim of rape and her family. Still, we cannot impose the damages of P50,000.00 on the accused. As stated earlier, we reduce the amount to P20,000.00.
WHEREFORE, the appealled decision is AFFIRMED with the MODIFICATION above indicated.
Costs against the accused-appellant.
Appeal from the decision of the Court of First Instance of Rizal, Branch XII, Caloocan City, promulgated on August 6, 1976, in Criminal Cases Nos. C-6848 (75) and C-6849 (75) convicting herein accused Abelardo Balbuena and Juanito Torres for the crime of RAPE and sentencing each of them to suffer in each case the penalty of reclusion perpetua and to pay the costs.
SO ORDERED.
The two separate informations dated November 20, 1975 filed by Asst. City Fiscal Romeo C. Cortes upon the complaint of the offended party, Elvira Polintan, single, 20 years of age, a senior criminology student of the Philippine College of Criminology, against the two accused, read as follows:
CRIMINAL CASE NO. C-6848 (75) t.hqw
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Upon arraignment, both accused, assisted by counsel, waived the reading of the information and entered the plea of not guilty. Upon motion of the Fiscal, on the ground that the complainant in both cases is one and the same person, the court conducted a joint trial of the two cases.
That on or about the 28th day of August, 1975, in the City of Caloocan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Abelardo Balbuena y Garcia, conspiring and confederating with Juanito Torres y Villanueva, by means of force, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the complainant Elvira Polintan against the latter's win and consent.
The evidence of the prosecution as summarized in the People's Brief established that: t.hqw
Contrary to law. On August 28, 1975, at around 10:00 o'clock in the evening, complainant Elvira Polintan was in an apartment located at P. Zamora St., Caloocan City, talking with appellant Juanito Torres, a friend of long standing (pp. 1-2, t.s.n., Feb. 10, 1976). After a while, some friends of Torres arrived. Torres and his friends agreed to drink liquor. They invited Elvira Polintan to join them (p. 2, t.s.n., Id.). Because Elvira had not seen appellant Torres for quite sometime, she accepted the invitation. They decided to hold the drinking party at the apartment of appellant Abelardo Balbuena which was also situated at P. Zamora St., Caloocan City, and adjacent to the house of appellant Juanito Torres (Ibid.). The ground floor of Balbuena's apartment was formerly a billiard hall but was no longer used as such (p. 10, t.s.n., Id.). Inside the billiard hall where the drinking party was held, Torres introduced Balbuena to Elvira Polintan (lbid.). Aside from the two appellants and Elvira Polintan there were three other male persons in the group (p. 2, t.s.n., Id.). They drank gin. (lbid.)
CRIMINAL CASE NO. C-6849 (75) t.hqw
That on or about the 28th day of August, 1975, in the City of Caloocan, Philippines and within the jurisdiction of this Honorable Court, the said accused Juanito Torres y Villanueva, conspiring and confederating with Abelardo Balbuena y Garcia, by means of force, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant Elvira Polintan against the latter's win and consent.
Contrary to law.
After Elvira Polintan consumed a half glass of gin, she felt dizzy (Ibid.). She asked permission from the group that she would take a
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rest. She lay down in a bench inside the billiard hall (p. 5, t.s.n., Feb. 24, 1976). Then, appellant Balbuena undressed the complainant by removing her pants and briefs (pp. 4, 19, 21, t.s.n., Id.) and spread her legs wide apart (p. 22, t.s.n., Id.). At this juncture, appellant Torres was holding Elvira's hands. Balbuena then went on top of the billiard table (p. 16, t.s.n., Feb. 24, 1976). In the meantime, complainant feebly tried to extricate herself even as appellant Balbuena kept on threatening her and her family with death if she would not yield her body to him (Ibid.). Finally, Balbuena succeeded in having carnal knowledge with complainant (pp. 22-23, t.s.n., Id.). statement (Exhibit "A") narrating the incident of August 28, 1975 (p. 6, t.s.n., Id.). Also on October 20, 1975, she filed a complaint (Exhibits "B" and "C") for rape in the City Fiscal's Office at Caloocan City against the appellants.
On the same date, complainant was examined by Dr. Maximo Reyes, medico-legal officer of the National Bureau of Investigation who issued a medical certificate (Exhibit "D", p. 46, rec.) with the following findings:
After appellant Balbuena had satisfied his lustful desires, he went down the billiard table. Immediately thereafter, appellant Torres went up the billiard table. Appellant Balbuena held complainant's hands (p. 4, t.s.n., Feb. 16, 1976). Despite complainant's continued struggle by twisting her body and kicking her feet, she simply could not overpower the appellants, so that appellant Torres also succeeded in consummating the sexual act with her (p. 5, t.s.n., Id.). In the course of the sexual act, appellant Balbuena covered the mouth of complainant to prevent her from shouting (p. 5, t.s.n., Id.). After she was raped, she sat down on the corner and cried. Appellant Balbuena told her "remember what I told you (referring to the threat that he will kill complainant and her parents)." (Ibid.). After about five minutes and when the attention of the appellants were distracted, complainant ran away and proceeded to her house. (Ibid.).
General Physical Examination: t.hqw
Height: 156 cm. Weight:
96 lbs.
Normally developed, cooperative subject.
fairly
nourished,
conscious,
coherent,
Breast fully developed, hemispherical and soft. Areola, dark brown, 3.0 cm. in diameter.
On October 19, 1975, she related her sad experience to her mother (p. 7, t.s.n., Feb. 10, 1976). The following day, October 20, 1975, she went to the police headquarters at Caloocan City and gave a
No evident sign of extragenital physical injury noted on the body of the subject.
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Accused Juanito Torres testified that he had known, the complainant for the past three years prior to the alleged commission of rape as she used to be with him in going places and having occasional drinking sprees of beer, gin and coke, "pagka may katuwaan", with a group of male companions; 2 that at about 4:00 o'clock in the afternoon of August 28, 1975, he saw complainant and requested her to accompany him to his cousin who resides at Gen. Luna Street, Caloocan City, to request his cousin to write a letter for him, and she acceded to come along; 3 that however, he went alone to see his cousin while complainant stayed behind at the fire department and then he went home without her at about 6:00 o'clock in the afternoon of the same day. 4
Genital Examination: t.hqw
Pubic hairs, fully grown and abundant. Labia majora and minora both gaping. Fourchette, lax Vestibular mucosa, pinkish. Hymen, thick, moderately wide, with multiple natural notches and a healed superficial laceration at 5:00 o'clock position corresponding to the face of the watch; edges beginning to round up and hardly coeptable Hymenal orifice originally annular and admits a tube 3.0 cm. in diameter with moderate resistance. Rugosities, shallow, and vaginal walls lax.
CONCLUSIONS: t.hqw
1. No evident sign of extragenital physical injury noted on the body of the subject.
2. She could have had sexual intercourse with a man on or about the alleged date of commission. 1
In denying any participation in the rape charge, accused Torres disclaimed his presence at the drinking party held inside the billiard hall. He denied that he usually drives a public utility jeepney from the corner of 10th Avenue, Rizal Avenue Extension, up to Biglang-Awa from 6:00 o'clock in the evening up to 12:00 o'clock midnight. 5 He declared further that complainant, a tomboy, had a previous amorous relation with his cousin, Rhodora Torres, and that she maintains a grudge against him for advising his cousin to part ways with her which resulted in the separation of his cousin and the complainant. 6 He said that after August 28, 1975, he had on seven or nine occasions seen the complainant who when greeted simply ignored him. 7
Both accused-appellants rest their defense on denial and alibi. On the other hand, accused Abelardo Balbuena also denied the accusation of rape against him and his participation at the drinking spree with complainant. He testified that he first met complainant
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upon being introduced to each other on August 28, 1975 at his father's billiard hall situated at P. Zamora Street, Caloocan City; that after conversing with her for about five minutes, he left complainant in the company of three male companions and that they had a drinking spree at the billiard hall. They went to the upper floor of their house to eat supper and only came down later to ask her and her companions what time they would leave the house, to which she answered that it would not take long, and immediately thereafter he went upstairs again to do something else. 8 The lower court erred in not declaring Elvira Polintan as a willing victim in the crime of rape, hence, the element of force is absolutely wanting.
As indicated earlier, both accused were found guilty and sentenced in each case to suffer the penalty of reclusion perpetua and to pay the costs.
In raising the first assigned error, appellants contend that the lower court should have declared complainant Elvira Polintan as an incredible witness in her narration of being raped by the accused, pointing out that there was a delay of more than one month before the incident was reported to the police authorities; that complainant used to go with male friends, imbibing alcoholic beverages; that no bodily injuries were noted in the medical certificate (Exhibit "D"); that her dress or underwear was not torn and that she was able to give a detailed description of what transpired during the night including the acts and movements of the appellants.
Appealing to this Court, accused-appellants submit the following assignment of errors:t.hqw
The lower court erred in not declaring Elvira Polintan as an incredible complaining witness in her narration of being raped by the accused.
II
On the question of delay which the defense submits to be construed to mean that the Court should doubt the very existence of the commission of the crime, We agree and affirm the ruling of the trial court that the delay in filing the complaint was reasonable. The reasoning of the Court that "(i)t is not easy for a Filipina to easily decide whether to come out in the open in a situation where public contempt and ridicule would result in the prosecution of a case. The very fact that she came forward in the case is persuasion that the act had been committed. The complainant stands to gain nothing with her revelation and the consequent punishment of the accused," is well-grounded, considering the inate modesty of Filipina womanhood and the inherent reluctance of the Filipino family to be exposed to the rigors of a long drawn out trial scandalizing the family's good name and honor.
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Admittedly, the complainant is a 'tomboy'. Her appearance is most revealing. She is not exactly ugly. These considerations notwithstanding, and perusing the background leading to the incidents in question, it cannot be disputed that the two accused were at the time of the incident, drunk. Such being their state, it is not-improbable to say that the physical appearance of the woman would not bar these persons from the commission of the offense. (See CFI Decision)
It is quite true that the unexplained delay in the filing of a criminal complaint for rape may result in an adverse inference against the complainant's sincerity and credibility, as in People vs. Pimentel, 118 SCRA 695, where the formal complaint was lodged against appellant after the lapse of 39 days and the Court said it taxes one's credibility that complainant could be able, after a long period of time, to feign a composed and serene posture after the harrowing experience she had undergone. But that is not true in the instant case. The victim herein has rendered a credible and satisfactory account for her delay in reporting the incident to her mother and in seeking the help of the authorities. The complainant unequivocably testified that she was fearful over the threats of the accused-appellants that they would kill her and her parents should she report the matter to the police, especially so since she resides near the houses of the accusedappellants and she has to pass their houses in going out. 9 She also expressed her worry that her ongoing classes at school would be disrupted upon her filing of the complaint. 10 The fear and the shock engendered by the threats as well as her desire to avoid further shame is more than sufficient to restrain the offended party from immediately exposing her sad experience. 11
And neither the absence of any injury being noted in the medical certificate nor that her dress or underwear was not torn supports appellants' submission that complainant is an incredible witness. The absence of any injury is explained by the fact that the physical examination of the victim was made after more than one month had elapsed from the commission of the crime and moreover, We find no evidence that complainant was injured in her struggle to resist the acts of the accused. And there was no torn dress or underwear because she was then wearing pants and brief at the time of the incident. 12
We reject appellants' contention that complainant Elvira Polintan is an incredible witness because she used to go with male friends, imbibing alcoholic beverages. This is not unusual, considering that complainant is admittedly a "'tomboy". As observed by the trial court, the demeanor of the complainant at the witness stand shows: t.hqw
The general rule on the credibility of the victim's testimony in a rape case is well-stated in People vs. Pimentel, 118 SCRA 695 where the Court, speaking through Justice Escolin, held as follows: t.hqw
In weighing the testimony of the complainant in an accusation for rape, the rule often applied by the courts is that the testimony of the victim, whose chastity has not been questioned, is generally
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accorded credence because such offended party would not have fabricated facts that could bring shame and dishonor on her. Nor would she disclose her humiliating experience at a public trial, and thus give rise to gossip and slander, unless her motive was to bring to justice the person who grievously wronged her. record," there is nothing in the defense evidence which points out convincingly why Elvira Polintan should "corrupt the truth and put the lives of these two accused in jeopardy."
Such a rule has been established because the detestable crime of rape in which a man shows his most heinous side is one of the hardest to prove. Indeed, the testimony of the victim most often is the only one available to prove directly its commission and corroboration by other witnesses would in certain cases place a serious doubt as to the probability of its commission. When a woman testifies that she has been raped, she says all that need to be said to signify that this crime has been committed. (U.S. vs. Ramos, 1 Phil. 81).
This finding of the trial court on the credibility of the complaining witness is entitled to the highest respect upon this Tribunal, and We will not disturb the same.
In its decision, the trial court said that it "has gone at length with the testimony of Elvira Polintan in order to determine whether the same is conclusive, logical and probable. The complainant when she testified before the court to narrate what had happened on the night of August 28, 1975, appeared to be credible as a witness, and her account of the incident likewise left in the judicial mind an affirmative answer whether a woman of complainant's stature could be the object of this heinous offense." The court further added: "Then too, the complainant narrated the incident in a straight forward and convincing manner and despite the lengthy cross-examination to which she has been put too, she was steadfast in the fact that she was the victim of rape. Moreover, the very fact that she came out forward in this case is in itself a silent but persuasive evidence of an outrage done upon her honor. Considering these "evidences on
Moreover, We find no reason, and none is advanced by appellant Balbuena why complainant should implicate him in the case considering that he came to know the complainant for the first time during the incident. The motive imputed by appellant Torres to the complainant in implicating the appellant in the charge of rape which is that Torres told his cousin, Rhodora Torres, to sever her relationship with complainant, is indeed too flimsy to be accepted because the crime of rape exposes not only the accused but also the complainant to public ridicule and shame.
We agree with the trial court in its conclusion that "(t)he sum total of all the foregoing considerations is the fact that the court believes that essential elements constitutive of the crime of rape had been established by the prosecution peradventure of doubt."
The defense of the accused is one of denial as pointed out earlier in this decision, which is inherently weak, and more than that, the testimony of the accused Torres that he was with the complainant on
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August 28, 1975 at about 4:00 o'clock in the afternoon and not in the evening, is itself belied by the other accused Balbuena who admitted that Torres was present at the drinking spree on August 28, 1975. And in addition to the above contradiction, the defense of the accused is wanting in material corroboration. Garcia and Juanito Torres v Villanueva and the penalty of reclusion perpetua in Criminal Case No. C-6848 and Criminal Case No. C6849 for each of the accused is hereby AFFIRMED. Costs de oficio.
SO ORDERED.1wph1.t As to the second assigned error, We find the same to be without merit. Complainant is a "tomboy" and as such, she is sexually attracted to persons of her own sex rather than to the male specie. She would not willingly submit herself to a sexual intercourse with a male person as suggested by the appellants. The evidence is clear that appellants employed force in consummating the crime of rape. From the bench where she was lying down, she was pulled to the billiard table and bodily raised on top of the table where she was forced to lie down. Both accused held her at the wrist and one of them held her by the feet. She fought and struggled with them (nagpapapalag). On top of the billiard table, Torres held both of her hands while Balbuena laid on top of her and sexually abused her. After that, Balbuena went down from the table and Torres climbed while the other held both of the victim's hands and similarly, Torres was able to rape her.
Makasiar (Chairman), Aquino, De Castro and Escolin, JJ., concur.
Concepcion, Jr., J., I vote for acquittal.
Separate Opinions That the guilt of the accused for the crime of rape has been proved beyond reasonable doubt is clear and the decision being in accordance with law and the evidence, the same must be affirmed.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of conviction against the accused-appellants Abelardo Balbuena y
ABAD SANTOS, J., dissenting:
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Elvira Polintan was 20 years old in August, 1975. By her own testimony she joined a group of men in a former billiard hall for the purpose of drinking "cuatro cantos" gin. All the men, except for appellant Juanito Torres, were apparently strangers to her. Is this normal behaviour for a Filipino woman of her age? I do not think so. The Filipino woman as a rule is an abstainer even after she has reached maturity. I have to conclude that Elvira's conduct casts a dark cloud on her claim that she was raped successively by Torres and Abelardo Balbuena.
3. The unreasonable delay in the filing of the complaint against the appellants. One month and 23 days elapsed before Elvira complained that she had been raped and her lame excuse for the delay was that she was threatened with death by the appellants which she ignored after all.
If in fact there was sex, "It could very well be that the euphoric feeling induced by this young girl's imbibing tuba wine led to the relaxation of what could be inhibiting factors." (People vs. Joven, L-36022, May 22, 1975, 64 SCRA 126, 128.) In other words if there was sex, it was with Elvira's consent. Other circumstances support the consensual view:
It is usually said in rape cases that the Filipino woman is modest and shy so that she will not publicly complain of having been raped and thereby expose herself to shame and ridicule unless she was in fact raped. I accept this proposition for a typical Filipino woman. But Elvira is not a typical Filipino woman. Not yet 21 she was already a guzzler, not just of ladies' drinks, but of full-strength distilled spirits like gin.
1. There was no determined resistance by Elvira nor did she shout for help considering that there were other persons in the premises.
The appellants have put up the defense of denial and alibi. This defense can well be rejected but it does not follow that they are guilty. For it is elementary that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. In the instant case I do not believe that the prosecution has overcome the presumption of innocence which the law accords to the accused.
2. She had no signs of extragenital injury nor any kind of injury for that matter. While it is true that there can be a conviction for rape even absent signs of injury still there must be other convincing evidence. In the case at bar there is none other than the say so of the complainant.
I vote for acquittal.
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1. There was no determined resistance by Elvira nor did she shout for help considering that there were other persons in the premises.
Separate Opinions
ABAD SANTOS, J., dissenting:
2. She had no signs of extragenital injury nor any kind of injury for that matter. While it is true that there can be a conviction for rape even absent signs of injury still there must be other convincing evidence. In the case at bar there is none other than the say so of the complainant.
Elvira Polintan was 20 years old in August, 1975. By her own testimony she joined a group of men in a former billiard hall for the purpose of drinking "cuatro cantos" gin. All the men, except for appellant Juanito Torres, were apparently strangers to her. Is this normal behaviour for a Filipino woman of her age? I do not think so. The Filipino woman as a rule is an abstainer even after she has reached maturity. I have to conclude that Elvira's conduct casts a dark cloud on her claim that she was raped successively by Torres and Abelardo Balbuena.
3. The unreasonable delay in the filing of the complaint against the appellants. One month and 23 days elapsed before Elvira complained that she had been raped and her lame excuse for the delay was that she was threatened with death by the appellants which she ignored after all.
If in fact there was sex, "It could very well be that the euphoric feeling induced by this young girl's imbibing tuba wine led to the relaxation of what could be inhibiting factors." (People vs. Joven, L-36022, May 22, 1975, 64 SCRA 126, 128.) In other words if there was sex, it was with Elvira's consent. Other circumstances support the consensual view:
It is usually said in rape cases that the Filipino woman is modest and shy so that she will not publicly complain of having been raped and thereby expose herself to shame and ridicule unless she was in fact raped. I accept this proposition for a typical Filipino woman. But Elvira is not a typical Filipino woman. Not yet 21 she was already a guzzler, not just of ladies' drinks, but of full-strength distilled spirits like gin.
The appellants have put up the defense of denial and alibi. This defense can well be rejected but it does not follow that they are
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guilty. For it is elementary that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. In the instant case I do not believe that the prosecution has overcome the presumption of innocence which the law accords to the accused. out, and made to stand on the toilet bowl. Accused is a first cousin of Diana Rose's mother. Kuya Delfin, as Diana Rose referred to the accused, then put up her clothes, took off her panty, made her lean on the wall and, despite her efforts to pull away he inserted his private part into her causing pain. Then she was told by the accused to go home. At home, she refused to have her private part washed by her Auntie Alice because it was hurting and painful. 1
I vote for acquittal.
G.R. No. 91490
May 6, 1991
Mrs. Jacinta Castro, Diana's grandmother, testified that on 6 October 1986, in her house at No. 1692, F. Muoz, Tramo, Pasay City, she was asked by her husband to find out why Diana was crying. Her testimony follows. 2
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELFIN CASTRO y LOZADA, defendant-appellant.

The Solicitor General for plaintiff-appellee. Eduardo I. Advincula for defendant-appellant. PADILLA, J.:p This is an appeal interposed by the accused, Delfin Castro y Lozada, from the decision* of the Regional Trial Court of Pasay City, Branch 110, imposing upon him the penalty of reclusion perpetua for statutory rape defined under Art. 335, paragraph 3 of the Revised Penal Code.
COURT:
Q Was there anything unusual that happened on Oct. 6 particularly in your house?
A On Oct. 6 I was downstairs and there was a call by my husband.
On the witness stand, six (6) year old Diana Rose Castro narrated how, while playing with a neighbor sometime on 4 October 1986, she was pulled by the accused inside a bathroom, prevented from going
xxx
xxx
xxx
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FISCAL: Q Then what happened after you found out that the private property of your granddaughter was swollen? xxx xxx A Q Now, what was the reason why your husband called you? Q A He asked me to fine out why my granddaughter does not want to eat and just keeps on crying. (sic). And what did your granddaughter tell you? I asked her why.
xxx
At first she told me that "nasabit sa hiyero."
Q And what did you do wen (sic) your husband told you to see your granddaughter?
And what did you do after that?
xxx A I went upstairs and found out what was wring (sic) with her whether she has fever.
xxx
xxx
And what did you find out
A What I did was to examine her carefully her private part; I lifted her two (2) legs and I discovered that her private property was reddened as swollen.
A At first she said she was complaining that her private property was painful and when I investigated I discovered that it swollen (sic).
Q Did you ask her again what happened to her private property?
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A Yes, sir, she told me that she was invited by her Kuya Delfin to the bathroom. Q What did she answer?
And what else did she tell you?
A She was standing and she was made to lean on the wall, Your Honor. . .
A She told me that she was asked by her Kuya to stand on top of the toilet bowl and he removed her panty and his (sic) Kuya Delfin also removed his pants.
Because of Diana's revelation, the grandmother brought her to the National Bureau of Investigation for examination on 8 October 1986. 3
What else did she tell you?
Dr. Roberto Garcia, the NBI medico-legal, had this explanation:
A She told me that his (sic) Kuya Delfin had sexual intercourse with her.
xxx
xxx
xxx
COURT:
Q Did you ask Diane Castro how Delfin allegedly had sexual intercourse with her?
A Under the single heading of "genital examination" the more insignificant findings will be the contused or bruised vetibular (sic) meaning the area inside the genital organ of the subject person; the hymen of the subject person was noted to be bruised or contused . . .
Yes, Your Honor.
Q Now what do you mean when you say that the genital parts you mentioned were contused or bruised?
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A The area was noted to be purplish or red darker than the normal appearance of the said portion being bruised or contused it would mean that this particular portion was subject to some amount of force or it could have come in contact with a hard object, the contract must have been done with a certain amount of force. Q Now this genital trauma which you said to have been suffered by the subject from what could this injury or trauman (sic), what was the cause?
A Any hard object would have produced this bruise or contusion. Q Under No. 2 of the conclusion of this report it reads"signs of recent genital trauma, present, consistent with the alleged date of infliction."
Q Now, this is a case of rape, Doctor, would you venture to state from what object this could have been inflicted?
Would you explain this? A Under the normal course of events injuries of this nature involving this particular portion of the body of a female or woman is produced by the insertion of a male organ. 4
This witness meant that the appearance of the genital or prior of those mentioned was seen by this witness which brought about the trauma and that it has to be recent, meaning it could have been sustained by the subject person in a matter of days prior to the date of the examination.
xxx
xxx
xxx
Now, was the hymen of the subject lacerated?
A sworn complaint for rape was filed against Delfin Castro y Lozada. It charged as follows:
No, sir.
That on or about the 4th day of October, 1986 in Pasay City, Philippines and within the jurisdiction of tills Honorable Court, the above named accused, Delfin Castro y Lozada, with lewd designs and taking advantage of his moral ascendancy over the undersigned
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complainant who is his niece, did then and there wilfully, unlawfully and feloniously have sexual intercourse with or carnal knowledge of the undersigned. 5 Mrs. Teresita Castro's testimony dovetails with her son Delfin's saying that at around 12:30 P.M. on 4 October 1986, he arrived and ate lunch at home. 8 Mother and son talked of enmity between Mrs. Jacinta Castro, Diana's grandmother and their family. This rape case against Delfin is a result allegedly of the envy of Diana's said grandmother over his (Delfin's) fine scholastic performance. 9
Accused pleaded not guilty and posted bail for his provisional liberty.
Delfin's alibi begins on 3 October 1986 in 1692 Muoz, Pasay City, where he lives two (2) houses away from complainant's. At about 12:00 P.M., Diana went to his house while he was taking a bath. She was crying and went inside the bathroom. When asked by the accused why, she replied that while going down the stairs, a dog whose two (2) hind legs were limping, chased her and so she tripped. The accused told Diana to go out because their dog might bite her. He proceeded to dress up and saw the victim playing outside.
Delfin further narrated that on or about 8 October 1986, he was invited to the Pasay Police Headquarters for questioning. While there, he was asked to undress, was blindfolded and beaten by around 7 to 10 policemen for about half an hour and made to admit that he raped Diana. Since he could no longer stand the torture, he told them that he used his small finger to touch her private part. 10 After the incident, Delfin left their house in order to avoid trouble; occasionally he would visit his parents. 11
In the morning of 4 October 1986, he woke up at about quarter to seven, 6 left the house at 7:30 7 took a jeep plying the Pasay-TaftLuneta route, arrived in school (Adamson University) at 8:15 in the morning. He proceeded to see Dolores Rivera, a godsister who worked in the treasurer's office of the university to ask the latter to type a term paper which was due that day. After submitting the term paper, he treated his godsister to lunch. Around 1:00 o'clock in the afternoon, he went home.
Finding the testimony of Diana positive, clear and credible, the Regional Trial Court disregarded the alibi of the accused and convicted him. The trial court, inter alia, stated:
. . . The accused's claim that he was, in the morning of October 4, 1986, at Adamson University waiting for his term paper engenders disbelief. By his evidence, he was enrolled at the Adamson University for the second semester of school 1986-1987 classes for which usually start in October. Term papers are usually submitted at the end of the semester, not at the beginning of the semester. In any
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event, Delfin was not shown that it was physically impossible for him to be at the place of the incident on October 4, 1986 as, by his evidence, he returned to his house after noontime, rested for a while, then left and returned again in the afternoon. His suggestion that Diana's genital bruises could have resulted from trippling down the stairs when she was chased by a limping dog is ridiculous. A dog whose two hind legs are limping chasing her (where did the dog come from?) while she was going down the stairs? Granted that were possible or that actually happened, the fall would cause abrasions, not hymenal contusions. Finally the defense's insinuation that Diana's grandmother Jacinta who was pictured to be supercilious and envious was behind the filing of this case is difficult to believe, there being no concrete proof thereof. Besides, it would be unthinkable for Jacinta to alienate her relations with all her inlaws, the Castros, who are staying in different houses of the same compound, by fabricating a charge against the accused. P20,000.00 by way of damages, the accused appealed to this Court pointing out the following alleged errors:
1.
there is no rape because
a.
the hymen of the victim was not lacerated.
b. the victim was allegedly standing while the crime was being committed.
c. Finally, the accused's flight from his house after the filing of the present case is not consistent with his professed innocence. He did not, according to him, have any good relationship with Diana's grandmother even before October 4, 1986. So what was he fleeing from? His answer, that he wanted to avoid trouble, tells it all . . .
the victim is still a virgin.
2. reliance on the conflicting testimony of the victim and not that of the accused.
xxx
xxx
xxx
From the said decision sentencing him to suffer the penalty of reclusion perpetua and indemnify the victim in the amount of
A recent decision of this Court in a case of statutory rape observed that, usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible with, or easily penetrable by an average size penis. The victim being of tender age, the penetration of the male organ could go only as deep as the labia. In any case, for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within
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the labia or pudendum of the female organ. Even the slightest penetration is sufficient to consummate the crime of rape. 12 be sustained without clear and convincing proof of guilt, 16 considering the gravity of the offense and the penalty it carries.
Perfect penetration, rupture of the hymen or laceration of the vagina are not essential for the offense of consummated rape. Entry, to the least extent, of the labia or lips of the female organ is sufficient. 13 Diana's remaining a virgin does not negate rape.
On the alleged sinister motive of Diana's grandmother engendered by envy, we find this incredulous. For, what grandmother would exact vengeance on her enemies at the perpetual humiliation and disrepute of her six (6) year old granddaughter?
Sexual intercourse in a standing position, while perhaps uncomfortable, is not improbable. The RTC decision explained:
. . . For her account that she was made to stand on the toilet bowl made it easy for the accused to do the act as she was too small and their private parts would not align unless she was elevated to a higher position. The suggestion of the defense counsel that a finger could have been used is absurd. For if it were only a finger there would have been no need to let Diana stand on the toilet bowl.. . . 14
Finally, the issue of credibility. Who among the contending parties is telling the truth? The prosecution's evidence is simple and straightforward. Appellant's alibi must fall. Claims of his scholastic achievements, assuming they are relevant, were unsubstantiated. His counsel did not even formally offer the exhibits attesting to his enrollment at Adamson University where he was supposed to have submitted in the morning of 4 October 1986 a term paper. His credibility is dubious; he was not able to even identify the topic of his alleged term paper. To discredit the victim he testified on her alleged propensity to tell lies. 17 The trial court, however, categorically held:
The Solicitor General's brief, in turn, asserts that the position Diana was forced to take, made it easier for appellant to accomplish insertion of his organ than if Diana had been made to lie down. 15
While Diana's testimony was in some instances flawed, the flaw was minor and only with respect to dates. She is a young girl. She sat at the witness stand four times, yet she survived the rigors of testifying, unwavering in her claim that she was raped. 18
Experience has shown that unfounded charges of rape have frequently been proffered by women actuated by some sinister, ulterior or undisclosed motive. Convictions in such cases should not
Accused-appellant claims he was coerced and tortured by Pasay policemen to admit the rape, showing to the trial court bodily signs of
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said abuse. 19 Aside from his self-serving assertion, the truth of such allegation was not proven. Besides, this allegedly coerced admission of guilt cannot affect the prosecution's case which has been established by other positive evidence pointing to his guilt beyond reasonable doubt. The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
Finding no reversible error in the decision subject of this appeal, we affirm the same in its entirety. CRUZ, J.:p WHEREFORE, the decision is AFFIRMED. Accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to indemnify the victim, Diana Rose Castro in the amount of P30,000.00 in line with prevailing jurisprudence. Costs against the appellant.
Asked how she felt while she was being raped, the complainant replied: "Masarap." The trial judge believed her but just the same convicted the accused-appellant. The case is now before us.
SO ORDERED.
G.R. No. 84728
April 26, 1991
The complainant is Glenda Aringo, who was sixteen years old at the time of the alleged offense. She is the neighbor of Cesar Atento, the herein accused-appellant, a 39-year old store-keeper with a wife and eight children. Her claim is that Atento raped her five separate times, the first sometime in April 1986.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR ATENTO accused-appellant.

