A motion for reconsideration filed by the accused-petitioner

was denied by the trial court. Hence, this petition.

G.R. No. L-32895 February 28, 1983
The Solicitor General in a manifestation filed on February 6,
1971 before this Court shares the petitioner's view that under
the complaint, quoted earlier, the petitioner could not be legally
convicted of the lesser offense of qualified seduction.

EUSEBIO
BABANTO, petitioner,
vs.
HONORABLE MARIANO A. ZOSA, Presiding Judge,
Branch III, Court of First Instance of Misamis Occidental,
et al., respondents.

We agree with this statement of Justice Felix Q. Antonio, the

then Solicitor General.

GUTIERREZ, JR., J.:

Under Article 337 of the Revised Penal Code, the elements of
qualified seduction are: (1) the offended party is a virgin; (2)
she must be over 12 and under 18 years of age; (3) the
offender has sexual intercourse with her; and (4) the offender
is a person in public authority, priest, house servant, domestic,
guardian, teacher, one entrusted with the education or custody
of the offended party, or a brother or ascendant of the latter.

The petitioner who had been charged with the offense of rape
punishable under Art. 335 of the Revised Penal Code
questions the decision of the Court of First Instance of Misamis
Occidental convicting him of the lesser offense of qualified
seduction.
The complaint states:

The complaint alleged that the accused abused his position as

a policeman, that Leonida Dagohoy was of the tender age of
13, and that the accused had carnal knowledge of the
complainant. However, there is no allegation that the
complainant was a "virgin". It is true that virginity is presumed if
the girl is over 12 and under 18 years of age, is unmarried and
of good reputation. The presumption notwithstanding, virginity
is still an essential element of the crime of qualified seduction
and must be alleged in the complaint.

The undersigned complainant after being

duly sworn to in accordance with law,
accused Eusebio Babanto of the crime of
Rape, committed as follows:
That on or about the 24th day of October,
1969, in the town of Oroquieta, province of
Misamis Occidental, Philippines and within
the jurisdiction of this Honorable Court, the
said accused abusing his position as a
policeman of Oroquieta and taking
advantage of the night time and of the feeble
minded (sic) condition of the complainant
who is of tender age of 13, with the use of
his service firearm and by means of violence
and intimidation, did then and there willfully,
(sic) unlawfully and feloniously have carnal
knowledge of the undersigned complainant
Leonida Dagohoy, against her will inside the
ABC Hall which happen to be dark. (sic)

A conviction for the crime of qualified seduction without the

allegation of virginity would violate the petitioner's right to be
informed of the nature and cause of the accusation against
him. (Sec. 1 (c), Rule 115, Rules of Court; Sec. 1(17), Art. III,
1935 Constitution; Section 1 (19), Art. IV, Constitution; People
v. Castro, 58 SCRA 473; People v. Ramirez, 69 SCRA 144).
In the same manifestation, the Solicitor General however
recommends " ... that the merits of the case be certified to the
proper appellate court for review as the evidence may sustain
a finding of guilt of the crime of RAPE."
As a matter of correct procedure, this case should have been
raised to the Court of Appeals in a regular appeal, instead of
the accused coming to the Supreme Court directly.

Contrary to Art. 335 of the Revised Penal

Code as amended by Republic Act No. 4111,
with the aggravating circumstances of (a)
night time and (b) abuse of public position. "
(Original Records, p. 1).

As pointed out by the Solicitor General in the manifestation

filed on February 6, 1971, "after all, by this Petition for Review,
petitioner in effect is appealing from the judgment of
conviction." The then Solicitor General, Justice Felix Q. Antonio
quoted the court's impressions of the testimonies of witnesses
as follows:

The trial court did not find the accused guilty of the rape
charged. Instead, it found him guilty of the lesser offense of
qualified seduction. The trial court opined that considering the
evidence on record, accused Babanto actually had sexual
intercourse with complainant Leonida Dagohoy but that such
sexual intercourse was not committed through the use of any
violence or intimidation. The dispositive portion of the decision
reads:

(a) Antonia Simbajon Dagohoy

... On further investigation, she was able to
pry from her that she was sexually abused
by a man, a certain policeman by the name
of Eusebio Babanto.

... the Court finding the accused guilty

beyond reasonable doubt of the crime of
Qualified Seduction, he is hereby punished
to suffer imprisonment of from SIX (6)
MONTHS and ONE (1) DAY to FOUR (4)
YEARS and TWO (2) MONTHS of Prision
correccional in its minimum and medium
periods; to indemnify the offended girl in the
amount of P3,000.00; to recognize the
offspring which may be born out of the crime
committed, there being no positive proof that
he was castrated, and if castrated the
castration
was
successful,
his
uncorroborated statement was not enough;
to suffer the other accessory penalties
provided for by law; and to pay the costs. His
dismissal from the service is strongly
recommended. (Original Records, p. 94).

(b) Sida Ranudo

Sometime after January 15, 1970, Eusebio
Babanto passed by her house and dropped
in and asked her what the girl (Leonida told
her. She told Babanto that Leonida said that
he brought her to the ABC Hall and had her
sit while he (Babanto) placed his gun on the
second tier of the grandstand; spread papers
on the cement floor and let her lie on the
paper, while he (Eusebio Babanto) took off
his trousers. When the penis of Babanto
stood errect, Babanto mounted her and she
exclaimed ouch! ouch!

Babanto admitted this narration to be true. In

fact she told Babanto if it is true; why did he
not surrender and confess. Babanto in turn
told her that he will not. It would be shameful
as he is a police officer,

The records show that complainant Leonida Dagohoy was a

thirteen year old girl at the time of the commission of the
alleged rape. Leonida was not a normal 13 year old girl
because, while she was able to reach Grade One, she was of
considerably low mentality. She also had a peculiar trait of
going out during nighttime without her parents' consent. As a
child, her mother said that "she used to go out during night just
to pick up some fruits falling from our neighbors. When she is
already matured she used to go with me to the public market
alleging that she will help me watch my store. (TSN, March 10,
1970, p. 4) She would escape from their house from 2:00
o'clock AM until dawn. (TSN, March 10, 1970, p. 5) Because of
this peculiarity, her mother built a cage for Leonida to prevent
her from going out. (TSN, March 10, 1970, p. 5.)

(c) Leonida Dagohoy (victim)

At dawn of October 24, 1969 she was in the
market of Oroquieta sitting leisurely. While
thus sitting, Eusebio Babanto, a policeman,
came and held her by the right hand at the
same time saying: I will bring you to the
municipal building. 'She accompanied and
went along with him because she was being
held. But they did not reach the municipal
building because Eusebio Babanto brought
her to the ABC Hall. The hall was empty and
there was nobody in. It was dark. In the ABC
Hall, Eusebio Babanto made her lie down
face upward. Then he lifted her dress and
pulled down her pantie. She felt pain in her
vagina when his penis penetrated her sexual
organ. She cried. He completed the act,
stood up and left her; told her that if she tells
her parents, he will shoot her. Eusebio
Babanto was in uniform and with a side arm.

Leonida narrated the incident of October 24, 1969 wherein

accused petitioner allegedly raped her as follows: At dawn of
October 24, 1969, she was seated in the market located at
Oroquieta City, when the accused petitioner Babanto, a
policeman approached her and held her right hand. Babanto
told her that they will go to the municipal building and she went
with him because he held her. However, she was not brought
to the municipal hall. Instead Babanto brought her to the ABC
Hall. There was no one in the ABC Hall and it was dark. When
they arrived at the ABC Hall, Babanto made her lie down with
her face upward. While she was in this position, Babanto lifted
up her dress and took away her panty. While Babanto was
lifting her dress and removing her panty, she kicked him but he
held her down. Then Babanto exposed his penis, laid down on
top of her and commenced the sexual act. She felt pain in her
vagina as his penis penetrated. She could not shout when she
was being abuse because Babanto covered her mouth,
Leonida then cried. After the sexual act Babanto told her that if
she was going to tell her parents he was going to shoot her.
Thereafter, Babanto left her. While putting back her panty, she
noticed her vagina "bloodbleeding. " The following morning she
took a bath and washed her panty smeared with blood. She did
not report the incident to her parents because of the threat on
her life by Babanto. At the time of the incident, Babanto was in
uniform with a sidearm. Leonida knew him well. She said that
Babanto's daughter was her friend. (TSN, April 1, 1970, pp. 6370).

She did not shout because he held her

mouth. After Babanto left her, she put on her
pantie back and felt her vagina was
bleeding. She was then wearing a blue
dress. When morning came, she took a bath
and washed her pantie.
When Babanto left her that dawn in the ABC
Hall, she went to the seashore. She did not
report to her parents because she was afraid
of Eusebio Babanto when he said that he will
kill her if she tells her parents. But eventually
her parents came to know of what happened
to her that she was abused because they
investigated her. Ultimately, she confessed
to them. So, they brought her to the hospital
and had her examined by a doctor.

Leonida's mother who, after observing her to be weak and

quite feverish while in the cage where she was placed, asked
her "if she was not abused by any man." According to her
mother, she had to ask her for the second time before Leonida
admitted that she was abused sexually by a man whom she
identified as a certain policeman, Eusebio Babanto. (TSN,
March 1970, pp. 5-6)

When the accused filed his brief on April 2, 1971, he ignored

the factual considerations raised by the Solicitor General and
insisted on an acquittal based on the error in his conviction for
qualified seduction.

Leonida's mother then informed her husband about Leonida's

story. They decided to have Leonida medically examined.
Leonida was examined on October 27, 1969 by Dr. German
Garcia, Chief of the Provincial Hospital who issued a medical
certificate, (Exh. "B ") with the following findings:

Considering that the penalty for rape is reclusion

perpetua which is within our appellate jurisdiction and that no
useful purpose would be served by referring this case to the
Court of Appeals only to have it return to us from that court, we
decided to fully review the entire records, which we ordered
transmitted from the trial court, and to go into all aspects of the
case.

old healed lacerations of Hymen at nine and

three o'clock. Vaginal opening easily admit
one finger but admit two fingers with ease.

On June 4, 1971, the Solicitor General repeated his earlier

stand that the petitioner cannot be convicted for the crime of
qualified seduction under the information filed against him,
however under the circumstances of the case, he can be
convicted of rape. The Solicitor General recommended "that
the merits of the criminal case be certified for review by the
proper appellate court and petitioner-accused be not
discharged and instead be made to pursue his Petition for
Review in the form of an ordinary appeal. "

The accused-petitioner denied the rape charge. His own

version of the incident of March 24, 1969 is as follows: On the
night of March 24, 1969, he together with Patrolman Apos was
assigned to patrol Washington Street from 12:00 to 6:00."
While on patrol, at about 1:00 o'clock a.m., he and Apos
noticed a girl and a boy going to the public market coming from
the Filipino bakery. They followed the said boy and girl to find
out those persons were. They reached up to the police station
where they saw the girl sitting there alone without the boy. The
girl turned out to be Leonida Dagohoy, the complainant. They
investigated the girl asked her name and her address. The
girl however, did not answer but instead she lowered her hand.
They decided to bring Leonida to the municipal building
because she is only roaming and in order that she can be
protected. While they were walking side by side, Babanto

On June 22, 1971, we issued a Resolution informing the

petitioner that "he may file a reply to the said memoranda (of
the Solicitor General) within 10 days from notice hereof, if he
so desires. "
The petitioner opted to be silent.

asked her again as regards her name, residence name of her

parents, but she did not answer and instead she would only
lower her hand. At this time they were within the premises of
the Southern Capital Colleges with Patrolman Apos behind
them, about "five fathoms (sic) from them." While walking
towards the municipal building, they met a patrol car. In the
patrol car were Patrolman Tabamo and Sgt. Bongabong of the
police force of Oroquieta City. The patrol car stopped in front of
Patrolman Tabamo (sic) and they "were conversing and I who
was a bit ahead stopped with the intention to listen to what
they were conversing." Leonida proceeded to walk and he
followed her. At this time Babanto was four fathoms more or
less behind Leonida. Leonida proceeded to the ABC Hall.
Since the accused was not able to overtake her, he proceeded
to the municipal building. Upon reaching the municipal building
Babanto verified from the guard, a certain Saniel if a girl
passed by there. Saniel told him there was none. Patrolman
Apos who arrived later asked also about the girl. He then,
recorded the event in the police blotter, after which he together
with Apos went back on patrol. They never saw Leonida
during, the duration of their assignment. Babanto said that
before this incident he never knew complainant Leonida (TSN,
April 27, 1970, pp. 96-102).

building, or was on their way to the municipal

building as testified to by Apos, a copoliceman, and witnessed by Sergeant
Bongabong and Patrolman Tabamo. This
collaborates in fact the claim of the
complaining girl that she was ordered to
come along to the municipal building but
they turned to the ABC Hall where the
accused consummated sexual intercourse
with her.
Considering the circumstances of the case
as adduced by the evidence of the
prosecution and defense, the Court is of the
opinion and so holds that the accused had
sexual intercourse with the comlaining girl
although there was no violence nor
intimidation which preceded the sexual
intercourse. The Court, however, takes into
consideration the observation it made on the
complaining witness that she was 13 years
old, a moron, who answers questions in
monosyllables as truly reflected in the
manifestation of the private prosecutor:

Babanto's foregoing testimony was corroborated by Patrolman

Apos. Patrolman Saniel, the guard at that time in the municipal
building and Ricardo Sambo, a detained prisoner at the
municipal building confirmed that at about 1:00 o'clock dawn of
October 24, 1969, Babanto, arrived at the municipal building
and reported about a girl (Leonida) whom he arrested in the
public market with Patrolman Apos but who was able to run
away.

Before we proceed. with

the examination of the
complaining witness, we
beg the kind indulgence of
this Honorable Court to be
patient and understanding
in her demeanor. In her,
we find her sometimes
difficult to communicate.
While
she
answers
intelligently, she uses one,
two or three words and
she does not look at the
examiner. If she is advised
to speak louder, she will
just continue which could
tax the patience of the
examining
counsel.
oftentimes she does not
answer questions at all
and we have no way of
knowing
whether
she
understands the question
at all. According to the
mother this is the usual
behavior
of
the
complainant in their house.

Given the two versions of the incident, the trial court gave
credence to the prosecution's version. The trial court held:
From the declaration of the girl the Court can
not conceive of any probability that the
intercourse took place with violence or
intimidation although the Court believes that
the accused had sexual relation with the
complaining witness at the ABC Hall of
Oroquieta,
Misamis
Occidental.
The
testimony of the girl herself who declared on
the abuse is very clear that the accused at
the public market on the pretext to protect
her ordered her to come along with him to
the municipal building but instead to the ABC
Hall near the municipal building, By the way,
the ABC Hall is an annex to the municipal
building. In the ABC Hall the accused had
sexual intercourse with her. The only
intimidation that can be gathered from the
declaration of the complaining witness is
what the accused hurled at her that he will
kill her if she tells her parents after the act.

In this connection, we pray

that in some instance we
be permitted to ask
leading questions to this
witness as she sometimes
answer only by yes or no.

It was very well said by Pacheco 'that rape is

not to be presumed, Consent, not force, is
the common origin of the act between man
and woman. Strong evidence must be
produced to prove rape' In this instant case,
the elements of rape were not proved
although as stated above, the Court is
positive that the accused had sexual
intercourse with Leonida Dagohoy, a 13
year-old, feeble minded, illiterate girt as
cooperative and willing, who submitted
herself to the desires of the accused as a
police officer.