She says that on that first occasion she went to Atento's store in Barangay 18, Minoro, Cabagan, in Legazpi City to buy bread. Her parents were at work and Atento was alone in his house except for his three-year old daughter. Glenda claims Atento cajoled her into coming inside the house and then took her downstairs, where he
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succeeded in deflowering her. She says her maiden head ached and bled. Afterwards, he gave her P5.00. Ascendo Belmonte, a clinical psychologist at Don Susano Rodriguez Memorial Mental Hospital, subjected the girl to a series of intelligence tests, to wit, the Wecslar adult intelligence scale, revised beta exam, standard progressive matrices, and the Bender visual motor gestalt test, with the following findings:
Glenda speaks of four other times when he raped her. It was later (presumably because her hymen had healed) that she felt tickled by his manhood and described the act of coitus as "masarap." 1
The girl says she never told anybody about Atento's attacks on her because he had threatened her life. But she could not conceal her condition for long and after five months had to admit she was pregnant. She revealed the accused-appellant as the father of the foetus in her womb. The child was delivered on December 27, 1987, and christened Hubert Buendia Aringo.
Glenda B. Aringo, who was born on June 18, 1970, is INTER ALIA with an intellectual capacity between the ages of nine (9) and twelve (12) years. As such, her intellectual functioning is within the mentally defective level. Her fund of information is inadequate, her judgment is unsound, her thinking and working capacity is poor. She is unable to distinguish essential from non-essential details. Her vocabulary is limited. Her capacity for her perceptual processes is unsatisfactory. She lacks the capacity for abstracting and synthesizing concepts. However, in the midst of all these, Glenda was found capable of telling the truth. 2
Atento denies the charge against him, saying it was pure harassment concocted by a relative of the girl who wanted to eject him from the land where his house was erected. Insisting that Glenda was a girl of loose morals, he says he had twice seen her in sexual congress with a man and that she had once offered her body to his thirteen year old son for a fee of P5.00.
Glenda's description of the act of coitus as pleasurable would have destroyed the whole case against Atento but for one singular significant fact. The girl is a mental retardate.
Benita Aringo, Glenda's mother, testified that her daughter reached only third grade and did not like to continue studying, preferring to play with children younger than she, even when she was already pregnant. After delivering her child, she would often leave its care to Benita, and play marbles with the children rather than feed her baby. Another relative, Caridad Aringo, testified that Glenda had the mentality of a 12-year old and was fond of rubber bands and playing cards.
The Court finds this to be the reason why, while a rape victim with normal intelligence, would have said that the attack on her caused
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her much physical pain and mental agony, Glenda naively declared that Atento's sexual organ in hers gave her much pleasure. xxx xxx xxx
It is worth observing that Glenda's child was born on December, nine months after her rape in April, and that, according to the trial judge, there was a remarkable resemblance between Atento and the boy.
It has not been clearly established that Atento employed force or threat against Glenda to make her submit to his lust. Nevertheless, there is no question that Atento is guilty of rape upon Glenda under paragraph 2, because the girl was deprived of reason. Alternatively, he is liable under paragraph 3, because his victim had the mentality of a girl less than twelve years old at the time she was raped.
Article 335 of the Revised Penal Code provides: In People v. Atutubo, 3 this Court held: Art. 335. When and how rape committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1.
2. When the woman is deprived of reason or otherwise unconscious and
It is not necessary under Article 335 for the culprit to actually deprive the victim of reason prior to the rape, as by the administration of drugs or by some other illicit method. Ms provision also applies to cases where the woman has been earlier deprived of reason by other causes, as when she is congenitally retarded or has previously suffered some traumatic experience that has lowered her mental capacity. In such situations, the victim is in the same category as a child below 12 years of age for lacking the necessary will to object to the attacker's lewd intentions.
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
In People v. Palma, 4 where a 14-year old mental retardate was another rape victim, we held that:
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The crime committed by Palma is rape under Article 335(2) of the Revised Penal Code. Copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape. Physical intimidation need not precede sexual intercourse considering the age, mental abnormality and deficiency of the complainant. sickly and almost an idiot, sexual intercourse with her is rape. Her failure to offer resistance to the act did not mean consent for she was incapable of giving any rational consent.
So also in People v. Sunga, 5 where the offended party was 23 years old with the mentality of a child about 8 to 9 years of age:
The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feeble-minded, idiotic woman is rape.
Because of her mental condition, complainant is incapable of giving consent to the sexual intercourse. She is in the same class as a woman deprived of reason or otherwise unconscious. Appellant therefore committed rape in having sexual intercourse with her.
The trial court, however, held Atento guilty of rape under Paragraph 3, citing People v. Asturias, 7 where it was held:
In his authoritative work on Criminal Law, Chief Justice Aquino explains Paragraph 2 as follows. 6
. . . in the rape of a woman deprived of reason or unconscious, the victim has no will. The absence of will determines the existence of the rape. Such lack of will may exist not only when the victim is unconscious or totally deprived of reason, but also when she is suffering some mental deficiency impairing her reason or free will. In that case, it is not necessary that she should offer real opposition or constant resistance to the sexual intercourse. Carnal knowledge of a woman so weak in intellect as to be incapable of legal consent constitutes rape. Where the offended woman was feeble-minded,
Assuming that complainant Vilma Ortega voluntarily submitted herself to the bestial desire of appellant still the crime committed is rape under paragraph 3 of Article 335 of the Revised Penal Code. This is so even if the circumstances of force and intimidation, or of the victim being deprived of reason or otherwise unconscious are absent. The victim has the mentality of a child below seven years old. If sexual intercourse with a victim under twelve years of age is rape, then it should follow that carnal knowledge with a seventeenyear old girl whose mental capacity is that of a seven year old child would constitute rape.
In coming to his conclusion, Judge Gregorio A. Consulta declared:
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. . . Given the low I.Q. of Glenda, it is impossible to believe that she could have fabricated her charges against the accused. She lacks the gift of articulation and inventiveness. She could not even explain with ease the meaning of rape, a term which she learned in the community. Even with intensive coaching, assuming that happened, on the witness stand where she was alone, it would show with her testimony falling into irretrievable pieces. But that did not happen. She proceeded, though with much difficulty, with childlike innocence. A smart and perspicacious person would hesitate to describe to the Court her sexual experiences as "tickling" and "masarap" for that would only elicit disdain and laughter. Only a simple-minded artless child would do it. And Glenda falls within the level of a 9-12 year old child. And Glenda was telling the truth! of reclusion perpetua, the obligation to acknowledge and support Hubert Buendia Aringo as his own spurious child, and to pay the costs.
WHEREFORE, the appealed judgment is AFFIRMED as above modified. It is so ordered.
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.
DECISION There is no doubt that when she submitted herself to the accused later for subsequent intercourses, she was dominated more by fear and ignorance than by reason.
BELLOSILLO, J.:
In any event, whether under paragraph 2 or under paragraph 3 of Article 335 of the Revised Penal Code, the accused-appellant deserves to be punished for the rape of Glenda Azingo.
The trial court found the accused-appellant guilty of rape as charged, meaning that he raped the victim five times, but we do not agree that the other four rapes have been conclusively proven. Otherwise, he would have to be punished for five separate rapes. Except for this and the civil indemnity, which is increased from P20,000.00 to P30,000.00, we agree with the sentence imposing on him the penalty
On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere
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strafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd. inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts.[3] The inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage.
Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused - a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia?
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom line is that touching must be
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death,[5] hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659.[6]
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As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her childrens room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her.[9] He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.
According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused.[8] Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthels body as her hymen was intact and its orifice was only 0.5 cm. in diameter.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.
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penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge.[10] But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthels younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthels vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible
In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if the attackers penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva,[12] or that the penis of the accused touched the middle part of her vagina.[13] Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victims vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape.[14] As the labias, which are required to be "touched" by the penis, are by their natural situs or
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location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. the drawbridge."[19] But, to our mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion."
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora.[15] Jurisprudence dictates that the labia majora must be entered for rape to be consummated,[16] and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primos penis was able to penetrate Crysthels vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her childrens room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim).
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ,"[17] but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum,"[18] or "the bombardment of
It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered an unbridled observation impossible. Not
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even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primos penis supposedly reaching Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazons sight, not to discount the fact that Primos right hand was allegedly holding his penis thereby blocking it from Corazons view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that intergenital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court -
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act.
Q: But did his penis penetrate your organ?
We are not persuaded. It is inconsistent with mans instinct of selfpreservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazons presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primos penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration,[21] obviously induced by a question
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propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection.[23] On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim.[27]
Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by the child's own assertion that she resisted Primos advances by putting her legs close together;[24] consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible.[26] None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of
In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or
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accident other than his own spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are present in the instant case, hence, the accused should be punished only for it. SO ORDERED.
G.R. No. 187730
June 29, 2010
PEOPLE OF THE PHILIPPINES, Petitioner,