Although the complaining

witness was, at the time of
the alleged rape of the
mentality she was then,
that is moron and deeply
unintelligent, the Court can
not consider this as an
element to define the act
committed by the accused
on
the
complaining
witness within the purview
of rape. At most, the
accused is guilty, as the
Court finds him, beyond
reasonable doubt of the
crime
of
Qualified

The Court does not give any credit

whatsoever to the claim of the accussed that
he did not touch the girl, much less raped
her. The fact is fully established that the
accused brought the girl to the municipal

Seduction punished under

Article 337 which provides
that the seduction of a
virgin over 12. years and
under 18 years of age,
committed by any person
in public authority, etc.
etc., and the accused
taking advantage of and
having the girl in his
custody, succeeded in
having sexual commerce
with her; ... (Original
Records, pp. 92-94)

In the instant case, considering the age, mental abnormality,

and deficiency of the complainant plus the fact that the
accused-petitioner was at the time of the incident in uniform
and with a side arm, there was sufficient intimidation to convict
for rape. The fact that the complainant kicked the accusedpetitioner while the latter was lifting her dress and removing
her panty and that she cried afterwards negate any consent on
her part to the sexual intercourse. Thus, we ruled in People v.
Burgos (115 SCRA 767) a case involving the rape of a
deafmute and demented girl:
Because of the physical and mental
condition of Dolores, she could not have
given rational consent to the carnal
intercourse - as correctly ruled by the trial
court. It would have required a great deal of
effort for a 13-year old deafmute to resist the
sexual assault of the 5'8" market vendor
especially so since the same was
unexpected considering the place and time
of its perpetration. And only a mind fully
aware of the moral and social consequences
of the consummation of such sexual assault
could have given intelligent consent to
gather the courage to put up the resistance
necessary to repel such aggression. A
rational consent to an act could only be
given by one who has the ability to discern
the consequences of said act. And Dolores
certainly did not have such mental ability not
only because of lack of formal education, but
also because of her physical and mental
deficiencies. (Emphasis supplied)

We agree with the trial court's findings that sexual intercourse

took place between the accused-petitioner and complainant
Leonida Dagohoy in the manner that Leonida narrated in court.
It is inconceivable that a 13 year old mentally deficient girl
could create such a story and implicate the accused- petitioner
who at that time was a police officer and the father of a friend.
There is no evidence on record which could show evil motive
on her part that she could, despite her mental incapacity,
accuse the petitioner of such a heinous crime as rape. The
record shows that the two of them, were really together just
about the time the incident happened and that the ABC Hall,
where the crime was committed was an annex of the municipal
building. Hence, accused-petitioner could have easily gone to
the municipal building after the incident, earlier than Patrolman
Apos, who admittedly was behind Leonida and the accusedpetitioner on their way to the municipal building.
Except for Babanto's holding down the girl when she kicked
him and covering her mouth when she was in pain there was
no violence which accompanied the sexual intercourse.
However, we find as erroneous the trial court's conclusion that
under the circumstances, where no physical intimidation
preceded the sexual intercourse an essential element which
could qualify accused-petitioner's crime to rape is missing. In
the case of People v. Franco, (114 SCRA 737) we interpreted
intimidation for purposes of the crime of rape as follows:

The evidence also shows that as a result of the sexual

intercourse, complainant Leonida became pregnant as can be
shown by a medical certificate (Exh. "C", Original Record, p.
112) issued by Dr. German Garcia. It should be noted that
complainant Leonida had her first menstruation period on
September 29, 1969, barely a month before the incident. In a
last ditch effort to save himself, accused-petitioner testified that
he was "caponized" or "castrated" sometime in 1958 at the
clinic of Dr. Gedeon Quijano. According to Babanto, Dr.
Quijano was then in Canada so he tried to secure a medical
certificate attesting to the surgical operation from the doctor's
clinic but he was refused ... because according to them it is
already quite a long time and the records could not be found."
(TSN, June 3, 1970, p. 118) He further testified that during the
operation he was attended to by a certain Mrs. Berenguel who
told him that she could remember that I was being operated
but that I could not remember the year." (TSN, June 3, 1970, p.
118) As a result of this operation Babanto said he never begot
any child by his wife up to the present.

... And, at this juncture it is well to remember

that a father exercises such strong moral
and physical influence and control over his
daughter that the force or violence, threat or
intimidation upon her need not be of such
nature and degree as would be required in
other cases (People vs. Rinion, CA 61 OG
4422, cited in Revised Edition, Reyes, The
Revised Penal Code). It is not necessary
that there be sins from Leonora that she put
up a resistence, for a sexual act between.
father and daughter is so revolting that it
would have submitted thereto if her will to
resist had not been overpowered (People vs.
Alienea, C.A. 45 OG Sept. 5, 1950). The
force or violence necessary in rape is
naturally a relative term, depending on the
age, size and strength of the parties and
their relation to each other (People v.
Savellano supra.)

We do not give credence to the accused-petitioner's testimony

as regards his surgical operation. There was no positive proof
that he was castrated and if so, that the castration was
successful other than his uncorroborated statement.
IN VIEW OF THE FOREGOING, the decision appealed from is
hereby set aside. Petitioner is found guilty beyond reasonable
doubt of the crime of rape as defined in Article 335 (1) as
amended, of the Revised Penal Code and (1) is sentenced to
suffer the penalty of reclusion perpetua; (2) to recognize the
child which may have been born to Leonida Dagohoy as a
result of the crime; (3) to indemnify Leonida in the sum of
P12,000.00 as moral damages, and (4) to pay the costs.

xxx xxx xxx

It is a doctrine well settled by the courts that
in order to consider the existence of the rape
it is not necessary that the force and/or
intimidation employed in accomplishing it to
be so great or of such character; it is only
necessary that the force and intimidation
used by the culprit be sufficient to
consummate the purpose which he had in
mind. ...

SO ORDERED
G.R. No. L-80838 November 29, 1988
ELEUTERIO
vs.

C.

PEREZ, petitioner,

COURT OF APPEALS and

PHILIPPINES, respondents.

THE

PEOPLE

OF

THE

court jurisdiction over applications for writs of

certiorari and prohibition "whether or not in
aid of its appellate jurisdiction," was never
meant to authorize the filing of petitions
which, conformably to Rule 65, Sec. 4,
should be filed with the Regional Trial Courts
because they relate to acts of inferior courts.
The purpose of BP 129 is to enable this
Court to take cognizance of petitions which,
because of the limitation imposed by the
requirement that the petition must be "in aid
of its appellate jurisdiction" could or only be
filed before with the Supreme Court (Diocese
of Cabanatuan v. Delizo, AC-G.R. SP No.
06410, Oct. 28, 1985; Uy v. Antonio, AC G.R
R. SP No. 05568, March 7, 1985; De
Guzman v. Andres, AC-G.R. SP No. 04494,
Oct. 25, 1984). [Rollo p. 70.]

Esteban C. Manuel for petitioner.

The Solicitor General for respondents.
CORTES, J.:
Petitioner Eleuterio Perez raises both procedural and
substantive issues in this petition to review the decision of
respondent Court of Appeals in CA-G.R. CR No. 04789 dated
October 8, 1987 and its resolution of November 12, 1987
denying his motion for reconsideration.
The facts of this case are undisputed.
On October 21, 1974 Yolanda Mendoza filed a criminal
complaint against Eleuterio Perez for Consented Abduction
docketed as Criminal Case No. 618 of the Court of First
Instance of Pampanga, Branch VI. The accused pleaded not
guilty and trial on the merits ensued. On June 28, 1980 a
judgment of conviction was rendered against Perez.

Complying with this, Perez filed a petition for certiorari and

prohibition with the Regional Trial Court of Pampanga
docketed as Special Civil Case No. 7623. Upon evaluation of
the case, the court dismissed this petition and Perez' motion
for reconsideration.

On appeal, the Court of Appeals reversed, and acquitted Perez

of the crime of Consented Abduction. In said decision,
promulgated on October 29, 1982, the Court of Appeals made
the following statement:

Petitioner Perez thereafter filed a petition for review with the

Court of Appeals. In a decision dated October 8, 1987 this
petition was denied, being inappropriate, aside from the fact
that the decision sought to be reviewed had become final and
executory. As explained by the Court of Appeals:

xxx xxx xxx

xxx xxx xxx

This is not to say that the appellant did

nothing wrong. With promises of marriage,
appellant succeeded in having sexual
intercourse with her, twice, that night before
they returned. She was seduced by
appellant, as it turned out that he made
those promises just to accomplish his lewd
designs
That
was
"seduction
and not abduction," as explained by Justice
Ramon Aquino. (Rollo, p. 40.)

... it is to be observed that what petitioner

filed in the Regional Trial Court was an
original petition for certiorari and prohibition
which was dismissed by the Regional Trial
Court of San Fernando, Pampanga. The
appropriate remedy for such dismissal is an
appeal from said decision (by filing a notice
of appeal with the RTC concerned), and not
a petition for review. Under the 1983 Interim
Rules of Court, all appeals, except in habeas
corpus cases and in the cases where a
record on appeal is required, must be taken
within fifteen (15) days from notice of the
judgment, order, resolution or award
appealed from. (par. 19).<re||an1w> An
appeal from the Regional Trial Courts to the
Court
of
Appeals
in
actions
or
proceedings originally filed in the former
shall be taken by filing a notice of
appeal with the court that rendered the
judgment or order appealed from (par. 20,
1983 Interim Rules of Court) ...

xxx xxx xxx

Subsequent to petitioner's acquittal complainant Yolanda
Mendoza filed another criminal complaint against Perez on
July 22, 1983, this time for Qualified Seduction, docketed as
Criminal Case No. 83-8228 of the Municipal Trial Court of
Pampanga, Branch VI. * Petitioner Perez filed a motion to
quash invoking double jeopardy and waiver and/or estoppel on
the part of the complainant. However, this motion and
petitioner's motion for reconsideration were denied.
Whereupon, petitioner Perez filed a petition for certiorari and
prohibition with the Supreme Court docketed as G.R. No.
68122 questioning the denial of his motions to quash and for
reconsideration filed with the Municipal Trial Court in Criminal
Case
No.
83-8228. In a resolution of the Second Division dated August 8,
1984, the Court referred the case to the Intermediate Appellate
Court.

For not having filed a notice of appeal with

the Regional Trial Court of San Fernando,
Pampanga, the decision of said court in the
petition for certiorari and prohibition ... has
become final and executory (CIR v. Visayan
Electric Co., 19 SCRA 696, 698) on July 12,
1987, fifteen (15) days after receipt by
petitioner of the decision of said court on
May 18, 1987, deducting the period during
which his motion for reconsideration of said
decision was pending resolution before said
court. ... Petitioner might plead liberality in
the interpretation of the rules of procedure,
but this plea cannot be conceded because it
involves the appellate jurisdiction of this
Court. It has been repeatedly held that
compliance with the manner and period for
perfecting an appeal is mandatory and
jurisdictional Garganta vs. Cabangon, 109
Phil. 150 [1960]; Bilbao vs. Republic, 80

On December 16, 1985 the Intermediate Appellate Court

dismissed the petition, without prejudice to its refiling in the
proper Regional Trial Court. Said the Intermediate Appellate
Court:
As the order sought to be annulled is that of
an inferior court, the petition in this case
should have been filed with the appropriate
Regional Trial Court in accordance with Rule
65, Sec. 4. We have already ruled in several
cases that BP 129, See. 9, in giving this

SCRA, 177 [1977]; Volkschen Labor Union

vs. National Labor Relations Commission, 98
SCRA 314, 322 [1980]) [Rollo, pp. 93-94.]

Petitioner likewise faults the respondent Court of Appeals for

dismissing his petition for certiorari which "gave rise to the
confusion caused by the case being tossed around from one
court to another ending in its dismissal on mere technicality,
thereby depriving [him] of his right to constitutional due
process" [Rollo, p. 133.]

Petitioner's motion for reconsideration was denied. Hence, this

petition for review.

Petitioner's assertion that he was consequently denied due

process in unfounded. Respondent court did not foreclose his
right to seek his remedy elsewhere as it is clear from its
decision that "the petition for certiorari and prohibition is
DISMISSED, without prejudice to its refiling in the proper
Regional Trial Court" [Rollo. p. 70.] Thus, petitioner was never
denied recourse to the appropriate court. On the contrary, the
Intermediate Appellate Court pointed the direction for petitioner
to take.

I. Petitioner claims that what he filed with the Regional Trial

Court was not an original petition for certiorari and prohibition
but an appeal from the resolutions of the Municipal Trial Court
in Criminal Case No. 83-8228 denying his motions to quash
and for reconsideration. Hence, when the Regional Trial Court
dismissed his certiorari and prohibition case, he invoked the
proper remedy which is a petition for review.
There is no merit in petitioner's claim.

II. Petitioner invokes double jeopardy to question the filing

against him of an information for Qualified Seduction after he
was acquitted for Consented Abduction.

Well-established is the rule that appeal is not the proper

remedy from a denial of a motion to quash [People v.
Macandog, G.R. Nos. 18601-2, January 31, 1963, 7 SCRA
195; Newsweek, Inc. v. Intermediate Appellate Court, G.R. No.
63559, May 30, 1986,142 SCRA 171; Milo v. Salanga, G.R.
No. 37007, July 20, 1987, 152 SCRA 113.] This is so because
an order denying a motion to quash is an interlocutory order
and does not finally dispose of a case. Under the Rules on
Criminal Procedure prior to its amendment in 1985, ** after the
denial of defendant's motion to quash, he should immediately
enter his plea and go to trial and, if convicted, raise on appeal
the same question covered by his motion to quash [See Sec. 1
of Rule 117 of the Rules of Court and Chuatoco v. Aragon,
G.R. No. 20316, January 30, 1 968, 22 SCRA 346.]

The rule on double jeopardy is that, "No person shall be twice

put in jeopardy of punishment for the same offense" [Article IV,
Sec. 22 of the 1973 Constitution, Article III, Sec 21 of the 1987
Constitution.] The term "same offense" means Identical offense
or any attempt to commit the same or frustration thereof or any
offense which necessarily includes or is necessarily included in
the offense charged in the former complaint or information. The
rule on double jeopardy under the Rules of Court is explicit:
Sec. 7. Former conviction or acquittal;
double jeopardy.When an accused has
been convicted or acquitted, or the case
against him dismissed or otherwise
terminated without his express consent by a
court of competent jurisdiction, upon a valid
complaint or information or other formal
charge sufficient in form and substance to
sustain a conviction and after the accused
had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of
the case shall be a bar to another
prosecution for the offense charged, or for
any attempt to commit the same or
frustration thereof, or for any offense which
necessarily includes or is necessarily
included in the offense charged in the former
complaint or information. [Sec. 9, Rule 117 of
the Rules of Court Procedure, now Sec. 7,
Rule 117 of the 1985 Rules on Criminal
Procedure.]

Further, the record shows that what petitioner actually filed was
a special civil action for certiorari and prohibition as evidenced
by his prayer for (1) the annulment and setting aside of the
municipal trial judge's resolutions of April 11, 1984 and June
11, 1984 denying his motions to quash and for reconsideration,
respectively, and, (2) the prohibition of the same judge from
further taking cognizance of the criminal case for Qualified
Seduction [Annexes "K" and "L".]
A special civil action for certiorari is an original or independent
action and not a continuation or a part of the trial resulting in
the rendition of the judgment complained of [Palomares v.
Jimenez, 90 Phil. 773, 776 (1952).] The same holds true in
case of a special civil action for prohibition. These writs may be
issued by the Supreme Court, the Court of Appeals and the
Regional Trial Court [Art. X, Sec. 5 (1) of the 1987 Constitution
and Secs. 9 (1) and 21 (1) of Batas Pambansa Blg. 129.]
In a special civil action for certiorari, the petitioner seeks to
annul or modify the proceedings of any tribunal, board, or
officer exercising judicial functions that has acted without or in
excess of jurisdiction, or with grave abuse of discretion [Rule
65, sec. 1.] On the other hand, in a petition for prohibition
directed against any tribunal, corporation, board, or person
whether exercising judicial or ministerial functions who has
acted without or in excess of jurisdiction or with grave abuse of
discretion, the petitioner prays that judgment be rendered
commanding the respondent to desist from further proceeding
in the action or matter specified in the petition [Rule 65, Sec. 2]

xxx xxx xxx

There is no question that petitioner was validly charged with
the crime of Consented Abduction before a court of competent
jurisdiction. That he had been arraigned and had pleaded not
guilty to the charge for which he was subsequently acquitted is
likewise undisputed. In the case at bar, the only issue posed by
petitioner relates to the Identity of the two offenses of
Consented Abduction and Qualified Seduction.

From a denial of a petition for certiorari and prohibition by the

trial court, as in this case, the losing party's remedy is an
ordinary appeal to the Court of Appeals by filing a notice of
appeal with the court that rendered the judgment or order
appealed from [Sec. 20, Interim Rules of Court.] Failure to
appeal within fifteen (15) days from rendition of judgment
renders the appealed decision final and executory.