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods.
vs. RODOLFO GALLO y GADOT, Accused-Appellant, FIDES PACARDO y JUNGCO and PILAR MANTA y DUNGO, Accused.
DECISION VELASCO, JR., J.: The Case This is an appeal from the Decision1 dated December 24, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02764 entitled People of the Philippines v. Rodolfo Gallo y Gadot (accusedappellant), Fides Pacardo y Jungco and Pilar Manta y Dungo (accused), which affirmed the Decision2 dated March 15, 2007 of the Regional Trial Court (RTC), Branch 30 in Manila which convicted the accused-appellant Rodolfo Gallo y Gadot ("accused-appellant") of syndicated illegal recruitment in Criminal Case No. 02-206293 and estafa in Criminal Case No. 02-206297.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.
The Facts
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Originally, accused-appellant Gallo and accused Fides Pacardo ("Pacardo") and Pilar Manta ("Manta"), together with Mardeolyn Martir ("Mardeolyn") and nine (9) others, were charged with syndicated illegal recruitment and eighteen (18) counts of estafa committed against eighteen complainants, including Edgardo V. Dela Caza ("Dela Caza"), Sandy Guantero ("Guantero") and Danilo Sare ("Sare"). The cases were respectively docketed as Criminal Case Nos. 02-2062936 to 02-206311. However, records reveal that only Criminal Case No. 02-206293, which was filed against accusedappellant Gallo, Pacardo and Manta for syndicated illegal recruitment, and Criminal Case Nos. 02-206297, 02-206300 and 02206308, which were filed against accused-appellant Gallo, Pacardo and Manta for estafa, proceeded to trial due to the fact that the rest of the accused remained at large. Further, the other cases, Criminal Case Nos. 02-206294 to 02-206296, 02-206298 to 02-206299, 02206301 to 02-206307 and 02-206309 to 02-206311 were likewise provisionally dismissed upon motion of Pacardo, Manta and accused-appellant for failure of the respective complainants in said cases to appear and testify during trial.
Thus, the present appeal concerns solely accused-appellants conviction for syndicated illegal recruitment in Criminal Case No. 02206293 and for estafa in Criminal Case No. 02-206297.
In Criminal Case No. 02-206293, the information charges the accused-appellant, together with the others, as follows:
The undersigned accuses MARDEOLYN MARTIR, ISMAEL GALANZA, NELMAR MARTIR, MARCELINO MARTIR, NORMAN MARTIR, NELSON MARTIR, MA. CECILIA M. RAMOS, LULU MENDANES, FIDES PACARDO y JUNGCO, RODOLFO GALLO y GADOT, PILAR MANTA y DUNGO, ELEONOR PANUNCIO and YEO SIN UNG of a violation of Section 6(a), (l) and (m) of Republic Act 8042, otherwise known as the Migrant Workers and Overseas Filipino Workers Act of 1995, committed by a syndicate and in large scale, as follows:
It should also be noted that after trial, Pacardo and Manta were acquitted in Criminal Case Nos. 02-206293, 02-206297, 02-206300 and 02-206308 for insufficiency of evidence. Likewise, accusedappellant Gallo was similarly acquitted in Criminal Case Nos. 02206300, the case filed by Guantero, and 02-206308, the case filed by Sare. However, accused-appellant was found guilty beyond reasonable doubt in Criminal Case Nos. 02-206293 and 02-206297, both filed by Dela Caza, for syndicated illegal recruitment and estafa, respectively.
That in or about and during the period comprised between November 2000 and December, 2001, inclusive, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping with one another, representing themselves to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully, for a fee, recruit and promise employment/job placement abroad to FERDINAND ASISTIN, ENTICE BRENDO, REYMOND G. CENA, EDGARDO V. DELA CAZA, RAYMUND EDAYA, SANDY O.
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GUANTENO, RENATO V. HUFALAR, ELENA JUBICO, LUPO A. MANALO, ALMA V. MENOR, ROGELIO S. MORON, FEDILA G. NAIPA, OSCAR RAMIREZ, MARISOL L. SABALDAN, DANILO SARE, MARY BETH SARDON, JOHNNY SOLATORIO and JOEL TINIO in Korea as factory workers and charge or accept directly or indirectly from said FERDINAND ASISTIN the amount of P45,000.00; ENTICE BRENDO P35,000.00; REYMOND G. CENA P30,000.00; EDGARDO V. DELA CAZA P45,000.00; RAYMUND EDAYA P100,000.00; SANDY O. GUANTENO P35,000.00; RENATO V. HUFALAR P70,000.00; ELENA JUBICO P30,000.00; LUPO A. MANALO P75,000.00; ALMA V. MENOR P45,000.00; ROGELIO S. MORON P70,000.00; FEDILA G. NAIPA P45,000.00; OSCAR RAMIREZ P45,000.00; MARISOL L. SABALDAN P75,000.00; DANILO SARE P100,000.00; MARY BETH SARDON P25,000.00; JOHNNY SOLATORIO P35,000.00; and JOEL TINIO P120,000.00 as placement fees in connection with their overseas employment, which amounts are in excess of or greater than those specified in the schedule of allowable fees prescribed by the POEA Board Resolution No. 02, Series 1998, and without valid reasons and without the fault of the said complainants failed to actually deploy them and failed to reimburse the expenses incurred by the said complainants in connection with their documentation and processing for purposes of their deployment.3 (Emphasis supplied) [sic] one another, did then and there willfully, unlawfully and feloniously defraud EDGARDO V. DELA CAZA, in the following manner, to wit: the said accused by means of false manifestations and fraudulent representations which they made to the latter, prior to and even simultaneous with the commission of the fraud, to the effect that they had the power and capacity to recruit and employ said EDGARDO V. DELA CAZA in Korea as factory worker and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof; induced and succeeded in inducing said EDGARDO V. DELA CAZA to give and deliver, as in fact, he gave and delivered to said accused the amount of P45,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and untrue and were made [solely] for the purpose of obtaining, as in fact they did obtain the said amount of P45,000.00 which amount once in their possession, with intent to defraud said [EDGARDO] V. DELA CAZA, they willfully, unlawfully and feloniously misappropriated, misapplied and converted the said amount of P45,000.00 to their own personal use and benefit, to the damage and prejudice of the said EDGARDO V. DELA CAZA in the aforesaid amount of P45,000.00, Philippine currency.
CONTRARY TO LAW.4
In Criminal Case No. 02-206297, the information reads:
When arraigned on January 19, 2004, accused-appellant Gallo entered a plea of not guilty to all charges.
That on or about May 28, 2001, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping with
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On March 3, 2004, the pre-trial was terminated and trial ensued, thereafter. Accused-appellant Gallo then introduced himself as a relative of Mardeolyn and informed Dela Caza that the agency was able to send many workers abroad. Together with Pacardo and Manta, he also told Dela Caza about the placement fee of One Hundred Fifty Thousand Pesos (PhP 150,000) with a down payment of Forty-Five Thousand Pesos (PhP 45,000) and the balance to be paid through salary deduction.
During the trial, the prosecution presented as their witnesses, Armando Albines Roa, the Philippine Overseas Employment Administration (POEA) representative and private complainants Dela Caza, Guanteno and Sare. On the other hand, the defense presented as its witnesses, accused-appellant Gallo, Pacardo and Manta.
Version of the Prosecution
Dela Caza, together with the other applicants, were briefed by Mardeolyn about the processing of their application papers for job placement in Korea as a factory worker and their possible salary. Accused Yeo Sin Ung also gave a briefing about the business and what to expect from the company and the salary.
On May 22, 2001, Dela Caza was introduced by Eleanor Panuncio to accused-appellant Gallo, Pacardo, Manta, Mardeolyn, Lulu Mendanes, Yeo Sin Ung and another Korean national at the office of MPM International Recruitment and Promotion Agency ("MPM Agency") located in Malate, Manila.
Dela Caza was told that Mardeolyn was the President of MPM Agency, while Nelmar Martir was one of the incorporators. Also, that Marcelino Martir, Norman Martir, Nelson Martir and Ma. Cecilia Ramos were its board members. Lulu Mendanes acted as the cashier and accountant, while Pacardo acted as the agencys employee who was in charge of the records of the applicants. Manta, on the other hand, was also an employee who was tasked to deliver documents to the Korean embassy.
With accused-appellants assurance that many workers have been sent abroad, as well as the presence of the two (2) Korean nationals and upon being shown the visas procured for the deployed workers, Dela Caza was convinced to part with his money. Thus, on May 29, 2001, he paid Forty-Five Thousand Pesos (PhP 45,000) to MPM Agency through accused-appellant Gallo who, while in the presence of Pacardo, Manta and Mardeolyn, issued and signed Official Receipt No. 401.
Two (2) weeks after paying MPM Agency, Dela Caza went back to the agencys office in Malate, Manila only to discover that the office had moved to a new location at Batangas Street, Brgy. San Isidro,
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Makati. He proceeded to the new address and found out that the agency was renamed to New Filipino Manpower Development & Services, Inc. ("New Filipino"). At the new office, he talked to Pacardo, Manta, Mardeolyn, Lulu Mendanes and accused-appellant Gallo. He was informed that the transfer was done for easy accessibility to clients and for the purpose of changing the name of the agency. defense stipulated and admitted to the existence of the following documents:
Dela Caza decided to withdraw his application and recover the amount he paid but Mardeolyn, Pacardo, Manta and Lulu Mendanes talked him out from pursuing his decision. On the other hand, accused-appellant Gallo even denied any knowledge about the money.
1. Certification issued by Felicitas Q. Bay, Director II, Licensing Branch of the POEA to the effect that "New Filipino Manpower Development & Services, Inc., with office address at 1256 Batangas St., Brgy. San Isidro, Makati City, was a licensed landbased agency whose license expired on December 10, 2001 and was delisted from the roster of licensed agencies on December 14, 2001." It further certified that "Fides J. Pacardo was the agencys Recruitment Officer";
After two (2) more months of waiting in vain to be deployed, Dela Caza and the other applicants decided to take action. The first attempt was unsuccessful because the agency again moved to another place. However, with the help of the Office of Ambassador Seeres and the Western Police District, they were able to locate the new address at 500 Prudential Building, Carriedo, Manila. The agency explained that it had to move in order to separate those who are applying as entertainers from those applying as factory workers. Accused-appellant Gallo, together with Pacardo and Manta, were then arrested.
2. Certification issued by Felicitas Q. Bay of the POEA to the effect that MPM International Recruitment and Promotion is not licensed by the POEA to recruit workers for overseas employment;
3. Certified copy of POEA Memorandum Circular No. 14, Series of 1999 regarding placement fee ceiling for landbased workers.
4. Certified copy of POEA Memorandum Circular No. 09, Series of 1998 on the placement fee ceiling for Taiwan and Korean markets, and
The testimony of prosecution witness Armando Albines Roa, a POEA employee, was dispensed with after the prosecution and
5. Certified copy of POEA Governing Board Resolution No. 02, series of 1998.
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I. Accused FIDES PACARDO y JUNGO and PILAR MANTA y DUNGO are hereby ACQUITTED of the crimes charged in Criminal Cases Nos. 02-206293, 02-206297, 02-206300 and 02-206308;
Version of the Defense
For his defense, accused-appellant denied having any part in the recruitment of Dela Caza. In fact, he testified that he also applied with MPM Agency for deployment to Korea as a factory worker. According to him, he gave his application directly with Mardeolyn because she was his town mate and he was allowed to pay only Ten Thousand Pesos (PhP 10,000) as processing fee. Further, in order to facilitate the processing of his papers, he agreed to perform some tasks for the agency, such as taking photographs of the visa and passport of applicants, running errands and performing such other tasks assigned to him, without salary except for some allowance. He said that he only saw Dela Caza one or twice at the agencys office when he applied for work abroad. Lastly, that he was also promised deployment abroad but it never materialized.
II. Accused RODOLFO GALLO y GADOT is found guilty beyond reasonable doubt in Criminal Case No. 02-206293 of the crime of Illegal Recruitment committed by a syndicate and is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of ONE MILLION (Php1,000,000.00) PESOS. He is also ordered to indemnify EDGARDO DELA CAZA of the sum of FORTY-FIVE THOUSAND (Php45,000.00) PESOS with legal interest from the filing of the information on September 18, 2002 until fully paid.
III. Accused RODOLFO GALLO y GADOT in Criminal Case No. 02206297 is likewise found guilty and is hereby sentenced to suffer the indeterminate penalty of FOUR (4) years of prision correccional as minimum to NINE (9) years of prision mayor as maximum.
Ruling of the Trial Court IV. Accused RODOLFO GALLO y GADOT is hereby ACQUITTED of the crime charged in Criminal Cases Nos. 02-206300 and 02206308.
On March 15, 2007, the RTC rendered its Decision convicting the accused of syndicated illegal recruitment and estafa. The dispositive portion reads:
WHEREFORE, judgment is hereby rendered as follows:
Let alias warrants for the arrest of the other accused be issued anew in all the criminal cases. Pending their arrest, the cases are sent to the archives.
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recruitment of Dela Caza. His actions and representations to Dela Caza can hardly be construed as the actions of a mere errand boy. The immediate release of accused Fides Pacardo and Pilar Manta is hereby ordered unless detained for other lawful cause or charge. As determined by the appellate court, the offense is considered economic sabotage having been committed by more than three (3) persons, namely, accused-appellant Gallo, Mardeolyn, Eleonor Panuncio and Yeo Sin Ung. More importantly, a personal found guilty of illegal recruitment may also be convicted of estafa.7 The same evidence proving accused-appellants commission of the crime of illegal recruitment in large scale also establishes his liability for estafa under paragragh 2(a) of Article 315 of the Revised Penal Code (RPC).
SO ORDERED.5
Ruling of the Appellate Court
On appeal, the CA, in its Decision dated December 24, 2008, disposed of the case as follows: On January 15, 2009, the accused-appellant filed a timely appeal before this Court. WHEREFORE, the appealed Decision of the Regional Trial Court of Manila, Branch 30, in Criminal Cases Nos. 02-206293 and 02206297, dated March 15, 2007, is AFFIRMED with the MODIFICATION that in Criminal Case No. 02-206297, for estafa, appellant is sentenced to four (4) years of prision correccional to ten (10) years of prision mayor.
The Issues
Accused-appellant interposes in the present appeal the following assignment of errors: SO ORDERED.6 I The CA held the totality of the prosecutions evidence showed that the accused-appellant, together with others, engaged in the
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The court a quo gravely erred in finding the accused-appellant guilty of illegal recruitment committed by a syndicate despite the failure of the prosecution to prove the same beyond reasonable doubt. an employee, such cannot warrant his outright conviction sans evidence that he acted in conspiracy with the officers of the agency.
We disagree. II To commit syndicated illegal recruitment, three elements must be established: (1) the offender undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code; (2) he has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers;8 and (3) the illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating with one another.9 When illegal recruitment is committed by a syndicate or in large scale, i.e., if it is committed against three (3) or more persons individually or as a group, it is considered an offense involving economic sabotage.10
The court a quo gravely erred in finding the accused-appellant guilty of estafa despite the failure of the prosecution to prove the same beyond reasonable doubt.
Our Ruling
The appeal has no merit.
Evidence supports conviction of the crime of Syndicated Illegal Recruitment
Accused-appellant avers that he cannot be held criminally liable for illegal recruitment because he was neither an officer nor an employee of the recruitment agency. He alleges that the trial court erred in adopting the asseveration of the private complainant that he was indeed an employee because such was not duly supported by competent evidence. According to him, even assuming that he was
Under Art. 13(b) of the Labor Code, "recruitment and placement" refers to "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not".
After a thorough review of the records, we believe that the prosecution was able to establish the elements of the offense
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sufficiently. The evidence readily reveals that MPM Agency was never licensed by the POEA to recruit workers for overseas employment.
xxxx
Even with a license, however, illegal recruitment could still be committed under Section 6 of Republic Act No. 8042 ("R.A. 8042"), otherwise known as the Migrants and Overseas Filipinos Act of 1995, viz:
(l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and
Sec. 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall, likewise, include the following act, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:
(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.
(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance;
The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable.
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In the instant case, accused-appellant committed the acts enumerated in Sec. 6 of R.A. 8042. Testimonial evidence presented by the prosecution clearly shows that, in consideration of a promise of foreign employment, accused-appellant received the amount of Php 45,000.00 from Dela Caza. When accused-appellant made misrepresentations concerning the agencys purported power and authority to recruit for overseas employment, and in the process, collected money in the guise of placement fees, the former clearly committed acts constitutive of illegal recruitment.11 Such acts were accurately described in the testimony of prosecution witness, Dela Caza, to wit:
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PROS. MAGABLIN
Q: Mr. Witness, as you claimed you tried to withdraw your application at the agency. Was there any instance that you were able to talk to Fides Pacardo, Rodolfo Gallo and Pilar Manta?
PROS. MAGABLIN
A: Yes, maam.
Q: How about this Rodolfo Gallo? Q: What was the conversation that transpired among you before you demanded the return of your money and documents? A: He was the one who received my money. A: When I tried to withdraw my application as well as my money, Mr. Gallo told me "I know nothing about your money" while Pilar Manta and Fides Pacardo told me, why should I withdraw my application and my money when I was about to be [deployed] or I was about to leave.
Q: Aside from receiving your money, was there any other representations or acts made by Rodolfo Gallo?
A: He introduced himself to me as relative of Mardeolyn Martir and he even intimated to me that their agency has sent so many workers abroad.
xxxx
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Q: And what transpired at that office after this Panuncio introduced you to those persons whom you just mentioned?
A: Yes, maam.
A: The three of them including Rodolfo Gallo told me that the placement fee in that agency is Php 150,000.00 and then I should deposit the amount of Php 45,000.00. After I have deposited said amount, I would just wait for few days
Q: Why, why did you believe?
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A: Because of the presence of the two Korean nationals and they keep on telling me that they have sent abroad several workers and they even showed visas of the records that they have already deployed abroad.
Q: They were the one (sic) who told you that you have to pay Php 45,000.00 for deposit only?
Q: Aside from that, was there any other representations which have been made upon you or make you believe that they can deploy you?
A: Yes, maam, I was told by them to deposit Php 45,000.00 and then I would pay the remaining balance of Php105,000.00, payment of it would be through salary deduction.
A: At first I was adamant but they told me "If you do not want to believe us, then we could do nothing." But once they showed me the [visas] of the people whom they have deployed abroad, that was the time I believe them.
Q: That is for what Mr. Witness again? Q: So after believing on the representations, what did you do next Mr. Witness? A: For placement fee.
A: That was the time that I decided to give the money. Q: Now did you believe to (sic) them?
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xxxx xxxx PROS. MAGABLIN PROS. MAGABLIN Q: There appears a signature appearing at the left bottom portion of this receipt. Do you know whose signature is this? Q: Do you have proof that you gave the money?
A: Yes, maam.
A: Yes, maam, signature of Rodolfo Gallo.
PROS. MAGABLIN Q: Where is your proof that you gave the money?
Q: Why do you say that that is his signature? A: I have it here.
PROS. MAGABLIN:
A: Rodolfo Gallos signature Your Honor because he was the one who received the money and he was the one who filled up this O.R. and while he was doing it, he was flanked by Fides Pacardo, Pilar Manta and Mardeolyn Martir.
Witness is producing to this court a Receipt dated May 28, 2001 in the amount of Php45,000.00 which for purposes of record Your Honor, may I request that the same be marked in the evidence as our Exhibit "F".
xxxx
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Q: So it was Gallo who received your money? xxxx
A: Yes, maam.
Q: And were they able to deploy you as promised by them?
PROS. MAGABLIN
A: No, maam, they were not able to send us abroad.12
Q: And after that, what did this Gallo do after he received your money?
A: They told me maam just to call up and make a follow up with our agency.
xxxx
Essentially, Dela Caza appeared very firm and consistent in positively identifying accused-appellant as one of those who induced him and the other applicants to part with their money. His testimony showed that accused-appellant made false misrepresentations and promises in assuring them that after they paid the placement fee, jobs in Korea as factory workers were waiting for them and that they would be deployed soon. In fact, Dela Caza personally talked to accused-appellant and gave him the money and saw him sign and issue an official receipt as proof of his payment. Without a doubt, accused-appellants actions constituted illegal recruitment.
Q: Now Mr. Witness, after you gave your money to the accused, what happened with the application, with the promise of employment that he promised?
Additionally, accused-appellant cannot argue that the trial court erred in finding that he was indeed an employee of the recruitment agency. On the contrary, his active participation in the illegal recruitment is unmistakable. The fact that he was the one who issued and signed the official receipt belies his profession of innocence.
A: Two (2) weeks after giving them the money, they moved to a new office in Makati, Brgy. San Isidro. This Court likewise finds the existence of a conspiracy between the accused-appellant and the other persons in the agency who are
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currently at large, resulting in the commission of the crime of syndicated illegal recruitment. Conspiracy to defraud aspiring overseas contract workers was evident from the acts of the malefactors whose conduct before, during and after the commission of the crime clearly indicated that they were one in purpose and united in its execution. Direct proof of previous agreement to commit a crime is not necessary as it may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused pointing to a joint purpose and design, concerted action and community of interest. As such, all the accused, including accused-appellant, are equally guilty of the crime of illegal recruitment since in a conspiracy the act of one is the act of all.
In this case, it cannot be denied that the accused-appellent together with Mardeolyn and the rest of the officers and employees of MPM Agency participated in a network of deception. Verily, the active involvement of each in the recruitment scam was directed at one single purpose to divest complainants with their money on the pretext of guaranteed employment abroad. The prosecution evidence shows that complainants were briefed by Mardeolyn about the processing of their papers for a possible job opportunity in Korea, as well as their possible salary. Likewise, Yeo Sin Ung, a Korean national, gave a briefing about the business and what to expect from the company. Then, here comes accused-appellant who introduced himself as Mardeolyns relative and specifically told Dela Caza of the fact that the agency was able to send many workers abroad. Dela Caza was even showed several workers visas who were already allegedly deployed abroad. Later on, accused-appellant signed and issued an official receipt acknowledging the down payment of Dela Caza. Without a doubt, the nature and extent of the actions of accused-appellant, as well as with the other persons in MPM Agency clearly show unity of action towards a common undertaking. Hence, conspiracy is evidently present.
To reiterate, in establishing conspiracy, it is not essential that there be actual proof that all the conspirators took a direct part in every act. It is sufficient that they acted in concert pursuant to the same objective.14
Estafa
The prosecution likewise established that accused-appellant is guilty of the crime of estafa as defined under Article 315 paragraph 2(a) of the Revised Penal Code, viz:
In People v. Gamboa,13 this Court discussed the nature of conspiracy in the context of illegal recruitment, viz: Art. 315. Swindling (estafa). Any person who shall defraud another by any means mentioned hereinbelow
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on the strength of such assurance, the complainants parted with their money in payment of the placement fees; that after receiving the money, accused-appellant and his co-accused went into hiding by changing their office locations without informing complainants; and that complainants were never deployed abroad. As all these representations of the accused-appellant proved false, paragraph 2(a), Article 315 of the Revised Penal Code is thus applicable.1avvphi1
xxxx
2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits.
Defense of Denial Cannot Prevail over Positive Identification
The elements of estafa in general are: (1) that the accused defrauded another (a) by abuse of confidence, or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.15 Deceit is the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed; and which deceives or is intended to deceive another so that he shall act upon it, to his legal injury.
Indubitably, accused-appellants denial of the crimes charged crumbles in the face of the positive identification made by Dela Caza and his co-complainants as one of the perpetrators of the crimes charged. As enunciated by this Court in People v. Abolidor,16 "[p]ositive identification where categorical and consistent and not attended by any showing of ill motive on the part of the eyewitnesses on the matter prevails over alibi and denial."
The defense has miserably failed to show any evidence of ill motive on the part of the prosecution witnesses as to falsely testify against him.
All these elements are present in the instant case: the accusedappellant, together with the other accused at large, deceived the complainants into believing that the agency had the power and capability to send them abroad for employment; that there were available jobs for them in Korea as factory workers; that by reason or
Therefore, between the categorical statements of the prosecution witnesses, on the one hand, and bare denials of the accused, on the other hand, the former must prevail.17
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Moreover, this Court accords the trial courts findings with the probative weight it deserves in the absence of any compelling reason to discredit the same. It is a fundamental judicial dictum that the findings of fact of the trial court are not disturbed on appeal except when it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that would have materially affected the outcome of the case. We find that the trial court did not err in convicting the accused-appellant.
ROMERO, J.:
In this sordid tale of defloration, a man is saved from the gallows for failure of the prosecution to adduce clear and positive proof of his relationship with the complainant.
WHEREFORE, the appeal is DENIED for failure to sufficiently show reversible error in the assailed decision. The Decision dated December 24, 2008 of the CA in CA-G.R. CR-H.C. No. 02764 is AFFIRMED.
Before us on automatic review is a decision rendered by the Regional Trial Court of Naga City, Branch 25, imposing the supreme penalty of death on herein accused-appellant, Raul Berana y Guevarra for the crime of rape.[1]
The facts of the case are as follows: No costs. On June 2, 1994 at around 2:00 o'clock in the morning, 14-year old Maria Elena Jarcia was sleeping with her four-year old niece in one of the two rooms in a house her family was renting at Bayawas Street, Naga City when she was awakened by her brother-in-law, herein accused-appellant, Raul Berana. Complainant recognized him because light was filtering in from a nearby window. Berana pointed a "buntot page" at her neck and warned her not to make any noise, otherwise she would be killed.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAUL BERANA y GUEVARRA, accused-appellant.
DECISION
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The terrified girl was made to lie down while accused-appellant raised her duster and proceeded to remove her shorts and her underwear, after which he mashed her breast and lay on top of her. The hapless girl was again threatened not to make any noise otherwise he would kill her. Complainant tried to cover her breasts with her arms but accused-appellant pushed her arms aside. As he inserted his organ into her womanhood, Elena felt excruciating pain. He began kissing her and made several push and pull movements, after which, the victim felt something liquid in her organ. Accusedappellant sat down and warned her not to talk to anyone about the incident. day, their mother fetched Elena and accompanied her to the Provincial Hospital for medical examination. The medical examination conducted revealed the following findings:
P.E.
Vagina admits one finger
(+) Hymenal Laceration at 6:00 o'clock and 9 o'clock positions His bestial lust not having been satisfied, accused-appellant lay on top of her for the second time, fondled her breast and made push and pull movements. At around 2:30 o'clock in the morning, accused-appellant left after warning her that only the two of them must know about the incident. During the entire time that the accused-appellant was raping her, the poor girl was weeping and trembling with fear because he repeated his threats to kill her should she make any noise. Complainant, before having identified in court Exhibit A as the "buntot page" used by accused-appellant, described it as "long with some protruding parts and with long and pointed tip"[2]
Gram Staining Result:
-gram (+) bacilli = many
-pus cells = few
After the accused-appellant left, Elena put on her clothes and went to the adjacent room to report the incident to her sister, Ma. Ana. When Ana heard the grim story, she lost no time in hurrying to Camaligan, Camarines Sur where their parents , having been invited to a birthday party of a relative, had stayed overnight. On the same
-epithelial cells = many
NOTE: Gram stains smear shows presence of spermatozoa[3]
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by means of force and intimidation, did there and then, willfully, unlawfully and feloniously have sexual intercourse with herein complaining witness MARIA ELENA JARCIA Y DE LOS MARTINEZ, a minor, 14 years of age, to her damage and prejudice.
After having been examined, Elena and her mother proceeded to the Sabang Police station in Naga City to report the incident. Thereafter, accused-appellant was apprehended by the police.
CONTRARY TO LAW On June 3, 1994, an information was filed before the Regional Trial Court of Naga City, Branch 25, against accused-appellant for the crime of rape, allegedly committed as follows: Upon arraignment, accused-appellant entered a plea of not guilty.
That on or about June 2, 1994, in the city of Naga, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by means of force, did then and there willfully, unlawfully and feloniously, have sexual intercourse with the herein complaining witness, MARIA ELENA JARCIA Y DE LOS MARTINEZ, a minor, 14 years of age.
On October 12, 1994, the prosecution again sought the amendment of the information filed in accordance with the mandate of Section 5, Rule 110 of the Revised Rules on Criminal Procedure relating to de oficio offenses which require the offended party's express conformity to the filing of the information.
CONTRARY TO LAW
On October 17, 1994, accused-appellant entered plea of not guilty to the re-amended information.
On June 6, 1994, an amended information was filed against accused-appellant which reads:
That on or about June 2, 1994, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, a relative of the offended party within the third civil degree,
Accused-appellant does not deny having sexual intercourse with the complainant but, however, maintains that Elena consented to it. According to accused-appellant, at around 1:30 o'clock in the morning of June 2, 1994, he had difficulty sleeping, so he took a walk and decided to visit his daughter at the house in Bayawas Street. When he arrived at the said place, he sat on the stairs at the rear of the house. While seated, he heard someone calling, "Mama." He
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recognized the voice as Elena's so he answered, "this is not your mama, this is your manoy,"[4] On hearing these words, complainant opened the door and approached accused-appellant to ask him where her mother was, whereupon, accused-appellant told her that her parents might not return home because her father got drunk at a birthday party of a relative in Camaligan. He then asked Elena if his daughter was already asleep. Upon having been informed that his daughter had just fallen asleep, accused-appellant bade Elena goodbye but the girl, invited him to stay for the night so that he could keep watch over her and his daughter. Accused-appellant accepted her invitation since he was very tired. When he entered the room, Elena followed him and locked the door. Seeing his daughter sleeping soundly on a mat, he picked her up and moved her away from the middle to the left side so as not to disturb her. Elena turned off the light from the gas lamp and lifted the mosquito net to prepare for bed. her on condition that she will be serious in her studies, Elena rose from her lying position and embraced him. He kissed her on the lips, touched her breasts and asked her again for sex. Complainant allegedly smiled and told him, "To my sister, you could only do it one (sic) but to me you will make it two,"[6] They had sex for the second time in the early morning of June 2, 1994. Accused-appellant left the room at around 2:30 o'clock in the morning. While answering a call of nature near a santol tree outside the house, he heard Ma. Ana ask Elena, "What did your manoy do to you?", to which the latter answered, "None, none." Accused-appellant heard nothing more as he decided to go on his way.[7]
At this point, she reminded the accused-appellant of the sum of money which she had been asking him some time. When told that he had no money, complainant allegedly started to caress and embrace accused-appellant while at the same time insisting that he give her the money. When he reiterated that he had no money, complainant took hold of his hand and placed it on her breast. Complainant allegedly was wearing only an undershirt and panty at the time. Accused-appellant, feeling "hot", decided, and succeeded in having sex with her. During the sexual intercourse, Elena told him, "It is painful, manoy." but accused-appellant tried to assuage the pain, saying that it is painful only during the first time.[5] Afterwards, accused-appellant sat beside Elena and engaged her in conversation. Elena allegedly asked him to help her when she completes high school. When accused-appellant promised to help
Accused-appellant narrated that prior to the incident, or specifically on December 1993, he was alone in the same room, reading an adult magazine when Elena arrived. She saw what he was reading and remarked that she had read the same magazine also. Embarassed, accused-appellant turned away and went near the window to continue his reading. Complainant, in the meantime, removed her school uniform leaving only her "sando" and her panty on. She approached accused-appellant and told him of the interesting parts in the magazine. When he told her that he had already seen them and was just reviewing the magazine, she told him, "Manoy, there are parts there which are beautiful." He then showed her the adult magazine and asked her to point out where these were. Elena placed her arms on his shoulders as she obliged him. When she embraced him, accused-appellant responded by embracing her back. He felt "hot" and placed his hand on her cheek then began touching her breast also. However, she turned her lips away so he ended kissing her cheek instead. Elena responded by kissing his cheek in turn. Accused-appellant, this time, kissed her lips and touched her breasts. They moved away from the window to
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avoid unwitting voyeurs. Somebody soon arrived and interrupted them so Elena became flustered and accused-appellant left. They maintained no relationship after the incident.
In this automatic review of the decision rendered by the trial court, accused-appellant raises the following issues:
The trial court did not give credence to the testimony of accusedappellant and on November 27, 1995, rendered a decision, the dispositive portion of which reads as follows:
I. The trial court erred when it convicted herein accused-appellant despite the absence of any clear and convincing evidence demonstrating the alleged use of force.
PREMISES CONSIDERED, this court finds accused-appellant guilty beyond reasonable doubt of the crime of rape defined and punishable under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659 which provides
II. The trial court erred when it convicted herein accused-appellant despite serious lapses and material inconsistencies in the testimony of the private complainant.
The death penalty shall be imposed when the crime of rape is committed with any of the following circumstances
III. The trial court erred when it convicted herein accused-appellant despite the prosecution's failure to adduce clear proof of all the attendant qualifying circumstances of the crime charged
1. When the victim is under eighteen (18) years of age and the offender is a x x x relative by consanguinity or affinity within the third civil degree.
IV. The trial court erred when it convicted herein accused-appellant based on a misplaced conclusion that herein accused-appellant allegedly admitted committing the offense charged
The accused being the husband of the victim's sister, is related by affinity to his victim within the third civil degree, the court hereby imposes upon Raul Berana y Guevarra to suffer DEATH PENALTY , to pay Ma. Elena M. Jarcia, the amount of P50,000 by way of damages and to pay the costs.
We shall deal with the issues raised seriatim.
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Regarding the first issue, accused-appellant contends that the trial court's finding that he had forcible sexual intercourse with the complainant was based solely on the results of the medical examination conducted by the prosecution's witness, Dr. Humilde Janaban on Elena. In support of his contention, appellant cites the following excerpt from the trial court's decision: assertion that there was sexual intercourse, of course the same cannot be said as to the alleged use of force. It has been held that such corroborative evidence is not considered sufficient, since proof of facts constituting one element of the crime is not corroborative proof of facts necessary to constitute another equally important element of the crime."
A careful perusal of the evidence adduced during the trials conducted in this case, show that the medical certificate of June 2, 1994 which was identified by Dra. Ma. Humilde B. Janaban, showing that the victim, private complainant Ma. Elena M. Jarcia suffered "Hymenal laceration at 6:00 o'clock and 9:00 o'clock positions in her private part which could have been caused by sexual intercourse and /or by the intervention of a blunt object by thrusting and then pulling then thrusting again of a hard blunt object and the presence of spermatozoa confirms the testimony of Ma. Elena Jarcia that she was sexually molested makes such testimony credible. To the mind of the court this [sic] findings are significant to the effect that sexual intercourse was involuntary or through threat and duress. The absence of any kind of external injury in the body of the victim other then those found in her organ is of no consequence.
Accused-appellant's contention is misplaced. The trial court's finding of rape in the case at bar, was not based solely on the medical findings showing hymenal laceration and the presence of spermatozoa in the victim's organ. While the excerpt quoted by the accused-appellant from the questioned decision gives the impression that the trial court considered the hymenal laceration and the presence of spermatozoa in the victim's organ as proof of forcible sexual intercourse, the decision read in its entirety shows otherwise. The trial court merely considered the medical findings as corroborative evidence for the complainant's testimony that accusedappellant had sexual intercourse with her. Complainant was forced to accede to accused-appellant's advances because he poked a "buntot page" at her neck and threatened to kill her should she make any noise. With such repeated threats, the hapless girl eventually broke down and cried.
Accused-appellant alleges that Elena encouraged his advances and the sexual intercourse was consensual. He asserts that while the hymenal laceration and the presence of spermatozoa prove the fact of sexual intercourse, they do not ipso facto prove that such act was committed by means of force, in line with our pronouncement in People vs. Godoy[8] that, "Even granting ex gratia argumenti that the medical report and the laceration corroborated the complainant's
Accused-appellant maintains, however, that complainant's testimony is too full of material inconsistencies to deserve belief. For instance, although complainant alleged that she bled after the coitus, the medical examination revealed otherwise; complainant's testimony in court that accused-appellant asked her for sex a second time belies her allegation that accused-appellant forced himself on her;
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complainant's statement in her affidavit that accused-appellant was armed with a blunt instrument is materially different from her testimony in court that accused-appellant carried with him a "buntot page". incident, he sat down and he again asked me to give him for the second time,"[11] complainant also stated that she was then crying and trembling with fear. Considering the continuing threat on her life if she makes an outcry, complainant had no choice but to accede to the desire of accused-appellant. That he asked her for sex does not necessarily imply that she gave her consent when he succeded in ravishing her again. It is indeed preposterous that a young woman, untrained in the ways of the world and of men would initiate and encourage his advances, as accused-appellant claims, considering especially that he is the husband of her older sister.
Accused-appellant's assertion that the medical record is bereft of any proof corroborating complainant's testimony that she bled after she was raped hardly consideration. The underwear of the complainant which was presented and admitted in court as evidence bore traces of blood.[9] Moreover, the absence of any sign of physical bleeding on the part of the complainant does not necessarily mean that there was no forcible sexual intercourse. For one thing, complainant was threatened with a "buntot page" poked at her neck at the time. Then too, accused-appellant's threat was sufficient enough to intimidate a young girl of 14 to force her to submit to his baser instincts. It must be noted that proof of external injuries inflicted on the complainant is not indispensable in a prosecution for rape committed with force or violence. The law does not impose upon a rape victim the burden of proving resistance. Physical resistance need not be established in rape case when intimidation is exercised upon her and she submits herself against her will to the rapist's lust because of fear of life and personal safety.[10] When a woman testifies that she was raped, she says in effect all that is necessary to show that said crime has been committed.
Accused-appellant, however, would have us believe that the sexual intercourse was consensual since complainant herself testified during trial that he asked her for a second time during the night in question. While complainant did state during trial that, "After the first
Accused-appellant nevertheless insists that complainant's testimony does not merit credence because of inconsistencies in her statement regarding the weapon used by the accused-appellant to threaten her on the night of the incident. We are not unaware that complainant stated in her affidavit that accused-appellant was armed with a blunt instrument in contrast with her testimony in court that accusedappellant was armed with a "buntot page." It must be borne in mind, however, that discrepancies between an affidavit and testimony in court occur more often than not since an affidavit is not prepared by the affiant herself but by another who uses his own language in writing the affiant's statement. It might not be amiss to note, at this point, that the instrument which was submitted by complainant to the police and later identified in court as the "buntot page" used by the accused-appellant was described by the Chief of Police in his letter to the prosecutor as "one (1) blunt instrument with black handle.[12] " In the case of People vs. Empleo[13], we had occasion to state that, "the contradiction between the affidavit and the testimony of the witness may be explained by the fact that an affidavit will not always disclose all the facts and will oftentimes and without design
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incorrectly describe, without the deponent detecting it, some of the occurrences narrated." one. The husband has the same relation by affinity to his wife's blood relatives as she has by consanguinity and vice versa."[14]
We find merit, however, in accused-appellant's contention that the prosecution failed to adduce clear and positive proof of the qualifying circumstance of relationship between accused-appellant and complainant. It should be noted that the relationship between accused-appellant and the complainant qualifies the crime from rape punishable by reclusion perpetua to rape punishable by death under Republic Act No. 7659. Under Article 335 of the Revised Penal Code as amended by R.A. No. 7659, the death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances:
Consequently, to effectively prosecute accused-appellant for the crime of rape committed by a relative by affinity within the third civil degree, it must be established that a) he is legally married to complainant's sister and b) complainant and accused-appellant's wife are full or half blood siblings.
The prosecution tried to establish the relationship of accusedappellant to the complainant by asking her the following during trial:
xxx
xxx
1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim.
Q: By the way, do you know the accused in this case by the name of Raul
A: Yes, I know him, sir Affinity is defined as "the relation which one spouse because of marriage has to blood relatives of the other. The connection existing, in consequence of marriage between each of the married persons and the kindred of the other. The doctrine of affinity grows out of the canonical maxim that marriage makes husband and wife
Q: Why do you know him?
A: He is the husband of my sister[15]
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"mama at papa," and his use of the phrase, "ang inyong manugang, Raul"[17] the trial court convicted him of the crime of rape committed by a relative by affinity within the third civil degree, under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659.
Complainant's mother also testified:
xxx Considering that the relationship of accused-appellant to complainant qualifies the crime of rape punishable by reclusion perpetua to rape punishable by death, it is but proper that a more stringent proof of relationship between the offender and the offended party must be established by the prosecution. Corollarily, a clearer proof of relationship between the complainant and the spouse of accused-appellant must be presented. The relationship of accusedappellant and the complainant, is not adequately substantiated since it is merely based on testimony of the complainant, her mother's testimony and the accused-appellant's use of the words, "mama at papa" in his letters. Needless to say, the evidence presented are not sufficient to dispel doubts about the true relationship of accusedappellant and the complainant, to the benefit of which the accused is entitled. Where the life of an accused-appellant hangs in the balance, a more exacting proof must be adduced.
Q: Do you know the accused in this case, Raul Berana y Guevarra?
A: Yes, I know him , sir.
Q: Why do you know him?
A: Because he is the husband of my daughter
Q: Whose name is that? Accused-appellant, in his last submission, insists that the trial court erred in convicting him based solely on a misplaced conclusion that he admitted the offense charged based on the four (4) letters he sent to the parents of the complainant, one of which states:
A: Rosa Jarcia, sir[16]
Based on abovementioned testimonies, as well as accusedappellant's letter to the complainant's parent's addressing them as
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Ma, Pa, patawarin niyo na ako, alam ko na hindi niyo basta-basta mapapatawad ang nagawa ko pero paano naman po ang kinabukasan nang mga apo at anak ko.[18]
And
Accused-appellant asserts that the letters, in no way, indicate an admission of guilt on his part. In support of his contention, accusedappellant cites the case of United States vs. Maqui[19] where it was held that an accused may show that an offer of compromise on his part was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that an offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily ensue therefrom.
xxx
Ma, pa, hindi ko kayo sinusumbatan. Dahil wala naman po akong dapat isumbat sa inyo. Napakabait ninyo sa kain. Ewan ko nga lang kung bakit ko nagawa iyon. Kung totoo talagang ako nasa sarili kong pagkatao.[21]
We are not convinced. The tenor of the letters sent by the accusedappellant to the parents of the complainant, while not explicitly admitting the forcible sexual intercourse, could hardly be considered an admission made merely to avoid the inconvenience of imprisonment. Consider the following excerpts:
Despite his claim that complainant initiated and consented to the sexual intercourse, accused-appellant in his letter never made mention of this fact but has, instead, unceasingly asked for forgiveness from the parents of the complainant, short of admitting categorically the offense charged. Clearly, the unsolicited letters of the accused-appellant cannot be construed as an offer of compromise to avoid the inconvenience of imprisonment but a plea of mercy to save him from the gallows.
Mama at Papa,
Masakit man sa inyo ang nagawa ko. Pero nagsasabi ako sa inyo ng totoo. Nang maganap ang insidenteng iyon. Wala ako sa sarili kong pagkatao. At wala akong matandaan sa nangyari (sic)[20]
In view of the fact that relationship between accused-appellant and the complainant was not properly established, we are constrained to reduce the penalty imposed by the lower court from death to reclusion perpetua. Accused-appellant is, however, ordered to pay civil indemnity ex delicto in the amount of P50,000 and the P50,000 imposed by the lower court shall constitute moral damages. The fact
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that the complainant has suffered the trauma of mental, physical and psychological suffering which constitutes the bases for moral damages is too obvious to still require the recital thereof at the trial by the victim since the court itself assumes and even acknowledges such agony on her part as gauge of her credibility.[22] For automatic review is the judgment of the Regional Trial Court of Masbate, Masbate, Branch 44, dated May 13, 1996, in Criminal Case No. 7454, imposing the penalty of death on accused-appellant, Jimmy Sabredo y Garbo, for the complex crime of abduction with rape of complainant Judeliza Sabredo. Edpsc
WHEREFORE, the decision of the Regional Trial Court of Naga City, Branch 25, finding accused-appellant Raul Berana y Guevarra guilty beyond reasonable doubt of rape is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua. Accused-appellant is ordered to pay complainant Ma. Elena M. Jarcia the sum of P50,000 by way of civil indemnity and P50,000 as moral damages. Costs against accused-appellant.
The facts of this case on record are as follows:
Appellant is the uncle of complainant. He is the younger brother of her father. In 1993, Jimmy arrived from Masbate to reside with Judeliza's family in Cagtagong, Caguyong, Borbon, Cebu, where he stayed with them for more than a year.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY SABREDO y GARBO, accused-appellant.
DECISION
QUISUMBING, J.:
On June 27, 1994, Judeliza went to the well near their house, to take a bath. There, Jimmy grabbed and forcibly dragged her at knife's point, to the highway where he made her board a truck for Bogo, Cebu. Impelled by fear, she complied, since Jimmy continuously poked a knife under cover of his jacket at her. From Bogo, he took her by passenger motorboat to Placer, Masbate. Thence he brought her to Estampar, Cataingan, Masbate, where they stayed at the house of Conchita Tipnit. Conchita was Jimmy's sister and Judeliza's aunt, though aunt and niece did not know each other. In Estampar, Judeliza tried to escape but was caught by Jimmy, who severely mauled her until she lost consciousness. Scedp
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Suspecting that Conchita would report the matter to the police, Jimmy took Judeliza by jeepney to Cagba, Tugbo, Masbate. They stayed with Roberto Sabredo, his nephew and Judeliza's first cousin. The two cousins, however, had not met before and Jimmy was able to pass her off as his wife. They stayed in Cagba from June 29 to July 5, 1994, with Jimmy closely guarding Judeliza. Calrspped On August 11, 1994, the Provincial Prosecutor of Masbate filed an information for forcible abduction with rape, which alleged:
On July 4, 1994, at around midnight, Jimmy, armed with a blade, sexually assaulted Judeliza. He covered her mouth to prevent her from shouting. After satisfying his lust, Jimmy inserted three fingers into her vaginal orifice and cruelly pinched it. Judeliza screamed and cried for help. Their host, Roberto, was awakened but could not do anything to assist her. Later, Jimmy struck Judeliza with a piece of wood, rendering her unconscious. Much later, he brought her to the house of his sister, Nilda Polloso, also at Cagba.
"That on or about June 27, 1994, and days thereafter from sitio Caglagang, barangay Caguyong, Burbon, Cebu the said accused with force and intimidation and against the consent of complainant Judeliza E. Sabredo abduct the latter to sitio Cagba, barangay Tugbo, Municipality of Masbate, Province of Masbate, Philippines, within the jurisdiction of this court and on (sic) the house of one auntie Nilda, accused with a bolo did then and there, willfully, unlawfully and feloniously have sexual intercourse of (sic) said Judeliza E. Sabredo on the night of July 4, 1994, against her will and consent.
"Contrary to law."[1] Nilda noticed the victim's weak and wan condition and offered her medicine. Catching Jimmy in the act of boiling water, she asked what it was for and was told that it would be poured over Judeliza to finish her off. Nilda, however, stopped him. On July 8, 1994, Judeliza recovered sufficiently from her injuries. Nilda brought her to the police where Judeliza reported her ordeal. That same day, while Jimmy was sleeping, Nilda managed to take away from him the blade, made of stainless steel, which he had used in the rape of Judeliza. After the initial police investigation, Judeliza was brought to Masbate Provincial Hospital, where she was confined for four days. The medico-legal officer, Dr. Artemio Capellan, examined her. Sccalr
At the arraignment, Jimmy, assisted by counsel, pleaded not guilty. Trial on the merits then ensued. Calrsc
Jimmy admitted having sexual relations with Judeliza, but insisted that it was consensual. He claimed that they were lovers and had been engaging in sexual intimacies for three months before running away. He explained that they had gone to Masbate after Judeliza had revealed to him that she was not really her father's daughter. They then lived together as husband and wife. He admitted having boxed and kicked her but claimed that he got mad at her after she
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confided that she really was his niece, contrary to what she earlier told him. He likewise admitted having pinched the victim's vagina, but only to punish her for deceiving him about their kinship. He claimed the instant case was filed against him because of the maltreatment she received. Appellant likewise admitted that he was facing another rape case before Branch 45 of the same court, which a certain Juanita Turing had filed against him in 1992. He, however, denied having fled to Cebu to escape prosecution for said case. Sppedsc Before us, on automatic review of the case, appellant assigns the following errors:
The trial court found appellant's version of the incident preposterous and his defense untenable. Choosing to believe the prosecution, the trial judge convicted appellant, and sentenced him thus:
THE TRIAL COURT GRAVELY ERRED IN ITS EVALUATION OF THE HONESTY OF PRIVATE COMPLAINANT, IN EFFECT GIVING FULL WEIGHT AND CREDENCE TO THE EVIDENCE OF THE PROSECUTION THAN THAT OF THE DEFENSE.
II "WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the complex crime of forcible abduction with rape under Article 48 in relation to Article[s] 335 and 342 of the Revised Penal Code and is meted the extreme penalty of death.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.
"The accused is likewise ordered to pay Judeliza Sabredo the amount of FIFTY THOUSAND PESOS (P50,000.00) by way of moral damages.
In sum, the issues for resolution now concern the credibility of the testimony of the offended party; the correctness of appellant's conviction for forcible abduction with rape, and the propriety of the imposition of the death penalty on him. Sdjad
"SO ORDERED." Appellant submits that Judeliza was neither a reliable nor credible witness since both the information and her affidavit[2] showed that
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the rape took place in Nilda's residence, while on direct examination, Judeliza testified that she was raped at Roberto's house. He claims these inconsistencies cast doubt on Judeliza's credibility. clear, and convincing manner, which remained consistent even under cross-examination. The trial court found her testimony believable and convincing, while appellant's version of events incredible and outrageous. Moreover, as testified by the medico-legal officer, he found that her body bore evidences of physical and sexual assault. Appellant's bare denial could not prevail over said positive evidence.
However, we have previously held that some discrepancies between the affidavit and the testimony of the witness in open court do not necessarily impair credibility of the testimony, for affidavits are generally taken ex parte and are often incomplete or even inaccurate for lack of searching inquiries by the investigating officer.[3] Note that here both the affidavit and the testimony of complainant in open court are consistent as to the fact that Jimmy raped her while he threatened her with a deadly weapon on July 4, 1994. Her sworn affidavit and her testimony in open court establish the basic elements of rape. These are: the commission of sexual intercourse, by the accused against complainant, with the use of force and intimidation, without her consent and against her will. Suffice it to stress that the trial court found that the accused abducted his niece by force, mauled and maltreated her repeatedly, instilling fear in her, dragged her to different places and any house he pleased, and ravished her on the night of July 4, 1994. Whether the house belonged to Nilda or Roberto, both of whom they had stayed with, is not here crucial, for the houses are both in Cagba, Tugbo, Masbate.
Appellant next insists that the intercourse between him and Judeliza was consensual, since they were sweethearts. A "sweetheart defense" should be substantiated by some documentary and/or other evidence of the relationship.[5] In this case, there is no showing of mementos, love letters, notes, pictures, or any concrete proof of a romantic nature. Besides, as observed by the trial judge, it is contrary to human experience that a naive rural lass like Judeliza, barely nineteen years old, would willingly consent to be her uncle's paramour. Nor, would he if he were indeed her sweetheart maltreat her repeatedly for no justifiable cause, without over-straining our credulity. Misact
Here, the trial court's assessment of the credibility of complainant's testimony is entitled to great weight, absent any showing that some facts were overlooked which, if considered, would affect the outcome of the case.[4] We find no reason to overturn the trial court's detailed evaluation of the evidence for both the prosecution and the defense. Complainant Judeliza's testimony was given in a straightforward,
Was appellant's conviction by the trial court for the complex crime of forcible abduction with rape correct? The elements of forcible abduction are: (1) that the person abducted is any woman, regardless of age, civil status, or reputation; (2) that the abduction is against her will; and (3) that the abduction is with lewd designs. The prosecution's evidence clearly shows that the victim was forcibly taken at knifepoint from Borbon, Cebu by appellant and through threats and intimidation brought to various towns in Masbate, where he passed her off as his "wife". That appellant was moved by lewd
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designs was shown in regard to rape by his having carnal knowledge of private complainant, against her will, on July 4, 1994 at Cagba, Tugbo, Masbate. While it may appear at first blush that forcible abduction, as defined and penalized by Article 342 of the Revised Penal Code was also committed, we are not totally disposed to convict appellant for the complex crime of forcible abduction with rape. We note that while the information sufficiently alleges the forcible taking of complainant from Cebu to Masbate, the same fails to allege "lewd designs." When a complex crime under Article 48 of the Revised Penal Code is charged, such as forcible abduction with rape, it is axiomatic that the prosecution must allege and prove the presence of all the elements of forcible abduction, as well as all the elements of the crime of rape.[6] When appellant, using a blade, forcibly took away complainant for the purpose of sexually assaulting her, as in fact he did rape her, the rape may then absorb forcible abduction.[7] Hence, the crime committed by appellant is simple rape only. Acctmis the commission of the offense, the lesser penalty shall be applied. Newmiso
The imposable penalty for rape under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, is reclusion perpetua. But where the rape is committed with the use of deadly weapon or by two or more persons, the imposable penalty ranges from reclusion perpetua to death. The use of the bladed weapon already qualified the rape.[8] Under Article 63 of the Revised Penal Code, the crucial factor in determining whether appellant should be meted the death penalty is the presence of an aggravating circumstance which attended the commission of the crime.[9] A perusal of the record shows that none of the aggravating circumstances enumerated in Article 14 of the Revised Penal Code was alleged and proven by the prosecution. Where there is no aggravating circumstance proved in
In sentencing appellant to death, the trial court noted that the victim was his niece, a relative by consanguinity within the third civil degree. Section 11 (1) of R.A. No. 7659 imposes the death penalty when the rape victim is under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. However, R.A. No. 7659 cannot be made to apply in the instant case for two reasons: First, at the time the rape was committed, private complainant was already more than eighteen years of age.[10] Second, the information did not allege that offender and offended party were relatives within the third degree of consanguinity. We have held that the seven circumstances in R.A. No. 7659 which warrant the automatic imposition of the death penalty partake of the nature of qualifying circumstances and as such should be alleged in the information to be appreciated as such.[11] In view of the failure of the information to comply with this requirement, said degree of relation could not be taken into account in considering the penalty to be imposed. For these reasons, the sentence on appellant should only be reclusion perpetua. Jjlex
We note that the trial court did not award any indemnity ex delicto, which current jurisprudence has fixed at P50,000.00. Accordingly, appellant is further sentenced to indemnify private complainant in the amount of P50,000.00 for the rape he committed against her. As to moral damages, we find the trial court's award of P50,000.00 in her favor duly supported by evidence on record and is in order. Misjuris
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reasonable doubt. It sentenced him to suffer the penalty of death. These cases[2] are now before the Court on automatic review. WHEREFORE, the decision of the Regional Trial Court of Masbate, Masbate, Branch 44, in Criminal Case No. 7454, is hereby MODIFIED. Appellant Jimmy Sabredo y Garbo is declared guilty beyond reasonable doubt of simple rape only as defined and penalized under Article 335 of the Revised Penal Code. The penalty imposed on him is hereby REDUCED to reclusion perpetua. He is also ordered to indemnify the victim, Judeliza Sabredo y Espinosa, in the amount of FIFTY THOUSAND (P50,000.00) PESOS as civil indemnity, and to pay her FIFTY THOUSAND (P50,000.00) PESOS as moral damages. Costs against appellant. Jurissc
Amor Arillas alleged in her complaint[3] that in December 1995 and on February 10, 1996, her father sexually abused her while they were alone in their house at Barangay Sto. Nio, Bula, Camarines Sur. Through the use of force, violence and intimidation, he succeeded in having carnal knowledge of her.
SO ORDERED.
Based on the sworn complaint, two informations were filed against appellant by the Assistant Provincial Prosecutor of Camarines Sur. The information in Criminal Case No. P-2532, filed in Branch 33, Regional Trial Court, Pili, Camarines Sur, reads:
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO ARILLAS Y MONTOYA, accused-appellant.