In support of his argument that the filing of the subsequent

information for Qualified Seduction is barred by his acquittal in
the case for Consented Abduction, petitioner maintains that
since the same evidence would support charges for both
offenses a trial and conviction for one, after he was acquitted
for the other, would constitute double jeopardy. Stated
otherwise, petitioner would rely on the "same evidence" test in
support of his claim of double jeopardy.

A petition for review of a judgment of the regional trial court is

proper only when the judgment sought to be reviewed is an
appeal from the final judgment or order of a municipal,
metropolitan or municipal circuit trial court [Sec. 22 (b), Interim
Rules of Court].

It is true that the two offenses for which petitioner was charged
arose from the same facts. This, however, does not preclude
the filing of another information against him if from those facts,

two distinct offenses, each requiring different elements, arose.

As this Court stated:

the parent or guardian. But-in cases of

seduction, the gravamen of the offense is the
wrong done the young woman who is
seduced. ... [U.S. v. Jayme, 24 Phil. 90, 94
(1913).]

xxx xxx xxx

A single act may be an offense against two
statutes and if each statute requires proof of
an additional fact which the other does not,
an acquittal or conviction under either
statute does not exempt the defendant from
prosecution and conviction under the other.
[U.S. v. Capurro, 7 Phil. 24, 34 (9106) citing
In re Hans Neilsen (131 U.S. 176); Emphasis
supplied.]

xxx xxx xxx

III. Finally, petitioner avers that the complaint for Qualified
Seduction is barred by waiver and/or estoppel on the part of
Yolanda Mendoza, the latter having opted to consider the case
as Consented Abduction. He also alleges that her delay of
more than nine (9) years before filing the second case against
him is tantamount to pardon by the offended party.

xxx xxx xxx

Petitioner's stance is unmeritorious. The complainant's filing of

a subsequent case against him belies his allegation that she
has waived or is estopped from filing the second charge
against petitioner. Neither could she be deemed to have
pardoned him, for the rules require that in cases of seduction,
abduction, rape and acts of lasciviousness, pardon by the
offended party, to be effective, must be expressly given [Rule
110, Sec. 4 of the Rules of Court, Ruled 110, Sec. 5 of the
1985 Rules on Criminal Procedure.] Moreover the length of
time it took her to file the second case is of no moment
considering that she filed it within the ten (10)-year prescriptive
period provided by Article 90 par. 3 of the Revised Penal Code
for crimes punishable by a correctional penalty such as
Qualified Seduction [See Article 24 of the Revised Penal
Code.]

The plea of double jeopardy cannot

therefore be accorded merit, as the two
indictments are perfectly distinct in point of
law howsoever closely they may appear to
be connected in fact. It is a cardinal rule that
the protection against double jeopardy may
be invoked only for the same offense or
Identical offense. A single act may offend
against two (or more) entirely distinct and
unrelated provisions of law, and if one
provision requires proof of an additional fact
or element which the other does not, an
acquittal or conviction or a dismissal of the
information under one does not bar
prosecution under the other. Phrased
elsewise, where two different laws (or
articles of the same code) define two crimes,
prior jeopardy as to one of them is no
obstacle to a prosecution of the other,
although both offenses arise from the same
facts, if each crime involves some important
act which is not an essential element of the
other. [People v. Doriquez, G.R. Nos. 2444445, July 29, 1968, 24 SCRA 163, 171-172;
Emphasis supplied.]

WHEREFORE, the petition is DENIED and the decision of the

Court of Appeals is hereby AFFIRMED.
SO ORDERED.

G.R. No. 85822

April 26, 1990

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
RONILO ALBURO, ZALDY RODRIGUEZ, AND JOHN DOE,
accused, RONILO ALBURO, accused-appellant.

xxx xxx xxx

An examination of the elements of these two crimes would
show that although they may have arisen from the same set of
facts, they are not Identical offenses as would make applicable
the rule on double jeopardy.

The
Solicitor
General
for
Florido & Associates for accused-appellant.

There are similar elements between Consented Abduction and

Qualified Seduction, namely: (1) that the offended party is a
virgin, and, (2) that she must be over twelve (12) and under
eighteen (18) years of age. However, two elements
differentiate the two crimes. Consented Abduction, in addition
to the two common elements, requires that: (1) the taking away
of the offended party must be with her consent, after
solicitation or cajolery from the offender, and, (2) the taking
away of the offended party must be with lewd designs. On the
other hand, an information for Qualified Seduction also
requires that: (1) the crime be committed by abuse of authority,
confidence or relationship, and, (2) the offender has sexual
intercourse with the woman.

plaintiff-appellee.

MELENCIO-HERRERA, J.:
We affirm the judgment of the Regional Trial Court of Cebu
City, Branch XIX, 1 finding Ronilo Alburo guilty beyond
reasonable doubt of the crime of Forcible Abduction with Rape
and sentencing him to suffer the penalty ofreclusion
perpetua with all the accessories of the law; to indemnify
Evelyn Cantina in the sum of P10,000.00 as moral damages,
without subsidiary imprisonment in case of insolvency; and to
pay the costs.
On 3 February 1986, Evelyn Cantina filed a complaint for
Forcible Abduction with Rape against Ronilo Alburo, Zaldy
Rodriguez and John Doe. The complaint reads:

Moreover, the very nature of these two offenses would negate

any Identity between them. As this Court has stated:

That on or about the 27th day of January, 1986 at

about 6:00 P.M., in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court,
accused Ronilo Alburo, who was armed with a
butcher's knife, conniving and confederating together
with Zaldy Rodriguez and John Doe and mutually
helping one another, with deliberate intent, by the
accused, Zaldy Rodriguez and John Doe holding one
Evelyn Cantina and preventing the latter from

xxx xxx xxx

... the gravamen of the offense of the
abduction of a woman with her own consent,
who is still under the control of her parents or
guardians is "the alarm and perturbance to
the parents and family" of the abducted
person, and the infringement of the rights of

disembarking from the jeep driven by accused Ronilo

Alburo took her to Beverly Hills against her will and
once there, said accused Ronilo Alburo, by means of
force and intimidation, did then and there have carnal
knowledge of said Evelyn Cantina without the consent
and against the will of the latter. (p. 1, Original
Record)

On the way to the Capitol and upon reaching the

Fuente Osmea Police Station, the jeepney turned
left along B. Rodriguez Street. When it was already
near the Southern Medical Center, Zaldy Rodriguez
and Dionisio Sumalinog got off from the jeepney,
leaving only Alburo and Evelyn on board. Alburo then
drove off, turning right at V. Rama Avenue, passing
thru Englis, he place where Evelyn resides. The latter
then begged Alburo that she be allowed to disembark.
Alburo did not heed Evelyn's plea. Instead, he pulled
a knife and threatened to slash her side if she would
disembark. The jeepney then proceeded to Beverly
Hills (t.s.n., pp. 27-30, August 16, 1986, Evelyn
Cantina).

Accused John Doe was subsequently identified as Dionisio

Sumalinog.
Upon being arraigned, the accused individually entered pleas
of not guilty. Towards the end of the presentation of the
prosecution evidence, the prosecution moved for the dismissal
of the complaint against Zaldy Rodriguez and Dionisio
Sumalinog. The motion was granted and trial proceeded
against Ronilo Alburo.

Thinking that Evelyn might have been dropped by

Alburo at her residence in Englis Atillo and Bringuila
boarded another jeep. They were hoping that Evelyn
was already home and that they could get the
notebook which one of them left with her. However,
only Evelyn's mother was there. They then realized
that Evelyn was really in trouble and so they related to
her mother what happened. Alarmed by such
information, the latter sought the help of Ester Dakay,
a neighbor and close friend (t.s.n., pp. 5-10, May 13,
1986, Priscilla Atillo).

The prosecution evidence upon which the Trial Court based its
finding of guilt beyond reasonable doubt is summarized in the
People's Brief as follows:
At or about 5:00 o'clock in the afternoon of January
27, 1986, Evelyn Cantina was already dismissed from
her classes at the Abellana National High School,
located at Jones Avenue, Cebu City. From there, her
classmates, Priscilla Atillo and Aniceta Bringuila,
accompanied her in walking towards Colon Street,
Cebu City, to buy some medicine. Not long after, a
passenger jeepney plying the Guadalupe. Carbon
market route stopped by the side of the road. The
driver, Ronilo Alburo, invited the three girls to board
his jeepney. As Colon Street is very near, Evelyn
Cantina declined the invitation at first. Alburo was
however, insistent in giving the three girls a lift.
Finally, the latter accepted the invitation by taking the
front seat, with Evelyn sitting right beside the driver. At
that time however', Zaldy Rodriguez and Dionisio
Sumalinog were already seated at the passengers'
area at the back (t.s.n., pp. 18-21, April 24, 1986,
Priscilla Atillo).

The husband of Ester Dakay, a jeepney driver who

fully knew Ronilo Alburo and the latter's route from
Guadalupe to downtown, Cebu City, called up by
phone Evelyn's father, who came home not long after
(t.s.n., p. 26, May 13, 1986, Ester Dakay). Together,
they then formed search teams to look for Evelyn.
Lourdes Cantina and Ester Dakay went as search
team No. 1. Riding on a taxi, they searched the
reclamation area and made inquiries from the motels.
On the other hand, Evelyn's father as well as her
uncle, rode on two separate motorcycles, making up
search teams 2 and 3, and scoured the streets of the
city. However, the search proved futile (t.s.n., pp.
2932, May 13, 1986, Ester Dakay).
In an isolated area at barangay OPPRA (Capitol
Hills), Alburo stopped the jeepney. Holding the knife,
he went down from the jeepney and threateningly
came close to Evelyn. He then pointed the knife at her
and told her that at something would happen to her if
she would shout. Then he pushed Evelyn's head
against the steering wheel which rendered the latter
unconscious.

Upon reaching the corner of Jones Avenue and Colon

Street, the jeepney driven by Alburo stopped at the
red traffic light. At this juncture, Bringuila and Atillo
disembarked. Evelyn was also about to alight but she
was prevented by Alburo who threatened to raise her
skirt if she insists on alighting and following her two
companions. Bringuila and Atillo tried to help Evelyn
by pulling her out but meanwhile, the green light
turned on and the jeepney sped off towards Juan
Luna Street (t.s.n., pp. 17-26, April 24, 1986, Priscilla
Atillo).

When Evelyn regained her senses she found herself

without her panty anymore. Blood was on her vagina
and she felt pain on her stomach. She saw Ronilo
Alburo with his face close to hers, getting up from her
then raising his pants. She cried and asked Alburo
what he had done to her. He did not answer her
inquiries. Instead, he made her walk for a while,
outside of the jeepney, accordingly, to ease the pain
she felt. Then he made her sit back on the front seat
with him, still under threat of death (t.s.n., pp. 11-19,
August 15, 1986, Evelyn Cantina).

Reaching Juan Luna, the jeepney then made a U-turn

on its return trip to Guadalupe. Meanwhile, Zaldy
Rodriguez transferred to the front seat beside Evelyn
(t.s.n., p. 20, August 6, 1986, Evelyn Cantina).
Anticipating that the jeepney driven by Alburo would
make a return trip to Guadalupe, Atillo and Bringuila
posted themselves beside the corner of Colon and
Juan Luna Streets near the Cebu City Savings Bank,
where vehicles would stop at the red light signal
(t.s.n., p. 34, April 24, 1986, Priscilla Atillo).

It was already dark when Alburo drove back to the

City. Still under threat of death, Evelyn remained
seated beside him. To make it appear that nothing
really happened, Alburo even picked up some
passengers along the way (t.s.n., p. 33, August 15,
1986, Evelyn Cantina).

Indeed, on its way to Guadalupe, the jeepney driven

by Alburo stopped at the corner of Colon and Juan
Luna Streets when the red light signaled. Evelyn
attempted to go down from the jeepney but, she was
prevented by Zaldy Rodriguez who placed his leg as
barricade. Realizing that Evelyn was being prevented
from disembarking, Atillo and Bringuila who stood by
the roadside, close to the jeepney, attempted to pull
Evelyn from the vehicle. However, they did not
succeed. Then the jeepney again sped off and
headed towards Jones Avenue when the green light
turned on (t.s.n., p. 22, August 6, 1986, Evelyn
Cantina).

At about seven o'clock in the evening, while Lourdes

and Ester were standing near Power Foods
Restaurant at Jones Avenue, Ester spotted the
jeepney coming from the Capitol heading towards
downtown. Ester signaled the jeepney to stop. As the
jeepney slowed down, she saw Evelyn seated
between Alburo and a male passenger (t.s.n., pp. 4041, May 13, 1986, Ester Dakay).
Evelyn who appeared very weak and who was in
tears, alighted from the vehicle upon order from her

mother Lourdes Cantina. As she was embraced by

Ester, she whispered to Ester that Alburo should not
be allowed to abscond because he had raped her
(t.s.n., pp. 42-43, May 13, 1986, Ester Dakay). A
commotion followed as an altercation between
Lourdes and Alburo started. The passengers at the
back area disembarked. Ester and Evelyn then sat
down at the passenger's area with a certain Boyet
Junio a Barangay Tanod (t.s.n., p. 48, May 13, 1986,
Ester Dakay).

and Evelyn on 27 January 1986, it was with the free

and voluntary consent of complainant Evelyn Cantina.
The defense witnesses testified to the fact that on
several occasions they saw Evelyn riding the jeepney
driven by Ronilo and the former was seating beside
the accused at the front seat of the motor vehicle.
One of the witnesses even testified to the effect that
she saw Evelyn visiting Ronilo at the latter's rented
room for a number of times. In short, the accused
tried to convey before the trial court that it is of public
knowledge in the neighborhood of Ronilo that the
accused and Evelyn were lovers." (pp. 5-6, Brief for
the Accused-Appellant)

During the confrontation, Lourdes demanded that

Alburo should bring Evelyn and Ester to the Fuente
Osmea Police Station. At first, Alburo refused
claiming that nothing wrong had happened between
him and Evelyn. When Ester told him he had nothing
to be afraid of if he was telling the truth he however,
relented and drove the jeepney towards Fuente
Osmea (t.s.n., pp. 43-45, August 15, 1986, Evelyn
Cantina).

The Trial Court gave no credence to the defense version and,

as heretofore stated, sentenced Appellant toreclusion
perpetua. Before us now, Appellant maintains:
I. The lower court erred in giving credit to the claim of
the prosecution that the alleged offended victim
Evelyn Cantina was forcibly raped by the accusedappellant Ronilo Alburo.

Lourdes did not board the jeepney as she decided to

look for her husband in order to inform him that they
had already found Evelyn. While the jeepney was
proceeding towards Fuente Osmea, Alburo changed
his mind. He made a left turn at Visitacion Street on
the pretext that he would pick up a friend who could
accompany him to the police station. At Visitation
Street, Alburo parked the jeepney. He took out the
engine key and the cash collections, then left the
vehicle. As Alburo had gone, Evelyn narrated to Ester
how she was raped by Alburo. She even gave to
Ester the knife which was left in the jeepney by Alburo
(t.s.n., pp. D-4-57, May 13, 1986, Ester Dakay).

II. The trial court erred in giving credit to the testimony

of the offended party which lacks candor or credibility
and probability, and in not considering that her
testimony was due to fear of her parents that they
would castigate and punish her if found that she and
Ronilo were lovers.
III. The trial court erred in considering that the facts
and circumstances presented as evidence by the
prosecution militates against a finding of rape.

After about 15 minutes, Ester realized that Alburo

would not return anymore. She then called by phone
the jeepney owner who came later and drove them to
Fuente Osmena Police Station (t.s.n., p. 60, p. 65,
May 13, 1986, Ester Dakay).

IV. The trial court erred in not believing that the

accused-appellant Ronilo Alburo and Evelyn Cantina
were sweethearts and lovers, and that the carnal act
done by them on 27 January 1986 was motivated by
mutual passion and love and therefore voluntary.

When Ester and Evelyn arrived at the Fuente

Osmea Police Station, Lourdes was already there.
The two women then reported to the police the
abduction of Evelyn by Rodriguez, Sumalinog and
Alburo. Ester also submitted the knife (Exhibit "A") to
the police. Thereafter, Lourdes and Ester
accompanied Evelyn to the Southern Islands Medical
Center for the latter's medical examination. As they
could not be accommodated there immediately, they
went to the Cebu City Medical Center (t.s.n., pp. 5253, August 15, 1986, Evelyn Cantina). At the Cebu
City Medical Center where Evelyn was examined by
Dra. Juliet Lastimosa and was found to have fresh
lacerations on her vagina with positive presence of
spermatozoa (t.s.n., pp. 52-53, August 15, 1986,
Evelyn Cantina). The medical certification (Exhibit "B")
was issued by Dra. Lastimosa on the following
morning.