"That sometime in December, 1995 in the Barangay of Sto. Nio, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge with his own daughter Amor A. Arillas against her will and consent, to the damage and prejudice of the offended party."[4]
DECISION
PUNO, J.:
In a sworn complaint,[1] Amor O. Arillas accused her father, Romeo Arillas y Montoya, of raping her on two occasions when she was barely 16 years old. The trial court found her father guilty beyond
and the information in Criminal Case No. P-2533, filed in Branch 31 of the same court, reads:
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"That on or about the 10th day of February, 1996 in the Barangay of Sto. Nio, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation did then and there, wilfully, unlawfully and feloniously have carnal knowledge with his own daughter Amor Arillas y Onquit, against her will and consent, to the damage and prejudice of the offended party.[5]
Appellant threatened Amor that something bad would happen if she reports the incident to anyone. He became strict with her. She was afraid of her father and did not want her family broken. Hoping that the bestial act would not be repeated, she kept silent.[8]
On motion by the counsel of the appellant, the cases were consolidated in Branch 33.
It appears that in the morning of December 23, 1995, while Amor Arillas was sweeping their backyard, her father told her to go inside their house to prepare their breakfast. At that time, her brothers were grazing their carabao in the mountains, her sisters were washing clothes in a creek about 300 to 400 meters away from their house and her mother was selling soft drink and bread in the rice field.[6] She was alone with her father in their house.
Amor's hope was not to happen. On February 10, 1996, while preparing lunch inside their house, her father approached her, embraced and kissed her. She resisted by pushing him but he held her tight and continuously touched her private part. He dragged her inside their room, undressed her and forced her to lie down. He slapped her when she refused. Amor fought hard to free herself but she was no match against the appellant who was heavy and very strong. He mounted her and violated her. She felt pain all over her body.
Appellant again threatened her that he would kill them if she would reveal the incident to anyone. He began harming her and her brothers and sisters. He also forbade her to go out of their house. Amor suspected that he still wanted to ravish her.[9]
While doing her chore; her father came near her, embraced and forcibly kissed her. She resisted but her father kicked her on the right buttocks. The force of the blow threw her beside the stairs of their house. Her father embraced her again and dragged her towards their room. She tried to run away but she could not escape as her father held her hands. Inside the room, her father undressed her and forced her to lie down. Her gallant resistance proved futile. He was able to take her maidenhood. She bled and felt pain all over her body. In Amor's words, it was her first experience.[7]
She finally found the courage to report the incident on April 1, 1996. She narrated her ordeal to their barangay captain Domingo Arevalo.[10] A complaint was filed against the appellant. Amor then underwent a medical examination. Dr. Mylene Chavez Milla, Municipal Health Officer of Bula, Camarines Sur found five old lacerations in the hymen of Amor Arillas at 10:00 o'clock, 2:00
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o'clock, 9:00 o'clock, 5:00 o'clock and 6:00 o'clock positions. She said that these lacerations might have been caused by inserting a hard object like a male organ. She also testified that her hymen admits two fingers with ease which indicates that penetration was made more than once.[11] positively identified by the complainant as the culprit. It ruled that the fact of carnal knowledge is supported by the presence of laceration in the victim's hymen. It further explained that the testimony of the complainant, coupled with the absence of any motive on her part to falsely testify against her father, is more than sufficient to convict the appellant.[16]
To prove the age of Amor, Romeo Decena, Assistant Local Civil Registrar, was presented. He testified that despite diligent search, he failed to find her name in the registry book. However, when shown her birth certificate,[12] he confirmed its issuance by their office. The date of birth of private complainant, as indicated in her birth certificate, was May 10, 1980.[13]
The imputed ill-motive on the part of his in-laws, emanating from the alleged quarrel between him and his brother-in-law, was held as too insignificant to cause his daughter to falsely charge him with such a serious crime.
Romeo Arillas interposed the defense of denial and alibi. Allegedly, on December 23, 1995, he was in the farm and on February 10, 1996, he was repairing an irrigation pump in San Jose, Minalabac, Camarines Sur.
The appellant was sentenced to death. It considered Section 11 of R.A. 7659, calling for the imposition of the death penalty when the victim is under 18 years of age and the offender is her parent or ascendant. The dispositive portion of the joint judgment reads:
He claimed that the charges against him were due to the anger of her brothers and sisters and parents-in-law with him. This arose when he left his brother-in-law drunk during a fiesta celebration in San Ramon, Bula. From then on, his relationship with his in-laws soured.[14]
"WHEREFORE, in view of the foregoing, joint judgment is hereby rendered in these two (2) cases finding the accused ROMEO ARILLAS Y MONTOYA, guilty beyond reasonable doubt of the two charges of rape filed against him, defined and punished under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 and is hereby sentenced to suffer the penalty of death. And as civil liability to pay Amor O. Arillas the amount of P100,000.00 for actual and moral damages.
On June 26, 1997, the trial court rendered a joint judgment[15] on the two cases convicting the appellant. It held that appellant was
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"Let the entire records of these cases be forwarded immediately to the Honorable Supreme Court for automatic review pursuant to Sec. 22 of Republic Act No. 7659, amending Article 47 of the Revised Penal Code."[17] committed. In the cases at bar, appellant's bare allegations that he was in the rice field when his daughter was raped on December 23, 1995 and that he was in San Jose, Minalabac, Camarines Sur when his daughter was again raped on February 10, 1996 cannot exculpate him. The positive assertions of his daughter that he raped her is entitled to greater weight. Her candid and straightforward testimony that she lost her virginity is supported by the medical findings of the Municipal Health Officer.
Against this judgment, accused-appellant assigns a single error, viz.:
"THE COURT OF ORIGIN HAS COMMITTED AN ERROR IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE THE PRESENCE OF REASONABLE DOUBT TO EXCULPATE HIM OF THE SAME."[18]
In his brief, accused-appellant insists that even if his defense is merely denial and alibi, reasonable doubt exists as to his guilt.[19] He maintains that these cases were filed against him out of spite. They were the end result of the quarrel between him and an uncle of the private complainant. He argued that his testimony to this effect was never rebutted by the prosecution.
The claim of the appellant that the cases at bar were filed out of spite did not convince the trial court, and so are we not convinced. Aside from the fact that he failed to substantiate this claim, it is highly inconceivable why Amor would falsely accuse appellant, her father, just to advance the interest of her uncle in a quarrel. More worthy of credence is the statement of Amor that she filed these cases because she could no longer bear the conduct of her father. After his bestial acts, he did not allow her to go out of their house and he inflicted harm on her and her siblings. She feared that he still wanted to ravish her.[20]
We are not persuaded.
Needless to state, appellant cannot contend that the prosecution failed to rebut the motive he ascribed to the relatives of Amor. The prosecution does not have to rebut his outlandish claim. An allegation that does not merit any credence need not be rebutted.
It is the teaching of countless cases that for the defense of alibi to prosper, it must be proven that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the place where the crime was
Be that as it may, the trial court erred when it imposed the death penalty on accused-appellant. We make the correction motu proprio for an appeal in a criminal proceeding throws the whole case open
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for review.[21] It is the duty of the appellate court to correct any error in the judgment whether assigned or not. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
When the offenses at bar were committed, rape is defined and punished by Article 335 of the Revised Penal Code as amended by Section 11 of Republic Act No. 7659, which reads:
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
"Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.
1.....By using force or intimidation;
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.
2.....When the woman is deprived of reason or otherwise unconscious; and
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:
3.....When the woman is under twelve years of age or is demented. 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent of the victim.
The crime of rape shall be punished by reclusion perpetua.
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2. When the victim is under the custody of the police or military authorities. as special qualifying circumstances as they change the nature of simple rape by punishing the offender with the penalty of death. For a crime to be elevated in its qualified form, the circumstance that qualifies it should be alleged in the information. If the qualifying aggravating circumstance is not alleged but proved, it shall only be, considered as an aggravating circumstance since the latter may be proven even if not alleged.[24] It follows that in such cases, the accused can not be convicted of the crime in its qualified form. It is fundamental that every element of an offense must be alleged in the complaint or information. The purpose of the rule is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense.[25] Thus, we ruled that it is a denial of the right of an accused to be informed of the nature of the accusation against him, and consequently, a denial of due process if he is convicted of a crime in its qualified form notwithstanding the fact that the information, on which he was arraigned, charges him only of the crime in its simple form by not specifying the circumstance that qualifies the crime.[26]
3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.
4. When the victim is a religious or a child below seven (7) years old.
5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.
The informations in these cases alleged that the victim is the daughter of the appellant but it did not allege that the victim is under eighteen (18) years old.
7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation." Hence, the appellant was only charged with simple rape and its penalty is reclusion perpetua. The trial court imposed the death penalty[22] for the reason that the victim was under eighteen years old at the time of the commission of the offense and the offender was her father. In People vs. Garcia,[23] we held that these circumstances should be considered
Finally, the trial court awarded P100,000.00 as actual and moral damages. We note that the prosecution failed to present any
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evidence regarding actual damages and hence, the award cannot be sustained. However, the amount of P50,000.00 may be retained as an award for moral damages as it requires no proof of mental and physical suffering. It is now the ruling case law that the victim's injury is inherently concomitant with, and necessarily resulting from, the odious crime of rape to justify per se an award for moral damages.[27] Considering that the offender is the father of the victim, we also find the appellant liable for P25,000.00 as exemplary damages for each rape committed. We also award a civil indemnity of P50,000.00 for each count of rape.[28]
IN VIEW WHEREOF, we find Romeo Arillas guilty of simple rape under Crim. Case Nos. P-2532 and P-2533 and he is sentenced to suffer the penalty of reclusion perpetua in each case and to pay the offended party, for each count of rape, the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages.
A violation of the dignity, purity and privacy of a child who is still innocent and unexposed to the ways of worldly pleasures is a harrowing experience that destroys not only her future but of the youth population as well, who in the teachings of our national hero, are considered the hope of the fatherland. Once again, the Court is confronted by another tragic desecration of human dignity, committed no less upon a child, who at the salad age of a few days past 12 years, has yet to knock on the portals of womanhood, and met her untimely death as a result of the "intrinsically evil act" of nonconsensual sex called rape. Burdened with the supreme penalty of death, rape is an ignominious crime for which necessity is neither an excuse nor does there exist any other rational justification other than lust. But those who lust ought not to lust.
The Court quotes with approval from the People's Brief, the facts narrating the horrible experience and the tragic demise of a young and innocent child in the bloody hands of appellant, as such facts are ably supported by evidence on record:[1] *
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY Y AMPARADO, accused-appellant.
DECISION
"Appellant Larry Mahinay started working as houseboy with Maria Isip on November 20, 1993. His task was to take care of Isip's house which was under construction adjacent to her old residence situated inside a compound at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela , Metro Manila. But he stayed and slept in an apartment also owned by Isip, located 10 meters away from the unfinished house (TSN, September 6, 1995, pp. 5-10).
PER CURIAM:
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"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian Street. She used to pass by Isip's house on her way to school and play inside the compound yard, catching maya birds together with other children. While they were playing, appellant was always around washing his clothes. Inside the compound yard was a septic tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp. 17; 20-22). standing in front of the gate of the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17).
"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking spree. Around 10 o'clock in the morning, appellant, who was already drunk, left Gregorio Rivera and asked permission from Isip to go out with his friends (TSN, September 6, 1995, pp. 9-11).
"Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to buy lugaw. Norgina Rivera informed appellant that there was none left of it. She notice that appellant appeared to be uneasy and in deep thought. His hair was disarrayed; he was drunk and was walking in a dazed manner. She asked why he looked so worried but he did not answer. Then he left and walked back to the compound (TSN, September 18, 1995, pp. 4-8; 12-14).
"Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the compound, saw Ma. Victoria on that same day three to four times catching birds inside Isip's unfinished house around 4 o'clock in the afternoon. The unfinished house was about 8 meters away from Rivera's store (TSN, September 18, 1995, pp.911).
"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She last saw her daughter wearing a pair of white shorts, brown belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white lady sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33).
"On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his in-law's house between 6 to 7 o'clock p.m. to call his office regarding changes on the trip of President Fidel V. Ramos. The house of his in-laws was near the house of Isip. On his way to his in-law's house, Sgt. Suni met appellant along Dian Street. That same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria
"Isip testified that appellant failed to show up for supper that night. On the following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger jeepney driven by Fernando Trinidad at the talipapa. Appellant alighted at the top of the bridge of the North Expressway and had thereafter disappeared (TSN, September 20, 1995, pp. 4-9; September 27, 1995; pp. 14-17).
"That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria inside the septic tank. Boy immediately reported
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what he saw to the victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13). lateral aspect, 1.5 x 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm.
"With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was retrieved from the septic tank. She was wearing a printed blouse without underwear. Her face bore bruises. Results of the autopsy revealed the following findings:
Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural petechial hemorrhages.
Cyanosis, lips and nailbeds, Hemorrhage, subdural, left fronto-parietal area. Contusions, supra pubic area, 6.0 x 3.0 cm., thigh right, Tracheo-bronchial tree, congested. Anterior aspect, middle third, 4.5 x 3.0 cm. Other visceral organs, congested. Contused-abrasions on the forehead, 5.0 x 5.0 cm, angle of the left eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm. elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd , 5.5 x 2.5 cm. knee, right,
Stomach, contain 1/4 rice and other food particles.
CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head Injury, Contributory.
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REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o'clock position corresponding to the face of a watch edges congested with blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126) underwear, a leather wallet, a pair of dirty long pants and a pliers positively identified by Isip as appellant's belongings. These items were brought to the police station (TSN, August 14, 1995, pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).
"Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were informed by Isip that her houseboy, appellant Larry Mahinay, was missing. According to her, it was unlikely for appellant to just disappear from the apartment since whenever he would go out, he would normally return on the same day or early morning of the following day (TSN, September 6, 1995, pp. 6-11-27).
"A police report was subsequently prepared including a referral slip addressed to the office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved the victim's underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).
"SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant was working in a pancit factory at Barangay Reparo, Caloocan City. They proceeded to said place. The owner of the factory confirmed to them that appellant used to work at the factory but she did not know his present whereabouts. Appellant's townmate, on the other hand, informed them that appellant could possibly be found on 8th Street, Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9).
"After a series of follow-up operations, appellant was finally arrested in Barangay Obario Matala, Ibaan, Batangas. He was brought to Valenzuela Police Station. On July 7, 1995, with the assistance of Atty. Restituto Viernes, appellant executed an extra-judicial confession wherein he narrated in detail how he raped and killed the victim. Also, when appellant came face to face with the victim's mother and aunt, he confided to them that he was not alone in raping and killing the victim. He pointed to Zaldy and Boyet as his coconspirators (TSN, August 14, 1995, pp. 13-21)."
"The policemen returned to the scene of the crime. At the second floor of the house under construction, they retrieved from one of the rooms a pair of dirty white short pants, a brown belt and a yellow hair ribbon which was identified by Elvira Chan to belong to her daughter, Ma. Victoria. They also found inside another room a pair of blue slippers which Isip identified as that of Appellant. Also found in the yard, three armslength away from the septic tank were an
Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information which reads:[2]
"That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court the abovenamed accused, by means of force and intimidation employed upon
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the person of MARIA VICTORIA CHAN y CABALLERO, age 12 years old, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with said MARIA VICTORIA CHAN y CABALLERO against her will and without her consent; that on the occasion of said sexual assault, the above-named accused, choke and strangle said MARIA VICTORIA CHAN y CABALLERO as a result of which, said victim died. accordance to Article 47 of the Revised Penal Code as amended by Section 22 of Republic Act No. 7659.
"SO ORDERED."[4]
"Contrary to law."[3]
to which he pleaded not guilty. After trial, the lower court rendered a decision convicting appellant of the crime charged, sentenced him to suffer the penalty of death and to pay a total of P73,000.00 to the victim's heirs. The dispositive portion of the trial court's decision states:
Upon automatic review by the court en banc pursuant to Article 47 of the Revised Penal Code (RPC), as amended,[5] appellant insists that the circumstantial evidence presented by the prosecution against him is insufficient to prove his guilt beyond reasonable doubt. In his testimony summarized by the trial court, appellant offered his version of what transpired as follows:
"WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond reasonable doubt of the crime charged, he is hereby sentenced to death by electricution (sic). He is likewise condemned to indemnify the heirs of the victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further sum of P23,000.00 for the funeral, burial and wake of the victim.
(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a drinking spree. Gregorio Rivera is the brother of Maria Isip, appellants employer. After consuming three cases of red horse beer, he was summoned by Isip to clean the jeepney. He finished cleaning the jeepney at 12 oclock noon. Then he had lunch and took a bath. Later, he asked permission from Isip to go out with his friends to see a movie. He also asked for a cash advance of P300.00 (TSN, October 16, 1995, pp. 4-5).
"Let the complete records of the case be immediately forwarded to the Honorable Supreme Court for the automatic review in
At 2 oclock in the afternoon, appellant, instead of going out with his friend, opted to rejoin Gregorio Rivera and Totoy for another drinking session. They consumed one case of red horse beer. Around 6 oclock p.m., Zaldy, a co-worker, fetched him at Gregorio Riveras
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house. They went to Zaldys house and bought a bottle of gin. They finished drinking gin around 8 oclock p.m. After consuming the bottle of gin, they went out and bought another bottle of gin from a nearby store. It was already 9 oclock in the evening. While they were at the store, appellant and Zaldy met Boyet. After giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16, 1995, pp. 6-7). Restituto Viernes only when he was forced to sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11).[6]
On his way home, appellant passed by Norgina Riveras store to buy lugaw. Norgina Rivera informed him that there was none left of it. He left the store and proceeded to Isips apartment. But because it was already closed, he decided to sleep at the second floor of Isips unfinished house. Around 10 oclock p.m., Zaldy and Boyet arrived carrying a cadaver. The two placed the body inside the room where appellant was sleeping. As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape the dead body of the child or they would kill him. He, However, refused to follow. Then, he was asked by Zaldy and Boyet to assist them in bringing the dead body downstairs. He obliged and helped dump the body into the septic tank. Thereupon, Zaldy and Boyet warned him that should they ever see him again, they would kill him. At 4 oclock the following morning, he left the compound and proceeded first to Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13).
This being a death penalty case, the Court exercises the greatest circumspection in the review thereof since there can be no stake higher and no penalty more severe x x x than the termination of a human life.[7] For life, once taken is like virginity, which once defiled can never be restored. In order therefore, that appellants guilty mind be satisfied, the Court states the reasons why, as the records are not shy, for him to verify.
The proven circumstances of this case when juxtaposed with appellants proffered excuse are sufficient to sustain his conviction beyond reasonable doubt, notwithstanding the absence of any direct evidence relative to the commission of the crime for which he was prosecuted. Absence of direct proof does not necessarily absolve him from any liability because under the Rules on evidence[8] and pursuant to settled jurisprudence,[9] conviction may be had on circumstantial evidence provided that the following requisites concur:
1. there is more than one circumstance; Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas. The police officers allegedly brought him to a big house somewhere in Manila. There, appellant heard the police officers plan to salvage him if he would not admit that he was the one who raped and killed the victim. Scared, he executed an extrajudicial confession. He claimed that he was assisted by Atty.
2. the facts from which the inferences are derived are proven; and
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3. the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. accused did not reply to her queries why he looked worried but went inside the compound.
Simply put, for circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt.[10] Facts and circumstances consistent with guilt and inconsistent with innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.[11]
SECOND Prosecution witness Sgt. Roberto G. Suni, categorically, testified that on June 25, 1995 between 6:00 and 7:00 in the evening, on his way to his in-laws house, he met accused Larry Mahinay walking on the road leading to his in-laws residence which is about 50 to 75 meters away to the unfinished big house of Maria Isip. That he also saw victim Maria Victoria Chan standing at the gate of the unfinished big house of Maria Isip between 8:00 and 9:00 in the same evening.
In the case at bench, the trial court gave credence to several circumstantial evidence, which upon thorough review of the Court is more than enough to prove appellants guilt beyond the shadow of reasonable doubt. These circumstantial evidence are as follows:
FIRST Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of the unfinished big house where the crime happened and the septic tank where the body of Maria Victoria Chan was found in the morning of June 26, 1995 is located, categorically testified that at about 9:00 in the evening on June 25, 1995, accused Larry Mahinay was in her store located in front portion of the compound of her sister-in-law Maria Isip where the unfinished big house is situated buying rice noodle (lugaw). That she noticed the accuseds hair was disarranged, drunk and walking in sigsaging manner. That the accused appeared uneasy and seems to be thinking deeply. That the
THIRD Prosecution witness Maria Isip, owner of the unfinished big house where victims body was found inside the septic tank, testified that accused Larry Mahinay is her houseboy since November 20, 1993. That in the morning of June 25, 1995, a Sunday, Larry Mahinay asked permission from her to leave. That after finishing some work she asked him to do accused Larry Mahinay left. That it is customary on the part of Larry Mahinay to return in the afternoon of the same day or sometimes in the next morning. That accused Larry Mahinay did not return until he was arrested in Batangas on July 7, 1995.
FOURTH Prosecution witness Fernando Trinidad, a passenger jeepney driver plying the route Karuhatan-Ugong and vice versa which include Diam St., Gen. T. de Leon, Valenzuela, Metro Manila, pinpointed the accused Larry Mahinay as one of the passengers who boarded his passenger jeepney on June 26, 1995 at 2:00 early
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morning and alighted on top of the overpass of the North Expressway. promised of reward or leniency. That his confession abound with details know only to him. The Court noted that a lawyer from the Public Attorneys Office Atty. Restituto Viernes and as testified by said Atty. Viernes he informed and explained to the accused his constitutional rights and was present all throughout the giving of the testimony. That he signed the statement given by the accused. Lawyer from the Public Attorneys Office is expected to be watchful and vigilant to notice any irregularity in the manner of the investigation and the physical conditions of the accused. The post mortem findings shows that the cause of death Asphyxia by manual strangulation; Traumatic Head injury Contributory substantiate. Consistent with the testimony of the accused that he pushed the victim and the latters head hit the table and the victim lost consciousness.
FIFTH Personal belongings of the victim was found in the unfinished big house of Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a clear indication that the victim was raped and killed in the said premises.
There is no showing that the testimonies of the prosecution witnesses (sic) fabricated or there was any reason for them to testify falsely against the accused. The absence of any evidence as to the existence of improper motive sustain the conclusion that no such improper motive exists and that the testimonies of the witnesses, therefore, should be given full faith and credit. (People vs. Retubado, 58585 January 20, 1988 162 SCRA 276, 284; People vs. Ali L-18512 October 30, 1969, 29 SCRA 756).
Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko siya, tapos tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya tapos ni-rape ko na siya.
SIXTH Accused Larry Mahinay during the custodial investigation and after having been informed of his constitutional rights with the assistance of Atty. Restituto Viernes of the Public Attorneys Office voluntarily gave his statement admitting the commission of the crime. Said confession of accused Larry Mahinay given with the assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily given. That accused did not complain to the proper authorities of any maltreatment on his person (People vs. delos Santos L-3398 May 29, 1984; 150 SCRA 311). He did not even informed the Inquest Prosecutor when he sworn to the truth of his statement on July 8, 1995 that he was forced, coersed or was
There is no clear proof of maltreatment and/or tortured in giving the statement. There were no medical certificate submitted by the accused to sustain his claim that he was mauled by the police officers.
There being no evidence presented to show that said confession were obtained as a result of violence, torture, maltreatment, intimidation, threat or promise of reward or leniency nor that the investigating officer could have been motivated to concoct the facts
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narrated in said affidavit; the confession of the accused is held to be true, correct and freely or voluntarily given. (People v. Tuazon 6 SCRA 249; People v. Tiongson 6 SCRA 431, People v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA 73.) It is likewise strange that the dead body of the child was taken to the room where accused Larry Mahinay was sleeping only to force the latter to have sex with the dead body of the child.
SEVENTH Accused Larry Mahinay testified in open Court that he was not able to enter the apartment where he is sleeping because it was already closed and he proceeded to the second floor of the unfinished house and slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it inside his room. That at the point of a knife, the two ordered him to have sex with the dead body but he refused. That the two asked him to assist them in dumping the dead body of the victim in the septic tank downstairs. (Tsn pp8-9 October 16, 1995). This is unbelievable and unnatural. Accused Larry Mahinay is staying in the apartment and not in the unfinished house. That he slept in the said unfinished house only that night of June 25, 1995 because the apartment where he was staying was already closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry Mahinay) was in the second floor of the unfinished house.
We have no test to the truth of human testimony except its conformity to aver knowledge observation and experience. Whatever is repugnant to these belongs to the miraculous. (People vs. Santos L-385 Nov. 16, 1979)
EIGHT If the accused did not commit the crime and was only forced to disposed/dumpted the body of the victim in the septic tank, he could have apprise Col. Maganto, a high ranking police officer or the lady reporter who interviewed him. His failure and omission to reveal the same is unnatural. An innocent person will at once naturally and emphatically repel an accusation of crime as a matter of preservation and self-defense and as a precaution against prejudicing himself. A persons silence therefore, particularly when it is persistent will justify an inference that he is not innocent. (People vs. Pilones, L-32754-5 July 21, 1978).
Furthermore, if the child is already dead when brought by Zaldy and Boyet in the room at the second floor of the unfinished house where accused Larry Mahinay was sleeping, why will Boyet and Zaldy still brought the cadaver upstairs only to be disposed/dumped later in the septic tank located in the ground floor. Boyet and Zaldy can easily disposed and dumped the body in the septic tank by themselves.
NINTH The circumstance of flight of the accused strongly indicate his consciousness of guilt. He left the crime scene on the early morning after the incident and did not return until he was arrested in Batangas on July 7, 1995.[12]
Guided by the three principles in the review of rape cases, to wit:[13]
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1). An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove;
2.) When the woman is deprived of reason or otherwise unconscious; and
3.) When the woman is under twelve years of age or is demented. 2). In view of the intrinsic nature of the crime of rape, where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and
3). The evidence of the prosecution stands or falls on its own merits and cannot be allowed to draw strength from the weakness of the defense.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
the foregoing circumstantial evidence clearly establishes the felony of rape with homicide defined and penalized under Section 335 of the Revised Penal Code, as amended by Section 11, R.A. 7659, which provides:
When and how rape is committed Rape is committed by having carnal knowledge of a woman under any of the following circumstances.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.
1.) By using force or intimidation;
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The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 6.) When committed by any member of the Armed Forces of the Philippines or Philippine National Police or any law enforcement agency.
1.) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent of the victim.
7.) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.[14]
2.) When the victim is under the custody of the police or military authorities.
3.) When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.
At the time of the commission of this heinous act, rape was still considered a crime against chastity,[15] although under the AntiRape Law of 1997 (R.A. No. 8353), rape has since been re-classified as a crime against persons under Articles 266-A and 266-B, and thus, may be prosecuted even without a complaint filed by the offended party.
4.) When the victim is a religious or a child below seven (7) years old.
5.) When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman by force and without consent.[16] (Under the new law, rape may be committed even by a woman and the victim may even be a man.)[17] If the woman is under 12 years of age, proof of force and consent becomes immaterial[18] not only because force is not an element of statutory rape,[19] but the absence of a free consent is presumed when the woman is below such age. Conviction will therefore lie, provided sexual intercourse is be proven. But if the woman is 12 years of age or over at the time she was violated, as in this case, not only the first element of sexual intercourse must be proven but also the other element that the perpetrators evil acts with the offended party was done through force, violence, intimidation or threat needs to be established. Both elements are present in this case.
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Q: So, the laceration was caused by the penetration of a male organ? Based on the evidence on record, sexual intercourse with the victim was adequately proven. This is shown from the testimony of the medical doctor who conducted post mortem examination on the childs body:
A: Adult male organ, sir.
Q: And after that what other parts of the victim did you examine?
Q: You are very sure of that, Mr. Witness?
A: Then I examined the genitalia of the victim.
A: I am very sure of that.[20]
Q: And what did you find out after you examined the genitalia of the victim?
Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted that he had sexual congress with the unconscious child.
A: The hymen was tall-thick with complete laceration at 4:00 oclock and 8:00 oclock position and that the edges were congested.
15. T: Ano ang nangyari ng mga sandali o oras na iyon?
Q: Now, what might have caused the laceration?
A: Under normal circumstances this might have (sic) caused by a penetration of an organ.
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na ginagawa, tapos dumating yung batang babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos ni rape ko na siya.
16. T: Ano ang suot nung batang babae na sinasabi mo?
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S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na matandaan kung anong petsa, basta araw ng Linggo. S: Itong short na ito, (pointing to a dirty white short placed atop this investigators table. Subject evidence were part of evidences recovered at the crime scene).
21. T: Saan lugar ito nangyari?
17. T: Bakit mo naman ni rape yung batang babae? S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M.
S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.
22. T: Alam mo na ba ang pangalan ng batang babae na ni rape mo?
18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing? S: Hindi ko po alam. S: Red Horse po at saka GIN. 23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN? Matatandaan mo ba ito?
19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung batang babae?
S: Oho. S: Sa kuwarto ko po sa itaas.
20. T: Kailan ito at anong oras nangyari?
24. T: Nung ma-rape mo, nakaraos ka ba?
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S: Naka-isa po. S: Inilagay ko po sa poso-negra.
25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng NAKARAOS, maaari bang ipaliwanag mo ito?
29. T: Saan makikita yung poso-negra na sinasabi mo?
S: Doon din sa malaking bahay ni ATE MARIA. S: Nilabasan po ako ng tamod. 30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa posonegra?
26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung iyong ari?
S: Doon ko lang po inilagay. S: Nakapasok po doon sa ari nung babae. 31. T: Bakit nga doon mo inilagay siya? 27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong ginawa? S: Natatakot po ako. S: Natulak ko siya sa terrace. 32. T: Kanino ka natatakot? 28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace?
S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis.
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In proving sexual intercourse, it is not full or deep penetration of the victims vagina; rather the slightest penetration of the male organ into the female sex organ is enough to consummate the sexual intercourse.[22] The mere touching by the males organ or instrument of sex of the labia of the pudendum of the womans private parts is sufficient to consummate rape.
33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa posonegra?
S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa poso-negra. From the wounds, contusions and abrasions suffered by the victim, force was indeed employed upon her to satisfy carnal lust. Moreover, from appellants own account, he pushed the victim causing the latter to hit her head on the table and fell unconscious. It was at that instance that he ravished her and satisfied his salacious and prurient desires. Considering that the victim, at the time of her penile invasion, was unconscious, it could safely be concluded that she had not given free and voluntary consent to her defilement, whether before or during the sexual act.
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?
S: Nag-iisa lang po ako.
35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay pa ba siya o patay na? Another thing that militates against appellant is his extrajudicial confession, which he, however, claims was executed in violation of his constitutional right to counsel. But his contention is belied by the records as well as the testimony of the lawyer who assisted, warned and explained to him his constitutionally guaranteed preinterrogatory and custodial rights. As testified to by the assisting lawyer:
S: Buhay pa po.
36. T: Papaano mo siya pinatay?
S: Tinulak ko nga po siya sa terrace.[21]
Q Will you please inform the Court what was that call about?
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A We went to the station, police investigation together with Atty. Froilan Zapanta and we were told by Police Officer Alabastro that one Larry Mahinay would like to confess of the crime of, I think, rape with homicide. Q So, when you were already infront of SPO1 Arnold Alabastro and the other PNP Officers, what did they tell you, if any?
A They told us together with Atty. Zapanta that this Larry Mahinay would like to confess of the crime charged, sir. Q And upon reaching the investigation room of Valenzuela PNP who were the other person present? Q By the way, who was that Atty. Zapanta? A Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside the investigation room and the parents of the child who was allegedly raped.
A Our immediate Superior of the Public Attorneys Office.
Q- And when you reached the investigation room do you notice whether the accused already there?
Q Was he also present at the start of the question and answer period to the accused?
A The accused was already there.
A No more, sir, he already went to our office. I was left alone.
Q Was he alone?
Q But he saw the accused, Larry Mahinay?
A he was alone, sir.
A Yes, sir.
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Q Now, when Atty. Zapanta left at what time did the question and answer period start? A Yes, sir, and it was also explained to him one by one by Police Officer Alabastro.
A If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir.
Q I show to you this constitutional right which you said were reduced into writing, will you be able to recognize the same?
Q And when this question and answer period started, what was the first thing that you did as assisting lawyer to the accused?
A Yes, sir.
A First, I tried to explain to him his right, sir, under the constitution.
Q Will you please go over this and tell the Court whether that is the same document you mentioned?
Q What are those right?
A Yes, sir, these were the said rights reduced into writing.
A That he has the right to remain silent. That he has the right of a counsel of his own choice and that if he has no counsel a lawyer will be appointed to him and that he has the right to refuse to answer any question that would incriminate him.
ATTY. PRINCIPE:
May we request, Your Honor, that this document be marked as our Exhibit A proper.
Q Now, after enumerating these constitutional rights of accused Larry Mahinay, do you recall whether this constitutional right enumerated by you were reduced in writing?
Q Do you recall after reducing into writing this constitutional right of the accused whether you asked him to sign to acknowledge or to conform?
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May we request, Your Honor, that the two (2) signatures identified by my compaero be encircled and marked as Exhibit A-1 and A-2.
A I was the one who asked him, sir. It was Police Officer Alabastro.
Q But you were present?
Q After you said that you apprised the accused of his constitutional right explaining to him in Filipino, in local dialect, what was the respond of the accused?
A I was then present when he signed.
A- Larry Mahinay said that we will proceed with his statement.
Q There is a signature in this constitutional right after the enumeration, before and after there are two (2) signatures, will you please recognize the two (2) signatures?
Q What was the reply?
A He said Opo. A These were the same signatures signed in my presence, sir. Q Did you ask him of his educational attainment? Q The signature of whom? A It was the Police Officer who asked him. A The signature of Larry Mahinay, sir. Q In your presence? ATTY. PRINCIPE: A In my presence, sir.
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Q And there is also a signature after the waiver in Filipino over the typewritten name Larry Mahinay, Nagsasalaysay, whose signature is that?
Q And when he said or when he replied Opo so the question started?
A Yes, sir.
A This is also signed in my presence.
Q I noticed in this Exhibit A that there is also a waiver of rights, were you present also when he signed this waiver?
Q Why are you sure that this is his signature?
A He signed in my presence, sir. A Yes, sir, I was also present. Q And below immediately are the two (2) signatures. The first one is when Larry Mahinay subscribed and sworn to, there is a signature here, do you recognize this signature?
Q Did you explain to him the meaning of this waiver?
A I had also explained to him, sir.
A This is my signature, sir.
Q In Filipino?
A In Tagalog, sir.
Q And immediately after your first signature is a Certification that you have personally examined the accused Larry Mahinay and testified that he voluntary executed the Extra Judicial Confession, do you recognize the signature?
A This is also my signature, sir.[23] (emphasis supplied).
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principal witnesses for the prosecution all the more strengthens the conclusion that no such motive exists.[28] Neither was any wrong motive attributed to the police officers who testified against appellant.
Appellants defense that two other persons brought to him the dead body of the victim and forced him to rape the cadaver is too unbelievable. In the words of Vice-Chancellor Van Fleet of New Jersey,[24]
Evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself- such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance.
Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is the rule that the findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses department on the stand while testifying, which opportunity is denied to the appellate courts.[25] In this case, the trial courts findings, conclusions and evaluation of the testimony of witnesses is received on appeal with the highest respect,[26] the same being supported by substantial evidence on record. There was no showing that the court a quo had overlooked or disregarded relevant facts and circumstances which when considered would have affected the outcome of this case[27] or justify a departure from the assessments and findings of the court below. The absence of any improper or ill-motive on the part of the
Coming now to the penalty, the sentence imposed by the trial court is correct. Under Article 335 of the Revised Penal Code (RPC), as amended by R.A. 7659 when by reason or on occasion of the rape, a homicide is committed, the penalty shall be death. This special complex crime is treated by law in the same degree as qualified rape -- that is, when any of the 7 (now 10) attendant circumstances enumerated in the law is alleged and proven, in which instances, the penalty is death. In cases where any of those circumstances is proven though not alleged, the penalty cannot be death except if the circumstance proven can be properly appreciated as an aggravating circumstance under Articles 14 and 15 of the RPC which will affect the imposition of the proper penalty in accordance with Article 63 of the RPC. However, if any of those circumstances proven but not alleged cannot be considered as an aggravating circumstance under Articles 14 and 15, the same cannot affect the imposition of the penalty because Articles 63 of the RPC in mentioning aggravating circumstances refers to those defined in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances is alleged in the information/complaint, it may be treated as a qualifying circumstance. But if it is not so alleged, it may be considered as an aggravating circumstance, in which case the only penalty is death subject to the usual proof of such circumstance in either case.
Death being a single indivisible penalty and the only penalty prescribed by law for the crime of rape with homicide, the court has
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no option but to apply the same regardless of any mitigating or aggravating circumstance that may have attended the commission of the crime[29] in accordance with Article 63 of the RPC, as amended.[30] This case of rape with homicide carries with it penalty of death which is mandatorily imposed by law within the import of Article 47 of the RPC, as amended, which provides: under which the death penalty is authorized by present amended law, the civil indemnity for the victim shall be not less than seventyfive thousand pesos (P75,000.00).[32] In addition to such indemnity, she can also recover moral damages pursuant to Article 2219 of the Civil Code[33] in such amount as the court deems just, without the necessity for pleading or proof of the basis thereof.[34] Civil Indemnity is different from the award of moral and exemplary damages.[35] The requirement of proof of mental and physical suffering provided in Article 2217 of the Civil Code is dispensed with because it is recognized that the victims injury is inherently concomitant with and necessarily resulting from the odious crime of rape to warrant per se the award of moral damages.[36] Thus, it was held that a conviction for rape carries with it the award of moral damages to the victim without need for pleading or proof of the basis thereof.[37]
The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which cases the penalty shall be reclusion perpetua. (emphasis supplied).
In an apparent but futile attempt to escape the imposition of the death penalty, appellant tried to alter his date of birth to show that he was only 17 years and a few months old at the time he committed the rape and thus, covered by the proscription on the imposition of death if the guilty person is below eighteen (18) years at the time of the commission of the crime.[31] Again, the record rebuffs appellant on this point considering that he was proven to be already more than 20 years of age when he did the heinous act.
Exemplary damages can also be awarded if the commission of the crime was attended by one or more aggravating circumstances pursuant to Article 2230 of the Civil Code[38] after proof that the offended party is entitled to moral, temperate and compensatory damages.[39] Under the circumstances of this case, appellant is liable to the victims heirs for the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages.
Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is committed or effectively qualified by any of the circumstances
Lastly, considering the heavy penalty of death and in order to ensure that the evidence against and accused were obtained through lawful means, the Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and
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observe at the time of making an arrest and again at and during the time of the custodial interrogation[40] in accordance with the Constitution, jurisprudence and Republic Act No. 7438:[41] It is hightime to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments: appointed by the court upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made;
1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person;
2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him;
6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means telephone, radio, letter or messenger with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished;
3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice;
7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak;
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WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of civil indemnity for the heinous rape which is INCREASED to P75,000.00, PLUS P50,000.00 moral damages.
9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun;
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power.
10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements;
SO ORDERED.
G.R. No. 126148
May 5, 1999
11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO QUIANOLA y ESCUADRO and EDUARDO ESCUADRO y FLORO, accused-appellants.
Four members of the Court although maintaining their adherence to the separate opinions expressed in People v. Echegaray[42] that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional nevertheless submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed.
VITUG, J.: In People vs. Orita, 1 this Court has declared that the crime of frustrated rape is non-existent. The pronouncement, notwithstanding, on 01 March 1996, more than six years after the promulgation of the decision in Orita, the Regional Trial Court ("RTC") of Cebu City, Branch 14, has convicted accused Agapito Quianola y Escuadro and Eduardo Escuadro y Floro, herein appellants, of the crime of
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frustrated rape, principally on the strength of People vs. Eriia 2 which this Court, in the Orita decision, has considered to be a "stray" decision. The 1st March 1996 decision of the RTC of Cebu City imposing upon each of the accused the penalty of reclusion perpetua "of Forty (40) Years," has been brought up by them to this Court. The appeal opens up the whole case for review.
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1. The information, dated 06 April 1994, charging the two accused with the crime of rape reads:
2. When the woman is deprived of reason or otherwise unconscious; and That on or about the 5th day of March, 1994, at about 11:30 o'clock in the evening, more or less, at Barangay Tangil, Municipality of Dumanjug, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed in having carnal knowledge of the offended party Catalina Carciller, fifteen (15) years of age, against her will and consent.
3. When the woman is under twelve years of age or is demented.
CONTRARY TO LAW. 3
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
Already in force and effect at the time of the averred commission of the crime are the provisions of Republic Act No. 7659, amending the Revised Penal Code, which define and penalize rape, as follows:
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When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. 4. when the victim is a religious or a child below seven (7) years old.
5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:
6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the commonlaw-spouse of the parent of the victim.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.
2. when the victim is under the custody of the police or military authorities.
Duty assisted by counsel the two accused pleaded not guilty to the crime charged. During the trial that ensued, the prosecution and the defense presented respective versions of the case.
The story of prosecution was the first to be told. 3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.
Catalina Carciller her cousin 15-year-old Rufo Ginto and another male companion named Richard Diaz, went to attend a dance at around ten o'clock in the evening of 05 March 1994 in Sitio Bangag Tangil, Dumanjug, Cebu. Catalina born on 09 November 1978, 4
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was just then fifteen (15) years and four (4) months old. She was a student at the Bito-on National vocational School at Dumanjug Cebu. About an hour later they left the party and were soon on their way home. The three unsuspecting youngsters stopped momentarily to rest at a waiting shed beside the Tangil Elementary School. Accused Agapito Quianola a.k.a. "Petoy" and accused Eduardo Escuadro a.k.a. "Botiquil" who were both armed with guns suddenly turned up Quianola beaming his flashlight at the trio while Escuadro stood by focused his attention on Catalina. Quionala announced that he and Escuardo were members of New People's Army ("NPA"). Quionala instructed Escuadro to take care of the male companions of Catalina while he (Quianola) held the latter at gunpoint. pump, to push and pull" 5 even as Catalina still tried desperately to free herself from him. She felt his organ "on the lips of (her) genitalia." 6 When Quianola had satisfied his lust, Escuadro took his turn by placing himself on top of Catalina. Catalina could feel the sex organ of Escuadro "on the lips of (her) vulva" 7 while he made a push and pull movement. Quianola, who stood by, kept on smoking a cigarette.
Escuadro brought Diaz and Ginto outside the waiting shed area. He ordered the duo to lie face down on the ground and then urinated at them. While Escuadro was fixing the zipper of his pants, Diaz and Ginto were bale to escape and ran away. Meanwhile Quianola with his gun pointed at Catalina, forcibly brought her towards the nearby school. Catalina heard a gunfire but Quianola assured her that it was only an exploding firecracker. When Escuadro again showed up, Catalina asked about her two friends. Quianola replied that he had ordered them to go home. Catalina begged that she herself be allowed to leave. Pretending to agree, they walked the path towards the road behind the school. Then, unsuspectingly, Quianola forced Catalina to sit on the ground. She resisted but Quianola, pointing his gun at her, warned her that if she would not accede to what he wanted he would kill her. Catalina started to cry. Quianola told Escuadro to remove her denim pants. Catalina struggled to free herself from Escuadro's hold but to no avail. Escuadro ultimately succeeded in undressing her. Quianola unzipped his pants and laid on top of her while Escuadro held her legs Quianola "started to
Escuadro and Quianola scampered immediately after Catalina's ordeal. Failing to find her pair of pants and panty. Catalina was left wearing her T-shirt and brassieres. Catalina just then sat down, not knowing what to do, until she finally started to run home fearing that she might be followed. Upon reaching home, Catalina went upstairs and, afraid that the culprit would still come after her, hid herself behind the door. Baffled by Catalina's strange behavior, her mother and her elder sister took turns interrogating her. Catalina finally said that she was raped but she would not reveal the names of the persons who had committed the dastardly act because of their threat.1wphi1.nt
Guillermo Zozobrado learned from his wife, Catalina's sister, that Catalina had been raped. He promptly repaired to the municipal hall of Dumanjug to report the crime. Policemen were immediately dispatched to the Carcillers' residence. Still in a state of shock, Catalina initially kept mum about it; later, when the police officers returned at daytime, she was able to respond to questions and to disclose that "Petoy," referring to Agapito Quianola, and "Botiquil," the other accused Eduardo Escuadro, were the persons who ravished her. The officers later invited her to the police station to
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identify a suspect whom she positively identified to be "Botiquil" or Eduardo Escuadro. Accused Agapito Quianola, a member of the Philippine National Police stationed at Naga, Cebu, testified that it was his day-off on 05 March 1994. At about 8:30 a.m., he and his wife, Leticia, who had just arrived in Naga from Cebu City, proceeded to the house of his parents in Panla-an, Dumanjug, to attend to the construction of their unfinished house. Quianola helped Vidal Laojan and Nicasio Arnaiz in cementing the kitchen floor of their house. The work was finished at around 11:00 o'clock in the evening. After Vidal and Nicasio had gone home, Quianola went to bed with his wife around midnight until the following morning of 06 March 1994. He denied having been in the company of his co-accused, Escuadro a.k.a. "Botiquil," at any time during the whole day and night of 05 March 1994. According to him, Guillermo Zozobrado, Catalina's brother-inlaw, concocted the rape charge to get even with him because of an incident in August 1993 at a fiesta dance in upper Tangil, Panla-an, when George Camaso, the husband of his sister Jinga, got into trouble with Samuel Escuadro. Quianola tried to pacify George Camaso who was then drunk but Camaso suddenly hit him. He parried the blow and slapped Camaso on the face. Zozobrado joined the fray and tried to hit Quianola but because Zozobrado was drunk, he stumbled when Quianola had pushed him. 12 He admitted that he had no misunderstanding of any kind with the complainant and her parents themselves.
Living Case Report No. 94-MI-7, 8 prepared by Dr. Tomas P. Refe, medico-legal officer of the National Bureau of Investigation ("NBI") of Region 7, Central Visayas, who conducted the physical examination of Catalina on 07 March 1994, showed that there was "no evidence of extragenital physical injury noted on the body of the Subject." 9 The genital examination yielded the following findings on the victim:
Pubic hairs, fully grown, moderately dense. Labiae mejora and minora, both coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately thick, wide, intact. Hymenal orifice, annular, admits a tube 1.8 cms. in diameter with moderate resistance. Vaginal walls, tight and rogusities, prominent. 10 (Emphasis supplied.)
The report concluded that the hymenal orifice, about 1.8 cms. in diameter, was "so small as to preclude complete penetration of an average-size adult penis in erection without producing laceration." 11
Against the evidence submitted by the prosecution, the accused, in their defense, interposed alibi, ill motive on the part of an "uncle" of the complainant, and insufficient identification.
Leticia Quianola the wife of accused Agapito Quianola, testified to attest to her husband's "good moral character" and to corroborate his testimony. Leticia said that after the workers had left their house at around midnight she and appellant talked for a while and then made love. Vidal Laojan the carpenter was presented to state that Quianola was at home helping the carpenters until past 11 o'clock on the night of the incident. Nicasio Arnaiz a farmer and store cutter
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added that work in the Quianola's house had started late in the morning of 05 March 1994 since they still waited for Quianola and his wife Patsy to arrive. Work in the house, he said had stopped at about 11 o'clock that night. named "Pitoy Quianola, Margarito Villaluna and Batiquil or Escuadro" as being the suspects in the rape incident. While on their way to the latter's respective residences, the team met Catalina Carciller and party who were themselves about to repair to the police headquarters. Mascarinas asked Catalina about the identities of the rapists. She named "Pitoy Quianola" but said she did not know the names of "the other persons" although she could recognize them by face. Botiquil was later brought to the police station Pitoy Quianola by that time had already gone to Naga. Margarito Villaluna declared that he had been in Panla-an, Negros Oriental, from 05 March 1994 until 09 March 1994 until harvesting corn. His sister, Mercy Villaluna testified that, in the morning of 06 March 1994, policemen in the company of barangay tanods including Gilly Zozobrado and his son Marcelo, came to their house looking for her brother Margarito. Shortly after the group had left, another policeman, in the company of one Erwin Quirante also came looking for her brother. The arrival of the policemen prompted her to verify from the Coast Guard whether her brother had indeed left for Negros Oriental. She was told that her brother was in the boat that departed for Negros in early dawn of 02 March 1994. Still unsatisfied with the result of her queries, Mercy went to Guinholngan where she met Margarito.
Accused Eduardo Escuadro a.k.a. "Botiquil" declared that at about seven o'clock in the evening of 05 March 1994 he and Pablito Cuizon, Jr., went fishing in Tangil Dumanjug Cebu until about ten o'clock that evening. After partaking of supper at around 11:30 p.m., they had a drinking spree and went to bed at 12:00 midnight waking up at 6:30 a.m. the following day. He denied having been in the company of Quianola and insisted that the rape charge had been the result of a mere mistaken identity. Pablito Cuizon, Jr., corroborated Escuadro's story about their being together up until they parted company after a drinking spree.
The defense also presented the two police officers, PO2 William Beltran and SPO2 Liberato Mascarinas, Jr., who took part in the investigation of the crime, and Margarito Villaluna, a suspect at the early stages of the police investigation who was in the frequent company of the accused. According to PO2 Beltran, barangay tanods Gilly and George Zozobrado reported the rape incident to him at midnight of 05 March 1994. He entered the report in the "temporary blotter because the suspect was unknown then." 13 Accompanied by the two tanods, he went to the residence of the victim and when he asked Catalina if she was able to recognize the malefactors, she kept silent and continued crying. SPO2 Liberato Mascarinas, Jr., asserted that, in the early morning of 06 March 1994, Gilly and George Zozobrado went to the police station and
Following the trial and submission of the case for decision, the court a quo, 14 on 01 March 1996, found the two accused guilty beyond reasonable doubt of the crime of "frustrated rape" and sentenced them accordingly; thus:
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WHEREFORE, premises considered, the Court hereby finds guilty beyond reasonable doubt the two accused Agapito "Petoy" Quianola and Eduardo Escuadro, alias "Batiquil", as principals by direct participation and indispensable cooperation of the frustrated rape of the complaining witness Catalina "Cathy" Carciller, and considering the attendance in the commission of the crime of the six (6) aggravating circumstances aforementioned, not offset by any mitigating circumstance, hereby sentences these two accused individually to Reclusion Perpetua of Forty (40) Years, plus all the accessory penalties prescribed by law, and to pay the offended party civil indemnity in the amount of P50,000.00 each. Costs shall also be taxed against the two accused.
SO ORDERED. 15
The Court also hereby recommends that under no circumstance should the two accused be granted parole or conditional or absolute pardon, in view of the extreme moral turpitude and perversity which they exhibited in the commission of the crime not until they shall have served at least thirty (30) years of the full range of forty (40) years of reclusion perpetua meted out against them in this case. They should be interdicted for that length of time from the usual and normal liasons (sic) and dealings with their fellowmen and their community so as to protect the latter from their pernicious and insidious examples. This is the most generous and charitable recommendation that the Court can make for these two malefactors, short of imposing upon them the supreme penalty of death, which the Court in other times and conditions might have been compelled, as a matter of inexorable duty, to mete out against them, in obedience to the implacable and peremptory demands and dictates of retributive justice.
The trial court ruled that the accused were liable for the crime of frustrated rape "with an eye to extending to the two accused the benefit of the principle that in case of doubt criminal justice naturally leans in favor of the milder form of penalty" 16 but that, because of the existence of "at least six (6) aggravating circumstances, 17 not offset by any mitigating circumstance," 18 the accused should each be meted the penalty of reclusion perpetua. It explained:
Now, the crime of rape had it been consummated and had it been committed with the attendance of the above-mentioned aggravating circumstances, with absolutely no offsetting mitigating circumstances, ought to be punished with the mandatory penalty of death under the pertinent provisions of Section 11 and 23 of Republic Act No. 7659, which amended Article 335 of the Revised Penal Code, and further amplified the aggravating circumstances enumerated in Article 14 of the same code. But because the crime committed here is "merely" frustrated rape for the reasons heretofore discussed, attended by the aforementioned six aggravating circumstances, not offset by even one mitigating circumstance, the proper penalty to be imposed upon the two principals, the two accused herein, both co-conspirators, by direct participation and indispensable cooperation, of the frustrated rape, should be one degree lower than the indivisible afflictive penalty of death, which is also the indivisible afflictive penalty of reclusion perpetua which,
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under Section 21 of the amendatory statute, shall range from twenty years and one day to forty years. 19 V. THE COURT ERRED IN FAILING TO GIVE WEIGHT TO THE TESTIMONIES OF THE POLICEMEN WHICH WERE UNCONTROVERTED AND WITH PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTIES.
In their appeal to this court, the two convicted accused interposed the following assignment of errors: VI. THE COURT ERRED IN FINDING THE ACCUSED GUILTY OF FRUSTRATED RAPE AND SENTENCING THEM TO 40 YEARS of RECLUSION PERPETUA. 20
I. THE COURT ERRED IN DISREGARDING THE INCONSISTENCIES OF THE PROSECUTION WITNESSES WHICH IF THOROUGHLY CONSIDERED COULD HAVE ALTERED THE DECISION IN FAVOR OF THE ACCUSED.
II. THE COURT ERRED IN BELIEVING THE TESTIMONY OF COMPLAINING WITNESS CARCILLER EVEN IF THE SAME WERE CLOUDED WITH GRAVE INCONSISTENCIES.
III. THE COURT ERRED BY DISREGARDING THE TESTIMONIES OF ACCUSED AND BY DISMISSING IT AS WEAK ALIBIS.
IV. THE COURT ERRED IN REFUSING TO CONSIDER THE REBUTTAL EVIDENCE OF DEFENSE WITNESSES EVEN IF THE SAME WERE NOT CONTROVERTED.
In reviewing rape cases, this Court must again say that it has been continually guided by the principles (a) that an accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature of the crime which usually involves only two persons, the testimony of the complainant must be scrutinized with extreme caution; and (c) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense. 21 Expectedly, courts would scrupulously examine the testimony of the complainant with the thought always in mind that the conviction of the accused would have to depend heavily on the credibility of the offended woman. It is not much different in this instance for, at bottom, appellants assail the credibility of the prosecution witnesses, particularly that of the complainant, in seeking a reversal of the judgment of conviction.
The doctrine, then again, is that the findings of the trial court on credibility are entitled to highest respect and will not be disturbed on
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appeal in the absence of any clear showing that the trial court has "overlooked, misunderstood or misapplied facts or circumstances of weight and substance" that could have consequential effects. The stringency with which appellate tribunals have observed this rule is predicated on the undisputed vantage of the trial court in the evaluation and appreciation of testimonial evidence. 22 Q You were forced to sit down on the ground?
Yes.
Q In assailing Catalina's credibility, as against the assessment made by the trial court which has described the victim's testimony to be impressed with "candor, spontaneity and naturalness," appellants theorize that the sexual intercourse, if indeed true, could have only been committed against Catalina in a sitting position, contrary to her declaration of having been made to lie on the ground because her Tshirt, marked Exhibit E, is "not tainted with mud at all especially the back if she were made to lie down." 23 The Court finds this so-called incongruity committed by the complainant to a feeble attempt to discredit her testimony. The Court is convinced of the sexual assault made against her. Here follows the testimony of Catalina on this score.
In effect did you sit down as ordered by him?
I resisted.
COURT:
How did you resist?
A Q You said that you were forced by Agapito Quianola to sit down, where were you forced to sit down, in what particular place or area?
I said I will not sit down.
TRIAL PROS. NAZARENO:
Just behind the back of the school.
What did Agapito Quianola do, if any, when you resisted?
He pointed his gun to me.
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Q When he pointed a gun at you, referring to Agapito Quianola, what did he say?
Pants.
Q A He said that if I will not accede to what he wanted me to do and if I will shout, he will kill me. A Q What did you do when you heard those words coming from Agapito Quianola?
What kind of pants?
Denim.
TRIAL PROS. NAZARENO
I cried.
Q Now, after Agapito Quianola ordered Eduardo Escuadro to remove your pants and panty what did Eduardo Escuadro do, if any?
When you cried what did Agapito Quianola do, if any? A He did what Agapito Quianola commanded him.
A He ordered Eduardo Escuadro to remove my pants and panty.
COURT:
COURT
How about you, what (sic) were you doing at that time?
Why what were you wearing at that time?
I cried and tried to free myself.
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TRIAL PROS. NAZARENO
Q When Agapito Quianola approached you and laid on top of you, what did Eduardo Escuadro do?
Q Now, when Eduardo Escuadro removed your pants and panty where was Agapito Quianola and what did Agapito Quianola do?
He was holding on to my legs.
Q A He unzipped his pants. A Q After that what happened?
Then what happened after that?
Agapito Quianola started to pump, to push and pull.
In effect, were your pants and panty removed by Eduardo Escuadro?
Q What did you do when Agapito Quianola was already on top of you and made a push and pull on you?
Yes.
I struggled to free myself.
Q Now, you said Agapito Quianola opened his fly or unzipped his pants, when Agapito Quianola already unzipped his pants, what did he do?
Q After that what happened when Agapito Quianola was already on top of you and kept on making a push and pull?
A A He approached me and lay on top of me.
Eduardo Escuadro took his turn.
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Q What do you mean by took his turn, please specify what did Escuadro do? He did what Agapito had just done to you? A His organ or penis.
COURT:
Q When Agapito Quianola unzipped his pants, did you see his penis?
What did Agapito Quianola do to you actually?
Yes.
He lay on top of me and did a push and pull movement.
Q You also said that Eduardo Escuadro took his turn and laid on top of you and made a push and pull on you, specifically what did Eduardo Escuadro do?
TRIAL PROS. NAZARENO: A The same as Agapito did, he was doing the push and pull movement.
Q When Agapito Quianola lay on top of you and made a push and pull movement, do you mean to say that he inserted his penis into your vagina?
Q What did you feel when Eduardo Escuadro was already on top of you and made a push and pull on you? A I felt something hard on the lips of my genitals. A Q What is this something hard that you felt that touched the lips of your vagina or vulva? Q Did you see the penis Eduardo Escuadro? I held my breath.
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A No. And on why her T-shirt was no longer soiled with mud when presented in court, Catalina creditably explained that when it was offered in evidence, she had already dusted and rid it of grass particles. At all events, whether appellants spent their lust on Catalina in a sitting position or lying down would not be of any real moment for what remained clear, established rather convincingly by the prosecution, was that appellants had forced carnal knowledge of the victim.
Q Now, did you feel that the penis of Escuadro inserted into your vagina?
I felt it on the lips of my vulva. 24 The reliance being made by appellants on the affidavit of Catalina in order to discredit her is likewise futile. The Court has consistently ruled that discrepancies between the statement of an affiant in an affidavit and those made on the witness stand do not necessary downgrade testimonial evidence. Ex parte affidavits are usually incomplete and frequently prepared by an administrating officer and cast in the latter's language and understanding of what the affiant has said. Quite frequently, the affiant would simply sign the affidavit after it has been read to him or to her. 26
The fact that she must have been lying down when violated has even more been made clear by the defense on cross-examination. Thus:
Q Did you say any testimony in the direct that you were on the ground at the time when you were raped by these two accused?
They pointed a gun at me and ordered me to lie down. Not much differently could be said of Catalina's identification of appellants as being her ravishers. On the witness stand, Catalina explained that while she gave appellant Escuadro's nickname "Botiquil" to the investigating police officer, the latter did not mention that name in the affidavit because, according to the officer, the affidavit was merely a "shortcut". In her testimony, she was categorical that she had known appellants even before the rape incident. She knew that appellant Quianola was a policeman and a "popular maldito" (nasty) in the locality. 28 Catalina knew that appellant Escuadro, a resident of Punla-an far from her own abode,
Lie on the ground?
Yes. 25
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was commonly known as "Batiquil" (Botiquil). She could not have been mistaken in the identification of the culprits since appellants themselves held a flashlight which they used that added to the illumination shed by a fluorescent lamp and two bulbs on the side of a house only some meters away. the Court has repeatedly said that the lone testimony of the victim in a rape case, if credible, is enough to sustain a conviction. 32
As regards the allegation of appellants that the testimony of Catalina contradicted in certain respects that of prosecution witness Rufo Ginto, suffice it to say that the testimony of Rufo Ginto (who was noted by the trial court not to be "an intelligent witness" 29) was merely corroborative in nature and neither dealt with the actual commission of the crime nor delved on material points.
The positive identification of appellants as being the perpetrators of the crime effectively effaces their alibi. 33 The rule is that affirmative testimony is far weightier than a mere denial, especially when it comes from the mouth of a credible witness. 34 Moreover, alibi might be aptly considered only when an accused has been shown to be in some other place at the crucial time and that it would have been physically impossible for him to be at the locus criminis or its immediate vicinity at the time of the commission of the crime. 35
Catalina's candid and straightforward narration of the two sexuals assaults perpetrated on her on the night of the incident unmistakably deserves credence. It is unbelievable that a young barrio lass would concoct a tale of defloration publicly admit having been ravished and her honor tainted allow the examination of her private parts, and undergo all the trouble and inconvenience not to mention the trauma and scandal of a public trial had she not in fact been raped and truly moved to protect and preserve her honor as well as to obtain justice, for the wicked acts committed against her. 30 There is no plausible reason why Catalina should testify against appellants, imputing upon them so grave a crime as rape if it did not happen. This Court has consistently held that where there is no evidence to show any dubious reason or improper motive why a prosecution witness should testify falsely against the accused or implicate him in a serious offense, the testimony deserves faith and credit. 31 So, also,
In the context it is used in the Revised Penal Code, "carnal knowledge" unlike its ordinary connotation of sexual intercourse, does not necessarily require that the vagina be penetrated or that the vagina be penetrated or that the hymen be ruptured. 36 The crime of rape is deemed consummated even when the man's penis merely enters the labia or lips of the female organ 37 or, as once so said in a case, by the "mere touching of the external genitalia by a penis capable of consummating the sexual act." 38 In People vs. Escober, 39 in convicting a father of having raped twice his 1l-year-old daughter, the Court has said:
While the evidence may not show full penetration on both occasions of rape the slightest penetration is enough to consummate the offense in fact there was vulva penetration in both cases. The fact
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that the hymen was intact upon examination does not belie rape for a broken hymen is not an essential element of rape not does the fact that the victim has remained a virgin negate the crime. What is fundamental is that the entrance of at least the introduction, of the male organ into the labia of the pudendum is proved. As in the case at bar it can be said that there was penetration although incomplete, and it was sufficient to prove carnal knowledge of a child under twelve years of age. A medical examination is not an indispensable element in a prosecution for rape. The accused may be convicted on the sole basis of complainant's testimony of credible and the findings of the medico-legal officer do not disprove the commission of rape. necessary that the vagina sustained a laceration especially if the complainant is a young girl. The medical examination merely stated that the smallness of the vaginal orifice only precludes COMPLETE penetration. This does not mean that rape has not been committed. The fact that there was no deep penetration of the victim's vagina and that her hymen was intact does not negate rape, since this crime is committed even with the slightest penetration of a woman's sex organ. Presence of a laceration in the vagina is not an essential prerequisite to prove that a victim has been raped. Research in medicine even points out that negative findings are of no significance, since the hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have been reported in women with unruptured hymen. Entry of the labia or lips of the female organ merely, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. What must be proven in the crime of rape is merely the introduction of the male organ into the labia of the pudendum and not the full penetration of the complainant's private part. As we held in Baculi: "there could still be a finding of rape even if despite the repeated intercourse over a period of four years the complainant still retained an intact hymen without signs of injury." In the case at bench, Summer's testimony has established without a doubt that accused-appellants organ managed to come into contact with her vagina, enough to cause her pain. 42 (Emphasis supplied.)
There are half measures or even quarter measures nor is their gravity graduated by the inches of entry. Partial penile penetration is as serious as full penetration. The rape is deemed consummated in either case. In a manner of speaking, bombardment of the drawbridge is invasion enough even if the troops do not succeed in entering the castle. 40 (Emphasis supplied.)
In another case, People vs. Gabayton, 41 where the accused has been found guilty of raping his daughter then less than twelve years old, the Court has observed:
Accused appellant draws attention to the fact that based on the medico-legal findings, there is no showing that his daughter's hymen was penetrated, nor was there any evidence of injuries inflicted. However, jurisprudence is well-settled to the effect that for rape to be consummated, rupture of the hymen is not necessary, nor is it
In its recent holding in People vs. Echegaray, 43 the Court has declared that "a mere knocking at the doors of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as full entry into the victim's vagina is not required to sustain a conviction."
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ATTY. CREEP: The trial court appellants only frustrated rape, ruled that there was no "conclusive evidence of penetration of the genital organ of the offended party 44 in the (a) Catalina had admitted that she did not spread her legs and (b) the medico-legal officer's findings showed she did not sustain any extragenital injuries and her hymenal orifice was so small that an erect average-size penis would not have completely penetrated it would causing laceration. It would seem that the trial court failed to consider Catalina's testimony in its entirely she testified:
Q Now in other words since your two feet were held and Eduardo Escuadro was waving (sic [moving]) slightly to your left as you demonstrated your two feet became closer to each other, it could not be spread?
A I was still struggling at that time to free myself and I do not know whether my legs were speared out or not.
Q And when he mounted on top of you Escuadro was holding on to your two feet and all the time that he Quianola, was making a push and pull on you Escuadro was holding on to your two feet?
Did you spread your legs?
A A Yes.
No.
COURT:
Q Since you did not spread your legs and Quianola was on top of you, did you not bother to pull your legs, kick the one holding it and pushed Quianola or do any harm to him?
Your two feet? A No, because I was already frightened considering that there were two of them and they were armed. 45
Yes.
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This testimony would indicate that Catalina, considering her struggle to free herself, understandably failed to notice whether her legs were spread apart or close together during her ordeal. What she did distinctly recall, however, was that Escuadro had kept holding both her legs when Quianola took her. Thus Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505). We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559, People vs. Rabadan, et al., 53 Phil. 694; Unites States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
Q At that time when he unzipped and your hands were free, did you not attempt to hold his penis forcibly so that he will refrain from raping you?
A I was not able to think of that because of my fear and besides that Eduardo Escuadro was holding on to both my legs.
Q Now if Eduardo Escuadro was the one holding on both your two legs how was Quianola able to place himself on top of you?
A It was because Eduardo Escuadro had already released my hands and Quianola was the one holding on to it already, afterwards Eduardo Escuadro transferred to hold both my legs. 46
Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In People vs. Orita, 47 the Court has explicitly pronounced:
Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia, 50 Phil. 998 [1927] where, We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111
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(dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriia case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws. 48 appellants can, nonetheless, be held accountable under that provision since the information has likewise averred that the "abovenamed accused," referring to the two appellants, have conspiratorially committed the crime.
The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained the provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued usage in the statute book as being merely a persistent lapse in language.
Each appellant is liable for two counts of consummated rape on account of a clear conspiracy between them shown by their obvious concerted efforts to perpetrate, one after the other, the crime. Each of them therefore is responsible not only for the rape committed personally by him but also for the rape committed by the other as well. 49
Under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 when rape is committed with the use of a deadly weapon or by two persons, the crime is punishable by reclusion perpetuata to death. Even while the information has failed to allege the use of a deadly weapon in the commission of the rape,
Article 14 of the Revised Penal Code, 50 includes among its enumeration of generic aggravating circumstances the fact that the crime is committed with the aid of armed men or persons who insure or afford impunity. The fact alone, then, that a malefactor has sported a firearm does not, by itself, militate to aggravate crime. As regards appellant Quianola, the aggravating circumstance of his being a member of the Philippine National Police would have exposed him to the penalty of death 51 under the amendatory provisions of Article 335 by Republic Act No. 7659, had this circumstance been properly alleged in the information. The description by the trial court of appellants as being "powerfully, built, brawny and mean-looking" as against the "short slender easily cowed" 15-year-old victim would not here warrant a finding that abuse of superior strength has aggravated the commission of the crime. The law should be deemed to have already considered this circumstance in qualifying the crime to its "heinous" character rendering in that context abuse of superior strength has an inherent element thereof. Neither may nighttime be considered an aggravating circumstance in the absence of proof of its having been deliberately sought out by appellants to by appellants to facilitate the commission of the offense. 52 Craft fraud or disguise 53 is a species of aggravating circumstance that denotes intellectual trickery or cunning resorted to by an accused to aid in the execution of his criminal design or to lure the victim into a trap and to conceal the identity of the accused. The fact that one of the appellants has pretended to be a member of the New People's Army does not
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necessarily imply the use of craft, fraud or disguise, in the commission of the crime Finally, the Court does not subscribe to the view of the trial court that accused-appellants have employed means which added ignominy to the natural effects of the crime, particularly in "stripp(ing) the victim of her denim parts and panties and then sending her home in this humiliating and distressing condition. 54 There is nothing on record that even remotely suggests that accused-appellants so deliberately sought to leave Catalina with bottoms bare that she might be left alone in shame with only her Tshirt and brassieres on. the sum of P100,000.00 by way of indemnity ex delictu for the two counts of consummated rape plus P60,000.00 moral damages. Costs against appellants.1wphi1.nt
SO ORDERED.
ARTICLE 270 KIDNAPPING AND FAILURE TO RETURN A MINOR
The absence of any aggravating circumstance in the commission of a crime punishable by two (2) indivisible penalties, such as reclusion perpetua to death would justify even without any mitigating circumstance, the imposition of the lesser penalty of reclusion perpetua.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE TY and CARMEN TY, accused-appellants.
DECISION KAPUNAN, J.:
The trial court has ordered appellants to each pay the offended party and indemnity in the amount of P50,000.00. Prevailing jurisprudence 55 likewise allows the victim is have an award of moral damages for having evidently undergone mental physical and psychological sufferings. The availability of appellants being on delict is solidary. 56
Vicente Ty AND Carmen Ty were charged with the crime of kidnapping and failure to return a minor in an information filed by 2nd Assistant City Prosecutor of Kalookan City Rosauro J. Silverio, the accusatory portion of which reads:
WHEREFORE, appellants Agapito Quianola y Escuadro and Eduardo Escuadro y Floro are each found guilty beyond reasonable doubt of two (2) counts of consummated rape and accordingly, sentenced to the penalty of reclusion perpetua in each case. Said appellants are ordered to pay jointly and severally Catalina Carciller
That on or about the month of April 1989, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the abovenamed accused, being then the owners, proprietors, managers and administrators of Sir John Clinic and as such said accused had the
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custody of Arabella Somblong, a minor, conspiring together and mutually helping one another and with deliberate intent to deprive the parents of the child of her custody, did then and there willfully, unlawfully and feloniously fail to restore the custody of said Arabella Sombong to her parents by giving said custody of subject minor to another person without the knowledge and consent of her parents.
SO ORDERED.[2]
The accused now interposes this appeal alleging the ensuing assignment of errors, viz:
Contrary to Law.[1] I Both accused were arrested, and then arraigned on October 27, 1992 when they pleaded not guilty to the crime charged.
After trial, on May 31, 1995, a decision was rendered by the Regional Trial Court of Kalookan City, Branch 123, the decretal portion of which disposes as follows:
THE TRIAL COURT ERRED IN FINDING THAT APPELLANTS DELIBERATELY FAILED TO RESTORE THE CHILD TO HER MOTHER, AND CONVICTING THEM UNDER ART. 270 OF THE REVISED PENAL CODE, AND SENTENCING THEM TO RECLUSION PERPETUA;
II WHEREFORE, this Court finds both accused Spouses Vicente Ty and Carmen Ty guilty beyond reasonable doubt of the crime of kidnapping a minor and failure to return the same as defined and penalized by Article 270 of the Revised Penal Code and hereby sentences them to suffer imprisonment of reclusion perpetua. The accused are hereby ordered to pay the private complainant the sum of P100,000.00 by way of moral damages caused by anxiety, by her being emotionally drained coupled by the fact that up to this date she could not determine the whereabouts of her child Arabella Sombong.
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE CRIME COMMITTED, IF ANY, IS THAT DEFINED AND PENALIZED UNDER ART. 227 OF THE REVISED PENAL CODE;
III
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THE TRIAL COURT ERRED IN NOT RECOMMENDING EXECUTIVE CLEMENCY PURSUANT TO PRECEDENT IN PEOPLE vs. GUTIERREZ, 197 SCRA 569; and Consequently, Arabella was transferred from the ward to the nursery.[4]
IV
THE TRIAL COURT ERRED IN AWARDING COMPLAINANT THE SUM OF P100,000.00 BY WAY OF MORAL DAMAGES.[3]
Thereafter, hospital bills started to mount and accumulate. It was at this time that accused-appellant Dr. Ty suggested to the complainant that she hire a yaya for P400.00 instead of the daily nursery fee of P50.00. Complainant agreed, hence, a yaya was hired. Arabella was then again transferred from the nursery to the extension of the clinic which served as residence for the hospital staff.[5]
The relevant antecedents surrounding the case are as follows:
On November 18, 1987, complainant Johanna Sombong brought her sick daughter Arabella, then only seven (7) months old, for treatment to the Sir John Medical and Maternity Clinic located at No. 121 First Avenue, Grace Park, Kalookan City which was owned and operated by the accused-appellants. Arabella was diagnosed to be suffering bronchitis and diarrhea, thus complainant was advised to confine the child at the clinic for speedy recovery. About three (3) days later, Arabella was well and was ready to be discharged but complainant was not around to take her home. A week later, complainant came back but did not have enough money to pay the hospital bill in the amount of P300.00. Complainant likewise confided to accusedappellant Dr. Carmen Ty that no one would take care of the child at home as she was working. She then inquired about the rate of the nursery and upon being told that the same was P50.00 per day, she decided to leave her child to the care of the clinic nursery.
From then on, nothing was heard of the complainant. She neither visited her child nor called to inquire about her whereabouts. Her estranged husband came to the clinic once but did not get the child. Efforts to get in touch with the complainant were unsuccessful as she left no address or telephone number where she can be reached. This development prompted Dr. Ty to notify the barangay captain of the childs abandonment.[6] Eventually, the hospital staff took turns in taking care of Arabella.[7]
Sometime in 1989, two (2) years after Arabella was abandoned by complainant, Dr. Fe Mallonga, a dentist at the clinic, suggested during a hospital staff conference that Arabella be entrusted to a guardian who could give the child the love and affection, personal attention and caring she badly needed as she was thin and sickly. The suggestion was favorably considered, hence, Dr. Mallonga gave the child to her aunt, Lilibeth Neri.[8]
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In 1992, complainant came back to claim the daughter she abandoned some five (5) years back. was reversed on the ground that the guardians were not unlawfully withholding from the complainant the rightful custody of Cristina after finding that Cristina and complainants daughter are not one and the same person. On January 31, 1996, this Court in Sombong v. Court of Appeals[9] affirmed the Court of Appeals decision.
When her pleas allegedly went unanswered, she filed a petition for habeas corpus against accused-appellants with the Regional Trial Court of Quezon City. Said petition was however denied due course and was summarily dismissed without prejudice on the ground of lack of jurisdiction, the alleged detention having been perpetrated in Kalookan City.