V. The trial court erred in not believing the testimonies

of the appellant Ronilo Alburo and of Dina Lopez,
Placido Alegrado Manuel Rama and Corazon Gabato
defense witnesses, who declared that on several
occasions they saw Evelyn riding the jeepney.
VI. The trial court erred in not acquitting the accusedappellant at least on the ground of reasonable doubt.
(pp. 7-8, Ibid.)
After evaluation of the evidence in its totality, we are not
persuaded by the theory that Appellant and Evelyn were
sweethearts.1wphi1 If they were, surely, Evelyn would not
have jeopardized their relationship by accusing him of having
deflowered her and, on top of it all, filing a criminal charge
against him. Evelyn's picture, allegedly given to Appellant as a
remembrance of their romantic relationship, was actually given
to Ruel Sipi her former boyfriend. She emphatically denies
having given Appellant any such token. Neither was Appellant
able to present any convincing evidence to substantiate his
claim like love letters, notes and other symbols of affection.

On that same evening, Ester, Lourdes and Evelyn

made a second appearance at the police station and
the complaint for abduction with rape was formally
lodged by Evelyn. Her affidavit was initially taken by
the Investigator. The knife. (Exhibit "A") which was
submitted earlier that night remained in the
possession of the police. As the panty (Exhibit "E")
and the skirt (Exhibit "D" were still worn by Evelyn,
they were submitted only the following day. The skirt
was torn on the right side (Exhibit "D-2") and had
some blood stains (Exhibit "D-1"). The panty also had
some blood stains (Exhibit "E-1"). (pp. 3-1 1, Brief for
the Appellee)

Moreover, if, in fact, they had been lovers, Evelyn would have
boarded Appellant's jeep voluntarily and alone unaccompanied
by her two classmates. If the latter had any inkling that Evelyn
did want to go with Appellant, they would not have shown so
much concern for her welfare and safety like following the
passenger jeepney driven by Appellant to the traffic lights,
trying to pull Evelyn down from the jeepney, failing in which,
they eventually reported the incident to Evelyn's mother.
Appellant's argument that Evelyn charged him with the crime
out of fear of her parents who did not approve of their
relationship is unconvincing because, if it had been so, Evelyn
could have easily told her mother after the latter had
successfully traced their whereabouts that nothing untoward
had happened between her and Appellant. Her normal reaction
would have been to cover-up for the man she loved and had a

Appellant, on the other hand, presented five (5) witnesses and

offered several documentary exhibits in his defense. His theory
runs thus:
Accused Alburo's theory or main line of defense is
that he and Evelyn Cantina were sweethearts, thus, if
ever there was sexual intercourse between Ronilo

clandestine affair with. But, on the contrary, Evelyn lost no time

in denouncing Appellant and exposing to her family and the
authorities the disgrace that had befallen her.

Thereafter, marital discord set in, with mutual recriminations

between the spouses, followed by a separation de facto
between them.

Appellant's other assigned errors focus on the issue of

credibility of witnesses in respect of which it is well settled that
Appellate Courts will not generally disturb the factual findings
of Trial Courts which are in a better position to weigh the
conflicting testimonies, having heard the witnesses themselves
and observed their deportment and manner of testifying during
the trial unless it is found that the Trial Courts have plainly
overlooked certain facts of substance and value that, if
considered, might affect the result of the case (People vs.
Cruz, Sr., G.R. No. L-71462, June 30, 1987, 151 SCRA
609, citing other cases).

After about three and a half years of marriage, such connubial

disharmony eventuated in private respondent initiating a
divorce proceeding against petitioner in Germany before the
Schoneberg Local Court in January, 1983. He claimed that
there was failure of their marriage and that they had been living
apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal
separation, support and separation of property before the
Regional Trial Court of Manila, Branch XXXII, on January 23,
1983 where the same is still pending as Civil Case No. 8315866. 3

In reviewing the evidence adduced by the prosecution for this

crime of Rape, we have likewise been guided by three wellknown principles, namely, (1) that an accusation of rape can be
made with facility, is difficult to prove, but more difficult for the
person accused, though innocent, to disprove; (2) that in view
of the intrinsic nature of the crime of rape where only two
persons are usually involved, the testimony of the complainant
must be scrutinized with extreme caution; and (3) that the
evidence for the prosecution must stand or fall on its own
merits, and cannot be allowed to draw strength from the
weaknesses of the evidence for the defense (Reyes, Revised
Penal Code, Book II, 1981 ed., p. 850).

On January 15, 1986, Division 20 of the Schoneberg Local

Court, Federal Republic of Germany, promulgated a decree of
divorce on the ground of failure of marriage of the spouses.
The custody of the child was granted to petitioner. The records
show that under German law said court was locally and
internationally competent for the divorce proceeding and that
the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance
of the divorce decree, private respondent filed two complaints
for adultery before the City Fiscal of Manila alleging that, while
still married to said respondent, petitioner "had an affair with a
certain William Chia as early as 1982 and with yet another man
named Jesus Chua sometime in 1983". Assistant Fiscal
Jacinto A. de los Reyes, Jr., after the corresponding
investigation, recommended the dismissal of the cases on the
ground of insufficiency of evidence. 5 However, upon review,
the respondent city fiscal approved a resolution, dated January
8, 1986, directing the filing of two complaints for adultery
against the petitioner. 6 The complaints were accordingly filed
and were eventually raffled to two branches of the Regional
Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia",docketed as
Criminal Case No. 87-52435, was assigned to Branch XXVI
presided by the respondent judge; while the other
case, "People of the Philippines vs. Imelda Pilapil and James
Chua", docketed as Criminal Case No. 87-52434 went to the
sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7

The factual milieu of this criminal charge before us gives us no

reason to depart from these established rules. On the contrary,
we find that Appellant had taken Evelyn away against her will,
with lewd designs, subsequently forced her to submit to his lust
and rendering her unconscious in the process, thereby
justifying his conviction for the complex crime of Forcible
Abduction with Rape under Article 48 in relation to Articles 335
and 342 of the Revised Penal Code, with which he has herein
been charged.
WHEREFORE, the judgment appealed from is hereby
AFFIRMED, with the modification of the amount of indemnity to
be paid the offended party, which is hereby increased to
P20,000.00, in line with decisional jurisprudence.
Costs against
ORDERED.

accused-appellant

Ronilo

Alburo.

SO

G.R. No. 80116 June 30, 1989

On March 14, 1987, petitioner filed a petition with the Secretary

of Justice asking that the aforesaid resolution of respondent
fiscal be set aside and the cases against her be dismissed. 8 A
similar petition was filed by James Chua, her co-accused in
Criminal Case No. 87-52434. The Secretary of Justice, through
the Chief State Prosecutor, gave due course to both petitions
and directed the respondent city fiscal to inform the
Department of Justice "if the accused have already been
arraigned and if not yet arraigned, to move to defer further
proceedings" and to elevate the entire records of both cases to
his office for review. 9

IMELDA
MANALAYSAY
PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as
Presiding Judge of the Regional Trial Court of Manila,
Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the
City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.
REGALADO, J.:

Petitioner thereafter filed a motion in both criminal cases to

defer her arraignment and to suspend further proceedings
thereon. 10 As a consequence, Judge Leonardo Cruz
suspended proceedings in Criminal Case No. 87-52434. On
the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987.
Before such scheduled date, petitioner moved for the
cancellation of the arraignment and for the suspension of
proceedings in said Criminal Case No. 87-52435 until after the
resolution of the petition for review then pending before the
Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which motion
was denied by the respondent judge in an order dated
September 8, 1987. The same order also directed the
arraignment of both accused therein, that is, petitioner and
William Chia. The latter entered a plea of not guilty while the
petitioner refused to be arraigned. Such refusal of the

An ill-starred marriage of a Filipina and a foreigner which

ended in a foreign absolute divorce, only to be followed by a
criminal infidelity suit of the latter against the former, provides
Us the opportunity to lay down a decisional rule on what
hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a
Filipino citizen, and private respondent Erich Ekkehard Geiling,
a German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal
Republic of Germany. The marriage started auspiciously
enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born
on April 20, 1980. 1

10

petitioner being considered by respondent judge as direct

contempt, she and her counsel were fined and the former was
ordered detained until she submitted herself for
arraignment. 13 Later, private respondent entered a plea of not
guilty. 14

the Philippines, the offended party being merely the

complaining witness therein. However, in the so-called "private
crimes" or those which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to
commence the action, or to refrain therefrom, is a matter
exclusively within his power and option.

On October 27, 1987, petitioner filed this special civil action

for certiorari and prohibition, with a prayer for a temporary
restraining order, seeking the annulment of the order of the
lower court denying her motion to quash. The petition is
anchored on the main ground that the court is without
jurisdiction "to try and decide the charge of adultery, which is a
private offense that cannot be prosecuted de officio (sic), since
the purported complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce decree under
his national law prior to his filing the criminal complaint." 15

This policy was adopted out of consideration for the aggrieved

party who might prefer to suffer the outrage in silence rather
than go through the scandal of a public trial. 20 Hence, as
cogently argued by petitioner, Article 344 of the Revised Penal
Code thus presupposes that the marital relationship is still
subsisting at the time of the institution of the criminal action for,
adultery. This is a logical consequence since the raison
d'etre of said provision of law would be absent where the
supposed offended party had ceased to be the spouse of the
alleged offender at the time of the filing of the criminal case. 21

On October 21, 1987, this Court issued a temporary restraining

order enjoining the respondents from implementing the
aforesaid order of September 8, 1987 and from further
proceeding with Criminal Case No. 87-52435. Subsequently,
on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez
acted on the aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the
complaints against the petitioner. 16

In these cases, therefore, it is indispensable that the status and

capacity of the complainant to commence the action be
definitely established and, as already demonstrated, such
status or capacity must indubitably exist as of the time he
initiates the action. It would be absurd if his capacity to bring
the
action
would
be
determined
by
his
status before or subsequent to the commencement thereof,
where such capacity or status existed prior to but ceased
before, or was acquired subsequent to but did not exist at the
time of, the institution of the case. We would thereby have the
anomalous spectacle of a party bringing suit at the very time
when he is without the legal capacity to do so.

We find this petition meritorious. The writs prayed for shall

accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of
adultery, as well as four other crimes against chastity, cannot
be prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. 18 While in
point of strict law the jurisdiction of the court over the offense is
vested in it by the Judiciary Law, the requirement for a sworn
written complaint is just as jurisdictional a mandate since it is
that complaint which starts the prosecutory proceeding 19 and
without which the court cannot exercise its jurisdiction to try the
case.

To repeat, there does not appear to be any local precedential

jurisprudence on the specific issue as to when precisely the
status of a complainant as an offended spouse must exist
where a criminal prosecution can be commenced only by one
who in law can be categorized as possessed of such status.
Stated differently and with reference to the present case, the
inquiry ;would be whether it is necessary in the
commencement of a criminal action for adultery that the marital
bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the
action by the former against the latter.

Now, the law specifically provides that in prosecutions for

adultery and concubinage the person who can legally file the
complaint should be the offended spouse, and nobody else.
Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the
crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called
exclusive and successive rule in the prosecution of the first
four offenses above mentioned do not apply to adultery and
concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in
default of her parents, grandparents or guardian, such
amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no
other, is authorized by law to initiate the action therefor.

American jurisprudence, on cases involving statutes in that

jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no
longer has the right to institute proceedings against the
offenders where the statute provides that the innocent spouse
shall have the exclusive right to institute a prosecution for
adultery. Where, however, proceedings have been properly
commenced, a divorce subsequently granted can have no
legal effect on the prosecution of the criminal proceedings to a
conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that

'No prosecution for adultery can be

commenced except on the complaint of the
husband
or
wife.'
Section
4932,
Code. Though Loftus was husband of
defendant when the offense is said to have
been committed, he had ceased to be such
when the prosecution was begun; and
appellant insists that his status was not such
as to entitle him to make the complaint. We
have repeatedly said that the offense is
against the unoffending spouse, as well as
the state, in explaining the reason for this
provision in the statute; and we are of the
opinion that the unoffending spouse must be
such when the prosecution is commenced.
(Emphasis supplied.)

Corollary to such exclusive grant of power to the offended

spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal representation
to do so at the time of the filing of the criminal action. This is a
familiar and express rule in civil actions; in fact, lack of legal
capacity to sue, as a ground for a motion to dismiss in civil
cases, is determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of
criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have
been found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of

11

We see no reason why the same doctrinal rule should not

apply in this case and in our jurisdiction, considering our
statutory law and jural policy on the matter. We are convinced
that in cases of such nature, the status of the complainant visa-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery
case must be an offended spouse, and by this is meant that he
is still married to the accused spouse, at the time of the filing of
the complaint.

The allegation of private respondent that he could not have

brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect once a
dissolution of the marriage is decreed. Neither would there be
a danger of introducing spurious heirs into the family, which is
said to be one of the reasons for the particular formulation of
our law on adultery, 26 since there would thenceforth be no
spousal relationship to speak of. The severance of the marital
bond had the effect of dissociating the former spouses from
each other, hence the actuations of one would not affect or
cast obloquy on the other.

In the present case, the fact that private respondent obtained a

valid divorce in his country, the Federal Republic of Germany,
is admitted. Said divorce and its legal effects may be
recognized in the Philippines insofar as private respondent is
concerned 23 in view of the nationality principle in our civil law
on the matter of status of persons.

The aforecited case of United States vs. Mata cannot be

successfully relied upon by private respondent. In applying
Article 433 of the old Penal Code, substantially the same as
Article 333 of the Revised Penal Code, which punished
adultery "although the marriage be afterwards declared void",
the Court merely stated that "the lawmakers intended to
declare adulterous the infidelity of a married woman to her
marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and
void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically
inferred therefrom that the complaint can still be filed after the
declaration of nullity because such declaration that the
marriage is void ab initio is equivalent to stating that it never
existed. There being no marriage from the beginning, any
complaint for adultery filed after said declaration of nullity
would no longer have a leg to stand on. Moreover, what was
consequently contemplated and within the purview of the
decision in said case is the situation where the criminal action
for adultery was filed before the termination of the marriage by
a judicial declaration of its nullity ab initio. The same rule and
requisite would necessarily apply where the termination of the
marriage was effected, as in this case, by a valid foreign
divorce.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et

al., 24 after a divorce was granted by a United States court
between Alice Van Dornja Filipina, and her American husband,
the latter filed a civil case in a trial court here alleging that her
business concern was conjugal property and praying that she
be ordered to render an accounting and that the plaintiff be
granted the right to manage the business. Rejecting his
pretensions, this Court perspicuously demonstrated the error of
such stance, thus:
There can be no question as to the validity of
that Nevada divorce in any of the States of
the United States. The decree is binding on
private respondent as an American citizen.
For instance, private respondent cannot sue
petitioner, as her husband, in any State of
the Union. ...
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the
policy against absolute divorces the same
being considered contrary to our concept of
public policy and morality. However, aliens
may obtain divorces abroad, which may be
recognized in the Philippines, provided they
are valid according to their national law. ...

Private respondent's invocation of Donio-Teves, et al. vs.

Vamenta, hereinbefore cited, 27 must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the
offended spouse therein had duly and seasonably filed a
complaint for adultery, although an issue was raised as to its
sufficiency but which was resolved in favor of the complainant.
Said case did not involve a factual situation akin to the one at
bar or any issue determinative of the controversy herein.

Thus, pursuant to his national law, private

respondent is no longer the husband of
petitioner. He would have no standing to sue
in the case below as petitioner's husband
entitled to exercise control over conjugal
assets. ... 25

WHEREFORE, the questioned order denying petitioner's

motion to quash is SET ASIDE and another one
enteredDISMISSING the complaint in Criminal Case No. 8752435 for lack of jurisdiction. The temporary restraining order
issued in this case on October 21, 1987 is hereby made
permanent.

Under the same considerations and rationale, private

respondent, being no longer the husband of petitioner, had no
legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed
suit.

SO ORDERED.

12