Thereafter, the instant criminal case was filed against accusedappellants.
In this appeal, accused-appellants would want us to take a second look and resolve the issue of whether or not they are guilty of kidnapping and failure to return a minor. Accused-appellants of course contend that they are not guilty and the Solicitor General agrees. In its Manifestations and Motion in lieu of Appellees Brief, the Office of the Solicitor General recommends their acquittal.
We agree. Complainant likewise filed an administrative case for dishonorable conduct against accused-appellant Dr. Carmen Ty before the Board of Medicine of the Professional Regulation Commission. This case was subsequently dismissed for failure to prosecute.
On October 13, 1992, complainant filed a petition for habeas corpus with the Regional Trial Court of Quezon City, this time against the alleged guardians of her daughter, namely, Marietta Neri Alviar and Lilibeth Neri. On January 15, 1993, the trial court rendered a decision granting the petition and ordering the guardians to immediately deliver the person of Cristina Grace Neri to the complainant, the court having found Cristina to be the complainants child. On appeal to the Court of Appeals, however, said decision
As we have mentioned above, this Court in Sombong v. Court of Appeals[10] affirmed the decision of the Court of Appeals reversing the trial courts ruling that complainant has rightful custody over the child, Cristina Grace Neri, the latter not being identical with complainants daughter, Arabella. The Court discoursed, thusly:
Petitioner does not have the right of custody over the minor Cristina because, by the evidence disclosed before the court a quo, Cristina has not been shown to be petitioners daughter, Arabella. The evidence adduced before the trial court does not warrant the conclusion that Arabella is the same person as Cristina.
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petitioners demeanor towards the minor Cristina. following personal but relevant manifestation: xxx She made the
In the instant case, the testimonial and circumstantial proof establishes the individual and separate existence of petitioners child, Arabella, from that of private respondents foster child, Cristina.
We note, among others, that Dr. Trono, who is petitioners own witness, testified in court that, together with Arabella, there were several babies left in the clinic and so she could not be certain whether it was Arabella or some their baby that was given to private respondents. Petitioners own evidence shows that, after the confinement of Arabella in the clinic in 1987, she saw her daughter again only in 1989 when she visited the clinic. This corroborates the testimony of petitioners own witness, Dra. Ty, that Arabella was physically confined in the clinic from November, 1987 to April, 1989. This testimony tallies with her assertion in her counter-affidavit to the effect that Arabella was in the custody of the hospital until April, 1989. All this, when juxtaposed with the unwavering declaration of private respondents that they obtained custody of Cristina in April, 1988 and had her baptized at the Good Samaritan Church on April 30, 1988, leads to the conclusions that Cristina is not Arabella.
The undersigned ponente as a mother herself of four children, wanted to see how petitioner as an alleged mother of a missing child supposedly in the person of Cristina Neri would react on seeing again her long lost child. The petitioner appeared in the scheduled hearing of this case late, and she walked inside the courtroom looking for a seat without even stopping at her alleged daughters seat; without even casting a glance on said child, and without even that tearful embrace which characterizes the reunion of a loving mother with her missing dear child. Throughout the proceedings, the undersigned ponente noticed no signs of endearment and affection expected of a mother who had been deprived of the embrace of her little child for many years. The conclusion or finding of undersigned ponente as a mother, herself, that petitioner-appellee is not the mother of Cristina Neri has been given support by aforestated observation xxx.
xxx
Significantly, Justice Lourdes K. Tayao-Jaguros, herself a mother and the ponente of the herein assailed decision, set the case for hearing on August 30, 1993 primarily for the purpose of observing
Since we hold that petitioner has not been established by evidence to be entitled to the custody of the minor Cristina on account of mistaken identity, it cannot be said that private respondents are unlawfully withholding from petitioner the rightful custody over Cristina. At this juncture, we need not inquire into the validity of the mode by which private respondents acquired custodial rights over the minor, Cristina.
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xxx
Under the facts and ruling in Sombong, as well as the evidence adduced in this case accused-appellants must perforce be acquitted of the crime charged, there being no reason to hold them liable for failing to return one Cristina Grace Neri, a child not conclusively shown and established to be complainants daugther, Arabella.
Deliberate, adj. Well advised; carefully considered; not sudden or rash; circumspect; slow in determining. Willful rather than merely intentional. Formed, arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan. Carried on coolly and steadily, especially according to a preconceived design; given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step; slow in action; unhurried; characterized by reflection; dispassionate; not rash. People v. Thomas, 25 Cal. 2d 880, 156 P. 2d 7, 17, 18.
The foregoing notwithstanding, even if we were to consider Cristina Grace Neri and Arabella Sombong as one and the same person, still, the instant criminal case against the accused-appellants must fall.
Before a conviction for kidnapping and failure to return a minor under Article 270 of the Revised Penal Code can be had, two elements must concur, namely: (a) the offender has been entrusted with the custody of the minor, and (b) the offender deliberately fails to restore said minor to his parents or guardians. The essential element herein is that the offender is entrusted with the custody of the minor but what is actually punishable is not the kidnapping of the minor, as the title of the article seems to indicate, but rather the deliberate failure or refusal of the custodian of the minor to restore the latter to his parents or guardians.[11] Said failure or refusal, however, must not only be deliberate but must also be persistent as to oblige the parents or the guardians of the child to seek the aid of the courts in order to obtain custody.[12] The key word therefore of this element is deliberate and Blacks Law Dictionary defines deliberate as:
By the use of this word, in describing a crime, the idea is conveyed that the perpetrator weighs the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these, and that the act is not suddenly committed. It implies that the perpetrator must be capable of the exercise of such mental powers as are called into use by deliberation and the consideration and weighing of motives and consequences.[13]
Similarly, the word deliberate is defined in Corpus Juris Secundum as:
DELIBERATE.
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As a Verb Under some circumstances, it has been held synonymous with, or equivalent to, intentional, premeditated, and willful. The word is derived from two Latin words which mean literally concerning and to weigh, it implies the possession of a mind capable of conceiving a purpose to act, and the exercise of such mental powers as are called into use by the consideration and weighing of the motives and the consequences of the act; and has been defined as meaning to consider, reflect, take counsel, or to weigh the arguments for and against a proposed course of action; to consider and examine the reasons for and against, consider maturely, ponder, reflect upon, or weigh in the mind; to reflect, with a view to make a choice; to weigh the motives for an act and its consequences, with a view to a decision thereon.
Under other circumstances, however, it has been compared with, or distinguished from, premeditated, sudden, and willful.[14]
Essentially, the word deliberate as used in the article must imply something more than mere negligence; it must be premeditated, obstinate, headstrong, foolishly daring or intentionally and maliciously wrong.
As an Adjective
The word, used adjectively, implies action after thought and reflection, and relates to the end proposed; indicates a purpose formed in a mind capable of conceiving a purpose; and is based upon an intention accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design. It has been defined as meaning carefully considered; circumspect; entered upon after deliberation and with fixed purpose, formed after careful consideration, and fully or carefully considering the nature or consequences of an act or measure; maturely reflected; not sudden or rash, carefully considering the probable consequences of a step; premeditated; slow in determining; weighing facts and arguments with a view to a choice of decision; well-advised.
In the case at bar, it is evident that there was no deliberate refusal or failure on the part of the accused-appellants to restore the custody of the complainants child to her. When the accused-appellant learned that complainant wanted her daughter back after five (5) long years of apparent wanton neglect, they tried their best to help herein complainant find the child as the latter was no longer under the clinics care. Accused-appellant Dr. Ty did not have the address of Arabellas guardians but as soon as she obtained it from Dr. Fe Mallonga who was already working abroad, she personally went to the guardians residence and informed them that herein complainant wanted her daughter back. Dr. Ty testified as follows:
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Q: Now, since you said a while ago that when you placed the child under the (sic) guardianship, you are (sic) aware that the natural mother will get back the child, why did you not return the minor to the natural mother?
A: I was able to talk to Fe Mallonga in Bahrain and she told me the exact address of the guardian, mam.
A: During that time mam, the resident physician who will (sic) discharged the baby was not present because she was abroad.
Q: Were (sic) you informed (of) the exact address of the guardian, did you informed (sic) the PAO?
Q: But then madam witness, are you aware where the child was and to whom it was given?
A:
Yes, mam.
ATTY. WARD: A: The exact address was not given to me, mam, before the resident physician left for abroad so, I asked the PAO to give me one month to have (sic) a long distance call to this doctor and asked her for the whereabout(s) of the child.
Q: Then, what happened next, madam witness?
Q: And where you granted the thirty-day period by the Officer of the PAO?
A: I was the one who went to the address to be sure that the child was really there, mam.
Q: And did you see the child? A: Yes, mam.
A: Q: What happened if any during that thirty-day period?
Yes, mam.
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Q: What did you do with the child? When the guardians refused to return the child, accused-appellant Dr. Ty sought the assistance of the National Bureau of Investigation (NBI) which conducted a conference among the parties but since a case was yet to be filed, the custody of the minor remained with the guardians. This fact is evident from the following testimony, thus:
A: I just tell (sic) the child. Ay and laki mo na pala. I just told the child like that and Ive (sic) talked also to the guardian during that time, mam.
Q: And what did you tell the guardian?
Q: You testified on cross-examination that you located the whereabouts of the child sometime later, what steps did you take up (sic) after you found the child?
A: I told the guardian that the rightful mother was claiming for the child and that we should talked (sic) with each other at the PAO for the decision, mam.
A: I explained to the guardian that the verbal agreement between the supposed to be guardianship was only a plain guardianship and not as an adoption, sir.
Q: Did the guardian bring the child to the PAOs Office (sic)?
Q: You said you went to the NBI after you found the child, why did you go to the NBI?
A:
No mam, she did not appear. A: Because the guardian are (sic) not willing to surrender the child to the PAOs Office (sic). that is why I asked their help, sir.[16]
Q: Why? xxx A: They told me first that they are (sic) going to contact a lawyer but for (sic) several days, she did not respond anymore, mam.[15]
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Q: Now, when you informed the present custodian that the natural mother is now claiming the child, why were you not able to get the minor? Q: For what reason if you know, why (did) the guardian did (sic) not follow you or obey you when you want (sic) to get back the child?
A: A: I was not able to get the minor so I asked the help of the NBI to have the child surrender (sic), mam.
I dont know of any reason, mam.[17]
ATTY. WARD:
The efforts taken by the accused-appellants to help the complainant in finding the child clearly negate the finding that there was a deliberate refusal or failure on their part to restore the child to her mother. Evidence is simply wanting in this regard.
Q: And what happened when you get (sic) the assistance of the NBI?
A: They were the ones who asked the guardian to surrender the child, mam.
It is worthy to note that accused-appellants conduct from the moment the child was left in the clinics care up to the time the child was given up for guardianship was motivated by nothing more than an earnest desire to help the child and a high regard for her welfare and well-being.
Q: You stated a while ago that there was no written agreement between you or your hospital and the guardian of the minor, is that correct?
WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE. Accordingly, accusedappellant VICENTE TY and CARMEN TY are hereby ACQUITTED of the crime charged and are ordered to be released immediately unless they are being detained for other lawful causes. Costs de oficio.
A:
Yes, mam. SO ORDERED.
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G.R. No. 81020 May 28, 1991
CONTRARY TO LAW." 1
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LlLIA GUTIERREZ Y FRANCO, defendant-appellant.
FELICIANO, J.:p The accused Lilia Gutierrez y Franco is before us on appeal from the decision of the Regional Trial Court, Branch 27, Manila, convicting her of the crime of kidnapping and failure to return a minor and sentencing her to reclusion perpetua.
Appellant entered a plea of not guilty. After trial, the lower court rendered a decision dated 14 September 1987 finding the accused guilty of the crime charged. The dispositive portion of the decision states:
Appellant was charged under an information which read as follows:
WHEREFORE, the Court finds the accused, Lilia Gutierrez y Franco, guilty beyond a reasonable doubt of the crime as charged and hereby sentences her to suffer the penalty of life imprisonment (sic) and is hereby ordered to pay the sum of P2,000.00 to the parents of the minor, Frank Elpedes and Lourdes Elpedes, for moral damages and to pay the costs.
The undersigned accuses LILIA GUTIERREZ Y FRANCO of a violation of Article 270 of the Revised Penal Code (Kidnapping and Failure to Return a Minor) committed as follows:
xxx
xxx
xxx
SO ORDERED. 2 That on or about the 13th day of July, 1984, in the City of Manila, Philippines, the said accused, having been entrusted the custody of one Hazel Elpedes, a boy, two and a half years of age, and therefore, a minor, did then and there wilfully, unlawfully, feloniously and deliberately fail and refuse to restore the said child to his parents, Frank Elpedes y Sumayod and Lourdes Elpedes, and instead sell the said child for P250.00.
Appellant in her Brief, assigns a single error, asserting that the trial court erred in convicting her because her guilt has not been proven beyond reasonable doubt.
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The facts of the case as found by the trial court may be summarized as follows: child there. Receiving information from the Barangay Chairman of the place that the child was in Cogeo, Antipolo, Rizal the group returned to the police station and then proceeded to Antipolo. There they recovered Hazel from the residence of the Felipe spouses. During this time, appellant admitted to the group that she had "sold" the child in order to avenge herself on her husband, Lourdes Elpedes' brother, who had abandoned her. On the evening of 15 July 1984, the group returned to the police station where appellant was investigated and placed under arrest. She has been under detention ever since. 4
On the morning of 13 July 1984, appellant went to the residence of her sister-in-law, Lourdes Elpedes, at the Nichols Airbase, Pasay City, and obtained permission from the latter to take her youngest son, Hazel, 2 1/2 years old for the day because appellant's husband, Maximiano Mariano, wanted to spend some time with his nephew at their residence in Paco, Manila. Both women agreed that the child would be brought back at 4:00 P.M. that same day. When appellant arrived at her residence, she discovered that her husband, and their belongings, were gone. For a while, appellant just sat there and cried. She then proceeded to the residence of her former employers, Mr. and Mrs. Abraham Felipe, in Intramuros. They executed an "Agreement" under which appellant surrendered custody of Hazel Elpedes, purportedly her own fatherless son, in favor of the couple. Appellant received P250.00 from the couple which was evidenced by a receipt. 3
Lourdes Elpedes testified in court regarding the circumstances under which appellant obtained temporary custody of Hazel, the initial efforts by her and her husband to locate appellant, and the efforts of her husband and the police to recover Hazel in Intramuros and in Antipolo. 5
Meanwhile, Lourdes Elpedes went to appellant's residence after the latter had failed to return with her son. Encountering no one there, she and her husband, Frank Elpedes, spent the next two days looking for appellant along Herran St. (now Pedro Gil St.). On 15 July 1984, Frank Elpedes spotted appellant in a telephone booth along said street and accosted her. The Elpedes spouses brought her to the Western Police District Station along United Nations Avenue, Manila. Appellant then led Frank Elpedes and at least one policeman, Patrolman Diosdado Deotoy, to the Felipe residence in Intramuros. But the group found neither the Felipe spouses nor the
Patrolman Diosdado Deotoy also testified in court regarding the efforts to recover Hazel Elpedes. He recounted how they were able to locate the. house of the Felipe spouses in Cogeo and how the Felipe spouses readily surrendered the child upon being informed of his true parentage. He added that the Felipe spouses likewise surrendered the documents which came to be offered and admitted as exhibits D and E for the prosecution. 6
Patrolman Ernesto Callos' testimony dealt with the circumstances under which he investigated the appellant. He mentioned that appellant repeated to him in the investigation room her admission
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regarding the "sale" of the child and her motive for "'selling" him. He added that the admission was made voluntarily after appellant had intelligently waived the assistance of counsel. Furthermore, he did not insist, in deference to her constitutional rights, when she declined to reduce this admission into writing. 7 argues that Lourdes Elpedes was an incompetent witness as far as her account of the recovery of Hazel in Antipolo was concerned, because she was not present when this event took place. Lourdes' account of appellant's alleged admission of the "sale" on the occasion then constituted hearsay. Furthermore, she contends, Pat. Callos' testimony that appellant had admitted giving away the young boy to him during her investigation was likewise hearsay. Considering this alleged gap in the prosecution's evidence, appellant claims the prosecution should have presented either or both of the Felipe spouses to testify that appellant had indeed "sold" the child. Finally, appellant argues that the prosecution had not successfully rebutted her exculpatory testimony regarding her inadvertent failure to return Hazel to his parents. 9
Appellant testified on her own behalf as the sole witness for the defense. She stated that she had fetched Hazel Elpedes from his parents upon instructions of her husband. After discovering that her husband had abandoned her, she entrusted the child to the Felipe spouses merely for temporary safekeeping while she tried to locate her husband in his homeplace in Cabanatuan City. She believed that the Felipe spouses, her former employers, could be relied upon to look after the child responsibly. She misrepresented the child as her own because the Felipes were aware of her married status. Returning to the Felipe residence the following day, she received P180.00 from them, never considering for a moment that the amount represented payment for the child. She admitted affixing her thumbmarks on Exhibit E but repudiated her purported signatures on Exhibits D and E because she is illiterate. She added that she did not know why the Felipe spouses presented these documents to her. Appellant testified that it had never occurred to her to immediately return Hazel to his parents because she was in a confused state of mind upon realizing she had been abandoned by her husband. 8
The offense of kidnapping and failure to return a minor defined and penalized under Article 270 of the Revised Penal Code consists of two elements: 1.) the offender has been entrusted with the custody of a minor person, and 2.) the offender deliberately fails to restore said minor to his parents or guardians.
Appellant contends that the prosecution's evidence did not establish that she had deliberately failed to restore the boy Hazel to his parents by "selling" the child to the Felipe spouses. Elaborating, she
It is clear that appellant admitted the existence of the first element for she had not disputed the testimony on circumstances under which she obtained custody for the day of Hazel Elpedes on the morning of 13 July 1984. Furthermore, as pointed out by the trial court, it was perfectly in consonance with human experience that Lourdes Elpedes should have readily allowed appellant to take Hazel temporarily because she is a relative by affinity who, until then, had not exhibited any conduct which might impair the trust normally reposed on a sister-in-law. 10
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Callos' statement that appellant had reiterated while she was under investigation, that she had "sold" the child to the Felipe spouses was not hearsay in so far as the simple fact that appellant had made certain oral statements to Pat. Callos was concerned. The trial court had observed the demeanor of Pats. Deotoy and Callos while testifying in open court and had pronounced them to be credible witnesses. 12 We find no basis for disregarding their testimony as to what appellant had uttered in their presence. 13 The two peace officers became involved in this case in the course of performing their duty to assist the aggrieved parents in recovering their missing child. Appellant did not show any evil motive on their part to falsify the truth and falsely impute to her, whom they met for the first time on this case, the commission of a grave offense. 14 Finally, appellant's affixing her thumbmark on Exhibit E (the Agreement with the Felipe spouses) and receiving money from Mr. and Mrs. Felipe ("for her child"; Exhibit D) are particulars which corroborated the testimony of the two police officers as to what appellant had stated in their presence, and which render her claim that she had merely inadvertently failed to return Hazel to his parents, impossible to accept.
We believe that the second element of the offense charged has been established by the prosecution's evidence. In the first place, appellant's own conduct in leading Frank Elpedes and Pat. Deotoy to the Felipe residence in Intramuros, in an initial unsuccessful effort to recover the child, indicated her awareness of the probable whereabouts of the child. The logical conclusion is that she must have been the person responsible for originally leaving the child with the Felipe spouses. 11 In the second place, the precise motive that appellant might have had for bringing Hazel Elpedes to the Felipe spouses and leaving him with them, apparently for an indefinite period, is not an indispensable element of the offense charged. All that was necessary for the prosecution to prove was that she had deliberately failed to return the minor to his parents. But appellant herself had testified that she had indeed left the child with the Felipe spouses in Intramuros. We find it very difficult to understand how appellant, even in her claimed disconsolate state, could have inadvertently left the child with the Felipe spouses in the latter's home in Intramuros (starting from Herran St., in the opposite direction from the Nichols Airbase, where the child's parents live). Moreover, appellant did not pretend to have tried to return Hazel to his parents by retrieving him from the Felipe spouses in Intramuros.
It is true that Lourdes Elpedes' account of Hazel's recovery in Antipolo was hearsay, because Lourdes was not then physically present in Antipolo. But Pat. Deotoy had participated in that operation and he testified accordingly. Pat. Deotoy had also stated that appellant had admitted taking the child and leaving him with the Felipe spouses. His testimony on this particular point was not disputed by appellant; appellant herself testified to that effect. Pat.
Appellant concluded her Brief with a plea that should her conviction be affirmed, the imposition of the penalty of reclusion perpetua upon her would be too harsh because her illicit act was really the result of the bitterness she felt over the betrayal and humiliation inflicted on her by her husband, the brother of Lourdes Elpedes. 15 The Solicitor General, in his own Brief, concurs with this view:
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The record, however, shows that appellant had no intention to commit so grave a crime. After she was found, she voluntarily surrendered and accompanied the police and the minor's parents to Intramuros, Manila and later to Cogeo, Antipolo, Rizal, where the minor was later recovered. Although she was alleged to have received P250.00 from the Felipes when she left the minor with them, still appellant's previous admissions and cooperation with the police show that she did not have a criminal mind or intent to commit so grave an offense. These mitigating circumstances can not, however, be considered in her favor under Article 63 of the Revised Penal Code. The imposition of a life sentence on appellant under these circumstances would indeed be too harsh, considering further that she can not read and write, and had no educational background whatsoever. malice exhibited by the appellant, an unlettered woman, in committing the offense here involved does not warrant the penalty of reclusion perpetua, particularly because to date, she has already spent seven years in prison.
WHEREFORE, the Decision of the trial court dated 14 September 1987 imposing the penalty of life imprisonment (should be reclusion perpetua) upon the appellant, is hereby AFFIRMED, except that the award of moral damages in favor of Frank and Lourdes Elpedes is hereby increased to P5,000.00. Pursuant to the authority granted to it under Article 5 of the Revised Penal Code, the Court recommends, through the Secretary of Justice, to the President of the Philippines that executive clemency be extended to appellant Lilia Gutierrez as a means of mitigating the undue harshness of the criminal law in this particular case.
It is therefore recommended that after partial service of sentence, appellant be recommended for an early pardon, if so entitled under the law. 16
SO ORDERED.
We agree that in this particular case, the penalty normally imposed for kidnapping and similar offenses appears too harsh. The record does not indicate that Hazel Elpedes has been injured emotionally or physically by his experience. We believe the trial court's award of moral damages in favor of Hazel's parents was proper as reparation for the three days of anxiety and mental anguish which they suffered before the recovery of their child the amount, however, should be increased from P2,000.00 to P5,000.00. We believe the degree of
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELIA REYES y DELA CRUZ, accused-appellant REY ARNEL REYES y GARBONELLA, accused.
DECISION
PUNO, J.:
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Appellant Delia Reyes y dela Cruz and accused Rey Arnel Reyes y Garbonella were both charged with the crime of kidnapping in an information that reads as follows:
They had not walked too far when appellant remembered they forgot to lock the door of the house. She instructed Aslima and Badudin to go back to the house and lock the door. Aslima and Badudin did as they were told but when they returned to the place where they left appellant and their sister, the two were no longer there.[6]
"That on or about the 8th day of May 1991, in the City of Angeles, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being both private individuals and one of them a former housemaid of the parents of the victim, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously and for still unknown purpose or reason kidnap ASNIA (Malagu) MOHAMAD, a minor of 4 1/2 years of age, permanently separating said female child from her parents Rasmia and Almadin Mohamad since then to the present time."[1]
The prosecution established that on May 8, 1991 at about 11:00 A.M., appellant went to the house of Almadin and Rasmia Mohamad in Angeles City, Pampanga to reapply as housemaid. Appellant was a former housemaid of the Mohamads and was immediately accepted as the Mohamads had then no househelp.[2] Appellant performed her chores, cleaned the house and attended to the Mohamads' six children. At about 3:00 in the afternoon, while Rasmia was in the market and Almadin was praying at the mosque in the upper floor of their house, appellant invited the couple's three daughters, namely, Aslima,[3] Badudin,[4] and Asnia, nicknamed Malagu, aged four and a half, to watch a movie in Dau, Mabalacat, Pampanga. The children readily agreed and they all left the house without telling their destination to anyone.[5]
Aslima immediately informed her parents of the disappearance of appellant and Asnia. The Angeles City police searched for them but to no avail. The Mohamad couple organized a massive manhunt. They sought the help of approximately 100 persons composed of relatives, friends and police and intelligence officers in Manila and the neighboring provinces. They used the broadcast and print media. The search dragged on for almost two months until the police came upon accused Rey Arnel Reyes, appellant's cousin and also a former employee of the Mohamads. On interrogation, Rey Arnel gave leads as to appellant's whereabouts. It was at this time that the information charging appellant of kidnapping was filed in court. Rey Arnel Reyes was included as a co-accused.
Following Rey Arnel Reyes' leads, the police arrested appellant in Manila on July 7, 1991. The missing child, Asnia, was later found in the custody of an old lady in a squatter's area in Barangay Mabiga, Mabalacat, Pampanga.[7] Asnia was embraced by her crying father who noticed that she had become "very thin and very pale."[8] Asked why she kidnapped Asnia, appellant replied "wala lang."[9]
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Almadin and Rasmia Mohamad spent P300,000.00 more or less for reward money, transportation, board and lodging expenses in searching for Asnia. The couple also suffered mental and emotional anguish and spent sleepless nights worrying over their lost daughter.[10] rendered judgment acquitting accused Rey Arnel Reyes for lack of evidence but convicting appellant of the crime of kidnapping. Appellant was sentenced to reclusion perpetua and ordered to indemnify the Mohamad couple actual and moral damages in the total amount of P300,000.00, thus:
Appellant denied she kidnapped Asnia. She claimed that on May 8, 1991, at about 3:00 p.m., she asked permission from Almadin to take his three daughters for a walk. Almadin consented but told her not to walk too far away from the house. She took the children to the market where they purchased a pair of slippers. She met there a friend, Agnes Viriales. Agnes told appellant to go to Mabalacat to get the latter's clothes. Thereupon, appellant instructed the two older children to go home while she took Asnia with her to Mabalacat. She did not ask further permission from Almadin as he was praying in the mosque.
"WHEREFORE, for lack of evidence, accused Rey Arnel Reyes y Garbonella is hereby ACQUITTED of the crime charged.
Appellant saw her sister, Clarita Reyes, who just arrived from La Union, in Agnes' house in Mabalacat. She was informed by Clarita that their mother died the previous day. She and her sister immediately left for San Fernando, La Union after instructing Agnes to bring Asnia to her family. Agnes and the Mohamads were acquaintances. After her mother's burial, appellant did not return to Angeles City but proceeded to Manila where she worked as an agogo dancer.[11]
On the other hand, this Court finds accused Delia Reyes y dela Cruz guilty beyond reasonable doubt as charged in the information for kidnapping. There being no modifying circumstance in attendance, the penalty of reclusion perpetua is hereby imposed upon said accused Delia Reyes y dela Cruz. She is also hereby ordered to indemnify the spouses Almadin and Rasmia Mohamnad the sum of P200,000.00 as actual damages for expenses they incurred in the search for the victim, and P100,000.00 as moral damages, and also to pay the costs.
SO ORDERED."[12]
Hence, this appeal where she contends:
During the trial, accused Rey Arnel Reyes escaped from prison and was tried in absentia. On September 3, 1992, the trial court
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her friend, she kidnapping.[14] THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED INSPITE OF PROSECUTION'S FAILURE TO PROVE HER GUILT BEYOND REASONABLE DOUBT. contends she could not be convicted of
II
THE TRIAL COURT ERRED IN CONCLUDING THAT ACCUSED DELIBERATELY FAILED TO RESTORE THE MINOR/VICTIM TO HER PARENTS."
We find appellant's excuse incredible. To start with, appellant failed to corroborate the alleged death of her mother. Moreover, it is hard to believe that the news about the mother's death would so unsettle appellant that she had to rush to La Union without first returning Asnia to her parents in Angeles City. Asnia was a mere four and a half-year old child entrusted to her care and Angeles City is but a few kilometers away from Mabalacat. It would have taken appellant a few minutes to return to Angeles and tell the Mohamads about her predicament.
The crime of kidnapping under Article 270 of the Revised Penal Code is committed: (1) when the offender is entrusted with the custody of a minor person; and (2) the offender deliberately fails to restore the said minor to his parents or guardian.[13]
Appellant concedes that she was hired by the Mohamad family as a housemaid and that she was entrusted with the care of their children. She claims that the prosecution failed to prove that she deliberately and intentionally failed to return Asnia to her parents. She contends that the death of her mother left her confused and bewildered. She rushed to La Union to see her mother's remains and relied on her friend, Agnes, to return Asnia to her parents. In wrongfully trusting
We hold that appellant's negligence is wanton and gross as to amount to a deliberate and willful scheme to take the child away from her parents. This willfulness is sufficiently established by the following circumstances: (1) appellant lured Asnia and her sisters into leaving their house; (2) she instructed the two elder sisters to go home but kept the youngest with her; (3) she and Asnia could not be located despite extensive search by the authorities and the widespread publicity generated through the television, radio and print media; (4) the child was found two months later and only after the arrest of appellant; and (5) appellant harbored ill-feelings against the Mohamad family. She revealed on the witness stand that the Mohamads did not pay her salary for five months when she worked for them in 1989.[15] In contrast, there is nothing to show that the witnesses for the prosecution were impelled by improper motives to testify falsely against appellant.[16]
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The Regional Trial Court of Pasay City found the accused Zoilo A. Borromeo alias "Sonny" guilty of kidnapping a minor for ransom and sentenced him to death and to pay the offended parties moral damages of P250,000.00 and the costs of suit.[1]
The non-presentation of Asnia and Agnes Viriales to whom appellant entrusted Asnia, does not weaken the case for the prosecution. Even without their testimonies, there is sufficient evidence to prove appellant's guilt. If appellant believed that their testimonies could have exculpated her, she could have availed of the coercive processes of the court to have them produced as witnesses.[17] She failed to do so. Their non-presentation will not exculpate her.
IN VIEW WHEREOF, the decision of the Regional Trial Court Branch 58, Angeles City in Criminal Case No. 91-476 is affirmed. Costs against appellant.
The conviction of the accused Zoilo Borromeo is based on these factual findings of the trial court: On 3 January 1996 at around four oclock in the afternoon Rowena Hernandez, owner and operator of a bakeshop in Pasay City, left with a friend to buy shoes for her son Kenneth. The little boy who at that time was one (l)-year and seven (7)-months old was then sleeping at the bakeshop under the watchful eye of his yaya, Annabelle Ponon. Outside the store was seated the accused, a bakery helper of Rowena who had earlier been discharged by her due to negative attitude problems.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZOILO "Sonny" BORROMEO Y ALFARO, accusedappellant. ULANDU
D E CI S I O N
PER CURIAM:
When the child woke up Annabelle took him home. Some fifteen (15) minutes later Zoilo arrived at the Hernandez residence and told the nursemaid that "Ate Weng" (Rowena's nickname) had sent him to fetch Kenneth and bring him to her for shoe measurement. Annabelle gave Kenneth to Zoilo but shortly thereafter she realized that she should not have done so. Suspecting that something wrong was happening, she immediately reported the incident to Kenneth's father, Nelson, who was minding his watch repair store nearby. They looked for Kenneth but their initial search and inquiry yielded negative results. Kenneth could not be found. Nelson and Annabelle proceeded to the Pasay City Police Station to report the matter to the authorities.
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At around seven o'clock that evening Rowena arrived. She was immediately informed by her husband that their son was missing. Distraught, they began a long search for Kenneth with the help of some relatives but to no avail. They could not find the boy. All the police could do was to advise them to go home and wait perhaps for a telephone call from the kidnapper. True enough, in the afternoon of the following day, 4 January 1996, Rowena received a telephone call. It was from accused Zoilo Borromeo who demanded ransom from her for the release of her son Kenneth. Zoilo told her, "Pasensiya ka na, Ate Weng, kailangan ng boss ko ang P300,000.00. Paghahatian ng grupo (I am sorry, Ate Weng, my boss needs P300,000.00. This will be divided among the members of the group)." S djad designated meeting site for the apprehension in flagrante of the accused and the rescue of the kidnapped child. The policemen positioned themselves strategically at the vicinity of the restaurant where the exchange was to take place, ready to arrest Zoilo as soon as he received the money.
Rowena agreed to give the money on the condition that the child would not be harmed. Zoilo promised to call back. The. next day, he did. It was Nelson who answered the telephone as Rowena had gone to the police station. The accused reiterated his earlier demand for ransom but Nelson informed him that he could produce only P250,000.00. Zoilo called back about noon of the following day. He agreed to the reduced amount. He specifically instructed Nelson to immediately bring the money with him to the parking lot in front of "Max's Restaurant" near the Baclaran Church in Pasay City.
At around two o'clock in the afternoon of that day, the accused arrived at the designated place. The policemen chosen to witness and assist in the entrapment personally saw Nelson hand over to Zoilo the "ransom money." As the two (2) men then walked away from the restaurant and were about to cross Roxas Boulevard, two (2) of the assigned policemen accosted them and swiftly nabbed Zoilo. At the Pasay City police station, Zoilo disclosed that the little boy Kenneth was in Sitio Kawilihan in Barangay Ipil, Alfonso, Cavite. Forthwith, the police, the Hernandez spouses and Zoilo left for Cavite, and found the kidnap victim inside a hut owned by Ernesto and Arsenia Viray. Ernesto executed a written statement that Zoilo had told them that Kenneth was his son and that he was leaving the boy with them as he was going back to Manila to get some clothes for the child.
Meanwhile, Nelson reported his telephone conversations with Zoilo to the police who hatched an entrapment scheme by preparing six (6) bundles of bogus bills, each bundle topped by a genuine fivehundred peso (P500.00) bill, which Nelson would hand over to Zoilo. The Pasay police also dispatched a team of law enforcers to the
On the witness stand Zoilo gave a different account of the incident. He admitted that he was with the child on 3 January 1996. He however claimed that it was because the child's parents, Rowena and Nestor, allowed him to take Kenneth out for a leisurely stroll. When he and the child reached Baclaran Church, they took a bus to Tagaytay where his aunt lived. He said that he failed to return Kenneth to his parents soon enough because he was hurrying to report for work in Cainta, Rizal. He remonstrated however that he
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had called up Rowena and apologized to her for his failure to bring Kenneth home immediately.[2] was Zoilo who called her on 4 January 1996 apologizing for having taken Kenneth with him and demanding money in exchange for the child's freedom purportedly because "kailangan ng boss ko ang P300,000.00. Paghahatian ng grupo;" and, that it was Zoilo who led them to Alfonso, Cavite where he hid Kenneth; the unshaken avowal by Annabelle Ponon that it was Zoilo who took Kenneth from her on the pretext that the little boy was going to have his shoe measurement taken; the positive uncontested declarations of the police officers that Nelson Hernandez informed them that Zoilo called and instructed him to bring the money to a designated meeting place after agreeing to reduce the amount by P50,000.00; that they forthwith prepared bogus bills as ransom to be brought by Nelson Hernandez to his rendezvous with Zoilo; that they saw the transaction between Nelson and Zoilo actually take place; and, that their colleagues, apprehended the accused after he took the money from Nelson Hernandez -all these constitute persuasive, unassailable proof of the commission of the crime by the accused himself.
The trial court found this defense insipid, weak and totally insufficient to overthrow the quantum of evidence adduced by the prosecution which established the guilt of the accused beyond reasonable doubt. Consequently, it held the accused liable for kidnapping Kenneth, a minor, for ransom under Art. 267 of the Revised Penal Code as amended.[3]
The accused assails the court a quo for having seriously erred in convicting him on the basis of the weakness of his evidence and not on the strength of the prosecution's cause. He argues pointedly that the questioned decision dwells largely on discrediting his defense with nothing much said about the credibility of the testimonies of the witnesses for the prosecution.
We disagree with this postulation. A meticulous evaluation of the case yields the indisputable conclusion that the prosecution sufficiently proved its case against the accused. We are in no way disposed to disturb the findings of the court a quo.
The identity of the accused, much less his guilt, has been adequately established by clear and convincing evidence. Taken altogether - the testimony of complainant Rowena Hernandez that Zoilo was seated outside her bakeshop that fateful afternoon of 3 January 1996; that it
Set against the solid evidence for the prosecution, the defense of the accused, which notably remains uncorroborated, must crumble and fall apart. Zoilo's insistence that the parents of Kenneth allowed him to take the child for a walk to the Baclaran Church flies in the face of the contrary testimony of Annabelle that Zoilo had told her that he was taking Kenneth to his mother upon the latter's instructions for the purpose of measuring the size of his feet for a pair of shoes. Moreover, it was highly improbable that Rowena would give permission to Zoilo to bring the child out for a walk, more so to Alfonso, Cavite. Had she done so she would not have been so terrified and alarmed as to immediately report to the police when she got home from the shoe store and learned that her baby Kenneth
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was missing and that Zoilo was the person who kidnapped the boy. It was also quite inconceivable that Rowena, and Nelson for that matter, would entrust their one (1)-year and seven (7)-month old baby boy to Zoilo, whom they earlier dismissed as their baker "due to negative attitude problems," for a promenade to Baclaran since the child was in the care of the nursemaid Annabelle with whom the child was more comfortable, having been his nanny already for sometime. C alrsc The essence of the crime of kidnapping is the actual deprivation of the victim's liberty coupled with indubitable proof of intent of the accused to effect the same.[6] And if the person detained is a child, the question that needs to be addressed is whether there is, evidence to show that in taking the child, there was deprivation of the child's liberty and that it was the intention of the accused to deprive the mother of the child's custody.[7] Sccal r
The accused next argues that he failed to return Kenneth promptly to his parents because he had to leave hurriedly for work in Cainta, Rizal. This is a feeble attempt to tone down his culpability. For if he had no evil design on Kenneth and his parents, he could very well have brought Kenneth back to his Pasay home from Baclaran Church en route to his work, if indeed he was employed, in Cainta, Rizal, a town located northeast of Pasay, instead of bringing the baby down south to Tagaytay, a place very far away from Cainta.
Most detrimental to the case of the accused is his barefaced denial that he extorted ransom from the Hernandez spouses despite his being caught red handed in the entrapment. The testimonies of prosecution witnesses SPO1 Quirino Glico, police investigator,[4] and Police Inspector Rolando Bihasa[5] who personally witnessed the accused receiving the ransom, bogus as it was, from the child's father at the parking lot in front of "Max's Restaurant" remained unchallenged and uncontroverted throughout the proceedings. The accused never exerted any effort to rebut these declarations.
We find abundant evidence of this fact in this case. It has been established with great certainty that Kenneth was deprived of his liberty, having been taken by the accused without the consent of the child's parents who had custody over him. The accused had to employ artifice and subterfuge to get hold of the victim, taking him from his nanny on his false posturing that it was on the orders of the child's mother. It finally dawned on the nanny later that this could not be so because Rowena had left more than an hour ago for a department store in Makati City to buy shoes for the boy! Zoilo then kept the child for two (2) days in a far-flung place south of Manila in the care of a couple while negotiating with his parents for the payment of ransom. Discernible from this fact is the intent of the accused to keep the child under detention for as long as no ransom was paid to him for his release. Then again, there was no voluntary restoration by the accused of the child to his parents. Kenneth was recovered only after the police intervened and the accused was apprehended. When taken to the police station for the requisite investigation, Zoilo confessed that he brought the baby boy to a remote barangay in Alfonso, Cavite, and that he demanded money from the parents for the release of their child so that he could start a bakery business.
211

There is no question that the elements of kidnapping for ransom were sufficiently established: (a) the accused is a private individual; (b) the accused kidnapped or detained the victim and deprived him of his liberty; and, (c) the deprivation of the victim's liberty was illegal. As provided for in Art. 267 of the Revised Penal Code as amended, the imposition of the death penalty is mandatory if the victim is a minor. In this case, the minority of Kenneth Hernandez was never disputed. Assuming arguendo that minority was not proved, still under the same provision of law, the imposition of the death penalty is obligatory if the kidnapping was committed for the purpose of extorting ransom from the victim or any other person. This was certainly so in this case. To recapitulate, minority and the demand for the payment of ransom, both specifically described in the Information, were clearly established by the State, free of any scintilla of doubt. Calrsp ped WHEREFORE, the Decision of the Regional Trial Court of Pasay City, Branch 119, finding accused Zoilo Borromeo y Alfaro, also known as "Sonny," GUILTY beyond reasonable doubt of kidnapping a minor for ransom and sentencing him to death is AFFIRMED, with the MODIFICATION that the award of moral damages is reduced to P100,000.00. Costs against the accused.
In accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of RA 7659, upon the finality of this decision let the records of this case be forthwith forwarded to His Excellency, the President, for the possible exercise of his pardoning power.
SO ORDERED. In light of these premises, the Court finds no reversible error in the questioned decision of the trial court. Consequently, it is left with no alternative but to sustain the imposition of the death penalty upon the accused as it is proper and in accordance with law.
Four (4) Justice of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar.
212

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Criminal law 2 cases Full Text

G.R. No. 74433 September 14, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant.

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ART. 248 MURDER G.R. No. L-32103 September 28, 1984

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

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MALLARI and DE LA CRUZ were both absolved on reasonable doubt. 3

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Eduardo Mallari Serial No. L- 597615 (Exh. H-1; J-4)

Rodolfo Aguilar Serial No.C 73130

Jose Buensuceso (Exh H-3; J-3)

Serial No. K-617092

Ernesto Joson Serial No. K-617201 (Exh. H-4; J-3)

Conrado Izon (Exh. H-5; 1-1)

Serial No. 73534

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Chemistry Report No. G-67-204-Conrado Izon

Right Hand Negative

Chemistry Report No. G-67-203-Fidel de la Cruz

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Chemistry Report No. G-67-202-Ernesto Joson

Right Hand Negative

Chemistry Report No. G-67-200 Eduardo Mallari

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By IZON and JOSON:

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Chemistry Report No. G-67-204 Conrado Izon

Left Hand Positive

Right Hand Negative

Chemistry Report No. G-67-203 Fidel de la Cruz

Chemistry Report No. G-67-202 Ernesto Joson

Left Hand Positive

Right Hand Negative

Chemistry Report No. G-67-200 Eduardo Mallari

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Criminal law 2 cases Full Text

G.R. No. L-74324 THE PEOPLE appellee, vs.

November 17, 1988 OF THE PHILIPPINES, plaintiff-

CONTRARY TO LAW (p. 1, Records).

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Cost against both accused.

The antecedent facts are as follows:

SO ORDERED (p. 248, Records).

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I do not know that would be that incident.

Because I pity Bayani, sir.

I was not told, sir.

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I saw him pouring the gasoline on the body of Joe.

Yes, sir (Tsn, July 30, 1983, pp. 32-33).

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G.R. No. 86941

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